By Matthew Rinaldi, NLG Military Law Task Force
The United States remains one of the few nations which recruits and enlists minors into the military.
Popular U.S. culture thinks of child soldiers as fighting in Africa. A Long Way Gone, the memoir of Ismael Beah, covers the civil war in Sierra Leone, and the chilling depiction of child soldiers in the movie Blood Diamond draws on Beah’s writings. Boko Haram in Nigeria currently reinforces this image. Yet African nations have made great strides in outlawing child soldiers. The widely accepted U.N. sponsored Cape Town Principles establishes 18 as the minimum age for military recruitment. However, the United States has refused to sign. The Uniform Code of Military Justice (UCMJ), codified as federal law at 10 U.S.C., allows the recruitment of 17-year-old children. All 50 states provide “minority” legal status and protection for persons under 18. In response, 10 U.S.C. 505 provides that no person under the age of eighteen years of age may be enlisted “without the written consent of his/her parent or guardian.”
Army regulations provide for the discharge for minors on a discretionary basis and for “void” enlistments which violate 10 U.S.C. 505. But even if a parent or guardian never gave written consent, Army Regulation 601-270, Section VI imposes a 90-day window on objection, after which the defect in the enlistment contract is waived. Current law holds that
even a child improperly enlisting when underage can be held in the military after he or she turns 17 on the grounds that voluntary continuation on active duty beyond the statutory age
requirement “waives any such defect” resulting in “constructive enlistment.” [Blassingame v. Secretary of Navy (E.D.N.Y. 1985) 626 F. Supp. 632 at 638, citing United States v. Harrison, 5 M.J. 476.]
Current U.S. military law violates a growing consensus that minors below the clear bright line of age 18 require special protection. The U.S. Supreme Court in Roper v. Simmons
(2005) 543 U.S. 551 struck down the death penalty for crimes committed before age 18, noting at 566: “…as any parent knows, and as the scientific and sociological studies respondent
and his amici cite tend to confirm, ‘a lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults….These qualities often result in
impetuous and ill-considered actions and decisions.’” Most young people currently enlist in the hope of gaining job training; some enlist to obtain citizenship. Many want a discharge once they experience life in uniform, but the military is one job you cannot quit.
The NLG Military Law Task Force has been working on behalf of U.S. child soldiers. To date, every soldier who has signed a “disaffirmation” of the enlistment contract has been discharged. No portion of the UCMJ makes such a discharge mandatory, but no commander has yet to deny a discharge when faced with the prospect of a federal habeas petition.
The MLTF seeks to litigate this issue. ■