Opinion of the Court
FLETCHER, Chief Judge:The appellant was found guilty at a special court-martial of the use of provoking words, robbery, and assault with the intent to commit robbery, in violation of Articles 117, 122 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 917, 922 and 934, respectively. He was sentenced by the mili*103tary judge to a bad-conduct discharge, confinement at hard labor for 4 months, forfeiture of $220 pay per month for the same period and reduction to the grade of E-l. The convening authority, in accordance with a pretrial agreement, approved this sentence with the exception of confinement, which he reduced to a period of 1 month. The supervisory authority approved this sentence. The United States Navy Court of Military Review set aside these findings and the sentence and dismissed the charges against the appellant on the basis of our decision in United States v. Russo, 1 M.J. 134 (C.M.A.1975). The Court of Military Review also denied a petition for reconsideration subsequently submitted by the Government.
In accordance with Article 67(b)(2), UCMJ, 10 U.S.C. § 867(b)(2), the Judge Advocate General of the Navy has forwarded the record of trial and decision of the Court of Military Review to this Court for consideration of the following issues:
I
Assuming a first enlistment procured through recruiter misconduct [United States v. Russo, 1 M.J. 134 (C.M.A.1975], must the Government prove that a second enlistment of an individual is cured of any defects existing with the first enlistment before an individual is subject to in personam court-martial jurisdiction when there is no evidence to indicate that the second recruiter had knowledge of the alleged misconduct of the first recruiter?
II
Assuming a first enlistment procured through recruiter misconduct [United States v. Russo, 1 M.J. 134 (C.M.A.1975], in cases arising between July 1977 and August 1978 in which a second enlistment is determined not to be free of all defects of the first enlistment, despite the second recruiter’s lack of knowledge of the misconduct of the first recruiter, is not a rehearing on the jurisdictional issue, rather than a dismissal of the charges, the proper remedy, in light of the good faith reliance of military authorities on prior law as announced by the United States Navy Court of Military Review in United States v. Crowe, No. 77 0552 (NCMR 22 July 1977)? United States v. McCarthy, 2 M.J. 26, 28 n. 2 (C.M.A.1976); United States v. Dubay, 17 U.S.C.M.A. 247, 37 C.M.R. 411 (1967); see Stovall v. Denno, 388 U.S. 293 [87 S.Ct. 1967, 18 L.Ed.2d 1199] (1967).
The facts in this case were succinctly stated by the Court of Military Review in its opinion:
Appellant enlisted in the United States Marine Corps Reserve (Class “J”) program on 23 July 1974. On 14 August 1974, he was enlisted into the Regular Marine Corps and commenced active duty. Appellant testified that, prior to his Reserve enlistment, he informed his recruiter that he had used marijuana in the past. (R. 9). Recruiting regulations in effect at that time absolutely barred the enlistment of an applicant who had used marijuana. Paragraph 2110.1w, Military Personnel Procurement Manual (MCO P1100.61C). Appellant further testified that the recruiter told him, if he wanted to enlist in the Marine Corps, he should deny ever using or being involved with marijuana. (R. 20). Appellant indicated that he followed the recruiter’s advice and denied ever using marijuana when questioned by the examining physician at the time of his enlistment into the Regular Marine Corps. (R. 11).
# * * sj« * *
In the instant case, only 22 days elapsed between the Reserve and Regular enlistments. The purpose of appellant entering into the Reserve enlistment was merely to enter a “holding pattern” until he could be brought on active duty, at which time he would enlist in the Regular Marine Corps. (R. 21). Also, the testimony of appellant that he was advised by his first recruiter to conceal his prior use of marijuana at the time of his second enlistment was not challenged at trial, (footnote omitted). Appellant states that *104he did exactly as he was advised by the first recruiter. For this reason, the evidence would indicate that the alleged misconduct of the first recruiter was directly involved and incorporated into the second enlistment.
In light of these facts we approach the aforementioned questions of law proffered by the Judge Advocate General of the Navy for our consideration.
The first certified question for review must be answered in the affirmative in light of the facts and circumstances of the present ease. This simply is not the situation where the enlistments are so separate or unrelated that irregularities in the first enlistment can be considered of “no moment” as a matter of fact and law to the validity of the second enlistment upon which court-martial jurisdiction is purportedly based. Cf. Blackington v. United States, 248 F. 124, 125 (1st Cir. 1918). What we do have in this case is the situation where the initial enlistment in the Marine Corps “J” program was intended by law1 and in fact2 to lead to the second enlistment in the Regular Marine Corps. Any technical, if not artificial, distinction between the two enlistments we find without importance for the purposes of court-martial jurisdiction over this appellant.
In addition, and perhaps more importantly, this is not the case where misconduct on the part of the first recruiter in the initial enlistment can be said to have not rendered the second enlistment “irregular or unfair.” Cf. Blackington v. United States, supra. The first recruiter created the situation where the appellant would be eventually called for his second enlistment at the Armed Forces Entrance and Examination Station, counseled him unlawfully to conceal his regulatory disqualification at that time, and took no steps3 with such knowledge to prevent this unlawful enlistment from occurring. Simply because some other government agent who participated in the recruiting process was innocently deceived by such deliberate fraud in no way obviates its unlawfulness within the meaning of Article 84, UCMJ, 10 U.S.C. § 884.
We believe that allegations of such misconduct by a recruiter, if unrebutted, clearly establish that the second enlistment of the appellant was brought about in violation of Article 84, UCMJ. There is no doubt that such action by the first recruiter smoothed the path for the appellant’s second enlistment in contravention of service regulations. See United States v. Russo, supra. We agree with the Navy Court of Military Review in its accurate assessment of the factual and legal realities of this situation. Accordingly, in view of our holding in United States v. Russo, supra, we would likewise require the Government, when such issues are reasonably raised, to affirmatively establish that the first re*105cruiter’s misconduct did not occur, or did not occasion the second enlistment upon which court-martial jurisdiction is based.
In light of our position on the prior matter, it is clear that the second question certified by the Judge Advocate General must be answered in the negative. This jurisdictional issue is clearly controlled by this Court’s decision in United States v. Russo, supra. Our resolution of the issue today establishes no new case law to fill a purported gap created by our earlier decisions. Moreover, Judge Mallery, in United States v. Crowe, supra, found no recruiter misconduct in that case at all and there was no allegation nor evidence that the initial recruiter in that case had any part in the subsequent enlistment. This is not the situation in the appellant’s case. Furthermore, to the extent his gratuitous comments conflict with our clear holding in United States v. Russo, supra, we find any reliance placed thereon to be misplaced and without proper authority.
Accordingly, the decision of the United States Navy Court of Military Review is affirmed.
Judge PERRY concurs.. It is clear that the Marine Corps Reserve “J” program anticipates three possible results from enlistment therein. First, the reservist will enlist a second time in the Regular Marine Corps for an extended period of active duty upon completion of the delay period. Second, he will report for extended active duty as a reservist for a considerable period of time. Third, if he fails to report for extended active duty at the end of the delay period, he will be processed as an unauthorized absentee and be subject to court-martial. See Marine Corps Military Personnel Procurement Manual § 2404.
The Navy Delayed Entry Program, Chapter 12 of COMNAVCRUITCOMINST 1130.8A, which is conceded by the Government to be without distinction from the above mentioned Marine Corps “J” program, articulates more clearly its reason for being.
12-Id. At the time of initial contact with a prospective applicant, the fact will be made clear that, although the program does provide for extended active duty in the U.S. Naval Reserve, the ultimate objective is for enlistment in the Regular Navy. Those applicants who do not desire to subsequently enlist in the Regular Navy will not be enlisted in this program.
. It is unrebutted in the record of trial that the purpose of the appellant’s entry into the Marine “J” program was only to delay his entry into the Regular Marine Corps until a friend could also be so enlisted.
. It is again unrebutted in the record of trial that the appellant was contacted by his first recruiter by telephone immediately prior to his second enlistment and told to report to the Armed Forces Entrance and Examination Station for that purpose.