(concurring):
The issue in this case is whether recruiter misconduct in concealing the accused’s preservice use of marijuana and failure to obtain a required waiver of the accused’s record of civilian offense precludes the Government from relying on a constructive enlistment, where the accused was processed for discharge by reason of fraudulent enlistment, but was retained in the Navy at his request. It does not.
Accepting the trial judge’s determination that the accused informed the recruiter of his preservice use of marijuana, a disqualifying defect in the absence of a waiver, I agree that the concealment of the defect and enlistment of the accused whom the recruiter knew to be disqualified was misconduct which rendered the accused’s original enlistment invalid and consequently unenforceable for the purposes of court-martial jurisdiction. See United States v. Valadez, 5 M.J. 470, 475 (C.M.A.1978); United States v. Russo, 1 M.J. 134 (C.M.A.1975); United States v. Robbins, 7 M.J. 618 (N.C.M.R.1978), cert. filed, 6 M.J. 154 (C.M.A.1978) . The processing of the accused for discharge by reason of fraudulent enlistment and his retention at his request were tantamount to a new enlistment. The new enlistment, albeit a constructive enlistment because of the absence of the formalities of an enlistment contract, was untainted by the first enlistment. This is not a situation in which the initial enlistment is intended to and does lead to the second and in which the misconduct of the recruiter in the first enlistment smooths the path for a second enlistment in violation of regulations. Gf. United States v. Torres, 7 M.J. 102 (C.M.A.1979) . When processed for discharge pursuant to regulations which were designed to protect the integrity of the enlistment process, but, in effect, authorized waiver of known disqualifications in appropriate cases, the accused freely chose to remain in the service. His undisclosed preservice use of marijuana did not void the new enlistment because the Government acted reasonably and fairly in effecting it and it was not the natural, foreseeable result of the first. See United States v. Valadez and United States v. Torres, both supra; United States v. Harrison, 5 M.J. 476 (C.M.A.1978). Consequently, court-martial jurisdiction may be properly predicated on the second, constructive enlistment.