My father served in the Army during the Korean War and told me that many of the soldiers he served alongside with were in the Army as an alternative to prison. Several Vietnam-era vets have told me they've served with military members who were told by a judge, "Join the Military, or go to jail."
Can courts still do that? Can a criminal court judge sentence a person to military service as an alternative to jail. Can a prosecutor mandate that someone join the military as an alternative to criminal prosecution?
Well, a judge or prosecutor can do whatever they please (within the limits of the law for their jurisdiction), but -- that doesn't mean the military branches are required to accept such people and -- they don't.
The Army addresses this issue in the Army Recruiting Regulation, Army Regulation 601-210, paragraph 4-8b: "Applicant who, as a condition for any civil conviction or adverse disposition or any other reason through a civil or criminal court, is ordered or subjected to a sentence that implies or imposes enlistment into the Armed Forces of the United States is not eligible for enlistment.."
The Air Force Recruiting Regulation, AETCI 36-2002, table 1-1, lines 7 and 8, makes an applicant ineligible for enlistment if they are "released from restraint, or civil suit, or charges on the condition of entering military service, if the restraint, civil suit, or criminal charges would be reinstated if the applicant does not enter military service."
The Marine Corps Recruiting Regulation, MCO P1100.72B, Chapter 3, Section 2, Part H, Paragraph 12 states: "Applicants may not enlist as an alternative to criminal prosecution, indictment, incarceration, parole, probation, or other punitive sentence. They are ineligible for enlistment until the original assigned sentence would have been completed."
In the Coast Guard, enlistment prohibition is contained in the Coast Guard Recruiting Manual, M1100.2D, Table 2-A.
Interestingly, the Navy Recruiting Manual, COMNAVCRUITCOMINST 1130.8F, does not appear to contain any provisions which would make such applicants ineligible for enlistment. However, I've been informed by several Navy recruiters that the Navy will not accept applicants for service, as an alternative to criminal prosecution or other punitive sentence.
Recruiter Participation in Criminal Proceedings
All of the branch's recruiting regulations prohibit military recruiters from becoming involved in criminal proceedings for any military applicant.
Under no circumstances may recruiting personnel intervene or appear on behalf of prospective applicants/DEPpers pending civil action with court authorities. Civil action is defined as awaiting trial, awaiting sentence, or on supervised conditional probation/parole. Waiver of this restriction is not authorized. The following are clarifications:
a. Recruiting personnel may not appear in court or before probation or parole authorities under any circumstances on behalf of any applicant or DEPper.
b. Informal conversations with defense attorneys or probation or parole officers must be limited to explaining the military's recruitment policies. Recruiting personnel may give no opinions or suggestions to enable an unqualified applicant to enlist. They must allow the normal course of civil action to occur without assistance or intervention.