34 M.J. 1039 | U.S. Navy-Marine Corps Court of Military Review | 1992
We have examined the record of trial, the assignments of error,
Appellant, tried before a general court-martial, military judge alone, was found guilty, pursuant to his pleas, of signing two official records with the intent to deceive, violations of Article 107, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 907, and larceny of U.S. currency of a value in excess of $100.00, military property of the United States, a violation of Article 121, UCMJ, 10 U.S.C. § 921. He was sentenced to confinement for one year, forfeiture of all pay and allowances, reduction to pay grade E-l, and a bad conduct discharge.
In his second assignment of error, appellant alleges that his pleas of guilty to Charge II and the specification thereunder, the larceny of military property, were improvident because military allowances, the property stolen, are not “military property” as contemplated by Article 121, UCMJ. Larceny of military property of a value greater than $100.00 carries a maximum punishment of a dishonorable discharge, forfeiture of all pay and allowances and confinement for 10 years. Larceny of nonmilitary property contains the same authorized punishment except that the maximum amount of confinement that can be awarded is capped at five years. See Paragraph 46e(l), Part IV, Manual for Courts-Martial (MCM), United States, 1984.
The discussion of Article 121—larceny and wrongful appropriation—found in the MCM
This Court recently traced the history of the phrase “military property”—see United States v. Spradlin, 33 M.J. 870 (N.M.C.M.R.1991)—and we concluded that the “legislative intent [was] to exclude money from the types of military property involved in offenses resulting from mere neglect or suffering, but to include money in the types of military property involved in offenses resulting from willful misconduct tantamount to theft or fraud.” Id. at 872. We further noted that
In joining willful offenses with negligent ones in Article 108, U.C.M.J., and applying them to “any military property of the United States,” the Congress appears to have adopted the broad definition of military property reflected in Article of War 60,3 ..., and in its successor Article of War 94 and Article for the Government of the Navy 14, quoted in Schelin4 ____ Since ... Article of War 60 and its successors explicitly included “money” among the kinds of “property of the United States furnished or intended for the military service thereof,” we are compelled to conclude that, under the right circumstances, money may be alleged as military property____
Id.
In Schelin the Court of Military Appeals held that retail merchandise of the Army and Air Force Exchange Service was not “military property of the United States.” Schelin at 220. “In other words, it is either the uniquely military nature of the property itself, or the function to which it is put, that determines whether it is ‘military property’ within the meaning of Article 108.” Id.
The Court of Military Appeals subsequently expanded on this concept in United States v. Simonds, 20 M.J. 279 (C.M.A. 1985). There the Court held that a camera in a ship’s store was military property. “In a general sense, all property purchased with federal funds and owned or held by a service is ‘military property.’ [Citations omitted.] We may presume that items purchased with funds appropriated by Congress to a military department fall within the definition of ‘military property.’ ” Id. at 280.
In the case now before us, the appellant stole approximately $5,000.00 from the United States by receiving Basic Allowance for Quarters at the with dependent rate even though he was divorced and thus not so entitled. Funds to pay such allowances are appropriated by Congress on an annual basis. See, e.g., Department of Defense Appropriations Act, 1992, Pub.L. No. 102-172, 105 Stat. 1150 (1991).
The purpose of such allowances is not only to boost the morale of the service member but also to ensure the actual subsistence of him and his family. It performs a “morale and welfare function which is an integral part of the armed forces. ‘Providing for the health, morale, and welfare of the [service member] is as much a military purpose as is providing weapons and ammunition. Indeed, the maintenance of health, morale, and welfare of the [service member] is essential to the successful completion of the command’s mission’.” Simonds at 280. We thus hold that the funds paid as the basic allowance for quarters are military property. The appellant’s second assignment of error is without merit.
Appellant, in his third assignment of error, alleges that the false official
The sole remaining assignment of error (I) is that a bad conduct discharge is inappropriately severe. We disagree. We specifically find a bad conduct discharge to be appropriate for a 30-year old sergeant of Marines with over 12 years of service who, despite his age and years of experience, engages in a long-term fraud against the U.S. Government.
The findings are affirmed. The two specifications under Charge I, Article 107, are herewith consolidated into Charge II (Article 121) and its specification. See United States v. Campbell, 22 M.J. 99 (C.M.A.1986). Upon reassessment of the sentence pursuant to the principles announced in United States v. Peoples, 29 M.J. 426 (C.M.A.1990) and United States v. Sales, 22 M.J. 305 (C.M.A.1986), we affirm the sentence adjudged and approved below.
. I. A SENTENCE WHICH INCLUDES A BAD CONDUCT DISCHARGE IS INAPPROPRIATELY SEVERE. [FOOTNOTE OMITTED]
II. THE FINDINGS OF GUILTY OF CHARGE II AND THE SPECIFICATION THEREUNDER, ALLEGING LARCENY OF MILITARY PROPERTY, WERE IMPROVIDENT BECAUSE MILITARY ALLOWANCES ARE NOT "MILITARY PROPERTY" AS CONTEMPLATED BY UCMJ ARTICLE 121. UNITED STATES V. THOMAS, 31 MJ. 794 (A.F.C.M.R.1990); SEE ALSO UNITED STATES V SPRADLIN, 33 MJ. 870 (N.M.C.M.R.1991).
III. SPECIFICATION 4 OF CHARGE I, ALLEGING FALSE OFFICIAL STATEMENT, IS MULTIPLICIOUS FOR FINDINGS WITH CHARGE II AND ITS SPECIFICATION, ALLEGING LARCENY OF MILITARY PROPERTY. UNITED STATES V DOUGAL, 32 MJ. 863 (N.M.C.M.R.1991). [FOOTNOTE OMITTED]
. Para. 46b(l), Part IV, MCM, provides in pertinent part: "[Note: If the property is alleged to be military property, as defined in paragraph 32c(l), add the following element]
(e) That the property was military property.”
. Article of War 60 contains the following:
Any person in the military service of the United States who ... steals, embezzles, knowingly and willfully misappropriates, applies to his own use or benefit, or wrongfully or knowingly sells or disposes of any ordnance, arms, equipments, ammunition, clothing, subsistence stores, money, or other property of the United States, furnished, or intended for the military service thereof ... [s]hall, on conviction thereof, be punished by fine or imprisonment, or by such other punishment as a court-martial may adjudge.
[Emphasis supplied.]
. United States v. Schelin, 15 M.J. 218 (C.M.A. 1983).