§ 22. Instructions to Court

On a trial on a charge of conduct unbecoming an officer and a gentleman by signing a false official record, failure to define the phrase "unbecoming an officer and a gentleman" was not error, at least in the absence of a request for clarifying instructions, since the phrase is not one having special legal connotation to officers in the military service. (Citing U. S. v. Shepard (No. 343), 1 USCMA 487, 4 CMR 79; ACM S-2958, Barnawell, 5 CMR 773; U. S. v. Soukup (No. 533), 2 USCMA 141, 7 CMR 17; U. S. v. Dejewski (No. 2055), 3 USCMA 53, 11 CMR 53; U. S. v. Long (No. 464), 2 USCMA 260, 6 CMR 60; ACM S-4634, Perry, 8 CMR 842, 847.) ACM 9515, Dowling (1954) 18 CMR 670.

§ 22.9. Defenses, generally.

Failure to establish mistake of fact as defense so as to require instruction thereon, see United States v. Rodriguez-Suarez, FALSE CL § 28.11.

Sufficiency of evidence to raise issue of mistake of fact so as to require instructions thereon, see ACM 7063, Morrison, FALSE CLAIMS § 28.11.

§ 23.1. Generally.

§ 23. Findings

The accused was convicted of wrongful appropriation of government property and making a false official statement. The specification under the false official statement charge alleged that he did, at Kelly Air Force Base, Texas, on or about 17 February 1954, with intent to deceive, make to a certain named person an official statement, to wit: That the equipment was from a T-28 and C-46 type aircraft and that the equipment was not usable, but that like serviceable equipment was urgently needed for a T-28 and C-46 aircraft that was scheduled to take off in the early morning of 18 February 1954, which statement was wholly false, and was then known by the accused to be false. The findings of guilty were in accord with the specification. The action of the convening authority approved only so much of the findings of guilty as found that the accused did, at the time, place, and in the manner alleged, make to the person named a false official statement to wit: That the equipment was from a C-46 type aircraft and that the equipment was not usable, but that like serviceable equipment was urgently needed for a C-46 aircraft that was scheduled to take off in the early morning of 18 February 1954. Held: The rule that a convening authority in approving "only so much" of a court-martial's finding as is specified, by thus limiting his approval, impliedly disapproves that which is omitted has general application in the military service. However, the rule is subject to the qualification that disapproval of the omitted matter does not result if the matter set forth in the action clearly indicate contrariwise. (Citing ACM 1374, Barrett (BR) 1 CMR (AF) 494; ACM 821, Sanders (BR), 1 CMR (AF) 694; ACM S-2753, Watson, 5 CMR 576; ACM S8392, Lloyd, 14 CMR 792; ACM S-7227, Miles, 13 CMR 698; U. S.

v. May (No. 3450), 3 USCMA 703, 14 CMR 121; ACM S-9785, Hicks, 17 CMR 786; CM 363496, Richmond, 11 CMR 442.) In assessing the legal effect of a convening authority's action, just as in the construction of the legal sufficiency of a specification and the determination of the legal efficacy of a court-martial's findings by exception and substitution, the inquiry must be, is the accused fully protected against another prosecution for the same offense. (Citing MCM, 1951, par 87a(2), 74b(2); U. S. v. Hopf (No. 372), 1 USCMA 584, 5 CMR 12.) The action of the convening authority herein was legally effective to approve the finding of the court. It is clear that the convening authority approved the offense found by the court with the exception of reference in the statement to a "T-28" type aircraft. The action contained sufficient identification of the time and place of offense, the person to whom the false statement was made, and the statement itself, without the necessity of reference to the words "in the manner alleged" and "false". The latter, therefore, could only pertain to the words omitted which expressed the elements "with intent to deceive" and that such statement "was then known (by accused) to be false". To construe them otherwise would require a holding that the substituted words were without meaning whatever. The specification, the evidence of record, the finding of the court, and the action of the convening authority, in combination, afford the accused the required safeguard against another prosecution. ACM 9863, Hughes (1955) 19 CMR —.

FINANCE

IV. RECEIPT, COLLECTION, AND CUSTODY OF FUNDS. § 45. Servicemen's Deposits.

§ 57. Remission or Cancellation of Indebtedness to Govern

ment

V. DISPOSITION OF FUNDS; DISBURSEMENTS.

§ 73. Outside United States; Foreign Exchange Transac

tions.

IV. RECEIPT, COLLECTION, AND CUSTODY
OF FUNDS

§ 45.1. Generally.

§ 45. Servicemen's Deposits

Where a depositor is confined pursuant to sentence of courtmartial, or retained in the service pending completion of appellate review, past the normal date on which his term of enlistment would have expired, interest on his deposits should be allowed to the date of actual discharge. The same rule applies if the man involved is restored to duty. MS Comp Gen B-119013, 33 Comp Gen 522. 23 April 1954.

$ 45.37. Deposits of absentees or deserters.

Military savings deposits do not accrue interest during periods that enlisted depositors are in a desertion status. While the act of 17 July 1953, 67 Stat 176, removes the requirement for forfeiture of deposits upon desertion, it by no means follows that interest accrues during a period of desertion. During such period the deserter is not an enlisted man within contemplation of the laws regarding interest on deposits by enlisted men, and while the government may have had the use and benefit of the amount deposited during the period of desertion, it is obvious that for purposes of the accrual of interest the commencement of the deserter status, created by the deserter's own action in absenting himself with no intention of returning, in effect works a discharge until his ultimate apprehension.

When interest is resumed upon the depositor's return to military jurisdiction it is not to be resumed with no interruption of accrual during the period of desertion, but rather interest should be suspended during the period of desertion.

Furthermore, upon a depositor's return to military jurisdiction from desertion, interest on his deposits should be computed on the total principal sum then deposited. There is no basis for considering the old principal plus the accrued interest through the date of desertion as a new principal amount since such procedure would, in effect, be compounding interest. The six-month accrual period for the computation of interest includes active duty, performed either prior to commencement or subsequent to termination of the desertion status. Upon correction of a depositor's service record to remove a

mark of desertion as having been erroneously entered, interest on his deposits may be credited retroactively to include the period during which the depositor was erroneously held to be in a desertion status. MS Comp Gen B-119013, 33 Comp Gen 522. 23 April 1954.

§ 57. Remission or Cancellation of Indebtedness to Government § 57.1. Generally.

The word "reenlisted" as used in par 30a, AR 35-1820, which provides "indebtedness may not be remitted after an enlisted member has been discharged unless such member has been reenlisted", is not restricted to reenlistments in the Regular Army and applies to enlistment in the Army Reserve. JAGA 1955/1438. 10 February 1955. Cancellation of indebtedness of National Guardsmen for hospitalization extending beyond training period, see JAGA 1955/1329, NG § 61.1.

V. DISPOSITION OF FUNDS: DISBURSEMENTS

§ 73. Outside United States; Foreign Exchange Transactions § 73.6. Profits of conversions.

An Army finance officer, in England, exchanged Dutch guilders obtained by him in black-market operations for American currency belonging to United States which was in his custody, without complying with applicable regulations. Held: The United States did not lose title to the American currency and, especially in absence of showing of open market value for guilders in England at the time, the officer could recover neither value of the guilders nor the American currency after the United States had seized it but was entitled to recover the amount of his own money with which he initially purchased the guilders. [Madden, J., dissenting.] Smith v. U. S. (1954, Ct Cl No. 49522), 126 F Supp 433.

FORGERY

I. IN GENERAL; ELEMENTS OF OFFENSE. § 3. Subject Matter of Forgery.

II. PROSECUTION.

§ 21. Charges and Specifications.

§ 35. Instructions to Court.

§ 41. Sentence and Punishment.

I. IN GENERAL; ELEMENTS OF OFFENSE

§3.7. Passes.

§ 3. Subject Matter of Forgery

Armed Forces Liberty Pass as capable of operating to the legal prejudice of another so as to be subject of forgery, see CGCMS 20114, Wilcox, infra § 21.1.

§3.11. Allotment checks.

While the monies composing a Class Q allotment may be earned items of compensation received by an airman by reason of his status as such, the control of the payment of those items is entirely within the government. The Dependents Assistance Act of 1950, 64 Stat 795, 50 USC Appx 2204, as amended requires that the allotment payment shall be made to or on behalf of the dependent concerned. Thus, a legal obligation on the part of the government is created in favor of the payee or of a holder in due course when the allotment check is issued. It is apparent that the false affixing of the payee's signature to such a check by the airman allotter would operate to the legal prejudice of a holder in due course if the government were to refuse to honor the check upon presentment. Likewise, if a check to which the payee's signature is forged is honored by the government and the payee makes claim against the government for the face amount of the check, the government would suffer legal prejudice. Also, one who makes use of, or attempts to make use of, an instrument known to be false and who with intent to defraud represents it to be genuine is guilty of forgery by uttering. It is not necessary that the person deceived be the payee whose signature is falsely made. The intent to defraud may be directed against the person who cashes the check, the drawer of the check, or the payee. Therefore, an airman allotter can commit the offense of forgery in connection with a Class Q allotment check notwithstanding the fact that the funds represented by the check consist solely of increments of pay earned by the airman. However, it is essential to constitute the crime of forgery that an intent to defraud be present. The mere false signing of a payee's name to the instrument is not an offense cognizable in military law. (Citing UCMJ, art 122; MCM, 1951, par 202; ACM 6846, Mitchell, 11 CMR 924; ACM 3312, Bronson (JC), 4 CMR(AF) 330; ACM 3218, Whitaker, 4 CMR (AF) 317; ACM 6826, Bryant, 12 CMR 833.) Op JAGAF 1954/15. 11 October 1954.