§ 21.1. Generally.

II. PROSECUTION

§ 21. Charges and Specifications

The accused was convicted of forgery in violation of UCMJ, Art 123, under a specification which alleged that he did at a stated time, with intent to defraud, offer a certain described Armed Forces Liberty Pass, signed by a named officer, a writing which would, if genuine, apparently operate to the legal prejudice of another, the accused knowing that the signature on the pass was falsely made. Held that:

- the specification sets forth every essential element of the charge of forgery as defined by UCMJ, Art 123 and the specification was properly laid under that Article even though the identical acts may also have been charged under Art 134. (Citing U. S. v. Herndon (No. 570), 1 USCMA 461, 4 CMR 53.)

moreover, the pass operated to the legal prejudice of another and thus was a proper subject of forgery. As a matter of law the pass operated to the prejudice of the officer whose signature it purported to bear because it was in derogation of his legal right to control liberty passes. Moreover, it operated to the prejudice of the United States by apparently changing the government's right to the accused's services at the time involved. (Cf. CM 261047, DeAngelo, 40 BR 105; CM 318342, Irvin, 67 BR 253; ACM 7194, Turiano, 13 CMR 753.)

there was no necessity for instructions on a lesser included offense of falsely using a forged pass in violation of UCMJ, Art 134. Since an intent to defraud or deceive is an essential element of the Article 134 offense of using a false pass, that offense cannot be distinguished from an Article 123 offense on the basis of intent. The only element present in the one and not the other is the element of apparent capability to operate to the legal prejudice of another. Since the pass herein could, as a matter of law operate to the legal prejudice of another, there was no basis on which the court could have found the accused guilty of a lesser offense than that charged and there was thus no duty to instruct on the lesser offense. (Distinguishing CM 362116, Kautz, 10 CMR 227.)

since the Manual prescribes a maximum punishment of three years' confinement for fraudulently using a false pass, this limit should control rather than the higher maximum under UCMJ. Art 123, as reflecting the specifically intended maximum. CGCMS 20114, Wilcox (1955) 18 CMR 451.

§ 35. Instructions to Court

§ 35.11. Included offenses.

Necessity of instructions on falsely using a pass on a trial for forgery of pass, see CGCMS 20114, Wilcox, supra § 21.

§ 41.1. Generally.

§ 41. Sentence and Punishment

Punishment for forgery of Armed Forces Liberty Pass, see CGCMS 20114, Wilcox, supra § 21.

FRAUDS AGAINST THE GOVERNMENT

§ 21. Pleas and Defenses

§ 21.5. Statute of limitations.

The United States brought action under the Surplus Property Act (40 USC) demanding payment of $2,000.00 and double the amount of damages suffered by reason of fraudulent conduct of defendant in procuring surplus property from War Assets Administration by use of "Certificates of Veteran's Preference" unlawfully purchased by defendant from war veterans. The complaint was filed 17 October 1952, and alleged acts of fraud occurred on 26 November 1946, and during February and March 1947. Held: Since the action was for penalties, the five-year statute of limitations contained in Title 18 USC § 2462 was applicable. (Citing Huntington v. Attrill, 146 US 657, 36 L ed 1123, 13 S Ct 224; American Fidelity & Casualty Co. v. G. A. Nichols Co. 173 F2d 830; 23 Am Jur 625.) If the government was induced to sell surplus property to defendant, believing he was entitled to special favor as a veteran, at a price less than the property would bring on the open market, it would constitute defrauding of the United States in a pecuniary manner or in a manner concerning property. Title 18 USC § 3287, which provides that when the United States is at war the running of any statute of limitations applicable to any offense involving fraud or attempted fraud against the United States shall be suspended until three years after termination of hostilities, did not toll the running of the five-year statute of limitations with respect to the alleged fraudulent act occurring after 31 December 1946, the termination date of hostilities in the late war by Presidential Proclamation No. 2714 (50 USCA Appx § 601), but applied to the offense committed prior to 31 December 1946. Action is barred on offenses committed after 31 December 1946, as the fiveyear statute of limitations on these offenses expired. As to offenses committed prior to 31 December 1946, the running of the statute of limitations was suspended and did not commence to run until three years after the date of the termination of hostilities, and trial is not barred by the statute of limitations. (Citing U. S. v. Smith, 342 US 225, 96 L ed 252, 72 S Ct 260; U. S. v. Grainger, 346 US 235, 97 Led 1575, 73 S Ct 1069; U. S. v. Klinger, 199 F2d 645; Bridges v. U. S., 346 US 209, 97 L ed 1557, 73 S Ct 1055.) United States v. Witherspoon (1954 CA Tenn) 211 F2d 859.

FRAUDULENT ENLISTMENT, APPOINTMENT,

AND SEPARATION

3. Nature and Elements of Offense.

§ 28. Instructions to Court.

§ 29. Findings.

§3.1. Generally.

§ 3. Nature and Elements of Offense

Knowingly false representation or intentional concealment as element of offense, see ACM 10192, Holloway, infra § 28.15.

§ 28. Instructions to Court

§ 28.15. Mistake as defense.

The accused was convicted of fraudulent enlistment. The prosecution presented evidence to the effect that the accused had falsely represented upon enlistment in the Air Force that he had no prior military service and that he had never been discharged other than honorably whereas in fact he had received undesirable discharges for fraudulent enlistment in the Army on four occasions. The accused testified that when he went to the recruiting office he disclosed his prior service and discharges to two United States Air Force Sergeants who told him they would get a waiver and for him not to worry about the prior service entry because it would be taken care of. Held: Fraudulent enlistment in violation of UCMJ, Art 83, includes as an essential element a knowingly false representation or intentional concealment of a fact which, if known, would bar enlistment. (Citing MCM, 1951, par 162; ACM 5861, Stevens, 7 CMR 838.) An honest mistake, be it one of fact or law, may be interposed as a defense to a crime requiring a specific intent, even though that mistake be unreasonable or one occasioned by the accused's own carelessness or fault. (Citing ACM 9659, McLeod, 18 CMR 814.) The accused's testimony raised the issue of mistake because if it is accepted he did not entertain the requisite intent to conceal. Accordingly, the law officer was required to instruct on the affirmative defense of mistake sua sponte and his failure to do so constituted prejudicial error. (Citing ACM 9659, McLeod, 18 CMR 814; U. S. v. Heims (No. 1497), 3 USCMA 418, 12 CMR 174; U. S. v. Miller (No. 1021), 2 USCMA 194, 7 CMR 70; U. S. v. Drew, (No. 422), 1 USCMA 471, 4 CMR 63; U. S. v. Ginn (No. 263), 1 USCMA 453, 4 CMR 45; ACM 5861, Stevens, 7 CMR 838.) ACM 10192, Holloway, (1955) 18 CMR 909.

§ 29.1. Generally.

§ 29. Findings

A specification alleged that the accused, by deliberate concealment of his disqualification by virtue of having received a bad conduct discharge from the Marine Corps, procured himself to be enlisted in the Army, and did thereafter "receive pay under the enlistment so

procured." The court in finding the accused guilty added the words "and/or allowances" between the words "pay" and "under." The convening authority approved only so much of the findings of guilty "as finds the accused guilty of the Specification as alleged." Held: The findings are invalid because of their uncertainty. The use of the term "and/or" leaves in doubt whether the court found the accused guilty of receiving "pay" only (as alleged), "allowances" only (not alleged), or both. Furthermore, the action of the convening authority did not cure the defective finding, for he has no power to make definite an alternative, indefinite, and uncertain finding (CM 318183, Welsh, 49 BR 111). CM 373980, Bodley (1954) 16 CMR 343.