Briefly stated the evidence reveals that the accused, a member of the 6157th Air Base Squadron of the 58th Fighter Bomber Wing located at K-2 Air Base in Korea, was discovered with other airmen approaching the perimeter fence of K-2 from the outside about 0700 hours on 22 September 1953. Regulation 125-3 of the 58th Fighter Bomber Wing, dated 24 July 1953, declared the area in which the accused was found as "Off Limits" and further provided for a "Curfew" period from 2000 hours until 0800 hours during which all personnel were required to be present on K-2 Air Base unless otherwise specifically authorized (para 4d). This regulation had been permanently posted on the squadron bulletin board from about 24 July 1953. All members of the squadron were required to read the bulletin board twice a day. The regulation has been removed from the board on one occasion but was replaced shortly thereafter. The regulation was also called to the attention of the squadron personnel in the monthly meetings. The accused testified in his own defense that when he reported into the squadron in early July 1953 the regulation in question or the provisions of a similar regulation had not been brought to his attention. He had never read the regulation prior to 22 September 1953 but he knew it was his duty to read the bulletin board and had done so carefully; however, he had never seen the regulation on the board. No one had ever told him that the area wherein he was found was off limits. He had never heard the substance of the regulation discussed in squadron meetings. Knowledge of a general regulation of less than Department, theater or comparable level, is an essential element of an offense alleged in violation of Article 92(1) of the Code. . . . This element may be established through the presence of either actual or constructive knowledge. . . . In essence, the defense assignment of errors attacks the adequacy of the second portion of the questioned instruction questioned instruction to inform the court members the nature of constructive knowledge. In resolving both problems an inquiry into the differences between actual and constructive knowledge will be helpful. On the one hand actual knowledge is established when it is shown that the accused in fact knows of the regulation, i.e., proof that the accused personally read the regulation and signed a certificate to that effect. On the other hand, the Manual for Courts-Martial, 1951, states that constructive knowledge is established: "... when it is known that the order was so published that the accused would in the ordinary course of events, or by the exercise of ordinary care, have secured knowledge of the order... (para 171.b) The Manual suggests that constructive notice may be found: "... when the regulation or directive was of so notorious a nature, or was so conspicuously posted or distributed, that the particular accused ought to have known of its existence, (para 154a(4)." Thus we see that actual and constructive knowledge are not of the same ilk. In those cases where the presence of actual knowledge is an essential prerequisite to conviction, proof of constructive knowledge which does not at the same time amount to circumstantial evidence of actual knowledge will not suffice. Correspondingly, where actual knowledge is either an element of the offense charged or properly placed in issue by the evidence of record, an instruction that the court can convict solely upon a finding that the particular accused has constructive knowledge is erroneous. Both by definition and by method of proof, constructive knowledge amounts to something less than actual knowledge. In our opinion when constructive knowledge is a proper criterion, prima facie proof that the directive in question is of a "notorious nature". . ., or that it has been "conspicuously posted or distributed," and the accused is shown to be a member of that class of persons with "ought to have known of its existence," is sufficient in law to permit conviction, albeit the accused has no actual knowledge of the directive. . . .In that sense, upon proper predicate of proof, constructive knowledge compares favorably with the knowledge of the general directives of a Department, theatre or comparable headquarters, which is conclusively presumed and in which lack of actual knowledge plays no part (see MCM, 1951, par 154(a)(4)). By this last statement we do not mean to say that a prima facie factual predicate establishing constructive knowledge presented by the prosecution cannot be attacked by the defense evidence. Obviously such is not the case. However, it can not be upset by an accused's bald assertion that he has not read the directive and has no actual knowledge of it. To successfully attack prima facie proof of constructive notice, the evidence must of necessity tend to establish that the factual foundation upon which constructive knowledge is based is not true, i.e., that the directive was not posted permanently on the bulletin boards, or that the accused was not a member of the class of persons at the time of the violation who "ought to have known of [the regulation's] existence." An example of the latter situation will serve to illustrate. An airman, newly assigned to a local unit, prior to reporting for duty, is found in an “off-limits" tavern which has been proscribed by local base general regulations. These regulations have been permantely posted upon the local unit bulletin boards which all assigned personnel are required to read daily. In this hypothetical case, it is obvious that this man would not belong to that class of persons who ought to have known of the directive's existence, as he patently has no duty to read the bulletin board until he has actually reported in. Accordingly, he neither knows (actual knowledge), nor is he in a position where he can, with the exercise of ordinary care or in the ordinary course of events, know of the directive, prior to the alleged violation (constructive knowledge). In Sanders the Court found that the accused ought to have known of the posted regulation's existence and the Court affirmed properly his conviction of violating the lawful regulation posted on the squadron bulletin board. OFFENSES INVOLVING FUNDS AND PROPERTY OF THE UNITED STATES Military Property of the United States The Uniform Code of Military Justice also makes the loss of government funds and property offenses punishable by court-martial. The offenses which occur most often are those involving the loss or wrongful disposition of government property and fraudulent claims made against the government. Loss, Damage, Destruction, or Wrongful Disposition of Military Property of the United States-Article 108 makes the loss, damage, destruction or wrongful disposition of government property an offense punishable by court-martial. Article 108 provides that: Any person subject to [the UCMJ] who, without authority — (1) sells or otherwise disposes of; (2) willfully or through neglect damages, destroys, or loses; or (3) willfully or through neglect suffers to be lost, damaged, destroyed, sold, or wrongfully disposed of: any military property of the United States, shall be punished as a court-martial may direct. In the case of loss, destruction, sale, or wrongful disposition, the value of the property controls the limit of punishment which may be adjudged. In the case of damage to government property, the repair or replacement cost controls the limit of punishment rather than the value of the damaged property. The maximum punishment authorized for the offense of damaging, destroying or losing government property of a value of more than $100 is a bad conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for 1 year, and reduction to the lowest enlisted grade. Lesser maximum punishments are authorized if the value of the property is $100 or less. Selling or Otherwise Disposing of Military Property - A soldier who unlawfully sells or disposes of government property can be charged with committing a criminal offense under Article 108(1). It is no defense that the property sold, disposed, of, destroyed, lost or damaged has not been issued or that the property was issued to someone other than the accused. The maximum punishment which can be imposed for unlawfully selling government property of a value of more than $100 is a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 5 years, and reduction to the lowest enlisted grade. Lesser maximum punishments are authorized if the value of the property is $100 or less. Willfully or Through Neglect Damaging, Destroying, or Losing Military Property- A soldier who willfully or through neglect damages, destorys, or loses military property can be charged with an offense under Article 108(3). The loss, damage, or destruction of military property will be deemed to be willful if there is proof that the accused either lost, damaged, or destroyed the property himself, or that he could have prevented the loss, damage, or destruction of the property and failed to do so. An example of the latter would be a sentinel who, seeing a small and easily extinguishable fire in a stack of hay, allows the hay to burn. A loss, damage, or destruction attributed to neglect implies an omission to take measures appropriate to prevent the loss, damage or destruction. A deliberate violation or postive disregard of a law, regulation or order may indicate that an accused acted willfully or was neglectful in protecting military property. An accused's neglect or willfulness also may be established by showing the following: a reckless or unwarranted personal use of the property; causing or allowing the property to remain exposed to the weather, insecurely housed, or not guarded, permitting the property to be consumed, wasted or injured by other persons; or loaning the property to a known irresponsible person who damages it. The maximum sentence authorized for neglectfully or willfully damaging, destroying, or losing government property of a value of more than $100 is a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 5 years, and reduction to the lowest enlisted grade. Lesser maximum punishments are authorized if the value of the property is $100 or less. Frauds Against the Government-Fake and fraudulent claims made against the government are criminal offenses punishable under Article 132 of the Uniform Code of Military Justice. Article 132 provides that: Any person subject to [the UCMJ] (1) who, knowing it to be false or fraudulent (A) makes any claim against the United States or any officer thereof; or (B) presents to any person in the civil or military service thereof, for approval or payment, any claim against the United States or any officer thereof; (2) who, for the purpose of obtaining the approval, allowance, or payment of any claim against the United States or any officer thereof (A) makes or uses any writing or other paper knowing it to contain any false or fradulent statements; (B) makes any oath to any fact or to any writing or other paper knowing the oath to be false; or (C) forges or counterfeits any signature upon any writing or other paper, or (3) who, having charge, possession, custody, or control of any money, or other shall, upon conviction, be punished as a court-martial may direct. A claim is a demand for a transfer of ownership of money or property and does not include requisitions for the mere use of the property. Making a claim is different from presenting a claim. In making a false or fraudulent claim, the soldier knows that his claim is fictitious or dishonest. An example is when a soldier, who has lost personal property in a move from one installation to another installation, submits a claim for the lost articles and knowlingly includes in the list of articles lost items that were not lost. It is his claim for the articles not lost that is a criminal offense under Article 132. False or fraudulent claims include not only those containing some false material, but also claims which the claimant knows have been paid or knows that he is not authorized to present or has no right to collect. It is not a defense that the claim was not allowed or paid, or that someone other than the one who made the claim was to receive the benefit of the allowance or payment. To commit the offense of making a false claim, a soldier must present his claim directly or indirectly to some person having authority to approve or pay it. Examples of presenting a false or fraudulent claim for approval or payment include presenting a final statement to a disbursing officer, knowing it to be false, or presenting a voucher claiming rations or housing allowance for dependents known not to exist. To be found guilty of making a false statement in presenting a claim, it must be proved that the false or fraudulent statement was material and that it would have a tendency to mislead government officials in their consideration or investigation of the claim. The offense of making a false or fraudulent written statement for the purpose of obtaining approval, allowance, or payment of a claim is complete when the writing or paper is made for that purpose. It is immaterial that no use of the statement was made, or that no claim was presented. It is also an offense under Article 132 for soldier to deliver less property of the United States intended for use by the armed forces than the amount called for in the receipt. The offense is complete once the accused effects the incomplete transaction. His purpose or reasons for making an incomplete delivery are immaterial. It is also immaterial that the accused may have employed deceit or collusion in accomplishing the transaction. Article 132 also makes forgery and the delivery of false documents certifying receipt of government property offenses punishable under the Code. The maximum imposable punishment for making a false claim is a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 5 years and reduction to the lowest enlisted grade. The maximum punishment authorized for delivering an amount less than called for by a receipt when the amount involved is more than $100 is also a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 5 years and reduction to the lowest enlisted grade. Lesser maximum punishments are authorized if the value of the property is $100 or less. THE GENERAL ARTICLES No crimes in the Uniform Code of Military Justiceare more controversial than Article 133 and 134. These articles are called the General Articles because they are designed to punish conduct and general disorders not otherwise made crimes under the Code. Conduct Unbecoming an Officer and a Gentleman-Conduct unbecoming an officer and a gentleman is made a criminal offense under Article 133 of the Uniform Code of Military Justice. Article 133 states that: Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct. The conduct made punishable under Article 133 includes acts done in an official or unofficial capacity which tend to reflect adversely on an officer's character and compromise his ability to lead and hold the respect of his subordinates. Paragraph 212 of the Manual for Courts-Martial gives the following examples of violations of Article 133: [K]nowingly making a false official statement; dishonorable failure to pay debts; opening and reading the letters of another without authority; using insulting or |