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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 of fense 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, destroys, 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 positive 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 fraudulent 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 uses any such signature knowing it to be forged or counterfeited;

(3) who, having charge, possession, custody, or control of any money, or other property of the United States, furnished or intended for the armed forces thereof, knowingly delivers to any person having authority to receive it, any amount thereof less than that for which he receives a certificate or receipt; or

(4) who, being authorized to make or deliver any paper certifying the receipt of any property of the United States furnished or intended for the armed forces thereof, makes or delivers to any person such writing without having full knowledge of the truth of the statements therein contained and with intent to defraud the United States;

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 knowingly 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 allowances 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 statment 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 a 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 Justice are more controversial than Articles 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 CourtsMartial 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
defamatory language to another officer in his presence or about him to other
military persons; being grossly drunk and conspicuously disorderly in a public
place; public association with notorious prostitutes; committing or attempting to
commit a crime involving moral turpitude; failing without a good cause to
support his family.

Article 133 is reserved for the more serious acts of misconduct that are "morally unbefitting and unworthy." See WINTHROP, MILITARY LAW AND PRECEDENTS 711 (2d ed. 1920). The article should not be demeaned by using it to charge minor delinquencies that can be handled more appropriately by informal instruction or counselling or other types of administrative corrective action.

In United States v. Wolfson, 36 C.M.R. 722 (ABR 1966), the accused had been tried by general court-martial. He was found guilty of conduct unbecoming an officer in violation of Article 133 and other offenses and was sentenced to be dismissed from the service.

On appeal he challenged his conviction of conduct unbecoming an officer. The specific charge read as follows: In that Captain Wolfson

. . did, at Soc Trang, Vietnam from 22 December 1964 to 22 January 1965, so grossly fail to comport himself as a medical officer and a gentleman by . . .5 his negligent failure to shave; his presentation of an undisciplined appearance; ... by constantly complaining about his temporary assignment to Vietnam in the presence of superior and subordinate officers and enlisted men; . . . by announcing in a public place to his commanding officer that the surgical capabilities of the dispensary to which he was temporarily assigned were terminated effective immediately, or words to that effect; by presenting erroneous factual data to General Westmoreland, while in a friendly foreign country, in the presence of superior officers, subordinate officers, enlisted

personnel, civilian personnel and foreign nationals, as to require his removal from the unit to which he was temporarily assigned, such conduct constituting conduct unbecoming of an officer and a gentleman.

After discussing each of the five ways in which the accused was alleged to have failed to conduct himself as an officer and gentleman, the Court commented on the nature of Article 133 and referred to paragraph 212 of the Manual for Courts-Martial which states that:

There are certain moral attributes common to the ideal officer and the perfect gentleman, a lack of which is indicated by acts of dishonesty or unfair dealing, of indecency or indecorum, or of lawlessness, injustice, or cruelty. Not everyone is or can be expected to meet ideal moral standards, but there is a limit of tolerance below which the individual standards of an officer, cadet, or midshipman cannot fall without seriously compromising his standing as an officer, cadet, or midshipman or his character as a gentleman. This article contemplates conduct by an officer, cadet, or midshipman which, taking all the circumstances into consideration, is thus compromising.

This article includes acts made punishable by any other article, provided such acts amount to conduct unbecoming an officer and a gentleman; thus an officer who steals property violates both this and Article 121. (Larceny)

The court concluded that the accused's conduct was not of the type contemplated for punishment under Article 133. In part the Court concluded:

The reaction of the accused to his assignment to Vietnam could be characterized as emotional and immature, his announcement of the termination of surgical capability may have been ill-advised and his complaints to General Westmoreland were ill-timed, indiscreet and impolitic but certainly his behavior cannot be stigmatized as conduct unbecoming an officer and gentleman.

The court then reversed the accused's conviction and set his sentence aside.

The maximum sentence authorized upon conviction of conduct unbecoming an officer and a gentleman depends upon the nature of the misconduct. Generally, the maximum sentence can be found by determining how the conduct would be charged if it were committed by an enlisted man. Upon finding the appropriate article, the Table of Maximum Punishments set forth in paragraph 127c of the Manual for Courts-Martial can be consulted for the maximum punishment authorized for the conviction under the article.

The General Article-Offenses not punishable under other Articles of the Uniform Code of Military Justice can be punished under Article 134. Article 134 is a general article which provides as follows:

Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital of which persons subject to [the UCMJ] may be guilty, shall be taken cognizance of by a general, special or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

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