Opinion of the Court
ROBERT E. Quinn, Chief Judge:
The accused stands convicted of 16 specifications of larceny by check, 3 specifications of dishonorable failure to pay debts, and one charge of forgery. Among other things he contends that his conviction on one of the check offenses cannot he supported. His attack takes two forms: (1) That since the check he gave to obtain money was postdated, it cannot be the basis for a lareeny by false pretense, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921; and (2) that the testimony of the principal prosecution witness in connection with the offense is incredible. Neither argument has merit.
Article 121 provides, in part, that a person commits larceny if he wrongfully obtains “by any means” money or other property from another with the intent “to deprive or defraud” that person [672]*672of its use and benefit. Included within the definition is the offense formerly described as false pretenses. United States v Buck, 3 USCMA 341, 12 CMR 97. If the elements of that offense are otherwise established, the fact that the check used in the pretense was postdated is not a ground to set aside the conviction. Lesser v People, 73 NY 78; State v De Nicola, 163 Ohio St 140, 126 NE2d 62.
The date on the check is not controlling. It can shed light on the accused’s intention in the transaction, but it is the intention, not the date on the check, which the court-martial must determine. And, if from all the circumstances it finds beyond a reasonable doubt the accused knew no funds were available for payment, and, in fact, none would be available at the time provided, the court-martial is justified in concluding the accused intended permanently to deprive the victim of the proceeds of the check. State cases which appear to reach a different result are based upon the wording of particular statutes. The act prohibited in most instances is the failure at the time of the issuance of the check to have sufficient funds to meet it on presentment. In the absence of a collateral statement by the drawer, the postdated check is considered a mere promise to pay in the future and, therefore, not within the contemplation of the statute. Annotation, 35 ALR 375, at 384, supplemented by 95 ALR 486, at 496; 168 ALR 833; see also United States v Turner [CGCM 9863], 23 CMR 674. What we are considering here is the misrepresentation of an existing intention. In United States v Redenius, 4 USCMA 161, 166, 15 CMR 161, we pointed out that “present intent may be regarded as a fact.” Although the courts are not in complete agreement on the rule, in our opinion, .a misrepresentation of a present state of mind is like the misrepresentation of any other existing material fact, and is sufficient to show fraud. Elk Refining Co. v Daniel, 199 F2d 479 (CA 4th Cir) (1952); Blakeslee v Wallace, 45 F2d 347 (CA 6th Cir) (1930); see also, United States v Stewart [ACM 11442], 21 CMR 689; contra, Stewart-Warner Corp. v Remco, 205 F2d 583 (CA 7th Cir) (1953) (decided under Illinois law). See People v Ashley, 42 Cal2d 246, 267 P2d 271, for a review of the criminal eases. We hold, therefore, that a postdated cheek may be used as a means of committing larceny by false pretense under Article 121 of the Uniform Code. United States v Stewart, supra.
As far as the testimony of the prosecution witness is concerned, we note that that there is some inconsistency in his testimony in regard to the date of the transaction, and that there are some equivocal statements respecting its nature. At the trial, defense counsel pressed hard on both points, and each was considered at length in the post-trial review. At the trial and in the review, the essentials of the witness’s testimony were believed to establish the offense charged. After careful review of the record, we cannot say the testimony is so self-contradictory or so inconsistent as to be unbelievable as a matter of law. Cf. United States v Sharp, 5 USCMA 580, 18 CMR 204.
Moving to Charge II and its specifications, the accused alleges that the evidence is insufficient to support the findings of guilty, and that the instructions are prejudicially erroneous.
Specification 1 of Charge II alleges that the accused dishonorably failed to pay certain installments on a debt due to the International Bank of Washington, D. C. On August 24, 1956, the accused borrowed $550 from the bank on what is described as a “time installment” plan. At the time of the transaction, the accused presented a signed Department of Defense form authorizing an allotment to the bank of $70 per month, effective in October, to show “he had actually registered an allotment” in the bank’s favor in accordance with the installment plan. He also gave the bank a certificate from his detachment commander representing that the accused had presented to him an application form for an allotment to the bank. The completed form showed the accused had an existing allotment for $50 for the Colgate Credit Union, but that it was to be discontinued in September. The first installment on the allotment [673]*673to the bank was due in November, but it was never received. In that month, and again in December, the bank wrote to the accused regarding its failure to receive payment, and requested him to “check with Finance.” The accused did not acknowledge the first letter and apparently did not reply to the second. In the meantime, however, the accused’s application for allotment to the bank had been disapproved by the Finance Office because of an outstanding tax lien against his pay. A second application to discontinue the allotment to the Colgate Credit Union was approved in October. During this period, the accused issued the worthless checks which constitute the larceny specifications under Charge I.
Considering the basis upon which the bank had made the loan to the accused, his failure to apprise them of the disapproval of the allotment, his failure to apply the funds released by discontinuance of the Colgate allotment to the bank loan, as contemplated by the terms of the loan, his disregard of the bank’s letters and finally his other irregular financial dealings, there is ample evidence to support the court-martial’s finding that the accused’s failure to pay the installments charged was dishonorable.
In specification 2 of Charge II the accused is charged with a dishonorable failure to pay installments of a debt owing to the Air Research Development Command Credit Union which were due between August 30 and December 30, 1956. The evidence shows that in applying for the loan the accused did not disclose other existing loans, as he was required to do by the application. No payment was ever made on the loan. A letter from the credit union requesting payment was disregarded by the accused. The misstatement of fact in the loan application, the accused’s other contemporaneous financial transactions, and his failure to acknowledge the request for payment provide enough evidence to support the finding of dishonor in the nonpayment of the installments charged.
The final specification under Charge II of which the accused was convicted concerns a loan from the GAC Finance Corp. of Baltimore, Maryland. The evidence shows that the accused had an account with that firm as early as 1953. Payments on the initial loan were irregular but satisfactory. In November 1955, a new loan was made to the accused. Part of the proceeds of this loan were used to pay off the 1953 loan. The first installment of. $38 on the superseding loan was due in December 1955, but payment was not made until February 1956.
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Opinion of the Court
ROBERT E. Quinn, Chief Judge:
The accused stands convicted of 16 specifications of larceny by check, 3 specifications of dishonorable failure to pay debts, and one charge of forgery. Among other things he contends that his conviction on one of the check offenses cannot he supported. His attack takes two forms: (1) That since the check he gave to obtain money was postdated, it cannot be the basis for a lareeny by false pretense, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921; and (2) that the testimony of the principal prosecution witness in connection with the offense is incredible. Neither argument has merit.
Article 121 provides, in part, that a person commits larceny if he wrongfully obtains “by any means” money or other property from another with the intent “to deprive or defraud” that person [672]*672of its use and benefit. Included within the definition is the offense formerly described as false pretenses. United States v Buck, 3 USCMA 341, 12 CMR 97. If the elements of that offense are otherwise established, the fact that the check used in the pretense was postdated is not a ground to set aside the conviction. Lesser v People, 73 NY 78; State v De Nicola, 163 Ohio St 140, 126 NE2d 62.
The date on the check is not controlling. It can shed light on the accused’s intention in the transaction, but it is the intention, not the date on the check, which the court-martial must determine. And, if from all the circumstances it finds beyond a reasonable doubt the accused knew no funds were available for payment, and, in fact, none would be available at the time provided, the court-martial is justified in concluding the accused intended permanently to deprive the victim of the proceeds of the check. State cases which appear to reach a different result are based upon the wording of particular statutes. The act prohibited in most instances is the failure at the time of the issuance of the check to have sufficient funds to meet it on presentment. In the absence of a collateral statement by the drawer, the postdated check is considered a mere promise to pay in the future and, therefore, not within the contemplation of the statute. Annotation, 35 ALR 375, at 384, supplemented by 95 ALR 486, at 496; 168 ALR 833; see also United States v Turner [CGCM 9863], 23 CMR 674. What we are considering here is the misrepresentation of an existing intention. In United States v Redenius, 4 USCMA 161, 166, 15 CMR 161, we pointed out that “present intent may be regarded as a fact.” Although the courts are not in complete agreement on the rule, in our opinion, .a misrepresentation of a present state of mind is like the misrepresentation of any other existing material fact, and is sufficient to show fraud. Elk Refining Co. v Daniel, 199 F2d 479 (CA 4th Cir) (1952); Blakeslee v Wallace, 45 F2d 347 (CA 6th Cir) (1930); see also, United States v Stewart [ACM 11442], 21 CMR 689; contra, Stewart-Warner Corp. v Remco, 205 F2d 583 (CA 7th Cir) (1953) (decided under Illinois law). See People v Ashley, 42 Cal2d 246, 267 P2d 271, for a review of the criminal eases. We hold, therefore, that a postdated cheek may be used as a means of committing larceny by false pretense under Article 121 of the Uniform Code. United States v Stewart, supra.
As far as the testimony of the prosecution witness is concerned, we note that that there is some inconsistency in his testimony in regard to the date of the transaction, and that there are some equivocal statements respecting its nature. At the trial, defense counsel pressed hard on both points, and each was considered at length in the post-trial review. At the trial and in the review, the essentials of the witness’s testimony were believed to establish the offense charged. After careful review of the record, we cannot say the testimony is so self-contradictory or so inconsistent as to be unbelievable as a matter of law. Cf. United States v Sharp, 5 USCMA 580, 18 CMR 204.
Moving to Charge II and its specifications, the accused alleges that the evidence is insufficient to support the findings of guilty, and that the instructions are prejudicially erroneous.
Specification 1 of Charge II alleges that the accused dishonorably failed to pay certain installments on a debt due to the International Bank of Washington, D. C. On August 24, 1956, the accused borrowed $550 from the bank on what is described as a “time installment” plan. At the time of the transaction, the accused presented a signed Department of Defense form authorizing an allotment to the bank of $70 per month, effective in October, to show “he had actually registered an allotment” in the bank’s favor in accordance with the installment plan. He also gave the bank a certificate from his detachment commander representing that the accused had presented to him an application form for an allotment to the bank. The completed form showed the accused had an existing allotment for $50 for the Colgate Credit Union, but that it was to be discontinued in September. The first installment on the allotment [673]*673to the bank was due in November, but it was never received. In that month, and again in December, the bank wrote to the accused regarding its failure to receive payment, and requested him to “check with Finance.” The accused did not acknowledge the first letter and apparently did not reply to the second. In the meantime, however, the accused’s application for allotment to the bank had been disapproved by the Finance Office because of an outstanding tax lien against his pay. A second application to discontinue the allotment to the Colgate Credit Union was approved in October. During this period, the accused issued the worthless checks which constitute the larceny specifications under Charge I.
Considering the basis upon which the bank had made the loan to the accused, his failure to apprise them of the disapproval of the allotment, his failure to apply the funds released by discontinuance of the Colgate allotment to the bank loan, as contemplated by the terms of the loan, his disregard of the bank’s letters and finally his other irregular financial dealings, there is ample evidence to support the court-martial’s finding that the accused’s failure to pay the installments charged was dishonorable.
In specification 2 of Charge II the accused is charged with a dishonorable failure to pay installments of a debt owing to the Air Research Development Command Credit Union which were due between August 30 and December 30, 1956. The evidence shows that in applying for the loan the accused did not disclose other existing loans, as he was required to do by the application. No payment was ever made on the loan. A letter from the credit union requesting payment was disregarded by the accused. The misstatement of fact in the loan application, the accused’s other contemporaneous financial transactions, and his failure to acknowledge the request for payment provide enough evidence to support the finding of dishonor in the nonpayment of the installments charged.
The final specification under Charge II of which the accused was convicted concerns a loan from the GAC Finance Corp. of Baltimore, Maryland. The evidence shows that the accused had an account with that firm as early as 1953. Payments on the initial loan were irregular but satisfactory. In November 1955, a new loan was made to the accused. Part of the proceeds of this loan were used to pay off the 1953 loan. The first installment of. $38 on the superseding loan was due in December 1955, but payment was not made until February 1956. Payment was made by check, but the check was “returned.” It was redeposited and again returned in March, but on that occasion $38 was paid in cash. In April and May, payments were made by money order in the respective amounts of $41.24 and $41.34. On June 6 a payment of $42.76 was made by check. When the check was returned for insufficient funds, payment was made by money order. The October, November, and December installments were not paid at the regular time. But in October the accused paid an “extension fee” and in November remitted $38. On January 2, 1957, he paid another “extension fee” and in February made a payment which “took care” of his obligation for November 1956. The loan manager of the firm testified that during the “long period of time” the accused had been doing business with his firm the acount was “classified as a satisfactory account.”
There are situations in the law when the personal opinion of the victim of the accused’s conduct does not determine the criminal nature of the accused’s act. Generally, a private code cannot limit the operation or the effect of the public law. Cf. United States v Berry, 6 USCMA 609, 20 CMR 325. In our opinion, however, this is not one of those situations.
A dishonorable failure to pay one’s just debt is made punishable under the Uniform Code because such conduct brings discredit upon the armed services. United States v Kirksey, 6 USCMA 556, 20 CMR 272. The public nature of the offense, however, has its source in a private relationship. If the private relationship is entirely [674]*674satisfactory to the parties, there is no ill effect upon the civilian or military community. In other words, if the creditor is satisfied with the conduct of his debtor, there is no basis for concluding that the conduct of the debtor discredits the miltary services. In short, there is just no “failure” to pay. We conclude, therefore, the evidence is insufficient to support the findings of guilty of specification 4, Charge II.
Instructing on the principles of law regarding the offense of dishonorable failure to pay a debt, the law officer correctly advised the court-martial that a failure to pay through carelessness did not constitute the offense, but that the “essence of the offense is a dishonorable failure which connotes bad faith or gross indifference.” See United States v Kirksey, supra, page 560. He then went on to instruct:
“However, an unexplained failure to pay for an unconscionable period of time; the contracting of a debt under false representation; false promises or willful evasion may constitute dishonorable conduct.
“However, the court may look at the entire course of conduct of the accused and while certain acts standing alone may not be particularly convincing, if the entire eoui'se of conduct of the accused during the period shows that money was borrowed from one source in order to pay to another and then no payment was made on such loans, or if the evidence shows a general failure to pay indebtedness with no evidence of unusual expenditures and a failure to honor an express or implied promise to pay at a certain time, it may be found to be dishonorable.”
The accused contends that in four separate particulars the instructions are prejudicially misleading. His first argument centers on the statement that “an unexplained failure to pay for an unconscionable period of time . . . may constitute dishonorable conduct.” The initial problem raised by the argument is whether the challenged statement is, as the Government contends, merely one of an enumeration of evidentiary matters which the court-martial could consider as establishing dishonorable conduct, or whether each item constitutes a separate basis upon which the court-martial was permitted to return a finding of guilty. See United States v Farris, 9 USCMA 499, 26 CMR 279. Since the reference to the accused’s “entire” conduct comes after the enumeration, and it is itself separately explained by examples different from those in the enumeration, there is at least a fair risk that the court-martial understood each element in the enumeration to be a permissible basis for a finding of dishonor. From that standpoint, the accused’s contention has merit.
The mere failure to pay a debt does not show that the nonpayment is dishonorable. The fact that no payment has been made for a long time may have probative value, but it does not itself establish that the failure to pay is dishonorable. The instruction, however, makes the mere lapse of time the equivalent of bad faith or willful evasiveness or gross indifference. In fact, it may merely indicate simple negligence. Other circumstances, therefore, are required to show that the length of time is attributable to guilty rather than innocent causes. Consequently, the instruction is erroneous. Cf. United States v Hairston, 9 USCMA 554, 26 CMR 334. Since several monthly installments were allegedly not paid at the time payment was ordinarily to be made, the court-martial could have based its findings of guilty on the length of time alone. A finding based on that single equivocal circumstance cannot stand. United States v Cothern, 8 USCMA 158, 23 CMR 382. In view of our conclusion in regard to this part of the instruction, we need not consider the other parts attacked by the accused.
The accused’s next claim of error concerns the argument of trial counsel on the sentence. Trial counsel opened his argument with the statement that it was not a “pleasant thing” to ask for a sentence which would wipe out seventeen and one-half years of the accused’s life (as represented by his period of military service). He went on to say [675]*675it was the duty of the court to adjudge a sentence which would be appropriate in the light of three purposes: (1) to teach the accused to obey the law; (2) to warn others against disobeying the law; (3) to remove the accused from society “until he is fit again to rejoin it.” Trial counsel again reviewed the nature of the oifenses, and considered what would be an appropriate sentence for them. His argument is as follows:
“Now, what is an appropriate sentence for those oifenses? Certainly not the maximum. Certainly the accused must be given credit for eighteen years of good service. It is good so far as I have any knowledge and it certainly must be good or he wouldn’t stand before you as a master sergeant. He certainly must be given credit for that time, and certainly a maximum sentence would not be appropriate. On the other hand, certainly the only appropriate sentence is a sentence of dishonorable discharge on general principles. I do not think that the service could ever again use a man who had committed this number of oifenses involving moral turpitude against the service.
“I invite your attention to page 122 of the Manual where it discusses at some length the basis of the sentence. It points out in paragraph 76 at the bottom of page 122:
‘Dishonorable discharge should be reserved for those who should be separated under conditions of dishonor, after having been convicted of oifenses usually recognized by the civil law as felonies, or of oifenses of a military nature requiring severe punishment.’
“I say to you, gentlemen, you have convicted him of a number of felonies and of serious military oifenses. Of course, with dishonorable discharge, you should adjudge total forfeiture. That should always follow, unless there is some very peculiar reason why it shouldn’t.
“Now, gentlemen, in the case of a man of this sort, under those circumstances, a loss of eighteen years out of his life is serious punishment in and of itself — far more serious than it would be to a basic airman who is losing only a year or two out of his life. But it still is not in itself enough punishment.
“Again I invite your attention to paragraph 5, page 122, of the Manual:
‘The imposition by courts-martial of inadequate sentences upon military persons convicted of crimes which are punishable by the civil courts tends to bring the armed forces into disrepute as lacking in respect for the criminal laws of the land.’
Now, gentlemen, that is exactly what you have convicted this man of. I certainly have no suggestion as to what the period of confinement should be. You gentlemen, by your very careful study of the specifications, have shown your conscientiousness and your earnestness. You were chosen as members of this court for your good judgment. I would make no recommendation to you. I do point out that the maximum period of confinement is a lengthy one. The sentence of confinement should be something more than a mere token or fraction of that. To do so would be to show an inadequate respect for the laws of the land. On the other hand, as I have said before, it is not a question for a maximum sentence. I have no recommendation to make other than to ask that the accused be adjudged a dishonorable discharge, total forfeiture and a substantial period of confinement.”
It is contended that trial counsel’s references to the Manual for Courts-Martial, United States, 1961, constitute command control. See United States v Fowle, 7 USCMA 349, 22 CMR 139; United States v Estrada, 7 USCMA 635, 23 CMR 99. We need not consider whether the Manual provisions prescribe an executive policy which the court-martial would feel constrained to follow. There is no doubt that when considered in the context of trial counsel’s argument they are no more than admonitions to impose a sentence ap[676]*676propriate to the accused’s case. Trial counsel’s argument makes crystal clear that within the limits of the legal maximum the court-martial was free to adjudge any sentence that it desired. We find no prejudice in the references to the Manual.
The final assignment of error is directed to the sufficiency of the post-trial review. The review discussed the evidence in detail and with care. In referring to the specifications of Charge I the review notes it is “common to all . . . that the evidence established beyond a reasonable doubt certain of the required items of proof.” These were discussed. The other required items were considered separately and at length. References were made at appropriate times to the convening authority’s power to weigh the evidence and determine controverted questions of fact.
A review need not follow a particular sequence of discussion nor use a particular mode of expression.' It is sufficient that, when considered as a whole, it includes the essentials for a proper review. United States v Fields, 9 USCMA 70, 25 CMR 332. The review here meets that standard. United States v Murphy, 9 USCMA 316, 26 CMR 96.
From its opinion, it is apparent the board of review gave very careful attention to the determination of an appropriate sentence. Considering that circumstance and the nature of the offenses, the possibility that elimination of the specifications of Charge II would result in further reduction in the sentence is too slight to justify remand of the case to the board of review. See United States v Teitsort, 9 USCMA 322, 26 CMR 102. Accordingly, we affirm the decision of the board of review, except as to Charge II and its specifications. The findings of guilty of Charge II and its specifications are set aside and those charges are ordered dismissed.
Judge LatimeR concurs in the result.