United States v. Dailey

37 M.J. 463, 1993 CMA LEXIS 102, 1993 WL 361008

• Court: United States Court of Military Appeals
• Decided: September 20, 1993
• Docket: No. 68,063; CMR No. 91-1770
• Status: Published

Opinion

Opinion of the Court

WISS, Judge:

Appellant pleaded guilty at his general court-martial to two specifications of signing false official records and one specification of larceny of military property of the United States, in violation of Articles 107 and 121, Uniform Code of Military Justice, 10 USC §§ 907 and 921, respectively. After accepting the pleas as provident, the military judge sentenced appellant to a bad-conduct discharge, confinement for 1 year, total forfeitures, and reduction to the lowest enlisted grade. The convening authority approved these results except for suspending confinement in excess of 8 months for 1 year.

On appeal, the Court of Military Review consolidated the two specifications of signing false official records into the larceny specification. On reassessment of the sentence, see United States v. Sales, 22 MJ 305 (CMA 1986), the court affirmed the sentence as approved below. 34 MJ 1039, 1042 (1992).

We granted review to determine whether excess allowances received by appellant were military property. See 36 MJ 211 (1992). Twice during his providence inquiry, appellant explicitly acknowledged that the subject of his larceny — the difference between the basic allowance for quarters (BAQ) at the “with dependent” rate and that at the single rate that was paid to him after appellant and his wife had divorced in 1986 — “was military property of the United States.” Notwithstanding, appellant has maintained on appeal that money appropriated by Congress for payment of BAQ is not “military property” for purposes of Article 121 so as to be subject to the sentence-enhancement provision in paragraph 46e(l)(c), Part IV, Manual for Courts-Martial, United States, 1984 (Change 3). The Court of Military Review disagreed, and so do we.

In United States v. Hemingway, 36 MJ 349 (CMA 1993), the accused and a cohort stole United States Treasury checks from the travel pay section of the finance office, forged the names of the payees, and deposited the checks into the cohort’s bank account. In the course of considering Hemingway’s contention that the checks and the corresponding funds were not “military property” within the meaning of the President’s sentencing scheme for violations of Article 121, we reviewed the historical meaning of that term, tracing back from a “Note” in paragraph 46 that incorporates the definition found in paragraph 32c(l). In the end, we held

that appropriated funds belonging to the United States Army — even if only being “held” by the Army for immediate disbursement to an individual soldier for duty travel — are within the meaning of “military property of the United States” for purposes of Article 108 and, therefore — through paragraph 32c(l) — for purposes of determining the maximum sentence to confinement for larceny under paragraph 46b(l)(e) and e(l)(c).

36 MJ at 352.

The same result, for the same reasons, obtains here. BAQ funds are appropriated by Congress; their defined purpose is to boost morale and to ensure subsistence of servicemembers and their families. United States v. Simonds, 20 MJ 279 (CMA 1985). They are “clearly distinguishable from salary” and, when improperly made, do not transform into the individual’s property. See United States v. Antonelli, 35 MJ 122, 127 (CMA 1992). These appropriated funds are surely military property just as the appropriated travel funds in Hemingway were.

Thus, fully consistent with our analysis in Hemingway, we hold that the excess BAQ that appellant admitted to stealing was “military property of the United States” within the meaning of the sentencing provisions of paragraph 46e(l)(c) of the Manual. Cf. United States v. Schelin, 15 MJ 218, 220 (CMA 1983) (“In other words, it is either the uniquely military nature of the property itself, or the function to which it is put, that determines whether it is ‘military property’ within the meaning of Article 108.”).

The decision of the United States Navy-Marine Corps Court of Military Review is affirmed.

Chief Judge SULLIVAN and Judges COX, CRAWFORD, and GIERKE concur.