United States v. Ford

30 M.J. 871, 1990 CMR LEXIS 476, 1990 WL 59590

• Court: U S Air Force Court of Military Review
• Decided: April 13, 1990
• Docket: ACM 27930
• Status: Published

Opinions

DECISION

LEONARD, Judge:

Contrary to his pleas, appellant was convicted of stealing over $4,200 from the billeting office at Altus Air Force Base, Oklahoma and using and distributing cocaine. He was sentenced to a bad conduct discharge, confinement for 30 months, forfeiture of $466.00 pay per month for 30 months and reduction to airman basic. On appeal, six errors are asserted for our consideration. We find merit in only one of the assertions.

The first assertion is that the funds the appellant is convicted of stealing were not military property of the United States. The specification alleging this theft offense, in violation of Article 121, UCMJ, 10 U.S.C. § 921, contained the allegation that the funds stolen were military property. By alleging the offense in this manner, the maximum confinement allowed for a larceny of over $100 was increased from five years to ten years. MCM, Part IV, paragraph 46 e(1)(c).

The appellant was a billeting clerk at the registration desk of the base billeting office. As part of his duties, he collected daily room occupancy assessments and service charges from guests who were paying to stay in billeting facilities. The funds were collected in both cash and checks and, at the end of each day, were deposited in a Nonappropriated Fund Instrumentality (NAFI) account with a local bank.

The funds generated by NAFIs are set apart to support NAFI programs and activities. Such funds are in the custody of and administered for the benefit of military personnel, their dependents, and eligible civilian personnel. NAFI generated funds are government funds separate and apart from funds appropriated by Congress. See Air Force Regulation 176-1, Nonappropriated Funds, Basic Responsibilities, Policies, and Practices, paragraph 1-1 (Mar 1986). NAFIs include a number of varied activities established to create and maintain high morale and well-being of military personnel, dependents and eligible civilian personnel including: officer and enlisted clubs, Class VI alcoholic beverage outlets, Aero Clubs, the Army and Air Force Exchange Service (AAFES), and temporary lodging and billeting operations. AFR 176-1, chapters 3 and 4.

The funds generated by temporary lodging and billeting operations are kept separate from, other NAFI operations. Both temporary lodging facilities and billeting facilities are operated on a self-sustaining basis. The funds collected from guests staying at these facilities are used to cover operating expenses, repay loans for improvements to facilities, and provide for supplies and planned capital improvements that are not available from appropriated funds. AFR 176-1, paragraphs 4-14 and 4-16; Air Force Regulation 90-9, Unaccompanied Personnel Housing and Temporary Lodging Facilities, paragraph 4-8 (Mar 1989).

Basic support of billeting and temporary lodging operations is provided by appropriated funds. Appropriated funds provide for construction of buildings, furnishings, supplies, maintenance and linens. AFR 90-9, paragraphs 6-3b and 6-6a. NAFI funds may be used for minor capital improvements to buildings and basic support costs on a very limited basis only when appropriated funds are not available. Id. Nonappropriated funds (NAF) may be used to supplement appropriated funds by buying furnishings and amenities that improve the quality of services, such as, televisions, cable television services, and telephone systems. AFR 90-9, paragraph 6-6a. An individual’s eligibility to occupy temporary lodging or billeting facilities is based on their status as an active duty military member, a military dependent, or a Department of Defense civilian employee and not their relationship to the military mission of the base where the facilities are located. AFR 90-9, paragraph 4-2. Further, retirees, military personnel in leave status, and their dependents are entitled to billeting or temporary lodging when space is available. Id.

For a definition of “military property of the United States” subject to a larceny, the Manual for Courts-Martial refers to the definition provided for the offense of wrongfully disposing of military property in violation of Article 108, UCMJ, 10 U.S.C. § 908. MCM, Part IV, paragraph 46 b(1) (1984). This definition provides:

Military property is all property, real or personal, owned, held, or used by one of the armed forces of the United States____ Retail merchandise of service exchange stores is not military property under this article.

MCM, Part IV, paragraph 32 c(1). According to the drafters, the first sentence of this definition was based upon MCM, paragraph 187, (1969 Rev.) and a number of Courts of Military Review cases. The last sentence was based upon United States v. Schelin, 15 M.J. 218 (C.M.A.1983). MCM, App. 21, paragraph 32 c (1984).

Historically the courts of review have been split over whether NAF property was “military property of the United States.” The Army and Air Force courts have held that NAF property was not military property. United States v. Schelin, 12 M.J. 575 (A.F.C.M.R.1981) (AAFES NAF property held for retail sale); United States v. Underwood, 41 C.M.R. 410 (A.C.M.R.1969) (AAFES NAF property held for retail sale); United States v. Geisler, 37 C.M.R. 530 (A.B.R.1966) (property of an officers’ open mess) Navy cases have held otherwise. United States v. Harvey, 6 M.J. 545 (N.C.M.R.1978) (Navy exchange property); United States v. Mullins, 34 C.M.R. 695 (N.B.R.1964) (Navy exchange vending machines).

Article 108, UCMJ was derived from Articles of War 83, 84 and part of 94. Legal and Legislative Basis, Manual for Courts-Martial, U.S., 1951, at 198. Article of War 83 covered loss, damage or wrongful disposition of “military property belonging to the United States.” Such property was defined as property of a “type and kind issued for use in, or furnished and intended for the military service.” MCM, U.S. Air Forces, paragraph 171 (1949).

Article of War 84 covered selling or wrongfully disposing of “property issued for use in the military service.” The offenses prohibited by Article of War 94 included stealing, larceny¹, embezzlement, misappropriating, misapplication, sale and wrongful disposition of “property of the United States furnished or intended for the military service.” Paragraph 181h of the Manual for Courts-Martial, U.S. Air Forces, 1949 explained that:

To be the subject of an offense within this article (Article of War 94), the property must be that ‘of the United States furnished or intended for the military service thereof.’ This does not include post exchange, company, or officers’ club funds or property or money appropriated for other than the military service.

Thus, it is clear that, under the Articles of War, theft of NAF property or funds could not have been the subject of a larceny of “military property of the United States.” Although subsequent versions of the Manual for Courts-Martial have not contained the above explanation provided in the 1949 version, subsequent case law definitions of military property have maintained a narrow view of the types of property covered. Part of the reason for maintaining this narrow view is the fact that Article 108, UCMJ, criminalizes negligent conduct in dealing with such property and, absent such criminalization, recourse would be generally limited to civil law remedies.² See United States v. Schelin, 15 M.J. 218, 220 (C.M.A.1983).

The Army Board of Review, in the Geisler case, applied two tests to determine whether an item is “military property of the United States:”

First, all property owned by a military service of the United States is military property of the United States. Second, all property, no matter who owns it, which is furnished to and intended for use by a military service of the United States is military property of the United States.

Geisler, 37 C.M.R. at 532.

Applying this test to the property of an officers’ open mess, the Board found first that the property was owned by a NAFI and not a military service. Second, they found that the property was not furnished to a military service for the use of such service. The property in question was, until it was stolen, in the possession of the NAFI and was being used exclusively for the NAFI’s purposes. 37 C.M.R. at 532.

In the Schelin case, Judge Cook found that for property of the United States to be entitled to the special protective status of “military property” it must meet at least one of two criteria:

[I]t 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.

Schelin, 15 M.J. at 220.

In Schelin, Judge Cook applied this criteria to retail merchandise of the AAFES and stated that he agreed with the majority of the Air Force Court of Review that the property was not “military property of the United States.” The Court of Review had decided, after reviewing the historical precedent, that the items in question were not military property because they were owned by the AAFES, a NAFI, and had not been furnished to a military service for its use. Schelin, 12 M.J. at 578.

Although Judge Cook’s Schelin decision only applied the NAF rationale by the implication of referral to the lower court decision, a later case more clearly made the distinction. In the case of United States v. Simonds, 20 M.J. 279 (C.M.A.1985), the Court held that property purchased with appropriated funds by the Navy Supply Corps for sale in a ship’s store was “military property of the United States.” 20 M.J. at 280. The Court stated that the “significant factual difference” was the items were purchased by an “appropriated-fund activity” and that:

[Ijtems purchased with funds appropriated by Congress to a military department fall within the definition of ‘military property.’

20 M.J. at 280.

Applying the law to the facts of this case, we find that the billeting funds the appellant is convicted of stealing were not “military property of the United States.” These funds were collected by a NAFI and were owned by that NAFI which maintained them in a separate NAFI account in a commercial bank. The funds were not available to commanders or other military personnel for whatever use they deemed appropriate. Use of the funds was limited by regulation to specific purposes in support of the NAFI base billeting and temporary lodging activities. These nonappropriated funds were never owned, held or used by an armed force of the United States and they were not furnished to such an armed force for its use. Schelin, 12 M.J. at 578; Geisler, 37 C.M.R. at 532; MCM, Part IV, paragraph 32 c(1) (1984). Further, the stolen funds were not of an unique military nature or put to a military function that would entitle them to the special protection accorded “military property of the United States.” Simonds, 20 M.J. 279; Schelin, 15 M.J. 218.

In his second assertion of error, appellant claims that the government did not establish beyond a reasonable doubt that he stole the billeting funds. He contends the prosecution’s case is circumstantial in nature and “primarily based upon assumptions and innuendo” and other reasonable theories exist of how the money disappeared rather than him taking it. We disagree.

The appellant had the opportunity and the motive to take the money. The evidence showed he offered three different versions of what happened to the money that all proved to be false. The trial judge saw and heard the appellant testify that he did not take the money and she heard the other evidence in the case. As the trier of fact, she had the discretion to determine the appropriate weight to accord each item of evidence. United States v. Lecappelain, 9 M.J. 562 (A.F.C.M.R.1980). Proof beyond a reasonable doubt does not mean the evidence must be free of conflict. United States v. Lips, 22 M.J. 679 (A.F.C.M.R.1986). The mere fact that the evidence is circumstantial does not mean that a higher standard of proof is required. United States v. Gammill, 13 M.J. 966 (A.F.C.M.R.1982).

After examining the record of trial, we are convinced, as was the court below, that appellant’s guilt of the theft of the billeting funds was proven beyond a reasonable doubt. However, because of our finding that the billeting funds were not “military property of the United States,” we affirm only so much of the Specification of Charge III that finds the appellant guilty of stealing cash and checks of a value of about $4,200.00, property of the United States.

The remaining assigned errors are resolved against the appellant. United States v. Pollard, 27 M.J. 376 (C.M.A.1989); United States v. Tyler, 17 M.J. 381 (C.M.A.1984); United States v. Hudson, 20 M.J. 607 (A.F.C.M.R.1985), pet. denied 21 M.J. 32 (C.M.A.1985); United States v. Davis, 14 M.J. 628 (A.F.C.M.R.1982), pet. denied 15 M.J. 69 (C.M.A.1982).

For the reasons stated previously, we find appropriate only so much of the sentence as provides for a bad conduct discharge, 20 months confinement, forfeiture of $466.00 per month for 20 months, and reduction to airman basic. The findings of guilty and the sentence, both as modified, are

AFFIRMED.

Senior Judges FORAY and KASTL and Judge MURDOCK concur.

1 . The Articles of War were superseded by the UCMJ and, after the effective date of the UCMJ, there was no longer a separate offense of larceny of military property of the United States. This was true until the effective date of the 1984 Manual For Courts-Martial where a provision was included to increase the maximum punishment when the property that was the subject of the larceny is military property of the United States. MCM, Part IV, paragraph 46 e (1984).

2 . Although this rationale does not apply when the offense is larceny of military property, as it is in this case, the definition of military property that applies to larceny cases is the same one that applies to Article 108 offenses. MCM, Part IV, paragraph 46 b(l). Further, we are relying on this definition to afford a special protective status to military property to justify doubling the maximum term of confinement of the thief who stoops so low as to steal "military property of the United States." Therefore, a similar rationale would seem to apply, i.e. we should strictly limit the types of property warranting this substantial increase in maximum punishment.