United States v. West

17 M.J. 145, 1984 CMA LEXIS 22784

• Court: United States Court of Military Appeals
• Decided: January 30, 1984
• Docket: No. 44586; SPCM 17730
• Status: Published

Opinions

Opinion of the Court

PER CURIAM:

At his special court-martial, appellant was convicted of larceny of a ,45-caliber pistol, property of the United States, in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921, and wrongful disposition of this same piece of government property, in violation of Article 108, UCMJ, 10 U.S.C. § 908.¹ We granted review to consider the propriety of the charge under Article 108. 15 M.J. 51 (1982). In this connection we have considered the historical evolution of Article 108 and our governing precedent and find no basis to deviate from the rule laid down in United States v. McClary, 10 U.S.C.M.A. 147, 27 C.M.R. 221 (1959).

It was settled at trial that appellant, a small arms repairman, removed a .45-cali-ber weapon, the property of the United States Government, from the arms room where he was employed. Five days later he transferred this weapon to another servicemember. The evidentiary basis, in light of precedent, for these facts demonstrates that, absent a contrary statutory historical rationale, both convictions may stand. United States v. McClary, supra; cf. United States v. Brown, 8 U.S.C.M.A. 18, 23 C.M.R. 242 (1957).

A comprehensive review of the evolution of the Uniform Code of Military Justice from its predecessor Articles of War (A.W.) demonstrates that criminal taking and disposition of military property have been chargeable at sundry times under various articles.² We have examined these in some detail and are unable to perceive a prior historical intersection which would render the present charges under Articles 121 and 108 multiplicious. Article 108 “consolidat[ed] A.W. 83 and 84 ... removing] the distinction between issued and nonissued military property, and applies to all persons subject to the code.” Hearings on H.R. 2498 Before a Subcommittee of the House Armed Services Committee, 81st Cong., 1st Sess., reprinted in Index and Legislative History, Uniform Code of Military Justice 1230 (1949). In keeping with modern civil trends, Article 121 was enacted and “combine[d] the offenses of larceny by asportation, larceny by trick and device, obtaining property by false pretenses, and embezzlement.” Id. at 1232. We remain convinced that the rule is correct that the enactment of Articles 108 and 121 created “two distinct Congressional statutes, and there is no compelling reason for us to say that fairness to the accused requires us to limit punishment to one.” United States v. McClary, supra at 152, 27 C.M.R. at 226.

The decision of the United States Army Court of Military Review is affirmed.

1 . A military judge sitting alone at Fort Hood, Texas, on April 23, 1982, sentenced appellant to a bad-conduct discharge, confinement at hard labor for 5 months, forfeiture of $75.00 pay per month for 5 months, and reduction to the lowest enlisted grade. Pursuant to a pretrial agreement, the convening authority approved the sentence, and the United States Army Court of Military Review affirmed.

2 . See generally W. Winthrop, Military Law and Precedents 556-57, 685, 697 (2d ed. 1920 Reprint); F. Wiener, The New Articles of War; G. Davis, A Treatise on the Military Law of the United States 361-65, 369-74, 449, 462 (1913).