Q. Does it make much of a difference if a service member accidentally writes one or several bad checks?
A. The uttering and making of worthless checks by failing to maintain sufficient funds is a violation of Article 134 of the Uniform Code of Military Justice. And a service member who writes multiple worthless checks can be punished far more severely than someone who commits the same crime but issues only one bad check. That is because the military’s highest court, the U.S. Court of Appeals for the Armed Forces (CAAF), held in U.S. v. Jarrod L. Mincey (1995) that “in bad-check cases, the maximum punishment is calculated by the number and amount of the checks as if they had been charged separately, regardless whether the Government correctly pleads only one offense in each specification or whether the Government joins them in a single specification.”
Even though the court in Mincey was specifically speaking to the charge of uttering bad checks with intent to defraud in violation of Article 123a, the U.S. Army Court of Criminal Appeals recently found in U.S. v. Samuel A. Meixueiro (2013) that the CAAF’s rationale applied to Article 134 bad check cases. This Article 134 offense usually occurs when a service member makes and utters a check for a purchase or to pay a debt and he or she fails to maintain sufficient funds in the account from which a bank would draw to make payment. This failure must be dishonorable and the service member’s conduct must be prejudicial to good conduct and order or service-discrediting. Unlike the Article 123a offense, the Article 134 office does not hinge on the check-issuing service member knowing he or she could not make the payment or his or her having an intent to defraud or deceive, according to the Manual for Courts-Martial.
The appellant in Meixueiro, an Army private first class, was convicted of, among other things, one specification of making and uttering worthless checks by dishonorably failing to maintain sufficient funds. Over a two-month period, he wrote 43 personal checks totaling $7,740.When charging the appellant, the government lumped these 43 individually identifiable checks into a single “mega-specification.” The trial judge sentenced the appellate to a bad conduct discharge, 18 months confinement, reduction in grade, and total forfeitures. The confinement period was lowered to 11 months, in accordance to a pre-trial agreement.
On appeal, the appellant claimed his sentence was inappropriately severe because the trial judge had calculated the maximum sentence of the Article 134’s mega-specification by treating each bad check as a separate offense. The appellant claimed his Article 134 conviction should only have resulted in a maximum six months confinement – not the maximum 21.5 years under the separately treated check calculations. The court affirmed the findings of guilt and sentence, noting that “[i]n a case involving an Article 134, UCMJ, offense, each instance of check uttering may be counted separately for sentencing, despite being captured in a single specification.”
Service members charged with making and uttering worthless checks by dishonorably failing to maintain sufficient funds should immediately consult with a military law attorney. Depending on the circumstances, an attorney could raise a mistake of fact defense or show the service member’s failure to maintain sufficient funds was not dishonorable.
Along with being a founding partner of the law firm Tully Rinckey PLLC, Mathew B. Tully is a veteran of Operation Iraqi Freedom and Operation Enduring Freedom. The information in this column is not intended as legal advice.