NOTE 1: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT: DD, TF, 5 years, E-1. (Category 2)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, with intent to defraud, (utter) (offer) (issue) (transfer) a certain (check) (writing) (__________) in the following words and figures, to wit: __________, a writing which would, if genuine, apparently operate to the legal harm of another, (which said (check) (writing) (__________)) (the signature to which said (check) (writing) (__________)) (__________) was, as (he) (she), the said __________, then well knew, falsely (made) (altered) (and which __________ (could be) (was) used to the legal harm of __________, in that __________).
NOTE 2: Used to legal harm alleged. The language contained in the last set of brackets in the sample specification should be used when the document specified is not one which by its nature would clearly operate to the legal prejudice of another—for example, an insurance application. The manner in which the document could be or was used to prejudice the legal rights of another should be alleged in the last blank.
c. ELEMENTS:
(1) That a certain [signature to a (check) (writing) (_________)] [part of a (check) (writing) (__________)] [(check) (writing) (__________)] was falsely (made) (altered), to wit: (describe the signature, part of a writing, or writing allegedly falsely made or altered);
(2) That the (signature) (check) (writing) (__________) was of a nature which would, if genuine, apparently impose a legal liability on another or change another’s legal rights or liabilities to that person’s prejudice [in that (here, if alleged, set forth the manner in which the legal status of another could be or was allegedly harmed)];
(3) That (state the time and place alleged), the accused (uttered) (offered) (issued) (transferred) this (signature) (check) (writing) (__________);
(4) That, at such time, the accused knew that the (signature) (check) (writing) (__________) had been falsely (made) (altered); and
(5) That the accused (uttered) (offered) (issued) (transferred) the (signature) (check) (writing) (__________) with the intent to defraud.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
“Falsely (made) (altered)” means an unauthorized signing of a document or an unauthorized (making) (altering) of the writing which causes it to appear to be different from what it really is.
“Intent to defraud” means an intent to obtain an article or thing of value through a misrepresentation and to apply it to one’s own use and benefit or the use and benefit of another, whether temporarily or permanently.
“Utter” means to use a writing with the representation, by words or actions, that it is genuine.
NOTE 3: When alleging means by which legal harm could ensue is required. Unless it is clear from the nature of the writing in what manner it is capable of affecting the legal rights of another, extrinsic facts must be alleged in the specification showing how the writing could be, or was in fact used to affect such legal rights.
A writing would, if genuine, apparently impose a legal duty on another or change his/her legal right, duty, or liability to his/her harm if the writing is capable of (paying an obligation) (delaying) (increasing) (diminishing) (or) (releasing a person from an obligation) (or) (transferring to another) (__________) a legal right.
NOTE 4: No evidence of actual defrauding. When there is no evidence that anyone was defrauded or that the accused did anything other than falsely make or alter a document, the following instruction should be given:
The fifth element of this offense requires an intent to defraud. The fact (that no one was actually defrauded) (and) (that no further action was taken with the document other than the false (making) (altering) of the writing) (and) (that no one received any benefit) is unimportant.
NOTE 5: Lack of intent raised. When there is evidence that the accused did not intend to defraud, or operated under a state of mind inconsistent with an intent to defraud, the military judge should instruct on such evidence. For example, when the defense theory is that the accused intended simply to deceive and not to defraud and is, therefore, not guilty of the offense of forgery, the members must be advised of the distinctions between the intent to defraud and the intent to deceive, and that an intent to deceive unaccompanied by an intent to deprive another of something of value is not the requisite intent for the offense of forgery. The following is a suggested general approach:
There is evidence in this case which raises the issue of whether there was a lack of intent to defraud. (The accused has testified that (he) (she)) (There is evidence to the effect that the accused) (had no intent to defraud) (intended only to deceive) (completed the alleged forgery with a belief that (he) (she) was dealing in (his) (her) own property) (completed the alleged forgery with a belief that (he) (she) was acting under proper authority) (_________). (On the other hand, there is evidence that (here outline facts which support an inference of intent to defraud). More than a mere intent to deceive is required.
An intent to deceive is an intent to cheat, to trick, or to misrepresent. An intent to defraud, however, is a misrepresentation intended to cause some loss of an item of value to another or the gain of an item of value for oneself or another, either temporarily or permanently.
NOTE 6: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable. Instruction 6-5, Partial Mental Responsibility, Instruction 5-15, Evidence Negating Mens Rea, and Instruction 5-21, Voluntary Intoxication, as bearing on the issue of the specific intent to defraud, may be applicable.