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:
(1) $1000 or less: BCD, TF, 1 year, E-1. (Category 1)
(2) More than $1000: DD, TF, 10 years, E-1. (Category 2)
(3) Any firearm or explosive regardless of value: DD, TF, 10 years, E-1. (Category 2)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did, (at/on board—location) on or about __________, without proper authority, (sell to __________) (dispose of by __________) __________, [(a firearm) (an explosive)] of a value of (about) $__________, military property of the United States.
c. ELEMENTS:
(1) That (state the time and place alleged), the accused
(a) sold (state the property alleged ) (, a firearm,) (, an explosive,) to (state the person/entity alleged); or
(b) disposed of (state the property alleged) (, a firearm,) (, an explosive,) by (state the alleged manner of disposal);
NOTE 2: Firearm or explosive alleged. Use the appropriate language in the brackets above only when it is alleged that the property is a firearm or explosive.
(2) That the (sale) (disposition) was without proper authority;
(3) That the property was military property of the United States; and
(4) That the property was of a value of $ __________ (or less).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
“Military property” is real or personal property owned, held, or used by one of the armed forces of the United States which either has a uniquely military nature or is used by an armed force in furtherance of its mission. Not all “government property” is “military property” even if the government agency possessing it is an armed force of the United States.
(“Sell to,” as used in this specification, means the transfer of possession of property for money or other valuable consideration which the buyer gives, pays or promises to give or pay for the property. The accused does not have to possess the property to sell it, but (he) (she) must transfer any apparent claim of right to possession to a purchaser.)
NOTE 3: Disposition alleged. When disposition is alleged, the first instruction below must be given. The other instruction may be given. See NOTE 4 below when abandonment of the property by the accused is raised by the evidence.
“Dispose of,” as used in this specification, means an unauthorized transfer, relinquishment, getting rid of, or abandonment of the use of, control over, or ostensible title to the property.
(The disposition may be permanent, as in a sale or gift, or temporary, as in a loan or pledging the property as collateral.)
NOTE 4: Abandonment as disposition. An abandonment where the government is deprived of the benefit of the property is a wrongful disposition, such as where an accused leaves a jeep unattended after having wrongfully appropriated and wrecked it. US v. Faylor, 24 CMR 18 (CMA 1957). When the location and circumstances of the “abandonment” raise the issue that the government never lost control or benefit of the property, the issue becomes more complex. Compare US v. Schwabauer, 37 MJ 338 (CMA 1993) (unauthorized relinquishing possession of individual weapon in full view of NCOs in combat zone) with US v. Holland, 25 MJ 127 (CMA 1987) (accused stored stolen engines in government warehouse and the government never totally lost or gave up control over the engines).
NOTE 5: Firearm and explosive defined. If the property is alleged to be a firearm or explosive, definitions may be appropriate. See RCM 103 (11) & (12).
“Firearm” means any weapon which is designed to or may be readily converted to expel any projectile by the action of an explosive.
“Explosive” means gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuzes (other than electrical circuit breakers), detonators, and other detonating agents, smokeless powders, any explosive bomb, grenade, missile, or similar device, and any incendiary bomb or grenade, fire bomb, or similar device. “Explosive” includes ammunition.
NOTE 6: Explosive or firearm—variances. If the property is alleged to be an explosive or firearm and an issue as to its nature is raised by the evidence, give the instructions below.
The government has charged that the property (sold) (disposed of) was (a firearm) (an explosive). To convict the accused as charged, you must be convinced beyond a reasonable doubt of all the elements, including that the property was of the nature alleged.
If you are convinced of all the elements beyond a reasonable doubt except that the property was of the nature as alleged you may still convict the accused. In this event, you must make appropriate findings by excepting the words “(a firearm) (an explosive).”
NOTE 7: “Some” value. If there is an issue whether the item had value, the following may be appropriate:
When property is alleged to have a value of $1000.00 or less, the prosecution is required to prove only that the property has some value. (When, as here (you have evidence of the nature of the property) (the property has been admitted in evidence as an exhibit and can be examined by the members), you may infer that it has some value. The drawing of this inference is not required.)
NOTE 8: Other instructions. Instruction 7-3, Circumstantial Evidence and Instruction 7-15, Variance, may be applicable. An appropriately tailored “abandoned property” instruction (See Instruction 3a-45-1, Larceny) may be applicable if an issue is raised that the property was abandoned by the government before the accused sold or disposed of it.
e. REFERENCES: Military property: US v. Schelin, 15 MJ 218 (CMA 1983) and US v. Simonds, 20 MJ 279 (CMA 1985). Disposition: US v. Joyce, 22 MJ 942 (AFCMR 1986).