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) $1,000 or less: BCD, TF, 1 year, E-1. (Category 1)
(2) Over $1,000: 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, falsely pretend to __________ that __________, then knowing that the pretenses were false, and by means thereof did wrongfully obtain from __________ services, of a value of (about) $__________, to wit: __________.
c. ELEMENTS:
(1) That (state the time and place alleged), the accused wrongfully obtained certain services, to wit: (describe the services alleged) from (state the name of the alleged victim);
(2) That the accused obtained the services by using false pretenses, to wit: (state the alleged false pretense);
(3) That the accused then knew of the falsity of the pretenses;
(4) That the obtaining was with the intent to defraud; and
(5) That the services were of a value of (state the value alleged).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
A “false pretense” is any misrepresentation of a (past) (or) (existing) fact by a person who knows it to be untrue. The misrepresentation must be an effective and intentional factor in obtaining the services. The misrepresentation does not, however, have to be the only cause of the obtaining.
“Intent to defraud” means an intent to obtain, through a misrepresentation, a service of value and to apply it to one’s own use and benefit or to the use and benefit of another, either temporarily or permanently.
NOTE 2: Similar or related offenses. This offense is similar to the offenses of larceny and wrongful appropriation by false pretenses, except that the object of the obtaining is “services” instead of “money, personal property, or article of value of any kind,” as under Article 121. It provides a charge in those cases where Article 121 is inapplicable only because the object of the obtaining is not money, personal property, or an article of value. It is, therefore, appropriate to refer to Instruction 3a-45-1, Larceny, in tailoring instructions to this offense. For elements tailored to theft of telephone service, see US v. Roane, 43 MJ 93 (CAAF 1995).
NOTE 3: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent and Knowledge), 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 issues of intent to defraud and knowledge, may be applicable.