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: BCD, TF, 6 months, and E-1. (Category 1)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), being indebted to __________ in the sum of $__________ for __________, which amount became due and payable (on) (about) (on or about) __________, did, (at/on board—location), from __________ to __________, dishonorably fail to pay said debt, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces).
c. ELEMENTS:
(1) That the accused was indebted to (state the name of the person or entity alleged) in the sum of (state the amount alleged) for (state the alleged debt);
(2) That this debt became due and payable on or about (state the date alleged);
(3) That (state the place alleged), from about __________ to about __________ while the debt was still due and payable, the accused dishonorably failed to pay this debt; and
(4) That, under the circumstances, the conduct of the accused was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
(“Conduct prejudicial to good order and discipline” is conduct which causes a reasonably direct and obvious injury to good order and discipline.)
(“Service discrediting conduct” is conduct which tends to harm the reputation of the service or lower it in public esteem.)
The failure to pay the debt must have been the result of more than mere negligence, that is, the absence of due care. The failure to pay must be dishonorable. A failure to pay is “dishonorable” if it (is (fraudulent) (deceitful) (a willful evasion) (deliberate) (based on false promises)) (results from a grossly indifferent attitude toward one’s just obligations) (__________).
NOTE 2: Gambling debts. In US v. Falcon, 65 MJ 386 (CAAF 2008), CAAF overruled its historical position that public policy prevents using the UCMJ to enforce debts incurred from legal gambling and checks written to obtain proceeds with which to gamble legally (commonly called the “gambler’s defense”). See US v. Wallace, 36 CMR 148 (CMA 1966), US v. Allberry, 44 MJ 226 (CAAF 1996); US v. Green, 44 MJ 828 (ACCA 1996).
Note that CAAF in Falcon declined to apply “a sweeping defense based on public policy” to allegations that third-party complicity negates a required element of an offense, stating the issue would be addressed on a case-by-case basis. CAAF reiterated that the government maintains the burden of proving each element beyond a reasonable doubt and the accused remains free to raise such facts that show his conduct does not satisfy a necessary element. Id., at footnote 4.
CAAF also specifically declined to address the ongoing validity of US v. Walter, 23 CMR 275 (CMA 1957), and US v. Lenton, 25 CMR 194 (CMA 1958), because Falcon dealt with legal gambling and Walter and Lenton dealt with illegal gambling. Falcon, at footnote 6. Until CAAF specifically addresses the ongoing validity of Walter and Lenton, if there is an issue whether the debt arose from illegal gambling, the first two paragraphs of the instruction below should be given. If there is an issue that some but not all of the debt(s) arose from illegal gambling, the third paragraph of the instruction below should also be given.
The evidence has raised the issue whether the debt(s) in question (was) (were) from gambling illegally. The Uniform Code of Military Justice may not be used to enforce debts from gambling illegally when the purported victim was a party to, or actively facilitated, the gambling.
To find the accused guilty of the offense in (The) Specification(s) (___) of (The) (Additional) Charge(s) (___), you must be convinced beyond reasonable doubt that the debt(s) in question (was) (were) not debt(s) from gambling illegally. Even if the debt(s) (was) (were) from gambling illegally, if you are convinced beyond reasonable doubt that the purported victim was not a party to and did not actively facilitate the illegal gambling, and otherwise did not have knowledge of the illegal gambling-related purpose of the debt, you may find the accused guilty when all other elements of the offense have been proven beyond a reasonable doubt.
(The evidence has also raised the issue whether all or only part of the debt(s) in question (was) (were) from gambling illegally. The UCMJ limitation I mentioned only extends to that part of the debt(s) that (was) (were) from gambling illegally. If you find this is the case and all other elements of the offense have been proven beyond a reasonable doubt, you may find the accused guilty by exceptions and substitutions only to that part of the debt(s) which you are convinced beyond a reasonable doubt (was) (were) not from gambling illegally. You do this by excepting the value(s) alleged in the specification(s) and substituting that/those value(s) of which you are convinced beyond a reasonable doubt (was) (were) not a debt from gambling illegally.)
NOTE 3: Mistake of fact—criminal state of mind and satisfaction on the obligation. The accused must have had a “criminal mind” in the sense that the accused must have had a grossly indifferent attitude toward the state of the accused’s just obligations to be guilty of this offense. The military judge should, therefore, be alert to evidence inconsistent with such “criminal mind,” such as a satisfaction of the debt, an accord with the creditor, or a mistake as to the terms of the debt. On the other hand, ultimate “satisfaction” of the creditor in the sense that the obligation has been paid at the time of trial does not necessarily mean “satisfaction” with the accused’s conduct while the obligation remained unpaid. See US v. Moseley, 35 MJ 481 (CMA 1992) with respect to this issue in a worthless check prosecution. Instruction 5-13, Mistake of Fact, may be applicable.
NOTE 4: Conduct pled as both prejudicial to good order and discipline and service discrediting. When the conduct is pled as both prejudicial to good order and discipline and service discrediting, the following instruction should be given:
The government has alleged that the conduct in question in (The) Specification (___) of (The) (Additional) Charge (___) was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. To convict the accused of the offense charged, you must be convinced beyond a reasonable doubt of all the elements, including that the accused’s conduct was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. If you are convinced of all the elements except the element of the service discrediting nature of the conduct, you may still convict the accused of the offense charged. In this event, you must make appropriate findings by excepting the language “of a nature to bring discredit upon the armed forces.” On the other hand, if you are convinced of all the elements except the element of prejudice to good order and discipline in the armed forces, you may still convict the accused of the offense charged. In this event, you must make appropriate findings by excepting the language “to the prejudice of good order and discipline in the armed forces.” Of course, if you are convinced beyond a reasonable doubt that the conduct in question was both to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces, then you may convict the accused as charged provided you are convinced beyond a reasonable doubt as to the other elements of (The) Specification (___) of (The) (Additional) Charge (___).
e. REFERENCES: US v. Gardner, 35 MJ 300 (CMA 1992); US v. Falcon, 65 MJ 386 (CAAF 2008).