CAAF decided the certified Army case of United States v. Hines, No. 13-5010/AR, 73 M.J. 119 (CAAFlog case page) (link to slip op.), on Monday, February 24, 2014. The court reverses the decision of the Army CCA that found that the fraudulent receipt of a housing allowance constitutes a separate larceny for each month, and affirms Appellee’s guilty plea and the sentence.
Judge Ryan writes for a unanimous court.
Appellee was a Sergeant stationed at Fort Bragg, NC, in October, 2008, when he began to steal housing and family separation allowances failing to inform the military of his divorce and subsequently asserting on numerous forms that he was still married. Over the following three years and multiple assignments Appellee received various undeserved allowances, including the Basic Allowance for Housing (BAH) at the higher “with dependents” rate, and the Family Separation Allowance (FSA).
The Government discovered Appellee’s fraud and aggregated the improperly-received monthly allowances to charge him with two specifications of larceny and one specification of wrongful appropriation of military property, all of a value of more than $500. Appellee then pleaded guilty, at a general court-martial composed of a military judge alone, to two specifications of false official statement, two specifications of larceny of military property of a value more than $500, and one specification of wrongful appropriation of military property of a value more than $500, in violation of Articles 107 and 121, UCMJ. He was sentenced to confinement for three months, total forfeitures, reduction to E-1, and a bad-conduct discharge. The convening authority disapproved the forfeitures but otherwise approved the sentence.
On review, the Army CCA rejected the Government’s aggregate theory of the case, finding that Appellee “never satisfactorily admitted to a single larceny in an amount over $500.00 and only providently admitted to a series of separate larcenies each in an amount less than $500.00 and each, at a month apart, at substantially different times.” This part of the CCA’s decision created a split with the Navy-Marine Corps CCA that specifically adopted the aggregated, “continuing larceny” theory in United States v. Lepresti, 52 M.J. 644, 653 (N.M. Ct. Crim. App. 1999). The court also found that Appellee’s plea did not satisfactorily resolve the question of whether he was entitled to the housing allowance at the lower individual (without-dependents) rate. The CCA modified the findings but affirmed the sentence as approved by the convening authority.
The Army JAG then certified two issues to CAAF:
I. Whether the Army Court of Criminal Appeals erred when it held that Appellee’s pleas to Specifications 1, 2, and 3 of Charge II were improvident because theft of basic allowance for housing and family separation allowance occurring over multiple months “amounts to a separate larceny each month the money is received.”
II. Whether the Army Court of Criminal Appeals erred when it held that Appellee’s pleas to Specifications 1 and 3 of Charge II were improvident because the military judge “never satisfactorily resolved the inconsistency between [Appellee’s] pleas to the entire amount [of basic allowance for housing] in light of his apparent entitlement to a lesser amount.”
Judge Ryan answers both questions in the affirmative, expressly adopting the reasoning of the 5th Circuit Court of Appeals in United States v. Billingslea, 603 F.2d 515, 520 (5th Cir. 1979), and concluding that any questions of Appellee’s lack of entitlement to the lower individual rate were resolved during the plea inquiry.