CAAF decided the Air Force case of United States v. Passut, No. 13-0518/AF, 73 M.J. 27 (CAAFlog case page) (link to slip op.), on January 8, 2014, finding that a civilian AAFES employee was performing a military function when Appellant lied to her to get checks cashed, affirming Appellant’s pleas of guilty to making false official statements and the decision of the Air Force CCA.
Chief Judge Baker writes for the court, joined by Judges Erdmann and Ryan and Senior Judge Effron. Judge Stucky writes separately, concurring in the result.
Appellant pleaded guilty to numerous offenses at a general court-martial, and was sentenced to confinement for 10 months, reduction to E-1, and a bad-conduct discharge. Among those offenses were five specifications of making false official statements in violation of Article 107, arising from Appellant’s check-cashing activities at the base exchange. Three of these specifications addressed false statements that Appellant made to Army & Air Force Exchange Service (AAFES) employees, and the other two addressed false statements he made to employees of a bank located within the exchange facility. The statements all involved Appellant’s obscurement of his social security number on his identification card and his presentation of a different person’s social security number when asked for the number (they asked to determine if he had passed bad checks before, which he had).
After Appellant pleaded and was sentenced, CAAF decided the twin Article 107 cases of United States v. Spicer, 71 M.J. 470 (C.A.A.F. 2013) (CAAFlog case page), and United States v. Capel, 71 M.J. 485 (C.A.A.F. 2013) (CAAFlog case page), clarifying the circumstances that make a statement “official” for Article 107 purposes.
On review, the Air Force CCA analyzed Passut’s five statements to determine if they were official statements based on the three types of official statements detailed in Spicer. The CCA set aside the findings of guilty to the two specifications involving the bank employee, finding that the bank was a civilian entity that had no affiliation with the military beyond being a tenant in the exchange facility. However, the CCA affirmed the findings of guilty to the three specifications involving false statements made to the AAFES employees, finding that the civilian AAFES cashiers were performing military functions. Appellant appealed this finding and CAAF granted review to determine:
Whether a statement made to an AAFES employee for the purpose of cashing a worthless check satisfies the “official” element of a false official statement.
A unanimous CAAF finds that the statements were official, with Judge Stucky writing separately to emphasize his continued disagreement with the reasoning of Spicer (where he dissented). Chief Judge Baker, who wrote for the court in Spicer, explains:
AAFES — which is governed by service regulations and whose profits are fed back into the military — has a closer and more intricate relationship to the armed forces, a relationship sufficient to establish a military function.
Passut, Slip op. at 13. The analytical approach that gets the court to this conclusion is based on the nature of the AAFES system, “a joint, nonappropriated fund instrumentality of the Department of Defense” (slip op. at 9), with a “significant role in maintaining servicemembers’ morale and welfare while also providing essential services” (slip op. at 12), and that makes “millions of dollars in annual contributions and [has] a continuous presence on bases, installations, and other military sites across the world” (slip op. at 12). It has practically nothing to do with the check cashing activities that formed the basis for Appellant’s false statement and for his challenge before CAAF “that cashing a check is not a military function” sufficient to meet the Spicer test. Slip op. at 6.