Loss, damage, destruction, or wrongful disposition of military property. UCMJ Art. 108

“Military Property” Defined

  1. test1 069 (Side 69)“Military property is all property, real or personal, owned, held, or used by one of the armed forces of the United States. It is immaterial whether the property sold, disposed, destroyed, lost, or damaged had been issued to the accused, to someone else, or even issued at all. If it is proved by either direct or circumstantial evidence that items of individual issue were issued to the accused, it may be inferred, depending on all the evidence, that the damage, destruction, or loss proved was due to the neglect of the accused. Retail merchandise of service exchange stores is not military property under this article.” MCM,  32c(1).
  2. For purposes of both Article 108 and Article 121, all appropriated funds belonging to the United States are within the meaning of the term “military property of the United States.” United States v. Hemingway , 36 M.J. 349 (C.M.A. 1993). See generally TJAGSA Practice Note, Defining Military Property , Army Law., Oct. 1990, at 44.
  3. Myriad items can constitute military property, including: Watches, United States v.Ford , 30 C.M.R. 3 (C.M.A. 1960); Examinations, United States v. Reid , 31 C.M.R. 83 (C.M.A. 1961); Electric Drill, United States v. Foust , 20 C.M.R. 907 (A.B.R. 1955); A gate, United States v. Meirthew , 11 C.M.R. 450 (A.B.R. 1953); Sheets, mattress, and mattress cover, United States v. Burrell , 12 C.M.R. 943 (A.F.B.R. 1953); Sinks, pipes, and window casements, United States v. Tomasulo , 12 C.M.R. 531 (A.B.R. 1953); Camera in ship’s store, United States v. Simonds , 20 M.J. 279 (C.M.A. 1985); Blankets, United States v. Blevins , 34 C.M.R. 967 (A.F.B.R. 1964).
  4. Military property does not include:
    1. Postal funds. United States v. Spradlin , 33 M.J. 870 (N.M.C.M.R. 1991).
    2. Nonappropriated fund organization property, which is not furnished to a military service for use by the military service. United States v. Geisler , 37 M.R. 530 (A.C.M.R. 1965) (property of officer’s club); see United States v.Ford , 30 M.J. 871 (A.F.C.M.R. 1990) ( en banc ); United States v. Thompson , 30 M.J. 905 (A.C.M.R. 1990); see generally TJAGSA Practice Note, Appropriated Funds as Military Property , Army Law., Jan. 1991, at 44.
    3. Army and Air Force Exchange Service (AAFES) property. United States v. Underwood , 41 C.M.R. 410 (A.C.M.R. 1969); United States v. Schelin , 12 M.J. 575 (A.C.M.R. 1981), aff’d , 15 M.J. 218 (C.M.A. 1983). Navy courts have held, however, that property of the Navy Exchange is military property. United States v. Mullins , 34 C.M.R. 694 (N.C.M.R. 1964); United States v. Harvey , 6 M.J. 545 (N.C.M.R. 1978).

Property Need Not Have Been Personally Issued
test1 060 (Side 60)The purpose of Article 108 is to ensure that all military property, however obtained and wherever located, is protected from loss, damage, or destruction. As such, all persons subject to the UCMJ have an affirmative duty to preserve the integrity of military property. United States v. O’Hara , 34 C.M.R 721 (N.B.R. 1964).

Pleading

The specification must as a whole or directly state that the property was military property of the United States. United States v. Rockey , 022 C.M.R. 372 (A.B.R. 1956); United States v. Schiavo , 14 M.J. 649 (A.C.M.R. 1982).

Multiplicity

Larceny and wrongful disposition of the same property are separatelypunishable. United States v. West , 17 M.J. 145 (C.M.A. 1984); see also United States v. Harder , 17 M.J. 1058 (A.F.C.M.R. 1983) (larceny and wrongful sale are separately punishable). But see United States v. Teters , 37 M.J. 370 (C.M.A. 1993) (holding that the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not (“elements test”)).

Unlawful Sale of Military Property

  1. “Sale” defined. The term “sale” means an actual or constructive delivery ofpossession in return for a “valuable consideration,” and the passing of such title as the seller may possess, whatever that title may be. United States v. Blevins , 34 C.M.R. 967 (A.F.B.R. 1964).
  2. “Sale” distinguished from larceny.
    1. The sale of property implies the transfer of at least ostensible title to a purchaser in return for consideration. When the evidence merely shows that the accused, according to prior arrangements, stole property and delivered it to one or more of his fellow principals in the theft, receiving payment for his services, no sale is made. United States v. Walter , 36 C.M.R. 186 (C.M.A. 1966).
    2. Under proper circumstances, one transaction can constitute both a larceny and wrongful sale of the same property. United States v. Lucas , 33 C.M.R. 511 (A.C.M.R. 1962) (Accused, without authority and with intent to steal, took automotive parts out of a government salvage yard and later sold them at a civilian junk yard. The larceny was complete when the automotive parts were taken from the salvage yard; and the act of selling such parts did not constitute the final element of the larceny offense.)
    3. Lack of knowledge as defense. Because the offense of wrongful sale of government property involves a general criminal intent, lack of knowledge as to ownership of the property constitutes an affirmative defense provided the accused’s actions are based on an honest and reasonable mistake. United States v. Germak , 31 C.M.R. 708 (A.F.B.R. 1961); United States v. Pearson , 15 M.J. 888 (A.C.M.R. 1983).
    4. Multiplicity. An accused can be separately found guilty of wrongful sale under Article 108 and concealment under Article 134 of the same military property. United States v. Wolfe , 19 M.J. 174 (C.M.A. 1985). But see United States v. Teters , 37 M.J. 370 (C.M.A. 1993) (holding that the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not (“elements test”)).

Wrongful Disposition of Military Property

test1 061 (Side 61)Disposing of military property by any meansother than sale is an offense under Article 108 if such disposition is made without proper authority. For example, giving military property away without proper authorization constitutes an offense under this article. It makes no difference if the surrender of the property is temporary or permanent. United States v. Banks , 15 M.J. 723 (A.C.M.R. 1983), aff’d, 20 M.J. 166 (C.M.A. 1985); See also United States v. Reap , 43 M.J. 61 (1995) (accused who gave another marine a starlight scope and tool boxes outside of regular supply channels and without receipts was guilty of violating Article 108 when he had no color of authority to distribute the supplies).

Damaging, Destroying, or Losing Military Property

  1. Loss, damage, or destruction of military property under this provision may be theresult of intentional misconduct or neglect.
  2. Damage. Removing the screws that secure the nose landing gear inspection windowof a military aircraft was legally sufficient to support the damage element required under Article 108. The word “damage” must be reasonably construed to mean any change in the condition of the property that impairs its operational readiness. The government was not required to prove that the accused had a motive to wrongfully damage military property in order to secure a conviction for the offense. United States v. Daniels , 56 M.J. 365 (C.A.A.F. 2002).
  3. Willfulness. Willful damage, destruction, or loss is one that is intentionallyoccasioned. It refers to the doing of an act knowingly and purposely, specifically intending the natural and probable consequences thereof. United States v. Boswell , 32 M.R. 726 (C.G.B.R. 1962). Willful damage is a lesser included offense of sabotageunder 18 U.S.C. § 2155. United States v. Johnson , 15 M.J. 676 (A.F.C.M.R. 1983); see United States v. Washington , 29 M.J. 536 (A.F.C.M.R. 1989); TJAGSA Practice Note, Damaging Property and Mens Rea , Army Law., Feb. 1990, at 66.
    1. United States v. George , 35 C.M.R. 801 (A.F.B.R. 1965). Evidence that the accused removed perishable medical serums from a refrigerator in a medical warehouse in the tropics and left them at room temperature was sufficient to establish a willful destruction of government property although the purpose in removing the serums was to steal the refrigerator. The evidence established that the removal was intentional, and showing that the accused had a fully conscious awareness of the probable ultimate consequences of his purposeful act was unnecessary.
    2. United States v. Creek , 39 C.M.R. 666 (A.C.M.R. 1967). The evidence was insufficient to sustain a conviction of willfully and wrongfully destroying an M26 fragmentation hand grenade, military property of the United States, where evidence existed that some sort of explosive device was detonated and some witnesses expressed the opinion it was a grenade because of the sound and damage done, when they all admitted it could have been anything else and another witness said it sounded like recoilless rifle fire while others declined to express an opinion.
    3. United States v. Barnhardt , 45 C.M.R. 624 (C.G.C.M.R. 1971). Where the accused placed six metal objects in the starboard reduction gear of the cutter on which he was assigned and later, at the suggestion of a petty officer in whom he had confided, removed only the four objects he could see without reporting the remaining two, which he stated he thought might have fallen into the slump, the accused’s plea of guilty to willfully damaging military property was provident; the intentional quality of the accused’s conduct had not changed to negligence by his removal of some but not all of the foreign, metal objects from the gear.
    4. United States v. Hendley , 17 C.M.R. 761 (A.F.B.R. 1954). The accused, who had been drinking, took a military police sedan without authority and was chased at high speed. In trying to evade his pursuers, he weaved in and out of traffic; narrowly missed one oncoming vehicle; subsequently sideswiped another; and finally went out of control, left the road, and smashed into several trees. The Board of Review only approved negligent damage to military property.
    5. United States v. Peacock , 24 M.J. 410 (C.M.A. 1987). Placing rivets and nuts in an auxiliary fuel tank, thus temporarily impairing the aircraft’s operational readiness, constitutes willful damage to military property.
  4. test1 077 (Side 77)Negligence. Loss, destruction, or damage is occasioned through neglect when it isthe result of a want of such attention of the foreseeable consequences of an act or omission as was appropriate under the circumstances.
    1. United States v. Ryan , 14 C.M.R. 153 (C.M.A. 1954). The doctrine of res ipsa loquitur is not applicable to a prosecution for damaging a military vehicle through neglect, and the mere happening of a collision with resulting damage is not in itself sufficient to support a conviction for violation of Article 108. Negligence must be affirmatively established by the prosecution evidence. Here, the accused was found guilty of damaging a government vehicle through neglect. No evidence indicated that the accused was driving at an excessive speed or in any sort of reckless manner, or that he was under the influence of alcohol, or that at the time of the accident he was engaged in the violation of traffic or other safety regulations of any nature. HELD: The evidence was wholly insufficient to support findings of guilt.
    2. United States v. Foster , 48 C.M.R. 414 (N.C.M.R. 1973). Conviction based on accused’s guilty plea set aside and dismissed where providence inquiry established that accused, while on guard, operated a government forklift without permission and that while he was doing so the hydraulic brake line malfunctioned. No evidence of accused’s actual negligence was established by the government.
    3. United States v. Stuck , 31 C.M.R. 148 (C.M.A. 1961). Although evidence was presented that a Navy vehicle turned over to the accused in good condition was damaged, and witnesses testified they saw the vehicle bump and heard a noise as the accused drove it through a gate, and evidence of paint scratches on the vehicle and the gate post indicated he must have struck the gate post, the evidence was insufficient to establish beyond a reasonable doubt that the vehicle was damaged through the accused’s negligence. This is because the accused testified he had driven over a rock, evidence indicated that the road approaching the gate was bumpy and full of holes, and the gate was held open by a rock which could have been moved onto the road.
    4. United States v. Lane , 34 C.M.R. 744 (C.G.B.R. 1963). The evidence was legally and factually sufficient to sustain findings of guilty of damaging and suffering damage to a Coast Guard vessel through neglect where the accused voluntarily and intentionally turned two wheels controlling flood valves on a floating drydock in which the vessel was berthed, thereby consciously setting in motion a sequence of events which a reasonably prudent man would expect to end in some kind of harm; and if, as the court found, the precise form and shape of the injury to the vessel was not specifically intended, then it was the result of a lack of due solicitude on the part of the accused made punishable under Article 108.
    5. United States v. Traweek , 35 C.M.R. 629 (A.B.R. 1965). Evidence that a government helicopter in operating condition was parked, tied down, and covered and that it was subsequently found untied, uncovered and turned over on its side and wrecked and that the accused, who was on guard at the helicopter site, was lying unconscious a short distance from it was sufficient to corroborate accused’s confession that he entered the helicopter to warm himself and caused the damage when he started the motor to generate heat.
    6. United States v. Miller , 12 M.J. 559 (A.F.C.M.R. 1981). Article 108 offense made out where accused who had control of a military truck permitted an unlicensed 16-year-old military dependent to operate truck resulting in accident and damage to vehicle.

Suffering the Loss, Damage, Destruction, Sale or Wrongful Disposition of Military Property

  1. The word “suffer,” as used in the UCMJ, does not have a meaning other than thataccorded to it in the ordinary and general usage, i.e. , is to allow, to permit, and not to forbid or hinder; also, to tolerate and to put up with. United States v. Johnpier , 30 M.R. 90 (C.M.A. 1961).
  2. In charging an accused with the loss of military property, the word “suffer” mayproperly be used in alleging willful or intentional misconduct by the accused, as well as negligent dereliction on his part. United States v. O’Hara , 34 C.M.R. 721 (N.B.R. 1964); see also MCM, pt. IV,  32c(2).
  3. Where a member of the naval service intentionally loses military property bywillfully pushing it over the side of his ship, he may be charged under Article 108 of willfully suffering the loss or wrongfully disposing of military property. United States v O’Hara , 34 C.M.R. 721 (N.B.R. 1964).

Value

  1. test1 111 (Side 111)Under all theories of prosecution under Article 108, UCMJ, the government mustestablish as an element of proof the value of the property destroyed, lost, or sold, or the amount of damage to that property. MCM, pt. IV, para 32b.
  2. “In the case of loss, destruction, sale, or wrongful disposition, the value of theproperty controls the maximum punishment which may be adjudged. In the case of damage, the amount of damage controls. As a general rule, the amount of damage is the estimated or actual cost of repair by the government agency normally employed in such work, or the cost of replacement, as shown by government price lists or otherwise, whichever is less.” MCM, pt. IV, ¶ 32c(3).
  3. In the case of the wrongful sale of stolen military property, it is the time of taking atwhich value is to be determined and the burden is on the prosecution to establish the property condition as of that time. United States v. Steward , 20 C.M.R. 247 (C.M.A. 1955).
  4. Documents such as accounts receivable are not writings representing value. Whilethey may record or even reflect value, they do not represent value as do negotiable instruments or other documents used to acquire goods or services. United States v. Payne , 9 M.J. 681 (A.F.C.M.R. 1980) (Accused who destroyed telephone toll records representing money owed to the Government by telephone users could not be convicted of destroying $4,000 in government property represented by the toll tickets. Instead, only a conviction for destruction of property of “some value” could stand).
  5. Various documents have been held to have the value they represent, including checksmade out to other payees, United States v. Windham , 36 C.M.R. 21 (C.M.A. 1965); money orders, United States v. Sowards , 5 M.J. 864 (A.F.C.M.R. 1978); airline tickets, United States v. Stewart , 1 M.J. 750 (A.F.C.M.R. 1975); and gasoline coupons, United States v. Cook , 15 C.M.R. 622 (A.F.B.R. 1954).
  6. A government price list is competent evidence of value, and may be the best methodof proving the market value of government property; however, it is an administrative determination of value, not binding on a court-martial, but entitled to its consideration. Value also may be inferred from the nature of property. A court may properly consider other evidence of value; for example, the property’s serviceability. United States v. Thompson , 27 C.M.R. 119 (C.M.R. 1958); United States v. Downs , 46 C.M.R. 1227 (N.C.M.R. 1973).

Military property does not include:

government price list