Article 121 UCMJ Larceny of Military Property

Facing a court-martial, UCMJ action, Administrative Separation Board, or other Adverse Administrative Action for Article 121 UCMJ Larceny of Military Property? Call our experienced military defense lawyers at 1-800-921-8607 for a free consultation.

Note: This law applies only to Article 121 UCMJ Larceny of Military property offenses committed on and after 1 January 2019.

What is Article 121 UCMJ Larceny of Military Property?

Article 121 of the Uniform Code of Military Justice (UCMJ) addresses larceny and wrongful appropriation of military property. This article defines larceny as “the unlawful taking, obtaining, or withholding of property from the rightful owner with the intent to permanently deprive or defraud the owner of its use or benefit.” Manual for Courts-Martial, United States (2024 ed.) Specifically, larceny of military property involves the theft of items owned by the U.S. government, provided by the government for military use, or otherwise designated as military property.

The elements required to prove larceny under Article 121 include:

1. The accused wrongfully took, obtained, or withheld property.
2. The property belonged to another person or entity.
3. The accused intended to permanently deprive the owner of the property.
4. The property was of a certain value. Manual for Courts-Martial, United States (2024 ed.)

Penalties for violating Article 121 can be severe, ranging from reduction in rank and forfeiture of pay to confinement and dishonorable discharge, depending on the value of the stolen property and the circumstances of the offense. A military defense lawyer may challenge the prosecution’s case by arguing a lack of intent, mistaken belief in ownership, or authorization to use the property.

Understanding the nuances of Article 121 is crucial for military personnel to avoid severe legal consequences and maintain good standing in the armed forces.

Note: The maximum and minimum punishments for Article 121 UCMJ Larceny of Military Property vary depending on the date of the offense.

What are the Article 121 UCMJ Larceny Offenses?

• Article 121 UCMJ: Larceny of Property of a value of $1,000 or less
• Article 121 UCMJ: Larceny of Military property of a value of more than $1,000 or of any military motor vehicle, aircraft, vessel, firearm, or explosive
• Article 121 UCMJ: Larceny of Property other than military property of a value of more than $1,000 or any motor vehicle, aircraft, vessel, firearm, or explosive

What are the Elements of Article 121 UCMJ Larceny of Military Property?

(1) That (state the time and place alleged), the accused wrongfully (took) (obtained) (withheld) certain property, that is, (state the property allegedly taken), from the possession of (state the name of the owner or other person alleged);

(2) That the property belonged to (state the name of the owner or other person alleged);

(3) That the property was of a value of __________ (or of some value); (and)

(4) That the (taking) (obtaining) (withholding) by the accused was with the intent (permanently to (deprive) (defraud) (state the name of the owner or other person alleged) of the use and benefit of the property) (or) (permanently to appropriate the property for the accused’s own use or the use of someone other than the owner); [and]

NOTE 1: Military and other property subject to enhanced punishment provisions when alleged. Add the following element and give the appropriate definitions:

[(5)] That the property was [(a) military (property) (motor vehicle) (aircraft) (vessel) (firearm) (explosive)] [(a) (an) (motor vehicle) (aircraft) (vessel) (firearm) (explosive)]. Manual for Courts-Martial, United States (2024 ed.)

Maximum Punishments for Article 121 Larceny

What are the Maximum Punishments for Article 121 UCMJ Larceny of Military property of a value of $1,000 or less? Military Judges Benchbook (12 Apr 24) DA Pam 27-9

• Article 121 UCMJ Larceny Offenses Committed from 1 Jan 2019 to 27 Dec 2023: BCD, TF, 1 year, E-1.

• Article 121 UCMJ Larceny Offenses Committed after 27 Dec 2023: Category 1 Offense – Confinement from 0-12 months, a DD, TF, and E-1. Manual for Courts-Martial, United States (2024 ed.)

What are the Maximum Punishments for Article 121 UCMJ Larceny of Military property of a value of more than $1,000 or of any military motor vehicle, aircraft, vessel, firearm, or explosive?

• Article 121 UCMJ Larceny Offenses For Committed from 1 Jan 2019 to 27 Dec 2023: DD, TF, 10 years, E-1.

• Article 121 UCMJ Larceny Offenses Committed after 27 Dec 2023: Category 2 Offense – Confinement from 1-36 months (1 month to 3 years), a DD, TF, and E-1.  Manual for Courts-Martial, United States (2024 ed.)

What are the Maximum Punishments for Article 121 UCMJ Larceny of Property other than military property of a value of more than $1,000 or any motor vehicle, aircraft, vessel, firearm, or explosive?

• Article 121 UCMJ Larceny Offenses Committed from 1 Jan 2019 to 27 Dec 2023: DD, TF, 5 years, E-1.

• Article 121 UCMJ Larceny Offenses Committed after 27 Dec 2023: Category 2 Offense – Confinement from 1-36 months (1 month to 3 years), a DD, TF, and E-1. Manual for Courts-Martial, United States (2024 ed.)

Combined UCMJ Maximum Punishment Charts

• Maximum Punishments for UCMJ Offenses 2024: Combined UCMJ Punishments Chart
• UCMJ Lesser Included Offenses Chart 2024 UCMJ

Sample Specification for Article 121 UCMJ Larceny of Military Property

In that SGT James Doe, US Army, did, at Camp Arifjan, Kuwait, on or about 3 June 2024, steal a Bradley Fighting Vehicle, of a value of about $800,000, the property of the US Army.

Model Specification for Article 121 UCMJ Larceny of Military Property

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, steal __________, (military property), of a value of (about) $__________, the property of __________.

Fictional Fact Patterns of Article 121 UCMJ Larceny and Larceny of Military Property

Understanding Article 121 UCMJ Larceny

Article 121 UCMJ Larceny is a critical component of military law. It addresses the unauthorized taking of property with the intent to permanently deprive the owner of its use and benefit. This blog post explores the intricacies of Article 121 UCMJ Larceny, examining its elements, relevant case law, and implications for service members.

What is Article 121 UCMJ Larceny?

Article 121 UCMJ Larceny is defined as the wrongful taking, obtaining, or withholding of property with the intent to permanently deprive or defraud another person of its use and benefit, or to permanently appropriate it for the use of the accused or another person. This offense differs from wrongful appropriation under the UCMJ, which involves a temporary deprivation of property.

Elements of Article 121 UCMJ Larceny

To convict someone of larceny under Article 121 UCMJ, the prosecution must prove the following elements beyond a reasonable doubt:

1. The accused wrongfully took, obtained, or withheld certain property from the possession of the owner or any other person.
2. The property belonged to a certain person.
3. The property was of a certain value, or of some value.
4. The taking, obtaining, or withholding by the accused was with the intent to permanently deprive or defraud another person of the property’s use and benefit or permanently appropriate the property for the use of the accused or for any person.

Case Law Interpretations

Various cases have helped shape the understanding of Article 121 UCMJ Larceny. These cases provide critical insights into how the law is applied and interpreted in different scenarios.

United States v. Sneed, 38 C.M.R. 249 (C.M.A. 1968) explains that if the accused’s accomplices were government agents, a conviction for larceny of government property cannot stand as no taking occurred.

United States v. Cosby, 14 M.J. 3 (C.M.A. 1982) confirms that the accused can be guilty of wrongful taking even if the property was released to them by competent authority.

United States v. Whitten, 56 M.J. 234 (C.A.A.F. 2002) states that larceny by taking continues as long as asportation of the property continues. The original asportation continues as long as the perpetrator is not satisfied with the location of the goods and causes the flow of their movement to continue relatively uninterrupted.

Implications of Article 121 UCMJ Larceny

The punishment for Article 121 UCMJ Larceny can be severe and may include confinement, reduction in rank, forfeiture of pay, and a dishonorable discharge. The exact punishment depends on the value of the property stolen and the circumstances surrounding the offense.

Common Scenarios of Article 121 UCMJ Larceny

Theft of Military Property

One common scenario involves the theft of military property. For instance, a service member might steal equipment or supplies from their unit. This unauthorized taking intending to permanently deprive the military of its property constitutes Article 121 UCMJ Larceny.

In such cases, the prosecution must demonstrate that the accused took the property without authorization and intended to permanently deprive the owner of its use and benefit. The defense might argue that the property was not taken with intent to permanently deprive, but the unauthorized taking still fulfills the criteria for larceny under Article 121 UCMJ.

Embezzlement of Government Funds

Another example involves the embezzlement of government funds. If a service member diverts government funds for personal use with no intention of repayment, it constitutes Article 121 UCMJ Larceny. The key element is the intent to permanently deprive the government of its funds.

United States v. McFarland, 23 C.M.R. 266 (C.M.A. 1957) discusses embezzlement, requiring a fiduciary relationship and lawful holding. If a service member misappropriates funds they are entrusted with, this constitutes larceny.

Identity Theft and Fraud

Article 121 UCMJ Larceny can also occur through identity theft and fraud. For example, using another service member’s identity to obtain goods or money with the intent to permanently deprive them of their property falls under larceny. This form of theft involves deception and the wrongful acquisition of another’s property.

Defending Against Article 121 UCMJ Larceny Charges

Defending against Article 121 UCMJ Larceny charges involves challenging the prosecution’s evidence on the accused’s intent and the wrongful taking of property. Common defense strategies include:

Lack of Criminal Intent

The defense might argue that the accused did not have the criminal intent required for Article 121 UCMJ Larceny. This could involve demonstrating that the accused believed they had permission to take the property or that the taking was a result of a misunderstanding.

Authorization

The defense may present evidence that the accused had authorization, either explicit or implied, to take the property.

Return of Property

While returning the property does not negate Article 121 UCMJ Larceny, the defense might argue that the return mitigates the severity of the offense and should be considered in sentencing.

Mistaken Belief

The accused might argue that they mistakenly believed the property was theirs to take, negating the wrongful element of the larceny.

Hiring a Military Defense Lawyer for Article 121 UCMJ Larceny

Article 121 UCMJ Larceny is a serious offense that addresses the unauthorized taking of property with the intent to permanently deprive the owner of its use and benefit. While it differs from wrongful appropriation in terms of intent, the consequences can still be severe for those found guilty.

Understanding the elements, case law, and potential defenses is essential for service members and legal practitioners navigating these charges. Proper legal representation is vital in ensuring that the rights of the accused are protected and that justice is served in accordance with military law.

In conclusion, Article 121 UCMJ Larceny is a complex aspect of military justice that requires a thorough understanding. By examining the elements, case law, and practical implications, this blog post aims to provide a comprehensive overview of larceny and its significance in maintaining discipline and order within the military.

Introduction to Larceny and Wrongful Appropriation

Larceny and wrongful appropriation are offenses under Article 121 UCMJ. The key difference between these offenses is the specific intent to deprive, defraud, or appropriate.

Elements of Larceny and Wrongful Appropriation

1. The accused wrongfully took, obtained, or withheld certain property from the possession of the owner or any other person.
2. The property belonged to a certain person.
3. The property was of a certain value, or of some value.
4. The taking, obtaining, or withholding by the accused was with the intent (permanently or temporarily) to deprive or defraud another person of the use and benefit of the property or permanently to appropriate the property for the use of the accused or for any person.
5. If the property is alleged to be military property, it must be proven that the property was military property.

Three Theories under Article 121 UCMJ

There are three primary theories under Article 121 UCMJ: wrongful taking, wrongful obtaining, and wrongful withholding.

Wrongful Taking in Article 121 UCMJ Larceny of Military Property

United States v. Murphy, 74 M.J. 302 (C.A.A.F. 2014) establishes that small arms ammunition constitutes an explosive and is included in R.C.M. 103(11).

Wrongful Obtaining in Article 121 UCMJ Larceny of Military Property

United States v. Mervine, 26 M.J. 482 (C.M.A. 1988) and United States v. Tenney, 15 M.J. 779 (A.C.M.R. 1983) illustrate that larceny can be done through wrongful obtaining.

Wrongful Withholding in Article 121 UCMJ Larceny of Military Property

United States v. Herndon, 36 C.M.R. 8 (C.M.A. 1965) explains that wrongful withholding is another method of committing larceny under Article 121 UCMJ.

Types of Property Covered by Article 121 UCMJ Larceny of Military Property

To constitute larceny, the property stolen must be tangible personal property. Article 121 specifies that “any money, personal property, or article of value of any kind” can be the subject of larceny.

Wrongful Taking in Article 121 UCMJ Larceny of Military Property

A wrongful taking requires dominion, control, and asportation.

United States v. Carter, 24 M.J. 280 (C.M.A. 1987) discusses the requirement of dominion, control, and asportation in wrongful taking.

Case Law Examples of Article 121 UCMJ Larceny of Military Property

United States v. Sneed, 38 C.M.R. 249 (C.M.A. 1968) explains that if the accused’s accomplices were government agents, a conviction for larceny of government property cannot stand as no taking occurred.

United States v. Cosby, 14 M.J. 3 (C.M.A. 1982) confirms that the accused can be guilty of wrongful taking even if the property was released to them by competent authority.

Wrongful Obtaining in Article 121 UCMJ Larceny of Military Property

Obtaining by false pretenses involves a false representation of past or existing fact, which may include a person’s power, authority, or intention.

United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010) is a key case illustrating wrongful obtaining through the unauthorized use of credit cards.

Credit and Debit Card Transactions in Article 121 UCMJ Larceny of Military Property

Engaging in a wrongful credit, debit, or electronic transaction to obtain goods or money is considered an obtaining-type larceny by false pretense.

United States v. Gaskill, 73 M.J. 207 (C.A.A.F. 2014) sets aside three larceny specifications because the trial counsel proceeded with the wrong victim, highlighting the importance of identifying the correct victim in such cases.

Case Studies in Article 121 UCMJ Larceny of Military Property

United States v. Cimball-Sharpton, 73 M.J. 299 (C.A.A.F. 2014) discusses larceny where the Air Force suffered a financial loss due to wrongful obtaining.

United States v. Williams, 75 M.J. 129 (C.A.A.F. 2016) emphasizes that in wrongful credit or debit transactions, the merchant or bank is usually the victim.

Wrongful Withholding in Article 121 UCMJ Larceny of Military Property

A withholding is wrongful if done without the knowing consent of the owner or other lawful authority.

United States v. Moreno, 23 M.J. 622 (A.F.C.M.R.) illustrates that the intent to withhold can be formed after the property is obtained.

Embezzlement and Conversion in Article 121 UCMJ Larceny of Military Property

United States v. McFarland, 23 C.M.R. 266 (C.M.A. 1957) discusses embezzlement, requiring a fiduciary relationship and lawful holding.

United States v. Cahn, 31 M.J. 729 (A.F.C.M.R. 1990) explains that conversion involves the unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another.

United States v. Sicley, 20 C.M.R. 118 (C.M.A. 1955) establishes that the intent to deprive permanently must be concurrent with the taking or withholding.

United States v. Paulk, 32 C.M.R. 456 (C.M.A. 1963) states that a wrongful conversion requires an accounting to the owner.

United States v. Jones, 33 C.M.R. 167 (C.M.A. 1963) determines that neither a receiver of stolen property nor an accessory after the fact can be convicted of larceny on the theory that, with knowledge of the identity of the owner, he withheld the stolen property from the owner.

Ownership in Article 121 UCMJ Larceny

To be guilty of larceny, the accused must take property from one having a superior possessory interest.

United States v. Evans, 37 M.J. 468 (C.M.A. 1993) highlights the importance of establishing a superior possessory interest in larceny cases.

United States v. Cohen, 12 M.J. 573 (A.F.C.M.R. 1981) notes that even though the checks were intended for various banks and credit unions, the United States had possession of the checks while they were in the mail, thus supporting a charge of larceny from the United States.

United States v. Jett, 14 M.J. 941 (A.C.M.R. 1982) explains that the victim is anyone with a superior right of possession to the accused, regardless of who has title.

United States v. Meadows, 14 M.J. 1002 (A.C.M.R. 1982) determines that one can commit larceny or wrongful appropriation by taking military equipment from one unit to another.

United States v. Leslie, 13 M.J. 170 (C.M.A. 1982) states that the United States had a possessory interest in C.O.D. funds that a postal clerk stole instead of forwarding to the senders of C.O.D. parcels, thus supporting a charge of larceny from the United States.

Pleadings in Article 121 UCMJ Larceny

United States v. Craig, 24 C.M.R. 28 (C.M.A. 1957) confirms that an erroneous allegation of ownership is not a fatal defect in larceny cases.

United States v. Castro, 81 M.J. 209 (C.A.A.F. 2020) supports that an incorrect allegation of ownership does not necessarily invalidate a larceny charge.

Value in Article 121 UCMJ Larceny

The value of the property is an essential element in larceny cases under Article 121 UCMJ.

Determining the Value of Stolen Property

The fair market value at the time and place of the theft must be established.

United States v. Lewis, 13 M.J. 561 (A.F.C.M.R. 1982) notes that the accused can be properly convicted of the full value of an item where he switched price tags and paid the lower price.

Government price lists can be used to establish value. See M.R.E. 803(17).

United States v. Windham, 36 C.M.R. 21 (C.M.A. 1965) states that writings representing value may be considered to have the value which they represent, even though contingently, at the time of the theft.

United States v. Riverasoto, 29 M.J. 594 (A.C.M.R. 1989) and United States v. Cook, 15 C.M.R. 622 (A.F.B.R. 1954) indicate that the face value of checks and gasoline coupons, respectively, can be used to determine value.

United States v. Frost, 46 C.M.R. 233 (C.M.A. 1973) determines that blank checks have nominal value.

Special Cases of Article 121 UCMJ Larceny

United States v. Batiste, 11 M.J. 791 (A.F.C.M.R. 1981) held that urine, which was to be sent to the laboratory for testing, was an article of value for purposes of larceny prosecution and the immediate substitution by the accused of a like quantity of urine did not diminish the offense of wrongful appropriation.

United States v. Jones, 78 M.J. 37 (C.A.A.F. 2017) states that the charged value of the property taken, obtained, or withheld is not an element of the offense; however, larceny of property having a value of more than $500 carries a larger sentence than larceny of property having a lesser value.

Intent in Article 121 UCMJ Larceny

The intent to steal or wrongfully appropriate property is a crucial element in larceny cases under Article 121 UCMJ.

Proof of Intent in Article 121 UCMJ Larceny

The wrongful taking, obtaining, or withholding must be accompanied by the intent to steal or wrongfully appropriate the property.

Manual for Courts-Martial, United States (2024 ed.) states that although a person gets property by a taking or obtaining which was not wrongful or which was without a concurrent intent to steal, a larceny is nevertheless committed if an intent to steal is formed after the taking or obtaining and the property is wrongfully withheld with that intent.

United States v. Zaiss, 42 M.J. 586 (A. Ct. Crim. App. 1995) determines that intent to steal may be inferred when the accused secretly takes property, hides it, and denies knowing anything about it.

Concurrent Intent in Article 121 UCMJ Larceny

United States v. Sicley, 20 C.M.R. 118 (C.M.A. 1955) establishes that the intent to deprive permanently must be concurrent with the taking or withholding.

Case Law Examples of Article 121 UCMJ Larceny

United States v. Helms, 47 M.J. 1 (C.A.A.F. 1997) and United States v. Perkins, 56 M.J. 825 (A. Ct. Crim. App. 2001) confirm that once a soldier realizes that they are erroneously receiving pay or allowances and forms the intent to steal that property, they have committed larceny even without an affirmative act of deception or a duty to account for the funds.

What are the Definitions for Article 121 UCMJ Larceny of Military Property?

“Possession” under Article 121 UCMJ Larceny means care, custody, management, or control.

“Owner” under Article 121 UCMJ Larceny refers to any person (or entity) who, at the time of the (taking) (obtaining) (withholding), had a superior right to possession of the property than the accused did, in the light of all conflicting interests.

Property under Article 121 UCMJ Larceny “belongs” to a person or entity having (title to the property) (a greater right to possession of the property than the accused) (or) (possession of the property).

“Took” under Article 121 UCMJ Larceny means any actual or constructive moving, carrying, leading, riding, or driving away of another’s personal property.

“Withheld” under Article 121 UCMJ Larceny means a failure to return, account for, or deliver property to its owner when a return, accounting, or delivery is due, even if the owner has made no demand for the property. Withheld can also mean devoting property to a use not authorized by its owner.

Manual for Courts-Martial, United States (2024 ed.)

NOTE 2: Wrongfulness of the taking, withholding, or obtaining. When the evidence raises an issue of wrongfulness, an instruction tailored substantially as follows should be given:

A (taking) (or) (withholding) is wrongful only if it is done without the owner’s consent and with a criminal state of mind.

An obtaining is wrongful only when it is accomplished by false pretenses with a criminal state of mind.

A criminal “pretense” under Article 121 UCMJ Larceny is any misrepresentation of fact by a person who knows it to be untrue, which is intended to deceive, which does in fact deceive, and which is how value is obtained from another without compensation. The false pretense may be made using any act, word, symbol, or token and may relate to a past or existing fact. The misrepresentation must be an effective and intentional factor in causing the owner to part with the property. The misrepresentation does not have to be the only cause of the obtaining.

In determining whether the (taking) (or) (withholding) (or) (obtaining) was wrongful, you should consider all the facts and circumstances presented by the evidence.) (Consider evidence that the (taking) (or) (withholding) (or) (obtaining) may have been (from a person with a greater right to possession) (without lawful authorization) (without the authority of apparently lawful orders) (__________).

On the other hand, consider evidence that the (taking) (or) (withholding) (or) (obtaining) may have been (negligent) (under a mistaken belief of right) (with lawful authority) (authorized by apparently lawful superior orders) (from a person with a lesser right to possession than the accused) (from a person with whom the accused enjoyed an equal right to possession) (for the purpose of returning the property to the owner) (__________).

NOTE 3: Non-larcenous or “innocent” motive. If there is evidence that the accused took property as a joke or trick, to “teach another a lesson,” or for a similar reason, the following instruction may be appropriate. See US v. Kastner, 17 MJ 11 (CMA 1983) (overruling the “innocent purpose defense” of US v. Roark, 31 CMR 64 (CMA 1961)), and US v. Johnson, 17 MJ 140 (CMA 1984). This evidence will ordinarily raise the lesser included offense of wrongful appropriation:

Evidence has been presented that the accused may have (taken) (or) (obtained) (or) (withheld) the (state the property allegedly taken) as a (joke) (trick) (to teach another a lesson) (to test security) (__________). The accused’s reason for (taking) (or) (withholding) (or) (obtaining) the property is neither an element of larceny nor is it a defense. However, it is evidence that may be considered in determining whether the accused, at the time of the (taking) (or) (obtaining) (or) (withholding) had the in tent permanently to:

a. (deprive) (defraud) (state the name of the owner or other person alleged) of the use and benefit of the property; or

b. appropriate the property to (his/her) own use or the use of any other person other than the owner.

The burden is upon the prosecution to establish the guilt of the accused. Unless you are satisfied beyond a reasonable doubt that the accused had the intent permanently to ((deprive) (defraud) (state the name of the owner or other person alleged) of the use and benefit of the property) (or) (appropriate the property to (his/her) own use or the use of any person other than the owner), the accused may not be found guilty of larceny.

NOTE 4: Possession of recently stolen property. If the accused may have been found in possession of recently stolen property, an instruction tailored substantially as follows is appropriate:

If the facts establish that the property was wrongfully (taken) (or) (obtained) (or) (withheld) from the possession of (state the name of the owner or other person alleged) and that shortly thereafter it was discovered in the knowing, conscious, and unexplained possession of the accused, you may infer that the accused (took) (or) (obtained) (or) (withheld) the property. The drawing of this inference is not required.

It is not required that the property actually be in the hands of or on the person of the accused, and possession may be established by the fact that the property is found in a place which the accused controls. Two or more persons may be in possession of the same property at the same time. One person may have actual possession of property for that person and others. But mere presence in the vicinity of the property or mere knowledge of its location does not constitute possession.

“Shortly thereafter” under Article 121 UCMJ Larceny is a relative term and has no fixed meaning. Whether property may be considered as discovered shortly thereafter it has been taken depends upon the nature of the property and all the facts and circumstances shown by the evidence in the case. The longer the period of time since the (taking) (or) (obtaining) (or) (withholding), the more doubtful becomes the inference which may reasonably be drawn from unexplained possession.

In considering whether the possession of the property has been explained, you are reminded that in the exercise of Constitutional and statutory rights, an accused need not take the stand and testify. Possession may be explained by facts, circumstances, and evidence independent of the testimony of the accused.

NOTE 5: Lost, mislaid, or abandoned property. If the evidence raises the possibility that before it was taken the property was abandoned, lost, or mislaid, the instruction that follows is appropriate. In addition, Instruction 5-11, Mistake of Fact, may apply to the issue of intent to deprive or to the issue of the wrongfulness of the taking:

The evidence has raised the issue of whether the property was abandoned, lost, or mislaid. In deciding this issue you should consider, along with all the other evidence that you have before you, the place where and the conditions under which the property was found (as well as how the property was marked).

“Abandoned property” under Article 121 UCMJ Larceny is property which the owner has thrown away, relinquishing all right and title to and possession of the property with no intention to reclaim it. One who finds, takes, and keeps abandoned property becomes the new owner and does not commit larceny.

“Lost property” under Article 121 UCMJ Larceny is property which the owner has involuntarily parted with due to carelessness, negligence, or other involuntary reason. In such cases, the owner has no intent to give up ownership. The circumstances and conditions under which the property was found may support the inference that it was left unintentionally but you are not required to draw this inference.

One who finds lost property is not guilty of larceny unless (he) (she) takes possession of the property with both the intent permanently to (deprive) (defraud) the owner of its use and benefit or permanently to appropriate the property to (his) (her) own use, or the use of someone other than the owner, and has a clue as to the identity of the owner.

A clue as to identity of the owner may be provided by the character, location, or marking of the property, or by other circumstances. The clue must provide a reasonably immediate means of knowing or ascertaining the owner of the property.

“Mislaid property” under Article 121 UCMJ Larceny is property which the owner voluntarily and intentionally leaves or puts in a certain place for a temporary purpose and then forgets where it was left or inadvertently leaves it behind. A person who finds mislaid property has no right to take possession of it, other than for the purpose of accomplishing its return to the owner.

Such a person is guilty of larceny if the property is wrongfully taken with the same intent permanently to deprive, defraud, or appropriate the property as I discussed earlier with lost property even though there is no clue as to the identity of the owner.

The burden is on the government to prove each and every element of larceny beyond a reasonable doubt. The accused cannot be convicted unless you are convinced beyond a reasonable doubt that the property was not abandoned. In addition, if you are convinced beyond a reasonable doubt that the property was “mislaid,” the accused may be convicted only if you are convinced beyond a reasonable doubt of all the elements of larceny.

If you are convinced beyond a reasonable doubt that the property was not abandoned but are not convinced beyond a reasonable doubt that the property was “mislaid,” you should consider the property to be “lost.” In this circumstance, the accused cannot be convicted unless you are convinced beyond a reasonable doubt that, at the time of the taking, along with the other elements of larceny, the accused had a clue as to the identity of the owner.

NOTE 6: Bailment and withholding by conversion—other than pay and allowances erroneously paid. The following instruction may be appropriate where there is evidence that the accused misused property given to him or her in a bailment arrangement. See US v. Hale, 28 MJ 310 (CMA 1989) and US v. Jones, 35 MJ 143 (CMA 1992):

You may find that a wrongful withholding occurred if you find beyond a reasonable doubt that the owner loaned, rented, or otherwise entrusted property to the accused for a certain period of use, the accused later retained the property beyond the period contemplated without consent or authority from the owner, and had the intent permanently to (deprive) (defraud) the owner of its use and benefit.

NOTE 7: Withholding of pay and/or allowances. When the accused has erroneously received either pay and/or allowances, an instruction tailored substantially as below may be given. This instruction is based upon US v. Helms, 47 MJ 1 (CAAF 1997). Helms clarified a previously unsettled area by making clear that knowing receipt, without any action on the part of the service member, when coupled with intent permanently to deprive, is sufficient to prove larceny.

Thus, there is neither a requirement for affirmative action on the part of the service member which causes the payment (as was previously indicated in US v. Antonelli, 43 MJ 183 (CAAF 1995)), nor a requirement for the service member to fail to account for the payment when called upon to do so (as was previously indicated in US v. Thomas, 36 MJ 617 (ACMR 1992)).

The question is one of proof: (1) did the service member realize he/she was receiving the payment; and (2) did the service member form the intent to steal? An affirmative action (Antonelli) or failure to account (Thomas) is still relevant as evidence of knowledge of the payment(s) and/or intent to steal, along with other examples listed in the paragraph below.

The mere failure to inform authorities of an overpayment of (an allowance) (pay) (pay and allowances) does not of itself constitute a wrongful withholding of that property. In order to find that the accused wrongfully withheld (an allowance) (pay) (pay and allowances), you must find beyond a reasonable doubt that:

(1) The accused knew that (he) (she) was erroneously receiving (an allowance) (pay) (pay and allowances); and

(2) The accused, either at the time of receipt of the (allowance) (pay) (pay and allowances), or at any time thereafter, formed an intent (permanently to (deprive) (defraud) the government of the use and benefit of the money) (or) (permanently to appropriate the money to the accused’s own use or the use of someone other than the government).

In deciding whether the accused knew (he) (she) was erroneously receiving (pay) (an allowance) (pay and allowances) and whether the accused formed the requisite intent. it would be best if you considered all the facts and circumstances, including but not limited to (the accused’s intelligence) (the length of time the accused has been in the military) (any affirmative action by the accused that caused the overpayment) (the length of time the accused received the overpayment)

Also consider (any failure by the accused to account for the funds when called upon to do so) (the amount of the erroneous payment when compared to the accused’s total pay) (any statement(s) made by the accused) (any actions taken by the accused to (conceal) (correct) the erroneous payment) (any representations made to the accused concerning the erroneous payment by persons in a position of authority to make such representations) (__________).

NOTE 8: Custodian of a fund. When the accused was the custodian of a fund and may have failed to produce property on request or to render an accounting, an instruction tailored substantially as follows may be given:

The mere (failure on the part of the custodian to account for or deliver the property when, in the ordinary course of affairs, an accounting is due) (refusal on the part of the custodian to deliver the property when delivery is due or upon timely request by proper authority) does not of itself constitute a larceny of that property.

However, (failure on the part of the custodian to account for or deliver the property when, in the ordinary course of affairs, an accounting is due) (a refusal on the part of the custodian to deliver the property when delivery is due or upon timely request by proper authority) will permit an inference that the custodian has wrongfully withheld the property. The drawing of this inference is not required.

Whether it should be drawn and the weight to be given to it, if it is drawn, are matters for your exclusive determination. In making this determination, you should consider the circumstances surrounding any (refusal) (failure) to (account for) (deliver) the property. In making your decision, you should also apply your common sense and general knowledge of human nature and the ordinary affairs of life.

NOTE 9: Military property. For a definition of military property, See US v. Schelin, 15 MJ 218 (CMA 1983), and US v. Simonds, 20 MJ 279 (CMA 1985). See also NOTE 10 below when money is alleged as military property. When military property is alleged, the following instruction should be given:

“Military property” is real or personal property owned, held, or used by one of the United States’ armed forces, which either has a uniquely military nature or is used by an armed force to further its mission. Manual for Courts-Martial, United States (2024 ed.)

NOTE 10: “Money” as military property. In US v. Hemingway, 36 MJ 349 (CMA 1993), the court held that appropriated funds belonging to the Army—even if only being “held” by the Army for immediate disbursement to an individual service member for duty travel—are military property. Hemingway did not mention any of the service court cases that previously addressed the issue, such as US v. Dailey, 34 MJ 1039 (NMCMR 1992) (“money” paid as BAQ was considered to be “military property” because it was appropriated by Congress and used to provide an integral morale and welfare function);

• US v. Newsome, 35 MJ 749 (NMCMR 1992) (treasury checks are military property)
• US v. Field, 36 MJ 697 (AFCMR 1992) (appropriated funds for PCS and TDY travel are military property)
• US v. Thomas, 31 MJ 794 (AFCMR 1990) (“money” paid as TLA (temporary lodging allowance)

VHA was not “military property” because ordinarily it is the property purchased with appropriations, and not “money,” which has a unique military nature or is put to a function meriting special status).

NOTE 11: Motor vehicle, aircraft, vessel, explosive, and firearm defined. If the property is alleged to be a motor vehicle, aircraft, vessel, explosive, or firearm, the following definitions will usually be sufficient.

In a complex case, the military judge should consult the rules and statutes cited below:

• Vehicle: 1 USC section 4
• Motor Vehicle: 18 USC section 31 and 18 USC section 2311
• Aircraft: 18 USC section 31 and 18 USC section 2311
• Vessel: 1 USC section 3
• Explosive: RCM 103(11), 18 USC section 844(j), and 18 USC section 232(5)
• Firearm: RCM 103(12) and 18 USC section 232(4)

“Motor vehicle” includes every description of carriage or other contrivance propelled or drawn by mechanical power and used, or capable of being used, as a means of transportation on land.

“Aircraft” means any contrivance invented, used or designed to navigate, fly, or travel in the air.

“Vessel” includes every description of water craft or other artificial contrivance used, or capable of being used, as a means of transportation on water.

“Firearm” means any weapon which is designed to or may be readily converted to expel any projectile by the action of an explosive.

“Explosive” means gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuses (other than electrical circuit breakers), detonators, and other detonating agents, smokeless powders, any explosive bomb, grenade, missile, or similar device, and any incendiary bomb or grenade, fire bomb, or similar device. “Explosive” includes ammunition.

NOTE 12: Other definitions of explosive. The above definition of explosive (except the last sentence regarding ammunition, which is derived from U.S. v. Murphy, 74 MJ 302 (2015)) is taken from RCM 103(11). The Manual definition also includes any other compound, mixture, or device within the meaning of 18 USC section 232(5) or 18 USC section 844(j).

Title 18 USC section 232(5) includes the following definitions of explosive not included above: dynamite or other devices which (a) consist of or include a breakable container including a flammable liquid or compound, and a wick composed of any material which, when ignited, is capable of igniting such flammable liquid or compound, and (b) can be carried or thrown by one individual acting alone.

18 USC section 844(j) also includes the following: any chemical compounds, mechanical mixture, or device that contains any oxidizing and combustible units, or other ingredients, in such proportions, quantities, or packing that ignition by fire, by friction, by concussion, by percussion, or by detonation of the compound, mixture, or device or any part thereof may cause an explosion.

NOTE 13: Military or specified property, variance. If the property is alleged to be military property and/or a motor vehicle, aircraft, vessel, firearm, or explosive, and an issue as to its nature is raised by the evidence, the following instruction should be given:

The government has charged that the property allegedly stolen was “((military property)) ((a military) (a) (an) (motor vehicle) (aircraft) (vessel) (firearm) (explosive)).” To convict the accused as charged, you must be convinced beyond a reasonable doubt of all the elements, including that the property is of the nature as alleged. If you are convinced of all the elements beyond a reasonable doubt except the element that the property was of the nature as alleged, you may still convict the accused of larceny. In this event you must make appropriate findings by excepting the words”((military property)) ((a military) (a) (an) (motor vehicle) (aircraft) (vessel) (firearm) (explosive)).”

NOTE 14: Value alleged as $1000.00 or less and property in evidence in Article 121 UCMJ Larceny of Military Property.

Under these circumstances, the following instructions may be given:

When the property is alleged to have a value of $1000.00 or less, the prosecution must prove only that the property has some value. When, as here (you have evidence of the nature of the property) (the property has been admitted in evidence as an exhibit and can be examined by the members), you may infer that it has some value. The drawing of this inference is not required.

NOTE 15: Value alleged more than $1000.00. If value over $1000.00 is alleged, Instruction 7-16, Value, Damage, or Amount, may be appropriate.

NOTE 16: Larceny of a completed check, money order or similar instrument. The following instruction may be appropriate:

When the subject of the larceny is a completed check, money order, or similar instrument, the value is the face amount for which it is written (in the absence of evidence to the contrary raising a reasonable doubt as to that value).

NOTE 17: Asportation. The asportation (the taking or carrying away) continues, and thus the crime of larceny continues, as long as there is any movement of the property with the requisite intent, even if not off the premises. As long as the perpetrator is dissatisfied with the location of the property, a relatively short interruption of the movement of the property does not end the asportation. See US v. Escobar, 7 MJ 197 (CMA 1979).

NOTE 18: Receiver of stolen property or accessory after the fact and Article 121 UCMJ Larceny of Military Property. Larceny by “withholding” cannot be premised on evidence of receiving stolen property or being an accessory after the fact. See US v. Jones, 33 CMR 167 (CMA 1963).

NOTE 19: In Article 121 UCMJ Larceny of Military Property, Taking and stealing of mail. See Article 109a, Part IV, MCM and Instructions 3a-33a-1, Mail—Taking, 3a-33a-2, Mail—Opening, Secreting, or Destroying, and 3a-33a-3, Mail–Stealing.

NOTE 20: Tangible property subject of larceny. Money, personal property or article of value, as those terms are used in Article 121, UCMJ, include only tangible items having corporeal existence and do not include services or other intangibles, such as taxicab and telephone services, or use and occupancy of government quarters, or a debt. See US v. Roane, 43 MJ 93 (CMA 1995), US v. Abeyta, 12 MJ 507 (ACMR 1981) and US v. Mervine, 26 MJ 482 (CMA 1988). (Theft of intangibles may be charged under Article 121b as obtaining services under false pretenses.)

NOTE 21: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), normally applies. Instruction 7-16, Variance – Value, Damage, or Amount, may apply. Instruction 7-15, Variance, may apply.

NOTE 22: Wrongful appropriation as a lesser included offense. When wrongful appropriation is raised as a lesser included offense, give the following

The offense of wrongful appropriation is a lesser included offense of the offense of larceny as set forth in (The) Specification (__) of (The) (Additional) Charge (__). If you find the accused not guilty of larceny, you should then consider the lesser included offense of wrongful appropriation, also in violation of Article 121. In order to find the accused guilty of this lesser offense, you must be satisfied by legal and competent evidence beyond a reasonable doubt of the following elements:

(1) That (state the time and place alleged), the accused wrongfully (took) (obtained) (withheld) certain property, that is, (state the property allegedly taken), from the possession of (state the name of the owner or other person alleged);

(2) That the property belonged to (state the name of the owner or other person alleged);

(3) That the property was of a value of __________ (or of some value); (and)

(4) That the (taking) (obtaining) (withholding) by the accused was with the intent (temporarily to (deprive) (defraud) (state the name of the owner or other person alleged) of the use and benefit of the property) (or) (temporarily to appropriate the property for the accused’s own use or the use of someone other than the owner.) [and]

[(5)] That the property was (a) (an) (motor vehicle) (aircraft) (vessel) (firearm) (explosive) (military property of a value more than $1000).

The offense of larceny differs from the offense of wrongful appropriation in that the offense of larceny requires as an essential element that you be satisfied beyond a reasonable doubt that at the time of the (taking) (withholding) (obtaining), the accused had the intent permanently to deprive the owner of the use and benefit of the property or had the intent permanently to appropriate the property to (his) (her) own use or the use of anyone other than the lawful owner.

The lesser included offense of wrongful appropriation does not include that element but does require as an essential element that you be satisfied beyond reasonable doubt that at the time of the (taking) (withholding) (obtaining) the accused had the intent temporarily to deprive the owner of the use and benefit of the property or had the intent temporarily to appropriate the property for (his) (her) own use or the use of anyone other than the lawful owner.

NOTE 23: Other instructions distinguishing Article 121 UCMJ Larceny of Military Property from wrongful appropriation. The following instructions may be appropriate:

The (taking) (withholding) (obtaining) as a (joke) (trick) (to teach another a lesson) (to test security) (__________) is not a defense to wrongful appropriation.

References for Article 121 UCMJ Larceny

Abandoned, lost, mislaid property: US v. Wiederkehr, 33 MJ 539 (AFCMR 1991); Pay and allowances: US v. Helms, 47 MJ 1 (CAAF 1997).

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