2008 edition - Fort Sam Houston - U.S. Army

( 4 ) M a t e r i a l g a i n . T h e e x p e c t a t i o n o f m a t e r i a l
gain is not an element of this offense. Such expectation
or lack of it, however, is circumstantial evidence
bearing on the element of intent to deceive.
( 5 ) K n o w l e d g e t h a t t h e d o c u m e n t o r s t a t e m e n t
w a s f a l s e . T h e f a l s e r e p r e s e n t a t i o n m u s t b e o n e
which the accused actually knew was false. Actual
knowledge may be proved by circumstantial evidence.
An honest, although erroneous, belief that a
statement made is true, is a defense.
d. Lesser included offense. Article 80—attempts
e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,
forfeiture of all pay and allowances, and confinement
for 5 years.
f. Sample specification. In that (personal
jurisdiction data), did, (at/on board—location),
(subject-matter jurisdiction data, if required),
on or about 20 , with intent to dec
e i v e , ( s i g n a n o f f i c i a l ( r e c o r d ) ( r e t u r n )
( ) , t o w i t : ) ( m a k e
t o , a n o f f i c i a l s t a t e m e n t , t o
w i t : ) , w h i c h ( r e c o r d ) ( r e t u r n ) ( s t a t e -
m e n t ) ( ) w a s ( t o t a l l y f a l s e ) ( f a l s e i n
that ), and was then known by the saidto
be so false.
32. Article 108—Military property of the
United States—sale, loss, damage,
destruction, or wrongful disposition
a. Text of statute.
Any person subject to this chapter who, without
proper authority—
(1) sells or otherwise disposes of;
( 2 ) w i l l f u l l y o r t h r o u g h n e g l e c t d a m a g e s ,
destroys, or loses; or
(3) willfully or through neglect suffers to be
lost, damaged, destroyed, sold, or wrongfully disp
o s e d o f , a n y m i l i t a r y p r o p e r t y o f t h e U n i t e d
States, shall be punished as a court-martial may
direct.
b. Elements.
( 1 ) S e l l i n g o r o t h e r w i s e d i s p o s i n g o f m i l i t a r y
property.
(a) That the accused sold or otherwise disposed
o f c e r t a i n p r o p e r t y ( w h i c h w a s a f i r e a r m o r
explosive);
(b) That the sale or disposition was without
proper authority;
32.c.(2)
(c) That the property was military property of
the United States; and
(d) That the property was of a certain value.
( 2 ) D a m a g i n g , d e s t r o y i n g , o r l o s i n g m i l i t a r y
property.
(a) That the accused, without proper authority,
damaged or destroyed certain property in a certain
way, or lost certain property;
(b) That the property was military property of
the United States;
(c) That the damage, destruction, or loss was
willfully caused by the accused or was the result of
neglect by the accused; and
(d) That the property was of a certain value or
the damage was of a certain amount.
(3) Suffering military property to be lost, damaged,
destroyed, sold, or wrongfully disposed of.
(a) That certain property (which was a firearm
or explosive) was lost, damaged, destroyed, sold, or
wrongfully disposed of;
(b) That the property was military property of
the United States;
(c) That the loss, damage, destruction, sale, or
wrongful disposition was suffered by the accused,
without proper authority, through a certain omission
of duty by the accused;
(d) That the omission was willful or negligent;
and
(e) That the property was of a certain value or
the damage was of a certain amount.
c. Explanation.
( 1 ) M i l i t a r y p r o p e r t y . M i l i t a r y p r o p e r t y i s a l l
property, real or personal, owned, held, or used by
one of the armed forces of the United States. If is
i m m a t e r i a l w h e t h e r t h e p r o p e r t y s o l d , d i s p o s e d ,
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
e v i d e n c e , t h a t t h e d a m a g e , d e s t r u c t i o n , o r l o s s
proved was due to the neglect of the accused. Retail
merchandise of service exchange stores is not military
property under this article.
(2) Suffering military property to be lost, damaged,
destroyed, sold, or wrongfully disposed of.
“To suffer” means to allow or permit. The willful or
n e g l i g e n t s u f f e r a n c e s p e c i f i e d b y t h i s a r t i c l e i n -
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