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The elements of Article 121, UCMJ are:
1. That the accused wrongfully took, obtained, or withheld certain property from the possession of the owner or of any other person; 2. That the property belonged to a certain person; 3. That the property was of a certain value, or of some value; and 4.That the taking, obtaining, or withholding by the accused was with the intent permanently 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 other than the owner. [If the property was military property, add the following element] 5. That the property was military property. Wrongful appropriation 1. That the accused wrongfully took, obtained, or withheld certain property from the possession of the owner or of any other person; 2. That the property belonged to a certain person; 3. That the property was of a certain value, or of some value; and 4. That the taking, obtaining, or withholding by the accused was with the intent temporarily to deprive or defraud another person of the use and benefit of the property or temporarily to appropriate the property for the use of the accused or for any person other than the owner. The Uniform Code of Military Justice combines the theories of larceny, wrongfully obtaining with intent to permanently defraud by false pretenses, and embezzlement. The law does not require the government to specifically allege with theory they have chosen. They must only allege that the accused did steal something. A larceny occurs anytime there is a movement of the property coupled with the requisite intent. Generally speaking, there is no defense of self-help where the accused does not have a honest claim of legal right to the allegedly stolen property.[1] Defense counsel should remember that mistake of fact for larceny need only be honestly held. [2] The government does have discretion to charge cases involving fraudulently obtained military pay as a larceny. The bench book standard jury instructions are: 3-46-1: Larceny. 3-46-2: Wrongful appropriation. The maximum punishment for larceny of military property of a value of $500.00 or less is a bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year. Of a value more than $500.00, the maximum punishment is dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years. For property other than military property of a value of $500.00 or less, the maximum is a bad-conduct discharge, forfeiture of all pay and allowances, and confinement for six-months. Of a value more than $500.00, the maximum punishment is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. Wrongful appropriation of property under $500.00 carries a maximum penalty of confinement for 3 months and forfeiture of two-thirds pay per month for 3 months. Of a value more than $500.00, the maximum is a bad-conduct discharge, forfeiture of all pay and allowances, and confinement for six months. If a wrongful appropriation of any motor vehicle, aircraft, vessel, firearm, or explosive is involved the maximum penalty is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years. The lesser-included offenses for larceny are wrongful appropriation and Article 80 – attempts. The lesser-included offenses for larceny of military property are larceny or property other than military property, wrongful appropriation, and Article 80 – attempts. The only lesser-included offense of wrongful appropriation is Article 80 – attempts. |
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