ARTICLE 123A. MAKING, UTTERING OR DRAWING CHECK, ORDER OR DRAFT WITHOUT SUFFICIENT FUNDS

This article covers incidents where anything of value is procured or any payment made with a check, order or draft although the issuer is well aware that sufficient funds are not present in the bank account to cover the sum.

• That at a specific time and place, the accused drew/ made/ uttered/ delivered a draft/ check/ Money Order (M.O.) drawn upon a specific bank to the victim.
• That while carrying out this act, the accused was fully aware of the insufficiency of funds to fulfill the obligation that the draft/ check/ M.O. represented, irrespective of whether he or another person was the maker of the instrument.
• That the draft/ check/ M.O. drawn was used by the accused to procure something of value.
• That the accused intended to commit fraud by carrying out this unlawful act.

Maximum Punishment: For fraud that involves an amount of $500 or less, maximum punishment is forfeiture of all allowances and pay bad conduct discharge and 6 months confinement. For fraud involving bigger amounts, maximum punishment is dishonorable discharge, forfeiture of all pay and allowances and 5 years confinement.

There is a critical difference between this section and the previous one (intent to defraud). ‘Intent to defraud’ means that the accused had a clear intent to get something of value for his own gain or the gain of someone else either permanently or temporarily. ‘Intent to deceive’ means that the accused had an intent to mislead or cheat another to cause some disadvantage to the latter or to gain some benefit for himself/ someone else.

The amount involved in the deception does not materially impact the punishment meted out to the guilty under this section.

• That at a specific time and place, the accused drew/ made/ uttered/ delivered a draft/ check/ M.O. drawn upon a specific bank to the victim.
• That while carrying out this act, the accused was fully aware of the insufficiency of funds to fulfill the obligation that the draft/ check/ M.O. represented, irrespective of whether he or another person was the maker of the instrument.
• That the purpose of drawing/ making/ delivering/ uttering the said draft/ check/ M.O. drawn was to pay off an existing debt.
• That the accused intended to deceive by carrying out this unlawful act.

Maximum Punishment: Forfeiture of all allowances and pay, bad conduct discharge, and 6 months confinement is the maximum punishment for violation of this section.

POINTS TO NOTE ABOUT ARTICLE 123A

a) The prosecution does not need to prove that the article or thing of value was obtained by the accused.

b) The accused may be found guilty of this offense even if the act involved a post- dated check as long as it can be established that he had intent to defraud or deceive and that he had knowledge about the insufficiency of funds.

c) As defense the accused can establish that he honestly believed that funds would be credited to the account to cover the instrument.

d) The Gambler’s Defense is no longer a defense for check offenses under Article 123a (refer United States v. Falcon, 65 M.J. 386 (C.A.A.F. 2008) trial). For more information on this article, please refer to the Manual for Courts Martial.