You have been a trial counsel for sixteen months. You have a heavy caseload and ten contested panel cases. Although you have tried larceny cases, you have never prosecuted an entitlement fraud case. The Criminal Investigation Command (CID) contacts you about a suspected fraud case involving basic allowance for housing (BAH) and travel pay entitlements. The special agent briefs you that it appears the service member has stolen $30,000 over a twenty-four month period by claiming his wife lives with his two children in Baltimore, Maryland, while he is stationed in Japan. The special agent presents two large file folders. As you peruse the documentation, you notice leave and earnings statements, printouts from finance, and defense enrollment eligibility reporting system (DEERS) documentation, but no witness interviews. Although CID insists it is a clear case of fraud, you have no idea what you are reviewing, how the documents relate to one another, how to draft the appropriate charges, how to successfully prosecute the case, or whether a crime has been committed. Where do you start?
Entitlement fraud results in significant financial losses to the U.S. government; however, there is a void in secondary sources to assist the inexperienced trial counsel in navigating an entitlement fraud case. This primer fills the void by providing trial counsel a process to investigate and prosecute entitlement fraud cases.
This primer addresses navigating an entitlement fraud case from investigation to prosecution. Though there are many entitlements, this primer focuses on BAH, family separation allowance (FSA), and permanent duty travel pay (PDTP). Part II addresses pre-preferral research and documentation collection. Part III addresses the decision to charge and the drafting of appropriate charges. Part IV addresses evidence presentation, and Part V provides recommended guidance for effective case presentation.
II. Pre-preferral Research and Documentation Collection
A. Understanding the Entitlements at Issue
The first step to successfully prosecuting an entitlement fraud case is to identify the entitlements at issue and their legal framework. This section offers an analysis of the entitlement rules for BAH, PDTP, and FSA, as well as the Department of the Army and Department of Defense Forms used to process the entitlements.
1. The Joint Travel Regulations—BAH and PDTP
The most common entitlements at issue in an entitlement fraud case are BAH and PDTP. The Joint Travel Regulations (JTR) govern BAH and PDTP. The JTR is updated monthly; therefore, trial counsel must ensure they examine the version in effect at the time of an alleged offense.
a. Housing Allowances—BAH
To determine whether a case involving BAH merits prosecution, trial counsel must understand the following JTR rules: (1) general rules for a housing allowance; (2) definitions of dependents; and (3) assignment situations. Service members on active duty and entitled to basic pay are “authorized a housing allowance based on [their] grade, rank, location, and whether he or she has any dependents.” The BAH rate is based on the grade, dependency status, and location of the service member not dependents. Unless a different rule applies, BAH will be paid for the service member’s location.
The first question is whether the service member has a qualifying dependent. The JTR contains definitions for dependents. Absent exceptions, lawful spouses and legitimate, unmarried, minor children always qualify as dependents. However, trial counsel must be aware there are other dependent scenarios including secondary dependents, dependent parents, adopted children, children born out of wedlock, and stepchildren. Furthermore, different rules apply to dependents other than lawful spouses and children born in wedlock. For example, a service member claiming BAH for a child born out of wedlock must provide proof of parentage. For the entitlement to apply, trial counsel must understand what, if any, documentation is required and may be needed as evidence. Once trial counsel determine whether the service member has a lawful dependent, one must examine the assignment situation and location rules.
Assignment situation and location rules are found within chapter ten of the JTR. Generally, a housing allowance is based on a “[service member’s] PDS [primary duty station] or the home port for a member assigned to a ship or afloat unit.” However, as with dependency, variables affect the BAH location. In particular, trial counsel overseas must examine rules addressing unaccompanied or restricted tours. The JTR contains rules specifying when BAH may be based on a dependent location as opposed to a service member’s location, how to determine the location, and what is required to validate the location. For example, a case may involve a situation where a service member’s dependent no longer resides at a designated place, but the service member claims BAH for that location. If, prior to permanent change of station (PCS), the service member was authorized to move his dependents to a designated location a subsequent relocation at personal expense may not abrogate the service member’s entitlement to BAH for the previous location.
To determine what location is claimed for BAH, trial counsel must obtain and review the service member’s most recent Department of the Army Form 5960 (Form 5960). Form 5960 is significant because it is an official form the service member completes listing marital and dependency status, current dependent address, and most importantly, certifies that all listed information is correct. Also, Form 5960 contains a statement notifying the signatory of the penalties for making a false official statement and will assist in proving the mens rea elements of larceny, and false official statement. Although the service member may have multiple dependents in multiple locations, the key is to examine which address is claimed for BAH, and whether the JTR dependency and location conditions are satisfied. Therefore, trial counsel should focus on the address claimed for BAH and not the number of addresses.
b. Permanent Duty Travel Pay—PDTP
When a service member undergoes a PCS, PDTP entitlements are controlled by the JTR and the Department of Defense Financial Management Regulation (FMR). Two commonly claimed entitlements are dependent per diem and dislocation allowance (DLA). A service member is authorized per diem for dependents who travel under authorized PCS orders. A DLA is paid to eligible service members to partially reimburse for the movement of a household. Fraud arises when dependents are not entitled to PCS travel, and when although entitled, dependents do not travel or relocate.
Using the same analytical framework as for BAH, trial counsel must determine whether the service member has a qualifying dependent. If the service member has a qualifying dependent, trial counsel need to examine the PCS orders to determine whether dependent travel was authorized. If travel was authorized, the next step is to determine the claimed travel entitlements.
To determine the claimed travel entitlements, trial counsel must examine the service member’s Department of Defense Form 1351-2 (Form 1351-2). This is the travel voucher completed following PCS travel, generally when in-processing to a new unit. On Form 1351-2, the service member annotates dependent status, claims for DLA and per diem, the dependents’ address on receipt of orders, and where and when dependents’ travelled. By examining this form and working with travel pay personnel, trial counsel can determine claimed entitlements and amounts. Finally, the instructions portion provides a warning regarding the penalties for providing false claims, which assists in proving the mens rea elements of larceny and false official statement.
2. DoD Financial Management Regulation—FSA
The next entitlement likely to be at issue is FSA. FSA is primarily governed by the FMR. Its purpose is to “provide compensation for added expenses due an enforced separation” of the service member from his family. It applies to qualifying members inside and outside of the United States. Unlike BAH, FSA is paid at a flat rate of $250 per month. Assuming a service member meets all criteria for enforced separation, FSA applies regardless of BAH location. Therefore, irrespective of listing a fraudulent BAH location, a service member separated from a qualifying dependent is likely still entitled to FSA; therefore, in many cases a larceny specification for FSA is inappropriate.
Fraudulent claims for FSA arise when service members claim they are not legally separated or divorced, when they do not have custody of a child for purposes of dependency that entitles them to FSA, or when separation is not incurred due to enforced family separation. Trial counsel should ask two questions: (1) does the service member have a qualifying dependent; and (2) was the service member separated from the dependent due to enforced family separation? Like the JTR, the FMR contains a definition for dependents. While the most common categories will be a spouse or an unmarried child under the age of twenty-one, the FMR lists eight dependent scenarios. Additionally, the FMR provides the criteria for an unmarried child considered to be in the custody of the service member. If there is a qualifying dependent, trial counsel must determine if there is an enforced separation. The FMR details enforced separations. Trial counsel must be aware that FSA is generally not payable when separation is due to personal convenience.
In determining whether a service member is entitled to FSA, trial counsel must examine the service member’s Department of Defense Form 1561 (Form 1561). Like Form 5960, this form is significant because it is completed by the service member. The form requires the service member to list the complete, current dependent addresses and certify the dependents do not fall into a category disallowing FSA. By signing, the service member acknowledges the requirement to notify a commanding officer if dependency status changes or if there is no longer a separation. Although not containing a warning about false claims or statements, the form assists in proving mens rea elements because the service member completes and signs the form. If, after examination of the form and other evidence, the service member was not separated from a qualifying dependent, a larceny charge is appropriate.
3. Army Regulation 55-46—Designated Place Moves
Along with the JTR, for Army specific cases, Army Regulation 55-46 (AR 55-46) controls “designated place” moves for service members serving unaccompanied tours overseas. A designated place move is a relocation of dependents to a location other than that of the service member. When service members are required or elect to serve an unaccompanied tour, they have the option of either leaving their family at the current location or moving their family to a designated place. However, such moves require PCS orders to contain the following language, “Travel of your Family members to your overseas duty station at Government expense is not authorized during this tour. You are authorized to make a designated place move to (authorized place).”
For cases involving unaccompanied tours overseas, AR 55-46 should be examined in conjunction with the JTR as well as the definition of “designated place” in the JTR. A service member serving an unaccompanied tour overseas will be paid BAH based either upon the former PDS or a designated location. For BAH to be paid for a designated location, the service member must certify that “is the place at which the dependents intend to establish a bona fide residence until further dependent transportation is authorized at Government expense.” Chapter 2 of AR 55-46 provides a process by which the service member makes the requisite certification. If the language is absent from the PCS orders, it will assist in proving a larceny by showing the service member did not have authorization to move his dependents at government expense and claim BAH for a location other than the former PDS.
Once trial counsel have properly framed each entitlement and understand the analytical framework, it is essential to begin collecting documentation pre-preferral.
B. Pre-preferral Documentation Collection
After framing the entitlements, trial counsel should focus on pre-preferral documentation collection. Collecting documentation pre-preferral accomplishes four goals: (1) it assists in determining whether a crime has been committed; (2) it alleviates potential tolling of the speedy trial clock; (3) it ensures counsel are prepared to prove their case; and (4) it can drive efficient case resolution, e.g., the defense may want to negotiate quickly.
A common focus will be proving a service member’s dependents live at an address other than that claimed. In addition to Form 5960, useful documentation that can be obtained from the local military personnel division includes the service member’s PCS orders, record of emergency data, and service member’s group life insurance forms. These forms are generally completed during in-processing and are required to be updated annually. Both forms require the service member to list addresses. Often, the primary dependent for BAH purposes will be an individual the service member lists as an emergency contact and as a beneficiary. Although these forms do not drive entitlements, if the listed addresses differ from the address or addresses listed on Form 5960, this will assist in proving mens rea elements. Furthermore, the service member’s Army Military Human Resource Record (AMHRR), should contain documentation of finance and personnel records reviews. This documentation shows dates of reviews, whether the service member was present during the review, and any noted errors.
Additional documentation to prove a dependent’s address includes lease agreements, title or deed information, and school records. To obtain these records, trial counsel must be prepared to enlist the assistance of military law-enforcement or contact the source directly. Additionally, trial counsel should be prepared to utilize the government’s subpoena power either at a preliminary hearing or after referral, and if necessary, petition the military judge for a warrant of attachment.
If marital status or child custody is at issue, trial counsel will need to obtain certified records. A non-exclusive list of potentially helpful certified records includes records of marriage, divorce, child custody agreements, and tax returns. These records assist in proving a lack of qualifying dependents for entitlements, e.g., BAH at the with-dependent rate and FSA. These documents can often be researched online and certified copies can be ordered either by phone or by mail. Trial counsel should be prepared to utilize the subpoena power provided in the Uniform Code of Military Justice (UCMJ). Once the appropriate documentation is obtained, these records are admissible under hearsay exceptions and are self-authenticating.
Tax returns may assist in demonstrating the lack of a qualifying dependent in cases involving BAH and FSA. To obtain tax returns for use in a criminal investigation, an order from a federal district court judge or magistrate is required. The order may only be obtained through an application from “The Attorney General, the Deputy Attorney General, the Associate Attorney General, any Assistant Attorney General, any United States attorney, any special prosecutor appointed under section 593 or title 28 . . . or any attorney in charge of a criminal division organized crime strike force established pursuant to section 510 of title 28 . . . .” Given this requirement, trial counsel should coordinate with their office’s Special Assistant to the United States Attorney (SAUSA) to determine whether the local Assistant United States Attorney (AUSA) is willing and able to obtain a court order. Critically, trial counsel will need to consider analogous federal offenses to enable application before a federal judge. Finally, trial counsel must consider the necessary lead-time in obtaining tax documents.
When addressing claims of PDTP and movement of a household and dependents, trial counsel should obtain the service member’s application for shipment of personal property, bills of lading for household goods transportation, and the full travel voucher submission with all supporting documentation. These documents will either support or reject a service member’s claim. For example, a service member may apply to ship a certain weight of household goods to a particular address. This should be compared to the bill of lading to determine what amount was delivered and to what address. The bill of lading can be obtained from the local transportation office while the travel documents will be obtained through the local finance office.
In order to prove amounts paid, trial counsel should obtain the service member’s leave and earnings statements and finance printouts for travel pay claims. Both may be obtained at the local finance office or the Defense Finance and Accounting Service (DFAS).
While the aforementioned list contains the most common documentation for an entitlement fraud case, it is not exhaustive. Trial counsel should consider additional documentation such as in-processing sign-in sheets to prove attendance at a finance brief, briefing slides used by finance, and records of pay inquiries initiated by the service member.
III. The Charging Decision and Drafting of Appropriate Charges
After relevant pre-preferral research and documentation collection is complete, trial counsel must decide whether charging is appropriate, draft appropriate charges, and avoid the pitfalls of unreasonable multiplication of charges (UMC) and exact amount charging. When contemplating these decisions, trial counsel should consider three principles: (1) whether a crime was committed; (2) command and prosecutorial objectives; and (3) what can and should be charged.
A. Determining Whether a Crime Was Committed
Trial counsel must first determine whether a crime was committed. Though seemingly obvious, this step is critical because one must consider whether erroneous entitlements were paid due to misunderstandings either in paperwork or entitlement rights. Equally, if not more important, trial counsel must determine whether an entitlement is lawfully being paid pursuant to JTR and FMR rules.
The following steps are useful in determining whether a crime was committed. First, speak to finance personnel conducting briefs for in-coming service members and sit through a finance brief. This assists in understanding the clarity of the brief or lack thereof, and if needed, obtaining witnesses and documentation. Second, determine whether the service member initiated a pay inquiry to attempt to correct the entitlement. Third, prior to drafting charges, speak with finance, and if possible, DFAS personnel. This is recommended because trial counsel are likely not familiar with the JTR’s more nuanced provisions. This step also assists with witness identification pre-preferral. After these steps, trial counsel must consider command and prosecutorial objectives.
B. Considering Command and Prosecutorial Objectives
When considering command and prosecutorial objectives, trial counsel need to manage the expectations of the command. Entitlement fraud cases tend to result in low confinement terms. On the other hand, entitlement fraud cases frequently result in a punitive discharge. Trial counsel should discuss potential outcomes versus the resources required to prosecute and determine whether more efficient and economic courses of action achieve a desired outcome, e.g., General Officer Memorandum of Reprimand and a separation action. If prosecution remains the goal, trial counsel must determine what and how to charge.
C. Determining What Can and Should be Charged
Entitlement fraud cases most commonly involve charges of false official statement, false claims, and larceny. In making the charging decision, trial counsel should begin by determining the theory of liability for larceny, i.e., whether the larceny is based on a wrongful taking or wrongful withholding. This step is critical because while most entitlement fraud cases are based upon a wrongful taking by false pretense, cases based upon wrongful withholding may not be accompanied by false official statements or false claims. Therefore, the theory of liability drives the charging decision.
For larceny by false pretense, UMC should be avoided. At a finance in-brief, service members generally complete and submit Forms 5960 (or service equivalent), 1561, and 1351-2. All three may contain false statements regarding dependent status, dependent location, and dependent travel; however, whether each merits a separate specification may depend on the subject matter and timing. For example, Forms 5960 and 1561 require certification of dependent status and location; therefore, the subject matter of the false representation is the same. If both forms were completed and submitted on the same date, a recommended best practice is to draft one specification. Contrarily, the Form 1351-2 differs in subject matter because the service member is claiming dependent travel. Consequently, a separate specification for falsehoods on Form 1351-2 is warranted. Given differing Service court interpretations of UMC, trial counsel should consider prior rulings by their respective military judge and appellate courts.
A UMC situation may also arise when charging both a false official statement and a false claim. False official statement requires specific intent and a false claim requires specific knowledge; however, both are often based on the submission of a form. For false claims, trial counsel must consider the underlying basis of the false claim. For instance, if a false claim for BAH is based upon the submission of Form 5960 listing the service member’s dependent as residing at a false location it is likely the two offenses are aimed at the same misconduct. A charging strategy that chooses either the false claim or the false official statement avoids unnecessary motions practice for offenses carrying the same maximum punishment and are likely to be UMC for findings or at least merged for sentencing purposes.
It is also recommended that trial counsel avoid exact amount charging. When charging a larceny, whether the amount stolen is under or over $1,000 increases the maximum punishment. Entitlement fraud cases often involve amounts over $1,000. Although it can be enticing to view monthly LESs and add the total dollar amount stolen, this can create unnecessary problems, and it is recommended trial counsel draft specifications listing the amount as “more than $1,000.”
First, exact amount charging may hinder plea negotiations or create problems during plea inquiries. For plea negotiations, a service member may be willing to admit a larceny, but insist the intent to steal did not begin until a later date than alleged thereby changing the charged amount. Therefore, the specification must be amended or a mutually agreeable deal may be lost. On the other hand, if a deal is reached, the amount charged can threaten a providence inquiry if counsel are not cognizant of how the amount was calculated. Even if counsel agree, during sentence deliberation, a military judge may attempt to confirm the total. If the military judge arrives at a different total and cannot resolve the total with counsel, and most importantly the accused, a mutually beneficial agreement can fail.
Second, in panel cases, exact amount charging can affect trial counsel credibility. If evidence of amount is incongruent with the charged amount, panel members may question case integrity. If an exact amount is charged, trial counsel should expect panel members to add totals. If the totals are off, this can unnecessarily affect trial counsel credibility.
Exact amount problems are avoided by drafting specifications using the language “over $1,000” or similar language to indicate an amount over $1,000. Not only does this alleviate problems with amount, it allows presentation of damning evidence. Trial counsel may still admit LES statements or travel pay amounts as relevant evidence of larceny or as aggravating evidence during sentencing and avoid imprecise mathematical calculations. Trial counsel retain credibility while amplifying the larceny.
IV. Evidence Presentation
For evidence presentation, it is recommended trial counsel focus on judicial notice, business records, absence of business records, public records, and attestation certificates. Furthermore, trial counsel must identify witnesses with the requisite knowledge of military pay systems and processes.
It is recommended trial counsel request judicial notice of pertinent JTR and FMR sections. Judicial notice educates panel members and allows trial counsel to refer to and request panel members review the relevant rules while deliberating. However, caution should be taken to not overload the panel. For example, chapter ten of the JTR, addressing housing allowances, is eighty-five pages. If the intent is to allow and remind the panel members the service member claimed an entitlement for an improper dependent, judicial notice should be sought for only Part B.
For the presentation of business records and accompanying attestation certificates, trial counsel must focus on the correct witness with knowledge of relevant finance systems. Different systems are used to maintain different pieces of pay and entitlement data. For example, LES statements are obtained through the Defense Joint Military Pay System (DJMPS). However, travel pay transactions are stored and retrieved through the Integrated Automated Travel System. Defense counsel may attack the foundation for a business record by challenging witness knowledge of the system and the trustworthiness of the record. These problems are avoided if trial counsel become educated on what systems are at issue and who can testify as to knowledge of the system as opposed to simply obtaining a document from finance.
V. Presenting a More Compelling Panel Case
While entitlement fraud cases may border on the mundane, trial counsel can tell a captivating story about the misconduct through evidentiary foundations. A recommended approach is to avoid filing a lengthy motion to pre-admit evidence. For example, when laying a business record foundation for a Form 5960, trial counsel may use the witness to discuss the steps to complete the form and the warnings the form provides for false information. This assists in creating a full picture of every step the accused took to commit the larceny, false statement, or false claim. In contrast, the pre-admission of evidence deprives the panel of the benefit of hearing the foundation. Thus, the panel may be deprived of details such as how the document was completed and what assistance was offered.
Second, pre-admitting most or all of the documentary evidence may raise cumulative presentation objections. For instance, if trial counsel pre-admits a Form 5960, defense counsel may object if the trial counsel then attempts to elicit testimony regarding the foundation for the document. Once again, this may result in panel members being deprived of details of the foundation that enhance the description of the alleged misconduct. Preserving the opportunity to elicit foundational testimony allows trial counsel to have witness testimony tell the story of the service member’s alleged misconduct. This, in turn, allows the trial counsel to construct and present a cohesive, comprehendible case.
For a new trial counsel, prosecuting entitlement fraud cases can be daunting and confusing with little assistance offered through secondary material. By analyzing the proper legal framework, trial counsel will be in a position to tailor the investigation to ensure effective pre-preferral evidence collection, which allows for focused command and prosecutorial objectives. By following this process, if and when a decision is made to go to trial, trial counsel will be able to draft appropriate charges, in-line with command and prosecutorial objectives, and use the evidence to present a captivating and winning case.
Appendix A. Example of and Rationale for a Recommended Charging Scheme
This example is based upon the following fact pattern: On 1 January 2017, Staff Sergeant (E-6) service member undergoes a PCS from Fort Bliss, Texas, to South Korea. The service member is married, but is serving an unaccompanied, dependent restricted tour. Upon in-processing, the service member attends a finance brief and completes a Department of the Army (DA) 5960 for BAH, a Department of Defense (DD) 1561 for FSA, and a DD 1351-2 for PCS travel expenses. On both the DA 5960 and the DD 1561, the service member lists he is married and lists a current address for his spouse in Brooklyn, New York 11201. Furthermore, he lists his spouse moved from El Paso, Texas 79835; however, she never actually left El Paso. The difference in BAH at the with-dependent rate for El Paso and New York is $2,712 per month ($4,128 for Brooklyn - $1,416 for El Paso). The service member also claimed $3,000 in travel expenses for his spouse’s alleged move to Brooklyn. At the time the suspected fraud is uncovered on 30 November 2017, the service member has been stationed in Korea for eleven months and has received $29,832 of BAH to which he is not entitled.
Trial counsel drafts the following charges:
CHARGE I – A violation of the UCMJ, Article 107
Specification 1: In that Staff Sergeant (E-6), U.S. Army, did, at or near Camp Humphreys, Republic of Korea, on or about 1 January 2017, with intent to deceive, sign official records, to wit: Department of the Army Form 5960, Authorization to Start, Stop, or Change Basic Allowance for Quarters (BAQ) and/or Variable Housing Allowance (VHA), and Department of Defense Form 1561, Statement to Substantiate Payment of Family Separation Allowance, which records were false in that his spouse’s current address was not Brooklyn, New York 11201, and was then known by the said Staff Sergeant (E-6) to be so false.
Specification 2: In that Staff Sergeant (E-6), U.S. Army, did, at or near Camp Humphreys, Republic of Korea, on or about 1 January 2017, with intent to deceive, sign an official record, to wit: Department of Defense Form 1351-2, Travel Voucher or Subvoucher, which record was totally false in that his spouse did not relocate from El Paso, Texas, to Brooklyn, New York, and was then known by the said Staff Sergeant (E-6) to be so false.
CHARGE II – A violation of the UCMJ, Article 121
Specification 1: In that Staff Sergeant (E-6), U.S. Army, did, at or near Camp Humphreys, Republic of Korea, on or about between 1 January 2017 and 30 November 2017, steal Basic Allowance for Housing, military property, of a value over $500, the property of the U.S. Army.
Specification 2: In that Staff Sergeant (E-6), U.S. Army, did, at or near Camp Humphreys, Republic of Korea, on or about 1 January 2017, steal travel pay entitlements, military property, of a value over $500, the property of the U.S. Army.
This type of charging scheme is recommended for the following reasons:
1. It avoids unnecessary UMC motions practice for false official statements.
2. It avoids unnecessary UMC motions practice for the false official statements and false claims.
3. It avoids specifications that will automatically result in an acquittal either by verdict or by operation of R.C.M. 917.
4. It eliminates problems associated with exact-amount charging.
5. It simplifies the government’s case while carrying the same maximum punishment, i.e., dishonorable discharge, confinement for 30 years, and forfeiture of all pay and allowances, that is likely after successful defense motions practice discussed in Appendix B.
6. Although rulings may differ from case to case, there will generally not be a UMC issue for the larceny and false official statement charges because they are considered distinct criminal acts.
Appendix B. Example of and Rationale for a Charging Scheme NOT Recommended
This example is based upon the same fact pattern listed in Appendix A.
CHARGE I - A violation of the UCMJ, Article 107
Specification 1: In that Staff Sergeant (E-6), U.S. Army, did, at or near Camp Humphreys, Republic of Korea, on or about 1 January 2017, with intent to deceive, sign an official record, to wit: Department of the Army Form 5960, Authorization to Start, Stop, or Change Basic Allowance for Quarters (BAQ) and/or Variable Housing Allowance (VHA), which record was false in that his spouse’s current address was not Brooklyn, New York 11201, and was then known by the said Staff Sergeant (E-6) to be so false.
Specification 2: In that Staff Sergeant (E-6), U.S. Army, did at or near Camp Humphreys, Republic of Korea, on or about 1 January 2017, with intent to deceive, sign an official record, to wit: Department of Defense Form 1561, Statement to Substantiate Payment of Family Separation Allowance, which record was false in that his spouse’s current address was not Brooklyn, New York 11201, and was then known by the said Staff Sergeant (E-6) to be so false.
Specification 3: In that Staff Sergeant (E-6), U.S. Army, did at or near Camp Humphreys, Republic of Korea, on or about 1 January 2017, with intent to deceive, sign an official record, to wit: Department of Defense Form 1351-2, Travel Voucher or Subvoucher, which record was totally false in that his spouse did not relocate from El Paso, Texas, to Brooklyn, New York, and was then known by the said Staff Sergeant (E-6) to be so false.
CHARGE II – A violation of the UCMJ, Article 121
Specification 1: In that Staff Sergeant (E-6), U.S. Army, did, at or near Camp Humphreys, Republic of Korea, on or about between 1 January 2017 and 30 November 2017, steal Basic Allowance for Housing, military property, of a value of $29,832, the property of the U.S. Army.
Specification 2: In that Staff Sergeant (E-6), U.S. Army, did, at or near Camp Humphreys, Republic of Korea, on or about between 1 January 2017 and 30 November 2017, steal Family Separation Allowance, military property, of a value of $2,750, the property of the U.S. Army.
Specification 3: In that Staff Sergeant (E-6), U.S. Army, did, at or near Camp Humphreys, Republic of Korea, on or about 1 January 2017, steal travel pay entitlements, military property, of a value of $3,000, the property of the U.S. Army.
CHARGE III – A violation of the UCMJ, Article 124
Specification 1: In that Staff Sergeant (E-6), did, at or near Camp Humphreys, Republic of Korea, on or about 1 January 2017, by preparing a DA Form 5960, Authorization to Start, Stop, or Change Basic Allowance for Quarters (BAQ) and/or Variable Housing Allowance (VHA), for presentation for payment, make a claim against the United States in the amount of $45,408 for Basic Allowance for Housing, which claim was false and fraudulent in the amount of $29,832 in that his spouse did not live in Brooklyn, New York 11201, and was then known by the said Staff Sergeant to be false and fraudulent.
Specification 2: In that Staff Sergeant (E-6), did, at or near Camp Humphreys, Republic of Korea, on or about 1 January 2017, by preparing a Department of Defense Form 1351-2, Travel Voucher or Subvoucher, for presentation for payment, make a claim against the United States in the amount of $3,000 for Travel Pay Entitlements, which claim was false and fraudulent in the amount of $2,750, in that his spouse did not travel from El Paso, Texas 79835 to Brooklyn, New York 11201, and was then known by the said Staff Sergeant to be false and fraudulent.
This type of charging scheme is not recommended for the following reasons:
1. Specifications 1 and 2 of Charge I allege false statements that were made at the same time and place and contained the same substance. Therefore, under a UMC analysis, it is highly likely these specifications will, at the very least, be merged for sentencing and possibly be merged into a single specification for findings. These two specifications lead to unnecessary motions practice, and a resulting merger will negate the prosecutorial benefit of arguing for a higher sentence.
2. The specifications of Charge II all allege exact amounts. This approach runs the risk of hindering plea negotiations and plea inquiries. Additionally, if any amount varies at a contested court-martial, trial counsel may lose credibility in front of a panel.
3. Specification 2 of Charge II will result in an acquittal either by verdict or operation of R.C.M. 917. FSA is paid at a flat rate of $250 per month regardless of dependent location. Although the service member may be convicted of a false official statement for listing an incorrect address, because he was separated from his spouse he is nonetheless entitled to FSA.
4. The Specifications of Charges I and II will likely be merged for sentencing. Under a UMC analysis, there is a high probability the defense can successfully argue that the charges and specifications are aimed at the same criminal act, misrepresent the service member’s criminality, and unfairly increase his punitive exposure. This will lead to unnecessary motions practice and the resulting merger will negate the prosecutorial benefit of arguing for a higher sentence.
5. The Specifications of Charge III create the aforementioned exact amount charging problems. It is unnecessary for trial counsel to create this problem for the following reasons:
(1) the false official statements which form the basis of the false claims can easily be proved;
(2) the false claim specifications allow for the same maximum punishment as the false official statement specifications; and
(3) it will create unnecessary motions practice.
6. Specification 2 of Charge III will result in an acquittal either by verdict of operation of R.C.M. 917. FSA is paid at a flat rate of $250 per month regardless of dependent location. Although the service member may be convicted of a false official statement for listing an incorrect address, because he was separated from his spouse he is nonetheless entitled to FSA.