Article 121 | Larceny and Wrongful Appropriation

Facing an Article 121 Charge for Larceny or Wrongful Appropriation?  You’re probably worried about your future and what can go wrong.  Don’t go it alone.  Military Law Center can help.

The Manual for Courts-Martial, under Article 121 (10 U.S.C. 921), prohibits any service member from wrongfully taking, obtaining, or withholding any money or personal property of another with the intent to permanently or temporarily deprive that person of their property.

Theft offenses, such as larceny and wrongful appropriation, under Article 121 can be proven by the government at court-martial or administrative hearing by showing the service member stole property with an intent to permanently deprive the owner of its use or wrongfully obtain property with an intent to temporarily deprive the owner of its use.

The critical difference between the two allegations deals with whether the intent is to permanently or temporarily take the property or money.

Larceny:

Any person subject to the UCMJ who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or of any other person any money, personal property, or article of value of any kind with intent to permanently deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, steals that property and is guilty of larceny.

Wrongful Appropriation:

Any person subject to the UCMJ who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or of any other person any money, personal property, or article of value of any kind with intent to temporarily deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, is guilty of wrongful appropriation.

The terms found within the statute above in Article 121 have specific definitions.  The following definitions apply:

Generally: A wrongful taking with intent to permanently to deprive includes the common law offense of larceny; a wrongful obtaining with intent permanently to defraud includes the offense formerly known as obtaining by false pretense; and a wrongful withholding with intent permanently to appropriate includes the offense formerly known as embezzlement.  Any of the various types of larceny under Article 121 may be charged and proved under a specification alleging that the accused did steal the property in question.

Taking, Obtaining, or Withholding: There must be a taking, obtaining, or withholding of the property by the thief.

Owner: Owner refers to the person who, at the time of the taking, obtaining, or withholding, had the superior right to possession of the property in the light of all conflicting interests therein which may be involved in the particular case.

Person: Person, as used in referring to one from whose possession property has been taken, obtained, or withheld, and to any owner of property, includes (in addition to a natural person) a government, a corporation, an association, an organization, and an estate.  Such a person need not be a legal entity.

Intent: The offense of larceny requires that the taking, obtaining, or withholding by the thief by accompanied by an intent permanently to deprive or defraud another of the use and benefit of property or permanently to appropriate the properly to the thief’s own use or the use of any person other than the owner.  These intents are collectively called an intent to steal.  

• An intent to steal may be proved by circumstantial evidence.
• Motive does not negate intent.
• An intent to pay for or replace the stolen property is not a defense, even if that intent existed at the time of the theft.

Return of Property Not a Defense: Once a larceny is committed, a return of the property or payment for it is no defense.

Pursuant to Rule for Court-Martial 305, a Commanding Officer may order a service member into pretrial confinement for allegedly stealing personal property under Article 121.  The Commanding Officer may place the service member in the brig, not as punishment, but to protect society from the necessary risk of the accused committing another offense.

Attorneys at the Military Law Center help those confined in the brig pretrial seek release at their Initial Review Officer (IRO) hearing.  At an IRO hearing, a neutral and detached officer shall review the probable cause determination and necessity for continued pretrial confinement.  The IRO will consider whether:

• An Article 121 offense triable by court-martial has been committed;
• The confine committed it;
• Confinement is necessary because it is foreseeable that:
  • The confine will not appear at trial, pretrial hearing, or preliminary hearing; or
  • The confine will engage in serious criminal misconduct; and
• Less severe forms of restraint are inadequate.

As an accused, you have the right to require your command present a preponderance of evidence at the IRO hearing to prove why you should remain in pretrial confinement.  Working with experienced larceny attorneys for IRO hearings is the first step to showing your command you will fight for your freedom!

An Article 121 charge is serious, can stop a military career, and even warrant brig time.  But there are defenses available to fight the accusation:

• Mistake of Fact: 
  If a reasonable person would have believed they had permission to take certain property, there may be a defense to defeat the wrongfulness element of the offense.
• Alibi:
  “Alibi” means that the accused could not have committed the offense charged because the accused was at another place when the offense occurred.  As this defense allows the accused to show he or she was not the person who took the property at a certain time or place, the government will be unable to meet its burden of proof.  The burden remains on the prosecution to demonstrate the accused’s guilt.

The Department of Defense provides a tax-free stipend for service members to afford the area in which they are stationed, known as Basic Allowance for Housing (BAH).  As service members move from high cost of living areas to lower cost of living areas, there is a temptation to try to justify keeping the higher BAH.  But during an audit, service members are often flagged for further review if the numbers do not line up.  This is where working with a BAH Fraud attorney can help.

The maximum punishment for Article 121 is a dishonorable discharge, confinement for 10 years, total forfeitures of pay and allowances, reduction in rank to E-1, and other lawful punishments.

Larceny

• Dishonorable Discharge or Dismissal (Officers)

• Confinement for 10 Years

• Total Forfeitures

• Reduction in Rank to E-1

Wrongful Appropriation

• Dishonorable Discharge or Dismissal (Officers)

• Confinement for 2 Years

• Total Forfeitures

• Reduction in Rank to E-1

The potential penalties for larceny and wrongful appropriation offenses in the military under Article 121 vary on the seriousness of the offense. A court-martial can impose a range of punishments, including:

• Confinement: The accused may face imprisonment for a specific period determined by the court-martial.
• Reduction in rank: This could involve a demotion to a lower enlisted grade or officer rank.
• Forfeiture of pay and allowances: The accused may lose a portion of their military pay and benefits.
• Bad-conduct discharge: This is a less severe form of separation with a negative characterization, potentially impacting future employment opportunities and veteran benefits.
• Reprimand or admonition: These are non-judicial punishments involving official censure of the accused’s actions.

The specific maximum punishment for an Article 121 offense will depend on how the government presents its case and how many separate specifications the accused is facing.  Our attorneys at the Military Law Center can help provide a maximum punishment for your case during a free consultation.

The military has the option of charging an accused with theft offenses at a court martial or choosing to use the administrative separation board process.  All military services prohibit larceny and wrongful appropriation.  An ADSEP Board for Article 121 offenses is a more challenging environment for an accused to win because the burden of proof is far lower than that required at a court martial.  

Despite the easier burden for the government, attorneys at the Military Law Center have successfully defended service members facing allegations of theft offenses.  With diligent investigation and excellent courtroom presence, our attorneys have defeated these allegations in the past.  By strategically planning a defense, preparing early, and critically analyzing the evidence, our ADSEP Board lawyers can help get your military career back on track.

When a service member is arrested for larceny or wrongful appropriation or becomes “titled” in a law enforcement investigation, their security clearance may be in jeopardy.  Service members may receive a Request for Supplemental Information (RSI) from the Defense Counterintelligence and Security Agency (DSCA).  DSCA is required to review a service member’s eligibility for an active security clearance when they are charged with or convicted of any criminal offenses (excluding traffic violations that do not involve alcohol or drugs, resulting in fines less than $300) since the last investigation pursuant to DoDM 5200.02. 

As any response to DSCA may be used against a service member later at an ADSEP Board or court martial, it is paramount to consult with a qualified military law attorney with experience with security clearance issues.  Effective responses to a request for supplemental information will use the 2017 National Security Adjudicative Guidelines, Security Executive Agent Directive 4.

An Article 121 arrest and conviction can have devastating consequences beyond the courtroom. It can damage your reputation within the military, stall your career progression, and potentially hinder future job opportunities in the civilian sector.  It may also hinder your ability to get financial loans in the future.

Additionally, service members may be precluded from ownership, receipt, or transport of any firearm that has been transported in interstate or foreign commerce under 18 U.S.C. § 922(g)(6) when the accused separates from the military with a dishonorable discharge or is punished with more than one year of confinement.

Facing an Article 121 accusation for larceny or other theft offenses can be frustrating, stressful, and oftentimes a distressing experience. At Military Law Center, our attorneys understand the challenges you’re facing, and we’re here to help. Here’s what sets us apart:

• Experienced Military Defense Lawyers:
  Our team is comprised of former military judge advocates (JAGs) with a deep understanding of military law and the UCMJ. We’ve successfully defended countless service members facing all kinds of allegations, and we know how to litigate the complexities of military justice from start to finish.
• Personalized Attention:
  We care for every client as an individual. We’ll take the time to understand your specific situation and develop a personalized defense strategy, to include rehabilitation options, designed to achieve the best possible outcome.
• Aggressively Protecting Your Rights:
  We’re committed to fighting for your rights and ensuring you receive fair treatment throughout the legal process. We’ll explore all available defenses and work tirelessly to protect your career and reputation.
• Clear Communication:
  We understand legal terms can be confusing. We’ll keep you informed about the progress of your case and explain everything in clear, understandable terms.
• Free Consultation:
  We offer a free consultation to discuss your situation and answer any questions you may have. This allows you to make informed decisions about your defense strategy.

Don’t Face Article 121 Allegations Alone. Military Law Center Can Help.

An Article 121 charge can take away your gun rights and security clearance, stall your military career, and damage your personal and professional reputation. But you don’t have to fight by yourself. Military Law Center has a proven track record of successfully defending service members facing the most serious charges and getting them the rehabilitative help they need. Our experienced military law attorneys understand the military justice system and will work tirelessly to protect your rights and achieve the best possible outcome for your case.

Contact Military Law Center today for a free consultation.
We’ll stand by your side and fight for you.

Call Us Today – (760) 536-9038