## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before YOB, KRAUSS, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant SHAWN M. HINES United States Army, Appellant

ARMY 20120024

Headquarters, 101 st Airborne Division (Air Assault) and Fort Campbell Timothy Grammel , Military Judge

Lieutenant Colonel Jeff A. Bova rnick, Staff Judge Advocate

For Appellant: Colonel Patr icia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E. Gorini, JA; Lieutenant Colonel Ch arles C. Choi, JA (on brief).

For Appellee: Li eutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel, JA; Captain Daniel D. Maurer, JA (on brief).

24 May 2013

---------------------------------- SUMMARY DISPOSITION

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Per Curiam:

A military judge sitting as a general court-martial, convicted appellant, pursuant to hi s pleas, of two specifications of false official statement, two specifications of larceny of military property of a value more than $500.00, and one specification of wrongful appropriation of m ilitary property of a value more than $500.00 in violation of Articl es 107 and 121, Unif orm Code of Milit ary Justice, 10 U.S.C. §§ 907 and 921 (2006) [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, conf inement for three months, total forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening authority approved all but the forfeitures of the adjudged sentence.

This case is before the court for review under Article 66, UC MJ. Appellant asserts that the military j udge erred by accepting his plea to lar ceny of over $500.00 of military property when he providently pled only to la rceny of less than $500.00 ofHINES — ARMY 20120024

2 military property. We agree and find that appellan t providently pleaded guilty to larceny and wrongful ap propriation of military property of a value less than $500.00

under the circumst ances.

On 27 May 2008, while he was statio ned at Fort Bragg, North Carolina, appellant’s divorce became fina l. Because he had no othe r dependents, on that date appellant was no longer entitle d to receive Basic Allowance for Housing at the withdependent rate (BAH-WITH). However, ap pellant failed to present his divorce decree to the proper authorities and as a result, he continued to receive BAH-WITH each month until 19 October 2010, when he arrived on Permanent Change of Station (PCS) at Fort Campbell, Kentucky.

While appellant was still stationed at Fo rt Bragg, he deploy ed to Afghanistan from 21 April 2009 to 8 June 2010. When he arrived in Afghanista n, appellant completed a DD Form 1561, “Statement to Substantiate Payment of Family Separation Allowance.” On this form, he fals ely certified that he was not divorced or legally separated from hi s spouse. As a result, each month, appellant received Family Separation Allowanc e (FSA) during his fourteen -month deployment, despite

the fact that he did not have any dependents at the time.

Upon arrival at Fort Ca mpbell on 20 October 2010 , appellant submitted a DA Form 5960, “Authorization to Start, Stop, or Change Ba sic Allowance for Quarters” and a DD Form 1351-2, “Travel Voucher.” On both documents, he falsely indicated

that he was married. As a result, appellant received BAH-WITH each month from 19 October 2010 until 18 April 2011.

The government charged each of the o ffenses described above as continuing crimes, aggregating the total amount of money involved to allege larceny and wrongful appropriation in an amount over $500.00. 1 While the accused admitted to taking the amounts alle ged, both the stipul ation of fact and providence inquiry reveal that appellant und erstood he was entitled to receive the BAH withoutdependent rate for the period in question; that the di fference between the with and without-dependent rate is le ss than $500.00 per month; and that the amount of FSA

received was less than $500.00 per month.

1 If we exclude forfeitu res: The maxi mum punishment for la rceny of military property over $500.00 includes a dishonorab le discharge and ten years confinement. The maximum for larceny of $500.00 or less includes a bad-cond uct discharge and 1 year confinement. The maximum punishment for wrongful appropr iation of military property of more than $50 0.00 includes a bad-conduct discharge and six months confinement; that of wrongf ul appropriation of less than $500.00 is only 3 months

confinement.HINES — ARMY 20120024

3 The stipulation of fact states that at both Fort Bragg and Fort Campbell appellant would have been en titled to the BAH without-dep endent rate. During the providence inquiry appe llant repeatedly stated that he understood that he was not

entitled to BAH-WITH in a fa shion expressing the understanding that he was entitled to BAH without-dependent rate. The judge never satisfactorily resolved the inconsistency between a ppellant’s pleas to th e entire amount in li ght of his apparent

entitlement to a lesser am ount. The only th ing the judge esta blished was that appellant never properly applied for the allo wance at the without-de pendent rate.

We reject the approach of the Navy and Marine Corps C ourt of Criminal Appeals and find that theft of BAH, un der these circumstan ces, amounts to a separate larceny each month the money is received. See United States v. Rupert , 25 M.J. 531, 532 (A.C.M.R. 1987); contra United States v. Lepresti , 52 M.J. 644, 653 (N.M. Ct. Crim. App. 1999) (des cribing this type of theft as a continuing larceny of an aggregated amount). 2 “For an accused to be convi cted of larce ny of property having a value of over [$500. 00], the record must show ei ther that one item of the property stolen has such a va lue or that several items take n at substantially the same time and place have such an aggregate value.” United States v. Christensen , 45 M.J. 617, 619 (Army Ct. Cr im. App. 1997) (quoting Rupert , 25 M.J. at 532). See also United States v. Harding , 61 M.J 526, 528 (Army Ct. Crim. App. 2005). Here appellant never satisfact orily admitted to a single larceny in an amount over $500.00 and only providently admitted to a series of separate la rcenies each in an amount less than $500.00 and ea ch, at a month apart, at substant ially differe nt times. Therefore, we approve fi ndings of guilty to re flect that lower amount. Id. 3 ; United States v. Hayes , 70 M.J. 454, 458 (C.A.A.F. 2012); United States v. Phillippe , 63 M.J. 307, 309 (C.A.A.F. 2006); UCMJ art. 45 (a); Rule for Court- Martial [hereinafter R.C.M.] 910(h)(2).

Though the maximum amount of confinement available to impose is therefore reduced from 30 years, 6 m onths to 12 years, 3 mont hs, under th e specific

circumstances of this ca se, a rehearing on sent ence is unwarranted. United States v.

Sales , 22 M.J. 305 (C.M.A. 1986) . The aggravating factor of the total amount of money taken was properly before the court-martial, and appellant received punishment far below the maximum authorized at th e lesser amount of money. Reassessing the sentence on the basis of the er rors noted, the entir e record, and in

2 Decisions of our superior court relied upon by our sister court reveal cases where the appellant took m onthly amounts that we re each in excess of the value necessary to warrant the greater maximum punishment authorized. See United States v. Helms

, 47 M.J. 1, 2 (C.A.A.F. 1997); United States v. Bulger , 41 M.J. 194 (C.M.A. 1994).

3 When the government alleges separate larcenies on dive rs occasions, for example, the maximum punishment is defined by refe rence to the standa rd articulated in Rupert . We find the situation he re to be analogous.HINES — ARMY 20120024

4 accordance with the principles of Sales , 22 M.J. 305, and United States v. Moffeit

, 63 M.J. 40 (C.A.A.F. 2006), to include the factors identifi ed by Judge Baker in his concurring opinion in Moffeit , we are confident that appe llant would have received a

sentence at least as severe as that approved.

CONCLUSION

We have examined the entire record and the parties’ briefs. We affirm only so much of the findings of guilty to Spec ification 1 of Charge II as states that appellant “[d]id at or near Fort Campbell, Ke ntucky, between on or about 19 October

2010 and on or about 18 April 2011, steal Basic Allowance fo r Housing entitlements, milit ary property, of a valu e of less than $500.00, the proper ty of the United States”; as to Specification 2 of Charge II as states appellan t “[d]id, at or near Bagram Airfield, Afghani stan, and at or n ear Forward Operating Base Gardez, Afghanistan, between on or about 21 April 2009 and on or about 8 June 2010, steal Family Separation Allowanc e entitlements, milit ary property, of a value less than $500.00, the property of the United States”; an d as to Specification 3 of Charge II as states appellant “[d]id, at or near Fort Bragg, North Carolin a, and at or near Bagram, Airfield, Afghanistan, and at or near Forward Operating Base Gardez, Afghanistan,

between on or about 27 Ma y 2008 and on or about 18 October 2010, wrongfully appropriate Basic Allowance for Housing en titlements, mi litary property, of a value of less than $500.00, the property of the United Stat es.” The remain ing findings of guilty and the sentence are AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: