UNITED STATES ARMY COURT 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, 101st Airborne Division (Air Assault) and Fort Campbell 

Timothy Grammel , Military Judge 

Lieutenant Colonel Jeff A. Bovarnick, Staff Judge Advocate 

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M. 

Jamison, JA; Major Richard E. Gorini, JA; Lieutenant Colonel Charles C. Choi, JA 

(on brief). 

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel, 

JA; Captain Daniel D. Maurer, JA (on brief). 

24 May 2013 

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SUMMARY DISPOSITION 

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Per Curiam: 

 A military judge sitting as a general court-martial, convicted appellant, 

pursuant to his 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 military property of a value more than 

$500.00 in violation of Articles 107 and 121, Uniform Code of Military Justice, 10 

U.S.C. §§ 907 and 921 (2006) [hereinafter UCMJ]. The military judge sentenced 

appellant to a bad-conduct discharge, confinement 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, UCMJ. Appellant 

asserts that the military judge erred by accepting his plea to larceny of over $500.00 

of military property when he providently pled only to larceny of less than $500.00 of 
HINES — ARMY 20120024 

2

military property. We agree and find that appellant providently pleaded guilty to 

larceny and wrongful appropriation of military property of a value less than $500.00 

under the circumstances. 

 On 27 May 2008, while he was stationed at Fort Bragg, North Carolina, 

appellant’s divorce became final. Because he had no other dependents, on that date 

appellant was no longer entitled to receive Basic Allowance for Housing at the withdependent rate (BAH-WITH). However, appellant 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 Fort Bragg, he deployed to Afghanistan 

from 21 April 2009 to 8 June 2010. When he arrived in Afghanistan, appellant 

completed a DD Form 1561, “Statement to Substantiate Payment of Family 

Separation Allowance.” On this form, he falsely certified that he was not divorced 

or legally separated from his spouse. As a result, each month, appellant received 

Family Separation Allowance (FSA) during his fourteen-month deployment, despite 

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

 Upon arrival at Fort Campbell on 20 October 2010, appellant submitted a DA 

Form 5960, “Authorization to Start, Stop, or Change Basic 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 offenses 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 alleged, both the stipulation of fact and providence inquiry 

reveal that appellant understood he was entitled to receive the BAH withoutdependent rate for the period in question; that the difference between the with and 

without-dependent rate is less than $500.00 per month; and that the amount of FSA 

received was less than $500.00 per month. 

 

1

 If we exclude forfeitures: The maximum punishment for larceny of military 

property over $500.00 includes a dishonorable discharge and ten years confinement. 

The maximum for larceny of $500.00 or less includes a bad-conduct discharge and 1 

year confinement. The maximum punishment for wrongful appropriation of military 

property of more than $500.00 includes a bad-conduct discharge and six months 

confinement; that of wrongful 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 entitled to the BAH without-dependent rate. During the 

providence inquiry appellant repeatedly stated that he understood that he was not 

entitled to BAH-WITH in a fashion expressing the understanding that he was entitled 

to BAH without-dependent rate. The judge never satisfactorily resolved the 

inconsistency between appellant’s pleas to the entire amount in light of his apparent 

entitlement to a lesser amount. The only thing the judge established was that 

appellant never properly applied for the allowance at the without-dependent rate. 

 We reject the approach of the Navy and Marine Corps Court of Criminal 

Appeals and find that theft of BAH, under these circumstances, 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) (describing this type of theft as a continuing larceny of 

an aggregated amount).2

 “For an accused to be convicted of larceny of property 

having a value of over [$500.00], the record must show either that one item of the 

property stolen has such a value or that several items taken at substantially the same 

time and place have such an aggregate value.” United States v. Christensen, 45 

M.J. 617, 619 (Army Ct. Crim. 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 satisfactorily admitted to a single larceny in an amount over $500.00 

and only providently admitted to a series of separate larcenies each in an amount 

less than $500.00 and each, at a month apart, at substantially different times. 

Therefore, we approve findings of guilty to reflect 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 months to 12 years, 3 months, under the specific 

circumstances of this case, a rehearing on sentence 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 the lesser amount of money. 

Reassessing the sentence on the basis of the errors noted, the entire record, and in 

 

2

 Decisions of our superior court relied upon by our sister court reveal cases where 

the appellant took monthly amounts that were 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 divers occasions, for example, 

the maximum punishment is defined by reference to the standard articulated in 

Rupert. We find the situation here to be analogous. 
HINES — ARMY 20120024 

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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 identified by Judge Baker in his 

concurring opinion in Moffeit, we are confident that appellant 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 Specification 1 of Charge II as states that 

appellant “[d]id at or near Fort Campbell, Kentucky, between on or about 19 October 

2010 and on or about 18 April 2011, steal Basic Allowance for Housing 

entitlements, military property, of a value of less than $500.00, the property of the 

United States”; as to Specification 2 of Charge II as states appellant “[d]id, at or 

near Bagram Airfield, Afghanistan, and at or near Forward Operating Base Gardez, 

Afghanistan, between on or about 21 April 2009 and on or about 8 June 2010, steal 

Family Separation Allowance entitlements, military property, of a value less than 

$500.00, the property of the United States”; and as to Specification 3 of Charge II as 

states appellant “[d]id, at or near Fort Bragg, North Carolina, and at or near Bagram, 

Airfield, Afghanistan, and at or near Forward Operating Base Gardez, Afghanistan, 

between on or about 27 May 2008 and on or about 18 October 2010, wrongfully 

appropriate Basic Allowance for Housing entitlements, military property, of a value 

of less than $500.00, the property of the United States.” The remaining 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: