#### UNITED STATES, Appellee, v. Keith A. WHITE, Private, U.S. Army, Appellant.

No. 67,274.

CM 9000583.

U.S. Court of Military Appeals.

Submitted Dec. 19, 1991.

Decided Sept. 14, 1992.

For Appellant: *Lieutenant Colonel James H. Weise, Captain Michael P. Moran, Captain Teresa L. Norris*(on pleadings).

For Appellee: *Captain Donna L. Barlett*(on pleadings).

PER CURIAM:

Appellant was tried by a general court-martial composed of a military judge sitting alone at Fort Hood, Texas. Contrary to his pleas, he was found guilty of attempted larceny, absence without leave (2 specifications), larceny (13 specifications), forgery (7 specifications), and wrongful possession and use of a military identification card, in violation of Articles 80, 86, 121,123, and 134, Uniform Code of Military Justice, 10 USC §§ 880, 886, 921, 923, and 934, respectively. On February 1, 1990, appellant was sentenced to a dishonorable discharge, confinement for 12 years, and total forfeitures. The convening authority *155approved the sentence on April 27, 1990, and the Court of Military Review affirmed on August 20, 1991.

This Court granted review on the following issue raised by counsel:

> WHETHER ADDITIONAL CHARGE IV, SPECIFICATIONS 2 AND 4, FAIL TO STATE AN OFFENSE BECAUSE THE DOCUMENTS IN QUESTION (BANK SIGNATURE CARD AND ACCOUNT AGREEMENT FORM) LACK LEGAL EFFICACY AND CANNOT BE THE SUBJECT OF FORGERY AS A MATTER OF LAW.

We hold that each of the above specifications states an offense under Article 123. *See generally United States v. Burnette,*35 MJ 58 (CMA 1992), *United States v. Ivey,*35 MJ 62 (CMA 1992).

Evidence in the record shows that on July 31, 1989, appellant stole a military identification card belonging to a fellow serviceman, Private First Class Johnson Buchanan. Appellant used this identification card to fraudulently open “Advantage Plus” checking accounts in Buchanan’s name. The accounts were opened by appellant’s making Buchanan’s signature on signature card and account application forms at different branches of the same bank.

On August 10, 1989, appellant opened a checking account at the First National Bank—Trimmier branch in Killeen, Texas. He did not deposit any funds into this account. However, the account opened was a direct deposit account which immediately provided him with $400.00 “overdraft privileges.” He was also given an automatic-teller-machine (ATM) card as part of this transaction which he used on August 11, 1989, to withdraw $400.00.

On August 16, 1989, appellant opened another checking account at the First National Bank—Gray Street branch in Killeen, Texas. He deposited no money in the second account but again received an ATM card and $400.00 overdraft protection. However, that “account was never activated and neither was the teller card.”

Appellant was found guilty of the following two specifications which are the subject of the granted issue:

> Specification 2: In that [appellant] did, at or near Killeen, Texas, on or about 10 August 1989, with intent to defraud, falsely make the signature of Johnson Buchanan on a bank signature card and an account agreement form, checking account number 13-3580-4, First National Bank, 2201 South Trimmier Road, Killeen, Texas, *which said writings would, if genuine, apparently operate to the legal harm of another.*

> Specification 4: In that [appellant] did, at or near Killeen, Texas, on or about 16 August 1989, with intent to defraud, falsely make the signature of Johnson Buchanan on a bank signature card and an account agreement form, checking account number 13-3513-8, First National Bank, 507 North Gray Street, Kilieen, Texas, *which said writings would, if genuine, apparently operate to the legal harm of another.*

(Emphasis added.)

He asserts for the first time on appeal that a “bank signature card and account agreement form” cannot as a matter of law be the subject of a forgery offense under Article 123. *See United States v. Hopwood,*30 MJ 146 (CMA 1990); *United States v. Thomas,*25 MJ 396, 401-02 (CMA 1988). We disagree.

Article 123 defines forgery as follows: Any person subject to this chapter who, with intent to defraud—

> (1) falsely makes or alters any signature to, or any part of, *any writing which would, if genuine, apparently impose a legal liability on another or change his legal right or liability to his prejudice;*or

> (2) utters, offers, issues, or transfers such a writing, known by him to be so made or altered; *156is guilty of forgery and shall be punished as a court-martial may direct.

(Emphasis added.)

Paragraph 48(c)(4), Part IV, Manual for Courts-Martial, United States, 1984, explains the President’s view of the type of writing which can be the proper subject of a forgery prosecution under Article 123. It states:

> (4) *Nature of writing.*The writing must be one which would, if genuine, apparently impose a legal liability on another, as a check or promissory note, or change that person’s legal rights or liabilities to that person’s prejudice, as a receipt. Some other instruments which may be the subject of forgery are orders for the delivery of money or goods, railroad tickets, and military orders directing travel. A writing falsely “made” includes an instrument that may be partially or entirely printed, engraved, written with a pencil, or made by photography or other device. A writing may be falsely “made” by materially altering an existing writing, by filling in a paper signed in blank, or by signing an instrument already written. *With respect to the apparent legal efficacy of the writing falsely made or altered, the writing must appear either on its face or from extrinsic facts to impose a legal liability on another, or to change a legal right or liability to the prejudice of another. If under all the circumstances the instrument has neither real nor apparent legal efficacy, there is no forgery.*Thus, the false making with intent to defraud of an instrument affirmatively invalid on its face is not forgery nor is the false making or altering, with the intent to defraud, of a writing which could not impose a legal liability, as a mere letter of introduction. However, the false making of another’s signature on an instrument with intent to defraud is forgery, even if there is no resemblance to the genuine signature and the name is misspelled.

(Emphasis added.)

We agree with this explanation of the military offense of forgery. *See United States v. Thomas, supra.*Moreover, we have previously held that a checking-account application may be the subject of a forgery prosecution if, under the circumstances of a particular case, the writing incurs legal liability for another. *See United States v. Burnette*and *United States v. Ivey,*both *supra.*Therefore, in view of the language of the above specifications which contain allegations of legal efficacy, we must conclude that each challenged specification states an offense.

Appellant also suggests that the prosecution failed to prove that the checking-account applications which he signed had legal efficacy. *See United States v. Hopwood*and *United States v. Thomas,*both *supra.*We note that this was a contested case and the prosecution introduced ample evidence on this point for each offense.

First, the signature card and account-agreement forms established the various types of legal obligations imposed on the bank and the account holder. *{See*Appendices A and B.) These responsibilities included, *inter alia,*a $10.00 maintenance fee for account balances below $25.00 and a $15.00 insufficient-funds fee for overdrawn accounts. *United States v. Burnette*and *United States v. Ivey,*both *supra.*Second, the testimony of representatives of the bank established that on each occasion appellant was apparently provided $400.00 credit in the form of overdraft protection and an ATM card to immediately access it. *See United States v. Noel,*11 USCMA 508, 29 CMR 324 (1960); *United States v. Addye,*7 USCMA 643, 23 CMR 107 (1957). In view of this evidence we hold that the prosecution met its burden of proof on this element of the military offense of forgery. *See generally United States v. Hart, 25*MJ 143 (CMA 1987), *cert. denied,*488 U.S. 830,109 S.Ct. 85,102 L.Ed.2d 61 (1988).

The decision of the United States Army Court of Military Review is affirmed.

*157APPENDIX A



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