UCMJ Article 123a: Making, Drawing, or Uttering a Check Without Sufficient Funds

A service member who writes a check knowing the account cannot cover it has not merely made a financial misstep. Under Article 123a of the Uniform Code of Military Justice, codified at 10 U.S.C. 923a, doing so with the required state of mind is a criminal offense. The article reaches checks, drafts, and money orders alike, and it turns on what the writer knew and intended at the moment the instrument left their hands. This is what the law actually requires, how the government proves it, and what separates a bounced check that is a banking problem from one that is a court-martial charge.

What the article covers

Article 123a remains a standalone punitive article of the UCMJ. It is sometimes assumed that the 2016 reforms folded the worthless-check offense into Article 123 (offenses concerning Government computers), but the statute at 10 U.S.C. 923a is in force and continues to define the bad-check offense in its own right.

The article describes a single course of conduct, making, drawing, uttering, or delivering a check, draft, or order for the payment of money, committed in either of two ways that the statute keeps separate:

For the procurement of any article or thing of value, with intent to defraud.
For the payment of any past-due obligation, or for any other purpose, with intent to deceive.

In both branches the accused must have known, at the time of writing, that there were not, or would not be, sufficient funds in or credit with the bank for payment of the instrument in full upon presentment. The act is complete when the check is proffered. Nothing the payee or the bank does afterward, and no later change of heart by the writer, undoes an offense that was finished the moment the worthless instrument changed hands.

The two mental states, and why the difference matters

The statute draws a line between intent to defraud and intent to deceive, and that line is the spine of the whole offense.

Intent to defraud is a purpose to cheat: to obtain an article or thing of value while depriving another of money or property, permanently or temporarily, by means of the worthless instrument. It is the more culpable state because the writer means to take something and leave the payee holding the loss.

Intent to deceive is a purpose to mislead: to create a false impression that funds exist, even where the writer hopes to make the instrument good later. A member who covers a past-due obligation with a check, knowing the account is empty but planning to deposit a paycheck before it clears, may lack the purpose to permanently cheat yet still possesses the purpose to mislead the payee about the state of the account.

The difference is not academic. It controls both the branch of the article charged and, as explained below, the maximum punishment. It also explains why two members who write identical bad checks can face very different exposure depending on what each one was actually trying to accomplish.

What the government must prove

For the intent-to-defraud branch, the prosecution must establish each of the following beyond a reasonable doubt:

That the accused made, drew, uttered, or delivered a check, draft, or order for the payment of money.
That the accused did so for the procurement of an article or thing of value.
That the act was done with intent to defraud.
That at the time, the accused knew that the maker or drawer did not or would not have sufficient funds in, or credit with, the depository for payment in full upon presentment.

The intent-to-deceive branch tracks the same structure, except that the instrument is passed for payment of a past-due obligation or another purpose and the operative purpose is to deceive rather than to defraud. The knowledge element is common to both branches and is, in practice, the element most often litigated.

Because intent and knowledge live inside the accused’s mind, the government almost always proves them by circumstantial evidence: bank records showing the balance when the check was written, prior overdraft or returned-check notices, the size of the gap between the check amount and the available balance, and any pattern of similar instruments. A check for fifty dollars against a forty-five dollar balance reads very differently from a five-thousand dollar check against a twelve dollar balance.

The statutory presumption and the five-day notice

Article 123a contains a built-in evidentiary rule that does much of the prosecution’s work. When a drawee refuses payment because of insufficient funds, that refusal is prima facie evidence both of the intent to defraud or deceive and of the accused’s knowledge that funds were insufficient.

That presumption is not absolute. It does not apply if the maker or drawer pays the holder the amount due within five days after receiving notice, orally or in writing, that the instrument was not paid on presentment. Prompt payment after notice therefore knocks out the statutory inference, though it does not by itself erase an offense that was already complete when the check was uttered with the required intent and knowledge.

Maximum punishment

The statute itself directs that violations be punished as a court-martial may direct; the ceilings are set by the Manual for Courts-Martial. Under the current Manual, the maximum punishment turns on the branch of the offense and, for the defraud branch, on the face amount of the instrument:

Procurement of an article or thing of value with intent to defraud, face amount more than $1,000: dishonorable discharge, forfeiture of all pay and allowances, and confinement for five years.
Procurement of an article or thing of value with intent to defraud, face amount of $1,000 or less: bad-conduct discharge, forfeiture of all pay and allowances, and confinement for six months.
Payment of a past-due obligation or any other purpose with intent to deceive: bad-conduct discharge, forfeiture of all pay and allowances, and confinement for six months.

The $1,000 dividing line for the defraud branch is significant. It is the difference between a six-month, bad-conduct-discharge offense and a five-year, dishonorable-discharge one, and it is set by the value of what the worthless check was used to obtain. For offenses committed on or after 27 December 2023, the military judge imposes the sentence under the segmented-sentencing and sentencing-parameters regime, which a practitioner should confirm against the current Manual for the applicable category.

Defenses

Several defenses go to the heart of the offense rather than to mitigation:

Lack of knowledge. If the accused genuinely and reasonably believed the funds were available, for example because a deposit was reasonably believed to have cleared, the knowledge element fails.
Lack of the required intent. A concrete, realistic plan to cover the instrument before presentment can negate intent to defraud, and in some circumstances intent to deceive.
Conditional delivery. Where the check was handed over under an actual agreement that it would not be presented until funds were deposited, that agreement, not an unspoken hope that the payee would wait, can defeat liability.
Postdating. A check explicitly dated for a future date, with the payee aware of the postdating, is not a present representation that funds exist now; a payee who presents it early acts contrary to the agreement.

Joint accounts add a recurring complication. When a spouse or co-holder can also write checks and make deposits, the government must prove that this accused, not the co-holder, knew funds were insufficient when the instrument was passed. A member who reasonably relied on a co-holder’s deposit may lack the knowledge the statute requires, although a member who knows the account is chronically overdrawn cannot credibly claim surprise.

Worthless-check conduct rarely travels alone. It may appear alongside forgery under Article 105 when the instrument itself is falsified, larceny under Article 121 when the broader scheme is theft, or false official statements under Article 107 when the member lies to investigators about the account. Many cases never reach a court-martial at all: commanders frequently resolve first-time, small-amount incidents through nonjudicial punishment under Article 15, administrative measures, or counseling, particularly where the member makes restitution. Restitution is not a defense, because the offense is complete on uttering, but it is a powerful factor in disposition and in sentencing, where prompt and full repayment weighs in the accused’s favor and a refusal to repay when able weighs against.

Sources

10 U.S.C. 923a (Article 123a, Making, drawing, or uttering a check without sufficient funds), via the Legal Information Institute: https://www.law.cornell.edu/uscode/text/10/923a
Manual for Courts-Martial, United States, Part IV, Punitive Articles, Article 123a (elements, the prima facie presumption and five-day notice rule, and the value-tiered maximum punishments), published by the Joint Service Committee on Military Justice: https://jsc.defense.gov/
CAAF Digest, Core Criminal Law Subjects: Crimes, Article 123a, U.S. Court of Appeals for the Armed Forces: https://www.armfor.uscourts.gov/digest/IIIA49.htm

This article is for general informational purposes only and is not legal advice. It describes military law and procedure of public record, does not address any individual case, and does not create an attorney-client relationship.