UCMJ Article 123a: Making, Drawing, or Uttering a Check Without Sufficient Funds
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Article 123a makes a bad check a crime when, at the moment the check is written or passed, the person knows it will not be covered and acts with intent to defraud or intent to deceive. A check used to obtain something of value with intent to defraud is punishable by up to 5 years if its face amount is more than $1,000, and 6 months if $1,000 or less; a check used to pay a past-due debt with intent to deceive, 6 months.
Two branches of § 923a
Under 10 U.S.C. § 923a, the offense is making, drawing, uttering, or delivering a check, draft, or order for the payment of money, “knowing at the time that the maker or drawer has not or will not have sufficient funds in, or credit with, the bank or other depository for the payment of that check, draft, or order in full upon its presentment,” either:
- “for the procurement of any article or thing of value, with intent to defraud”; or
- “for the payment of any past due obligation, or for any other purpose, with intent to deceive.”
Who can commit it, and with what
The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 70.c, answers several practical questions:
- The person passing the check need not have written it. Uttering or delivering a check the person knows is worthless can violate the article even if someone else drew it (¶ 70.c(4)).
- Nothing has to be obtained. “For the procurement” means for the purpose of obtaining something of value; the thing need not actually be obtained (¶ 70.c(5)).
- Postdated checks are included. A postdated check delivered under an installment contract as payment for a future installment can violate the article if made with the required intent and knowledge (¶ 70.c(7)).
- Garnished funds do not count. “Sufficient funds” means a balance at presentment at least equal to the face amount and not made unavailable by garnishment, attachment, or other legal process (¶ 70.c(11)).
- A nonexistent bank is covered. Writing a check on a bank where the accused has no account, or on a bank that does not exist, is an absence of credit (¶ 70.c(12)).
Two intents, defined
Intent to defraud means intending to obtain something of value through a misrepresentation and apply it to one’s own or another’s use, “either permanently or temporarily” (¶ 70.c(14)).
Intent to deceive means intending “to mislead, cheat, or trick another by means of a misrepresentation made for the purpose of gaining an advantage” for oneself or another, or of disadvantaging the person misled (¶ 70.c(15)).
The intent and the knowledge must both exist when the check is written or passed. If they can be shown for that moment, proof that the check was presented and refused is not even required, as with a check on a nonexistent bank (¶ 70.c(16)).
The five-day rule
Section 923a contains a statutory rule of evidence. If the maker or drawer fails to pay the holder the amount due within 5 days after receiving oral or written notice that the check was returned for insufficient funds, that failure is prima facie evidence of both the intent to defraud or deceive and the knowledge of insufficient funds (¶ 70.c(17)).
Paying within the 5 days, or the holder’s failure to give notice, takes the inference away from the prosecution. It “does not preclude conviction of this offense if all the elements are otherwise proved.” Paying promptly is therefore not a defense, but it removes the government’s easiest route to proving intent and knowledge. Honest mistake is an affirmative defense under R.C.M. 916(j) (¶ 70.c(18)).
Face amount and intent set the maximum
From ¶ 70.d:
| Purpose and intent | Face amount | Maximum |
|---|---|---|
| To obtain something of value, intent to defraud | $1,000 or less | Bad-conduct discharge, forfeiture of all pay and allowances, 6 months |
| To obtain something of value, intent to defraud | More than $1,000 | Dishonorable discharge, forfeiture of all pay and allowances, 5 years |
| To pay a past-due obligation or for any other purpose, intent to deceive | Any | Bad-conduct discharge, forfeiture of all pay and allowances, 6 months |
The $1,000 line is measured by the face amount of the check, not by the value of whatever the check was used to obtain.
When there was no intent at the time
A check written in good faith that later bounces because the writer dishonorably failed to keep enough money in the account is a different offense: an enumerated Article 134 offense (MCM ¶ 94), which requires proof that the failure was dishonorable and that the conduct was prejudicial to good order and discipline or service-discrediting. Its maximum is a bad-conduct discharge, forfeiture of all pay and allowances, and 6 months. Failing to pay a debt, without a bad check, is addressed under Article 134, dishonorably failing to pay just debts. A forged check is forgery under Article 105, and a scheme to take property can bring larceny under Article 121.
Sources
- 10 U.S.C. § 923a, Article 123a, Making, drawing, or uttering check, draft, or order without sufficient funds (Cornell LII)
- Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 70 and ¶ 94; Part II, R.C.M. 916(j)
General information about military law, not legal advice for any individual case.