Article 134 — Check, worthless making and uttering – by dishonorably failing to maintain funds

Part IV · Punitive Articles

Article 134. Check, worthless making and uttering – by dishonorably failing to maintain funds · MCM ¶ 94

2024 Manual for Courts-Martial, United States

(a) Text of statute. See paragraph 91.

(b) Elements.

(1) That the accused made and uttered a certain check;

(2) That the check was made and uttered for the purchase of a certain thing, in payment of a debt, or for a certain purpose;

(3) That the accused subsequently failed to place or maintain sufficient funds in or credit with the drawee bank for payment of the check in full upon its presentment for payment;

(4) That this failure was dishonorable; and

(5) That, under the circumstances, the conduct of the accused was either: (i) to the prejudice of good order and discipline in the armed forces; (ii) was of a nature to bring discredit upon the armed forces; or (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

(c) Explanation. This offense differs from an Article 123a offense (paragraph 70) in that there need be no intent to defraud or deceive at the time of making, drawing, uttering, or delivery, and that the accused need not know at that time that the accused did not or would not have sufficient funds for payment. The gist of the offense lies in the conduct of the accused after uttering the instrument. Mere negligence in maintaining one’s bank balance is insufficient for this offense, for the accused’s conduct must reflect bad faith or gross indifference in this regard. As in the offense of dishonorable failure to pay debts (see paragraph 96), dishonorable conduct of the accused is necessary, and the other principles discussed in paragraph 96 also apply here.

(d) Maximum punishment. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.

(e) Sample specification. In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____ 20 __, make and utter to __________ a certain check, in words and figures as follows, to wit: __________, (for the purchase of __________) (in payment of a debt) (for the purpose of __________), and did thereafter dishonorably fail to (place) (maintain) sufficient funds in the __________ Bank for payment of such check in full upon its presentment for payment, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).

Information on this tab is reproduced from the U.S. Army Military Judges’ Benchbook (Electronic Benchbook v2.70, updated 2026-05-26). It is for informational purposes only to compare to the text on the Manual for Courts-Martial on the MCM tab. Always check the current EBB to make sure you’re reviewing the most recent information.

3a-94-1CHECK-WORTHLESS-MAKING AND UTTERING-BY DISHONORABLY FAILING TO MAINTAIN SUFFICIENT FUNDS

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.

Maximum punishment

BCD, TF, 6 months, E-1 (if “mega-spec” alleged, See US v. Mincey, 42 MJ 376 (CAAF 1995), and US v. Meixueiro, 73 MJ 536 (ACCA 2013)). (Category 1)

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, make and utter to __________ a certain check, in words and figures as follows, to wit: __________, (for the purchase of __________) (in payment of a debt) (for the purpose of __________), and did thereafter dishonorably fail to (place) (maintain) sufficient funds in the __________ Bank for payment of such check in full upon its presentment for payment, and that such conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).

Elements

(1) That (state the time and place alleged), the accused made and uttered a certain check, to wit: (here describe the check, or, if it is set forth in the specification, refer to it);

(2) That the check was made and uttered (for the purchase of __________) (in payment of a debt) (for the purpose of __________);

(3) That the accused subsequently failed to place or maintain sufficient funds in or credit with the (state the name of the bank or other depository) for payment of the check in full upon its presentment for payment;

(4) That this failure was dishonorable; and

(5) That, under the circumstances, the conduct of the accused was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces).

Definitions & other instructions

(“Conduct prejudicial to good order and discipline” is conduct which causes a reasonably direct and obvious injury to good order and discipline.)

(“Service discrediting conduct” is conduct which tends to harm the reputation of the service or lower it in public esteem.)

“Made” means the act of writing and signing the check.

“Uttered” means to transfer or offer to transfer the check to another.

“Upon its presentment” means the time when the check is presented for payment to the (bank) (depository) which on the face of the check has the responsibility to pay the sum indicated.

Mere negligence, that is the absence of due care in maintaining one’s bank account, is not enough to convict of this offense. The accused’s conduct in maintaining (his) (her) bank account must have been “dishonorable,” that is, a failure which (is (fraudulent) (deceitful) (a willful evasion) (deliberate) (based on false promises)) (indicates a grossly indifferent attitude toward the status of one’s bank account and just obligations) (__________).

NOTE 2. Gambling debts and checks for gambling funds. In US v. Falcon, 65 MJ 386 (CAAF 2008), CAAF overruled its historical position that public policy prevents using the UCMJ to enforce debts incurred from legal gambling and checks written to obtain proceeds with which to gamble legally (commonly called the “gambler’s defense”). See US v. Wallace, 36 CMR 148 (CMA 1966), US v. Allberry, 44 MJ 226 (CAAF 1996); US v. Green, 44 MJ 828 (ACCA 1996).

Note. that CAAF in Falcon declined to apply “a sweeping defense based on public policy” to allegations that third-party complicity negates a required element of an offense, stating the issue would be addressed on a case-by-case basis. CAAF reiterated that the government maintains the burden of proving each element beyond a reasonable doubt and the accused remains free to raise such facts that show his conduct does not satisfy a necessary element. Id., at footnote 4.

CAAF also specifically declined to address the ongoing validity of US v. Walter, 23 CMR 275 (CMA 1957), and US v. Lenton, 25 CMR 194 (CMA 1958), because Falcon dealt with legal gambling and Walter and Lenton dealt with illegal gambling. Falcon, at footnote 6. Until CAAF specifically addresses the ongoing validity of Walter and Lenton, if there is an issue whether the check was used to pay a debt from illegal gambling or the check was used to obtain funds to gamble illegally, the first and second paragraphs of the instruction below should be given. If there is an issue that some but not all of the check arose from an illegal gambling debt or was used to obtain funds for illegal gambling, the fourth paragraph of the instruction below should also be given.

The evidence has raised the issue whether the check(s) in question (was) (were) written to (pay a debt from gambling illegally) (obtain funds with which to gamble illegally). The Uniform Code of Military Justice may not be used to enforce worthless checks used to (pay a debt from gambling illegally) (obtain funds with which to gamble illegally) when the purported victim (or payee of the check) was a party to, or actively facilitated, the gambling.

To find the accused guilty of the offense in (The) Specification(s) (___) of (The) (Additional) Charge(s) (___), you must be convinced beyond reasonable doubt that the check(s) in question (was) (were) not used to (pay a debt from gambling illegally) (obtain funds with which to gamble illegally). Even if the check(s) (was) (were) used to (pay a debt from gambling illegally) (obtain funds with which to gamble illegally), if you are convinced beyond reasonable doubt that the purported victim (or payee of the check) was not a party to and did not actively facilitate the illegal gambling, and otherwise did not have knowledge of the illegal gambling-related purpose of the check, you may find the accused guilty when all other elements of the offense have been proven beyond a reasonable doubt.

(The evidence has also raised the issue whether all or only part of the check(s) in question (was) (were) used to (pay a debt from gambling illegally) (obtain funds with which to gamble illegally). The UCMJ limitation I mentioned only extends to that part of the check’s(s’) proceeds that (was) (were) used to (pay a debt from gambling illegally) (obtain funds with which to gamble illegally). If you find this is the case and all other elements of the offense have been proven beyond a reasonable doubt, you may find the accused guilty by exceptions and substitutions only to that part of the check(s) which you are convinced beyond a reasonable doubt was not used to (pay a debt from gambling illegally) (obtain funds with which to gamble illegally). You do this by excepting the value(s) alleged in the specification(s) and substituting that/those value(s) of which you are convinced beyond a reasonable doubt (was) (were) not used to (pay a debt from gambling illegally) (obtain proceeds to gamble illegally).)

NOTE 3. Mistake of fact—criminal state of mind and satisfaction on the instrument. The accused must have had a “criminal mind” in the sense that the accused must have had a grossly indifferent attitude toward the state of the accused’s bank account and just obligations to be guilty of this offense. The military judge should, therefore, be alert to evidence inconsistent with such “criminal mind,” such as a redemption or an attempt to redeem worthless checks, an accord with the payee, or a mistake as to the balance of the account. On the other hand, ultimate “satisfaction” of the payee in the sense that the instrument has been paid at the time of trial does not necessarily mean “satisfaction” with the accused’s conduct while the instrument remained unpaid. US v. Moseley, 35 MJ 481 (CMA 1992). Instruction 5-13, Mistake of Fact, may be applicable.

NOTE 4. Conduct pled as both prejudicial to good order and discipline and service discrediting. When the conduct is pled as both prejudicial to good order and discipline and service discrediting, the following instruction should be given:

The government has alleged that the conduct in question in (The) Specification (___) of (The) (Additional) Charge (___) was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. To convict the accused of the offense charged, you must be convinced beyond a reasonable doubt of all the elements, including that the accused’s conduct was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. If you are convinced of all the elements except the element of the service discrediting nature of the conduct, you may still convict the accused of the offense charged. In this event, you must make appropriate findings by excepting the language “of a nature to bring discredit upon the armed forces.” On the other hand, if you are convinced of all the elements except the element of prejudice to good order and discipline in the armed forces, you may still convict the accused of the offense charged. In this event, you must make appropriate findings by excepting the language “to the prejudice of good order and discipline in the armed forces.” Of course, if you are convinced beyond a reasonable doubt that the conduct in question was both to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces, then you may convict the accused as charged provided you are convinced beyond a reasonable doubt as to the other elements of (The) Specification (___) of (The) (Additional) Charge (___).

Source: Instruction 3a-94-1 · view original on jagcnet.army.mil