                                    IN THE CASE OF


                            UNITED STATES, Appellee

                                            v.

                    Charles D. BINEGAR, Senior Airman
                        U.S. Air Force, Appellant


                                     No. 00-0207


                             Crim. App. No.          32854

        United States Court of Appeals for the Armed Forces

                            Argued October 10, 2000

                               Decided May 4, 2001

SULLIVAN, J., delivered the opinion of the Court, in which EFFRON
 and BAKER, JJ., joined. GIERKE, J., filed an opinion concurring
   in the result. CRAWFORD, C.J., filed a dissenting opinion.

                                        Counsel

For Appellant:    Captain Bryan A. Bonner (argued); Colonel Jeanne M. Rueth (on
     brief).


For Appellee:   Major Jennifer R. Rider (argued); Colonel Anthony P. Dattilo
     and Lieutenant Colonel Ronald A. Rodgers (on brief).



Military Judge:   Gregory Michael

            THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Binegar, 00-0207/AF


    Judge SULLIVAN delivered the opinion of the Court.


    In March of 1997, appellant was tried by a general court-

martial composed of officer members at Hanscom Air Force Base in

Massachusetts.    Contrary to his pleas, he was found guilty of

four specifications of stealing contact lenses which were

military property of the United States, and one specification of

conspiring to steal those contact lenses, in violation of

Articles 121 and 81, Uniform Code of Military Justice, 10 USC §§

921 and 881, respectively.    On March 28, 1997, he was sentenced

to a bad-conduct discharge, 3 months of hard labor without

confinement, and forfeiture of $300 pay per month for 3 months.

The convening authority approved this sentence on July 24, 1997,

and the Court of Criminal Appeals affirmed on November 1, 1999,

in an unpublished opinion.



    This Court granted review in this case on two issues on April

12, 2000.    They ask:


            I. WHETHER THE MILITARY JUDGE ERRED IN
            NOT ALLOWING DEFENSE COUNSEL TO ELICIT
            STATE OF MIND HEARSAY EVIDENCE OF
            APPELLANT FROM A WITNESS.

            II. WHETHER THE MILITARY JUDGE ERRED IN
            PROVIDING THE COURT MEMBERS A MISTAKE OF
            FACT INSTRUCTION WHERE THE COURT MEMBERS
            HAD TO FIND THAT APPELLANT’S MISTAKE OF
            FACT WAS BOTH “HONEST AND REASONABLE”
            INSTEAD OF JUST “HONEST.”


We hold that Issue I need not be decided in this case because,

relying on United States v. Turner, 27 MJ 217 (CMA 1988), we must



                                  2
United States v. Binegar, 00-0207/AF


reverse this case on Issue II.    See United States v. Gillenwater,

43 MJ 10 (1995).



      Evidence was admitted in this case that shows that in

September 1995, appellant began work in the Medical Logistics

Office at Hanscom Air Force Base, Massachusetts.    One of his

duties was to order contact lenses for servicemembers who brought

a prescription from the base Optometry Clinic to the Medical

Logistics Office.    Personnel who needed contact lenses to perform

their duties or for a medical condition were entitled to receive

them free of charge.    Other personnel had to obtain contact

lenses off-base and pay for the lenses themselves. (R. 99)



      It was also shown that Air Force regulations governed the

process of ordering contact lenses at the Medical Logistics

Office. (R. 165)    The Optometry Clinic was required to produce a

purchase letter for all prescriptions sent to the Medical

Logistics Office. (R. 99-102)    If the lenses were required “for

the performance of duties,” the Logistics Office was to code the

purchase order with a “fund cite” indicating the servicemember’s

section.    If, however, the lenses were required for a medical

condition, the Optometry Clinic fund cite was used. (R. 113, 172-

73)    Once a month, the office generated reports of how many

lenses had been billed to each account. (R. 103, 310-11)



      Evidence was further admitted that appellant’s supervisors

neglected to follow these procedures with any regularity.     The



                                  3
United States v. Binegar, 00-0207/AF


Optometry Clinic rarely generated purchases letters, and Medical

Logistics would order contact lenses without them.    One of

appellant’s supervisors, Senior Master Sergeant (SMSgt) Kremer,

testified that he believed at one time that all clinic personnel

were entitled to free contact lenses, even if not medically

required. (R. 298, 302, & 320)   In fact, SMSgt Kremer instructed

appellant to sign a purchase order for him to get free lenses

soon after appellant began work at Medical Logistics. (R. 293-94)

SMSgt Kremer did not provide appellant with a purchase letter or

prescription for his lenses, although he testified that he later

discussed with appellant a clarified command policy requiring a

medical reason for contact lenses with some exceptions. (R. 321)



    Finally, evidence was admitted that appellant continued to

order contact lenses, filing the appropriate purchase orders and

keeping his paperwork in order. 1    Appellant’s supervisors never

reviewed the monthly reports to determine whether lenses were

being billed to the proper accounts.    Moreover, appellant’s

supervisors failed to provide appellant with formal training or

specific guidelines for any of these procedures. (R. 320)      The

next supervisor of the office, Staff Sergeant (SSgt) Smith, even

authorized appellant to sign purchase orders for him between

October 1995 to January 1996. (R. 149, 161)    Appellant signed

SSgt Smith’s name to over 90% of the purchase orders filed

between September 1995 and March 1996.    Neither SSgt Smith nor


1 Some evidence was admitted that several purchase orders
contained the first names of the soldiers receiving the lenses,



                                 4
United States v. Binegar, 00-0207/AF


his predecessor, SMSgt Kremer, ever told appellant that he was

doing his job improperly.   Furthermore, appellant had public

conversations concerning his conduct in ordering contact lenses

with the servicemembers for whom he ordered those lenses.



    The record of trial shows the following concerning the

defense’s request for a mistake of fact instruction:



          MJ: Now, concerning the proposed mistake-
          of-fact instruction, I’ll hear from you
          first, defense counsel, since it’s your
          request.

          DC: Your Honor, the defense requests that
          a mistake-of-fact defense be given in this
          case. Defense believes the issue has been
          raised and defense believes the issue’s
          been raised due to the testimony of--
          basically every witness at this court-
          martial except for Airman Beasley, whose
          testimony was not--and Airman Danieli.
          But every other witness, we believe, had
          something to say which would lead the
          court members and lead anyone to believe
          that there could have been a mistake in
          this case.

          MJ: Let me stop you there, counsel. I
          agree that a mistake-of-facts instruction
          of some sort should be given. So would
          you like to append as Appellate Exhibit X
          your proposed instruction?

          DC: Yes, sir. I have typed up--as far as
          the wording of the instruction. However,
          as far as the witnesses, I did not put
          them in there. I can type up a complete
          one, but--or else we can append this, Your
          Honor. I don’t know how you would like--
          those are the witnesses I’d like referred
          to in the instruction as to--to give them
          an idea of why it’s been raised.


but spelled backwards. (R. 88)   The importance of that fact was
disputed. (R. 142-43)

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United States v. Binegar, 00-0207/AF


          MJ: All right, well, I can certainly mark
          this as Appellate Exhibit X. I note this
          relates to specific intent.

          DC:   Yes, Your Honor.

          MJ: Is the government in agreement with
          what has been marked as Appellate Exhibit
          X, which is ignorance, or mistake with
          specific intent or actual knowledge is an
          issue.

          TC: No, sir. The language we agreed on
          was only to the extent that we could
          characterize what the mistake was. And I
          believe that was a blank page with just a
          short paragraph on “you must determine
          whether the accused was mistaken,” et
          cetera. That was the language that we
          agreed on to be instructed as to what the
          mistake was. But the government’s
          position is that the mistake-of-fact
          defense should be raised as a general
          intent crime because it involves whether
          it was just wrongful, or in this case that
          would be required to be honest and
          reasonable. So--

          MJ: Well, what you’re suggesting is that
          the mistake doesn’t necessarily go to the
          issue of specific intent to permanently
          deprive; is that the idea, trial counsel?

          TC: That’s correct, sir, because we don’t
          believe it fits the specific intent
          element of the offense itself.

          MJ:   Defense counsel?

          DC: Your Honor, defense requests that the
          instruction be given without the
          instruction regarding “it must be
          reasonable.” The offense is larceny,
          which is a specific intent crime. And the
          fact that Airman Binegar is charged with
          permanently depriving the Air Force of
          basically contact lenses, we believe
          that’s what he’s defending against. And I
          believe, in general, since this is a
          specific intent offense and since it’s the
          defense’s responsibility to defend against
          that offense, the fact that--I believe
          it’s relevant, Your Honor, that he’s
          defending against not only permanently


                                   6
United States v. Binegar, 00-0207/AF


          deprive--with the intent to permanently
          deprive the Air Force of contact lenses.
          And I do not--the defense does not believe
          that that has to be a reasonable--the
          defense would have to be reasonable in
          this case. And we ask that the
          instruction be given without the limiting
          factor of, “would have to be reasonable,”
          Your Honor.

          MJ: Okay. My analysis of the evidence
          and the offenses leads me to believe that
          a mistake-of-fact instruction that would
          be given would be general, rather than the
          one related to a specific intent.

          I note that paragraph 5-11 of the
          Benchbook does give some guidance in that
          regard, and I note that it states as
          follows “. . . moreover, in some ‘specific
          intent’ crimes, the alleged ignorance or
          mistake may not go to the element
          requiring specific intent or knowledge,
          and thus may have to be both reasonable
          and honest . . .”

          The court feels in this particular
          instance that the mistake--or mistaken
          belief, as it were--of the accused, goes
          generally to the offense of larceny
          itself, whether that larceny be a specific
          intent larceny or, quite frankly, even if
          it were a wrongful appropriation larceny.
          I believe that the mistake concerning
          whether or not he was authorized to order
          contact lenses at government expense
          relates generally to the offense and is
          not related to that element which requires
          a specific intent. Therefore, I’m not
          going to give the instruction as
          propounded by defense counsel, shown in
          Appellate Exhibit X, although this will be
          attached to the record of trial.

          What I am going to give is some modified
          version of the general intent version of
          mistake-of-fact. I would ask, at the next
          recess, that counsel try and pull together
          the final draft of what that instruction
          would encompass based upon this ruling.

(R. 361-63) (emphasis added).




                                7
United States v. Binegar, 00-0207/AF


    The military judge gave the following instructions in this

case:



          As to the various charges, the evidence
          has raised the issue of ignorance or
          mistake on the part of the accused
          concerning whether he was under the
          mistaken belief that he was authorized to
          order contact lenses at government expense
          with a purchase order from military
          members who provided him only a
          prescription from the Optometry Clinic.
          If the accused mistakenly believed that he
          was authorized to order contact lenses at
          government expense with a purchase order
          for military members who provided him only
          a prescription from the Optometry Clinic,
          he is not guilty of the offense of larceny
          or conspiracy to commit larceny if his
          ignorance or belief was reasonable. To be
          reasonable, the ignorance or belief must
          have been based upon information or lack
          of it which would indicate to a reasonable
          person that he was authorized to order
          contacts at government expense.
          Additionally, the ignorance or mistake
          cannot be based on a negligent failure to
          discover the true facts.

          In resolving this issue, you should
          consider the accused’s age, education, and
          rank along with the testimony of Senior
          Master Sergeant Kremer, Staff Sergeant
          Smith, Captain Bleuel, Staff Sergeant
          Allen, Staff Sergeant Smith, Airman Basic
          Maurice, Special Agent Collazo, Staff
          Sergeant McGee, Senior Airman Antoine,
          Airman First Class Marsh, Senior Airman
          Vallee, and Mr. Yenger.

          The burden is on the prosecution to
          establish the accused’s guilt. If you are
          convinced beyond a reasonable doubt that
          at the time of the charged offenses the
          accused was not ignorant of a fact or
          under the mistaken belief that he was
          authorized to order contact lenses at
          government expense with a purchase order
          for military members who provided him only
          a prescription from the Optometry Clinic,
          the defense of ignorance or mistake of


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United States v. Binegar, 00-0207/AF


             fact does not exist. Even if you conclude
             that the accused was ignorant of the fact
             or the mistaken belief that he was
             authorized to order contact lenses at
             government expense or the purchase order
             for military members who provided him only
             a prescription from the Optometry Clinic,
             if you are convinced beyond a reasonable
             doubt that at the time of the charged
             offenses the accused’s ignorance or
             mistake was unreasonable, the defense of
             ignorance or mistake of fact does not
             exist.

(R. 381-82) (emphasis added).

                              ___ ___ ___



    Appellant contends that the military judge at his court-

martial erred in refusing to give an “honest” mistake-of-fact

instruction as requested by the defense.      We note that the

military judge made this ruling because he concluded appellant’s

purported mistake of fact went to a matter unrelated to the

specific intent required for conviction of larceny under Article

121, UCMJ.    Accordingly, citing Paragraph 5-11 of the Military

Judges’ Benchbook (Dept. of the Army Pamphlet 27-9 (Sept. 30,

1996)), he concluded that an honest and reasonable mistake as to

such a fact was required and so instructed the members.      The

Court of Criminal Appeals likewise concluded that this was a

correct instruction because the purported mistake “concerned the

wrongfulness of the appellant’s taking, whether he had permission

to order the contacts [, and] this is a general intent element

and appellant’s belief must have been reasonable under all the

circumstances.”    Unpub. op. at 5.    We disagree.   United States v.

Turner, 27 MJ at 220 (holding that honest mistake of fact as to a



                                   9
United States v. Binegar, 00-0207/AF


superior’s permission to dispose of government property is a

defense to larceny).



    The military judge’s instructional decision on the defense of

mistake-of-fact was generally based on his reading of Paragraph

5-11 of the Military Judges’ Benchbook.     It states in pertinent

part:


          5-11 IGNORANCE OR MISTAKE OF FACT OR LAW-
                      GENERAL DISCUSSION

                           *   *        *

          The standard for ignorance or mistake of
          fact varies with the nature of the
          elements of the offense involved. If the
          ignorance or mistake concerns an element
          of an offense involving specific intent
          (e.g., desertion, larceny), willfulness
          (e.g., willful disobedience of an order),
          knowledge (e.g., assault upon commissioned
          officer, failure to obey lawful order), or
          premeditation, the ignorance or mistake
          need only exist in the mind of the
          accused. Generally, for crimes not
          involving specific intent, willfulness,
          knowledge, or premeditation, (e.g., AWOL)
          ignorance or mistake must be both honest
          (actual) and reasonable. Extreme care
          must be exercised in using this test,
          however, as ignorance or mistake in some
          “general intent” crimes need only be
          honest to be a defense. (See e.g.,
          Instruction 5-11-4, Ignorance or Mistake
          in Drug Offenses.) Moreover, in some
          “specific intent” crimes, the alleged
          ignorance or mistake may not go to the
          element requiring specific intent or
          knowledge, and thus may have to be both
          reasonable and honest. Consequently, the
          military judge must carefully examine the
          elements of the offense, affirmative
          defenses, and relevant case law, in order
          to determine what standard applies.




                                   10
United States v. Binegar, 00-0207/AF


This Court has suggested a similar rule in United States v.

Peterson, 47 MJ 231, 234-35 (1997), and United States v. Garcia,

44 MJ 496, 498 (1996); cf. United States v. Tucker, 14 USCMA 376,

380, 34 CMR 156, 160 (1964) (honest mistake of fact applies where

mistake made is to facts essential to the existence of the

necessary mens rea, i.e., specific intent).



    Article 121, UCMJ, states:



          (a) Any person subject to this chapter
          who wrongfully takes, obtains, or
          withholds, by any means, from the
          possession of the owner or of any other
          person any money, personal property, or
          article of value of any kind

            (1) with intent permanently to deprive
          or defraud another person of the use and
          benefit of property or to appropriate it
          to his own use or the use of any person
          other than the owner, steals that property
          and is guilty of larceny;


(Emphasis added.)   We have long recognized that this codal

article requires the Government to prove beyond a reasonable
doubt that an accused had a specific intent to steal.   Moreover,

it also has long been recognized that an honest mistake of fact

as to a soldier’s entitlement or authorization to take property

is a defense to a charge of larceny under this codal provision.

See United States v. Sicley, 6 USCMA 402, 410-13, 20 CMR 118, 26-

29 (1955); United States v. Rowan, 4 USCMA 430, 16 CMR 4 (1954).

We have recently reiterated this holding.   United States v.

Gillenwater, 43 MJ 10 (1995); United States v. Turner, supra;

United States v. Ward, 16 MJ 341, 346 (CMA 1983).


                                 11
United States v. Binegar, 00-0207/AF




    The military judge in appellant’s case did not acknowledge

this case law in applying the Benchbook rule.     See generally

United States v. Tucker, supra (recognizing similar rule to

Benchbook that mistake must be about essential facts related to

specific intent in larceny case).      Moreover, he did not explain

why appellant’s averred mistake as to his authority to issue

contact lenses did not undermine a specific intent on his part to

permanently deprive the Government of this property.     Contra

United States v. Turner, supra.     His exclusive reliance on the

relevance of the mistaken fact to a so-called general “intent”

element was misplaced.   The pertinent inquiry is whether the

purported mistake concerns a fact which would preclude the

existence of the required specific intent.     See generally 1 Wayne

R. LaFave & Austin W. Scott, Substantive Criminal Law § 5.1(b) at

577 (1986).



    This Court’s opinions in Peterson (mistake as to consent in

housebreaking case) and Garcia (mistake as to sexual consent in

indecent assault case) also do not support the trial judge’s

ruling.   They addressed mistakes as to facts which were

completely unrelated to the specific intents at issue in those

non-larceny cases.   Moreover, those decisions do not suggest in

any way that a military superior’s permission to his subordinate

to dispose of government property to other servicemembers is that

type of fact, i.e., one unrelated to a specific intent of that

subordinate to steal from the Government.     See LaFave & Scott,



                                  12
United States v. Binegar, 00-0207/AF


supra; United States v. Sicley, supra at 413.    Accordingly, we

must find legal error.



    Turning to the question of harmless error, we conclude that

appellant was materially prejudiced by the “honest and

reasonable” mistake-of-fact instruction actually given in this

case.   Article 59(a), UCMJ, 10 USC § 859(a).   First of all, the

prosecution-requested instruction placed a lesser burden on the

Government to prove appellant’s guilt because it could now secure

his conviction by disproving either the honesty or the

reasonableness of appellant’s mistake.   Moreover, trial counsel

exploited the erroneous instruction by calling this government

option to the attention of the members during deliberations.   He

said:



           And that leads us to the defense of
           mistake of fact for all of these contacts.
           As the judge instructed you, there must be
           two different things here: One is, was
           this mistake honest; namely, did Airman
           Binegar really have this mistake? And,
           number two is: Was this mistake
           reasonable? Because regardless of whether
           Airman Binegar thought this, if it was not
           reasonable, the defense still does not
           exist. The government has disproven this
           mistake beyond a reasonable doubt.


(R. 391) (emphasis added).   Finally, the Government presented a

substantial case on the unreasonableness of appellant’s conduct

in this case (R. 390-91), creating a reasonable possibility that

the members resolved this case against appellant on this basis.

See United States v. Ward, supra at 347.



                                13
United States v. Binegar, 00-0207/AF




    The decision of the United States Air Force Court of Criminal

Appeals is reversed. 2   The findings of guilty and the sentence

are set aside.   The record of trial is returned to the Judge

Advocate General of the Air Force.   A rehearing may be ordered.




2 Appellant was also charged with and found guilty of
conspiring with another servicemember to steal contact lenses, in
violation of Article 81, Uniform Code of Military Justice. As
noted above, the military judge also gave the erroneous mistake
of fact instruction with respect to this offense. (R. 381-82)

                                14
United States v. Binegar, No. 00-0207/AF

GIERKE, Judge (concurring in the result):

    It has been said that “[n]o area of the substantive criminal

law has traditionally been surrounded by more confusion than that

of ignorance or mistake of fact or law.”        1 Wayne R. LaFave &

Austin W. Scott, Substantive Criminal Law § 5.1(b) at 575 (1986).

No doubt, this confusion arises in larceny cases because larceny

has a specific intent element.        See, e.g., United States v.

Gillenwater, 43 MJ 10, 12 (1995) (judge erroneously failed to

give mistake of fact instruction, believing that appellant’s

mistake related only to a “‘lack of the element’ of intent”).

Even the Supreme Court has recognized that the “venerable

distinction” between general intent and specific intent “has been

the source of a good deal of confusion.”        United States v.

Bailey, 444 U.S. 394, 403 (1980).

    For the reasons set out below, I agree with the majority’s

conclusion that the military judge erred by instructing the

members that appellant’s asserted mistake of fact was required to

be both honest and reasonable.        However, I reach that conclusion

by a different route than the majority.

    The statutory elements of larceny are (1) a wrongful taking,

obtaining, or withholding; and (2) an intent permanently to do

one of the following: (a) “deprive . . . another person of the

use and benefit of property”; (b) “defraud another person of the

use and benefit of property”; (c) “appropriate it [the property]

to his own use”; or (d) “appropriate it to . . . the use of any
United States v. Binegar, No. 00-0207/AF


person other than the owner[.]”          Art. 121, UCMJ, 10 USC § 921.

Although the term does not appear in the statute, “[t]hese

intents are collectively called an intent to steal.”               Para.

46c(1)(f)(1)(i), Part IV, Manual for Courts-Martial, United

States (2000 ed.).1        The first element of this offense requires

only general intent.        See United States v. Simmons, 554 A.2d

1167, 1170 (D.C.App. 1989).          The second element requires specific

intent.      See United States v. Turner, 27 MJ 217, 220 (CMA 1988).

       This Court previously has recognized the distinction between

general intent and specific intent elements in other offenses.

See United States v. Peterson, 47 MJ 231, 234-35 (1997) (indecent

assault includes both a general intent assault element and a

specific intent element to satisfy the lust or sexual desires of

the accused).       RCM 916(j), Manual, supra, also recognizes this

distinction.       It provides:

           If the ignorance or mistake goes to an element requiring
           premeditation, specific intent, willfulness, or knowledge
           of a particular fact, the ignorance or mistake need only
           have existed in the mind of the accused. If the
           ignorance or mistake goes to any other element requiring
           only general intent or knowledge, the ignorance or
           mistake must have existed in the mind of the accused and
           must have been reasonable under all the circumstances.

       In order to avoid further confusion in this complex area of

law, I believe that this Court must focus on the precise

significance of an appellant’s claimed mistake of fact and ask

two questions: (1) What is the specific fact about which the

appellant claims to have been mistaken? and (2) To what element

1
    All Manual provisions are the same as the version in effect at the time of



                                        2
United States v. Binegar, No. 00-0207/AF


or elements does that specific fact relate?           The majority

resolves this case by focusing on the second element of larceny.

Chief Judge Crawford’s dissent focuses on the first element.2              In

my view, appellant’s asserted mistake of fact in this case

relates to both elements: (1) the wrongfulness of his act of

obtaining the contact lenses; and (2) his specific intent to

defraud the United States by issuing the contact lenses to

persons who were not entitled to them.

    Appellant asserted a mistake as to his authority to order the

contact lenses for applicants who had prescriptions from the

Optometry Clinic, but who had no documentation that the contact

lenses were required for performance of duty.           Appellant denied

having both the general intent to wrongfully order the contact

lenses and the specific intent to defraud the United States by

ordering them for persons who were not entitled to them.

    The majority opinion correctly states the rule: If the

mistake goes to an element requiring only general intent, the

mistake must be both honest and reasonable.           However, if the


appellant’s court-martial.
2
  I agree with Chief Judge Crawford that this Court’s decisions in United
States v. Gillenwater, 43 MJ 10 (1995), and United States v. Turner, 27 MJ 217
(CMA 1988), do not control the decision in this case, because those decisions
did not examine the correctness of an instruction. Instead, they turned on the
military judge’s failure to give any instruction on mistake of fact. In both
cases, the asserted mistake of fact, if honest, would have negated the
requisite specific intent. I also agree with Chief Judge Crawford’s conclusion
that United States v. Rowan, 4 USCMA 430, 433, 16 CMR 4, 7 (1954), and United
States v. Sicley, 6 USCMA 402, 20 CMR 118 (1955), address only the specific
intent element of larceny and do not address the general intent element.
Finally, although not mentioned by Chief Judge Crawford, I also believe that
United States v. Ward, 16 MJ 341, 346 (CMA 1983), does not address the first
statutory element of larceny but, instead, turns on the second element, i.e.,
specific intent.




                                      3
United States v. Binegar, No. 00-0207/AF


mistake goes to an element requiring specific intent, the mistake

need only be honest, i.e., exist in the mind of the accused.

    Applying this rule in the present case, I believe that the

military judge should have instructed the panel members that

appellant’s mistake need only have been honest.       If this case

involved only a question of appellant’s general authority to

order contact lenses, then the military judge’s instruction would

have been correct.      However, appellant’s asserted mistake of fact

also raised the question of appellant’s specific intent to

defraud the United States by issuing contact lenses to persons

who were not entitled to them.        If appellant honestly believed he

was authorized to order the lenses for persons who had no

documentation showing that the contact lenses were required for

duty, then he had no specific intent to defraud the United

States.

    Of course, appellant’s mistake-of-fact defense did not

require two separate instructions, with one pertaining to the

general intent element and one pertaining to the specific intent

element.    Although the asserted mistake of fact went to both

elements, an instruction pertaining to the specific intent

element would have subsumed an instruction pertaining to the

general intent element.

    Because the members were not correctly instructed regarding

the legal effect of appellant’s asserted honest mistake of fact




                                      4
United States v. Binegar, No. 00-0207/AF


on his specific intent to defraud the United States, I join the

majority in reversing the decision below.




                                      5
United States v. Binegar, No. 00-0207/AF


CRAWFORD, Chief Judge (dissenting):

     I would hold that the military judge did not abuse his

discretion by instructing the members that appellant’s mistake

related to the general intent element of “wrongful taking” and

that the mistake had to be both “honest and reasonable.”    Giving

tens of free contact lenses to individuals not entitled to

government contact lenses was neither honest nor reasonable.     If

the judge did err, any error was harmless because the record

does not support the conclusion that appellant ever made an

honest mistake of fact.

                               Facts

     In September 1995, appellant began working in the Medical

Logistics Office at Hanscom AFB clinic.    Through the Medical

Logistics Office, entitled personnel could obtain free contact

lenses.   Air Force personnel are entitled to free lenses if the

lenses are required to perform their duties or if needed for a

medical reason.   All other personnel must order their contact

lenses off base and pay for them out of their own pocket.

     Appellant ordered lenses for his friends, irrespective of

their eligibility, if they had a valid prescription.    He did not

make them hand over the prescription.   They merely had to tell him

what it was.   Conversations occurred in the open about this

practice.   Appellant alleged that nobody thought it was unusual to

order contact lenses.   However, appellant reversed the spelling of
United States v. Binegar, No. 00-0207/AF


the names of certain individuals on the purchase orders that he

prepared.    Additionally, evidence shows that the clinic would

generate a local purchase request letter in all cases in which the

military member was authorized to obtain contact lenses at

government expense.      Yet, there were no local purchase request

letters generated for the contact lenses ordered by appellant for

his friends.

                                  Analysis

      While perhaps appearing simple on its face, this issue

requires a bit more complex analysis.          That analysis involves

recognition that there may be both general and specific intent

elements.    Well-established case law supports the conclusion

that appellant’s mistake had to be both “honest and reasonable”

in order to constitute a valid defense, because it related only

to the general intent “taking” element within the crime of

larceny.1

       This Court’s standard of review with respect to member

instructions is abuse of discretion.         See United States v.




1
  See, e.g., United States v. McFarlin, 19 MJ 790, 793 (ACMR), pet. denied, 20
MJ 314 (CMA 1985)(holding that although indecent assault is a specific intent
crime, the applicable standard as to mistake of fact about victim’s consent
to acts charged is honest and reasonable mistake); United States v.
Wooldridge, 49 MJ 513, 514 (C.G.Ct.Crim.App. 1998) (defendant’s mistake as to
victim’s consent in an indecent assault case must be both honest and
reasonable); Simmons v. United States, 554 A.2d 1167, 1170 (D.C. App. 1989)
(holding that robbery is a specific intent crime; however, taking property
without right requires only a general intent).


                                      2
United States v. Binegar, No. 00-0207/AF


Damatta-Olivera, 37 MJ 474, 478 (CMA 1993)(citing United States

v. Smith, 34 MJ 200 (CMA 1992)).       The test to determine if

denial of a requested instruction constitutes error is whether

(1) the charge is correct; (2) “it is not substantially covered

in the main charge”; and (3) “it is on such a vital point in the

case that the failure to give it deprived defendant of a defense

or seriously impaired its effective presentation.”       Id. (quoting

United States v. Winborn, 14 USCMA 277, 282, 34 CMR 57, 62

(1963)).

     In order to arrive at the proper end in this case, a series

of analytical steps must be taken.       The starting point is the

larceny statute itself.   A textual analysis of the statute

should be performed to break out every actus reus element and

then assign it a particular mens rea — either general or

specific intent.   The next step is to determine what element of

the crime the alleged mistake pertains to and appoint the

appropriate mistake of fact test accordingly.       For example, this

case deals with larceny, which Article 121, Uniform Code of

Miliary Justice, 10 USC § 921, defines as follows:

     Any person subject to this chapter who wrongfully
     takes, obtains, or withholds, by any means, from the
     possession of the owner or of any other person any
     money, personal property, or article of value of any
     kind with intent permanently to deprive or defraud
     another person of the use and benefit of property or
     to appropriate it to his own use or the use of any
     person other than the owner, steals that property and
     is guilty of larceny.


                                   3
United States v. Binegar, No. 00-0207/AF



     Larceny of military property can then be broken into these

separate elements under a “textual” approach:

     (a)   That the accused wrongfully took, obtained, or
           withheld certain property from the possession of
           the owner or of any other person;

     (b)   That the property belonged to a certain person;

     (c)   That the property was of a certain value, or of
           some value;

     (d)   That the taking, obtaining, or withholding by the
           accused was with the intent permanently to
           deprive or defraud another person of the use and
           benefit of the property or permanently to
           appropriate the property for the use of the
           accused or for any person other than the owner;
           and

     (e)   That the property was military property.

Para. 46b(1), Part IV, Manual for Courts-Martial, United States

(2000 ed.) (emphasis added).2

     Appellant was mistaken as to the first element, i.e., the

lawfulness of his taking the contacts in general.           This actus

reus element requires only a general intent.          Because there is

no specific intent requirement in this element, the military

judge was correct in charging the members that appellant’s

mistake had to be both “honest and reasonable” in order to

constitute a mistake of fact defense.         Therefore, the lower

court should be affirmed.



2
 All Manual provisions are identical to the version in effect at the time of
appellant’s trial unless otherwise indicated.


                                      4
United States v. Binegar, No. 00-0207/AF

                               1. Mistake of Fact

     Appellant asserts that the military judge incorrectly gave

instructions regarding his mistake of fact defense.            Mistake of

fact is a defense that does not deny the accused committed the

objective acts constituting the offense charged, but denies,

wholly or partially, criminal responsibility for those acts.

See RCM 916(a), Manual, supra.        RCM 916(j)(1) provides that

ignorance or mistake of fact may be a defense as follows:3

     Except as otherwise provided in this subsection, it is
     a defense to an offense that the accused held, as a
     result of ignorance or mistake, an incorrect belief of
     the true circumstances such that, if the circumstances
     were as the accused believed them, the accused would
     not be guilty of the offense. If the ignorance or
     mistake goes to an element requiring ... specific
     intent,... the ignorance or mistake need only have
     existed in the mind of the accused. If the ignorance
     or mistake goes to any other element requiring only
     general intent ... the ignorance or mistake must have
     existed in the mind of the accused and must have been
     reasonable under all the circumstances.

(Emphasis added.)

           This case involves the interpretation of RCM

916(j)(1).    If, as in this case, appellant contends there was a

lawful taking, the actus reus element, he does not get the

benefit under the Manual rule of only requiring an honest rather

than honest and reasonable mistake as to the taking.            Under

para. 46b(1)(a)&(d), supra, the mens rea term does not modify



3
 This provision was denominated RCM 916(j) at the time of appellant’s trial
but was otherwise identical to the version above.


                                      5
United States v. Binegar, No. 00-0207/AF


the actus reus term, the taking in this case.   Thus, the taking

element is a general intent element, and RCM 916(j)(1) requires

a mistake as to that element to be both honest and reasonable.

     In interpreting the Manual, I will not look at the

consequences of the actus reus and tie that into the intent

element, that is, if there is a lawful taking, then there cannot

be an intent to defraud or to permanently deprive the owner of

the property.   This overlooks the division between the actus

reus and the mens rea.   The issue in this case centers on the

actus reus.   Thus, the taking must be both honest and

reasonable.

     The key to understanding this case is to recognize that one

can make a mistake as to a general intent actus reus element

within a crime requiring specific intent as to another element.

When applying the mistake of fact defense in such an instance, a

two-step analysis should be performed:

     (1) Does the mistake show that the specific intent was
     not in fact entertained by the defendant? If it does,
     then the normal specific intent rule applies, and an
     honest mistake is a defense.

     (2) If the mistake does not show that the specific
     intent is lacking, then the normal general intent rule
     applies, and only an honest and reasonable mistake is
     a defense.

Peter W. Law, Criminal Law 125-26 (Rev. 1st ed. 1990).    The

following example from Law, id. at 126, nicely illustrates this

hybrid category within the mistake of fact defense:   Assume you


                                 6
United States v. Binegar, No. 00-0207/AF


have a crime defined as “receiving criminal law books known to

have been stolen.”   The defendant knows he received stolen

books, but believes the books to cover English literature.     Does

his mistake negate specific intent?   It depends on the

interpretation of “known to have been stolen.”    If it means that

the defendant must know both that the books were stolen and that

they were criminal law books, then the mistake is a defense

under the normal approach for specific intent.    However, if the

specific intent is interpreted to mean only that the defendant

must know that the books were stolen, the normal rule for

general intent offenses will apply and mistake will be a defense

only if it is both honest and reasonable.    The defendant’s

mistake in this instance will apply to the general intent

portion of the offense—to the mental state required to commit

the actus reus of receiving criminal law books.

     The Military Judges’ Benchbook also acknowledges this

hybrid category within mistake of fact.    It states:   “Moreover,

in some ‘specific intent’ crimes, the alleged ignorance or

mistake may not go to the element requiring specific intent or

knowledge, and thus may have to be both reasonable and honest.”

Para. 5-11 at 745, Dept. of the Army Pamphlet 27-9 (Sept. 30,

1996)(Ignorance or Mistake of fact or Law-General Discussion).




                                 7
United States v. Binegar, No. 00-0207/AF

                          2. Assigning Mens Rea

     The Benchbook indicates that a textual analysis should be

used to determine the appropriate mens rea when the mistake of

fact defense is raised.   It says: “[T]he military judge must

carefully examine the elements of the offense, affirmative

defenses, and relevant case law, in order to determine what

standard applies.”   Id. (emphasis added).   For example, indecent

assault is a specific intent offense only with regard to the

element of the accused’s intent to gratify his sexual desires,

not to the offense in general.   See United States v. Garcia, 44

MJ 496 (1996).

     Most crimes today require a particular mental state.

Unfortunately, ascertaining which terms or elements of the

offense the mens rea modifies can be a complicated task.      Some

endeavor to resolve this problem by applying a “grammatical

interpretation” after the crime has been subdivided into its

elements.   Joshua Dressler, Understanding Criminal Law § 10.05

at 107 (1987).   The grammatical interpretation says that the

“placement of a mens rea term at the beginning of the definition

of a crime may be interpreted to imply that the word modifies

every actus reus element that follows it....      If the mental

element is placed between some of the actus reus terms, however,

this may mean that the mens rea does not apply to the actus reus




                                 8
United States v. Binegar, No. 00-0207/AF


terms that precede it.”    Id. (citing United States v. Yermian,

468 U.S. 63 (1984)).

     For example, Dressler defines rape as “intentional sexual

intercourse by a male with a female not his wife without her

consent.”    Id. at 106 (emphasis added).   The critical issue is

whether the word “intentional” modifies the attendant

circumstance of the victim’s lack of consent because the word is

placed at the beginning of the statute.     Walking through the

textual and grammatical approaches, this statute breaks down

into the following:

     (a)    intentional sexual intercourse with a female other
            than your wife; and

     (b)    intentional intercourse without consent.

Because the mens rea word “intentional” is at the front of the

statute, it can apply to the remaining elements of the crime.

Therefore, any honest mistake will constitute a valid defense in

this instance because both elements of the crime require

specific intent.

     On the other hand, Article 120, UCMJ, 10 USC § 920, states:

“Any person subject to this chapter who commits an act of sexual

intercourse by force and without consent, is guilty of rape.”

Under a textual analysis, rape is broken down into the following

elements:

     (a)    The accused committed an act of sexual intercourse;
            and


                                  9
United States v. Binegar, No. 00-0207/AF



     (b)   The act of sexual intercourse was done by force and
           without consent.

Here, the statutory language of the crime does not assign a

specific intent mens rea to any of the elements.     Therefore,

only an honest and reasonable mistake will suffice because the

entire crime is one of general intent.     This is markedly

different from the Dressler example given above.     These fine

distinctions make it imperative for a judge to walk carefully

through all of the necessary steps before deciding which mistake

of fact test to instruct on or apply.

     A second rule of thumb is that “a mens rea term ordinarily

modifies the ‘result’ and ‘conduct’ elements in the actus reus —

e.g., the ‘killing’ in murder, the ‘sexual intercourse’ in

rape,” and the “taking” in larceny — but not the attendant

circumstances.   Dressler, supra at 107.

                          3. Relevant Case Law

     Within the armed forces, there exists a line of indecent

assault cases that are on point in this instance.     In United

States v. Garcia, 43 MJ 686, 687 (A.F.Ct.Crim.App. 1995), the

appellant, on several occasions, made unwelcome and uninvited

comments to and physical contact with a subordinate.     The

appellant argued that at the time of the incidents, he felt that

the victim had given consent by coming over to his room and

drinking beer with him.   Id. at 688.   The court held that


                                10
United States v. Binegar, No. 00-0207/AF


mistake of fact as to the consent of the victim was a defense to

indecent assault.   Id. at 689.     However, the court went on to

say: “Indecent assault is a specific intent offense only with

regard to the element of the accused’s intent to gratify his

sexual desires, not to the offense in general.       Id. (emphasis

added).   Thus, to be a defense, the appellant’s mistake as to

his victim’s consent must have been both “honest and

reasonable.”   In this instance, the military judge concluded

that the appellant’s belief that the woman was consenting was

not reasonable.   Id.

     In United States v. McFarlin, 19 MJ 790, 792 (ACMR), pet.

denied, 20 MJ 314 (CMA 1985), the appellant was also charged

with indecent assault.    The court reasoned that although

indecent assault is a specific intent crime, the applicable

standard in this instance for the mistake of fact defense was

“honest and reasonable.”       Id. at 793.   Here, the appellant

inferred that his victim consented due to a lack of verbal or

physical response in any way, but this particular mistake did

not relate to the appellant’s intent.        Rather it related to

another element of the crime, namely, the presence or absence of

the victim’s consent.    Id.

     United States v. Wooldridge, 49 MJ 513 (C.G.Ct.Crim.App.

1998), again involves an indecent assault charge.       In this case,

the appellant entered the sleeping victim’s bedroom and sat on


                                    11
United States v. Binegar, No. 00-0207/AF


the floor staring at her.    Id. at 514.   After she awoke and was

startled to find someone in her bedroom, she told the appellant

to leave.    He then asked if he could use her bathroom.   She said

yes, and he used the bathroom several times.    In between each

trip, he continued to ask the victim if he could sleep in her

room.    She said no every time.   After his fifth trip to the

bathroom, he removed his clothes, got in bed, and began to kiss

and fondle the victim.    Id. at 514.   Mistake of fact was raised

as an affirmative defense.    The appellant asserted that because

the victim could have called for help each time he went to the

bathroom, she was consenting to his acts.    Id. at 515.   The

court held that although indecent assault entails one element

requiring specific intent, the lack-of-consent element of the

offense is a general intent element.    Therefore, the mistake had

to be both “honest and reasonable,” and the court held it was

not.    Id. at 514.

       United States v. Peterson, 47 MJ 231 (1997), was decided by

this Court.    The Court held that where a person mistakes whether

or not he has consent to enter another’s room and slips into bed

and fondles the victim while she is sleeping, only an “honest

and reasonable” mistake will constitute a valid defense.     Id. at

234-35.     This was so even though indecent assault entails one

element requiring specific intent, because while the offensive

touching was committed with the intent to satisfy the lust or


                                   12
United States v. Binegar, No. 00-0207/AF

sexual desires of the appellant, the consent element required

only a general intent.    Therefore, a mistake of fact defense on

this element required both a subjective belief of consent and a

belief that was reasonable under all of the circumstances.      Id.

     In Peterson, the Court noted that the first element of the

offense of housebreaking, that the accused “unlawfully entered a

certain building or structure of a certain other person,” is a

general intent element within the crime.    Id. at 235.   The Court

also noted that the second element of housebreaking requires a

specific intent to “enter with the intent to commit an offense.”

Therefore, “[a]ny mistake-of-fact defense based upon [the]

appellant’s belief of consent raised in respect to this element

must have been both subjectively held and reasonable in light of

all the circumstances.”   Id.

                    4. Application to Appellant

     Appellant argues that he honestly believed it was proper

for any Air Force personnel with a valid prescription to receive

contact lenses for free from the Air Force.    He claims that

nobody told him ordering contacts was allowed only in certain

situations.   He says he ordered the lenses openly and

notoriously because he really did not think it was wrong.

Appellant concedes, however, that his “mistake of fact defense

did go directly to his knowledge — knowledge about whether or




                                 13
United States v. Binegar, No. 00-0207/AF


not Air Force personnel were entitled to free contact lenses

with a valid prescription.”   Final Brief at 13-14.

     Similar to the Peterson and Garcia cases, the mistake in

this case pertains to a general intent element within a specific

intent crime---it relates to the wrongfulness of the taking.

Thus, the military judge did not abuse his discretion by

stating:

     Okay. My analysis of the evidence and the offenses
     leads me to believe that a mistake-of-fact instruction
     that would be given would be general, rather than the
     one related to a specific intent.

     I note that paragraph 5-11 of the Benchbook does give
     some guidance in that regard, and I note that it
     states as follows “... moreover, in some ‘specific
     intent’ crimes, the alleged ignorance or mistake may
     not go to the element requiring specific intent or
     knowledge, and thus may have to be both reasonable and
     honest....”

     ... I believe that the mistake concerning whether or
     not he was authorized to order contact lenses at
     government expense relates generally to the offense
     and is not related to that element which requires a
     specific intent. Therefore, I’m not going to give the
     instruction as propounded by defense counsel.... What
     I am going to give is some modified version of the
     general intent version of mistake-of-fact.

     The relevant case law supports the conclusion that the

military judge correctly interpreted appellant’s mistake as one

relating to “wrongful taking” in general.   “Wrongful taking” is

a general intent element within the crime of larceny.

Therefore, only an “honest and reasonable” mistake of fact will

suffice as an affirmative defense.


                                14
United States v. Binegar, No. 00-0207/AF


      A mistake as to the fourth element, “the intent to

permanently deprive,” seems unlikely in this situation.             Contact

lenses are not an item that an individual uses for a time and

then returns.      Defense counsel cites cases dealing with

property that could feasibly have been borrowed for a time and

then returned.4     In the case at bar, however, such an analogy is

rather far-fetched.      Contact lenses are highly unique and

individual; they are exposed to bodily fluids and generally are

not returnable for health and hygiene reasons.           Due to the

sensitive nature of this product, it is highly unlikely that

appellant did not intend to permanently deprive the Government

of the lenses.     Therefore, the only remaining element he could

potentially have been mistaken about is the general wrongfulness

of ordering the contacts in the first place.

      Although defense counsel relies upon relevant case law, it

is not on point.     The underlying issue in some of the cases does

involve a mistake of fact defense, but those decisions deal

directly with an accused’s mistake relating to the specific

intent “to permanently deprive.”           The cases do not involve a

“hybrid” case similar to the facts of Binegar.           In other cases,

the issue is a sua sponte concern, not an analysis of the

appropriate mistake of fact test.           For example, in United States


4
  See generally United States v. Gillenwater, 43 MJ 10 (1995); United States
v. Turner, 27 MJ 217 (CMA 1988); United States v. Sicley, 6 USCMA 402, 20 CMR
118 (1955).


                                      15
United States v. Binegar, No. 00-0207/AF


v. Gillenwater, 43 MJ 10 (1995), the Court reversed the

appellant’s conviction for wrongful appropriation of military

property, holding that the lower court judge erred in refusing

to give the court members any instruction on mistake of fact.

Gillenwater, therefore, does not directly involve whether or not

the mistake of fact test was correctly administered.

     However, in Gillenwater, the Court examined the appropriate

mistake of fact test, noting that the mistake applied to whether

the appellant unlawfully took or withheld the property “with the

intent temporarily to deprive” the Government of the use of such

property.   Id. (emphasis added).    We then determined that an

“honest” mistake could negate the intent to steal.       Id.   There,

the appellant’s supervisor allowed individuals to take tools

home for personal use.   The appellant thought that meant they

could take them for as long as they wanted, provided they

eventually returned them.   Id. at 12.    Therefore, the permission

that the appellant thought he had did not pertain to the general

intent to commit a wrongful act.     Rather, it dealt with his

specific intent to temporarily deprive.     Id. at 13.    This is

noticeably a different factual situation than in the present

case.   Based on the record, it does not appear that appellant

was ever mistaken as to the permanent deprivation.       Contact

lenses are generally not returnable or reusable.     Additionally,




                                16
United States v. Binegar, No. 00-0207/AF


in his brief, appellant does not rely on any part of the record

to indicate that he intended to return the lenses in the future.

       In United States v. Rowan, 4 USCMA 430, 16 CMR 4 (1954),

the appellant was charged with larceny by check.    The appellant

was under the mistaken belief that he had money in the Kanawha

Valley Bank to cover any checks he wrote.    The Court

concentrated on whether mistake of fact would be a defense at

all.    The main focus of the holding establishes that the test

for mistake of fact with respect to larceny and larceny by false

pretenses is the same, even though the language of the Manual

for Courts-Martial appears to set up two different standards.

Id. at 432-34, 16 CMR at 6-8.    The Court held:

            The requirement of a specific intent is found in
       military law as well as in the civilian sphere. A
       court-martial must find ... that the accused intended,
       at or after the time of the taking, permanently to
       deprive the owner of the property in question....
       Because that intent is required to make out the
       offense of larceny, it is commonly held that there is
       no such thing as a negligent larceny. An honest
       ignorance or mistake of fact may be a defense even
       though either was due to carelessness.

Id. at 434, 16 CMR at 8.    This holding merely indicates

that the specific intent to “permanently deprive” can be

negated by an honest mistake.    It does not address the

mistake that pertains to a general intent element within a

specific intent crime.




                                 17
United States v. Binegar, No. 00-0207/AF


     Defense counsel also cites United States v. Sicley, 6 USCMA

402, 20 CMR 118 (1955), claiming that the appellant’s mistake

did not go to the specific intent to permanently deprive, but

rather, it went to his belief that he was authorized to receive

reimbursement for his wife’s travel, even though she did not use

her ticket.   The Court determined that “it is thus reasonable to

assume ... that the findings of guilty of larceny were based not

on an unlawful taking effected on February 2, but rather on the

view that the accused acquired the necessary intent

subsequently, and thereafter wrongfully withheld funds which he

had acquired lawfully.”   Id. at 407, 20 CMR at 123.   The

appellant received the money honestly and in good faith but

formed the intent to steal the money at a later date.    The Court

then held, “Thus, we address ourselves to the question of

whether an honest mistake of law may — in this setting — negate

the inference of an intent permanently to deprive the Government

of property.”   Id. at 411, 20 CMR at 127.   Again, this is a

situation where the appellant’s mistake pertained to the

specific intent to permanently deprive.    Therefore, an honest

mistake should be the standard applied.

     Finally, in United States v. Turner, 27 MJ 217 (CMA 1988),

the appellant was charged with larceny of two automobile

engines.   The central issue of the case was whether the

appellant was prejudiced by the trial judge’s failure to give


                                18
United States v. Binegar, No. 00-0207/AF


the defense-requested instruction on mistake of fact.

Therefore, this case is not on point, and reliance on it is

misplaced.    The appellant in Turner contended that he honestly

believed the engines were not government property, and that he

could therefore lawfully receive them.    Id. at 218-19.   The

Court held that the appellant’s honest belief that he was

entitled to the engines negated any specific intent to steal.

Id. at 220.    In the present case, however, appellant’s mistake

was determined by the judge to apply to the element of wrongful

taking, a general intent element, within the crime of larceny.

Therefore, an honest and reasonable mistake was the correct

standard.

     Assuming arguendo that the judge did err, any error was

harmless.    The record indicates that appellant did not hold an

“honest” mistake regarding whether or not he could order contact

lenses for all Air Force personnel.    His claim of an honest

mistake is refuted by his conduct in ordering contact lenses for

his friends.    Appellant wrote out his friends’ names in code on

the order forms.    He spelled the names backwards and left out a

letter or added a letter in some instances.    If he honestly

believed his actions to be lawful, there would be no need to

alter his friends’ names.    Additionally, when a valid order for

lenses was generated, a special form came back with the lenses.

Not once did this form accompany appellant’s friends’ lenses.


                                 19
United States v. Binegar, No. 00-0207/AF


He worked there long enough to notice this difference.

Therefore, even if the military judge did instruct the members

incorrectly and appellant’s mistake need only have been

“honest,” the guilty conviction would still stand because there

is no evidence that appellant held an honest belief that his

actions were lawful.

     For all of the foregoing reasons, I respectfully dissent.




                               20
