UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                             YOB, KRAUSS, and BURTON
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                           Sergeant SHAWN M. HINES
                          United States Army, Appellant

                                   ARMY 20120024

       Headquarters, 101 st Airborne Division (Air Assault) and Fort Campbell
                         Timothy Grammel , Military Judge
           Lieutenant Colonel Jeff A. Bovarnick, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA; Lieutenant Colonel Charles C. Choi, JA
(on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel,
JA; Captain Daniel D. Maurer, JA (on brief).


                                      24 May 2013

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                               SUMMARY DISPOSITION
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Per Curiam:

       A military judge sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of two specifications of false official statement, two
specifications of larceny of military property of a value more than $500.00, and one
specification of wrongful appropriation of military property of a value more than
$500.00 in violation of Articles 107 and 121, Uniform Code of Military Justice, 10
U.S.C. §§ 907 and 921 (2006) [hereinafter UCMJ]. The military judge sentenced
appellant to a bad-conduct discharge, confinement for three months, total forfeiture
of all pay and allowances, and reduction to the grade of E-1. The convening
authority approved all but the forfeitures of the adjudged sentence.

       This case is before the court for review under Article 66, UCMJ. Appellant
asserts that the military judge erred by accepting his plea to larceny of over $500.00
of military property when he providently pled only to larceny of less than $500.00 of
HINES — ARMY 20120024

military property. We agree and find that appellant providently pleaded guilty to
larceny and wrongful appropriation of military property of a value less than $500.00
under the circumstances.

      On 27 May 2008, while he was stationed at Fort Bragg, North Carolina,
appellant’s divorce became final. Because he had no other dependents, on that date
appellant was no longer entitled to receive Basic Allowance for Housing at the with-
dependent rate (BAH-WITH). However, appellant failed to present his divorce
decree to the proper authorities and as a result, he continued to receive BAH-WITH
each month until 19 October 2010, when he arrived on Permanent Change of Station
(PCS) at Fort Campbell, Kentucky.

       While appellant was still stationed at Fort Bragg, he deployed to Afghanistan
from 21 April 2009 to 8 June 2010. When he arrived in Afghanistan, appellant
completed a DD Form 1561, “Statement to Substantiate Payment of Family
Separation Allowance.” On this form, he falsely certified that he was not divorced
or legally separated from his spouse. As a result, each month, appellant received
Family Separation Allowance (FSA) during his fourteen-month deployment, despite
the fact that he did not have any dependents at the time.

       Upon arrival at Fort Campbell on 20 October 2010, appellant submitted a DA
Form 5960, “Authorization to Start, Stop, or Change Basic Allowance for Quarters”
and a DD Form 1351-2, “Travel Voucher.” On both documents, he falsely indicated
that he was married. As a result, appellant received BAH-WITH each month from
19 October 2010 until 18 April 2011.

       The government charged each of the offenses described above as continuing
crimes, aggregating the total amount of money involved to allege larceny and
wrongful appropriation in an amount over $500.00. 1 While the accused admitted to
taking the amounts alleged, both the stipulation of fact and providence inquiry
reveal that appellant understood he was entitled to receive the BAH without-
dependent rate for the period in question; that the difference between the with and
without-dependent rate is less than $500.00 per month; and that the amount of FSA
received was less than $500.00 per month.




1
 If we exclude forfeitures: The maximum punishment for larceny of military
property over $500.00 includes a dishonorable discharge and ten years confinement.
The maximum for larceny of $500.00 or less includes a bad-conduct discharge and 1
year confinement. The maximum punishment for wrongful appropriation of military
property of more than $500.00 includes a bad-conduct discharge and six months
confinement; that of wrongful appropriation of less than $500.00 is only 3 months
confinement.


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HINES — ARMY 20120024

       The stipulation of fact states that at both Fort Bragg and Fort Campbell
appellant would have been entitled to the BAH without-dependent rate. During the
providence inquiry appellant repeatedly stated that he understood that he was not
entitled to BAH-WITH in a fashion expressing the understanding that he was entitled
to BAH without-dependent rate. The judge never satisfactorily resolved the
inconsistency between appellant’s pleas to the entire amount in light of his apparent
entitlement to a lesser amount. The only thing the judge established was that
appellant never properly applied for the allowance at the without-dependent rate.

       We reject the approach of the Navy and Marine Corps Court of Criminal
Appeals and find that theft of BAH, under these circumstances, amounts to a
separate larceny each month the money is received. See United States v. Rupert, 25
M.J. 531, 532 (A.C.M.R. 1987); contra United States v. Lepresti, 52 M.J. 644, 653
(N.M. Ct. Crim. App. 1999) (describing this type of theft as a continuing larceny of
an aggregated amount). 2 “For an accused to be convicted of larceny of property
having a value of over [$500.00], the record must show either that one item of the
property stolen has such a value or that several items taken at substantially the same
time and place have such an aggregate value.” United States v. Christensen, 45
M.J. 617, 619 (Army Ct. Crim. App. 1997) (quoting Rupert, 25 M.J. at 532). See
also United States v. Harding, 61 M.J 526, 528 (Army Ct. Crim. App. 2005). Here
appellant never satisfactorily admitted to a single larceny in an amount over $500.00
and only providently admitted to a series of separate larcenies each in an amount
less than $500.00 and each, at a month apart, at substantially different times.
Therefore, we approve findings of guilty to reflect that lower amount. Id. 3; United
States v. Hayes, 70 M.J. 454, 458 (C.A.A.F. 2012); United States v. Phillippe, 63
M.J. 307, 309 (C.A.A.F. 2006); UCMJ art. 45(a); Rule for Court-Martial [hereinafter
R.C.M.] 910(h)(2).

       Though the maximum amount of confinement available to impose is therefore
reduced from 30 years, 6 months to 12 years, 3 months, under the specific
circumstances of this case, a rehearing on sentence is unwarranted. United States v.
Sales, 22 M.J. 305 (C.M.A. 1986). The aggravating factor of the total amount of
money taken was properly before the court-martial, and appellant received
punishment far below the maximum authorized at the lesser amount of money.
Reassessing the sentence on the basis of the errors noted, the entire record, and in

2
  Decisions of our superior court relied upon by our sister court reveal cases where
the appellant took monthly amounts that were each in excess of the value necessary
to warrant the greater maximum punishment authorized. See United States v. Helms,
47 M.J. 1, 2 (C.A.A.F. 1997); United States v. Bulger, 41 M.J. 194 (C.M.A. 1994).
3
  When the government alleges separate larcenies on divers occasions, for example,
the maximum punishment is defined by reference to the standard articulated in
Rupert. We find the situation here to be analogous.


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HINES — ARMY 20120024

accordance with the principles of Sales, 22 M.J. 305, and United States v. Moffeit,
63 M.J. 40 (C.A.A.F. 2006), to include the factors identified by Judge Baker in his
concurring opinion in Moffeit, we are confident that appellant would have received a
sentence at least as severe as that approved.

                                  CONCLUSION

       We have examined the entire record and the parties’ briefs. We affirm only
so much of the findings of guilty to Specification 1 of Charge II as states that
appellant “[d]id at or near Fort Campbell, Kentucky, between on or about 19 October
2010 and on or about 18 April 2011, steal Basic Allowance for Housing
entitlements, military property, of a value of less than $500.00, the property of the
United States”; as to Specification 2 of Charge II as states appellant “[d]id, at or
near Bagram Airfield, Afghanistan, and at or near Forward Operating Base Gardez,
Afghanistan, between on or about 21 April 2009 and on or about 8 June 2010, steal
Family Separation Allowance entitlements, military property, of a value less than
$500.00, the property of the United States”; and as to Specification 3 of Charge II as
states appellant “[d]id, at or near Fort Bragg, North Carolina, and at or near Bagram,
Airfield, Afghanistan, and at or near Forward Operating Base Gardez, Afghanistan,
between on or about 27 May 2008 and on or about 18 October 2010, wrongfully
appropriate Basic Allowance for Housing entitlements, military property, of a value
of less than $500.00, the property of the United States.” The remaining findings of
guilty and the sentence are AFFIRMED.


                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




                                       MALCOLM H. SQUIRES, JR.
                                       MALCOLM H. SQUIRES, JR.
                                       Clerk of Court
                                       Clerk of Court




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