                        UNITED STATES, Appellee

                                     V.

                      Shannon R. BULLMAN, Captain
                       U.S. Air Force, Appellant


                               No. 01-0647


                          Crim. App. No. 34403



       United States Court of Appeals for the Armed Forces

                        Argued November 28, 2001

                         Decided March 26, 2002

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

                                  Counsel
For Appellant: Lieutenant Colonel Timothy W. Murphy (argued);
   Lieutenant Colonel Beverly B. Knott, Captain Patrick J.
   Dolan, and Captain Patience E. Schermer (on brief).

For Appellee: Major Jennifer R. Rider (argued); Colonel Anthony
   P. Dattilo and Major Lance B. Sigmon (on brief).

Military Judge:    Michael A. Kilroy


  This opinion is subject to editorial correction before final publication.
United States v. Bullman, No. 01-0647/AF


      Judge GIERKE delivered the opinion of the Court.

      A general court-martial convicted appellant, pursuant to his

pleas, of attempting to use a government credit card for personal

use, using a government credit card for personal use, four

specifications of dishonorably failing to maintain sufficient

funds in his bank for payment of checks or drafts, and

dishonorable failure to pay a debt to the Army and Air Force

Exchange Service (AAFES), in violation of Articles 80, 92, and

134, Uniform Code of Military Justice, 10 USC §§ 880, 892, and

934, respectively.      The adjudged and approved sentence provides

for a dismissal from the service.          The Court of Criminal Appeals

affirmed in an unpublished opinion.

      We granted review of the following issue specified by the

Court:

      WHETHER APPELLANT’S PLEA OF GUILTY TO SPECIFICATION 1 OF
      CHARGE III (DISHONORABLE FAILURE TO PAY A JUST DEBT) WAS
      IMPROVIDENT.

We hold that the plea of guilty was improvident.

                         The Guilty Plea Inquiry
      The granted issue in this case involves appellant’s failure
to make timely payments on his Deferred Payment Plan (DPP)

account with AAFES.      The military judge advised appellant of the

elements of the offense as follows:

            First, that you were indebted to the Army and Air Force
            Exchange Service in the sum of $428.45 for charges made
            on a deferred payment plan.

            Second, that this debt became due and payable on or
            about the 9th of October of 1999.

            Three, that at or near Osan Air Base, Republic of
            Korea, from about the 9th of October 1999 to about the
            8th of December of 1999, while the debt was still due
            and payable, you dishonorably failed to pay the debt.


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United States v. Bullman, No. 01-0647/AF



            And, four, that under the circumstances your conduct
            was to the prejudice of good order and discipline in
            the armed forces or was of a nature to bring discredit
            upon the armed forces.

      The military judge did not define “dishonorable” as it

applied to appellant’s failure to pay the AAFES debt.             He had

defined “dishonorable” as it applied to the bad checks,1 but he

did not advise appellant whether the same definition applied to

the AAFES debt.

      A stipulation of fact recites the following regarding the

AAFES debt:

            7. Between 9 October and 8 December 1999, the Accused
            failed to pay a just debt to AAFES for charges he made
            on his Deferred Payment Plan (DPP) in the amount of
            $428.45. He did not make the payments because his
            prior bad checks had resulted in garnishments of his
            pay such that he could not make the DPP payments; he
            further did not attempt to work out an acceptable
            payment plan with AAFES. His failure to pay was
            dishonorable and was prejudicial to good order and
            discipline in the armed forces. Further, it was of a
            nature to bring discredit on the armed forces in that
            it had a tendency to diminish the esteem with which the
            Air Force is viewed by employees of AAFES and by others
            who might hear of his actions.[2]
            8. The Accused’s checking account at Eisenhower
            National Bank was credited $1,185.06 on 1 July 1999,
            which was the amount to which the Accused was entitled
            after his income tax, other deductions, and voluntary
            bank allotments were taken from his pay. As a result
            of recoupment actions initiated in June 1999 to pay
            other outstanding debts, he received $281.03 on 15 July
            1999 and $281.01 on 30 July 1999. As a result of
            another recoupment action initiated in July 1999, he
            was paid $828.03 on August 13, 1999. His Eisenhower
1
  During the inquiry into appellant’s pleas of guilty to the bad-check
offenses, the military judge advised him that the term “dishonorable” means “a
failure which is fraudulent, deceitful, a willful evasion, made in bad faith,
deliberate, based on false promises, or which indicates a grossly indifferent
attitude towards the status of one’s bank account and that person’s just
obligations.”
2
  These two sentences regarding dishonorable conduct, prejudice to good order
and discipline, and discredit on the armed forces are repeated in the
stipulation of fact for each of the bad-check offenses, as well as the failure
to pay the debt to AAFES.


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United States v. Bullman, No. 01-0647/AF


            National Bank account was debited $367.36 on 15 July
            and 16 August 1999 to cover the Accused’s loan from the
            bank, and it was debited $21.95 on 6 July 1999 and 16
            August 1999 to pay for his account with America Online.

            9. The Accused borrowed money from his relatives and
            used some of his own pay to made [sic] deposits of
            $1060.00, $1000.00, $800.00 and $800.00 to the Osan
            Community Bank on 2 November 1999, 5 November 1999, 30
            December 1999 and 1 February 2000, respectively.
            During this period, the Accused received a loan from
            the Air Force Aid Society to help him with his
            expenses. He brought [the] Community Bank account to a
            positive balance on 1 February 2000, when he closed his
            account there. Between 25 August 1999 and 7 March
            2000, AAFES took amounts between $600.00 and $1896.00
            from the Accused’s net monthly pay, which averaged from
            $2,400.00 to $2,600.00. These amounts, combined with
            cash payments to AAFES, were applied until the checks
            and service fees were repaid and his DPP card was
            current.

      The military judge questioned appellant about his plea of

guilty to this offense as follows:

            MJ: Lets talk about Specification 1 of Charge III.
            Why don’t you tell me what happened on that?

            ACC: Charge III, Specification 1, I owed a debt of
            $428.45 to the Army, Air Force Exchange Service for
            charges made on my deferred payment plan. The sum
            became due on 9 October 1999, and from 9 October 1999
            to 8 December 1999 I dishonorably failed to pay this
            amount of money to AAFES. My failure to pay this bill
            was of a nature to bring discredit upon the armed
            forces [in] that it had a tendency to diminish the
            esteem with which the Air Force is viewed by employees
            of AAFES and others who might hear of my actions.[3]
            MJ: Now, apparently your bill with DPP was due
            somewhere around the 9th of each month is –

            ACC: The 8th, yes, sir.

            MJ: So, each month, at least beginning with the 9th of
            October you had a debt with AAFES under your deferred
            payment plan for $428.00?

            ACC:   Yes, sir, approximately.

3
  The last sentence of this response is virtually identical to appellant’s
response regarding each of the bad-check offenses and is virtually identical
to the language of the stipulation of fact.



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United States v. Bullman, No. 01-0647/AF



            MJ:    And, you knew that you had that debt?

            ACC:    Yes, sir.

            MJ: And, you knew that you had to make payments on a
            monthly basis?

            ACC:    Yes, sir.

            MJ: Did you make any payments between the 9th of
            October of last year and the 8th of December of last
            year to AAFES to cover this payment plan?

            ACC: No, sir. At the time, because of the fact of my
            gross indifference with the situations [sic] prior
            charges, I did not have any money in my account coming
            in to be able to pay that debt.

            MJ: Well, did you try to pay it with anything other
            than the Eisenhower National Bank?

            ACC:    No, sir.    I had no cash on hand.

            MJ: Did you make any arrangements or even talk with
            people at AAFES about the debt?

            [The Accused consulted with his defense attorneys.]

            ACC: When I had went [sic] over to Air Force Aide
            [sic] to get money for them to help, Kermit Basel from
            the Family Support Center had called AAFES for me with
            me sitting there, and they said that they had already
            initiated garnishment on my account because the
            payments were so far past due. But, other than that,
            no, sir.

            MJ:    When did that take place?

            ACC:    Sometime in November.

            MJ: And, did, in fact, some kind of garnishment action
            take place where they were taking money out of your
            account?

            ACC:    Yes, sir.

            MJ: But apparently it wasn’t enough to pay it until
            sometime after the 8th of December?
            ACC: Total, yes, sir, because of the amount of money
            that was coming out of my paycheck for the garnishment
            and the allotment I had made to Community Bank. AAFES,
            in November and December took out almost $1,900.00 out
            of my pay in conjunction with the $800.00. I was doing


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United States v. Bullman, No. 01-0647/AF


            an allotment to Community Bank where my pay in November
            for the 15th and the 1st of December was approximately
            $250.00 each paycheck, and then December was
            approximately $300.00 for the 15th and my 1 January
            paycheck was a dime.

            MJ: But, of all the money that AAFES was taking out,
            not all of that was going towards this debt under the
            payment plan, it was going towards the other checks as
            well—

            ACC: It was going for the checks, for the service fees
            and for the DPP.

            MJ: Recognizing that they were doing what’s called an
            involuntary action on your part in taking the money out
            of your account, you did nothing other than that though
            in an attempt to pay the deferment?

            ACC:   No, sir, not until February.

            MJ: Was there anything other than the obvious lack of
            money to prohibit you from working with AAFES to try to
            work out some sort of an arrangement—

            ACC: No, sir. If I would have had the cash, I would
            have made the payments.

Unlike his inquiry into the bad-check offenses, the military

judge did not further inquire why appellant believed that his

failure to pay the AAFES debt was dishonorable.4
                                 Discussion

      Appellant contends that his plea of guilty was improvident
because the military judge failed to define “dishonorable”

conduct, failed to elicit facts from appellant to establish that

his conduct was dishonorable, and failed to resolve

inconsistencies between appellant’s statements and his guilty

plea.   Final Brief at 7.      The Government argues that the record


4
  In the stipulation of fact, appellant admitted that the bad checks were the
result of his “gross indifference to his financial obligations.” During the
plea inquiry, appellant told the military judge that he was grossly
indifferent to the status of his checking account balance because he did not
keep a check register but “attempted to do so in [his] head.”



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United States v. Bullman, No. 01-0647/AF


as a whole reflects that appellant knew the elements of the

offense and admitted them, and that there is a factual basis for

the plea.    Answer to Final Brief at 1, 8.

      Article 45(a), UCMJ, 10 USC § 845(a), provides:

            If an accused . . . after a plea of guilty sets up
            matter inconsistent with the plea, or if it appears
            that he has entered the plea of guilty improvidently or
            through lack of understanding of its meaning and
            effect, . . . a plea of not guilty shall be entered in
            the record, and the court shall proceed as though he
            had pleaded not guilty.

      RCM 910(c), Manual for Courts-Martial, United States (2000

ed.) requires the military judge to inform the accused of the

nature of the offense to which the guilty plea is offered.          The

rule implements United States v. Care, 18 USCMA 535, 541, 40 CMR
247, 253 (1969), requiring the military judge to question an

accused “about what he did or did not do, and what he intended

(where this is pertinent), to make clear the basis for a

determination by the military trial judge . . . whether the acts

or the omissions of the accused constitute the offense . . . to

which he is pleading guilty.”        See also United States v.

Faircloth, 45 MJ 172, 174 (1996).
      RCM 910(e) requires the military judge to make “such inquiry

of the accused as shall satisfy the military judge that there is

a factual basis for the plea.”        This rule implements United

States v. Davenport, 9 MJ 364, 367 (CMA 1980), requiring that

“the factual circumstances as revealed by the accused himself

objectively support that plea [of guilty.]”        It is not enough to

elicit legal conclusions.       The military judge must elicit facts

from which the military judge can determine the factual basis for

the plea.    See United States v. Outhier, 45 MJ 326, 331 (1996).


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United States v. Bullman, No. 01-0647/AF


      A mere possibility of a defense does not render a plea of

guilty improvident.      United States v. Prater, 32 MJ 433, 436 (CMA

1991).    On appeal, a guilty plea should be overturned only if the

record fails to objectively support the plea or there is

“evidence in ‘substantial conflict’ with the pleas of guilty.”

See United States v. Higgins, 40 MJ 67, 68 (CMA 1994).      In

deciding whether a plea is rendered improvident by statements

inconsistent with the plea, the sole question is whether the

statement was inconsistent, not whether it was credible or

plausible.    United States v. Lee, 16 MJ 278, 281 (CMA 1983).
      A mere failure to pay a debt does not establish dishonorable

conduct.    United States v. Gardner, 35 MJ 300, 301 (CMA 1992).

Even a negligent failure to pay a debt is not “dishonorable.”

United States v. Kirksey, 6 USCMA 556, 560, 20 CMR 272, 276

(1955).    In United States v. Downard, 6 USCMA 538, 542, 20 CMR

254, 258 (1955), this Court observed that “the term

‘dishonorable’ connotes a state of mind amounting to gross

indifference or bad faith,” and that “simple negligence alone

will not suffice.”      This Court concluded:
            Thus, the offense of dishonorable neglect to discharge
            pecuniary obligations contemplated that the failure to
            pay be characterized by deceit, evasion, false
            promises, denial of indebtedness, or other distinctly
            culpable circumstances.

Id. at 543, 20 CMR at 259.

      These judicial definitions of dishonorable conduct are

encapsulated in paragraph 71c, Part IV, Manual, supra, as

follows:

            More than negligence in nonpayment is necessary. The
            failure to pay must be characterized by deceit,
            evasion, false promises, or other distinctly culpable


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United States v. Bullman, No. 01-0647/AF


            circumstances indicating a deliberate nonpayment or
            grossly indifferent attitude toward one’s just
            obligations.

      In United States v. Schneiderman, 12 USCMA 494, 31 CMR 80

(1961), this Court held the following statement in extenuation

and mitigation was inconsistent with a plea of guilty to

dishonorable failure to pay debts:

            [T]hat [appellant] overextended himself because of the
            easy credit terms made available to members of the
            naval service; that he tried to keep up his payments;
            that he was unable to do so; that he was required by a
            military order to pay off debts to other personnel;
            and, finally, that he had written his creditors and
            made satisfactory arrangements with them to liquidate
            his indebtedness.

This Court held:

            The entire tenor of the declaration is inconsistent
            with any idea that accused’s failure to pay his
            creditors was fraudulent, deceitful, or evasive. Not
            only does it clearly depict that his nonfeasance was
            predicated upon an inability to pay, but it concludes
            with the statement that satisfactory arrangements had
            been made with his creditors. Both these factors are
            at odds with the allegation of dishonorable conduct to
            which he pleaded guilty.

Id. at 496, 31 CMR at 82 (emphasis added).

      In United States v. Hilton, 39 MJ 97, 100 (CMA 1994), this
Court recognized that financial inability to pay must be

considered in determining whether failure to pay a debt is

dishonorable.     In Hilton, this Court found a guilty plea

provident because, although the appellant asserted that she was

unable to pay the debt, she admitted that she was receiving her

full military pay of $724.20 per month, that the amount due was

only $50.00, and that she deliberately avoided her creditors.

Id. at 101.




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United States v. Bullman, No. 01-0647/AF


      Similarly, in United States v. Bester, 42 MJ 75, 77-78

(1995), this Court found a guilty plea provident, even though the

appellant asserted inability to pay a debt.     However, in Bester,

the military judge elicited admissions from the accused that his

military pay was stopped because he was absent without authority,

that he was physically able to find work and pay the debt but did

not do so, and that he deceived his creditor about the reasons

for nonpayment.

      Applying these precedents to appellant’s three-pronged

attack on the providence of his guilty plea, we conclude that the

plea is improvident.      We agree with appellant that the military

judge did not define the term “dishonorable” during his inquiry

into the plea of guilty to dishonorably failing to pay the AAFES

debt.   The military judge did not mention the term as it applied

to the debt, nor did he tell appellant whether the term as

applied to the bad checks had the same meaning when applied to

the debt.

      We also agree with appellant’s claim that the military judge

did not elicit a sufficient factual predicate for the guilty plea

to dishonorably failing to pay the AAFES debt.     Although

appellant told the military judge he believed he was grossly

indifferent to his various checking accounts because he did not

keep a written check register, there is nothing in the plea

inquiry showing why appellant believed that his conduct regarding

the AAFES debt was “characterized by deceit, evasion, false

promises, or other distinctly culpable circumstances indicating a

deliberate nonpayment or grossly indifferent attitude.”       Para.

71c, Part IV, Manual, supra.


                                      10
United States v. Bullman, No. 01-0647/AF


      Rather than elicit facts about appellant’s efforts to pay

the debt, the military judge elicited only legal conclusions, in

which appellant repeated verbatim the conclusions in the written

stipulation of fact, to wit: “I dishonorably failed to pay this

amount of money to AAFES.       My failure to pay this bill was of a

nature to bring discredit upon the armed forces [in] that it had

a tendency to diminish the esteem with which the Air Force is

viewed by employees of AAFES and others who might hear of my

actions.”    We hold that this rote recitation of the elements of

the offense was inadequate.       See United States v. Outhier, supra.
      Finally, we agree that appellant made statements and

stipulated to facts inconsistent with dishonorable conduct.              The

most obvious is appellant’s assertion, “If I would have had the

cash, I would have made the payments.”          The stipulation of fact

shows that appellant’s difficulties with his checking accounts

began in April of 1997, two-and-a-half years before the first

AAFES debt was overdue.5      The record also shows that appellant

borrowed money from relatives and from the Air Force Aid Society.

The record further shows that a representative of the base family
support center contacted AAFES on appellant’s behalf regarding

the possibility of making voluntary arrangements to pay the debt.

Appellant’s representative was informed that AAFES had already

initiated involuntary pay withholding from appellant’s monthly

pay, thereby preempting any voluntary arrangement.            Finally, the

stipulation recites that, even while AAFES was making involuntary



5
  In his unsworn statement during the sentencing hearing, appellant stated
that his financial difficulties began in April 1997, when he assumed almost
$49,000 in credit card debt as a result of a divorce.


                                      11
United States v. Bullman, No. 01-0647/AF


collections from appellant’s pay, he made additional cash

payments to AAFES.      All arrears were paid and the account was

current by the time of appellant’s court-martial.          These facts

are inconsistent with dishonorable conduct.

      The facts in this case are strikingly similar to those in

Schneiderman, supra, except for the existence of a mutually

agreeable payment plan, which was preempted by AAFES’s actions in

this case.    This record is significantly different from the

records in Hilton and Bester, supra.          Unlike the Hilton record,
this record shows that garnishments and the AAFES involuntary

collections substantially reduced appellant’s military pay.

During the plea inquiry, appellant told the military judge that

AAFES withheld “almost $1900” from his pay in November and

December.    He received only about $250 on November 15 and

December 1, $300 on December 15, and ten cents on January 1.

Unlike the Hilton and Bester records, this record shows that

appellant dealt forthrightly with AAFES officials and did not

attempt to deceive or avoid them.          To the contrary, his

representative contacted AAFES about the possibility of voluntary
repayment.    Unlike the Hilton and Bester records, this record

shows that appellant borrowed money to pay AAFES.          Finally,

unlike the Hilton and Bester records, this record shows that

appellant made voluntary payments, even while AAFES was making

involuntary collections.

      Because the military judge failed to define dishonorable

conduct with respect to the AAFES debt, failed to elicit a

factual predicate for dishonorable conduct regarding the debt,




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United States v. Bullman, No. 01-0647/AF


and failed to resolve the inconsistencies between appellant’s

responses and his guilty plea, we hold that appellant’s guilty

plea to this offense was improvident.

                                  Decision

      The decision of the United States Air Force Court of

Criminal Appeals is reversed as to specification 1 of Charge III

and as to sentence, but is affirmed in all other respects.      The

finding of guilty of specification 1 of Charge III and the

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

Judge Advocate General of the Air Force for remand to the Court

of Criminal Appeals.      That court may either dismiss specification

1 of Charge III and reassess the sentence, or it may order a

rehearing.




                                      13
United States v. Bullman, No. 01-0647/AF


     CRAWFORD, Chief Judge (dissenting):

     At the time appellant committed the offenses to which he

pled guilty and was convicted, he was a Captain with about

seventeen years of service.   The record of trial, supported by

appellant’s own statements, reflects that his fiscal

irresponsibility began when he arrived in Korea for an

unaccompanied tour.   There, he met a “juicy girl,” a female

hired by a bar to encourage men to purchase drinks.    Apparently

appellant fell in love with this girl and began to expend large

amounts of money to pay “bar fines.”   A “bar fine” is an amount

of money equal to the total sums that a “juicy girl” would earn

during an evening of persuading male patrons to purchase drinks.

During this courtship (which ended in marriage), appellant wrote

and uttered a total of over $14,000 in dishonored checks.

     During this same period, appellant purchased items from the

Army and Air Force Exchange Service (AAFES), using the deferred

payment plan (DPP) as the payment vehicle.   The specification to

which appellant pled guilty shows that between October 1999 and

December 1999, he dishonorably failed to pay AAFES the sum of

approximately $428.45.

     The stipulation of fact relates that:

          Between 9 October and 8 December 1999,
          [appellant] failed to pay a just debt
          to AAFES for charges he made on his
          Deferred Payment Plan (DPP) in the
          amount of $428.45. He did not make the
United States v. Bullman, No. 01-0647/AF


          payments because his prior bad checks
          had resulted in garnishments of his pay
          such that he could not make the DPP
          payments; he further did not attempt to
          work out an acceptable payment plan
          with AAFES. His failure to pay was
          dishonorable and was prejudicial to
          good order and discipline in the armed
          forces. Further, it was of a nature to
          bring discredit on the armed forces in
          that it had a tendency to diminish the
          esteem with which the Air Force is
          viewed by employees of AAFES and by
          others who might hear of his actions.

(Emphasis added.)

     The discussion of this offense with the military judge,

___ MJ at (4-6), clearly shows that appellant understood the

offense to which he was pleading guilty and gave his assent to

the accuracy of the stipulation of fact.   See United States v.

Vonn, ___ U.S. ___, ___, 122 S.Ct. 1043, 1052-53 (2002)(omission

from guilty plea inquiry results in reversal of conviction only

when appellant demonstrates his substantial rights were

affected, i.e., no automatic reversal when mistake conducting

inquiry under Fed.R.Crim.P. 11 does not impact on “the

overarching issues of knowledge and voluntariness”); RCM 910(c)

and (e), Manual for Courts-Martial, United States (2000 ed.).

     The standard of review for determining the providence of a

guilty plea is whether there is a substantial conflict raised in

the record between appellant’s plea of guilty and some

inconsistent statement.   See, United States v. Bickley, 50 MJ 93



                                 2
United States v. Bullman, No. 01-0647/AF


(1999).    Rejecting a guilty plea “requires that the record of

trial show a ‘substantial basis’ in law and fact for questioning

[that] plea.”    United States v. Prater, 32 MJ 433, 436 (CMA

1991).

     At issue is whether appellant’s conduct was “dishonorable,”

whether appellant understood the definition of “dishonorable”

and believed his failure to pay his DPP debt was in fact

dishonorable, and whether the inquiry under United States v.

Care, 18 USCMA 535, 40 CMR 247 (1969), taken as a whole,

supports the guilty plea.    In my opinion, this Court’s holdings

in United States v. Bester, 42 MJ 75 (1995), and United States

v. Hilton, 39 MJ 97 (CMA 1994), are dispositive of appellant’s

arguments.

     The gravamen of appellant’s contention, supported by the

majority, is that AAFES, not appellant, is at the root of the

problem.    In short, appellant was unable to pay his DPP debt

because AAFES garnished his salary in order to recoup thousands

of dollars in worthless checks appellant had uttered at AAFES.

Appellant’s logic reminds me of Flip Wilson’s “the devil made me

do it” comedy routine.

     Our cases and RCM 916(i), Manual for Courts-Martial, United

States (2000 ed.), make the defense of inability to pay

available only if the accused can show:




                                  3
United States v. Bullman, No. 01-0647/AF


     1.   An extrinsic factor(s) over which the accused had no

control; and

     2.   Noncompliance was not due to the fault of the accused

after he had an obligation to pay, and the extrinsic factor(s)

could not be remedied by the accused’s timely legal efforts.

     The defense of inability to pay was not available in

Bester, nor in Hilton, both supra; nor is it available to

appellant.    It was appellant who created his own situation by

having more debts than earnings, and he should not be allowed to

use a situation of his own making as an excuse to defeat a

charge of dishonorable failure to pay just debts.

     “If the physical or financial inability of the accused

occurred through the accused’s own fault or design, [the

inability to pay] is not a defense.”    RCM 916(i)

Discussion.    Therefore, in order for the majority to be

correct in its reversal, appellant’s inability to pay

needed to have been completely out of his hands, and not of

his own creation.    Yet, appellant himself stated that his

actions were dishonorable based on his gross indifference

to his prior financial situation.

     “While financial inability by itself may not be a complete

defense to a dishonorable failure to pay a just debt, it is a

fact to be considered with others in determining whether such a

failure was dishonorable....    Such a conclusion stems from well-


                                  4
United States v. Bullman, No. 01-0647/AF


established military law that all the facts of the case must be

considered in finding dishonor.”       Hilton, 39 MJ at 100 (citation

omitted).   In other words, the record must be considered as a

whole.   Id.

     In reading the record as a whole, I am convinced that when

appellant pled guilty, he understood the meaning of

“dishonorable.”   Any contention that the military judge failed

to define “dishonorable” in the context of appellant’s DPP debt

is without substance.   The record of trial clearly reflects that

the military judge informed appellant of the elements of the

three specifications under Charge III, and then explained the

meaning of various words, to include dishonorable conduct,

included within those specifications.      There is no requirement

for a military judge sua sponte to stop in mid-sentence during a

providence inquiry to explain a definition.      Furthermore, the

Care inquiry, taken as a whole, neither establishes a defense to

the crime in question nor reflects any inconsistencies that

should have led the military judge to reject the guilty plea.

     Accordingly, I would affirm the decision of the Air

Force Court of Criminal Appeals.




                                   5
United States v. Bullman, No. 01-0647/AF

    SULLIVAN, Senior Judge (dissenting):


    Appellant, a thirty-six-year old Captain with seventeen years

of service, pleaded guilty in this case on the advice of

competent counsel.   He voluntarily entered a plea of guilty and

admitted that his repeated failure to make his deferred payment

plan payment without personally contacting service Exchange

authorities was dishonorable.   On appeal before the Court of

Criminal Appeals and this Court and, again, with the advice of

competent counsel, he made no claim that his guilty plea was

invalid.   Yet, a majority of this Court on its own granted a

specified issue on this question, and now a majority sets aside

his guilty plea to the above offense.   I think this Court should,

like the trial judge and appellate court below, take this

experienced and well-advised officer at his word - that he was

guilty of the charge of dishonorably failing to pay a just debt.



    Turning first to the question of dishonor, or what was

dishonorable conduct, I agree with Chief Judge Crawford.    The

military judge advised appellant what “dishonorable” meant in the

context of his discussion of appellant’s dishonorable failure to

maintain sufficient finds to cover numerous personal checks.      He

said, “An accused’s conduct in maintaining his bank account must

have been dishonorable, that is, a failure which is fraudulent,

deceitful, a willful evasion, made in bad faith, deliberate,

based on false promises, or which indicates a grossly indifferent
United States v. Bullman,   No. 01-0647/AF

attitude towards the status of one’s bank account and that

person’s just obligations.” (R.37)   The judge used that same term

to describe appellant’s failure to make three successive monthly

payments of $428.45 after he had earlier issued two bad checks to

cover his debt to AAFES. (R.47-48, 50-52)    See paras. 68c and

71c, Part IV, Manual for Courts-Martial, United States (1998

ed.)(using same definition of dishonor for bad checks and

failure-to-pay offenses).   There was no confusion in this case on

the meaning of dishonor.



    Secondly, the majority overlooks portions of this record

which overwhelming support appellant’s plea of guilty to

dishonorably failing to pay a just debt.     The record shows that

as a lieutenant, appellant divorced his officer wife in 1997 and

assumed $49,000 in credit-card debt.   He had accumulated that

debt with his first wife and was required to make payments of

$1600 per month. (R.275, 277)



     In September of 1998, appellant was transferred to Osan,

Korea, where he met his soon-to-be second wife, L. (R.278)    She

was a “juicy girl” in a downtown bar, a female employed by a

local bar whose job was to encourage men to purchase drinks.

(R.279)   During his courtship, appellant spent large amounts of

money to pay “bar fines,” sums equal to the amount of money that

she was expected to produce for the bar during the evening by her

persuading male companions to drink. (R.285-86)    It was these bar


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United States v. Bullman,   No. 01-0647/AF

fine payments which caused appellant to write the majority of his

dishonored checks and be unable to make his deferred payments to

the Exchange when due.



   All told, appellant made and uttered a total of $14,906.18 in

dishonored checks.   About $14,000 of these were uttered within an

eleven-month period beginning in November 1998 and ending in

September 1999.   In late September 1999, appellant discussed his

financial situation with his commander and placed himself in the

hands of a credit counselor.   In October, November, and December

of 1999, however, he failed to make payments under a deferred

payment program to AAFES without personally contacting that

organization.   Neither his subsequent attempt to use the Air

Force Aid Society as a financial intercessor, nor his later

payment of this debt, logically or legally prelude a finding of

dishonor.



   Thirdly, as to appellant’s inability to pay, this Court has

held on several occasions that one’s financial condition does not

excuse this crime where the inability to pay was the product of

one’s own dereliction.   See United States v. Bester, 42 MJ 75

(1995); United States v. Hilton, 39 MJ 97 (CMA 1994).   The

majority suggests appellant’s financial plight resulted from his

divorce and assumption of a large credit card debt.   However, it

is clear from the record as a whole that the financial breakdown

which resulted in his nonpayment of his just debts stemmed from


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United States v. Bullman,   No. 01-0647/AF

his financial efforts to prevent his girlfriend from having to

hustle drinks.   Only four of the bad checks in this case were

made and uttered prior to appellant’s arrival in Korea, and could

be logically attributed to his earlier divorce.*



    Finally, this is not a case like United States v.

Schneiderman, 12 USCMA 494, 31 CMR 80 (1961), where the entire

tenor of the accused’s statement was inconsistent with a finding

of dishonor.   Admittedly, appellant did testify that “[he] had no

cash on hand,” and “that “[i]f [he] would have had the cash, [he]

would have made the payments.” (R.51-52) Such post-offense

speculation, however, does not constitute a defense to a

dishonorable failure to pay a just debt.     Moreover, the

majority’s over-reliance on these self-serving statements to the

exclusion of the remainder of the record, which overwhelmingly

established appellant’s financial arrogance, is certainly not

warranted.   Again, I would take appellant at his word and affirm

his guilty plea for a dishonorable failure to pay a just debt.

See United States v. Harrison, 26 MJ 474 (CMA 1988).


*
   The total amount of these four checks was $1,100. In
addition, appellant made and uttered an additional dishonored
check for $300 which, while presented after he arrived in Korea,
does not appear to be related to his overall financial downfall.




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