Opinion of the Court
ROBERT E. Quinn, Chief Judge:
Pursuant to Article 67(b)(2), Uniform Code of Military Justice, 10 USC § 867, The Judge Advocate General of the Army has certified the record of trial to this Court on the following issue:
Was the board of review correct in holding that the pleas of guilty were improvident?
The accused was arraigned on two specifications alleging that, with intent to deceive, he issued checks on a bank in which he had no account, and thereafter wrongfully and dishonorably failed to place sufficient funds in the bank for payment on presentment. He pleaded guilty to both offenses. An out-of-court hearing was held before acceptance of the plea. During the hearing the law officer informed the accused of the meaning and effect of the plea, and the punishment to which he was subject. He advised the accused he did not have to plead guilty and he told him to sit down with his counsel, both of whom were members of the bar, and "talk with them seriously" about the plea. When the accused indicated he had conferred with his counsel and that he understood the meaning and effect of the plea, he was advised by the law officer that he could change his plea any time before sentence, by merely telling the law officer or the court he did not want to plead guilty. The accused also informed the law officer he knew he had a right to civilian counsel or to military counsel of his own choice if reasonably available, but he was satisfied with the counsel representing' him at the trial. Finally, he told the law officer he was pleading guilty because he knew he was guilty, and he submitted as an appellate exhibit a letter entitled "Offer to Plead Guilty" in which he noted he had had a "full discussion" with his counsel about the offenses charged, and understood he was presumed to be innocent, and that the burden of proving his guilt beyond a reasonable doubt rested upon the Government; however, he wanted to plead guilty "in the hope" he would secure a more "lenient final sentence."
When court reconvened, the accused's plea of guilty was formally accepted and the case proceeded to findings and sentence. During the sentence procedure the accused testified under oath. He said he had been previously convicted of desertion and sentenced to a dishonorable discharge and confinement at hard labor for one year. Execution of the dishonorable discharge was suspended. Eventually, the accused was released from confinement and restored to duty. However, he did not want to remain in the service. While absent without authority, he had been married and had obtained a job which was "waiting" for him if he could be discharged from the service. As a result the accused "wanted to be separated." His desire was strengthened when he was transferred from Pennsylvania to Oklahoma and separated from his wife. She had initiated a proceeding for divorce, but the accused believed that if he were out of the service and near her, he could "get everything patched up."
Immediately upon arrival at his new post in Oklahoma the accused inquired at the legal office about the possibility of separation. He was informed there was "no way that . . . [he] could get out of the service unless there was 'some other cause" than the court-martial he had been given. Later the accused consulted his commanding officer, the executive officer, and his first sergeant, but "No one of them helped . . . [him] in any form or fashion." The accused then began to review the regulations to find a way to obtain his discharge. What .transpired as a result of his research .is best recounted in the accused's own words:
". . . So I came across AR 635-208. Section II, paragraph 3e, covers unstable financial accounts. And under 209, thei'e is traits and habits in it. So I figured if I showed some evidence of some way that they might be able to eliminate me from the service. That is the only sole purpose I wrote those checks. At all times I had money to cover them. I have also had the money to pay the service charges. The money is on deposit in my battery commander's safe and it has been since the first day I was notified.
"Q. [DC] Concerning these checks, what action did you take, after you wrote the checks, relative to the checks ?
"A. The action I taken, sir, as soon as I found out about them, the sergeant .
"Q. Tell me how you found out about them and what you did with them.
"A. Well, my job was battery clerk in the unit. And the Cl agent called up and asked for the first sergeant. At that time, I didn't know who he was. And I handed the phone to the first sergeant. And the first sergeant answered the phone. And Sergeant Moore was in the orderly room at the time he answered the phone. He turned to Sergeant Moore and said, 'Did you cash a check for someone?' Sergeant Moore pointed to me. The first sergeant informed him the check was returned and he would' have to go down and pick it up. I gave Sergeant Moore $20.00, and the check was for $15.00. At that time, Sergeant Moore went down to the Cl agent, and they would not let him pick up the cheek. And he turned around and gave my $20.00 back. The next day I had to go down and talk to the Cl agent, and I told him I wanted to pick the cheeks up. And he said I would have to do that on my own. Then I went to the Main PX and I tried to pick them up, and they informed me I was at the wrong building and would have to go to the main office. I had no transportation of my own. I had to get a post taxi, and since it was not official business I couldn't get one. About four o'clock that afternoon, my battery commander called me in and told me he was placing me in pretrial confinement. At that time, I gave him two $20.00 bills, which he put in his safe. I explained to him what they were for."
On review of the record of trial, the board of review concluded the circumstances did not show the "animus" required for a criminal conviction and that the accused "grossly misapprehended his legal position." It, therefore, set aside the conviction on the ground that the accused's plea of guilty was improvident.
In our opinion, the board of review misunderstood the effect of the accused's testimony. Nowhere did he disclaim the possession of an intent to deceive the payees when he gave them checks drawn upon nonexistent accounts. In fact, we venture to suggest that had the accused made known his purpose, the payees would have had nothing to do with the transaction. Also, nowhere in his testimony did the accused deny he dishonorably failed to deposit sufficient funds to pay the cheeks on presentment, and that his act resulted in discredit to the armed services. Thus, none of the essential elements of the offenses were denied or repudiated by the accused. True, he said he engaged in his scheme for the purpose of obtaining an administrative discharge. Thus, we know why the accused committed the offenses charged, but the reason does not detract one iota from the criminal character of the acts. As we pointed out in United States v Boudreau, 9 USCMA 286, 26 CMR 66, the motive or purpose behind an act does not necessarily indicate the presence or absence of the kind of intent which the law requires to make the act criminal. The accused by his plea of guilty judicially admitted he possessed the required criminal state of mind necessary for the offenses charged. He thought his conduct would lead to administrative separation from the service. He was mistaken in that belief but his error is not a legal defense to the acts charged. A private scale of values cannot limit the operation or the effect of the penal code. United States v Cummins, 9 USCMA 669, 673, 26 CMR 449.
In its opinion, the board of review appears to have attached considerable importance to the fact that the accused "deposit[ed] money with the company commander, in escrow, to insure against loss to the payees, attempting by this process only to establish an 'unstable financial condition,' and thus technically come within the purview of AR 635-208." What the board of review seems to be saying is that the accused did not believe the course of conduct he chose to follow would amount to a violation of the Uniform Code.
The board of review may be entirely correct in that conclusion. But the evidence unmistakably shows the accused expressly intended to deceive the payees as to the fictitious bank accounts and that he thereafter failed to deposit funds for payment of the checks, to the discredit of the armed services. The accused may at all times have intended to reimburse the payees to the extent of their actual pecuniary loss, but it is unmistakably clear he intended reimbursement only after discovery of his misdeeds. In other words, subsequent reimbursement was simply a means of qualifying the accused as a candidate for administrative disciplinary action. Repayment did not wipe out the earlier deception, dishonor, and discredit to the armed services. The record of trial compellingly shows that the accused miscalculated the disciplinary consequences of his deliberate course of misconduct. This miscalculation is in no way inconsistent with the commission of the offenses to which he pleaded guilty. We conclude, therefore, that the board of review erred as a matter of law in holding that the plea of guilty was improvident.
We answer the certified question in the negative. The record of trial is returned to The Judge Advocate General for submission to the board of review for further proceedings consistent with this opinion.
Judge LatimER concurs.