Opinion of the Court
HomeR FERGUSON, Judge:
Tried by general court-martial, the accused was found guilty of four violations of the Uniform Code of Military Justice, Article 134, 10 USC § 934, in that he, on four separate occasions, made and uttered checks and thereafter wrongfully and dishonorably failed to place or maintain sufficient funds for their payment in the bank upon which they were drawn. Following affirmance of the findings and sentence by a board of review, The Judge Advocate General of the Air Force certified to this Court the following question:
"Was the Board of Review correct in finding the evidence legally sufficient to establish the required element of dishonorable failure to maintain sufficient funds in the accused's checking account, considering the showing that he offered to redeem the checks prior to their actual dishonor by the drawee bank?"
The accused's petition for review, based upon specific allegations of error, was granted by this Court on March 3, 1959. However, our disposition of the certified issue eliminates the necessity for any discussion with respect to the matters set forth in the petition.
Uncontradicted evidence establishes that the accused, a warrant officer stationed at Komaki Air Base, Japan, made and uttered four checks, drawn on the National Bank of Fort Sam Houston, San Antonio, Texas, whose face value totaled $90.00. The checks were cashed at the Komaki Air Base Airmen's Open Mess on February 8, 11 and 12, 1958. It is equally undisputed that the accused visited the Open Mess on February 17, 1958; informed the custodian that the checks which he had negotiated would be returned for insufficient funds; and offered to redeem them immediately. He tendered to the custodian the sum of $90.00. The custodian had already deposited the checks for collection, and, for various reasons, refused to accept the sum tendered. He "recommended when the checks did come through [i.e., returned by the bank] . . . they could be redeemed then."
The offer of redemption accorded with a practice followed at Komaki Air Base by which officers and airmen were permitted to redeem returned unpaid checks without reference of the matter to their commanding officers. Unfortunately for the accused, a new policy was placed in effect shortly after he drew the cheeks in question. Upon their dishonor on February 21, 1958, the checks were returned through normal banking channels to the Open Mess and forwarded to his commanding officer.
In order to impose criminal liability, an accused's failure to deposit or maintain a sufficient bank bal-anee for the payment of checks previously drawn upon his account must be dishonorable. United States v Downard, 6 USCMA 538, 20 CMR 254; United States v Lightfoot, 7 USCMA 686, 23 CMR 150. That term involves demonstrable bad faith or gross indifference on the part of the accused and, in the analogous offense of dishonorable neglect to discharge pecuniary obligations, is characterized by deceit, evasion, false promises, denial of indebtedness, or other distinctly culpable circumstances. United States v Downard, supra; Winthrop's Military Law and Precedents, 2d ed, 1920 Reprint, page 715.
Considered as a whole, the evidence adduced in this case, as a matter of law, does not establish that the accused was grossly indifferent or acted in bad faith. See United States v O'Neal, 1 USCMA 138, 2 CMR 44. The liberal check redemption policy at Komaki, the tender to the custodian of a sum equivalent to the face value of the checks, and the latter's assurance that the instruments could be redeemed upon their return, clearly explain accused's failure to deposit funds in the National Bank of Fort Sam Houston prior to its dishonor of his checks. Certainly, he cannot be held criminally accountable for the failure to maintain a proper bank balance in the face of the custodian's assurance that he would be permitted to repurchase the checks upon their return.
Accordingly, the certified question is answered in the negative. The decision of the board of review is reversed, and the Charge and its specifications are ordered dismissed.
Chief Judge Quinn concurs.