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affirmed in an unpublished opinion.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.
4
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.”
6
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).
7
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
8
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.
9
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,
12
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
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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
2
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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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.
4