Opinion of the Court
ROBERT E. Quinn, Chief Judge:The accused stands convicted of an eleven-day unauthorized absence and two specifications of issuing bad checks with an intent to deceive, in violation of Articles 86 and 134, respectively, *154Uniform Code of Military Justice, 10 USC §§ 886, 934. He challenges the validity of his conviction because of two alleged errors in the law officer’s instructions.
First, the accused contends he was prejudiced by the failure of the law officer to instruct the court-martial it could, on the basis of the evidence, find him guilty of the lesser offense of issuing a worthless check without intent to deceive, but thereafter dishonorably failing to place sufficient funds on deposit for payment of the check on presentment. See United States v Downard, 6 USCMA 538, 20 CMR 254. That contention is not supported by the evidence. At trial the making and issuance of the checks were conceded by the accused. He also admitted that after issuance of the checks he made no effort whatever to deposit funds for payment because he believed that he always had sufficient funds to cover the checks. The only issue raised by the evidence was whether, at the time of issuance of the checks, the accused believed that about a month before, his father had mailed $285 in cash to the main office of the bank in San Francisco, pursuant to a telephone request by the accused that he take the money with a prepared deposit slip from a jewelry box in his home in Fresno, California. The accused admitted he may have been informed by the head cashier of the Base Area Exchange two days before he negotiated the checks in issue that an earlier check given to the Exchange was returned by the bank for insufficient funds and he promised to make it good. However, he maintained he did not remember the matter when he issued the checks because he was upset.
According to the evidence there were only two alternatives for the court-martial to consider. If the court accepted the defense explanation for the accused’s conduct, the accused was innocent of all wrong. If it rejected the defense contention and accepted the prosecution’s version of the transactions, the accused was guilty as charged. The evidence raised no issue as to the commission of the lesser offense of dishonorably failing to place sufficient funds on deposit for payment of the checks on presentment. Consequently, the law officer was correct in limiting his instructions to the offenses charged. United States v Williams, 9 USCMA 3, 25 CMR 265, 267.
The other part of the disputed instructions deals with the law officer’s definition of the elements of the bad' check offenses. The law officer set out the matters which the court-martial was required to find in order to return a verdict of guilty. The fourth element was to the effect that the court must be-satisfied beyond a reasonable doubt that after the making and uttering of the check, the accused “wrongfully and dishonorably failed” to provide sufficient funds for payment on presentment. Following the enumeration of the elements of the offense, he defined “uttered” and “dishonorably.” His description of the latter term is as follows:
“The term ‘dishonorably’ as used in the specifications refers to conduct that is characterized by fraud, deceit, dishonesty, evasion, or false or fraudulent promises. The term-‘dishonorably’ further as used in the specifications imports that the failure of the accused to maintain sufficient funds in the American Trust Company, Marina Branch, for payment of such checks upon their presentment for payment was characterized by fraud, deceit, willful evasion, bad faith, gross indifference, or false promise. A mere negligent failure-to maintain sufficient funds in a bank for payment of checks drawn thereon is not an offense punishable under the Uniform Code of Military Justice.”
Turning to the evidence, the law officer referred to the testimony by the defense which tended to show that the accused mistakenly believed he had sufficient funds on deposit when he wrote the checks. Instructing on the effect of this belief, he said:
“The defense has introduced evidence to show that at the time of the alleged offenses of making and uttering the worthless checks the accused was under the mistaken belief that *155he had sufficient monies in said bank to cover payment of the checks. With respect to this evidence, the court is advised that if the accused was laboring under such mistake, and if his mistake was honest and not the result of gross indifference, he cannot be found guilty of making and uttering a worthless check, for it is essential to a conviction for this offense that the prosecution prove beyond a reasonable doubt the accused had dishonorably failed to have sufficient funds in said bank for payment of such checks upon their presentment for payment. The burden is on the prosecution to establish the accused’s guilt by legal and competent evidence, beyond a reasonable doubt. Consequently, unless you are satisfied beyond a reasonable doubt that the accused was not under the mistaken belief that he had sufficient funds in said bank to cover the payment of the checks, and likewise satisfied beyond a reasonable doubt that his mistaken belief was the result of gross indifference on his part, you must acquit the accused.”
At the end of the instructions the law 'officer asked counsel if they had any objection or request not previously made, .as regards the instructions. Trial counsel requested a side-bar conference. When that was terminated the law officer further instructed the court-martial as follows:
“LO: At the point in my instructions where I instructed the court with respect to the accused suffering under the honest mistake that he had sufficient funds in the bank to cover his checks, I’d like to specifically point out at this time that that instruction pertains to Specifications 1 and 2 of Charge II, pertains to the Specification and Charge III — it pertains to Specifications 1 and 2 under the Additional Charge. Is that understood by the court?
“(The court responded in the affirmative)
“LO: In other words, the mistake of honest mistake applies to all these charges and specifications, except the one for which the accused has entered a plea of guilty.
“Was there any response to my query of counsel?
“TC: I have nothing more, sir.
“DC: Defense has nothing more, sir.”
Military law recognizes two kinds of bad check offenses: one requires both a specific intent to deceive at the time of the issuance of the check and a dishonorable failure to maintain or provide sufficient funds for payment on presentment of the checks; the other offense presupposes, or disregards, the propriety of the issuance of the check — it is concerned only with dishonor in regard to nonpayment of the check. United States v Downard, supra; United States v Lightfoot, 7 USCMA 686, 23 CMR 150. In most cases, both elements of the principal offense, intent to deceive and dishonor, are established by evidence of falsity, fraud or deceit. However, a significant difference exists in a situation in which there is gross indifference. Negligence, simple or gross, is the absence of conscious thought in regard to a particular act, and is measured in terms of what a reasonable person would do in like circumstances. It is, therefore, altogether different from the subjective state of mind required for an intent to deceive. Consequently, even gross negligence or indifference does not establish an intent to deceive. Hence, an honest, albeit unreasonable, belief in the existence of an nonexistent fact negates the presence of an intent to deceive. But this is not true as to dishonor. We pointed out in the Downard case that dishonor in failing to provide for payment of a check on presentment, may be established not merely by some sort of bad faith but also by “gross indifference.” Dishonor may be shown, therefore, not only by the specific mental state of the accused, but also by his failure to meet the objective norms of a reasonable person. However honest the accused may be in his belief in the existence of a fact, he is nonetheless guilty of dishonor if his belief is the result of gross indifference which results in nonpayment.
*156*155Bearing in mind the difference be*156tween intent in issuance and dishonor in payment, the first and the last of the quoted instructions are correct. In fact, the record of trial shows that the first instruction was expressly requested by defense counsel on the authority of the Downard case. If there is error, therefore, it must be found in the middle instruction. That instruction is not a simple one. The sentences are perhaps too long for oral statement to court members, but the sense is apparent, especially when considered with the preceding instructions on intent and dishonor.
It is contended that, under the instruction, the court-martial could reasonably conclude that it could find the accused guilty upon one of two alternatives: (1) That he entertained a specific intent to deceive when he issued the checks, or, (2) that while the accused had an honest belief his father had mailed $285 to the bank for deposit to his account, this belief at the time of issuance of the checks was the result of gross indifference on his part. Had the instruction stopped at the words “uttering a worthless check,” which appear at the end of the phrase after the first reference to “gross indifference,” there would be substantial merit in the claim of error. United States v Walters, 10 USCMA 598, 28 CMR 164. However, the sentence does not end at that point; it continues with a long statement which qualifies the first part of the sentence and which limits the whole to the element of dishonor. So limited, the instruction is directly in line with the earlier instruction and is correct. The second reference to “gross indifference” in the final sentence is more ambiguous. Again, however, considered with the earlier differentiation between intent at the time of issuance and dishonor as to payment, its meaning becomes clear. The first part of the sentence refers to intent; the second part refers to dishonor.
We are satisfied the instructions as a whole do not present a fair risk that the court-martial was misled into the belief it could find the accused guilty of the offenses charged if it found beyond a reasonable doubt that the accused had no intent to deceive but was laboring under an honest belief as to the state of his account which resulted from gross indifference upon his part. Accordingly, we affirm the decision of the board of review.
Judge LatimeR concurs in the result.