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Diversion of Whistle-Blower's Fraud "Recovered Funds"
Can Trigger Personal Liability Under The Code of Military Justice (COMJ)

by BOB BALLEW
2002 © BALLEW.COM

Whistle-Blower Whammy

         Military personnel must be extremely cautious and avoid violations of the Code of Military Justice when identifying what is and what isn't part of the fraud recovery in a qui tam fraud action, or, as the Department of Justice Civil Division likes to call them, "Whistle-blower lawsuits." The mandatory term "shall" is used more that 35 times in what Congress wrote into the "fraud against the government" law and it clearly states that any recovered funds are to be delivered to the Treasury Department, with a few exceptions. But therein lies the minefield.
        It is taxpayer money, but the defrauded agency must now face Congressional scrutiny to get the same money reallocated to a program in which the agency did not discover, prevent, terminate or litigate the fraud. Congress investigations may insist that heads may roll and programs and careers may end. Additionally, the presently allocated budget funds required to administer a current, on-going program, have been sent back to the Treasury Department's General Account. Not "use it or lose it"... just lose it.
        An Article 81 Conspiracy and an Article 80 Attempt to illegally divert the funds back to the agency, as "alternate remedies" of contract adjustments, forfeitures, future work, or quid-pro-quo settlement barters in the Board of Contract Appeals, may set in motion violations of the clear and mandatory language of the False Claims Act and trigger a COMJ Article violation. Article 78 Accessory After The Fact charges or even Article 121 Wrongful Appropriation charges could follow a service person's misguided attempt to placate a budget-hungry superior officers wishes to coverup "the dirty laundry", and, with the agreement of the defendents and the Main Justice attorneys, rename the "recovered funds" as something not subject to delivery to Treasury under the False Claims Act and keep it at home.
        If anyone attempts to divert "fraud recovery cash or assets", that is, "...proceeds of the action or settlement of the claim..." away from identification to the District Court of jurisdiction and the Treasury Department's General Fund, they may well be guilty of violations of the Uniform Code of Military Justice and subject to a Court Martial under one of the Articles listed in the table below.
        A retired, Judge Advocate General (JAG) stated anomously (because of the sensitivity of the subject matter) that a misplaced sense of service loyalty, no matter how sincere, may make the individual personally liable to a legal theory of a reverse, false claim, that is, delivering less to the Government (Treasury Department's General Fund / Public Fisc) than is owed. This is exactly as serious as the original fraud.

Court Martial grounds

         The United States Coast Guard is an armed service under the Department of Transportation during peacetime and under the Department of Defense / Navy during war. Coast Guard personnel, along with many others, are subject to the United States Code of Military Justice (COMJ). In serious violations of the COMJ, the President of the United States may recall a retired violator back into service to face charges. The most important administrative penalty is a court-martial. The most over-looked court-martials are for:

  • Wrongful disposition of U.S. Military property. Article 108

  • Larceny and wrongful appropriation. Article 121

  • Noncompliance with procedural rules. Article 98

  • Failure to obey ... regulation. Article 92

         US military soldiers know that if they receive an illegal order they are not to obey it. As military law is written now, the subordinate, and not the superior issuing the order, is the one responsible for determining the legality of an order. Every person is responsible for his or her actions.
        It is a well articulated principle of US and international law that no court can enforce an unlawful order and no individual is obligated to follow an unlawful order. The "war criminal" defense of following an unlawful order has been widely rejected. Many constitutional tests have come from disobedience and subsequent litigation of unlawful statutes and orders.

Military Personnel Are Accountable

        The Uniform Code of Military Justice (UCMJ) provides the articles to which every soldier is legally held accountable. The UCMJ also dictates the proper punishment that would be applicable to a specific violation, and specifies the difference (if any) if the act were committed during "times of war." For example, Article 90 calls for the soldier to obey all lawful orders and imposes up to 6 months imprisonment when the act is not committed in times of war, and the death penalty when it is. Other violations that carry the death penalty in times of war include desertion, mutiny, sedition, and espionage (the only one with a mandatory death sentence).
        The U.S. Army is becoming aware of the fact that all soldiers need a basic education in military ethics, and to this end the U.S. Army recently extended its basic training period by one week. Last year, Secretary of the Army Louis Caldera made an announcement in a recent Joint Services Conference on Professional Ethics (JSCOPE) that this extra week allows several military ethics topics to be inserted throughout the basic training period, thus increasing the soldier's awareness of the importance of this topic.
 
Title 10 – Armed Forces, Subtitle A -- General Military Law, Part II -- Personnel,
Chapter 47-- Uniform Code Of Military Justice,
Subchapter X - PUNITAVE ARTICLES:
 
ARTICLE
 SECTION
 CITE
 PUNITAVE ARTICLES
77 877 (10 USC 877) Principals.
78 878 (10 USC 878) Accessory after the fact.
79 879 (10 USC 879) Conviction of lesser included offense.
80 880 (10 USC 880) Attempts.
81 881 (10 USC 881) Conspiracy.
92 892 (10 USC 892) Failure to obey order or regulation.
98 898 (10 USC 898) Noncompliance with procedural rules.
107 907 (10 USC 907) False official statements.
108 908 (10 USC 908) Military property of U.S. -- Loss, damage, destruction, or wrongful disposition.
121 921 (10 USC 921) Larceny and wrongful appropriation.
127 927 (10 USC 927) Extortion.
131 931 (10 USC 931) Perjury.
132 932 (10 USC 932) Frauds against the United States.
133 933 (10 USC 933) Conduct unbecoming an officer and a gentleman.
134 934 (10 USC 934) General article.

PUNATIVE ARTICLES:

Article 77. Principals. Any person punishable under this chapter who-- (1) commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission; or (2) causes an act to be done which if directly performed by him would be punishable by this chapter; is a principal. (Aug. 10, 1956, ch. 1041, 70A Stat. 65.) (10 USC 877)

Article 78. Accessory after the fact. Any person subject to this chapter who, knowing that an offense punishable by this chapter has been committed, receives, comforts, or assists the offender in order to hinder or prevent his apprehension, trial, or punishment shall be punished as a court-martial may direct. (Aug. 10, 1956, ch. 1041, 70A Stat. 65.) (10 USC 878)

Article 79. Conviction of lesser included offense. An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein. (Aug. 10, 1956, ch. 1041, 70A Stat. 65.) (10 USC 879)

Article 80. Attempts. (a) An act, done with specific intent to commit an offense under this chapter, amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense. (b) Any person subject to this chapter who attempts to commit any offense punishable by this chapter shall be punished as a court-martial may direct, unless otherwise specifically prescribed. (c) Any person subject to this chapter may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated. (Aug. 10, 1956, ch. 1041, 70A Stat. 65.) (10 USC 880)

Article 81. Conspiracy. Any person subject to this chapter who conspires with any other person to commit an offense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct, (Aug. 10, 1956, ch. 1041, 70A Stat. 66.) (10 USC 881)

Article 92. Failure to obey order or regulation. Any person subject to this chapter who -- (1) violates or fails to obey any lawful general order or regulation; (2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or (3) is derelict in the performance of his duties; shall be punished as a court-martial may direct. (Aug. 10, 1956, ch. 1041, 70A Stat. 68.) (10 USC 892)

Article 98. Noncompliance with procedural rules. Any person subject to this chapter who -- (1) is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under this chapter; or (2) knowingly and intentionally fails to enforce or comply with any provision of this chapter regulating the proceedings before, during, or after trial of an accused; shall be punished as a court-martial may direct. (Aug. 10, 1956, ch. 1041, 70A Stat. 69.) (10 USC 898)

Article 107. False official statements. Any person subject to this chapter who, with intent to deceive, signs any false record, return, regulation, order, or other official document, knowing it to be false, or makes any other false official statement knowing it to be false, shall be punished as a court-martial may direct. (Aug. 10, 1956, ch. 1041, 70A Stat. 71.) (10 USC 907)

Article 108. Military property of United States -- Loss, damage, destruction, or wrongful disposition. Any person subject to this chapter who, without proper authority -- (1) sells or otherwise disposes of; (2) willfully or through neglect damages, destroys, or loses; or (3) willfully or through neglect suffers to be lost, damaged, destroyed, sold, or wrongfully disposed of; any military property of the United States, shall be punished as a court-martial may direct. (Aug. 10, 1956, ch. 1041, 70A Stat. 71.) (10 USC 908)

Article 121. Larceny and wrongful appropriation. (a) Any person subject to this chapter who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or of any other person any money, personal property, or article of value of any kind-- (1) with intent permanently to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, steals that property and is guilty of larceny; or (2) with intent temporarily to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, is guilty of wrongful appropriation. (b) Any person found guilty of larceny or wrongful appropriation shall be punished as a court-martial may direct. (Aug. 10, 1956, ch. 1041, 70A Stat. 73.) (10 USC 921)

Article 127. Extortion. Any person subject to this chapter who communicates threats to another person with the intention thereby to obtain anything of value or any acquittance, advantage, or immunity is guilty of extortion and shall be punished as a court-martial may direct. (Aug. 10, 1956, ch. 1041, 70A Stat. 74.) (10 USC 927)

Article 131. Perjury. Any person subject to this chapter who in a judicial proceeding or in a course of justice willfully and corruptly -- (1) upon a lawful oath or in any form allowed by law to be substituted for an oath, gives any false testimony material to the issue or matter of inquiry; or (2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, subscribes any false statement material to the issue or matter of inquiry; is guilty of perjury and shall be punished as a court-martial may direct. (Aug. 10, 1956, ch. 1041, 70A Stat. 75; Pub. L. 94-550, Sec. 3, Oct. 18, 1976, 90 Stat. 2535; Pub. L. 97-295, Sec. 1(13), Oct. 12, 1982, 96 Stat. 1289.) (10 USC 931)

Article 132. Frauds against the United States. Any person subject to this chapter-- (1) who, knowing it to be false or fraudulent -- (A) makes any claim against the United States or any officer thereof; or (B) presents to any person in the civil or military service thereof, for approval or payment, any claim against the United States or any officer thereof; (2) who, for the purpose of obtaining the approval, allowance, or payment of any claim against the United States or any officer thereof-- (A) makes or uses any writing or other paper knowing it to contain any false or fraudulent statements; (B) makes any oath to any fact or to any writing or other paper knowing the oath to be false; or (C) forges or counterfeits any signature upon any writing or other paper, or uses any such signature knowing it to be forged or counterfeited; (3) who, having charge, possession, custody or control of any money, or other property of the United States, furnished or intended for the armed forces thereof, knowingly delivers to any person having authority to receive it, any amount thereof less than that for which he receives a certificate or receipt; or (4) who, being authorized to make or deliver any paper certifying the receipt of any property of the United States furnished or intended for the armed forces thereof, makes or delivers to any person such writing without having full knowledge of the truth of the statements therein contained and with intent to defraud the United States; shall, upon conviction, be punished as a court-martial may direct. (Aug. 10, 1956, ch. 1041, 70A Stat. 75.) (10 USC 932)

Article 133. Conduct unbecoming an officer and a gentleman. Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct. (Aug. 10, 1956, ch. 1041, 70A Stat. 76.) (10 USC 933)

Article 134. General article. Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court. (Aug. 10, 1956, ch. 1041, 70A Stat. 76.) (10 USC 934)