UCMJ Article 123a: Making, Drawing, or Uttering a Check Without Sufficient Funds

A bounced check is usually a banking problem. It becomes a criminal one when the person who wrote it knew the account could not cover it and used it to get something of value or to put off a debt. Article 123a of the Uniform Code of Military Justice targets exactly that conduct. It punishes writing, passing, or delivering a check, draft, or order for the payment of money when the maker knows there are not enough funds or credit to make it good, and does so to defraud or to deceive.

Codified at 10 U.S.C. 923a, the article focuses on the state of mind at the moment the instrument is made or delivered. That timing is what separates a true Article 123a violation from an honest overdraft, and it is also what distinguishes the offense from the older “dishonorable failure to maintain funds” theory that has been prosecuted under the general article, Article 134.

Two ways the offense is committed

Article 123a describes two distinct prohibitions that turn on the writer’s purpose:

  • Intent to defraud. Making, drawing, uttering, or delivering a check, draft, or order to obtain an article or thing of value, while intending to defraud. This is the classic “bad check for goods or services” scenario.
  • Intent to deceive. Making, drawing, uttering, or delivering a check, draft, or order to pay a past-due obligation, or for any other purpose, while intending to deceive. This reaches checks written to stall a creditor or paper over a debt.

In both branches, the accused must know at the time of making or delivery that the maker or drawer did not have, or would not have, sufficient funds in or credit with the bank to pay the instrument in full on presentment. “Credit” means an arrangement, express or implied, with the bank for payment.

What the government must prove

For the intent-to-defraud branch, the prosecution must establish beyond a reasonable doubt:

  • That the accused made, drew, uttered, or delivered a check, draft, or order for the payment of money.
  • That the accused did so to obtain an article or thing of value.
  • That the accused knew at the time of making or delivery that there were not sufficient funds in or credit with the bank for payment in full on presentment.
  • That the act was done with intent to defraud.

The intent-to-deceive branch tracks the same structure, except the instrument is passed to pay a past-due obligation or for another purpose, and the required state of mind is intent to deceive rather than to defraud.

A statutory evidentiary rule applies to both. When an instrument is refused for insufficient funds, that refusal is prima facie evidence of intent to defraud or deceive and of knowledge of insufficient funds, unless the maker pays the holder the amount due within five days after receiving notice that the instrument was not paid. This shifts a practical burden onto the accused to make the check good promptly.

Maximum punishment

The maximum punishment depends on the face value of the instrument. When the amount is $500 or less, the maximum is a bad-conduct discharge, forfeiture of all pay and allowances, and confinement for six months. When the amount is more than $500, the maximum is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for five years. For offenses committed on or after December 27, 2023, the sentence at a general court-martial is adjudged by the military judge under the current sentencing framework, with these figures continuing to define the maximum.

Possible defenses

  • Honest belief in sufficient funds, where the accused reasonably expected that funds or credit would cover the instrument, which negates the required intent.
  • Bank or clerical error, where a misposted deposit or institutional mistake, rather than the accused’s knowledge, caused the dishonor.
  • A genuine post-dated check, where both parties understood the instrument was not presently payable, so no representation of current funds was made.
  • Payment within the five-day window after notice, which rebuts the statutory presumption of fraudulent or deceptive intent.

Distinctions from related offenses

Article 123a is narrower than larceny under Article 121, which reaches the wrongful taking of property by any means; the check article is confined to negotiable instruments passed with knowledge of insufficient funds. It also differs from forgery under Article 105, which concerns falsely making or altering a writing so it appears to be another’s act. A bad check is genuine in the sense that the writer signs it in their own name; the wrong is the false implied representation that it will be honored. Finally, conduct that amounts to a dishonorable failure to maintain sufficient funds, without the specific intent required here, may instead be charged under the general article.

Frequently asked questions

Does an honest overdraft violate Article 123a?
No. The offense requires knowledge of insufficient funds at the time the check is written or delivered, plus intent to defraud or deceive. A good-faith miscalculation of a balance does not meet that standard.

What is the significance of the five-day rule?
If the instrument bounces, that fact is treated as prima facie proof of guilty knowledge and intent unless the maker pays the holder within five days of receiving notice of nonpayment. Prompt payment can defeat the presumption.

Are post-dated checks covered?
Generally not, when both parties understood the check was not presently payable, because no representation of current funds is made. A post-dated check used to deceive a payee who believed it was good can still be charged.

Can the same conduct be prosecuted in civilian court?
Yes. Military and civilian jurisdictions are separate, and writing a worthless check can violate both federal or state law and the UCMJ.

How does the dollar amount affect the sentence?
Instruments of $500 or less carry a maximum of six months’ confinement and a bad-conduct discharge, while amounts over $500 raise the maximum to five years’ confinement and a dishonorable discharge.

This article is for general informational purposes only and is not legal advice. It describes military law and procedure of public record, does not address any individual case, and does not create an attorney-client relationship.

Sources

  • 10 U.S.C. 923a, Article 123a (Making, drawing, or uttering check, draft, or order without sufficient funds): https://www.law.cornell.edu/uscode/text/10/923a
  • 10 U.S.C. 923a via the U.S. House Office of the Law Revision Counsel: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section923a
  • Manual for Courts-Martial, United States (2024 edition), Part IV: https://jsc.defense.gov/Portals/99/2024%20MCM%20files/MCM%20(2024%20ed)%20(20240102)%20(adjusted%20bookmarks).pdf
  • Military Attorney Joseph L. Jordan, Articles of the UCMJ

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