Legal Disclaimer: This article provides general legal information about the Uniform Code of Military Justice. It is not legal advice and does not create an attorney-client relationship. Every case involves unique facts and circumstances. If you are facing charges under the UCMJ, consult with a qualified military defense attorney immediately.
Both Article 123 and Article 123a address fraudulent documents, but they target different types of misconduct. Article 123 covers forgery: creating or altering documents to make them appear to be something they’re not. Article 123a specifically addresses bad checks: writing checks with insufficient funds or intent not to pay. The distinction matters because forgery is fundamentally about creating false documents, while bad check offenses are fundamentally about financial fraud using legitimate but unfunded instruments.
The Core Distinction
Article 123 Forgery addresses the creation or alteration of false documents:
Making a fake document that appears to be genuine
Altering a genuine document to change its meaning
Using or possessing forged documents with intent to defraud
The essence of forgery is falsely creating or altering a writing to deceive others about its authenticity or contents.
Article 123a Check Offenses addresses fraud through checks:
Writing checks knowing there are insufficient funds to cover them
Writing checks intending that payment will be refused
Failing to maintain sufficient funds to cover checks
The essence of check fraud is using real checks (not forged) to obtain money, goods, or services without providing actual value in return.
Article 123: Forgery Explained
Forgery under Article 123 requires:
Falsely making or altering a writing. Creating a document from scratch that appears genuine, or changing an existing document.
Which would, if genuine, apparently impose a legal liability or create rights. The document must be legally significant (contracts, wills, checks, orders, official documents).
With intent to defraud. The purpose must be to deceive someone for gain.
Common forgery examples:
Signing another person’s name to a check
Creating fake military orders
Altering dates or amounts on documents
Fabricating official correspondence
Counterfeiting credentials or identification
The focus is on the false document itself and the intent to use it for fraudulent purposes.
Article 123a: Check Offenses Explained
Article 123a covers several check-related offenses:
Writing checks with insufficient funds. Knowing that funds are insufficient to cover the check at time of writing.
Writing checks with intent not to pay. Intending that payment will be refused, regardless of fund status.
Failing to maintain sufficient funds. Having funds when the check is written but failing to maintain them until the check is presented.
The focus is on the financial fraud: obtaining value through checks that won’t be honored.
Overlap: Forged Checks
One area of overlap is forged checks. Writing someone else’s check with their forged signature involves both:
Forgery (Article 123): Falsely making the check by forging the signature
Check fraud (Article 123a): If funds are insufficient, passing a bad check
Prosecutors might charge either or both depending on which elements are easier to prove and which better describes the misconduct.
If you forge someone else’s signature on a check, Article 123 is the natural charge. If you write your own check knowing you don’t have funds, Article 123a is the natural charge.
Intent Requirements
Forgery requires intent to defraud. The prosecution must prove you intended to deceive someone using the false document.
Bad checks under Article 123a have varying intent requirements:
For insufficient funds at time of writing: knowledge that funds are insufficient
For intent not to pay: intent that payment be refused
For failure to maintain funds: the intent element focuses on the initial issuance rather than subsequent failure
The intent requirements differ, and prosecutors select charges based on what mental state the evidence supports.
Typical Fact Patterns
Clear forgery (Article 123):
A service member creates fake leave orders with a forged commander’s signature to excuse an unauthorized absence. The document is falsely made and intended to deceive the command.
A service member alters a check they received, changing the amount from $100 to $1,000. The document is falsely altered with intent to defraud.
A service member signs a roommate’s name on a postal delivery receipt to intercept a package. Forging another’s signature on an official receipt is forgery.
Clear check offense (Article 123a):
A service member writes a check at the exchange knowing their account is overdrawn and there are no funds to cover it. This is writing a check with insufficient funds.
A service member writes multiple checks for holiday gifts, knowing their next paycheck won’t arrive in time to cover them, and planning to let the checks bounce. Writing checks with intent that payment be refused.
A service member writes a check when they have sufficient funds but then withdraws the money before the check clears, knowing the check will bounce. Failure to maintain sufficient funds.
Both articles potentially apply:
A service member steals a roommate’s checkbook, forges the roommate’s signature on checks, and writes those checks at various stores. The forged signature is forgery under Article 123. Using the checks (which the service member knows the roommate won’t authorize) involves fraud. The specific charges depend on the account’s status and what can be proven about knowledge and intent.
The “For Any Purpose” Issue
Forgery requires the false document to be one that “apparently impose[s] a legal liability on another or change[s] his legal right or liability to his prejudice” or appears to be of similar legal significance.
Not all false documents constitute forgery:
Fake social documents (false love letters, casual notes) may not be forgery
False claims on forms might be Article 107 (false official statements) rather than forgery
Creating false personal writings without legal significance isn’t forgery
The document must have legal character for forgery to apply.
Punishment Comparison
Article 123 (Forgery):
Dishonorable discharge, forfeiture of all pay and allowances, confinement for 5 years
Article 123a (Check Offenses):
For making, drawing, or uttering check with intent to defraud: dishonorable discharge, forfeiture of all pay and allowances, confinement for 5 years
For making, drawing, or uttering check with insufficient funds: bad-conduct discharge, forfeiture of all pay and allowances, confinement for 6 months
The punishment differential for check offenses reflects that not all bad checks involve the same level of intent. Knowing insufficient funds (6 months) is treated less severely than deliberate intent to defraud (5 years).
The Presumptions in Check Cases
Article 123a creates an evidentiary presumption:
Failure to maintain funds. If a check is presented within 5 days of issue and dishonored for insufficient funds, and the maker fails to pay within 5 days of written notice of dishonor, this creates prima facie evidence of intent to defraud.
This presumption helps prosecutors prove the mental state element when the accused wrote a check and then failed to make it good after notice.
The presumption is rebuttable. The accused can present evidence showing they didn’t intend to defraud.
Defenses
For Article 123 (Forgery):
The document isn’t actually false or altered
No intent to defraud (the document was created for legitimate purposes)
Authorization to sign another’s name
The document doesn’t have legal character sufficient to constitute forgery
For Article 123a (Check Offenses):
Funds were actually sufficient at time of writing
No knowledge of insufficient funds
No intent to defraud or intent that payment be refused
Payment was made before prosecution
Mistake about account status
The Restitution Consideration
Both offenses typically result in restitution requirements:
For forgery: compensating victims for losses caused by the fraudulent documents
For bad checks: repaying the face value of dishonored checks plus any fees or costs incurred
Restitution may be ordered as part of sentencing and doesn’t excuse the criminal offense, but it may influence charging decisions and sentences. Making checks good before prosecution can help, but doesn’t eliminate liability.
Digital Considerations
Modern technology creates new issues:
Digital documents. Falsely creating or altering electronic documents can constitute forgery.
Electronic signatures. Forging electronic signatures may be treated as forgery.
Electronic fund transfers. Fraudulent transfers may involve other articles (Article 121a for payment card fraud, Article 134 for general fraud) rather than traditional check offenses.
Online banking. Writing checks knowing you’ll transfer funds out before they clear involves the same basic fraud as traditional bad checks.
The legal principles apply to modern methods even when the specific mechanisms differ.
Command Administrative Actions
Before charges are brought, commands often take administrative steps:
Army Emergency Relief or similar programs. May help service members cover temporary shortfalls.
Financial counseling. Mandatory counseling for financial problems.
Payment plans. Arrangements to make checks good.
If service members resolve bad check issues quickly and demonstrate it was a one-time mistake, commands may not pursue criminal charges. Chronic bad check writing or deliberate fraud is more likely to result in prosecution.
Practical Guidance
To avoid these charges:
Never sign another person’s name without authorization
Never create false documents for any purpose
Never write checks if you’re uncertain about funds
Monitor your account and maintain adequate balances
Make checks good immediately if they bounce
If accused:
Gather bank records showing account status
Document any authorization you had for signatures
Make restitution as quickly as possible (but consult counsel first about how to do this)
Don’t compound problems by writing more bad checks to cover previous ones
Frequently Asked Questions
If I postdated a check and the recipient deposited it early before I had funds, is that a check offense?
This depends on the circumstances. If you clearly communicated that the check was postdated and shouldn’t be deposited until a specific date, and the recipient deposited early, you may have a defense. The offense focuses on your intent and knowledge at the time you wrote the check. If you had a reasonable expectation that funds would be available on the postdate, and the early deposit frustrated that expectation, you didn’t necessarily commit an offense. However, postdating doesn’t automatically protect you. If you write postdated checks knowing you likely won’t have funds even on the postdate, or if you habitually use postdating to delay inevitable bouncing, that’s still fraudulent conduct. Document any agreements about postdating and ensure you actually maintain funds to cover checks on their stated dates.
What’s the difference between forgery and making a false official statement under Article 107?
Forgery under Article 123 involves creating or altering a document to make it appear to be something it’s not. The false document itself is the focus. False official statement under Article 107 involves making a statement (oral or written) that you know is false in an official context. The focus is on the false content of the statement, not on creating a fake document. For example, if you sign your own name on an official form but lie about the facts on the form, that’s typically Article 107 (you made a false statement) rather than Article 123 (you didn’t forge the document). If you sign someone else’s name on a document, that’s typically Article 123 (you forged the signature). Sometimes both articles might apply when someone creates a false document (forgery) that also contains false statements.
Can I avoid prosecution by paying back the amount of a bounced check before charges are filed?
Making restitution can help, but doesn’t guarantee avoiding prosecution. Commands have discretion in how to handle bad check cases. If you immediately make the check good, apologize, and demonstrate it was an honest mistake or temporary hardship, commands often choose administrative action over court-martial, especially for first offenses. However, the offense is complete when you write the bad check; subsequent payment doesn’t erase the offense, it just addresses the harm. If you have a pattern of bad checks, if the amount is large, if other misconduct is involved, or if the command believes you deliberately wrote bad checks intending to avoid payment, prosecution may proceed despite restitution. Making restitution quickly is always better than not making it, but you should also consult with defense counsel about how to handle the situation overall.