The issue before the CAAF in United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010) was whether the unauthorized use of another person’s credit and bank cards constitute larceny against that person (as opposed to the financial institution?). CAAF held in the negative. The unauthorized use of credit cards cannot constitute larceny against the individual in whose name the card is issued. However, the unauthorized use of a debit card and unauthorized access to cash from a bank account can constitute a larceny against the account’s owner, despite the MCM commentary that such offenses usually are a larceny against the entity presenting the goods or money.
In this case, the accused, as the result of a temporary assignment as a Casualty Assistance Officer, met and became involved managing the finances of a deceased service member’s surviving spouse. When these duties should have ended (after the accused obtained a new ID card for the widow/victim,) the accused continued to assist her with her financial affairs. Although authorized access to the victim’s accounts only for certain specific purposes, the accused began accessing the victim’s bank accounts and credit cards for his own purposes. For this misconduct, the accused was charged with forty-three specifications of larceny under Article 121, fifteen of which resulted in convictions. On appeal to ACCA, one specification of larceny was set aside, as was a conviction for conduct unbecoming under Article 133. After a sentence rehearing, CAAF granted review, examining the remaining fourteen specifications of larceny for legal sufficiency. These convictions, which encompassed two specifications of ATM withdrawals, five specifications of debit transactions, and seven specifications of credit-card transactions, identified the widow as the victim, not the various financial institutions that issued the cards or held the accounts.