UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
YOB, LIND, and KRAUSS
Appellate Military Judges
UNITED STATES, Appellee
v.
Chief Warrant Officer Two RICHARD SERVANTEZ
United States Army, Appellant
ARMY 20120217
Headquarters, Defense Language Institute Foreign Language Center
David L. Conn, Military Judge
Lieutenant Colonel William A. Schmittel, Staff Judge Advocate
For Appellant: Colonel Edye U. Moran, JA; Major Richard E. Gorini, JA; Captain
James S. Trieschmann, Jr., JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Catherine L. Brantley, JA; Captain Michael J. Frank, JA (on brief).
7 November 2013
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of maltreatment, one specification of
conduct unbecoming an officer, and one specification of fraternization in violation
of Articles 93, 133, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 893,
933, and 934 (2006) [hereinafter UCMJ]. The military judge sentenced appellant to
a dismissal and a reprimand. The convening authority approved the adjudged
sentence.
This case is before the court for review under Article 66, UCMJ. Appellant
raises three assignments of error, only one of which merits discussion and relief.
We have also considered those matters personally raised by appellant pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find they warrant
neither discussion nor relief.
SERVANTEZ — ARMY 20120217
LAW & DISCUSSION
In his third assignment of error, appellant alleges that his convictions for
maltreatment in violation of Article 93, UCMJ (the specification of Charge III) and
for conduct unbecoming an officer in violation of Article 133, UCMJ (the
specification of Charge IV) are multiplicious . The government concedes that the
two specifications as charged are multiplicious. We agree and accept the
government’s concession.
Offenses are multiplicious if one is a lesser -included offense of the other.
United States v. Palagar, 56 M.J. 294, 296 (C.A.A.F. 2002). Article 133, UCMJ,
specifically “includes acts made punishable by any other article, provided these acts
amount to conduct unbecoming an officer and a gentleman.” Manual for Courts–
Martial, United States (2008 ed.), pt. IV, ¶ 59.c(2). In such cases, the elements of
proof for the Article 133, UCMJ, offense “are the same as those set forth in the
paragraph which treats that specific offense, with the additional requirement that the
act or omission constitutes conduct unbecoming an officer and gentleman.” MCM,
pt. IV, ¶ 59.c(2). Consequently, our superior court has repeatedly held that when a
specific offense is also charged as a violation of Article 133, UCMJ, the specific
offense is the lesser-included offense. Palagar, 56 M.J. at 296; United States v.
Cherukuri, 53 M.J. 68, 73-74 (C.A.A.F. 2000); United States v. Frelix–Vann,
55 M.J. 329, 331 (C.A.A.F. 2001).
In view of the specifications before us , it is clear that the crime of
maltreatment was alleged as the sole basis for the unbecoming an officer
specification. Thus, the specification of Charge III (maltreatment in violation of
Article 93, UCMJ) is a lesser included offense of the specificati on of Charge IV
(conduct unbecoming an officer in violation of Article 133, UCMJ), and one charge
must be set aside and dismissed. See United States. v. Deland, 22 M.J. 70, 75
(C.M.A. 1986) (“Congress never intended for findings of guilty of the same act or
omission to be affirmed under both Article 133 and a specific punitive article, so one
or the other must be set aside.”).
In the past, our superior court has allowed the government to elect which
conviction to retain. Palagar, 56 M.J. at 296-297; Cherukuri, 53 M.J. at 74; United
States v. Frelix–Vann, 55 M.J. at 333. The government has requested this court to
vacate appellant’s conviction as to the greater offense of conduct unbecoming an
officer (the specification of Charge IV). We will do so in the decretal paragraph.
CONCLUSION
The finding of guilty of Charge IV and its specification are set aside and
dismissed. The military judge found the Specification of Charge III and the
Specification of Charge IV to be an unreasonable multiplication of charges for
sentencing. As such, reassessing the sentence on the basis of the error noted, the
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SERVANTEZ — ARMY 20120217
entire record of trial, and applying the principles of United States v. Sales, 22 M.J.
305 (C.M.A. 1986) and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), no
sentence relief is warranted. The remaining findings of guilty and the sentence are
AFFIRMED. All rights, privileges, and property of which appellant has been
deprived by virtue of the finding of guilty set aside by the decision are ordered
restored.
FORTHE
FOR THECOURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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