United States v. Rosen

LatimeR, Judge

(concurring in the result) :

I concur in the result. In so doing, I go no further than to agree with my associates that the specifications laid under Article 132 of the Code, 10 USC § 932, are multiplicious for sentence purposes.

*178The specifications with which I am concerned allege' — -as the majority opinion points out — that in his dealings with each of three individual pay orders, accused committed a group of four separate offenses for a total of twelve crimes. The groups are alleged as violations of (1) (B), (2) (A), and (2) (C) of Article 132 of the Uniform Code. In United States v Johnson, 5 USCMA 297, 17 CMR 297, and United States v Redenius, 4 USCMA 161, 15 CMR 161, we held that an accused, for a single unauthorized absence, could be punished only for one of the three forms of desertion under Article 85 (a), Uniform Code of Military Justice, 10 USC § 885, because that statute merely sets forth different ways in which the single offense of desertion can be committed. Likewise, in United States v Smith, 7 USCMA 102, 21 CMR 228, we indicated that certain subsections of Article 132, supra, “merely set out different methods of committing the same offense.” Under the rationale of those cases, it is apparent that this accused, in three instances, was sentenced for having committed four offenses when legally he could only be punished for one.

I express no opinion on the larceny for the reason that the accused pleaded guilty and the facts of the case are not before us properly. Looking solely to the specifications, I have no way of ascertaining whether, in fact, there is multiplicity.

Accordingly, I concur in the result.