UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          COOK, CAMPANELLA, and HAIGHT
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                         Specialist EMERY GETTIS, JR.
                          United States Army, Appellant

                                   ARMY 20111090

                       Headquarters, 2nd Infantry Division
                         T. Mark Kulish, Military Judge
           Lieutenant Colonel Paul I. Schasberger, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA; Captain Aaron R. Inkenbrandt (on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Catherine L. Brantley,
JA (on brief).

                                 25 September 2013

                               --------------------------------
                               SUMMARY DISPOSITION
                               --------------------------------

Per Curiam:

       A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of one specification of absence without leave, one
specification of willfully disobeying a noncommissioned officer, six specifications
of larceny, and one specification of unlawful entry, in violation of Articles 86, 91,
121, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 891, 921, 934
(2008) [hereinafter UCMJ]. The military judge sentenced appellant to a bad -conduct
discharge, confinement for seven months, and reduction to the grade of E -1. The
convening authority approved only so much of the sentence as provided for a bad -
conduct discharge, confinement for 195 days, and reduction to the grade of E -1. The
convening authority credited appellant with seven days of confinement.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises one assignment of error that merits no discussion or relief. Appellant
personally raises multiple issues pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), one of which merits discussion and relief.
GETTIS—ARMY 20111090

                              LAW AND DISCUSSION

       The Specification of Charge II alleged appellant willfully disobeyed his First
Sergeant by not staying at a Charge of Quarters (CQ) desk on or about 10 May 2011.
The Specification of Charge I alleged ap pellant was absent from his unit from on or
about 11 May 2011 until on or about 12 May 2011. Although these specifications
facially attempt to divide these offenses into two distinct time frames, the
providence inquiry and stipulation of fact established appellant’s unauthorized
absence began on 10 May 2011, as soon as he left his appointed place of duty and
ended on 12 May 2011.

       During the providence inquiry concerning the disobedience offense, the
military judge engaged in the following colloquy with appellant:

             MJ: And, so what happened on the 10 th of May?

             ACC: . . . I went to the First Sergeant’s office [and] stood
             by the orderly room. He told me to wait by the CQ desk
             until he got done talking on the phone and I suspected
             they knew what I [had] done, so I left post.

A related discussion ensued during the colloquy involving the absence offense:

             MJ: And you had mentioned . . . the First Sergeant told
             you to stay by the CQ desk, you chose to go ahead [and]
             leave, not only the building, but leave post. So what
             happened next?

             ACC: I went to an apartment I was staying at, sir.

             MJ: And did you spend the night there?

             ACC: Yes, sir.

             MJ: And then what happened the next day?

             ACC: I stayed there, sir.

             MJ: How was it that you came back to post?

             ACC: I was apprehended by the MPs at 2230 [on] May
             12 th .




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GETTIS—ARMY 20111090

      In the stipulation of fact, these two offenses were combined together in the
same paragraph:

              At the time 1SG D gave the [appellant] the order, the
              [appellant] knew 1SG D was his superior non-
              commissioned officer and he knew he had a duty to obey
              the order. Having such knowledge, the [appellant]
              willfully disobeyed 1SG D’s order to wait at the CQ desk
              and remained absent from the unit until on or about 12
              May 2011.

      Pursuant to Rule for Courts-Martial [hereinafter R.C.M.] 307(c)(4), “[w]hat is
substantially one transaction should not be made the basis for an unreasonable
multiplication of charges against one person.” Our superior court, in United States
v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001), listed five factors to help guide our analysis
of whether charges have been unreasonably multiplied:
         (1) Did the accused object at trial that there was an
             unreasonable multiplication of charges and/or
             specifications?;

         (2) Is each charge and specification aimed at distinctly
             separate criminal acts?;

         (3) Does the number of charges and specifications
             misrepresent or exaggerate the appellant's criminality?;

         (4) Does the number of charges and specifications
             [unreasonably] increase [the] appellant's punitive
             exposure?;

         (5) Is there any evidence of prosecutorial overreaching or
             abuse in the drafting of the charges?

Id. at 338.

        In regards to the first Quiroz factor, although appellant did not raise th e issue
at trial, we are still permitted to consider this matter on appeal. United States v.
Gilchrist, 61 M.J. 785, 789 (Army Ct. Crim. App. 2005). In addressing the fourth
and fifth Quiroz factors, we also find the addition of the Article 86, UCMJ violation,
with a related punishment adding one month of possible confinement, did not
unfairly increase appellant’s punitive exposure and there was no evidence of
prosecutorial overreaching.




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GETTIS—ARMY 20111090

       However, in reviewing the two remaining Quiroz factors, we find these two
charges were not aimed at distinctly separate criminal acts, and adding a forty-eight
hour absence offense on top of the disobedience charge exaggerated appellant’s
criminality in this case. Essentially, appellant violated the First Sergeant’s order to
stay at the CQ desk when he left the area, and this same act of leaving his appointed
place of duty instantaneously completed the absence offense. * We hasten to point
out that this is not a case where the disobedience is ultimately an unauthorized
absence. To the contrary, we view this set of facts and circumst ances as constituting
explicit disobedience with a coincidental short -term unauthorized absence. We
therefore find that The Specification of Charge I was unreasonably multiplied with
The Specification of Charge II and will take appropriate action in our d ecretal
paragraph.

                                     CONCLUSION

       The finding of guilty to The Specification of Charge I and Charge I are set
aside and dismissed. The remaining findings of guilty are AFFIRMED. Reassessing
the sentence based on the dismissal of Charge I and its specification, the entire
record, and those matters personally raised by appellant pursuant to Grostefon, and
in accordance with 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), to include the
factors identified by Judge Baker in his concurring opinion in Moffeit, the court
affirms the sentence as approved by the convening authority.

                                          FOR  THE
                                          FOR THE   COURT:
                                                  COURT:



                                          ANTHONY O. POTTINGER
                                          ANTHONY        O. of
                                          Chief Deputy Clerk POTTINGER
                                                               Court
                                          Clerk of Court




*
    We note that duration of the absence is but a matter in aggravation.

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