UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                           TOZZI, CAMPANELLA and CELTNIEKS
                                  Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                    Private E2 CHRISTOPHER A. EDGECOMB
                           United States Army, Appellant

                                      ARMY 20120891

          Headquarters, 3rd Infantry Division and Fort Stewart (Pretrial)
                      Headquarters, Fort Stewart (Post-trial)
            Tiernan P. Dolan and Alexander L. Taylor, Military Judges
            Colonel Randall J. Bagwell, Staff Judge Advocate (advice)
   Lieutenant Colonel Francisco A. Vila, Staff Judge Advocate (recommendation)


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Captain A. Jason Nef, JA; Captain Brian D. Andes, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Catherine L. Brantley, JA; Captain T. Campbell Warner, JA (on brief).


                                    30 September 2014
                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

       A military judge sitting as a special court-martial convicted appellant,
contrary to his pleas, of two specifications of absence without leave (AWOL), five
specifications of making a false official statement, one specification of malingering,
one specification of larceny, and three specifications of wearing unauthorized
badges, in violation of Articles 86, 107, 115, 121, and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 886, 907, 915, 921, 934 (2006) [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 103 days, and reduction to the grade of E-1. The convening authority also
rescinded a previously granted six-month waiver of automatic forfeitures and
EDGECOMB—ARMY 20120891

instituted a three-month waiver of automatic forfeitures, for the benefit of
appellant’s dependents.

       This case is before us for review under Article 66, UCMJ. One of appellant’s
four assignments of error warrants discussion and relief. In particular, we find an
unreasonable multiplication of charges where appellant was convicted of both a ten-
day AWOL and a separate, shorter AWOL within that ten-day period. Our
resolution of this issue moots two of appellant’s other assignments of error.
Additionally, although not raised by the parties, we find two other instances of
unreasonable multiplication of charges that warrant discussion and relief, one
instance involving two specifications of false official statements under Article 107
and another instance involving two other false official statements under Article 107
in conjunction with appellant’s malingering conviction under Article 115. We also
briefly discuss one matter arising from appellant’s personal submissions made
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).

                                 BACKGROUND

      Appellant was stationed at Fort Stewart, Georgia. On 3 April 2012, appellant
spoke with his squad leader, Staff Sergeant (SSG) KB, and informed him he was
having same-day back surgery at the Savannah Pain Management Center in
Savannah, Georgia. During the same conversation, appellant indicated he would be
sedated from the surgery and unable to return to work. Staff Sergeant KB requested
appellant provide official medical paperwork evidencing appellant was on 48-hour
quarters.

      On the morning of 4 April 2012, after not receiving the requested medical
paperwork, SSG KB called appellant and again requested appellant provide
documentation from his doctor. Appellant indicated he was on quarters and would
immediately call his doctor and that the unit should have some documentation by
lunch. Appellant’s unit received an email that day purported to be from appellant’s
doctor. However, SSG KB contacted the doctor’s office and determined appellant
was not a patient at the Savannah Pain Management Center.

       On 5 April 2012, SSG KB called appellant once again and told him to return
immediately to work. Appellant responded he could not because he was on his way
to Florida because his wife and two children had been in a car accident. Staff
Sergeant KB ordered appellant to return to work to be put on leave or pass.
Appellant did not return to his unit until 10 April 2012.




                                           2
EDGECOMB—ARMY 20120891

                                 LAW AND ANALYSIS

                     Unnecessary Multiplication of charges

               a.   AWOL and Failure to Report During the Same Period

       Appellant was convicted of AWOL during the period 4 April 2012 to 10 April
2012 (the Specification of Charge I). The government also charged appellant with
failure to obey a lawful order to return to Fort Stewart on or about 5 April 2012, a
violation of Article 92 (the Specification of Charge II). Appellant, however, was
found guilty of the “lesser included offense” of Article 86. Appellant argues on
appeal his convictions for AWOL from 4 April 2012 to 10 April 2012, and his
failure to report on 5 April 2012, constitute an unreasonable multiplication of
charges for findings. We agree.

       “What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one person.” Rule for Courts–Martial
307(c)(4). The prohibition against unreasonable multiplication of charges
“addresses those features of military law that increase the potential for overreaching
in the exercise of prosecutorial discretion.” United States v. Campbell, 71 M.J. 19,
23 (C.A.A.F. 2012) (quoting United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F.
2001)).

      In Quiroz, our superior court 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?

55 M.J. at 339 (internal citation and quotation marks omitted) (internal alteration
reflects the holding in Quiroz that “unreasonably” will be utilized instead of
“unfairly”).

                                           3
EDGECOMB—ARMY 20120891

       It is well established that a soldier cannot be found guilty of failure to report
when the soldier is contemporaneously absent from his unit. See Rule for Courts-
Martial [hereinafter R.C.M.] 307(c)(4) discussion (“[A] person should not be
charged with both failure to report for a routine scheduled duty, such as reveille, and
with absence without leave if the failure to report occurred during the period for
which the accused is charged with absence without leave.”); United States v. Lynch,
22 U.S.C.M.A 457, 460, 47 C.M.R. 498, 501 (1973) (“an unauthorized absence that
is single and uninterrupted cannot be fragmented into two or more separate periods,
with each part made separately punishable.”) (citation omitted) (internal quotation
marks omitted).

       In this case, appellant’s conviction for AWOL on 5 April 2011 is within the
same time period as his ten-day AWOL, is predicated upon the same criminal act,
and is necessarily included therein. As such, we find these two specifications
constitute an unreasonable exaggeration of appellant’s misconduct. The government
concedes these specifications are an unreasonable multiplication of charges. We
accept this concession, and accordingly, we will take appropriate action in our
decretal paragraph to address this error.

               b. False Official Statements and Malingering

      Appellant was convicted of two specifications of providing false official
statements to SSG KB on 3 April 2012 (Specifications 1 and 2 of Charge III,
respectively). Staff Sergeant KB testified appellant stated he was having same day
surgery at the Savannah Pain Management Center and also that he would be sedated
and placed on quarters. These two statements by appellant appear to have been
made during the same conversation.

        Under the circumstances of this case, we find that appellant gave only one
false official statement during his conversation with SSG KB for purposes of Article
107. See United States v. Sanchez, 39 M.J. 518, 520 (A.C.M.R. 1993) (“Better
practice would have been to include all the false averments in the specification.”).
The government's election to charge appellant twice for these two false official
statements as separate specifications was an unreasonable multiplication of charges
which should be corrected. R.C.M. 307(c)(4) discussion; see also United States v.
Morrison, 41 M.J. 482, 484 n. 3 (C.A.A.F. 1995). Despite the lack of a defense
objection at trial, we cannot allow this error to go uncorrected. UCMJ art. 66(c).
Thus, we will not apply the doctrine of waiver. See United States v. Claxton, 32
M.J. 159, 162 (C.M.A. 1991).

        Ordinarily, we would consolidate these two specifications into a single
specification. However, we must now analyze whether these two specifications are
also an unreasonable multiplication of charges with appellant’s conviction for
malingering under Article 115 (the Specification of Charge IV). Appellant’s false

                                           4
EDGECOMB—ARMY 20120891

official statement on 3 April 2012 that he was having back surgery at the Savannah
Pain Management Center formed the basis for his malingering conviction under
Article 115. Applying the Quiroz factors to these offenses, we find that
Specifications 1 and 2 of Charge III constitute an unreasonable multiplication of
charges with the Specification of Charge IV for findings, requiring that we set aside
the findings of guilt for Specifications 1 and 2 of Charge III. As such, we will take
appropriate action in our decretal paragraph to address this error.

                    c. Two additional False official statements

       Appellant is convicted of two specifications of making a false official
statement on 4 April 2012 (Specifications 3 and 4 of Charge III, respectively).
Namely, appellant first stated to SSG KB words to the effect of “I am on quarters
following my surgery,” and secondly words to the effect of “I will have a doctor
email the orderly room a summary of my procedure and quarters slip.” Staff
Sergeant KB’s testimony indicates these two falsehoods were provided by the
appellant to SSG KB during the same conversation. Applying the five Quiroz
factors to these offenses, we find that Specification 3 of Charge III constitutes an
unreasonable multiplication of charges with Specification 4 of Charge III for
findings, requiring a consolidation of the findings of guilt into one specification.

                SJA Addendum Recommendation to Modify Previously
                      Approved Automatic Forfeiture Waiver

       On appeal, appellant’s personal submissions raise the issue that he was denied
notice and an opportunity to comment on matters contained in the Addendum to the
Staff Judge Advocate’s Recommendation (SJAR) to the convening authority.

       There exists no requirement that the SJAR Addendum be served on the
defense unless it contains a “new matter.” R.C.M. 1106(f)(7). The question of
whether a matter constitutes a new matter is reviewed on appeal de novo. United
States v. Key, 57 M.J. 246, 248 (C.A.A.F. 2002); United States v. Chatman, 46 M.J.
321, 323 (C.A.A.F. 1997).

       The military judge sentenced appellant to a bad-conduct discharge,
confinement for seven months, and reduction to E-1. On 11 October 2012, the
convening authority approved appellant’s request for waiver of automatic forfeitures
for a period of six months effective 19 September 2012.

       On 17 December 2012, after the submission of appellant’s post-trial matters
pursuant to R.C.M. 1105 and 1106, the SJA recommended in the addendum to his
legal advice that the convening authority reduce the length of time to waive
automatic forfeitures from six months to three months and reduce appellant’s period
of confinement to 103 days. As of 17 December 2012, the date of action, appellant

                                           5
EDGECOMB—ARMY 20120891

had served 103 days in confinement. This action resulted in appellant’s immediate
release from confinement.

       Appellant now complains the SJA’s legal advice to reduce the forfeiture
waiver period was not provided to him for comment prior to convening authority
action. Appellant asserts the SJA advice to reduce the waiver constitutes a “new
matter” that must be served on the accused in accordance with R.C.M. 1105 and
1106.

       In United States v. Spears, 48 M.J. 768 (A.F. Ct. Crim. App. 1998), the Air
Force court noted that although the literal requirements for the SJA's post-trial
recommendation under RCM 1106 did not extend to waiver of automatic forfeitures
under Article 58b(b), “concepts of basic fairness and procedural due process” were
violated by not providing the servicemember with a copy of the recommendation and
an opportunity to “comment before sending it to the convening authority for his
action on the waiver request.” Id. at 775–76. Drawing an analogy to the notice and
comment provisions of R.C.M. 1106, the court stated:

        The clear purpose behind the rule was to give the defense an
        opportunity to respond to the SJA's position in post-trial legal advice
        provided to the convening authority. The rule on new matter obviously
        prevents the SJA from bringing up new issues from outside the record
        to the convening authority and getting the last say without the defense
        even knowing about it. When the rule was written, Articles 57(a) and
        58b, UCMJ, did not exist and the issue presently before us could not
        be foreseen.

Id. at 775.

       Here the SJA did not provide appellant notice and an opportunity to comment
on the modification. We find that under different facts, the advice contained in the
SJAR Addendum to reduce the length of waiver of automatic forfeitures could
constitute a “new matter.” See United States v. Brown, 54 M.J. 289 (C.A.A.F.
2009); Chapman, 46 M.J. 321. Here, however, operation of law would have stopped
the waiver of forfeitures upon appellant’s release from confinement, even without
the SJA’s comment. The record indicates the accused served 103 days in
confinement. Moreover, the automatic forfeitures did not begin until 14 days after
he was jailed. The new waiver period was for 3 months (90 days). Cumulatively,
this resulted in the automatic forfeitures being waived for the entire duration of
appellant’s confinement period. Thus, appellant has failed to demonstrate any
prejudice.




                                          6
EDGECOMB—ARMY 20120891

                                   CONCLUSION

      The findings of guilty of Charge II and its Specification and Specifications 1
and 2 of Charge III are set aside. Charge II and its Specification and Specifications
1 and 2 of Charge III are dismissed. Specification 3 of Charge III is merged with
Specification 4 of Charge III to read as follows:

      In that [appellant], U.S. Army, did at or near Fort Stewart, Georgia,
      on or about 4 April 2012, with the intent to deceive, make statements
      to SSG KB, to wit: “I am on quarters following my surgery in
      Savannah,” and “I will have my doctor email the orderly room a
      summary of my procedure and quarters slip” or words to that effect,
      which statements were totally false, and was then known by
      [appellant] to be so false.

The remaining findings of guilty are AFFIRMED.

        We are able to reassess the sentence on the basis of the errors noted, and do
so after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated in United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J.
305 (C.M.A. 1986). In evaluating the Winckelmann factors, we find no dramatic
change in the penalty landscape or exposure at this special court-martial which
might cause us pause in reassessing appellant’s sentence. Second, appellant was
sentenced by a military judge. Third, the gravamen of appellant’s misconduct
remains. Finally, based on our experience, we are familiar with the remaining
offenses so that we may reliably determine what sentence would have been imposed
at trial.

       After reassessing the sentence and the entire record, the sentence is
AFFIRMED. We find this reassessed sentence is not only purged of any error but is
also appropriate. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings set aside by our decision, are
ordered restored.

      Senior Judge TOZZI and Judge CELTNIEKS concur.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:



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

                                          7
