UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          KERN, ALDYKIEWICZ, and MARTIN
                              Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                    Lieutenant Colonel KEITH A. JACKSON
                         United States Army, Appellant

                                   ARMY 20120026

     Headquarters, United States Army Maneuver Support Center of Excellence
                          Fort Leonard Wood, Missouri
                         Jeffrey R. Nance, Military Judge
       Lieutenant Colonel Jim Tripp, Acting Staff Judge Advocate (pre-trial)
            Colonel James R. Agar II, Staff Judge Advocate (post -trial)


For Appellant: Colonel Patricia A. Ham, JA; Major Jacob D. Bashore, JA; Captain
Ian M. Guy, JA (on brief).

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


                                  26 November 2013

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

Per Curiam:

      A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of sixteen specifications of attempted indecent language and
two specifications of conduct unbecoming an officer , in violation of Articles 80 and
133, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 880, 933
(2006). The military judge sentenced appellant to a dismissal. The convening
authority approved the adjudged sentence.

      Appellant’s case is before this court for review pursuant to Article 66, UCMJ.
Appellant raises two assignments of error, one of which merits discussion and
JACKSON—ARMY 20120026

relief. 1 Appellant argues that his convictions for attempted indecent language are
multiplicious and constitute an unreasonable multiplication of charges with the
second specification of the conduct unbecoming charge. The government concedes,
and we agree, that the second specification of the conduct unbecoming an officer
conviction is multiplicious and must be set aside. Therefore, we need not reach the
assignment of error regarding unreasonable multiplication of charges.

                                  BACKGROUND

       Over the course of several months, appellant used his web camera to transfer
obscene material over the internet to a person he believed to be a girl under sixteen
years of age. He also communicated indecent language to the same person. The
person on the receiving end of appellant’s transmission s was actually a detective
assigned to the cyber crimes task force. At trial, appellant did not dispute that he
sent the videos and communicated indecent language to someone, but argued that
due to his heavy drinking and subsequent black outs, he was merely role playing
with a person he believed to be an adult.

       At trial, the defense made a motion to dismiss the attempted indecent
language specifications of Charge I, under Article 80, UCMJ as being multiplicious
and an unreasonable multiplication of charges. The defense asserted t he Article 80,
UCMJ specifications were based on the same conduct that formed the basis of the
conduct unbecoming an officer specifications under Article 133, UCMJ, contained in
Charge II. The military judge found appellant guilty of Specifications 3 -18 of
Charge I, and both specifications of Charge II. After findings, the military judge
denied the multiplicity portion of the motion, but found that under the facts of this
case, Specification 2 of the Article 133, UCMJ offense was an unreasonable
multiplication of charges with the remaining Article 80, UCMJ convictions for
purposes of sentencing.

                             LAW AND DISCUSSION

      Article 133, UCMJ “includes acts made punishable by any other article,
provided these acts amount to conduct unbecoming an officer and gentl eman.”
United States v. Palagar, 56 M.J. 294, 296 (C.A.A.F. 2002) (quoting Manual for




1
 We have also considered the matters personally raised by appellant pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and determined they do not
merit discussion or relief.




                                          2
JACKSON—ARMY 20120026

Courts-Martial, United States (2000 ed.) [hereinafter MCM], Part IV, ¶ 59.c.(2)). 2
“Whenever a specific offense is also charged as conduct unbecoming an officer, ‘the
elements of proof 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. ’” Palagar, 56 M.J. at 296. When a
specific offense is also charged as a violation of Article 133, UCMJ, our superior
court has treated the specific offense as a lesser included offense. Id.; see United
States v. Frelix-Vann, 55 M.J. 329, 331 (C.A.A.F. 2001) (holding that since the
crime of larceny was alleged as the sole basis for the conduct unbecoming an officer
specification, the Article 121, UCMJ was a lesser included offense of the Article
133, UCMJ offense).

       “The Fifth Amendment protection against double jeopardy provides that an
accused cannot be convicted of both an offense and a lesser -included offense. See
Article 44(a), UCMJ, [ ]; Blockburger v. United States, 284 U.S. 299 (1932); United
States v. Teters, 37 M.J. 370 (C.M.A. 1993). Charges reflecting both an offense and
a lesser-included offense are impermissibly multiplicious.” United States v. Hudson,
59 M.J. 357, 358 (C.A.A.F. 2004), overruled on other grounds by United States v.
Jones, 68 M.J. 465 (C.A.A.F. 2010).

         We find that appellant’s attempted indecent language convictions are based on
the same criminal conduct as the second specification of th e conduct unbecoming
conviction. Although the Article 80, UCMJ specifications actually address more
instances of the indecent language than the Article 133, UCMJ specifica tion, both
“describe substantially the same misconduct in two different ways.” R.C.M.
907(b)(3) discussion. Put another way, as charged in this case, it is impossible to
commit the Article 133, UCMJ offense without first having committed the Article
80, UCMJ offenses. See Schmuck v. United States, 489 U.S. 705, 719 (1989) (citing
Giles v. United States, 144 F.2d 860 (9th Cir. 1944). It follows that while the
Article 133, UCMJ offense requires proof of a fact that the Article 80, UCMJ
offense does not, the opposite is not true. See Blockburger, 284 U.S. at 304 (“the
test to be applied to determine whether there are two offenses or only one, is
whether each provision requires proof of an additional fact which the other does not
. . . .”) (emphasis added). Accordingly, appellant’s conviction for conduct
unbecoming an officer for communicating indecent language to a person appellant
believed to be a child under the age of sixteen years is multiplicious with the attempt
to communicate indecent language and one of the offenses must be set aside.




2
 This language from the MCM has remained unchanged for all times relevant to this
appeal.




                                          3
JACKSON—ARMY 20120026

      We would normally dismiss the conviction for the lesser-included offense.
See United States v. St. John, 72 M.J. 685, 689 (Army. Ct. Crim. App. 2013).
However, in both Frelix–Vann and United States v. Cherukuri, 53 M.J. 68, 74
(C.A.A.F. 2000), our superior court ordered a remand to the service court where the
government could elect which conviction to retain. In permitting an election, the
Court “. . . recognized that disapproving either conviction would remedy th e
multiplicity.” Palagar, 56 M.J. at 296. In this case, the government elects to
dismiss Specification 2 of Charge II, and retain appellant’s convictions for
Specifications 3 through 18 of Charge I.

                                   CONCLUSION

       The finding of guilty of Specification 2 of Charge II is set aside and that
specification is dismissed. On consideration of the entire record, the assigned
errors, and the matters personally raised by appellant pursuant to Grostefon, the
remaining findings are AFFIRMED. Reassessing the sentence on the basis of the
error noted, the entire record, 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 approved sentence is AFFIRMED. 3 All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of the
findings set aside by this decision, are hereby ordered restored.


                                        FOR THE COURT:




                                        MALCOLM
                                        MALCOLM H.  H. SQUIRES, JR.
                                                       SQUIRES JR.
                                        Clerk
                                        Clerk of
                                              of Court
                                                 Court




3
  In our review of the sentence, we specifically considered appellant’s eligibility for
retirement. Additionally, we note that the military judge found that Specification 2
of Charge II constituted an unreasonable multiplication of charges with the
remaining Article 80, UCMJ offenses for purposes of sentencing .




                                           4
