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

                            UNITED STATES, Appellee
                                        v.
                        Staff Sergeant DAVID J. SINGLEY
                          United States Army, Appellant

                                   ARMY 20150275

          Headquarters, U.S. Army Medical Department Center and School
                         Wade N. Faulkner, Military Judge
           Lieutenant Colonel Toshene C. Fletcher, Staff Judge Advocate


For Appellant: Colonel Mary J. Bradley, JA; Captain Christopher D. Coleman, JA;
Captain J. David Hammond, JA (on brief).

For Appellee: Lieutenant Colonel A.G. Courie III, JA; Lieutenant Colonel Daniel D.
Derner, JA; Captain Vincent S. Scalfani, JA (on brief).


                                      25 July 2016

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

TOZZI, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of six specifications of making false official statements, and
eight specifications of wearing unauthorized insignia, decorations, badges, ribbons,
devices, or lapel buttons, in violation of Articles 107 and 134 Uniform Code of
Military Justice, 10 U.S.C. §§ 907, 934 (2012) [hereinafter UCMJ]. The military
judge sentenced appellant to a dishonorable discharge, forfeiture of all pay and
allowances, and reduction to E-1. The convening authority approved the findings
and sentence as adjudged.

       We now review appellant’s case under Article 66, UCMJ. In his sole
assignment of error, appellant alleges the military judge committed plain error by
failing to find Specification 2 and 3 of Charge I (making false official statements),
and the Specifications of The Additional Charge (making false official statements)
were an unreasonable multiplication of charges for purposes of findings. We agree
and provide relief in our decretal paragraph.
SINGLEY—ARMY 20150275

                            LAW AND DISCUSSION

    Appellant was found guilty, inter alia, of the following violations of the
UCMJ:

            CHARGE I: Violation of the UCMJ, Article 107.

            SPECIFICATION 2: In that [appellant], U.S. Army, did,
            at or near JBSA Fort Sam Houston, Texas, on or about 17
            November 2014, with intent to deceive, make to Major
            M.R., an official statement, to wit: “I received a Purple
            Heart and Combat Action Badge for a concussion
            sustained when my up-armored HMMWV was struck by an
            Improvised Explosive Device in June 2007,” or words to
            that effect, which statement was totally false, and was
            then known by [appellant] to be so false.

            SPECIFICATION 3: In that [appellant], U.S. Army, did,
            at or near JBSA Fort Sam Houston, Texas, on or about 17
            November 2014, with intent to deceive, make to Major
            M.R., an official statement, to wit: “I received a Bronze
            Star as my end of tour award for my deployment with the
            229th Aviation Regiment from 2001-2002,” or words to
            that effect, which statement was totally false, and was
            then known by [appellant] to be so false.

            THE ADDITIONAL CHARGE: Violation of the UCMJ,
            Article 107.

            SPECIFICATION 1: In that [appellant], U.S. Army, did,
            at or near JBSA Fort Sam Houston, Texas, on or about 8
            May 2014, with intent to deceive, make to Lieutenant
            Colonel A.L.-R., an official statement, to wit: “OEF
            [Operation Enduring Freedom], 2001-2002 x 13 months
            (extensive combat exposure as a forward observer for 6
            months, later served in aerial fire support x 7 months, was
            involved in many firefights, was injured in an explosion,
            had a rifle round hit him in his armor, right in the center
            of his chest),” or words to that effect, which statement was
            false in that [appellant] was not involved in any firefights,
            was not injured in an explosion, and did not have a rifle
            round hit him in his armor, and was then known by
            [appellant] to be so false.


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SINGLEY—ARMY 20150275

             SPECIFICATION 2: In that [appellant], U.S. Army, did, at
             or near JBSA Fort Sam Houston, Texas, on or about 8 May
             2014, with intent to deceive, make to Lieutenant Colonel
             A.L.-R., an official statement, to wit: “OIF [Operation
             Enduring Freedom], 2003 x 12 months (extensive
             combat)” or words to that effect, which statement was
             false in that [appellant] was not subject to extensive
             combat, and was then known by [appellant] to be so false.

             SPECIFICATION 3: In that [appellant], U.S. Army, did, at
             or near JBSA Fort Sam Houston, Texas, on or about 8 May
             2014, with intent to deceive, make to Lieutenant Colonel
             A.L.-R., an official statement, to wit: “OIF [Operation
             Enduring Freedom] Iraq, 2006-2007 x 12 months, some
             IED exposure as his vehicle was hit on several occasions”
             or words to that effect, which statement was false in that
             [appellant] was not subject to any IED exposure and his
             vehicle was never hit by an IED, and was then known by
             [appellant] to be so false.

                      Unreasonable Multiplication of Charges

      Appellant pleaded guilty to the two specifications of Charge I delineated
above. These specifications stem from appellant providing a sworn statement to
Major (MAJ) M.R. during an Army Regulation 15-6 investigation into his conduct.
The statements comprising the gravamen of both of these specifications were
provided by appellant at the same time, to the same investigating officer, in the same
sworn statement.

      Similarly, appellant pleaded guilty to the three specifications of The
Additional Charge delineated above. These specifications stem from appellant
making false official statements to a psychiatrist, Lieutenant Colonel (LTC) A.L.-R.,
during his medical evaluation board and physical evaluation board processing. The
statements comprising the gravamen of these specifications were provided by
appellant at the same time, to LTC A.L.-R., during the same interview.

      “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). We consider five factors to determine whether charges have been
unreasonably multiplied:

             (1) Did the accused object at trial that there was an
                 unreasonable multiplication of charges and/or
                 specifications?;

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SINGLEY—ARMY 20150275


             (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?

United States v. Quiroz, 55 M.J. 334, 338-39 (C.A.A.F. 2001) (internal citation and
quotation marks omitted) (internal alteration reflects the holding in Quiroz that
“unreasonably” will be utilized instead of “unfairly”).

       Here, the Quiroz factors on balance weigh in favor of appellant. First,
defense counsel did not object at trial that the specifications constituted an
unreasonable multiplication of charges. This factor weighs in favor of the
government. Regarding the second Quiroz factor, it appears Specifications 2 and 3
of Charge I were aimed at the same criminal act, appellant’s false statement to MAJ
M.R. on 11 November 2014. In addition, it appears the Specifications of The
Additional Charge were aimed at the same criminal act, appellant’s false statements
to LTC A.L.-R. on 8 May 2014. This factor weighs in favor of appellant. Regarding
the third factor, findings of guilty against appellant for all of the specifications
delineated above exaggerates appellant’s criminality. This factor weighs in favor of
appellant. Regarding the fourth factor, appellant’s punitive exposure is not
unreasonably increased for this conduct because the military judge merged the
specifications in question for sentencing. This factor weighs in favor of the
government. Finally, there is no evidence of prosecution overreaching or abuse in
the drafting of the charges, so the fifth factor weighs in favor of the government.
On balance, we find the Quiroz factors weigh slightly in favor of appellant.
Accordingly, Specifications 2 and 3 of Charge I will be merged. In addition,
Specifications 1, 2, and 3 of The Additional Charge will be merged.

                                   CONCLUSION

       After consideration of the entire record of trial and appellant’s assignment of
error, Specifications 2 and 3 of Charge I are consolidated into a single specification,
Specification 2 of Charge I, to read as follows:


                                           4
SINGLEY—ARMY 20150275

             In that [appellant], U.S. Army, did, at or near JBSA Fort
             Sam Houston, Texas, on or about 17 November 2014, with
             intent to deceive, make to Major M.R., an official
             statement, to wit: “I received a Purple Heart and Combat
             Action Badge for a concussion sustained when my up-
             armored HMMWV was struck by an Improvised Explosive
             Device in June 2007,” and “I received a Bronze Star as my
             end of tour award for my deployment with the 229th
             Aviation Regiment from 2001-2002,” or words to that
             effect, which statement was totally false, and was then
             known by [appellant] to be so false.

       Specifications 1, 2, and 3 of The Additional Charge are also consolidated into
a single specification, denominated the Specification of The Additional Charge, to
read as follows:

             In that [appellant], U.S. Army, did, at or near JBSA Fort
             Sam Houston, Texas, on or about 8 May 2014, with intent
             to deceive, make to Lieutenant Colonel A.L.-R., an
             official statement, to wit: “OEF [Operation Enduring
             Freedom], 2001-2002 x 13 months (extensive combat
             exposure as a forward observer for 6 months, later served
             in aerial fire support x 7 months, was involved in many
             firefights, was injured in an explosion, had a rifle round
             hit him in his armor, right in the center of his chest),”
             “OIF [Operation Enduring Freedom], 2003 x 12 months
             (extensive combat),” and “OIF [Operation Enduring
             Freedom] Iraq, 2006-2007 x 12 months, some IED
             exposure as his vehicle was hit on several occasions,” or
             words to that effect, which statement was false in that
             [appellant] was not involved in any firefights, was not
             injured in an explosion, did not have a rifle round hit him
             in his armor, was not subject to extensive combat, was not
             subject to any IED exposure, and his vehicle was never hit
             by an IED, and was then known by [appellant] to be so
             false.

The finding of guilty of Specification 3 of Charge I is set aside and is DISMISSED.
The finding of guilty of Specification 2 of Charge I, as so amended, is AFFIRMED.
The findings of guilty of Specifications 2 and 3 of The Additional Charge are set
aside and are DISMISSED. The finding of guilty of the Specification of The
Additional Charge, as so amended, is AFFIRMED. The remaining findings of guilty
are AFFIRMED.


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SINGLEY—ARMY 20150275

       Reassessing the sentence on the basis of the error noted, the entire record, and
in accordance with the principles of United States v. Winckelmann, 73 M.J. 11, 15-
16 (C.A.A.F. 2013), we AFFIRM the sentence. 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 ordered restored.

      Judge CELTNIEKS and Judge BURTON concur.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




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




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