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

                               UNITED STATES, Appellee
                                            v.
                               Major WILLIAM G. INMAN
                              United States Army, Appellant

                                        ARMY 20150042

                        Headquarters, III Corps and Fort Hood
                          Wade N. Faulkner, Military Judge
                      Colonel Ian G. Corey, Staff Judge Advocate


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L.
Tregle, JA, Captain Joshua G. Grubaugh, JA (on brief and Motion for
Reconsideration).

For Appellee: Colonel Mark H. Sydenham, JA; Major Steven J. Collins, JA; Captain
Anne C. Hsieh, JA (on brief).


                                           23 June 2016
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                    MEMORANDUM OPINION ON RECONSIDERATION
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  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

       A panel of officers sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of conspiracy, one specification of
dereliction in the performance of his duties, six specifications of false official
statement, one specification of larceny, one specification of fraud against the United
States, seven specifications of conduct unbecoming an officer, and one specification
of wrongfully communicating a threat, in violation of Articles 81, 92, 107, 121, 132,
133, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 892, 907, 921,
932, 933, and 934 (2006 & 2012) [hereinafter UCMJ]. The panel sentenced
appellant to confinement for twenty months, a reprimand, and a $50,000 fine. The
military judge credited appellant with 241 days of confinement credit. The
convening authority approved the sentence as adjudged and the confinement credit.
INMAN–ARMY 20150042

       Appellant raised four assignments of error requiring discussion and relief.
After our review of appellant’s case pursuant to Article 66, we addressed appellant’s
assignments of error in a memorandum opinion issued on 4 May 2016. United States
v. Inman, Army 20150042 (Army Ct. Crim. App. 4 May 2016) (mem. op.). The
matters raised personally by appellant pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982) did not warrant discussion or relief.

       In our 4 May 2016 memorandum opinion, we concluded the two separate
specifications of conspiracy, Specifications 1 and 2 of Charge I, should be merged.
Id. Specifically, we merged conspiracies to: (1) commit larceny by not notifying
TRICARE that appellant and Mrs. K.I. were officially divorced resulting in Mrs.
K.I. receiving over $20,000 in medical benefits; and (2) make or use a false writing
in connection with claims under Article 132. Id.

       On 23 May 2016, appellant moved for reconsideration of this court’s ruling to
consolidate the two conspiracies arguing on appeal that the government’s theory for
one of the specifications involved theft of services – and thus was not the proper
object of larceny under Article 121, UCMJ. We grant appellant’s motion for
reconsideration.

       Having reconsidered our previous rulings, we affirm our rulings regarding
appellant’s use of the military dependent identification card to obtain services and
unreasonable multiplication of charges. We write again only to address the issue
raised by appellant regarding theft of services.

                              LAW AND DISCUSSION

                        Conspiracy to Commit Theft of Services

       Appellant was found guilty, inter alia, of two separate specifications of
conspiracy: (1) conspiracy to commit larceny by not notifying TRICARE that
appellant and Mrs. K.I. were officially divorced resulting in Mrs. K.I. receiving over
$20,000 in medical benefits; and (2) conspiracy to make or use a false writing in
connection with claims under Article 132 – both for the purpose of allowing Mrs.
K.I. to continue to obtain medical care through TRICARE by falsely claiming they
were still married, and resulting in a loss to the U.S. Government of over $20,000.

       A soldier may not be convicted of larceny of services under Article 121,
UCMJ, Manual for Courts-Martial, United States (2012 ed.), pt. IV, ¶
46.c.(1)(i)(iv). The government’s theory at trial regarding the charged offense of
conspiracy to commit larceny involved theft of medical services. Services, however,
are unlike goods; they are not tangible or capable of being possessed. See United
States v. Mervine, 26 M.J. 482, 483 (C.M.A. 1988).




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INMAN–ARMY 20150042

       The appropriate underlying conspiracy offense could have been conspiracy to
obtain services under false pretenses under Article 134, UCMJ. This would have
mirrored the underlying offense of which appellant was ultimately found guilty.
While appellant may have, in the course of receiving medical benefits, stolen
prescription drugs associated with his wife’s medical benefits, that was not the focus
of the evidence presented by the government. The focus was on appellant’s wife
receiving “health care services” and “entitlements” exceeding $20,000.

      Because Article 121, UCMJ, does not allow for theft of services, appellant
could not conspire to violate said Article. Accordingly, appellant’s conviction for
conspiracy to steal services will be dismissed in our decretal paragraph.

                                   CONCLUSION

       After consideration of the entire record of trial, appellant’s assignments of
error and request for reconsideration, and the matters personally raised by appellant
pursuant to Grostefon, the finding of guilty of Specification 1 of Charge I is set
aside and is DISMISSED. The finding of guilty of Specification 2 of Charge I is
denominated The Specification of Charge I, and is AFFIRMED.

      The findings of guilty as to Charge II and its Specification, Specification 5 of
Charge IX, and Charge VIII and its Specifications, are set aside and those charges
and specifications are DISMISSED.

      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 by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013). In
evaluating the Winckelmann factors, we find no dramatic change in the penalty
landscape or exposure which might cause us pause in reassessing appellant’s
sentence due to the military judge’s consolidation of most of the offenses for
sentencing. Second, although appellant was sentenced by members, this factor
carries less weight here because the remaining offenses do not “address service
custom, service discrediting conduct or conduct unbecoming.” Winckelmann, 73
M.J. at 16. Third, the gravamen of appellant’s misconduct remains unchanged.
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 based on the errors noted, the entire record, and
in accordance with the principles of Winckelmann, the sentence is AFFIRMED. We
find this reassessed sentence is not only purged of any error but is also appropriate.




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INMAN–ARMY 20150042

All rights, privileges, and property, of which appellant has been deprived by virtue
of that portion of his findings set aside by this decision, are ordered restored.

      Senior Judge TOZZI and Judge CELTNIEKS concur.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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