          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                        Airman Basic ALEXANDER G. BAUMWELL
                                  United States Air Force

                                              ACM S32271

                                              16 June 2015

         Sentence adjudged 14 October 2014 by SPCM convened at Hill Air Force
         Base, Utah. Military Judge: Shelly Schools (sitting alone).

         Approved Sentence: Bad-conduct discharge and confinement for 45 days.

         Appellate Counsel for the Appellant: Major Isaac C. Kennen.

         Appellate Counsel for the United States: Major Clayton H. O’Connor and
         Gerald R. Bruce, Esquire.

                                                  Before

                                MITCHELL, WEBER, and TELLER
                                    Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



WEBER, Judge:

       The appellant providently pled guilty at a special court-martial to three
specifications of dereliction of duty and two specifications of wrongfully using controlled
substances, in violation of Articles 92 and 112a, UCMJ, 10 U.S.C. §§ 892, 912a. The
military judge sentenced the appellant to a bad-conduct discharge and confinement for
45 days. The convening authority approved the sentence as adjudged.

      Before us, the appellant alleges two of the dereliction of duty specifications are
unconstitutionally multiplicious, and he challenges the appropriateness of his sentence.
We disagree, and affirm.
                                       Background

        The appellant was caught taking part in a drug ring with other Airmen and
civilians. On at least three occasions, he went to raves with other Airmen and used
MDMA. Once, he used marijuana before a rave. The investigation also found that he
possessed and consumed alcohol while underage on multiple occasions. In addition, he
allowed his girlfriend to live in his dormitory room, in violation of local rules.

                                       Multiplicity

       One of the dereliction of duty specifications to which the appellant pled guilty
alleged that, on divers occasions between on or about 1 July 2013 and on or about
18 November 2013, he negligently failed to refrain from possessing an alcoholic product
while under the age of 21 years. Another dereliction of duty specification alleged that, on
divers occasions between on or about 1 July 2013 and on or about 23 March 2014, he
negligently failed to refrain from consuming an alcoholic product while under the age of
21 years. The appellant alleges that these two specifications are multiplicious. He
reasons that he could not have consumed alcohol without possessing it, and thus the
possession specification was a lesser included offense of the specification regarding his
consumption.

       In United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009), our superior court held
that a “waive all waivable motions” provision waived, rather than forfeited, a claim of
multiplicity on appeal and therefore the multiplicity claim was extinguished and could
not be raised on appeal. The court held this issue was waived even though defense
counsel did not specifically mention multiplicity as a motion that was initially considered
but affirmatively waived by the provision. Id. at 314. The court held the appellant in
Gladue waived multiplicity because the pretrial agreement required him to waive “all”
waivable motions, the military judge conducted a thorough inquiry to ensure the
appellant understood the effect of this provision, and he explicitly indicated his
understanding that he was waiving the right to raise any waivable motion. Id.

       In this case, the appellant waived all waivable motions as part of his pretrial
agreement, and the military judge ensured he understood the meaning and effect of this
provision. While trial defense counsel did not specifically articulate that the defense was
waiving a potential multiplicity motion under this provision, this is not required.
Consistent with Gladue, we find the appellant has waived his right to raise the issue of
multiplicity on appeal, and therefore he is not entitled to relief on this issue.
Additionally, we have considered whether we should decline to apply waiver under our
broad authority under Article 66(c), UCMJ, 10 U.S.C. § 866(c), to only approve those
findings of guilty and the sentence or such part of the sentence as we find should be
approved. We decline to exercise that authority in this case.


                                             2                                ACM S32271
                                         Sentence Appropriateness

       The appellant challenges the appropriateness of his sentence, alleging that the two
specifications discussed in the issue above represent an unreasonable multiplication of
charges which renders his sentence inappropriate. He does not point to any aspects of his
service record or mitigating facts about his case that make his sentence inappropriate.
Rather, he merely asserts that because the government elected to refer two separate
specifications for his possession and consumption of alcohol while underage, his sentence
is automatically inappropriate. We disagree.

       This court reviews sentence appropriateness de novo. United States v. Lane,
64 M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only such findings of guilty and the
sentence or such part or amount of the sentence, as [we find] correct in law and fact and
determine[], on the basis of the entire record, should be approved.” Article 66(c), UCMJ.
“We assess sentence appropriateness by considering the particular appellant, the nature
and seriousness of the offenses, the appellant’s record of service, and all matters
contained in the record of trial.” United States v. Bare, 63 M.J. 707, 714 (A.F. Ct. Crim.
App. 2006); see also United States v. Healy, 26 M.J. 394, 395–96 (C.M.A. 1988);
United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982). Although we are accorded
great discretion in determining whether a particular sentence is appropriate, we are not
authorized to engage in exercises of clemency. United States v. Nerad, 69 M.J. 138, 146
(C.A.A.F. 2010).

       Applying these standards to the present case, we do not find the appellant’s
sentence inappropriately severe. We see nothing about the manner in which the appellant
was charged that renders his sentence inappropriate. Rather, we find his sentence fully
appropriate given his service record and his brazen and repeated misconduct.

                                                   Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).*




*
  As the appellant’s assignment of errors correctly notes, the court-martial order fails to include Specification 1 of
Charge I, upon which the appellant was arraigned. Additionally, the order states that the appellant pled guilty to and
was found guilty of Specification 2 of Charge II as referred. Instead, the appellant pled guilty to this specification
except the words “on divers occasions,” and the military judge excepted these words in finding him guilty of the
specification. We order promulgation of a corrected court-martial order.


                                                          3                                           ACM S32271
Accordingly, the approved findings and sentence are AFFIRMED.



            FOR THE COURT


            STEVEN LUCAS
            Clerk of the Court




                                        4                       ACM S32271
