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

                            UNITED STATES, Appellee
                                        v.
                      Staff Sergeant RYAN W. ROCHFORD
                          United States Army, Appellant

                                   ARMY 20140565

                        Headquarters, 25th Infantry Division
                   David L. Conn, Military Judge (arraignment)
                      Jeffrey D. Lippert, Military Judge (trial)
                  Colonel William D. Smoot, Staff Judge Advocate


For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Payum Doroodian, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Daniel D. Derner, JA; Captain Samuel E. Landes, JA (on brief).


                                      27 July 2016
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                               SUMMARY DISPOSITION
                              ----------------------------------

Per Curiam:

       A panel of officers and enlisted members sitting as a special court-martial
convicted appellant, contrary to his pleas, of two specifications of attempt to dispose
of military property, one specification of conspiracy to commit wrongful disposition
of military property, one specification of false official statement, and one
specification of wrongful disposition of military property, in violation of Articles
80, 81, 107, and 108 Uniform Code of Military Justice, 10 U.S.C. §§ 880, 881, 907,
908 (2012) [hereinafter UCMJ]. The panel sentenced appellant to a bad-conduct
discharge, thirty days confinement, and to be reduced to the grade of E-1. The
convening authority approved the sentence as adjudged.

       We now review appellant’s case under Article 66, UCMJ. Appellant raises
four assignments of error, one of which requires discussion and relief. The matters
raised personally by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982) do not warrant discussion or relief.
ROCHFORD–ARMY 20140565

                                  BACKGROUND

        In January 2013, appellant approached Private First Class (PFC) L.A.M. and
asked him if he wanted to purchase some pyrotechnics. Private First Class L.A.M.
apparently agreed to appellant’s offer at that time, but the sale did not take place
until January 2014, when appellant again approached him asking if he was still
interested in buying pyrotechnics. Private First Class L.A.M. testified that he
bought two red star clusters, two artillery simulator grenades, and one smoke
grenade from appellant for a total price of twenty-five dollars. On 24 January 2014,
military police lawfully searched PFC L.A.M.’s privately owned vehicle during a
traffic stop and found pyrotechnics in the bed of his truck. Photographs of the items
were taken.

       Investigator BL was called to the scene to assist and appellant’s company
commander, Captain (CPT) MT, arrived to collect lot numbers from the items to
determine if they were from his company. Staff Sergeant (SSG) DB, an Explosive
Ordinance Disposal (EOD) technician, took possession of the items found and
expended them at a range, hours after they had been retrieved in accordance with
established procedures.

       Neither Investigator BL nor CPT MT could determine whether the items were
in fact military property. At trial, the military judge asked Investigator BL and CPT
MT whether they believed the items looked like military property, to which both
answered in the affirmative. Further, SSG DB testified he believed the lot numbers
identified the pyrotechnics as military property, and based on his experience, the
items appeared to be military property and not improvised explosives. The
government also admitted the photographs of these items into evidence.

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

             CHARGE I: Violation of the UCMJ, Article 80.

             Specification 2: In that [appellant], U.S. Army, did, at or
             near Schofield Barracks Hawaii, between on or about 1
             January 2014 and on or about 31 January 2014, without
             proper authority, attempt to dispose of military property
             by giving it to PFC L.A.M., explosives of a value under
             $500, military property of the United States.

             CHARGE IV: Violation of the UCMJ, Article 108.

             The Specification: In that [appellant], U.S. Army, did, at
             or near Schofield Barracks Hawaii, between on or about 1

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ROCHFORD–ARMY 20140565

             January 2014 and on or about 25 January 2014, without
             proper authority, dispose of by giving to PFC L.A.M. two
             (2) red star cluster flares, two (2) hand grenade
             simulators, a smoke grenade, explosives of a value less
             than $500, military property of the United States.

        The panel convicted appellant of Specification 2 of Charge I (attempt to
commit a wrongful disposition of military property) but changed the dates of the
specification from “1 February 2013 and on or about 28 February 2013” to “1
January 2014 and on or about 31 January 2014.” As a result of the date change,
after findings, the military judge merged Specification 2 of Charge I (attempt to
commit a wrongful disposition of military property) with The Specification of
Charge IV (wrongful disposition of military property) for sentencing purposes.

                              LAW AND DISCUSSION

                                     Multiplicity

       Appellant was convicted, inter alia, of wrongful disposition of military
property and a lesser-included offense of an attempt to commit a wrongful
disposition of the same military property. Appellant asserts the two charges are
multiplicious; we agree. See United States v. Teters, 37 M.J. 370 (C.M.A. 1993);
See also United States v. Palagar, 56 M.J. 294, 296 (C.A.A.F. 2002). Additionally,
the government concedes the elements of the attempt are subsumed by the greater
offense. In this case, the exact same evidence supports the attempt to commit
wrongful disposition of military property and the wrongful disposition of military
property. The panel’s date change confirms the attempt and completed crime are
based on the same event. While the military judge recognized that the two offenses
merged as a result of the panel’s findings by exceptions and substitutions, he erred
in merging the specifications only for sentencing purposes. Thus, this court will set
aside the finding of guilty of Specification 2 of Charge I.

                                   CONCLUSION

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

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ROCHFORD–ARMY 20140565

                         FOR THE COURT:




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




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