UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

TOZZI, LIND, and CELTNIEKS

Appellate Military Judges

UNITED STATES, Appellee

v.

Sergeant SCOTT A. BOLLINGER

United States Army, Appellant

ARMY 20120376

Headquarters, 82d Airborne Division

Tara A. Osborn, Military Judge

Lieutenant Colonel Paul J. Cucuzzella, Staff Judge Advocate 

For Appellant: Major Jacob D. Bashore, JA; Major Vincent T. Shuler, JA; Captain 

Ian M. Guy, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Major Robert A. Rodrigues, JA; Major 

Catherine L. Brantley, JA; Captain T. Campbell Warner, JA (on brief).

22 December 2014

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SUMMARY DISPOSITION 

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Per Curiam: 

A military judge sitting as a general court-martial convicted appellant, 

pursuant to his pleas, of four specifications of false official statement, four

specifications of wrongful distribution of a controlled substance, and one 

specification of wrongful use of a controlled substance , in violation of Articles 107 

and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 907, 912a (2006) 

[hereinafter UCMJ], respectively. The military judge sentenced appellant to a bad -

conduct discharge, confinement for thirty-two months, and reduction to the grade of 

E-1. The convening authority approved a sentence to a bad-conduct discharge, 

confinement for twenty-eight months, and reduction to the grade of E-1.1

 

1

In response to a legal error alleging unreasonable government delay in post-trial 

processing under United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), raised in 

(continued . . .)
BOLLINGER—ARMY 20120376

2

Appellant’s case is before this court for review pursuant to Article 66, UCMJ. 

Appellate counsel assigned one error to this court, and appellant personally raised 

matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). The 

assigned error warrants discussion and relief. The matters raised pursuant to 

Grostefon are without merit.

BACKGROUND

Appellant was charged with four specifications of making a false official 

statement during a single interview by a military police investigator. The interview 

was pursuant to a criminal investigation into Corporal C.A.C.’s drug overdose. 

Specifications 1, 2, and 3 of Charge II were based on appellant answering, “No,” or 

words to that effect, when asked by the investigator whether he had ever illegally 

used, possessed, or distributed controlled substances, respectively. The fourth 

specification was based on appellant’s statement to the investigator, “I gave 

[Corporal C.A.C.] about 2 pills,” or words to that effect. Pursuant to a pretrial 

agreement, appellant pleaded guilty to all four of the false official statement 

specifications in Charge II. 

LAW AND DISCUSSION

“What is substantially one transaction should not be made the basis for an 

unreasonable multiplication of charges against one person.” R.C.M. 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?;

(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?;

 

(. . . continued)

the appellant’s Rule for Courts-Martial [hereinafter R.C.M.] 1105 clemency 

submissions, the staff judge advocate recommended and the convening authority 

approved twenty-eight months confinement.
BOLLINGER—ARMY 20120376

3

(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 (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”).

On balance, we find the Quiroz factors weigh in appellant’s favor. Appellant 

did not object to an unreasonable multiplication of specifications during trial. Yet,

the military judge merged the four specifications of Charge II into one specification 

of false official statement for purposes of sentencing,

2

thereby preventing appellant 

from being unfairly subjected to an increase in punishment. Considering appellant’s 

false statements were made during a single interview with the same investigator 

regarding possession, use, and distribution of drugs obtained from one source, the 

specifications of Charge II are not four distinctly separate criminal acts. Rather, 

appellant’s three ‘exculpatory no’ answers and his misrepresentation about how 

many pills he gave Corporal C.A.C. comprise one false official statement offense. 

Further, convicting appellant four times for what was a single offense exaggerates 

his criminality.

3

 Accordingly, we conclude there was an unreasonable multiplication 

of specifications in this case. See United States v. Campbell, 71 M.J. 19, 23 

(C.A.A.F. 2012) (noting one or more factors may be sufficiently compelling, without 

more, to warrant relief); see also United States v. Wright, 44 M.J. 739, 741 (Army 

Ct. Crim. App. 1996) (“The government’s election to charge each of the four 

‘particulars’ in the appellant's two false official statements as a separate 

specification was an unreasonable multiplication of charges which must be 

corrected.”) (citations omitted).

 

2 At an R.C.M. 802 session prior to trial, the parties discussed merging the four 

specifications of Charge II into a single false official statement spec ification for 

sentencing purposes. The military judge merged the specifications sua sponte 

immediately after the providency colloquy for that charge.

3

In its brief, the government concedes the second and third Quiroz factors weigh in 

appellant’s favor, and that relief is warranted because the specifications of Charge II 

are unreasonably multiplied for findings.
BOLLINGER—ARMY 20120376

4

CONCLUSION

Upon consideration of the entire record, submission by the parties, and those 

matters personally raised by appellant pursuant to Grostefon, Specifications 1, 2, 3, 

and 4 of Charge II are consolidated into a single amended Specification, to read as 

follows:

In that [appellant], U.S. Army, did, at or near Ft. Bragg, 

North Carolina, on or about 6 July 2011, with intent to 

deceive, make to Military Police Investigator M.J.P., 

official statements, to wit: “No,” or words to that effect 

when asked if he had ever illegally used a controlled 

substance; “No,” or words to that effect when asked if he 

had ever illegally possessed a controlled substance; and, 

“No,” or words to that effect when asked if he had ever 

distributed Percocet or any type of pills to any Soldiers 

other than Corporal C.A.C., which statements were totally 

false, and were then known by the said [appellant] to be so 

false; and, to wit: “I gave [Corporal C.A.C.] about 2 

pills,” or words to that effect, which statement was false 

in that he had given Corporal C.A.C. more than two pills, 

and was then known by the said [appellant] to be so false.

The findings of guilty to Specifications 2, 3, and 4 of Charge II are set aside and 

those specifications are DISMISSED. The finding of guilty to the Specification of 

Charge II, as so amended, is AFFIRMED. The remaining findings are AFFIRMED. 

Reassessing the sentence on the basis of the error noted, the entire record, a nd 

in accordance with the principles of United States v. Winckelmann, 73 M.J. 11, 15-

16 (C.A.A.F. 2013), the sentence as approved by the convening authority is 

AFFIRMED. 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. 

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

MALCOLM H. SQUIRES, JR.

FOR THE COURT: