## UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

COOK , TELLITOCCI

, and HAIGHT Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant HAROLD B. HILL United States Army, Appellant

ARMY 20 130240

Headquarters, U.S. Ar my Maneuver Center of Excellence Stephen E. Castlen , Military Judge ( arraignment and pretrial motions hearing) James W. Herring, Jr. , Military Judge (pretrial motions hearing and trial)

Colonel James F. Garrett , Staff Judge Advocate

For Appellant: Colonel Kevin Boyle, JA; Major Vincent T. Shuler, JA; Captain Patrick J. Scudieri, JA (on brief)

.

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colo nel James L. Varley, JA; Major Robert A. Rodrigues, JA; Captain Benjamin W. Hogan

, JA (on brief).

30 April 2015

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

--------------- ---------- - -------

HAIGHT , Judge :

A panel composed of officer and enlisted members sitting as a general court

martial convicted appellant, contrary to his pleas, of willful disobedience of a superior commissioned officer, maltreatment of a subordinate, making a false official statement, and communicating indecent language, in violation of Articles 90,
93, 107, and 134 , Uniform Code of Milita ry Justice [hereinafter UCMJ]

, 10 U.S.C.

§§ 890, 893, 907, 934

.  The panel sentenced appellant to a bad

- conduct discharge, confinement for two years, forfeiture of all pay and allowances, and reduction to the grade of E

- 1. The convening authority approve d the adjudged sentence.

 T he panel acquitted appellant of attempted rape, aggravated sexual contact, wrongful sexual contact, and assault consummated by battery.HILL

— ARM Y 20130240

2

Appellant’s case is now pending review before this c ourt pursuant to Article
66, UMCJ. Appella nt raises one assignment of error, which merits discussion and

relief. Ap pellant personally raise s multiple issues pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), none of which merit s discussion and relief.

Discussion

The Specification of Charge V alleges appellant “ m altreat[ed] SGT AB, a person subject to his orders, by making inappropriate comments about he r buttocks, asking her if she wanted to have sexual intercourse with him, and asking her if she wanted to give him oral sex.” Similarly, the Specification of Charge VI alleges appellant, on the same date and at the same location as charged in Charge V, “orally communicate[d] to SGT AB, certain indecent language, to wit: inappropriate comments regarding her buttocks, asking if she wanted to have sexual intercourse with him, and asking if she wanted to give him oral sex . . . . ” Appellant was

convicted o f both the maltreatment and indecent language, but the military judge merged the two offenses for purposes of sentencing, instructing the panel to consider

th ese two specifications as one offense in determining an appropriate sentence.

Appellant now cla ims the finding of guilty to the charge of indecent language should be set aside. We agree and will grant the requested relief

.

At trial, the government not only conceded that the two specifications related
to the same misconduct, but declared that the t wo offenses were charged in the

alternative. Accordingly, it is incumbent to set aside one of the specifications. See United States v. Elespuru , 73 M.J. 326 (C.A.A.F. 2014).

Conclusion

The findings of guilty of Charge VI and its specification are se t aside and that charge and specification are DISMISSED. The remaining findings of guilty are AFFIRMED. “Because the military judge merged [Charge V and VI ] for sentencing

purposes, we find that, under the facts of this case, [a] ppellant was not prejudic ed with regard to his sentence.” Id . at 330 . The approved sentence is AFFIRMED.

Senior Judge COOK and Judge TELLITOCCI concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: