UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, FEBBO, and WOLFE 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private E1 CARLOS A. GONZALES-GOMEZ 

United States Army, Appellant 

ARMY 20121100 

Headquarters, III Corps and Fort Hood 

Patricia H. Lewis, Military Judge (arraignment) 

Gregory A. Gross, Military Judge (trial) 

Colonel Stuart W. Risch, Staff Judge Advocate (pretrial) 

Colonel Ian Corey, Staff Judge Advocate (post-trial) 

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Aaron R. 

Inkenbrandt, JA; Captain Nicholas J. Larson, JA (on brief). 

For Appellee: Colonel Mark A. Sydenham, JA; Major Daniel D. Derner, JA; Captain 

Christopher A. Clausen, JA (on brief). 

30 November 2016 

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

OPINION OF THE COURT 

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

MULLIGAN, Senior Judge: 

For the same act, the government charged appellant with forcible sodomy, 

abusive sexual contact, and wrongful sexual contact. After the panel returned a 

guilty verdict to all three specifications, the government moved that the sexual 

contact offenses be dismissed as being unreasonably multiplied. The military judge 

denied the motion. In his first assignment of error, appellant asks us to do what the 

trial judge did not. The government on appeal does not oppose appellant’s requested 

relief. 

In his second assignment of error, appellant asks this court to provide relief 

for the 641 days it took to complete the post-trial processing of his case. This delay, 

which is over five times what is presumptively reasonable, reflected the six months 

it took to mail appellant his copy of the record of trial and draft and sign the staff 

judge advocate recommendation (SJAR). The government agrees appellant is 

entitled to relief. 
GONZALEZ-GOMEZ – ARMY 20121100 

2

BACKGROUND 

A panel convicted appellant, contrary to his pleas, of one specification of 

willfully disobeying a noncommissioned officer, four specifications of false official 

statement, one specification of engaging in an indecent act, one specification of 

abusive sexual contact, one specification of wrongful sexual contact, and one 

specification of forcible sodomy in violation of Articles 91, 107, 120, and 125, 

Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 891, 907, 920, 

925 (2006 & Supp. IV 2011). The panel sentenced appellant to a dishonorable 

discharge and confinement for six years. The convening authority approved the 

adjudged sentence. 

Appellant, a twenty year-old soldier on his first deployment to Afghanistan, 

befriended and formed a close relationship with the victim, Private (PV1) DHR. The 

two soldiers were apparently initially drawn together as non-native English speakers 

(appellant is from Mexico whereas PV1 DHR is from Peru). During the deployment 

they were virtually inseparable. The deployment caused PV1 DHR some 

psychological issues and his unit eventually redeployed him back to the rear 

detachment at Fort Hood. Appellant, distraught that his friend was gone, made three 

attempts at suicide by taking a combination of Motrin and Tylenol. After the third 

suicide attempt, appellant’s command redeployed him back to Fort Hood and 

assigned him to the rear detachment. 

The rear detachment back at Fort Hood had six soldiers, including appellant 

and the victim. The commander, determining that appellant and the victim were 

likely to get each other into trouble in the lightly-supervised rear detachment, 

directed a “No Contact” order that prohibited appellant and PV1 DHR from having 

contact with each other. The order was issued, poorly enforced, and had little effect 

on keeping the two soldiers apart or out of trouble. Appellant and the victim ate 

together, went to the gym together, spent nights together in each other’s rooms, and 

traveled together on holidays to visit each other’s families. 

Appellant planned to go with PV1 DHR to New York City for New Year’s 

Eve. When appellant submitted his pass request, he falsely told his first sergeant 

that he was going to Austin, Texas. Appellant had duty on New Year’s Day and, to 

avoid detection of his absence, paid another soldier to cover his duty. When that 

soldier failed to appear for duty, the unit noticed appellant’s absence and attempted 

to reach him. Appellant, who was in the New Jersey/New York metropolitan area, 

lied to a noncommissioned officer several times as he attempted to conceal his actual 

location. He first stated that he was in Austin but stranded without a ride. When the 

unit informed him they were sending a driver for him, he changed his story to state 

he was in California at his father’s house. Appellant attempted to fly home on a 

stand-by basis to avoid detection but returned to his unit on his previously scheduled 

return flight on 2 January 2012. 
GONZALEZ-GOMEZ – ARMY 20121100 

3

While appellant was in the New York area, he and the victim attended a $200 

all-inclusive food and drink New Year’s Eve party. Appellant “did not drink a lot,” 

while the victim drank to excess. When they returned to their lodging after a late 

night of partying and drinking, the victim laid down fully clothed and “passed out.” 

While PV1 DHR was unconscious, appellant licked PVT DHR’s anus and then 

inserted his penis into PV1 DHR’s rectum. The victim was unaware at the time this 

sexual activity occurred. 

Several months later, appellant was diagnosed with anal warts. Appellant 

then told the victim that “maybe he should get checked [for a sexually transmitted 

infection.]” The victim demanded to know why he should get checked. After 

learning about the anal sex over New Year’s Eve, the victim drove appellant to the 

military police station and reported a sexual assault. 

LAW AND DISCUSSION 

A. Unreasonable Multiplication of Charges 

After the panel announced findings, the government made a motion to dismiss 

the alleged abusive sexual contact and wrongful sexual contact, Specifications 2 and 

3 of Charge III. The government argued the specifications were unreasonably 

multiplied with the finding of guilt for forcible sodomy, the Specification of Charge 

IV. Although not explicitly stated, the government charged the two sexual contact 

offenses as quasi-lesser-included offenses to the forcible sodomy.1

 

While denying the government’s motion to dismiss the specifications, the 

military judge merged all three specifications for purposes of sentencing. The 

military judge stated his reason for merging and not dismissing the specifications 

was to preserve the convictions of the sexual contact offenses for appeal in the event 

the forcible sodomy offense was found to be insufficient. That is, had the military 

judge set aside the sexual contact offenses, he was concerned that if a future 

reviewing or appellate authority dismissed the forcible sodomy charge the accused 

would receive an appellate windfall. Given that this court conducts a de novo 

review for factual and legal sufficiency, such concerns are not unfounded. 

Although the military judge may have avoided the possibility of an unjust 

appellate windfall, by not dismissing the specifications at trial, he created new 

problems. When appellant’s trial ended, he stood convicted of three specifications 

of sexual misconduct for one act. There appears to be universal agreement that only 

a single specification was appropriate and legally correct. 

 

1

 Strictly speaking, they are not lesser-included offenses, see United States v. 

Jones, 68 M.J. 465 (C.A.A.F 2010), hence why they needed to be separately 

charged. 
GONZALEZ-GOMEZ – ARMY 20121100 

4

Recently our sister court addressed this same conundrum and provided the 

following guidance to military judges: 

When a military judge is presented with findings that 

reflect an unreasonable multiplication of charges that 

cannot be adequately addressed by merging the charges for 

sentencing purposes, the military judge must then decide 

whether to consolidate or dismiss the affected 

specifications. This is a significant decision that should be 

carefully considered by the military judge. Specifically, 

consideration should be given to what happens if, on 

appeal, the remaining offense is set aside. 

United States v. Thomas, 74 M.J. 563 (N-M. Ct. Crim. App. 2014). We agree. But 

we note several dangers in saving the issue for appeal. 

First, military justice practitioners cannot assume uncorrected issues of 

unreasonable multiplication of charges will be corrected on appeal. Appellate 

review may be waived or withdrawn. See UCMJ art. 61. Depending on the 

approved sentence, this court may not have appellate jurisdiction over the courtmartial. See UCMJ art. 66(b). Moreover, we do not presume the appellate process, 

robust as it may be in military appeals, will catch every error. 

Second, even assuming we correct the issue on appeal, during the pendency 

of the appeal appellant stands convicted of more offenses than is just under the 

circumstances. 

Third, by not ruling on the motion on its merits, the military judge deprived 

this court of his analysis of the substantive issue. While we conduct a de novo 

review of the record of trial under Article 66(c), UCMJ, it does not mean our review 

is not informed by the decisions and analysis of the trial court. A military judge 

presiding over the trial is often better positioned to address, for example, whether 

the specifications were charged in the alternative, represent government overreach, 

or adequately address appellant’s crimes. See United States v. Quiroz, 55 M.J. 334 

(C.A.A.F. 2001). 

Lastly, as a matter of judicial economy, it is inefficient to intentionally save 

for appellate litigation issues that can be easily addressed at trial. One of the most 

common assignments of error at this court are claims of unreasonable multiplication 

of charges. What can easily be resolved at trial through a motion by parties 

intimately familiar with the record becomes, on appeal, the routine requirement to 

address these issues with the not insubstantial attention of appellate counsel and this 

court. To the extent that appellate resources are not infinite, this factor weighs in 

favor of saving for appeal only those issues where there is a matter in dispute. 
GONZALEZ-GOMEZ – ARMY 20121100 

5

The Navy Court in Thomas revived a possible solution: 

Dismissal of [the unreasonably multiplied] offense in 

favor of the remaining greater offense may be the 

appropriate remedy where the unreasonably multiplied 

offenses stand in a greater-lesser relationship. In other 

cases, consolidation may be the more appropriate remedy 

as “the findings of guilty as to [consolidated] 

specifications are not affected because they still apply to 

the portions of the specifications added to the remaining 

specification . . . .” United States v. Sorrell, 23 M.J. 122, 

122 n.1 (C.M.A. 1986). Consolidation is accomplished 

by simply combining the operative language from each 

specification into a single specification that adequately 

reflects each conviction. 

When consolidation is impracticable, such as when the 

guilty findings involve violations of different UCMJ 

articles, military judges should consider a conditional 

dismissal of one or more findings. Conditional 

dismissals “become effective when direct review becomes 

final in the manner described in Article 71(c), UCMJ” 

and therefore “protect the interests of the Government in 

the event that the remaining charge is dismissed during 

[appellate] review.” United States v. Britton, 47 M.J. 

195, 203-05 (C.A.A.F. 1997) (Effron, J., concurring). 

Thomas, 74 M.J. at 569. 

We agree with the Thomas court’s solution. The military judge’s action in 

this case does not strike us as unusual. As a routine issue presented to the court, and 

because the possibility of repetitive harm is not slight, we determine that appropriate 

action for a trial judge when presented with a motion for unreasonable multiplication 

of charges that cannot be adequately addressed by merger may be to “conditionally 

dismiss” the suspect specifications. A conditional dismissal of a specification is a 

dismissal of a specification conditioned on the remaining specification(s) surviving 

final appellate review. See UCMJ art. 76 (“Finality of proceedings, findings and 

sentences”); UCMJ art. 71(c) (definition of final judgment as to legality of 

proceedings). Of course, nothing in this opinion should be construed as preventing a 

military judge from dismissing a specification outright when warranted. Whether a 

dismissal for unreasonable multiplication of charges should be conditional lies 

within the sound discretion of the trial judge. 

A conditional dismissal ensures the promulgating order appropriately reflects 

appellant’s crimes, preserves the government’s interests on appeal, and serves the 

interests of judicial economy. A conditional dismissal also places an appellant on 
GONZALEZ-GOMEZ – ARMY 20121100 

6

notice of the consequences if, for example, the remaining specification does not 

survive appellate review (i.e. the condition is met).2 Recently, for example, in 

United States v. Parker, 75 M.J. 603 (N-M. Ct. Crim. App. 2016), the court 

dismissed a rape conviction and revived a conditionally dismissed specification 

alleging a sexual assault. 

The threshold issue discussed above involved the actions of the military 

judge. We find the three specifications at issue to be unreasonably multiplied. See 

Quiroz, 55 M.J. at 337. Accordingly, we dismiss two of them in our decretal 

paragraph. 

B. Dilatory Post-Trial Processing 

The convening authority took action on appellant’s case 641 days after the 

panel sentenced appellant on 30 November 2012. The record of trial contains no 

explanation why the transcription of the 765-page, six volume record of trial 

required 406 days. It required an additional 180 days to place the authenticated 

record of trial in the mail to be served on appellant. The SJAR was not signed until 

1 September 2014, 610 days after appellant’s court-martial. The government 

concedes on appeal it has no reasonable explanation for the delay in either 

transcribing the record or in serving the authenticated record on appellant.3

Although we find no due process violation in the post-trial processing of 

appellant’s case, we must still review the appropriateness of the sentence in light 

of the unjustified dilatory post-trial processing. UCMJ art. 66(c); United States v. 

Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (“[Pursuant to Article 66(c), UCMJ, 

service courts are] required to determine what findings and sentence ‘should be 

approved,’ based on all the facts and circumstances reflected in the record, 

including the unexplained and unreasonable post-trial delay.”). See generally 

United States v. Toohey, 63 M.J. 353, 362-63 (C.A.A.F. 2006); United States v. 

Ney, 68 M.J. 613, 617 (Army Ct. Crim. App. 2010); United States v. Collazo, 53 

M.J. 721, 727 (Army Ct. Crim. App. 2000). 

 

2

 The military judge should clearly state whether a dismissal is conditional. 

Assuming the convening authority approves the findings as adjudged, the 

promulgating order should reflect that the dismissal as conditional. 

3

 There are two key parts to post-trial processing. Part one is the production of a 

record of trial and the authentication by the military judge. Once the record is 

authenticated, the staff judge advocate owns and controls the second part of the 

process, which starts with service of the SJAR on the accused. The 410 days 

required to produce this record of trial does not in any way justify the additional 

190 days to sign the SJAR. The only plausible explanation for this extraordinary 

delay is a total lack of rigor and accountability in the SJA’s office. 
GONZALEZ-GOMEZ – ARMY 20121100 

7

The government concurs appellant is entitled to some relief. The 

unexplained delay between announcement of sentence and action is simply too 

long, and could “adversely affect the public’s perception of the fairness and 

integrity of military justice system . . . .” Ney, 68 M.J. at 617. Thus, we find 

relief is appropriate under the facts of this case and we will accordingly reduce 

appellant’s sentence by 180 days. 

CONCLUSION 

The findings of guilty of Specification 2 and 3 of Charge III are set aside 

and DISMISSED. Upon consideration of the entire record, the remaining findings 

of guilty are AFFIRMED. Given the dilatory post-trial processing, however, we 

affirm only so much of the sentence as provides for a dishonorable discharge and 

confinement for sixty-six months. All rights, privileges, and property, of which 

appellant has been deprived by virtue of this decision setting aside portions of the 

findings and sentence, are ordered restored. See UCMJ arts. 58a(b), 58b(c), and 

75(a). 

 Judge FEBBO concurs. 

Judge WOLFE concurring: 

 I join the majority opinion fully in all but one aspect. I would find that the 

unreasonable and unexplained delay in this case constituted a violation of the due 

process rights of appellant. Although adequately stated by the majority, the facts 

bear repeating. 

 It took 180 days after authentication to mail the case to appellant. An 

administrative task that should take at most a few hours instead took six months. It 

took 190 days after authentication to draft a two-page, routine legal memorandum. 

These delays reflect a lack of leadership, not resources. It is carelessness so 

stark the United States does not even try to defend it. Given the egregiousness of 

the delay, and the lack of any effort to explain it, I would find this convening 

authority and his staff violated appellant’s due process rights. United States v. 

Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006). 

More broadly, faced with numerous cases of excessive post-trial delay, I am 

concerned this court’s routine granting of sentence reductions may be causing more 

harm than good. Specifically, by granting sentencing relief in such cases we 

engender a moral hazard where such relief is assumed and expected—thereby 

diminishing the impetus to get it right in the first instance. There is scant evidence 

that our routine reduction of justly-earned sentences serves to spur proper post-trial 

process or deter lethargic post-trial processing. The opposite may be the more 

likely—we may be greasing the wheels of apathy. 
GONZALEZ-GOMEZ – ARMY 20121100 

8

Additionally, this court often enforces deadlines, tests counsel’s effectiveness 

at trial, and, when warranted, holds individuals accountable for the performance of 

their duties in the military justice system. See United States v. Banks, 75 M.J. 476 

(Army Ct. Crim. App. 2016) (holding defense counsel to their statutory allowed time 

for post-trial). I see little reason not to do so here.4 See Army Reg. 27-26, Legal 

Services: Rule for Professional Conduct for Lawyers, Appx. B, R.1.1 (Competence), 

R.1.3 (Diligence) (1 May 1992) (“A lawyer shall act with reasonable diligence and 

promptness in representing a client and in every case.”). 

 

 

FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

 

4

 As usual, the header of our opinion reflects the name of the SJA who issued the 

pretrial advice and the SJA who signed the recommendation. However, in cases 

such as this one where several SJAs came and went between referral and action, it 

omits the names of the SJAs who presided over substantial periods of the delay. 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: