UNITED STATES, Appellant 

v. 

David A. HUDSON, Fireman Apprentice 

U.S. Coast Guard, Appellee 

No. 03-5005 

Crim. App. No. 1159 

United States Court of Appeals for the Armed Forces 

 Argued December 9, 2003 

 Decided March 30, 2004 

CRAWFORD, C.J., delivered the opinion of the Court, in 

which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined. 

Counsel 

For Appellant: Lieutenant Commander John S. Luce, Jr. (argued). 

For Appellee: Lieutenant Commander Mike Cunningham (argued). 

Military Judge: Mark R. Higgins 

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION. 
United States v. Hudson, No. 03-5005/CG 

2

Chief Judge CRAWFORD delivered the opinion of the Court. 

 Pursuant to his pleas, Appellee was convicted on July 26, 

2001, by a special court-martial consisting of a military judge 

alone, of wrongful use and possession of a controlled substance 

(OxyContin), unauthorized absence, failure to obey a lawful 

order and regulation, wrongful appropriation, and breaking 

restriction, in violation of Articles 112a, 86, 92, 121, and 

134, Uniform Code of Military Justice [hereinafter UCMJ], 10 

U.S.C. §§ 912a, 886, 892, 921, and 934 (2000), respectively. 

The military judge sentenced Appellee to confinement for six 

months, reduction to pay grade E-1, and a bad conduct discharge. 

Pursuant to Appellee’s pretrial agreement, the convening 

authority approved the sentence as adjudged, but suspended 

execution of confinement in excess of five months. 

 On appeal to the Coast Guard Court of Criminal Appeals, 

Appellee raised three assignments of error: 

1. The specification of possession of OxyContin should 

be dismissed as a lesser included offense of use of 

OxyContin; 

2. The specification of unauthorized absence should be 

dismissed as a lesser included offense of breaking 

restriction; and 

3. A bad conduct discharge is inappropriately severe 

for a junior enlisted member who self-referred for 

addiction to OxyContin when the OxyContin was 

initially prescribed by a Coast Guard contract 

physician. 
United States v. Hudson, No. 03-5005/CG 

3

The court affirmed on the first and third assignments of error, 

but held that it was plain error not to dismiss the unauthorized 

absence specification as a lesser-included offense of the 

breaking restriction specification. United States v. Hudson, 58 

M.J. 830, 831 (C.G. Ct. Crim. App. 2003). The court set aside 

the finding of guilty for the unauthorized absence offense, 

reassessed the sentence in light of the dismissed charge, and 

found that the sentence would have been the same if the offense 

had been dismissed at trial. Id. at 833. 

 On July 28, 2003, the Judge Advocate General of the Coast 

Guard certified the case for review by this Court to consider 

the following issue: 

WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS 

ERRED IN DECIDING THAT IT WAS PLAIN ERROR NOT TO 

DISMISS A TWO DAY UNAUTHORIZED ABSENCE AS A LESSER 

INCLUDED OFFENSE OF BREAKING RESTRICTION? 

For the reasons set forth below, we answer the certified issue 

in the affirmative, and reverse the decision of the lower court. 

FACTS

 Appellee was originally stationed in Morgan City, 

Louisiana, where in March 2000 a Coast Guard civilian physician 

prescribed for him the drug OxyContin. In September 2000, 

Appellee was transferred to Integrated Support Command New 

Orleans (ISCNO), where he illegally obtained and continued to 

use OxyContin after his initial prescription expired. Appellee 
United States v. Hudson, No. 03-5005/CG 

4

eventually sought treatment for his addiction, and was placed in 

an inpatient treatment program at Methodist Hospital in New 

Orleans. After completing the inpatient program, Appellee 

entered into a daily outpatient rehabilitation program. 

Appellee missed several meetings that were required as part of 

the outpatient program. 

Having learned that Appellee had failed some requirements 

of his outpatient treatment program, the chief of the Personnel 

Division at ISCNO, Lieutenant Commander (LCDR) John Bowers, 

cancelled Appellee’s leave, ordered him restricted to the limits 

of ISCNO, and required him to report for restricted muster. 

LCDR Bowers imposed the restriction to ensure Appellee’s 

presence at trial for illegal possession and use of OxyContin. 

While under restriction, Appellee requested a urinalysis to 

show that he was not using OxyContin. Appellee failed to report 

for the urinalysis, and instead took a command vehicle and drove 

off the base. A New Orleans police officer stopped Appellee the 

next day for driving erratically, and arrested him upon noticing 

that the vehicle was reported stolen. 

DISCUSSION

The Fifth Amendment protection against double jeopardy 

provides that an accused cannot be convicted of both an offense 

and a lesser-included offense. See Article 44(a), UCMJ, 10 

U.S.C. § 844(a) (2000); Blockburger v. United States, 284 U.S. 
United States v. Hudson, No. 03-5005/CG 

5

299 (1932); United States v. Teters, 37 M.J. 370 (C.M.A. 1993). 

Charges reflecting both an offense and a lesser-included offense 

are impermissibly multiplicious. See Brown v. Ohio, 432 U.S. 

161, 165-66 (1977)(noting that offenses charged are 

multiplicious when they stand in the relationship of greater and 

lesser offenses). On these grounds, “a specification may be 

dismissed upon timely motion by the accused.” Rule for CourtsMartial 907(b)(3)(B) [hereinafter R.C.M.]. 

Absent a timely motion, an unconditional guilty plea, such 

as Appellee’s, waives a multiplicity claim absent plain error. 

United States v. Heryford, 52 M.J. 265, 266 (2000). “Appellant 

may show plain error and overcome [waiver] by showing that the 

specifications are facially duplicative,” United States v. 

Barner, 56 M.J. 131, 137 (C.A.A.F. 2001), “that is, factually 

the same,” United States v. Lloyd, 46 M.J. 19, 23 (C.A.A.F. 

1997). The test to determine whether an offense is factually 

the same as another offense, and therefore lesser-included to 

that offense, is the “elements” test. United States v. Foster, 

40 M.J. 140, 142 (C.M.A. 1994). Under this test, the court 

considers “whether each provision requires proof of a fact which 

the other does not.” Blockburger, 284 U.S. at 304. Rather than 

adopting a literal application of the elements test, this Court 

stated that resolution of lesser-included claims “can only be 

resolved by lining up elements realistically and determining 
United States v. Hudson, No. 03-5005/CG 

6

whether each element of the supposed ‘lesser’ offense is 

rationally derivative of one or more elements of the other 

offense – and vice versa.” Foster, 40 M.J. at 146. Whether an 

offense is a lesser-included offense is a matter of law that 

this Court will consider de novo. United States v. Palagar, 56 

M.J. 294, 296 (C.A.A.F. 2002). 

To determine whether the offenses are factually the same, 

we review the “factual conduct alleged in each specification,” 

United States v. Harwood, 46 M.J. 26, 28 (C.A.A.F. 1997), as 

well as the providence inquiry conducted by the military judge 

at trial, Lloyd, 46 M.J. at 23. The specification for 

Appellee’s unauthorized absence read as follows: 

In that [Appellee] . . . did, at or near New Orleans, 

Louisiana, on or about 11 May 2001, without authority, 

absent himself from his unit to wit: Coast Guard 

Integrated Support Command New Orleans, and did remain 

so absent until . . . on or about 12 May 2001. 

During the providence inquiry, the military judge described the 

elements of this offense as follows: 

That on or about 11 May 2001 at or near New 

Orleans, Louisiana, you went from or remained absent 

from your unit, that is, Integrated Support Command 

New Orleans; 

That the absence was without proper authority

from someone who could give you that leave; 

And that you remained absent until 12 May of 

2001; 

And that your absence was terminated by 

apprehension. 
United States v. Hudson, No. 03-5005/CG 

7

(Emphasis added.) To examine the providence of Appellee’s 

guilty plea, the judge then elucidated the facts consistent with 

this charge: 

 Q: On 11 May 2001 what was your assigned unit? 

 A: Integrated Support Command New Orleans, sir. 

 Q: How did you know that was your assigned unit? 

 A: Because I had been told by supervisors, Chief 

Murray, that’s where I had been stationed in New 

Orleans, sir. 

 Q: On 11 May 2001 were you at your unit at any 

time? 

 . . . . 

 A: Yes, sir. 

 Q: Did you leave while you were still supposed to 

be there? 

 A: Yes, sir. 

 Q: Did anyone who was authorized to give you 

leave authorize your absence? 

 A: No, sir. 

 Q: Did you believe at the time you departed that 

you had the authority to be absent? 

 A: No, sir. 

 Q: Did you remain absent until 12 May 2001? 

 A: Yes, sir. 

(Emphasis added.) Appellee had previously stipulated to the 

facts of his unauthorized absence as follows: “[Appellee’s] 
United States v. Hudson, No. 03-5005/CG 

8

absence began on 11 May 2001 when he failed to report [to] an 

1100 urinalysis at the Integrated Support Command. Instead, 

[Appellee] took a command vehicle without permission and drove 

off the base.” 

 The specification for Appellee’s offense of breaking 

restriction read as follows: 

In that [Appellee] . . . having been restricted to the 

limits of the Integrated Support Command New Orleans, 

by a person authorized to do so, did, at or near New 

Orleans, Louisiana, on or about 11 May 2001, break 

said restriction. 

(Emphasis added.) Following the providence inquiry into 

Appellee’s guilty plea for unauthorized absence, the military 

judge outlined for Appellee the elements of breaking 

restriction: 

 That a certain person ordered you to be 

restricted to the limits of Integrated Support Command 

New Orleans; 

 That said person was authorized to order this 

restriction; 

 That you knew of the restriction and the limits 

thereof; 

 That on or about 11 May 2001 you went beyond the 

limits of the restriction[] before you had been set 

free by proper authority; and 

 That under the circumstances your conduct[] was 

to the prejudice of good order and discipline in the 

armed forces or of a nature to bring discredit upon 

the armed forces. 
United States v. Hudson, No. 03-5005/CG 

9

(Emphasis added.) The judge then gleaned from Appellee the 

facts consistent with this charge: 

 Q: Did a certain authority on 11 May 2001 

appoint a certain place of duty? 

A: Yes, sir. 

Q: Did you know what that place was? 

A: Yes, sir. 

Q: What was that place of duty? 

A: ISC New Orleans, sir. 

Q: And so, you were in a restricted status at 

that time? 

A: Yes, sir. 

Q: Did you believe that placing you in a 

restricted status was directly connected with 

maintaining good order and discipline in ISC New 

Orleans? 

A: Yes, sir. 

Q: Do you believe that his order was lawful? 

A: Yes, sir. 

Q: How long were you to be restricted? 

A: There was no cap put on it, sir. I was 

thinking that probably until I went to trial, sir. 

Q: So your understanding was that you would be 

restricted until you went to trial? 

A: That’s what I was thinking, sir. I wasn’t 

told. Basically I was told I was going to take a 

urinalysis. And the results probably wouldn’t be back 

for a number of weeks or something. I was never -- I 

was never told. I was just told I was back on 

restriction. 
United States v. Hudson, No. 03-5005/CG 

10

. . . . 

Q: Do you believe that you were being restricted 

so that you would be present for trial and wouldn’t 

commit further drug abuse, or were you being 

restricted as punishment for missing the meetings? 

Which do you believe? 

A: So I would be present at trial, sir. 

Q: So it’s your understanding that you were 

restricted so that your presence at trial would be 

guaranteed, and that was acceptable under the law? 

A: Yes, sir. 

(Emphasis added.) Appellee had previously stipulated regarding 

this offense: 

As a result [of failing in his drug and alcohol 

rehabilitation program], LCDR Bowers canceled 

[Appellee’s] leave and reinstated a previous order to 

pre-trial restriction. . . . The pre-trial restriction 

order was lawful. [Appellee] was restricted to the 

limits of the Integrated Support Command New Orleans 

and was required to report for restricted muster. 

(Emphasis added.) 

On the face of this record, particularly the emphasized 

language above, it is clear that Appellee’s offenses of breaking 

restriction and unauthorized absence were factually 

distinguishable in two respects. First, Appellee’s offense of 

breaking restriction required that Appellee had been ordered to 

restriction in some specific manner by an authorized individual. 

In this case, the imposed restriction required Appellee’s 

indefinite presence at ISCNO, in a status of restricted muster. 
United States v. Hudson, No. 03-5005/CG 

11

By contrast, Appellee’s unauthorized absence offense did not

require proof of a specific restriction order. Instead, it 

required Appellee’s admission that he departed his assigned unit 

without authority for a two day period. There was a distinct, 

independent obligation to be present for duty at the unit 

regardless of the terms of his restriction order. 

Moreover, Appellee’s offense of unauthorized absence 

contained a temporal component which was not present in the 

breaking restriction offense. Appellee’s breaking restriction 

offense required proof that Appellee departed his unit at a 

single point in time on May 11. By contrast, Appellee’s 

unauthorized absence offense required proof that Appellee 

remained absent from his unit for a specified two-day period of 

time, spanning May 11 and May 12. In fact, returning to 

Appellee’s unit on May 12, thereby terminating the unauthorized 

absence offense, was an element that was both noted in the 

unauthorized absence specification and discussed in the 

corresponding providence inquiry. 

Given these distinctions, Appellee’s offenses of breaking 

restriction and unauthorized absence were not factually the 

same. Accordingly, it was not plain error not to dismiss 

Appellee’s two-day unauthorized absence as a lesser-included 

offense of breaking restriction. 
United States v. Hudson, No. 03-5005/CG 

12

DECISION

The decision of the United States Coast Guard Court of 

Criminal Appeals is reversed.