UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

J.A. FISCHER, K.M. MCDONALD, D.C. KING

Appellate Military Judges

UNITED STATES OF AMERICA

v.

JEREMY J. KEPNER

MISSILE TECHNICIAN SECOND CLASS (E-5), U.S. NAVY

NMCCA 201500019

SPECIAL COURT-MARTIAL

Sentence Adjudged: 7 November 2014.

Military Judge: CAPT Bethany Payton-O’Brien, JAGC, USN.

Convening Authority: Commanding Officer, Naval Submarine 

Support Center Bangor, Silverdale, WA.

Staff Judge Advocate's Recommendation: LT N.T. Staring, 

JAGC, USN.

For Appellant: CDR Gregory Dimler, JAGC, USN.

For Appellee: LCDR Catheryne E. Pully, JAGC, USN; LT Ann E. 

Dingle, JAGC, USN.

30 April 2015

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

OPINION OF THE COURT 

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

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

 

PER CURIAM:

A military judge sitting as a special court-martial, 

convicted the appellant, consistent with his pleas, of two 

specifications of assault consummated by a battery in violation 

of Article 128 Uniform Code of Military Justice, 10 U.S.C. § 

928. The court sentenced the appellant to be reduced to pay 
2

grade E-1, to forfeit $750.00 pay per month for 11 months, 

confinement for 11 months, and a bad-conduct discharge. The 

convening authority approved the sentence as adjudged but 

suspended confinement in excess of 270 days, in accordance with 

the pretrial agreement. 

On appeal, the appellant alleges that his separate 

convictions for assault consummated by a battery constitute an 

unreasonable multiplication of charges. After carefully 

considering the record of trial and the parties briefs, we 

conclude that that the findings and sentence are correct in law 

and fact and that no error materially prejudicial to the 

substantial rights of the appellant was committed. Arts. 59(a)

and 66(c), UCMJ.

Background

The appellant hosted a party at which he and his fellow 

Sailors became inebriated. Later that night, the victim, Petty

Officer CK, fell asleep on the appellant’s couch. The appellant 

approached the sleeping CK, and removed his pants. After 

removing his pants, the appellant touched CK’s penis with his 

fingers and mouth. CK woke up, resisted, and immediately left 

the appellant’s home. CK then filed a complaint with his 

command, resulting in charges being referred to a special court 

martial. Although the appellant claims to have no memory of the 

events of the evening, he nonetheless entered into an agreement 

with the convening authority to plead guilty in exchange for the 

sentence limitation discussed above.

In the memorandum of his pretrial agreement, the appellant 

agreed to waive motions regarding unreasonable multiplication of 

charges.1

 In addition, while summarizing a RULE FOR COURTS-MARTIAL 

802, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) conference, the 

military judge stated:

[t]he court just expressed some concern about the two 

specifications as to the timing. The court was 

concerned about an unreasonable multiplication of 

charges based on just the stipulation of fact I had. 

 

1 The applicable provision states: “I reserve the right to raise motions 

regarding my right to due process, the right to challenge the jurisdiction of 

the court martial, the right to a speedy trial, the right to raise the issue 

of unlawful command influence, or any other motion that cannot be waived 

under R.C.M. 705. I agree to waive my right to raise any other motion not 

explicitly reserved by this paragraph.” Appellate Exhibit I at ¶ 18(f). 
3

The parties gave me sufficient factual information, and 

the court is, at this time, not concerned about an 

unreasonable multiplication of charges.2

 

The trial defense counsel concurred with the court’s 

summation. Moreover, during her closing argument, trial defense 

counsel stated, “I don’t want to be misconstrued, Your Honor. 

I’m not asking for some sort of unreasonable multiplication of 

charges or--or having you merge these things for sentencing, but 

the reality is these did not occur on two separate nights.”3 The 

court then stated, “In light of your argument . . . [t]he court 

just wants to make clear for the record that the court does not 

find an unreasonable multiplication of charges under the Quiroz

factors.”4

 

Discussion

It is settled law that an accused can waive the issue of

unreasonable multiplication of charges. United States v.

Gladue, 67 M.J. 311, 314 (C.A.A.F. 2009) (“Although the 

President has prohibited the waiver of certain fundamental 

rights in a PTA, neither multiplicity nor the unreasonable

multiplication of charges is among them.”). “Waiver is the 

intentional relinquishment or abandonment of a known right.” Id. 

at 313 (citations and internal quotation marks omitted). Based 

upon the specific facts and circumstances of this case, we are 

convinced that the appellant waived the issue of which he now 

complains and “extinguished his right” to raise the issue on 

appeal. Id. at 314.

Conclusion

The findings and the sentence as approved by the CA are 

affirmed.

For the Court

 

 

 

R.H. TROIDL

Clerk of Court

 

2 Record at 7.

3 Id. at 70. 

4 Id. at 71.