UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Staff Sergeant SAUL M. BOOKMAN

United States Air Force

ACM 38342

31 March 2014

Sentence adjudged 22 January 2013 by GCM convened at Buckley Air 

Force Base, Colorado. Military Judge: Christopher M. Schumann (sitting 

alone).

Approved Sentence: Bad-conduct discharge, confinement for 8 months,

and reduction to E-1.

Appellate Counsel for the Appellant: Captain Isaac C. Kennen.

Appellate Counsel for the United States: Colonel Don M. Christensen;

Major Jason M. Kellhofer; and Gerald R. Bruce, Esquire.

Before

ROAN, HELGET, and WEBER

Appellate Military Judges

This opinion is subject to editorial correction before final release.

PER CURIAM:

A general court-martial composed of a military judge sitting alone convicted the 

appellant, in accordance with his pleas, of nine specifications of larceny, in violation of 

Article 121, UCMJ, 10 U.S.C. § 921. The court sentenced the appellant to a bad-conduct 

discharge, confinement for 8 months, and reduction to E-1. With the exception of 

deferring and waiving the mandatory forfeitures, the convening authority approved the 

adjudged sentence. 

Before this Court, the appellant raises three assignments of error: (1) Whether the 

staff judge advocate’s recommendation (SJAR) contained plain and prejudicial error 

because it inaccurately stated that the appellant “was convicted of having committed 
60 different thefts over the course of a single year” and the appellant “pleaded guilty to 

stealing more than $30,500,” when the appellant actually was convicted of, and pled 

guilty to, committing only 41 thefts for a total amount of $15,797; (2) Whether 

Specifications 2 and 4, 6 and 7, and 8 and 9 of the Charge are multiplicious; and 

(3) Whether the sentence in this case is inappropriately severe. Finding no error that 

materially prejudices a substantial right of the appellant, we affirm.

Background

In 2010, the appellant was assigned to the 320th Training Squadron (320 TRS) at 

Lackland Air Force Base, Texas. While assigned there, he was also the President of the 

320th TRS Booster Club, which was a private organization. As the President of the 

Booster Club, the appellant exercised control over the Booster Club’s finances; had 

access to the Booster Club debit card, checking account, and bank records; and managed 

the Booster Club ledger for recording its transactions. The appellant was authorized to 

make deposits and payments on behalf of the Booster Club. 

From approximately 5 April 2010 to 31 December 2010, on 41 separate occasions, 

the appellant stole almost $15,800 from the 320th TRS Booster Club. In April 2010, 

while on leave in Massachusetts, the appellant used the Booster Club debit card to 

withdraw $302 cash from a local Automatic Teller Machine (ATM) to pay a friend for 

baseball tickets. From 14 July 2010 to 5 August 2010, the appellant was on leave in 

Arizona and Nevada. During this period, he used the debit card to make several cash 

withdrawals from various ATMs. He used the money for his own personal use and 

enjoyment, such as playing golf, paying for hotels, food and gas, and paying for gambling 

at casinos in Las Vegas.

From 5 November 2010 to 29 November 2010, the appellant used the Booster 

Club debit card to purchase an airline ticket for a friend to accompany him to Arizona 

and to withdraw cash for his own personal use. The appellant also used the Booster Club 

checking account to write himself a check in the amount of $1,000. He annotated on the 

check that it was for a charitable donation to the Fisher House, but instead he deposited 

the check in his personal bank account to use for an upcoming trip to Arizona. 

From 1 December 2010 to 29 December 2010, the appellant used the Booster Club 

debit card to make numerous cash withdrawals for his own personal use, to include 

purchasing a suit for the squadron Christmas party, purchasing Christmas presents, and 

purchasing tickets to a college bowl game. 

To conceal his misconduct from the Booster Club, the appellant falsified the 

Booster Club ledger by entering what appeared to be legitimate transactions.

2 ACM 38342
Post-Trial Processing

On 10 April 2013, the staff judge advocate (SJA) signed the Addendum to the 

SJAR. In paragraph 4, the SJA erroneously stated: 

[The appellant] was convicted of having committed 60 different thefts over 

the course of a single year, while he was the president of his former 

squadron’s booster club. . . . In total, [the appellant] pleaded guilty to 

stealing more than $30,500 (Record of Trial, Volume 3, Prosecution 

Exhibit 1), which he used for his own personal benefit, to include personal 

purchases and funding trips to Las Vegas, Nevada. 

(emphasis added).

According to the stipulation of fact in this case, the parties agreed the appellant 

committed only 41 thefts for a total amount of $15,797. Furthermore, in sentencing, the 

trial counsel argued the same number of thefts and total amount stolen consistent with the 

stipulation of fact. On appeal, the appellant asserts that as a result of the error in the 

SJAR Addendum, we should reassess his sentence and decline to affirm the bad-conduct 

discharge. 

To obtain relief based on an error in the SJAR or its Addendum, the appellant 

must: (1) allege the error at the Court of Criminal Appeals; (2) allege prejudice resulting 

from the error; and (3) show what he would do to resolve the error if given the 

opportunity. See United States v. Wheelus, 49 M.J. 283, 288 (C.A.A.F. 1998). 

Considering the highly discretionary nature of the convening authority’s action, “there is 

material prejudice to the substantial rights of an appellant if there is an error and the 

appellant ‘makes some colorable showing of possible prejudice.’” Id. at 289 

(quoting United States v. Chatman, 46 M.J. 321, 323-24) (C.A.A.F. 1997)). “If the 

appellant makes such a showing, the Court of Criminal Appeals must either provide 

meaningful relief or return the case to the Judge Advocate General concerned for a 

remand to a convening authority for a new posttrial recommendation and action.” Id.

Pursuant to Rule for Courts-Martial 1106(d)(6), “[i]n case of error in the 

recommendation . . . appropriate corrective action shall be taken by appellate authorities 

without returning the case for further action by a convening authority.”

In his clemency request, the appellant requested the convening authority reduce 

his confinement by two months and enter him into the Return to Duty Program (RTDP). 

In support of his request, the appellant submitted a recommendation from the military 

judge, his commander who preferred the charge in this case, plus eight other letters. 

3 ACM 38342
On appeal, the appellant asserts he was materially prejudiced by the errors in the 

SJAR Addendum because they grossly exaggerated his culpability, thereby hindering the 

multiple recommendations that he be entered into the RTDP. The appellant claims the 

only meaningful relief is for this Court not to affirm his punitive discharge. We disagree.

Despite the errors in the SJAR Addendum, there is significant aggravation 

evidence in this case. The 41 thefts occurred over a one-year period; the appellant was 

the President of the 320th Booster Club and intentionally concealed the thefts in the 

Booster Club ledger, including falsely claiming some of the money had been used for a 

charitable donation; and the appellant used the stolen funds for his personal use, to 

include funding trips to Las Vegas, Nevada. Additionally, the appellant underwent a 

psycho-social evaluation as required for the RTDP application, and the evaluating 

provider, Dr. DB, recommended against the appellant’s admission into the RTDP. 

After considering the entire record of trial, we find the appellant has not made a 

colorable showing of possible prejudice. We are convinced the convening authority 

would have taken the same action had he been advised of the correct number of thefts and 

total amount stolen by the appellant. 

Multiplicity

For the first time on appeal, the appellant asserts that Specifications 2 and 4, 

6 and 7, and 8 and 9 of the Charge are multiplicious.

This Court reviews multiplicity issues de novo. See United States v. Anderson, 

68 M.J. 378, 385 (C.A.A.F. 2010). Multiplicity in violation of the Double Jeopardy 

Clause of the Constitution1 occurs when “‘a court, contrary to the intent of Congress, 

imposes multiple convictions and punishments under different statutes for the same act or 

course of conduct.’” Id. (quoting United States v. Roderick, 62 M.J. 425, 431 

(C.A.A.F. 2006)) (emphasis omitted). Accordingly, an accused may not be convicted and 

punished for two offenses where one is necessarily included in the other, absent 

congressional intent to permit separate punishments. See United States v. Teters, 

37 M.J. 370, 376 (C.M.A. 1993). Where legislative intent is not expressed in the statute 

or its legislative history, “it can also be presumed or inferred based on the elements of the 

violated statutes and their relationship to each other. Id. at 376-77. The Supreme Court 

laid out a “separate elements test” for analyzing multiplicity issues: “The applicable rule 

is that, where the same act or transaction constitutes a violation of two distinct statutory 

provisions, the test to be applied to determine whether there are two offenses or only one, 

is whether each provision requires proof of a fact which the other does not.” Blockburger 

v. United States, 284 U.S. 299, 304 (1932). Accordingly, multiple convictions and 

punishments are permitted for a distinct act if the two charges each have at least one 

1 U.S. CONST. amend. V.

4 ACM 38342

 
separate statutory element from each other. Absent a timely motion at trial, an 

unconditional guilty plea waives a multiplicity claim on appeal absent plain error. 

See United States v. Hudson, 59 M.J. 357, 358 (C.A.A.F. 2004), overruled in part on 

other grounds by United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010).

 

Article 121, UCMJ, Larceny, contains the following elements: 

(a) That the accused wrongfully took, obtained, or withheld certain property 

from the possession of the owner or of any other person;

(b) That the property belonged to a certain person;

(c) That the property was of a certain value, or of some value; and

(d) That the taking, obtaining, or withholding by the accused was with the 

intent permanently to deprive or defraud another person of the use and 

benefit of the property or permanently to appropriate the property for the 

use of the accused or for any person other than the owner.

Manual for Courts-Martial, United States (MCM), Part IV, ¶ 46.b.(1) (2012 ed.). 

In this case, all of the transactions are specifically described in detail in the 

stipulation of fact. The main difference between Specifications 2 and 4, 6 and 7, and 

8 and 9 is that Specifications 2, 6 and 8 allege the theft of cash in an amount “equal to or 

less than $500,” while Specifications 4, 7 and 9 allege the theft of cash “of a value of 

more than $500. This is due to the maximum punishment allowed. For larceny of nonmilitary property of a value of $500 or less, the maximum punishment is a bad-conduct 

discharge, forfeiture of all pay and allowances, and confinement for 6 months. For 

larceny of non-military property of a value of more than $500, the maximum authorized 

punishment is a dishonorable discharge, forfeiture of all pay and allowances, and 

confinement for 5 years. MCM, Part IV, ¶ 46.e.(1)(b), (d).

We find under the circumstances of this case, the said specifications are not 

multiplicious. All of these specifications involve more than one theft that occurred on 

divers occasions and the alleged timeframe for each specification is different. For 

Specifications 2 and 4, the larcenies under Specification 2 occurred on separate dates, at 

separate locations, and for different amounts than the larcenies that occurred under 

Specification 4. For Specifications 6 and 7, the larcenies under Specification 6 occurred 

on different dates and for different amounts than the larcenies under Specification 7. For 

Specifications 8 and 9, most of the larcenies under Specification 8 occurred on different 

dates and for different amounts than the larcenies under Specification 9. Specifications 

8 and 9 each allege that a larceny occurred on 15 December 2010, however, the amounts 

and locations are different. 

5 ACM 38342
Accordingly, the appellant has failed to show that the specifications were 

multiplicious, and no error, plain or otherwise, occurred in this case. 

Sentence Severity

The appellant asserts his sentence consisting of a bad-conduct discharge and 

confinement for eight months is inappropriately severe. We disagree.

This Court reviews sentence appropriateness de novo. See United States v. Lane, 

64 M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only . . . the sentence or such part or 

amount of the sentence, as [we find] correct in law and fact and determine[], on the basis 

of the entire record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). We 

assess sentence appropriateness by considering the particular appellant, the nature and 

seriousness of the offenses, the appellant’s record of service, and all matters contained in 

the record of trial. See United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982); United 

States v. Bare, 63 M.J. 707, 714 (A.F. Ct. Crim. App. 2006), aff’d, 65 M.J. 35 

(C.A.A.F. 2007). We have a great deal of discretion in determining whether a particular 

sentence is appropriate, but are not authorized to engage in exercises of clemency. 

See United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010); United States v. Healy, 

26 M.J. 394, 395-96 (C.M.A. 1988).

The appellant argues that the adjudged and approved sentence shows the impact of 

the alleged multiplication of charges and errors in the SJAR, and the failure to consider 

the appellant’s lack of any prior offenses, his outstanding duty performance, his combat 

service, and the fact he pled guilty. 

The maximum punishment in this case was a dishonorable discharge, confinement 

for 18 years, forfeiture of all pay and allowances, and reduction to E-1. A pretrial 

agreement entered into between the parties capped confinement at 20 months. During its 

sentencing argument, the Government argued for a dishonorable discharge and 

confinement for 24 months. In response, the trial defense counsel recommended 

confinement for 8 months and, in exchange for no additional confinement, a bad-conduct 

discharge. During his argument, trial defense counsel also highlighted the appellant’s 

strong duty performance, his rehabilitative potential, and his guilty plea. The military 

judge must have considered these matters because he concurred with the trial defense 

counsel’s recommendation and sentenced the appellant to a bad-conduct discharge and 

confinement for 8 months. Additionally, the military judge submitted a post-trial 

recommendation for the appellant to be offered an opportunity to participate in the 

RTDP, which indicates he considered the appellant’s mitigating factors. The military 

judge stated, “While I obviously recognize the serious nature of the misconduct 

[the appellant] pled guilty to, his plea of guilty coupled with his sincere expression of 

6 ACM 38342
remorse and the absence of any other misconduct in an otherwise commendable career 

warrants an opportunity for participation in the program.”2

 

We have examined the entire record of trial and all of the circumstances in this 

case and find that the appellant’s approved sentence correctly reflects the gravity of the 

41 larcenies he committed and is not inappropriately severe. 

Conclusion

The approved findings and sentence are correct in law and fact, and no error 

materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a) 

and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and 

sentence are

AFFIRMED.

FOR THE COURT

LAQUITTA J. SMITH

Appellate Paralegal Specialist

2 After announcing the sentence, the military judge also recommended the convening authority waive mandatory 

forfeitures to be paid to the appellant’s dependents. 

7 ACM 38342