U.S. v. Cherukuri, 53 M.J. 68

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Lesser Included Offenses

1. when the underlying conduct is the same, a service discredit or disorder under Article 134 is a lesser-included offense of conduct unbecoming an officer under Article 133, and dismissal of the lesser-included offense is required under the Double Jeopardy Clause of the United States Constitution
2. conduct unbecoming an officer under Article 133 rationally entails a higher level of dishonor or discredit than simple prejudice to good order and discipline under Article 134; and where the underlying acts of each charge are the same, only one offense, conduct unbecoming an officer, has a different element than the other
3. where the particular acts alleged in four specifications alleging indecent assaults and a single specification of conduct unbecoming an officer were the same (i.e., the indecent assaults), the offenses stand as greater and lesser-included offenses based on the same underlying conduct; a gravamen of the offense approach for determining greater and lesser-included offenses is not adopted