U.S. v. Palagar, 56 M.J. 294

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. whether offenses stand in the relationship of greater and lesser-included offenses is a question of law that is reviewed de novo

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

1. when a specific offense is also charged as a violation of Article 133, the specific offense has been treated as a lesser-included offense; this follows from the fact that whenever a specific offense is also charged as conduct unbecoming an officer, the elements of proof for conduct unbecoming are the same as those set forth in the paragraph of the Manual which treats that specific offense, with the additional requirement that the act or omission constitutes conduct unbecoming an officer and gentleman

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Multiplicity

1. the error to be remedied in correcting multiplicity is to eliminate a double conviction for the same act; the Court of Criminal Appeals did not err by setting aside so much of the conviction of conduct unbecoming an officer as was included in the offense of obstruction of justice, a lesser-included offense
2. conviction of larceny by using an IMPAC card for personal purchases was multiplicious with conviction of conduct unbecoming an officer by making unauthorized purchases with the IMPAC card
3. appellant was not prejudiced as to sentence by multiplicious offenses where the maximum authorized punishment for the most analogous offense to remaining portion of charge of conduct unbecoming an officer was the same as the maximum sentence used for that offense at trial, and where the military judge specifically stated that he considered the “clear overlap” among the offenses in determining an appropriate sentence