United States v. Sergeant HAROLD B. HILL

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, TELLITOCCI, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant HAROLD B. HILL
United States Army, Appellant
ARMY 20130240
Headquarters, U.S. Army Maneuver Center of Excellence
Stephen E. Castlen, Military Judge (arraignment and pretrial motions hearing)
James W. Herring, Jr., Military Judge (pretrial motions hearing and trial)
Colonel James F. Garrett, Staff Judge Advocate
For Appellant: Colonel Kevin Boyle, JA; Major Vincent T. Shuler, JA; Captain
Patrick J. Scudieri, JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Benjamin W. Hogan , JA (on brief).
30 April 2015
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SUMMARY DISPOSITION
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HAIGHT, Judge:
A panel composed of officer and enlisted members sitting as a general court-
martial convicted appellant, contrary to his pleas, of willful disobedience of a
superior commissioned officer, maltreatment of a subordinate, making a false
official statement, and communicating indecent language, in violation of Articles 90,
93, 107, and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C.
§§ 890, 893, 907, 934.  The panel sentenced appellant to a bad-conduct discharge,
confinement for two years, forfeiture of all pay and allowances, and reduction to the
grade of E-1. The convening authority approved the adjudged sentence.

The panel acquitted appellant of attempted rape, aggravated sexual contact,
wrongful sexual contact, and assault consummated by battery.
HILL—ARMY 20130240
Appellant’s case is now pending review before this court pursuant to Article
66, UMCJ. Appellant raises one assignment of error, which merits discussion and
relief. Appellant personally raises multiple issues pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), none of which merits discussion and relief.
Discussion
The Specification of Charge V alleges appellant “maltreat[ed] SGT AB, a
person subject to his orders, by making inappropriate comments about he r buttocks,
asking her if she wanted to have sexual intercourse with him, and asking her if she
wanted to give him oral sex.” Similarly, the Specification of Charge VI alleges
appellant, on the same date and at the same location as charged in Charge V,
“orally communicate[d] to SGT AB, certain indecent language, to wit: inappropriate
comments regarding her buttocks, asking if she wanted to have sexual intercourse
with him, and asking if she wanted to give him oral sex . . . .” Appellant was
convicted of both the maltreatment and indecent language, but the military judge
merged the two offenses for purposes of sentencing, instructing the panel to consider
these two specifications as one offense in determining an appropriate sentence.
Appellant now claims the finding of guilty to the charge of indecent language
should be set aside. We agree and will grant the requested relief.
At trial, the government not only conceded that the two specifications related
to the same misconduct, but declared that the t wo offenses were charged in the
alternative. Accordingly, it is incumbent to set aside one of the specifications. See
United States v. Elespuru, 73 M.J. 326 (C.A.A.F. 2014).
Conclusion
The findings of guilty of Charge VI and its specification are se t aside and that
charge and specification are DISMISSED. The remaining findings of guilty are
AFFIRMED. “Because the military judge merged [Charge V and VI ] for sentencing
purposes, we find that, under the facts of this case, [a] ppellant was not prejudiced
with regard to his sentence.” Id. at 330. The approved sentence is AFFIRMED.
Senior Judge COOK and Judge TELLITOCCI concur.
FORTHE
FOR THECOURT:
COURT:
MALCOLM
MALCOLMH. H.SQUIRES,
SQUIRES,JR.
JR.
Clerk
Clerkof
ofCourt
Court
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