United States v. Staff Sergeant RONALD E. FOSDYCK, III

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, FEBBO, and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Staff Sergeant RONALD E. FOSDYCK, III
United States Army, Appellant
ARMY 20150617
Headquarters, 1st Sustainment Command (Theater)
Deidra J. Fleming, Military Judge
Lieutenant Colonel Russell K. Jackson, Staff Judge Advocate
For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Major Andres
Vazquez, Jr., JA; Captain Joshua B. Fix, JA (on brief); Lieutenant Colonel
Christopher D. Carrier, JA; Captain Bryan A. Osterhage, JA; Captain Joshua B. Fix,
JA (on reply brief).
For Appellee: Colonel Mark H. Sydenham, JA; Major Michael E. Korte, JA; Captain
Jonathan S. Reiner, JA (on brief).
1 August 2017
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SUMMARY DISPOSITION
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Per Curium:
During a Taliban attack on Forward Operating Base (FOB) Walton,
Afghanistan, appellant left his position on the perimeter so he could masturbate.
This was part of his plan, discussed before the attack with fellow soldiers and
bragged about after the attack, to get his “combat jack.”
Based on this conduct, a military judge sitting as a special court-martial
convicted appellant, contrary to his pleas, of one specification of going from his
appointed place of duty and one specification of misbehavior before the enemy, in
violation of Articles 86 and 99 of the Uniform Code of Military Justice, 10 U.S.C.
§§ 886, 899 (2012) [hereinafter UCMJ]. The military judge sentenced appellant to a
bad-conduct discharge and reduction to the grade of E-1. The convening authority
approved the adjudged sentence.
FOSDYCK—ARMY 20150617
This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises four assigned errors. We address the alleged unreasonable multiplication of
charges, and grant no relief. Appellant’s other assignments of error lack merit.
BACKGROUND
Appellant deployed to Afghanistan as a squad leader. His unit’s mission was
to dismantle a FOB. Prior to the deployment, appellant told other soldiers in the
unit that he was going to get his “combat jack” during the deployment. For
appellant, a “combat jack” meant masturbating while under fire.
In July 2014, the FOB was attacked when a vehicle-borne improvised
explosive device exploded and Taliban insurgents exchanged small arms fire with
soldiers on the FOB. The attack lasted for several hours and one U.S. and one
Afghan soldier were wounded. During the attack, appellant told other soldiers he
was going to finally get his “combat jack.” Appellant’s squad was defending the
perimeter of the FOB. Instead of leading his squad, appellant left his fighting
position to look for a private place to masturbate. Not surprisingly, he was not
given authority to leave the perimeter for this purpose.
After leaving his post, appellant asked junior soldiers multiple times for a
pornographic magazine. Appellant also made this request in front of one female
enlisted subordinate. When they could not find a magazine, a soldier gave him a
calendar that had sexually suggestive pictures. Afterward, appellant went to a tent
that was designated for a Quick Reaction Force (QRF) and Enemy Prisoners of War
(EPWs). Appellant told the two junior soldiers to leave the tent so he could be
alone. He was inside alone for five to fifteen minutes. While he was inside the tent,
the two soldiers outside were no longer concealed from observation by Taliban
insurgents and risked exposure to small arms fire. When he left the tent, appellant
bragged that he got his “combat jack” and that the calendar worked for him. When
his Platoon Sergeant heard about appellant masturbating, he confronted appellant
and asked if it was true. Appellant responded he was proud of getting his “combat
jack.”
At trial, appellant testified that he did not leave his place of duty to
masturbate. Instead, he was merely joking about masturbation to alleviate the stress
and tension of the soldiers while engaged in combat with the Taliban. 1 Appellant
testified he was suffering from PTSD and asked the two soldiers to leave the EPW
tent so they could not observe him shaking and having a panic attack. However, his
1
We find the evidence legally and factually sufficient to support appellant’s
conviction for both offenses. Appellant’s explanation that he was only joking is
simply unworthy of belief.
2
FOSDYCK—ARMY 20150617
testimony was not credible. The two soldiers did not observe appellant being upset
or shaking. Instead, appellant was calm and was described by another soldier as
being “giggly” when he discussed completing his “combat jack.” Appellant ignored
his Platoon Sergeant’s request for appellant to stop talking about “combat jacks” and
to get focused.
LAW AND DISCUSSION
Appellant did not raise the issue of unreasonable multiplication of charges at
trial and has forfeited the issue on appeal.
As appellant forfeited the issue of unreasonable multiplication of charges for
findings by not raising the issue at trial, we review using the plain error standard.
United States v. Ahern, 76 M.J. 194 (C.A.A.F. 2017); see also United States v.
Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009). In order to prevail, appellant must show
that: (1) there was error; (2) the error was plain or obvious; and (3) the error
materially prejudiced a substantial right of the appellant. United States v. Paige, 67
M.J. 442, 449 (C.A.A.F. 2009) (quoting United States v. Maynard, 66 M.J. 242, 244
(C.A.A.F. 2008). Unfortunately, since appellant did not raise the issue of
unreasonable multiplication of charges at trial, the military judge was precluded
from deciding the issue and the trial court was deprived of establishing a full record
of the issue for appeal. However, after reviewing the record, to include the charges
and specifications, we find no plain and obvious error that materially prejudiced a
substantial right of the appellant.
Even if an issue is forfeited by appellant at trial, pursuant to the appellate
review authority under Article 66(c), UCMJ, this court may approve only those
findings and sentence that are correct in law and fact and “should be approved.”
United States v. Chin, 75 M.J. 220, 222 (C.A.A.F. 2016) (citing United States v.
Nerad, 69 M.J. 138, 141-144 (C.A.A.F. 2010); United States v. Quiroz, 55 M.J. 334,
338 (C.A.A.F. 2001)); See also, United States v. Clark, ARMY 20140252, 2016 CCA
LEXIS 363, *6 (Army Ct. Crim. App. 31 May 2016) (mem. op.). If the charges are
unreasonably multiplied, we will grant appellant relief either because appellant has
shown plain error, or because we choose to notice the forfeited issue.
“What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one person.” Rule for Courts-Martial
307(c)(4). The prohibition against unreasonable multiplication of charges
“addresses those features of military law that increase the potential for overreaching
in the exercise of prosecutorial discretion.” United States v. Campbell, 71 M.J. 19,
23 (C.A.A.F. 2012) (quoting Quiroz, 55 M.J. at 337). In determining if there was an
unreasonable multiplication of charges, we are guided by the five Quiroz factors.
Quiroz, 55 M.J. at 338.
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FOSDYCK—ARMY 20150617
Of the five Quiroz factors only one weighs in favor of appellant. First, he did
not raise the issue of unreasonable multiplication of charges at trial.
Second, we agree with appellant that the specifications do not involve
distinctly separate criminal acts.
Third and fourth, the two charges and their specifications neither
misrepresents nor exaggerate appellant’s criminality nor unreasonably increases his
punitive exposure. The government simply charged appellant based on the different
harms that arose from appellant’s actions. The gravamen of the Article 86, UCMJ,
charge is appellant leaving the FOB perimeter during an enemy attack without
authority, while the gravamen of the Article 99, UCMJ, charge is appellant’s
misbehavior before the enemy and endangering the safety of his unit. Although both
offenses include appellant leaving his assigned position during an enemy attack, the
Article 99, UCMJ, charge is focused on the intentional acts, to include masturbation,
which endangered his unit and did not conform to the standard of behavior required
by a soldier engaging the enemy in combat. Fifth, we see no evidence of
prosecutorial overreaching or abuse in the drafting of the charges.
Under these facts, we find that the two charges do not constitute an
unreasonable multiplication of charges.
CONCLUSION
The findings of guilty and the sentence are AFFIRMED.
FOR THE COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk
Clerk of
of Court
Court
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