[275]*275
Opinion of the Court
EVERETT, Senior Judge:
In a contested general court-martial, a military judge sitting alone convicted Lieutenant Waits of violating a general regulation by wrongfully acquiring and shipping ammunition through the mail and of conduct unbecoming an officer by stealing, packaging, shipping through the mails, and attempting to sell ammunition and other military property. These offenses were violations of Articles 92 and 133, Uniform Code of Military Justice, 10 USC §§ 892 and 933, respectively. The judge sentenced appellant to dismissal from the Army, confinement for 3 years, and total forfeitures. The convening authority approved these results, and the Court of Military Review affirmed in a short-form opinion.
We granted Waits’ petition for review to determine whether the allegation of violating a regulation was an unreasonable multiplication of charges with a similar clause in the specification alleging conduct unbecoming an officer. 31 MJ 486 (1990). We hold that the offenses should have been combined and that, under the circumstances, appellant was prejudiced as to both findings and sentence.
I
The specification alleging a violation of a lawful general regulation as consolidated avers that Waits
did ... during the period from on or about 26 January 1988 to on or about 6 April 1988, violate a lawful general regulation, to wit: paragraphs 13b(13) and (14), USAREUR Regulation 632-10, dated 26 January 1988, by wrongfully acquiring and shipping through the mail: military ammunition, to wit, five 5.56 millimeter ball tracer rounds; and seven smoke grenades.[
(Emphasis added.) In the specification asserting conduct unbecoming an officer, the Government charged that, during the same time and at the same place, appellant
did ... wrongfully steal, package, and ship through the mail with a falsified customs document, and attempt to sell, three 30 round 5.56 millimeter ammunition magazines, one 20 round 5.56 millimeter ammunition magazine, two boxes of target pasters, seven smoke grenades, and five 5.56 millimeter ball tracer rounds ...
(Emphasis added.)
Thus, the wording of the specifications allege larceny of specific amounts and types of ammunition, and wrongful shipping of the same specific amounts and types of ammunition through the mails. Further, evidence adduced at trial showed that the ammunition referred to in each specification was, indeed, the same ammunition referred to in the other.
“In United States v. Timberlake, 18 MJ 371 (CMA 1984), we held that an officer cannot be convicted both of a substantive crime and of unbecoming conduct which consists of the commission of that crime.” United States v. Taylor, 23 MJ 314, 3186r (CMA 1987). Since the actions that constituted conduct unbecoming an officer included the same acts that violated the regulation, the latter conviction cannot stand distinct from the former. See generally United States v. Baker, 14 MJ 361 (CMA 1983); cf. Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985).
Citing United States v. Jones, 23 MJ 301 (CMA 1987), the Government argues, however, that this issue was waived. In Jones, though, we held only that, where specifications might be read as multiplicious, the accused waived his appellate complaint when he did not move to make the specifications more definite and certain in order to make clear the overlapping relationship between them. Where, as here, that relationship is clear in the pleadings and is confirmed by the evidence, the military judge’s failure to treat them as multi[276]*276plicious is plain error. United States v. Allen, 16 MJ 395, 396 (CMA 1983); United States v. Holt, 16 MJ 393 (CMA 1983). Therefore, appellant’s multiplicity complaint that was available but unasserted at trial remains, nonetheless, alive and well on appeal. Cf. Mil.R.Evid. 103(d), Manual for Courts-Martial, United States, 1984.
Appellant is entitled to consolidation of these specifications.
II
The question remains whether Waits suffered substantial harm from this multiplicity. Appellant points out that the military judge expressly held that the two offenses were separate for findings and sentence when he computed the maximum imposable confinement to be 12 years. As such, appellant argues that he is entitled to sentence relief.
A decision whether appellant is entitled to sentence relief and, if so, what sort of relief is not so simple as appellant suggests. When error has been uncovered on appeal, an appellate court must determine whether “the error materially prejudices the substantial rights of the accused.” Art. 59(a), UCMJ, 10 USC § 859(a). If the appellate court concludes that there is a fair risk of such prejudice, then it must address the sentence in order to
assure that the sentence is no greater than that which would have been imposed if the prejudicial error had not been committed. Only in this way can the requirements of Article 59(a), UCMJ, 10 USC § 859(a), be reconciled with the Code provisions that findings and sentence be rendered by the court-martial, see Articles 51 and 52, UCMJ, 10 USC §§ 851 and 852, respectively.
United States v. Suzuki, 20 MJ 248, 2496r (CMA 1985).
In United States v. Sales, 22 MJ 305 (CMA 1986), we had occasion to apply these principles in the context of a multiplicity error. There, like here, the military judge had treated as separate for both findings and sentence specifications which the Court of Military Review later had concluded were multiplicious for both purposes. Accordingly, the court had reassessed the sentence — and then had affirmed it. Ultimately, we returned the case to the Court of Military Review for further proceedings, because the court’s initial action was ambiguous as to whether its reassessment was an exercise of its responsibility to approve only a sentence which it considered “appropriate,” see Art. 66(c), UCMJ, 10 USC § 866(c), or whether it had determined that the adjudged sentence was “no greater than that which would have been imposed if the” offenses had been treated as multiplicious at trial. Cf. United States v. Suzuki, supra.
In the process of reaching our conclusion in Sales, we reasoned:
In some cases, the Court of Military Review may conclude that it cannot reliably determine what sentence would have been imposed at the trial level if the error had not occurred. Under these circumstances, a rehearing on sentence is in order....
On other occasions, the Court of Military Review may be convinced that even if no error had occurred at trial, the accused’s sentence would have been at least of a certain magnitude. Under those circumstances the Court of Military Review need not order a rehearing on sentence, but instead may itself reassess the sentence....
22 MJ at 307 (footnote omitted). Important for present purposes is the fact that our remand in Sales
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[275]*275
Opinion of the Court
EVERETT, Senior Judge:
In a contested general court-martial, a military judge sitting alone convicted Lieutenant Waits of violating a general regulation by wrongfully acquiring and shipping ammunition through the mail and of conduct unbecoming an officer by stealing, packaging, shipping through the mails, and attempting to sell ammunition and other military property. These offenses were violations of Articles 92 and 133, Uniform Code of Military Justice, 10 USC §§ 892 and 933, respectively. The judge sentenced appellant to dismissal from the Army, confinement for 3 years, and total forfeitures. The convening authority approved these results, and the Court of Military Review affirmed in a short-form opinion.
We granted Waits’ petition for review to determine whether the allegation of violating a regulation was an unreasonable multiplication of charges with a similar clause in the specification alleging conduct unbecoming an officer. 31 MJ 486 (1990). We hold that the offenses should have been combined and that, under the circumstances, appellant was prejudiced as to both findings and sentence.
I
The specification alleging a violation of a lawful general regulation as consolidated avers that Waits
did ... during the period from on or about 26 January 1988 to on or about 6 April 1988, violate a lawful general regulation, to wit: paragraphs 13b(13) and (14), USAREUR Regulation 632-10, dated 26 January 1988, by wrongfully acquiring and shipping through the mail: military ammunition, to wit, five 5.56 millimeter ball tracer rounds; and seven smoke grenades.[
(Emphasis added.) In the specification asserting conduct unbecoming an officer, the Government charged that, during the same time and at the same place, appellant
did ... wrongfully steal, package, and ship through the mail with a falsified customs document, and attempt to sell, three 30 round 5.56 millimeter ammunition magazines, one 20 round 5.56 millimeter ammunition magazine, two boxes of target pasters, seven smoke grenades, and five 5.56 millimeter ball tracer rounds ...
(Emphasis added.)
Thus, the wording of the specifications allege larceny of specific amounts and types of ammunition, and wrongful shipping of the same specific amounts and types of ammunition through the mails. Further, evidence adduced at trial showed that the ammunition referred to in each specification was, indeed, the same ammunition referred to in the other.
“In United States v. Timberlake, 18 MJ 371 (CMA 1984), we held that an officer cannot be convicted both of a substantive crime and of unbecoming conduct which consists of the commission of that crime.” United States v. Taylor, 23 MJ 314, 3186r (CMA 1987). Since the actions that constituted conduct unbecoming an officer included the same acts that violated the regulation, the latter conviction cannot stand distinct from the former. See generally United States v. Baker, 14 MJ 361 (CMA 1983); cf. Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985).
Citing United States v. Jones, 23 MJ 301 (CMA 1987), the Government argues, however, that this issue was waived. In Jones, though, we held only that, where specifications might be read as multiplicious, the accused waived his appellate complaint when he did not move to make the specifications more definite and certain in order to make clear the overlapping relationship between them. Where, as here, that relationship is clear in the pleadings and is confirmed by the evidence, the military judge’s failure to treat them as multi[276]*276plicious is plain error. United States v. Allen, 16 MJ 395, 396 (CMA 1983); United States v. Holt, 16 MJ 393 (CMA 1983). Therefore, appellant’s multiplicity complaint that was available but unasserted at trial remains, nonetheless, alive and well on appeal. Cf. Mil.R.Evid. 103(d), Manual for Courts-Martial, United States, 1984.
Appellant is entitled to consolidation of these specifications.
II
The question remains whether Waits suffered substantial harm from this multiplicity. Appellant points out that the military judge expressly held that the two offenses were separate for findings and sentence when he computed the maximum imposable confinement to be 12 years. As such, appellant argues that he is entitled to sentence relief.
A decision whether appellant is entitled to sentence relief and, if so, what sort of relief is not so simple as appellant suggests. When error has been uncovered on appeal, an appellate court must determine whether “the error materially prejudices the substantial rights of the accused.” Art. 59(a), UCMJ, 10 USC § 859(a). If the appellate court concludes that there is a fair risk of such prejudice, then it must address the sentence in order to
assure that the sentence is no greater than that which would have been imposed if the prejudicial error had not been committed. Only in this way can the requirements of Article 59(a), UCMJ, 10 USC § 859(a), be reconciled with the Code provisions that findings and sentence be rendered by the court-martial, see Articles 51 and 52, UCMJ, 10 USC §§ 851 and 852, respectively.
United States v. Suzuki, 20 MJ 248, 2496r (CMA 1985).
In United States v. Sales, 22 MJ 305 (CMA 1986), we had occasion to apply these principles in the context of a multiplicity error. There, like here, the military judge had treated as separate for both findings and sentence specifications which the Court of Military Review later had concluded were multiplicious for both purposes. Accordingly, the court had reassessed the sentence — and then had affirmed it. Ultimately, we returned the case to the Court of Military Review for further proceedings, because the court’s initial action was ambiguous as to whether its reassessment was an exercise of its responsibility to approve only a sentence which it considered “appropriate,” see Art. 66(c), UCMJ, 10 USC § 866(c), or whether it had determined that the adjudged sentence was “no greater than that which would have been imposed if the” offenses had been treated as multiplicious at trial. Cf. United States v. Suzuki, supra.
In the process of reaching our conclusion in Sales, we reasoned:
In some cases, the Court of Military Review may conclude that it cannot reliably determine what sentence would have been imposed at the trial level if the error had not occurred. Under these circumstances, a rehearing on sentence is in order....
On other occasions, the Court of Military Review may be convinced that even if no error had occurred at trial, the accused’s sentence would have been at least of a certain magnitude. Under those circumstances the Court of Military Review need not order a rehearing on sentence, but instead may itself reassess the sentence....
22 MJ at 307 (footnote omitted). Important for present purposes is the fact that our remand in Sales to clarify the ambiguity of the Court of Military Review’s reassessment — without criticizing the court’s decision on reassessment to affirm the sentence — quite clearly implied that, even though the military judge had treated the multiplicious findings as separate for sentencing, the Court of Military Review still was free to conclude that the sentence would not have been less absent the error.
Here, as we have held, the military judge erred in treating the offenses as separate for punishment purposes. The Court of Military Review affirmed the sentence [277]*277without reference to that error and without any expressed reassessment of the sentence in light of that error. Certainly, the sentence to 3 years’ confinement cannot be viewed as “lenient in relation to the” correct maximum of 10 years’ confinement. Cf. United States v. Sales, supra at 308. Under these circumstances, we conclude that a remand to the Court of Military Review is appropriate in order to enable that court to address the question of prejudice consistent with the principles set out in United States v. Sales and United States v. Suzuki, both supra.
III
The consolidated specification of Charge II is consolidated with the specification of Charge VI by inserting in the specification of Charge VI the words “and in violation of a lawful general regulation, to wit: paragraphs 13b(13) and (14), USAREUR Regulation 632-10, dated 26 January 1988,” after the words “with a falsified customs document” and before the words “and attempt to sell.”
The decision of the United States Army Court of Military Review as to Charge VI and its newly consolidated specification is affirmed, but the decision of that court as to sentence is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further review of the sentence under Article 66(c), Uniform Code of Military Justice, 10 USC § 866(c).
Chief Judge SULLIVAN concurs.
This specification was a consolidation of two specifications alleging separate violations of the regulation by wrongfully acquiring and shipping the ammunition and by wrongfully acquiring and shipping the grenades.