IN THE CASE OF
UNITED
STATES, Appellee
v.
William T.
LUNDY, Staff Sergeant
No.
03-0620
Crim. App.
No.
20000069
Argued
Decided
EFFRON,
J., delivered the opinion of the Court, in which CRAWFORD, C.J.,
GIERKE, BAKER,
and ERDMANN, JJ., joined. CRAWFORD,
C.J., filed a separate concurring opinion.
Counsel
For Appellant:
Captain
Robert E. Desmond (argued); Colonel Robert D. Teetsel,
Lieutenant Colonel Mark Tellitocci,
Major
Allyson G. Lambert (on brief); Captain Gregory M. Kelch.
For Appellee: Lieutenant Colonel Margaret B. Baines
(argued); Colonel Lauren B. Leeker
and Major
Natalie A. Kolb (on brief).
Military Judge:
William
T. Barto
This
opinion is subject to editorial correction before final publication.
Judge
EFFRON delivered the opinion of the
Court.
At
a general court-martial composed of a
military judge sitting alone, appellant was convicted, pursuant to
mixed pleas,
of various sexual offenses against his children, including attempted
carnal
knowledge, attempted indecent acts, forcible sodomy (two
specifications), and
indecent acts (six specifications), in violation of Articles 80, 125,
and 134,
Uniform Code of Military Justice, [hereinafter UCMJ], 10 U.S.C. §§ 880,
925,
and 934 (2000). He was sentenced to a
dishonorable discharge, confinement for 23 years, and reduction to
private E-1. Pursuant to a pretrial
agreement, the convening
authority: (1) approved that portion of the sentence that provided for
a
dishonorable discharge and confinement for 18 years; (2) deferred
mandatory
forfeitures and the adjudged reduction during the period from the date
of the
sentence until the date of the convening authority’s action; and (3)
waived
mandatory forfeitures, beginning on the date of the convening
authority’s
action, for a period of six months, with direction that the waived
forfeitures
be sent to the Appellant’s wife. See
Arts. 57, 57a, and 58b, UCMJ, 10 U.S.C. §§ 857,
857a, and
858b (2000). The Army Court of
Criminal Appeals affirmed.
On
Appellant’s petition, we granted review of the following issue:
WHETHER THE ARMY COURT OF CRIMINAL
APPEALS, HAVING FOUND THAT THE CONVENING AUTHORITY DID NOT OR COULD NOT
WAIVE
FORFEITURES AT THE E-6 RATE AS PROVIDED IN THE PRETRIAL AGREEMENT,
ERRED WHEN
IT HELD THAT BECAUSE HIS FAMILY RECEIVED PAYMENTS UNDER THE
TRANSITIONAL COMPENSATION
PROGRAM, 10 U.S.C. 1059, HIS PLEAS WERE NOT IMPROVIDENT.1
I.
BACKGROUND
A. FORFEITURE OF PAY AND
REDUCTION IN PAY GRADE
1. Authorized
forfeitures and reductions
As
we noted in United States v. Emminizer,
56 M.J. 441, 442 (C.A.A.F. 2002), a court-martial
may lead to two distinct types of forfeiture of pay and allowances: (1)
an
adjudged forfeiture included in the sentence imposed by a court-martial
under
Rule for Courts-Martial 1003(b)(2)
[hereinafter
R.C.M.]; and (2) mandatory forfeitures under Article 58b(a). Mandatory forfeitures are not part of the
court-martial sentence, but apply during periods of confinement or
parole as a
consequence of certain statutorily designated sentences, such as a
sentence to
confinement for more than six months.
Art. 58b(a)(1)-(2); see Emminizer, 56 M.J. at 443.
A
service member’s pay and allowances also
may be affected by a reduction in pay grade.
There are two distinct types of reductions in pay grade
applicable to
enlisted personnel: (1) an adjudged reduction included in the sentence
adjudged
by a court-martial under R.C.M. 1003(b)(4); and (2) a mandatory
reduction to
pay grade E-1, the lowest enlisted pay grade, under Article 58a. Like mandatory forfeitures, a mandatory
reduction is not part of the sentence.
Moreover, under the following language of Article 58a, a
mandatory
reduction is subject to regulations promulgated by the separate
departments:
(a)
Unless otherwise provided in regulations to be prescribed by the
Secretary
concerned, a court-martial sentence of an enlisted member in a pay
grade above
E-1, as approved by the convening authority, that includes --
(1) a dishonorable
or bad-conduct discharge;
(2) confinement;
or
(3) hard labor
without confinement;
reduces that
member to pay grade E-1, effective on the date of that approval.
Under
Article 58a, each military department
may establish a service-specific approach as to whether mandatory
reduction in
pay grade should be a consequence of a court-martial sentence. Appellant’s military department, the Army,
provides for mandatory reduction in pay grade if any of the three
punishments
described in Article 58a(a) are included, unsuspended, in the sentence
approved
by the convening authority. See
Dep’t of the Army, Regulation (AR) 600-8-19, Personnel-General: Enlisted Promotions and Reductions, para. 7-1d (
2. Effective
dates and pre-action deferral
Adjudged
forfeitures, mandatory
forfeitures, and adjudged reductions in pay grade take effect on the
earlier
of: (1) fourteen days after the date on which the sentence is adjudged, or (2) the date on
which the sentence is approved by the convening authority.
Arts. 57(a)(1),
58b(a)(1); see Emminizer,
56 M.J. at 443. However, the convening
authority has discretion to defer the effective date for all or part of
the
period leading up to the convening authority’s formal action on the
sentence
under Article 60(c), UCMJ, 10 U.S.C. § 860(c)(2000).
See Arts. 57(a)(2),
58b(a)(1). Mandatory reductions in pay
grade, in contrast, do not take effect until the convening authority
takes this
formal action on the sentence. See
Art. 58a(a).
3. Post-action
suspension and waiver
When
taking formal action on the sentence
under Article 60(c), the convening authority may suspend any part of
the sentence
adjudged by the court-martial except for a sentence of death. R.C.M. 1108(b). This includes the authority to suspend
adjudged forfeitures and adjudged reductions.
Different
rules pertain to statutorily
mandated forfeitures and reductions. The
convening authority is not authorized to suspend the mandatory
forfeitures
required by Article 58b. If the accused
has dependents, however, the convening authority has discretion to
waive all or
part of the mandatory forfeitures for a period not to exceed six months. Art. 58b(b). Any funds made available through such a
waiver are paid directly to the dependents.
Because
mandatory reductions in pay grade
are subject to service-specific regulation under Article 58a, the
ability of a
convening authority to suspend a mandatory reduction depends on the
regulations
of the service concerned. In the Army, a
convening authority may suspend a mandatory reduction only if the
convening
authority also suspends the punishments that trigger a mandatory
reduction
under Article 58a. See AR
600-8-19, at para. 7-1d. For example, if the approved sentence
includes confinement and a punitive discharge, a convening authority
may
suspend the mandatory reduction to pay grade E-1 only if the convening
authority also suspends the confinement and the punitive discharge.
B. TRANSITIONAL
COMPENSATION FOR ABUSED
DEPENDENTS
Under
10 U.S.C. § 1059 (2000), the
Secretary of Defense has established a program that provides financial
assistance to the dependents of service members who are the victims of
dependent-abuse offenses, “such as sexual assault, rape, sodomy,
assault,
battery, murder, and manslaughter.” Dep’t of Defense, Instruction 1342.24 [hereinafter DoDI], Transitional Compensation for Abused
Dependents (May
23, 1995). The program provides
monthly payments to dependent-abuse victims and family members who meet
the
criteria established by the instruction.
See id. at para.
6. The program applies to victims of
dependent-abuse offenses committed by service members whose
court-martial
sentences result in punitive discharges or total forfeitures, or who
are
administratively separated for dependent-abuse offenses.
10 U.S.C. § 1059(b).
At
the time of Appellant’s court-martial
conviction, payments to dependents began on the date that the convening
authority approved a qualifying sentence.
National Defense Authorization Act for Fiscal Year 1995, Pub. L. No. 103-337, §
535, 108
Stat. 2663, 2762 (1994). As a
result of a subsequent amendment, payments to dependents now begin on
the date
of an adjudged sentence for a dependent-abuse offense if the sentence
includes
a punitive discharge or total forfeitures.
National Defense Authorization Act for Fiscal Year 2004, Pub. L.
No.
108-136, § 572(a), 117 Stat. 1392, 1485-86 (2003) (codified at 10
U.S.C. §
1059(e)(1)(A)(i)). If there is a pretrial agreement providing
for disapproval or suspension of the punitive separation or total
forfeitures,
however, payments begin on the date of the convening authority’s action
approving an unsuspended punitive discharge or total forfeitures.
The
dependent is entitled to receive transitional compensation payments for
a
minimum of 12 months, even if the person who committed the
dependent-abuse
offense has been separated from the armed forces or otherwise no longer
is
eligible for military pay. See id.
§ 1059(e)(2); DoDI
1342.24,
at para. 6.2.1. Payments continue past the 12-month
period if the person who committed the dependent-abuse offense then
still has
an unserved period of obligated service,
up to a maximum
of 36 months, subject to various limitations and exclusions. See, e.g., 10 U.S.C. §
1059(e)(2); DoDI
1342.24, at para. 6.2.3 (cessation of payments
if the pending punitive or administrative discharge is remitted, set
aside,
mitigated to a lesser punishment, or disapproved); 10 U.S.C. § 1059(g)
(conditions under which a spouse, former spouse, or dependents forfeit
the
right to payments).
The
payment schedule for dependent-abuse
compensation under 10 U.S.C. § 1059 is not connected to the rates
provided in
military pay tables. Instead, payments
are based on rates for dependency and indemnity compensation for
veterans under
38 U.S.C. §§ 1311 and 1313. See
10 U.S.C. § 1059(f). Payments under §
1059(f) are not made from military pay accounts, but instead are paid
from
operations and maintenance funds. See
DoDI 1342.24, at para.
6.5.
If
a dependent’s eligibility for payments
under 10 U.S.C. § 1059 is based solely
upon a court-martial sentence to total forfeiture of pay and
allowances, the
dependent may not receive payments under § 1059 during any period in
which the
service member’s right to pay and allowances has been restored, in
whole or in
part, as a result of a suspension of the forfeitures or other
applicable law. See 10 U.S.C. §
1059(h). If, however, the dependent’s
eligibility
under § 1059 is based upon a punitive discharge or administrative
separation,
payments begin and continue as discussed above, even if the service
member is
eligible for military pay and allowances.
See 10 U.S.C. § 1059(e); Memorandum from the Office of
General
Counsel, Dep’t of Defense, to the Director of Compensation, Dep’t of
Defense,
Transitional Compensation and Suspension/Waiver of Forfeitures, at 4
(July 2,
2001) [hereinafter “DoD/OGC Memorandum”].
A
spouse may not receive benefits under
both § 1059 and 10 U.S.C. § 1408(h)(1)
(payments to a
dependent when a service member loses eligibility for retired pay
because of
dependent abuse). If the spouse is
otherwise eligible for benefits under both provisions, the spouse must
elect
which to receive. See 10 U.S.C. §
1059(i); DoDI
1342.24, at para. 6.4.
Section
1059(i)
(“Coordination of benefits”) applies only to preclude concurrent
payments under
§§ 1059 and 1408(h)(1).
Section 1059(i)
does not apply to waived forfeitures payable to a dependent under
Article
58b. A convening authority, however, may
take into account the availability of transitional compensation under §
1059
when deciding whether to exercise the discretionary authority to waive
mandatory forfeitures and direct payment to a dependent under Article
58b. See R.C.M. 1101(d)(2). When a
convening authority exercises
discretion to direct payment of waived forfeitures to a dependent, the
convening authority’s action does not affect the dependent’s
entitlement to
benefits under § 1059 and DoDI 1342.24. See DoD/OGC
Memorandum, at 4.
C.
IMPLEMENTATION OF THE PLEA AGREEMENT BETWEEN APPELLANT AND THE
CONVENING
AUTHORITY
Prior
to trial, Appellant and the convening
authority entered into a pretrial agreement.
Appellant agreed to plead guilty to multiple specifications of
sodomy by
force with a child and indecent acts with a child.
The convening authority agreed to “defer any
and all reductions and forfeitures until sentence is approved, suspend
any and
all adjudged and waive any and all automatic reductions and
forfeitures, and
pay them to [Appellant’s] wife to the full extent as allowed by law[.]” The military judge determined that
Appellant’s pleas were provident and trial proceeded on the merits of
two contested
charges. Ultimately, the military judge
found Appellant guilty of all charges to which he had pleaded guilty. As to the contested charges, the military
judge found Appellant not guilty of the two specifications of attempted
sodomy
of a child; guilty, with exceptions and substitutions, of attempted
carnal
knowledge of a child; and guilty, with exceptions and substitutions, of
attempted indecent acts. After
conducting a sentencing proceeding, the military judge sentenced
Appellant to
confinement for 23 years, a dishonorable discharge, and reduction to
the lowest
enlisted grade.
Following
announcement of the sentence, the military judge conducted the required
inquiry
into sentence-limitation portions of the plea agreement.
See R.C.M. 910(f). The
military judge asked the parties about
the provision in the agreement that payments would be made to
Appellant’s wife
to “the full extent as allowed by law.”
The parties agreed that the phrase was used to incorporate the
statutory
six-month maximum period for waived forfeitures under Article 58b or a
longer
period in the event of a change in the statute.
Counsel for both parties, and Appellant, then agreed with the
military
judge that
the
effect of the pretrial agreement on the
sentence is that the convening authority may approve only so much
confinement
as extends to 18 years, but may approve the dishonorable discharge, but
will
defer the reduction until sentence is approved, and will suspend the
automatic
reduction and forfeitures and pay them to the spouse of the accused for
a
period of six months following approval.
Immediately
following the court-martial,
Appellant began to serve the adjudged period of confinement. See Art. 57(b). Per the pretrial agreement, the convening
authority deferred the adjudged pay-grade reduction and the Article 58b
mandatory forfeitures during the period between the court-martial and
the
convening authority’s formal action on the sentence.
See Arts. 57a and 58b(a)(1).
On
the day after the sentence was adjudged,
Appellant’s wife, in a parallel development,
filed an
application for transitional compensation as an abused spouse under 10
U.S.C. § 1059. The
application was approved, and under
then-existing law, payments under § 1059 began when the convening
authority
took formal action on the sentence. See
National Defense Authorization Act for Fiscal Year 1995, Pub. L. No.
103-337, §
535, 108 Stat. 2663, 2762 (1994) (amending 10 U.S.C. § 1059(e)).
Before
the convening authority acted on the
sentence under Article 60(c), the staff judge advocate (SJA) prepared a
formal
recommendation. See Art. 60(d); R.C.M. 1106.
The recommendation provided the following summary of the
pretrial
agreement:
In
exchange for the accused’s
pleas of guilty, the convening authority will defer any and all
reductions and
forfeitures until sentence is approved, suspend any and all adjudged
and waive
any and all automatic reductions and forfeitures; and pay them to Mrs.
Lundy,
the accused’s wife, to the full extent as
allowed by
law; and disapprove all confinement in excess of eighteen (18) years.
The
SJA forwarded this recommendation to
the convening authority, along with a proposed action.
The action, which was signed by the convening
authority, reduced the adjudged period of confinement from 23 to 18
years, per
the pretrial agreement. As further
required by the pretrial agreement, the action did not approve the
adjudged
reduction in rank. In addition, the
action implemented the pretrial agreement’s requirement for waiver of
mandatory
forfeitures for a period of six months, specifically directing that
“forfeitures be sent to the accused’s
wife.”
The
Government implemented the waiver of
mandatory forfeitures, although the funds were transmitted to
Appellant,
contrary to Article 58b, rather than to his wife. During
the six-month period following the
convening authority’s action in which the mandatory forfeitures were
waived,
Appellant discovered that the payments were at the rate for pay grade
E-1,
rather than at the rate for pay grade E-6.
His pay grade had been reduced to the lowest enlisted grade,
E-1,
notwithstanding the fact that the plea agreement required suspension of
any
mandatory reduction. Although he sought
corrective action through administrative channels, he was unsuccessful. As a result, Appellant’s wife did not receive
waived forfeitures at the E-6 rate as provided in the pretrial
agreement.
II.
DISCUSSION
A. IMPLEMENTATION
OF PRETRIAL AGREEMENTS
In
United States v. Perron,
58 M.J. 78 (C.A.A.F. 2003), we observed that --
where an
accused pleads guilty in reliance on promises made by the Government in
a
pretrial agreement, the voluntariness of
that plea
depends on the fulfillment of those promises by the Government. . . .
.
. . .
[W]here
there is a mutual misunderstanding regarding
a material term of a pretrial agreement, resulting in an accused not
receiving
the benefit of his bargain, the accused’s
pleas are
improvident. In such instances,
. . . remedial action in the form of specific performance,
withdrawal of
the plea, or alternative relief, is required.
In
the present case, Appellant pleaded
guilty in reliance on a promise by the Government that his confinement
would
not exceed 18 years, that reductions and forfeitures would be deferred,
and
that for a six-month period following the convening authority’s action,
any
mandatory reduction in pay grade would be suspended so that his wife
would
receive waived forfeitures at the E-6 rate.
The parties to the agreement, counsel at trial, and the military
judge
all appear to have overlooked the Army regulation that precludes a
convening
authority from suspending a mandatory reduction in pay grade unless the
convening authority also suspends any related confinement or punitive
discharge. See part I.A.1., supra.
Because
this regulatory impediment resulted
from a departmental action rather than a statutory mandate, see
Article
58a, the Army was free to modify the regulation, create an exception,
or grant
a waiver. Had the parties taken the
impediment
into account during negotiation of the pretrial agreement, the
convening
authority could have sought a waiver or exception at the departmental
level or
an alternative agreement could have been proposed.
Based on the misunderstanding, however, Appellant
pleaded guilty based upon the representations of counsel and the
assurances of
the military judge that the Government would fulfill its part of the
agreement.
During
the sixth-month period in which
Appellant’s wife received the waived forfeitures at the E-1 rate, it
was still
possible to fulfill the agreement. When
Appellant brought the discrepancy to the attention of military
officials, the
Government could have fulfilled the agreement by granting an exception
or
waiver to suspend the reduction and provide the waived forfeiture at
the E-6
rate. Corrective action, however, was
not taken.
B. THE
RELATIONSHIP BETWEEN ARTICLE 58b WAIVED FORFEITURES
AND
TRANSITIONAL COMPENSATION UNDER 10 U.S.C. § 1059
IN DEPENDENT-ABUSE CASES
On
appellate review, the Court of Criminal
Appeals concluded that payment of waived forfeitures to Appellant’s
wife at the
E-6 level through suspension of the mandatory reduction was a material
part of
the agreement between Appellant and the convening authority. Lundy, 58 M.J. at
804. The court stated, however,
that remedial action was not necessary because Appellant’s family had
been
adequately compensated during the six-month period from other funds,
employing
a three-step rationale. First, the court
noted that dependent-abuse payments had been made to Appellant’s wife
under 10
U.S.C. § 1059 during the six-month period.
The
interpretation of applicable law by the
court below is inconsistent with the position taken by the Department
of
Defense in the administration of the compensation program established
under 10
U.S.C. § 1059. See Part I.B., supra,
and the DoD/OGC Memorandum noted therein. The Department of Defense’s administration of
the statute, which permits concurrent receipt of dependent-abuse
payments and
waived forfeitures, is consistent with the text and legislative history
of §
1059 and Article 58b.
As
originally enacted, subsection (e)
precluded payment of dependent-abuse benefits in any case until the
service
member’s pay and allowances were discontinued.
National Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, § 554, 107 Stat. 1547, 1664-65 (1993)
(subsection
(e)). Within a year, Congress
amended subsection (e) to provide for commencement of payments in
circumstances
involving concurrent payment of dependent-abuse payments under § 1059
and
military pay and allowances. National
Defense Authorization Act for Fiscal Year 1995, Pub. L. No. 103-337, §
535, 108
Stat. 2663, 2762 (1994) (commencement of § 1059 payments on the date of
the
convening authority’s action under Article 60(c) or, in the case of a
proposed
administrative separation, the date on which a commander initiated
separation
action); see DoD/OGC Memorandum at
3. Congress subsequently amended
subsection (e)
to provide an even earlier opportunity for concurrent receipt of
benefits and
military pay and allowances. National
Defense Authorization Act for Fiscal Year 2004, Pub. L. No.
108-136, § 572(a), 117 Stat. 1392, 1485-86 (2003) (commencement of §
1059
payment in certain circumstances on the date of sentence adjudication).
The
subsequent development of the waived
forfeitures provision in Article 58b reflects a similar trend. Article 58b was enacted in 1995 to limit the
circumstances in which service members serving a sentence to
confinement by
court-martial could receive military pay and allowances.
See H.R. Conf. Rep. No. 104-450, at
853 (1996). The original version of the
legislation did not authorize alternative benefits for dependents of
service
members whose pay and allowances were subject to mandatory forfeiture
while in
confinement. S. 205, 104th Cong. (1995). The legislative proposal subsequently
was
revised to include a new section of title 10, United States Code, §
1059a,
entitled “Transitional Compensation for Spouses, Dependent Children,
and Former
Spouses of Members Sentenced to Confinement and Punitive Discharge or
Dismissal.” S. 571, 104th Cong., § 2
(1995). Under the proposal, if a service
member’s
entitlement to pay and allowances was forfeited under Article 58b, as
proposed,
the member’s dependents could receive transitional compensation under
the new §
1059a for up to one year.
The
legislation as enacted, however, did
not retain the proposed § 1059a, nor did it retain the prohibition
against
concurrent payment of waived forfeitures under Article 58b and
dependent-abuse
compensation under § 1059. Instead, the
new legislation simply enabled convening authorities to waive forfeited
pay and
allowances, in whole or in part, for a period of up to six months,
subject to a
requirement that any waived forfeitures must be paid to the dependents
of the
accused. S. 1026, § 526 (1995); 141
Cong. Rec. 22153 (1995) (Amendment No. 2117); National Defense
Authorization
Act for Fiscal Year 1996, Pub. L. No. 104-106, § 1122, 110 Stat. 186,
463
(1996) (enacting Article 58b(b), UCMJ, 10
U.S.C. §
858b(b)).
The
DoD/OGC
Memorandum specifically considered whether concurrent receipt of waived
forfeitures and dependent-abuse compensation under § 1059 was precluded
by §
1059(h), which states:
In
the case of payment of transitional
compensation by reason of a total forfeiture of pay and allowances
pursuant to
a sentence of a court-martial, payment of transitional compensation
shall not
be made for any period for which an order --
(1)
suspends, in whole or in part, that part of
a sentence
that includes forfeiture of the member’s pay and allowance; or
(2)
otherwise results in continuation, in whole
or in
part, of the member’s pay and allowances.
Citing the
development over time of specific provisions allowing concurrent
payment, the
Memorandum concluded that subsection (h) “should be limited to cases
where a
court-martial sentence does not include a punitive separation but
results in
total forfeitures, whether by explicit provision of the sentence or by
automatic total forfeiture as a result of a sentence to confinement.” DoD/OGC Memorandum, at 4.
The opinion of the court below, by contrast, did not address the
development of the legislation and related considerations raised in the
DoD/OGC Memorandum, including the role of
subsection (h) in
non-discharge cases where mandatory forfeitures are triggered by a
sentence to
confinement. Compare Lundy,
58 M.J. at 806, with DoD/OGC
Memorandum, at 3-4. Nor did the
opinion of the lower court address the legislative development of
Article 58b,
which reflects congressional awareness of § 1059 dependent-abuse
compensation
during development of the waived forfeiture provisions of Article 58b(b).
In
addition, R.C.M. 1101(d), which
addresses the convening authority’s discretionary power to waive
forfeitures,
is instructive. Subsection (d)(2) lists
a wide variety of factors involving financial and other circumstances
“that may
be considered by the convening authority in determining the amount of
forfeitures, if any, to be waived includ[ing] . . . the availability of transitional
compensation
for abused dependents permitted under 10 U.S.C. [§] 1059.”
This provision underscores the fact that, in
deciding whether to waive forfeitures in whole or in part on behalf of
a
dependent, the convening authority may take into account the
availability of
dependent-abuse compensation under § 1059.
As such, the convening authority has discretion to decide, under
the
circumstances of each particular case, that waived forfeitures are
unnecessary
in light of payments under § 1059, or that waived forfeitures are
required
because § 1059 payments are insufficient to meet the needs of the
dependents in
that case.
In
view of the statutory provisions, the
pertinent legislative history, and administrative implementation, we
decline to
conclude that Congress intended to preclude dependent-abuse victims
from
receiving transitional compensation under § 1059 when a convening
authority has
determined, as a matter of discretion, that the dependents should
receive
waived forfeitures under Article 58b.
C.
RESPONSIBILITY FOR IMPLEMENTATION OF THE PRETRIAL AGREEMENT
In
the present case, the convening authority
had discretion to decide whether forfeitures should be waived in whole
or in
part. The convening authority exercised
his discretion to provide waived forfeitures to Appellant’s wife, and
entered
into a pretrial agreement to provide her with waived forfeitures at the
E-6
rate. Once Appellant fulfilled his
responsibilities under the agreement by providently pleading guilty, Appellant’s wife was entitled to receive waived
forfeitures
at the E-6 rate. Waived forfeitures were
paid, but only at the E-1 rate, contrary to the agreement.
The
court below suggested that even if
Appellant’s wife was entitled to receive both waived forfeitures and
dependent-abuse compensation, Appellant cannot complain about
implementation of
the agreement because, in the court’s view, Appellant was obligated to
prove
that he had provided waived forfeitures at the E-1 rate to his wife. Lundy, 58 M.J. at
806. Under Article 58b(b), however, the responsibility for directing
payments
of waived forfeitures to the dependent rests with the Government, not
with
Appellant. To the extent that payment of
waived forfeitures was made to Appellant rather than his wife, the
error rested
with the Army. Such evidence as exists
in the record indicates that Appellant took steps to ensure that
payments went
to his wife’s bank account. The
Government, on appeal, has proceeded on the basis that Appellant’s
family
received waived forfeitures at the E-1 rate.
Under these circumstances, we conclude that the record does not
establish that Appellant has acted in a manner so inconsistent with the
pretrial agreement that the Government would be relieved of its
responsibilities under the agreement.
D.
REMEDIAL ACTION
As
discussed in Section II.A., supra,
when the Government does not fulfill a material provision in a pretrial
agreement, remedial action is required in the form of specific
performance,
withdrawal of the plea, or alternative relief.
In Perron, we held that an
appellate
court cannot impose alternative relief on an unwilling appellant. 58 M.J. at 78.
The
present case is in a different
procedural posture than Perron,
where the
Court of Criminal Appeals determined that remedial action was necessary
and
sought to impose it on an unwilling Appellant.
Because the lower court in the present case determined that no
relief
was warranted, the case did not proceed to a point where the court had
to reach
a definitive conclusion as to: (a) whether specific performance was
possible;
and (b) whether there were viable options for alternative relief under Perron. Under
these circumstances, a remand to the court below is appropriate. See, e.g., United
States v. Smith, 56 M.J. 271 (C.A.A.F. 2002); United States v.
Mitchell,
50 M.J. 79 (C.A.A.F. 1999).
The
court below should consider whether it
has authority to suspend a reduction in pay grade for six months, or
whether
the Government is otherwise willing to do so through a departmental
waiver. If a suspension is considered,
the court will have to determine whether implementation of a suspension
at this
point in time would still constitute specific performance, which would
be
binding on Appellant, or whether a suspension should be considered as a
form of
alternative relief, which would require Appellant’s consent under Perron. The
court is not limited to consideration of specific performance, and may
consider
options for alternative performance, subject to Perron. See, e.g., 10
U.S.C.
§ 127 (2000) (Emergency and extraordinary expenses).
III.
DECISION
The
decision of the United States Army
Court of Criminal Appeals is reversed.
The case is returned to the Judge Advocate General for remand to
the
Court of Criminal Appeals for further consideration in light of this
opinion.
1
We also specified
an issue regarding the adequacy of advice provided to Appellant by
counsel
regarding the terms of the pretrial agreement.
CRAWFORD,
Chief Judge (concurring):
The
Court of Criminal Appeals should
determine if this case is distinguishable from United States v.
Perron1 because that
record established that the timing of the payment was important. On
After
the convening authority’s action and
the response from DFAS, Perron again
sought relief
from the Coast Guard Court of Criminal Appeals.
Perron clearly
noted on the record his unwillingness to receive late payment. However, where timing is not critical to
specific performance, that is, payment plus interest satisfies the
agreement,
there is no reason to permit withdrawal of the plea.
The court below should determine the
materiality of the timing and whether this case is different from Perron. A
payment at this time may constitute specific performance.
While
it is important for the Court to note
its interpretation of 10 U.S.C. § 1059 (2000), in the future, the
Courts of
Criminal Appeals must examine their opinions in light of Clinton v.
Goldsmith.3
1
58
M.J. 78 (C.A.A.F. 2003).