United States v. Lundy , 60 M.J. 52 ( 2004 )

IN THE CASE OF
UNITED STATES, Appellee
v.
William T. LUNDY, Staff Sergeant
U.S. Army, Appellant
No. 03-0620
Crim. App. No. 20000069
United States Court of Appeals for the Armed Forces
Argued April 21, 2004
Decided June 24, 2004
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.
United States v. Lundy, No. 03-0620/AR
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. United States v.
Lundy, 58 M.J. 802 (A. Ct. Crim. App. 2003).
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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.
1
We also specified an issue regarding the adequacy of advice
provided to Appellant by counsel regarding the terms of the
pretrial agreement. United States v. Lundy, 59 M.J. 264(C.A.A.F. 2004). In view of our disposition of the granted
issue, we need not address the specified issue.
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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
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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 (1 May 2000).
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.
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United States v. Lundy, No. 03-0620/AR
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. Id.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
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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
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separation or total forfeitures, however, payments begin on the
date of the convening authority’s action approving an
unsuspended punitive discharge or total forfeitures. Id.; 10
U.S.C. § 1059(e)(1)(A)(ii). When a service member is being
processed for administrative separation based upon dependent
abuse, payments begin on the date that the member’s commander
initiates separation action. 10 U.S.C. § 1059(e)(1)(B).
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
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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
9
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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
10
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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
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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
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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,
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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.
Id. at 82 (citations omitted).
In the present case, Appellant pleaded guilty in reliance
on a promise by the Government that his confinement would not
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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
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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. § 1059IN 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. Id. at 806. Second, the court
interpreted the law as precluding dependent-abuse compensation
payments under § 1059 to a person receiving waived forfeitures
under Article 58b. Id. Third, the court held that the
erroneous payments under § 1059 adequately compensated
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Appellant’s family for the Army’s erroneous failure to comply
with the pretrial agreement. Id.
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
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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
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under the new § 1059a for up to one year. Id. The proposed
legislation contained a “Coordination of Benefits” section which
expressly precluded transitional benefits under § 1059a for any
dependent entitled to dependent-abuse payments under §§ 1059 or
1408(h).
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
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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).
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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.
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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
22
United States v. Lundy, No. 03-0620/AR
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
23
United States v. Lundy, No. 03-0620/AR
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.
24
United States v. Lundy, No. 03-0620/AR
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 January 15, 1999, Perron entered into a pretrial agreement
that required the convening authority to waive all automatic
forfeitures and pay those to Perron’s family. On March 8, 1999,
shortly after the convening authority’s action, the defense
counsel sent a clemency request to the convening authority
noting that his family had not been paid the forfeitures and
that his “family cannot survive financially without the aid.”2
He asked for relief in the form of the payment of forfeitures to
his family or immediate release from jail. On March 11, 1999,
the convening authority responded that he had sent a letter to
the Defense Finance and Accounting Service (DFAS) requesting a
waiver of all forfeitures and payment to his dependents. DFAS
responded that that was not possible because he had entered a
no-pay status when sentencing occurred and he was confined.
Thus, because there were no forfeitures available, none could be
paid to his family.
1
58 M.J. 78 (C.A.A.F. 2003).
2
Id. at 79.
United States v. Lundy, No. 03-0620/AR
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
3
526 U.S. 529 (1999).
2