U.S. v. Lundy, 60 M.J. 52

Trial Stages: Merits: Pretrial Agreements

1. where pretrial agreement called for appellant’s wife to receive waived forfeitures, but the payment of forfeitures was made to appellant rather than his wife, as such error rested with the government, and such evidence as exists in the record indicates that appellant took steps to ensure that payments went to his wife’s bank account, we conclude that the record does not establish that appellant acted in a manner so inconsistent with the pretrial agreement that the government would be relieved of its responsibilities under the agreement
2. 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; however, an appellate court cannot impose alternative relief on an unwilling appellant
3. where the convening authority breached a material provision of a pretrial agreement by paying waived forfeitures to appellant’s wife at the E-1 rate, instead of at the E-6 rate, as the result of the convening authority’s failure to seek a waiver or exception to an existing Army regulation to suspend the reduction, remedial action was necessary, notwithstanding that appellant’s family received dependent-abuse compensation

Trial Stages: Sentence and Punishment: Forfeitures › Generally

1. 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 RCM 1003(b)(2); and (2) mandatory forfeitures under Article 58b(a)
2. adjudged and mandatory forfeitures 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; 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
3. under Article 58b(b), the responsibility for directing payments of waived forfeitures to the dependent rests with the government, not with appellant

Trial Stages: Sentence and Punishment: Forfeitures › Mandatory

1. 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

Trial Stages: Sentence and Punishment: Mandatory

1. 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 RCM 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 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
2. 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; 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; mandatory reductions in pay grade, in contrast, do not take effect until the convening authority takes formal action on the sentence

Trial Stages: Initial Review: Action

1. 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; 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; 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
2. 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; 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
3. a convening authority may take into account the availability of transitional compensation under 10 USC § 1059 when deciding whether to exercise the discretionary authority to waive mandatory forfeitures and direct payment to a dependent under Article 58b; 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
4. 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 10 USC § 1059, or that waived forfeitures are required because 10 USC § 1059 payments are insufficient to meet the needs of the dependents in that case

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. in view of the statutory provisions, the pertinent legislative history, and administrative implementation, we conclude that Congress did not intend 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

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: United States Code

1. under 10 USC § 1059, the Secretary of Defense has established a program (DoDI 1342.24) 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; the program provides monthly payments to dependent-abuse victims and family members who meet the criteria established by the instruction; 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; the Department of Defense’s administration of the statute, permits concurrent receipt of dependent-abuse payments and waived forfeitures, and is consistent with the text and legislative history of 10 USC § 1059 and Article 58b

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Regulations

1. the parties to the pretrial agreement, counsel at trial, and the military judge all appear to have overlooked the Army regulation (AR 600-8-19) 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; because this regulatory impediment resulted from a departmental action rather than a statutory mandate, 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