              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.
                                 Before
              F.D. MITCHELL, J.A. FISCHER, M.K. JAMISON
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                         DANIEL P. POST
              STAFF SERGEANT (E-6), U.S. MARINE CORPS

                           NMCCA 201300189
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 20 March 2013.
Military Judge: LtCol Nicole K. Hudspeth, USMC.
Convening Authority: Commanding General, 2d Marine
Logistics Group, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: Capt A.L. Evans,
USMC.
For Appellant: CDR Edward V. Hartman, JAGC, USN.
For Appellee: Capt Matthew M. Harris, USMC.

                            23 January 2014

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge sitting as a general court-martial
convicted the appellant, pursuant to his pleas, of possession of
child pornography, in violation of Article 134, Uniform Code of
Military Justice, 10 U.S.C. § 934. The military judge sentenced
the appellant to confinement for 5 years, reduction to pay grade
E-1, and a dishonorable discharge. Pursuant to a pretrial
agreement (PTA), the convening authority (CA) suspended all
confinement in excess of 30 months and waived imposition of
automatic forfeitures for a period of six months from the date
of his action, provided that the appellant establish and
maintain a dependent’s allotment. 1

     In the appellant’s sole assignment of error, he contends
that the Government failed to fulfill its obligation under the
PTA to defer and waive the imposition of automatic forfeitures.
To supplement the record, the appellant filed a motion to attach
(Motion) with this court. 2 The appellant’s Motion contains an
affidavit from Master Sergeant (MSgt) RW, USMC, Staff
Noncommissioned Officer in Charge, Marine Military Pay
Operations Section, Defense Finance and Accounting Service
(DFAS). The affidavit from MSgt RW indicates that the appellant
established an allotment on 20 March 2013; however, because the
allotment was not authorized for use with the deferral and
waiver of automatic forfeitures, it was cancelled on 27 March
2013 by personnel assigned to the Installation Personnel
Administration Center (IPAC), Camp Lejeune, North Carolina.
According to MSgt RW, as of the date of his affidavit (30 July
2013), the appellant’s “allotment remains cancelled and no money
appears to have been sent to [the appellant’s] son.” Motion,
Attachment A at 2.

     In his brief, appellate defense counsel indicated that due
to his inquires, the appellant’s “former command has begun
taking steps in order to comply with the original terms of the
[PTA].” Appellant’s Brief of 1 Aug 2013 at 1 n.1.

     Because the appellate defense counsel averred that the
appellant’s former command had begun taking steps to ensure
compliance with the PTA, we ordered the appellate defense
counsel to answer several questions. See NMCCA Order of 18 Nov
2013. The primary purpose of the questions was to ascertain
whether the appellant had established an appropriate allotment
for his son and whether the appellant’s command had taken steps
to comply with the original terms of the PTA.

     In his 2 December 2013 response, the appellate defense
counsel indicated that despite several attempts to establish a
dependent’s allotment, the appellant, working through his chain
of command at his place of confinement, has been unable to
establish an allotment. Appellant’s Answer to NMCCA Order filed

1
  The CA also acknowledged that he had deferred imposition of automatic
forfeitures. CA’s Action of 9 May 2013 at 2.
2
    We granted the appellant’s Motion on 12 August 2013.


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2 Dec 2013. Although not required to do so, we note that the
Government did not offer a response or dispute the accuracy of
the appellant’s responses to our questions.

     After carefully considering the record of trial, the
submissions of the parties, and the appellant’s responses to our
order, we find merit in the appellant’s assignment of error and
will order specific performance in our decretal paragraph to
ensure the appellant receives the benefit of his bargain. Arts.
59(a) and 66(c), UCMJ.

                                   Background

     In October 2012, the Government preferred one specification
of wrongful possession of digital images and videos of child
pornography. The appellant unconditionally waived his Article
32, UCMJ, investigation and negotiated a PTA with the CA in
which he agreed to plead guilty to the charge and its
specification. In return, the CA agreed to suspend confinement
in excess of 30 months, to disapprove adjudged forfeitures and
to defer and then waive imposition of automatic forfeitures,
provided that the appellant established and maintained a
dependent’s allotment for his dependent son, DP. Appellate
Exhibit IV at 1. 3

      Following her announcement of sentence, the military judge
conducted her inquiry under RULE FOR COURTS-MARTIAL 910(h)(3), MANUAL
FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) to ascertain whether the

3
    The provision regarding automatic forfeitures stated the following:

        Automatic forfeitures will be deferred provided that the accused
        establishes and maintains a dependent’s allotment in the total
        amount of the deferred forfeiture amount during the entire period
        of deferment. This Agreement constitutes the appellant’s request
        for, and the convening authority's approval of, deferment of
        automatic forfeitures pursuant to Article 58(b)(1), UCMJ. The
        period of deferment will run from the date automatic forfeitures
        would otherwise become effective under Article 58b(a)(1), UCMJ,
        until the date the convening authority acts on the Sentence.
        Further, this Agreement constitutes the accused's request for,
        and the convening authority's approval of, waiver of automatic
        forfeitures. The period of waiver will run from the date the
        convening authority takes action on the sentence for six months.
        The deferred and waived forfeitures shall be paid to my son,
        [DP], who is my dependent.

AE IV at 1. We note that with regard to the part in the PTA concerning
waiver of automatic forfeitures, there was no requirement that the
appellant establish and maintain a dependent’s allotment.


                                        3
appellant understood the meaning and effect of the PTA. Record
at 60-63. With regard to the automatic forfeiture provision,
the military judge instructed the appellant to establish the
allotment for his dependent son due to the fact that the
administrative requirements associated with establishing an
allotment could take some time. Id. at 62. The appellant
indicated that he understood. Id.

     The day the appellant was sentenced, 20 March 2013, he
established a voluntary allotment via his “myPay” account.
Appellant’s Motion. 4 This allotment was terminated on 27 March
2013 by personnel assigned to the IPAC, Camp Lejeune, North
Carolina. 5 Id. Financial regulations require that voluntary
allotments be terminated once an accused is adjudged
confinement. Id. at 2; see also Department of Defense, 7A
Financial Management Regulation Chapter 40, paragraph 400806.

     On 25 March 2013, the appellant’s detailed defense counsel
submitted a clemency petition requesting that the CA defer the
appellant’s automatic reduction from E-6 to E-1 and that all
adjudged confinement in excess of 18 months be disapproved.
Clemency Petition of 25 Mar 2013. The rationale for the request
to defer automatic reduction in grade was to allow the
appellant’s son, DP, to receive additional funds at the higher
E-6 rate. Id. at 2. On 9 April 2013, the CA disapproved the
appellant’s request to defer automatic reduction to E-1. 6 On 23
April 2013, the staff judge advocate (SJA) submitted his SJA
Recommendation (SJAR) to the CA. In the SJAR, the SJA
specifically concluded that the appellant had “complied with the
terms of the [pretrial] agreement and is entitled to the agreed
upon benefit.” SJAR at 1. On 9 May 2013, the CA took his
action indicating that imposition of automatic forfeitures had
already been deferred. CA’s Action at 2. Additionally, the CA
waived the imposition of automatic forfeitures for a period of
six months, “provided the [appellant] creates and maintains an

4
   According to MSgt Webb’s affidavit, the code “B0014” with a begin date of
20130320 signifies an allotment through use of the “myPay” system. See
Attachment A to Appellant’s Motion. Administered by DFAS, “myPay” is a web
site and automated data exchange that allows service members and eligible
personnel to conduct various financial transactions to include the
establishment of certain types of allotments.
5
   According to MSgt Webb’s affidavit, the code “45020” indicates the
Reporting Unit Code for the IPAC, Camp Lejeune, North Carolina. The data
entry has an end date of 20130327. Appellant’s Motion.
6
  See Commanding General’s Second Endorsement of 9 Apr 13 on Capt Rottkamp’s
ltr 5800 DEF/pbr of 25 Mar 13.

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allotment in the amount of waived forfeitures, during the period
of the waiver, to [DP], a dependent of the accused.”

                           Discussion

     Interpretation of the “meaning and effect of a pretrial
agreement . . . is a question of law, subject to review under a
de novo standard.” United States v. Smead, 68 M.J. 44, 59
(C.A.A.F. 2009) (citation omitted). A PTA is a contract between
an accused and the CA; however, contract law principles are
outweighed by the due process clause of the U.S. Constitution.
United States v. Acevedo, 50 M.J. 169, 172 (C.A.A.F. 1999).
When, as here, an appellant argues that the Government has not
complied with a term of the PTA, we review the “issue of
noncompliance [as] a mixed question of fact and law.” Smead, 68
M.J. at 59 (citation omitted). To assure that an appellant who
has waived “bedrock constitutional rights and privileges,”
United States v. Soto, 69 M.J. 304, 307 (C.A.A.F. 2011),
receives the benefit of his bargain, we look beyond the terms of
the PTA itself and consider “the accused’s understanding of the
terms of an agreement as reflected in the record as a whole.”
United States v. Lundy, 63 M.J. 299, 301 (C.A.A.F. 2006).

     In this case, the Government argues that because the
appellant failed to establish the proper allotment, the
appellant has not met his burden of demonstrating governmental
non-compliance. The Government also argues that the appellant
has failed to demonstrate that the automatic forfeiture
provision in the PTA was material. We disagree.

     Under the unique circumstances of this case, we hold that
the appellant has carried his burden to convince us that
protection from automatic forfeitures was a material term and
that the Government has not complied with this material term.
Lundy, 63 M.J. at 302. The record demonstrates that all
participants in the proceeding -– to include the CA, the SJA,
trial and defense counsel, the appellant, and the military judge
-- proceeded on the assumption that the appellant’s pay was a
key matter for negotiation and a material term of the PTA. We
also find that the clemency request to the CA to defer the
appellant’s automatic reduction to E-1, submitted five days
following the appellant’s court-martial, was primarily designed
to ensure that additional funds were paid to the appellant’s
son.
     Conceding that there is no case directly on point, the
Government cites United States v. Hatcher, No. 200900572, 2010
CCA LEXIS 396, unpublished op. (N.M.Ct.Crim.App. 21 Dec 2010),

                                5
for the proposition that because the appellant did not establish
a proper allotment as a condition precedent, there was no
governmental non-compliance. We disagree and find the facts in
Hatcher distinguishable. In Hatcher, Corporal Hatcher did not
establish an allotment until 23 days after the imposition of
automatic forfeitures took effect. In this case, the appellant
established an allotment on the day of his court-martial.
Although the appellant established an incorrect type of
allotment, nowhere in the PTA, or in the record, was it
explained that the appellant was required to establish a
dependent’s allotment through his administrative chain of
command. With regard to the CA’s agreement to defer automatic
forfeitures, the condition in the PTA was for the appellant to
establish an allotment. He did so. With regard to the CA’s
agreement in the PTA to waive automatic forfeitures, we note
that there was no expressed requirement that the appellant
establish an allotment. AE IV. Additionally, we find important
the fact that the SJA’s advice to the CA was that the appellant
had complied with his obligations under the PTA. Finally, the
CA’s intent was clear in his action that the appellant was
entitled to deferral and waiver of automatic forfeitures.

     We have no evidence that the appellant was informed during
the post-trial processing of this case that he had failed to
establish the proper type of administrative allotment. Nor do
we have evidence that the appellant, or his defense counsel, was
informed that the Government had canceled his allotment. Once
the appellant was notified during the appellate processing of
this case that he had not established the proper administrative
allotment, he avers that he has attempted to create the proper
allotment on at least three occasions through his chain of
command at Naval Consolidated Brig Chesapeake. See Appellant’s
Answer to NMCCA Court Order. We note that the Government did
not provide a response to the appellant’s claim that he made
multiple attempts to establish the proper allotment.

     Although we do not have a full factual exposition regarding
the administrative details associated with the appellant’s post-
trial pay matters, we note that the Government appears to
concede to the majority of the underlying facts in its Answer by
citing to information in the appellant’s Motion. As such, we
are convinced that the appellant met his obligations under the
PTA by his good faith attempt to create an allotment for his
dependent via his “myPay” account. We will not hold the
appellant to a higher standard for ascertaining the precise type
of allotment required than that which would be discernable based
on a plain reading of the PTA, particularly where there is no

                                6
evidence that anyone notified either trial defense counsel or
the appellant of any discrepancies associated with the
appellant’s attempt to establish the allotment. In fact,
according to the SJAR, the appellant had complied with his
obligations under the PTA.

     In this case, the appellant specifically disclaims that the
failure to comply with the automatic forfeiture terms of the PTA
rendered his pleas improvident. We agree and hold that under
the unique circumstances of this case non-compliance came as a
result of administrative frustration on the part of both
parties. Both the appellant and the CA have the same goal in
mind: providing the appellant’s son with those monies that
would otherwise have been automatically forfeited by operation
of law. Because the appellant remains in a pay status, the
situation can be remedied and the appellant can receive the
benefit of his bargain. Accordingly, we order specific
performance to enforce the terms of the PTA and to ensure that
the appellant receives the benefit of his bargain, nothing more
and nothing less. In this regard, we decline the appellant’s
invitation to order that the Government pay interest.

                           Conclusion

     Accordingly, the record of trial is returned to the Judge
Advocate General of the Navy for remand to an appropriate CA.
The CA may (1) grant specific performance by ensuring that the
appellant’s son receives the appropriate amount of funds for the
automatic forfeitures that were ordered deferred and waived
pursuant to the PTA; or (2) provide alternative relief that is
satisfactory to the appellant. The CA shall have forty-five
(45) days from the date of this opinion to ensure compliance and
then the record shall be returned to this court for completion
of appellate review. Boudreaux v. United States Navy-Marine
Corps Court of Military Review, 28 M.J. 181 (C.M.A. 1989).

     We also order that Prosecution Exhibits 7 and 8 remain
sealed, but included in the record.

                                For the Court


                                R.H. TROIDL
                                Clerk of Court




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