UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                          KERN, ALDYKIEWICZ, and MARTIN
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                           v.
                      Private First Class JAMES A. BACKES
                          United States Army, Appellant

                                   ARMY 20110870

                Headquarters, 3rd Infantry Division and Fort Stewart
                          Tiernan Dolan, Military Judge
                 Colonel Randall J. Bagwell, Staff Judge Advocate


For Appellant: Captain Kristin B. McGrory, JA; Captain Jack D. Einhorn, JA.

For Appellee: Lieutenant Colonel Amber J. Roach, JA.


                                     31 July 2012

                                SUMMARY DISPOSITION

Per Curiam:

       On 30 September 2011, a military judge sitting as a general court-martial
convicted appellant, pursuant to his pleas, of conspiracy to commit robbery, robbery,
and burglary, in violation of Articles 81, 122, and 129, Uniform Code of Military
Justice, 10 U.S.C. §§ 881, 922, 929 (2006) [hereinafter UCMJ]. The military judge
sentenced appellant to a bad-conduct discharge, con(inement for twenty months,
forfeiture of all pay and allowances, and reduction to the grade of E-1. The
convening authority reduced the sentence to confinement by three months, and
otherwise approved the remainder of the adjudged sentence.

       There was a pretrial agreement in this case in which the appellant met his end
of the bargain by fulfilling a number of obligations, central of which was having his
guilty plea accepted by the military judge. The convening authority, for his part,
agreed, inter alia, to a thirty-six month confinement limitation and to direct his staff
judge advocate (SJA) to provide a written recommendation that appellant serve any
BACKES-ARMY 20110870

sentence to confinement at the Naval Consolidated Brig in Miramar, California
[hereinafter Miramar], near where appellant's family resided.*

       Immediately following the trial, appellant was confined in a county jail
outside of Fort Stewart, pending transfer to a military confinement facility. On 14
October 2011, two weeks after trial, while appellant was still awaiting his
confinement transfer, his defense counsel contacted the government to check on the
recommendation from the SJ A to Army corrections officials for appellant to be
transferred to Miramar. During this time, appellant's defense counsel also worked
directly with Army corrections officials to attempt to designate Miramar as
appellant's military confinement location. His efforts were unsuccessful and
appellant was transferred to the Naval Consolidated Brig in Charleston, South
Carolina on orders dated 17 October 2011. It was not until 28 October 2011, four
weeks after trial and after appellant was transferred, that the SJA finally sent his
recommendation to Army corrections officials. On 7 November 2011, Army
corrections officials denied the SJA's recommendation and cited a number of
reasons to include appellant's "original [confinement] designation."

       In his post-trial submissions under Rule for Courts-Martial 1105, appellant's
defense counsel complained that appellant was not given the full benefit of his
pretrial agreement. The reason proffered was because the SJA's recommendation for
confinement location did not occur until after appellant was already assigned and
transferred to a different location. Appellant's defense counsel requested that the
convening authority grant clemency by reducing appellant's sentence to confinement
by three months because of the appellant's good character, his acceptance of
responsibility and cooperation with the government, and the SJA's failure to submit
a confinement location recommendation in a timely fashion. The SJA did not
respond to appellant's concerns in his addendum and recommended that the
convening authority approve the sentence as adjudged. The convening authority,
without comment as to his reasons, approved only seventeen Ih6rtths of the·twenty-
month sentence to confinement.

       Appellant now personally raises, pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982), the same issue raised in his 1105 matters-that he did not
receive the full benefit of his pretrial agreement-and he requests this court grant
appropriate relief. Noncompliance with a term of a pretrial agreement is a mixed
question of law and fact. United States v. Smead, 68 M.J. 44, 59 (C.A.A.F. 2009).

* This agreement regarding the SJ A's confinement location recommendation is not a
sentence limitation, and therefore, it was properly included in the offer portion of
the pretrial agreement-not the quantum-and was discussed by the military judge
with appellant during the providence inquiry. See United States v. Soto, 69 M.J.
304, 307 (C.A.A.F. 2011); Rule for Courts-Martial [hereinafter R.C.M.] 910(f)(3).

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BACKES-ARMY 20110870

As to this issue, we agree with appellant. It is only logical that the term within the
pretrial agreement pertaining to a recommendation for confinement location
presumes that such a recommendation will be submitted prior to a location decision
being made and prior to appellant's transfer pursuant to that decision. It is also
apparent from the record that the SJA had ample opportunity to make this
recommendation prior to appellant's transfer, but did not do so, denying appellant
the full benefit of his pretrial agreement. Moreover, we find this same issue raised
by appellant in his post-trial matters to be an allegation of legal error about which
the SJA was required to advise the convening authority. R.C.M 1106(d)(4).

        "In the event of noncompliance with a material term, we consider whether the
error is susceptible to remedy in the form of specific performance or in the form of
alternative relief agreeable to the appellant." !d. Furthermore, we possess broad
discretion to determine what sentence should be approved, Article 66(c), UCMJ, as
well as the authority to "moot claims of prejudice." United States v. Wheelus, 49
M.J. 283, 288 (C.A.A.F. 1998). Without deciding whether the term is material, we
find an additional three-month reduction, separate and distinct from the convening
authority's sentence reduction, is an appropriate remedy for the legal errors. In
coming to this conclusion, we have considered appellant's request in his appellate
submissions for "appropriate relief," and his defense counsel's request in appellant's
post-trial submissions for a three-month reduction in sentence. It is also important
to note that we are unable to ascertain the reason for the convening authority's
three-month confinement reduction, and therefore, cannot conclude that the
foregoing legal errors were already the subject of appropriate relief. Cf United
States v. Reed, 33 M.J. 98 (C.M.A. 1991).

       The findings of guilty are affirmed. On consideration of the entire record,
including the issue personally raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), this court affirms only so much of the
sentence as provides for a bad-conduct discharge, confinement for fourteen months,
forfeiture of all pay and allowances, and reduction to the grade of E-1. All rights,
privileges, and property, of which appellant has been deprived by virtue of that
portion of his sentence set aside by this decision, are ordered restored. See UCMJ
arts. 58.b.(c) and 75(a).

                                        FOR THE COURT:




                                        Acting Clerk of Court



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