            U NITED S TATES N AVY –M ARINE C ORPS
                C OURT OF C RIMINAL A PPEALS
                             _________________________

                                 No. 201600101
                             _________________________

                            THE COURT EN BANC1

                     UNITED STATES OF AMERICA
                                       Appellee
                                           v.
                              KELLEN M. KRUSE
                  Master-at-Arms Seaman (E-3), U.S. Navy
                                 Appellant
                          _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

 Military Judge: Captain Bethany L. Payton-O’Brien, JAGC, USN.
     For Appellant: Captain Bree A. Ermentrout, JAGC, USN.
     For Appellee: Commander James E. Carsten, JAGC, USN;
               Major Tracey L. Holtshirley, USMC.
                     _________________________

                            Decided 22 December 2016
                             _________________________
                    PUBLISHED OPINION OF THE COURT
                          _________________________

PALMER, Chief Judge, delivered the opinion of the court in which MARKS,
S.J., CAMPELL, S.J., RUGH, J., and GLASER-ALLEN, J., concur.
   A military judge sitting as a special court-martial convicted the appellant,
pursuant to his pleas, of eight specifications of wrongful use of controlled
substances, in violation of Article 112a, Uniform Code of Military Justice, 10
U.S.C. § 912a (2012). The military judge sentenced him to 100 days’
confinement, reduction to the pay grade of E-1, forfeiture of $300.00 pay per
month for three months, and a bad-conduct discharge. A pretrial agreement
required, inter alia, that the convening authority (CA) suspend any adjudged
punitive discharge. While the CA’s action on the court-martial was still
pending, the appellant was administratively discharged with an other-than-


   1   Judges Fulton and Hutchison did not participate in the decision of this case.
honorable characterization of service. When taking his action, the CA
purportedly disapproved the bad-conduct discharge as an act of clemency.2
   Although the appellant raised no assignment of error, this court specified
the issue of whether the CA violated Article 60, UCMJ, by disapproving the
appellant’s bad-conduct discharge despite a pretrial agreement to suspend
and remit any adjudged discharge.
    In a published opinion issued on 3 November 2016, we found that
disapproval of the bad-conduct discharge violated Article 60, UCMJ, because
it was not permitted by statute, and thus was a nullity. The court then
approved the adjudged findings and sentence and enforced the terms of a
pretrial agreement, suspending and remitting the bad-conduct discharge due
to an intervening administrative separation of the appellant. The government
filed an unopposed motion for en banc reconsideration which the court
granted, withdrawing our 3 November 2016 opinion and issuing this opinion.
Upon reconsideration, the court en banc again approves the adjudged
findings and sentence. Otherwise, we find no error materially prejudicial to
the substantial rights of the appellant. Art. 59(a), UCMJ.3
                                   I. BACKGROUND
    The National Defense Authorization Act for Fiscal Year 20144 (FY14
NDAA) substantially limited CAs’ discretion to take action on sentences
under Article 60, UCMJ. For courts-martial in which all the offenses occurred
after the amendment’s effective date of 24 June 2014, a CA “may not
disapprove, commute, or suspend in whole or in part an adjudged sentence of
confinement for more than six months or a sentence of dismissal,
dishonorable discharge, or bad conduct discharge”5 unless certain exceptions
exist. One such exception is a negotiated guilty plea—in which case the CA
may “approve, disapprove, commute, or suspend a sentence in whole or in
part pursuant to the terms of the pre-trial agreement[.]”6


    2 Although the CA characterized his disapproval of the bad-conduct discharge as

“corrective action,” the staff judge advocate’s recommendation states “[a]s a matter of
clemency, I also recommend you disapprove the bad[-]conduct discharge[.]” Staff
Judge Advocate’s Recommendation (SJAR) dated 16 Feb 2016 at 3. Accordingly,
based on our review of the entire record, and in particular the SJAR, we interpret the
CA’s disapproval of the punitive discharge as an act of clemency.
   3 The CA acted within his authority in disapproving the adjudged reduction to
pay grade E-1 and in compliance with the pretrial agreement in suspending all
confinement in excess of time served (35 days).
   4   Pub. L. No. 113-66, 127 Stat. 672 (2013).
   5   Id. at 956.
   6   Id. at 956-57 (emphasis added).

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   The appellant’s convictions involve illegal drug use on or about 24 March
2015, 7 October 2015, and 30 October 2015. With respect to a potential
punitive discharge, his pretrial agreement provided:
         May be approved as adjudged. However, if a punitive discharge
         is adjudged, it will be suspended for a period of six (6) months
         from the date of the convening authority’s action, at which
         time, unless sooner vacated, the suspended punitive discharge
         will be remitted without further action.7
    The appellant contends the pretrial agreement demonstrates that the CA
intended to retain “some degree of control” over the discharge portion of the
sentence.8 Similarly, the government maintains the phrase, “[m]ay be
approved as adjudged,” reflects the parties’ intent to preserve the CA’s
discretion to approve or disapprove an adjudged discharge—so that the bad-
conduct discharge was disapproved pursuant to a term of the pretrial
agreement in accordance with Article 60, UCMJ. The government also
contends that because the CA disapproved the discharge, this case lacks the
Article 66, UCMJ, jurisdictional threshold to warrant appellate review.9
                                     II. DISCUSSION
A. The pretrial agreement’s terms did not preserve the CA’s
discretion to disapprove a bad-conduct discharge
    Absent a trial counsel’s clemency recommendation based upon an
accused’s substantial assistance in investigating or prosecuting another case,
Article 60, UCMJ, does not permit CAs to alter an adjudged bad-conduct
discharge except “pursuant to the terms of the pretrial agreement.”10 “When
an appellate issue concerns the meaning and effect of a pretrial agreement,
interpretation of the 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).
    A pretrial agreement is a contract created through the bargaining process
between the accused and the CA. See United States v. Lundy, 63 M.J. 299,
300 (C.A.A.F. 2006); United States v. Perron, 58 M.J. 78, 86 (C.A.A.F. 2003);
United States v. Acevedo, 50 M.J. 169, 172 (C.A.A.F. 1999). It is well-
established in federal and military courts that pretrial agreements will be
interpreted using contract law principles. See Acevedo, 50 M.J. at 172.
Generally, pretrial agreements will be strictly enforced based upon the


   7   Appellate Exhibit (AE) III (emphasis added).
   8   Appellant’s Brief of 21 Jun 2016 at 5.
   9   Government’s Brief of 12 Jul 2016 at 5, 8.
   10   10 U.S.C. § 860(c)(4)(c) (2013).

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express wording of the agreements; however, “[w]hen interpreting pretrial
agreements . . . contract principles are outweighed by the Constitution’s Due
Process Clause protections for an accused.” Id. (citing Government of Virgin
Islands v. Scotland, 614 F.2d 360, 364 (3d Cir. 1980)) (additional citations
omitted).
    “We begin any analysis of a pretrial agreement by looking first to the
language of the agreement itself.” Id. According to the government’s
interpretation of the pretrial agreement, the CA’s disapproval was pursuant
to its terms. However, in examining the plain language of the agreement, we
find that the parties unambiguously intended to suspend a punitive
discharge, should one be adjudged, and remit it at the end of the suspension
period—“if a punitive discharge is adjudged, it will be suspended . . . .”11 We
see absolutely nothing in the plain language of the agreement indicating the
parties believed the CA would disapprove the discharge, or that they
intended to preserve the possibility of disapproval in clemency.
   The government argues that the inclusion of the phrase “may be
adjudged” and the language that gave the CA the power to suspend meant
that the plain and permissive language of the agreement included the power
to disapprove. We find this interpretation strays too far outside the four
corners of the contract and the express terms therein, and thus we do not
agree.
    In the context of pretrial agreements involving the Constitutional rights
of a military accused, “we look not only to the terms of the agreement, or
contract, but to the accused’s understanding of the terms of an agreement as
reflected in the record as a whole.” Lundy, 63 M.J. at 301. We acknowledge
that pretrial agreements are more than a simple contract between two
parties. Therefore, in addition to employing the normal analysis of contract
language, we must also examine the military judge’s crucial role. “We have
long emphasized the critical role that a military judge and counsel must play
to ensure that the record reflects a clear, shared understanding of the terms
of any pretrial agreement between an accused and the convening authority.”
United States v. Williams, 60 M.J. 360, 362 (C.A.A.F. 2004) (citations
omitted). The military judge is required to ensure an accused understands
the pretrial agreement and the parties agree to its terms. RULE FOR COURTS-
MARTIAL 910(f)(4), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).
Here, upon announcement of the sentence, the military judge confirmed the
terms of the pretrial agreement with the appellant and counsel:
         MJ: All right. Seaman Kruse, as I read part two of your pretrial
         agreement, I did award a punitive discharge, and the

   11   AE III.

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         Convening Authority has agreed to suspend that for 6 months
         from the date of Convening Authority’s action, at which time,
         unless sooner vacated, that punitive discharge will be remitted
         without further action[.]
         . . . .
         Do you understand the effect that part two of your pretrial
         agreement has on the sentence adjudged by this court?
         ACC: Yes, Your Honor.
         MJ: Do counsel concur with my explanation of the provisions
         and effect of the sentence limitation portion of the pretrial
         agreement?
         TC: The government does, Your Honor.
         DC: Defense concurs, Your Honor.12
    Having heard the military judge’s interpretation, neither party asserted a
belief that the CA also possessed the authority to disapprove the discharge.
Thus we find that no Due Process violation occurred. This agreement
unambiguously gave the CA the power to suspend and remit the punitive
discharge, and nothing more.
B. Disapproval of the discharge violates Article 60c, UCMJ
   A fundamental precept of our constitutional system is that the legislative
power is vested in Congress. U.S. CONST. art. I, § 1; see Loving v. United
States, 517 U.S. 748, 758, (1996). “An appellate court is bound to assume that
the legislative purpose of a statute is accurately expressed in the language of
the statute.” Dukes v. Smith, 34 M.J. 803, 805, (N.M.C.M.R. 1991) (citing
American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982)). “Unless an
appellate court can discover a clearly expressed legislative intent to the
contrary, the language of the statute is ordinarily regarded as conclusive.” Id.
    Here, the government does not offer, nor do we find in the legislative
history, any clear expression of Congressional intent permitting a CA to take
action inconsistent with the law or plain terms of a pretrial agreement.
Indeed, we need look no further than the FY14 NDAA which presages the
Article 60 changes with the section heading: “Elimination of Unlimited
Command Prerogative and Discretion; Imposition of Additional
Limitations.”13 Given Congress’ clear desire to limit CA discretion in granting
post-trial sentencing relief, we are unable, as the government urges, to read


   12   Record at 78-79.
   13   Pub. L. No. 113-66, 127 Stat. 672 (2013) at 955.

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this agreement so broadly as to permit the CA to grant relief that was not
specifically contained within the pretrial agreement.
C. The disapproval of the discharge was a nullity
    We find that the portion of the CA’s action purporting to disapprove the
bad-conduct discharge, having no basis or justification in law, was a nullity.
See United States v. Tarniewicz, 70 M.J. 543, 544 (N-M. Ct. Crim. App. 2011)
(holding that to the extent a CA’s action directed a punitive discharge
executed after final judgment in violation of Article 71, UMCJ, was ultra
vires and thus a nullity). Rather than unnecessarily ordering a new CA’s
action in this case, we take the existing CA’s action and disregard any portion
that is not permitted by law.
    The only action the CA could lawfully take regarding the adjudged
punitive discharge was to approve it pursuant to Article 60, UCMJ.
Consequently, we find that since his disapproval of the punitive discharge
was a nullity, this court has Article 66, UCMJ, jurisdiction over this matter.14
When a CA fails to take action required by a pretrial agreement, this court
has authority to enforce the agreement. See United States v. Cox, 46 C.M.R.
69, 72 (C.M.A. 1972).
                                 III. CONCLUSION
   We affirm the findings and adjudged sentence. As the appellant was
administratively discharged while the CA’s action was pending,15 the bad-
conduct discharge was remitted as a matter of law on the date of the CA’s


   14  The fact that the appellant was administratively separated prior to the
purported disapproval of his punitive discharge does not deprive the court of
jurisdiction. An administrative separation of an accused who has been found guilty
does not vacate the conviction or terminate the process of appellate review. United
States v. Montesinos, 28 M.J. 38, 46 (C.M.A. 1989). In United States v. Jackson, the
Court of Military Appeals asserted continuing jurisdiction over the case despite the
execution of an administrative discharge: “On several occasions, the Court has held
that ‘[o]nce jurisdiction attaches, it continues until the appellate processes are
complete,’ and, therefore, jurisdiction is not lost when an accused is administratively
discharged while his case is pending before an appellate court. Case law, therefore,
demonstrates that our jurisdiction is soundly based.” 3 M.J. 153-54 (C.M.A. 1977)
(quoting United States v. Entner, 36 C.M.R. 62, 62 (C.M.A. 1965)) (additional
citations omitted).
    15 Navy regulations do not prevent the administrative separation of a Sailor with

an adjudged punitive discharge. But see United States v. Watson, 69 M.J. 415, 420
(C.A.A.F. 2011) (noting that the Army has exercised “the authority of the military
departments to issue regulations that have the effect of precluding an administrative
discharge from taking effect”) (citing United States v. Estrada, 69 M.J. 45, 48
(C.A.A.F. 2010).

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action.16 R.C.M. 1108(e); United States v. Spradley, 41 M.J. 827, 831-32
(C.A.A.F. 1995).
                                  For the Court




                                   R.H. TROIDL
                                   Clerk of Court




   16 The government notes the practical effect of the CA’s action and our holding
ultimately lead to the same result for the appellant. This opinion and our corrective
action, however, are neither illusory nor futile. Here, we again review a case in which
a CA follows his or her staff judge advocate’s incorrect advice regarding the effect of
the Article 60, UCMJ, amendments, now enacted well over two years ago. Even
though the error is arguably harmless, we cannot leave a clear violation of the law
unaddressed, and thus again exercise our authority to correct it.

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