                                    IN THE CASE OF



                            UNITED STATES, Appellee

                                            v.

                      Gregory K. WILLIAMS, Specialist
                            U.S. Army, Appellant

                                     No. 01-0010
                             Crim. App. No. 9601112

             United States Court of Appeals for the Armed Forces

                                 Argued May 22, 2001

                               Decided August 20, 2001

     EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and SULLIVAN, GIERKE, and BAKER, JJ., joined.


                                        Counsel

For Appellant: Captain John N. Maher (argued); Lieutenant Colonel David A.
     Mayfield and Major Mary M. McCord (on brief); Captain Arun J. Thomas.



For Appellee: Captain Jennifer A. Parker (argued); Colonel David L. Hayden,
     Lieutenant Colonel Edith M. Rob, and Major Anthony P. Nicastro (on
     brief).




Military Judge:   Linda K. Webster



            THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Williams, No.    01-0010/AR



Judge EFFRON delivered the opinion of the Court.

     A general court-martial composed of a military judge

sitting alone convicted appellant, consistent with his pleas,

of willful disobedience of a superior commissioned officer,

assault consummated by a battery upon a child, and false

swearing, in violation of Articles 90, 128, and 134, Uniform

Code of Military Justice, 10 USC §§ 890, 928, and 934,

respectively.    Contrary to his pleas, he was convicted of

murder, assault consummated by a battery, and wrongful

communication of a threat, in violation of Articles 118, 128,

and 134, UCMJ, 10 USC §§ 918, 928, and 934, respectively.     On

June 20, 1996, appellant was sentenced to a dishonorable

discharge, confinement for 27 years, and reduction to the lowest

enlisted grade.    The sentence did not include forfeiture of pay

or allowances.

     The convening authority reduced the period of confinement

to 9 years and approved the dishonorable discharge and reduction

in grade to Private E-1.    In addition, he deferred automatic

forfeitures under Article 58b, UCMJ, 10 USC § 858b, through July

13, 1998, the date of his action.     The convening authority’s

action was consistent with the pretrial agreement, which (1)

limited confinement to 10 years and (2) provided for deferral of

automatic forfeitures through the date of the action.



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United States v. Williams, No.    01-0010/AR


     On appellant’s petition, we granted review of the following

issues:

            I. WHETHER THE COURT-MARTIAL CONVENED BY THE
            COMMANDER, MILITARY DISTRICT OF WASHINGTON,
            DID NOT HAVE JURISDICTION OVER APPELLANT
            BECAUSE PRIOR TO REFERRAL ON 29 MARCH 1996,
            THE IDENTICAL CHARGES REFERRED AGAINST
            APPELLANT BY THE COMMANDER, FORT RITCHIE, ON
            10 OCTOBER 1995, WERE NEVER WITHDRAWN.

            II. WHETHER A 745-DAY DELAY BETWEEN THE
            TRIAL AND THE CONVENING AUTHORITY’S ACTION
            VIOLATES APPELLANT’S RIGHT TO A SPEEDY
            REVIEW.

            III. WHETHER APPELLANT’S PLEAS OF GUILTY
            WERE IMPROVIDENT BECAUSE THE CONVENING
            AUTHORITY DID NOT COMPLY WITH THE TERMS OF
            THE PRETRIAL AGREEMENT THAT REQUIRED
            APPELLANT TO RECEIVE PAY AND ALLOWANCES
            UNTIL THE CONVENING AUTHORITY TOOK ACTION IN
            HIS CASE.

For the reasons set forth below, we affirm.



               I.   JURISDICTION OF THE COURT-MARTIAL

                            A. Background

     On October 10, 1995, Brigadier General (BG) Essig, the

commanding officer of Fort Ritchie, referred appellant’s case

for trial under General Court-Martial Convening Order (GCMCO)

No. 1.    Appellant was arraigned on October 19.   On October 26,

BG Essig transmitted this case to Major General (MG) Foley, the

commander of the Military District of Washington, who was BG

Essig’s immediate superior in the chain of command.      In the



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United States v. Williams, No.        01-0010/AR


transmittal, BG Essig noted, “I previously referred this case to

trial by General Court-Martial convened by Court-Martial

Convening Order Number 1, this headquarters, dated 24 February

1995.”

      When BG Essig retired on October 31, Lieutenant Colonel

(LTC) LeFleur became the acting commander and the general court-

martial convening authority at Fort Ritchie.           Later that day, MG

Foley withdrew LTC LeFleur’s authority to convene general

courts-martial and reserved it to himself.           See RCM 601(b),

Manual for Courts-Martial, United States (2000 ed.).∗

      After several pretrial sessions were held under Article

39(a), UCMJ, 10 USC § 839(a), MG Foley referred the case to

trial under GCMCO No. 2, Headquarters, Military District of

Washington.    At this point, appellant had been arraigned but had

not yet entered his pleas.       This action reflected the

recommendation of his Staff Judge Advocate (SJA), who described

the action as a “re-referr[al]” of the charges.            The SJA

provided MG Foley with the same pretrial advice he provided to

BG Essig prior to the first referral under Article 34, UCMJ,

10 USC § 834.     The charges were identical to those in the first

referral, except for some minor pen-and-ink changes.             The second




∗
  All Manual provisions are cited to the current version, which are identical
to the ones in effect at the time of appellant's court-martial.


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United States v. Williams, No.   01-0010/AR


referral did not expressly withdraw the charges referred under

GCMCO No. 1.

     Subsequently, defense counsel moved to dismiss the charges,

contending that the court-martial lacked jurisdiction because MG

Foley never properly withdrew the initially referred charges.

The military judge determined that MG Foley acted as BG Essig’s

successor convening authority, that the referral under GCMCO No.

2 was an implicit withdrawal of the charges referred under GCMCO

No. 1, and that the re-referral was motivated by the need to add

new members because so many had transferred since the original

referral.   Based on these findings, the military judge concluded

that the withdrawal and re-referral of charges was proper and

denied the motion.


                          B.   Discussion

     When charges are referred to a court-martial, that court

retains jurisdiction over the case from the point of referral

through authentication of the record by the military judge,

except when the convening authority withdraws the charges from

the court-martial under RCM 604(a).   See United States v.

Seward, 49 MJ 369, 372 (1998).   Unless the charges are withdrawn

for an “improper reason,” the convening authority may re-refer

the withdrawn charges to a different court-martial.   See RCM

604(b).



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United States v. Williams, No.    01-0010/AR


     In the present case, when BG Essig retired and MG Foley

withdrew the general court-martial convening authority from LTC

LeFleur and reserved it to himself, MG Foley thereafter acted as

a successor convening authority.       In that capacity, he had ample

authority to withdraw the charges referred under GCMCO No. 1 and

to re-refer them under GCMCO No. 2.

     Appellant does not contest MG Foley's authority to take

such actions, nor does he contend that the charges were

withdrawn for an improper reason.      Appellant contends that the

convening authority did not withdraw and re-refer the charges as

a matter of fact and law.    Appellant notes that no document

expressly reflects MG Foley’s intent to withdraw the charges

referred under GCMCO No. 1.    Appellant also observes that trial

counsel stated early in the proceedings that MG Foley “let

stand” the initial referral and that an “amending order to GCMCO

1” would be forthcoming.    Appellant further contends that the

mere act of re-referral under GCMCO No. 2 cannot be read to

imply an intent to withdraw.    He argues that withdrawal and

referral under RCM 604 and 601 are separate and distinct acts

that cannot be merged into a singular act by implication.

     We agree that withdrawal and re-referral of charges are

separate acts.   Not every charge that is withdrawn inevitably is

re-referred.   These functions, however, are closely related, and

it is reasonable to presume that re-referral of a charge by a


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United States v. Williams, No.    01-0010/AR


proper convening authority implies a decision to withdraw that

charge from a prior referral.    Although it is preferable for a

convening authority to indicate this intent expressly, RCM 604

does not require that the convening authority memorialize this

decision in any particular form.

     Although trial counsel mentioned earlier in the proceedings

that the convening authority "let stand" the initial referral,

trial counsel later made it clear that the Government viewed the

convening authority's actions as involving withdrawal and re-

referral of the charges.   The question before us is whether the

circumstances reasonably reflect an intent to withdraw the

charges referred under GCMCO No. 1 and re-refer them under GCMCO

No. 2.   At the time MG Foley re-referred these charges under

GCMCO No. 2, he had reserved to himself the full legal authority

to act as the general court-martial convening authority in this

and other cases at Fort Ritchie.       In recommending referral under

GCMCO No. 2, MG Foley’s SJA specifically referred to the action

as a “re-referr[al],” and he even used the same pretrial advice

used by BG Essig’s SJA prior to the initial referral under GCMCO

No. 1.

     Under the circumstances of this case, MG Foley’s intent to

withdraw the charges referred under GCMCO No. 1 was implicit in

his re-referral of those charges under GCMCO No. 2.      Any

administrative deficiency in memorializing this process was


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United States v. Williams, No.    01-0010/AR


insubstantial and did not deprive the court-martial of

jurisdiction. See United States v. Stinson, 34 MJ 233 (CMA

1992); United States v. Fricke, 53 MJ 149 (2000); United States

v. Blaylock, 15 MJ 190 (CMA 1983); United States v. Jette, 25 MJ

16 (CMA 1987); RCM 601(a), Discussion; RCM 601(e)(1).



                        II.   POST-TRIAL DELAY

     Appellant’s court-martial ended with his sentencing on June

20, 1996.    The convening authority did not take action on this

record until July 13, 1998 –- 753 days after completion of

trial, largely as a result of government errors, omissions, and

inattention.

     Appellant has a right to a speedy post-trial review of his

case.   United States v. Hudson, 46 MJ 226, 227 (1997).      The

length of the delay in this case –- over 2 years –- reflects

poorly on the administration of military justice.       Under our

precedents, however, an unreasonable delay in the post-trial

review process will be tested for prejudice.       United States v.

Banks, 7 MJ 92, 94 (CMA 1979).    Delay “will not be tolerated if

there is any indication that appellant was prejudiced as a

result.”    United States v. Shely, 16 MJ 431, 433 (CMA 1983).

     Appellant contends that he was prejudiced by the delay

because he was denied post-trial pay and allowances that were

contemplated under the pretrial agreement.       Our disposition of


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United States v. Williams, No.    01-0010/AR


his claim of prejudice is governed by our resolution of Issue

III, which is considered in the following section of this

opinion.



III.    PRETRIAL AGREEMENT REGARDING POST-TRIAL PAY AND ALLOWANCES

                       A.   Factual Background

       The pretrial agreement between appellant and the convening

authority included the following provisions:

            b. within thirteen days after sentence is
            announced, [the convening authority will]
            defer execution of all forfeitures of pay
            and allowances until action is taken on the
            case, and
            c. waive all forfeitures of pay and
            allowances for a period of six months and
            direct payment of those funds to Michael and
            Marcus Williams [(appellant's children)] in
            equal shares[.]

The military judge conducted a post-sentencing inquiry into the

pretrial agreement and appellant's understanding of it.    See RCM

910(h)(3); United States v. Green, 1 MJ 453, 456 (CMA 1976).    In

the course of that inquiry, there was a brief colloquy

concerning the foregoing provisions:

                 [MJ:] [I]n this case I did not adjudge
            forfeiture of pay and allowances, therefore,
            you get the benefit of that, if you will, in
            that there are no forfeitures adjudged in
            this case whatsoever.
                 Now, I will leave it to your counsel to
            explain in more detail to you how the lack
            of total forfeitures in this case. . . will
            affect what happens to your pay upon ETS
            date [(expiration of term of service)] and


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United States v. Williams, No.    01-0010/AR


          the operation of any other provisions of law
          that will come into play while you serve
          your confinement.
               Captain Robbins, Captain Ashley, I
          would understand that you would take that
          direction from me and discuss that in more
          detail with him as far as the different
          permutations that can apply, since I did not
          adjudge any total forfeitures in this case.

               DC (CPT Robbins): Yes, ma'am. We have
          done so, anticipating how you ever might
          have come out, and we will do so again.

               MJ:   All right.   Thank you.

               DC (CPT Robbins):       Yes, ma'am.

     Shortly thereafter, when the military judge asked whether

counsel agreed with her interpretation of the pretrial

agreement, defense counsel stated:       "Again, Your Honor,

paragraphs B and C will have effect on the provisions of Article

58 of the code, but has no effect on your adjudged sentence

because you did not adjudge forfeitures."

     Appellant was sentenced on June 20, 1996.       On July 19, the

convening authority retroactively deferred automatic forfeiture

of pay and allowances beginning on July 3, the date they

otherwise would have taken effect.       Appellant's term of

enlistment ended in February 1997, 7 months after the conclusion

of trial, after which he received no pay and allowances.

Sixteen months later, in June 1998, appellant provided the

convening authority with a post-trial submission under RCM 1105,

which included a contention that he was denied the benefit of


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United States v. Williams, No.   01-0010/AR


his pretrial agreement by virtue of his pay and allowances

ending with the expiration of his service in February 1997.     As

noted at the outset of this opinion, the convening authority

reduced the amount of confinement but provided no monetary

relief when he took action on July 13, 1998.


                          B.   Discussion

     If an accused does not receive the benefit of the bargain

reflected in a negotiated pretrial agreement, the pleas will be

treated as improvident, the findings will be set aside, and the

accused will be subject to retrial.   United States v. Mitchell,

50 MJ 79, 82 (1999).   Appellant contends that he bargained for

financial security for his family by ensuring that they would

receive his full pay and allowances from the date of sentencing

until 6 months after the convening authority's action.   In light

of the delay in that action, discussed earlier, appellant

asserts that his full pay and allowances should have continued

until January 13, 1999, rather than terminating in February 1997

with the expiration of his term of service.

     Appellant relies on United States v. Williams, 53 MJ 293

(2000), and United States v. Hardcastle, 53 MJ 299 (2000), for

the proposition that there was a misunderstanding among all

parties as to the Government's legal ability to comply with the




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United States v. Williams, No.   01-0010/AR


agreement during the period beyond his ETS, which rendered his

guilty pleas improvident.

     Williams involved a pretrial agreement that included a 6-

month waiver of automatic forfeitures under Article 58b.   During

the providence inquiry, the military judge advised the accused

that the convening authority had agreed to a 6-month waiver of

automatic forfeitures for the benefit of his dependents.   Both

counsel indicated on the record their agreement with the

military judge's understanding of this provision.   No one at

trial realized that because the accused was on legal hold beyond

the expiration of his obligated service, his right to pay and

allowances would be terminated immediately upon conviction under

applicable Department of Defense regulations.

     On appeal in Williams, the Government conceded that the

plea was improvident as a result of a mutual misunderstanding

among the parties and the military judge as to the legal ability

of the Government to comply with a key provision of the pretrial

agreement.   The Government also agreed that even if the

provision in question was collateral, the misunderstanding still

entitled the accused to rescind the agreement under United

States v. Bedania, 12 MJ 373, 376 (CMA 1982), which held that

          when collateral consequences of a court-
          martial conviction -- such as administrative
          discharge, loss of a license or a security
          clearance, removal from a military program,
          failure to obtain promotion, deportation, or


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United States v. Williams, No.   01-0010/AR


          public derision and humiliation -- are
          relied upon as the basis for contesting the
          providence of a guilty plea, the appellant
          is entitled to succeed only when the
          collateral consequences are major and the
          appellant's misunderstanding of the
          consequences (a) results foreseeably and
          almost inexorably from the language of a
          pretrial agreement; (b) is induced by the
          trial judge's comments during the providence
          inquiry; or (c) is made readily apparent to
          the judge, who nonetheless fails to correct
          that misunderstanding. In short, chief
          reliance must be placed on defense counsel
          to inform an accused about the collateral
          consequences of a court-martial conviction
          and to ascertain his willingness to accept
          those consequences.

(Emphasis omitted.)

     We accepted the concessions from the Government in

Williams, as well as in Hardcastle, supra.    In Hardcastle, we

distinguished United States v. Albert, 30 MJ 331 (CMA 1990),

"where there was no representation by the convening authority,

trial counsel, or the military judge as to post-trial

entitlement to pay and the automatic forfeiture provisions of

Article 58b . . . were not involved."   53 MJ at 303.

     In the present case, appellant bargained for two

protections in his pretrial agreement: (1) a limitation on

confinement and (2) a delay in the impact of potentially

applicable forfeitures of pay and allowances.   At the time he

entered into this agreement, he did not know whether the

military judge would adjudge forfeitures, and he did not know



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United States v. Williams, No.   01-0010/AR


whether the convening authority would defer the automatic

forfeitures under Article 58b.   Moreover, he did not know that a

subsequent decision would preclude application of automatic

forfeitures in cases arising prior to enactment of Article 58b.

See United States v. Gorski, 47 MJ 370 (1997).

     Because he could not be assured at the time of trial of

protection against adjudged or automatic forfeitures, he sought

in the pretrial agreement to protect his family against

potential forfeitures.   Appellant received what he bargained for

in this regard.   The adjudged sentence did not include any

forfeitures and there is no evidence that his pay was subjected

to automatic forfeitures.

     Appellant's complaint is based on the termination of his

pay and allowances occasioned by the end of his term of service

in February 1997.   The inquiry at trial, however, made it clear

that the pretrial agreement merely restricted application of

adjudged or automatic forfeitures if applicable.    The agreement

did not purport to guarantee continuation of pay and allowances

under other circumstances, and the plea inquiry did not indicate

that the parties contemplated any such guarantee.   The military

judge expressly noted the potential impact of appellant's ETS on

the continuation of his pay while in confinement, and she was

assured by defense counsel that they already had discussed this

matter in detail with appellant and that they would do so again.


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United States v. Williams, No.     01-0010/AR


See Bedania, supra at 376.    Under these circumstances, in which

there was no representation as to entitlement of pay beyond his

ETS, by the convening authority in the pretrial agreement or by

trial counsel or the military judge during the trial, this case

is distinguishable from Williams and Hardcastle.


                             IV.   DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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