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

                    UNITED STATES OF AMERICA, Appellee
                                       v.
                      Staff Sergeant MICHAEL A. ANTWI
                         United States Army, Appellant

                                   ARMY 20110112

                             Headquarters, Eighth Army
                           T. Mark Kulish, Military Judge
                 Colonel Jeffrey C. McKitrick, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Major Jacob D. Bashore, JA;
Lieutenant Colonel Katherine A. Lehmann, JA (on brief).

For Appellee: Major Robert A. Rodrigues, JA; Captain Steve T. Nam, JA (on brief).


                                   28 February 2013
                               ---------------------------------
                               SUMMARY DISPOSITION
                               ---------------------------------

Per Curium:

       A military judge, sitting as a general court-martial convicted appellant,
pursuant to his pleas, of six specifications of larceny of military property, and three
specifications of making false claims against the United States, in violation of
Articles 121 and 132, Uniform Code of Military Justice, 10 U.S.C. §§ 921, 932
(2006) [hereinafter UCMJ]. The convening authority approved the adjudged
sentence to a bad-conduct discharge, confinement for twenty-one months, and
reduction to the grade of E-1. 1

1
  Although there was a pretrial agreement limiting the approved confinement to 365
days, the convening authority improperly approved the sentence as adjudged, which
included twenty-one months of confinement. However, appellant was not
prejudiced, because as appellant indicates in his brief, the confinement facility
recognized the error and released appellant accordingly (the sentence was adjudged
on 9 February 2011 and appellant was released from confinement on 28 November

                                                                        (continued . . .)
ANTWI—ARMY 20110112

      Appellant raises three assignments of error for our review under Article 66,
UCMJ. We conclude that appellant’s first assignment of error, concerning the
government’s failure to comply with a material term of appellant’s pretrial
agreement, warrants both discussion and relief. Our resolution of this issue makes it
unnecessary to address appellant’s second assignment of error regarding the failure
of appellant’s trial defense counsel to request deferral of automatic forfeitures and
reduction in rank. As for appellant’s final assignment of error, we conclude it
warrants neither discussion nor relief.

                                  BACKGROUND

       Appellant’s case was tried at a general court-martial, and the quantum portion
of his pretrial agreement reads:

             The convening authority agrees to: Disapprove any
             confinement in excess of three hundred sixty-five days.
             Any lawfully adjudged punishment within the
             jurisdictional limits of a Special Court-Martial empowered
             to adjudge a Bad Conduct Discharge may be approved.

After the military judge announced the sentence and examined the quantum portion
of the pretrial agreement, he recognized and raised with both counsel a potential
issue with regard to automatic forfeitures under Article 58b, UCMJ, and the parties
understanding of the meaning and effect of the agreement. Because appellant was
tried at a general court-marital in which confinement in excess of six months and a
bad-conduct discharge was adjudged, Article 58b, UCMJ, triggered automatic
forfeiture of all pay and allowances while appellant served confinement. A special
court-martial would have only triggered automatic forfeiture of two-thirds pay
during confinement, Article 58b, UCMJ. The military judge’s discussion with both
counsel makes clear that the special court-martial jurisdictional limit was entered
into so appellant would retain some amount of pay to provide for his family. The
effects of automatic forfeitures were not contemplated by either defense or
government counsel.

       Following this discussion regarding the effect of automatic forfeitures, the
military judge recommended sua sponte to the trial counsel that the government


(. . . continued)
2011). As we are remanding this case for a new staff judge advocate
recommendation (SJAR) and action for other reasons, we merely make note of this
error to prevent another erroneous action in the event confinement is approved upon
remand.




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ANTWI—ARMY 20110112

remedy this situation by having the convening authority grant appellant a waiver of
the automatic forfeitures. On 13 June 2011, over four months after the sentence was
adjudged, the convening authority took action on this case and waived automatic
forfeitures for a period of six months.

                              LAW AND DISCUSSION

        Appellant now contends, and the government concedes, that the failure of the
parties at trial to contemplate the potential effects of automatic forfeitures created a
mutual misunderstanding of a material term of the pretrial agreement resulting in
appellant not getting that for which he bargained. Appellant further contends, and
the government also concedes, that the convening authority’s waiver of automatic
forfeitures does not amount to specific performance accomplishing what appellant
had bargained for, nor was it a remedy agreeable to appellant. 2 We accept
appellant’s contentions and the government’s concessions, and as such, we must now
“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.” United
States v. Smead, 68 M.J. 44, 59 (C.A.A.F. 2009) (citing United States v. Lundy, 63
M.J. 299, 305 (C.A.A.F. 2006)). “If such a remedy does not cure the defect in a
material term, the plea must be withdrawn and the findings and sentence set aside.”
Id. at 59 (citing United States v. Perron, 58 M.J. 78, 85–86 (C.A.A.F. 2003)).

        Appellant’s stated preference in this case is not to withdraw from his plea, but
rather to have his case returned to the convening authority for a new SJAR and
action for “the specific performance to which he was lawfully entitled at the time of
trial.” (Appellant’s Br. 19). The government states in its brief that it does not
oppose a remand of this case for a new SJAR and action and believes that the
convening authority can approve a sentence which will provide the specific
performance appellant seeks. We agree under the facts of this case that the
convening authority can take action to provide appellant with that for which he
bargained, particularly since appellant does not take issue with belated payments.
See Lundy, 63 M.J. at 304. Therefore, we will send the case back for a new SJAR
and action, the relief suggested by both parties to remedy this situation. In doing so,
we note that this decision provides a renewed opportunity for appellant to request a
deferral of his reduction in rank and automatic forfeitures.

2
 The effective date of the waiver was on the date of action, and therefore, appellant
was not entitled to receive any pay or allowances from the effective date of the
sentence (fourteen days after the 9 February 2011 trial, see UCMJ art. 57(a)(1)(A))
until the convening authority’s approved waiver on 13 June 2011. Moreover, pay
and allowances not subject to forfeiture would have been payable to appellant, but
waived automatic forfeitures are paid to appellant’s dependents. UCMJ art. 58b.(b).




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ANTWI—ARMY 20110112

                                  CONCLUSION

       The convening authority’s initial action, dated 13 June 2011, is set aside. The
record of trial is returned to The Judge Advocate General for a new SJAR and a new
action by the same or different convening authority in accordance with Article 60(c)-
(e), UCMJ. In addition, appellant will receive assistance from a new defense
counsel.


                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




                                       MALCOLM H.
                                       MALCOLM     H. SQUIRES,
                                                      SQUIRES, JR.
                                                               JR.
                                       Clerk of Court
                                       Clerk of Court




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