                         UNITED STATES, Appellee

                                         v.

          David D. TATE, Hospital Corpsman Second Class
                       U.S. Navy, Appellant

                                  No. 06-0291
                        Crim. App. No. 200201202

       United States Court of Appeals for the Armed Forces

                         Argued October 25, 2006

                        Decided January 16, 2007

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

STUCKY and RYAN, JJ., did not participate.


                                     Counsel


For Appellant: Lieutenant Brian L. Mizer, JAGC, USN (argued);
Lieutenant Commander Jason S. Grover, JAGC, USN (on brief).


For Appellee: Major Brian K. Keller, USMC (argued); Commander
P. C. LeBlanc, JAGC, USN, and Lieutenant Jessica M. Hudson,
JAGC, USN (on brief); Commander Charles N. Purnell, JAGC, USN.


Military Judge:    K. B. Martin


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Tate, No. 06-0291/NA


    Chief Judge EFFRON delivered the opinion of the Court.

    A general court-martial composed of a military judge sitting

alone convicted Appellant, pursuant to his pleas, of conspiracy

to obstruct justice, false official statement (three

specifications), premeditated murder, sodomy, obstruction of

justice (five specifications), and adultery, in violation of

Articles 81, 107, 118, 125, and 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 881, 907, 918, 925, 934 (2000),

respectively.   The adjudged and approved sentence included a

dishonorable discharge, confinement for life without parole,

forfeiture of all pay and allowances, and reduction to the

lowest enlisted grade.   The convening authority suspended

confinement in excess of fifty years for twelve months pursuant

to a pretrial agreement.   The Navy-Marine Corps Court of

Criminal Appeals affirmed in an unpublished opinion.    United

States v. Tate, No. NMCCA 200201202, 2005 CCA LEXIS 356, at *16

2005 WL 3111979, at *6 (N-M. Ct. Crim. App. Nov. 21, 2005).

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

issue:

     WHETHER THE PRETRIAL AGREEMENT VIOLATED RULE FOR
     COURTS-MARTIAL 705(c) BY DENYING APPELLANT THE
     POST-TRIAL RIGHT TO SEEK CLEMENCY AND PAROLE.

     For the reasons set forth below, we conclude that the

pretrial agreement included conditions not permitted by Rule for




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Courts-Martial (R.C.M.) 705(c).    Our decretal paragraph orders

appropriate corrective action.



                           I.   BACKGROUND

             A.   POST-TRIAL AND APPELLATE PROCEEDINGS

     The military justice system is administered primarily by

military commanders empowered to convene courts-martial, who are

dispersed throughout the United States and numerous foreign

countries.   Pretrial agreements are made between those convening

authorities and servicemembers accused of offenses.

     In the UCMJ, Congress sought to balance the relatively

autonomous power of convening authorities by centralizing review

and clemency functions in the appellate courts and senior

executive branch officials.     See H.R. Rep. No. 81-491, at 3-8

(1949); S. Rep. No. 81-486, at 1-3 (1949), reprinted in 1950

U.S.C.C.A.N. 2222, 2222-24; 96 Cong. Rec. S1362-63 (Feb. 2,

1950) (statement of Sen. Estes Kefauver); see also Waldemar A.

Solf, Appellate Review –- New Trial, in Legal and Legislative

Basis, Manual for Courts-Martial United States 146-47 (1951).

     Under Subchapter IX of the UCMJ, entitled “Post-trial

Procedure and Review of Courts-Martial,” convening authorities

conduct the initial review of courts-martial.    Article 60, UCMJ,

10 U.S.C. § 860 (2000).   The responsibility for review then

moves to centralized authorities, the Court of Criminal Appeals,


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this Court, and the Supreme Court, with clemency and parole

responsibilities vested in the service secretaries.    Articles

66, 67, 67a, and 74, UCMJ, 10 U.S.C. §§ 866, 867, 867a, 874

(2000).

     In Article 74, UCMJ, Congress authorized the service

secretaries to exercise “clemency and parole powers as well as

ultimate control of sentence uniformity.”   S. Rep. No. 81-486,

at 31.    The service secretaries administer parole under 10

U.S.C. § 952 (2000) (“Parole”).   The Navy implements these

provisions in various issuances, including Dep’t of the Navy,

Secretary of the Navy Instr. 5815.3J, Department of the Navy

Clemency and Parole Systems (June 12, 2003) [hereinafter

SECNAVINST 5815.3J].    Paragraph 201 of the Instruction states:

     This regulation implements the clemency and parole
     systems authorized by 10 U.S.C. sections 874 and
     952-954. It must be read in a manner that is
     uniform and consistent with good order and
     discipline within the military as defined by the
     UCMJ (10 U.S.C. sec. 801-946), the Manual for
     Courts-Martial, other rules and procedures of the
     Departments of Defense and Navy and, where
     appropriate, enforced by corrections policy
     established by law and regulations implementing 10
     U.S.C. sec. 951 (Military Correctional
     Facilities).

The Instruction further states that it “must also be read in a

manner that promotes uniformity and consistency of application of

military justice as set forth in the Manual for Courts-Martial”

and other regulatory issuances.    Id. at para. 203.

The proceedings of the Navy Clemency and Parole Board are

independent of the authorities that may be exercised by other



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officials under Article 74, UCMJ, and the Instruction provides a

mechanism for coordinating the actions of the Board with other

officials.     SECNAVINST 5815.3J, paras. 101, 414; see Dep’t of the

Navy, Judge Advocate General Instr. 5800.7D, Manual of the Judge

Advocate General (JAGMAN) para. 0158 (Mar. 15, 2004).

                B.   LIMITATIONS ON PRETRIAL AGREEMENTS

     R.C.M. 705(c), which governs the scope of pretrial

agreements, ensures that such agreements will not disturb the

balance established by Congress between the relative

responsibilities of convening authorities and reviewing

authorities.    R.C.M. 705(c) identifies both permissible and

prohibited terms and conditions.       With respect to prohibited

terms, R.C.M. 705(c) states:

     A term or condition in a pretrial agreement shall
     not be enforced if it deprives the accused of:
     the right to counsel; the right to due process;
     the right to challenge the jurisdiction of the
     court-martial; the right to a speedy trial; the
     right to complete sentencing proceedings; the
     complete and effective exercise of post-trial and
     appellate rights.

R.C.M. 705(c)(1)(B) (emphasis added).

     R.C.M. 705(c) identifies certain rights fundamental to the

fair administration of the military justice system that cannot

be bargained away.     See Manual for Courts-Martial, United

States, Analysis of the Rules for Courts-Martial app. 21 at A21-

39 (2005 ed.) and cases cited therein.      The prohibition extends

to terms or conditions concerning certain rights that otherwise


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may be waived during subsequent trial and appellate proceedings,

such as the right to counsel, see Article 27, UCMJ, 10 U.S.C. §

827 (2000); the right to a speedy trial, see Article 33, UCMJ,

10 U.S.C. § 833 (2000); the right to submit post-trial matters

to the convening authority, see Article 60(b)(1), (c)(2), UCMJ,

10 U.S.C. § 860(b)(1), (c)(2) (2000); and the right to certain

forms of appellate review, see Article 61, UCMJ, 10 U.S.C. § 861

(2000).   Cf. United States v. Hernandez, 33 M.J. 145, 148-49

(C.M.A. 1991) (concluding that appellate review may not be

waived before the accused knows the results of the convening

authority’s action on the case).       R.C.M. 705(c) recognizes that

the bargaining relationship between a servicemember and the

convening authority at the pretrial stage is fundamentally

different from the circumstances in which rights may be waived

during trial and post-trial proceedings.

     R.C.M. 705(c)(1)(B), which addresses rights provided under

the UCMJ, does not preclude an agreement to waive rights that

may be waived in collateral or unrelated proceedings.      For

example, as part of a pretrial agreement an accused may agree to

waive an administrative discharge board hearing, as provided in

applicable administrative regulations.      See United States v.

Gansemer, 38 M.J. 340, 342 (C.M.A. 1993).

                C.   APPELLANT’S PRETRIAL AGREEMENT




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     Appellant and the convening authority entered into a

pretrial agreement.    Appellant agreed to:   (1) plead guilty to

all charges; (2) request a trial by military judge alone and

waive his right to trial by members; (3) forego the production,

at government expense, of sentencing witnesses except for

personal family members; (4) begin and complete trial within

specified dates; (5) not object to the prosecution’s sentencing

evidence; and (6) waive both mandatory and discretionary

consideration by the Navy Clemency and Parole Board for a period

of twenty years, ending on July 9, 2019, and decline clemency or

parole if offered during that period.   In return, the convening

authority agreed to:   (1) dismiss one of the charges; (2)

provide a non-binding recommendation that Appellant serve his

confinement at the United States Disciplinary Barracks at Fort

Leavenworth, Kansas; (3) suspend any period of confinement in

excess of fifty years; and (4) defer and suspend adjudged and

automatic forfeitures for specified periods, and waive automatic

forfeitures for six months for the benefit of his sons.

     Appellant complied with the terms of agreement at trial and

received a sentence that included confinement for life without

parole.   The convening authority, pursuant the pretrial

agreement, suspended the forfeitures and suspended the period of

confinement in excess of fifty years.




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                            II.   DISCUSSION

          A.   THE TERMS OF THE PRETRIAL AGREEMENT CONCERNING

                          CLEMENCY AND PAROLE

        Whether a condition of a pretrial agreement violates R.C.M.

705(c)(1)(B) is a question of law that this Court reviews de

novo.    See United States v. Best, 61 M.J. 376, 381 (C.A.A.F.

2005).    The granted issue concerns the restrictions in the

pretrial agreement concerning consideration by the Navy Clemency

and Parole Board.     Under the Board’s rules, a person serving

Appellant’s sentence -- confinement for fifty years -- would be

eligible for clemency consideration after five years, and for

parole consideration after ten years.     SECNAVINST 5815.3J,

paras. 403.d(3), 504.a(3).     Under the agreement, Appellant would

not be eligible for either clemency or parole consideration for

twenty years.

        The Court of Criminal Appeals separately addressed:     (1)

the terms of the pretrial agreement that require Appellant to

not accept clemency or parole if offered during the twenty-year

period; and (2) the terms of the pretrial agreement that

preclude Appellant from requesting clemency during that period.

Tate, 2005 CCA LEXIS 356, at *7, 2005 WL 3111979, at *3.        With

respect to the requirement to refuse clemency or parole, the

court held that those terms “are unenforceable as a violation of

public policy, because the convening authority would be usurping


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United States v. Tate, No. 06-0291/NA


the service secretary’s authority and the President’s authority

to exercise their independent discretion in granting clemency.”

2005 CCA LEXIS 356, at *7, 2005 WL 3111979, at *3 (citing United

States v. Thomas, 60 M.J. 521, 529 (N-M. Ct. Crim. App. 2004)).

With respect to the agreement to not request clemency or parole,

the court concluded that the terms were “consistent with public

policy and our own notions of fairness.”   2005 CCA LEXIS 356, at

*7, 2005 WL 3111979, at *3.

     In the present appeal, the Government has not challenged

the decision of the lower court, acting on its own motion, to

strike the terms precluding the Board from considering clemency

or parole.   See 2005 CCA LEXIS 356, at *7-*8, 2005 WL 3111979,

at *3.   Appellant has challenged the decision of the lower court

to sustain the terms precluding Appellant from requesting

clemency or parole.

     The lower court based its decision in the present case, as

in Thomas, on considerations of public policy and fairness.     In

both cases, the court did not discuss R.C.M. 705(c)(1)(B), which

states that a “term or condition in a pretrial agreement shall

not be enforced if it deprives the accused of . . . the complete

and effective exercise of post-trial and appellate rights.”    As

noted in Part I.A., supra, Congress identified greater

uniformity as one of the central goals in enacting the UCMJ;

post-trial and appellate procedures formed a critical element of


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United States v. Tate, No. 06-0291/NA

the structure created by Congress to achieve uniformity; and

Congress viewed the clemency process as the “ultimate control of

sentence uniformity.”    S. Rep. No. 81-486, at 31.   Consistent

with the congressional purposes in enacting the post-trial and

review provisions of the UCMJ, the President, in R.C.M.

705(c)(1)(B), has precluded use of pretrial agreement terms

inconsistent with the complete and effective exercise of post-

trial and appellate rights.    The terms and conditions that would

deprive Appellant of parole and clemency consideration under

generally applicable procedures are unenforceable under R.C.M.

705(c)(1)(B).

     Our decision in this case is confined to the relationship

between pretrial agreements and the availability of clemency or

parole.   In view of the limited scope of our review of programs

for early release from confinement, see United States v. Pena,

64 M.J. ___ (12) (C.A.A.F. 2007), we note that our decision

today does not address the general administration of clemency or

parole proceedings.

                              B.   REMEDY

     By its terms, R.C.M. 705(c)(1)(B) provides that an

impermissible term or condition “shall not be enforced.”    In

some cases, we have concluded that the presence of an

impermissible term requires us to void the entire agreement and

authorize a rehearing.   United States v. Holland, 1 M.J. 58, 60


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United States v. Tate, No. 06-0291/NA

(C.M.A. 1975).   In other cases, we have concluded that an

impermissible term may be treated as null without impairing the

remainder of the agreement.   See, e.g., United States v.

McLaughlin, 50 M.J. 217, 218-19 (C.A.A.F. 1999).     In the present

case, Appellant seeks only a ruling that would strike the

impermissible terms from the agreement.     The Government, during

oral argument, agreed that if we were to hold that the

challenged provisions were impermissible, those provisions could

be stricken and the remainder of the agreement and the plea

could be sustained.   In view of the agreement of the parties,

and under the particular facts and circumstances of this case,

we agree that the terms and conditions at issue may be stricken

without impairing the balance of the agreement and the plea.



                           IV.   DECISION

     Paragraphs 11(b) and 11(c) of the pretrial agreement

between Appellant and the convening authority are void.     The

balance of the agreement may be enforced.    The decision of the

United States Navy-Marine Corps Court of Criminal Appeals is

affirmed as to the findings and the sentence.




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