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

                              No. 201600039
                          _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.
                         CAMERON S. DEANE
                   Sergeant (E-5), U.S. Marine Corps
                               Appellant
                        _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

    Military Judge: Commander Marcus N. Fulton, JAGC, USN.
  For Appellant: Lieutenant Commander Paul D. Jenkins, JAGC,
                                USN.
 For Appellee: Lieutenant Commander Justin C. Henderson, JAGC,
                                USN.
                      _________________________

                        Decided 15 December 2016
                         _________________________

Before P ALMER , M ARKS , and H UTCHISON , Appellate Military Judges
                      _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                     _________________________

   PALMER, Chief Judge:
    A military judge sitting as a special court-martial convicted the appellant,
pursuant to his pleas, of one specification of dereliction of duty, two
specifications of signing a false official statement, and two specifications of
larceny of government property of a value of more than $500.00, in violation
of Articles 92, 107, and 121, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 892, 907, and 921 (2012). The military judge sentenced the
appellant to 165 days of confinement, reduction to pay grade E-1, and a bad-
conduct discharge. The convening authority (CA) approved the sentence as
adjudged.
                       United States v. Deane, No. 201600039


    The appellant raises a single assignment of error arguing the government
has not complied with a material provision of his pretrial agreement because
it continued to recoup the appellant’s pay far beyond the agreed restitution
amount stated therein. Consequently, the appellant now argues he was
denied the benefit of his bargained for agreement. We agree.
                              I. BACKGROUND
   The appellant was married and receiving Basic Allowance for Housing
and Family Separation Allowance based upon his marital status. The
appellant divorced in October 2010 but failed to inform his unit until
February 2014. During this period the appellant twice signed official
documents falsely indicating he was still married. Thus, according to the
Defense Finance and Accounting Services (DFAS), for approximately four
years the appellant unlawfully received $77,082.26 in additional pay. This
misconduct ultimately resulted in the appellant’s court-martial.
   At trial the appellant pleaded guilty to the charged offenses pursuant to a
pretrial agreement. Paragraph 8(h) of the pretrial agreement states,
         [t]he Accused and [CA] agree that the amount of restitution
         paid by the Accused as of the date of trial . . . in the amount of
         $35,706.70 . . . shall constitute payment in full of and therefore
         satisfy any debt or monetary obligation owed by the Accused to
         the United States Government as directly pertaining to the
         misconduct forming the bases of the Charges and specifications
         to which the Accused is pleading guilty. The [CA] further
         agrees to submit, as necessary, any documentation and/or
         endorsements thereon to the appropriate authorities to ensure
         that the full intent and effect of this provision is upheld.1
    While discussing this agreement’s provisions at trial, and in response to
the military judge’s questions, the trial counsel explained, “pursuant to this
[pretrial agreement] and upon completion of this special court-martial, the
appropriate authorities will take that provision and . . . reestablish the debt
as $35,706.70 [a]nd, therefore, mark it as paid in full . . . .”2 Although the
appellant paid the full amount of $35,706.70 prior to trial, DFAS continued to
garnish the appellant’s pay seeking to ultimately recoup $77,082.26.3 To date,
the CA’s efforts to convince Headquarters, U.S. Marine Corps to reestablish



   1   Appellate Exhibit (AE) I at 4 (emphasis added).
   2   Record of Trial at 110.
   3Appellant’s Brief and Assignment of Error of 11 Apr 2016 at 2 and Defense
Exhibit A at 2.

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                        United States v. Deane, No. 201600039


the debt to comport with the appellant’s pretrial agreement have been
unsuccessful.4
                                   II. DISCUSSION
       The appellant argues that the government has denied him the benefit
of his pretrial agreement by seeking to recoup $41,375.56 more than the
agreed restitution. A pretrial agreement is a contract between the accused
and the CA; thus courts “look to the basic principles of contract law when
interpreting pretrial agreements.” United States v. Lundy, 63 M.J. 299, 301
(C.A.A.F. 2006) (citing United States v. Acevedo, 50 M.J. 169, 172 (C.A.A.F.
1999)). The interpretation of pretrial agreements is a question of law, which
we review de novo. Id. Whether the government has complied with the
material terms of the contract is a mixed question of law and fact. Id.
    When an accused pleads guilty to an offense “in reliance on promises
made by the Government in a pretrial agreement, the voluntariness of that
plea depends on the fulfillment of those promises by the Government.” United
States v. Perron, 58 M.J. 78, 82 (C.A.A.F. 2003) (citing Santobello v. New
York, 404 U.S. 257, 262 (1971)). When the government does not perform those
promises, “the critical issue is whether the misunderstanding or
nonperformance relates to ‘the material terms of the agreement.’” United
States v. Smith, 56 M.J. 271, 273 (C.A.A.F. 2002) (quoting RULE FOR COURTS-
MARTIAL 910(h)(3), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2000
ed.). The appellant bears the burden of establishing that the term is material
and that the circumstances establish governmental noncompliance. Lundy,
63 M.J. at 302.
    The appellant argues, and the government concedes, that paragraph 8(h)
constitutes a material term of the pretrial agreement.5 When determining
whether a provision is material, courts “look not only to the terms of the
agreement . . . 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; see
also United States v. Smead, 60 M.J. 755, 757 (N-M. Ct. Crim. App. 2004).
Paragraph 8(h), a specially negotiated provision, states that the agreed
amount shall “constitute payment in full[.]”6 This was the understanding of
both parties and was referenced as such during the trial.7 Furthermore, the
government concedes that it did not comply with Paragraph 8(h), and

   4   Appellee’s Consent Motion to Attach of 19 Jul 2016, Appendix 2 at 1.
   5   Appellant’s Brief at 6 and Government Answer of 11 Jul 2016 at 5-6.
   6   AE I at 4.
   7   Record at 110.



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                        United States v. Deane, No. 201600039


accordingly, the government recognizes that its “nonperformance relates to
the ‘material terms of the agreement.’” Smith, 56 M.J. at 273 (citation
omitted).
    Having found that the Government’s nonperformance related to a
material term of the PTA, we therefore also find the appellant’s pleas to be
improvident. Although we may “determine whether some appropriate
alternative relief is available as an adequate means of providing [the]
appellant with the benefit of his bargain[,]” we “cannot impose such relief in
the absence of the appellant’s consent.” Perron, 58 M.J. at 83-84 (citations
and internal quotation marks omitted). Here, we lack authority to order the
alternate relief that the appellant requests—to compel the CA to mark the
debt as “paid-in-full” retroactive to the date of trial.8 Instead, we grant his
remaining request by setting aside his conviction.
                                  III. CONCLUSION
   The guilty findings and sentence are set aside. The record is returned to
the Judge Advocate General for remand to an appropriate convening
authority with a rehearing authorized.
   Senior Judge MARKS and Judge HUTCHISON concur.


                                   For the Court




                                   R.H. TROIDL
                                   Clerk of Court




   8   Appellant’s Brief at 7.

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