                         UNITED STATES, Appellee

                                         v.

                    Christopher E. PARKER, Private
                     U.S. Marine Corps, Appellant

                                  No. 05-0072
                        Crim. App. No. 200102191

       United States Court of Appeals for the Armed Forces

                         Argued October 11, 2005

                          Decided March 14, 2006

EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD and BAKER, JJ., joined. ERDMANN, J., filed a
dissenting opinion, in which GIERKE, C.J., joined.


                                     Counsel


For Appellant:    Captain Rolando R. Sanchez, USMC (argued).


For Appellee: Lieutenant TyQuili R. Booker, JAGC, USN (argued);
Commander Charles N. Purnell, JAGC, USN, and Major Kevin C.
Harris, USMC (on brief); Colonel William K. Lietzau, USMC.



Military Judge:    Kenneth B. Martin




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Parker, No. 05-0072/MC


    Judge EFFRON delivered the opinion of the Court.

    Appellant was charged with unauthorized absence and missing

movement by design in violation of Articles 86 and 87, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. §§ 886, 887 (2000).

At a special court-martial composed of a military judge sitting

alone, Appellant entered pleas of guilty to unauthorized absence

and missing movement by neglect.       The military judge accepted

the plea to the unauthorized absence charge, but he determined

that the plea to the missing movement charge was improvident.

Appellant subsequently contested the missing movement charge.

After considering evidence from both parties, the military judge

found Appellant guilty of missing movement by design.      Pursuant

to Appellant’s earlier plea, the military judge also found

Appellant guilty of unauthorized absence.      In the findings, the

military judge made minor modifications that are not pertinent

to the present appeal.   The military judge sentenced Appellant

to a bad-conduct discharge and confinement for five months.

    The convening authority approved the sentence and remitted

confinement in excess of forty-four days.      The United States

Navy-Marine Corps Court of Criminal Appeals affirmed the finding

of unauthorized absence, reduced the finding of missing movement

through design to missing movement through neglect, and affirmed

a sentence of a bad-conduct discharge and thirty days of




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United States v. Parker, No. 05-0072/MC


confinement.    United States v. Parker, 60 M.J. 666 (N-M. Ct.

Crim. App. 2004).

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

issue:

           WHETHER THE LOWER COURT ERRED WHEN IT
           REFUSED TO ENFORCE THE PRETRIAL AGREEMENT’S
           PROVISION TO SUSPEND THE BAD-CONDUCT
           DISCHARGE.

For the reasons discussed below, we affirm.



                            I.   BACKGROUND

               A. PLEA INQUIRIES AND PRETRIAL AGREEMENTS

     Under United States v. Care, 18 C.M.A. 535, 541, 40 C.M.R.

247, 253 (1969), and its progeny, there are specific

requirements governing guilty pleas in the military justice

system.   Prior to accepting a guilty plea, the military judge

must provide detailed advice to the accused and ensure that the

accused understands the meaning and effect of the plea.        Rule

for Courts-Martial (R.C.M.) 910(c).     The military judge may not

accept a plea of guilty without addressing the accused

personally and determining that the plea is voluntary.        R.C.M.

910(d).   In addition, the military judge may not accept a plea

of guilty without questioning the accused and ensuring that

there is a factual basis for the plea.        Id.   As noted in the

R.C.M. 910(d) Discussion, “the accused must admit every element



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United States v. Parker, No. 05-0072/MC


of the offense(s) to which the accused pleaded guilty.”   The

R.C.M. 910(d) Discussion also states:   “The accused need not

describe from personal recollection all the circumstances

necessary to establish a factual basis for the plea.

Nevertheless the accused must be convinced of, and be able to

describe all the facts necessary to establish guilt.”   The

decision of a military judge to reject a guilty plea will not be

overturned unless it is arbitrary.    United States v. Penister,

25 M.J. 148, 152 (C.M.A. 1987) (“[A] judge may err on the side

of caution and not accept a guilty plea when there is any

question as to its providence.”).

     An accused and the convening authority may enter into a

pretrial agreement, subject to R.C.M. 705.   Under the rule, for

example, an accused may agree to plead guilty to one or more

charges and specifications, and the convening authority may

agree to limit, suspend, or mitigate all or portions of the

sentence.   See, e.g., R.C.M. 705(b)(1); R.C.M. 705(b)(2)(E);

R.C.M. 705(b)(2)(E) Discussion.   When there is a plea agreement,

the military judge must ensure that the accused understands the

agreement, that any unclear terms are clarified, and that all

parties agree to the terms of the agreement.   R.C.M. 910(f);

R.C.M. 910(h)(3); R.C.M. 910(f)(4) Discussion.

     An accused may withdraw from a pretrial agreement at any

time, subject to the rules governing guilty pleas and


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United States v. Parker, No. 05-0072/MC


confessional stipulations.   See R.C.M. 705(d)(4)(A).   After

trial, and prior to the convening authority’s action, the

accused may initiate a modification of the pretrial agreement,

so long as the accused has the assistance of counsel, the

modification is the product of a fully informed and considered

decision, and it is not the product of a coercive atmosphere.

United States v. Pilkington, 51 M.J. 415, 416 (C.A.A.F. 1999).

     The convening authority may withdraw from a pretrial

agreement under four specified circumstances:   (1) “at any time

before the accused begins performance of promises contained in

the agreement”; (2) “upon the failure by the accused to fulfill

any material promise or condition in the agreement”; (3) “when

inquiry by the military judge discloses a disagreement as to a

material term in the agreement”; and (4) “if findings are set

aside because a plea of guilty entered pursuant to the agreement

is held improvident on appellate review.”   R.C.M. 705(d)(4)(B).

         B. THE PRETRIAL AGREEMENT BETWEEN APPELLANT AND
                     THE CONVENING AUTHORITY

     The charged offenses involved two related matters:     (1)

Appellant’s unauthorized absence of 134 days; and (2)

Appellant’s missing the deployment of his unit to Okinawa by

“design” on a specified day within that period.   Appellant and

the convening authority entered into a pretrial agreement that

expressly provided that “[a]ll provisions of this Agreement are



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United States v. Parker, No. 05-0072/MC


material.”   Appellant agreed to plead guilty to the charged

unauthorized absence and to a lesser offense of missing movement

through neglect.   In return, the convening authority agreed to:

(1) suspend a bad-conduct discharge, if adjudged; and (2)

suspend any confinement in excess of thirty days, if adjudged.

In the agreement, Appellant expressly stated:      “I understand

that if my guilty pleas do not remain in effect for any reason

through the announcement of the sentence, then the convening

authority may withdraw from this Agreement.”

                       C. THE PROVIDENCE INQUIRY

     Consistent with the pretrial agreement, Appellant entered

pleas of guilty at trial to the unauthorized absence charge and

to the offense of missing movement by neglect.     The military

judge explained the plea inquiry process to Appellant,

specifically noting:    “If at any time you become confused or

have any questions, stop me and I’ll give you the opportunity to

consult with your attorney.”

     The military judge conducted an inquiry into the providence

of the pleas, ultimately concluding that Appellant’s plea was

provident as to the unauthorized absence offense.     The inquiry

into unauthorized absence and Appellant’s conviction for that

offense are not at issue in the present appeal.

     With respect to missing movement by neglect, the military

judge provided the following description of the elements:


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United States v. Parker, No. 05-0072/MC


          Number one, that you were required in the
          course of duty to move with 3d Battalion,
          11th Marines, 1st Marine Division.

          The second element is that you knew of the
          prospective movement of the unit.

          The third element is that on or about the
          7th of August 2000, at Marine Air Ground
          Task Force Training Command, Twentynine
          Palms, California, you missed the movement
          of that unit.

          And the fourth element is that you missed
          the movement through neglect.

See Manual for Courts-Martial, United States   pt. IV, para. 11.b

(2005 ed.).   In addition, the military judge offered the

following explanation of certain terms used in the elements:

          The word “movement” as used in this
          specification means a major transfer of a
          unit involving a substantial distance and
          period of time. The word does not include
          practice marches of a short duration and
          distance, nor minor changes in the location
          of a unit.

          In order to plead guilty to this offense,
          you must have actually known of the
          prospective movement that was missed.
          Knowledge of the exact hour, even the exact
          date of the scheduled movement is not
          required. It is sufficient if the
          approximate date was known by you as long as
          there is a causal connection between your
          conduct and the missing of the scheduled
          movement.

          The “term neglect” [sic] means the omission
          to take such measures as are appropriate
          under the circumstances to assure presence
          with an aircraft, unit, or ship at the time
          of the scheduled movement, or doing some act
          without giving attention to its probable


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United States v. Parker, No. 05-0072/MC


          consequences in connection with the
          prospective movement to such a distance as
          would make it likely that the one could not
          return in time for the movement.

See id. para. 11.c.

     Appellant responded affirmatively to the military judge’s

general inquiry as to whether the elements described what he

“did on that occasion.”   In response to the military judge’s

question about knowledge of the movement, Appellant acknowledged

that he had heard from his superior noncommissioned officers

that the unit was going to Okinawa in early August 2000.    The

military judge then sought to determine whether the impending

movement was the subject of official orders communicated to

Appellant or whether he had simply heard barracks rumors:

          MJ: And you knew of the movement, the place
          and time because your NCOs [noncommissioned
          officers] had told you, and that was also
          common knowledge in the battalion?

          ACC: No, sir. I heard it through -- they
          were talking about it, sir. I just over
          heard [sic] it, sir.

          MJ: Well, how did you know they were
          accurate? Lots of people talk about stuff
          all the time and never –- so you just heard
          some rumors that you all might be going to
          Okinawa?

          ACC:   Yes, sir.


     Following Appellant’s acknowledgement that his knowledge of

a possible deployment was the result of “rumors,” the military



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United States v. Parker, No. 05-0072/MC


judge stated:   “Okay.   I’m not going to take his plea.”   After a

brief, thirteen-minute recess, the military judge asked if

defense counsel needed additional time in order to consult with

Appellant.   Defense counsel then requested a continuance, which

the military judge granted.   Defense counsel offered no

objection to the military judge’s plea inquiry or his decision

to not accept the plea.

     During the continuance, Appellant attempted to enter into a

new pretrial agreement with the convening authority based upon

the unauthorized absence charge, but the convening authority

declined to do so.   When the court-martial convened a month

later, the defense did not ask the military judge to reopen the

providence inquiry, nor did the defense otherwise challenge the

military judge’s ruling on providence.    In response to the

military judge’s inquiry about motions, the defense replied that

he had none.

     The military judge asked Appellant whether he understood

that the convening authority was no longer bound by the plea

agreement in view of the prior rejection of the plea.   Appellant

responded in the affirmative.   After noting that Appellant’s

request for a bench trial was based, at least in part, on the

pretrial agreement that was no longer in effect, the military

judge offered Appellant the opportunity to revisit his forum




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United States v. Parker, No. 05-0072/MC

choice.    Appellant reaffirmed his desire for a judge-alone

proceeding.

              D. MISSING MOVEMENT -- THE CONTESTED CHARGE

     The military judge obtained the agreement of both parties

that Appellant’s provident plea to the absence offense would

establish one of the four elements of missing movement -- that

he was not present when his unit deployed.    The military judge

emphasized that the Government would bear the burden of proving

the remaining elements -- that he was required to move with his

unit, that he knew of the prospective movement, and that he

missed the movement by design or neglect.

     Trial on the merits focused primarily on the same concerns

that had been raised in the providence inquiry regarding

Appellant’s awareness of a deployment order.    The prosecution

introduced the testimony of personnel in Appellant’s chain of

command who described the information regarding deployment to

Okinawa that was conveyed to the unit, as well as evidence that

Appellant was present for at least some of those briefings.

     Defense counsel, in his opening statement, expressly set

forth the defense position -- that Appellant “did not have

actual knowledge that the unit was deploying to Okinawa in

August.”   Appellant, who was the primary witness in his own

behalf, testified that he had no recollection of being advised

of a deployment to Okinawa.    He specifically denied that anyone


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United States v. Parker, No. 05-0072/MC

in an official capacity had communicated to him that the unit

was going to Okinawa, including the prosecution’s witnesses from

his chain of command.

        Defense counsel, in his closing statement, contended that

the discussions within the unit amounted to nothing more than

general information about potential deployments, and that

Appellant “did not have actual knowledge” of a specific

deployment.    The prosecution argued in rebuttal that the

military judge, as factfinder, could infer actual knowledge from

circumstantial evidence, particularly the information that had

been made available to the unit.       After making minor changes in

the wording of the charges, the military judge entered findings

of guilty to the contested charge of missing movement by design,

and of the uncontested charge of unauthorized absence.

              E. SENTENCING -- APPELLANT’S FIRST REQUEST
                      FOR A BAD-CONDUCT DISCHARGE

        During the sentencing proceedings, Appellant made a brief

unsworn statement in which he recounted his problems in high

school and in the service.    After acknowledging his problems, he

said:    “I kept on getting in trouble no matter how hard I tried.

So I took it into my own hands and went UA [unauthorized

absence].”    Appellant expressly requested a punitive discharge:

“I’m sorry for the trouble I have caused and respectfully

request a bad-conduct discharge.”      He concluded his statement by



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United States v. Parker, No. 05-0072/MC

noting:    “My attorney has advised me of the negative aspects of

a bad-conduct discharge; however, I still request it.    Thank

you.”    See United States v. Pineda, 54 M.J. 298, 300-01

(C.A.A.F. 2001) (setting forth procedural requirements when an

accused requests a punitive discharge).

        The prosecution made a very brief sentencing argument,

recommending a bad-conduct discharge and “an appropriate amount

of confinement.”    Defense counsel noted Appellant’s request for

a bad-conduct discharge, pointed out that the missing movement

offense took place during the period of unauthorized absence,

and asked the military judge to limit confinement to thirty

days.    The military judge sentenced Appellant to confinement for

five months and a bad-conduct discharge.

     F. APPELLANT’S SECOND REQUEST, SPECIFICALLY ASKING THE
  CONVENING AUTHORITY TO NOT SUSPEND THE BAD-CONDUCT DISCHARGE

        Subsequent to trial, defense counsel submitted a request

for clemency to the convening authority under R.C.M. 1105.       The

request began by reminding the convening authority that

Appellant “went to court with a pretrial agreement that stated

that in return for his pleas of Guilty . . . you agreed to

suspend any discharge and any confinement in excess of 30 days.”

Defense counsel emphasized that the plea had been rejected

because Appellant fulfilled his obligation to the truth during

the providence inquiry:



                                  12
United States v. Parker, No. 05-0072/MC

          [T]he Military Judge would not accept a
          guilty plea to the missing movement charge
          because Pvt [Private] Parker stated that
          although it was common knowledge that the
          unit was going to Okinawa that summer, he
          couldn’t recall ever specifically being told
          that by someone in an official capacity.
          Pvt Parker wanted to plead guilty, but based
          on his memory and what he could honestly
          testify to the judge would not accept his
          plea.

     After recounting the results of trial, defense counsel

urged the convening authority to use the pretrial agreement as

the framework for post-trial action with respect to confinement:

          It is requested that you suspend any
          confinement in excess of 30 days. The
          Defense requests that when considering this
          request for clemency that you take into
          account that this was one of the terms
          agreed to in the original agreement.
          Although you decided to withdraw from the
          agreement when a guilty finding was not
          entered for the missing movement charge, the
          defense urges you to consider that Pvt
          Parker attempted to plead guilty to this
          charge and that it was the military judge
          that refused to accept the plea.

With respect to the bad-conduct discharge, however, defense

counsel implored the convening authority to disregard his prior

agreement to suspend the punitive discharge, emphasizing with

capital letters that his client “does NOT desire his Bad Conduct

Discharge be suspended.”

     The convening authority responded to the defense request by

ordering Appellant’s release from confinement even though the

case had not yet been presented to him for action.   As a result,


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United States v. Parker, No. 05-0072/MC

Appellant’s sentence to confinement was reduced from the five

months adjudged at trial to forty-four days.

    G. APPELLANT’S THIRD REQUEST, REITERATING HIS OPPOSITION TO
                SUSPENSION OF THE BAD-CONDUCT DISCHARGE

     Prior to the convening authority’s formal action on the

findings and sentence, the defense made a further submission to

the convening authority.    After noting that the defense had

previously submitted a clemency request, defense counsel

reiterated Appellant’s opposition to suspension of the adjudged

discharge:

             Since Pvt Parker was released prior to the
             end of his sentence and he does NOT desire
             that his Bad Conduct Discharge be suspended,
             the defense has no request for clemency.

     In accordance with Appellant’s post-trial submissions, the

convening authority approved a sentence that included the

modified period of confinement and an unsuspended bad-conduct

discharge.

              H. REVIEW BY THE COURT OF CRIMINAL APPEALS

      The Court of Criminal Appeals held that the military judge

should have accepted Appellant’s plea in its entirety, on the

grounds that Appellant articulated sufficient facts to support a

plea of guilty to missing movement by neglect.    Parker, 60 M.J.

at 669.   The court substituted a finding of missing movement by

neglect in lieu of the finding of missing movement by design.

Id. at 671.    The court further held that the pretrial agreement


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United States v. Parker, No. 05-0072/MC

should have remained in effect, and it reduced Appellant’s

confinement from forty-four days to thirty days to reflect the

terms of the agreement.    Id. at 669 (citing Penister, 25 M.J. at

153).    Based upon Appellant’s multiple requests for an

unsuspended bad-conduct discharge, the court concluded that the

portion of the pretrial agreement regarding suspending the bad-

conduct discharge was no longer in effect, and declined to

provide further relief.    Id. at 670.

                            II.   DISCUSSION

        Appellant contends in the present appeal that his discharge

should be suspended in accordance with the original pretrial

agreement.    We note that the Government has not appealed the

ruling of the court below with respect to either the

modification of the findings to conform with Appellant’s plea,

or the revision of the confinement portion of the sentence to

conform with the pretrial agreement.     When a party does not

appeal a ruling, the ruling of the lower court normally becomes

the law of the case.    See United States v. Doss, 57 M.J. 182,

185 (C.A.A.F. 2002).    The law-of-the-case doctrine, however, is

a matter of appellate policy, not a binding legal doctrine.

Because the law-of-the-case doctrine is discretionary, it need

not be applied when the lower court’s decision is “clearly

erroneous and would work a manifest injustice.”    Id. at n.*




                                   15
United States v. Parker, No. 05-0072/MC

(citing United States v. Williams, 41 M.J. 134, 135 n.2 (C.M.A.

1994)).

        In the present case, it would be inappropriate to apply the

law-of-the-case doctrine.    With respect to the first prong of

Doss, the ruling of the court below was clearly erroneous.       As

noted in Penister, the military judge has broad discretion to

“err on the side of caution” in deciding whether to accept a

plea.    25 M.J. at 152.   Here, when the military judge perceived

that Appellant was not prepared to agree that his actions

satisfied an element of the offense, he was well within his

discretion in deciding not to accept the plea.

        Contrary to the suggestion of the court below that the

military judge’s action had the effect of “cutting off further

inquiry,” Parker, 60 M.J. at 669, the military judge did not

interrupt Appellant or counsel, nor did he move directly to

enter a plea.    Once the military judge said that he could not

accept the plea in light of Appellant’s responses, he called a

recess.    After the recess, the military judge asked Appellant if

he needed additional time to consult with counsel.    He then

granted defense counsel’s motion for an extended continuance.

These steps provided Appellant with ample opportunity -- if he

was prepared to plead providently -- to request that the

military judge reopen the plea inquiry, but no such request was

forthcoming.


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United States v. Parker, No. 05-0072/MC

     We also note that the lower court:   (1) failed to conduct a

plain error review even though Appellant did not object to the

ruling on providence at trial, see United States v. Powell, 49

M.J. 460, 465 (C.A.A.F. 1998); (2) applied an incorrect de novo

standard of review rather than determining whether the military

judge’s decision was arbitrary under Penister; and (3)

improperly conducted a legal sufficiency analysis in lieu of

considering whether the military judge had a reasonable basis

for concluding that Appellant had not conceded the elements

pertaining to actual knowledge of an official deployment

decision.   See United States v. Hardeman, 59 M.J. 389, 392

(C.A.A.F. 2004).

     With respect to the manifest injustice prong of Doss, we

focus on the specific context of this case.   We first consider

whether the Government had an incentive to appeal, and we then

consider the relationship of the remedy sought to the

circumstances of the case.

     In the present case, the Government had little incentive to

appeal the erroneous aspects of the lower court’s decision.    The

Government emerged from the proceedings below with a conviction

for a closely related offense -- missing movement by neglect --

and all of the adjudged sentence except for fourteen days of

confinement, a period that Appellant had already served.   If we

were to apply the law-of-the-case doctrine here, we would be


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United States v. Parker, No. 05-0072/MC

sending the Government a message that an appeal should be lodged

in every case where the lower court has articulated an incorrect

legal standard -- no matter how incidental the error from the

Government’s perspective, and no matter how insignificant the

result -- lest the Government be precluded from noting that

error in the event the defense should appeal.   Given the

discretionary nature of the law-of-the-case doctrine, we decline

to apply it in a manner that would be so contrary to the sound

administration of justice.

     Applying the law-of-the-case doctrine would be manifestly

unjust under the circumstances of the present appeal.   First, we

note that the military judge correctly advised the parties that

the pretrial agreement no longer was in effect.   The parties

agreed on the record, recognizing that the plain text of the

agreement supported the military judge’s position.

     Second, we take into account Appellant’s express request

that the convening authority not grant the relief he now seeks.

In contrast to the court below, Parker, 60 M.J. at 670, our

focus here is not on whether Appellant withdrew from the

agreement, but whether we should exercise our discretion in

applying the law of the case to provide Appellant with the

relief that he repeatedly and expressly rejected.    Appellant

specifically requested a sentence at trial that included a bad-

conduct discharge, even though he was informed of the adverse


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United States v. Parker, No. 05-0072/MC

consequences of a punitive separation.    The military judge

granted his request.    After trial, defense counsel referenced

the pretrial agreement and -- expressly and emphatically --

stated that Appellant did not want the convening authority to

suspend the adjudged bad-conduct discharge.    After the convening

authority granted clemency on confinement, Appellant made a

further submission, reiterating his desire for an unsuspended

bad-conduct discharge.    The convening authority granted his

request.

        Appellant now contends that we should disregard his post-

trial requests for an unsuspended discharge because they were

the product of an adverse tactical situation created by the loss

of his pretrial agreement when the military judge rejected his

plea.    Appellant suggests that in the face of an adjudged

sentence to five months of confinement, as opposed to the thirty

days of confinement provided for in the pretrial agreement, the

defense made a tactical choice.    The defense implies that

Appellant chose to not request a suspended punitive discharge in

order to focus the convening authority’s attention on the issue

of confinement.

        The record expressly refutes Appellant’s suggestion that

Appellant’s request for a punitive discharge was the product of

a tactical decision.    Six months prior to the convening

authority’s action on the sentence, the convening authority


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United States v. Parker, No. 05-0072/MC

ordered Appellant’s release from confinement, and remitted the

balance of the adjudged sentence to confinement.   A month prior

to the convening authority’s action -- when confinement was no

longer at issue -- defense counsel made a further submission to

the convening authority reiterating in capital letters that

“Appellant does NOT desire that his Bad Conduct Discharge be

suspended.”   At that point, only the discharge was at issue, so

there was no tactical reason for Appellant to insist that the

convening authority disregard the pretrial agreement’s provision

for suspension of a punitive discharge.   The defense submission,

however, unequivocally stated that “the defense has no request

for clemency.”

     This case does not involve a claim that these choices were

the product of ineffective assistance of counsel or that these

choices were not made voluntarily by Appellant.    See Pilkington,

51 M.J. at 416.   The military judge’s decision did not make it

necessary for Appellant to take the unusual step of requesting

that his sentence include a punitive discharge.    More important,

the plea decision did not preclude Appellant from asking the

convening authority to provide the relief set forth in the

pretrial agreement by suspending the punitive discharge,

particularly after his release from confinement.

     Applying Doss, we decline to apply the law-of-the-case

doctrine where the Government had little incentive to appeal,


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United States v. Parker, No. 05-0072/MC

where the decision of the court below was clearly erroneous, and

where reliance on the doctrine would permit Appellant to benefit

from that erroneous ruling and require a convening authority to

provide Appellant with the very relief that he had rejected on

numerous occasions.

     The pretrial agreement between Appellant and the convening

authority expressly provided that the convening authority could

withdraw from the agreement if Appellant’s plea did not remain

in effect “for any reason.”   The military judge ruled that

Appellant’s plea was improvident, a ruling well within the range

of his discretion.    Under these circumstances, the convening

authority acted within the terms of agreement when he withdrew

from it.   Appellant is not entitled to enforcement of the

agreement.



                           III.   DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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United States v. Parker, No. 05-0072/MC


     ERDMANN, Judge, with whom GIERKE, Chief Judge, joins

(dissenting):

     The majority opinion finds that the United States Navy-

Marine Corps Court of Criminal Appeals erred in reversing the

military judge’s decision to reject Parker’s guilty plea to the

charge of missing a movement by neglect.    The majority goes on

to find that Parker was not entitled to the benefit of his

pretrial agreement because he specifically requested an

unsuspended bad-conduct discharge.1    Because I find that the

lower court’s ruling is the law of the case and that Parker is

entitled to the benefit of his bargain, I respectfully dissent.

                           BACKGROUND

     This issue arose when Parker attempted to plead guilty

pursuant to a pretrial agreement.     Under the pretrial agreement,

the convening authority agreed to suspend any bad-conduct

discharge and any confinement in excess of thirty days.    After

questioning Parker during the providence inquiry, as required by

Rule for Courts-Martial (R.C.M.) 910 and United States v. Care,

18 C.M.A. 535, 40 C.M.R. 247 (1969), the military judge rejected

Parker’s plea because he found insufficient direct evidence of

1
  I am unsure why the majority reaches this issue based on their
conclusion that the military judge did not err in rejecting
Parker’s plea. If, as the majority finds, the plea was properly
rejected and there is no pretrial agreement in existence, then
there is nothing for Parker to enforce. As it is unnecessary to
the majority’s decision, any discussion in the majority opinion
about a pretrial agreement is dicta.
United States v. Parker, No. 05-0072/MC


Parker’s actual knowledge concerning the movement to satisfy the

requirements of a missing movement charge under Article 87,

Uniform Code of Military Justice, 10 U.S.C. § 887 (2000).    The

court then granted the defense’s request for a continuance.

During the intervening period, the Government withdrew from the

pretrial agreement thereby rendering the agreement and its terms

void.    When the case went back to trial, there was no pretrial

agreement in effect.

        At trial Parker took the stand and gave the same testimony

he had given when questioned during the initial providence

inquiry.    Trial counsel argued during his closing argument that

Parker’s actual knowledge of the movement could be proven by

circumstantial evidence, including Parker’s testimony that the

upcoming movement was “common knowledge” throughout his unit.

Ironically, the military judge then found Parker guilty of the

greater offense (missing movement by design) based on the same

evidence that he found insufficient during the plea inquiry to

establish a lesser included offense (missing movement by

neglect).    Parker was sentenced to a bad-conduct discharge and

five months of confinement.

        On appeal, the Court of Criminal Appeals found that the

military judge erred in refusing to accept Parker’s plea.    The

lower court held, in reliance on United States v. Penister, 25

M.J. 148 (C.M.A. 1987), that “the military judge’s erroneous


                                   2
United States v. Parker, No. 05-0072/MC


rejection of the guilty plea was not a ‘failure of the accused’

to fulfill any material promise or condition in the agreement.”

United States v. Parker, 60 M.J. 666, 669 (N.M. Ct. Crim. App.

2004).   Therefore, R.C.M. 705(d)(4)(B) did not allow the

convening authority to withdraw from the pretrial agreement.

Despite this ruling, the lower court declined to return Parker

to his original position under the pretrial agreement.   The

court concluded that Parker’s subsequent request in his unsworn

statement and in post-trial filings for an unsuspended bad-

conduct discharge “was tantamount to withdrawal from that

specific provision of the original pretrial agreement, or in the

alternative, at least constituted a request to modify that term

of the agreement.”   Id. at 670.

     Parker petitioned this court for review of the lower

court’s refusal to grant the remedy he sought.   The Government

did not certify any issues for appeal.    In particular, the

Government did not certify an issue concerning the lower court’s

conclusion that the military judge erred by rejecting Parker’s

guilty plea.   We granted review of Parker’s assigned issue as to

whether he should have received the benefit of his pretrial

agreement once the Court of Criminal Appeals found error by the

military judge.   The majority opinion now overturns the Court of

Criminal Appeals’ decision based upon its conclusion that the

lower court erred when it held that the military judge


                                   3
United States v. Parker, No. 05-0072/MC


erroneously rejected Parker’s plea –- an issue that was not

properly raised before this court.

                           DISCUSSION

I.   Error By The Military Judge and The Law of The Case

Doctrine

     The majority finds that the Court of Criminal Appeal’s

decision that the military judge erred was clearly erroneous

because the military judge was “well within his discretion in

deciding not to accept the plea.”    As noted by the majority, the

Government did not appeal the ruling of the court below.    We

have previously held that where the correctness of a ruling by

the Court of Criminal Appeals has not been challenged by the

appellant or by certification by the Judge Advocate General

(TJAG), “we will treat it as the law of th[e] case.”   United

States v. Grooters, 39 M.J. 269, 272-73 (C.M.A. 1994).     The

ruling of the lower court becomes binding on the parties.

United States v. Sales, 22 M.J. 305, 307 (C.M.A. 1986).     The

ruling will not be reconsidered by this court unless “the lower

court’s decision is ‘clearly erroneous and would work a manifest

injustice’ if the parties were bound by it.”   United States v.

Doss, 57 M.J. 182, 185 n.* (C.A.A.F. 2002).

     The majority states that since the law-of-the-case doctrine

is a discretionary doctrine, they will decline to apply it when

that application would be contrary to the sound administration


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United States v. Parker, No. 05-0072/MC


of justice.   As noted, prior to this decision, the standard for

applying the law-of-the-case doctrine was whether it was

“clearly erroneous and would work a manifest injustice.”   Id.

In reaching this finding the majority seemingly abandons that

standard and fails to recognize that establishing manifest

injustice is a heavy burden and can only be proven in the most

unusual of cases.   See, e.g., United States v. Moran, 393 F.3d

1, 8 (1st Cir. 2004) (“[A] litigant seeking to fit within [the]

confines [of the manifest injustice exception] must negotiate a

steep uphill climb.”); Ellis v. United States, 313 F.3d 636, 648

(1st Cir. 2002) (“[A] finding of manifest injustice requires a

definite and firm conviction that a prior ruling on a material

matter is unreasonable or obviously wrong.”).   It is difficult

to find manifest injustice where the proper remedy2 places the

Government and Parker in exactly the same position they had

voluntarily agreed to prior to the military judge’s rejection of

the plea.

     Contrary to the conclusion of the majority, there is no

manifest injustice here.   The Government had every opportunity

to certify the Court of Criminal Appeals’ finding of error by

the military judge as an issue for appeal.   Counsel for the



2
 Recognizing the Court of Criminal Appeal’s reversal of the
military judge as the “law-of-the-case”, then reinstating the
pretrial agreement is the proper remedy.

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United States v. Parker, No. 05-0072/MC


Government admitted at oral argument that the Government made a

conscious decision not to certify this issue for appeal.

In addition, the Government first signaled its intent to argue

that the military judge erred in a citation of supplemental

authority submitted only five days prior to oral argument.3   The

Government, fully aware of this potential issue, made the

conscious decision not to appeal the lower court’s decision and

failed even to raise the issue in its briefs.4   These last minute

tactics effectively blindsided both the opposing party and the

court.

     As the Government made a tactical decision to defend

against Parker’s claims rather than certifying any of its own,

the decision of the Court of Criminal Appeals to overturn the

military judge’s refusal to accept Parker’s plea is the law of

the case.   See United States v. Simmons, 59 M.J. 485, 488

3
  On October 6, 2005 the Government, for the first time,
submitted authority consisting of four cases which addressed the
law-of-the-case doctrine and stated that the “Government will
address the cases above, and will argue that this Court is not
bound by the NMCCA’s decision that the military judge abused his
discretion by rejecting appellant’s plea of guilty to missing a
movement.” Submission of additional authority is appropriate to
direct the court’s attention to authority relevant to granted
issues, not to introduce new appellate issues.
4
  The majority opinion exaggerates the lack of an incentive for
the Government to appeal as the Government has certified issues
for appeal to this court in cases where they have prevailed at
the lower court. See United States v. Long, 61 M.J. 326
(C.A.A.F. 2005) (certificate for review filed). Moreover, by
adopting a subjective “lack of incentive” standard, the majority
removes any incentive the Government might have in the future to
appeal or certify an issue for review in a timely manner.

                                 6
United States v. Parker, No. 05-0072/MC


(C.A.A.F. 2004) (finding no manifest injustice where the

Government did not certify any challenge to the Court of

Criminal Appeals’ ruling); United States v. Kreutzer, 61 M.J.

293, 295 n.2 (C.A.A.F. 2005) (noting that lower court’s ruling

is the law of the case where the TJAG has the opportunity to

bring the lower court’s ruling before this court and chooses not

to do so).   By adopting “contrary to the sound administration of

justice” and “lack of incentive” standards and finding that the

law of the case doctrine does not apply in this case, the

majority has significantly altered, if not eliminated, that

doctrine and the “manifest injustice” standard from our

jurisprudence.   The new standard opens the door for the

Government, at the last stages of the appellate process, to

raise issues that the appellant and this court had thought were

resolved at the lower court.   This is not a result that I can

accept or endorse.

II.   Alternate Solution

      Rather than eviscerate the law-of-the-case doctrine, a

better approach is to address the underlying rule of procedure

to ensure that both parties have the opportunity to

appropriately raise pertinent issues in a timely manner.

Consideration should be given to revising C.A.A.F. R. 19(b).5


5
  United States Court of Appeals for the Armed Forces, Rules of
Practice and Procedure (as amended through October 1, 2004).

                                 7
United States v. Parker, No. 05-0072/MC


Under C.A.A.F. R. 19(b), the Government has thirty days in which

to certify an issue to this court while under C.A.A.F. R. 19(a),

an appellant has sixty days in which to petition for a grant of

review.   In many cases a judgment or order may be favorable to

the Government on one claim or issue and unfavorable on another.

To avoid further litigation the Government may be content to

accept the favorable portion of the ruling and live with the

unfavorable portion.   If this court subsequently grants one or

more of an appellant’s issues, the government is not allowed to

raise new issues unless the lower court’s decision is “clearly

erroneous and would work a manifest injustice” if the parties

were bound to it.   Doss, 57 M.J. at 185 n.*.

     If the Government were provided with the right to

essentially cross-appeal from granted issues, Government counsel

would not need to peremptorily certify issues in split decision

cases to protect itself against a possible appeal by the

defendant.   I therefore recommend that C.A.A.F. R. 19(b) be

revised to allow that a certificate for review shall be filed

with the court no later than thirty days from the date of the

decision of the Court of Criminal Appeals or thirty days from

the date on which this court grants review of an issue raised by

an appellant, whichever is later.




                                 8
United States v. Parker, No. 05-0072/MC


III. Remedy

     Although I conclude that the Court of Criminal Appeals’

ruling on the military judge’s error is the law of the case, I

do not accept the lower court’s legal conclusion that no remedy

is required.   Parker initially agreed to plead guilty to

unauthorized absence (AWOL) and missing a movement by neglect.

In return the convening authority agreed to suspend any

confinement over thirty days and any punitive discharge.      When

the military judge rejected Parker’s guilty plea to the missing

movement charge, the Government withdrew from the pretrial

agreement and it no longer had any effect.   Parker was tried on

the missing a movement by design charge and found guilty.     At

sentencing, with no protection from a pretrial agreement, Parker

attempted to trade a punitive discharge for less time in

confinement.   He was sentenced to five months of confinement and

a bad-conduct discharge.   Before the convening authority, he

again tried to trade the bad-conduct discharge for a lesser

period of confinement.

     Since the Court of Criminal Appeals reversed the decision

of the military judge that prompted the voiding of the pretrial

agreement, Parker now asks that the agreement be reinstated and

its terms enforced, including the suspension of a bad-conduct

discharge.    The majority stresses that after the pretrial

agreement was voided, Parker asked on three occasions for a bad


                                  9
United States v. Parker, No. 05-0072/MC


conduct discharge, which in the majority’s view is a change of

position that should be held against him.    However, it is common

for parties to change position in response to differing

decisions from trial and appellate courts.

     It defies logic to conclude that Parker, by asking for a

particular punishment based on the current status of his case,

modified or withdrew from a pretrial agreement that was not in

existence.   Parker’s unsworn statement and his clemency requests

were made in the context of the case at that time.   He was not

attempting to modify the pretrial agreement because there was no

pretrial agreement to modify.   He was simply doing what he

thought best given the circumstances.

     As the military judge erred in rejecting Parker’s plea, we

must put the parties back in the relative positions they held

before the error was made.   See Penister, 25 M.J. at 152-53

(reinstating pretrial agreement where convening authority

withdrew from agreement based on erroneous ruling by the

military judge); see also United States v. Clayton, 25 M.J. 888,

889 (A.C.M.R. 1988) (holding that appellant is entitled to the

benefit of his pretrial agreement when the Government withdrew

from the agreement based on an erroneous ruling by the military

judge).

     The Government made an informed decision not to appeal the

Court of Criminal Appeal’s ruling that the military judge erred


                                10
United States v. Parker, No. 05-0072/MC


in rejecting Parker’s guilty plea and it is therefore the law of

the case.    The parties should be returned to the position they

were in prior to that error.   I would reinstate the pretrial

agreement.   Parker should have the opportunity to plead guilty

to AWOL and missing movement by neglect and the convening

authority should suspend any confinement in excess of thirty

days and also suspend any punitive discharge.




                                 11
