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

                            UNITED STATES, Appellee
                                        v.
                         Specialist GERARDO V. ABELLA
                          United States Army, Appellant

                                   ARMY 20120250

                         Headquarters, 82nd Airborne Division
                   G. Bret Batdorff and Tara Osborn, Military Judges
              Lieutenant Colonel John N. Ohlweiler, Staff Judge Advocate

For Appellant: Major Jacob D. Bashore, JA; Captain John L. Schriver, JA (on
brief).

For Appellee: Captain Chad M. Fisher, JA; Captain Samuel Gabremariam, JA (on
brief).

                                     12 March 2013
                               ---------------------------------
                               SUMMARY DISPOSITION
                               ---------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of violating a lawful general regulation for using “spice,” and
for committing an assault consummated by a battery, in violation of Articles 92 and
128, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 928 (2006) [hereinafter
UCMJ]. The military judge sentenced appellant to a bad-conduct discharge,
confinement for 115 days, and reduction to the grade of E-1. Contrary to the terms
of the pretrial agreement, the convening authority approved a sentence that included
a bad-conduct discharge, confinement for two months, and reduction to the grade of
E-1.

       Appellant raises two closely related assignments of error for our review under
Article 66, UCMJ, both of which have merit and warrant discussion. We will
provide appropriate relief in our decretal paragraph.
ABELLA—ARMY 20120250

                                  BACKGROUND

       On 23 February 2012, appellant offered to plead guilty to violation of a lawful
general regulation and assault consummated by a battery. On 1 March 2012, the
convening authority agreed to limit the period of confinement to 90 days and to
disapprove any discharge. On 12 March 2012, appellant pleaded guilty, and “[t]he
military judge conducted an appropriate inquiry into the providence of the pleas,
ensuring there was a factual basis for them.” United States v. Acevedo, 50 M.J. 169,
171 (C.A.A.F. 1999) (citing United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R.
247 (1969)). The military judge also ensured on the record that appellant
understood the meaning and effect of his pretrial agreement, including its sentencing
provisions as required by Rules for Courts-Martial [hereinafter] R.C.M. 705 and
910(f). The military judge sentenced appellant to 115 days of confinement,
reduction to the grade of E-1, and a bad-conduct discharge. He then reviewed the
limitation on the sentence provided by the pretrial agreement, and confirmed that the
parties understood that only so much of the sentence providing for 90 days
confinement and reduction to the grade of E-1 could be approved. Finally, the
military judge expressly confirmed with appellant and counsel for both sides that the
convening authority could not approve the adjudged bad-conduct discharge.

       In the Staff Judge Advocate’s Recommendation (SJAR), the staff judge
advocate (SJA) correctly noted the effect of the pretrial agreement on the adjudged
sentence. The SJA recommended the convening authority only approve 90 days
confinement and reduction to the grade of E-1. The SJAR was served on appellant
and trial defense counsel, who submitted detailed R.C.M. 1105 matters that included
an allegation of dilatory post-trial processing, pursuant to United States v. Moreno,
63 M.J. 129 (C.A.A.F. 2006), and United States v. Collazo, 53 M.J. 721 (C.A.A.F.
2000).

      Thereafter, the SJA completed an addendum to the SJAR in which he
recommended the convening authority reduce the period of confinement by 30 days
to moot any issue raised by the post-trial processing of the case. He further
recommended the convening authority approve the bad-conduct discharge. * The SJA
never served the addendum, which included new matter by virtue of the
recommendation to approve the bad-conduct discharge, on appellant or his defense
counsel. The convening authority followed the SJA’s recommendation and
approved, inter alia, the bad-conduct discharge.




*
 The entire recommendation reads, in pertinent part, “I now recommend that you
approve only so much of the sentence as provides for reduction to the grade of E-1,
confinement for 2 months, and a Bad-Conduct Discharge, and except for that portion
pertaining to the Bad-Conduct Discharge, order it executed.”
                                          2
ABELLA—ARMY 20120250

                              LAW AND DISCUSSION

       A pretrial agreement is a contract between the accused and the convening
authority, and the convening authority is bound by the terms of that agreement.
United States v. Smead, 68 M.J. 44, 59 (C.A.A.F. 2009). “Whether the government
has complied with the material terms and conditions of an agreement presents a
mixed question of law and fact.” United States v. Lundy, 63 M.J. 299, 301
(C.A.A.F. 2006) (citing Hometown Financial, Inc. v. United States, 409 F.3d 1360,
1369 (Fed. Cir. 2005); Gilbert v. Dep’t of Justice, 334 F.3d 1065, 1071 (Fed. Cir.
2003)). “[A]ppellant bears the burden of establishing that the term is material and
that the circumstances establish governmental noncompliance.” Smead, 68 M.J.
at 59. In this case, appellant asserts, the government concedes, and we agree that
the convening authority failed to abide by a material term of the pretrial agreement
by erroneously approving the adjudged bad-conduct discharge.

       “In the event of noncompliance with a material term, we 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.” Id. Here, appellant requests that this
court set aside the bad-conduct discharge, a remedy which is within our power to
provide. See UCMJ art. 66; United States v. Scott, 4 M.J. 205, 206 (C.M.A. 1978).

                                   CONCLUSION

       On consideration of the entire record and appellant’s assigned errors, we hold
the findings of guilty are correct in law and fact. Therefore, we affirm the findings
of guilty. Based on the reasons outlined above, the court affirms only so much of
the sentence as provides for confinement for two months and reduction to the grade
of E-1. All rights, privileges, and property, of which appellant has been deprived by
virtue of that portion of his sentence set aside by this decision, are ordered restored.
See UCMJ arts. 58b(c) and 75(a).



                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




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




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