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

                             No. 201700074
                         _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.

                      JONATHAN T. THOMAS
            Master-at-Arms Second Class (E-5), U.S. Navy
                              Appellant
                       _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

        Military Judge: Captain Robert J. Crow, JAGC, USN.
 Convening Authority: Commander, Navy Region Southeast, Naval
                   Air Station, Jacksonville, FL.
 Staff Judge Advocate’s Recommendation : Lieutenant Commander
                   George W. Lucier, JAGC, USN.
       For Appellant: Captain Scott F. Hallauer, JAGC, USN.
    For Appellee: Lieutenant Taurean K. Brown, JAGC, USN;
             Lieutenant Megan P. Marinos, JAGC, USN.
                      _________________________

                        Decided 26 October 2017
                        _________________________

  Before M ARKS , J ONES , and W OODARD , 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.
                       _________________________

   JONES, Judge:
    A military judge sitting as a general court-martial convicted the
appellant, pursuant to his pleas, of simple assault and wrongfully enticing a
person to engage in a sexual act with him in exchange for money, in violation
of Articles 128 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 928 and 934 (2012). The military judge sentenced the appellant to six
                       United States v. Thomas, No. 201700074


months’ confinement, reduction to pay grade E-1, and a bad-conduct
discharge. The convening authority (CA) approved the adjudged sentence but
suspended one month of confinement and, except for the punitive discharge,
ordered it executed.
    The appellant claims his pleas are improvident because the government
breached the pretrial agreement (PTA). The government agrees, as do we. We
set aside the findings and the sentence in our decretal paragraph.
                                    I. BACKGROUND
    The appellant reached his End of Active Obligated Service (EAOS) on 17
May 2015 but was placed on legal hold pending the outcome of his court-
martial. He then entered into a PTA with the CA wherein he agreed, inter
alia, to (1) voluntarily extend his enlistment so the government could
administratively discharge him; and (2) waive his administrative discharge
board:
             f. I agree to waive any administrative discharge board that
         is based on any act or omission reflected in the charges and
         specifications that are the subject of this agreement. I
         understand that any administrative discharge will be
         characterized in accordance with service regulations and may
         be under other-than-honorable conditions. I fully understand
         the nature and purpose of an administrative discharge board
         and the rights that I would have at such a board. I specifically
         agree to remain on active duty past my [EAOS] date of 17 May
         2015 so that the [g]overnment can administratively separate
         me. I agree to deliver to trial counsel the completed and signed
         waiver on the morning of the guilty plea.1
    As consideration, the CA agreed to defer and waive automatic forfeitures
for the benefit of the appellant’s dependents:
            Automatic forfeiture of pay and allowances I am due during
         my enlistment will be deferred and waived provided that I
         establish and maintain a dependent’s allotment in the total
         amount of the deferred and waived forfeiture amount during
         the entire period of deferment. I understand if I am in
         confinement after my voluntary enlistment extension, I will not
         receive any pay and allowances pursuant to Paragraph 010402,
         Volume 7A, DoD 7000.14-R, Financial Management
         Regulations. . . . The deferred and waived forfeiture [sic] shall



   1   Appellate Exhibit (AE) XIV at 3, ¶ 8(f).


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                          United States v. Thomas, No. 201700074


         be paid to Ms. [KC] and Ms. [TT], who are the mothers of my
         dependents.2
    On 1 November 2016, the morning of trial, the appellant provided two
pieces of paperwork to the government—his request to extend his enlistment
for four months and a waiver of his administrative discharge board.
    When the trial began, the military judge summarized a RULE FOR
COURTS-MARTIAL 802, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016
ed.) conference regarding everyone’s understanding that the appellant could
voluntarily extend his enlistment for administrative purposes even though he
was past his EAOS:
         [T]he government indicated a desire to attach an exhibit with
         respect to voluntary extension for the purposes of
         administrative separation to give any appellate and/or
         administrative authorities the guidance that . . . an accused
         can voluntarily extend an enlistment for administrative
         purposes, and the government indicated the defense has
         complied with their portions of the pretrial agreement with
         respect to that.3
    The military judge then asked both parties if they concurred with his
summation regarding these issues, and they both indicated that they did and
had nothing further to add. The trial counsel also provided the court with an
information memo, the purported authority for an accused to voluntarily
extend his enlistment for administrative purposes.4
   After announcing the sentence, the military judge reviewed Part II of the
PTA with the appellant and explained that—in spite of his awarding the
appellant a punitive discharge—the appellant would be able to execute an
extension and have forfeitures deferred and waived. He informed the
appellant that even though he would be in confinement and past his EAOS,
the CA had agreed to defer and waive forfeitures for his dependents’ benefit.
Both the trial and defense counsel concurred with the military judge’s
explanation to the appellant.5




   2   AE XV at 1, ¶ 3(b) (emphasis added).
   3   Record at 50-51.
    4 AE XVI, Assistant Legal Counsel to the Navy Personnel Command

Memorandum re Other Than Honorable (OTH) Discharge After Expiration of Active
Obligated Service (EAOS) of Enlisted Members dtd 17 Oct 16.
   5   Record at 148-49.


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                       United States v. Thomas, No. 201700074


   In his clemency petition to the CA, the defense counsel pointed out that
the appellant was not getting forfeiture protection because the government
would not let him voluntarily extend his enlistment past his EAOS. The staff
judge advocate (SJA) agreed that specific performance of the PTA was not
possible and recommended to the CA that he approve only five of the six
months’ confinement that had been adjudged—which he did.6
                                   II. DISCUSSION
   Interpretation of a PTA is a question of law we review de novo. United
States v. Lundy, 63 M.J. 299, 301 (C.A.A.F. 2006). An appellant waives
various constitutional protections when agreeing to plead guilty pursuant to
a PTA. Id. Therefore, a PTA establishes a binding constitutional contract
between the appellant and the CA and “[i]n a criminal context the
government is bound to keep its constitutional promises . . . .” Id. It is the
military judge’s responsibility to police the terms of a PTA and to ensure the
provisions are in compliance with prevailing law. See United States v. Riley,
72 M.J. 115, 120 (C.A.A.F. 2013).
             When an appellant contends that the government has not
         complied with a term of the agreement, the issue of
         noncompliance is a mixed question of fact and law. The
         appellant bears the burden of establishing that the term is
         material and that the circumstances establish governmental
         noncompliance. 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. 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.
United States v. Smead, 68 M.J. 44, 59 (C.A.A.F. 2009) (internal
citations omitted).
    In the appellant’s case, all of the parties believed that the effect of the
PTA was to extend his enlistment for four months from the date of trial—
until 1 March 2017—so his dependents would receive money that would have
been automatically forfeited. Unfortunately, the trial counsel, defense
counsel, appellant, military judge, SJA, and CA were all mistaken in their
belief that the appellant could voluntarily extend his enlistment when he was
past his EAOS. In truth, his enlistment had ended on 17 May 2015, and he
was only on legal hold for purposes of the court-martial. Therefore, there was



   6   The appellant had not served any time in pretrial confinement.


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                       United States v. Thomas, No. 201700074


no enlistment to extend.7 The trial counsel appears to have misinterpreted an
“Info Memo” by the Assistant Legal Counsel to the Navy Personnel Command
which discussed how members who are on legal hold and facing court-martial
can bargain for an Other-Than-Honorable discharge in a PTA.8
    In United States v. Smith, 56 M.J. 271 (C.A.A.F. 2002), the Court of
Appeals for the Armed Forces (CAAF) was faced with the same factual
scenario as the case sub judice. There, Smith had negotiated payment of
adjudged and automatic forfeitures to his dependent children as part of his
PTA. Smith, 56 M.J. at 273. However, his enlistment had expired, and he was
on legal hold; therefore, he was not entitled to any pay while in confinement.
Id. at 275. As in the appellant’s case, all of the parties in the Smith case—the
CA, SJA, trial counsel, defense counsel, appellant, and military judge—were
under the misunderstanding Smith would be paid after his court-martial. Id.
at 275-77. The CAAF set aside this court’s opinion and remanded the case for
further action because the government could not provide specific performance
in paying Smith’s dependents. Id. at 280. See also United States v. Williams,
55 M.J. 302 (C.A.A.F. 2001) (holding that when an accused pleads guilty
relying on incorrect advice from his attorney on a key part of the PTA
involving entitlement to pay, and the military judge shares that
misunderstanding and fails to correct it, the plea is improvident); United
States v. Hardcastle, 53 M.J. 299, 303 (C.A.A.F. 2000) (concluding that when
all parties mistakenly believed that the accused would receive forfeiture
protection, his pleas were improvident).
    We find Smith’s holding binding in the appellant’s case. The government
did not comply with a material term of the PTA because regulations prohibit
the appellant from extending his enlistment. This error is not susceptible to
remedy in the form of specific performance by the government, and the
appellant can reject the alternative relief because it is not “‘an adequate
means of providing the appellant with the benefit of his bargain.’” Smith, 56
M.J. at 279 (quoting United States v. Mitchell, 50 M.J. 79, 83 (C.A.A.F.
1999)). The appellant has rejected the alternative relief and wants specific
performance. Therefore, there is no remedy to cure the defect in the
government’s breach of a material provision of the PTA, and in spite of the
CA’s attempt to compensate the appellant by approving one less month of the
awarded confinement, the appellant is entitled to the benefit of his bargain.




   7   See Naval Military Personnel Manual, Art. 1160-040 (Ch-58, 16 Feb 2017).
   8   AE XVI. See also note 4, supra.


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                  United States v. Thomas, No. 201700074


                            III. CONCLUSION
   Accordingly, we set aside the findings and the sentence. See Smead, 68
M.J. at 59 (C.A.A.F. 2009). The record of trial is returned to the Judge
Advocate General for remand to a proper CA. A rehearing is authorized.
   Senior Judge MARKS and Judge WOODARD concur.
                                    For the Court




                                    R. H. TROIDL
                                    Clerk of Court




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