                                    IN THE CASE OF


                             UNITED STATES, Appellee

                                            v.

                      William T. LUNDY, Staff Sergeant
                            U.S. Army, Appellant

                                      No. 03-0620
                             Crim. App. No. 20000069

       United States Court of Appeals for the Armed Forces

                              Argued April 21, 2004

                              Decided June 24, 2004


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


                                         Counsel

For Appellant: Captain Robert E. Desmond (argued); Colonel
    Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci, Major
    Allyson G. Lambert (on brief); Captain Gregory M. Kelch.

For Appellee: Lieutenant Colonel Margaret B. Baines (argued);
    Colonel Lauren B. Leeker and Major Natalie A. Kolb (on
    brief).


Military Judge:        William T. Barto
        THIS   OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Lundy, No. 03-0620/AR


      Judge EFFRON delivered the opinion of the Court.

      At a general court-martial composed of a military judge

sitting alone, appellant was convicted, pursuant to mixed pleas,

of various sexual offenses against his children, including

attempted carnal knowledge, attempted indecent acts, forcible

sodomy (two specifications), and indecent acts (six

specifications), in violation of Articles 80, 125, and 134,

Uniform Code of Military Justice, [hereinafter UCMJ], 10 U.S.C.

§§ 880, 925, and 934 (2000).   He was sentenced to a dishonorable

discharge, confinement for 23 years, and reduction to private E-

1.   Pursuant to a pretrial agreement, the convening authority:

(1) approved that portion of the sentence that provided for a

dishonorable discharge and confinement for 18 years; (2)

deferred mandatory forfeitures and the adjudged reduction during

the period from the date of the sentence until the date of the

convening authority’s action; and (3) waived mandatory

forfeitures, beginning on the date of the convening authority’s

action, for a period of six months, with direction that the

waived forfeitures be sent to the Appellant’s wife.   See Arts.

57, 57a, and 58b, UCMJ, 10 U.S.C. §§ 857, 857a, and 858b (2000).

The Army Court of Criminal Appeals affirmed.   United States v.

Lundy, 58 M.J. 802 (A. Ct. Crim. App. 2003).




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United States v. Lundy, No. 03-0620/AR


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

issue:

           WHETHER THE ARMY COURT OF CRIMINAL APPEALS, HAVING
           FOUND THAT THE CONVENING AUTHORITY DID NOT OR
           COULD NOT WAIVE FORFEITURES AT THE E-6 RATE AS
           PROVIDED IN THE PRETRIAL AGREEMENT, ERRED WHEN IT
           HELD THAT BECAUSE HIS FAMILY RECEIVED PAYMENTS
           UNDER THE TRANSITIONAL COMPENSATION PROGRAM, 10
           U.S.C. 1059, HIS PLEAS WERE NOT IMPROVIDENT.1


                           I. BACKGROUND

         A.   FORFEITURE OF PAY AND REDUCTION IN PAY GRADE

1.   Authorized forfeitures and reductions

      As we noted in United States v. Emminizer, 56 M.J. 441, 442

(C.A.A.F. 2002), a court-martial may lead to two distinct types

of forfeiture of pay and allowances: (1) an adjudged forfeiture

included in the sentence imposed by a court-martial under Rule

for Courts-Martial 1003(b)(2) [hereinafter R.C.M.]; and (2)

mandatory forfeitures under Article 58b(a).    Mandatory

forfeitures are not part of the court-martial sentence, but

apply during periods of confinement or parole as a consequence

of certain statutorily designated sentences, such as a sentence

to confinement for more than six months.     Art. 58b(a)(1)-(2);

see Emminizer, 56 M.J. at 443.


1
  We also specified an issue regarding the adequacy of advice
provided to Appellant by counsel regarding the terms of the
pretrial agreement. United States v. Lundy, 59 M.J. 264
(C.A.A.F. 2004). In view of our disposition of the granted
issue, we need not address the specified issue.

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United States v. Lundy, No. 03-0620/AR


       A service member’s pay and allowances also may be affected

by a reduction in pay grade.   There are two distinct types of

reductions in pay grade applicable to enlisted personnel: (1) an

adjudged reduction included in the sentence adjudged by a court-

martial under R.C.M. 1003(b)(4); and (2) a mandatory reduction

to pay grade E-1, the lowest enlisted pay grade, under Article

58a.    Like mandatory forfeitures, a mandatory reduction is not

part of the sentence.   Moreover, under the following language of

Article 58a, a mandatory reduction is subject to regulations

promulgated by the separate departments:

                 (a) Unless otherwise provided in
            regulations to be prescribed by the
            Secretary concerned, a court-martial
            sentence of an enlisted member in a pay
            grade above E-1, as approved by the
            convening authority, that includes --

                 (1) a dishonorable or bad-conduct
                 discharge;

                 (2) confinement; or

                 (3) hard labor without confinement;

            reduces that member to pay grade E-1,
            effective on the date of that approval.


       Under Article 58a, each military department may establish a

service-specific approach as to whether mandatory reduction in

pay grade should be a consequence of a court-martial sentence.

Appellant’s military department, the Army, provides for

mandatory reduction in pay grade if any of the three punishments


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United States v. Lundy, No. 03-0620/AR


described in Article 58a(a) are included, unsuspended, in the

sentence approved by the convening authority.    See Dep’t of the

Army, Regulation (AR) 600-8-19, Personnel-General:    Enlisted

Promotions and Reductions, para. 7-1d (1 May 2000).

2.   Effective dates and pre-action deferral

      Adjudged forfeitures, mandatory forfeitures, and adjudged

reductions in pay grade take effect on the earlier of: (1)

fourteen days after the date on which the sentence is adjudged,

or (2) the date on which the sentence is approved by the

convening authority.   Arts. 57(a)(1), 58b(a)(1); see Emminizer,

56 M.J. at 443.   However, the convening authority has discretion

to defer the effective date for all or part of the period

leading up to the convening authority’s formal action on the

sentence under Article 60(c), UCMJ, 10 U.S.C. § 860(c)(2000).

See Arts. 57(a)(2), 58b(a)(1).     Mandatory reductions in pay

grade, in contrast, do not take effect until the convening

authority takes this formal action on the sentence.    See Art.

58a(a).

3.   Post-action suspension and waiver

      When taking formal action on the sentence under Article

60(c), the convening authority may suspend any part of the

sentence adjudged by the court-martial except for a sentence of

death.    R.C.M. 1108(b).   This includes the authority to suspend

adjudged forfeitures and adjudged reductions.


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United States v. Lundy, No. 03-0620/AR


     Different rules pertain to statutorily mandated forfeitures

and reductions.      The convening authority is not authorized to

suspend the mandatory forfeitures required by Article 58b.      If

the accused has dependents, however, the convening authority has

discretion to waive all or part of the mandatory forfeitures for

a period not to exceed six months.      Art. 58b(b).   Any funds made

available through such a waiver are paid directly to the

dependents.    Id.

     Because mandatory reductions in pay grade are subject to

service-specific regulation under Article 58a, the ability of a

convening authority to suspend a mandatory reduction depends on

the regulations of the service concerned.     In the Army, a

convening authority may suspend a mandatory reduction only if

the convening authority also suspends the punishments that

trigger a mandatory reduction under Article 58a.       See AR 600-8-

19, at para. 7-1d.     For example, if the approved sentence

includes confinement and a punitive discharge, a convening

authority may suspend the mandatory reduction to pay grade E-1

only if the convening authority also suspends the confinement

and the punitive discharge.


       B.     TRANSITIONAL COMPENSATION FOR ABUSED DEPENDENTS

     Under 10 U.S.C. § 1059 (2000), the Secretary of Defense has

established a program that provides financial assistance to the



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United States v. Lundy, No. 03-0620/AR


dependents of service members who are the victims of dependent-

abuse offenses, “such as sexual assault, rape, sodomy, assault,

battery, murder, and manslaughter.”   Dep’t of Defense,

Instruction 1342.24 [hereinafter DoDI], Transitional

Compensation for Abused Dependents (May 23, 1995).    The program

provides monthly payments to dependent-abuse victims and family

members who meet the criteria established by the instruction.

See id. at para. 6.   The program applies to victims of

dependent-abuse offenses committed by service members whose

court-martial sentences result in punitive discharges or total

forfeitures, or who are administratively separated for

dependent-abuse offenses.   10 U.S.C. § 1059(b).

     At the time of Appellant’s court-martial conviction,

payments to dependents began on the date that the convening

authority approved a qualifying sentence.   National Defense

Authorization Act for Fiscal Year 1995, Pub. L. No. 103-337,

§ 535, 108 Stat. 2663, 2762 (1994).   As a result of a subsequent

amendment, payments to dependents now begin on the date of an

adjudged sentence for a dependent-abuse offense if the sentence

includes a punitive discharge or total forfeitures.    National

Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-

136, § 572(a), 117 Stat. 1392, 1485-86 (2003) (codified at 10

U.S.C. § 1059(e)(1)(A)(i)).   If there is a pretrial agreement

providing for disapproval or suspension of the punitive


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United States v. Lundy, No. 03-0620/AR


separation or total forfeitures, however, payments begin on the

date of the convening authority’s action approving an

unsuspended punitive discharge or total forfeitures.    Id.; 10

U.S.C. § 1059(e)(1)(A)(ii).    When a service member is being

processed for administrative separation based upon dependent

abuse, payments begin on the date that the member’s commander

initiates separation action.   10 U.S.C. § 1059(e)(1)(B).

     The dependent is entitled to receive transitional

compensation payments for a minimum of 12 months, even if the

person who committed the dependent-abuse offense has been

separated from the armed forces or otherwise no longer is

eligible for military pay.    See id. § 1059(e)(2); DoDI 1342.24,

at para. 6.2.1.   Payments continue past the 12-month period if

the person who committed the dependent-abuse offense then still

has an unserved period of obligated service, up to a maximum of

36 months, subject to various limitations and exclusions.

See, e.g., 10 U.S.C. § 1059(e)(2); DoDI 1342.24, at para. 6.2.3

(cessation of payments if the pending punitive or administrative

discharge is remitted, set aside, mitigated to a lesser

punishment, or disapproved); 10 U.S.C. § 1059(g) (conditions

under which a spouse, former spouse, or dependents forfeit the

right to payments).

     The payment schedule for dependent-abuse compensation under

10 U.S.C. § 1059 is not connected to the rates provided in


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United States v. Lundy, No. 03-0620/AR


military pay tables.    Instead, payments are based on rates for

dependency and indemnity compensation for veterans under 38

U.S.C. §§ 1311 and 1313.   See 10 U.S.C. § 1059(f).   Payments

under § 1059(f) are not made from military pay accounts, but

instead are paid from operations and maintenance funds.    See

DoDI 1342.24, at para. 6.5.

     If a dependent’s eligibility for payments under 10 U.S.C.

§ 1059 is based solely upon a court-martial sentence to total

forfeiture of pay and allowances, the dependent may not receive

payments under § 1059 during any period in which the service

member’s right to pay and allowances has been restored, in whole

or in part, as a result of a suspension of the forfeitures or

other applicable law.   See 10 U.S.C. § 1059(h).   If, however,

the dependent’s eligibility under § 1059 is based upon a

punitive discharge or administrative separation, payments begin

and continue as discussed above, even if the service member is

eligible for military pay and allowances.   See 10 U.S.C. §

1059(e); Memorandum from the Office of General Counsel, Dep’t of

Defense, to the Director of Compensation, Dep’t of Defense,

Transitional Compensation and Suspension/Waiver of Forfeitures,

at 4 (July 2, 2001) [hereinafter “DoD/OGC Memorandum”].

     A spouse may not receive benefits under both § 1059 and 10

U.S.C. § 1408(h)(1) (payments to a dependent when a service

member loses eligibility for retired pay because of dependent


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United States v. Lundy, No. 03-0620/AR


abuse).   If the spouse is otherwise eligible for benefits under

both provisions, the spouse must elect which to receive.   See 10

U.S.C. § 1059(i); DoDI 1342.24, at para. 6.4.

     Section 1059(i) (“Coordination of benefits”) applies only

to preclude concurrent payments under §§ 1059 and 1408(h)(1).

Section 1059(i) does not apply to waived forfeitures payable to

a dependent under Article 58b.   A convening authority, however,

may take into account the availability of transitional

compensation under § 1059 when deciding whether to exercise the

discretionary authority to waive mandatory forfeitures and

direct payment to a dependent under Article 58b.   See R.C.M.

1101(d)(2).   When a convening authority exercises discretion to

direct payment of waived forfeitures to a dependent, the

convening authority’s action does not affect the dependent’s

entitlement to benefits under § 1059 and DoDI 1342.24.   See

DoD/OGC Memorandum, at 4.


  C. IMPLEMENTATION OF THE PLEA AGREEMENT BETWEEN APPELLANT AND
                     THE CONVENING AUTHORITY

     Prior to trial, Appellant and the convening authority

entered into a pretrial agreement.    Appellant agreed to plead

guilty to multiple specifications of sodomy by force with a

child and indecent acts with a child.    The convening authority

agreed to “defer any and all reductions and forfeitures until

sentence is approved, suspend any and all adjudged and waive any


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United States v. Lundy, No. 03-0620/AR


and all automatic reductions and forfeitures, and pay them to

[Appellant’s] wife to the full extent as allowed by law[.]”     The

military judge determined that Appellant’s pleas were provident

and trial proceeded on the merits of two contested charges.

Ultimately, the military judge found Appellant guilty of all

charges to which he had pleaded guilty.   As to the contested

charges, the military judge found Appellant not guilty of the

two specifications of attempted sodomy of a child; guilty, with

exceptions and substitutions, of attempted carnal knowledge of a

child; and guilty, with exceptions and substitutions, of

attempted indecent acts.   After conducting a sentencing

proceeding, the military judge sentenced Appellant to

confinement for 23 years, a dishonorable discharge, and

reduction to the lowest enlisted grade.

     Following announcement of the sentence, the military judge

conducted the required inquiry into sentence-limitation portions

of the plea agreement.   See R.C.M. 910(f).   The military judge

asked the parties about the provision in the agreement that

payments would be made to Appellant’s wife to “the full extent

as allowed by law.”   The parties agreed that the phrase was used

to incorporate the statutory six-month maximum period for waived

forfeitures under Article 58b or a longer period in the event of

a change in the statute.   Counsel for both parties, and

Appellant, then agreed with the military judge that


                                11
United States v. Lundy, No. 03-0620/AR


           the effect of the pretrial agreement on the
           sentence is that the convening authority may
           approve only so much confinement as extends
           to 18 years, but may approve the
           dishonorable discharge, but will defer the
           reduction until sentence is approved, and
           will suspend the automatic reduction and
           forfeitures and pay them to the spouse of
           the accused for a period of six months
           following approval.

     Immediately following the court-martial, Appellant began to

serve the adjudged period of confinement.   See Art. 57(b).    Per

the pretrial agreement, the convening authority deferred the

adjudged pay-grade reduction and the Article 58b mandatory

forfeitures during the period between the court-martial and the

convening authority’s formal action on the sentence.   See Arts.

57a and 58b(a)(1).

     On the day after the sentence was adjudged, Appellant’s

wife, in a parallel development, filed an application for

transitional compensation as an abused spouse under 10 U.S.C.

§ 1059.   The application was approved, and under then-existing

law, payments under § 1059 began when the convening authority

took formal action on the sentence.   See National Defense

Authorization Act for Fiscal Year 1995, Pub. L. No. 103-337, §

535, 108 Stat. 2663, 2762 (1994) (amending 10 U.S.C. § 1059(e)).

     Before the convening authority acted on the sentence under

Article 60(c), the staff judge advocate (SJA) prepared a formal

recommendation.   See Art. 60(d); R.C.M. 1106.   The



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United States v. Lundy, No. 03-0620/AR


recommendation provided the following summary of the pretrial

agreement:

             In exchange for the accused’s pleas of
             guilty, the convening authority will defer
             any and all reductions and forfeitures until
             sentence is approved, suspend any and all
             adjudged and waive any and all automatic
             reductions and forfeitures; and pay them to
             Mrs. Lundy, the accused’s wife, to the full
             extent as allowed by law; and disapprove all
             confinement in excess of eighteen (18)
             years.

     The SJA forwarded this recommendation to the convening

authority, along with a proposed action.    The action, which was

signed by the convening authority, reduced the adjudged period

of confinement from 23 to 18 years, per the pretrial agreement.

As further required by the pretrial agreement, the action did

not approve the adjudged reduction in rank.    In addition, the

action implemented the pretrial agreement’s requirement for

waiver of mandatory forfeitures for a period of six months,

specifically directing that “forfeitures be sent to the

accused’s wife.”

     The Government implemented the waiver of mandatory

forfeitures, although the funds were transmitted to Appellant,

contrary to Article 58b, rather than to his wife.    During the

six-month period following the convening authority’s action in

which the mandatory forfeitures were waived, Appellant

discovered that the payments were at the rate for pay grade E-1,



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United States v. Lundy, No. 03-0620/AR


rather than at the rate for pay grade E-6.    His pay grade had

been reduced to the lowest enlisted grade, E-1, notwithstanding

the fact that the plea agreement required suspension of any

mandatory reduction.    Although he sought corrective action

through administrative channels, he was unsuccessful.      As a

result, Appellant’s wife did not receive waived forfeitures at

the E-6 rate as provided in the pretrial agreement.



                            II. DISCUSSION

            A.     IMPLEMENTATION OF PRETRIAL AGREEMENTS

     In United States v. Perron, 58 M.J. 78 (C.A.A.F. 2003), we

observed that --


          where an accused pleads guilty 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. . . .

          . . . .

          [W]here there is a mutual misunderstanding
          regarding a material term of a pretrial
          agreement, resulting in an accused not
          receiving the benefit of his bargain, the
          accused’s pleas are improvident. In such
          instances, . . . remedial action in the form
          of specific performance, withdrawal of the
          plea, or alternative relief, is required.

Id. at 82 (citations omitted).

     In the present case, Appellant pleaded guilty in reliance

on a promise by the Government that his confinement would not


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United States v. Lundy, No. 03-0620/AR


exceed 18 years, that reductions and forfeitures would be

deferred, and that for a six-month period following the

convening authority’s action, any mandatory reduction in pay

grade would be suspended so that his wife would receive waived

forfeitures at the E-6 rate.    The parties to the agreement,

counsel at trial, and the military judge all appear to have

overlooked the Army regulation that precludes a convening

authority from suspending a mandatory reduction in pay grade

unless the convening authority also suspends any related

confinement or punitive discharge.    See part I.A.1., supra.

     Because this regulatory impediment resulted from a

departmental action rather than a statutory mandate, see Article

58a, the Army was free to modify the regulation, create an

exception, or grant a waiver.   Had the parties taken the

impediment into account during negotiation of the pretrial

agreement, the convening authority could have sought a waiver or

exception at the departmental level or an alternative agreement

could have been proposed.   Based on the misunderstanding,

however, Appellant pleaded guilty based upon the representations

of counsel and the assurances of the military judge that the

Government would fulfill its part of the agreement.

     During the sixth-month period in which Appellant’s wife

received the waived forfeitures at the E-1 rate, it was still

possible to fulfill the agreement.    When Appellant brought the


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United States v. Lundy, No. 03-0620/AR


discrepancy to the attention of military officials, the

Government could have fulfilled the agreement by granting an

exception or waiver to suspend the reduction and provide the

waived forfeiture at the E-6 rate.    Corrective action, however,

was not taken.


   B. THE RELATIONSHIP BETWEEN ARTICLE 58b WAIVED FORFEITURES
      AND TRANSITIONAL COMPENSATION UNDER 10 U.S.C. § 1059
                     IN DEPENDENT-ABUSE CASES

     On appellate review, the Court of Criminal Appeals

concluded that payment of waived forfeitures to Appellant’s wife

at the E-6 level through suspension of the mandatory reduction

was a material part of the agreement between Appellant and the

convening authority.    Lundy, 58 M.J. at 804.   The court stated,

however, that remedial action was not necessary because

Appellant’s family had been adequately compensated during the

six-month period from other funds, employing a three-step

rationale.   First, the court noted that dependent-abuse payments

had been made to Appellant’s wife under 10 U.S.C. § 1059 during

the six-month period.   Id. at 806.   Second, the court

interpreted the law as precluding dependent-abuse compensation

payments under § 1059 to a person receiving waived forfeitures

under Article 58b.   Id.   Third, the court held that the

erroneous payments under § 1059 adequately compensated




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United States v. Lundy, No. 03-0620/AR


Appellant’s family for the Army’s erroneous failure to comply

with the pretrial agreement.   Id.

     The interpretation of applicable law by the court below is

inconsistent with the position taken by the Department of

Defense in the administration of the compensation program

established under 10 U.S.C. § 1059.   See Part I.B., supra, and

the DoD/OGC Memorandum noted therein.    The Department of

Defense’s administration of the statute, which permits

concurrent receipt of dependent-abuse payments and waived

forfeitures, is consistent with the text and legislative history

of § 1059 and Article 58b.

     As originally enacted, subsection (e) precluded payment of

dependent-abuse benefits in any case until the service member’s

pay and allowances were discontinued.    National Defense

Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, §

554, 107 Stat. 1547, 1664-65 (1993) (subsection (e)).    Within a

year, Congress amended subsection (e) to provide for

commencement of payments in circumstances involving concurrent

payment of dependent-abuse payments under § 1059 and military

pay and allowances.   National Defense Authorization Act for

Fiscal Year 1995, Pub. L. No. 103-337, § 535, 108 Stat. 2663,

2762 (1994) (commencement of § 1059 payments on the date of the

convening authority’s action under Article 60(c) or, in the case

of a proposed administrative separation, the date on which a


                                17
United States v. Lundy, No. 03-0620/AR


commander initiated separation action); see DoD/OGC Memorandum

at 3.    Congress subsequently amended subsection (e) to provide

an even earlier opportunity for concurrent receipt of benefits

and military pay and allowances.       National Defense Authorization

Act for Fiscal Year 2004, Pub. L. No. 108-136, § 572(a), 117

Stat. 1392, 1485-86 (2003) (commencement of § 1059 payment in

certain circumstances on the date of sentence adjudication).

        The subsequent development of the waived forfeitures

provision in Article 58b reflects a similar trend.      Article 58b

was enacted in 1995 to limit the circumstances in which service

members serving a sentence to confinement by court-martial could

receive military pay and allowances.      See H.R. Conf. Rep. No.

104-450, at 853 (1996).    The original version of the legislation

did not authorize alternative benefits for dependents of service

members whose pay and allowances were subject to mandatory

forfeiture while in confinement.       S. 205, 104th Cong. (1995).

The legislative proposal subsequently was revised to include a

new section of title 10, United States Code, § 1059a, entitled

“Transitional Compensation for Spouses, Dependent Children, and

Former Spouses of Members Sentenced to Confinement and Punitive

Discharge or Dismissal.”    S. 571, 104th Cong., § 2 (1995).

Under the proposal, if a service member’s entitlement to pay and

allowances was forfeited under Article 58b, as proposed, the

member’s dependents could receive transitional compensation


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United States v. Lundy, No. 03-0620/AR


under the new § 1059a for up to one year.    Id.   The proposed

legislation contained a “Coordination of Benefits” section which

expressly precluded transitional benefits under § 1059a for any

dependent entitled to dependent-abuse payments under §§ 1059 or

1408(h).

     The legislation as enacted, however, did not retain the

proposed § 1059a, nor did it retain the prohibition against

concurrent payment of waived forfeitures under Article 58b and

dependent-abuse compensation under § 1059.    Instead, the new

legislation simply enabled convening authorities to waive

forfeited pay and allowances, in whole or in part, for a period

of up to six months, subject to a requirement that any waived

forfeitures must be paid to the dependents of the accused.    S.

1026, § 526 (1995); 141 Cong. Rec. 22153 (1995) (Amendment No.

2117); National Defense Authorization Act for Fiscal Year 1996,

Pub. L. No. 104-106, § 1122, 110 Stat. 186, 463 (1996) (enacting

Article 58b(b), UCMJ, 10 U.S.C. § 858b(b)).

     The DoD/OGC Memorandum specifically considered whether

concurrent receipt of waived forfeitures and dependent-abuse

compensation under § 1059 was precluded by § 1059(h), which

states:

           In the case of payment of transitional
           compensation by reason of a total forfeiture
           of pay and allowances pursuant to a sentence
           of a court-martial, payment of transitional



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United States v. Lundy, No. 03-0620/AR


          compensation shall not be made for any
          period for which an order --

               (1) suspends, in whole or in part, that
          part of a sentence that includes forfeiture
          of the member’s pay and allowance; or

               (2) otherwise results in continuation,
          in whole or in part, of the member’s pay and
          allowances.


Citing the development over time of specific provisions allowing

concurrent payment, the Memorandum concluded that subsection (h)

“should be limited to cases where a court-martial sentence does

not include a punitive separation but results in total

forfeitures, whether by explicit provision of the sentence or by

automatic total forfeiture as a result of a sentence to

confinement.”   DoD/OGC Memorandum, at 4.   The opinion of the

court below, by contrast, did not address the development of the

legislation and related considerations raised in the DoD/OGC

Memorandum, including the role of subsection (h) in non-

discharge cases where mandatory forfeitures are triggered by a

sentence to confinement.   Compare Lundy, 58 M.J. at 806, with

DoD/OGC Memorandum, at 3-4.   Nor did the opinion of the lower

court address the legislative development of Article 58b, which

reflects congressional awareness of § 1059 dependent-abuse

compensation during development of the waived forfeiture

provisions of Article 58b(b).




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United States v. Lundy, No. 03-0620/AR


     In addition, R.C.M. 1101(d), which addresses the convening

authority’s discretionary power to waive forfeitures, is

instructive.   Subsection (d)(2) lists a wide variety of factors

involving financial and other circumstances “that may be

considered by the convening authority in determining the amount

of forfeitures, if any, to be waived includ[ing] . . . the

availability of transitional compensation for abused dependents

permitted under 10 U.S.C. [§] 1059.”   This provision underscores

the fact that, in deciding whether to waive forfeitures in whole

or in part on behalf of a dependent, the convening authority may

take into account the availability of dependent-abuse

compensation under § 1059.   As such, the convening authority has

discretion to decide, under the circumstances of each particular

case, that waived forfeitures are unnecessary in light of

payments under § 1059, or that waived forfeitures are required

because § 1059 payments are insufficient to meet the needs of

the dependents in that case.

     In view of the statutory provisions, the pertinent

legislative history, and administrative implementation, we

decline to conclude that Congress intended to preclude

dependent-abuse victims from receiving transitional compensation

under § 1059 when a convening authority has determined, as a

matter of discretion, that the dependents should receive waived

forfeitures under Article 58b.


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United States v. Lundy, No. 03-0620/AR



 C. RESPONSIBILITY FOR IMPLEMENTATION OF THE PRETRIAL AGREEMENT

        In the present case, the convening authority had discretion

to decide whether forfeitures should be waived in whole or in

part.    The convening authority exercised his discretion to

provide waived forfeitures to Appellant’s wife, and entered into

a pretrial agreement to provide her with waived forfeitures at

the E-6 rate.    Once Appellant fulfilled his responsibilities

under the agreement by providently pleading guilty, Appellant’s

wife was entitled to receive waived forfeitures at the E-6 rate.

Waived forfeitures were paid, but only at the E-1 rate, contrary

to the agreement.

        The court below suggested that even if Appellant’s wife was

entitled to receive both waived forfeitures and dependent-abuse

compensation, Appellant cannot complain about implementation of

the agreement because, in the court’s view, Appellant was

obligated to prove that he had provided waived forfeitures at

the E-1 rate to his wife.    Lundy, 58 M.J. at 806.   Under Article

58b(b), however, the responsibility for directing payments of

waived forfeitures to the dependent rests with the Government,

not with Appellant.    To the extent that payment of waived

forfeitures was made to Appellant rather than his wife, the

error rested with the Army.    Such evidence as exists in the

record indicates that Appellant took steps to ensure that



                                  22
United States v. Lundy, No. 03-0620/AR


payments went to his wife’s bank account.      The Government, on

appeal, has proceeded on the basis that Appellant’s family

received waived forfeitures at the E-1 rate.     Under these

circumstances, we conclude that the record does not establish

that Appellant has acted in a manner so inconsistent with the

pretrial agreement that the Government would be relieved of its

responsibilities under the agreement.


                          D. REMEDIAL ACTION

     As discussed in Section II.A., supra, when the Government

does not fulfill a material provision in a pretrial agreement,

remedial action is required in the form of specific performance,

withdrawal of the plea, or alternative relief.     In Perron, we

held that an appellate court cannot impose alternative relief on

an unwilling appellant.    58 M.J. at 78.

     The present case is in a different procedural posture than

Perron, where the Court of Criminal Appeals determined that

remedial action was necessary and sought to impose it on an

unwilling Appellant.   Because the lower court in the present

case determined that no relief was warranted, the case did not

proceed to a point where the court had to reach a definitive

conclusion as to: (a) whether specific performance was possible;

and (b) whether there were viable options for alternative relief

under Perron.   Under these circumstances, a remand to the court



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United States v. Lundy, No. 03-0620/AR


below is appropriate.   See, e.g., United States v. Smith, 56

M.J. 271 (C.A.A.F. 2002); United States v. Mitchell, 50 M.J. 79

(C.A.A.F. 1999).

     The court below should consider whether it has authority to

suspend a reduction in pay grade for six months, or whether the

Government is otherwise willing to do so through a departmental

waiver.   If a suspension is considered, the court will have to

determine whether implementation of a suspension at this point

in time would still constitute specific performance, which would

be binding on Appellant, or whether a suspension should be

considered as a form of alternative relief, which would require

Appellant’s consent under Perron.      The court is not limited to

consideration of specific performance, and may consider options

for alternative performance, subject to Perron.      See, e.g., 10

U.S.C. § 127 (2000) (Emergency and extraordinary expenses).



                           III.   DECISION

     The decision of the United States Army Court of Criminal

Appeals is reversed.    The case is returned to the Judge Advocate

General for remand to the Court of Criminal Appeals for further

consideration in light of this opinion.




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United States v. Lundy, No. 03-0620/AR


       CRAWFORD, Chief Judge (concurring):

       The Court of Criminal Appeals should determine if this case

is distinguishable from United States v. Perron1 because that

record established that the timing of the payment was important.

On January 15, 1999, Perron entered into a pretrial agreement

that required the convening authority to waive all automatic

forfeitures and pay those to Perron’s family.   On March 8, 1999,

shortly after the convening authority’s action, the defense

counsel sent a clemency request to the convening authority

noting that his family had not been paid the forfeitures and

that his “family cannot survive financially without the aid.”2

He asked for relief in the form of the payment of forfeitures to

his family or immediate release from jail.   On March 11, 1999,

the convening authority responded that he had sent a letter to

the Defense Finance and Accounting Service (DFAS) requesting a

waiver of all forfeitures and payment to his dependents.   DFAS

responded that that was not possible because he had entered a

no-pay status when sentencing occurred and he was confined.

Thus, because there were no forfeitures available, none could be

paid to his family.




1
    58 M.J. 78 (C.A.A.F. 2003).
2
    Id. at 79.
United States v. Lundy, No. 03-0620/AR

        After the convening authority’s action and the response

from DFAS, Perron again sought relief from the Coast Guard Court

of Criminal Appeals.

        Perron clearly noted on the record his unwillingness to

receive late payment.      However, where timing is not critical to

specific performance, that is, payment plus interest satisfies

the agreement, there is no reason to permit withdrawal of the

plea.    The court below should determine the materiality of the

timing and whether this case is different from Perron.      A

payment at this time may constitute specific performance.

        While it is important for the Court to note its

interpretation of 10 U.S.C. § 1059 (2000), in the future, the

Courts of Criminal Appeals must examine their opinions in light

of Clinton v. Goldsmith.3




3
    526 U.S. 529 (1999).

                                    2
