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 

2

 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 E1. 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). 
United States v. Lundy, No. 03-0620/AR 

3

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

4

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

5

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

6

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

7

dependents of service members who are the victims of dependentabuse 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 
United States v. Lundy, No. 03-0620/AR 

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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. 
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 

2

 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).