UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

 MULLIGAN, FEBBO, and WOLFE 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist DAVID L. JOHNSON 

United States Army, Appellant 

ARMY 20160249 

Headquarters, U.S. Army Garrison and Fort Meade 

Andrew Glass and Tyesha Smith, Military Judges 

Lieutenant Colonel Jonathan E. Cheney, Staff Judge Advocate 

For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA; 

Captain Matthew L. Jalandoni, JA (on brief). 

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie, III, 

JA; Major Michael E. Korte, JA (on brief).

2 February 2017 

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SUMMARY DISPOSITION 

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Per Curiam: 

A general court-martial composed of a military judge convicted appellant, 

pursuant with his pleas, of one specification each of wrongfully selling a fuel card, 

wrongfully appropriating a motor vehicle, and wrongfully stealing fuel, all the 

property of the United States Government, in violation of Articles 108 and 121, 

Uniform Code of Military Justice, 10 U.S.C. §§ 908, 921 (2012) [hereinafter UCMJ]. 

The military judge sentenced appellant to a bad-conduct discharge and confinement 

for twenty months. Appellant’s pretrial agreement limited the confinement that the 

convening authority could approve to eighteen months. 

Consistent with the advice of his staff judge advocate (SJA) contained in the 

Addendum, but contrary to the terms of the pretrial agreement, the convening 

authority approved the adjudged sentence of twenty months confinement. That is, 

the staff judge advocate’s legal advice and recommendation (SJAR) was for the 
JOHNSON—ARMY 20160249 

2

convening authority to violate the terms of the pretrial agreement and to confine 

appellant for an additional two months. 

The government concedes the error. 

Appellant asks this court to return to the case to the convening authority for 

correction. Citing our superior court’s decision in United States v. Peron, 58 M.J. 

78 (C.A.A.F. 2003), appellant specifically rejects this court providing relief by 

reducing appellant’s sentence to eighteen months. We find Peron to be 

unpersuasive. In Peron, the convening authority failed to abide by the pretrial 

agreement as understood by the parties at the time. Specifically, the pretrial 

agreement anticipated and provided for waived forfeitures being paid to appellant’s 

dependents. Id. at 89. Because appellant was in a no-pay status after the conclusion 

of his court-martial his dependents received nothing. Id. The CAAF held that the 

alternative relief of setting aside the confinement did not remedy the lack of specific 

performance. Id. 

We agree with appellant that neither the convening authority nor this court 

can, without appellant’s consent, provide alternative relief in lieu of the specific 

performance of a pretrial agreement term. However, as this case involves only 

affirming a lesser amount of confinement than that which was approved by the 

convening authority, we can provide appellant with specific performance. 

CONCLUSION 

The findings of guilty are AFFIRMED. We AFFIRM only so much of the 

sentence as provides for a bad-conduct discharge and eighteen months confinement. 

All rights, privileges, and property, of which appellant has been deprived by virtue 

of that portion of the sentence set aside by this decision, are ordered restored. See

UCMJ arts. 58a(b), 58b(c), and 75(a). 

FOR THE COURT: 

MALCOLM H. SQUIRES JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: