## UNITED STATES ARMY COUR T 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 J onathan E. Cheney, Staff Judge Advocate

For Appellant: Colone l Mary J. Bradley, JA; Major Christopher D. Coleman, JA; Captain Matthew L. Jalandoni, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie, III, JA; Major Michael E. Korte, JA (on brief).

2 February 2017

---------------------------------- SUMMARY DISPOSITION

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Per Curiam:

A general court-martial composed of a military judge conv icted appellant, pursuant with his pl eas, of one specificat ion each of wrongfully selling a fuel card, wrongfully appropriating a motor vehicle, and wrongful ly stealing fuel, all the property of the United States Government , in violation of Articles 108 and 121, Uniform Code of Military Just ice, 10 U.S.C. §§ 908, 921 (2012) [herei nafter UCMJ]. The military judge sentenced appellant to a bad-conduct discharge and confinement for twenty months. Appellan t’s pretrial agreement limited the confinement that the convening authority could appr ove to eighteen months.

Consistent with the advice of his staff judge advocat e (SJA) contained in the Addendum, but contrary to the terms of the pretrial agreement, the convening authority approved the adjudged sentence of twenty m onths confinement. That is, the staff judge advocate’s legal advice and recommendati on (SJAR) was for theJOHNSON—ARMY 20160249

2 convening authority to violate the terms of the pretrial agreem ent and to confine appellant for an addi tional two months.

The government concedes the error.

Appellant asks this court to return to the case to the convening authority for correction. Citing our supe rior court’s decision in United States v. Peron , 58 M.J. 78 (C.A.A.F. 2003), a ppellant specifically rejects this court providing relief by reducing appellant’s se ntence to eighteen months. We find Peron to be unpersuasive. In Peron , the convening authority fail ed to abide by the pretrial agreement as understood by the parties at the time. Sp ecifically, the pretrial agreement anticipated and provided for waiv ed forfeitures being paid to appellant’s dependents. Id . at 89. Because appell ant was in a no-pay status after the conclusion

of his court-martia l his dependents re ceived 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 al ternative relief in li eu of the specific performance of a pretrial ag reement term. However, as this case involves only affirming a lesser amount of confinement than that wh ich 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 discharg e and eighteen mont hs confinement. All rights, privileges, and pr operty, of which appellant ha s been depriv ed by virtue of that portion of the sent ence set aside by this deci sion, are ordere d restored. See UCMJ arts. 58a(b), 5 8b(c), and 75(a).

FOR THE COURT:

MALCOLM H. SQUIRES JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: