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 March 21, 2006 

Decided July 18, 2006 

BAKER, J., delivered the opinion of the Court, in which GIERKE, 

C.J., and CRAWFORD and ERDMANN, JJ., joined. EFFRON, J., filed 

a separate opinion concurring in part and in the result. 

Counsel

For Appellant: Captain Seth A. Director (argued); Colonel John 

T. Phelps II, Colonel Mark Cremin, Lieutenant Colonel Kirsten V.

C. Brunson, Lieutenant Colonel Mark Tellitocci, Major Charles A.

Kuhfahl Jr., Captain Charles L. Pritchard Jr., and Captain 

Jeremy W. Robinson (on brief); Major Sean S. Park. 

For Appellee: Major William J. Nelson (argued); Lieutenant 

Colonel Theresa A. Gallagher (on brief); Colonel Steven T. 

Salata and Captain Flor M. Suarez. 

Military Judge: William T. Barto 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Lundy, No. 03-0620/AR 

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Judge BAKER delivered the opinion of the Court. 

On January 27, 2000, Appellant was convicted in accordance 

with his pleas of forcible sodomy with a child under the age of 

twelve, forcible sodomy with a child under the age of sixteen, 

and six specifications of indecent acts with a child under the 

age of sixteen in violation of Articles 125 and 134, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. §§ 925, 934 (2000). 

He was convicted contrary to his pleas of attempted carnal 

knowledge with a child under the age of twelve and attempted 

indecent acts with a child over the age of sixteen in violation 

of Article 80, UCMJ, 10 U.S.C. § 880 (2000). The adjudged 

sentence included a dishonorable discharge, confinement for 

twenty-three years and reduction to the lowest enlisted grade 

(E-1). The sentence approved by the convening authority 

included a dishonorable discharge and confinement for eighteen 

years. He also approved the reduction to E-1, but waived the 

mandatory forfeitures under Article 58b, UCMJ, 10 U.S.C. § 858b 

(2000). This case is on appeal to this Court a second time.1

 

Appellant’s pretrial agreement included a commitment from 

the convening authority on behalf of the United States to “defer 

 

1 See United States v. Lundy (Lundy II), 60 M.J. 52 (C.A.A.F. 

2004) (this Court reversing and remanding); United States v. 

Lundy (Lundy III), 60 M.J. 941 (A. Ct. Crim. App. 2005)(on 

remand, lower court affirming findings of guilty and sentence); 

United States v. Lundy (Lundy I), 58 M.J. 802 (A. Ct. Crim. App. 

2003) (lower court affirming findings of guilty and sentence). 
United States v. Lundy, No. 03-0620/AR 

3

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 

[Appellant’s] wife to the full extent of the law.” The question 

presented on this appeal is whether the timing of the 

Government’s execution of this term was material to the 

agreement and therefore to Appellant’s decision to plead guilty. 

If so, Appellant argues that under United States v. Perron, 58 

M.J. 78 (C.A.A.F. 2003), he is entitled to withdraw his plea as 

improvident. 

BACKGROUND 

After the trial, the convening authority deferred the 

adjudged reduction in grade and the mandatory forfeitures that 

would have taken effect under Article 58b, UCMJ. However, the 

convening authority did not suspend or waive “any and all 

adjudged . . . [and] automatic reductions and forfeitures.” In 

light of an Army regulation that precluded suspending a 

mandatory reduction in grade unless a convening authority also 

suspended any related confinement or punitive discharge, the 

convening authority did not suspend Appellant’s mandatory 

reduction. Dep’t of the Army, Reg. 600-8-19, Personnel-General: 

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

Consequently, upon the convening authority’s action, Appellant 

was automatically reduced from grade E-6 to E-1. In turn, 
United States v. Lundy, No. 03-0620/AR 

4

Appellant’s wife received payments based on the rate of pay of 

an E-1 rather than that of an E-6. Thus, Appellant’s wife 

received some of what was bargained for on her behalf, but not 

all. 

In Lundy II, because the United States Army Court of 

Criminal Appeals in Lundy I determined that the provision at 

issue here was a material term, we remanded to that court to 

determine: (a) whether specific performance was possible; and 

if not (b) whether there were viable options for alternative 

relief under Perron. 60 M.J. at 60. However, in light of our 

conclusion in Perron that the government cannot impose 

alternative relief on an unwilling appellant to satisfy a 

material term in a pretrial agreement, we also ordered the lower 

court to determine whether the timing of any payments was 

material to the pretrial agreement. Id. at 60-61. 

In Lundy III, the Court of Criminal Appeals determined on 

remand that specific performance was available. 60 M.J. at 944. 

It further concluded that “[a]lthough appellant argues that 

specific performance at this late date is, in actuality, a form 

of alternative relief because the timing of payments is a 

material provision of his pretrial agreement, he has failed to 

demonstrate such materiality.” Id. The lower court noted that 

following Lundy II, the Secretary of the Army’s designee 

authorized the convening authority to suspend Appellant’s 
United States v. Lundy, No. 03-0620/AR 

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automatic reduction without the requirement of also suspending 

the related confinement and punitive discharge. Id. at 943. 

Further, after the lower court’s determination in Lundy III, the 

Defense Finance and Accounting Service made payment to 

Appellant’s wife in October 2005 in the amount of the difference 

between the E-1 rate and the E-6 rate of pay for six months with 

interest. At this point, Appellant received the monetary 

benefit of his bargain. However, Appellant now renews his claim 

that the timing of payments at the E-6 rate for the six-month 

period following the convening authority’s action “played a 

large part in his decision to enter into the pretrial 

agreement,” and thus his plea was improvident. 

DISCUSSION 

A pretrial agreement is a contract between the accused and 

the convening authority. See United States v. Acevedo, 50 M.J. 

169, 172 (C.A.A.F. 1999). Therefore, “we look to the basic 

principles of contract law when interpreting pretrial 

agreements.” Id. However, a pretrial agreement is a 

constitutional rather than a commercial contract. Typically, an 

accused foregoes his or her constitutional rights, including the 

privilege against compulsory self-incrimination, the right to 

trial by members, and the right to confront witnesses against 

him in exchange for a reduction in sentence or other benefit. 

Perron, 58 M.J. at 81. As a result, when interpreting pretrial 
United States v. Lundy, No. 03-0620/AR 

6

agreements, “contract principles are outweighed by the 

Constitution’s Due Process Clause protections for an accused.” 

Acevedo, 50 M.J. at 172. In a criminal context, the government 

is bound to keep its constitutional promises, whereas in a 

commercial context it might accept the financial consequences of 

breach. Thus, financial remedies are not necessarily an 

appropriate or available remedy for breach of a plea agreement. 

The right to confrontation, for example, is not redeemable for 

interest. 

Interpretation of a pretrial agreement is a question of 

law, which we review de novo. Id. Whether the government has 

complied with the material terms and conditions of an agreement 

presents a mixed question of law and fact. Hometown Financial, 

Inc. v. United States, 409 F.3d 1360, 1369 (Fed. Cir. 2005); 

Gilbert v. Dep’t of Justice, 334 F.3d 1065, 1071 (Fed. Cir. 

2003). Generally courts look to all of the facts and 

circumstances for this determination, and the inquiry is 

generally considered a question of fact. Singer v. West Publ’g 

Corp., 310 F. Supp. 2d 1246, 1253 (S.D. Fla. 2004). In the 

context of pretrial agreements involving the constitutional 

rights of a military accused, we look not only to the terms of 

the agreement, or contract, but to the accused’s understanding 

of the terms of an agreement as reflected in the record as a 

whole. Where, as here, the relevant facts are undisputed, the 
United States v. Lundy, No. 03-0620/AR 

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materiality determination necessarily reduces to a question of 

law. Gilbert, 334 F.3d at 1072; United States v. Green, 1 M.J. 

453, 456 (C.M.A. 1976). 

An appellant bears the burden of establishing that there is 

a significant basis in law or fact to overturn a guilty plea. 

United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991); United 

States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002). Thus, in 

this context, Appellant bears the burden of establishing that a 

term or condition of the agreement was material to his decision 

to plead guilty, that the Government failed to comply with that 

term or condition, and therefore, that his plea was improvident. 

The term in dispute obligated the convening authority to 

“suspend any and all adjudged and waive any and all automatic 

reductions and forfeitures, and pay them to [Appellant’s] wife 

to the full extent of the law.” The agreement is silent as to 

the timing of performance. However, by law this event could not 

occur sooner than the convening authority’s action. As a matter 

of practice, and in the absence of a contrary agreement, such 

waivers of forfeitures and suspensions are ordinarily executed 

at the time of the convening authority’s action. Article 57, 

UCMJ, 10 U.S.C. § 857 (2000). 

The record reflects the following additional facts: 

 Appellant was sentenced on January 27, 2000. 
United States v. Lundy, No. 03-0620/AR 

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 The convening authority deferred enforcement of 

automatic forfeitures until he could act on the 

sentence. 

 The convening authority took action on May 26, 2000, but 

did not waive or suspend the automatic reduction because 

of provisions contained in a departmental regulation. 

 For the six-month period following the convening 

authority’s action, Appellant’s wife received the 

benefit of the waived forfeitures at the E-1 rate. She 

also received $6,845 of transitional compensation for 

this same period of time. 

 In March of 2001, Appellant became aware of the fact 

that his wife had only received the reduced benefit. 

 On June 19, 2003, the Court of Criminal Appeals issued 

its first opinion in this case upholding the convening 

authority’s action in not waiving or suspending the 

automatic reduction. (Lundy I.) 

 On June 24, 2004, this Court issued its opinion 

remanding to the lower court for a determination on the 

issue of specific performance. (Lundy II.) 

 On January 3, 2005, the convening authority received an 

exception to the departmental regulation, which allowed 

him to suspend the automatic reduction previously 

approved in his prior action. 

 On March 10, 2005, the Army Court of Criminal Appeals 

issued its second opinion in the case. (Lundy III.) 

 On October 7, 2005, Appellant’s wife received the 

remainder of the benefit due her under the pretrial 

agreement, i.e., the difference between the E-1 and E-6 

rate of pay for six months with interest. 

This is a difficult case, in part, because there is an 

absence of information as to the relevance of timing at the time 

the agreement was concluded. In the abstract, the absence of 

any discussion during the plea inquiry regarding timing would 
United States v. Lundy, No. 03-0620/AR 

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seem to support a conclusion that the timing of the payments was 

not a material condition to the agreement. However, as noted 

above, in the ordinary course of military practice the 

suspension or waiver of “any and all reductions and forfeitures” 

would ordinarily occur at the time of the convening authority’s 

action. Thus, absent language to the contrary, we think it fair 

to imply as a term of Appellant’s agreement that it was 

contemplated that the waived forfeiture of pay at the E-6 rate 

was to accrue to Appellant’s wife at the time the convening 

authority acted and that he could expect that this would happen 

at the time he pled guilty. 

In our view, this is Appellant’s strongest argument that 

the term was material to his decision to plead guilty. The 

purpose behind the waiver of forfeitures is to provide for an 

accused’s dependents. The law requires that dependents receive 

such waived forfeitures. Article 58b, UCMJ. It is intuitive 

that military members would want their dependents to benefit 

from the present value of any waiver of forfeitures. However, 

the law also provides, in context, for transitional assistance 

to the abused dependents of a servicemember convicted at courtmartial. Dep’t of Defense, Instr. 1342.24, Transitional 

Compensation for Abused Dependents para. 2.2.3. (May 23, 1995, 

Administrative Reissuance Incorporating Change 1, Jan. 16, 

1997). As a result, it is not necessarily the case that an 
United States v. Lundy, No. 03-0620/AR 

10

accused’s agreement to plead guilty in exchange for a waiver of 

forfeitures and suspension of reductions is intended to provide 

for the immediate financial needs of a member’s dependents as 

opposed to contributing to the dependents’ intermediate or 

longer term financial needs. More to the point, timing would 

always be a material condition to an agreement to waive 

forfeitures and reductions, absent contrary language. This was 

neither the lower court’s conclusion in this case, nor this 

Court’s conclusion in Perron. 

In Perron, we looked beyond the terms of the agreement, to 

the record as a whole, for evidence that the timing of execution 

of the agreement’s financial terms was material to the accused’s 

decision to plead guilty. 58 M.J. 85. Thus, in Perron, we drew 

from defense counsel’s colloquy with the military judge stating 

that the appellant’s specific understanding was that the 

suspension of forfeitures would provide financial support during 

his sixty-day period of confinement. See id. When this did not 

occur, Perron went into a no-pay status and his family received 

no money. See id. Defense counsel then sent a clemency request 

to the convening authority stating “Please consider BM2 

[Boatswain’s Mate Second Class] Perron’s family in this matter. 

The family cannot survive financially without the aid of BM2 

Perron.” Id. at 79. Further, defense counsel then requested 

that the convening authority grant relief from the pay 
United States v. Lundy, No. 03-0620/AR 

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provisions or immediately release Perron from jail in order to 

gain immediate employment and provide financial relief for his 

family. Id. 

Appellant has not met his burden of establishing similar 

evidence that timing was material in this case. The following 

factors while not determinative, inform this conclusion. 

First, the pivotal clause in the plea agreement contained 

the phrase “to the full extent of the law.” This suggests 

emphasis on the amount of payment and not necessarily the speed 

or timing of payment. “To the full extent of the law” is a term 

of art designed to maximize payment, but not necessarily 

expedite process. The term implicitly concedes that the parties 

are not in agreement, or have yet to conclude, the specific 

parameters of the agreed-upon benefit. 

This conclusion is supported by the military judge’s 

inquiry into this term during the providence inquiry: 

MJ: What does “To the full extent as allowed by law” mean, 

[defense counsel]? 

DC: Sir, as I understand the state of the law right now, 

that would be six months from the approval. However, sir, 

I wanted it to be to the full extent of the law because it 

may change, sir. 

MJ: The law may change. 

DC: But I believe it’s six months. 

MJ: Government concur? 
United States v. Lundy, No. 03-0620/AR 

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TC: Sir, the government’s belief is that it’s six months. 

That’s correct. 

Defense counsel’s response emphasizes the duration of payment, 

rather than the immediacy or timing of payment, and both counsel 

reflect uncertainty as to the scope of the law. 

In Lundy II, we observed that the regulatory impediment 

precluding the convening authority from suspending the reduction 

resulted from a departmental action rather than a statutory 

mandate. 60 M.J. at 58. As such, the Army was free to modify 

the regulation, create an exception, or grant a waiver. Id. 

But such steps, even if immediately pursued, could take 

substantial bureaucratic time. This undercuts Appellant’s 

argument that the immediacy of the payments was material to his 

decision to plead guilty. 

Second, the waiver of forfeitures in Appellant’s agreement 

accrued to the benefit of a third party, in this case, 

Appellant’s wife. Regarding this third-party benefit, the 

convening authority began performance when he deferred the 

forfeitures and reduction immediately after the trial. Since 

the convening authority’s ultimate action failed to suspend any 

reduction, the result was an incomplete or partial performance 

of the promises that would complete the benefit to Appellant’s 

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

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However, Appellant has not demonstrated that the thirdparty beneficiary complained. More importantly, because the 

constitutional bargain was with Appellant and not his wife, the 

record reflects that Appellant was not aware until March 2001, 

that his wife did not receive the full benefit of his bargain. 

Thus, unlike the situation in Perron, here Appellant did not 

complain about the convening authority’s failure to act until 

some thirteen months after the fact. Perron, 58 M.J. 79-80. 

This negates Appellant’s assertion that the timing of the 

payments was material to his decision to plead guilty because 

Appellant appears not to have been concerned whether or not his 

wife had received the benefit of the agreement at the time it 

was due. 

During the appellate process, Appellant submitted several 

affidavits, which were considered by the court below. See Lundy 

I, 58 M.J. at 807 n.12; Lundy III, 60 M.J. at 942-43. In the 

affidavit of October 22, 2004, Appellant suggests that the 

belated payment to his wife of the difference between E-1 and E6 pay is no longer of value to his family. He claims that his 

wife has left him for another man and attributes this, in part, 

to “the need for additional support which had been denied them 

by the actions taken in regards to my pay.” He further 

indicates that his daughter (the victim of his offenses) intends 

on moving out of the household with his wife to live with 
United States v. Lundy, No. 03-0620/AR 

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Appellant’s mother. Appellant’s logic is that any benefit 

provided his wife at this point would not benefit his daughter. 

This may be the case. However, the appellate question is not 

whether circumstances have changed such that Appellant’s family 

might benefit less from the terms of the agreement, but whether 

at the time of the agreement, the condition now in dispute was 

material to his decision to plead guilty. 

 To return to where we began our analysis, these factors do 

not demonstrate that timing was necessarily irrelevant to 

Appellant’s decision to plead guilty. But in light of these 

facts, Appellant has not met his burden of demonstrating that 

the timing of the payment to his wife of the difference between 

the two pay grades with interest was material to his agreement 

to plead guilty. Therefore, we agree with the Court of Criminal 

Appeals that the belated payment to Appellant’s wife is not 

alternative relief, but constitutes specific performance of the 

original pretrial agreement. 

DECISION 

 The decision of the United States Army Court of Criminal 

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

EFFRON, Judge (concurring in part and in the result): 

 I agree with the majority that Appellant has failed to 

carry the burden of demonstrating that there is a significant 

basis in law to overturn his plea. I write separately to focus 

on the Government’s offer to provide full payment plus interest 

to cover the delay in the payment that is the subject of the 

present appeal. Appellant has failed to demonstrate that the 

Government’s offer does not constitute an adequate remedy under 

the circumstances of this case. 

 As the majority notes, it is “fair to imply as a term of 

Appellant’s agreement that it was contemplated that the waived 

forfeiture of pay at the E-6 rate was to accrue to Appellant’s 

wife at the time the convening authority acted and that 

Appellant could expect that this would happen at the time he 

pled guilty.” United States v. Lundy, 63 M.J. __, __ (9) 

(C.A.A.F. 2006). “It is intuitive that military members would 

want their dependents to benefit from the present value of any 

waiver of forfeitures.” Id. at __ (9).

 In that context, factors such as the availability of 

transitional compensation and the request for payments “to the 

full extent of the law,” see id. at __ (9–11), do not 

demonstrate that Appellant contemplated that the agreement would 

permit delayed payments at the E-6 level. Such factors 

underscore that financial assistance to the family was a 
United States v. Lundy, No. 03-0620/AR 

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significant factor in the decision to plead guilty, but do not 

reflect that the parties contemplated a significant delay in the 

timing of the agreed-upon payments. While there may be cases in 

which the availability of transitional compensation and 

possibility of changes in the law would permit us to discount 

the importance of timing, the record here does not demonstrate 

that this is such a case. 

 By its actions, the Government has recognized that timing 

was an important component of the agreement. The Government has 

agreed not only to provide the full payment at the E-6 level, 

but it has also agreed to pay interest to remedy the untimely 

payment. Interest payments are a classic means of compensating 

one party for the other party’s delay in making payments. 

Restatement (Second) of Contracts § 354(1) (1981). In that 

light, we may proceed on the basis that immediate payments were 

contemplated by Appellant, but that does not resolve the 

question of whether the delay requires nullification of the 

agreement. 

 There are a number of ways to address the government’s 

failure to perform its responsibilities under a plea agreement: 

 (1) Require specific performance by the government or 

permit withdrawal from the agreement. See United States v. 

Perron, 58 M.J. 78, 84 (C.A.A.F. 2003) (citing Santobello v. New 

York, 404 U.S. 257, 263 (1971)). 
United States v. Lundy, No. 03-0620/AR 

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 (2) Provide for alternative relief, with the consent of the 

Appellant. See id. at 86 (holding that an alternative remedy 

may not be imposed on an unwilling defendant). 

 (3) Provide an adequate remedy to cure the material breach 

of the agreement. See, e.g., United States v. Garcia, 698 F.2d 

31, 37 (1st Cir. 1983) (resentencing defendant to time already 

served where other remedies would be meaningless or infeasible); 

Cooper v. United States, 594 F.2d 12, 20-21 (4th Cir. 1979) 

(ordering specific enforcement “to the extent possible” of a 

plea proposal withdrawn by the government, where the lapse of 

time and intervening circumstances compelled the court to 

disregard some obligations of the government and defendant).

 The term “specific performance” does not require the 

government to comply with each literal detail of the agreement 

when there is an adequate remedy. As we noted in Perron, 

“[w]here the failed term in the agreement involves pure economic 

concerns, finding relief of equal value is possible.” 58 M.J. 

at 85. Even when the term of an agreement involves a noneconomic benefit, literal performance is not necessarily 

required if the level of performance possible at a later date 

constitutes an adequate remedy. See, e.g., Garcia, 698 F.2d at 

37; Cooper, 594 F.2d at 20-21. In that regard, there is a 

distinction between: (1) alternative relief, which involves 

creation of a new agreement requiring the consent of the 
United States v. Lundy, No. 03-0620/AR 

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parties; and (2) an adequate remedy, which does not require any 

further agreement. 

 When the issue on appeal involves delayed timing of 

performance by the government, the question of whether belated 

performance constitutes an adequate remedy must be assessed on a 

case-by-case basis. The common law of contracts provides an 

important source of authority in this regard. The Restatement 

(Second) of Contracts, states that among the factors to be 

considered in assessing the adequacy of a remedy proposed to 

cure a contractual breach are the extent to which the breach may 

deprive a party of an expected benefit, whether a party can be 

adequately compensated for the lost benefit, the likelihood that 

the breaching party will perform a remedy, the breaching party’s 

adherence to standards of good faith and fair dealing, and 

whether delay precludes reasonable substitute arrangements. 

Restatement (Second) of Contracts, §§ 241, 242 (1981). Contract 

law, however, is helpful but not determinative. The ultimate 

assessment must also reflect due process considerations. See

Perron, 58 M.J. at 85-86 (stating that the remedy for a material 

breach of a pretrial agreement must corroborate the 

voluntariness of the guilty plea). 

 In Perron, the lower court concluded that the timing of the 

payments was addressed on the face of the agreement. 58 M.J. at 

85. In that context, with the breach of the agreement as to 
United States v. Lundy, No. 03-0620/AR 

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timing at issue, we concluded that the government’s offer of 

belated payments plus interest could not be treated as specific 

performance, but instead amounted to alternative relief, which 

could be substituted only with the consent of the appellant. 

See id. at 85-86. 

 In the present case, the agreement on its face does not 

address timing. Our prior decision in this case expressly left 

open the question of whether a belated payment could constitute 

specific performance. United States v. Lundy, 60 M.J. 52, 60-61 

(C.A.A.F. 2004) (remanding to determine whether a delayed 

implementation of a suspension would be considered specific 

performance). Here, the agreement focused on the provision of 

financial benefits to his dependents. In this context, 

Appellant must not only show the adverse effects of belated 

payments -- a matter addressed in his filings with our Court -- 

but he must also demonstrate that full payments plus interest 

would not provide an adequate remedy. 

 Appellant’s dependents can now receive a substantial sum of 

money from the Government, including interest covering the time 

during which payments were delayed. Appellant has failed to 

demonstrate that the payment of substantial sums to his 

dependents, at this time, would not constitute an adequate 

remedy for the Government’s breach. Accordingly, he has not met 
United States v. Lundy, No. 03-0620/AR 

6

his burden of showing that there is a significant basis in law 

for overturning his plea.