## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Specialist JOSHUA A. LUNDY United States Army, Appellant

ARMY 20170324

Headquarters, 82d A irborne Division

Paul J. Cucuzzella , Military Judge Colonel Travis L. Rogers, Staff Judge Advocate (pretrial & adde ndum)

Lieutenant Colonel P ia W. Rogers, Acting St aff Judge Advocate ( recommendation)

For Appellant: Colonel Mary J. B radley, JA; Major Julie L. Bor chers, JA (on brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major A ustin L. Fenwick, JA (on brief).

12 June 2018

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

---------------------------------

Per Curiam:

Appellant and the government agr ee that the conv ening authority ’s action failed to correctly reflect the t erms of the pretrial agreement , which required disapproval of any adjudged forfe itures and waiver of automatic forfeitures. Both parties request this court return the case to the convening aut hority (CA) for a new

action. We take correct ive action ourselves.

A military judge, s itting as a general cou rt-martial , convicted appellant, pursuant to hi s pleas, of one specifi cation of disobeying an or der from his superior commissioned officer, and two spec ifications of as sault consumm ated by a battery in

violation of Articles 90 and 1 28, Uniform Code of Military Just ice, 10 U.S .C. §§ 890 and 928 (UCMJ). The military judg e sentenced appellant to be d ischarged from the Army with a bad-conduct discharg e, to be confined for ten month s, to forfeit all pay and allowances, and t o be reduced to the gr ade of E-1. The CA approved the sentence as adjudged, c ontrary to the pretr ial agreement. The case is before us for Article 66(c) review.LUNDY—ARMY 20170324

2 BACKGROUND

In exchange for appellant’s pleas, the CA agreed:

To disapprove any confinement in excess of twenty-four (24) months.

To disapprove any punitive d ischarge worse than a BadConduct Discharge.

To waive any automatic forfeitu res for the benefit of the [appellant’s] dependents: [E CL] and [EKL], f or the period of six months, the period of confinement, or until the [appellant’s] ETS date, whichever occurs first.

To disapprove any adjudged fines.

To disapprove any adj udged forfeitures.

What happened nex t was a tripartite failu re. First, the Acting Staff Judge Advocate (SJA) recomme nded approving the se ntence as adjudged, including approval of the a djudged forfeitures. S econd, in his post-tria l submissions, appellant’s trial defense counse l stated: “The Defense has no c orrections to the Staff Judge Advocate’s Recommendation.” Third, the SJA then also rec ommended the convening authority a pprove the sent ence as adjudged in his add endum to the Acting

SJA’s recommendation. 1

As such, the CA failed to includ e any language re garding disapp roval of adjudged forfeitures in his ini tial action, and s imply stated, “the sentence is approved and, except f or that part of the s entence ex tending to a Bad-Conduct Discharge will be executed.”

1 R.C.M. 1106(d)(3), requires the SJAR to include a copy or summ ary of the pretrial agreement. The SJAR did not pro vide a summary of the pretrial agreement. Instead

the entire record of t rial was attached to the SJAR. Although the record of trial included the pretrial agreement and therefore satisfied the rul e of providing a copy of the pretrial agreement to the CA, it may have been more bene ficial to the CA to include a summary of the pretrial agre ement. This is particula rly true in appellant’s case since the pretrial agreemen t included the C A taking action on adjudged and

automatic forfeitures.LUNDY—ARMY 20170324

3 Further, the convenin g authority’s initial action failed to acc ount for his prior deferral of adjudged a nd waiver of automatic forfeitures as dir ected in Army Reg. 27-10, Legal Services: Military ju stice, para. 5-32 (11 May 201 6). 2

LAW AND ANALYSIS

The appellant struck a bargain wit h the CA and ful filled his en d of the agreement. Based on post-trial errors in the SJAR and addendum , the CA did not fulfill the terms of the pretrial agreement. The convening aut hority’s action violated the terms of his pretrial agreement with appellant because it a pproved the adjudged

forfeitures that the c onvening authority ag reed to disapprove.

In the interest of j udicial econom y, and to provid e the appella nt with the benefit of the bargain he struck with the conveni ng authority, this court takes corrective action in the decretal paragraph. See United States v. Adney , 61 M.J. 554, 557 (Army Ct. Crim. App. 2005).

CONCLUSION

The findings of guilty are AFFIRMED.

Reassessing the sentence on the basis of the errors noted, we a ffirm only so much of the sentence as provides for appellant to be discharged from the Army with a bad-conduct discharg e, to be confined for ten months, and to be reduced to the grade of E-1. As indicated in th e convening authority’s initia l action, the appellant

will be credited with three days against t he sentence to confin ement.

On 2 June 2017, the ad judged forfeitures w ere deferred until in itial action. 3
On 2 June 2017, th e automatic forfeitures of all pay and allowa nces required by Article 58b, UCMJ were waived for six months, the period of con finement, or until the appellant’s ETS date, whiche ver occurred fir st, with direct ion that these funds be paid to appellant’s spouse, Mrs. BLL, for the benefit of the ap pellant’s dependents,

ECL and EKL.

2 Prior to the v arious errors discusse d above, on 2 June 2017, t he CA separately deferred the adj udged forfeitures until initial action and waiv ed the automatic

forfeitures for six months.

3 Appellant’s Enlisted Record Bri ef indicates tha t his ETS date of 8 September 2017 occurred prior to th e date of initial act ion on 22 November 201 7.LUNDY—ARMY 20170324

4 All rights, privileges , and property, of whi ch appellant has be en deprived by virtue of that portion of the sen tence set aside by this decisi on are ordered restored. See UCMJ 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: