UNITED STATES ARMY COURT 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 Airborne Division 

Paul J. Cucuzzella, Military Judge 

Colonel Travis L. Rogers, Staff Judge Advocate (pretrial & addendum) 

Lieutenant Colonel Pia W. Rogers, Acting Staff Judge Advocate (recommendation) 

For Appellant: Colonel Mary J. Bradley, JA; Major Julie L. Borchers, JA (on brief). 

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Austin L. Fenwick, 

JA (on brief). 

12 June 2018 

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

SUMMARY DISPOSITION 

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

Per Curiam: 

Appellant and the government agree that the convening authority’s action 

failed to correctly reflect the terms of the pretrial agreement, which required 

disapproval of any adjudged forfeitures and waiver of automatic forfeitures. Both 

parties request this court return the case to the convening authority (CA) for a new 

action. We take corrective action ourselves. 

A military judge, sitting as a general court-martial, convicted appellant, 

pursuant to his pleas, of one specification of disobeying an order from his superior 

commissioned officer, and two specifications of assault consummated by a battery in 

violation of Articles 90 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 890 

and 928 (UCMJ). The military judge sentenced appellant to be discharged from the 

Army with a bad-conduct discharge, to be confined for ten months, to forfeit all pay 

and allowances, and to be reduced to the grade of E-1. The CA approved the 

sentence as adjudged, contrary to the pretrial 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 discharge worse than a BadConduct Discharge. 

To waive any automatic forfeitures for the benefit of the 

[appellant’s] dependents: [ECL] and [EKL], for 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 adjudged forfeitures. 

What happened next was a tripartite failure. First, the Acting Staff Judge 

Advocate (SJA) recommended approving the sentence as adjudged, including 

approval of the adjudged forfeitures. Second, in his post-trial submissions, 

appellant’s trial defense counsel stated: “The Defense has no corrections to the Staff 

Judge Advocate’s Recommendation.” Third, the SJA then also recommended the 

convening authority approve the sentence as adjudged in his addendum to the Acting 

SJA’s recommendation.1

 

As such, the CA failed to include any language regarding disapproval of 

adjudged forfeitures in his initial action, and simply stated, “the sentence is 

approved and, except for that part of the sentence extending to a Bad-Conduct 

Discharge will be executed.” 

 

1

 R.C.M. 1106(d)(3), requires the SJAR to include a copy or summary of the pretrial 

agreement. The SJAR did not provide a summary of the pretrial agreement. Instead 

the entire record of trial was attached to the SJAR. Although the record of trial 

included the pretrial agreement and therefore satisfied the rule of providing a copy 

of the pretrial agreement to the CA, it may have been more beneficial to the CA to 

include a summary of the pretrial agreement. This is particularly true in appellant’s 

case since the pretrial agreement included the CA taking action on adjudged and 

automatic forfeitures. 
LUNDY—ARMY 20170324 

3 

Further, the convening authority’s initial action failed to account for his prior 

deferral of adjudged and waiver of automatic forfeitures as directed in Army Reg. 

27-10, Legal Services: Military justice, para. 5-32 (11 May 2016).2

LAW AND ANALYSIS 

The appellant struck a bargain with the CA and fulfilled his end 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 authority’s action violated 

the terms of his pretrial agreement with appellant because it approved the adjudged 

forfeitures that the convening authority agreed to disapprove. 

In the interest of judicial economy, and to provide the appellant with the 

benefit of the bargain he struck with the convening 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 affirm only so 

much of the sentence as provides for appellant to be discharged from the Army with 

a bad-conduct discharge, to be confined for ten months, and to be reduced to the 

grade of E-1. As indicated in the convening authority’s initial action, the appellant 

will be credited with three days against the sentence to confinement. 

On 2 June 2017, the adjudged forfeitures were deferred until initial action.3

 

On 2 June 2017, the automatic forfeitures of all pay and allowances required by 

Article 58b, UCMJ were waived for six months, the period of confinement, or until 

the appellant’s ETS date, whichever occurred first, with direction that these funds be 

paid to appellant’s spouse, Mrs. BLL, for the benefit of the appellant’s dependents, 

ECL and EKL. 

 

2

 Prior to the various errors discussed above, on 2 June 2017, the CA separately 

deferred the adjudged forfeitures until initial action and waived the automatic 

forfeitures for six months. 

3

 Appellant’s Enlisted Record Brief indicates that his ETS date of 8 September 2017 

occurred prior to the date of initial action on 22 November 2017. 
LUNDY—ARMY 20170324 

4 

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 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: