NMCCA has issued an unpublished opinion in United States v. Juckniewitz.
This case addresses the occasional problem when a client is in pretrial confinement, but is past his EAOS, EAS, ETS, etc. Or in Juckniewitz. During PTA negotiations the client is concerned for the family and negotiates a deferral and waiver of forfeitures (and sometimes the reduction). The idea is to keep the family in funds.
Neither party appears to have realized that it was impossible for the appellant to benefit from the automatic forfeiture protection provision, which brings his case within a long line of military appellate cases addressing similar facts.
There was a misunderstanding of a material term of the pretrial agreement that doesn’t appear to have been discovered or understood until after trial – no money to defer or waive. Post-trial, “appellant, through counsel, aggressively raised this issue for the first time in his third clemency request, wherein the appellant asked the CA to disapprove the punitive discharge or, in the alternative, defer and suspend his remaining confinement[.] Slip op. at 4-5. Despite CAAF’s holding in United States v. Smith, 56 M.J. 271, 279 (C.A.A.F. 2002), the CA declined, upon advice of the SJA to grant a different form of relief.
In this case the court found the guilty plea improvident and set-aside the findings and sentence. I assume at this point the Appellant has served the adjudged (June 2012) six months to confinement.