Back in February the NMCCA decided United States v. Juckniewitz, No. 201200441 (N-M.Ct.Crim.App. Feb. 28, 2013) (unpublished) (opinion). Private First Class (PFC) Juckniewitz pleaded guilty at a special court-martial to one specification of conspiring to sell military property and one specification of selling military property, in violation of Articles 81 and 108, UCMJ. He was sentenced to confinement for six months, forfeiture of $745 pay per month for six months, reduction to E-1, and a bad-conduct discharge.
Pursuant to a pretrial agreement the convening authority disapproved the adjudged forfeitures. In the pretrial agreement the convening authority also “agreed to . . . defer and then waive any automatic forfeitures, provided that the appellant allot those funds to his spouse.” Slip op. at 2.
There was just one problem: one month before the convening authority approved the PTA, and two months before the June 2012 trial, PFC Juckniewitz reached his End of Active Obligated Service (EAOS) date, meaning that when he was confined post-trial he was also placed into a no-pay due status. “The appellant’s no-pay status while confined meant that there was no pay for him to forfeit automatically and allot to his spouse. Thus this PTA term was rendered meaningless.” Slip op. at 2. This, of course, conforms with “a long line of military appellate cases addressing similar facts.” Slip op. at 3 (citations omitted).
The PTA itself even contained the following perfectly-clear language:
I understand that if I am held in confinement beyond my End of Active Obligated Service (EAOS) date, then I will not receive any pay or allowances by operation of law, regardless of the terms of this agreement.
Slip op. at 3. So its perhaps unsurprising that, “The appellant assigns two errors, both pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).” Slip op. at 2. In Grostefon the Court of Military Appeals concluded:
Henceforth, we will require that when the accused specifies error in his request for appellate representation or in some other form, the appellate defense counsel will, at a minimum, invite the attention of the Court of Military Review to those issues and, in its decision, the Court of Military Review will, at a minimum, acknowledge that it has considered those issues enumerated by the accused and its disposition of them.
Grostefon, 12 M.J. at 436. In other words, no matter how seemingly-meritless the issue, if an appellant asks his detailed appellate defense counsel to raise an issue with the appellate court, then the appellate defense counsel must at least raise the issue. This matters because the pay issue in this case, that was spelled out in the PTA itself, and should have been blindingly obvious to everyone at the trial stage, and was a total loser of an issue on appeal, was only raised because Appellant insisted on it pursuant to Grostefon. . .
And then the NMCCA set aside the findings:
we find the appellant’s pleas improvident due to a mutual misunderstanding of a material term of the PTA. Since “alternative relief” has not been agreed to by the parties, we set aside the findings and the sentence and authorize a rehearing.
Slip op. at 5. And then, three months later, the NMCCA did it again:
The appellant assigns two errors: first, that he failed to receive the benefit of his bargained-for protection against automatic forfeitures because he was past his End of Active Obligated Service (EAOS) date . . . We find merit in the appellant’s first assignment of error and set aside the findings and the sentence
United States v. McCall, No. 201200461 (N-M.Ct.Crim.App. May 30, 2013) (unpublished) (opinion). Of course, just like in Juckniewitz, the PTA in McCall contained clear language that explained that Sergeant McCall would receive no pay or allowances when confined past his EAOS. And, just like in Juckniewitz, the appellant in McCall was past his EAOS when he pleaded guilty.
By the way, Sergeant McCall pleaded guilty to 15 (yes, 15) specifications of wrongful possession of a controlled substance (prescription painkillers) in violation of Article 112a, UCMJ, and was sentenced to confinement for 2 years, reduction to E-1, and a dishonorable discharge. Pursuant to the PTA, the convening authority agreed to suspend all confinement in excess of 180 days, to disapprove any adjudged forfeitures and fines, and to defer and then waive any automatic forfeitures so long as appellant allotted those funds to his spouse.