Back in 2013, in this post, I discussed a pair of Marine Corps cases involving guilty pleas with pretrial agreements that promised deferment and waiver of forfeitures of pay even though the service members’ enlistments were already over (meaning that once they were placed into post-trial confinement there was no pay due to forfeit, and so no forfeitures to defer or waive).

Forfeitures (whether adjudged by a court-martial or imposed automatically under Article 58b) begin 14 days after a court-martial. Deferment postpones them until the convening authority acts. Adjudged forfeitures may then be suspended or disapproved outright, but automatic forfeitures may only be waived for a maximum of six months (and only for the benefit of a service member’s dependents). Six months after a convening authority acts, however, automatic forfeitures (if applicable) must begin. This “reflects congressional concern ‘that some military service members continued to receive active duty pay and allowances while serving extended prison sentences,'” while “[a]t the same time, in recognition of the hardship that mandatory forfeitures might work on dependents, Congress included discretionary authority ‘to provide transitional compensation for the dependents of the accused.'” United States v. Emminizer, 56 M.J. 441, 443 (C.A.A.F. 2002) (marks and citations omitted).

The NMCCA reversed the guilty pleas in those two cases back in 2013 because it found that the forfeiture and waiver provisions were important terms that made the underlying pleas improvident because the appellants’ dependents did not receive any money since the appellants’ enlistments were over (both enlistments ended prior to the pleas, in fact).

Last week the NMCCA reversed yet another guilty plea because of confusion about forfeitures, but this time it’s even worse. Pursuant to a pretrial agreement, the convening authority “waived automatic forfeitures for the remainder of the appellant’s enlistment, which was a period greater than six months.” United States v. Miceli, No. 201700062, slip op. at 2 (N.M. Ct. Crim. App. Aug. 31, 2017) (link to slip op.). But while the military judge failed to catch this forbidden term in the pretrial agreement, the CCA finds that:

The fault does not lie with the military judge alone, however. The record demonstrates that the appellant, the trial defense counsel, the trial counsel, the staff judge advocate, and the CA all failed to recognize the CA’s inability to waive automatic forfeitures for a period extending beyond six months, as set forth in Article 58b, UCMJ.

Slip op. at 4. Actually it’s worse, as the opinion explains that:

After the case was submitted without assignment of error, we specified two issues [related to the waiver term].

Slip op. at 2 (emphasis added). So at least five judge advocates – military judge, SJA to a general court-martial convening authority, trial counsel, defense counsel, and appellate defense counsel – didn’t realize that the pretrial agreement contained, and the convening authority purported to grant, a forbidden waiver of forfeitures in excess of six months. Yikes!

The CCA, however, comes to the rescue. Six months and 23 days after the convening authority took action, the CCA reverses the guilty plea and authorizes a rehearing. And now, since the appellant’s “enlistment is projected to end on 17 March 2018,” Slip op. at 5, a convening authority will have the power to defer and waive forfeitures right up to the end.

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