United States v. Kruse, 2016 CCA LEXIS 650

Background

Appellant pleaded guilty at a special court-martial to eight specifications of wrongful use of controlled substances (offenses in 2015). The military judge adjudged a bad-conduct discharge, 100 days confinement, reduction to E-1, and forfeitures.
A pretrial agreement provided that if a punitive discharge were adjudged it "will be suspended for a period of six (6) months from the date of the convening authority’s action," and "the suspended punitive discharge will be remitted without further action" at the end of the suspension.
The pretrial agreement was explained on the record; appellant and counsel confirmed understanding and concurrence with the military judge’s summary of the agreement.
The convening authority (CA) did not suspend and remit the bad-conduct discharge as the agreement required; instead the CA purported to disapprove the bad-conduct discharge as an act of clemency and later directed an administrative separation with other-than-honorable characterization.
The court examined whether the CA’s disapproval was permissible under Article 60, UCMJ, given FY14 NDAA limits on CA authority and the terms of the pretrial agreement, and whether that action affected appellate jurisdiction.
Court held the CA’s disapproval of the adjudged bad-conduct discharge violated Article 60 (was not authorized), was a nullity, and enforced the pretrial agreement by suspending and remitting the adjudged bad-conduct discharge; otherwise affirmed findings and sentence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the pretrial agreement preserved CA discretion to disapprove an adjudged bad-conduct discharge	Pretrial agreement shows CA retained some control; phrase "may be approved as adjudged" preserves discretion	Government: phrase preserves CA authority to approve or disapprove and thus CA acted pursuant to the agreement	Agreement unambiguously required suspension and remittance; did not preserve CA power to disapprove discharge
Whether CA disapproval of the discharge complied with Article 60 after FY14 NDAA limitations	Appellant: CA must follow pretrial agreement; disapproval inconsistent with agreement and Article 60	Government: CA’s action falls within pretrial agreement terms, so Article 60 allows it	Disapproval violated Article 60 limits and was not permitted by statute; thus impermissible
Effect of CA’s unlawful disapproval on appellate jurisdiction (Article 66)	Appellant: court retains jurisdiction to enforce agreement and correct CA error	Government: because CA disapproved, no Article 66 threshold for review	Disapproval was a nullity; appellate court retains jurisdiction and may enforce the pretrial agreement
Remedy for CA acting beyond authority	Appellant: enforce the pretrial agreement by suspending and remitting the discharge	Government: practical effect is same but disputed whether appellate review appropriate	Court enforces agreement: suspends and remits the adjudged bad-conduct discharge; affirms remaining findings and sentence

Key Cases Cited

United States v. Smead, 68 M.J. 44 (C.A.A.F. 2009) (pretrial agreement interpretation is a question of law reviewed de novo)
United States v. Lundy, 63 M.J. 299 (C.A.A.F. 2006) (pretrial agreement is a contract; accused’s understanding reflected in the record matters)
United States v. Acevedo, 50 M.J. 169 (C.A.A.F. 1999) (apply contract principles to pretrial agreements; strict enforcement of express terms)
United States v. Williams, 60 M.J. 360 (C.A.A.F. 2004) (military judge must ensure record reflects clear, shared understanding of pretrial agreement terms)
United States v. Tarniewicz, 70 M.J. 543 (N-M. Ct. Crim. App. 2011) (CA action ultra vires is a nullity)
United States v. Cox, 46 C.M.R. 69 (C.M.A. 1972) (appellate courts may enforce pretrial agreements when CA fails to take required action)
United States v. Montesinos, 28 M.J. 38 (C.M.A. 1989) (administrative separation does not vacate conviction or end appellate review)
United States v. Jackson, 3 M.J. 153 (C.M.A. 1977) (jurisdiction continues after administrative discharge while appeals pending)
United States v. Entner, 36 C.M.R. 62 (C.M.A. 1965) (same principle regarding continuing jurisdiction)
Loving v. United States, 517 U.S. 748 (1996) (legislative power vested in Congress; courts interpret statutes according to their language)
American Tobacco Co. v. Patterson, 456 U.S. 63 (1982) (statutory language is ordinarily conclusive absent clear contrary legislative intent)