United States v. Kruse, 2016 CCA LEXIS 731

Background

Appellant pleaded guilty at a special court-martial to eight specifications of wrongful drug use (offenses in 2015) and was sentenced to confinement, reduction to E‑1, forfeitures, and a bad-conduct discharge (BCD).
A pretrial agreement provided that if a punitive discharge was adjudged it "will be suspended for a period of six (6) months from the date of the convening authority’s action" and "will be remitted" at the end of the suspension unless sooner vacated.
While the convening authority (CA) action was pending, the appellant was administratively separated with an other-than-honorable characterization of service.
The CA’s action purported to disapprove the BCD as an act of clemency, but the staff judge advocate’s recommendation described the disapproval as clemency.
The court examined whether the CA lawfully could disapprove the BCD given Article 60 changes in the FY2014 NDAA and the pretrial agreement; it held the disapproval was not permitted by law, was a nullity, and enforced the pretrial agreement (suspension and remittal of the BCD).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the pretrial agreement preserved CA discretion to disapprove an adjudged BCD	Appellant: Agreement shows intent to suspend then remit; no argument CA could disapprove	Government: Phrase "May be approved as adjudged" and other language preserved CA discretion to approve/disapprove under the agreement	Court: Agreement unambiguously granted only suspension and remittal; it did not preserve authority to disapprove
Whether CA may disapprove a BCD under Article 60 post‑FY2014 NDAA absent explicit pretrial agreement term	Appellant: CA lacked statutory authority to disapprove except as provided in agreement	Government: CA acted within terms of agreement, so Article 60 permits disapproval	Court: Article 60 limits CA authority; absent explicit agreement term, disapproval is not permitted
Whether the CA’s purported disapproval was legally effective or void	Appellant: Disapproval inconsistent with agreement and law; should be nullified	Government: CA action stands and defeats appellate jurisdiction under Article 66	Court: Disapproval was ultra vires and a nullity; appellate jurisdiction remains under Article 66
Remedy when CA acts contrary to pretrial agreement and law	Appellant: Court should enforce agreement and remit BCD given administrative separation	Government: Practical result same; CA action should be respected	Court: Enforced the agreement, remitted BCD as a matter of law given administrative separation; affirmed findings and sentence otherwise

Key Cases Cited

United States v. Smead, 68 M.J. 44 (C.A.A.F.) (interpretation of pretrial agreements is a question of law reviewed de novo)
United States v. Lundy, 63 M.J. 299 (C.A.A.F.) (pretrial agreement is a contract; accused's understanding matters)
United States v. Perron, 58 M.J. 78 (C.A.A.F.) (pretrial agreements governed by contract principles)
United States v. Acevedo, 50 M.J. 169 (C.A.A.F.) (strict enforcement of express agreement terms; due process limits)
United States v. Williams, 60 M.J. 360 (C.A.A.F.) (role of military judge to ensure shared understanding of PTAs)
United States v. Tarniewicz, 70 M.J. 543 (N-M. Ct. Crim. App.) (ultra vires CA action is a nullity)
United States v. Cox, 46 C.M.R. 69 (C.M.A.) (appellate court may enforce pretrial agreement when CA fails to act)
United States v. Spradley, 41 M.J. 827 (C.A.A.F.) (remittal of punitive discharge when administrative separation intervenes)
United States v. Montesinos, 28 M.J. 38 (C.M.A.) (administrative separation does not deprive appellate jurisdiction)
United States v. Jackson, 3 M.J. 153 (C.M.A.) (jurisdiction continues despite administrative discharge)
Loving v. United States, 517 U.S. 748 (U.S. 1996) (legislative power vested in Congress; courts rely on statutory language)
Dukes v. Smith, 34 M.J. 803 (N.M.C.M.R.) (statutory language ordinarily conclusive of legislative intent)