United States v. Pulliam, ACM S32379

Background

Appellant, an Airman stationed in Italy, pled guilty at a special court-martial to multiple specifications of wrongful use and distribution of marijuana; two urinalyses confirmed use.
Before trial, Appellant received nonjudicial punishment (Article 15): reduction from E-3 to E-1, forfeitures totaling $1,546, and 45 days extra duty; he also spent 114 days in pretrial confinement.
Appellant entered a pretrial agreement: he would plead guilty and, in return, the convening authority’s appendix agreed among other things to dismiss a possession spec, decline further punitive action for the same facts, approve no confinement/restrictions/hard labor, direct immediate release after trial, defer adjudged confinement until approval, and “apply any sentencing credit to the approved sentence.”
At trial the military judge awarded 114 days confinement credit for pretrial confinement and an additional 15 days Pierce credit for overlapping Article 15 punishment, totaling 159 days credit; the judge and parties extensively discussed the meaning of paragraph 7 (apply credit to approved sentence).
At trial all parties (including Appellant) characterized paragraph 7 as a “safety net” or catchall intended to ensure no confinement/restrictions/hard labor, and agreed the convening authority could approve the bad-conduct discharge; Appellant did not request applying credit to the discharge in his clemency submission.
The convening authority approved only the bad-conduct discharge. On appeal Appellant argued the pretrial agreement and Pierce required that the sentencing credit be applied against the approved punitive discharge.

Issues

Issue	Appellant's Argument	Government's Argument	Held
Whether the pretrial agreement required the convening authority to apply awarded sentencing credit to the approved bad-conduct discharge	Appellant says the agreement’s paragraph 7 obligated the convening authority to apply sentencing credit to the approved sentence (i.e., reduce effect of the BCD)	Govt. (and convening authority practice) says paragraph 7 was a catchall/safety net to prevent additional confinement/restrictions and did not limit the convening authority from approving the BCD	Court held paragraph 7 was ambiguous but parties’ unanimous trial-stage interpretation controlled: it was a safety net and did not bar approval of the bad-conduct discharge; no requirement to apply credit to the BCD
Whether Appellant was entitled to Pierce credit against punishment he received pretrial and post-trial	Appellant sought sentencing credit pursuant to Pierce for overlapping Article 15 punishments and for pretrial confinement	Trial counsel conceded and the military judge awarded Pierce credit; Govt accepted judge’s award	Court affirmed that Appellant received Pierce credit (159 days total) and was not punished twice; award of credit satisfied Pierce principles
Whether Appellant waived his current interpretation by failing to raise it earlier	Appellant now contends the agreement required credit apply to the BCD	Govt points to Appellant’s trial-stage statements and clemency submissions that did not seek application to the discharge	Court held Appellant waived the new interpretation; greatest weight given to parties’ stated understanding at trial; belated appellate view given least weight
Standard for interpreting ambiguous pretrial agreements	N/A (issue of law)	N/A	Court applied contract principles but gave greatest weight to parties’ at-trial statements and post-trial submissions; reviewed de novo

Key Cases Cited

United States v. Pierce, 27 M.J. 367 (C.M.A. 1989) (addresses credit for pretrial nonjudicial punishment overlapping court-martial sentence)
United States v. Acevedo, 50 M.J. 169 (C.A.A.F. 1999) (pretrial agreement interpretation follows contract principles but is governed by due process; give deference to agreement language)
United States v. Craven, 69 M.J. 513 (A.F. Ct. Crim. App. 2010) (greatest weight accorded to parties’ stated understanding of ambiguous pretrial terms at trial)