United States v. Thomas, 201700074

Background

Appellant pleaded guilty at a general court-martial to simple assault and wrongfully enticing a person to perform a sexual act for money; sentenced to 6 months confinement, reduction to E-1, and a bad-conduct discharge; CA approved but suspended one month of confinement.
Appellant had reached EAOS on 17 May 2015 and was on legal hold for court-martial; he signed a pretrial agreement (PTA) agreeing to voluntarily extend his enlistment so the government could administratively separate him and to waive an administrative discharge board.
In return the CA agreed to defer and waive automatic forfeitures for the benefit of the appellant’s dependents, payable to the dependents’ mothers, conditioned on the enlistment extension.
On the morning of trial appellant submitted paperwork requesting a four-month voluntary enlistment extension and a waiver of an administrative discharge board; trial counsel, defense counsel, the military judge, SJA, and CA all believed an extension was possible despite EAOS.
After trial the SJA concluded specific performance was impossible because the appellant’s enlistment had ended and regulations prohibit extending enlistment after EAOS; the CA reduced approved confinement by one month but did not provide the enlistment extension or forfeiture payments.
The court held the government breached a material PTA term (the enlistment-extension/forfeiture protection), specific performance was impossible, alternative relief inadequate, and therefore set aside the findings and sentence and authorized a rehearing.

Issues

Issue	Appellant's Argument	Government's Argument	Held
Whether the government breached a material term of the PTA by failing to provide a voluntary enlistment extension (and thus forfeiture protection)	Government promised extension and deferred/waived forfeitures; failure to provide that benefit breaches the PTA	Parties mistakenly believed extension was possible; CA attempted to compensate by reducing approved confinement by one month	Breach found; extension impossible because enlistment had expired; breach of a material term; pleas improvident
Whether specific performance or alternative relief can cure the breach	Appellant sought specific performance (benefit of bargain); rejected alternative relief as inadequate	CA attempted alternative relief (approve one less month of confinement) as compensation	Specific performance impossible; alternative relief inadequate; appellant entitled to benefit of bargain, so findings and sentence set aside

Key Cases Cited

United States v. Lundy, 63 M.J. 299 (C.A.A.F.) (PTA interpretation is a legal question reviewed de novo)
United States v. Riley, 72 M.J. 115 (C.A.A.F.) (military judge must police PTA terms)
United States v. Smead, 68 M.J. 44 (C.A.A.F.) (standards and remedies for government noncompliance with PTA)
United States v. Smith, 56 M.J. 271 (C.A.A.F.) (government cannot provide specific performance where enlistment expired; set aside findings and remand)
United States v. Williams, 55 M.J. 302 (C.A.A.F.) (plea improvidence where parties shared incorrect understanding of pay entitlement under PTA)
United States v. Hardcastle, 53 M.J. 299 (C.A.A.F.) (plea improvident when all parties mistakenly believed forfeiture protection would attach)
United States v. Mitchell, 50 M.J. 79 (C.A.A.F.) (framework for assessing adequacy of alternative relief)