United States v. Specialist DAVID L. JOHNSON

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, FEBBO, and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist DAVID L. JOHNSON
United States Army, Appellant
ARMY 20160249
Headquarters, U.S. Army Garrison and Fort Meade
Andrew Glass and Tyesha Smith, Military Judges
Lieutenant Colonel Jonathan E. Cheney, Staff Judge Advocate
For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Matthew L. Jalandoni, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie, III,
JA; Major Michael E. Korte, JA (on brief).
2 February 2017
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SUMMARY DISPOSITION
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Per Curiam:
A general court-martial composed of a military judge convicted appellant,
pursuant with his pleas, of one specification each of wrongfully selling a fuel card,
wrongfully appropriating a motor vehicle, and wrongfully stealing fuel, all the
property of the United States Government, in violation of Articles 108 and 121,
Uniform Code of Military Justice, 10 U.S.C. §§ 908, 921 (2012) [hereinafter UCMJ].
The military judge sentenced appellant to a bad-conduct discharge and confinement
for twenty months. Appellant’s pretrial agreement limited the confinement that the
convening authority could approve to eighteen months.
Consistent with the advice of his staff judge advocate (SJA) contained in the
Addendum, but contrary to the terms of the pretrial agreement, the convening
authority approved the adjudged sentence of twenty months confinement. That is,
the staff judge advocate’s legal advice and recommendation (SJAR) was for the
JOHNSON—ARMY 20160249
convening authority to violate the terms of the pretrial agreement and to confine
appellant for an additional two months.
The government concedes the error.
Appellant asks this court to return to the case to the convening authority for
correction. Citing our superior court’s decision in United States v. Peron, 58 M.J.
78 (C.A.A.F. 2003), appellant specifically rejects this court providing relief by
reducing appellant’s sentence to eighteen months. We find Peron to be
unpersuasive. In Peron, the convening authority failed to abide by the pretrial
agreement as understood by the parties at the time. Specifically, the pretrial
agreement anticipated and provided for waived forfeitures being paid to appellant’s
dependents. Id. at 89. Because appellant was in a no-pay status after the conclusion
of his court-martial his dependents received nothing. Id. The CAAF held that the
alternative relief of setting aside the confinement did not remedy the lack of specific
performance. Id.
We agree with appellant that neither the convening authority nor this court
can, without appellant’s consent, provide alternative relief in lieu of the specific
performance of a pretrial agreement term. However, as this case involves only
affirming a lesser amount of confinement than that which was approved by the
convening authority, we can provide appellant with specific performance.
CONCLUSION
The findings of guilty are AFFIRMED. We AFFIRM only so much of the
sentence as provides for a bad-conduct discharge and eighteen months confinement.
All rights, privileges, and property, of which appellant has been deprived by virtue
of that portion of the sentence set aside by this decision, are ordered restored. See
UCMJ arts. 58a(b), 58b(c), and 75(a).
FOR
FORTHE
THECOURT:
COURT:
MALCOLMH.
MALCOLM H.SQUIRES
SQUIRES,JR.
JR.
Clerk of Court
Clerk of Court
2