Out, damned error out, I say! The year in court-martial personnel, voir dire and challenges, and pleas and pretrial agreements

Army Lawyer, May, 2005 by Deidra J. Fleming

(247) Id.

(248) MCM, supra note 4, R.C.M. 910(0; United States v. King, 3 M.J. 458 (C.M.A. 1977). See also United States v. Green, 1 M.J. 453 (C.M.A. 1976) (reasoning the military judge must establish "on the record that the accused understands the meaning and effect of each provision in the pretrial agreement").

(249) United v. Felder, 59 M.J. 444, 445 (2004).

(250) King, 3 M.J. at 461.

(251) Felder, 39 M.J. at 455.

(252) United States v. Dunbar, 60 M.J. 748 (Army Ct. Crim. App. 2004).

(253) Felder, 39 M.J. at 455.

(254) Id.

(255) Id.

(256) Id. at 446.

(257) Id.

(258) Id. at 445. See also United States v. McFadyen, 51 M.J. 289 0999) (holding an accused may agree to waive any Article 13, UCMJ, or restriction tantamount to confinement credit in a pretrial agreement).

(259) Id. at 446.

(260) United States v. Dunbar, 60 M.J. 748 (2004).

(261) Id. at 749. A pretrial agreement's quantum portion contains all sentence limitations and is not reviewed until after the sentence is announced. Id. See also U.S. DEP'T OF ARMY, REG. 635-200, PERSONNEL SEPARATIONS: ENLISTED PERSONNEL ch. 10 (1 Nov. 2000) (Discharge in Lieu of Trial by Court-Martial) (discussing the procedures for the convening authority to accept the accused's administrative discharge and to dismiss the court-martial charges).

(262) M. at 748-49.

(263) Id. at 749.

(264) Id.

(265) Id. Defense counsel asked "how could we have an other than honorable discharge at the same time we have a bad[-]conduct discharge?" Id. "The military judge responded that the pretrial agreement did not expressly require the convening authority to disapprove the bad-conduct discharge" upon the accused's submission of a Chapter 10. Id.

(266) Id.

(267) Id. at 750.

(268) Id. at 751.

(269) Id.

(270) MCM, supra note 4, R.C.M. 910(h)(3).

(271) Dunbar, 60 M.J. at 752.

(272) United States v. Williams, 60 M.J. 360 (2004).

(273) MCM, supra note 4, R.C.M. 705(d)(4)(B).

(274) Id.

(275) Williams, 60 M.J. at 360.

(276) Id. at 361. In the agreement the convening authority agreed to disapprove any confinement in excess of six months. Id.

(277) Id.

(278) Id.

(279) Id.

(280) Id. See also United States v. Parker, 60 M.J. 666, 669 (N-M. Ct. Crim. App. 2004) (stating "[h]aving found that the military judge committed error in rejecting the accused's plea ... the rejection of the guilty plea was not a 'failure of the accused' to fulfill any material promise or condition in the agreement; therefore, the convening authority was not at liberty to withdraw from the pretrial agreement").

(281) Id. The accused then pleaded guilty without a pretrial agreement and received seven months confinement. Id. at 362. On appeal, the accused did not ask the court to reject his plea but requested credit for the one month confinement difference between his pretrial agreement sentence limitation of six months confinement and the adjudged seven months confinement. Id.

(282) Id. at 362-63.

(283) Id.

(284) Id.

(285) Id.

(286) United States v. Lundy, 60 M.J. 52 (2004).

(287) Huestis, Revolution, supra note 3, at 34.