## Facts

- Staff Sergeant James L. Dunbar, U.S. Army, was tried by court-martial and pleaded guilty to larceny and making false and fraudulent claims against the United States.
- Dunbar entered his pleas pursuant to a pretrial agreement (PTA) addressing how adjudged confinement would be handled and linking that outcome to an administrative separation request.
- The PTA provided: “Any adjudged confinement of three (3) months or more shall be converted into a [bad conduct discharge], which may be approved; any adjudged confinement of less than three (3) months shall be disapproved on submission by the accused of an administrative separation in lieu of court martial IAW AR 635-200, Chapter 10.”
- Immediately after that term, the PTA contained a handwritten annotation stating: “with an Other Than Honorable discharge.”
- The military judge accepted the guilty pleas and sentenced Dunbar to a bad-conduct discharge, confinement for two months, and reduction to Private First Class (E-3).
- At sentencing, the parties stated conflicting interpretations of the PTA:
  - Trial counsel took the view that the convening authority could approve the bad-conduct discharge and reduction, but could not approve the confinement because the confinement was under three months and would be disapproved upon submission of the Chapter 10 request.
  - Defense counsel took the view that the PTA required approval of a Chapter 10 discharge request and therefore did not allow approval of a punitive bad-conduct discharge.
- The military judge did not ask Dunbar to state his own understanding of the disputed PTA provision, and the proceedings ended without resolving the disagreement.
- The convening authority approved the bad-conduct discharge and reduction in grade.
- On appeal, the United States requested that the findings and sentence be set aside due to the unresolved misunderstanding about a material PTA term and the lack of an on-the-record inquiry of Dunbar.

## Issues

1. Whether the guilty plea proceedings must be set aside when the record reveals a material disagreement about the meaning of a pretrial agreement term and the military judge fails to determine the accused’s understanding on the record.

## Decision

- The Army Court of Criminal Appeals set aside the findings and sentence.
- The court concluded that the record showed an unresolved, material disagreement regarding the PTA’s meaning, and the military judge did not establish Dunbar’s personal understanding of the term.
- The court granted the government’s requested relief and returned the case for further proceedings consistent with its ruling (including the possibility of a rehearing).

## Legal Principles

- A pretrial agreement is interpreted as a contract, but plea-agreement interpretation must also protect the accused’s right to a knowing and voluntary guilty plea.
- The military judge must ensure there is a shared understanding of the PTA’s material terms and must place that understanding on the record.
- When counsel announce conflicting interpretations of a material PTA provision in open court, the military judge must resolve the conflict, including by questioning the accused directly about what he understood the agreement to mean.
- If the record does not show the accused understood and accepted the material PTA terms as applied to the sentence consequences (including the type of discharge), the guilty plea may not stand, and setting aside findings and sentence is an appropriate remedy.

## Conclusion

Because the record disclosed a material, unresolved dispute about the PTA’s confinement-and-discharge provision and the military judge failed to confirm Dunbar’s own understanding before concluding the proceedings, the Army Court set aside the findings and sentence and returned the case for further action.


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