Accused May Request Bad Conduct Discharge in Order to Potentially Avoid a Significant Sentence of Confinement, But…

Civilian Military Defense counsel should be cognizant of a new CAAF ruling that effects the legitimacy of pretrial agreements. United States v. Soto, 69 M.J. 304 (2011), recently reversed a court-martial conviction because the Government and Defense counsel did not disclose their oral agreement to the military judge that required the accused to request a bad conduct discharge (BCD). Thus, there was no inquiry by the military judge about whether or not the accused understood the “material” term as required by RCM 910(h)(3). The fact that this BCD request provision was “tucked away in the quantum portion of the [pretrial agreement] PTA” was rightfully deemed insufficient.

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