(concurring):
I agree with the majority opinion. Particularly, I agree that innovative pretrial agreements must be designed so that there is a reasonable, attainable, and determinable time for performance. As admirable as was the intent of the parties here, the agreement was definitely ambiguous as to the time for performance.
As an additional basis for granting appellant relief, I am also of the opinion that neither the convening authority, nor the United States Air Force Court of Military Review gave appropriate consideration to appellant’s total financial status in determining whether he violated the terms of the agreement, but focused only on his inaction in tending to the mental-health treatments. I would apply the same standards articulated in Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), concerning enforcement of fines subject to other terms and conditions of suspended sentences which require financial ability in order to comply. United States v. Tuggle, 34 MJ 89 (CMA 1992). There are two analytical requirements which must be met prior to vacating a suspended sentence. RCM 1113(d)(3), Manual for Courts-Martial, United States, 1984. First, the fact that “the accused has made good-faith efforts to” comply but has not done so because of indigence. Second, “that there is no other punishment adequate to meet the Government’s interest in appropriate punishment.” Id. To me, this requires some effort by both appellant and the Government to resolve the problem. See United States v. Tuggle, supra at 93.