Criminal Law...

7. Pretrial Restraint and Confinement


Pretrial Restraint and Confinement


  1.       References

  2.       Pretrial Restraint

  3.       Pretrial Confinement

  4.       Sentence Credit


I.  References 

A.  UCMJ, art. 7, 9, 10, 13, 15

B.   Rule for Courts-Martial 302

C.   Rule for Courts-Martial 304

D.  Rule for Courts-Martial 305

E.   Army Regulation 27-10

F.   US Army Trial Judiciary SOP for Military Magistrates

G. NOTE: The National Defense Authorization Act of FY 2022 (FY22 NDAA) was passed on 27 Dec. 2021 and its most impactful changes will become effective on 27 Dec. 2023.  FY22 NDAA brings substantial changes and updates to the UCMJ and military justice system. These changes include the creation of the Office of the Special Trial Counsel (OSTC) and specific rules and restrictions as to the preferral and referral of certain covered offenses.  Any known changes or updates are detailed below as they relate to this chapter. However, be aware that some cases or information may have limited or reduced applicability to practitioners during this period of transition. Despite the changes to authority over covered offenses, there are no specific changes to the existing rules and authorities as it pertains to commander's authority to impose Pretrial Restraint in all cases. Military practitioners are advised to carefully monitor for changes, local or military-wide, in this area of the law.

II. Pretrial Restraint

A.  Types of pretrial restraint:  “Pretrial restraint is moral or physical restraint on a person’s liberty which is imposed before and during disposition of offenses.”  RCM 304(a).  There are four types of pretrial restraint:  conditions on liberty; restriction in lieu of arrest; arrest; and pretrial confinement.

1.   Conditions on liberty:  “[O]rders directing a person to do or refrain from doing specified acts.”  These can include orders to report periodically to a certain official (commander, staff duty, etc.), orders not to go to certain places, or orders not to associate with certain persons (victims, witnesses, etc.).  The order can be oral or written.  RCM 304(a) discussion.

a.   Conditions on liberty is the only form of pretrial restraint that does not trigger the RCM 707 120-day speedy trial clock.  RCM 707(a)(2). 

b.   Any conditions imposed must be reasonable in order to avoid interfering with the defense’s pretrial preparation.  Furthermore, the more onerous the conditions are, the more likely it is that the court will determine that the conditions actually amount to restriction, which triggers the 120-day speedy trial clock under RCM 707:

(1)   United States v. Wilkinson, 27 M.J. 645 (A.C.M.R. 1988), petition denied, 28 M.J. 230 (C.M.A. 1989):  Denial of off-post pass that left the accused free access to the entire installation with all its support and recreational facilities was at most a condition on liberty that did not affect speedy trial clock.  “[The lack of pass privileges] will, in the usual case, have no impact on rules relating to speedy trial.” 

(2)   But see United States v. Wagner, 39 M.J. 832 (A.C.M.R. 1994):  In dicta, court questioned Wilkinson’s application to married Soldier living off post, especially in foreign country.  Court should consider extent and duration of disruption of spousal and parental responsibilities.

(3)   United States v. Melvin, 2009 WL 613883 (A.F. Ct. Crim. App. 2009):  Maj. Melvin was an Air Force ROTC instructor.  He was charged with providing underage cadets in his detachment with alcohol, had sexual intercourse with a female cadet, and encouraged cadets to lie to investigating officers.  He was adjudged a dismissal and six months confinement.  One issue on appeal was the trial judge’s decision to start the 120 day speedy trial clock at preferral of charges.  Maj. Melvin asserted it should have started when he received a no contact order with the cadets and was sent TDY away from the university area and more significantly, his family that lived there.  Maj. Melvin contended that since he was forced away from his family and could not return home without taking leave, this equated to restriction and pretrial restraint under RCM 304(a)(2)-(3).  Alternatively, Maj. Melvin argued that his extension on active duty was a second triggering date before preferral.  The appellate court agreed with the trial judge that neither of these positions contained merit.

2.   Restriction in lieu of arrest:  “[O]ral or written orders directing the person to remain within specified limits.”  Restricted person normally performs full military duties.  RCM 304(a)(2).

a.   Restriction v. arrest.  United States v. Schuber, 70 M.J. 181 (C.A.A.F. 2011):  Schuber was subject to restriction not tantamount to arrest during the period following his 71 days in pretrial confinement, where he was restricted to base rather than to quarters, and although he was required to provide weekly urine samples, he was permitted to use all usual base activities, was given a three-day pass upon the death of his grandfather, was not placed under guard or escort during his base restriction or travel, and was not suspended from performing normal military duties. The court held, “there are gradations of restriction. Whether a particular restriction amounts to arrest for the purposes of Article 10, UCMJ, will depend on a contextual analysis . . . including consideration of such factors as the geographic limits of constraint, the extent of sign-in requirements, whether restriction is performed with or without escort, and whether regular military duties are performed.”  In doing so, the court made it easier for defense counsel to argue that an accused is under arrest and thus protected by Article 10. The accused could be performing military duties but still be under arrest because of narrow geographic limits of constraint, sign-in requirements, and escort requirements.

b.   Additional conditions of restriction:  Servicemember may be lawfully ordered to abstain from alcohol as a condition of pretrial restriction.  United States v. Blye, 37 M.J. 92 (C.M.A. 1993).

3.   Arrest:  “[R]estraint of a person by oral or written order . . . directing the person to remain within specified limits; a person in the status of arrest may not be required to perform full military duties . . . . ”  A person under arrest can still be directed “to do ordinary cleaning or policing, or to take part in routine training and duties,” but cannot perform command or supervisory duties, serve as a guard, or bear arms.  RCM 304(a)(3). 

a.   Note that what is usually considered “arrest” in the civilian context is called apprehension in military practice.  RCM 302.  Apprehension is not a form of pretrial restraint and does not trigger speedy trial protections under RCM 707 or Article 10.

b.   Arrest is rarely formally imposed.  The degree of restriction required to rise to the leve of arrest must be quite severe.  When restriction conditions are severe enough to qualify as arrest there may be a corresponding greater potential for Mason (restriction tantamount to confinement) credit.  

4.   Pretrial confinement:  “Pretrial confinement is physical restraint” and is discussed in detail in Section III.  RCM 304(a)(4), 305.

5.   Restriction in lieu of arrest, arrest, and pretrial confinement trigger the RCM 707 120-day speedy trial clock.  Arrest and confinement trigger the more stringent Article 10 speedy trial protections.

B.When a person may be restrained.  UCMJ art. 9(d); RCM 304.

1.A person may be placed under pretrial restraint when there is probable cause, which RCM 304(c) defines as a reasonable belief that:

a.An offense triable by court-martial has been committed;

b.The person to be restrained committed it; and

c.The restraint ordered is “required by the circumstances.”  RCM 304(c). 

2.Restraint is not required in every case and should be no more rigorous than required to ensure the person’s presence at trial or to prevent foreseeable serious criminal misconduct.  RCM 304(c) discussion.  The person ordering restraint should consider the factors listed in the discussion of RCM 305(h)(2)(B) before ordering restraint.  These factors further elaborate on when restraint may be “required by the circumstances” because it is foreseeable that:

a.   The person will not appear at trial, pretrial hearing, or investigation, or;

b.   The person will engage in serious criminal misconduct, and;

c.   Lesser forms of restraint are inadequate.

3.“An accused pending charges should ordinarily continue the performance of normal duties within the accused’s organization while awaiting trial.”  AR 27-10, para. 5-21a (20 Nov 2020).

a.Mental condition as a factor:  While an accused's mental condition is an appropriate consideration in deciding whether to place or maintain an accused in pretrial confinement (PTC), a Soldier should not be placed in PTC solely to protect against the risk that an accused might kill himself.  United States v. Doane, 54 M.J. 978 (A.F. Ct. Crim. App. 2001). 

C.   Who may order pretrial restraint?  UCMJ art. 9(b), (c); RCM 304(b).

1.   Of officers and civilians:  “Only a commanding officer to whose authority the civilian or officer is subject.”  This authority may not be delegated.

2.   Of enlisted personnel:  “Any commissioned officer.”  Authority may be delegated by a commanding officer to warrant, petty, and noncommissioned officers of his/her command to order pretrial restraint of enlisted persons in that commanding officer’s command.

3.   Authority for subordinates to order restraint may be withheld by a superior competent authority.

4.   Release.  “[A] person may be released from pretrial restraint by a person authorized to impose it.”  RCM 304(g).

D.  Procedures for ordering pretrial restraint.  UCMJ art. 9(b), (c); RCM 304(d).

1.   Confinement is “imposed pursuant to orders by a competent authority by the delivery of a person to a place of confinement.”  See Section III infra.

2.   Other types of pretrial restraint are “imposed by notifying the person orally or in writing of the restraint, including its terms or limits.”  RCM 304(d).

3.   A person placed under restraint “shall be informed of the nature of the offense which is the basis for such restraint.”  RCM 304(e).

4.   Any form of pretrial restriction imposed on a Soldier must be disclosed on the DD Form 458 Charge Sheet, blocks 8 and 9.

E.   Pretrial restraint is not punishment:  Persons restrained pending trial may not be punished for the offense that is the basis of the restraint.  Prohibitions include “punitive duty hours or training,” “punitive labor,” or “special uniforms prescribed only for post-trial prisoners.”  RCM 304(f).  The remedy for a violation of this rule is “meaningful sentence relief.”  RCM 304(f) analysis (MCM 2016 ed.).



III.    Pretrial Confinement

A.  Basis for pretrial confinement:  Any person subject to trial by court-martial may be ordered into confinement by those persons listed in Section II.C supra upon a determination that there is probable cause (reasonable belief) that:

1.   An offense triable by a court-martial has been committed (note that in accordance with UCMJ art. 10, an accused normally should not be placed into confinement when charged only with an offense normally tried by summary court-martial);

  2.   The person confined committed it; and

3.   Confinement is required by the circumstances.  Consider the factors in RCM 305(h)(2)(B)  discussion in determining whether it is reasonably foreseeable that the person:

a.Will not appear at trial, pretrial hearing, or investigation, or;

b.Will engage in serious criminal misconduct, and;

c.Lesser forms of restraint are inadequate.  RCM 305(d), (h).

B.   Regulatory requirements:  “In any case of pretrial confinement, the SJA concerned, or that officer’s designee, will be notified prior to the accused’s entry into confinement or as soon as practicable afterwards.”  AR 27-10, para. 5-21a (20 Nov 2020).  Also consider the requirements of local policies/regulations (for example, a local policy may prohibit placing a Soldier into pretrial confinement without the concurrence of the SJA, or withhold the authority to order a Soldier into confinement to that Soldier’s commander).

C.   Advice to accused upon confinement:  “Each person confined shall be promptly informed of:

(1)  The nature of the offenses for which held;

(2)  The right to remain silent and that any statement made by the person may be used against the person;

(3)  The right to retain civilian counsel at no expense to the United States, and the right to request assignment of military counsel; and

(4)  The procedures by which pretrial confinement will be reviewed.”  RCM 305(e).

D.  Military counsel. 

1.   The RCM requires that a confinee must request military counsel and the request must be known to military authorities.  Counsel is to be made available prior to RCM 305(i) review, or within 72 hours of request, whichever occurs earlier.  RCM 305(f). 

a.   BUT: AR 27-10, para. 5-21b (20 Nov 2020) imposes a duty on the SJA to request TDS appointment of counsel.  If no TDS counsel available within 72 hours of entry into confinement, the SJA may appoint government counsel for this limited purpose.

b.  “Consultation between the accused and counsel preferably will be accomplished before the accused’s entry into confinement.”  If not possible, every effort will be made to have consultation within 72 hours of accused’s entry into confinement.  AR 27-10, para. 5-21b (20 Nov 2020).

2.   No right to military counsel of the confinee’s own selection.  Counsel “may be assigned for the limited purpose of representing the accused only during the pretrial confinement proceedings before charges are referred.”  RCM 305(f).

E.RCM 305(i)(1) 48-hour probable cause determination:

1.Embodiment of the Constitutional review from County of Riverside v. McLaughlin, 111 S. Ct. 1661 (1991) and United States v. Rexroat, 38 M.J. 292 (C.M.A. 1993), cert. denied, 114 S. Ct. 1296 (1994).

a.   History of the Requirement:

(1)   Gerstein v. Pugh, 420 U.S. 103 (1975).  Fourth Amendment (“right of the people to be secure in their persons . . . against unreasonable . . . seizures”) requires a “prompt” judicial determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest.  Gerstein is binding upon the military.  Courtney v. Williams, 1 M.J. 267 (C.M.A. 1976).

(2)   What is prompt?  “Taking into account the competing interests articulated in Gerstein, we believe that a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein.”  County of Riverside v. McLaughlin, 111 S. Ct. 1661 (1991). 

2.Who conducts the 48-hour Review?  Review of the adequacy of probable cause to continue pretrial confinement must be made within 48 hours of imposition of confinement under military control by a “neutral and detached officer,” e.g. an “independent” commander/officer, a military magistrate, or a military judge.  RCM 305(i)(1).  The accused’s commander may do the review if truly neutral and detached.  RCM 305(h)(2)(A).

a.United States v. McLeod, 39 M.J. 278 (C.M.A. 1994):  Both the brigade commander’s and SJA’s review of company commander’s initial decision to impose pretrial confinement were neutral and detached.  Neither was directly or particularly involved in the command’s law enforcement function.

b.United States v. Bell, 44 M.J. 677 (N-M Ct. Crim. App. 1996):  A ship’s command duty officer can be neutral and detached, and constitutionally qualified to make a judicial probable cause determination which satisfies Rexroat.

3.The substance of the review is a probable cause review by a neutral and detached officer based on the requirements of RCM 305(h)(2)(B).  There must be reasonable grounds that:

a.An offense triable by a court-martial has been committed;

      b.The confinee committed it; and

      c.Confinement is necessary because it is foreseeable that:

      (1)The confinee will not appear at a trial, pretrial hearing, preliminary hearing, or investigation, or

(2)The confinee will engage in serious criminal misconduct; and

(3)Less severe forms of restraint are inadequate.

F.   Commander’s 72-hour review.  UCMJ art. 11; RCM 305(h).

1.   Report of confinement to confinee’s commander is required within 24 hours if confinement was initially ordered by someone other than the commander.  RCM 305(h)(1).

2.   Commander shall review confinement not later than 72 hours after ordering confinement, or receiving notice of confinement, and shall order release “unless the commander believes upon ... reasonable grounds, that:

      (i)   An offense triable by a court-martial has been committed;         

      (ii)  The confinee committed it; and

      (iii) Confinement is necessary because it is foreseeable that:

            (a)   The confinee will not appear at a trial, pretrial hearing, or preliminary hearing, or    

            (b)   The confinee will engage in serious criminal misconduct; and         

      (iv) Less severe forms of restraint are inadequate.”  RCM 305(h).

3.   What constitutes serious criminal misconduct?

a.Serious criminal misconduct: “includes intimidation of witnesses or other obstruction of justice, serious injury of others, or other offenses which pose a serious threat to the safety of the community or to the effectiveness, morale, discipline, readiness, or safety of the command, or to the national security of the United States.”  RCM 305(h)(2)(B)(iv).

b.“[T]he ‘quitter’ who disobeys orders and refuses to perform duties” can have an “immensely adverse effect on morale and discipline, which, while intangible, can be more dangerous to a military unit than physical violence.”  “[A]lthough the ‘pain in the neck’ [Soldier]... may not be confined before trial solely on that basis, the accused whose behavior is not merely an irritant to the commander, but is rather an infection in the unit may be so confined.”  Analysis of Rule for Courts-Martial 305, MCM, p. A21-18 (MCM 2016 ed.)  Note: This language was removed in MCM 2019 ed.

(1)  United States v. Rosato, 29 M.J. 1052 (A.F.C.M.R. 1990), rev’d in part, 32 M.J. 93 (C.M.A. 1991):  Accused who was willfully disobedient and disrespectful to superiors in the presence of 10-15 members of a student squadron was properly placed in pretrial confinement “to protect the unit’s discipline and morale from the accused’s disruptive behavior.”  Unit consisted of new, junior personnel, accused had a history of disciplinary problems, student representatives complained about him, and the accused ignored first sergeant’s admonitions.

c.United States v. Savoy, 65 M.J. 854 (A.F. Ct. Crim. App. 2008):  While suicide prevention is an improper basis for continued pretrial confinement, a detainee’s status  as a suicide risk may be considered in evaluating the detainee’s likelihood to be a flight risk or commit other serious misconduct.

4.   Procedure:

a.Can be completed immediately after ordering PTC, and can satisfy the RCM 305(i)(1) 48-hour probable cause determination if the commander is a neutral and detached officer and acts within 48 hours of the imposition of confinement under military control.  RCM 305(h)(2)(A).

b.“If continued pretrial confinement is approved, the commander shall prepare a written memorandum that states the reasons for the conclusion that the requirements for confinement . . . have been met.  This memorandum may include hearsay and may incorporate by reference other documents, such as witness statements, investigative reports, or official records.”  Memorandum is forwarded to a reviewing officer (military magistrate).  RCM 305(h)(2)(C); AR 27-10, para. 8­-5b(2) (20 Nov 2020). 

c. “Except in extraordinary cases, charges against the person confined should be preferred within seven (7) days of confinement.”  AR 27-10, para 8-5b(2) (20 Nov 2020).

G.  RCM 305(i)(2) 7-day review.  AR 27-10, Chapter 8 (Military Magistrate Program).

1.   Review of the “probable cause determination and necessity for continued pretrial confinement” by a “neutral and detached officer appointed in accordance with regulations prescribed by the Secretary concerned” within 7 days of imposition of confinement.  In the Army, the 7-day review is conducted by a military magistrate.  AR 27-10, para. 8-5a(1) (20 Nov 2020).  If an Army magistrate is unable to conduct the review, the review will be governed by the military magistrate regulations of the military service with jurisdiction over the place of confinement.  AR 27-10, para. 8-5a(3) (20 Nov 2020).  Time can be extended by the military magistrate to 10 days for good cause.  Method for calculating the total number of days of pretrial confinement:  count both the initial date of confinement and date of magistrate review.  The standard of proof at the 7-day review is a preponderance of the evidence and the government bears the burden.  RCM 305(i)(2). 

2.   Accused and counsel “shall be allowed to appear before the 7-day reviewing officer and make a statement, if practicable.”  The accused can choose not to attend the 7-day review, but cannot waive the 7-day review altogether (i.e., even if accused chooses not to attend, the hearing must still be held).  Representative of command may appear to make a statement.  RCM 305(i)(2)(A)(i). 

a.United States v. Bell, 25 M.J. 676 (A.C.M.R. 1987), petition denied, 27 M.J. 161 (C.M.A. 1988):  Ex parte discussion by magistrate with prisoner’s commander and trial counsel held not prohibited, at least when defense counsel was given access to all the information and an opportunity to respond.

b.United States v. Fisher, 37 M.J. 812 (N.M.C.M.R. 1993).  Magistrate (and commander) should utilize a “totality-of-the-circumstances” test in determining whether pretrial confinement is warranted.

3.   Victim rights:  “A victim of an alleged offense committed by the confinee has the right to reasonable, accurate, and timely notice of the 7-day review; the right to confer with the representative of the command and counsel for the government, if any; and the right to be reasonably heard during the review. . . .  [T]he hearing may not be unduly delayed for this purpose.”  The right to be heard can be accomplished through counsel.  RCM 305(i)(2)(A)(iv).

4.   Military magistrate should review and consider:  the confinement order, DA Form 5112, charge sheet, 48-hour review memorandum, 72-hour review memorandum, and any matters submitted by the government or the accused.  Military Magistrate SOP.

a.Note that AR 27-10 requires the commander to provide the military magistrate with a completed DA Form 5112 (including a statement of the basis for the decision to confine the Soldier) no later than 36 hours after imposition of confinement.  AR 27-10, para. 8-5b(2) (20 Nov 2020).  

5.   The Military Magistrate SOP provides detailed guidance on how the military magistrate should conduct the review.

a.   Military Rules of Evidence do not apply except for Section V (Privileges), MRE 302 and MRE 305.  RCM 305(i)(2)(A)(ii).

b.   This is a review and not an adversarial hearing; the military magistrate should have full control of the scope of the review.  The government and accused should generally not be allowed to call witnesses.  The military magistrate and trial counsel should not question the accused although the accused can make a statement before the military magistrate.

6.   Military magistrate “shall approve continued confinement or order immediate release.”  If the military magistrate orders release, a victim of an offense allegedly committed by the confinee has the right to reasonable, accurate, and timely notice of the release.  RCM 305(i)(2)(C).  The military magistrate shall make a written memorandum of factual findings and conclusions, and shall state whether the victim’s rights to notification, opportunity to confer, and opportunity to be heard were provided.  The memorandum and all documents considered must be available to parties on request.  RCM 305(i)(2)(D).  Note that AR 27-10, para. 8-5b(1) and 8-5b(5) (20 Nov 2020), requires the magistrate to serve a copy of the memorandum upon the SJA and the accused/defense counsel.

a.Failure to serve copy of military magistrate’s memo after defense request violates RCM 305(i).  United States v. McCants, 39 M.J. 91 (C.M.A. 1994).

b.Specificity of memorandum.  United States v. Williams, 29 M.J. 570 (A.F.C.M.R. 1989), petition denied, 30 M.J. 106 (C.M.A. 1990):  “[T]here is no specified format for the contents [of the reviewing officer’s memorandum] other than it must state the reviewing officer’s conclusions and the factual findings on which they are based.”  Failure to precisely state the reasons for continued pretrial confinement is not an abuse of discretion requiring additional credit.

7.   Military magistrate shall, after notice to parties, reconsider the decision to approve continued confinement, upon request, based upon any significant information not previously considered.  RCM 305(i)(2)(E).

8.   US Army Trial Judiciary Rules of Practice Before Army Courts-Martial disclosure requirements:

a.   Rule 1.1:  trial counsel must inform the military judge in the EDR if Accused is in pretrial confinement.

b.   Rule 28.1:  Record of Trial must contain original DA Form 5112 and military magistrate’s memorandum approving or disapproving pretrial confinement.

H.  Review by military judge. 

1.   Once charges are referred, military judge may review propriety of confinement on motion for appropriate relief.

a.   “Upon a motion for release from pretrial confinement, a victim of an alleged offense committed by the accused has the right to reasonable, accurate, and timely notice of the motion and any hearing, the right to confer with counsel, and the right to be reasonably heard. Inability to reasonably afford a victim these rights shall not delay the proceedings. The right to be heard under this rule includes the right to be heard through counsel.”  RCM 905(b)(8).

2.   Military judge may order release only if:

a.Military magistrate’s decision was an abuse of discretion and there is not sufficient information presented to the military judge justifying confinement;

b.Information not presented to the military magistrate establishes that confinee should be released; or

c.There has been no initial review and the military judge determines that the requirements for confinement have not been met.  RCM 305(j).

3.   The military judge can order day-for-day administrative credit for any pretrial confinement served as a result of failure to comply with RCM 305(f), (h), (i) or (j).  RCM 305(k).  The military judge may order additional credit for any pretrial confinement that involves abuse of discretion or unusually harsh circumstances.  When simultaneous noncompliance with multiple provisions of RCM 305 occurs, only day-for-day credit will be applied.  In other words, a pretrial confinee is not entitled to additional days of credit when multiple provisions of RCM 305 are violated on one day or over the same period.  United States v. Plowman, 53 M.J. 511, 514 (N-M Ct. Crim. App. 2000); United States v. Huey, 57 M.J. 504 (N-M. Ct. Crim. App. 2002).  See also United States v. White, 2020 CCA LEXIS 235 (A.F. Ct. Crim. App. 2020) (holding trial court erred in denying RCM 305(k) credit of one day when commander failed to complete 72 hour memo; regardless of substantiated basis for continued confinement).

I.    Who may direct release.  RCM 305(g):

1.   Any commander of the confinee.  The following commanders may review pretrial confinement and direct the accused’s release:  the accused’s immediate and higher unit commander, or the commander of the installation on which the confinement facility is located.

2.   Officer appointed to review confinement (military magistrate).

3.   The detailed military judge, once charges have been referred.

J.Confinement after release.  RCM 305(1):  Once release from confinement is directed by a commander, a military magistrate, or a military judge, the accused may not be confined again before completion of trial “except upon discovery, after the order of release, of evidence or of misconduct which, either alone or in conjunction with all other evidence, justifies confinement.” 

1.  The military magistrate must be immediately notified if an accused is returned to confinement and the reasons therefore.  AR 27-10, para. 8-5b(3) (20 Nov 2020).

2.  After a Soldier has been released from pretrial confinement, a commander can order any lesser forms of pretrial restraint he/she feel necessary under the circumstances.  AR 27-10, para. 8-5b(3) (20 Nov 2020).

IV.    Sentence Credit

A.  Allen credit.  United States v. Allen, 17 M.J. 126 (C.M.A. 1984):  Day for day credit for military pretrial confinement for the crimes for which the confinee was later convicted.  “[A]ny part of a day in pretrial confinement must be calculated as a full day for purposes of pretrial confinement credit . . . except where a day of pretrial confinement is also the day the sentence is imposed.”  United States v. DeLeon, 53 M.J. 658, 660 (Army Ct. Crim. App. 2000). 

1.   What about civilian confinement?  The CAAF has never squarely addressed the issue of Allen credit for time spent in civilian confinement.  While the Army Court intimated that such credit “must be given ... for time spent in pretrial confinement in state or federal civilian confinement facilities,” United States v. Ballesteros, 25 M.J. 891 (A.C.M.R. 1988), aff’d, 29 M.J. 14 (C.M.A. 1989), the Court of Military Appeals decided the case on other grounds.

2.   Civilian confinement on behalf of the military.  United States v. Chaney, 53 M.J. 621 (N-M Ct. Crim. App. 2000):  Appellant was apprehended by civilian police based on information that he was a deserter from the Marine Corps.  Marijuana was found on him during the apprehension.  The appellant was placed in confinement based on offenses for which he later received a sentence at a court-martial (marijuana possession and unauthorized absence).  The pending state charges against him were dismissed and he was then transferred to military authorities.  He was not given Allen credit at trial for the 40 days he spent in pretrial confinement imposed by civilian authorities.  Ultimately, the accused never received any credit for the 40 days.  The appellate court concluded that he was entitled to 40 days credit because “[h]e was placed in official detention prior to the date his court-martial sentence commenced as a result of the offense for which the sentence was imposed and due to another charge for which he was arrested after the commission of the offense for which the sentence was imposed.”

3.   Civilian confinement for unrelated offenses. United States v. Harris, 78 M.J. 521, 522–23 (Army Ct. Crim. App. 2018) aff'd, 78 M.J. 434 (C.A.A.F. 2019):  The court ruled that the military judge did not err when he denied the appellant’s request for 291 days of Allen credit for civilian confinement where the State of Florida had confined the appellant pursuant to state charges of failing to appear at a pretrial hearing on state child pornography charges.  The appellant was arrested on the failure to appear charge after the crimes for which the appellant was ultimately convicted at court-martial.  The appellant had been turned over to military control after fleeing to Cambodia, and federal authorities then turned him over to Florida state authorities.  The military did not request that Florida confine the appellant.  After he pleaded guilty to military desertion and child pornography charges, the appellant argued that he was entitled to 291 days of Allen credit for the time he spent in pretrial confinement in Florida that was in excess of his 364 day state sentence for a failure to appear charge.  The trial judge denied the request after finding that the additional 291 days of pretrial confinement by the State of Florida stemmed solely from his failure to appear to answer the state child pornography charges.

B.   Mason credit.  United States v. Mason, 19 M.J. 274 (C.M.A. 1985):  Day-for-day credit given for “pretrial restriction equivalent to confinement.”  The calculation for Mason credit includes any partial day of restriction tantamount to confinement.  United States v. Chapa, 53 M.J. 769 (Army Ct. Crim. App. 2000).

1.   The test.  United States v. Smith, 20 M.J. 528 (A.C.M.R. 1985), petition denied, 21 M.J. 169 (C.M.A. 1985):  “The determination whether the conditions of restriction are tantamount to confinement must be based on the totality of the conditions imposed.”  Factors to be considered include:  limits of the restricted area; physical restraints; escort requirements (occasional v. constant and armed v. unarmed); sign-in requirements; circumstances of duty; assigned duties; degree of privacy enjoyed; location of sleeping accommodations; access to visitors, telephones, recreational, religious, medical, and educational facilities, entertainment, civilian clothing, personal property, etc.  See also United States v. King, 58 M.J. 110 (C.A.A.F. 2003). 

2.   Restriction deemed by courts to be tantamount to confinement:

a.United States v. Smith, 20 M.J. 528 (A.C.M.R. 1985), petition denied, 21 M.J. 169 (C.M.A. 1985):  56 days of “restriction” found tantamount to confinement and credit given.  Accused was restricted to barracks building and was prohibited, among other things, from performing normal duties and leaving the building without permission and an escort; required to sign in every 30 minutes during non-duty hours and to remain in room after 2200 hours.

b.United States v. Regan, 62 M.J. 299 (C.A.A.F. 2006):  Officer who repeatedly tested positive for cocaine was offered inpatient drug treatment or pretrial confinement.  She opted for inpatient treatment.  The court awarded 21 days of Mason credit because the conditions of inpatient treatment constituted significant restriction and it was suffered upon threat of being confined.

3.   Restriction deemed by courts to not be tantamount to confinement.

a.Washington v. Greenwald, 20 M.J. 699 (A.C.M.R. 1985) pet. denied 20 M.J. 324 (C.M.A. 1985):  88 days of pretrial restriction found not tantamount to confinement.  Washington was restricted to company area, place of duty, dining facility, and chaplain’s office; he performed normal duties; was restricted to room after 2200 hours; signed in every hour at CQ when not at work; could travel to any place on post he needed to go during duty hours without an escort if he obtained permission and during non-duty hours with an escort. 

b.United States v. Delano, 2008 WL 5333565 (A.F. Ct. Crim. App. 2008):  Servicemember’s pretrial restriction was not tantamount to confinement but was implemented to maintain good order and discipline and not imposed as punishment for the Airman in the Transition Flight.  The court held that, “while strict, the restrictions were not equivalent to confinement and were not punishment under Article 13, UCMJ.”

4.   Waiver and Forfeiture.

a.NOTE:  Although the cases discussed below state that failure to raise the issue of credit is waived if not raised at trial, the Military Justice Act of 2016 amended RCM 905(e) to state that failure to raise timely motions before the court-martial is adjourned “shall constitute forfeiture, absent an affirmative waiver.”  RCM 905(e)(2).  The previous version of RCM 905 in effect before 1 January 2019 stated that failure to do so “shall constitute waiver.”  RCM 905(e) (MCM 2016 ed.).

b.United States v. King, 58 M.J. 110 (C.A.A.F. 2003):  If the issue is not raised at trial, it is waived and cannot be raised at the appellate level.  Note particularly Judge Baker’s concurrence in which he advises military judges to ask on the record whether the accused seeks any pretrial confinement credit beyond simple Allen credit.

c.United States v. Barrett, 2009 WL 295012 (A.F. Ct. Crim. App. 2009):  Barrett explicitly waived his right to raise the issue that his treatment was tantamount to confinement at trial and on appeal as part of his plea agreement.  Thus, the appellate court held the issue is waived.   

C.   RCM 305(k) credit:  Remedy for noncompliance with RCM 305(f), (h), (i) or (j) is administrative credit (day-for-day) against the sentence adjudged for any confinement served as the result of the noncompliance.  If no confinement adjudged or if confinement is insufficient to offset all other credit accused is entitled to, the credit will be applied to hard labor without confinement, restriction, fine, and forfeiture (in that order).  Military judge may also award additional credit (not limited to day-for-day) if the pretrial confinement involves abuse of discretion or unusually harsh circumstances.  Applies in addition to Allen or Mason credit.  However, when simultaneous non-compliance with multiple provisions of RCM 305 occurs, only day-for-day credit will be applied.  United States v. Plowman, 53 M.J. 511, 514 (N-M Ct. Crim. App. 2000). 

1.   Application of RCM 305(k) credit in cases of restriction tantamount to confinement.

a.United States v. Gregory, 21 M.J. 952 (A.C.M.R. 1986), aff’d, 23 M.J. 246 (C.M.A. 1986) (summary disposition):  When restriction is tantamount to confinement, the procedures for pretrial confinement in RCM 305 apply, and when they are not complied with, day-for-day credit under RCM 305(k) is required in addition to Allen and Mason credit.

b.United States v. Rendon, 58 M.J. 221 (C.A.A.F. 2003):  CAAF “clarified” Gregory in that RCM 305 is only implicated by restriction tantamount to confinement in which actual physical restraint is imposed.  The court did not offer a definition or give many useful examples.

2.   Rexroat violations.  United States v. Stuart, 36 M.J. 747 (A.C.M.R. 1993):  Accused entitled to day-for-day credit under RCM 305(k) for lack of 48-hour probable cause review.

3.   Civilian confinement.

a.“If the confinee was apprehended by civilian authorities and remains in civilian custody at the request of military authorities, reasonable efforts will be made to bring the confinee under military control in a timely fashion”  RCM 305(i)(1). 

b.RCM 305(k) credit provisions only apply to a Soldier in civilian confinement if the Soldier is in confinement: a) solely for a military offense; and b) his confinement is with notice and approval of military authorities.  Burden is on the accused to allege that RCM 305 applies and that the civilian authorities did not conduct the required 48-hour probable cause review. United States v. Lamb, 47 M.J. 384 (C.A.A.F. 1998).

c.United States v. Durbin, 2008 CCA LEXIS 486 (A.F. Ct. Crim. App. 2008):  “[C]onfinement in violation of AFI 31-205 (Air Force Instruction on confinement requiring pretrial detainees in civilian confinement be treated in a manner consistent with a presumption of innocence standard) does not create for the appellant a per se right to sentencing credit; it only provides the military judge with the discretion to award additional sentencing credit for abuse of discretion by pretrial confinement authorities.”

4.   Confinement after release.  United States v. Williams, 47 M.J. 621 (Army Ct. Crim. App. 1997):  Even though a violation of RCM 305(l) is not listed as a basis for awarding RCM 305(k) credit, a violation of RCM 305(l) and Keaton v. Marsh, 43 M.J. 757 (Army Ct. Crim. App. 1996), results in additional credit under RCM 305(k).

5.   Confinement after reversal on appeal.  United States v. Guardado, No. ARMY 20140014, 2018 CCA LEXIS 595 (A. Ct. Crim. App. Nov. 23, 2018) (holding that accused was not entitled to RCM 305(k) credit when he was not immediately released from confinement post appellate appellate mandate for reversal).  In Guardado,  the court identified that release from confinement was not required to be instaneous, but free from undue delay.  Citing the administrative requirements necessary to execute an appellate court mandate, the court held that a three business day delay from mandate to release is not an undue delay.

6.   Waiver and Forfeiture. 

      a.   NOTE:  Although the case discussed below states that failure to raise the issue of credit is waived if not raised at trial, the Military Justice Act of 2016 amended RCM 905(e) to state that failure to raise timely motions before the court-martial is adjourned “shall constitute forfeiture, absent an affirmative waiver.”  RCM 905(e)(2).  The previous version of RCM 905 in effect before 1 January 2019 stated that failure to do so “shall constitute waiver.”  RCM 905(e) (MCM 2016 ed.).

 b.    United States v. Chapa III, 57 M.J. 140 (C.A.A.F. 2002):  At trial, accused was awarded 136 days sentence credit due to a violation of Article 13, UCMJ.  On appeal, appellant alleged for the first time an entitlement to additional credit for the Government’s failure to comply with RCM 305(h) and (i) (i.e., the 72-hour and 48-hour pretrial confinement review requirements respectively).  ACCA held that the appellant failed to properly raise the issue at trial and therefore waived any entitlement to credit.  CAAF held appellant waived any issue regarding credit and no plain error by the MJ for failing, sua sponte, to award RCM 305(k) credit. 

D.  Article 13 credit:  “No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances required to insure his presence.”  UCMJ art. 13.  Bottom line:  Article 13 credit can be given for “unduly harsh circumstances” or for pretrial punishment.  The amount of credit given is within the discretion of the court and will be determined based on the severity of the violation (i.e., not limited to day-for-day).

1.   Unduly harsh circumstances of pretrial confinement:  “The military judge may order additional credit for each day of pretrial confinement that involves an abuse of discretion or unusually harsh circumstances.”  RCM 305(k); United States v. Suzuki, 14 M.J. 491 (C.M.A. 1983).  Note that Article 13 does allow the accused to be “subjected to minor punishment during [confinement] for infractions of discipline.

a.United States v. Avila, 53 M.J. 99 (C.A.A.F. 2000):  By brig policy, based solely on the serious nature of his pending charges, appellant was housed in windowless cell; not allowed to communicate with other pretrial confinees; given only one hour of daily recreation; made to wear shackles outside of his cell; and only allowed to see visitors separated by a window.  The court agreed with the lower court’s holding that the brig policy of assigning all pretrial confinees facing a possible sentence of 5 or more years to maximum (solitary) confinement was unreasonable.  Appellant was given an additional 140 days credit for the period of pretrial confinement he already served.  However, the court found that these conditions did not amount to cruel and unusual punishment under the 8th Amendment.   But see United States v. James, 28 M.J. 214 (C.M.A. 1989) (finding no Article 13 violation for accused who was confined with sentenced prisoners, wore an orange jumpsuit instead of uniform and rank, enjoyed limited recreational facilities, and had visitation privileges narrower than those required by AR 190-47).

b.United States v. Gilchrist, 61 M.J. 785 (Army Ct. Crim. App. 2005):  Gilchrist was placed in pretrial confinement (PTC) prior to his plea of guilty for various offenses.  The government transported Gilchrist from Fort Knox where he was in PTC to his Article 32 at Fort Bliss.  The detention cell was full at Fort Bliss so the command shackled him to a cot in “The Ice House” overnight to prevent him from fleeing.  Article 13 credit was denied at trial for the cot incident.  ACCA determined the shackling of Gilchrist was not per se unduly harsh.  However, they awarded Article 13 credit because other methods could have been used to ensure Gilchrist’s presence at trial.

c.United States v. Yunk, 53 M.J. 145 (C.A.A.F. 2000):  Reviewing the same unreasonable brig policy in Avila, the court commented that the appropriate time to raise matters of illegal pretrial confinement is with the magistrate considering the imposition of pretrial confinement.  However, the court refused to find waiver of the issue when it is raised for the first time on appeal

d.United States v. King, 61 M.J. 225 (C.A.A.F. 2005):  King was placed in pretrial confinement and classified as a “maximum security” prisoner.  He was placed in a double occupancy cell with another pretrial confinee.  The following conditions governed King’s pretrial confinement: remain in the cell with the exception of appointments or emergencies; eat all meals in the cell (meals were delivered to the cell); no library or gym privileges (books and gym equipment were delivered to the cell); no sleeping during duty hours; must wear a yellow jumpsuit and shackles when released for appointments; must have two escorts, one of whom was armed, when King was moved to appointments; and may only watch a TV placed outside the cell.  King’s cellmate was subsequently convicted at a court-martial and for some time, the two continued to reside in the same cell.  For administration purposes (overcrowding and prohibition on mixing pre- and post-trial confinees), King spent fifteen days by himself in a windowless segregation cell.  At trial, the military judge denied Article 13 relief, finding that “[t]he conditions were based on legitimate non-punitive reasons.  The conditions of [King’s] confinement were not more rigorous than necessary.”  The CAAF awarded Article 13 credit for his time spent in the segregated cell.  However, no credit was given for the conditions of his pretrial confinement prior to being segregated.  The CAAF stated it was “reluctant to second-guess the security determinations of confinement officials.”

e.United States v. Crawford, 62 M.J. 411 (C.A.A.F. 2006):  Marine officer accused was segregated for a week of observation and then retained as a “maximum custody” prisoner for almost nine months, the entire time he was in pretrial confinement.  This did not establish that he was confined in conditions more rigorous than those required to assure his presence at trial in violation of pretrial confinement regulations.  The court considered that there were serious charges pending against the accused, there was a potential for lengthy confinement, the accused had made threats and had an apparent ability to execute those threats, his access to unknown quantities of weapons and explosives, and his professed willingness to resort to violent means against what he viewed as government oppression provided sufficient reason to classify the accused as a high-risk inmate.

f.United States v. Adcock, 65 M.J. 18 (C.A.A.F. 2007):  1LT Adcock received credit under RCM 305(k) for “abuse of discretion” when she was housed in a civilian confinement facility that did not conform to USAF Regulations (AFI 31-205 forbids pretrial detainees from being commingled with post-trial inmates and mandates that detainees retain rank insignia, conditions violated by the civilian jail in Solano County, CA.).

g.United States v. Gomez, 66 M.J. 663 (C.G. Ct. Crim. App. 2008):  The Coast Guard court declined to give relief to an accused who wasn’t visited regularly by his chain of command, despite Coast Guard regulation requiring regular visits.

h.United States v. Williams, 68 M.J. 252 (C.A.A.F. 2010):  Accused, who was placed on suicide watch when he was confined prior to trial, received sentencing credit for the entire period, but did not receive additional credit based on conditions of confinement.  (He was denied books, radio, and CD player, subjected to 24 hour lighting, and required to wear a suicide gown.)  This is because there was a non-punitive objective—suicide watch status.

i.United States v. White, 2020 CCA LEXIS 235 (A.F. Ct. Crim. App. 2020): Military judge did not abuse his discretion in finding that appellant's time on medical and suicide watch did not violate UCMJ art. 13, where considering his repeated suicide attempts in conjunction with his combative conduct which led to his transfer to the civilian jail in the first place, the 17 days he spent on medical and suicide watch were both reasonable and justified by the circumstances.  While not an issue on appeal, the trial judge awarded 3 days of Article 13 credit for each day of a 21 day period that accused was administratively segregated (not due to suicide or medical watch).

2. Pretrial punishment:

a.Does NOT require the Soldier being in pretrial confinement.  United States v. Combs, 47 M.J. 330 (C.A.A.F. 1997):  Air Force E-6, whose conviction for homicide was overturned on appeal, was required to serve 20 months on active duty as an E-1.  CAAF held that reduction is a punishment and rejected the Government argument that Article 13 only applies in pretrial confinement situations.

b.United States v. Smith, 53 M.J. 168 (C.A.A.F. 2000):  Reviewing previous cases dealing with pretrial punishment, the court identified the following factors to assist in determining whether pretrial restraint amounts to pretrial punishment:

(1)  Similarities between sentenced persons and those awaiting disciplinary disposition in daily routine, work assignments, clothing, and other restraints and control conditions;

(2)  Relevance of those similarities to customary and traditional military command and control measures;

(3)  Relation of requirements and procedures to command and control needs; and

(4)  If there was an intent to punish or stigmatize the person pending disciplinary action.

c.United States v. Mosby, 56 M.J. 309 (C.A.A.F. 2002):  Appellant was convicted of involuntary manslaughter of his five-week old son and sentenced to reduction to E-1, nine years confinement and a BCD.  Prior to trial, appellant was placed in solitary confinement at the Marine Corps Base Brig at Camp Lejeune, North Carolina.  At trial, the military judge denied a defense Article 13 motion for additional sentence credit based on illegal pretrial punishment finding that there was no intent to punish appellant by placing him in solitary confinement; the conditions were not “unduly rigorous” or “so excessive as to constitute punishment”; and the conditions were “reasonably related to legitimate governmental objectives.”  CAAF held the military judge’s findings of no intent to punish were not clearly erroneous; appellant was NOT entitled to additional sentence credit.   See also United States v. Fulton, 55 M.J. 88 (C.A.A.F. 2001); United States v. Coreteguera, Jr., 56 M.J. 330 (C.A.A.F. 2002).

d.   United States v. Fischer, 61 M.J. 415 (C.A.A.F. 2005):  Fischer was placed in pretrial confinement on 4 May 2001.  On 29 June 2001 his pay and benefits were terminated based on him reaching his end of obligated service (ETS or EAS).  The defense counsel tried unsuccessfully to have his pay continued past his ETS date.  On appeal, Fischer argued that the government violated Article 13 when it refused to pay him past his ETS.  CAAF disagreed.  In refusing to award Article 13 credit, CAAF stated there was a neutral non-punitive policy that allowed for refusing to pay a pretrial confinee who has reached his ETS and is not performing duties.

3.   Pre-trial punishment: Public humiliation or degradation.

a.United States v. Starr, 53 M.J. 380 (C.A.A.F. 2000):  While under investigation, appellant, a member of the Security Forces (SF) Squadron, was ordered by his First Sergeant to surrender his SF beret.  The First Sergeant also assigned appellant to “X Flight,” a group of other SF personnel who, for a variety of reasons, were not authorized to bear arms or to perform other normal SF duties.  Members of X Flight could not wear berets but those members assigned there for medical reasons could wear their berets to other squadron functions.  According to the First Sergeant, custom in the SF career field prohibits one unable to perform SF work from wearing the beret.  For 275 days the appellant wore no beret and remained in X Flight.  The court found no intent to punish or stigmatize him while disciplinary action was pending and that the limitations were imposed for legitimate, operational and military purposes. 

b.United States v. Cruz, 25 M.J. 326 (C.M.A. 1987):  Cruz and about 40 other Soldiers suspected of drug offenses were called out of a mass formation, escorted before the DIVARTY commander who did not return their salute, called “criminals” by the commander, searched and handcuffed, billeted separately pending trial, and assembled into what become known as the “Peyote Platoon.”  The court held “public denunciation by the commander and subsequent military degradation before the troops prior to courts-martial constitute[d] unlawful pretrial punishment prohibited by Article 13.”

c.United States v. Stamper, 39 M.J. 1097 (A.C.M.R. 1994):  Company commander’s disparaging remarks to accused such as “don’t go out stealing car stereos this weekend” and “getting any five-finger discounts lately, Stamper?” constituted pretrial punishment.

d.United States v. McLean, 70 M.J. 573 (A.F. Ct. Crim. App. 2011):  Air Force NCO was convicted of aggravated assault on his child.  Prior to trial, he was ordered to live in enlisted quarters and share their latrine and laundry facilities.  The court found the issue was waived because not raised at trial, but even if not waived, it was not analogous to the “shaming ritual” in Cruz.

4.   Other examples.

a.“Incorrective” training.  United States v. Hoover, 24 M.J. 874 (A.C.M.R. 1987), petition denied, 25 M.J. 437 (C.M.A. 1987):  After damaging his barracks room, Hoover was required to sleep in a pup tent for 3 weeks between 2200 and 0400 hours.  The court held there was an Article 13 violation; “corrective or extra training” must be “directly related to the deficiency” and “oriented to improve . . . performance in the problem area.”  See also United States v. Fitzsimmons, 33 M.J. 710 (A.C.M.R. 1991) (court set aside BCD as a consequence of “pup tent” pretrial punishment).

b.Violating the Order of the Military Judge.  United States v. Tilghman, 44 M.J. 493 (C.A.A.F. 1996):  Accused was convicted at the end of the day and the government sought to put him in confinement until sentencing hearing the next day.  The military judge determined there was insufficient basis for confinement.  Commander nevertheless ordered accused into pretrial confinement.  Military judge ordered an additional 10 day credit for each day of illegal pretrial confinement.  At the post-trial 39a session, the Chief Judge awarded an additional 18 months credit.

c.Constitutional Deprivation.  United States v. Mack, 65 M.J. 108 (C.A.A.F. 2007):  While the appellate case does not address this issue directly and faulted the trial judge in other areas, CAAF seemed to support trial judge’s decision to award credit for Constitutional violations.  These included the accused’s commanding officer ordering him to have no unsupervised visits with his wife, even though she had no involvement with the case, something the judge found “not directly linked to a valid, governmental purpose and intruded on the sanctity of his marriage, a right which is often protected under a number of rights in the Constitution of the United States.”  The judge also took exception that the accused’s telephone conversations to his counsel were monitored which “chilled his ability and freedom to speak in a protected environment under the attorney/client relationship, intruding upon [Appellant's] ... Fifth and Sixth Amendment rights to counsel.”   Accordingly, the trial judge found these restrictions were violations of his constitutional rights and warranted day for day credit.

d.  Failure to re-instate accused's original rank and pay upon appellate reversal and remand.  United States v. Guardado, 79 M.J. 301 (C.A.A.F. 2020).  Appellant argued that military judge erred in denying Article 13 credit when government failed to restore him to his original pay status (E-8) but instead paid him post-sentence rank of E-1.  The appellate court affirmed, concluding absence of intent to punish by command, and DFAS reliance on federal precedent served a legitimiate, nonpunitive governmental objective.  See also Howell v. United States, 75 M.J. 386 (C.A.A.F. 2016) (reaffirming "[I]n the absence of a showing of intent to punish, a court must look to see if a particular restriction or condition, which may on its face appear to be punishment, is instead but an incident of a legitimate nonpunitive governmental objective.").

5.   Waiver and Forfeiture

                              a.   NOTE:  Although the cases discussed below state that failure to raise the issue of credit is waived if not raised at trial, the Military                                      Justice Act of 2016 amended RCM 905(e) to state that failure to raise timely motions before the court-martial is adjourned “shall                                                constitute forfeiture, absent an affirmative waiver.”  RCM 905(e)(2).  The previous version of RCM 905 in effect before 1 January 2019                                      stated that failure to do so “shall constitute waiver.”  RCM 905(e) (MCM 2016 ed.).

b.   In United States v. Inong, 58 M.J. 460 (2003), CAAF held that an accused must raise illegal pretrial punishment at trial, or the issue will be waived for appellate purposes, absent plain error.  In doing so it specifically overruled United States v. Huffman, 40 M.J. 11 (C.M.A. 1994, as well as the “tantamount to affirmative waiver” rule established by United States v. Tanksley, 54 M.J. 169 (2000) and United States v. Southwick, 53 M.J. 412 (2000).

(1)  The accused can waive Article 13 credit in a plea agreement.

(2)  Absent affirmative waiver of unlawful pretrial punishment at trial, appellate courts have considered violations of Article 13 for the first time on appeal.  United States v. Fricke, 53 M.J. 149 (C.A.A.F. 2000).

E.Applying credits

1.Adjudged v. Approved sentence:  Pretrial confinement credit applies to the approved sentence.  Originally, CAAF held that pretrial confinement credit applies to adjudged sentence, unless there is a PTA that provides for lesser sentence, in which case it applies to lesser sentence.  United States v. Rock, 52 M.J. 154 (C.A.A.F. 1999).  However, in United States v. Spaustat, 57 M.J. 256 (C.A.A.F. 2002), the court confirmed its ruling in Rock and clarified it by stating:  “this court will require the convening authority to direct application of all confinement credits for violation of Article 13 or RCM 305 and all Allen credit against the approved sentence; i.e., the lesser of the adjudged sentence or the sentence that may be approved under the pretrial agreement.” 

2.Pierce credit:  When a Soldier is tried after receiving NJP for the same offense, the Soldier must get complete credit for any prior punishment, “day-for-day, dollar-for-dollar, stripe-for-stripe,” according to United States v. Pierce, 27 M.J. 367 (C.M.A. 1989), which in footnote 5 lays out a method to reconcile punishments that do not directly convert.  Pierce credit must only be granted where the court-martial offense for which an accused is sentenced is substantially identical to the offense for which the accused received an Article 15.  United States v. Bracey, 56 M.J. 387, 389 (C.A.A.F. 2002).  The Military Judges’ Benchbook provides detail on how Pierce credit is determined (i.e., by military judge or the panel) and has sample equivalency tables.

3.Applying Article 13 credit against discharges.  United States v. Zarbatany, 70 M.J. 169 (C.A.A.F. 2011):  CAAF determined that Article 13 relief can range from dismissal of the charges, to confinement credit, to setting aside a punitive discharge.  Soldier received 119 days of Allen credit plus an additional 476 days for unusually harsh PTC conditions.  With adjudged confinement of only six months, Zarbatany was released at the conclusion of the trial.  CAAF held that Article 13 confinement credit can be applied toward a punitive discharge.  While the court noted that “conversion of confinement credit to forms of punishment other than those found in R.C.M. 305(k) is generally inapt,” it can be done, potentially allowing the conversion of a discharge. It also noted, however, that while “meaningful relief” is required, it must not come where it would be “disproportionate to the harm suffered.”  See also United States v. Fulton, 55 M.J. 88 (C.A.A.F. 2001) (stating where no other remedy is appropriate, the military judge may, in the interests of justice, dismiss charges because of unlawful pretrial punishment).

F.   Litigating issues related to pretrial restraint.

1.   Pretrial.

a.Violation of Article 13.  United States v. McFayden, 51 M.J. 289 (C.A.A.F. 1999):  CAAF specified the issue of whether a pretrial agreement requiring the accused to waive his right to challenge a violation of Article 13 violates public policy.  The court held that RCM 705(c)(1)(B) does not specifically prohibit an accused from waiving his right to make such a deal.  However, as this can be done only with the accused’s full knowledge of the implications of the waiver, the military judge should inquire into the facts and circumstances of the pretrial punishment as well as the voluntariness and understanding of the accused of the waiver before accepting the plea.

b.Judicial review:  Whenever reviewing the legality of confinement already served, the military judge should apply an abuse of discretion standard and limit the examination to the evidence previously considered by the magistrate at the RCM 305(i) hearing.  RCM 305(j)(1)(A).  When determining whether to release the prisoner, the military judge should hold a de novo hearing. United States v. Gaither, 45 M.J. 349 (C.A.A.F. 1996).

2.   At trial.

a.“Trial counsel shall inform the court-martial of the data on the charge sheet relating to . . . the duration and nature of any pretrial restraint. . . .  If the defense objects to the data as being materially inaccurate or incomplete . . . the military judge shall determine the issue.  Objections not asserted are forfeited.”  RCM 1001(b)(1).

b.Waiver and Forfeiture

(1)  NOTE:  Although the cases discussed below state that failure to raise the issue of credit is waived if not raised at trial, the Military Justice Act of 2016 amended RCM 905(e) to state that failure to raise timely motions before the court-martial is adjourned “shall constitute forfeiture, absent an affirmative waiver.”  RCM 905(e)(2).  The previous version of RCM 905 in effect before 1 January 2019 stated that failure to do so “shall constitute waiver.”  RCM 905(e) (MCM 2016 ed.).

(2)  Mason credit.  Failure by defense counsel to raise the issue of administrative credit for restriction tantamount to confinement by timely and specific objection to the presentation of data at trial concerning the nature of such restraint will waive consideration of the issue on appeal.  United States v. Ecoffey, 23 M.J. 629 (A.C.M.R. 1986).  But see United States v. Guerrero, 28 M.J. 223 (C.M.A. 1989) (where Court considered request for Mason credit made for first time on appeal, but rejected claim).

(3)  RCM 305(k)/Rexroat credit.  United States v. Rollins, 36 M.J. 795 (A.C.M.R. 1993).  Failure to raise Rexroat/48-hour review issue at trial constitutes waiver.  See also United States v. Sanders, 36 M.J. 1013 (A.C.M.R. 1993).

3.  Informing the Panel.  When the defense opts to introduce evidence of pretrial government action that resulted in administrative credit, the military judge has an obligation to instruct the members of the administrative credit awarded for them to consider during sentence deliberation.  The instruction, however, should be general in nature and not “expressly or by inference invite the members to award extra confinement time to compensate for the administrative confinement credit awarded by the military judge.  United States v. Barnett, 70 M.J. 568 (A.F. Ct. Crim. App. 2011), affirmed in, United States v. Barnett, 71 M.J. 248 (C.A.A.F. 2012).


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