United States v. Chapa , 57 M.J. 140 ( 2002 )

UNITED STATES, Appellee
V.
Pedro CHAPA III, Private First Class
U.S. Army, Appellant
No. 01-0011
Crim. App. No. 9801043
United States Court of Appeals for the Armed Forces
Argued October 23, 2001
Decided August 8, 2002
GIERKE, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and EFFRON, J., joined. BAKER, J., and SULLIVAN,
S.J., each filed an opinion concurring in part and in the result.
Counsel
For Appellant: Captain Christopher D. Carrier (argued); Colonel Adele
H. Odegard, Lieutenant Colonel David A. Mayfield, Major
Mary M. McCord, and Captain Maanvi M. Patoir (on brief).
For Appellee: Captain Karen J. Borgerding (argued); Major Paul
T. Cygnarowicz and Captain Arthur L. Rabin (on brief);
Colonel Steven T. Salata and Major Bryan T. Broyles.
Military Judge: Nancy A. Higgins
This opinion is subject to editorial correction before final publication.
United States v. Chapa, No. 01-0011/AR
Judge GIERKE delivered the opinion of the Court.
A military judge sitting as a general court-martial
convicted appellant, pursuant to his pleas, of a single violation
of Article 80, Uniform Code of Military Justice (UCMJ), 10 USC §
880, and multiple violations of Article 112a, UCMJ, 10 USC §
912a, arising from appellant’s distributions of lysergic acid
diethylamide (LSD) and methylenedioxyamphetamine (ecstasy). The
adjudged and approved sentence provides for a bad-conduct
discharge, confinement for 30 months, total forfeitures, and
reduction to the lowest enlisted grade. The Court of Criminal
Appeals affirmed the findings and sentence. 53 M.J. 769 (2000).
This Court granted review of the following issue:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN DENYING
APPELLANT DAY FOR DAY ADMINISTRATIVE CREDIT FOR THE
GOVERNMENT’S FAILURE TO FOLLOW THE PROCEDURAL REQUIREMENTS
UNDER RCM 305.1
For the reasons that follow, we affirm.
Appellant was apprehended when he distributed LSD to an
undercover agent. On February 10, 1998, appellant’s commander
revoked his off-post pass privileges, seized all his civilian
clothing and personal effects, and seized some of his uniforms.
Appellant was required to be escorted by a noncommissioned
officer whenever he was outside his duty area. These conditions
on liberty remained in effect during a 31-day deployment to
1
In addition, this Court specified the following issue:
IF THE COURT ERRED, WHAT RELIEF, IF ANY, CAN BE GRANTED AT
THIS STAGE?
In light of our disposition of the granted issue, we do not reach
the specified issue.
2
United States v. Chapa, No. 01-0011/AR
Thailand and during field exercises in the United States. These
conditions on liberty were removed on July 20, 1998, but
appellant’s civilian clothing and property were not returned
until July 27, when he returned from a field exercise.
At trial, appellant asked for appropriate relief for illegal
pretrial punishment in violation of Article 13, UCMJ, 10 USC
§ 813. He did not assert that his restriction was tantamount to
confinement, did not assert a violation of the requirements for
review of pretrial restraint under RCM 305, Manual for Courts-
Martial, United States (2000 ed.), and did not ask for any relief
based on RCM 305(k). The only mention in the record of any
command review occurred during the following cross-examination of
appellant’s commander by defense counsel:
Q. During that whole period, did you ever make any
review of your decision to confiscate any goods?
A. Yes.
Q. Did you ever articulate that review to PFC Chapa?
A. No, I did not.
After imposing sentence, the military judge granted
appellant credit for 136 days, ruling that the restraints on
appellant’s liberty were tantamount to confinement. The military
judge did not mention RCM 305; nor did she mention United States
v. Mason, 19 M.J. 274 (CMA 1985) (summary disposition); or United
States v. Gregory, 21 M.J. 952, 955-56 (ACMR) (holding that RCM 305
applies to restriction tantamount to confinement), aff’d, 23 M.J.
246 (CMA 1986) (summary disposition).
RCM 305(h)(2)(A) requires that, not later than 72 hours
after ordering a prisoner into pretrial confinement, “the
3
United States v. Chapa, No. 01-0011/AR
commander shall decide whether pretrial confinement will
continue.” RCM 305(h)(2)(C) requires the commander to prepare a
written memorandum of the reasons for continued pretrial
confinement.
RCM 305(i)(1) requires that review of probable cause to
continue pretrial confinement “shall be made by a neutral and
detached officer within 48 hours of imposition of confinement
under military control.”2 RCM 305(i)(2) requires another review
by a neutral and detached officer within 7 days of imposition of
confinement.
RCM 305(k) provides that the remedy for noncompliance with
the above provisions “shall be an administrative credit against
the sentence adjudged for any confinement served as the result of
such noncompliance . . . at the rate of 1 day credit for each day
of confinement served as a result of such noncompliance.” If the
adjudged confinement is insufficient to offset the credit due,
“the credit shall be applied against hard labor without
confinement, restriction, fine, and forfeiture of pay, in that
order[.]”
Before the court below and this Court, appellant has asked
for additional credit, asserting that the commander’s review and
magistrate’s review of his pretrial restraint were not conducted.
2
This version of RCM 305 took effect on May 27, 1998, in
accordance with Executive Order Number 13086, and is the same as
the version in effect at the time of appellant’s court-martial.
The previous version, in effect when appellant’s conditions on
liberty were imposed, did not set out the 48-hour review
requirement, although this requirement still applied by virtue of
this Court’s decision in United States v. Rexroat, 38 M.J. 292, 295
(CMA 1993)(citing County of Riverside v. McLaughlin, 500 U.S. 44
(1991).
4
United States v. Chapa, No. 01-0011/AR
Because appellant has served all the adjudged confinement, he
asks for credit against the adjudged and approved forfeitures.
The Government’s position before the lower court and this Court
is that the issue was waived. The lower court held that
appellant waived the issue of entitlement to additional credit
under RCM 305(k) because “the trial defense counsel did not
specifically, substantively, or even implicitly request RCM
305(k) credit.” 53 M.J. at 773.
There is no burden on the Government to make an affirmative
showing of compliance with any of the procedures addressed in RCM
305. The defense bears the burden of raising an issue of
compliance with any of these procedures by making a motion that
specifically focuses the attention of trial participants on the
alleged shortcoming. In United States v. McCants, 39 M.J. 91, 93
(CMA 1994), this Court held that any issue regarding failure to
conduct the 48-hour review of pretrial confinement3 was waived by
failure to specifically raise the issue at trial. We held that a
request for relief for failure to conduct the 7-day review was
not sufficient to preserve the issue whether the 48-hour review
was conducted. See RCM 905(e), Manual, supra.4
This case presents an even stronger case for waiver than
McCants. In McCants, we held that an asserted violation of one
3
See id.
4
The passive waiver referred to in RCM 905(e) and this Court’s
decision in McCants is synonymous with the term “forfeiture” used
by the Supreme Court in United States v. Olano, 507 U.S. 725, 733
(1993). Because RCM 905(e) uses the term “waiver” instead of
“forfeiture,” we use the language of the rule in this opinion.
5
United States v. Chapa, No. 01-0011/AR
provision of RCM 305 was not sufficient to preserve the issue
whether another provision was violated. In this case, appellant
did not assert that his restriction was tantamount to
confinement, nor did he assert any violations of RCM 305. The
defense request for relief focused solely on Article 13. The
defense counsel’s question about the commander’s review of his
decision to seize appellant’s personal property was insufficient
to raise and preserve the issue, for two reasons: (1) because it
addressed only the seizure of appellant’s property and not the
restraints on his liberty, and (2) it was too general to alert
the military judge or the Government to a complaint that formal
review processes were not followed. Defense counsel had the
opportunity to ask the commander whether the conditions on
appellant’s liberty were reviewed in accordance with RCM 305(h)
and (i), or to present other evidence of noncompliance, but he
did not avail himself of that opportunity.
Because the issue was not raised, the record in this case is
silent on the issue whether appellant’s pretrial restraint was
reviewed in accordance with RCM 305(h) and (i). There is no
evidence that appellant’s pretrial restraint was reviewed;
conversely, there is no evidence that it was not reviewed.
We hold that any issue founded on noncompliance with RCM 305
was waived. We further hold that, because appellant did not
establish a factual predicate for his asserted violation of RCM
305, he has not overcome the waiver provisions of RCM 905(e). To
overcome waiver, appellant was required to show that there was an
“error,” i.e., a violation of RCM 305(h) and (i), that it was
“plain,” and that it “materially prejudiced” his “substantial
6
United States v. Chapa, No. 01-0011/AR
rights.” See United States v. Powell, 49 M.J. 460, 463-64 (1998).
Appellant has not carried his burden. Accordingly, we hold that
the court below did not err by applying waiver.
Decision
The decision of the United States Army Court of Criminal
Appeals is affirmed.
7
United States v. Chapa, No. 01-0011/AR
BAKER, Judge (concurring in part and in the result):
At trial, appellant asked for relief for unlawful
pretrial punishment in violation of Article 13, Uniform
Code of Military Justice, 10 USC § 813.1 In response,
appellant received day-for-day credit from the military
judge for the period he spent serving restriction ruled to
be tantamount to confinement. See United States v. Mason,
19 M.J. 274 (CMA 1985). However, he did not receive credit
in accordance with RCM 305, Manual for Courts-Martial,
United States (2000 ed.). On appeal, the Court of Criminal
Appeals determined that in his motion before the trial
court, appellant waived any claim to RCM 305 credit by
relying only on Article 13.2
In my view, where a liberty interest is at stake, and
based on these facts, I would not rely on a mechanical
application of waiver. Appellant did not specifically
1
Defense counsel stated: “[H]is pretrial restriction . . . was unlawful
punishment. And in the meaning of Article 13 of the Uniform Code of
Military Justice. . . . The terms of his restriction, as the company
calls it, were unjust and unfair. . . . That is wrong, Your Honor,
Article 13 of the Uniform Code of Military Justice says that it is
wrong, and a significant sentence credit should be given to this
soldier for what he suffered.”
2
That court said: “[I]n the appellant's case, the trial defense counsel
did not specifically, substantively, or even implicitly request RCM
305(k) credit. Instead, he simply requested relief for illegal
pretrial punishment, never asking for credit based on restriction
tantamount to confinement or requesting additional credit based on
procedural failures under RCM 305(h) and (i).” 53 M.J. at 773.
United States v. Chapa, No. 01-0011/AR
assert a violation of the requirements imposed by RCM 305;
however, appellant’s counsel did say:
The court must remind Captain Trotter that he cannot
willy nilly impose restriction according to his mood.
He needs to document and think through his decisions
when he treats soldiers prior to trial.
. . . .
I think actions speak louder than words in this case,
ma’am. There was no written record to any of these
conditions. . . . There was no attempt to review these
con—conditions [sic].
(Emphasis added.)
In my view, appellant did enough to put the military
judge on notice that he was seeking all appropriate credit
for the period of his pretrial restraint, including RCM 305
credit. This assumes, of course, that one accepts the
premise that RCM 305 credit is indeed due for pretrial
restriction tantamount to confinement. In this regard, it
is noteworthy that appellant did not specifically request
Mason credit for pretrial restriction tantamount to
confinement. Nonetheless, the military judge awarded
appellant 136 days of Mason credit. Apparently, the
military judge understood that appellant was asking for all
appropriate credit due for the manner in which he was
restricted prior to trial.
This view does not undo the holding in United States
v. McCants, 39 M.J. 91 (CMA 1994). In McCants, this Court
2
United States v. Chapa, No. 01-0011/AR
held that the appellant waived credit for alleged
violations of RCM 305(d) and (h) where he was in fact
confined and specifically asked for credit under RCM
305(i). Fair enough, as that is precisely what RCM 305
contemplates – requirements for confinement. But the law
applicable to appellant’s issue is not so clear that we
should hold defense counsel to the waiver standard imposed
by the Court of Criminal Appeals and adopted by the
majority. Indeed, while this Court has made an oblique
suggestion that RCM 305 applies to cases of pretrial
restriction tantamount to confinement, it has not expressly
held so.3
Therefore, absent waiver, I must face the substantive
issue. Is RCM 305 credit due for pretrial restriction
tantamount to confinement? I am skeptical. First, if it
is due, then it will likely be due in all cases of
restriction tantamount to confinement. By definition,
restriction tantamount to confinement presents the
situation where the commander will not have applied RCM 305
because he or she believes an accused is in restriction and
not in confinement-- constructive or actual. Second, if it
is always due, then why is it not obvious error for a
3
“[I]t appears that the Court of Military Review correctly concluded
that restriction tantamount to confinement is a form of confinement to
3
United States v. Chapa, No. 01-0011/AR
military judge to grant Mason credit, but not address RCM
305? I think the better argument is that it is not due.
The relevant statutory language is found in RCM 305
under the subtitle “pretrial confinement” and not pretrial
restraint generally. RCM 305(a) states that “[p]retrial
confinement is physical restraint,” as distinct from
restriction. See RCM 304(a)(2). The Discussion of 305(a)
addresses confinement in terms of confinement facilities,
and with reference to POWs, who are not likely to be
restricted but, rather, confined. RCM 305(f), (h), (i),
and (j) all seem to be triggered, and are understood to be
triggered, by actual confinement. This is consistent with
other sections of the Manual, like RCM 202(c)(2), which
treats confinement and restriction as distinct concepts,
and paragraph 102c, Part IV, where restriction is defined
as a “moral restraint.” As a result, I would find it hard,
absent persuasive executive practice, to find that the
President intended pretrial restriction tantamount to
confinement to receive double credit (i.e., Mason credit
and RCM 305 credit).
In my view, the military judge got the message --
appellant was seeking whatever credit he was due. The
which RCM 305 . . . applies.” United States v. Gregory, 23 M.J. 246 (CMA
1986)(summary disposition).
4
United States v. Chapa, No. 01-0011/AR
military judge responded correctly by awarding appellant
day-for-day Mason credit.
5
United States v. Chapa, No. 01-0011/AR
SULLIVAN, Senior Judge (concurring in part and in the
result):
The majority affirms this case on the basis that
appellant’s failure at trial to request additional pretrial
confinement credit under RCM 305 “waived” any right which
he might have to such credit. It cites RCM 905(e) and the
decision of this Court in United States v. McCants, 39 M.J.
91, 93 (CMA 1994). It also notes that appellant failed to
show plain error has occurred under RCM 305. I would hold
that, in the absence of plain error, appellant’s post-trial
claim for additional sentence credit should be denied. See
United States v. Scalarone, 54 M.J. 114 (2000); United States
v. Huffman, 40 M.J. 225 (CMA 1994)(holding that pretrial
confinement credit questions not knowingly waived at trial
should be resolved at the appellate level on the basis of
plain error).
Turning first to the general question of waiver, I
must note that it has long been defined by the Supreme
Court as “the intentional relinquishment or abandonment of
a known right.” Johnson v. Zerbst, 304 U.S. 458, 464
(1938), quoted in United States v. Olano, 507 U.S. 725, 733
(1993). There is no evidence in this case that appellant
or his defense counsel knew that a panel of the Army Court
United States v. Chapa, No. 01-0011/AR
of Military Review had previously held that RCM 305(k)
applied to pretrial restriction which was “tantamount to
confinement.” See United States v. Gregory, 21 M.J. 952
(ACMR 1986).1 Moreover, no strategic reason has been
identified for the defense to raise this claim to
additional or double confinement credit only on appeal
after the confinement portion of appellant’s sentence had
been served. See United States v. Sumner, 265 F.3d 532,
537-39 (7th Cir. 2001); United States v. Gore, 154 F.3d 34,
41-42 (2nd Cir. 1998); cf. United States v. Staples, 202
F.3d 992, 995 (7th Cir. 2000); United States v. Yu-Leung, 51
F.3d 1116, 1121-23 (2nd Cir. 1995).
Nevertheless, as pointed out by the majority, there
was a failure by appellant and his defense counsel at his
trial to make a motion for appropriate sentence relief
under RCM 305(k), as provided for in RCM 305(j). (R.12,
84-85, 255-58) Moreover, RCM 905(e) states:
(e) Effect of failure to raise
defenses or objections. Failure by
a party to raise defenses or
objections or to make motions or
1
I agree with Judge Baker that the two judge order of this Court
affirming United States v. Gregory, 23 M.J. 246 (CMA 1986) (summary
disposition), is not a sufficient basis on which to find a knowing
waiver by defense counsel of appellant’s “apparent” right to additional
sentence credit under RCM 305(k). See United States v. Diaz, 40 M.J.
335, 339-340 (CMA 1994)(holding that effect of summary disposition on
other cases has not yet been decided).
2
United States v. Chapa, No. 01-0011/AR
requests which must be made before
pleas are entered under subsection
(b) of this rule shall constitute
waiver. The military judge for good
cause shown may grant relief from
the waiver. Other motions,
requests, defenses, or objections,
except lack of jurisdiction or
failure of a charge to allege an
offense, must be raised before the
court-martial is adjourned for that
case and, unless otherwise provided
in this Manual, failure to do so
shall constitute waiver.
(Emphasis added.)
The majority now relies on these Manual provisions and the
absence of plain error to find a waiver based on
appellant’s failure to raise his RCM 305(k) claim at trial.
I applaud the majority’s reaffirmation, albeit sub
silentio, of Huffman and Scalarone.2 See generally United
States v. Hayes, 218 F.3d 615, 619-20 (6th Cir. 2000)
(waiver is a rule of prudence, not jurisdiction).
I initially note that the requirement for a timely
objection or motion is a basic component of both civilian
and military procedure. See RCM 905(e); Fed. R. Crim. P.
12(b), 30, and 51. Moreover, it is equally well
established that
2
See also United States v. Gilley, 56 M.J. 113, 127 (2001)(Sullivan, J.,
concurring in part and dissenting in part).
3
United States v. Chapa, No. 01-0011/AR
“[a] rigid and undeviating
judicially declared practice under
which courts of review would
invariably and under all
circumstances decline to consider
all questions which had not
previously been specifically urged
would be out of harmony with . . .
the rules of fundamental justice[.]”
Hormel v. Helvering, 312 U.S. 552,
557 (1941).
United States v. Olano, 507 U.S. at 731. Finally, both
military and federal civilian appellate courts hold that
appellate review is not precluded by these types of rules
when plain error exists. United States v. Scalarone,
supra; United States v. Huffman, supra; United States v.
Hayes, supra.
RCM 905(e) is not a “waiver” rule as defined by the
Supreme Court in United States v. Olano, supra. As noted
above, the Supreme Court in Olano has defined waiver in far
different terms. It said:
Waiver is different from
forfeiture. Whereas forfeiture is
the failure to make the timely
assertion of a right, waiver is the
“intentional relinquishment or
abandonment of a known right.”
Johnson v. Zerbst, 304 U.S. 458, 464
4
United States v. Chapa, No. 01-0011/AR
(1938); see, e.g., Freytag v.
Commissioner, 501 U.S. 868, 894, n.2
(1991)(SCALIA, J., concurring in
part and concurring in judgment)
(distinguishing between “waiver" and
“forfeiture"); Spritzer, Criminal
Waiver, Procedural Default and the
Burger Court, 126 U.Pa.L.Rev. 473,
474-477 (1978)(same); Westen, Away
from Waiver: A Rationale for the
Forfeiture of Constitutional Rights
in Criminal Procedure, 75
Mich.L.Rev. 1214, 1214-1215
(1977)(same). Whether a particular
right is waivable; whether the
defendant must participate
personally in the waiver; whether
certain procedures are required for
waiver; and whether the defendant’s
choice must be particularly informed
or voluntary, all depend on the
right at stake. See, e.g., 2 W.
LaFave & J. Israel, Criminal
Procedure § 11.6 (1984)(allocation
of authority between defendant and
counsel); Dix, Waiver in Criminal
Procedure: A Brief for More Careful
Analysis, 55 Tex. L. Rev. 193
(1977)(waivability and standards for
waiver). Mere forfeiture, as
opposed to waiver, does not
extinguish an “error” under Rule
52(b). Although in theory it could
be argued that “[i]f the question
was not presented to the trial court
no error was committed by the trial
court, hence there is nothing to
review," Orfield, The Scope of
Appeal in Criminal Cases, 84
U.Pa.L.Rev.825, 840 (1936), this is
not the theory that Rule 52(b)
adopts. If a legal rule was
violated during the district court
proceedings, and if the defendant
did not waive the rule, then there
has been an "error” within the
5
United States v. Chapa, No. 01-0011/AR
meaning of Rule 52(b) despite the
absence of a timely objection.
507 U.S. at 733-34 (emphasis added); see also Johnson v.
United States, 520 U.S. 461 (1997).
RCM 905(e) is a “raise or waive” rule, typically known
as a rule of forfeiture. As noted earlier, it is well-
established that such a rule does not absolutely preclude
appellate review. See United States v. Olano, supra.
Noted commentators on criminal law have made clear
that this is the prevailing view in American courts. They
said:
Forfeiture of the Right to
AppealIssues Not Raised in the
Trial Court. Perhaps no standard
governing the scope of appellate
review is more frequently applied
than the rule that “an error not
raised and preserved at trial will
not be considered on appeal.” Even
a constitutional right “may be
forfeited in criminal as well as
civil cases by the failure to make
timely assertion of the right.” In
the federal system, the principal
rule is codified in Federal Rule 51,
although preservation requirements
are also stated elsewhere in
statute, court rule, and judicial
decision. States have similar
provisions. The values underlying
6
United States v. Chapa, No. 01-0011/AR
this rule were aptly summarized by
the Oregon Court of Appeals:
There are many rationales for
the raise-or-waive rule: that
it is a necessary corollary of
our adversary system in which
issues are framed by the
litigants and presented to a
court; that fairness to all
parties requires a litigant to
advance his contentions at a
time when there is an
opportunity to respond to them
factually, if his opponent
chooses to; that the rule
promotes efficient trial
proceedings; that reversing
for error not preserved
permits the losing side to
second-guess its tactical
decisions after they do not
produce the desired result;
and that there is something
unseemly about telling a lower
court it was wrong when it
never was presented with the
opportunity to be right. The
principal rationale, however,
is judicial economy. There
are two components to judicial
economy: (1) if the losing
side can obtain an appellate
reversal because of error not
objected to, the parties and
public are put to the expense
of retrial that could have
been avoided had an objection
been made; and (2) if an issue
had been raised in the trial
court, it could have been
resolved there, and the
parties and public would be
spared the expense of an
appeal.
7
United States v. Chapa, No. 01-0011/AR
There is, of course, nothing in
these rationales that requires that
the “raise-or-waive” rule be
absolute, and all jurisdictions
recognize one or more situations in
which issues not raised below will
be considered on appeal. The plain
error rule. . . is clearly the most
important of these “exceptions” to
the raise-or-waive rule. Several
other exceptions … either do not
cover as broad a range of
objections, or are not as widely
accepted, but they nevertheless have
a fairly significant impact upon the
scope of review in many
jurisdictions.
5 Wayne LaFave et al., Criminal Procedure § 27.5(c) at 923-
24 (2d ed. 1999). Our decisions in Huffman and Scalarone
are consistent with this well-established practice.
In this light, the majority’s resolution of appellant’s
post-trial claim for additional sentence credit under RCM
305(k) on the basis of RCM 305(j), RCM 905(e), and the
absence of plain error is well taken.3 In cases decided
after United States v. McCants, supra, we have not
foreclosed appellate review of claims for other types of
3
I do not agree with the majority that this Court should continue to
use the word “waiver” when it means “forfeiture.” As Judge Posner has
pointed out, “[t]he distinction between waiver and forfeiture is
important to the operation of an adversary system, which is another
reason for avoiding use of the word ‘waiver’ to designate both
concepts.” See United States v. Richardson, 238 F.3d 837, 841 (7th Cir.
2001). Precision, not imprecision, should be the hallmark of this
Court in the area of plain error. See United States v. Powell, 49 M.J.
460, 466 (1998)(Sullivan, J., concurring in the result); see generally
United States v. Olano, 507 U.S. 725 (1993).
8
United States v. Chapa, No. 01-0011/AR
sentence credit because of a simple failure of an accused
to move for this sentence credit at his court-martial.
As noted above, we have followed a road in United
States v. Huffman, supra, and United States v. Scalarone,
supra, similar to federal civilian practice and reviewed
for plain error. We do so again in this case. See
generally LaFave, supra, § 27.5(c) and (d) at 918-28.
I further conclude that the military judge did not
plainly err by failing to give appellant additional credit
for his pretrial restriction tantamount to confinement
under RCM 305. She gave appellant 136 days credit for
pretrial restriction tantamount to confinement pursuant to
United States v. Mason, 19 M.J. 274 (CMA 1985)(summary
disposition). United States v. Gregory, 21 M.J. at 952, the
source of his purported legal right to additional credit
under RCM 305, does not automatically entitle an accused to
double credit for pretrial restriction tantamount to
confinement. A record must exist justifying such a claim
under this rule, and as pointed out by the majority, it is
not here.
9
United States v. Chapa, No. 01-0011/AR
Finally, it is my view that the Army Court’s decision
in Gregory is flawed and should not be adopted by this
Court. But see United States v. Gregory, 23 M.J. 246 (CMA
1986)(summary disposition); cf. United States v. Diaz, 40
M.J. 335 (CMA 1994). On this point, I note that RCM 304
provides for different types of “pretrial restraint,”
including pretrial confinement to be imposed by order.
(“[C]onditions on liberty, restriction in lieu of arrest,
arrest, or confinement”) If “pretrial confinement” is
ordered (“physical restraint, imposed by order of competent
authority, depriving a person of freedom pending
disposition of offenses”), RCM 305 also applies. See RCM
304(a)(4). The logical inference to be drawn from the
wording of RCM 304(a)(4) is that RCM 305 does not apply
where a lesser form of pretrial restraint is “ordered.”
Accordingly, because pretrial confinement was not ordered
in this case, appellant is not entitled to additional
credit for failure of his commander to comply with the
requirements of RCM 305.
In sum, I would affirm this case on the basis that
appellant has not showed that the military judge plainly
erred in failing to give him additional sentence credit
under RCM 305(k). Appellant received 136 days credit for
10
United States v. Chapa, No. 01-0011/AR
his pretrial restriction tantamount to confinement, and he
had no per se entitlement to double credit, even if United
States v. Gregory, supra, was good law. Accordingly, I
would affirm the sentence in this case.
11