UNITED STATES, Appellee
v.
Derrick M. WILLIAMS, Staff Sergeant
U.S. Air Force, Appellant
No. 08-0339
Crim. App. No. 36679
United States Court of Appeals for the Armed Forces
Argued October 13, 2009
Decided January 14, 2010
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, J., joined. STUCKY, J., filed a
separate opinion concurring in part and dissenting in part, in
which RYAN, J., joined.
Counsel
For Appellant: Captain Jennifer J. Raab (argued); Major Shannon
A. Bennett and Captain Tiffany M. Wagner (on brief).
For Appellee: Captain G. Matthew Osborn (argued); Colonel
Douglas P. Cordova, Lieutenant Colonel Jeremy S. Weber, and
Gerald R. Bruce, Esq. (on brief); Major Steven R. Kaufman.
Military Judge: J. L. Anderson
This opinion is subject to revision before final publication.
United States v. Williams, No. 08-0339/AF
Judge ERDMANN delivered the opinion of the court.
Staff Sergeant Derrick M. Williams was found guilty of
numerous charges by a military judge sitting as a general court-
martial.1 He was sentenced to eighteen years of confinement, a
dishonorable discharge, reduction to E-1, and forfeiture of all
pay and allowances. The convening authority approved the
sentence and the United States Air Force Court of Criminal
Appeals affirmed the findings and sentence. United States v.
Williams (Williams I), No. ACM 36679, 2007 CCA LEXIS 567, 2007
WL 44612041 (A.F. Ct. Crim. App. Dec. 19, 2007). On August 7,
2008, this Court set aside the decision of the Court of Criminal
Appeals and remanded the case to the lower court for
reconsideration in light of United States v. Adcock, 65 M.J. 18
(C.A.A.F. 2007). United States v. Williams (Williams II), 67
M.J. 19 (C.A.A.F. 2008). Upon reconsideration, the Court of
Criminal Appeals found that the military judge did not abuse his
discretion when he did not award additional sentencing credit
for a violation of Dep’t of the Air Force, Instr. 31-205, The
Air Force Corrections System (Apr. 7, 2004) [hereinafter AFI 31-
205], and again affirmed the findings and the sentence. United
1
Williams was found guilty pursuant to his pleas of assault
consummated by a battery, assault with a loaded firearm, assault
upon a law enforcement officer, unlawful entry, kidnapping,
communicating a threat, desertion, fleeing apprehension, escape
from confinement, reckless operation of a vehicle, and wrongful
appropriation of a vehicle. He was found guilty, contrary to
2
United States v. Williams, No. 08-0339/AF
States v. Williams (Williams III), No. ACM 36679 (f rev) (A.F.
Ct. Crim. App. Oct. 30, 2008).
Confinement in violation of service regulations does not
create a per se right to sentencing credit under the Uniform
Code of Military Justice (UCMJ). Adcock, 65 M.J. at 23 (citing
United States v. King, 61 M.J. 225, 228 (C.A.A.F. 2005)).
However, under Rule for Courts-Martial (R.C.M.) 305(k), a
servicemember may identify abuses of discretion by pretrial
confinement authorities, including violations of applicable
service regulations, and on that basis request confinement
credit. Adcock, 65 M.J. at 24. We granted review in this case
to determine whether the military judge erred in not awarding
additional confinement credit under R.C.M. 305(k) after having
found that the confinement officials had violated a provision of
AFI 31-205. We also granted review to determine whether
Williams was entitled to additional confinement credit under
Article 13, UCMJ, 10 U.S.C. § 813 (2000), due to the conditions
of his confinement.2
his pleas, of assault consummated by a battery, kidnapping,
communicating a threat, and assault with a loaded firearm.
2
We granted review of the following issues:
I. WHETHER, HAVING FOUND KNOWING VIOLATIONS OF AFI
31-205, THE MILITARY JUDGE ERRED IN NOT DETERMINING
THAT THE VIOLATION INVOLVED AN ABUSE OF DISCRETION
WARRANTING CREDIT UNDER RCM 305(k).
3
United States v. Williams, No. 08-0339/AF
We find that the military judge abused his discretion in
failing to award additional confinement credit under R.C.M.
305(k) for the period June 1, 2004 through August 25, 2004 and
that additional confinement credit for that period is warranted,
but that no additional confinement credit is warranted under
Article 13, UCMJ.
Background
On March 24, 2004, Dr. Leckie, an Air Force psychologist,
conducted a command-directed mental health evaluation of
Williams. Dr. Leckie concluded that Williams “is at low (but
not non-existent) risk for suicide and/or violence.” In late
March and early April, Williams committed a number of serious
offenses which resulted in his apprehension and his initial
pretrial confinement at the Kirtland Air Force Base Confinement
Facility. Upon his entry into the confinement facility,
Williams was placed in a maximum custody status and was placed
on “suicide watch.” It is standard practice at the confinement
facility to place all pretrial detainees on an initial twenty-
four-hour “suicide watch” to monitor their behavior. Williams
II. WHETHER THE CONDITIONS OF APPELLANT’S PRETIRAL
CONFINEMENT IN SUICIDE WATCH, WHICH INCLUDED, INTER
ALIA, DENIAL OF BOOKS, A RADIO, AND/OR A CD PLAYER,
AND 24-HOUR-A-DAY LIGHTING, WERE SO EXCESSIVE THAT
THEY CONSTITUTE A PUNISHMENT IN VIOLATION OF ARTICLE
13, UCMJ, AND THUS, APPELLANT IS ENTITLED TO
ADDITIONAL SENTENCE CREDIT.
United States v. Williams, 68 M.J. 78 (C.A.A.F. 2009).
4
United States v. Williams, No. 08-0339/AF
was removed from “suicide watch” after this initial twenty-four-
hour period, although he remained in a maximum custody status
for fifteen days before being released into the general
population of the confinement facility.
On May 29, 2004, Williams escaped from pretrial
confinement. He was captured on May 30, 2004, and was returned
to pretrial confinement at the Kirtland Confinement Facility.
He was placed in a maximum security status and confined in a
“suicide watch” cell, which was lighted and monitored by camera
twenty-four hours a day. He was also required to wear a special
suicide gown.3
On May 31, 2004, Williams was once again evaluated by Dr.
Leckie. Security Forces personnel had informed Dr. Leckie of
reports that Williams had made suicidal statements. Williams
declined to answer some of Dr. Leckie’s questions, stating that
he first wanted to speak to his lawyer. During the interview
Williams was generally uncooperative and Dr. Leckie concluded
that no follow-up was necessary at that time.
On June 10, 2004, after consulting with other doctors, Dr.
Leckie prepared a memorandum to the confinement officials in
which he stated: “Williams is at high, long-term risk for
committing suicidal and homicidal behaviors,” “[he] is not
3
A suicide gown is a sleeveless cloth garment with velcro strap
fasteners.
5
United States v. Williams, No. 08-0339/AF
reliable with respect to cooperating with mental health check-
ins,” “[he] should remain under the provisions of your suicidal
protocol, segregated from other prisoners (since he may attempt
to harm them).” Dr. Leckie concluded that “[b]ecause he is at
high risk for violence and because he will remain at high risk
for violence and suicide for an indefinite, long period of time,
meticulous scrutiny should be given to his long-term care
arrangements.” However, Dr. Leckie did request that confinement
officials provide Williams “access to a variety of books and a
radio or cd player,” noting that “[t]hese humane interventions
will help him pass his time productively and help him manage his
stress.”
Williams met with Dr. Leckie on July 9, 2004, and was again
uncooperative. He also met twice with another mental health
provider, but did not receive therapy during those visits.
During his confinement on “suicide watch,” Williams was visited
every two or three days by medical personnel, primarily nurse
practitioners and physician assistants. He was not regularly
seen by mental health providers and no entries as to the
appropriateness of his “suicide watch” status were made in his
medical files or his confinement inspection records during this
period.
In a memorandum to confinement officials dated August 26,
2004, Dr. Leckie recommended that Williams be removed from
6
United States v. Williams, No. 08-0339/AF
“formal suicide watch” status. Confinement officials, however,
did not alter Williams’s placement and he remained under the
restrictive conditions of “suicide watch” for an additional 188
days, until the end of his trial on March 2, 2005. At some
point during the period of his confinement Williams was allowed
access to a radio and a television and he was allowed to have
books. For much of his confinement Williams was required to
wear a suicide gown and the cell had twenty-four-hour lighting.
At trial Williams moved for appropriate relief for illegal
pretrial punishment, citing Article 13, UCMJ, and R.C.M. 305(k).
Among other issues, the defense argued that the Government had
failed to follow AFI 31-205, para. 8.10, which requires medical
authorities to review the appropriateness of continued “suicide
watch” at a minimum of every twenty-four hours.4 Following a
4
AFI 31-205, para. 8.10, provides:
Suicide Watch. Confinement officers determine when it is
necessary to place detainees/inmates on suicide watch to
prevent injury, maintain health, or discipline standards.
The confinement officer develops procedures to ensure the
safety of suicidal inmates. Detainees/inmates are
segregated to protect themselves against self harm and a
medical officer will evaluate the individual and make a
determination regarding the appropriateness of continued
segregation as soon as possible and within 24-hours of the
initiation of segregation. Additionally, a medical
authority will review the appropriateness of continued
suicide watch at a minimum every 24-hours after the
initiation of the segregation to evaluate their health and
sanitary conditions.
Emphasis added.
7
United States v. Williams, No. 08-0339/AF
hearing on the motion, the military judge found that the
Government’s failure to comply with AFI 31-205 after August 24,5
2004, “resulted in the accused being subjected to more onerous
conditions that were not related to a legitimate governmental
objective.” The military judge awarded Williams one additional
day of confinement credit for each day from August 26, 2004
until the end of his trial on March 2, 2005, which amounted to
188 days of credit.
In its initial review of the case the Court of Criminal
Appeals affirmed the conviction. Williams I, 2007 CCA LEXIS
567, at *15, 2007 WL 4461204, at *5. Following our remand of
the case, the Court of Criminal Appeals once again affirmed and
held:
[W]e agree with the military judge’s conclusion that the
appellant was illegally punished between 26 August 2004 and
the date of trial. We also agree that 188 days of
additional credit was appropriate for the Article 13, UCMJ,
violation and decline to award additional credit as
requested by the appellant.
Williams III, No. ACM 36679 (f rev), slip op. at 6.
The basis for the military judge’s award of confinement
credit was Article 13, UCMJ:
[T]his Court concludes that the government’s failure
to comply with Air Force instructions on “suicide
watch” after 24 August 2004 resulted in the accused
being subjected to more onerous conditions that [sic]
were not related to a legitimate governmental
objective. . . . Therefore, the accused will be given
5
See infra note 6.
8
United States v. Williams, No. 08-0339/AF
an additional 188 days credit for the violation of
Article 13.6
In reviewing and affirming the military judge’s ruling, the
Court of Criminal Appeals came to the same conclusion:
Based on the military judge’s findings of fact as
supplemented by our own independent review of the
record, and after conducting our own de novo review of
whether the appellant is entitled to additional credit
under Article 13, UCMJ, we agree with the military
judge’s conclusion that the appellant was illegally
punished between 26 August 2004 and the date of trial.
We also agree that 188 days of additional credit was
appropriate for the Article 13, UCMJ, violation and
decline to award additional credit as requested by the
appellant.
Williams III, No. ACM 36679 (f rev), slip op. at 6.
Discussion
Williams argues that while the military judge was correct
when he found that confinement officials had violated the
provision of AFI 31-205, he abused his discretion under R.C.M.
305(k) when he did not award confinement credit for the entire
period of his confinement rather than just the final 188 days.
He also argues that independent of his R.C.M. 305(k) claim, he
is entitled to additional credit for the conditions of his
confinement under Article 13, UCMJ.
6
The military judge’s ruling references August 24, 2004,
although Dr. Leckie did not recommend that Williams be removed
from formal suicide watch until August 26, 2004. The Court of
Criminal Appeals recognized August 26, 2004 as the appropriate
date and that date is also consistent with the military judge’s
calculation of 188 days of confinement credit.
9
United States v. Williams, No. 08-0339/AF
The Government argues initially that Williams waived the
issue of additional sentencing credit under R.C.M. 305(k). They
argue that although Williams included a reference to R.C.M.
305(k) in his written motion at trial, his brief and argument
focused solely on Article 13, UCMJ, violations. In his Motion
for Appropriate Relief for Illegal Pretrial Punishment, Williams
cited R.C.M. 305(k) as a basis for relief as follows:
12. RCM 305(k) states in part “the military judge may
order additional credit for each day of pretrial
confinement that involves an abuse of discretion or
unusually harsh circumstances.” This credit is to be
applied in addition to any other credit the accused
may be entitled as a result of pretrial confinement
served.
With this inclusion, we find that Williams sufficiently asserted
the possibility for relief under R.C.M. 305(k).
In response to the substance of Williams’s R.C.M. 305(k)
argument, the Government asserts that he has failed to show how
the violation of AFI 31-205, para. 8.10, was one that was
“clearly intended to safeguard the accused servicemembers’
rights to treatment consistent with the presumption of
innocence.” Adcock, 65 M.J. at 25. The Government argues that,
in contrast to Adcock, the intent of the regulatory provision at
issue in this case was to evaluate Williams’s health and
sanitary conditions for medical purposes, which had no bearing
on Williams’s status as a pretrial detainee or his presumption
of innocence.
10
United States v. Williams, No. 08-0339/AF
This Court defers to a military judge’s findings of fact
unless they are clearly erroneous. United States v. Mosby, 56
M.J. 309, 310 (C.A.A.F. 2002). The underlying facts are not in
dispute, nor is the conclusion that the requirement of para.
8.10, AFI 31-205, was violated.7 We review de novo the legal
question as to whether the established facts and the violation
of AFI 31-205 entitled Williams to additional confinement
credit. Adcock, 65 M.J. at 21-22.
R.C.M. 305(k)
In Adcock we recognized that R.C.M. 305(k) provides an
independent basis for the award of additional confinement credit
where there has been a violation of service regulations “when
those regulations reflect long-standing concern for the
prevention of pretrial punishment and the protection of
servicemembers’ rights.” Adcock, 65 M.J. at 25. There we were
presented with a situation where a pretrial detainee had been
placed in a civilian facility where the provisions of AFI 31-205
pertaining to the treatment of pretrial detainees were not
followed, a fact known to Air Force confinement officials. Id.
Under those circumstances, we held that “[a]dministrative relief
under R.C.M. 305(k) is appropriate where, as here, confinement
officials have knowingly and deliberately violated provisions of
7
There is also no challenge in this case as to the decision to
initially place Williams in a “suicide watch” status.
11
United States v. Williams, No. 08-0339/AF
service regulations designed to protect the rights of
presumptively innocent servicemembers.” Id. Here we are
presented with a violation of a different provision of AFI 31-
205, which was designed to ensure that the inmates or pretrial
confinees who are placed on “suicide watch” status will have the
appropriateness of that status reviewed at least every twenty-
four hours by a medical officer to determine the appropriateness
of the continued segregation.
We have previously held that confinement in violation of
service regulations does not create a per se right to sentencing
credit under the UCMJ, noting that the rule reflects the long-
standing principle that not all violations of law result in
individually enforceable remedies. Adcock, 65 M.J. at 23
(citations omitted). Our holding today does not deviate from
that principle. Once again, however, we emphasize that “‘[i]t
is well-settled that a government agency must abide by its own
rules and regulations where the underlying purpose of such
regulations is the protection of personal liberties or
interests.’” United States v. Dillard, 8 M.J. 213, 213 (C.M.A.
1980) (quoting United States v. Russo, 1 M.J. 134, 135 (C.M.A.
1975)) (citations omitted).
The military judge awarded confinement credit under Article
13, UCMJ, for the period from August 26, 2004 through the end of
the trial based on a violation of AFI 31-205. Had the military
12
United States v. Williams, No. 08-0339/AF
judge the benefit of Adcock at the time of his ruling, an
alternative basis for confinement credit would have been R.C.M.
305(k).8 While R.C.M. 305(k) could have provided an alternative
basis for relief, the factual basis for credit under either
Article 13, UCMJ, or R.C.M. 305(k) under the facts of this case
was the same conduct on the part of the confinement officials.
We therefore hold that the military judge did not abuse his
discretion in awarding one-for-one confinement credit for the
period August 26, 2004 through the date of trial under Article
13, UCMJ, and note that the award could have been based on
R.C.M. 305(k).
As noted, Williams urges that he is entitled to R.C.M.
305(k) confinement credit for the initial period of his pretrial
confinement through August 25, 2004, since the confinement
officials were in violation of AFI 31-205 for the entire period
of his pretrial confinement. Once confinement officials place a
confinee on “suicide watch,” AFI 31-205, para. 8.10, requires
that status to be reviewed every twenty-four hours by a medical
officer to determine the appropriateness of the continued
segregation.9 This provision can only be designed to protect the
8
In Adcock we held that “under R.C.M. 305(k), a servicemember
may identify abuses of discretion by pretrial confinement
authorities, including violations of applicable service
regulations, and on that basis request additional confinement
credit.” 65 M.J. at 24.
9
See supra note 4.
13
United States v. Williams, No. 08-0339/AF
personal liberties and interests of individuals who have been
placed on “suicide watch” status. The daily review of the
status ensures that individuals placed on “suicide watch” will
be removed from the additional restrictive conditions as soon as
medically appropriate.
R.C.M. 305(k) provides in part:
The military judge may order additional credit for
each day of pretrial confinement that involves an
abuse of discretion or unusually harsh circumstances.
This credit is to be applied in addition to any other
credit the accused may be entitled as a result of
pretrial confinement served.
In this case, the failure of the confinement officials to
abide by the requirements of AFI 31-205 from May 31, 2004 until
August 26, 2004, constituted an abuse of discretion that
adversely impacted Williams’s personal liberty or interests.
Accordingly, Williams is entitled to an additional eighty-six
days (one day per day for the period of confinement from June 1,
2004 through August 25, 2004) confinement credit under R.C.M.
305(k).
Article 13, UCMJ
We now consider Williams’s claim that under Article 13,
UCMJ, he is entitled to additional sentencing credit beyond that
which the military judge ordered while he was on “suicide watch”
status. Williams argues that he was denied books, denied a
radio and CD player, was subjected to twenty-four-hour lighting,
14
United States v. Williams, No. 08-0339/AF
and was required to wear a suicide gown.10 Williams asserts that
this relief is independent from his relief under R.C.M. 305(k).
Initially, we note that all of these conditions were directly
related to Williams’s “suicide watch” status and were considered
by the military judge in his decision on Williams’s motion for
appropriate relief at trial.
Article 13, UCMJ,11 prohibits the imposition of punishment
prior to trial. Alleged violations of Article 13, UCMJ, require
scrutinizing the Government’s “purpose or intent to punish,
determined by examining the intent of detention officials or by
examining the purposes served by the restriction or condition,
and whether such purposes are ‘reasonably related to a
legitimate governmental objective.’” King, 61 M.J. at 227
(citations omitted).
As to the complained of conditions of confinement, the
military judge found that the defense had failed (in their
burden) to show an intent to punish. He subsequently considered
the conditions of Williams’s confinement while on “suicide
watch” and determined that they served a legitimate, nonpunitive
10
It is not disputed that several of these conditions were
relaxed during the course of Williams’s confinement.
11
“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
require to insure his presence . . . .” Article 13, UCMJ.
15
United States v. Williams, No. 08-0339/AF
governmental objective before August 26, 2004. We see no reason
to disturb that conclusion.
Turning to the period from August 26, 2004 through the date
of trial, the military judge has already awarded day-for-day
confinement credit under Article 13, UCMJ, for violation of AFI
31-205 relating to Williams’s “suicide watch” status. As all of
the complained of conditions were related to that status, we
find under the circumstances that the military judge’s award
also adequately remedied any claim of redress under the
provisions of R.C.M. 305(k) by Williams related to that status
for the period from August 26, 2004 until trial.
Conclusion
We hold that the Court of Criminal Appeals correctly found
that the military judge did not err in awarding confinement
credit for the period August 26, 2004 through the date of trial
under Article 13, UCMJ, and note that the award could
alternatively have been based on R.C.M. 305(k). We further hold
that the Court of Criminal Appeals erred in concluding that the
military judge did not abuse his discretion in failing to award
additional sentencing credit for the period June 1, 2004 through
August 25, 2004 under R.C.M 305(k). As the issue of additional
administrative credit does not affect the findings and sentence
as affirmed by the lower court, we need not set aside the
16
United States v. Williams, No. 08-0339/AF
decision, but will afford appropriate relief in our decretal
paragraph.
Decision
The findings and sentence as affirmed by the United States
Air Force Court of Criminal Appeals are affirmed. Appellant
will be credited with an additional eighty-six days of
confinement served.
17
United States v. Williams, No. 08-0339/AF
STUCKY, Judge, with whom RYAN, Judge, joins (concurring in
part and dissenting in part):
Despite protestations to the contrary, the majority has, in
effect, created an automatic right to Rule for Courts-Martial
(R.C.M.) 305(k) credit for even the slightest deviation from
regulatory compliance. I believe this approach is as misguided
now as it was in United States v. Adcock, 65 M.J. 18, 26
(C.A.A.F. 2007) (Stucky, J., dissenting). Therefore, while I
concur with the majority’s judgment that no additional
confinement credit is warranted under Article 13, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 813 (2000), I
respectfully dissent from that portion of the judgment that
awards Appellant additional confinement credit.
As I noted in Adcock:
The phrase “abuse of discretion” as used in
R.C.M. 305(k) must be read in conjunction with R.C.M.
305(j), which is the only other place this phrase
appears in R.C.M. 305. R.C.M. 305(j) requires that,
upon motion of the accused, the military judge must
review for an abuse of discretion the seven-day
reviewing officer’s decision, made pursuant to R.C.M.
305(i)(2), to continue the pretrial confinement of an
accused. It is transparent that the phrase “abuse of
discretion” refers to the military judge’s review of
the seven-day reviewing officer’s consideration of all
prior decisions by military authorities to place and
retain a servicemember in pretrial confinement. See
R.C.M. 305(h)(2); R.C.M. 305(i)(1). R.C.M. 305(k)
thus empowers, but does not require, the military
judge to award additional confinement credit for an
abuse of discretion in a decision to continue an
accused’s confinement.
United States v. Williams, No. 08-0339/AF
The phrase “abuse of discretion” in R.C.M. 305(k)
does not refer to the conditions of an accused’s
confinement. R.C.M. 305(k) neither empowers the
military judge nor is meant to be used by this Court
as a tool to examine and second-guess every decision
made by confinement officials as to the place or
circumstances of an accused’s confinement. Rather, it
is the “unusually harsh circumstances” prong of R.C.M.
305(k) that the President used to describe the
conditions of pretrial confinement that permit the
military judge to award additional confinement under
R.C.M. 305(k).
Id. at 27.
Even if the majority’s interpretation of R.C.M. 305(k) were
correct, its resolution of the issue in this case provides
Appellant an unwarranted eighty-three-day windfall. He has
already received credit due to his being continued on suicide
watch after August 26, 2004, the date Dr. Leckie first suggested
that continued formal suicide watch was no longer necessary,
while at the same time noting that Appellant remained at “mild
to moderate long-term risk for committing suicidal and homicidal
behaviors” which were “impossible to specify” further because of
his uncooperativeness. The issue here is whether Appellant
should be afforded additional credit because he was not
evaluated by medical staff on a daily basis.
This is not a case in which the Air Force abandoned a
prisoner to languish in his cell without medical support.
Appellant conceded that he was “evaluated about every other day
by medical personnel.” Appellant’s voluminous medical records
2
United States v. Williams, No. 08-0339/AF
in the record of trial attest to the medical staff’s attempts to
provide meaningful care to a totally uncooperative prisoner over
the entire period he was on suicide watch. They visited him
every second or third day, asked how he felt, checked his vital
signs, and noted his condition. He saw mental health
practitioners at least seven times in the eighty-six days at
issue.
The majority implies that Dep’t of Air Force, Instr. 31-
205, The Air Force Corrections System para. 8.10 (Apr. 7, 2004),
requires mental health officials to visit Appellant daily and
note specifically and daily in the medical or confinement
records that suicide watch was still appropriate. That is
simply not the case. While the regulation may be read to
require daily visits either by a medical authority or someone
else who then reports his or her findings to the medical
authority for review, it does not require daily evaluations by
mental health practitioners or daily notations that suicide
watch is still appropriate. In any event, the overall level of
medical attention and care surely did not mandate, as the
majority holds, that the military judge award Appellant any
additional confinement credit for the period he spent on suicide
watch up until August 26, 2004.
The majority concludes that para. 8.10 was designed to
“ensure[] that individuals placed on ‘suicide watch’ will be
3
United States v. Williams, No. 08-0339/AF
removed from the additional restrictive conditions as soon as
medically appropriate.” If that is the purpose of para. 8.10,
then even under the majority’s interpretation of R.C.M. 305(k),
Appellant should only be entitled to three additional days of
credit -- the time between the last visit of a medical authority
who made no recommendation that the suicide watch should be
terminated (August 23, 2004), and August 26, 2004, when Dr.
Leckie made such a recommendation.
This case presents an even weaker rationale for judicial
oversight than did Adcock. The majority’s holding encourages
appellants to look for and litigate perceived infractions of
confinement regulations, no matter how de minimis they may be.
With today’s judgment, the concerns I expressed in Adcock have
been realized. This Court has now established “itself as the de
facto supervisor of substantive conditions of confinement
involving members of the armed forces -- a function that we are
exceedingly ill suited to perform.” 65 M.J. at 29 (Stucky, J.,
dissenting).
4