United States v. Chapa

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 MJ 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.

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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 MJ 274 (CMA 1985) (summary disposition); or United

States v. Gregory, 21 MJ 952, 955-56 (ACMR) (holding that RCM 305

applies to restriction tantamount to confinement), aff’d, 23 MJ

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

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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 MJ 292, 295
(CMA 1993)(citing County of Riverside v. McLaughlin, 500 U.S. 44
(1991).

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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 MJ 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 MJ 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.

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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

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rights.” See United States v. Powell, 49 MJ 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.

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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 MJ 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 MJ 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 MJ 91 (CMA 1994). In McCants, this Court

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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

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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 MJ 246 (CMA
1986)(summary disposition).

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United States v. Chapa, No. 01-0011/AR

military judge responded correctly by awarding appellant

day-for-day Mason credit.

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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 MJ

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 MJ 114 (2000); United States

v. Huffman, 40 MJ 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 MJ 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 MJ 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 MJ
335, 339-340 (CMA 1994)(holding that effect of summary disposition on
other cases has not yet been decided).

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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 MJ 113, 127 (2001)(Sullivan, J.,
concurring in part and dissenting in part).

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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

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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 Texas 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

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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

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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.

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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 MJ
460, 466 (1998)(Sullivan, J., concurring in the result); see generally
United States v. Olano, 507 U.S. 725 (1993).

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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 MJ 274 (CMA 1985)(summary

disposition). United States v. Gregory, 21 MJ 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.

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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 MJ 246 (CMA

1986)(summary disposition); cf. United States v. Diaz, 40

MJ 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

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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