United States v. Buchecker

13 M.J. 709, 1982 CMR LEXIS 1009

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: April 23, 1982
• Docket: NMCM 81 2301
• Status: Published

Opinions

GLADIS, Senior Judge:

The accused was convicted at a general court-martial bench trial of a 5-day unauthorized absence, larceny of an M-16 rifle and larceny of a motor vehicle, in violation of Articles 86 and 121, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886 and 921. He was sentenced to a bad-conduct discharge, confinement at hard labor for 18 months, and total forfeitures. The convening authority reduced the confinement to 12 months, and otherwise approved the sentence.

The accused contends that the charges should be dismissed because he was denied a speedy trial since the conditions of his pretrial restraint in the Recruit Casual Section to which he was assigned while awaiting trial were tantamount to pretrial confinement and exceeded 90 days. See United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971) (a presumption exists that an accused has been denied a speedy trial when pretrial confinement exceeds 3 months). Compare United States v. Schilf, 1 M.J. 251 (C.M.A.1976) (severe restriction is tantamount to confinement for purposes of triggering the Burton presumption) with United States v. Powell, 2 M.J. 6 (C.M.A.1976) (withdrawal of pass privileges pending investigation of charges was restriction for speedy trial purposes, where other members of the accused’s unit were automatically accorded such privileges though undeserving, but not such onerous restriction as to be equivalent to confinement.) We reject his contention because the restrictions to which the accused, a recruit, was subjected were generally no more onerous than those imposed on all the other recruits in the training cycle who were assigned to the training regiment of which the Recruit Casual Section was a part.

The accused committed the offenses of which he was convicted while he was a recruit assigned to a recruit training battalion in the recruit training regiment at the Marine Corps Recruit Depot, Parris Island. He subsequently terminated his brief unauthorized absence by surrender to a recruiter in Pennsylvania, was returned to Parris Island, and placed in pretrial confinement. When a magistrate ordered the accused’s release from confinement, he was assigned to Recruit Casual Section, a temporary holding facility for recruits unable to continue in the regular training cycle. The Casual Section was part of the recruit training regiment headquarters. Those assigned to it remained members of their recruit training battalion. The vast majority did not return to the regular training cycle, but were discharged. Recruits assigned to Casual Section included homosexuals, recruits suspected of fraudulent enlistment, recruits with behavioral, medical, or disciplinary problems who could not continue in the regular training cycle, and others awaiting discharge. Although these recruits did not participate in the regular recruit training cycle while in Casual Section, they were generally subjected to the same restrictions as the recruits in the regular cycle. Some of these restrictions were more severe than those imposed on individuals confined in the Depot brig.

The accused admits that had he continued in the regular training cycle while awaiting trial, the restraints imposed upon him would not be tantamount to confinement for Burton purposes. But he argues that the restraints equated to pretrial confinement in this case because they did not have a legitimate training function and, hence, were unnecessary since he was no longer in the recruit training cycle.¹

Administrative restriction may be imposed in the interests of training or discipline. United States v. Robinson, 3 M.J. 65, 67 (C.M.A.1977). See United States v. Haynes, 15 U.S.C.M.A. 122, 35 C.M.R. 94 (1964). The ordinary service member may be required to perform labor as arduous as that demanded of the sentenced prisoner as long as he is not compelled to perform it in the company of or under the same conditions as the prisoner. United States v. Bayhand, 6 U.S.C.M.A. 762, 771, 21 C.M.R. 84, 93 (1956). He may be subjected to reasonable controls and restraints as long as they are not punitive. See United States v. Southers, 12 M.J. 924 (N.M.C.M.R.1982). The reasons for the controls and whether they are imposed upon those who are not in a disciplinary status are relevant in ascertaining whether they amount to pretrial restraint for speedy trial purposes. See United States v. Powell, supra.

Applying these principles we reject the accused’s claim that the conditions to which he, a recruit, was subjected were tantamount to pretrial confinement, because, although they were generally the same as those imposed upon ordinary recruits in the regular training cycle, he was not in the regular training cycle and could not be reasonably expected to return to it. He was still subject to military discipline and in the interests of that discipline could, as a recruit at a recruit depot, be subjected to restraints similar to those imposed on all recruits. Cf. United States v. Haynes, supra. These restraints were not devised as punitive measures, but as legitimate measures in the interests of discipline in a recruit environment.² Although other measures could have been used in the furtheranee of these objectives in this environment, we refuse to characterize the measures used as pretrial restraint for speedy trial purposes. The accused was not automatically entitled to the privileges earned by graduation from recruit training. Therefore, we conclude that the restraints to which he was subjected in Recruit Casual Section were not tantamount to pretrial confinement. Hence, the Burton presumption of denial of speedy trial is inapplicable and the test for determining whether the accused has been denied a speedy trial is whether the Government has proceeded with reasonable diligence and without deliberate oppression of the accused or a lack of concern for the requirement of expeditious prosecution. United States v. Hagler, 7 M.J. 944, 947 (N.C.M.R.1979). Using this standard we find that the accused has not been denied a speedy trial.

Accordingly, the findings of guilty and only so much of the sentence as provides for a bad-conduct discharge, confinement at hard labor for 12 months, forfeiture of all pay and allowances for 9 months, and $367.00 per month for 12 months are affirmed.³

1 . At the outset we reject the accused’s contention that he was assigned to Recruit Casual Section in order to circumvent the decision of the magistrate who ordered his release from pretrial confinement. He was treated no differently from any other recruit who could not continue in the regular training cycle because of disciplinary or other problems. We attach no significance to the fact that in an exceptional case a deserter who had been dropped from the rolls of the Recruit Training Battalion was not assigned to Recruit Casual Section when he was returned after a 10-year absence.

2 . We define discipline here in the sense of control gained by enforcing obedience to orders, not as punishment. See Webster’s Third New International Dictionary (1971).

3 . We modify the forfeitures to conform to the policy that an accused shall not be deprived of more than two-thirds of his pay after he has been released from confinement. See Manual for Courts-Martial, 1969 (Rev.), paragraph 88b. The forfeitures here applied only to pay and allowances becoming due on and after the date of the convening authority’s action nearly 3 months after the sentence was adjudged and confinement commenced to run. Article 57, Uniform Code of Military Justice, 10 U.S.C. § 857.