United States v. Robinson

3 M.J. 65, 1977 CMA LEXIS 10121

• Court: United States Court of Military Appeals
• Decided: April 25, 1977
• Docket: No. 31,707; ACM 21870
• Status: Published

Opinions

Opinion of the Court

COOK, Judge:

The appellant was convicted by a general court-martial of numerous offenses, including four specifications alleging a failure to obey a lawful order — Retraining Group Regulation 125-2 (Aug. 19, 1974).¹ The Court of Military Review disapproved the findings of guilty to two of these specifications. We granted review to determine whether the regulation, hereinafter referred to as RG Reg. 125-2,² was lawfully applied to the appellant.

As a result of a previous court-martial conviction which included a sentence to confinement, the appellant was transferred to the confinement facility of the 3320th Retraining Group at Lowry Air Force Base, Colorado. On August 28, 1974, he was transferred from the confinement facility to the 3320th Retraining Squadron. Air Force Manual 125-2 (Nov. 8, 1971), sets forth the following as to the purpose of the ■3320th Retraining Group:

8 — 1. Mission. The mission of the 3320th Retraining Group is threefold:

a. Restoration or Return. The Retraining Group provides Air Force prisoners convicted by special or general courts-martial with specialized treatment and training to prepare them for return to Air Force duty improved in attitude, conduct, efficiency, and skill.

Paragraph 8-5 of AFM 125-2 required the Retraining Group commander to “establish a system for controlling retrainee movements at all times.”³ Pursuant to the requirement, the commander promulgated RG Reg. 125-2. Paragraph 3a of this regulation provided:

Based upon the military duty assignment to retraining, each retrainee is hereby restricted administratively to the area of his assigned team. When specifically authorized to do so by a member of the Retraining Group staff, a retrainee may depart this area for military duty, sick call, worship, meals, etc. He may depart this area during scheduled time off to take advantage of awarded privileges without specific approval of each absence.

Paragraph 5 and attachment 3 to the regulation, attached as an appendix to this opinion, set forth five “Retrainee Privilege Levels.” These levels specified limitations on the movements of the retrainees, with level I being the most restrictive and level V the least. Various areas on base were listed as either authorized or unauthorized, depending on the privilege level the retrainee had attained. A retrainee in level V was allowed to leave the base; the right was also extended to a retrainee in level IV, to a lesser extent. A retrainee would be advanced from a lower to a higher privilege level or regressed from a higher to a lower level for a variety of reasons.

At the time of the events in issue, appellant was in level I. Charge III, specification 2, alleged that he violated RG Reg. 125-2 on January 7,1975, by being off base, and specification 3 of Charge III alleged he violated the regulation on January 9 by failing to sign out of his team area as required by paragraph 3a(l). In special findings, the military judge noted that the appellant had completed service of his previous court-martial sentence on September 3, 1974. On the basis of this finding, the appellant submits, as he did at trial, that the restrictive provisions of RG Reg. 125-2 constituted an unlawful extension of his court-martial sentence with the result that, as applied to him in January 1975, the regulation was illegal. Contrarily, the Government argues the appellant was merely subjected to a retraining program and any restriction pursuant thereto was administrative, not punitive.

In United States v. Haynes, 15 U.S.C.M.A. 122, 125, 35 C.M.R. 94, 97 (1964), the Court observed:

It is a well-settled rule of military law that adjudged punishments may not be increased by the additional imposition of restriction.

An order implementing an illegal restriction is invalid. United States v. Gentle, 16 U.S.C.M.A. 437, 37 C.M.R. 57 (1966); see generally United States v. Smith, 21 U.S.C. M.A. 231, 45 C.M.R. 5 (1972). However, restriction imposed in the interest of training is a legitimate exercise of a command function. See United States v. Haynes, supra ; paragraph 174b, Manual for Courts-Martial, United States, 1969 (Rev.). Thus, scrutiny of the circumstances is essential to a determination of the nature of appellant’s restriction.

As previously noted, the Retraining Group is charged with the responsibility of “specialized treatment and training” of prisoners, and appellant’s transfer to that unit was in execution of a court-martial sentence. The evidence reflects that “re-trainees” whose terms of confinement had expired were commingled with prisoners whose terms of confinement had not terminated. While some additional requirements were imposed on prisoners in confinement status,⁴ both classes of retrainees were subjected to the various types of restriction and limitations set forth in RG Reg. 125-2 and attachment 3 thereto. Accordingly, although the AFM 125-2 and RG Reg. 125-2 were concerned with “retraining,” that program was an integral part of the penal institution’s regimen.

One additional matter warrants discussion. The defense and Government disagree as to whether appellant voluntarily entered the 3320th Retraining Group and thereby consented to participate in the retraining program for as long as the authorities deemed it necessary for his rehabilitation. The record reflects that the appellant testified he did not consent to his transfer to the retraining group although he desired a more favorable discharge. This evidence stands unrebutted by the Government. Thus, the record fails to support the Government’s argument that, by expressing a desire for a more favorable discharge, the appellant implicitly consented to enter the retraining program.⁵ The waiver of the appellant’s right to be released from the institution in question after serving his term of confinement cannot be assumed, but must be proved by the Government. See generally United States v. Mayton, 23 U.S.C.M.A. 565, 50 C.M.R. 784, 1 M.J. 171 (1975).

We, therefore, conclude that retention of appellant within the 3320th Retraining Group beyond the adjudged term of his confinement was an unlawful extension of the sentence adjudged by his court-martial. See McNeil v. Director, Patuxent Institution, 407 U.S. 245, 93 S.Ct. 2083, 32 L.Ed.2d 719 (1972).

The decision of the United States Air Force Court of Military Review is reversed as to the findings of specifications 2 and 3 of Charge III and the sentence. Charge III and the specifications thereunder are dismissed. The record of trial is returned to the Judge Advocate General of the Air Force for resubmission to the Air Force Court of Military Review for reassessment of the sentence on the basis of the remaining findings of guilty.

PERRY, J., concurs.

1 . The military judge ruled that for sentencing purposes the four offenses would be considered as breaches of restriction. See Manual for Courts-Martial, United States, 1969 (Rev.), paragraph 127c, Table of Maximum Punishments, n. 5.

2 . The regulation has been replaced by one effective March 1, 1976.

3 . Subsequent to the events in issue, the Air Force Manual was superseded by Air Force Regulation 125-18 (Jan. 16, 1975).

4 . Some additional requirements are set forth in Retraining Group Reg. 125-2, attachment 4, but these requirements are concerned with off-base passes, alcoholic beverages, and a requirement that prisoners be present for a “head count.”

5 . We note that AFR 125-18 now provides that a prisoner must volunteer for retraining before he can be transferred to the Retraining Squadron of the 3320th Retraining Group.