                                    IN THE CASE OF



                            UNITED STATES, Appellee

                                            v.

                  Adrian D. FULTON, Airman First Class
                        U.S. Air Force, Appellant

                                     No. 00-0412
                              Crim. App. No. 33568

             United States Court of Appeals for the Armed Forces

                              Argued November 14, 2000

                                Decided June 11, 2001

     EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and SULLIVAN, GIERKE, and BAKER, JJ., joined.
CRAWFORD, C.J., filed a concurring opinion.



                                        Counsel

For Appellant: Major Maria A. Fried (argued); Lieutenant Colonel Timothy W.
Murphy (on brief); Colonel Jeanne M. Rueth, Major Jeffrey B. Miller, and
Major Thomas R. Uiselt.


For Appellee: Major Jennifer R. Rider (argued); Colonel Anthony P. Dattilo
and Lieutenant Colonel Ronald A. Rodgers (on brief); Lieutenant Colonel
William B. Smith and Major Lance B. Sigmon.



Military Judge:   Gregory E. Pavlik




            THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Fulton, No.   00-0412/AF


   Judge EFFRON delivered the opinion of the Court.


   A general court-martial composed of a military judge sitting

alone convicted appellant, pursuant to his pleas, of assault

with a dangerous weapon and willfully discharging a firearm, in

violation of Articles 128 and 134, Uniform Code of Military

Justice, 10 USC §§ 928 and 934.   He was sentenced to a bad-

conduct discharge, confinement for 20 months, forfeiture of all

pay and allowances, and reduction to E-1.   Pursuant to the

military judge’s order, the convening authority awarded 440 days

of credit towards confinement at the time of the action.   The

convening authority otherwise approved the sentence as adjudged,

and the Court of Criminal Appeals affirmed.   52 MJ 767 (2000).

     On appellant’s petition, we granted review of the following

issue:

          WHETHER THE AIR FORCE COURT OF CRIMINAL
          APPEALS ERRED WHEN IT FAILED TO REMAND
          APPELLANT'S CASE FOR FURTHER REVIEW AFTER IT
          FOUND THAT THE MILITARY JUDGE DID HAVE
          AUTHORITY TO DISMISS CHARGES AS A REMEDY FOR
          PRETRIAL PUNISHMENT.


For the reasons stated below, we affirm the decision of the

Court of Criminal Appeals.




                                  2
United States v. Fulton, No.        00-0412/AF




                              I.    Background

      At trial, appellant filed a motion to dismiss the charges

under RCM 907, Manual for Courts-Martial, United States (2000

ed.), alleging illegal pretrial punishment in violation of

Article 13, UCMJ, 10 USC § 813.        The military judge made

detailed findings of fact substantially incorporating these

allegations of maltreatment.1       After concluding that he did not

have the authority to dismiss the charges as a remedy for

illegal pretrial punishment, the military judge denied the

motion to dismiss.

      Subsequently, the military judge accepted appellant’s pleas

and entered findings of guilty.        He then determined that

appellant should receive 440 days of credit as a result of his

pretrial confinement.      Of that amount, he awarded: (1) a credit

of 125 days for time spent in confinement, pursuant to United

States v. Allen, 17 MJ 126 (CMA 1984), and (2) a credit of 315


1
  The pretrial punishment confirmed by the military judge’s findings included
the following conditions: appellant was continually required to refer to
himself as “prisoner bitch” or “prisoner jackass”; during a prolonged strip
search, appellant was questioned about his sexual orientation and was forced
to refer to himself as homosexual in graphic and pejorative terms; appellant
was forced to perform a naked “strip tease” dance in the presence of guards
and other confinees; appellant was threatened with rape, sodomy, and assault;
appellant was forced by a guard to provide the phone number of his fiancee;
the guard then told appellant that he intended to have sexual intercourse
with appellant’s pregnant fiancee and to tell her that appellant had “turned
queer” in confinement; and appellant was forced to watch and participate in
the abuse of other confinees, including being ordered to threaten another
confinee with rape.



                                      3
United States v. Fulton, No.    00-0412/AF


days based upon his conclusion that appellant was subjected to

illegal pretrial punishment in violation of Article 13 for a

period of 105 days, warranting a three-for-one credit.    He

further noted that he would consider the fact of appellant’s

maltreatment as a relevant factor in making his sentencing

determination.



                          II.   Discussion

                A. Availability of Dismissal as a
             Remedy for Illegal Pretrial Punishment


     RCM 907(a) requires that a motion to dismiss be predicated

on “grounds capable of resolution without trial of the general

issue of guilt.”   Although illegal pretrial punishment is not

listed under RCM 907(b) (“Grounds for dismissal include the

following…”), that list is illustrative, not exclusive.

Drafters' Analysis of RCM 907(b), Manual, supra at A21-54;     see

also 10 USC § 101(e)(4) (“includes” means “includes but is not

limited to”); accord RCM 103(20).

     The court below concluded that “where no other remedy is

appropriate, a military judge may, in the interest of justice,

dismiss charges because of unlawful pretrial punishment.”      52 MJ

at 769 (citing United States v. Nelson, 18 USCMA 177, 181, 39

CMR 177, 181 (1969), and United States v. Suzuki, 14 MJ 491 (CMA




                                  4
United States v. Fulton, No.    00-0412/AF


1983)).   We agree.   We also agree with the observations of the

court below that

           it does not necessarily follow that
           dismissal is the appropriate remedy.
           Dismissal is not necessarily appropriate
           even where an appellant has been denied a
           significant constitutional right. Even in
           cases of severe infringement on the right to
           counsel, the Supreme Court has “implicitly
           recognized the necessity for preserving
           society’s interest in the administration of
           criminal justice [and] that remedies should
           be tailored to the injury suffered from the
           constitutional violation and should not
           unnecessarily infringe on competing
           interests.”

Id. (quoting United States v. Morrison, 449 U.S. 361, 364
(1981)).


                   B. Impact of Failure to Consider
                     the Possibility of Dismissal

     Because the military judge incorrectly analyzed the scope

of his powers, we must consider whether his interpretation had a

prejudicial impact on his consideration of a remedy for the

illegal pretrial punishment imposed on appellant.     See Art.

59(a), UCMJ, 10 USC § 859(a).    Such an error would be

prejudicial if we were to conclude: (1) that dismissal was the

only appropriate remedy as a matter of law, or (2) that there

was a reasonable likelihood the military judge would have

considered dismissal as a remedy had he been aware that he had

the discretion to dismiss charges.




                                  5
United States v. Fulton, No.    00-0412/AF


     With respect to whether dismissal of charges was required,

we note that the military judge in the present case fashioned a

significant remedy for the illegal pretrial punishment suffered

by appellant, granting three days of credit for every day of

confinement.   Appellant has cited no cases in either civilian or

military life where the type of illegal punishment imposed in

this case required dismissal of charges.      Dismissal of charges

is an extraordinary remedy.    We do not condone the illegal

punishment imposed upon appellant, but we agree with the court

below that, in the context of competing interests, dismissal was

not required as a matter of law.       See United States v. Morrison,

supra; cf. United States v. Villamil-Perez, 32 MJ 341, 343-44

(CMA 1991).    We conclude that the erroneous interpretation of

the law by the military judge did not cause him to deny

appellant a remedy required by law.

     With respect to the impact of the erroneous interpretation

on the exercise of discretion by the military judge, we note

that the military judge had a number of options under his narrow

interpretation of the law that he could have used to impose a

greater remedy had he concluded that a three-for-one credit was

inadequate.    Such options included, for example, a sentence to

no confinement or a sentence to confinement equivalent to the

amount of time to be credited.    The fact that the military judge

chose not to impose a remedy greater than the three-for-one


                                   6
United States v. Fulton, No.        00-0412/AF


confinement makes it clear that he did not consider the three-

for one remedy inadequate and would not have chosen the most

drastic remedy -- dismissal -- even had he been aware that it

was an available option.       Accordingly, we conclude that

appellant was not prejudiced by the military judge's erroneous

interpretation of the law.2



                        III. Conclusion

      The decision of the United States Air Force Court

of Criminal Appeals is affirmed.




2
  Chief Judge Crawford, in her separate opinion, urges that we adopt guidance
governing the relationship between the doctrine of exhaustion of
administrative remedies and the judicial remedy of dismissal. In the present
case, we need not decide whether appellant exhausted his administrative
remedies. We have emphasized that the judicial remedy of dismissal is
appropriate only in extraordinary circumstances. There are numerous
variables that might affect the availability of administrative remedies in
other cases, and we can only speculate as to the variety of conditions that
might constitute extraordinary circumstances in such cases. In that light,
we decline to use the present case as a vehicle for adopting comprehensive
guidance on this matter.




                                      7
United States v. Fulton, No. 00-0412/AF


CRAWFORD, Chief Judge (concurring):

     I join the majority in condemning the pretrial punishment

administered to appellant and agreeing with the court below that

extraordinary circumstances may require the imposition of

extraordinary remedies, to include the dismissal of charges

where no other reasonably appropriate remedy is available.

However, where established remedies are available to vindicate a

servicemember’s rights, those remedies must be tried and

exhausted before resorting to dismissal of the charges.    See

United States v. Williams, 504 U.S. 36, 46 (1992)(a court’s

supervisory power should not be used to prescribe nor enforce

standards when other remedies are available); see also United

States v. Miller, 46 MJ 248 (1997); United States v. Coffey, 38

MJ 290 (CMA 1993).

     Reliance on dicta in United States v. Nelson, 18 USCMA 177,

181, 39 CMR 177, 181 (1969), that implies dismissal of the

charges and specifications is an appropriate measure, without

more, is misleading in light of more recent Supreme Court

precedent, as well as the law of this Court.    See Williams,

supra; Bank of Nova Scotia v. United States, 487 U.S. 250

(1988); Miller, supra; Coffey, supra.     A court should not use

its supervisory authority to impose extraordinary remedies to

vindicate wrongs unless the person allegedly wronged has sought,
United States v. Fulton, No. 00-0412/AF


and failed to obtain, reasonable, remedial relief through, e.g.,

command channels, either directly or under Article 138, UCMJ,

10 USC § 938; the Inspector General’s Office; or the Chaplaincy.

If the command and staff offices have turned a blind eye toward

an egregious situation, dismissal of court-martial changes would

be warranted as an extraordinary measure.      However, we need not

determine whether this appellant exhausted his administrative

remedies to complain about and halt the abusive treatment to

which he was subjected in pretrial confinement because of the

trial judge’s curative measures.       See, e.g., United States v.

Baldwin, 54 MJ 308, 311 n.4 (2001).




                                   2
