                       UNITED STATES, Appellee

                                    v.

                  Heidi F. ADCOCK, First Lieutenant
                      U.S. Air Force, Appellant

                              No. 06-0714

                         Crim. App. No. 36018

       United States Court of Appeals for the Armed Forces

                        Argued January 9, 2007

                          Decided May 3, 2007

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, J., joined. STUCKY, J., filed a
dissent in which RYAN, J., joined.

                                 Counsel

For Appellant: Captain Anthony D. Ortiz (argued); Lieutenant
Colonel Mark R. Strickland (on brief).

For Appellee: Colonel Gerald R. Bruce (argued); Lieutenant
Colonel Robert V. Combs and Captain Jamie L. Mendelson (on
brief).

Military Judge:   R. Scott Howard


       This opinion is subject to revision before final publication.
United States v. Adcock, No. 06-0714/AF

     Judge ERDMANN delivered the opinion of the court.

     First Lieutenant Heidi F. Adcock was charged with wrongful

use of cocaine and methamphetamine, larceny, and failure to obey

a restriction order in violation of Articles 112a, 121, and 92,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a, 921,

892 (2000).   Pursuant to a pretrial agreement, Adcock entered

guilty pleas to each of the charges which were accepted by a

military judge sitting as a general court-martial.   The military

judge sentenced Adcock to dismissal and confinement for fifteen

months.   The sentence was approved by the convening authority.

The United States Air Force Court of Criminal Appeals affirmed

the findings and sentence in a 5-4 en banc decision.   United

States v. Adcock, 63 M.J. 514 (A.F. Ct. Crim. App. 2006).

     An essential expression of the Constitution’s due process

guarantee is the protection of accused servicemembers from

punishment prior to conviction and sentencing.   United States v.

McCarthy, 47 M.J. 162, 164-65 (C.A.A.F. 1997); Bell v. Wolfish,

441 U.S. 520, 535 (1979).    In addition to this constitutional

protection, Article 13, UCMJ, 10 U.S.C. § 813 (2000), prohibits

punishment prior to trial.   The President has further addressed

pretrial punishment in Rule for Courts-Martial (R.C.M.) 304(f)

where he has directed that “[p]risoners being held for trial

shall not be required to . . . wear special uniforms prescribed

only for post-trial prisoners,” and that “[p]risoners shall be



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United States v. Adcock, No. 06-0714/AF

afforded facilities and treatment under regulations of the

Secretary concerned.”    Under this authority, the Secretary of

the Air Force has promulgated regulations concerning the

treatment of pretrial confinees.

       We granted review in this case to determine whether there

is a remedy for the conditions of Adcock’s pretrial confinement

in a civilian jail, which violated several provisions of Dep’t

of the Air Force, Instr. 31-205, The Air Force Corrections

System (Apr. 7, 2004) [hereinafter AFI 31-205].1   We find that

the military judge abused his discretion in failing to award

additional confinement credit under R.C.M. 305(k) and therefore

direct additional confinement credit.

                             BACKGROUND

       The conduct underlying the charges in this case occurred

while Adcock was stationed at Travis Air Force Base (AFB),

California.    A Pretrial Restraint Order was issued on January 3,

2004, which restricted Adcock to the confines of Travis AFB.      On

January 19, 2004 she was ordered into pretrial confinement after

violating the restriction order by leaving the base.


1
    We granted review of the following issue:

       WHETHER, HAVING FOUND THAT THE TERMS OF APPELLANT’S
       PRETRIAL CONFINEMENT VIOLATED AIR FORCE INSTRUCTION
       (AFI) 31-205, AND [sic] THE AIR FORCE CORRECTIONS
       SYSTEM PARAS. 5.8.1.2 AND 7.1.1 (7 APRIL 2004), THE
       MILITARY JUDGE ERRED IN NOT DETERMINING THAT THE
       VIOLATION “INVOLVE[D] AN ABUSE OF DISCRETION”
       PERMITTING CREDIT UNDER R.C.M. 305(k).

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United States v. Adcock, No. 06-0714/AF

     The Air Force does not maintain a pretrial confinement

facility at Travis AFB.   Thus, military personnel who are

ordered into pretrial confinement are housed in civilian

facilities operated by Solano County pursuant to a Memorandum of

Agreement between the Travis AFB Security Forces Commander and

the Solano County Sheriff’s office.   The Memorandum does not

reference any military regulations governing treatment of

pretrial confinees.

     Adcock was initially placed in pretrial confinement in the

Solano County Jail in Fairfield, California.   She was housed in

a cell which she shared with a series of female cellmates, many

who had been convicted of offenses such as larceny, burglary and

aggravated assault.   On April 17, 2004, Adcock was transferred

to the Claybank Detention Facility, a division of the Solano

County Jail also in Fairfield, California.   There she was housed

in an open bay room where she shared sleeping, living and toilet

facilities with nineteen other inmates, including convicted

inmates.   At both facilities, Adcock wore a jumpsuit identical

to those of other inmates.   The color of the jumpsuit worn by

the inmates depended on the security classification of the

individual inmate, not the inmate’s pretrial or post-trial

status.    As of the date of her court-martial, Adcock had served

157 days of pretrial confinement in the two Solano County

facilities.



                                  4
United States v. Adcock, No. 06-0714/AF

       The Solano County Jail’s chief corrections officer, a

retired Air Force security policeman who specialized in law

enforcement and confinement, stated that the conditions in the

jails did not conform to Air Force standards and that Solano

County would not bring the facilities into conformance with

those standards.    The corrections officer in charge of the

Claybank facility stated that her jail routinely had pretrial

confinees rooming with convicted inmates and did not distinguish

the uniforms of pretrial confinees and convicted inmates.

       At Adcock’s trial the military judge accepted her guilty

pleas following a Care inquiry.2       Her 157 days of pretrial

confinement were credited against her fifteen month sentence.

Adcock moved for an additional 157 days of sentence credit based

on the Government’s violation of the uniform and commingling

provisions of AFI 31-205 during her pretrial confinement.

Although the military judge found that the conditions of

Adcock’s pretrial confinement violated AFI 31-205, he denied the

motion for additional confinement credit on the grounds that Air

Force officials acted in furtherance of a legitimate

governmental objective and demonstrated no intent to punish or

stigmatize the accused, utilizing the established legal analysis

for violations of Article 13, UCMJ.




2
    United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969).

                                   5
United States v. Adcock, No. 06-0714/AF

        The Court of Criminal Appeals, which originally identified

this issue and had requested briefs, heard the case en banc.

Adcock, 63 M.J. at 516.     A five-judge majority held that “AFI

31-205 on its face fails to evince any Secretarial intent to

create an entitlement to pretrial confinement credit for a

violation of its provisions.”    Id. at 520.    The lower court

reasoned that the provisions of AFI 31-205 relevant in this case

did not amount to “an unambiguous grant of a substantive right,”

and thus the denial of confinement credit could be upheld.        Id.

The lower court also found no presidential intent to create an

enforceable right to confinement credit in either R.C.M. 304(f)

or R.C.M. 305(k).    Id. at 520-21.    It determined that the

relevant portions of both rules merely recognized preexisting

protections described in Article 13, UCMJ, or created by this

court in United States v. Suzuki, 14 M.J. 491, 492 (C.M.A.

1983).    63 M.J. at 520-21.   The lower court held that neither

rule provided any basis for credit without a showing of improper

government purpose or intent to punish as required for an

Article 13, UCMJ, violation.    Id. at 521.    The four-judge

dissent concluded that violation of AFI 31-205 provided a proper

basis for relief and that Adcock would also be entitled to

relief under either R.C.M. 304(f), R.C.M. 305(k), or Article 13,

UCMJ.    Id. at 528-30 (Mathews, J., concurring in part and

dissenting in part).



                                   6
United States v. Adcock, No. 06-0714/AF

                            DISCUSSION

     Adcock argues that she is entitled to pretrial confinement

credit based upon the clear and knowing violations of AFI 31-

205, para. 5.8.1.2. and para. 7.1.1. by Air Force officials.

She maintains that because these provisions were created

expressly for the protection of accused servicemembers’ rights,

they create enforceable rights to additional sentencing relief

on their own terms.   Additionally, Adcock contends that the

violations of AFI 31-205 independently constitute a violation of

Article 13, UCMJ, and R.C.M. 304(f), both of which prohibit

pretrial punishment and provide a separate basis for sentencing

relief.   Finally, Adcock urges this court to decide that the

military judge erred when he found no abuse of discretion on the

part of Air Force officials under R.C.M. 305(k).

     The Government responds that the military judge properly

denied Adcock relief under Article 13, UCMJ, because Air Force

officials did not intend the impermissible pretrial confinement

conditions as punishment.   It argues that AFI 31-205, R.C.M.

304(f), and R.C.M. 305(k) do not provide an enforceable right to

sentence relief independent of Article 13, UCMJ.   Finally, the

Government claims that the “purpose or intent to punish” element

of an Article 13, UCMJ, inquiry applies equally to a military

judge’s review of pretrial confinement conditions under AFI 31-

205, R.C.M. 304(f), and R.C.M. 305(k).



                                 7
United States v. Adcock, No. 06-0714/AF

     This court defers to a military judge’s findings of fact

unless they are clearly erroneous.   United States v. King, 61

M.J. 225, 227 (C.A.A.F. 2005).   In this case, the underlying

facts are not in dispute, nor is the conclusion that the

conditions of Adcock’s pretrial confinement violated AFI 31-205.3

We review de novo the legal question of whether the established

facts and the violation of AFI 31-205 entitle Adcock to

additional sentencing credit.

     As the court below noted, Congress has prohibited pretrial

punishment in the military justice system in Article 13, UCMJ:

     Punishment prohibited before trial[.] 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 required to insure his
     presence, but he may be subjected to minor punishment
     during that period for infractions of discipline.

When a violation of Article 13, UCMJ, is alleged, we scrutinize

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


3
  The military judge and the Court of Criminal Appeals found that
the conditions of Adcock’s pretrial confinement violated AFI 31-
205. Adcock, 63 M.J. at 516-17. Before this court, Adcock did
not attack this finding and the Government did not certify any
issue concerning the correctness of the finding. Thus, we
conclude that the finding that Adcock’s pretrial confinement
violated AFI 31-205 is the law of the case. See United States
v. Lewis, 63 M.J. 405, 412 (C.A.A.F. 2006) (citing United States
v. Parker, 62 M.J. 459, 464 (C.A.A.F. 2006)).



                                 8
United States v. Adcock, No. 06-0714/AF

such purposes are ‘reasonably related to a legitimate

governmental objective.’”   King, 61 M.J. at 227 (quoting Bell,

441 U.S. at 539; and citing McCarthy, 47 M.J. at 165).

     R.C.M. 304(f) provides:

     Punishment prohibited. Pretrial restraint is not
     punishment and shall not be used as such. No person
     who is restrained pending trial may be subjected to
     punishment or penalty for the offense which is the
     basis for that restraint. Prisoners being held for
     trial shall not be required to undergo punitive duty
     hours or training, perform punitive labor, or wear
     special uniforms prescribed only for post - trial
     prisoners. This rule does not prohibit minor
     punishment during pretrial confinement for infractions
     of the rules of the place of confinement. Prisoners
     shall be afforded facilities and treatment under
     regulations of the Secretary concerned.

     We agree with the majority below when it found that R.C.M.

304(f) was “based on Article 13.”    Adcock, 63 M.J. at 520-21

(citing Manual for Courts-Martial, United States, Analysis of

the Rules for Courts-Martial app. 21 at A21-16 (2005 ed.)).

However, the President went well beyond the plain language of

Article 13, UCMJ, by specifying certain conduct that is

expressly prohibited and also by delegating to the service

secretaries the authority to enact rules concerning pretrial

facilities and the treatment of pretrial confinees.   While the

Court of Criminal Appeals found that the delegation language

merely reflected a grant of “broad discretion” to confinement

officials, we find no such grant in the language of the Rule.

Id. at 521.   To the contrary, the plain language of R.C.M.



                                 9
United States v. Adcock, No. 06-0714/AF

304(f) clearly vests the service secretaries with the discretion

to enact the rules but makes no reference to confinement

officials.    The secretaries, in turn, can make the regulations

mandatory or advisory in nature.

     Pursuant to the R.C.M. 304(f) delegation of authority, the

Secretary of the Air Force promulgated an Air Force Instruction

that addresses pretrial confinement facilities and the treatment

of pretrial confinees in the Air Force.   AFI 31-205, in relevant

part, provides:

     para. 1.2.2.2.2. When seeking a correctional facility
     outside the DoD, the standards of confinement and
     treatment of inmates must meet or exceed what would be
     provided in a DoD facility.

             . . . .

     para. 5.8.1.2. All pre-trial detainees will be housed
     in separate cells or sleeping areas, separated by
     sight, from post-trial inmates.

             . . . .

     para. 7.1.1. Pre-trial detainees. Military members
     in pre-trial status are not convicted of a crime and
     will continue to wear the BDU uniform with authorized
     rank insignia, badges, patches, devices, etc. . . .
     Pre-trial detainees will not be placed in the same
     color distinctive uniform worn by adjudged and
     sentenced inmates [in accordance with R.C.M.] 304(f).

     As noted, it is not contested that the confinement

authorities at Travis AFB violated these provisions of AFI 31-

205 when Adcock was commingled with, and required to wear the

same uniform as, convicted inmates.   The issue before this court

is whether there is a remedy for these violations.


                                 10
United States v. Adcock, No. 06-0714/AF

     Although R.C.M. 304(f) does not grant confinement officials

the discretion to disregard service regulations pertaining to

pretrial confinees, it does not necessarily follow that pretrial

confinees held in conditions that violate these regulations may

assert an independent right to sentencing credit on that basis

alone.    As we have previously held, confinement in violation of

service regulations does not create a per se right to sentencing

credit under the UCMJ.   King, 61 M.J. at 228; McCarthy, 47 M.J.

at 166 (citing United States v. Moore, 32 M.J. 56, 60 (C.M.A.

1991)).

     This rule reflects the long-standing principle that not all

violations of law result in individually enforceable remedies.

See United States v. Green, 14 M.J. 461, 464 (C.M.A. 1983);

United States v. Whiting, 12 M.J. 253, 255 (C.M.A. 1982).

However, “‘[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 purposes of the

provisions of AFI 31-205 at issue in this case are consistent

with treatment of pretrial confinees as innocent individuals and




                                 11
United States v. Adcock, No. 06-0714/AF

certainly are designed to protect their interests.4    AFI 31-205

reflects a decision by the Air Force to ensure that

servicemembers who are housed in civilian jails are treated in a

manner that recognizes the presumption of innocence.

     R.C.M. 305(k) provides in relevant part:

     Remedy. The remedy for noncompliance with subsections
     (f), (h), (i), or (j) of this rule shall be an
     administrative credit against the sentence adjudged
     for any confinement served as the result of such
     noncompliance. Such credit shall be computed at the
     rate of 1 day credit for each day of confinement
     served as a result of such noncompliance. 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.

Emphasis added.

     The subsections of R.C.M. 305 referenced in subsection (k)

set forth specific procedural safeguards, such as an accused

servicemember’s right to counsel and to prompt review following

imposition of pretrial confinement.   See, e.g., R.C.M. 305(f),

(h), (i), and (j).   The majority below held, and the Government

now argues, that the references to these other subsections


4
  See United States v. Palmiter, 20 M.J. 90, 98 (C.M.A. 1985)
(Everett, C.J., concurring in the result) (“When pretrial
detainees -- who have been charged with or have not been proven
guilty of any crime -- are placed in immediate association with
sentenced prisoners for work or some other required activity,
this close association occasionally will involve enhanced danger
to physical safety. Typically, it will tend to stigmatize the
pretrial detainees; and the intentional imposition of stigma is
itself a punishment . . . .”)

                                12
United States v. Adcock, No. 06-0714/AF

reflect a presidential intent in subsection (k) to enforce only

the specific rights enumerated, not to create an independent

right to sentencing credit.    Adcock, 63 M.J. at 521.

       In particular, the lower court observed that R.C.M.

305(k)’s authorization of additional credit for “unusually harsh

circumstances” mirrors language from Suzuki, 14 M.J. at 492

(upholding a military judge’s grant of administrative credit for

“unusually harsh circumstances” in pretrial confinement).    63

M.J. at 521.    Thus, it reasoned, this language was intended only

to incorporate existing case law and not to create a new basis

for pretrial confinement credit.      Id. at 521.

       Regardless of its origin, the President’s addition of “an

abuse of discretion or unusually harsh circumstances” as a basis

for additional confinement credit in 1998 goes beyond the

procedural protections related to imposition and review of

pretrial confinement in R.C.M. 305(f), (h), (i), and (j).5    While

the Executive Order that added this language provided no

additional discussion or analysis, the two clauses must be

understood to have distinct and independent meaning.     Indeed,

“[o]ne of the basic canons of statutory interpretation is that

statutes should be interpreted to give meaning to each word.”

Lingle v. PSB Bancorp, Inc., 123 F. App’x 496, 502 (3d Cir.

2005) (citing United States v. Menasche, 348 U.S. 528, 538-39


5
    Exec. Order 13086, 63 Fed. Reg. 30065, 30067 (May 27, 1998).

                                 13
United States v. Adcock, No. 06-0714/AF

(1955)); see also TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)

(noting that a statute ought “‘to be so construed that, if it

can be prevented, no clause, sentence, or word shall be

superfluous, void, or insignificant’” (quoting Duncan v. Walker,

533 U.S. 167 (2001))).

     The 1998 amendment clearly authorized additional sentence

credit for pretrial confinement that involves either “unusually

harsh circumstances” or “an abuse of discretion.”   On its face,

this “abuse of discretion” language permits a military judge to

award additional credit based on conduct by confinement

officials that amounts to an abuse of discretion.   The

President’s establishment of this additional basis for credit

toward a servicemember’s sentence is consistent with the

President’s authority to prescribe rules and regulations

implementing the UCMJ, including provision of “additional or

greater rights” than those provided for by Congress.   United

States v. Romano, 46 M.J. 269, 274 (C.A.A.F. 1997); United

States v. McGraner, 13 M.J. 408, 414-15 (C.M.A. 1982); Article

36, UCMJ, 10 U.S.C. § 836 (2000).   Contrary to the position

taken by the dissent, we are not now creating a new rule.    The

1998 amendment established an additional basis for credit prior

to Appellant’s trial.

     A military judge’s discretion to award additional credit

for abuses of discretion in pretrial confinement does not create



                               14
United States v. Adcock, No. 06-0714/AF

an enforceable per se right to additional sentence credit.    As

we have previously held, servicemembers may only enforce a per

se right to credit by demonstrating an Article 13, UCMJ,

violation.   King, 61 M.J. at 227.   However, 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.   A military judge’s decision in response to

this request is reviewed, on appeal, for abuse of discretion.

See United States v. Rock, 52 M.J. 154, 156 (C.A.A.F. 1999).

     We turn now to the question of whether the military judge

properly exercised his discretion under R.C.M. 305(k) when he

refused to award additional credit based on Adcock’s pretrial

confinement.   It is not argued that the Air Force officials at

Travis AFB were unaware of their own regulations which

proscribed commingling and also required that pretrial confinees

wear the battle dress uniform (BDU) and not be placed in the

same color uniforms worn by convicted inmates.   R.C.M. 304(f)

provides that “[p]risoners shall be afforded facilities and

treatment” (emphasis added) as prescribed by the service

secretaries.   AFI 31-205 bears the phrase, “COMPLIANCE WITH THIS

PUBLICATION IS MANDATORY” in bold capital letters at the top of




                                15
United States v. Adcock, No. 06-0714/AF

its first page.6   An introductory paragraph of the regulation,

para. 1.2.2.2.2., directs that “[w]hen seeking a correctional

facility outside the DoD, the standards of confinement and

treatment of inmates must meet or exceed what would be provided

in a DoD facility.” (emphasis added).

     For almost thirty years this court’s decisions treated

commingling of pretrial and post-trial inmates as per se

pretrial punishment in violation of Article 13, UCMJ.7    Although

in United States v. Palmiter, 20 M.J. 90, 96 (C.M.A. 1985),8 the

court determined that commingling “without more” would not

automatically constitute a violation of Article 13, UCMJ,

service regulations can provide greater protections than Article

13, UCMJ, and, in fact, most services have continued to

explicitly outlaw commingling of pretrial confinees with

convicted inmates.   See, e.g., Dep’t of the Army, Reg. 190-47,

Military Police, The Army Corrections System, para. 3-2.i. (June

15, 2006); Dep’t of the Navy, Secretary of the Navy Instr.


6
  There is no dispute that compliance with AFI 31-205 is
mandatory. At oral argument the Government argued that the
“mandatory” phrase in the regulation was redundant since all Air
Force Instructions are mandatory.
7
  See, e.g., United States v. Bayhand, 6 C.M.A. 762, 770-71, 21
C.M.R. 84, 92-93 (1956); United States v. Nelson, 18 C.M.A. 177,
181, 39 C.M.R. 177, 181 (1969); United States v. Pringle, 19
C.M.A. 324, 326, 41 C.M.R. 324, 326 (C.M.A. 1970); United States
v. Bruce, 14 M.J. 254, 256 (C.M.A. 1982).
8
  The majority decision in Palmiter was a one-judge decision
(Judge Cox), with Chief Judge Everett writing a concurring
opinion supporting the result on a different basis and Judge
Fletcher not participating.

                                16
United States v. Adcock, No. 06-0714/AF

1640.9C, Department of the Navy Corrections Manual §§

7103.2.b(2)(a), 12502.3.b. (Jan. 3, 2006).   It is within the

province of the executive branch, not this court, to change

these requirements.

     AFI 31-205, para. 5.8.1.2. directs that “[a]ll pre-trial

detainees will be housed in separate cells or sleeping areas,

separated by sight, from post-trial inmates.”   Placing pretrial

confinees in the same uniforms as those worn by convicted

inmates is prohibited by both AFI 31-205, para. 7.1.1. and

R.C.M. 304(f) and AFI 31-205 goes on to require that pretrial

confinees wear their BDU uniform while in pretrial confinement.

Nothing in AFI 31-205 requires a showing of intent to punish or

improper government purpose to establish a violation or a remedy

for that violation.   Despite these prohibitions, there have

apparently been “numerous” challenges to Travis AFB’s pretrial

confinement program prior to Adcock’s appeal.   Adcock, 63 M.J.

at 524 (Mathews, J., concurring in part and dissenting in

part).9   Nevertheless Air Force authorities failed to take any

action to remedy the conditions, request that the rules be

changed or request a secretarial waiver from the provisions.


9
  The dissent below noted that when a military judge in an
unrelated case granted pretrial confinement credit based on the
Solano County facilities’ failure to comply with Air Force
regulations, Travis AFB officials considered moving Adcock to a
military facility, but concluded that the cost would be
prohibitive and left her in the civilian jail. Adcock, 63 M.J.
at 524.

                                17
United States v. Adcock, No. 06-0714/AF

     While it could be argued that the officials’ knowing

indifference to breaches of AFI 31-205 and R.C.M. 304(f)

demonstrated the intent to punish required for an Article 13,

UCMJ, violation, we need not reach that issue.   The action of

Travis AFB officials in knowingly and deliberately violating Air

Force regulatory provisions designed to safeguard the rights of

Air Force members amounted to an abuse of discretion under

R.C.M. 305(k).   These regulations were clearly intended to

safeguard accused servicemembers’ rights to treatment consistent

with the presumption of innocence.   See AFI 31-205, para.

7.1.1.; see, e.g., United States v. Kaiser, 58 M.J. 146, 150

(C.A.A.F. 2003) (citing United States v. Washington, 57 M.J.

394, 402 (C.A.A.F. 2002) (Baker, J., concurring)); Dunlap v.

Convening Authority, 23 C.M.A. 135, 140, 48 C.M.R. 751, 756

(1974) (Duncan, C.J., dissenting).

     Violations of service regulations prescribing pretrial

confinement conditions provide a basis for a military judge, in

his or her discretion, to grant additional credit under the

criteria of R.C.M. 305(k).   They do not independently trigger a

per se right to such credit enforceable by the servicemember.

Accordingly, a military judge should consider violations of

service regulations as a basis for pretrial confinement credit

under R.C.M. 305(k) when those regulations reflect long-standing




                                18
United States v. Adcock, No. 06-0714/AF

concern for the prevention of pretrial punishment and the

protection of servicemembers’ rights.

     Administrative relief under R.C.M. 305(k) is appropriate

where, as here, confinement officials have knowingly and

deliberately violated provisions of service regulations designed

to protect the rights of presumptively innocent servicemembers.

Under the circumstances of this case, we hold that the military

judge abused his discretion when he denied Adcock’s request for

credit based on “pretrial confinement that involves an abuse of

discretion” under R.C.M. 305(k).    On the basis of this erroneous

application of R.C.M. 305(k), the military judge denied Adcock’s

request for additional pretrial confinement credit of 157 days.

As a result, Adcock was prejudiced by this denial as it deprived

her of 157 days of confinement credit.

     We hold that the Court of Criminal Appeals erred in

concluding that there was no basis for affording Adcock

additional sentencing credit for the violations of AFI 31-205.

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 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



                               19
United States v. Adcock, No. 06-0714/AF

will be credited with an additional 157 days of confinement

served.




                               20
United States v. Adcock, 06-0714/AF


     STUCKY, Judge, with whom RYAN, Judge, joins (dissenting):

     At trial, the military judge granted Appellant day-for-day

credit for each of the 157 days she spent in pretrial

confinement, as required by United States v. Allen, 17 M.J. 126

(C.M.A. 1984).   Appellant moved the court to grant additional

pretrial confinement credit because, contrary to Air Force

Instr. 31-205, The Air Force Corrections System (Apr. 7, 2004)

[hereinafter AFI 31-205], while confined in a civilian facility,

she was housed with post-conviction inmates and was not

permitted to wear her military battle dress uniform (BDU).   The

military judge found these two conditions of her pretrial

confinement violated AFI 31-205, but he refused to grant her

additional credit against her sentence.   In an en banc decision,

the United States Air Force Court of Criminal Appeals found no

abuse of discretion and affirmed.    United States v. Adcock, 63

M.J. 514 (A.F. Ct. Crim. App. 2006).

     The majority holds that the military judge abused his

discretion and grants Appellant an additional 157 days of credit

against her sentence to confinement.   I dissent.   The military

judge did not abuse his discretion, and Appellant is not

entitled to 157 days of additional credit.

                                I.

     “No person, while being held for trial, may be subjected to

punishment or penalty other than arrest or confinement upon the
United States v. Adcock, 06-0714/AF


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, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 813 (2000).

          Article 13, UCMJ, prohibits two things: (1) the
     imposition of punishment prior to trial, and (2)
     conditions of arrest or pretrial confinement that are
     more rigorous than necessary to ensure the accused’s
     presence for trial. The first prohibition of Article
     13 involves a 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.”
     Bell[ v. Wolfish], 441 U.S. [520,] 539 [(1979)];
     [United States v. ]McCarthy, 47 M.J. [162,] 165, 167
     [(C.A.A.F. 1997)].

          The second prohibition of Article 13 prevents
     imposing unduly rigorous circumstances during pretrial
     detention. Conditions that are sufficiently egregious
     may give rise to a permissive inference that an
     accused is being punished, or the conditions may be so
     excessive as to constitute punishment. McCarthy, 47
     M.J. at 165; United States v. James, 28 M.J. 214, 216
     (C.M.A. 1989) (conditions that are “arbitrary or
     purposeless” can be considered to raise an inference
     of punishment).

United States v. King, 61 M.J. 225, 227-28 (C.A.A.F. 2005).

     The President implemented Article 13, UCMJ, in Rule for

Courts-Martial (R.C.M.) 304(f), which provides as follows:

     Pretrial restraint is not punishment and shall not be
     used as such. No person who is restrained pending
     trial may be subjected to punishment or penalty for
     the offense which is the basis for that restraint.
     Prisoners being held for trial shall not be required
     to undergo punitive duty hours or training, perform
     punitive labor, or wear special uniforms prescribed
     only for post-trial prisoners. This rule does not


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United States v. Adcock, 06-0714/AF


     prohibit minor punishment during pretrial confinement
     for infractions of the rules of the place of
     confinement. Prisoners shall be afforded facilities
     and treatment under regulations of the Secretary
     concerned.

     In R.C.M. 305(f), (h), (i), and (j), the President

established a set of procedural rules for the imposition and

review of pretrial confinement.   See Manual for Courts-Martial,

United States, Analysis of the Rules for Courts-Martial app. 21

at A21-17 to A21-21 (2005 ed.).   To ensure the procedural rules

are followed, the President ordered that an accused be granted

day-for-day credit for noncompliance.   R.C.M. 305(k).

     Additionally, “[t]he military judge may order additional

credit for each day of pretrial confinement that involves an

abuse of discretion or unusually harsh circumstances.”    Id.

(emphasis added).   The military judge has discretion as to

whether to order additional credit and, if so, the appropriate

amount in either of these two situations.   See id.

     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


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United States v. Adcock, 06-0714/AF


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.

     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).

                               II.

     The Secretary of the Air Force fulfilled his

responsibilities under R.C.M. 304(f) by issuing AFI 31-205.      It

provides that Air Force “[i]nmates in military or nonmilitary

institutions are subject to that institution’s rules or

directives including rules on discipline and treatment” (para.

1.2.2.); the standards of confinement and treatment of inmates


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United States v. Adcock, 06-0714/AF


in non-Department of Defense (DoD) facilities must meet or

exceed what would be provided in DoD facilities (para.

1.2.2.2.2.); all pretrial detainees are to be housed in separate

cells, separated by sight, from post-trial inmates (para.

5.8.1.2.); and pretrial detainees are to continue to wear the

BDU (para. 7.1.1.).   Compliance with AFI 31-205 is mandatory.

                               III.

     The military judge ruled that there was a legitimate

nonpunitive governmental objective for subjecting the accused to

pretrial confinement and that there was no intent to punish or

stigmatize her.   The military judge also concluded that that the

conditions of Appellant’s confinement violated AFI 31-205.      This

Court granted review of only one issue -- the issue Appellant

assigned as error:

     WHETHER, HAVING FOUND THAT THE TERMS OF APPELLANT’S
     PRETRIAL CONFINEMENT VIOLATED AIR FORCE INSTRUCTION
     (AFI) 31-205, AND [sic] THE AIR FORCE CORRECTIONS
     SYSTEM PARAS. 5.8.1.2 AND 7.1.1 (7 APRIL 2004), THE
     MILITARY JUDGE ERRED IN NOT DETERMINING THAT THE
     VIOLATION “INVOLVE[D] AN ABUSE OF DISCRETION”
     PERMITTING CREDIT UNDER R.C.M. 305(K).

Appellant did not assign as error, and we did not grant review

of, any other issue, including whether the conditions of her

pretrial confinement violated R.C.M. 304(f), involved

noncompliance with the pretrial confinement procedural rules of

R.C.M. 305, or were unduly harsh.     As noted above, a claim

alleging an abuse of discretion for which additional credit is


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United States v. Adcock, 06-0714/AF


warranted under R.C.M. 305(k) relates only to the decision to

place and retain a servicemember in pretrial confinement.

Appellant cannot avail herself of the R.C.M. 305(k) credit

relating to an abuse of discretion based on her assertion that

her conditions of confinement violated AFI 31-205.

                                IV.

     The majority notes with approval previous holdings of this

Court that “confinement in violation of service regulations does

not create a per se right to sentencing credit under the UCMJ”

and “the long-standing principle that not all violations of law

result in individually enforceable remedies.”   Nevertheless,

they assert that the military judge abused his discretion in not

awarding Appellant 157 days of additional credit because the

confinement officials abused their discretion in confining

Appellant in a facility that did not meet the standards of AFI

31-205, even though Appellant never complained about those

conditions prior to trial.   An abuse of discretion occurs when

the military judge’s findings of fact are clearly erroneous, the

military judge’s decision is influenced by an erroneous view of

the law, or the military judge’s decision is outside the range

of choices arising from the applicable facts and law.   United

States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004) (citing United

States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F. 1995); United

States v. Wallace, 964 F.2d 1214, 1217 n.3 (D.C. Cir. 1992)).


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United States v. Adcock, 06-0714/AF


       None of these circumstances exist here.   The military judge

and the lower court were correct in stating and applying the

law.   The majority does not suggest that the military judge’s

findings of fact were clearly erroneous.   Instead, the majority

articulates a new legal standard and then finds that the

military judge’s decision was influenced by an erroneous view of

the law because he did not divine this new rule -- if one of the

services fails to follow its own regulation on pretrial

confinement, it amounts to an abuse of discretion for which the

accused is entitled to additional credit, even if there is no

intent to punish and the circumstances of the confinement were

not unusually harsh.

       The error of the majority is threefold.   First is the

failure to limit the phrase “abuse of discretion” as used in

R.C.M. 305(k) to review of decisions by military authorities to

place and retain a servicemember in pretrial confinement.       The

second is going beyond the granted issue in an attempt to

address the conditions of Appellant’s confinement as a basis of

relief.   Third, and finally, is the establishment of a new right

to confinement credit when there is a knowing and deliberate

violation of service regulations even if there was no Article

13, UCMJ, violation.




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United States v. Adcock, 06-0714/AF


                                V.

     The President promulgated R.C.M. 305 to establish uniform

procedures for the imposition and review of pretrial

confinement.   In the past, we have required servicemembers to

establish a violation of Article 13, UCMJ, before being entitled

to the additional pretrial confinement credit of R.C.M. 305(k)

for “unusually harsh circumstances.”   See United States v.

Crawford, 62 M.J. 411, 414 (C.A.A.F. 2006).   There is no

evidence that, in promulgating R.C.M. 304(f) or R.C.M. 305, the

President intended to require or permit military judges to grant

confinement credit for violations of service confinement

regulations without more.   Nor is there any evidence the

Secretary of the Air Force intended that violations of AFI 31-

205 would result in pretrial confinement credit.   Although the

instruction is mandatory (as opposed to aspirational), the

Secretary has other means of ensuring compliance short of

granting an accused pretrial confinement credit.

     The majority’s resolution of this case appears to overrule,

sub silentio, the requirement in Crawford, 62 M.J. at 414, and

King, 61 M.J. at 227, that an accused establish a violation of

Article 13, UCMJ, before the military judge is entitled to grant

additional confinement credit under R.C.M. 305(k) for conditions

of confinement alleged to be “unusually harsh circumstances.”

In cases alleging a knowing and deliberate violation of the


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United States v. Adcock, 06-0714/AF


service’s confinement regulation, the majority also seems to

abandon the inference that the failure to complain about the

conditions of pretrial confinement “is strong evidence that the

accused is not being punished in violation of Article 13.”

United States v. Huffman, 40 M.J. 225, 227 (C.M.A. 1994)

overruled by United States v. Inong, 58 M.J. 460, 463-

65(C.A.A.F. 2003) (holding prospectively that failure at trial

to seek sentence relief for pretrial punishment or confinement

waives the issue on appeal absent plain error).   It also

suggests that, at least when the terms of an accused’s

confinement are a knowing and deliberate violation of the

service regulation, the accused does not have to complain.

     This decision leads to two consequences of concern to me.

First, it involves this Court in areas relating to facilities,

conditions of confinement, and administrative decisions with

respect to prisoners where there is no Article 13, UCMJ,

violation.   The President gave authority to the service

secretaries to address these matters.   See R.C.M. 304(f).

Second, it will encourage servicemembers to spend their time in

pretrial confinement poring over service regulations, cataloging

every possible discrepancy to raise as a reason for additional

confinement credit, even if the actual conditions of confinement

are not unduly harsh.   At trial, military judges will face

protracted litigation concerning the minutiae of confinement


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United States v. Adcock, 06-0714/AF

programs and whether a particular facility or guard violated

some provision of a service regulation.   Appellate court dockets

will be flooded with pleas that military judges abused their

discretion in not granting additional credit.   Ultimately, this

Court may find itself 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.

Such a result is not mandated by either our laws or regulations.

Accordingly, I dissent.




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