                UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                                 UNITED STATES

                                                            v.

                                  Airman First Class JAMIE A. HARGETT
                                          United States Air Force

                                                     ACM S32323

                                                     20 July 2016

               Sentence adjudged 14 May 2015 by SPCM convened at Davis-Monthan Air
               Force Base, Arizona. Military Judge: Shelly W. Schools (sitting alone).

               Approved sentence: Bad-conduct discharge, confinement for 100 days, and
               reduction to E-1.

               Appellate Counsel for Appellant: Major Lauren A. Shure and Captain Annie
               W. Morgan

               Appellate Counsel for the United States: Lieutenant Colonel Jennifer A.
               Porter and Gerald R. Bruce, Esquire

                                                         Before

                                    SANTORO, MAYBERRY, and BROWN
                                         Appellate Military Judges

                                            OPINION OF THE COURT

                This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                                    under AFCCA Rule of Practice and Procedure 18.4.

SANTORO, Judge:

       A military judge sitting as a special court-martial convicted Appellant, pursuant to
his pleas, of violating an order from his commander and wrongfully using both oxycodone
and cocaine, in violation of Articles 92 and 112a, UCMJ, 10 U.S.C. §§ 892, 912a. The
adjudged and approved sentence was a bad-conduct discharge, confinement for 100 days,
and reduction to E-1.1 Appellant asserts that the military judge abused her discretion by


1
    Appellant received credit for 70 days of pretrial confinement.
denying his motion for pretrial confinement credit under Article 13, UCMJ, 10 U.S.C. §
813. We disagree and affirm.

                                                  Background

      Appellant had a series of three urinalyses that tested positive for oxycodone. The
ensuing investigation determined that Appellant had inappropriately been ingesting
oxycodone from a prescription he had received for an earlier injury. Upon learning this,
his commander ordered him only to take medications for the purpose and during the time
frame for which they were prescribed, unless otherwise directed by a medical provider.
Appellant continued using oxycodone in violation of the order. He also used cocaine
“around three times.”

        Additional facts necessary to resolve the assignment of error are included below.

                                              Article 13, UCMJ

        At trial, Appellant argued that he was entitled to additional credit against any
adjudged confinement due to three alleged violations of Article 13, UCMJ: (1) he was
comingled with a post-trial prisoner, (2) he was denied access to drug rehabilitation and
treatment, and (3) a less-restrictive form of restraint was appropriate. The military judge
denied the motion. Before us, Appellant argues that his placement into (and remaining in)
pretrial confinement instead of a drug treatment facility constituted a violation of Article
13, UCMJ.2

        Article 13, UCMJ, states:

                 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.

       Appellant bears the burden of establishing an Article 13, UCMJ, violation. United
States v. Harris, 66 M.J. 166 (C.A.A.F. 2008). We will not overturn a military judge’s
findings of fact unless they are clearly erroneous and review de novo whether Appellant is


2
  Appellant also invites us to consider arguments about other alleged violations of Article 13, UCMJ, 10 U.S.C. § 813
that he raised at trial. The single assignment of error he presented relates solely to his placement into pretrial
confinement in lieu of attendance at the civilian treatment program. We have considered those other arguments,
conclude that those issues merit no discussion, and do not entitle Appellant to relief.


                                                          2                                            ACM S32323
entitled to credit for a violation of Article 13, UCMJ. United States v. King, 61 M.J. 225,
227 (C.A.A.F. 2005).

        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 commander’s intent and basis for
ordering pretrial confinement are important aspects of the analysis. Whether there was an
intent to punish is “one significant factor in [the] judicial calculus” for determining whether
there has been an Article 13, UCMJ, violation. United States v. Huffman, 40 M.J. 225, 227
(C.M.A. 1994) (citing Bell v. Wolfish, 441 U.S. 520 (1979)), overruled on other grounds
by United States v. Inong, 58 M.J. 460, 464 (C.A.A.F. 2003).

      Appellant’s commander preferred charges against him for the drug violations and
disobeying his order. Two days later he ordered Appellant into pretrial confinement. The
48 and 72-hour reviews mandated by Rule for Courts-Martial (R.C.M.) 305 were
conducted as required.

        Six days after Appellant entered pretrial confinement, a pretrial confinement review
officer (PCRO) conducted the review required by R.C.M. 305(i)(2). Among the evidence
before the PCRO was that: (1) Appellant had been convicted by summary court-martial
for failing to obey his commander’s order and using oxycodone; (2) the summary court-
martial followed a fourth positive urinalysis; (3) subsequent to the summary court-martial
a fifth positive urinalysis result was received (from a sample taken before the court-
martial); (4) subsequent to the court-martial a sixth sample was taken and tested positive
for both oxymorphone and cocaine; and (5) subsequent to receiving the results of the sixth
sample, a seventh sample was obtained and tested positive for both oxymorphone and
cocaine. The summary court-martial sentence, which included 30 days’ hard labor without
confinement, did not deter Appellant’s continuing drug use. The PCRO also was aware
that Air Force Alcohol and Drug Abuse Prevention and Treatment personnel had
recommended that Appellant attend a 28-day in-patient substance abuse treatment program
at a civilian facility. After reviewing all of the evidence, the PCRO determined that
continued pretrial confinement was necessary.

       The following day, Appellant asked the PCRO to reopen the hearing so he could
present additional evidence about the security attendant to the civilian facility. The PCRO
agreed to receive additional evidence and Appellant presented an affidavit from the
treatment facility and a description of their program. Appellant again requested that he be
released from pretrial confinement to attend the civilian treatment program. The PCRO
denied the request. Appellant then asked his commander to release him from pretrial
confinement for the same reason. The commander, too, denied the request.

       In finding that the PCRO did not abuse his discretion by denying Appellant’s
release, the military judge noted that the PCRO “articulated very clearly why this particular


                                               3                                   ACM S32323
inpatient treatment program was not an adequate lesser form of restraint, to include the fact
that it was a voluntary program and that the accused had proven over time, in other
voluntary programs, that he cannot be trusted to make responsible and legal decisions.”
The PCRO concluded that if not confined, Appellant “will most likely continue to
wrongfully use [c]ocaine and/or [o]xymorphone” and that lesser forms of restraint had
failed. In reaffirming his decision after considering the affidavit, the PCRO again found
that there was no evidence that Appellant “could be trusted to make safe and legal
decisions” and that “if given the chance to make decisions for himself, he will choose to
commit continued crimes and pose a safety threat to those around him by being under the
influence.” The PCRO concluded by saying, “[t]he issue here is not with the treatment
facility, it is with [Appellant] and his inability to control himself and make sound
decisions.”

       Appellant argues that the PCRO’s decision, which effectively precluded his
attendance at the inpatient treatment program, denied him access to medical care and also
forced him to undergo detoxification and the pain attendant thereto in an “inhumane
manner.” 3 He also argues that going through withdrawal in a confinement facility is
unnecessarily harsh, arbitrary and purposeless, and not linked to any reasonable
government objective.

       Although Appellant goes to great lengths to paint the program at the civilian
treatment facility as akin to confinement, the evidence established that attendance at the
program was voluntary and that Appellant would be able to leave at will.4 Appellant’s
argument that the facility would have called his unit (a five-hour drive away) to notify them
of his departure did little to persuade the PCRO, the military judge, or us that it would be
an adequate lesser form of “restraint.” See generally United States v. Palmiter, 20 M.J. 90,
94 (C.M.A. 1985) (assigning pretrial confinee to duties outside the facility when the
purpose of confinement is to preclude flight is illogical).

       We conclude that neither the PCRO nor the military judge abused their discretion.
The only remaining question is whether one or more conditions of confinement violated
the Article 13, UCMJ, prohibitions on punishment and unnecessarily rigorous conditions.
There was no evidence presented that Appellant requested medical care while in
confinement nor that confinement personnel believed he needed such care and failed to
provide it. Although Appellant testified about the unpleasantness of his withdrawal while
in confinement, there was no evidence that the conduct of government officials caused or
exacerbated those symptoms. The military judge did not abuse her discretion in concluding
that Appellant failed to meet his burden to establish that a violation of Article 13, UCMJ,
occurred.


3
 Despite this reference, Appellant does not claim any Constitutional violation occurred.
4
 Appellant does not assert, and the record does not reflect, that the confinement facility was without adequate medical
support.


                                                           4                                            ACM S32323
                                        Conclusion

       The findings and sentence are correct in law and fact, and no error materially
prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ,
10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and sentence are AFFIRMED.




              FOR THE COURT



              LEAH M. CALAHAN
              Clerk of the Court




                                              5                                  ACM S32323
