                        UNITED STATES, Appellee

                                      v.

                       Tracy P. REGAN, Captain
                      U.S. Air Force, Appellant

                                No. 05-0280

                          Crim. App. No. 35419

       United States Court of Appeals for the Armed Forces

                     Argued November 2, 2005

                     Decided January 27, 2006

CRAWFORD, J., delivered the opinion of the Court, in which
GIERKE, C.J., and EFFRON, BAKER, and ERDMANN, JJ., joined.


                                  Counsel

For Appellant: Captain Anthony D. Ortiz (argued); Colonel
Carlos L. McDade and Captain Christopher S. Morgan (on brief).

For Appellee: Major Amy E. Hutchens (argued); Lieutenant
Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer,
Major Steven R. Kaufman, and Major Matthew S. Ward (on brief).

Military Judge:   Sharon A. Shaffer




         THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Regan, No. 05-0280/AF



     Judge CRAWFORD delivered the opinion of the Court.

     Pursuant to her pleas, Appellant was convicted of three

specifications of use of cocaine and one specification of

possession of cocaine in violation of Article 112a, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. § 912a (2000).   The

convening authority approved the sentence of a dismissal and

nine months of confinement.   The Court of Criminal Appeals

affirmed the findings and sentence.    We granted review of the

following issue on June 15, 2005:

     WHETHER APPELLANT SHOULD HAVE BEEN AWARDED ADDITIONAL
     CONFINEMENT CREDIT FOR NONCOMPLIANCE WITH R.C.M. 305,
     PURSUANT TO UNITED STATES v. RENDON, 58 M.J. 221
     (C.A.A.F. 2003).

     We hold that the military judge did not err in declining to

award additional credit under Rule for Courts-Martial (R.C.M.)

305, Manual for Courts-Martial, United States (2005 ed.) (MCM).1

Prior to declining that credit, the military judge granted a

defense motion and gave Appellant credit for restriction

tantamount to confinement.

                               FACTS

     After Appellant tested positive a third time for the use of

cocaine, the acting commander, Major Mary Nachreiner, initially


1
  The current versions of all MCM provisions cited are identical
to the ones in effect at the time of Appellant’s court-martial,
unless otherwise indicated.



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discussed the test results with Colonel (Dr.) Morgan of Life

Skills and discussed the various options that were available.

At a later time, Major Nachreiner discussed the matter with the

commander who was on leave.   It was after these discussions that

the acting commander decided to order Appellant into

confinement.   Before placing Appellant into pretrial

confinement, the acting commander wanted to offer Appellant the

opportunity to get help for her drug problem.   Major Nachreiner

told Appellant that she was going to order Appellant into

confinement, but if Appellant was willing, the commander would

send Appellant to an inpatient treatment program at St.

Elizabeth’s Hospital before proceeding with the pretrial

confinement.   The military judge found that it was made clear to

Appellant that if she did not elect treatment, she would be

placed in pretrial confinement.

     The following exchange occurred during the session pursuant

to Article 39(a), UCMJ, 10 U.S.C. § 839(a)(2000), between the

military judge and Major Nachreiner regarding Appellant’s

election:

     A: I know we offered the option of treatment, that
     it would be solely her voluntary choice, that this
     was voluntary admission. However, if she didn’t
     choose a voluntary admission for treatment, then she
     would go to pretrial confinement.

     [MJ]: So there was an ultimatum, either go to
     treatment or go to pretrial confinement. That’s what
     I’m hearing.


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United States v. Regan, No. 05-0280/AF



     A: It was still her option in a sense. You know, if
     a person really wanted to treatment [sic], earnestly
     wanted treatment, I would have thought it would have
     been an obvious choice for treatment, which she did
     choose.

     [MJ]:   I guess my question is --

     A: We weren’t forcing her into treatment, but we did
     say if you don’t choose treatment, the secondary
     alternative is pretrial confinement. She could have
     said, “No, I don’t want treatment. I’ll go to
     confinement.” That would have been her option. You
     know, if someone didn’t want treatment, they may not
     have chosen that.

     [MJ]: Well, if there was such a concern with her
     positive [urinalysis] that was rather high on the
     third one and your sole purpose was concern for her
     health and well-being and getting treatment, then why
     not just phrase treatment alone instead of the
     ultimatum of either here or pretrial confinement?
     It’s one or the other.

     A: She’s an officer. We wanted to give her the
     choice. We felt like, as you seem to indicate, it
     seemed like an obvious choice. I would rather choose
     a program to help myself than I would to go to
     confinement directly. We didn’t force that choice on
     her.

     [MJ]: What it sounds like, though, is there was
     going to be some sort of restriction, either
     confining her in a hospital or confining her in a
     jail.

     The acting commander wanted to allow Appellant to choose

between drug treatment and pretrial confinement.   Appellant made

her election to enter the treatment program.   She commenced the

treatment program on “11 July 2002 and remained there until 2

August 2002 when she was transported to pretrial confinement.”



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United States v. Regan, No. 05-0280/AF


During the treatment program, Major Nachreiner received a call

that Appellant was not cooperating with her treatment group at

the treatment facility.   The acting commander told the staff

member that Appellant was given a choice of “treatment or

pretrial confinement.”    It was made clear to Appellant that if

she opted to quit the program, she would be placed in pretrial

confinement.    There is no indication in the testimony or

evidence presented that the acting commander sent Appellant to

inpatient treatment to punish her.      Although the commander had

decided to order Appellant into pretrial confinement, the acting

commander first wanted to help Appellant by providing her the

opportunity to help herself.

     While in the program, Appellant was allowed to leave the

treatment facility with escorts.       In addition to the escort

program, there were secure doors to the facility, and Appellant

was limited as to when she could go to the gift shop.      Smoke

breaks were very limited.   In the third week of treatment,

Appellant was allowed to take breaks with other individuals at

the facility.   Appellant had supervised visits because of the

disclosure of her supplier:

     On the weekend prior to her completion of the
     program, the accused requested a pass for three hours
     to have dinner with her daughter. However, based on
     concerns regarding her behavior in group therapy, the
     integrity of the program, the risk of relapse, and
     [the] implication of her husband in drug use with
     her, and also the risk of flight, this request was


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United States v. Regan, No. 05-0280/AF


     denied.   This was the only time the accused asked for
     a pass.

Upon Appellant’s release from the treatment facility on August

2, 2002, she was placed in pretrial confinement.

     The military judge found that:

     [T]he accused was told that she had two options,
     either inpatient treatment at St. Elizabeth’s Hospital
     or pretrial confinement. Although the accused
     apparently indicated that she wanted treatment and had
     discussed it with her husband, the command made it
     clear to her that, if she did not elect treatment, she
     would be placed into pretrial confinement. She opted
     for inpatient treatment.

     . . . [A]t no time did the command discuss
     involuntarily placing the accused into a treatment
     facility, which would also, under our AFIs [Air Force
     Instructions], require a notice and a hearing prior to
     placement into [a] treatment facility. The options
     were merely to voluntarily check yourself into the
     hospital, or we will check you into pretrial
     confinement.

The military judge noted that this case was “unique,” because

“this particular accused was given . . . . no choice.   Inpatient

treatment or confinement is, in essence, no choice at all.”

     In her essential findings, the military judge concluded

that, based on “the totality of the conditions imposed” and “the

facts and circumstances” of this case, the time Appellant was in

the treatment facility (twenty-one days) amounted to restriction

tantamount to confinement and determined that Appellant was




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United States v. Regan, No. 05-0280/AF


entitled to Mason2 credit.   The military judge made this

conclusion based solely on the fact that Appellant was “not

given a choice” because while addressing the issue of whether

Appellant was entitled to additional credit for a violation of

R.C.M. 305 requirements, the military judge stated, “this is not

a scenario where the restriction, if you will, wasn’t tantamount

to confinement.”   The military judge further stated on this

issue, “[i]f this was a different scenario, I wouldn’t even be

finding [that inpatient treatment] was restriction tantamount to

confinement.”   The military judge concluded that the

restrictions placed on Appellant by the hospital were for

legitimate medical reasons and “are not the same restrictions

. . . the court envisioned that would necessitate a 305(k)

review.”   The military judge then denied the defense motion for

additional credit under R.C.M. 305(k) for failure to comply with

the requirements of R.C.M. 305.

                             DISCUSSION

     In United States v. Rendon, 58 M.J. 221 (C.A.A.F. 2003),

the Court held that R.C.M. 305 applies to “pretrial confinement”

and that rule applies to “restriction tantamount to confinement

only when the conditions and constraints of that restriction


2
  United States v. Mason, 19 M.J. 274 (C.M.A. 1985) (day for day
credit is given for pretrial restriction equivalent to
confinement).



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United States v. Regan, No. 05-0280/AF


constitute physical restraint, the essential characteristic of

confinement.”   58 M.J. at 224, 225.   To come within the scope of

R.C.M. 305, then, “the conditions or terms of the restriction

must constitute physical restraint depriving an accused of his

or her freedom.”    Id. at 224.   “We find no evidence that the

President intended the procedural protections or the credit

provided in R.C.M. 305 to apply to anything other than the

physical restraint attendant to pretrial confinement.”      Id.

(emphasis added).   Thus, restriction tantamount to confinement

does not necessarily trigger the application of R.C.M. 305.

     In this case, Appellant was not subject to physical

restraint incidental to pretrial confinement, but was treated as

a patient, not a prisoner.   There was no evidence that she was

treated differently from other patients for a nonmedical

purpose, but that her restrictions were imposed for medical

reasons.   This restriction could have been broken at any time.

Her treatment was voluntary and there was no evidence that

Appellant remained in the hospital against her will.    In fact,

there was evidence she wanted to receive the treatment.

     We hold that the military judge did not err in refusing to

grant additional credit pursuant to R.C.M. 305(k).    The

conditions of Appellant’s inpatient stay at St. Elizabeth’s

Hospital did not amount to “physical restraint characteristic of

confinement,” thus entitling Appellant to credit because of a


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United States v. Regan, No. 05-0280/AF


violation of R.C.M. 305.   The assistance one receives during an

inpatient drug treatment program is far different than the

physical restraint imposed when an individual is placed in

pretrial confinement.   Clearly, as noted by the military judge,

the “parameters” set by the hospital are for “very legitimate

medical reasons, to prevent relapse or a person running out and

getting additional drugs.”   Thus, there was no error in failing

to give additional credit under R.C.M. 305(k).

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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