                        UNITED STATES, Appellee

                                    v.

                  Derrick M. WILLIAMS, Staff Sergeant
                       U.S. Air Force, Appellant

                              No. 08-0339

                         Crim. App. No. 36679

       United States Court of Appeals for the Armed Forces

                        Argued October 13, 2009

                       Decided January 14, 2010

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

                                 Counsel


For Appellant: Captain Jennifer J. Raab (argued); Major Shannon
A. Bennett and Captain Tiffany M. Wagner (on brief).

For Appellee: Captain G. Matthew Osborn (argued); Colonel
Douglas P. Cordova, Lieutenant Colonel Jeremy S. Weber, and
Gerald R. Bruce, Esq. (on brief); Major Steven R. Kaufman.

Military Judge:    J. L. Anderson


       This opinion is subject to revision before final publication.
United States v. Williams, No. 08-0339/AF

     Judge ERDMANN delivered the opinion of the court.

     Staff Sergeant Derrick M. Williams was found guilty of

numerous charges by a military judge sitting as a general court-

martial.1   He was sentenced to eighteen years of confinement, a

dishonorable discharge, reduction to E-1, and forfeiture of all

pay and allowances.   The convening authority approved the

sentence and the United States Air Force Court of Criminal

Appeals affirmed the findings and sentence.   United States v.

Williams (Williams I), No. ACM 36679, 2007 CCA LEXIS 567, 2007

WL 44612041 (A.F. Ct. Crim. App. Dec. 19, 2007).   On August 7,

2008, this Court set aside the decision of the Court of Criminal

Appeals and remanded the case to the lower court for

reconsideration in light of United States v. Adcock, 65 M.J. 18

(C.A.A.F. 2007).   United States v. Williams (Williams II), 67

M.J. 19 (C.A.A.F. 2008).   Upon reconsideration, the Court of

Criminal Appeals found that the military judge did not abuse his

discretion when he did not award additional sentencing credit

for a violation of Dep’t of the Air Force, Instr. 31-205, The

Air Force Corrections System (Apr. 7, 2004) [hereinafter AFI 31-

205], and again affirmed the findings and the sentence.   United

1
  Williams was found guilty pursuant to his pleas of assault
consummated by a battery, assault with a loaded firearm, assault
upon a law enforcement officer, unlawful entry, kidnapping,
communicating a threat, desertion, fleeing apprehension, escape
from confinement, reckless operation of a vehicle, and wrongful
appropriation of a vehicle. He was found guilty, contrary to



                                 2
United States v. Williams, No. 08-0339/AF

States v. Williams (Williams III), No. ACM 36679 (f rev) (A.F.

Ct. Crim. App. Oct. 30, 2008).

       Confinement in violation of service regulations does not

create a per se right to sentencing credit under the Uniform

Code of Military Justice (UCMJ).        Adcock, 65 M.J. at 23 (citing

United States v. King, 61 M.J. 225, 228 (C.A.A.F. 2005)).

However, under Rule for Courts-Martial (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 confinement

credit.    Adcock, 65 M.J. at 24.   We granted review in this case

to determine whether the military judge erred in not awarding

additional confinement credit under R.C.M. 305(k) after having

found that the confinement officials had violated a provision of

AFI 31-205.    We also granted review to determine whether

Williams was entitled to additional confinement credit under

Article 13, UCMJ, 10 U.S.C. § 813 (2000), due to the conditions

of his confinement.2




his pleas, of assault consummated by a battery, kidnapping,
communicating a threat, and assault with a loaded firearm.
2
    We granted review of the following issues:

       I. WHETHER, HAVING FOUND KNOWING VIOLATIONS OF AFI
       31-205, THE MILITARY JUDGE ERRED IN NOT DETERMINING
       THAT THE VIOLATION INVOLVED AN ABUSE OF DISCRETION
       WARRANTING CREDIT UNDER RCM 305(k).



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United States v. Williams, No. 08-0339/AF

     We find that the military judge abused his discretion in

failing to award additional confinement credit under R.C.M.

305(k) for the period June 1, 2004 through August 25, 2004 and

that additional confinement credit for that period is warranted,

but that no additional confinement credit is warranted under

Article 13, UCMJ.

                            Background

     On March 24, 2004, Dr. Leckie, an Air Force psychologist,

conducted a command-directed mental health evaluation of

Williams.   Dr. Leckie concluded that Williams “is at low (but

not non-existent) risk for suicide and/or violence.”   In late

March and early April, Williams committed a number of serious

offenses which resulted in his apprehension and his initial

pretrial confinement at the Kirtland Air Force Base Confinement

Facility.   Upon his entry into the confinement facility,

Williams was placed in a maximum custody status and was placed

on “suicide watch.”   It is standard practice at the confinement

facility to place all pretrial detainees on an initial twenty-

four-hour “suicide watch” to monitor their behavior.   Williams



     II. WHETHER THE CONDITIONS OF APPELLANT’S PRETIRAL
     CONFINEMENT IN SUICIDE WATCH, WHICH INCLUDED, INTER
     ALIA, DENIAL OF BOOKS, A RADIO, AND/OR A CD PLAYER,
     AND 24-HOUR-A-DAY LIGHTING, WERE SO EXCESSIVE THAT
     THEY CONSTITUTE A PUNISHMENT IN VIOLATION OF ARTICLE
     13, UCMJ, AND THUS, APPELLANT IS ENTITLED TO
     ADDITIONAL SENTENCE CREDIT.

United States v. Williams, 68 M.J. 78 (C.A.A.F. 2009).

                                 4
United States v. Williams, No. 08-0339/AF

was removed from “suicide watch” after this initial twenty-four-

hour period, although he remained in a maximum custody status

for fifteen days before being released into the general

population of the confinement facility.

     On May 29, 2004, Williams escaped from pretrial

confinement.     He was captured on May 30, 2004, and was returned

to pretrial confinement at the Kirtland Confinement Facility.

He was placed in a maximum security status and confined in a

“suicide watch” cell, which was lighted and monitored by camera

twenty-four hours a day.    He was also required to wear a special

suicide gown.3

     On May 31, 2004, Williams was once again evaluated by Dr.

Leckie.   Security Forces personnel had informed Dr. Leckie of

reports that Williams had made suicidal statements.    Williams

declined to answer some of Dr. Leckie’s questions, stating that

he first wanted to speak to his lawyer.    During the interview

Williams was generally uncooperative and Dr. Leckie concluded

that no follow-up was necessary at that time.

     On June 10, 2004, after consulting with other doctors, Dr.

Leckie prepared a memorandum to the confinement officials in

which he stated:    “Williams is at high, long-term risk for

committing suicidal and homicidal behaviors,” “[he] is not



3
  A suicide gown is a sleeveless cloth garment with velcro strap
fasteners.

                                   5
United States v. Williams, No. 08-0339/AF

reliable with respect to cooperating with mental health check-

ins,” “[he] should remain under the provisions of your suicidal

protocol, segregated from other prisoners (since he may attempt

to harm them).”   Dr. Leckie concluded that “[b]ecause he is at

high risk for violence and because he will remain at high risk

for violence and suicide for an indefinite, long period of time,

meticulous scrutiny should be given to his long-term care

arrangements.”    However, Dr. Leckie did request that confinement

officials provide Williams “access to a variety of books and a

radio or cd player,” noting that “[t]hese humane interventions

will help him pass his time productively and help him manage his

stress.”

     Williams met with Dr. Leckie on July 9, 2004, and was again

uncooperative.    He also met twice with another mental health

provider, but did not receive therapy during those visits.

During his confinement on “suicide watch,” Williams was visited

every two or three days by medical personnel, primarily nurse

practitioners and physician assistants.   He was not regularly

seen by mental health providers and no entries as to the

appropriateness of his “suicide watch” status were made in his

medical files or his confinement inspection records during this

period.

     In a memorandum to confinement officials dated August 26,

2004, Dr. Leckie recommended that Williams be removed from



                                  6
United States v. Williams, No. 08-0339/AF

“formal suicide watch” status.    Confinement officials, however,

did not alter Williams’s placement and he remained under the

restrictive conditions of “suicide watch” for an additional 188

days, until the end of his trial on March 2, 2005.   At some

point during the period of his confinement Williams was allowed

access to a radio and a television and he was allowed to have

books.    For much of his confinement Williams was required to

wear a suicide gown and the cell had twenty-four-hour lighting.

       At trial Williams moved for appropriate relief for illegal

pretrial punishment, citing Article 13, UCMJ, and R.C.M. 305(k).

Among other issues, the defense argued that the Government had

failed to follow AFI 31-205, para. 8.10, which requires medical

authorities to review the appropriateness of continued “suicide

watch” at a minimum of every twenty-four hours.4   Following a



4
    AFI 31-205, para. 8.10, provides:

       Suicide Watch. Confinement officers determine when it is
       necessary to place detainees/inmates on suicide watch to
       prevent injury, maintain health, or discipline standards.
       The confinement officer develops procedures to ensure the
       safety of suicidal inmates. Detainees/inmates are
       segregated to protect themselves against self harm and a
       medical officer will evaluate the individual and make a
       determination regarding the appropriateness of continued
       segregation as soon as possible and within 24-hours of the
       initiation of segregation. Additionally, a medical
       authority will review the appropriateness of continued
       suicide watch at a minimum every 24-hours after the
       initiation of the segregation to evaluate their health and
       sanitary conditions.

    Emphasis added.

                                  7
United States v. Williams, No. 08-0339/AF

hearing on the motion, the military judge found that the

Government’s failure to comply with AFI 31-205 after August 24,5

2004, “resulted in the accused being subjected to more onerous

conditions that were not related to a legitimate governmental

objective.”    The military judge awarded Williams one additional

day of confinement credit for each day from August 26, 2004

until the end of his trial on March 2, 2005, which amounted to

188 days of credit.

        In its initial review of the case the Court of Criminal

Appeals affirmed the conviction.       Williams I, 2007 CCA LEXIS

567, at *15, 2007 WL 4461204, at *5.      Following our remand of

the case, the Court of Criminal Appeals once again affirmed and

held:

        [W]e agree with the military judge’s conclusion that the
        appellant was illegally punished between 26 August 2004 and
        the date of trial. We also agree that 188 days of
        additional credit was appropriate for the Article 13, UCMJ,
        violation and decline to award additional credit as
        requested by the appellant.

Williams III, No. ACM 36679 (f rev), slip op. at 6.

        The basis for the military judge’s award of confinement

credit was Article 13, UCMJ:

        [T]his Court concludes that the government’s failure
        to comply with Air Force instructions on “suicide
        watch” after 24 August 2004 resulted in the accused
        being subjected to more onerous conditions that [sic]
        were not related to a legitimate governmental
        objective. . . . Therefore, the accused will be given

5
    See infra note 6.



                                   8
United States v. Williams, No. 08-0339/AF

     an additional 188 days credit for the violation of
     Article 13.6

In reviewing and affirming the military judge’s ruling, the

Court of Criminal Appeals came to the same conclusion:

          Based on the military judge’s findings of fact as
     supplemented by our own independent review of the
     record, and after conducting our own de novo review of
     whether the appellant is entitled to additional credit
     under Article 13, UCMJ, we agree with the military
     judge’s conclusion that the appellant was illegally
     punished between 26 August 2004 and the date of trial.
     We also agree that 188 days of additional credit was
     appropriate for the Article 13, UCMJ, violation and
     decline to award additional credit as requested by the
     appellant.

Williams III, No. ACM 36679 (f rev), slip op. at 6.

                           Discussion

     Williams argues that while the military judge was correct

when he found that confinement officials had violated the

provision of AFI 31-205, he abused his discretion under R.C.M.

305(k) when he did not award confinement credit for the entire

period of his confinement rather than just the final 188 days.

He also argues that independent of his R.C.M. 305(k) claim, he

is entitled to additional credit for the conditions of his

confinement under Article 13, UCMJ.




6
  The military judge’s ruling references August 24, 2004,
although Dr. Leckie did not recommend that Williams be removed
from formal suicide watch until August 26, 2004. The Court of
Criminal Appeals recognized August 26, 2004 as the appropriate
date and that date is also consistent with the military judge’s
calculation of 188 days of confinement credit.

                                9
United States v. Williams, No. 08-0339/AF

     The Government argues initially that Williams waived the

issue of additional sentencing credit under R.C.M. 305(k).    They

argue that although Williams included a reference to R.C.M.

305(k) in his written motion at trial, his brief and argument

focused solely on Article 13, UCMJ, violations.   In his Motion

for Appropriate Relief for Illegal Pretrial Punishment, Williams

cited R.C.M. 305(k) as a basis for relief as follows:

     12. RCM 305(k) states in part “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.

With this inclusion, we find that Williams sufficiently asserted

the possibility for relief under R.C.M. 305(k).

     In response to the substance of Williams’s R.C.M. 305(k)

argument, the Government asserts that he has failed to show how

the violation of AFI 31-205, para. 8.10, was one that was

“clearly intended to safeguard the accused servicemembers’

rights to treatment consistent with the presumption of

innocence.”   Adcock, 65 M.J. at 25.   The Government argues that,

in contrast to Adcock, the intent of the regulatory provision at

issue in this case was to evaluate Williams’s health and

sanitary conditions for medical purposes, which had no bearing

on Williams’s status as a pretrial detainee or his presumption

of innocence.



                                10
United States v. Williams, No. 08-0339/AF

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

unless they are clearly erroneous.      United States v. Mosby, 56

M.J. 309, 310 (C.A.A.F. 2002).     The underlying facts are not in

dispute, nor is the conclusion that the requirement of para.

8.10, AFI 31-205, was violated.7      We review de novo the legal

question as to whether the established facts and the violation

of AFI 31-205 entitled Williams to additional confinement

credit.   Adcock, 65 M.J. at 21-22.

R.C.M. 305(k)

     In Adcock we recognized that R.C.M. 305(k) provides an

independent basis for the award of additional confinement credit

where there has been a violation of service regulations “when

those regulations reflect long-standing concern for the

prevention of pretrial punishment and the protection of

servicemembers’ rights.”   Adcock, 65 M.J. at 25.     There we were

presented with a situation where a pretrial detainee had been

placed in a civilian facility where the provisions of AFI 31-205

pertaining to the treatment of pretrial detainees were not

followed, a fact known to Air Force confinement officials.      Id.

Under those circumstances, we held that “[a]dministrative relief

under R.C.M. 305(k) is appropriate where, as here, confinement

officials have knowingly and deliberately violated provisions of



7
  There is also no challenge in this case as to the decision to
initially place Williams in a “suicide watch” status.

                                 11
United States v. Williams, No. 08-0339/AF

service regulations designed to protect the rights of

presumptively innocent servicemembers.”   Id.   Here we are

presented with a violation of a different provision of AFI 31-

205, which was designed to ensure that the inmates or pretrial

confinees who are placed on “suicide watch” status will have the

appropriateness of that status reviewed at least every twenty-

four hours by a medical officer to determine the appropriateness

of the continued segregation.

     We have previously held that confinement in violation of

service regulations does not create a per se right to sentencing

credit under the UCMJ, noting that the rule reflects the long-

standing principle that not all violations of law result in

individually enforceable remedies.   Adcock, 65 M.J. at 23

(citations omitted).   Our holding today does not deviate from

that principle.   Once again, however, we emphasize that “‘[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 military judge awarded confinement credit under Article

13, UCMJ, for the period from August 26, 2004 through the end of

the trial based on a violation of AFI 31-205.   Had the military



                                12
United States v. Williams, No. 08-0339/AF

judge the benefit of Adcock at the time of his ruling, an

alternative basis for confinement credit would have been R.C.M.

305(k).8    While R.C.M. 305(k) could have provided an alternative

basis for relief, the factual basis for credit under either

Article 13, UCMJ, or R.C.M. 305(k) under the facts of this case

was the same conduct on the part of the confinement officials.

We therefore hold that the military judge did not abuse his

discretion in awarding one-for-one confinement credit for the

period August 26, 2004 through the date of trial under Article

13, UCMJ, and note that the award could have been based on

R.C.M. 305(k).

       As noted, Williams urges that he is entitled to R.C.M.

305(k) confinement credit for the initial period of his pretrial

confinement through August 25, 2004, since the confinement

officials were in violation of AFI 31-205 for the entire period

of his pretrial confinement.    Once confinement officials place a

confinee on “suicide watch,” AFI 31-205, para. 8.10, requires

that status to be reviewed every twenty-four hours by a medical

officer to determine the appropriateness of the continued

segregation.9    This provision can only be designed to protect the


8
  In Adcock we held that “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.” 65 M.J. at 24.
9
    See supra note 4.

                                 13
United States v. Williams, No. 08-0339/AF

personal liberties and interests of individuals who have been

placed on “suicide watch” status.    The daily review of the

status ensures that individuals placed on “suicide watch” will

be removed from the additional restrictive conditions as soon as

medically appropriate.

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

     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.

     In this case, the failure of the confinement officials to

abide by the requirements of AFI 31-205 from May 31, 2004 until

August 26, 2004, constituted an abuse of discretion that

adversely impacted Williams’s personal liberty or interests.

Accordingly, Williams is entitled to an additional eighty-six

days (one day per day for the period of confinement from June 1,

2004 through August 25, 2004) confinement credit under R.C.M.

305(k).

Article 13, UCMJ

     We now consider Williams’s claim that under Article 13,

UCMJ, he is entitled to additional sentencing credit beyond that

which the military judge ordered while he was on “suicide watch”

status.   Williams argues that he was denied books, denied a

radio and CD player, was subjected to twenty-four-hour lighting,




                                14
United States v. Williams, No. 08-0339/AF

and was required to wear a suicide gown.10   Williams asserts that

this relief is independent from his relief under R.C.M. 305(k).

Initially, we note that all of these conditions were directly

related to Williams’s “suicide watch” status and were considered

by the military judge in his decision on Williams’s motion for

appropriate relief at trial.

     Article 13, UCMJ,11 prohibits the imposition of punishment

prior to trial.   Alleged violations of Article 13, UCMJ, require

scrutinizing 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 such purposes are ‘reasonably related to a

legitimate governmental objective.’”   King, 61 M.J. at 227

(citations omitted).

     As to the complained of conditions of confinement, the

military judge found that the defense had failed (in their

burden) to show an intent to punish.   He subsequently considered

the conditions of Williams’s confinement while on “suicide

watch” and determined that they served a legitimate, nonpunitive


10
  It is not disputed that several of these conditions were
relaxed during the course of Williams’s confinement.
11
  “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
require to insure his presence . . . .” Article 13, UCMJ.



                                15
United States v. Williams, No. 08-0339/AF

governmental objective before August 26, 2004.    We see no reason

to disturb that conclusion.

     Turning to the period from August 26, 2004 through the date

of trial, the military judge has already awarded day-for-day

confinement credit under Article 13, UCMJ, for violation of AFI

31-205 relating to Williams’s “suicide watch” status.   As all of

the complained of conditions were related to that status, we

find under the circumstances that the military judge’s award

also adequately remedied any claim of redress under the

provisions of R.C.M. 305(k) by Williams related to that status

for the period from August 26, 2004 until trial.

                              Conclusion

     We hold that the Court of Criminal Appeals correctly found

that the military judge did not err in awarding confinement

credit for the period August 26, 2004 through the date of trial

under Article 13, UCMJ, and note that the award could

alternatively have been based on R.C.M. 305(k).    We further hold

that the Court of Criminal Appeals erred in concluding that the

military judge did not abuse his discretion in failing to award

additional sentencing credit for the period June 1, 2004 through

August 25, 2004 under R.C.M 305(k).    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




                                  16
United States v. Williams, No. 08-0339/AF

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

will be credited with an additional eighty-six days of

confinement served.




                               17
United States v. Williams, No. 08-0339/AF


     STUCKY, Judge, with whom RYAN, Judge, joins (concurring in

part and dissenting in part):

     Despite protestations to the contrary, the majority has, in

effect, created an automatic right to Rule for Courts-Martial

(R.C.M.) 305(k) credit for even the slightest deviation from

regulatory compliance.   I believe this approach is as misguided

now as it was in United States v. Adcock, 65 M.J. 18, 26

(C.A.A.F. 2007) (Stucky, J., dissenting).   Therefore, while I

concur with the majority’s judgment that no additional

confinement credit is warranted under Article 13, Uniform Code

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

respectfully dissent from that portion of the judgment that

awards Appellant additional confinement credit.

     As I noted in Adcock:

          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 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.
United States v. Williams, No. 08-0339/AF


          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).

Id. at 27.

     Even if the majority’s interpretation of R.C.M. 305(k) were

correct, its resolution of the issue in this case provides

Appellant an unwarranted eighty-three-day windfall.   He has

already received credit due to his being continued on suicide

watch after August 26, 2004, the date Dr. Leckie first suggested

that continued formal suicide watch was no longer necessary,

while at the same time noting that Appellant remained at “mild

to moderate long-term risk for committing suicidal and homicidal

behaviors” which were “impossible to specify” further because of

his uncooperativeness.   The issue here is whether Appellant

should be afforded additional credit because he was not

evaluated by medical staff on a daily basis.

     This is not a case in which the Air Force abandoned a

prisoner to languish in his cell without medical support.

Appellant conceded that he was “evaluated about every other day

by medical personnel.”   Appellant’s voluminous medical records



                                 2
United States v. Williams, No. 08-0339/AF


in the record of trial attest to the medical staff’s attempts to

provide meaningful care to a totally uncooperative prisoner over

the entire period he was on suicide watch.   They visited him

every second or third day, asked how he felt, checked his vital

signs, and noted his condition.   He saw mental health

practitioners at least seven times in the eighty-six days at

issue.

     The majority implies that Dep’t of Air Force, Instr. 31-

205, The Air Force Corrections System para. 8.10 (Apr. 7, 2004),

requires mental health officials to visit Appellant daily and

note specifically and daily in the medical or confinement

records that suicide watch was still appropriate.   That is

simply not the case.   While the regulation may be read to

require daily visits either by a medical authority or someone

else who then reports his or her findings to the medical

authority for review, it does not require daily evaluations by

mental health practitioners or daily notations that suicide

watch is still appropriate.   In any event, the overall level of

medical attention and care surely did not mandate, as the

majority holds, that the military judge award Appellant any

additional confinement credit for the period he spent on suicide

watch up until August 26, 2004.

     The majority concludes that para. 8.10 was designed to

“ensure[] that individuals placed on ‘suicide watch’ will be


                                  3
United States v. Williams, No. 08-0339/AF


removed from the additional restrictive conditions as soon as

medically appropriate.”   If that is the purpose of para. 8.10,

then even under the majority’s interpretation of R.C.M. 305(k),

Appellant should only be entitled to three additional days of

credit -- the time between the last visit of a medical authority

who made no recommendation that the suicide watch should be

terminated (August 23, 2004), and August 26, 2004, when Dr.

Leckie made such a recommendation.

     This case presents an even weaker rationale for judicial

oversight than did Adcock.   The majority’s holding encourages

appellants to look for and litigate perceived infractions of

confinement regulations, no matter how de minimis they may be.

With today’s judgment, the concerns I expressed in Adcock have

been realized.   This Court has now established “itself as 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.”   65 M.J. at 29 (Stucky, J.,

dissenting).




                                 4
