                        UNITED STATES, Appellee

                                     v.

                        Gordon L. SMITH, Airman
                       U.S. Air Force, Appellant


                               No. 01-0492


                         Crim. App. No. S29720



       United States Court of Appeals for the Armed Forces

                        Argued October 25, 2001

                        Decided February 8, 2002

    GIEKRE, J., delivered the opinion of the Court, in which
           CRAWFORD, C.J., EFFRON and BAKER, JJ., and
                     SULLIVAN, S.J., joined.

                                  Counsel
For Appellant: Major Jeffrey A. Vires (argued); Lieutenant
   Colonel Beverly B. Knott, Lieutenant Colonel Timothy W.
   Murphy, and Lieutenant Colonel Gilbert J. Andia, Jr. (on
   brief); Colonel James R. Wise.
For Appellee: Lieutenant Colonel Karen L. Manos (argued);
   Colonel Anthony P. Dattilo and Major Lance B. Sigmon (on
   brief); Major Bryan T. Wheeler.

Military Judge:    J. Jeremiah Mahoney

  This opinion is subject to editorial correction before final publication.
United States v. Smith, No. 01-0492/AF


      Judge GIERKE delivered the opinion of the Court.

      A special court-martial convicted appellant, pursuant to his

pleas, of two one-day unauthorized absences terminated by

apprehension, dereliction of duty, three specifications of

larceny, and two specifications of forgery, in violation of

Articles 86, 92, 121, and 123, Uniform Code of Military Justice

(UCMJ), 10 USC §§ 886, 892, 921, and 923, respectively.      The

court-martial, composed of officer members, sentenced him to a

bad-conduct discharge, three months of hard labor without

confinement, forfeiture of $639.00 pay per month for six months,

and reduction to the lowest enlisted grade.      The convening

authority disapproved the hard labor without confinement,

directed that appellant receive credit for illegal pretrial

punishment in the form of a $160.00 credit against the first

month’s forfeiture of pay, and approved the remainder of the

adjudged sentence.      The Court of Criminal Appeals affirmed the

findings and sentence.      54 MJ 783 (2001).

      This Court granted review of the following issue:

      WHETHER APPELLANT RECEIVED SUPPLEMENTAL CREDIT AGAINST HIS
      ADJUDGED SENTENCE FOR THE NINETY-FOUR DAYS SPENT IN PRETRIAL
      CONFINEMENT.

For the reasons that follow, we affirm.

                            Factual Background

      Prior to trial, appellant was restricted for five days under

conditions that the military judge found to be tantamount to

confinement.    The military judge ordered that appellant be given

credit for five days of pretrial confinement, in addition to any

other credit to which he might be entitled.      See United States v.

Mason, 19 MJ 274 (CMA 1985)(summary disposition) (appellant


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United States v. Smith, No. 01-0492/AF


awarded pretrial confinement credit for “pretrial restriction

equivalent to confinement”).

      Appellant also spent ninety-four days in pretrial

confinement.    The military judge instructed the members that “the

length of pretrial restraint. . . [is] an appropriate factor to

consider in determining a sentence.”         He also advised them that

“the accused will be automatically credited on a day-for-day

basis with pretrial confinement served against any sentence to

confinement adjudged by this court.”         The members imposed no

confinement.

      In his posttrial recommendation, the staff judge advocate

(SJA) informed the convening authority that appellant would not

receive any credit for pretrial confinement because he was not

sentenced to confinement.       The SJA also recommended that the

convening authority disapprove the hard labor without

confinement, because both the SJA and the unit commander believed

“it would be more beneficial to put the Accused in excess leave

status as soon as possible instead of burdening his squadron with

the task of implementing and supervising this part of the

Accused’s sentence[.]"

      In response, appellant’s defense counsel argued that

crediting the pretrial confinement against the adjudged hard

labor without confinement was inadequate compensation.         See RCM
1003(b)(6), Manual for Courts-Martial, United States (2000 ed.)

(equating one day of confinement to one-and-a-half days of hard




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United States v. Smith, No. 01-0492/AF


labor without confinement).• Defense counsel asked the convening

authority to disapprove the bad-conduct discharge to adequately

compensate appellant for his time in pretrial confinement.

      The convening authority disapproved the hard labor without

confinement, as recommended by the SJA, and also ordered that

appellant be credited with $160.00 against the first month’s

forfeiture of pay as credit for the five days of illegal pretrial

restraint.

                                 Discussion

      Appellant has not challenged the adequacy of the convening

authority’s remedy for the five days of restriction tantamount to

confinement.    He received credit equivalent to five days’ total

forfeitures, in accordance with the conversion formula in RCM

305(k).

      Appellant contends, however, that he is entitled to

additional credit for his ninety-four days in pretrial

confinement as a matter of constitutional law under the Eighth

Amendment and as a matter of statutory law under Article 55,

UCMJ, 10 USC § 855.      Because he was not sentenced to confinement,

he invites this Court to look to RCM 305(k) for guidance in

awarding credit against other adjudged punishments.     While he

does not specifically assert that RCM 305 was violated, he argues

that ninety-four days of pretrial confinement without




•
 This Manual provision was designated RCM 1003(b)(7) at the time
of appellant’s court-martial but was otherwise identical to the
current version. All other Manual provisions cited herein are
identical to the ones in effect at the time of appellant’s court-
martial.


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United States v. Smith, No. 01-0492/AF


compensation violates Article 55 and the Eighth Amendment and

should, therefore, be treated like illegal pretrial confinement.

      The Government argues that appellant is not entitled as a

matter of law to any credit, because he was not sentenced to

confinement.    The Government disputes appellant’s claim that

lawful pretrial confinement violates Article 55 or the Eighth

Amendment.

      This Court reviews de novo the question whether an appellant

is entitled to pretrial confinement credit.              See United States v.
Ballesteros, 29 MJ 14 (CMA 1989); United States v. Allen, 17 MJ

126 (CMA 1984).     This Court also reviews de novo the question

whether an appellant has been punished in violation of Article 55

or the Eighth Amendment.       United States v. White, 54 MJ 469, 471

(2001).

      We hold that appellant’s lawful pretrial confinement did not

violate Article 55 or the Eighth Amendment.              Generally, this

Court looks to federal case law interpreting the Eighth Amendment

to decide claims of an Article 55 violation.              See United States

v. Avila, 53 MJ 99, 101 (2000).              Thus, we have considered
appellant’s claims of an Eighth Amendment violation and Article

55 violation together.

      Pretrial confinement, imposed and administered in a lawful

manner, is not per se cruel or unusual.              See Avila, supra at 101-

02 (pretrial confinement, even in solitary confinement, not per

se cruel or unusual).      Appellant has pointed to no evidence that

he was treated in a cruel or unusual manner while in pretrial

confinement, and we find no such evidence in the record.




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United States v. Smith, No. 01-0492/AF


      Although appellant asserts that failure to give credit for

lawful pretrial confinement violates Article 55 and the Eighth

Amendment, he has cited no authority for that proposition, and we

have found none.     His assertion is contrary to federal decisions

holding that no constitutional violation arises from failure to

give credit for pretrial detention unless there is a violation of

the Equal Protection Clause of the Fifth Amendment.             See Palmer

v. Dugger, 833 F.2d 253, 256 (11th Cir. 1987); Johnson v. Smith,

696 F.2d 1334, 1340 (11th Cir. 1983).            In civilian cases, credit

for lawful pretrial detention is regarded as a matter “of

legislative grace and not a constitutional guarantee.”             Lewis v.
Cardwell, 609 F.2d 926, 928 (9th Cir. 1979).

      Having concluded that the Eighth Amendment and Article 55 do

not entitle appellant to credit, we turn next to the question

whether appellant has any other statutory or regulatory right to

credit.   There is no provision in the UCMJ or the Manual for

Courts-Martial that requires credit against an adjudged sentence

for lawful pretrial confinement.             By its terms, RCM 305(k)

applies only to illegal pretrial confinement; it provides no
legal entitlement to credit for lawfully imposed pretrial

confinement.

      Non-military federal prisoners are entitled under 18 USC

§ 3585(b) to “credit toward the service of a term of imprisonment

for any time [they] spent in official detention prior to the date

the sentence commences[.]”       However, non-military federal

prisoners do not receive credit for pretrial confinement unless

their sentences include confinement in a correctional or penal

facility under the jurisdiction of the Bureau of Prisons (BOP).


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United States v. Smith, No. 01-0492/AF


See Reno v. Koray, 515 U.S. 50, 62-63 (1995) (statute applies

only to persons detained in a BOP penal or correctional facility

and sentenced to confinement in a BOP penal or correctional

facility); United States v. Dowling, 962 F.2d 390, 391 (5th Cir.

1992) (credit for pretrial detention cannot be applied to

“confinement” in halfway house imposed as condition of

probation); Palmer v. Dugger, supra at 255 (no entitlement to

credit for pretrial detention if acquitted of offense for which

pretrial detention was imposed).

      In Allen, this Court noted that 18 USC § 3568, the
predecessor to 18 USC § 3585(b), specifically exempted court-

martial sentences.      17 MJ at 127.        This Court concluded, however,

that the Secretary of Defense had voluntarily adopted the

pretrial confinement credit provisions of 18 USC § 3568 by

promulgating Department of Defense Instruction (DODI) 1325.4

(Oct. 7, 1968), which required that the procedures for computing

military sentences “will be in conformity with those published by

the Department of Justice, which govern . . . federal prisoners

and military prisoners[.]”       Id. at 128.      This directive was later
revised and reissued as DODI 1325.7 (July 17, 2001), without

significant change to the provision at issue in this case.

      As written, 18 USC § 3585(b) and DODI 1325.7 apply only to

prisoners serving sentences to confinement.           We decline to accept

appellant’s invitation to extend the Secretary of Defense’s

application of 18 USC § 3585(b) beyond its terms.           Likewise, we

decline to extend RCM 305(k) beyond its terms.           Congress has not

acted to require credit for lawful pretrial confinement, nor has

it constrained the authority of the President or the Secretary of


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United States v. Smith, No. 01-0492/AF


Defense to grant credit.       Thus, the decision whether to extend

DODI 1325.7 or RCM 305 to give pretrial confinement credit to

persons not sentenced to confinement is a matter of Executive

prerogative.    To date, neither the President nor the Secretary of

Defense has exercised that prerogative.       Accordingly, we hold

that there is no legal requirement that appellant be given credit

for his pretrial confinement.

                                  Decision

      The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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