ACMR 8801985 | U.S. Army Court of Military Review | Apr 14, 1989
OPINION OF THE COURT
The appellant, through counsel, asserts that United States v. New, 23 M.J. 889" court="None" date_filed="1987-03-17" href="https://app.midpage.ai/document/united-states-v-new-8647394?utm_source=webapp" opinion_id="8647394">23 M.J. 889 (A.C.M.R.1987), was wrongly decided and that he should have received eighty-seven days of Allen credit for the time he spent in pretrial confinement. See United States v. Allen, 17 M.J. 126" court="None" date_filed="1984-01-16" href="https://app.midpage.ai/document/united-states-v-allen-8645430?utm_source=webapp" opinion_id="8645430">17 M.J. 126 (C.M.A.1984) (day-for-day administrative credit for pretrial confinement). The military judge, apparently relying on the computation formula in New, determined the appellant should receive eighty-six rather than eighty-seven days of Allen credit. The New formula omits the first day and includes the last day in computing the length of pretrial confinement. This same formula is used to compute the government’s accountability for speedy trial purposes. See Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 707 [hereinafter M.C.M., 1984, and R.C.M., respectively].
We declined to follow the formula in New in United States v. DeLoatch, 25 M.J. 718" court="None" date_filed="1987-12-24" href="https://app.midpage.ai/document/united-states-v-deloatch-8647804?utm_source=webapp" opinion_id="8647804">25 M.J. 718, 719 n. 2 (A.C.M.R.1987), when counting days to determine whether there had been compliance with R.C.M. 305(i). Rule 305(i) requires pretrial confinement be reviewed within seven days of its imposition. In DeLoatch our computation started with the first day of pretrial confinement, and we found a violation of R.C.M. 305(i) because no review had been accomplished by the end of the seventh day. Contrary to the government’s position, the use of the DeLoatch formula for computing the hours and days during which certain R.C.M. 305 pretrial confinement procedures must occur is consistent with executive intent. See M.C.M., 1984, Analysis of R.C.M. 305(i), App. 21, A21-16 (seven-day period for review of pretrial confinement begins to run on the day the confinement is imposed). Also, contrary to the appellant’s position, New and DeLoatch do not create an ambiguity in computing administrative credit. The New formula applies except when calculating time to determine whether there was compliance with R.C.M. 305(f) (provision of military counsel), 305(h) (notification of and action by the commander), and 305(i) (review of pretrial confinement), in which case the DeLoatch formula should be used.
While this does not result in a uniform computation method for all pretrial confinement situations, neither does it result in one that is ambiguous. Day-for-day credit for pretrial confinement and restriction tantamount to confinement will continue to be computed by omitting the first but counting the last day of restraint. Compliance with time-sensitive provisions of R.C.M. 305 (that is, (f), (h), and (i)) will be determined by a formula that counts the first day of pretrial confinement or restriction tantamount to confinement. Rule 305(k) provides the remedy for noncompliance: an administrative credit computed at the rate of one day for each day of pretrial confinement served as a result of noncompliance.
Although not unsympathetic to the argument of appellate defense counsel that all pretrial confinement credit should be
The appellant personally raises the matter of sentence appropriateness. Pursuant to his negotiated pleas, he was found guilty, inter alia, of assaulting his wife with a .25 caliber pistol by shooting her in the left leg and of wrongfully using cocaine. The military judge sentenced the appellant to a bad-conduct discharge, four years of confinement, and reduction to Private El. The convening authority, consistent with the terms of the pretrial confinement, reduced the confinement to twenty-two months and approved the sentence. Based on a careful review of the entire record, we find the approved sentence to be both legal and appropriate.
The findings of guilty and the sentence are affirmed.