UNITED STATES, Appellant

                                           V.

                      David D. RENDON, Seaman (E-3)
                        U.S. Coast Guard, Appellee


                                  No. 03-5001/CG


                              Crim. App. No. 1168



       United States Court of Appeals for the Armed Forces

                            Argued March 11, 2003

                             Decided May 14, 2003

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

                                       Counsel
For Appellant: Lieutenant Daniel J. Goettle (argued).
For Appellee: Commander Jeffrey C. Good (argued).

Military Judge:      Mathew J. Glomb




        THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Rendon, No. 03-5001/CG


      Judge ERDMANN delivered the opinion of the Court.

      Appellee, Seaman (E-3) David D. Rendon, was tried by special

court-martial at the United States Coast Guard Training Center,

Yorktown, Virginia.      Pursuant to his pleas he was convicted of

attempting to distribute lysergic acid diethylamide (LSD),

attempting to use LSD, distribution of Ecstasy, five

specifications of using Ecstasy, two specifications of using LSD,

and possessing Ecstasy, in violation of Articles 80 and 112a,

Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C.

880 and 912a (2000), respectively.

      Appellee was sentenced by a military judge to a bad-conduct

discharge, confinement for 60 days, forfeiture of “one-half pay

for six months,” and reduction to E-1.1     The promulgating order

erroneously reported the adjudged sentence as a bad-conduct

discharge, confinement for 60 days, “forfeiture of $521 pay per

month for six months,” and reduction to E-1.      Without clarifying

this discrepancy between the actual adjudged sentence and the

incorrect version reflected on the promulgating order, the

convening authority purported to approve the sentence as
adjudged.

      The Coast Guard Court of Criminal Appeals corrected any

error or confusion with respect to the forfeitures by affirming

only so much of the sentence as provided for a bad-conduct

discharge, confinement for 60 days, forfeiture of $521.00, and



1
  The military judge erred in announcing the sentence. Rule for
Courts-Martial 1003(b)(2) requires that, unless total forfeiture
is adjudged, the amount of forfeitures adjudged be stated in
exact dollars.


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reduction to E-1.     United States v. Rendon, 

, 797

(C.G. Ct. Crim. App. 2002).

      On December 26, 2002, the General Counsel of the Department

of Transportation certified the following issue pursuant to

Article 67(a)(2), UCMJ, 10 U.S.C. 867(a)(2) (2000):

            DID THE COAST GUARD COURT OF CRIMINAL APPEALS
            ERR WHEN IT SUA SPONTE HELD THAT THE MILITARY
            JUDGE SHOULD HAVE GRANTED – IN ADDITION TO
            THE MASON CREDIT AWARDED AT TRIAL – R.C.M.
            305(k) CREDIT BASED ON A VIOLATION OF R.C.M.
            305(i) FOR A PERIOD OF PRETRIAL RESTRICTION
            TANTAMOUNT TO CONFINEMENT?

      We hold that the Coast Guard Court of Criminal Appeals erred

by awarding confinement credit for a violation of Rule for

Courts-Martial 305(i) [hereinafter R.C.M.] where Appellee’s

restriction tantamount to confinement did not involve physical

restraint, the essential characteristic of confinement.



                                    FACTS

      Appellee made a motion for appropriate relief requesting

that the military judge award him “administrative credit” on

three grounds.     First, Appellee contended that his restriction

was tantamount to confinement and that he should be given credit

pursuant to United States v. Mason, 

(C.M.A. 1985).
Second, Appellee contended that because the terms and conditions

of his restriction were tantamount to confinement, he was

entitled to credit under R.C.M. 305(k) for the Government’s

failure to follow the procedures set forth in R.C.M. 305 for

reviewing pretrial confinement.           See United States v. Gregory, 

(A.C.M.R.), aff’d, 

(C.M.A. 1986)(summary

disposition).     Finally, Appellee argued in the alternative that


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United States v. Rendon, No. 03-5001/CG


his restriction was pretrial punishment and he should receive

appropriate credit.      Article 13, UCMJ, 10 U.S.C. § 813 (2000).

      Appellee was given a written order of restriction on July

24, 2001.    The letter restricted Appellee to “Training Center

Yorktown.”    It also prohibited Appellee from engaging in certain

activities, barred him from certain facilities, and imposed

restrictions upon Appellee’s movements in addition to the

geographic limits of Training Center Yorktown.         Appellee

testified on the motion for appropriate relief, providing some

additional description of the terms and conditions of his

restriction.

      The military judge considered the written order and

Appellee’s testimony in adjudicating the motion for appropriate

relief.    The military judge held that the period of time between

July 24 and August 31, 2001, constituted restriction tantamount

to confinement.     The military judge found that the conditions

rising to the level of restriction tantamount to confinement

consisted of those listed in the letter of restriction and others

revealed in Appellee’s testimony.         Those conditions were as

follows:

      1.    Appellee was restricted to Training Center Yorktown.

      2.    Appellee was permitted to eat at the Coast Guard Dining

            Facility during regular meal hours.

      3.    Appellee was prohibited from wearing civilian clothing

            other than gym attire while at the gym.       His civilian

            clothing was temporarily taken from him.

      4.    Appellee was required to move from his room to a

            restriction room where he enjoyed less privacy.


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United States v. Rendon, No. 03-5001/CG


            Appellee was not, however, physically limited to only

            the barracks or the “restriction room.”

      5.    Appellee was permitted visitors only with prior

            approval.

      6.    Appellee could not consume alcohol.

      7.    Appellee had reporting requirements after duty hours

            and on weekends.

      8.    After 2200 hours, Appellee could not leave his room

            unless there was an emergency.

      9.    Appellee was required to get permission to go to sick

            call.

      10.   Appellee could not utilize the Mariner’s Mart, Liberty

            Lounge, or the Cyber Café.

      11.   Personal property that Appellee brought to the

            “restriction room” was inspected, including his

            purchases from the Exchange.

      12.   Appellee’s telephone and pager were taken from him and

            he was specifically prohibited from using them.

      13.   Appellee was told that he could not use Moral, Welfare,

            and Recreation facilities.

      14.   Appellee was not required to be accompanied by an

            escort when he left the barracks.


Despite finding that the restriction was tantamount to

confinement, the military judge noted that it was a “close call”

and that Appellee “was not fenced in and limited only to a

barracks.”




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United States v. Rendon, No. 03-5001/CG


      On the other hand, the military judge declined to give

Appellee any additional credit for violation of R.C.M. 305.      In

that regard, the military judge stated:

            However, I do agree with the Government’s
            argument, as opposed to what’s in their
            brief, that it asks a lot of the command to
            look far ahead into the future, guess what
            the judge is going to find and then award
            review. I don’t think it is reasonable for a
            command to conclude that their actions are
            reasonable and not amounting to tantamount to
            confinement conditions, and yet turn around
            and order review as you would for someone
            confined who was a prisoner.

The military judge added, “It is a very close call, and for that

reason I think that the Government was not unreasonable in not

ordering review.”     The only credit given by the military judge

was a credit for restriction tantamount to confinement pursuant

to Mason.
      On appeal to the United States Coast Guard Court of Criminal

Appeals pursuant to Article 66, UCMJ, 10 U.S.C. § 866 (2000),

Appellee did not challenge the military judge’s ruling concerning

the R.C.M. 305(k) credit.       Nonetheless, the Coast Guard court sua

sponte found that the military judge erred by not granting the
requested credit.     The Coast Guard court referenced our decision

in United States v. Chapa, 

(C.A.A.F. 2002), which

held that the issue of R.C.M. 305(k) credit is waived when an

accused fails to assert any violation of R.C.M. 305 at trial, and

noted that we “did not express any reservations about the

continuing validity of United States v. Gregory, . . .      which

held that RCM 305 applies to restriction tantamount to

confinement.”     

.




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United States v. Rendon, No. 03-5001/CG


      The Coast Guard court determined that Gregory “remains good

law,” although it noted that in Chapa, Senior Judge Sullivan and

Judge Baker questioned whether R.C.M. 305 applied to restriction

tantamount to confinement.       

  The lower court also

expressed concern that restriction as a form of pretrial

restraint could be subject to abuse if R.C.M. 305 did not apply

“where restriction is truly tantamount to confinement.”        

Coast Guard court found that the military judge

erred when he declined to award Appellee additional credit for a

violation of R.C.M. 305.       The lower court afforded Appellee

relief in the form of an additional 33 days of R.C.M. 305(k)

credit.   

Government argues that our decision should be guided by

United States v. Perez, 

(C.A.A.F. 1996).        According

to the Government, there is a continuum of restraint and until

restriction tantamount to confinement becomes “exactly like”

pretrial confinement, it remains restriction and is not
encompassed by the procedural or credit rules under R.C.M. 305.

Appellee, on the other hand, argues that an accused’s Fourth

Amendment interests are the same for restriction tantamount to

confinement and pretrial confinement.         Therefore Appellee argues

that R.C.M. 305 should be triggered because the absence of

procedural safeguards in both instances is unreasonable.        We do

not believe that the      application of a label such as “restriction

tantamount to confinement” nor an analysis of varying factors

along a continuum reflect a correct application of R.C.M. 305.


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United States v. Rendon, No. 03-5001/CG


      We review de novo whether Appellee is entitled to a pretrial

confinement credit.      United States v. Smith, 

(C.A.A.F. 2002).     The interpretation of a provision of the Manual
for Courts-Martial is a matter of law also to be reviewed de

novo.   See United States v. Tardif, 

(C.A.A.F. 2002);

Manual for Courts-Martial, United States (2002 ed.)[hereinafter

MCM].   To interpret R.C.M. 305 and particularly whether R.C.M.

305(k) applies to restriction tantamount to confinement, we look

at “the plain language of the [MCM] and construe its provisions
in terms of its object and policy, as well as the provisions of

any related [rules], in order to ascertain the intent of [the

President]; if the [MCM] is unclear, we look next to the

[drafters’ analysis].”      United States v. Falk, 

, 390

(C.A.A.F. 1999).     See also United States v. Phanphil, 

(C.A.A.F. 2002).

      On its face, R.C.M. 305 applies to “pretrial confinement.”

R.C.M. 305(b) directs that an accused may only be “confined if

the requirements of this rule are met.”      Conspicuously absent

from R.C.M. 305(b), or anywhere else in the R.C.M. 305 is any
reference to applying the procedural or credit provisions of the

rule to any other form of pretrial restraint.      R.C.M. 305(k), the

credit provision upon which Appellee relies, is limited by

unambiguous language to “confinement served” after noncompliance

with R.C.M. 305(f), (h), (i), or (j).      There is no support in

R.C.M. 305 for applying R.C.M. 305(k) to any lesser form of

restraint.

      Further, the nature of pretrial confinement or “confinement

served” encompassed by the R.C.M. 305 is clear:      “[p]retrial


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United States v. Rendon, No. 03-5001/CG


confinement is physical restraint, . . . , depriving a person of

freedom pending disposition of offenses.”        R.C.M. 304(a)(4).    See

R.C.M. 305(a).     See also MCM Part IV, para. 19.(c).(5)(a).        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.    Our conclusion is buttressed by the fact that the

President has not seen fit to expand the coverage of R.C.M. 305

despite the many years that restriction tantamount to confinement

has required a day-for-day credit under Mason.

      It follows then that restriction tantamount to confinement

does not, per se, trigger, justify or require application of

R.C.M. 305.    The rule is applicable to restriction tantamount to

confinement only when the conditions or circumstances attendant

to that restriction meet the definitional requirements for

“confinement.”     In other words, the conditions or terms of the

restriction must constitute physical restraint depriving an

accused of his or her freedom.        Anything less is outside the

scope of R.C.M. 305.
      Appellee urges that an accused servicemember’s discipline

and training create a moral restraint attendant to restriction

tantamount to confinement, and that a stricter application of the

Fourth Amendment and R.C.M. 305 is warranted because of this

moral restraint.     Although there are unique moral and

disciplinary considerations present in the military, we reject

the notion that those considerations require a unique application

of the Fourth Amendment or R.C.M. 305 to restriction tantamount

to confinement.


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United States v. Rendon, No. 03-5001/CG


      In United States v. Rexroat, 

(C.M.A. 1993), we

examined Fourth Amendment considerations involving arrest and

pretrial detention in the civilian community, and the application

of Gerstein v. Pugh, 

(1975), and County of Riverside

v. McLaughlin, 

(1991), to apprehension, custody, and

pretrial confinement in the military.      

-

96.   We noted that the factual similarity warranting application

of Gerstein and McLaughlin was physical restraint:
                 Transposing Gerstein and McLaughlin to
            military practice requires some discussion of
            terminology. Gerstein and McLaughlin both
            involved arrests by civilian police and
            pretrial detention in a jail house. PFC
            Rexroat was apprehended and held in custody
            until his commander could be notified and
            could determine whether to place him in
            pretrial confinement. Both “apprehension”
            and “custody” are terms of art in military
            law. See RCM 302(a)(1) (“Apprehension is the
            taking of a person into custody.”).
            “Custody” may include physical restraint,
            albeit temporary. See United States v.
            Ellsey, 16 USCMA 455, 458-59, 37 CMR 75, 78-
            79 (1966). “All commissioned, warrant,
            petty, and noncommissioned officers” may take
            a person into custody pursuant to RCM
            302(b)(2); but only a commissioned officer
            may order an enlisted person into pretrial
            restraint and only a commanding officer may
            order a civilian or officer into pretrial
            restraint. RCM 304(b). Pretrial confinement
            is a form of pretrial restraint. RCM
            304(a)(4). Thus, when Major Williams ordered
            PFC Rexroat into pretrial confinement, he was
            actually continuing the physical restraint of
            PFC Rexroat in the Navy brig.

   Military apprehension, custody, and pretrial

confinement involve physical restraint.     Absent some “military

necessity . . . requir[ing] a different rule,” Fourth Amendment

considerations apply to these forms of restraint.     See Courtney

v. Williams, 

, 270 (C.M.A. 1976).     However, we find no



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United States v. Rendon, No. 03-5001/CG


basis upon which to extend the Fourth Amendment and other

procedural protections embodied in R.C.M. 305 to pretrial

restraint, including restriction tantamount to confinement, that

do not include physical restraint.

      We note that we have summarily affirmed application of

R.C.M. 305 to restriction tantamount to confinement without

specifically finding physical restraint.         

(“it appears that the Court of Military Review correctly

concluded that restriction tantamount to confinement is a form of

confinement to which R.C.M. 305 . . . applies.”).         See also
United States v. King, 

, 115 n.4 (C.A.A.F. 2003).           Cf.

United States v. 

(suggesting that there may

be “cases where the conditions of restriction are exactly like

confinement” and that the requirement for a probable cause

hearing under R.C.M. 305 may apply).         To the extent that these

decisions, or any others of this Court, suggest that R.C.M. 305

is per se applicable to restriction tantamount to confinement,

that suggestion is beyond the clear language of the rule.         We now

clarify that R.C.M. 305 applies to restriction tantamount to
confinement only when the conditions and constraints of that

restriction constitute physical restraint, the essential

characteristic of confinement.

      In this case, Appellee was not physically restrained.          He

was geographically limited to Training Center Yorktown.         He could

go to the gym each workday morning, to the Exchange at lunch on

Tuesdays, and to the mess hall for meals.         No escort was required

when he went to these facilities.          He had access to the lobby

and smoking area of the barracks.          He performed the same duties


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United States v. Rendon, No. 03-5001/CG


at a warehouse that he had been performing prior to the

imposition of restriction, and he was not assigned any extra

duties or hard labor.      While Appellee was geographically

restricted and faced the moral restraints attendant to the

limitations imposed upon him, it is clear that he was not

physically restrained.



                                  DECISION

      The certified issue is answered in the affirmative.

Accordingly, it is ordered and adjudged that the decision of the

United States Coast Guard Court of Criminal Appeals is set aside.

The record of trial is returned to the Judge Advocate General of

the Coast Guard for remand to the Court of Criminal Appeals for

further review.2




2
  Pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-
296, § 1704(b)(2), 116 Stat. 2135 (2002)(codified as 6 U.S.C.
101-557 (2002)), Article 1(1) Uniform Code of Military Justice,
10 U.S.C. § 801(1) (2000), was amended by replacing “the General
Counsel of the Department of Transportation” with “an official
designated to serve as the Judge Advocate General of the Coast
Guard by the Secretary of Homeland Security.”


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