Title: Ruling: Art 13, UCMJ, 7 Jan 13

Release Date: 2014-03-20

Text: IN THE UNITED STATES ARMYFIRST JUDICIAL CIRCUITUNITED STATESRULHVG:v. ARTICLE 13, UCMJMANNING, Bradley E., PFCU.S. Army, Headquarters and Headquarters Company, U.S.Army Garrison, Joint Base Myer-Henderson Hall,Fort Myer, VA 22211DATED: 7 January 2013On 27 July 2012, the Defense ?led a Motion to Dismiss for Unlawful Pretrial Punishment inviolation of Article 13, UCMJ, and the Fifth and Eighth Amendments to the U.S. Constitution.Alternatively, the Defense motion requests l0 for 1 sentencing credit from 27 August 2010 20 April20] 1. On 17 August 2012, the Government ?led a response to the Motion opposing dismissal andsentencing credit except for 7 days for the periods of 6-1 1 August 2012 and 19-20 January 2012 wherethe Marine Corps Brig Quantico (MCBQ) Brig Officer (Brig O) maintained the accused in suicide risk(SR) status after a medical of?cer opined he was no longer considered to be a suicide risk, in violation ofSecretary of the Navy Instruction (SECNAVINST) l640.9C, Enclosure 1, paragraph Supplementalbriefs were ?led by the Defense on 24 August 2012 and by the Government on 7 September 2012. TheCourt also ordered the Government to prpduce to the Defense approximately 1400 emails exchangedamong MCBQ command and staff and higher headquarters during the period of the accused?scon?nement at MCBQ. On 26 November - 2 December, 5-7 December, and 10-11 December 2012, theparties presented testimony, evidence, and argument regarding this motion. Having received the briefs,heard the witnesses, and examined the emails and physical evidence presented by the parties, the Court?nds and rules as follows:FINDINGS OF FACT.Governing Regulations and Relevant Provisions.SECRETARY of the Navy Instruction SECNAVIST l640.9C (3 January 2006).SECNAVINST l640.9C (3 January 2006) governed corrections policy for the Navy and the MarineCorps during the period of the accused?s con?nement as a pretrial detainee at MCBQ from 29 July 2010 20 April 2011. Relevant portions of the SECNAVINST to this case are found in Enclosure (1), Chapter 4and are summarized below. The SECNAVINST governs corrections policy for both post-trial prisonersand pretrial detainees. As such, some of the provisions must be read to apply primarily to post-trialprisoners. The term ?prisoners? includes both pre-trial detainees and post-trial prisoners.1. Custody Classi?cation Guidance. The purpose of custody classification is to establish the degree ofsupervision needed for control of individual prisoners. Custody classi?cation provides guidance forsupervision of prisoners and permits establishment of security measures consistent with requirements ofthe individual. The SECNAV INST recognizes that there are wide variations in personality and mentalityamong prisoners. Where there is fair and impartial treatment, prisoners generally present no seriousdisciplinary problems. Some prisoners are deliberately uncooperative; some have personality difficultieswhich make them chronic sources of trouble, such as the highly aggressive person or those acutelydepressed. Efforts must be made to identify all special cases, and control measures instituted to ensureI ?g the safety and orderly administration of the con?nement facility. An objective custody classi?cationprocess which addresses the characteristics of the prisoners shall be used per reference theCorrectional Management Information System (CORMIS) electronic equivalent is also authorized.2. Pretrial Detainee Custody Classi?cation. Pretrial detainees receive custody classi?cation as eitherMaximum Security (MAX) or Medium In (MDI).a. Maximum Custody (MAX) is appropriate for detainees who require special custodialsupervision because of the high probability of escape, [who] are potentially dangerous or violent, andwhose escape would cause concern of a threat to life, property, or national security. Ordinarily, only asmall percentage of prisoners shall be classi?ed as MAX. The following procedures apply to prisonersclassi?ed as MAX custody.(1) Supervision must be immediate and continuous. A Department of Defense Form(DD) 509, Inspection Record of Prisoner in Segregation, shall be posted by the cell door and appropriateentries made at least every 15 minutes.(2) They shall not be assigned to work details outside the cell.(3) They shall be assigned to the most secure quarters.(4) MAX prisoners shall wear restraints at all times when outside the maximum-securityarea and be escorted by at least two escorts.(5) On a case-by-case-basis, the brig of?cer in charge may authorize additional restraintfor movement of MAX prisoners.b. Medium In (MDI) is appropriate for detainees who present security risks not warrantingMAX. They are not regarded as dangerous or violent. The following procedures apply to prisonersclassi?ed as MDI custody.Supervision shall be continuous within the security perimeter and immediate andcontinuous when outside the security perimeter of the con?nement facility.(2) They shall not be assigned to work outside the security perimeter.(3) They shall wear restraints outside the security perimeter unless the Brig directsotherwise.(4) They may be assigned dormitory quarters.c. Differences between MAX and MDI Custody at MCBQ IAW SECNAVINST l640.9C.At MCBQ, all detainees regardless of custody level live in individual cells in Special Quarters 1. MAX detainees may not work outside the cell, MDI may. MAX detainees wear restraints at all times whenoutside the maximum security area and must be escorted by at least two escorts. MDI detainees wearrestraints outside the security perimeter unless the Brig directs otherwise. Two or more staff membersmust be present when MAX detainee is out of his cell. MAX detainees must be checked every 15minutes with entries posted on a DD 509, Inspection Record of Prisoner in Segregation.Classi?cation Criteria. Custody classi?cation shall be based on amount of supervision andrestraint each prisoner requires. All new prisoners except those speci?cally deemed to be seriousmanagement problems (MAX), shall be assigned a MDI custody classi?cation during the reception phase.Ultra-conservative custody classi?cation results in a waste of prisoner and staff manpower. Prisonersshall be placed in the lowest custody classi?cation as soon as possible.(1) Non-all inclusive factors considered in assessing higher custody classi?cations(MAX or MDI): (1) assaultive behavior; (2) disruptive behavior; (3) serious drug abuse; (4) seriouscivil/military criminal record (convicted or alleged); (5) low tolerance of frustration; intensive acting outor dislike of the military; history of previous escape(s); (6) pending civil charges/detainer ?led; (7) poorhome conditions or family relationships; (8) mental evaluation indicating serious neurosis or (9) indication of unwillingness to accept responsibility for personal actions past or present; demonstratedpattern of poor judgment; (10) length, or potential length, of sentence.(2) Non-all inclusive factors indicating lower custody classi?cations (MDO, MIN, or IC):(1) clear military record, aside from present offense; (2) close family ties, good home conditions; (3)offense charged is not serious; (4) apparently stable mental condition (responsible for own actions); (5)indications the individual wishes to return to duty; (6) comparatively short sentence to con?nement,. however length of sentence shall not be an overriding factor; (7) behavior during a previous con?nement;(8) completion of, or active participation in, treatment programs or groups.(3) The above factors are indicators, not ironclad rules. The Brig 0 shall considerobjective based overrides where applicable. An evaluation of all phases of the prisoner?s performanceshall be made prior to each custody change. The Court notes the SECNAVINST refers to factorsconsidered in higher v. lower custody classi?cation. Pretrial detainees are not eligible for Medium Out(MDO), Minimum Custody (MIN) or IC. MCBQ considered lower custody classi?cation levels todetermine whether MDI rather than MAX custody was appropriate. Per the SECNAVINST, each staffmember has responsibility for passing infonnation concerning prisoners to the proper authority in thecon?nement facility. What seems to be a bit of trivial information may prove to be signi?cant whencoupled with other information on hand. Behavior and attitude of the prisoner in the berthing area, atwork, in recreation, and in a classroom provide a good overall indicator of problem areas and adjustmentprogress. Continuous staff evaluation of each prisoner cannot be overemphasized.3. Special Quarters (SQ). SQ is a group of cells used to house prisoners who have serious adjustmentproblems, create anxiety or disruption among other prisoners in the general population, or who needprotection from other prisoners. SQ is a preventive management tool, not to be used as punishment,except when the procedures for disciplinary segregation are followed. The SECNAVINST recognizesthat some prisoners require additional supervision and attention due to personality disorders, behaviorabnormalities, risk of suicide or violence, or other character traits. If required to preserve order, the Brigor, in his/her absence, the Brig Duty Of?cers (BDO) or Duty Brig Supervisors (DB S) may authorizespecial quarters for such prisoners for the purpose of control, prevention of injury to themselves or others,and the orderly and safe administration of the con?nement facility. A hearing to determine the need forcontinued administrative segregation of the prisoner shall be conducted. This hearing may be by boardaction or by member of the con?nement facility appointed in writing by the brig of?cer and a writtenrecommendation to the Brig 0 will be provided within 72 hour of the prisoner?s entry into segregation.All detainees in SQ shall be under continual supervision, sighted at least once every 15 minutes by a staffmember, visited daily by a member of the medial department and the Brig with daily visits by achaplain encouraged. As with MAX custody detainees, DD 509 (Inspection Record of Prisoner inSegregation), shall be used to document visits. Prisoners assigned to SQ shall not have nonnal privilegesrestricted unless privileges must be withheld for reasons of security or prisoner safety suicide risk).For each 30 days a prisoner is retained in SQ, the board shall review and provide a recommendationto the Brig 0, who will determine and certify the requirement for continuation in SQ. A segregatedprisoner shall be released to regular quarters as soon as the need for special segregation is passed.a. Status. Although the SECNAVIST does not use the word ?status?, Navy and MC correctionsstaff routinely used the word ?status? to de?ne whether a detainee is within the general population, inadministrative segregation (AS), or in disciplinary segregation (DS).b. AS. The SECNAVINST de?nes AS to be the involuntary or voluntary separation for speci?ccause, of select prisoners from the general prison population to SQ for purposes of control, preservingorder, prevention of injury to themselves or others, and for the orderly and safe administration of thecon?nement facility. AS must be authorized by the Brig or in his/her absence, DBO or DBS.c. Suicide Risk (SR) and Prevention of Injury (POI) as AS. Both SR and POI aresubcategories of AS. POI includes prevention of injury to the prisoner and to staff. The decision to retaina prisoner on POI rests with the Brig O. The SECNAVINST provides that for behavior and custodyproblems, on rare occasions, it may be necessary to con?ne violent prisoners in cells without furnishingsto prevent them from injuring themselves or others. Such a measure shall be used only upon the speci?cdirection of the Brig O. A segregated prisoner shall be released to regular quarters as soon as the need forspecial segregation is passed. There is no additional guidance or criteria in the SECNAVINST for POIbeyond that of AS nor is there a speci?c requirement for mental health provider input, however, theSECNAVINST encourages medical of?cer participation in the board where practicable. For SR,the SECNAVINST states in relevant part that prisoners who have threatened suicide or have made asuicidal gesture but are found ?t for con?nement and prisoners with a history of suicide attempts or whoare considered suicidal may be placed in SQ under continuous observation while in the category of SR.Such prisoners shall be immediately referred to the medical department/clinical servicesl mental healthdepartment for ?irther evaluation and appropriate action. The Brig 0 may direct removal of theprisoner?s clothing when deemed necessary. SR prisoners shall be physically checked every 5 minutesand annotated on the DD 509. They shall not be permitted to retain implements with which they couldharm themselves. When prisoners are no longer considered to be SR by the medical of?cer, they shall bereturned to appropriate quarters. Thus, unlike POI where authority to continue the status vests in the BrigO, the SECNAVINST gives the medical officer authority to detennine whether and when to remove aprisoner from SR status.d. and MAX Custody. Although there are required 15 minute checks for both ASand MAX Custody, there is nothing in the SECNAVINST addressing whether MAX custodyclassi?cation is required for prisoners assigned to SQ under or In contrast, paragraph5105(e) states that assignment to DS does not automatically warrant a reduction to MAX custody andparagraph 5105(e)(9) states that prisoners released from DS shall nonnally be placed in MDI custody.The board reviews custody classi?cation and continuation in SQ as or as separatedeterminations.4. Classi?cation and Assignment Board. The board establishes an individual prisoner?scustody classi?cation using objective classi?cation/reclassification procedures. When the boarddetermines custody classi?cations, it shall be composed of the Brig or designate, one senior staffmember from security and one from programs, and any other members appointed by the Brig 0. Atconsolidated brigs, a mental health specialist and chaplain shall be assigned. Where practicable, and notassigned to facility staff representatives from outside the con?nement facility such as a orchaplain, may be appointed to the board. The board meets at least weekly. Prisoners may appear beforethe board. The board uses the classi?cation criteria described above. The board also reviewsSQ prisoners every 30 days. The board may be reported in the Correctional ManagementInformation System (CORMIS) or DD Form 2711, Initial Custody Classi?cation; DD 2711-1, CustodyReclassi?cation; and DD 2711-2, Custody Initial/Reclassi?cation Summary Addendum. Whenimmediate action is necessary, the Brig 0 may make changes in custody, classi?cation, etc. without boardaction. Changes shall be part of the agenda for the next Board.5. Time for Sunshine/Recreation Call. The SECNAVINST does not use the term ?sunshine call?. Itdoes use the term ?recreation? as a privilege. A privilege is de?ned as a bene?t afforded to prisoners overand above minimum statutory requirements. Privileges can be removed for rule violations but only after adue process hearing Discipline and Adjustment Board.) Privileges often include, but are notlimited to: commissary visits, phone calls, television, radio, movies, recreation, special events, andspecial visits. In paragraph 5105(e)(5) addressing policies for DS, the SECNAVINST provides that a onehour exercise period shall be granted daily when the prisoner?s behavior is satisfactory. TheSECNAVINST is silent regarding a minimum amount of exercise period for non-DS prisoners.6. Visitation. The Brig may deny visitation for good cause, g. civilian or military protective orders,legitimate rehabilitative interests, and good order, discipline, and security of the facility). Official, Pressand Civilian Visits requests for general visiting of the con?nement facility by groups or individualsshall be coordinated with local public affairs of?ce (PAO).MCBQ Base PCF Order P1640.lc, 1 July 2010.The MCBQ policies largely mirror the SECNAVINST. Although signed by CWO4 Averhart on 1 July2010 on or about the time of MCBQ transfer from level 1 to pretrial detention facility, some of thepolicies appear to address post-trial detainees and functioning as a level 1 facility. Relevant differencesor supplements in comparison with the SECNAVINST are set forth below.1. Paragraph 2006 - SQ. MCBQ has 36 single occupancy cells SQ1 consisting of 30 cells and SQ2with 6 cells. All cells in SQ are 6? wide, 8? long, and 8? high. SQ cells permit inmates to converse withand be seen by all staff members.2. Paragraph 2007 - Exercise/Recreation and Training. Outdoor exercise areas for general populationwill be provided, to ensure that prisoners receive at least one hour of exercise IAW the Plan of the Day(POD) or PCF Supervisor or CO discretion. An additional exercise area is provided for those prisonerswithin the population who cannot participate in general population recreation call due to custody orcurrent handling requirements. This area is contained within the locking gate. Prisoners in segregationwill receive recreation call IAW the POD and their handling letter.3. Paragraph 6004(1) Classi?cation and Assignment. Maximum Custody. Prisoners requiringspecial custodial supervision because of the higher probability of attempted escape due to potential lengthof sentence or because they are charged with a dangerous or violent offense and escape would causeconcern of a threat to life or property. A prisoner may be designated as maximum custody because they[sic] have been determined to pose a threat to their own safety or another individual?s safety. Ordinarily,only a very small percentage of prisoners should be classi?ed as maximum custody.4. Paragraph 6004(1l)(d)? Those prisoners who have either attempted or consideredcommitting suicide will be assigned to MAX custody. Medical Of?cer Approval Required: Whenprisoners are no longer considered to be suicide risks by a medical officer they shall be returned toappropriate quarters once the PCF Commanding Of?cer?s approval is given. The Court ?nds the PCFCommanding Of?cer is the Brig at MCBQ.5. Paragraph 6004(1l)(e). Those prisoners who have given an indication that they intend orare contemplating harming themselves or others will be assigned MAX custody. [The Court notes thatthis paragraph is not consistent with paragraph 6004(1) above which states that a POI prisoner may beconsidered for MAX custody.]6. Paragraph 8031(a) Authorized Visitors. States the same as the SECNAVINST.Background - Prior to Accused?s Transfer to Theatre Con?nement Facility Kuwait on 31 May2010.1. The accused?s Basic Active Service Date (BASD) is 2 October 2007. He attended basic training atFort Leonard Wood, Missouri. On 28 March 2008, in his 9th week of training, while on hold over statusdue to medical problems, the accused was command referred to mental health for ??ts of rage.? Theaccused reported that he was increasingly anxious because of graduation in 5 days. He reported no priormental health history and that he was on no medications.2. The accused graduated from basic training, completed advanced individual training at Fort Huachuca,Arizona, and did a permanent change of station (PCS) to Fort Drum on 18 September 2008.3. On 30 June 2009, the accused was command referred to mental health at Fort Drum for dif?cultiesadapting to his unit. His Non-Commissioned Officer In Charge (NCOIC), MSG Paul Adkins, reportedthat upon being confronted by his supervisor for missing morning formation, the accused beganscreaming uncontrollably and clenching his ?sts with his eyes bulged and his face contorted. Hescreamed three times, then stopped, caught his breath and collected himself. Neither the accused nor themental health provider found evidence of any signi?cant mental health problem. The accused was invitedto return only if and as frequently as he desired after JRTC.4. On 19 August 2009, the accused self-referred to Fort Drum mental health reporting that he wasisolating himself, losing bearing, going downhill, crying and feeling vulnerable. He also reported that hewas going to ?break down? that day and described a process of bottling up emotions. The accusedfurther reported that he was not taking medications, had a history of family dysfunction growing up, andhad been on Lexapro in the past. The accused was assessed with an adjustment disorder with mixedemotional features.5. On 15 September 2009, the accused was command referred to the Fort Drum mental health clinic. Themental health provider described the accused as presenting almost rigidly physically and emotionallythroughout the discussion and when no other probable cause for his being sent is developed, his demeanoris reflected as perhaps being perceived as odd by others, though there does not appear to be anythingdiagnosable about it. The accused reported that both parents were alcoholics and that since separatingfrom his mother he has had to rely on himself for survival and for that reason very carefully manages hisinteractions with others. The accused was assessed with a personality disorder, not otherwise speci?ed;mild with cluster characteristics, obsessive but not compulsive.6. On 23 and 29 September 2009, the accused had follow up appointments at Fort Drum mental healthclinic. Discussion ensued about the accused using intellectualization to avoid contacts that may for somereason be emotionally dif?cult for him. The 29 September 2009 assessment found the accused hadadjustment dif?culties typical of persons in their 205, which he was quite consciously exploring andengaging. He was doing ?ne. The mental health provider anticipated one or two more meetings prior tothe accused?s deployment.7. The accused deployed with his unit to Forward Operating Base (FOB) Hammer, Iraq on 11 October2009.8. On 24 December 2009, the accused was command referred to FOB Hammer Combat Stress Clinic fora command directed evaluation due to anger outbursts over the past month where he shoved a chair andbegan yelling after his NCOIC, MSG Paul Adkins, counseled him on the loss of a room key and yelledand ?ipped a table when counseled by two superiors. The accused reported that in 2005, he wasprescribed Lexapro by a family physician for problems he was experiencing with his step-mother and hewas referred to a physician by his aunt in 2007 due to anxiety attacks he was having and was again put onLexapro. With respect to his current situation, the accused reported he was working the night shift withthree other service members and that it was lonely. He reported persistent worry and anxiety aboutoversleeping and being late for duty and also a hypersensitivity to criticism of his mistakes. The accusedwas assessed with anxiety disorder NOS with cluster personality traits and insomnia. The accusedhad a normal mental status examination.9. The accused had follow up visits on 30 December 2009, 6 January 2010, 16 February 2010, 2 March2010, 16 March 2010, 23 March 2010, 30 March 2010, and 6 April 2010. The accused discussedproblems he was having with a supervisor who was another E-4, his dif?culties in relating to people andhow that manifests itself, and his discomfort and guard when de?ecting issues too close to his ?comfortzone.? The accused was reluctant to engage in interventions to address his discomfort with discussingemotions or sharing personal feelings. The accused was anxious and remained focused on maintaininghis behavior and expecting a different outcome from other people.10. Prior to 8 May 2010, the accused was not assessed to be at risk of harm to himself or others. On 8May 2010, the accused was brought to the clinic by his NCOIC because he struck another Soldier in thejaw. The accused disclosed to the mental health provider that he desired to be the opposite sex whengrown and that he was coming to grips with openly revealing that. He also reported that he lived openlywith a wig as Breana Manning for 3 days while on leave. Although not assessing the accused as a threatfor harm to himself or others, the mental health provider placed the accused on unit watch andrecommended that the command bring the accused to the Combat Stress Clinic dailyMay 2010, the accused had a follow up appointment at the Combat StressClinic. He did not show for the 12 and 15 May 2010 appointments. The accused advised that he hadbeen transferred to the company and was doing clerical work that was beneath him. He also expressedremorse for the assault and was concerned over what his future would be in the Army. The accusedremained on unit watch.12. On 17 May 2012, the accused received a company grade Article 15 for the assault.13. On 22 May 2010, the accused?s mental health provider opined that his emotional and behavioralcontinue to cause impairment, the accused?s progress for rehabilitation was considered poorand that a separation under Army Regulation (AR) 635-200 Chapter 5-17 be initiated.14. On 26 May 2010, the accused had a follow up visit at the Combat Stress Clinic. He reported hereceived an Article 15 for the assault and had his rank reduced. The accused remained on modi?ed unitwatch without access to a weapon.15. On 28 May 2010, the accused?s mental health provider was advised that the U.S. Army CriminalInvestigation Command (CID) was investigating the accused for compromising secret information. Hewas assessed to be at high risk of suicide, homicide or AWOL and remained on unit watch. The accusedwas also required to be under guard by escorts. On the evening of 28 May 2010, the accused contacted acolleague, SPC Rebecca Schwab, gave her pieces of paper, and asked her to check his email andinvestments for him and to open the emails, read, and write down whatever was in them.16. The accused was placed in pretrial con?nement at FOB Hammer Brig on 29 May 2010. He wastransferred to the Theater Field Con?nement Facility (TFCF) at Camp Arifjan, Kuwait on 31 May 2010.The accused remained at TFCF until his transfer to MCBQ on 29 July 2010.TFCF Kuwait 31 May 29 July 2010.1. On 1 June 2010, the accused?s initial custody classi?cation was Medium Custody. He was held inadministrative segregation in a cell in Echo-1 tent. On 2 June 2010, the accused collapsed in his cell.2. The accused was subsequently moved into a general population 20 man tent with 3-6 other detainees.Reveille was at 2200 and the day ended at 1300-1400. The accused participated with the other detaineesin outdoor recreation call and visits to the dining facility and the recreation tent.3. On or about 9 June 2010, the accused announced in front of a group of detainees that he was gay afterhe became agitated that they were making negative comments about gay people. When asked on 11 June2010, by MACM Chris Moore if he felt threatened by the other inmates, the accused responded that hedidn?t feel threatened but ?they might feel threatened?. After the interview, the accused took deep breathsas if having an anxiety attack. CAPT Balfour from Kuwait Mental Health Clinic arrived. The accusedstarted crying saying he was sorry. He subsequently advised cadre that he was gay and a woman. Heoften became non- responsive to verbal communications and orders from cadre, followed by an anxietyattack. During one incident he ran around in circles outside the yard before ?nally laying down on theground and refusing to stand up. The accused had to be carried back to his cell.4. On 14 and 28 June 2010, the accused was seen at the Kuwait Mental Health Clinic to address concernswith anxiety. He presented with disheveled hair, although otherwise unremarkable. There was noevidence of current suicidal or homicidal ideation or intent.5. On 30 June 2010, after an inspection by MA2 Murin, the accused became unresponsive to commandsand began yelling uncontrollably. MA2 Murin called CAPT Balfour, the TFCF Mental Health Officer.Both of them ordered the accused into his cell. The accused refused. The accused then began screaming,shaking, babbling, and banged the back of his head into an adjacent wall. The accused then was placedinto a cell in Echo-03 tent with constant watch while he continued to mumble and bang the back of hishead against the ?oor. The accused also knotted sheets into nooses.6. On 30 June 2010, the accused was reclassi?ed to Maximum Custody/AdministrativeSegregation! Suicide Watch 1 1.7. On 3 July 2010, CAPT Iverson, the Commanding Of?cer, Expeditionary Medical Facility Kuwaitformally requested the Commander, Theatre Field Con?nement Facility to transfer the accused to afacility with a separate locked and specialized ward or nurses, both of whichwould be required to manage a case of this level of high risk and complexity for any extended amount oftime. CAPT Iverson described the accused?s condition as complex and appearing to be long tennrequiring ongoing close monitoring (one to one observation). On 11 July 2010, the Commander, 15'Annored Division and U.S. Division, Center sent a memorandum to Commander, Army CorrectionsCommand advising that the Commander, Third ordered the transfer of the accused fromTFCF Kuwait. Although the memorandum requested transfer of the accused to Mannheim, AreaCon?nement Facility, Mannheim, Germany, the accused was ultimately transferred to MCBQ on 29 July2010.8. On 5 July 2010, the accused was advised of the original charges preferred against him. Those chargeswere: four speci?cations of Article 92, UCMJ violations and eight speci?cations of Article 134, UCMJviolations to include one speci?cation assimilating18 United States Code (U.S.C.) Section 793(e), threespeci?cations assimilating 18 U.S.C. Section 1030(a)(l), and four speci?cations in violation of 18 U.S.C.Section 103 The maximum sentence that could be imposed for the charged offenses would bereduction to the grade of E-1, total forfeiture of all pay and allowances, con?nement for 68 years, and adishonorable discharge.9. On 10 July 2010, the Article 32 investigating of?cer scheduled the Article 32 investigation for 14 July2010. On 12 July 2010, the accused was noti?ed. The Article 32 investigation was subsequently delayedand did not begin until 16 December 2011.10. On 30 June 2010, the accused was seen by at the Kuwait Mental Health Clinic (USMHK). Theproviders, Drs. Weber and Hutcheson reported increased levels of regressive behavior by the accused toinclude rocking himself, sitting on floor immobile despite requests that he move, and making nooses.During the interview with the accused he stated that he didn?t intend to use the nooses but he wanted tohave the option of hurting/killing himself, even if he didn?t really do it. He wouldn?t deny currentsuicidal ideations and stated he wouldn?t tell someone if he was thinking about doing it because thatwould defeat the purpose. The accused stated he was sleeping poorly and was confused with moodswings. He appeared thin and exhausted and sat almost the entire time with his knees pulled against hischest and his arms hugging his chest, looking into space as he spoke. The mental health providers notedthe accused had chronic suicide ideations without any delineated plan or intent currently. The mentalhealth providers recommended the accused to remain in his cell with alert 1:1 watch. They alsoproscribed Clonazepam for insomnia and Citalopram.11. The accused had the following follow up sessions at USMHK:a. On 1 July 2010, Dr. Weber saw the accused in his cell. His hair was disheveled, eyes red andtearful, and displayed poor contact, staring off into the distance. The accused reported being scaredand hopeless. He again reported suicide ideation and plan without speci?c intent and that he would nottell anyone if he did intend to attempt suicide. Dr. Weber recommended the accused be transferred to afacility with more resources for higher care, evaluation, and treatment.b. On 2 July 2010, the accused was seen by Dr. Richardson. In addition to the notes from 1 July2010, this report noted that the accused was collecting several items that could potentially be used forpossible self harm such as metal. The accused remained ambiguous about discussing suicidal thoughtsstating he was still confused and uncertain. The accused stated clearly he would not contract for safety ornotify any staff if he decided to harm himself or had increasing suicidal ideation.c. On 4 July 2010, the accused was again seen by Dr. Richardson and Weber. The accused?sglasses had been returned. During the session the accused described having been seen by a who thought he had obsessive compulsive disorder (OCPD) and possible generalized anxiety disorder andattention de?cit hyperactive disorder (ADHD). When asked about suicidal ideations, the accused said don?t know how I am supposed to feel.? And again declined to contract for safety or inform staff if he hada suicidal ideation. The accused remained diagnosed elevated high risk of self harm, remained on suicidewatch 1:1, and recommended to have one book in his cell.d. On 6 July 2010, the accused was again seen by Dr. Weber. He discussed reading ?Hunt forRed October? and discussed his IQ range. He appeared less anxious but reported he considers suicide anoption and feels a sense of relief when he is able to have the option available if needed. He continued todecline to contract for safety or inform anyone if he had a suicidal ideation.e. The accused was seen by Dr. Richardson 8 and 10 July 2010. Although his anxiety appeared tobe super?cially calmer, he remained ambiguous about his condition and safety, stating on 10 July 2010 -in response to a direct question about whether he wanted to kill himself - ?not right now? and ?it isalways an option.? Again he would not contract for safety.f. On 12 July 2010, the accused was seen by Dr. Richardson. He admitted he would like to dieand have it all be over and that he would take his life if he was sure he would die. He did not want painbut did want deathhis situation and how permanent and long standing thematter was, was settling in. The accused further stated he was at peace with the option of dying and thathe was a ?patient man.? The accused was found at heightened risk of self harm and suicide watch 1:1remained.g. On 14 and 16 July 2010, the accused had further follow up with Dr. Richardson. The accusedwas aware there was consideration about moving him to another facility. He was frustrated and wanted tobe moved off suicide precautions. On 16 July 2010, the accused said he would not hurt himself butadmitted that he tried to lift the pin to the cell door in the past and thought he could be successful. Dr.Richardson believed the accused?s statements that he would not hurt himself were made to get off suicideprecautions.h. On 19 July 2010, the accused saw Dr. Richardson and was noticeably irritable and frustrated,stating he didn?t have control over his future. Dr. Richardson determined that although the accused statedhe would not kill himself, his reliability was poor. ?His statements are taken in context of his assessmentover a period of time. He stated previously that he had accepted his death, that he had no future, andwould kill himself if he knew he would die. He had added that he is a patient man. The accused?s morerecent statements seem to be in context of wanting a change in status and what he wears. There is littledepth to his conversation when talking about his emotions, such as when he disclosed his helplessness.When interacting with others in the correctional community, the accused acted out and decompensated.He also acted in an unreliable way (making 2 nooses, collecting other items that could potentially be usedfor self harm), seemingly deceitful about that. The accused has a very fragile ego which could easilydecompensate in that similar environment at this time. In discussion with CAPT Balfour, there arelimited resources at this facility, that combined with the member?s unpredictability would createvulnerabilities for his safety.?i. On 21 July 2010, the accused saw Drs. Weber and Richardson. The accused?s anxiety andfrustration levels were improved. Essential elements of daily life including physical care, andintellectual, social, and spiritual health. He was reading Tom Clancy novels and reported exercising andeating well with an increasing abilities to ?nd meaning in moments. Accused remains at elevated risk.The possibility of transfer raises his risk and is a transitional point for him. The accused was given aprovisional diagnosis of Depressive Disorder NOS requiring further time and observation to make a ?naldiagnosis.j. On 24 July 2010, the accused saw Dr. Richardson. He was angry and irritated with a focus ontrying to change his status and 1:1 watch. The accused stated he did not care about his safety in the senseof relating to the quality of his life and was considering legal action. Dr. Richardson explained that safeywas the priority issue. In the recent past, when the accused was with the other inmates, there were rulesthat he was expected to follow and did not, that by making one or two nooses, collecting things that couldpotentially be used for self harm and that he did not do well emotionally in the community setting. Theaccused stated he understood the reasons for placing him on suicide watch but he was a ?different person?now. Dr. Richardson discussed reducing the restrictions on the accused with the C0 of TFCF. 15 minutechecks were the next step down. Both opined the risk was still too high to implement the restriction.k. On 27 July 2010, the accused was seen by Dr. Weber who found him to be receptive and eagerto engage. The accused felt the medications were helpful and that he felt safe. In spite of theimprovement, Dr. Weber did not recommend decreasing to 15 minute checks on the accused because of10the setting and limited resources in Kuwait and because the accused still demonstrated a large amount ofmood lability, splitting, potential manipulation and low ego strength.1. On 28 July 2010, Dr. Richardson prepared a summary of the mental health condition andtreatment of the accused during his time in con?nement at TFCF. The Assessment for Axis 1 was anxietydisorder NOS, depressive DO NOS (Provisional, Probable Gender Identity Disorder (byprevious assessment).12. On 29 July 2010, the Deputy Commander of the con?nement facility in Kuwait, LCDR Jeffrey Barr,prepared a memorandum for record regarding the accused?s con?nement in Kuwait. LCDR Barrobserved that accused presented with normal behavior during intake and for the initial few days, but thenbegan to exhibit abnormal behavior and his mental state deteriorated. Ultimately the con?nement facilityhad to place him on 24-hour suicide watch for the remainder of his detention there. Prior to being placedon suicide watch, accused announced that he was gay when he overheard other detainees making negativeremarks about homosexuals, and during the days following that incident he told cadre that he was ?gay?and ?a women He would often become nonresponsive to verbal communications and orders fromcadre, which was sometimes followed by an anxiety attack. During one incident, the accused ran aroundin circles in the yard before lying down on the ground and refusing to stand up. Cadre had to carry him tohis cell. During a routine cell check, cadre found the accused curled in a ball on the ?oor with a bed sheettied into a noose next to him on the ?oor. Mental health professionals evaluated him on several occasionsthroughout his con?nement. They found that he had mental issues, to include being ?emotionally de-compensated,? and was at a high risk of harm to himself or suicide. They recommended that transfer to afacility with adequate specialized resources and mental health professionals available to manage his caseover an extended period of time, which did not exist at the facility in Kuwait.13. On 29 July 2012, the accused was transferred from TFCF to MCBQ.MCBQ 29 July 2010 20 April 2011.1. On or about June 2010, as a result of the Base Realignment and Closure Act of 2005 (BRAC 2005),MCBQ was converted from a level 1 facility to a pretrial con?nement facility. Resourcing was cut 50%.MCBQ was not structured to be a long-term pretrial con?nement facility. Post-trial prisoners could beheld at MCBQ for 30 days pending transfer. MCBQ was not resourced to house pretrial detainees formore than 180 days (see Pretrial Con?nement Zero Based Review AB 280, volume 3 of 6, pages00513119 and 00513073-88). Pretrial detainees housed at MCBQ after July 2010 were typically heldfrom two weeks to three months. MCBQ was not resourced for long term mental health or othertreatment programs. There were no organic mental health assets. Pretrial detainees at MCBQ wereassigned custody classi?cation of either Maximum (MAX) or Medium In (MDI). All pretrial detaineesregardless of custody level were housed in individual cells in Special Quarters 1 (SQI) that were 6? wideby 8? long and 8? high. The accused was housed in the same sized cell as all the other pretrial detainees atMCBQ regardless of custody level and status. During the 264 days the accused was in pretrial detention atMCBQ, the brig averaged between 5 and 20 prisoners staying a length of two weeks to approximatelythree-four months. No other prisoner during the accused?s tenure at MCBQ was on POI status longerthan a few weeks.2. At the time of the accused?s arrival at MCBQ on 29 July 2010, CWO4 Averhart was the Brig Of?cerin Charge (Brig O), Papapke was the Brig Supervisor, (then Blenis was the Chief ofPrograms and the Senior Counselor. Blenis was the accused?s counselor. CAPT Hocter providedmental health support for MCBQ as an ancillary duty. He was not an organic asset for the brig. He hadbeen providing mental health services to the brig since 2006 and was the mental health provider whenMarine Corps CAPT Webb committed suicide on or about Spring 2010.113. From 2010 to the present, prevention of suicide has been a top priority for the Department of Defenseand all of the military services. Suicide awareness and prevention training is mandatory across themilitary services. MCBQ had a pre-trial detainee suicide, CAPT Webb, during the year before theaccused arrived. Many of the brig staff worked at the brig during that time. CAPT Hocter providedmental health support to the brig. He did not recommend CAPT Webb to be placed on Suicide Risk (SR)or Prevention of Injury (POI) status. CAPT Webb?s suicide was a traumatic event for MCBQ staff. Atthe time of the accused?s arrival, MCBQ staff was hyper-vigilant regarding their duty to prevent pretrialdetainees from attempting or committing suicide. They also mistrusted CAPT Hocter?sjudgment as amental health provider because they believed he missed the indicators for suicide risk in the CAPT Webbcase. Their approach to maintaining the accused on POI status was to err on the side of caution and evenover-caution.4. On or about 28 July 2010, the brig was initially noti?ed of the accused?s arrival. They were alsoaware of the accused?s mental health history in Kuwait. Upon learning of the accused?s pending transferto MCBQ as a potential long-term pretrial detainee, Col Choike, Quantico Installation Commander, calledMG Horst, the accused?s General Court Martial Convening Authority, to advise him of his concerns aboutlack of resources for long-term pretrial detainees.5. On or about 28 July 2010, Col Choike held a staff meeting including Col Oltman, Security BattalionCommander, LtCol. Greer, Quantico Deputy SJ A, CWO4 Averhart, MCBQ OIC, Quantico PAO staff,and other brig staff to address management of the accused upon arrival. Quantico SeniorMission Commander, did not attend the meeting but was aware it occurred. The brig staff as well as ColOltman, Col Choike, Lt Col Greer, PAO, and CWO4 Averhart were aware that the accused was a highpro?le detainee who would bring media and other attention to Quantico brig and base. Col Oltmanordered CWO4 Averhart to prepare a weekly report regarding the status of the accused. CWO4 Averhartwould forward the report to C01 Oltman who would then forward the report to C01 Choike. was aware of the weekly reports and received them from Col Choike, although perhaps not routinely.Weekly reports on the accused began on 10 August 2010 and continued until the accused was transferredon 20 April 2011 to JRCF, with the ?nal weekly report prepared on 13 April 2011. The weekly reportsincluded Blenis? weekly counseling notes of the accused and any signi?cant events involving theaccused that occurred that week.6. After the accused arrived at MCBQ, LtGen was engaged both with C01 Choike and Col Oltmanon the brig side and with CAPT Mary Neill, Commander Naval Health Clinic and CAPT Hocter?ssupervisor, on the mental health side. On 9 August 2010 at 13:42 LtGen sent an email to ColOltman and Col Choike with an attached 9 August 2010 New York Times article about the accused.LtGen stated that with one suicide in the brig, the command needed to cover down on lessonslearned from that case. LtGen stressed the absolute necessity of keeping a close watch on theaccused, to include brig, medical, chaplain, and transport personnel. LtGen believed the accusedslife has completely fallen apart making him a strong candidate (from LtGen perspective) to takehis own life. Col Choike responded that CAPT Neill agreed to prepare weekly mental health reports fromCAPT Hocter regarding the accused?s mental health status and to forward these reports to C01 Oltman andCol Choike. The mental health status reports were in addition to the Weekly reports from the brig. On 9August 2010 at 16:41 LtGen responded to C01 Choike ?Dan, Just want to be sure all know myintent and concerns. Is there a secure mental health ward at Walter Reed? What medical authority makesthe call on his con?nement location as well as his mental ?tness? For how long are suicide watch inskivvies and a blanket proper? Please make sure that there are [sic] procedures are correct, we have goodassumptions, and we are applying the regulations correctly.? On 9 August 2010 at 17:23, CAPT Neillreported to C01 Choike that that CAPT Hocter opined that the accused no longer needed August 2011 and recommended changing the status to P01. On 9 August 2010 at 18:19, Col Choike12forwarded the mental health status report to LtGen with an email stating he spoke with C01 Oltmanearlier who advised that the Brig preference was to maintain SR for a few more days. [The Court notesthat per the SECNAVINST the medical of?cer has authority to determine when to remove a prisonerfrom SR status. See para 3c above.] On 9 August 2010, at 19:50, LtGen responded via email to C01Choike asking ?With the status being changed by the medical authority, what is the logic for thiscontinuing other than OIC preference?? CAPT Neill, Col Minor, the SJA, and Col Oltman were cc?d onthese emails. None of the brig staff was cc?d. LtGen did not communicate directly with the Brig or brig staff. He did not order brig of?cials to classify the accused in a particular custody classi?cation orstatus. He did not in?uence brig decisions regarding the accused?s custody or classi?cation. His intentwas to ensure that appropriate regulations and procedures were being applied correctly with commonsense, that the accused was receiving appropriate mental health treatment, that brig staff and mentalhealth providers were coordinating, and that the accused was safe. Neither Col Choike nor Col Oltmanordered the Brig or the brig staff to reach any particular conclusions regarding the accused?s custody orstatus.7. On the evening of 29 July 2010, the accused arrived at MCBQ and began the indoctrination phase.While completing his inmate background summary's mental health section, the accused indicated that hehad considered suicide and wrote in the remarks section - ?Always planning, never acting.? The accusedwas not ordered to ?ll in remarks or told what remarks to write. He wrote ?always planning, neveracting? of his own volition.8. The accused scored a on the management factors for initial custody classi?cation. This wouldresult in a custody level of MDI. The Duty Brig Supervisor (DBS) did an override to initially classify theaccused as MAX Custody/SR. Also on 29 July 2010, the Classi?cation and Assignment Boardreviewed the classi?cation of the Accused. All three members recommend MAX custody withindoctrination and SR status. The Brig O, CWO4 James Averhart, approved the recommendation of theDBS and Board.9. A 3 member Board met weekly to review the accused?s custody level and status. Blenis,the accused?s counselor was normally the senior member of the board. gt Blenis prepared thepaperwork and recommended custody level and status before the board met. Board results weredocumented in CORMIS but not Brig Form 4200.1 (Jan 11) until the review on 3 Januaiy 2011. Afterthat review, the board results were documented on Brig Form 4200.1 until the accused was transferredfrom MCBQ. The Board consistently recommended that the accused remain in MAX custody and on POIstatus. [The accused was placed on SR status on from 18-20 Jan 11 by CWO4 Averhart]. Both Brig Os,CWO4 Averhart and CWO2 Barnes approved all of the board recommendations. The decision tomaintain the accused in MAX custody and POI status were based on similar factors, the accused?s historyof violence toward himself and others in FOB Hammer and Kuwait, his statements in Kuwait and on hisintake form that he was ?a patient man,? ?suicide is always an option,? and ?always planning, neveracting? indicating a never-ending time when the accused may be considering suicide, the nature of theoffenses charged, the length of potential sentence, poor family relationships, low tolerance for ?'ustration,requirement for mental health treatment and on the accused?s guarded interaction and lack ofcommunication with his counselor and the brig staff. After 18 January 201 1, the board and the BrigO, CWO2 Barnes added factors of disruptive conduct by the accused on 18 anuaiy 2011, his statementsto the board that his initial form ?always planning, never acting? may have been false and that his currentassurances to the board that he was not suicidal may also be false. After 2 March 2011, the Boardand the Brig 0 added factors of the accused?s 2 March 2011 statement to Papapke that he could usethe waistband of his underwear to kill himself, the increased stressors to the accused of receipt of newcharges including ?Aiding the Enemy? with a potential sentence of life without parole or death if a capitalreferral, the accused?s almost complete withdrawal from communication with the brig staff, and hisremoval of a number of visitors from his visitation list. After 6 April 2011, the Brig 0 also considered13manipulative and false statements made by the accused to LTC Russell and increasing incidents of minorviolations of brig SOP.10. CAPT Hocter was the mental health provider for the accused from 29 July 2010 - 18 January 2011when he deployed. Because the accused was an Army Soldier, he consulted with COL Malone, a mentalhealth care provider from the Army to add credibility to his assessments of the accused. CAPT Hoctervisited the accused at least weekly and issued a 1 page form to the Board entitled ?Suicide Risk andPrevention of Injury Assignment Review.? AR). The top line of the form stated ?Thefollowing action is recommended for subject: Custody; Squad Bay, ob.? The ?Job? portion is where SRor POI was recommended. The form then had 4 block checks: (1) whether the detainee poses a threat tohimself or not; (2) whether the detainee requires further mental evaluation; (3) whether the accused needsto be segregated from general population or not; and (4) whether the detainee has low or averagetolerance of frustration/stress. Below the block checks are lines for the medical of?cer?s remarks.CAPT Hocter submitted AR to the board on the following dates:30 July Sep 10, Off minute checks from MAX custody suf?cient15Nov 10- Off POIUndated form between 24 September and 15 October 2010, COL Malone recommended the accused beremoved from POI10 Dec 10 POI accused not suicidal but under great deal of stressJan 11- offPOIThe remarks column of CAPT Hocter?s AR forms were usually between 2 and 5 lines. Theremarks provided CAPT Hocter?s recommendation but not the reasons for his recommendation. Some ofthe remarks were not legible. CAPT Hocter made scrivener?s errors in the block checks on 3 and 17September 2010 misstating that the accused needed to be segregated from the general population and thatthe accused posed a threat to himself. These errors con?rsed the board members and led them tobelieve that CAPT Hocter was unreliable and was ?covering his six.?1 1. CAPT Hocter provided mental health services as an ancillary duty for MCBQ since 2006. MCBQofficials usually followed his recommendations with respect to status although they delayedimplementing them. In the accused?s case the Brig O, CWO4 Averhart delayed implementing CAPTHocter?s recommendations to remove the accused from SR to POI from 6-11 August 2010, a total of sixdays and again delayed removal of the accused from SR to POI on from 18-20 January 2011, a total ofthree. CWO4 Averhart did not implement any of CAPT Hocter?s recommendations to remove theaccused from POI status.12. There was no meaningful communication between the Brig O, the Board or any of the Brigstaff and CAPT Hocter regarding the accused?s mental health condition and what, if anything, thatcondition and his behaviors contributed to the necessity of maintaining the accused on POI status. Inaddition, the brig staff mistrusted CAPT Hocter because they believed he provided no notice of his visits,didn?t spend enough time with the accused to properly assess whether he was at risk of attemptingsuicide, didn?t provide reasons for his recommendations in the ARs, and failed to assess the SRindicators in CAPT Webb.13. During the CWO4 Averhart/CAPT Hocter tenure, the accused remained in MAX custody and P01from 27 August 2010 -18 January 201 1 against the recommendation of CAPT Hocter except for a three14day period between 10 and 13 December 2010 where CAPT Hocter recommended the accused remain onPOI because of additional stressors.14. From ll August 2010 18 January 2011, Blenis? counseling notes consistently described theaccused as courteous and respectful with average to above average work reports and no disciplinaryreports. The accused reported no suicidal feelings. He was cooperative with staff. The notes do notre?ect that the accused complained about or asked about POI or MAX custody status. The notes didre?ect that the accused was guarded in his communications with brig staff and preferred to be left alone inhis cell sitting on his rack. The following odd behaviors were documented in the counseling notes:a. 29 September 2010 - on 23 September 2010 the accused tried to send a letter signed as BrianaElizabeth Manning.b. 20 October 2010 the accused prefers to spend his day sitting Indian style on his rack untiltaps. Although he is authorized to have a book in his cell between reveille and taps, he has read only twobooks since his arrival.c. 25 November 2010 on 23 November 2010 Blenis overheard guards discussing strangeunorthodox conduct observed by the accused in his cell to include: sword ?ghting imaginary charactersin his cell; lifting imaginary weights in his cell as if displaying actual strain and exertion; and staring themirror and making faces at himself for extended periods of time. The accused was on occasion observedlicking the bars to his cell after taps. When questioned by guards, the accused acted as if he were justwoken up and asked staff members how long he was there.d. 1 December 2010 accused observed dancing in front of the mirror in his cell.e. 8 December 2010 accused observed posing and ?exing his muscles in front of the mirror inhis cell.f. 15 December 2010 accused observed standing in the middle of his cell with arms spread outand staring at the ?oor, dancing in his cell like rave dancing and playing peek a boo with himself in theThe behaviors observed by the guards were unusual and strange and were not commonly engaged in byMAX prisoners. The brig staff and CAPT Hocter never engaged to discuss the strange behaviorsexhibited by the accused and what, if anything, that meant from a mental health perspective regarding theaccused?s need for POI status.15. On 11 August 2010, the accused was downgraded from to The accused?sspecial handling instructions provide for the following: the accused (1) will wear restraints and beescorted according to custody classification when leaving his cell. The DBS will be noti?ed prior to theaccused moving outside SQ. Control Center will commence lockdown; (2) is authorized sunshine call,television call, library call, to make and receive phone calls, Weekend/Holiday visitation in a non-contactbooth; and to speak to occupants of other cells in a low conversational tone; (3) is not authorized to lie onrack between reveille and taps unless on medical bed rest, to keep any gear inside his cell with theexception of: one rules and regulations, one mattress, and one set PT gear during hours of reveille, (4)will receive toilet paper upon request only; (5) will receive one underwear and one POI blanket duringtaps; (6) will eat in cell with metal spoon only, will have sick call, medication call, and chaplain visitsconducted at cell hatch with legal visits conducted at cell or in a non-contact booth, remain in cell during?re drills, come to the position of attention in front of hatch upon entry of any commissioned of?cer andwill remain at attention until told to carry on; address all enlisted duty personnel by their rank at paraderest and will be required to stand at the position of attention for count until carry on is sounded. Thefollowing additional instructions also applied to the accused: (1) will receive correspondence materialfrom 2020 -2120 to include mail, legal papers, envelopes, DD 510 forms, one pencil or pen, and one book(religious or non?religious); (2) will receive hygiene items in accordance with POD only; (3) will receivea 20 minute sunshine call in the SQ recreation yard; (4) all gear will be removed from cell after Taps with15the exception of one mattress, one underwear, and one POI blanket; (5) will wear a second chance vestwhen leaving the facility on temporary absence at all times. Starting on 27 October 2010, the accused?scorrespondence time was increased to two hours from 1920-2120 and sweat pants and a sweat top wereauthorized during periods of reveille. Starting on 10 December 2010, the accused was authorized onehour of recreation call in the SQ recreation yard or inside recreation area in case of inclement weather.Accused?s restraints were to be removed during recreation call. Library, TV call, and phones werebrought to MAX prisoners via a cart. The amount of TV call depended on the number of MAX prisonerssharing the cart. The accused frequently received more than one hour of TV call. In addition, the accusedwas required to be observed every 5 minutes either in person of from the guard tower. The accused wasoccasionally asked how he was doing and was required to respond. He was not asked how he was doingwith each 5 minute check. On 15 September 2010, the Special Court Martial Convening AuthorityCOL Coffman, advised Col Choike that the Army required monitoring of the accused?sphone calls, visitation, and mail. Privileged communications between the accused and his attorneys,mental health providers, and brig chaplains were not monitored. Monitoring of detainee communicationsand visits was not normal standard operating procedure (SOP) at MCBQ. On or about 1 December 2010,the Brig ordered that any unusual behavior be logged in a logbook kept by the guards solely on theaccused. On or about 10 December 2010 the accused TV privileges were taken away because of newsreports that the accused had committed suicide. They were subsequently restored. On 15 December2010, the accused was provided a safety mattress with a one-piece pillow included. On 2 March 2011,the accused?s handling instructions were changed to remove all gear between reveille and taps except hismattress and 2 P01 blankets. On 7 March 2011, the accused received a suicide smock ordered by HQMCSecurity Division, Plans, Policies, and Operations (PSL).16. The main distinctions in handling instructions between the accused while in SR status and while onPOI status are that while on SR status from 18-20 January 2011, the accused was not allowed to keep onebook and one set of PT gear shoes during reveille and not allowed to keep his eyeglasses unless readingor moving outside the cell and was constantly observed (1 rather than at 5 minute intervals.17. From 29 July 2010 10 December 2010, the Accused was allowed 20 minutes of exercise rather thanone hour because of his POI status not because of his MAX custody classi?cation. On 10 December2010, after CAPT Hooter recommended that the accused receive additional exercise time, CWO4Averhart changed the accused?s handling instructions to 1 hour of recreation/sunshine call withoutrestraints.18. The accused received regular command visits. He told his chain of command he did not understandwhy he was on POI status during every command visit except 7, 15, and 21 October and 12 and 10 and 26November 2010. The accused consistently told his chain of command he was treated professionally bythe brig guards. He never asked the command to take any action to change his MAX custody or POIstatus.19. The accused was familiar with the DD 510 Request for Interview forms. On 17 November 2010, theaccused submitted three DD 5105 regarding an LES issue, an inquiry regarding command visits andmonitoring, and a request for a subscription to ?Scienti?c American? magazine. On 22 December 2012,the accused submitted two DD 510 requests for books and an emergency phone call to his defensecounsel. The accused did not ?le any DD 510 requests regarding MAX custody or POI status until 7January 2011. The accused also did not raise MAX custody/POI status with Blenis during theweekly counseling reviews or with the Brig 0 during his visits to SQ. Blenis did not tell theaccused CAPT Hocter was recommending he remain on POI status during Oct/Nov 2010. The accusedalso did not raise his status or otherwise complain about his treatment at the brig with any ofhis visitors. The accused did not request to speak with other detainees or to eat outside of his cell. On 21January 2011, the accused told the A board that he might need to be placed in protective custody. He16did not complain about his pre-15 December 2010 mattress, his post 15 December 2010 mattress or hisPOI blankets to the brig staff or, when asked about it, during a personal visit on 26 February 2011.Defense counsel began raising the issue of the accused?s continuation on POI over mental healthrecommendations via email on 29 November 2010. Defense counsel sent a memorandum to the Brig on 5 January 2011 requesting reduction in the accused?s classi?cation from MAX to MDI and removalfrom POI on the grounds that CAPT Hocter recommended the accused?s custody be downgraded fromMAX to MDI and recommended that the accused by removed from POI. On 13 January 2011, Mr.Coombs ?led a Request for Release from Con?nement Under RCM 305(g) with COL Coffman, theon the same basis. On 14 January 2011, the accused advised his chain of command of the 7January 2011 DD 510 request to change his status that had not yet been acted upon by the Brig O. On 19January 2011 the accused ?led a Request for Redress under Article 138, UCMJ. On 10 March 2011, theaccused submitted a rebuttal to the response to his original Article 138 Request for Redress.20. CAPT Hocter recommended that the accused be removed from POI. He never recommended adowngrade of custody from MAX to MDI. CAPT Hocter?s recommendations to remove the accusedfrom POI stated that 15 minute checks required by MAX custody would suffice. The custodyclassi?cation decision of is a Brig decision based on the level of security required for aparticular pretrial detainee.21. There was an increase in media, international and non-govemmental organization, and individualmember Congressional interest in the accused?s con?nement conditions on or about December2010/January 2011 and concurrently with the accused and defense counsel complaints and ?lings aboutthe accused?s custody/status. The brig received numerous requests from outside entities whowere not on the accused?s approved witness list to come and visit him, to include Mr. Juan Mendez, U.N.Special Rappateur and Congressman Dennis Kucinich. Such requests were directed to the Office ofCongressional Legislative Liaison Affairs, not the brig.22. On 27 December 2011, LtGen called MGen Ary, Staff Judge Advocate to the Commandant ofthe Marine Corps, stating that while he had the utmost con?dence in the way the brig is being run, hewanted to be proactive to ensure the MC held the moral high ground when responding the media. Thesubsequent emails among HQMC proposed outside visits to MCBQ by high level of?cials withcorrections expertise and development of fact sheets to compare MCBQ standards with protocols.23. On 14 January 2011, there was a meeting at MCBQ with the staff and CAPT Hocter and CAPTMoore. Among the issues discussed was CAPT Hocter?s concern about the accused remaining on POIstatus. He opined POI was not justi?ed from a medical viewpoint. CWO4 Averhart explained that themedical component was part of the overall classi?cation assessment and the process was continuallyevaluated. Col Oltman and CWO2 Barnes were present at the meeting. The meeting got heated betweenCol Oltman and CAPT Hocter. CAPT Hocter told the brig staff to call POI something else if they wantedto maintain the accused on that status for security reasons because it was not warranted for reasons. Col Oltman told CAPT Hocter that the accused would remain in POI status and that if keepinghim in that status was required to get the accused to trial, that?s what they would do.24. On 18 January 2011, the accused had an anxiety attack at recreation call. He was being escorted byTankersly, Cline, and GM1 Webb. All of the guards were doing their job properly. Theywere not harassing the accused. The conduct of the guards had nothing to do with any protest thatoccurred at MCBQ on or before 18 January 2011. The accused perceived the guards to be anxious so hebecame anxious. The accused?s anxiety attack was consistent with his history at Fort Drum, FOBHammer, and Kuwait. The accused recovered and continued his recreation call without incident. Tankersly and Cline were replaced for non-disciplinary reasons. After the accused returned to his17 0cell, he was visited by Blenis, Papapke, and CWO4 Averhart. They asked him how he wasdoing and questioned him about what happened during the anxiety attack. The accused grew frustratedi when discussing the comparison between his anxiety attack and what happened in Kuwait. He put hishands up by his head and began yelling such things as ?Why are you staring at me,? and ?Why are youi yelling at me?? CWO4 Averhart placed the accused on ?special move, The accused initiallyrefused to give his clothes to MS gt Papapke causing CWO4 Averhart to order a Code Blue and order thatthe accused be video-taped. The accused gave his clothes to Papapke and continued to argue toboth Papapke and Blenis that this anxiety attack was different than Kuwait, that he was notsuicidal, and that he should not be on POI. CAPT Hocter arrived and recommended the accused be takenoff SR and placed on POI status for 24 hours. CWO4 Averhart did not take the accused off SR until 20January 201 1.25. On 21 January 2011, after being questioned by ISG Williams following his command visit with theaccused on 14 January 2011, CWO4 Averhart acted on the accused?s DD 5 10 approving his appearancebefore the 21 January 201 1 board. The accused also appeared before the board on 4 February2011 and 25 February 2011. During his appearance before the board on 21 January 201 1, three days afterhis 18 January 2011 anxiety attack, the accused was asked about his intake statement ?always planning,never acting.? The accused advised the board that the statement may have been false. In response to aquestion of whether the board should then believe his current assurances that he was not suicidal werefalse, the accused replied ?they may be false.? These statements by the accused caused great alarm toeach of the board members and exacerbated their concerns that the accused may be patiently waiting toharm himself.26. On 24 January 2012, the brig changed command from CWO4 Averhart to CWO2 Barnes. COLMalone replaced CAPT Hocter as the primary mental health provider for the accused following CAPTHocter?s 18 January 2011 visit with the accused prior to CAPT Hocter?s deployment. CWO2 Barnes andCOL Malone had a much more coordination regarding the accused?s mental health condition and a muchbetter personal rapport than did CWO4 Averhart and CAPT Hocter. Together, they revised the Assignment Review mental health forms. CWO2 Barnes also implemented the Brig Form 4200.1 (Jan11) to document the Board proceedings.27. Beginning on 21 January 2011, COL Malone found that the accused had no current suicidal thoughtsor intent and that he was cleared to come off of POI status. On 28 January 2011, COLMalone opined that the accused remained at moderate risk of self harm, had below average tolerance forfrustration and had a limited ability to express or understand his feelings. COL Malone opined that therisks/bene?ts of POI are not further detrimental at this time. Starting on 18 February 201 1, COL Malonechanged the Recommendation Form to a Report of Behavioral Health Evaluation Form for theboard. This fonn is similar to the standard mental status examination form used for mental statusexaminations. The form contained blocks to assess the accused?s behavior, level of alertness andorientation, mood and affect, thinking process, thought content, memory and ?ndings as to the status ofthe accused?s mental disorder, risk for suicide/self hann, risk for violence, whether the accused has abehavioral disturbance, whether he needs to be segregated from the general population due to a treatablemental disorder, and whether and how frequently the accused needed further examination. Rather thanrecommending a particular status, COL Malone described the accused?s current mental health status inthe remarks. On 18 February 2011, COL Malone found the accused?s behavior normal, fully alert andoriented, unremarkable mood and affect, clear thinking process, normal thought content, good memoryand found the accused?s mental disorder resolved, risk for suicide/self harm and risk for violence low,that behavioral disturbance was not applicable, that the accused did not need to be segregated from thegeneral population due to a treatable mental disorder, and that he required routine further examination. Inthe remarks section COL Malone opined that the accused?s anxiety disorder remains in early fullremission; he is tolerating medication taper off well; he understands risks and bene?ts of treatment and18non-treatment; and that he responds well to intellectual stimulation. On 4, 11, and 18 March and 8 April201 1, COL Malone checked the same boxes and remarked that the accused?s anxiety disorder was inremission, he was completely off his medications, remains at low risk of suicide/self harm, and that hewould bene?t from intellectual stimulation.28. On 6 and 15 April 2011, LTC Russell did the mental health assessment of the accused for COLMalone. LTC Russell checked the same blocks as COL Malone, except he found the accused?s mentaldisorder stable rather than resolved. After speaking at length with CWO2 Barnes, LTC Russell opinedthat the accused?s presentation to him varied signi?cantly from that observed by the brig staff. LTCRussell opined that the Brig O?s decision to maintain due diligence for self-harming behavior was notunreasonable given the accused?s recent withdrawal from staff and his refusal to communicate with brigstaff to give them assurances of his safety if removed from POI. He further opined that the accused?sbehavior was likely to persist.29. The withdrawal of the accused from his medication was not listed on the accused?s chart until 23February 2011. CWO2 Barnes thought the accused was refusing his medication until she spoke withCOL Malone on 23 February 2011 and learned that because the accused had extra supervision, COLMalone was comfortable taking him off his medications. CWO2 Barnes disagreed with COL Malone?sdecision to wean the accused off his medications because of the accused?s additional stressors anduncertainty about his futurethe accused received notice of the current charges, including Aiding the Enemy, witha possibility of con?nement for life without parole or death, if a capital referral. He also received ColChoike?s response denying his Article 138 Request for Redress. The Marine Corps Base Quantico chainof command wanted COL Malone available to see the accused to assess his mental health with the arrivalof these additional stressors. The accused was observed mumbling in his cell. COL Malone could not belocated and was on emergency leave. On 3 March 2011, CWO2 Barnes got in touch with COL Malonewho arranged to see the accused on 4 March 2011. The MCBQ chain of command was not happy aboutthis. This incident caused LtGen to fully engage with CAPT Neill to coordinate with the Army toget additional mental health support for the accused and for MCBQ.31. On 2 March 2011, shortly before taps, Papapke was advised by a guard that the accused did notunderstand why he had to give up his clothes except underwear at night. Papapke spoke with theaccused who continued to insist he didn?t understand why all of the items are taken except his underwearwith the elastic band that is the most dangerous piece. The accused was chuckling brie?y as if theconversation was absurd. Papapke told CWO2 Barnes of the comment. CWO2 Barnes orderedthat the all of the accused?s gear except one mattress and 2 P01 blankets be removed from his cell aftertaps to include his underwear, shower shoes, and eyeglasses. CWO2 Barnes cited SECNAVINST para 4-as authority to remove the accused?s underwear. This paragraph applies only to SR risk statusnot POI. However, the Court ?nds that SECNAVINST paragraphs 4-14(a) and give authority to theBrig authority to restrict privileges for prisoners in SQ when they must be withheld for reasons ofsecurity or safety. This would include authority to remove clothing, to include underwear, in cases wherethe Brig has reason to believe the clothing was necessary to be removed for security or safety reasonsfor a period of time that is not excessive in relation to the legitimate Government interest in protectingpretrial detainees from self-hann.32. The proper mode of communication from a pretrial detainee to a guard when asking a question was toaddress the guard by his rank and then ask the question. There was no requirement for detainees to referto themselves in the third person. The accused was aware of this through indoctrination. The accused didnot refer to himself in communications with staff in the person as re?ected during his 26 February2011 personal visit when he asked ?LCpl, can I turn on the light??1933. On the morning of 3 March 2011 prior to reveille, the accused?s clothes were not in his feed tray. Hestood at attention during count naked, without covering himself with his POI blanket, as was his normalpractice. The accused had never done this before. While in POI status from 11 August 2010 until 2March 2011, the accused had his clothes removed from taps to reveille except underwear and showershoes. He stood for count covering himself with his POI blanket. The accused testi?ed that he attemptedto stand with his POI blanket covering himself and was told by a guard ?Is this how you stand at paraderest?? The accused testi?ed that he requested clari?cation from the guard by asking ?LCpl, detaineeManning asks if he has to put the blanket down.? He testi?ed that he received a ?yes? response and tookit as an implied task to drop the P01 blanket and stand naked at parade rest and then at the position ofattention during count. Nobody from the brig staff ordered the accused to stand naked at the position ofattention during count. The brig staff did not consider the incident significant until the 4 March 2011New York Times Article entitled ?Soldier in Leaks Case Was Jailed Naked, Lawyer Says.?34. On 3 March 2011 after count, the accused made a telephone call to Mr. Coombs. Mr. Coombsmaintains a blog on this case. On 4 March 201 1, the New York Times article was printed stating inrelevant part that lawyer for PFC Bradley Manning has complained that his client was stripped andle? naked in his cell for seven hours on Wednesday.? The article quoted the following taken from Mr.Coombs? blog. ?The Soldier?s clothing was returned to him Thursday morning, after he was required tostand naked outside his cell during an inspection. This type of degrading treatment is inexcusable andwithout justi?cation. It is an embarrassment to our military justice system and should not be tolerated.PFC Manning has been told that the same thing will happen to him again tonight. No other detainee atthe brig is forced to endure this type of isolation and humiliation.? From 4 March 2011 20 April 2011,the accused was ordered to relinquish all items from his cell except his suicide mattress and 2 POIblankets. The accused was given a suicide smock to wear starting on 7 March 2011. There is noevidence before the Court that the accused was ordered by anyone in the brig to stand naked outside hiscell at any time or to stand naked at any time after the morning of 3 March 201 1. On 4 March 201 1, theaccused?s clothes were in his feed tray prior to count. He was semi or completely dressed prior toreveille.35. On 4 March 2011, LtCol Wright from HQ MC, Law Enforcement and Corrections Branch, SecurityDivision Plans, Policies, and Operations (PSL), the proponent for SECNAVINST 1640.9, wrote an emailto C01 Oltman stating that it was the professional opinion at PSL that they had concerns about recentdecisions made by the Brig and that ?to take measures that are consistent with suicide watch but notof?cially place that person on a suicide watch status is inconsistent with the way we are supposed to dobusiness.?36. LtGen knew nothing of the new handling instructions regarding the accused until he readabout them in the New York Times on 4 March 2011. LtGen was not happy to learn about themthis way. He contacted Col Choike to relay his intent that any changes in the accused?s handlinginstructions or assignment must be briefed to C01 Choike and passed on to LtGen before execution.LtGen intent was to ensure he would be prepared to address political impact, media interest, legalrami?cations, and senior leadership reaction to any changes in handling instructions. The guidance cameafter CWO2 Barnes increased restrictions on the accused. There was no attempt by LtGen ColChoike, or Col Oltman to prevent CWO2 Barnes from easing restrictions on the accused or to chill herdiscretion in making custody or status determinations for the accused.37. Prior to the 4 March 201 1 New York Times Article, LtGen was coordinating with HQMC,HQDA, and the mental health chain of command to provide permanent mental health support both for theaccused and for MCBQ and for additional assets for MCBQ if it continued to serve as a defacto jointregional Personnel Con?nement Facility (PCF). He was also coordinating PAO responses to queries20regarding the con?nement conditions of the accused and inviting visits from outside inspectors generaland of?cials with corrections experience to visit MCBQ to ensure that the brig was con?ning the accusedIAW properly IAW con?nement regulations and procedures. LtGen lynn?s guidance after 4 March2011 to Col Choike was to ensure he was briefed before any changes to the accused?s handling instructionoccurred so he would be prepared to fully explain what occurred and why. LtGen did not intend toin?uence the decisions of the Brig 0 regarding the accused?s custody, status, or handling instructions.The Brig 0 did not perceive LtGen lynn?s guidance as a constraint on her discretion.38. On 14 January 2011, LtGen ordered Col Choike to conduct a zero based review of MCBQ toassess resourcing and viability of designating MCBQ as a Joint or Regional PCF with associatedfunding and manpower. The review found in relevant part that MCBQ was not resourced to house long-term pretrial detainees for more than 180 days and was not resourced to house high pro?le pretrialdetainees requiring maximum security and with complex mental health issues. The zero based reviewfurther recommended that the brig policy provision changes: (1) the provision mandating detainees inreceive a custody classi?cation of MAX should be changed to provide that custody and statusevaluations be conducted separately; (2) clarify the authority of a Medical Of?cer to determine whatprotective measures are necessary based on a mental health evaluation, and of a Brig to impose, or re-impose, additional protective measures based on subsequent behavior; (3) establish separate SQ andgeneral population quarters; and (4) ensure that the Brig returns detainees to the appropriate conditionsor quarters when no longer considered to be suicide risks by a Medical Officer. The SOP should alsostate that, absent additional factors, the Brig 0 may not place, or return, a detainee to SR status andimpose associated protective measures. Ultimately the zero based review recommended the con?nementfacility at MCBQ be closed.39. On 20 April 2011, the accused was transferred to the Joint Regional Con?nement Facility (JRCF),Fort Leavenworth, KS. He was classi?ed MDI and remains at the classi?cation level to date with onedisciplinary review board. JRCF does not have POI status.40. After the accused?s transfer, HQMC, PSL sent guidance to MCBQ to ensure that custody andclassi?cation were separate determinations. As a matter of correctional practice, similar factors areconsidered to determine MAX custody and P01 status.The Law:1. Article 13, UCMJ prohibits the imposition of (1) punishment prior to trial and (2) conditions of arrestor pretrial con?nement that are more rigorous than necessary to ensure the accused?s presence for trial.Prong one involves a purpose or intent to punish determined by examining the intent of detention of?cialsor by examining the purposes served by the restriction or condition and whether such purposes arereasonably relate legitimate government objective. The second prong applies only when an accused is inpretrial con?nement. Prong 2 examines whether conditions are sufficiently egregious to give rise to apermissive inference that the accused is being punished or the conditions may be so excessive as toconstitute punishment. United States v. King, 61 MJ. 225 (C.A.A.F. 2005).2. Under both prongs, the burden is on the Defense to show military of?cials intended to punish theaccused or that the restrictions imposed were excessive or otherwise not reasonably related to legitimategovernment objectives. US. v. Harris, 66 M.J. 166 (C.A.A.F. 2008).3. Sentence credit is the appropriate remedy for Article 13, UCMJ violations RCM 305(k). US. v.Williams, 68 M.J. 252 (C.A.A.F. 2010). Dismissal is also a possible remedy that is rarely appropriateand should be exercised only under the most egregious circumstances so as not to exonerate an accused21 for reasons unrelated to guilt or innocence and thereby preclude the public?s interest in deterring thecommission of serious misconduct. US. v. Fulton, 52 M.J. 767 (A.F. Ct. Crim. App. 2000).4. Conditions of con?nement relate to both ensuring the accused?s presence for trial and the securityneeds of the con?nement facility. Military Courts should be reluctant to second-guess the securitydeterminations of con?nement of?cials. United States v. Crawford, 62 M.J. 411, 414 (C.A.A.F. 2006).Maintaining security and order and operating the institution in a manageable fashion are peculiarly withinthe province and professional expertise of corrections officials, and, in the absence of substantial evidencein the record to indicate that the officials have exaggerated their response to these considerations, courtsshould ordinarily defer to their expert judgment in such matters. Id. (quoting Bell v. Wol?sh, 441 U.S.520, 540 n.23 (1979)). The test is (1) is there an intent to punish or stigmatize a person awaitingdisciplinary action; and (2) if not, were the conditions reasonably in furtherance of a legitimate non-punitive objective? United States v. Starr, 53 M.J. 380 (C.A.A.F. 2000). The Court ?nds that?reasonably? includes an analysis of whether restrictions taken by military officials are excessive inrelation to the legitimate government interest involved.5. The Eight Amendment protection against cruel and unusual punishment does not apply to prisonerswho have not been convicted and sentenced - or in other words, punished. Pretrial detainees challengingpretrial con?nement conditions as unlawful pretrial punishment do so via the Due Process Clause of theFifth Amendment to the U.S. Constitution. US. v. Bistrian, 2012 WL 4335958 (Third Cir. 2012). LikeArticle 13, UCMJ, the Fifth Amendment Due Process clause protects pretrial detainees who have notbeen convicted and sentenced from being punished. Conditions reasonably related to a con?nementfacilities? interest in maintaining jail security are not unlawful pretrial punishment. Like Article 13, thetest under the Fifth Amendment for whether a particular measure amounts to unlawful pretrial punishmentis whether there is an express intent to punish, when the restriction or condition is not reasonably relatedto a legitimate non-punitive government purpose, or when the restriction is excessive in light of thatpurpose in light of the totality of the circumstances. Bell v. Wol?sh, 441 U.S. 520 (1979). The Court?nds that the ?excessiveness? in relation to government interest is included in the Article 13 analysis ofwhether a condition of con?nement is reasonably related to a legitimate government interest. The Courthas not been presented with any evidence that sentence credit is a remedy for Fifth Amendment violationof unlawful pretrial punishment. Dismissal of charges under the Fifth Amendment Due Process clause isappropriate only in rare instances where the government has engaged in outrageous conduct. US. v.Djokich, 2012 WL 3711536 (Isl Cir. 2012). As such, the Court encompasses the Fifth Amendmentchallenge in its Article 13, UCMJ ?ndings of fact and conclusions of law.6. Con?nement in violation of service regulations does not create a per se right to sentence credit underArticle 13, UCMJ. US. v. Williams, 68 M.J. 252 (C.A.A.F. 2010)_ citing US. v. Adcock, 65 M.J. 18(C.A.A.F. 2007). Failure to follow the requirements of a regulation such as the SECNAVINST as itrelates to the conditions of pretrial con?nement, is not determinative on the issue of a violation of Article13. U. S. v. McCarthy, 47 M.J. 162, 168 (C.A.A.F. 1997).7. [D]e mtnimis impositions . . . are not cognizable under Article 13, UCMJ. United States v. Corteguera,56 MJ 330 (C.A.A.F. 2002).8. Long-terin classi?cation of a pretrial detainee in MAX custody is not automatically a violation ofarticle 13. McCarthy, 47 M.J. at 168. Even if the accused is con?ned as a pretrial detainee for a longtime, he is not allowed to dictate the conditions of his con?nement. US. v. Willenbring, 56 M.J. 671 (A.Ct. Crim. App. 2001). Decisions to place pretrial detainees into MAX custody status based on arbitrarypolicies that do not examine the individual circumstances of the accused or based solely on the chargesrather than a reasonable evaluation of the facts and circumstances in a case can violate Article 13,U.C.M.J. US. v. Crawford, 62 M.J. 411 (C.A.A.F. 2006) US. v. Evans, 55 M.J. 732 (N.M. Ct.Crim.App.22 2001); U.S. v. Anderson, 49 M.J. 575 (N .M. Ct. Crim. App. 1998 (brig policy requiring custody level ofMAX for detainees who face more than ?ve years con?nement is arbitrary and constitutes unlawfulpretrial punishment in violation of Article 13). However, the nature and seriousness of the offense andpotential length of sentence are relevant factors brig of?cials may consider in determining custody level.U.S. v. Harris, 2007 W.L. 1702575 (N.M. Ct. Crim. App. 2007).9. Preventing suicide is a legitimate government interest. U.S. v. Williams, 68 M.J. 252 (C.A.A.F. 2010).10. Failure of the accused to contemporaneously complain is strong evidence that Article 13 was notviolated. Subsequent good behavior does not serve to revise the facts as they existed and were known tobrig authorities. U.S. v. Crawford, 62 M.J. at 415 quoting U.S. v. Huffman, 40 M.J. 225, 227 (C.M.A.1994)). However, the fact that an accused or defense counsel does complain does not prove that anArticle 13 violation occurred. U.S. v. King, 61 M.J. 225 (C.A.A.F. 2005).1 l. The views of United Nations of?cials, such as the Special Rapporteur in this case, may serve as auseful interpretative aid, but do not possess the force of law unless Congress has endowed them with suchauthority, and are not controlling of legal determinations in American courts. INS v. Aguirre-Aguirre,526 U.S. 415 (1999). There has been no evidence presented that Article 13, UCMJ was enacted toimplement any international obligations of the United States. Medallin v. Texas, 554 U.S. 759 (2008).Conclusions of Law:1. The Defense Challenges the periods the Accused remained on SR over CAPT Hocter?srecommendation as unlawful pretrial punishment. The Government concedes that maintaining theaccused on SR after a mental health provider determined he was no longer a suicide risk constitutesunlawful pretrial punishment under Article 13. The Court agrees. The accused will receive 1 daycon?nement credit starting the day after CAPT Hocter recommended the accused be removed from SR.Thus the accused will receive sentence credit for pretrial punishment in violation of Article 13 from 7-11August 2010 and 19-20 January 2011, a total of 7 days. 2. From on or about December 2010 until the accused was transferred to RCF on 20 April 2011, theaccused?s conditions of con?nement generated a lot of media, non-govemmental organization (NGO),international entity, and individual Congressional attention. Individuals from these organizations, toinclude Mr. Mendez, U.N. Special Rapporteur and Congressman Kucinich, requested to visit the accused.MCBQ did not deem these as ?of?cial visits,? and elevated inquiries from such individuals or entities tovisit the accused in an unmonitored status to higher headquarters Marine Corps, Army, or This wasappropriate. Neither Mr. Mendez nor Congressman Mr. Kucinich nor any other member of a NGO orinternational entity were on the accused?s visitation list. What, if any, visitation between individualmembers of international or NGO entities and individual Congressmen acting on their own recognizanceis within the discretion of the Executive branch. There has been no evidence presented that Article 13,UCMJ was enacted to implement any U.S treaty or other foreign affairs obligation of the United States.The Court further defers to the agency interpretation of its own regulations. Denial of or monitoring ofvisits by NGOS, international bodies, or Congressmen acting in their individual capacities is within thediscretion of the Executive Branch and does not constitute illegal pretrial punishment under Article 13,UCMJ.3. The accused was not held in solitary con?nement. Solitary means alone and without human contact.Although the accused was con?ned by himself in a cell similar to that of the other detainees at MCBQ, hehad daily human contact. There were no additional doors separating the accused?s cell from the mainhallway. He could view all activity going on in the hallway. The accused had weekly visits with hiscounselor and mental health professionals as well as daily walk through visits by the Brig O.234. Throughout the duration of the accused?s pretrial detention at MCBQ, the board met weekly toassess the accused?s custody level and classi?cation. Although there was some confusion in the brigpolicy over whether POI status required MAX custody, the board independently determined theaccused should be detained in MAX status relying on factors set forth in the SECNAVINST independentof P01, primarily the nature of the accused?s offenses, the potential length of sentence, low tolerance forfrustration, continuing need for mental health evaluation, and poor family relationship. Blenisprepared and presented his recommendation as to custody and classi?cation as the accused?s counselorwhile simultaneously serving as the senior member of the board. Although this procedure was not ideal,the Court ?nds each member of the board reached his determination independently and the boardprocedures were conducted and reported within the SECNAVINST guidance. The Court fl.lI'thCI' ?ndsthat CWO4 Averhart and CWO2 Barnes made independent judgments with regard to each of theaccused?s custody/classi?cation determinations. Although Col Oltman concurred with both CWO4Averhart and CWO2 Barnes? determinations, he made no attempt to in?uence their decisions. ColOltman concurred after the determinations were made. Neither Col Choike nor LtGen attempted toin?uence the decisions of either CWO4 Averhart or CWO2 Bames with respect to custody orclassi?cation of the accused. On 14 January 201 l, heated words were exchanged between Col Oltmanand CAPT Hocter. Col Oltman stated if it were necessary for the accused to appear at trial, the accusedwould stay on while under his watch. By these comments, Col Oltman did not attempt toin?uence CWO2 Bames in her custody/status decisions. He did not in fact in?uence her custody/statusdecisions regarding the accused. Throughout the accused?s detention at MCBQ, when Col Oltman wasbriefed by CWO4 Averhart or CWO2 Barnes regarding the accused custody, classi?cation, or handlinginstructions, the brie?ng occurred to advise Col "Oltman of the decisions after they had been made. TheBrig O?s decision to maintain the accused in MAX custody throughout his con?nement at MCBQ wasbased on an individualized consideration of the accused and the SECNAVINST factors. This was neitheran abuse of discretion nor a violation of Article 13.5. As early as the arrival of the accused, LtGen intent was to ensure MCBQ was followingregulations and procedures properly with common sense in detaining the accused. He wanted to hold themoral high ground. LtGen was consistently engaging with the mental health chain of command,HQMC Corrections, and the Anny at the HQDA level to obtain additional mental health to enable MCBQto effectively maintain the accused as a long-term pretrial detainee. As the Senior Mission Commanderequivalent of MC Quantico, LtGen had a need to know of any changes in handling instructions,custody/status, or other con?nement conditions for the accused so he was prepared to engage and informhigher headquarters, PAO, and others who were informing the public about MCBQ to ensure accurateinformation was being relayed about the accused?s conditions of con?nement.6. There was no intent to punish the accused by anyone on the MCBQ staff or in the MC Quantico chainof command. Their intent was to ensure the accused was safe, did not hurt or kill himself, and waspresent for trial. MCBQ staff was also concerned about the security of MCBQ, its staff, and otherprisoners there.7. The charges are serious in this case and there was no intent to punish the accused. Dismissal ofcharges is not an appropriate remedy for any Article 13, UCMJ violations in this case.8. Preventing a pretrial detainee from injuring or killing himself is a legitimate government intereststatus is a reasonable tool for advancing that interest. Unlike SR, where the decisionto remove is made by a medical of?cer, the SECNAVINST leaves the P01 removal decision to the BrigO. In this case, the accused was held in long-term POI status based largely on his mental health historyand his mental health condition with restrictions approaching those of SR. At some point, continuing P0124over the recommendation of mental health professionals becomes excessive in relation to the legitimategovernment interest absent changes in circumstances.9. With respect to the CWO4 Averhart/CAPT Hocter tenure, there was no meaningful engagementbetween the brig staff and CAPT Hocter. The brig staff did not trust CAPT Hocter. CAPT Hocterrecommended that the accused be removed from POI on 27 August 2010. The Brig 0 had the discretionto maintain the accused on POI after that recommendation for a reasonable period of time. Thereasonableness of time includes consideration of the accused?s history of suicidal ideation and violentbehavior in Kuwait, the ambiguous statements made by the accused regarding suicide as an optioninde?nitely, and the accused?s continued guarded communication with brig staff. The Court ?nds thatcontinued maintenance of the accused on POI status over mental health recommendation after 1November 2010 was excessive in relation to the legitimate POI interest resulting in the accused beingheld in conditions more rigorous than necessary except for the period of 10-13 December 2011 whereCPT Hocter recommended the accused remain on POI. The court will award 1 day of sentence creditfrom 1 November 2010 17 January 2011, (minus 10-13 December) a total of 75 days.10. The accused?s panic attack on 18 January 2011 followed by his comments on 21 January 2011 and 2March 2011 in light of his behavior and comments in Kuwait caused reasonable concern for the brig staff.Continuing the accused on POI, notwithstanding the recommendations from mental health professionals,was not excessive in relation to the legitimate government interest in preventing the accused from injuringhimself or others. There was no Article 13 violation from 18 January 3 March 2011 and a reasonableperiod thereafter.11. CWO2 Barnes had authority to remove the accused?s underwear when he made a direct commentabout the ability to commit suicide with the waist-band. However, this removal does approach SRrestrictions and, at some point, the accused?s comments must be considered in context and in connectionwith his mental health diagnosis even if the brig officials disagree with the diagnosis/treatment plan of themental health professional. The Court sets that point at 1 April 2011. Maintaining the accused in POIstatus over the recommendation of the mental health professionals when his mental health condition wasin remission and without considering the context of the 2 March 2011 communication by the accusedbecame excessive in relation to the legitimate government interest. This decision is a very close call. InMarch/April 2011, the accused removed visitors from his visitation list, withdrew completely fromcommunication with brig staff even after being advised that if he provided assurances to the Brig andexplanations of his behavior, he could be taken off POI status, was engaging in a subtle increase in ruleviolations, and was not truthful in statements to LTC Russell. These factors are balanced by the fact thatthe Brig was aware the accused believed his comments of 21 January 2011 and 2 March 2011 werebeing used against him to continue his POI status and the history of maintaining the accused on POI status without meaningful mental health provider input. The Court will grant day for day sentencecredit from 1-20 April 2010, a total of 20 days.12. Although the SECNAVIN ST does not af?rmatively state that one hour is required exercise time forall prisoners, the testimony from CWO5 Galaviz, CWO2 Barnes, and LTC Hilton, as well as the DSsection of the SECNAVIN ST and MCBQ policy indicate that 1 hour of exercise is the standard for allprisoners unless limited because of prisoner behavior or staff resource constraints. The Court ?ndsneither existed to systematically limit the accused to 20 minutes of exercise call from 29 July 2010 10December 2010. This violation, although not de minimus, is minor. One for one day sentence credit isexcessive and disproportionate to the Article 13, UCMJ violation; the Court grants 10 days of sentencecredit.2513. Any comments that may be perceived as derogatory statements made about the accused in emailsbetween brig staff are de minimus, were not communicated to the accused or any other prisoner, and werenot humiliating to the accused. No sentence credit is warranted.14. Monitoring the accused?s communications and visitation under circumstances where the accused ischarged with disclosing a huge volume of classified information is legitimate government interest anddoes not violate Article 13.15. The court recognizes that RCM 305(k) could provide an independent basis for additional credit. US.v. Williams, 68 M.J. 252 (C.A.A.F. 2010). Having considered the totality of the circumstances as setforth above, RCM 305(k) and the granted Article 13 credit, the Court does not believe additional credit iswarranted.RULING: The accused will be credited 112 days of sentence credit for Article 13 punishment.so ORDERED this day of January 2013.DENISE R. LINDCOL, JAChief Judge, 1? Judicial Circuit26


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