In UNITED STATES v. SCHUBER, 70 MJ 181 (C.A.A.F. 2011) Schuber was subject to restriction not tantamount to arrest during the period following his 71 days in pretrial confinement, where accused was limited to base rather than to quarters, and even though he was required to provide weekly urine samples, he was allowed to avail himself of all usual base activities, was provided a three-day pass to grieve with his family upon the death of his grandfather, was not kept under watch or escort at the time of his base restriction or travel, and was not suspended from undertaking normal military duties.
The court had to determine if Appellant’s post-confinement restriction amounted to an arrest under Article 10, UCMJ or whether Appellant’s right to a speedy trial under Article 10, UCMJ, was violated.
The CAAF affirmed the AFCCA decision overturning the trial court’s dismissal of the case for an Art. 10 speedy trial clock violation. CAAF reviewed both issues when deciding the case. While questioning whether the government met its Art. 10 burden, the court ruled that while the government’s actions were “less than commendable,” the prosecution did meet the burden. The CAAF held that “the test is reasonable diligence, not textbook prosecution.” The court noted the rule is in place to bar situations where one is held without knowing the charges against them, originating from immediately following the Civil War when a general officer was held without being provided any information. In this case, Schuber realized what he was being accused of, if not charged with, on his second day of confinement at during pretrial confinement hearing.
In reviewing the second issue, the court ruled the time Schuber spent restricted to post after he was released from confinement did not count as arrest under Art. 10. The court ruled that while he was under restriction, that does not automatically equate to arrest, due to the varying levels of restriction. The court listed four non-exclusive factors to consider in helping to determine whether the restriction equates to arrest: 1) geographic limits of restraint, 2) the extent of sign-in requirements, 3) whether restriction is performed with or without escort, and 4) whether regular military duties are performed.
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