Speedy Trial in the Military: The 120-Day Rule, Article 10, and the Sixth Amendment
Key takeaways
- Four separate protections apply, each with its own trigger and test — and courts apply every one that fits. United States v. Wilder, 75 M.J. 135 (C.A.A.F. 2016).
- R.C.M. 707 is the only protection with a fixed number: 120 days from preferral, qualifying restraint, or entry on active duty to arraignment.
- Article 10 is stricter than the 120-day rule and stricter than the Sixth Amendment — it applies only when the accused is in pretrial arrest or confinement, and its remedy is dismissal with prejudice.
- The government can extend the 120 days through excludable delay approved by the convening authority or military judge — the main battleground in most R.C.M. 707 litigation.
- A violation must be raised by timely motion at trial; the remedy is dismissal, with or without prejudice depending on the violation.
The four speedy trial protections
“Speedy trial” in the military is not one rule but four, layered on top of each other. Each has its own trigger and its own test, and the Court of Appeals for the Armed Forces has made clear that every applicable protection gets applied in every case. United States v. Wilder, 75 M.J. 135 (C.A.A.F. 2016).
| Protection | Trigger | Test | Remedy |
|---|---|---|---|
| R.C.M. 707 | Preferral of charges, restraint under R.C.M. 304(a)(2)–(4), or entry on active duty | 120 days to arraignment, minus excludable delay | Dismissal — with or without prejudice |
| Article 10, UCMJ | Pretrial arrest or confinement | “Immediate steps” / reasonable diligence, weighed through the Barker factors | Dismissal with prejudice |
| Sixth Amendment | Preferral of charges | Balancing the four Barker v. Wingo factors | Dismissal with prejudice |
| Fifth Amendment due process | Commission of the offense — covers pre-preferral investigative delay | Egregious delay causing actual prejudice | Dismissal |
Practitioners reflexively think of the 120-day clock, but it is the only protection with a set number of days — and often not the strongest one available. For a confined accused, Article 10 can be violated in fewer than 120 days, or fewer than 90. Where each clock starts, and what stops it, decides these motions.
R.C.M. 707: the 120-day rule
The rule itself is blunt:
“The accused shall be brought to trial within 120 days after the earlier of: (1) Preferral of charges; (2) The imposition of restraint under R.C.M. 304(a)(2)-(4); or (3) Entry on active duty under R.C.M. 204.”R.C.M. 707(a)
Four working rules give the clock its shape:
- What starts it. Preferral; restriction, arrest, or pretrial confinement under R.C.M. 304(a)(2)–(4); or a reservist’s entry on active duty for discipline. Mere “conditions on liberty” do not start the clock, and neither does administrative restraint imposed for operational or medical reasons — courts ask what the primary purpose of the restraint was. United States v. Bradford, 25 M.J. 181 (C.M.A. 1987).
- How to count. The trigger day does not count; the day of arraignment does. R.C.M. 707(b)(1).
- What stops it. Arraignment. An arraignment on day 119 is still timely — CAAF has refused to treat a promptly held arraignment as a “sham” to beat the clock. United States v. Doty, 51 M.J. 464 (C.A.A.F. 1999). But note: for a confined accused, arraignment does not end the government’s Article 10 obligations.
- What subtracts from it. Excludable delay approved by the convening authority (before referral) or the military judge (after referral) — plus automatic exclusions for appellate stays, unauthorized absence, and incompetence-related custody. R.C.M. 707(c).
The clock can also restart at zero — after a legitimate dismissal of charges, a significant release from restraint, a government appeal, an appellate-ordered rehearing, or return from Attorney General custody. Each restart has its own trap doors, and the government’s favorite move — dismissing and re-preferring charges — is policed by a subterfuge doctrine with real teeth. The counting rules, the restarts, and the excludable-delay fights are dissected in R.C.M. 707: what counts toward 120 days and what is excluded.
Article 10: the confinement standard
Article 10 speaks in a register no other speedy trial rule uses:
“When a person subject to this chapter is ordered into arrest or confinement before trial, immediate steps shall be taken (A) to inform the person of the specific offense of which the person is accused; and (B) to try the person or to dismiss the charges and release the person.”Art. 10, UCMJ
The standard is reasonable diligence, not a day count — and CAAF has said Article 10 can be violated even when the government beats the 120-day rule comfortably. United States v. Kossman, 38 M.J. 258 (C.M.A. 1993). Because its remedy is dismissal with prejudice, Article 10 is the most dangerous speedy trial provision in the government’s path whenever an accused sits in pretrial confinement. It gets its own guide: Article 10: speedy trial for service members in confinement.
The Sixth Amendment and the Barker factors
The constitutional speedy trial right attaches at preferral of charges. United States v. Danylo, 73 M.J. 183 (C.A.A.F. 2013). Courts test alleged violations by balancing the four factors of Barker v. Wingo, 407 U.S. 514 (1972):
- Length of the delay — a gatekeeper: only a presumptively prejudicial delay triggers the full analysis, and what counts as long depends on the complexity of the case;
- Reason for the delay — deliberate delay weighs heavily against the government; crowded dockets weigh less; missing witnesses may not weigh at all;
- The accused’s demand — did the defense assert the right on the record?
- Prejudice — oppressive incarceration, anxiety, or actual impairment of the defense.
In United States v. Edmond, 41 M.J. 419 (C.A.A.F. 1995), 176 days from preferral to trial triggered the full analysis — but the balance still favored the government where the reasons were legitimate and the accused, unrestrained and working in his rating, suffered only slight prejudice. The lesson cuts both ways: the factors are winnable, and they are built at trial level, demand by demand, delay by delay.
Fifth Amendment due process
The Sixth Amendment does not reach delay before charges exist — but the Fifth Amendment does. Due process protections run from the commission of the offense and cover the investigative stage, so egregious pre-preferral delay that causes actual prejudice to the defense (lost witnesses, destroyed evidence, faded memories) can support dismissal even though no clock ever started. These claims are hard to win, but in stale cases — allegations surfacing years after the events — they belong in the motions analysis alongside the statute of limitations.
What this means if your case is stalled
Delay is not neutral. While the government idles, your career is often on hold — flags, suspended clearances, promotion passovers — and if you are confined, every day is the injury itself. But delay only becomes leverage if the defense builds the record: a written demand for speedy trial, objections to government delay requests, and a running accounting of every day and who owns it. Courts weigh what the record shows, not what the accused endured silently.
Remedies: dismissal with or without prejudice
The remedy for an R.C.M. 707 violation is dismissal on timely motion — with or without prejudice, weighing the seriousness of the offense, the circumstances leading to dismissal, the impact of re-prosecution on the administration of justice, and prejudice to the accused. R.C.M. 707(d). Dismissal must be with prejudice when the accused was deprived of the constitutional right. For Article 10 and Sixth Amendment violations, dismissal with prejudice is the remedy, full stop. And appellate courts defer heavily to the military judge who grants it: in United States v. Dooley, 61 M.J. 258 (C.A.A.F. 2005), CAAF reinstated a with-prejudice dismissal because mere disagreement with the trial judge is not an abuse of discretion.
Two boundaries: a mistrial is not an authorized remedy for an R.C.M. 707 violation (United States v. McClain, 65 M.J. 894 (Army Ct. Crim. App. 2008)), and in a sentence-only rehearing the judge may award sentence credit rather than dismissal. R.C.M. 707(d).
Litigating speedy trial as the defense
- Demand early, demand in writing, demand often. The third Barker factor belongs entirely to the defense. In United States v. Cooley, 75 M.J. 247 (C.A.A.F. 2016), five separate speedy trial demands helped win dismissal with prejudice.
- Audit every delay approval. Delays must come from the right authority, should not be granted ex parte, and should be in writing. Unapproved or improperly attributed time belongs to the government.
- Track all four clocks at once. A confined client can lose the 707 motion and win under Article 10 on the same facts — the standards are different by design. United States v. Mizgala, 61 M.J. 217 (C.A.A.F. 2005).
- Watch the restart games. Dismiss-and-reprefer maneuvers near day 120 draw subterfuge scrutiny; a dismissal whose sole purpose is beating the clock does not restart it.
- File before pleas. Speedy trial motions must be raised by timely motion at trial or the R.C.M. 707 issue is lost — though an unconditional guilty plea does not waive an Article 10 claim. Mizgala.
Practitioner’s note
We keep a day-by-day accountability chart in every case with restraint or slow preferral: date, event, days elapsed, delay requests, who asked, who approved, in writing or not. Governments lose speedy trial motions on documentation more often than on villainy — the approval that was ex parte, the delay attributed to the defense that the defense never requested, the “administrative” restraint whose paper trail shows a justice purpose. The chart writes the motion. And when the client is confined, we send the first written speedy trial demand within days, not weeks — it costs nothing and compounds daily.
Frequently asked questions
How long can the military take to bring me to trial?
The only fixed number is R.C.M. 707's 120 days from preferral of charges, qualifying pretrial restraint, or entry on active duty to arraignment — extendable by approved excludable delay. If you are in pretrial confinement, Article 10 demands reasonable diligence and can be violated in far fewer than 120 days.
Does the 120-day speedy trial clock apply if I'm not in confinement?
Yes. The clock starts at the earliest of preferral of charges, imposition of restriction/arrest/confinement, or entry on active duty — so a preferred charge starts the 120 days even for an accused under no restraint at all. Conditions on liberty alone, however, do not start the clock.
What happens if the government violates the 120-day rule?
On timely motion, the charges are dismissed. The military judge decides whether dismissal is with or without prejudice by weighing the seriousness of the offense, the circumstances, the effect of re-prosecution, and prejudice to the accused — and dismissal must be with prejudice where the constitutional right was violated. R.C.M. 707(d).
What is the difference between R.C.M. 707 and Article 10?
R.C.M. 707 is a 120-day arithmetic rule that applies in every preferred case and stops at arraignment. Article 10 applies only to an accused in pretrial arrest or confinement, demands reasonable diligence rather than a day count, continues past arraignment, and is remedied by dismissal with prejudice. A confined accused holds both protections simultaneously.
Should I demand a speedy trial?
In most delayed cases, yes — in writing and on the record. The demand is one of the four Barker factors courts weigh, and repeated documented demands have been decisive in winning dismissals. Whether and when to demand is a strategic call, since sometimes delay helps the defense — which is exactly why counsel should manage it.
Can I still raise speedy trial if I plead guilty?
An unconditional guilty plea does not waive appellate consideration of an Article 10 claim — CAAF held so in United States v. Mizgala. R.C.M. 707 claims, by contrast, must be preserved by timely motion, and most other objections are extinguished by a plea, so raise every speedy trial theory before pleas.
About the attorneys behind this guide
Michael Waddington, Civilian Military Defense Lawyer
Michael Waddington has litigated speedy trial motions in courts-martial for more than 25 years — building the day-by-day accountability records that turn government delay into dismissals. A former Army prosecutor and defense counsel, he has defended service members in confinement-heavy cases where Article 10’s reasonable-diligence standard, not the 120-day arithmetic, decided whether charges survived, and he is a nationally recognized author and instructor on trial advocacy.
Alexandra González-Waddington, Founding Partner
Alexandra González-Waddington, founding partner of Gonzalez & Waddington, has spent more than 20 years defending accused service members whose lives sat frozen while their cases idled — flagged, passed over, and sometimes confined. She has pressed speedy trial demands and delay objections in UCMJ cases across every branch, from sexual assault prosecutions to violent offense cases, and legally reviewed this guide against R.C.M. 707 and the current CAAF case law.
Talk to a civilian court-martial defense lawyer today
Gonzalez & Waddington defends Soldiers, Sailors, Airmen, Marines, Guardians, and Coast Guardsmen worldwide — in UCMJ investigations, courts-martial, Article 15/NJP actions, GOMOR rebuttals, administrative separation boards, and Boards of Inquiry. We defend the whole case: the investigation, the trial, the administrative fallout, and the long-term consequences to your rank, retirement, clearance, and discharge.
Sources for this guide include the Uniform Code of Military Justice, the Manual for Courts-Martial (2024 ed.), the Rules for Courts-Martial, the TJAGLCS Criminal Law Deskbook, and the cited decisions of the Court of Appeals for the Armed Forces and the service Courts of Criminal Appeals. It is attorney advertising and general legal information — not legal advice, and reading it does not create an attorney–client relationship. Every case turns on its own facts. Service procedures vary; Army references (AR 27-10) are noted where used.