Article 10: Speedy Trial for Service Members in Confinement
Key takeaways
- Article 10 is triggered only by pretrial arrest or confinement — and restriction severe enough to amount to arrest counts. Schuber.
- The standard is reasonable diligence, not a day count — Article 10 can be violated even when the government beats R.C.M. 707’s 120 days. Kossman.
- Courts weigh the four Barker factors, applied more stringently because the accused is locked up. Cooley.
- Arraignment does not end the government’s Article 10 obligation (Cooper), and an unconditional guilty plea does not waive the claim on appeal (Mizgala).
- The remedy is dismissal with prejudice — the government does not get a second try.
What Article 10 says
“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
Congress wrote “immediate steps” into the statute because pretrial confinement is itself the harm the provision guards against: a service member locked up on unproven charges loses liberty that no acquittal restores. Where the 120-day rule is arithmetic, Article 10 is an obligation of conduct — the government must actually move.
The trigger: arrest, confinement — and restriction that amounts to arrest
Unlike the other speedy trial protections, Article 10 applies only when the accused is placed in pretrial arrest or confinement. But the label on the paperwork does not settle the question. In United States v. Schuber, 70 M.J. 181 (C.A.A.F. 2011), CAAF held that whether a restriction amounts to arrest for Article 10 purposes “will depend on a contextual analysis” — the geographic limits of the constraint, sign-in requirements, escort requirements, and whether the accused still performs normal military duties. Schuber’s base-wide restriction, with full access to base activities, no escort, and regular duties, was not arrest. A tighter regime — quarters-only limits, frequent sign-ins, escorts — can be, even while the accused keeps working. For the defense, Schuber is an invitation: document the actual conditions, not the form’s title.
Reasonable diligence: from Burton to Kossman
For two decades, United States v. Burton, 44 C.M.R. 166 (C.M.A. 1971) supplied a bright line: pretrial confinement over 90 days created a presumptive violation. United States v. Kossman, 38 M.J. 258 (C.M.A. 1993) scrapped the presumption and replaced it with the standard that governs today — reasonable diligence — while making two things explicit: Article 10 can be violated in fewer than 120 days, or fewer than 90; and the government is not required to be in constant motion:
“The touchstone . . . is not constant motion, but reasonable diligence in bringing the charges to trial. Brief periods of inactivity in an otherwise active prosecution are not unreasonable or oppressive.”United States v. Kossman, 38 M.J. 258 (C.M.A. 1993)
Kossman also described where the motion lies: when the government “could readily have gone to trial” but negligently or spitefully chose not to. The question is never whether the case took N days; it is whether the government’s conduct, viewed as a whole, honored the statute’s demand for immediate steps.
The Barker factors in an Article 10 posture
Courts analyze Article 10 claims by balancing the four factors of Barker v. Wingo, 407 U.S. 514 (1972) — length of delay, reasons for delay, the accused’s demand, and prejudice. United States v. Birge, 52 M.J. 209 (C.A.A.F. 1999). Two features distinguish the Article 10 version:
- The weighing is harsher for the government. Because the accused is confined, courts apply the factors more stringently than in a pure Sixth Amendment claim — Article 10 is “more exacting” than the Constitution. United States v. Mizgala, 61 M.J. 217 (C.A.A.F. 2005).
- The wrong yardsticks are reversible error. Mizgala catalogued the traps: the 120-day rule is irrelevant to the Article 10 analysis; “gross negligence” is not the standard — reasonable diligence is; and the judge may not confine the analysis to the bare constitutional factors.
Cooley: the modern template for a winning motion
United States v. Cooley, 75 M.J. 247 (C.A.A.F. 2016) shows all four factors landing for the defense. CAAF affirmed dismissal with prejudice where: (1) 289 days to trial was unreasonable and triggered full analysis; (2) the government’s stated reason — a continuing investigation in a complex case — collapsed because no investigation actually occurred after confinement began and the case was not complex; (3) the defense had demanded speedy trial five times; and (4) actual prejudice existed because government gamesmanship delivered the defense’s requested expert consultant only days before trial, gutting the sentencing case. Every element of that template is buildable: test the government’s stated reasons against what actually happened, demand repeatedly on the record, and document concretely how the delay hurt the defense.
What this means if you’re in pretrial confinement now
Three moves protect you from day one. First, a written speedy trial demand — renewed at intervals — because the demand factor belongs entirely to the defense. Second, a running log of government activity and inactivity: what happened each week, and what didn’t. Third, scrutiny of your restraint conditions under Schuber — a “restriction” with quarters-tight limits, sign-ins, and escorts may already have you inside Article 10’s protection. None of this happens automatically. It happens because your defense team makes it happen.
Why Article 10 outlasts arraignment — and a guilty plea
Two rules make Article 10 uniquely durable. First, arraignment — which stops the R.C.M. 707 clock — does not end the government’s Article 10 duty: CAAF held in United States v. Cooper, 58 M.J. 54 (C.A.A.F. 2003) that the obligation of reasonable diligence toward a confined accused “does not terminate simply because the accused is arraigned.” A government that arraigns early and then lets a confined accused sit is still exposed. Second, an unconditional guilty plea does not waive appellate consideration of an Article 10 claim. Mizgala. That combination — surviving arraignment and surviving the plea — makes Article 10 the rare pretrial issue that stays alive all the way through appeal, provided it was litigated below.
What diligence looks like — and what it doesn’t
The reported cases sketch both sides of the line:
- Violations. An overall lack of forward motion in a simple case, including two months to appoint defense counsel over paperwork (United States v. Hatfield, 44 M.J. 22 (C.A.A.F. 1996)); a handful of phone calls as the sum of months of “investigation” (United States v. Collins, 39 M.J. 739 (N.M.C.M.R. 1994)); 134 days to trial with unexplained gaps the government never accounted for (United States v. Laminman, 41 M.J. 518 (C.G. Ct. Crim. App. 1994)); 20 days of confinement before any action, 66 days before defense counsel was provided (United States v. Calloway, 47 M.J. 782 (N-M. Ct. Crim. App. 1998)); and a case dismissed with prejudice where a mistaken jurisdictional belief and a training exercise stalled a confined Soldier’s case for months — “operational considerations are relevant, [but] they are not an absolute excuse.” United States v. Simmons, 2009 CCA LEXIS 301 (Army Ct. Crim. App. 2009).
- No violation. 117 days of confinement survived scrutiny where the government’s explanations held up, though the trial judge’s legal errors drew a detailed corrective opinion (Mizgala); 270 days survived where the record showed steady, necessary work (United States v. Roberts, 2009 WL 613877 (A.F. Ct. Crim. App. 2009)); and 145 days survived where jurisdictional handover with civilian authorities explained the gap and the defense did not demand speedy trial until day 140 (United States v. Thompson, 68 M.J. 308 (C.A.A.F. 2010)).
The pattern is legible: governments lose when the record shows dead air they cannot explain, and win when they can narrate the file week by week. Which is exactly why the defense should be building the opposing narrative in real time.
Practitioner’s note
The single highest-value document in a confinement case is the speedy trial demand letter — sent early, renewed on a schedule, each one noting the days elapsed and the government activity (or silence) since the last. It costs an hour and shapes two Barker factors at once: it locks in the demand factor and forces the government to generate explanations for each interval, in writing, months before a judge reads them. When we litigate Article 10, the motion is largely assembled from the government’s own replies.
Frequently asked questions
How long can the military keep me in pretrial confinement before trial?
There is no fixed number. Article 10 requires the government to take immediate steps and proceed with reasonable diligence — a standard courts have said can be violated in under 120 or even under 90 days, depending on the case. The longer the confinement and the thinner the government's explanations, the stronger the motion to dismiss.
Does Article 10 apply if I'm only on restriction, not in the brig?
It can. Restriction severe enough to amount to arrest triggers Article 10 — courts examine the geographic limits, sign-in requirements, escorts, and whether you still perform normal duties. Base-wide restriction with normal privileges usually does not qualify; quarters-tight restriction with sign-ins and escorts may.
What is the remedy for an Article 10 violation?
Dismissal of the affected charges with prejudice — the government cannot re-prefer them. That severity is why Article 10 motions are litigated hard, and why the defense record of demands, delays, and prejudice matters so much.
Does arraignment stop the Article 10 clock?
No. Unlike the 120-day rule, which is satisfied at arraignment, the government's Article 10 obligation of reasonable diligence toward a confined accused continues after arraignment through trial. United States v. Cooper, 58 M.J. 54 (C.A.A.F. 2003).
Do I give up my Article 10 claim if I plead guilty?
An unconditional guilty plea does not waive appellate consideration of an Article 10 claim that was litigated at trial. United States v. Mizgala, 61 M.J. 217 (C.A.A.F. 2005). Raise it by motion before pleas — preserving it costs nothing and can survive everything.
About the attorneys behind this guide
Michael Waddington, Civilian Military Defense Lawyer
Michael Waddington has defended confined service members for more than 25 years, and Article 10 is where his prosecution-side past pays defense-side dividends: he knows exactly what a diligent government file looks like, which makes the gaps in a negligent one impossible to hide. A former Army prosecutor and defense counsel and a nationally recognized cross-examination author, he has litigated confinement and speedy trial issues in courts-martial worldwide.
Alexandra González-Waddington, Founding Partner
Alexandra González-Waddington, founding partner of Gonzalez & Waddington, has spent more than 20 years representing service members for whom pretrial confinement was the case — drafting the demand letters, documenting the conditions of restraint, and building the prejudice records that Article 10 motions are made of. She legally reviewed this guide against the statute and current CAAF precedent.
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.