R.C.M. 707: What Counts Toward 120 Days and What Is Excluded
Key takeaways
- Count from the earliest trigger; exclude the trigger day, include arraignment day. R.C.M. 707(b)(1).
- Conditions on liberty and genuinely administrative restraint do not start the clock — the test is the restraint’s primary purpose. Bradford.
- Withdrawal of charges does not reset the clock; a legitimate dismissal does — and a dismissal whose sole purpose is clock-avoidance resets nothing. Hendrix; Robinson.
- Excludable delay must be approved by the convening authority (pre-referral, delegable to the Article 32 PHO) or the military judge (post-referral) — and should be written, not ex parte.
- Remedy: dismissal, with or without prejudice under the R.C.M. 707(d) factors; a mistrial is not an authorized remedy.
What starts the clock — and what doesn’t
R.C.M. 707(a) names three triggers, and the clock runs from the earliest: preferral of charges; imposition of restraint under R.C.M. 304(a)(2)–(4) — restriction, arrest, or pretrial confinement; or a reservist’s entry on active duty under R.C.M. 204. The fights are at the edges:
- Conditions on liberty don’t count. The moral restraints of R.C.M. 304(a)(1) — orders not to contact a witness, not to drink, to report to the CQ desk — do not trigger the rule. Denial of an off-post pass that left a Soldier the run of the installation was, at most, a condition on liberty. United States v. Wilkinson, 27 M.J. 645 (A.C.M.R. 1988). Courts have hinted the analysis may differ for a married Soldier locked away from an off-post family, especially overseas (United States v. Wagner, 39 M.J. 832 (A.C.M.R. 1994)) — the label matters less than what the accused was actually forbidden to do.
- Restriction requires specified limits. To count as restriction, the accused must be required to remain within defined limits. R.C.M. 304(a)(2)–(3).
- Administrative restraint doesn’t count — if it’s really administrative. Restraint imposed “for operational or other military purposes independent of military justice” under R.C.M. 304(h) — medical holds, administrative holds — does not start the clock. The test is the primary purpose: where the evidence shows the command’s real purpose relates to an upcoming court-martial, R.C.M. 707 applies. United States v. Bradford, 25 M.J. 181 (C.M.A. 1987). Defense counsel should always ask what the paperwork says the hold was for — and what the emails say it was really for.
- Each charge has its own clock. When charges are preferred at different times, each set runs from its own trigger, and restraint starts the clock only for the offenses it was imposed “in connection with.” R.C.M. 707(b)(2); United States v. Robinson, 26 M.J. 954 (A.C.M.R. 1988).
Counting the days
The arithmetic is fixed by R.C.M. 707(b)(1): exclude the day of the triggering event, include the day of arraignment. The accused is “brought to trial” at arraignment — not at the start of evidence — and CAAF has blessed an arraignment on day 119 against the claim that it was a sham to stop the clock. United States v. Doty, 51 M.J. 464 (C.A.A.F. 1999). For sentence rehearings, the clock stops when the accused first comes before the court for resentencing, typically the initial Article 39(a) session. United States v. Becker, 53 M.J. 229 (C.A.A.F. 2000).
One caution for the defense: stopping the 707 clock at arraignment does not stop Article 10 — for a confined accused, the government’s reasonable-diligence obligation continues to trial.
The five restart provisions
R.C.M. 707(b)(3) resets the clock to zero in five situations:
| # | Event | New clock starts |
|---|---|---|
| 1 | Charges dismissed, or mistrial granted | Date of dismissal/mistrial if the accused stays in restraint; otherwise, the earliest of re-preferral, re-imposed restraint, or (for un-dismissed charges after mistrial) the mistrial date |
| 2 | Accused released from restraint for a significant period | Earliest of preferral, re-imposed restraint, or entry on active duty |
| 3 | Government appeal under R.C.M. 908 | Notice that the government won’t appeal, or notice of the final appellate decision (unless the appeal was frivolous and filed solely for delay) |
| 4 | Rehearing ordered or authorized by an appellate court | Date the responsible convening authority receives the record and the opinion |
| 5 | Return from Attorney General custody (incompetence hospitalization) | Date of return |
The first restart is where the litigation lives, because it turns on a distinction commanders regularly blur: withdrawal versus dismissal. Withdrawal of charges (R.C.M. 604) does not reset or toll the clock. United States v. Weatherspoon, 39 M.J. 762 (A.C.M.R. 1994). Dismissal (R.C.M. 401) does — even when the command intends to re-prefer later, as in United States v. Bolado, 34 M.J. 732 (N.M.C.M.R. 1991), where charges were legitimately dismissed while key witnesses deployed for Desert Storm and re-preferred nine months later. And paperwork that is neither — a form noting the command “declined prosecution” — is a decision to take no action, not a dismissal, so the clock never stopped. United States v. Young, 61 M.J. 501 (Army Ct. Crim. App. 2005).
The subterfuge doctrine
The check on restart #1 is subterfuge: a command cannot dismiss and re-prefer charges to dodge a looming violation. R.C.M. 707(b)(3)(A)(iii). The service courts drew the line vividly in United States v. Robinson, 47 M.J. 506 (N-M Ct. Crim. App. 1997) — dismissal on day 115 and re-preferral of substantially identical charges a week later, with no change in the accused’s status, was a subterfuge. The Army court’s formulation:
“A convening authority’s dismissal of a charge is only a subterfuge when the sole purpose of the dismissal is to avoid the running of the 120-day speedy trial clock.”United States v. Robison, 2011 WL 6135093 (Army Ct. Crim. App. 2011)
CAAF confirmed the narrowness of the doctrine in United States v. Hendrix, 77 M.J. 454 (C.A.A.F. 2018): dismissing because the victim declined to participate, then re-preferring when she changed her mind, was legitimate — intent to re-prefer does not itself imply subterfuge. Courts weigh the convening authority’s intent, notice and documentation, restoration of the accused’s rights and privileges, prejudice, and whether the new charges differ. United States v. Anderson, 50 M.J. 447 (C.A.A.F. 1999). For the defense, the discovery targets are obvious: what changed between dismissal and re-preferral, and what the file says the dismissal was for.
Release from restraint and the “significant period”
Restart #2 requires the release to last a significant period — a safeguard against sham releases that stop and start the clock. The case law sets a low bar: five days out of restraint counted (United States v. Hulsey, 21 M.J. 717 (A.F.C.M.R. 1985)); so did five days of hospital-imposed administrative hold after a suicide attempt (United States v. Miller, 26 M.J. 959 (A.C.M.R. 1988)); so did thirteen days of unrelated Article 15 restriction (United States v. Campbell, 32 M.J. 564 (A.C.M.R. 1991)). And where restraint is never re-imposed at all, no waiting period is required: charges preferred one day after a two-month restriction lifted restarted the clock at preferral, because the significant-period requirement exists only to police re-imposition games. United States v. Ruffin, 48 M.J. 211 (C.A.A.F. 1998).
Excludable delay: the main battleground
Most 707 motions are decided here. The rule excludes automatically all periods of appellate stays, unauthorized absence, and incompetence-related hospitalization or Attorney General custody — an accused who absents himself “waives” the interim period without any approval needed (United States v. Dies, 45 M.J. 376 (C.A.A.F. 1996)). Everything else requires approval:
- Who approves. Before referral, the convening authority — whose authority can be delegated to the Article 32 preliminary hearing officer; after referral, the military judge. R.C.M. 707(c)(1). In United States v. Lazauskas, 62 M.J. 39 (C.A.A.F. 2005), a properly delegated PHO’s six-day delay to secure witnesses was excludable, and the Article 35 five-day statutory waiting period could not be turned into a sword against the government.
- How it should be done. Not ex parte, and in writing where practicable. R.C.M. 707(c)(1), Discussion. After-the-fact ratification of a defense-requested delay has been upheld — the rule’s text does not demand advance approval — but courts view post hoc exclusions with skepticism. United States v. Thompson, 46 M.J. 472 (C.A.A.F. 1997).
- Judicial-schedule delay. Under the Army Trial Judiciary’s rules, the period from the judge’s receipt of referred charges to arraignment is treated as judge-approved delay unless the judge says otherwise — and CAAF has reaffirmed judicial delay as a valid exclusion for good cause. United States v. Guyton, 82 M.J. 146 (C.A.A.F. 2022).
- Attribution. Delay the defense requests is the defense’s — including the reasonable scheduling consequences of the request. A defense that asks for a delay to a date certain cannot insist the government be ready that very day. United States v. McKnight, 30 M.J. 205 (C.M.A. 1990). Time consumed by a pending individual military counsel request has likewise been charged to the defense.
- Review. Approved delays are reviewed for abuse of discretion and for the reasonableness of the period — legitimate reasons include complex-case preparation, sanity boards, reserve activation, witness availability, and security clearances. R.C.M. 707(c)(1), Discussion.
What this means for your case
By the time a 707 motion is filed, the winning work is already done or already lost: the objection made (or not) to each government delay request, the demand that approvals be written, the record showing which side actually caused each slippage. If your case has crossed day 60 with no arraignment in sight, your defense team should be maintaining the day-count now — not reconstructing it at day 130.
Remedy and the with/without prejudice factors
A violation, raised by timely motion, requires dismissal. R.C.M. 707(d). Whether it is with or without prejudice turns on the seriousness of the offense, the facts and circumstances leading to dismissal, the impact of re-prosecution on the administration of justice, and prejudice to the accused — and must be with prejudice where the constitutional right was denied. A 41-day violation in a serious sexual assault case, with no bad faith and no prejudice, earned dismissal without prejudice in United States v. Edmond, 41 M.J. 419 (C.A.A.F. 1995); a 125-day lapse in re-arraigning an appellant after his conviction was set aside earned dismissal with prejudice that CAAF refused to disturb in United States v. Dooley, 61 M.J. 258 (C.A.A.F. 2005). A mistrial is not an authorized remedy (United States v. McClain, 65 M.J. 894 (Army Ct. Crim. App. 2008)), and sentence-only rehearings draw sentence credit instead.
Practitioner’s note
Three documents decide most 707 motions: the charge sheet (trigger dates), the delay memoranda (who approved what, when, in writing or not), and the restraint paperwork (what kind, what purpose). We subpoena nothing exotic — we read what the government’s own file says and count. The most common government failure we see is silent delay: weeks that nobody asked to exclude and nobody approved, on the assumption they would be sorted out later. Under the rule, unapproved time is government time. Count it.
Frequently asked questions
When does the 120-day speedy trial clock start?
At the earliest of three triggers: preferral of charges; imposition of restriction, arrest, or pretrial confinement under R.C.M. 304(a)(2)–(4); or entry on active duty under R.C.M. 204. The trigger day itself is not counted; the day of arraignment is.
Does restriction to post start the speedy trial clock?
Restriction to specified limits does. Mere conditions on liberty — no-contact orders, pass denials that leave you free use of the installation — do not, and genuinely administrative or medical holds do not either. Courts look at the primary purpose of the restraint: if it's really about the coming court-martial, the clock runs.
Can the government dismiss charges and refile to beat the 120-day rule?
Not as a dodge. A legitimate dismissal restarts the clock, but a dismissal whose sole purpose is avoiding the 120-day limit is a subterfuge and the clock keeps running. Courts examine the convening authority's intent, the documentation, whether the accused's rights were restored, and whether the re-preferred charges changed.
What is excludable delay under R.C.M. 707?
Time subtracted from the 120-day count: automatic exclusions (appellate stays, unauthorized absence, incompetence-related custody) plus any delay approved by the convening authority before referral — delegable to the Article 32 hearing officer — or the military judge after referral. Approvals should be written and never ex parte, and delay the defense requests counts against the defense.
Is a mistrial a remedy for a speedy trial violation?
No. The remedy for an R.C.M. 707 violation is dismissal of the affected charges — with or without prejudice under the rule's four factors. In a sentence-only rehearing the judge may instead award sentence credit.
About the attorneys behind this guide
Michael Waddington, Civilian Military Defense Lawyer
Michael Waddington has been counting these clocks for more than 25 years — as an Army prosecutor who had to keep cases inside the rule, as an Army defense counsel who moved to dismiss when they weren’t, and as a civilian court-martial lawyer who has litigated restraint characterization, subterfuge dismissals, and delay-attribution fights across every branch of the armed forces.
Alexandra González-Waddington, Founding Partner
Alexandra González-Waddington, founding partner of Gonzalez & Waddington, has spent more than 20 years turning government delay into defense leverage — auditing delay approvals, challenging ‘administrative’ holds that were prosecution tools, and preserving the day-count records that make R.C.M. 707 motions stick. She legally reviewed this guide against the current rule and 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.