Overview of a speedy trial in the military – R.C.M. 707: The 120 day rule:

R.C.M. 707: The 120 Day rule

The 120 day rule states that, “The accused shall be brought to trial within 120 days after the earlier of: (1) Preferral of charges under R.C.M. 307/308; or (2) The imposition of restraint under R.C.M. 304(a) (2)-(4) [restriction, arrest, confinement]; or (3) Entry on active duty under R.C.M. 204.” R.C.M. 707(a). The speedy trial clock begins with arraignment, not the day of preferral or imposition of restraint or entry on active duty. R.C.M. 707(b)(1).

Restriction

R.C.M. 304 requires that an individual must remain within specified limits to constitute pretrial restriction and thus trigger the 120 day clock. In United States v. Wilkinson, 27 M.J. 645 (A.C.M.R. 1988), petition denied, 28 M.J. 230 (C.M.A. 1989), the court held that the denial of an off-post pass will not usually have an affect the speedy trial clock, as it is at most a condition on liberty.

Administrative Restraint

The speedy trial clock does not begin upon administrative restraint under R.C.M. 304(h), which includes, “operational or other military purposes independent of military justice, including administrative hold or medical reasons.” The test applied to determine whether the speedy trial clock kicks in is the “Primary Purpose” test: if the primary purpose of restraint is administrative and not for military justice, the speedy trial clock is not triggered. In United States v. Bradford, 25 M.J. 181 (C.M.A. 1987), denial of the sailor’s port liberty while under suspicion was held as an “administrative restraint” under R.C.M. 304(h). The Court stated, “[We] believe the test is…the primary purpose….Where the evidence supports a conclusion that the primary purpose of the command…is related to an upcoming court-martial, R.C.M. 707 applies.”

Appellant had free access to entire installation with all its support and recreational facilities. Wilkinson, 27 M.J. at 645.