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Revisiting United States v. Allen: Applying Civilian Pretrial Confinement Credit for Unrelated Offenses Against Court-Martial Sentences to Post-Trial Confinement Under 18 U.S.C. 3585(b)(2)

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Before the Court of Military Appeals (CMA) issued its 1984 opinion in United States v. Allen,2 military accused were not automatically entitled to credit for the time they lawfully spent in jail awaiting their trials by court-martial.3 Unlike in the federal civilian system, where credit for lawful pretrial detention is regarded as a matter 'of legislative grace[,] and not a [C]onstitutional guarantee,'4 neither the Uniform Code of Military Justice (UCMJ) nor the Manual for Courts-Martial (MCM) provide for credit for lawful pretrial confinement.5 In Allen, however, the CMA applied the then-existing federal pretrial-confinementcredit statute6 to trials by court-martial via Department of Defense Instruction (DODI) 1325.4.7 Thus, for the first time in military criminal jurisprudence, Allen mandated compulsory sentence credit for lawful pretrial confinement in connection with the offense or acts for which sentence was imposed. Factors tending to show the accused received no credit for his civilian pretrial confinement include the following: (1) civilian authorities dismissed the unrelated charges; (2) the trial judge sentenced the accused to probation without confinement, a sentence against which he could not credit the pretrial confinement for the unrelated charges; and (3) the resulting sentence to confinement for the unrelated charges did not include time served; a sentence to time served indicates the judge credited the accused's pretrial detention against his post-trial sentence.229 Providing an adequate factual basis upon which the military judge can ultimately base his decision can mean the difference between winning and losing the motion for sentence credit.230 Most important, trial defense counsel's proffer is only a good start; an offer of proof is not evidence, and is not sufficient standing alone to meet the factual standard of proof.

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									      Revisiting United States v. Allen: Applying Civilian Pretrial Confinement Credit for Unrelated Offenses Against
                     Court-Martial Sentences to Post-Trial Confinement Under 18 U.S.C. § 3585(b)(2)

                                                             Major Michael L. Kanabrocki∗

               Appellant asserts the military judge erred by not awarding him pretrial confinement credit for the period
                 civilian authorities confined him, prior to his court-martial, for unrelated state charges. Assuming
                arguendo 18 U.S.C. § 3585(b)(2) does apply, . . . trial judges lack the authority to calculate and apply
                                                      pretrial confinement credit.1

I. Introduction

     Administrative sentence credit for pretrial confinement is a relatively modern concept in military law. Before the Court
of Military Appeals (CMA) issued its 1984 opinion in United States v. Allen,2 military accused were not automatically
entitled to credit for the time they lawfully spent in jail awaiting their trials by court-martial.3 Unlike in the federal civilian
system, where “credit for lawful pretrial detention is regarded as a matter ‘of legislative grace[,] and not a [C]onstitutional
guarantee,’”4 neither the Uniform Code of Military Justice (UCMJ) nor the Manual for Courts-Martial (MCM) provide for
credit for lawful pretrial confinement.5 In Allen, however, the CMA applied the then-exis
								
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