Opinion

On his provident pleas of guilty, appellant was convicted of missing the movement of his ship through neglect and an unauthorized absence of slightly over 9 months’ duration, in violation of Articles 87 and 86, Uniform Code of Military Justice, 10 U.S.C. §§ 887 and 886, respectively. A special court-martial military judge sitting alone sentenced appellant to 90 days’ confinement at hard labor, partial forfeitures, reduction to the lowest enlisted grade, and a bad-conduct discharge. The convening and supervisory authorities approved the findings and sentence; the Court of Military Review affirmed.

We granted appellant’s petition for review to consider the following issues raised by him:

I

DOES ARTICLE 13, U.C.M.J., ALLOW MILITARY CONFINEMENT FACILITY OFFICIALS TO SEEK WAIVERS[*92] FROM PRETRIAL DETAINEES OF THE RIGHT NOT TO ACCEPT CONDITIONS OF A SENTENCED PRISONER?

II

IF THE ANSWER TO ISSUE I IS AFFIRMATIVE, DID THE NAVY’S WORK PROGRAM REQUEST FORM FOR PRETRIAL DETAINEES ADEQUATELY APPRISE APPELLANT HE WAS WAIVING A STATUTORY RIGHT TO BE SEGREGATED FROM SENTENCED PRISONERS, DID IT ELICIT VOLUNTARY ACCEPTANCE, AND DID THE CIRCUMSTANCES OF EXECUTING THAT FORM DEMONSTRATE AN INFORMED, VOLUNTARY WAIVER?

In addition, upon consideration of the facts of the case, we specified the following issue:

WHETHER THE SPECIFICATION OF CHARGE II (MISSING MOVEMENT) IS MULTIPLICIOUS WITH THE SPECIFICATION OF CHARGE I (ABSENT WITHOUT AUTHORITY).

Finding no error prejudical to appellant’s substantial rights, we affirm.

Throughout these proceedings appellant has contended that he was subjected to punishment prior to trial, in violation of Article 13, UCMJ, 10 U.S.C. § 813, because he was placed in the general population of the confinement facility with sentenced prisoners. Prior to entering his pleas, appellant moved that the trial court grant him appropriate relief, challenging the conditions of his confinement. He requested administrative credit towards any sentence should he be convicted. He now asks this Court to set aside the bad-conduct discharge since he has fulfilled his active sentence requirements and credit for pretrial detention would be a meaningless remedy.

Following his return to military control, appellant was first placed in pretrial confinement on his ship, then transferred to the Brig at Naval Station, Treasure Island, California. He was seen by a military magistrate, who determined that confinement was necessary to ensure appellant’s presence at trial.^[1] Appellant remained in pretrial confinement until the date of his trial.

For purposes of the motion, the Government admitted that appellant was initially placed in a single cell about 6-feet by 7-feet, with a desk, toilet, chair, and bed. He was only allowed to wear his undershorts, and to either sit at the desk or stand from 0400 hours to 2200 hours. His only reading materials were a Bible and the brig regulations. He was not allowed to write or receive letters, lie on the bed between reveille and taps, or communicate with other prisoners.^[2]

This regime continued for two days whereupon appellant was released to the[*93] general population of the brig. In the interim appellant had executed a form denominated a “Work Program Request.” This form states appellant’s understanding that persons who are detained awaiting trial (as well as those awaiting initial action on their courts-martial) “will not be required to observe working hours in excess of the normal station” duty hours or to be assigned to “hard labor” details being performed by sentenced prisoners. The form specifically notes that a detainee may be intermixed with sentenced prisoners for formations, meals, classroom instruction, and routine details normally performed by all service members and necessary for the maintenance of the facility and grounds, “which are not ordered as punishment.” Lastly the form advises a detainee that he must agree in writing “to participate in the ... full work program” of the brig, and states appellant’s willingness to “volunteer for” such assignments.^[3] Appellant complains that his execution of the waiver could not be construed as voluntary since the only choices he had were the starkness of solitary confinement or executing the waiver.

While awaiting trial, appellant worked from 0700 hours to 1530 hours, the normal duty hours of all confinees. His work seems to have consisted of routine maintenance of the facility as provided for in appropriate service directives. Appellant was quartered with, and wore essentially the same uniform as, sentenced prisoners, the only distinguishing mark being the col- or of tape on the identification badge for each prisoner.

Article 13 of the Code prohibits “punishment or penalty other than arrest or confinement upon the charges pending against” an accused who is awaiting trial. It further states that the conditions of the arrest or confinement shall be no more rigorous than that necessary to secure his presence for trial. The President expanded on the terms of this Article by providing that “[prisoners being held for trial shall not be required to undergo punitive duty hours or training, perform punitive labor, or wear special uniforms prescribed only for post-trial prisoners.”^[4] Para. 18(b)(3), Manual For Courts-Martial, United States, 1969 (Revised edition).

In an early case involving charges of disobeying orders while in pretrial confinement, we had occasion to apply the strictures of Article 13. In United States v. Bayhand, 6 U.S.C.M.A. 762, 21 C.M.R. 84 (1956), Bayhand, a pretrial confinee, had been assigned to work details with prisoners who were serving sentences to confinement at hard labor. These details included working in a ditch with a pick and shovel, and carrying heavy rocks in a wheelbarrow at a quarry. He refused to comply with certain orders relating to these tasks and was charged with willful disobedience under Articles 90 and 91, UCMJ, 10 U.S.C. §§ 890 and 891. We held that the orders given to him were illegal as a matter of law because he was treated the same as sentenced prisoners in terms of confinement conditions, uniforms, hours of duty, and types of work assigned, and thus he was being punished prior to trial in violation of Article 13 of the Uniform Code.

In reaching this conclusion, we examined the legislative history of Article 13 and the writings of early military law scholars, see Hearings on H.R. 2498 Before a Subcomm. of the House Armed Services Comm., 81st Cong., 1st Sess. 916-17, reprinted in Index and Legislative History, Uniform Code of Military Justice (1949); G.. Davis, A Trea[*94] tise on the Military Law of the United States 485 (3d ed. 1913); W. Winthrop, Military Law and Precedents 124-25 (2d ed. 1920 Reprint), all of which evidenced a clear intent to prohibit punishment by the imposition of hard labor upon a pretrial confinee.

In succeeding cases, we have held that a pretrial confinee who has been forced to work with sentenced prisoners was being punished without regard to the type of work involved. See United States v. Pringle, 19 U.S.C.M.A. 324, 41 C.M.R. 324 (1970); United States v. Nelson, 18 U.S.C. M.A. 177, 39 C.M.R. 177 (1969). In reaching this conclusion, we rejected the argument that there was no punishment if the work being performed was no more rigorous than that done by non-confinees; instead, we looked at whether the pretrial confinee was performing work details in company with sentenced prisoners. We consequently decided that if a pretrial confinee was working with prisoners who had been sentenced to perform hard labor, then — by definition — he, too, was performing hard labor and, hence, was being punished in violation of Article 13 of the Code. This syllogism was consistent with the historical view of “hard labor,” and evolved into the concept of “commingling.”^[5]

The problem with this historical analysis is that the “hard labor” as envisioned by Congress in 1949,^[6] and by the early military writers, is no longer being performed in military correction/confinement facilities, not even as punishment. Therefore, it seems apparent that a fresh look at the present conditions of confinement in terms of Article 13 is necessary.

We begin, as we did before, with the stricture that pretrial punishment is prohibited except to enforce internal confinement discipline. We recognize, however, that a pretrial confinee may be required to perform useful labor because he remains on active duty as a full-duty serviceman. In addition, we perceive no necessity to deprive pretrial confinees of the programs and recreational facilities available to other prisoners. On the other hand, we also recognize that the reasons for imposing pretrial confinement create a special problem for the confinement personnel because it would be illogical to assign a pretrial confinee to duties outside the facility when the pre-existing reason for his pretrial confinement is to ensure against his flight to avoid trial or to prevent the commission of further offenses. Given the limited facilities and programs available at most installations, the total separation of pretrial confinees from the general population of confinement facilities might well result in imposition of much harsher conditions than those imposed upon some prisoners who have been sentenced to hard labor. We cannot believe that such an illogical and anomalous result is necessary or was intended by Congress.

The Bayhand-Nelson-Pringle trilogy does not represent the only changes effected by this Court. To minimize possible prejudice to an accused in pretrial confinement, we created a presumption of prejudice whenever a serviceperson is confined for more than 90 days while awaiting trial. See United States v. Burton, 21 U.S.C. M.A. 112, 44 C.M.R. 166 (1971).^[7] In Courtney v. Williams, 1 M.J. 267 (C.M.A. 1976), we directed the military services to provide each pretrial confinee with a hear[*95] ing before a neutral and detached officer who was responsible for determining whether probable cause existed to believe that the confinee had committed an offense and that confinement was required to ensure the confinee’s presence at trial.^[8] Finally, we have directed that pretrial confinees must receive credit against any sentence to confinement at hard labor for time spent in pretrial confinement. United States v. Allen, 17 M.J. 126 (C.M.A. 1984).

In addition, we must take cognizance of the Supreme Court’s decision in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Starting with the same premise prohibiting punishment prior to trial, the Court decided that the question of whether particular conditions amount to punishment before trial is a matter of intent, which is determined by examining the purposes served by the restriction or condition, and whether such purposes are “reasonably related to a legitimate governmental objective.” Id. at 539, 99 S.Ct. at 1874. The Court noted:

[I]n the absence of a showing of intent to punish, a court must look to see if a particular restriction or condition, which may on its face appear to be punishment, is instead but an incident of a legitimate nonpunitive governmental objective.

Id. at 539 n. 20, 99 S.Ct. at 1874 n. 20, citing Kennedy v. Mendozo-Martinez, 372 U.S. 144, 168, 83 S.Ct. 554, 567, 9 L.Ed.2d 644 (1963); and Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 1376, 4 L.Ed.2d 1435 (1960).

While Bell v. Wolfish, supra, does not specifically address the problem of commingling prisoners, the analysis is apposite. A facial examination of the pretrial-confinement conditions imposed on this pretrial confinee would appear, in certain instances, to violate our proscription against commingling; however, the record discloses no evidence of improper intent by confinement officials in placing him with sentenced prisoners for the purposes indicated. He did not work on hard-labor details, and his association with sentenced prisoners was limited to casual contacts while he was performing work necessary for the operation of the facility.

Taken collectively the commendable changes in conditions in confinement facilities effected by the military services, the enforcement of speedy-trial requirements, and the due-process hearings to determine the necessity for pretrial confinement have reduced the likelihood of a recurrence of the conditions condemned in United States v. Bayhand, supra.

We have not hesitated to reconsider earlier decisions when conditions necessitating such broad measures have abated.^[9] Our prior decisions applied the test of commingling in an inflexible manner. As Bell v. Wolfish, supra, has made clear, the mere fact of confinement is not tantamount to punishment, and we must look to the intent behind imposition of the condition to resolve the punishment inquiry. While not retreating from those principles which have guided us in the past, the time has come to formulate new guidelines. Henceforth, in my opinion, the question to be resolved is not solely whether a pretrial confinee was commingled with sentenced prisoners, but, instead, whether any condition of his confinement was intended to be punishment.

Turning to the instant case, it is apparent that appellant did not suffer punishment prior to trial. He did not serve on details with those performing “hard labor”[*96] adjudged as a court-martial sentence. There is no evidence that any particular duty was assigned to him to extract a measure of retribution. The record discloses that if he had expressed a desire not to continue working under the conditions set by the confinement officials, he would have been placed on a detail without sentenced or adjudged prisoners. Because commingling per se, without more, does not constitute punishment, Palmiter did not suffer a violation of his Article 13 rights by the conditions of his confinement. The decisions of the military judge and the Court of Military Review in this regard are correct.

It is noted that Chief Judge Everett equates “commingling” with punishment, making the analogy that because Article 12, UCMJ, 10 U.S.C. § 812, specifically prohibits the intermixture of prisoners of war with our own prisoners, this implies that a prisoner may be demeaned by the very fact of being associated with a distinctly different class of prisoners. The legislative history of Article 13 does not support this implication. Indeed, the fact that Article 12 is explicit on this point and Article 13 is silent implies to me that Congress did not envision commingling to be punishment. The evil Congress intended to prevent was use of pretrial confinement as punishment without benefit of trial. The argument could be advanced, depending on the factual circumstances, that segregation from sentenced prisoners constitutes punishment. For example, if a confinement facility has limited pretrial facilities, but provides recreational and educational facilities only to its sentenced prisoners, I am not willing to adopt a per se prohibition against commingling. It is but a factor to consider in determining whether or not the pretrial prisoner has been punished.

In passing, it should be noted that a prisoner cannot “waive” his Article 13 protections prior to trial because no one can consent to be treated in an illegal manner. Nevertheless, the use of “Work Program Request” forms, which Chief Judge Everett equates with the doctrine of waiver, is certainly appropriate to inform the pretrial detainee of what is available to him in pretrial confinement and to document his understanding and agreement. This is a far cry, however, from “waiving” his Article 13 protections. It is merely an acknowledgment of the detainee’s understanding of the conditions of his incarceration.^[10]

Under no circumstance should the prisoner be the one to dictate the terms and conditions of his confinement. This should always be left up to the correctional facility commanders and the respective services.

Resolution of the instant case does not end our consideration of the problem before us. Assertion of illegal conditions of confinement is commonly made after the fact. If an accused is acquitted of the then-pending charges, he has no remedy because he may not extract civil damages either from his jailor or the person ordering his confinement. See Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983); cf. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Neither the Government nor a pretrial confinee benefits from the present system which provides no immediate forum to determine the legality of the conditions of pretrial confinement. The military magistrate systems created by the services in response to Courtney v. Williams, supra, are ideally suited to review the conditions of pretrial confinement as well the need for pretrial confinement at the same hearing. Henceforth, when considering whether a pretrial confinee has suffered punishment in the sense of Article 13, the magistrate should look not only to the factors detailed in United States v. Bayhand and United States v. Nelson, both supra, but also to other conditions as well. Among those matters impacting on the resolution of the issue are the age and physical condition of the confinement facility, the numbers and classes of prisoners[*97] therein, the actual ability of the confinement officials to segregate or intermix confinees from adjudged or sentenced prisoners, as well as the impact of totally separating confinees from the general population.^[11]

If, after the initial hearing and determination by the military magistrate, a confinee believes that he is being punished by conditions in the confinement facility, he should apply for relief from these conditions to the magistrate who initially approved his pretrial confinement. Should he be denied relief by that magistrate, the confinee should appeal to the convening authority or to the military judge depending on the state of the proceedings at the time. It is possible that resort to the extraordinary-writ jurisdiction of the appellate courts would be appropriate in extreme cases.^[12] Just as with the decision to continue pretrial confinement, review of the conditions of such confinement should be an ongoing process to limit the duration of any violation which might arise following the initial incarceration. The failure to raise this issue while undergoing pretrial confinement will be strong evidence that the confinee was not illegally punished pri- or to trial.

The decision of the United States Navy-Marine Corps Court of Military Review is affirmed.^[13]