Thanks for the chance to help. I am an attorney with over 12 years military law
Pre Trial restriction must not run past 120 days...if it does, without delay requested from the defense, then the defense would have a good argument, under Rule for Court Martial
(RCM) 707 that they charges be dismissed with prejudice.
The rule that applies is RCM 707. RCM. 707 provides that charges against an accused must be dismissed if they are not brought to trial within 120 days of the earlier of preferral, pretrial confinement, or recall
to active duty under RCM. 204.
So if the delay is more than 120 days, there is an easy motion to dismiss.
Now...is it possible to make this charge prior to 120 days?
Perhaps...depends on the charges. If the charges are simple, not complex, and it is clear that the commander is dragging the process out to maximize pre trial restriction, and nothing else, the accused could file a motion under Art 13 UCMJ which prevents illegal pre-trial punishment. You would make this claim in conjunction with a 6th Amendment claim that the soldiers
speedy trial rights have been violated.
This would only work if you can prove that the prosecution was deliberately delaying charges...otherwise the 120 Day RCM 707 rule will apply