1. Many clients face restraints on their liberty such as restriction as well as actual pretrial confinement. Often commanders abuse their authority and many times defense counsel overlook or waive motions for sentence credit.
2. If you or anyone you know are being held in pretrial restraint or pretrial confinement, you should notify a llawyer experienced in military court martial defense. This can be either your civilian defense attorney or your military trial defense attorney (TDS). This restriction may be proper under the circumstances and the defense attorney must ask:
a. What can be done to obtain the earliest or lifting of the restriction? and;
b. What types of pretrial restraint and pretrial confinement credit will a client qualify for?
TYPES of PRETRIAL RESTRAINT and PreTrial Confinement Under R.C.M. 304(a):
1. Conditions on liberty R.C.M. 304(a)(1). This is an order directing a person to do or refrain from doing specified acts. The most common example is “revocation of pass privileges.” This is the equivalent to restriction to post. The soldier cannot leave the installation without express permission from the commander.
2. Restrictions in lieu of arrest R.C.M. 304(a)(2). Restrictions in lieu of arrest is a limitation beyond conditions on liberty. With restriction in lieu of arrest, the soldier still performs all military duties.
3. Arrest R.C.M. 304(a)(3). Closest to actual confinement, this condition usually requires the soldier to remain within specified limits and limits the duties the soldier may perform. Typically, the soldier is escorted.
4. Confinement R.C.M. 304(a)(4). Confinement involves actually placing the soldier into a confinement facility such as the D-cell, civilian confinement or a military confinement facility.
BASIS FOR PRETRIAL RESTRAINT and PreTrial Confinement Under R.C.M. 305(d):
1. An offense triable by court-martial has been committed;
2. The person confined committed it; and
3. Confinement is required by the circumstances. Because the prisoner will not appear at trial, pretrial hearing, or investigation, or the prisoner will engage in further serious criminal misconduct; and
4. Less severe forms of restraint are inadequate
Review of Pretrial Restraint and Pretrial Confinement:
1. R.C.M. 305(i)(1) requires a neutral and detached officer to review pretrial confinement within 48 hours. The 48-hour clock begins to run when the command orders the soldier placed into confinement.
2. R.C.M. 305(i)(2) requires a 7 day review of pretrial confinement. This review must be completed by “a neutral and detached officer appointed in accordance with regulations prescribed by the Secretary concerned…” within 7 days of confinement. At the hearing, the prisoner has the right to be present with his counsel. R.C.M. 305(i)(2)(A).
Credit Pretrial Restraint and Pretrial Confinement: There are several options for pretrial confinement sentence credit.
1. Allen Credit requires day for day credit for any pretrial confinement. This includes confinement in state or federal facilities where the confinement is served for the same misconduct resulting in the court-martial conviction.
2. Mason Credit requires credit for pretrial restriction equivalent to confinement.
3. Article 13 UCM.J Credit – After conviction, the accused is entitled to punishment credit for a violations of Article 13, UCMJ, if the commander’s actions involved: (a) a purpose or intent to punish; (b) unduly rigorous circumstances giving rise to a permissible inference of punishment; or (c) egregious circumstances so excessive as to be considered punishment.
Waiver of Pretrial Restraint and Pretrial Confinement Credit:
1. Failure to file the appropriate motion will result in waiver of pretrial restraint and pretrial confinement credit.