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Navigating the Waters of Pretrial Confinement in the Military Justice System

By Stephanie Kral | April 22, 2024


Pretrial confinement in the military is a legal process that involves keeping a servicemember in the brig before their trial. This confinement is different from civilian pretrial detention in several ways, primarily due to the unique structure and requirements of the military justice system.

Kral Military Defense (“KMD”) has represented countless clients in pretrial confinement proceedings. Pretrial confinement can lead to court-martial, and you need an experienced attorney to represent you.

Legal Basis for Pretrial Confinement

Pretrial confinement in the military is authorized by the Uniform Code of Military Justice (UCMJ), which is the foundation of military law in the United States. Article 10 of the UCMJ provides the authority for pretrial confinement, stating that a servicemember may be ordered into confinement before trial. This authority is subject to specific conditions and limitations to ensure fairness and due process for the accused, which are outlined in Rule for Courts-Martial 305.

Procedural Safeguards

While the decision to confine a servicemember before trial rests with their commanding officer, several procedural safeguards are in place to protect the rights of the accused:

  1. Initial Determination: Before ordering their servicemember into pretrial confinement, the commanding officer must determine that there is probable cause to believe the accused committed an offense triable by court-martial, and that pretrial confinement is required under the circumstances.
  2. Notice and Right to Counsel: The accused must be promptly informed of the charges against them and their right to legal representation. They have the right to consult with a military defense counsel or hire a civilian attorney at their own expense. In all services except the Air Force, the accused is entitled to representation only for the limited purpose of the pretrial confinement review, discussed below. However, a Civilian Defense Counsel can provide full representation even after the pretrial confinement review is complete.
  3. Neutral Review: Within 7 days of confinement, a neutral reviewing officer, which is appointed in different ways in each branch of service, reviews the decision to ensure its compliance with the requirements of RCM 305. The accused is entitled to representation at this hearing. KMD has extensive experience across all the services with representing our clients and working toward their release from pretrial confinement.

Reasons for Imposition

Pretrial confinement may be imposed for various reasons, including:

Flight Risk: When there is a risk that the accused may attempt to flee or go AWOL (Absent Without Leave) to avoid prosecution.

Danger to Others: If the accused poses a threat to the safety or well-being of others, such as in cases involving violence or serious offenses.

Obstruction of Justice: When there is a concern that the accused may tamper with evidence, intimidate witnesses, or otherwise obstruct the legal process.

Review of Pretrial Confinement by a Military Judge

If the accused is held in pretrial confinement pending court-martial, they are entitled to review by the military judge. Before referral of charges, the accused must file a specific type of motion with the court to have the case reviewed. After referral of charges, the accused can file a motion to be discussed during arraignment.

The military judge shall order release if:

  • The 7-day reviewing officer’s decision was an abuse of discretion, and there is not sufficient information presented to the military judge justifying continued confinement.
  • Information not presented to the 7-day reviewing officer establishes that the confine must be released.
  • The provisions of RCM 305 have not been complied with, and there is not sufficient information presented to the military judge justifying continued confinement.

The military judge will assess a variety of factors in deciding whether the evidence establishes that continued confinement is appropriate, including:

  • The nature and circumstances of the offenses charged or suspected, including extenuating circumstances;
  • The weight of the evidence against the confinee;
  • The confinee’s ties to the locale, including family, off duty employment, financial resources, and length of residence;
  • The confinee’s character and mental condition;
  • The confinee’s service record, including any record of previous misconduct;
  • The confinee’s record of appearance at or flight from other pretrial investigations, trials, and similar proceedings; and
  • The likelihood that the confinee can and will commit further serious criminal misconduct if allowed to remain at liberty.

Remedy for Unlawful Pretrial Confinement

There are a variety of different types of credit that an accused may be entitled to as a result of their pretrial confinement. It’s important to have an attorney who understands all the different options available and how to advocate effectively for them.

As an overview, an accused gets credit against his court-martial sentence for simply being in pretrial confinement. In addition, an accused gets 1 day of credit for each day of confinement served as a result of noncompliance with the applicable rules. This could result in getting twice the confinement credit the accused would otherwise receive.

There are also a variety of remedies for additional credit if the military judge determines there have been unusually harsh circumstances or other factors that would, in the interest of justice, require credit for the accused.

Potential Consequences

At KMD, we don’t look just at the law. We also consider the effects of the military justice system on our clients’ mental health and professional wellbeing. Pretrial confinement can have significant implications for the accused, both personally and professionally.

Impact on Career: Being confined before trial can adversely affect a servicemember’s military career, leading to suspension of duties, loss of pay, and damage to their reputation within the military community.

Emotional and Psychological Effects: Confinement can be emotionally and psychologically challenging, especially for individuals who are accustomed to the freedoms and responsibilities of military service. Feelings of isolation, anxiety, and uncertainty are common among those awaiting trial.


Pretrial confinement in the military is a complex legal process governed by the UCMJ and military regulations. While it serves legitimate purposes such as ensuring the accused’s presence at trial and protecting the integrity of the legal process, it is imperative to find an attorney that will uphold the rights and dignity of all servicemembers.

If you are under investigation or facing court-martial, you need an experienced military defense attorney fighting on your behalf. Contact KMD for a free consultation today.