Pretrial Confinement and Restriction - S-1 Procedural Page

Role and responsibility

The unit commander orders pretrial confinement per Rule for Courts-Martial 305 with probable cause and risk findings. The commander conducts the 48-hour review per Rule for Courts-Martial 305(h). The neutral and detached Initial Review Officer (IRO) conducts the 7-day review per Rule for Courts-Martial 305(i). The unit legal advisor reviews the confinement order for sufficiency. The S-1 officer signs by direction on the routing of the confinement order, the IRO appointment, and the MCTFS legal hold transaction. The S-1 chief tracks pretrial confinement and restriction cases against the 48-hour and 7-day windows. The trial counsel and Victims Legal Counsel coordinate victim notification per Volume 16 Chapter 4 paragraph 040401.Y.

Source documents flow from the offense allegation, the JAGMAN investigation if applicable per JAGINST 5800.7GJAGINST 5800.7G, the commander's pretrial confinement order with probable cause and risk findings, the 48-hour commander review record, the IRO appointment letter, the IRO 7-day review report, the restriction or conditions on liberty order if applied as alternatives per Rule for Courts-Martial 304, and the MCTFS legal hold per MCO 1900.16MCO 1900.16 paragraph 1008.1(c). Outputs include the documented pretrial confinement order, the 48-hour commander review record, the 7-day IRO review report, the alternative restraint order if applicable, the victim notification record, the MCTFS legal hold transaction, and the pretrial confinement credit calculation per Article 13 UCMJ.

Per Rule for Courts-Martial 305, pretrial confinement requires probable cause of an offense triable by court-martial, probable cause the person to be confined committed it, and a finding of inadequacy of lesser forms of restraint. Per Rule for Courts-Martial 305(h), the commander conducts a review within 48 hours after a member is placed in confinement. Per Rule for Courts-Martial 305(i), a neutral and detached Initial Review Officer reviews within 7 days.

Trigger events

• Offense allegation supporting probable cause finding per Rule for Courts-Martial 305.
• Commander orders pretrial confinement triggering 48-hour review window.
• 7-day Initial Review Officer review window opens.
• Restriction or conditions on liberty considered as alternatives per Rule for Courts-Martial 304.
• Court-martial referral triggering MCO 1900.16 legal hold per paragraph 1008.1(c).
• Victim involved in the offense triggering Volume 16 Chapter 4 paragraph 040401.Y notifications.
• Confinement extends past pretrial review windows.
• IGMC Legal Administration FA inspection covers pretrial confinement.

Processing workflow

1. Receive the pretrial confinement order. The commander signs the order with the probable cause and risk findings.
2. Verify probable cause and risk. Per Rule for Courts-Martial 305, the order documents (a) probable cause an offense triable by court-martial has been committed, (b) probable cause the person committed it, and (c) the finding lesser restraint is inadequate.
3. Coordinate the 48-hour commander review. Per Rule for Courts-Martial 305(h), within 48 hours of confinement the commander reviews and either continues or terminates the confinement. The commander records the review.
4. Coordinate the 7-day IRO review. Per Rule for Courts-Martial 305(i), the IRO (a neutral and detached officer, not in the accused's chain of command and not involved in the case) reviews within 7 days. The IRO conducts a hearing where the member appears with counsel, considers evidence, and decides continuation or release.
5. Process the IRO report. The IRO report documents the findings and the decision. The S-1 files the report.
6. Apply legal hold. Per MCO 5800.16MCO 5800.16 Volume 16 and MCO 1900.16MCO 1900.16 paragraph 1008.1(c), the unit places the accused on legal hold to prevent transfer or separation pending court-martial.
7. Process restriction or conditions on liberty. Per Rule for Courts-Martial 304, restriction (limited to specific geographic limits) and conditions on liberty (requirements on residence, contact, travel) serve as alternatives to confinement. The commander orders.
8. Notify the victim. Per MCO 5800.16 Volume 16 Chapter 4 paragraph 040401.Y, the trial counsel and the Victim and Witness Assistance Coordinator (VWAC) notify the victim of changes in the accused's pretrial confinement status.
9. Update MCTFS. Cut the legal hold transaction in MCTFS per MCTFSPRIUM.
10. Track pretrial confinement credit. Per Article 13 UCMJ and the sentencing rules, every day in pretrial confinement counts toward sentence credit at the post-trial action.

Systems of record and forms

Systems

• Brig or Pretrial Confinement Facility (PCF) records. Hold confinement records.
• MCTFS. Holds legal hold status.
• Unit Legal File. Holds the confinement order, 48-hour review, IRO report, and victim notification record.
• Trial Counsel and Victims Legal Counsel records. Track victim notifications.

Forms

• Pretrial Confinement Order. Signed by commander per Rule for Courts-Martial 305.
• 48-Hour Commander Review Memorandum. Per Rule for Courts-Martial 305(h).
• IRO Appointment Letter. Per Rule for Courts-Martial 305(i).
• IRO Review Report. Per Rule for Courts-Martial 305(i).
• Restriction Order. Per Rule for Courts-Martial 304.
• Conditions on Liberty Order. Per Rule for Courts-Martial 304.
• Legal Hold Memorandum. Per MCO 1900.16 paragraph 1008.1(c).
• Victim Notification Letter. Per Volume 16 Chapter 4 paragraph 040401.Y.

Common pitfalls

• Probable cause and risk findings missing from the confinement order. Per Rule for Courts-Martial 305, the three findings (offense, person, inadequacy of lesser restraint) are required.
• 48-hour commander review missed. Per Rule for Courts-Martial 305(h), the review runs within 48 hours.
• 7-day IRO review missed. Per Rule for Courts-Martial 305(i), the neutral and detached IRO reviews within 7 days.
• IRO not neutral and detached. Per Rule for Courts-Martial 305(i), the IRO cannot be in the accused's chain of command and cannot be involved in the case.
• Legal hold not applied. Per MCO 1900.16 paragraph 1008.1(c), the accused on court-martial referral routes through legal hold to prevent transfer or separation.
• Restriction or conditions on liberty applied as punishment before trial. Per Article 13 UCMJ, pretrial restraint is not punishment.
• Victim notification skipped. Per Volume 16 Chapter 4 paragraph 040401.Y, the VWAC notifies the victim of changes in pretrial confinement status.
• Pretrial confinement credit not tracked. Per Article 13 UCMJ, every day in pretrial confinement counts toward sentence credit.

Decision points

• Confinement versus restriction versus conditions on liberty. Per Rule for Courts-Martial 304-305, the commander weighs the risk, the offense, the available alternatives. Confinement requires the highest threshold.
• IRO appointment. Per Rule for Courts-Martial 305(i), the convening authority appoints the IRO from outside the chain of command and outside case involvement.
• Continuation versus release at 48-hour review or 7-day IRO review. The commander at 48 hours and the IRO at 7 days weigh continuation against release. Findings recorded in the review.
• Legal hold scope. Per MCO 1900.16 paragraph 1008.1(c), the legal hold prevents transfer or separation pending court-martial completion.

Authority

This sub-page sits under MCO 5800.16MCO 5800.16 Volume 16 Chapter 7 (Pretrial Confinement). Manual for Courts-Martial 2024 Rule for Courts-Martial 304 sets pretrial restraint framework. Rule for Courts-Martial 305 sets pretrial confinement procedures including 48-hour commander review and 7-day IRO review. Article 13 UCMJ prohibits punishment before trial. Volume 16 Chapter 4 paragraph 040401.Y sets victim notification. MCO 1900.16MCO 1900.16 paragraph 1008.1(c) sets legal hold for court-martial accused. JAGINST 5800.7GJAGINST 5800.7G covers preceding administrative investigations.

Related references

• MCO 5800.16 Volume 16 Chapter 7. Pretrial confinement.
• Manual for Courts-Martial 2024 Rules for Courts-Martial 304-305. Pretrial restraint framework.
• Article 13 UCMJ. Pretrial punishment prohibition.
• MCO 5800.16 Volume 16 Chapter 4 paragraph 040401.Y. Victim notification.
• MCO 1900.16 paragraph 1008.1(c). Legal hold.
• JAGINST 5800.7G. Administrative investigations.