Military Pretrial Confinement Lawyers

During pre-trial confinement, a suspect is detained for a criminal offense. In the military, pre-trial confinement is similar to that in the civilian system. It is important to note that the two also have marked differences.

When Can I Be Restrained?

For you to be restrained in the military, there must be probable cause. The term probable cause refers to a reasonable belief that a service member has committed an offense.

What Happens if I Am Apprehended in the Military?

When a service member is apprehended, they are handed over to a member of the command authority. The command decides whether the apprehended should be held in military jail (also known as a brig, stockade, or confinement). As an alternative to confinement, the command may impose pre-trial restrictions, such as confining the soldier to his post or base.

Who Can Order You to Be Confined in the Military?

Any military officer can confine enlisted military personnel. A person’s confinement decision is subject to review.

Within 48 hours of confinement, the decision must be reviewed. A serviceman who has been apprehended has the right to have his commanding officer review whether their confinement is appropriate within 72 hours.

Requirements for Review

In order for confinement to stand, a “commander review” must confirm in writing:

• Probable cause to believe that you have committed an offense
• Probable cause that confinement was necessary
• Probable cause to believe that lesser forms of restraint were inadequate

Also, a “magistrate review” must find in writing:

• Probable cause to believe that you have committed an offense
• Reason to believe that confinement was necessary from the preponderance of the evidence (51% or more)
• Reason to believe that lesser forms of restraint were inadequate

Where Do the Grounds for Military Law Come From?

Historically, military law precedes the Constitution of the United States. As the supreme law of the land, the Constitution remains the primary source of military law.

The following are other sources of military law:

• International law affecting the law of war from treaties
• Uniform Code of Military Justice
• Executive orders
• Service regulations
• Usages and customs of the Armed Forces and of war
• Military court decisions

Disciplinary Actions

There are several methods the military uses to maintain good order and discipline, not all of which require a hearing:

• Reprimands and Admonitions
• Counselings
• Unfavorable Information Files
• Administrative Demotions
• Administrative Discharges
• Court Martial

Can a Federal Civil Court Ever Review a Military Court Conviction?

In rare cases, yes. In the Uniform Code of Military Justice (UCMJ), military personnel are subject to different laws and standards than civilians. Therefore, federal civil courts do not review military court cases.

However, military courts cannot enforce laws reserved for federal civil courts, just as federal civil courts cannot use the UCMJ. Therefore, if a military court conviction violates a person’s rights under federal or constitutional law, a federal civil court may have the power to review the conviction.

In What Ways Can a Military Court Conviction Be Reviewed By a Federal Civil Court?

A federal civil court may review a military court conviction if it involves federal or constitutional law issues.

Here are a few examples:

• Petitioning for a writ of habeas corpus: arguing that a military conviction constitutes unlawful imprisonment
• Petitioning for a writ of mandamus: trying to force a military court to do something under a direct order from the federal civil court
• Enforcement of the Tucker Act: attempting to recover for lost pay or benefits as a result of a court-martial conviction
• Seeking injunctive relief: asking the federal civil court to force the military court to do something

Are There Any Requirements or Restrictions Before a Federal Civil Court Can Review a Military Court Conviction?

Yes. A federal civil court cannot review a military court decision unless the convicted person has exhausted all available remedies. Therefore, the person must have no other option than to appeal the military court’s decision to a federal civil court. When filing a habeas corpus petition, the convicted person must also be imprisoned or in custody at the time of filing.

Are There Any Restrictions on a Federal Civil Court Once a Review Takes Place?

Yes. In many federal courts, reviewing a military court conviction is strictly procedural. Federal courts are not required to review a military court’s decision so long as it provides a fair and reasonable trial to the convicted person.

As long as the decision deals with federal or constitutional issues, other federal courts believe they can review the decision itself.

Do I Have the Right to an Attorney?

You have the right to an attorney during court-martial proceedings and throughout the appeal process. Your defense attorney can either be a military judge advocate or a civilian lawyer.

How Does the Military Court of Appeals Review My Case?

When reviewing your case, the court will look for any legal errors made in deciding facts or the level of punishment imposed by the court-martial. The court can change your sentence, but it cannot make it more severe.

The court will also review the facts and evidence presented to determine whether you were proven guilty “beyond a reasonable doubt.”

You will also be evaluated if you plead guilty and receive a punitive discharge, a year’s confinement, or more. This is to ensure you really believed you were guilty and did not indicate your innocence during the proceedings.

Judge advocates review court-martial convictions with lesser sentences than those described above.

If the appeal to your branch’s military appeals court is unsuccessful, the next step is to consider an appeal to the Armed Forces Court of Appeals.

Can I Appeal to the U.S. Court of Appeals for the Armed Forces?

Not all cases can be heard by the Court of Appeals for the Armed Forces. You have an absolute right to appeal to this court if you have been sentenced to death. If your case should be reviewed, your attorney must file a petition to the court showing “good cause” (meaning, a good reason).

The court can hear your case, or it can be denied. The court must hear any cases sent for review by the Judge Advocate General (JAG). When a legal error or an inappropriate sentence is imposed, the JAG will order a review.

Your case can be sent to the court by the Judge Advocate General, but this request is very rare.

The Court of Appeals has a limited scope of review. There is only one thing it can do: look for legal errors made by the military appeals court. There is no need to examine the facts and identify any factual errors. The court will only look at whether the military appeals court applied the law incorrectly to your case.

Can I Appeal to the United States Supreme Court?

The U.S. Supreme Court reviews only a handful of cases that it receives each year, and the Court has tremendous discretion about which cases it will choose to hear. The Supreme Court has the discretion to hear your case even if you have been sentenced to death. Not all decisions of the U.S. Court of Appeals for the Armed Forces can be appealed to the U.S. Supreme Court.

Do I Need a Lawyer?

Consequences under military law are just as serious as they are under civilian law. You are entitled to have a military attorney appointed to represent you in any criminal or administrative action which has been initiated against you.

Although it can be denied, you also have a right to request a specific military attorney in a Court-Martial.

In some cases, you may be able to hire a civilian attorney with military law experience or a government lawyer. Consulting with a military law lawyer would be prudent. An experienced lawyer could help explain defenses and resolve the claim against you.