The 48-Hour, 72-Hour, and 7-Day Reviews of Pretrial Confinement
Key takeaways
- The centerpiece deadlines: 48 hours to a neutral probable cause determination, 72 hours to the commander’s decision and memorandum, 7 days to independent review — extendable to 10 only for good cause.
- The 7-day reviewing officer applies a preponderance standard to the R.C.M. 305(h)(2)(B) confinement requirements and can order immediate release the command cannot override.
- Once charges are referred, the military judge reviews confinement on motion for appropriate relief and can release for abuse of discretion or review violations. R.C.M. 305(k).
- Noncompliance earns day-for-day credit, and the judge may award additional credit for abuse of discretion or unusually harsh circumstances — the credit practitioners still call “305(k) credit.”
- Limited exceptions exist for operational necessity and vessels at sea — but the confinement standards themselves never turn off.
The review timeline at a glance
Pretrial confinement is the only deprivation in military justice that must be re-justified four times in its first week. Each checkpoint has its own actor, standard, and paper trail — and each failure is separately compensable.
| Deadline | Who acts | What must happen | Rule |
|---|---|---|---|
| 24 hours | Officer into whose charge the confinee was committed | Report to the commander: name, offenses charged, who ordered confinement | R.C.M. 305(i)(1) |
| 48 hours | Neutral and detached officer | Determination that probable cause supports continued confinement | R.C.M. 305(j)(1) |
| 72 hours | Commander | Decide whether confinement continues; prepare a written memorandum of reasons | R.C.M. 305(i)(2) |
| 7 days (10 for good cause) | Neutral and detached reviewing officer — in the Army, a military magistrate | Review probable cause and necessity; approve continued confinement or order immediate release; written memorandum | R.C.M. 305(j)(2) |
| After referral (or pre-referral under R.C.M. 309) | Military judge | Review the propriety of confinement on motion for appropriate relief; order release or credit | R.C.M. 305(k), (l) |
For the 7-day count, the initial date of confinement under military control counts as day one and the date of the review counts as a day — there is no free weekend. And the counsel clock runs in parallel: a confinee who requests military counsel must receive one before the initial review or within 72 hours of the request, whichever comes first.
48 hours: the neutral probable cause determination
The first substantive checkpoint answers the constitutional demand for a prompt judicial-type determination of probable cause after a warrantless seizure. The rule states it plainly:
“Review of the adequacy of probable cause to continue pretrial confinement shall be made by a neutral and detached officer within 48 hours of imposition of confinement under military control.”R.C.M. 305(j)(1)
Two features are litigated. First, neutrality: the commander’s own 72-hour decision can double as the 48-hour determination, but only if the commander is a neutral and detached officer and acts within 48 hours — a commander invested in the case may not fill both roles. Second, the trigger: the clock runs from confinement under military control. When civilian authorities hold the accused at the military’s request, the rule requires reasonable efforts to bring the person under military control in a timely fashion, so the government cannot park an accused in a county jail to keep the clock from starting.
72 hours: the commander’s decision and memorandum
Within 72 hours of ordering confinement — or of learning that a member of the unit has been confined — the commander must decide whether confinement will continue. The substantive test is R.C.M. 305(h)(2)(B): probable cause plus foreseeable flight or serious criminal misconduct, plus the inadequacy of every lesser form of restraint. The commander is directed to release unless those requirements are believed on reasonable grounds; the option of returning the accused to the unit, restriction, arrest, or conditions on liberty must actually be considered.
If confinement continues, the commander must produce a written memorandum stating the reasons for concluding the requirements are met. It may include hearsay and incorporate witness statements, investigative reports, or official records by reference — the Military Rules of Evidence do not apply — but it must exist, and it goes to the 7-day reviewing officer. For the defense, this memorandum is the government’s theory of confinement frozen in writing at hour 72: every later justification can be measured against it.
The 7-day review: the first real hearing
Within 7 days of confinement, a neutral and detached officer appointed under service regulations — the military magistrate, in Army practice — must review both the probable cause determination and the necessity for continued confinement. This is the first checkpoint with adversarial features:
- The packet. The reviewing officer must consider the commander’s 72-hour memorandum and may consider additional written matters — including anything the confinee submits. This is where a defense package of ties, service record, and a lesser-restraint plan lands.
- Appearance. The confinee and counsel shall be allowed to appear and make a statement, if practicable; a command representative may also appear. A victim of the alleged offense has the right to notice and to be reasonably heard, though the hearing may not be unduly delayed for that purpose.
- Standard of proof. The confinement requirements must be proved by a preponderance of the evidence — a real burden, on the government, before an officer outside the accused’s chain of command.
- Decision. The reviewing officer approves continued confinement or orders immediate release, and must set out conclusions and factual findings in a written memorandum. For good cause, the review may be extended to 10 days after confinement began — but no further.
- Reconsideration. On request and notice to the parties, the reviewing officer must reconsider based on any significant information not previously considered — so a denied release is not final if the facts develop.
Release ordered here has teeth: once a person authorized under R.C.M. 305 directs release, the accused may not be reconfined before trial except on evidence or misconduct discovered after the release order that independently meets the confinement criteria.
What this means if you are confined right now
The 7-day review is usually your best early chance at release, and it is won with preparation compressed into days. The government arrives with the commander’s memorandum; you should arrive with more — family and community ties, financial obligations, a spotless appearance history, a supervisor willing to vouch, and a concrete restriction plan that answers the flight and misconduct concerns line by line. Every day of delay in requesting counsel is a day of preparation lost. Have your family engage a defense lawyer immediately; the review will not wait.
Review by the military judge
Once the charges for which the accused is confined are referred — or in a pre-referral proceeding under R.C.M. 309 — the military judge reviews the propriety of pretrial confinement on a motion for appropriate relief. R.C.M. 305(k). The judge’s release authority is deliberately structured; release is required only if:
- the 7-day reviewing officer’s decision was an abuse of discretion and the information before the judge does not justify continued confinement;
- information not presented to the reviewing officer establishes that the accused should be released; or
- the 48-hour or 7-day review provisions were not complied with and the information before the judge does not establish sufficient grounds for continued confinement.
The structure matters: the judge does not re-decide confinement from scratch, so the record made at the 7-day review frames everything after it. A thin defense showing at day 7 makes the abuse-of-discretion argument at the judge’s hearing needlessly steep — one more reason the early package is worth the sprint.
Remedies: day-for-day credit and more
The remedy for noncompliance with the release, notification, and review provisions is administrative sentence credit: one day of credit for each day of confinement served as a result of the noncompliance. On top of that floor sits a discretionary enhancement:
“The military judge may order additional credit for each day of pretrial confinement that involves an abuse of discretion or unusually harsh circumstances.”R.C.M. 305(l)
Practitioners still call this “305(k) credit,” after the subsection where the remedy lived for decades — recent editions of the Manual have renumbered the surrounding provisions, but the substance is unchanged. At sentencing the military judge must order credit for any confinement served as a result of an abuse of discretion or noncompliance with the review rules. The credit is applied in addition to ordinary day-for-day credit for lawful pretrial confinement, first against adjudged confinement, then — if confinement is insufficient — against hard labor without confinement, restriction, fine, and forfeiture of pay, in that order. How the credits stack, and how Article 13 credit for illegal punishment fits alongside them, is its own battleground.
Remember also that review violations do not exist in isolation: a confined accused holds Article 10’s speedy trial protection from the first day, and government sluggishness that shows up in blown review deadlines often shows up again in the diligence analysis.
Operational and at-sea exceptions
R.C.M. 305 carries two safety valves. The Secretary of Defense may suspend specified review requirements for units or areas where operational requirements make them impracticable, and the counsel, 72-hour memorandum, and review provisions do not apply to a person confined on a vessel at sea — confinement there may continue only until transfer to a shore facility at the earliest opportunity the mission permits, with the memorandum then forwarded with an explanation of any delay.
The exceptions suspend procedures, not standards: the requirements for confinement remain the same, the commander must still decide continuation as soon as reasonably possible, and confinement remains subject to judicial review. A deployment does not convert the brig into a review-free zone.
Practitioner’s note
We build a one-page confinement chronology in every brig case: the hour confinement began under military control, and beside it each deadline — 48, 72, 7 days — with what actually happened and the documents proving it. Commands miss these marks more often than anyone expects, usually by treating weekends as tolling time (they are not) or by letting a non-neutral commander sign the 48-hour determination. Every missed mark is day-for-day credit that costs nothing to claim and, claimed together with an abuse-of-discretion showing, can shorten a sentence by weeks. The chronology takes an afternoon; we have never regretted making one.
Frequently asked questions
What happens in the first 72 hours of military pretrial confinement?
Within 24 hours the officer holding you must report your confinement to your commander. Within 48 hours a neutral and detached officer must determine that probable cause supports continued confinement. Within 72 hours your commander must decide whether confinement continues and, if so, write a memorandum stating the reasons — the document the later reviews are built on.
What is the 7-day review of pretrial confinement?
Within 7 days of confinement — 10 with good cause — a neutral and detached reviewing officer, called a military magistrate in the Army, reviews both probable cause and the necessity for continued confinement. The government must prove the confinement requirements by a preponderance of the evidence. You and your counsel may appear and submit matters, and the officer can order your immediate release.
Can a military judge release me from pretrial confinement?
Yes, after charges are referred, on a motion for appropriate relief. The judge orders release if the 7-day reviewing officer abused their discretion, if new information shows you should be released, or if the required reviews never properly happened and the record does not justify continued confinement. The judge also awards sentence credit for review violations.
What credit do I get if the confinement reviews were done wrong?
One day of sentence credit for every day of confinement served as a result of noncompliance with the review, notification, or release rules. The military judge may add additional credit for each day involving an abuse of discretion or unusually harsh circumstances — the credit long known as 305(k) credit. It applies on top of ordinary day-for-day credit for the confinement itself.
Can the command put me back in confinement after I am released?
Not on the same record. Once release is directed by a person authorized under R.C.M. 305, you may not be reconfined before trial unless evidence or misconduct discovered after the release order, alone or with the other evidence, independently satisfies the confinement criteria. A command unhappy with a magistrate's release decision cannot simply reconfine you.
About the attorneys behind this guide
Michael Waddington, Civilian Military Defense Lawyer
Michael Waddington has litigated pretrial confinement reviews for more than 25 years, from magistrate hearings fought within days of a client’s confinement to military judge motions dismantling 72-hour memoranda that did not survive contact with the evidence. A former Army prosecutor and defense counsel, he has seen how commands actually process confinement decisions under deadline pressure — and where the paperwork breaks — in courts-martial across every service, worldwide.
Alexandra González-Waddington, Founding Partner
Alexandra González-Waddington, founding partner of Gonzalez & Waddington, has spent more than 20 years preparing confined service members and their families for the reviews that decide whether confinement continues — building release packages on short timelines in cases ranging from domestic violence and sexual assault allegations to violent offenses. She legally reviewed this guide against R.C.M. 305 of the 2024 Manual for Courts-Martial.
Talk to a civilian court-martial defense lawyer today
Gonzalez & Waddington defends Soldiers, Sailors, Airmen, Marines, Guardians, and Coast Guardsmen worldwide — in UCMJ investigations, courts-martial, Article 15/NJP actions, GOMOR rebuttals, administrative separation boards, and Boards of Inquiry. We defend the whole case: the investigation, the trial, the administrative fallout, and the long-term consequences to your rank, retirement, clearance, and discharge.
Sources for this guide include the Uniform Code of Military Justice, the Manual for Courts-Martial (2024 ed.), the Rules for Courts-Martial, the TJAGLCS Criminal Law Deskbook, and the cited decisions of the Court of Appeals for the Armed Forces and the service Courts of Criminal Appeals. It is attorney advertising and general legal information — not legal advice, and reading it does not create an attorney–client relationship. Every case turns on its own facts. Service procedures vary; Army references (AR 27-10) are noted where used.