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Overview of litigating issues related to pretrial confinement

Pretrial restraint & pretrial confinement in the military:

Pretrial: Waiving a Violation of “Article 13”

R.C.M. 705(c)(1)(B) states:

A term or condition in a pretrial agreement shall not be enforced if it deprives the accused of: the right to counsel; the right to due process; the right to challenge the jurisdiction of the court-martial; the right to complete sentencing proceedings; the complete and effective exercise of post-trial and appellate rights. 

The rule does not specifically prohibit the accused from waiving his or her right to make a motion for sentencing credit because of unlawful pretrial punishment. However, the accused may only waive his or her right to challenge a violation of “Article 13” with full knowledge of the implications of the waiver and the military judge should inquire into the facts and circumstances of the pretrial confinement as well as the accused’s knowledge of the waiver and his or her voluntary acceptance.         United States v. McFayden, 51 M.J. 289 (C.A.A.F. 1999).

Pretrial: Judicial Review

When reviewing the legality of confinement already served, the military judge should apply an abuse of discretion standard and limit the examination to the evidence previously considered by the magistrate at the R.C.M. 305(i) hearing. R.C.M. 305(j)(1)(A). In determining whether the prisoner should be released, the military judge should hold a de novo hearing. R.C.M. 305(j)(1)(B); See United States v. Gaither, 45 M.J. 349 (C.A.A.F. 1996).

Pretrial: Other Violations

UCMJ art. 12 (2005) forbids American Soldiers from being confined in “immediate association” with Enemy prisoners or other foreign nationals. The Court of Appeals has interpreted Article 12 UCMJ as prohibiting placement of enemy prisoners of war and illegal aliens from being held in the same cell as Americans. United States v. Wise, 64 M.J. 468 (C.A.A.F. 2007).


At trial, counsel shall inform the court-martial of the data on the charge sheet relating to the duration and nature of any pretrial restraint. If the defense objects to the data as materially inaccurate or incomplete, the military judge shall determine the issue. Objections that are not asserted by the defense are waived. R.C.M. 1001(b)(1).

In United States v. Ecoffey, 23 M.J. 629 (A.C.M.R. 1986), the Court ruled that the failure of defense counsel to raise the issue of administrative credit for restriction tantamount to confinement (Mason credit) by timely and specific objection to the presentation of data at trial concerning the nature of restraint waives consideration of the issue on appeal. And in United States v. Rollins, 36 M.J. 795 (A.C.M.R. 1993), the Court ruled that failure to raise a Rexroat/48 hour review issue at trial constitutes waiver. Accord, United States v. Sanders, 36 M.J. 1013 (A.C.M.R. 1993).

In United States v. Guerrero, 28 M.J. 223 (C.M.A. 1989), the Court considered a request for Mason credit, made for the first time on appeal, but rejected the claim.

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