Overview of military judge review (see Pretrial restraint & pretrial confinement in the military):
After the charges against the prisoner have been referred to a court-martial, the accused may request the military judge assigned to the case to review the propriety of the confinement. R.C.M. 305(g), (j). The military judge does not have the authority to overturn a reviewing officer’s decision to continue pre-trial confinement unless: the reviewing officer’s decision was an abuse of discretion and the military judge finds no reason justifying confinement; or new and substantial information (not presented to reviewing officer) establishes release; or, the initial review has not taken place and the military judge determines the requirements for confinement have not been met. R.C.M. 305(j).
Day-for-day administrative credit may be ordered by the military judge for pretrial confinement served for failure of the reviewing officer to comply with subsection (f), (h), (i) or (j) of R.C.M. 305. Under R.C.M. 305(k), additional credit may be ordered for pretrial confinement that involves abuse of discretion or unusually harsh circumstances. In cases of simultaneous noncompliance of multiple provisions of R.C.M. 305, the prisoner is not entitled to extra days of credit. United States v. Plowman, 53 M.J. 511, 514 (N.M. Ct. Crim. App. 2000).
Release from pretrial confinement may be directed by the following: any commander of the prisoner; the officer appointed to review the confinement; and the detailed military judge (after charges have been referred.) R.C.M. 305(g). Once release is directed, the accused may not be reconfined before completion of the trial, except upon discovery of evidence or misconduct which either alone or in conjunction with all other evidence, justifies reconfinement. R.C.M. 305(1).
Without the presence of new evidence not previously considered, a decision to release a prisoner is not reviewable by the supervising judge. Keaton v. Marsh, 43 M.J. 757 (Army Ct. crim. App. 1996).
A military judge is not assigned until charges have been referred, which could take several months. In cases of unlawful pretrial punishment in which the conditions of confinement are “more rigorous then the circumstances require”, the prisoner may file an Article 13 motion with the court of criminal appeals to seek release from unlawful pretrial confinement. (The Offices of David E. Coombs, Pretrial Confinement Review (2010)) (available at https://www.armycourtmartialdefense.info.
Once referred, a military judge has the authority to review the propriety of pretrial confinement regardless of whether the independent reviewing officer has conducted his review. United States v. Huey, 57 M.J. 504 (N-M. Ct. Crim. App. 2002).
The accused’s unit commander, the confinement facility commander, the commander of the unit to which the accused is attached while serving confinement, or the commander of the installation on which the confinement facility is located. United States v. Shelton, 27 M.J. 540 (A.C.M.R. 1988).