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pretrial confinement gets the highest priority for having his or her case processed. If the government is not moving the case at a reasonable pace, the case can be dismissed with prejudice. In addition, if the conditions are so strict that the accused is essentially in jail, then the accused maybe entitled to other relief. The best thing to do is to consult your Judge Advocate about any conditions you put on an accused.
d. Pretrial confinement.
There is no bail system in the military. If you order an accused into confinement, he will stay there unless your decision is overruled. Therefore, you must consult with your servicing Judge Advocate and carefully follow the procedures outlined below. The presumption is that Soldiers will not go into pretrial confinement, and pretrial confinement is generally not appropriate for cases referred to summary courts-martial.
2. Procedures for pretrial confinement. (R.C.M. 305)
To order someone into pretrial confinement, you must have reasonable grounds that the person committed an offense that is triable by court-martial; AND confinement is necessary because the accused is a flight risk OR will commit serious future misconduct AND lesser forms of restraint are inadequate. It is not enough that the accused is a pain in the neck or a hassle. He must either be a flight risk OR have the potential to commit SERIOUS future misconduct, which could include SERIOUS threats to your unit’s discipline and readiness. You are not required to try lesser forms of restraint in those cases where lesser forms will be obviously inadequate. Keep in mind that once the accused goes into pretrial confinement, you are responsible for his well- being while he is in confinement (you or someone from your command will likely have to visit him or heron a regular basis) and you will be responsible for bringing the accused to his attorney for casework and to all of the proceedings.
Within hours of ordering the accused into confinement, your decision must be reviewed by a neutral and detached officer. Within hours, you must memorialize your decision into a memorandum. Within days, a magistrate will review your decision and decide whether continued pretrial confinement is necessary. Very often, you will write the hour memorandum immediately and the magistrate will conduct the day review within hours, which satisfies the hour review requirement, too. Remember, it is essential that you consult with your servicing Judge Advocate before placing any restraints on a Soldier’s liberty.

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