Can a soldier facing court-martial be confined before trial without a formal hearing, and for how long?
- 5 paragraphs
- 1 table
- 3 references
Yes.
Yes. A commander can order pretrial confinement without a hearing, but three reviews must follow on a fixed clock: a probable-cause determination by a neutral and detached officer within 48 hours, the commander’s decision whether confinement continues within 72 hours, and a review by a neutral officer within 7 days. There is no fixed maximum period of pretrial confinement, but the speedy-trial rules limit it: R.C.M. 707 requires that the accused be brought to trial, which the rule defines as arraignment, within 120 days of preferral or restraint, subject to excludable delay, and Article 10 requires “immediate steps” to try a confined accused or release them. Violations of the review rules earn day-for-day credit against the sentence.
When confinement is allowed
R.C.M. 305(d) in the Manual for Courts-Martial (2024 ed.): “No person may be ordered into pretrial confinement except for probable cause,” which exists when there is a reasonable belief that an offense triable by court-martial was committed, that the person committed it, and that “Confinement is required by the circumstances.”
At the 72-hour decision, the commander must release the confinee unless the commander believes, on reasonable grounds, that the offense occurred, the confinee committed it, and confinement “is necessary because it is foreseeable that” the confinee “will not appear at trial, pretrial hearing, or preliminary hearing,” or “will engage in serious criminal misconduct,” and that “Less severe forms of restraint are inadequate” (R.C.M. 305(i)(2)(B)). Serious criminal misconduct “includes intimidation of witnesses or other obstruction of justice, serious injury of others,” and other serious threats listed in the rule.
Article 13 adds a limit on how confinement is used: no person held for trial may be “subjected to punishment or penalty other than arrest or confinement upon the charges pending against him,” and confinement may not be “any more rigorous than the circumstances require to insure his presence.”
The review clock
| Deadline | What happens | Rule |
|---|---|---|
| 48 hours | Probable-cause determination "by a neutral and detached officer within 48 hours of imposition of confinement under military control" | R.C.M. 305(j)(1) |
| 72 hours | The commander "shall decide whether pretrial confinement will continue"; a neutral and detached commander acting within 48 hours can satisfy the 48-hour review | R.C.M. 305(i)(2)(A) |
| 7 days | A neutral and detached officer "shall review the probable cause determination and necessity for continued pretrial confinement"; the first day of confinement and the review day each count as one day | R.C.M. 305(j)(2) |
No hearing is required to order confinement in the first place. The 7-day review is the closest the rules come to one: the review “shall include a review of the memorandum submitted by the confinee’s commander,” along with additional matters the rule allows (R.C.M. 305(j)(2)(A)(i)). Under R.C.M. 305, a confinee who requests counsel must have one provided before the initial review or within 72 hours of the request, whichever comes first, and that counsel may be assigned only for the pretrial confinement proceedings.
How long confinement can last
- R.C.M. 707(a): “The accused shall be brought to trial within 120 days after the earlier of” preferral of charges, the imposition of restraint such as confinement, or entry on active duty under R.C.M. 204. Some periods are excluded under the rule’s accountability provisions.
- Article 10(b)(1): “When a person subject to this chapter is ordered into arrest or confinement before trial, immediate steps shall be taken” to inform the person of the specific offense and “to try the person or to dismiss the charges and release the person.” Article 10 is a separate obligation from the 120-day rule.
- Summary court-martial offenses: when a person “is charged only with an offense that is normally tried by summary court-martial, the person ordinarily shall not be ordered into confinement” (Article 10(a)(2)).
Credit for violations
R.C.M. 305(l): “The remedy for noncompliance with R.C.M. 305(g), (i), (j), or (k) shall be an administrative credit against the sentence adjudged for any confinement served as the result of such noncompliance,” computed “at the rate of 1 day credit for each day of confinement served as a result of such noncompliance.” The military judge “may order additional credit for each day of pretrial confinement that involves an abuse of discretion or unusually harsh circumstances.” Credit for conditions that amount to illegal pretrial punishment is a separate issue under Article 13.
What counsel can do
Defense counsel can submit matters for the 7-day review, ask for reconsideration if circumstances change, track the 120-day and Article 10 clocks, and document conditions of confinement for credit motions. How confinement affects pay and dependents is covered in whether a court-martial conviction affects dependent benefits. In the Army, the Trial Defense Service lists “Counseling Soldiers regarding restraint” among its services (Fort Drum TDS page).
Statutes and rules cited here were checked in October 2026.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.