Chapter III · Initiation of Charges; Apprehension; Pretrial Restraint; Related Matters
R.C.M. 304. Pretrial restraint
2024 Manual for Courts-Martial, United States
Recent revisions Summary of changes Cited by (23)(a) Types of pretrial restraint. Pretrial restraint is moral or physical restraint on a person’s liberty which is imposed before and during disposition of offenses. Pretrial restraint may consist of conditions on liberty, restriction in lieu of arrest, arrest, or confinement.
(1) Conditions on liberty. Conditions on liberty are imposed by orders directing a person to do or refrain from doing specified acts. Such conditions may be imposed in conjunction with other forms of restraint or separately.
(2) Restriction in lieu of arrest. Restriction in lieu of arrest is the restraint of a person by oral or written orders directing the person to remain within specified limits; a restricted person shall, unless otherwise directed, perform full military duties while restricted.
(3) Arrest. Arrest is the restraint of a person by oral or written order not imposed as punishment, directing the person to remain within specified limits; a person in the status of arrest may not be required to perform full military duties such as commanding or supervising personnel, serving as guard, or bearing arms. The status of arrest automatically ends when the person is placed, by the authority who ordered the arrest or a superior authority, on duty inconsistent with the status of arrest, but this shall not prevent requiring the person arrested to do ordinary cleaning or policing, or to take part in routine training and duties.
(4) Confinement. Pretrial confinement is physical restraint, imposed by order of competent authority, depriving a person of freedom pending disposition of offenses. See R.C.M. 305.
Discussion
Conditions on liberty include orders to report periodically to a specified official, orders not to go to a certain place (such as the scene of the alleged offense), and orders not to associate with specified persons (such as the alleged victim or potential witnesses). Conditions on liberty must not hinder pretrial preparation, however. Thus, when such conditions are imposed, they must by sufficiently flexible to permit pretrial preparation. Restriction in lieu of arrest is a less severe restraint on liberty than is arrest. Arrest includes suspension from performing full military duties and the limits of arrest are normally narrower than those of restriction in lieu of arrest. The actual nature of the restraint imposed, and not the characterization of it by the officer imposing it, will determine whether it is technically an arrest or restriction in lieu of arrest. Breach of arrest or restriction in lieu of arrest or violation of conditions on liberty are offenses under the UCMJ. See paragraphs 12, 13 and 18, Part IV. When such an offense occurs, it may warrant appropriate action such as nonjudicial punishment or court-martial. See R.C.M. 306. In addition, such a breach or violation may provide a basis for the imposition of a more severe form of restraint. R.C.M. 707(a) requires that the accused be brought to trial within 120 days of preferral of charges or imposition of restraint under R.C.M. 304(a)(2)-(4).
(b) Who may order pretrial restraint.
(1) Of civilians and officers. Only a commanding officer to whose authority the civilian or officer is subject may order pretrial restraint of that civilian or officer.
Discussion
Civilians may be restrained under these rules only when they are subject to trial by court-martial. See R.C.M. 202.
(2) Of enlisted persons. Any commissioned officer may order pretrial restraint of any enlisted person.
(3) Delegation of authority. The authority to order pretrial restraint of civilians and commissioned and warrant officers may not be delegated. A commanding officer may delegate to warrant, petty, and noncommissioned officers authority to order pretrial restraint of enlisted persons of the commanding officer’s command or subject to the authority of that commanding officer.
(4) Authority to withhold. A superior competent authority may withhold from a subordinate the authority to order pretrial restraint.
(c) When a person may be restrained. No person may be ordered into restraint before trial except for probable cause. Probable cause to order pretrial restraint exists when there is a reasonable belief that:
(1) An offense triable by court-martial has been committed;
(2) The person to be restrained committed it; and
(3) The restraint ordered is required by the circumstances.
Discussion
The decision whether to impose pretrial restraint, and, if so, what type or types, should be made on a case-by-case basis. The factors listed in the Discussion of R.C.M. 305(h)(2)(B) should be considered. The restraint should not be more rigorous than the circumstances require to ensure the presence of the person restrained or to prevent foreseeable serious criminal misconduct. Restraint is not required in every case. The absence of pretrial restraint does not affect the jurisdiction of a court-martial. However, see R.C.M. 202(c) concerning attachment of jurisdiction. See R.C.M. 305 concerning the standards and procedures governing pretrial confinement.
Practice Note
The above discussion states to consider the "factors listed in the Discussion of R.C.M. 305(h)(2)(B)[.]" However, the correct section that lists the factors to consider are in the Discussion of R.C.M. 305(i)(2)(B).
(d) Procedures for ordering pretrial restraint. Pretrial restraint other than confinement is imposed by notifying the person orally or in writing of the restraint, including its terms or limits. The order to an enlisted person shall be delivered personally by the authority who issues it or through other persons subject to the UCMJ. The order to an officer or a civilian shall be delivered personally by the authority who issues it or by another commissioned officer. Pretrial confinement is imposed pursuant to orders by a competent authority by the delivery of a person to a place of confinement.
(e) Notice of basis for restraint. When a person is placed under restraint, the person shall be informed of the nature of the offense which is the basis for such restraint.
Discussion
See R.C.M. 305(e)concerning additional information which must be given to a person who is confined. If the person ordering the restraint is not the commander of the person restrained, that officer should be notified.
(f) Punishment prohibited. Pretrial restraint is not punishment and shall not be used as such. No person who is restrained pending trial may be subjected to punishment or penalty for the offense which is the basis for that restraint. Prisoners being held for trial shall not be required to undergo punitive duty hours or training, perform punitive labor, or wear special uniforms prescribed only for post-trial prisoners. This rule does not prohibit minor punishment during pretrial confinement for infractions of the rules of the place of confinement. Prisoners shall be afforded facilities and treatment under regulations of the Secretary concerned.
Discussion
Offenses under the UCMJ by a person under restraint may be disposed of in the same manner as any other offenses.
(g) Release. Except as otherwise provided in R.C.M. 305, a person may be released from pretrial restraint by a person authorized to impose it. Pretrial restraint shall terminate when a sentence is adjudged, the accused is acquitted of all charges, or all charges are dismissed.
Discussion
Pretrial restraint may be imposed (or reimposed) if charges are to be reinstated or a rehearing or “other” trial is to be ordered.
(h) Administrative restraint. Nothing in this rule prohibits limitations on a Servicemember imposed for operational or other military purposes independent of military justice, including administrative hold or medical reasons.
Discussion
See R.C.M. 306.
Cross-referencesCited by 23Cites 8Elsewhere 2
Cited by
Provisions elsewhere in the Manual whose text cites R.C.M. 304. Each link opens the citing provision.
Rules for Courts-Martial
Discussion under R.C.M. 301(c) — Report of offense
…authority). See also R.C.M. 302 (Apprehension); R.C.M. 303 (Preliminary inquiry into reported offenses); R.C.M. 304, 305 (Pretrial restraint, confinement). Any doubt as to whether a report alleges a covered offense should be…
Discussion under R.C.M. 302(a)(1) — Apprehension
(In military terminology, “arrest” is a form of restraint. See Article 9; R.C.M. 304.) See subsection (c) of this rule concerning the bases for apprehension. An apprehension is not required in…
Who may order confinement. See R.C.M. 304(b)
…by anyone authorized to apprehend (see R.C.M. 302(b)), and may continue until a proper authority under R.C.M. 304(b) is notified and takes action. Thus, a person who has been apprehended could be physically restrained, but…
Discussion under R.C.M. 305(i)(2)(B)(iv) — Pretrial confinement
…the confinee's unit, placed on restriction, placed under arrest, or placed under conditions on liberty. See R.C.M. 304.
See R.C.M. 304(b) concerning who may order confinement.
The imposition of restraint under R.C.M. 304(a)(2)–(4); or
R.C.M. 707(b)(1) — Speedy trial
In general. The date of preferral of charges, the date on which pretrial restraint under R.C.M. 304 (a)(2)-(4) is imposed, or the date of entry on active duty under R.C.M. 204 shall not count for purpose of…
For an accused under pretrial restraint under R.C.M. 304(a)(2)-(4) at the time of the dismissal or mistrial, a new 120-day period begins on the date of the dismissal or…
the date of imposition of restraint under R.C.M. 304(a)(2)-(4); or
the date on which restraint under R.C.M. 304(a) (2)-(4) is reimposed; or
…shall give priority to cases in which the accused is held under those forms of pretrial restraint defined by R.C.M. 304(a)(3)-(4). Trial of or other disposition of charges against any accused held in arrest or confinement pending…
R.C.M. 804(a)(1) — Presence at court-martial proceedings
…limit authority to implement restriction, up to and including confinement, as necessary in accordance with R.C.M. 304 or R.C.M. 305.
R.C.M. 804(a)(1)(B) — Presence at court-martial proceedings
…for maintaining custody or control of an accused before and during trial may be assigned, subject to R.C.M. 304 and 305, and R.C.M. 804(c)(3), under such regulations as the Secretary concerned may prescribe.
R.C.M. 1103(e) — Deferment of confinement, forfeitures, and reduction in grade; waiver of Article 58b forfeitures
…liberty during the period of deferment for any other proper reason, including a ground for restraint under R.C.M. 304.
Who may order confinement. Any person who may order pretrial restraint under R.C.M. 304(b) may order confinement of a probationer under a suspended sentence to confinement.
Military Rules of Evidence
Mil. R. Evid. 321(c)(2)(A) — Eyewitness identification
…or suspect is entitled to counsel if, after preferral of charges or imposition of pretrial restraint under R.C.M. 304 for the offense under investigation, the accused is required by persons subject to the code or their agents…
UCMJ Punitive Articles
Article 87a, ¶ 12.c.(3)(a) — Resistance, flight, breach of arrest, and escape
Arrest. There are two types of arrest: pretrial arrest under Article 9 (see R.C.M. 304) and arrest under Article 15 (see subparagraph 5.c.(3), Part V, MCM). This article prohibits breaking any…
Authority to order arrest. See R.C.M. 304(b) and paragraph 2 and subparagraph 5.b., Part V, MCM concerning authority to order arrest.
Authority to order confinement. See R.C.M. 304(b), 1102(b)(2); and paragraph 2 and subparagraph 5.b., Part V, MCM concerning who may order confinement.
…directing a person to remain within certain specified limits. “Restriction” includes restriction under R.C.M. 304(a)(2), restriction resulting from imposition of either nonjudicial punishment (see Part V) or the sentence of a…
Article 96, ¶ 24.c.(1) — Release of prisoner without authority; drinking with prisoner
Prisoner. A prisoner is a person who is in confinement or custody imposed under R.C.M. 302, 304, or 305, or under sentence of a court-martial who has not been set free by a person with authority to release the…
Article 97, ¶ 25.c.(1) — Unlawful detention
…improper acts by those empowered by the UCMJ to arrest, apprehend, or confine. See Articles 7 and 9; R.C.M. 302, 304, 305, and 1103, and paragraph 2 and subparagraph 5.b., Part V. It does not apply to private acts of false imprisonment or…
R.C.M. 304 cites
Provisions named in the text of R.C.M. 304. Where the cited provision is on this site, the link opens it.