. The procedures used to review pretrial
Not later than 72 hours after ordering an accused
into pretrial confinement, or after receipt of a report that
a member of a commanders unit or organization was
confined, the commander is to decide whether pretrial
confinement will continue. The command is to direct
the accuseds release unless it believes upon probable
cause; that is, upon reasonable grounds, that:
. an offense triable by court-martial
l the accused committed the offense, and
l confinement is necessary because
foreseeable that the accused will not appear at
pretrial hearing, or investigation, or the accused will
engage in serious criminal misconduct, and less severe
forms of restraint are inadequate.
A person should not be confined as a mere matter of
convenience or expedience. Some factors that should
be considered are as follows:
The nature and circumstances of the offenses
charged or suspected, including extenuating
The weight of the evidence against the accused
The accuseds ties to the locale, including family,
off-duty employment, financial resources, and
length of residence
The accuseds character and mental condition
The accuseds service record, including any
record of previous misconduct
The accuseds record of appearance at or flight
from other pretrial investigations, trials, and
The likelihood that the accused can and will
commit further serious criminal misconduct if
allowed to remain at liberty
In determining if pretrial confinement is the proper
form of restraint, the command should judge the
reliability of the information available. Before relying
on the reports of others, the commander must have a
reasonable belief that the information is believable and
has a factual basis. The command can base a decision
on oral or written information. This information need
not be under oath, but an oath may add to its reliability.
The command may examine the accuseds personnel
records, police records, and may consider the
recommendation of others.
Less serious forms of
restraint must always be considered before pretrial
confinement may be approved.
commander should consider whether the accused could
be safely returned to his or her unit, at liberty or under
restriction, arrest, or conditions on liberty.
If the commander approves continued pretrial
confinement, he or she is to prepare a written
memorandum justifying continued confinement. The
memorandum may include hearsay and may incorporate
by reference other documents, such as witnesses
statements, investigative reports, or official records.
The commander forwards this memorandum to the
If the commander had prepared a
memorandum before ordering confinement, a second
memorandum need not be prepared.
information may be added to the memorandum at any
CONFINEMENT ORDER AND PRETRIAL
CONFINEES. Most brigs have their own
instructions on local requirements such as minimum
seabag needs, visiting hours, and release times.
Obtain a copy of the local instruction for further
See also the Navy Corrections Manual,
SECNAVINST 1640.9, and OPNAVINST 1640.6 for
all brig procedures.
For pretrial confinees, prepare a Confinement
Order, NAVPERS 1640/4. The procedures for the
preparation of confinement orders are contained in
The only difference in a pretrial
confinement order and a posttrial confinement order
is that you will fill out the section titled Detained and
not the section titled Confined as a Result Of. You
also need to fill in the section Pretrial Confinement
Necessary. You will normally need an original and
Check the local requirements to
determine whether to send dental, medical, and pay
records to the brig.
Have the accuseds division
officer or the chief master-at-arms assist the accused
in obtaining the seabag requirements for the brig.
Check local requirements to determine whether the
brig requires TEMADD orders. Do not use temporary
duty (TEMDU) orders for pretrial confinement. Have
the member escorted to the medical department for the
confinement physical. NOTE: The doctor must sign
the confinement order.
REVIEW OF PRETRIAL CONFINEMENT.
As mentioned previously, after the member is confined,
the CO must determine, within 72 hours, that continued
confinement is warranted. The command should be