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prepared to send a knowledgeable representative to the
hearing held by the initial review officer (IRO). This
representative should be cognizant of (1) the
circumstances regarding the charges; (2) the accused’s
past history for reliability; and (3) unauthorized
absences. After the hearing by the IRO, the command
will receive a memo either allowing the confinement to
continue or ordering the accused’s release.
If the
member is ordered released, the command must comply.
A lesser form of restraint may be imposed, but
reconfinement may not occur without further
misconduct or new evidence that would impact on the
accused’s reliability. If pretrial confinement is to extend
to 30 days, permission for continued confinement must
be obtained from the cognizant GCM authority. Make
sure permission is received before the expiration of the
30th day, and the request must be reviewed every 30
days after that.
LETTER TO INITIAL REVIEW OFFICER.—
The OEGCMJ at the location of the confinement facility
designates one or more officers of the grade of O-4 or
higher to act as the IRO for purposes of pretrial
confinement.
The IRO maintains a copy of the
documents considered and the memorandum prepared
under R.C.M. 305(i)(6) in each case until completion of
appellate review. The IRO then sends a copy of the
documents considered and the memorandum prepared
to the OEGCMJ from whom he or she derived the
authority as IRO.
The officers designated as IROs
should be neutral and detached, should be selected for
their maturity and experience, and, if practical, should
have had command experience. A sample letter from a
CO to an initial pretrial review officer is shown in figure
6-22.
MATTERS CONSIDERED.— The review by the
IRO is a review of the memorandum submitted by the
accused’s commander. Additional written matters may
be considered, included any submitted by the accused,
The accused and his or her counsel, if any, can appear
before the IRO and make a statement, if possible. A
representative of the command may appear before the
IRO to make a statement. In most cases, this
representative will be you or one of your subordinates.
The IRO may, for good cause, extend the time limit
for completion of the initial review to 10 days after
pretrial confinement is imposed.
The requirements for confinement discussed
previously need not be proven beyond a reasonable
doubt, but by a preponderance of the evidence.
ACTION OF THE IRO.— When the IRO
completes the review, he or she approves continued
confinement or orders immediate release. The IRO
writes a memorandum that contains conclusions and
supporting factual findings. A copy of the memorandum
and all documents considered in each case are kept until
completion of appellate review. Copies are given to the
accused or the government on request. Your office must
receive and keep copies for future reference and as part
of the accused’s court-martial file.
The IRO will, after notice to the parties, reconsider
the decision to confine the accused upon a request based
upon significant information not previously considered.
If the decision of the IRO is for immediate release,
he or she will so notify the accused’s CO. The CO then
directs the appropriate corrections officer to release the
accused immediately, with a copy of the release order
forwarded to the OEGCMJ.
The decision of the IRO to release the accused is
final and binding upon the CO, corrections officer, and
OEGCMJ. No administrative appeal of the IRO’s
decision is authorized or permissible.
The command may not re-confine unless:
discovery of a new offense that may authorize
pretrial confinement; or
discovery of any other evidence establishing that
the accused will flee to avoid trial; or
discovery of any other evidence establishing both
a lawful basis and a need for pretrial
confinement.
Once charges for which the accused has been
confined are referred to trial, the military judge reviews
the propriety of pretrial confinement. The IRO is
divested of authority to order the accused’s release or
continued pretrial confinement when the charges are
referred to a court-martial.
EVIDENCE
Another very important duty before the trial is the
preservation of evidence. Evidence must be maintained
until retrieved for trial. Every NLSO has to deal with
evidence used in cases tried by court-martial. The
proper identifying, safeguarding, and maintaining of
this evidence is a critical task that must be performed
efficiently and accurately. Sometime in your LN career,
you will hear of tales of evidence that were
inappropriately safeguarded. To avoid this, you will
learn in this section the importance of proper procedures
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