Pretrial confinement is physical restraint, imposed by order of competent authority, depriving a person of freedom pending disposition of charges.
Although the military justice system does not provide for bail, the service member is entitled to the same Fourth Amendment probable cause safeguard as a civilian confined prior to trial. In an important contrast to the civilian system, an accused servicemember continues to draw full pay and allowances while in pretrial confinement.
The commanding officer and the independent review officer weigh the need for pretrial confinement against other available forms of restraint.
The military justice system recognizes three other forms of restraint: conditions on liberty, restriction in lieu of arrest, and arrest.
- Conditions on liberty are imposed by orders directing a person to do or refrain from doing specified acts.
- Restriction in lieu of arrest is an order directing the person to remain within specified limits, such as a ship, barracks or installation, however it does allow a service member to perform their assigned duties during the normal workday.
- Arrest differs from restriction by suspending the performance of duties that involve supervision of subordinates, serving as a guard, or bearing arms.
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