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MILITARY JUSTICE:

APPREHENSION AND RESTRAINT

APPREHENSION

Apprehension is the taking of a person into custody by an authorized personnel who reasonably
believes that an offense has been committed and the one being apprehended is the one who is
accused of committing that offense.

*Apprehension is comparable to civilian arrest.

Officers may be apprehended:

1) Following an order made by another officer


2) Prevent dishonor
3) Prevent escape after commission of a serious offense

The one’s who have authority to quell arguments, restrain those who are tempered, or stop
disorders are:

1) Commissioned officers – a member of the military holding the rank of second lieutenant
or ensign or above
2) Warrant officers – Holds rank by virtue of a warrant; ranked above the senior-most
enlisted ranks as well as cadets and candidates
3) Petty officers – a noncommissioned officer with a rank comparable to sergeant in the
Army
4) Noncommissioned officers – a military officer appointed from enlisted personnel

APPREHENSION OF DESERTERS

Apprehension of Deserters means that any civil officer (someone from the State – not the
military) having the authority to take a person into custody may also apprehend a deserter from
the National Guard or active militia and deliver him into the custody of the National Guard or
active militia under the laws of:

1) The United States or of a State


2) Territory
3) Commonwealth
4) Possession
5) District of Columbia

IMPOSITION OF RESTRAINT
Arrest is the restraint of a person by an order directing him to remain with certain specified
limits. Arrest is not meant to be enforced as a punishment for the offense alleged.

Confinement is the PHYSICAL restraint of a person

An enlisted member may be ordered into arrest or confinement by ANY commissioned officer
by means of:

1) An order, which
2) May be oral or written, and
3) Delivered in person

The following have authority to impose restraint:

1) Commissioned officer
2) Commanding officer
3) Commanding officer may delegate duty to: Warrant officer and Petty officer
4) Noncommissioned officer

You cannot order a person into arrest or confinement unless there is PROBABLE CAUSE.

RESTRAINT OF PERSONS CHARGED WITH OFFENSES

If a person is apprehended and charged ONLY with an offense normally tried by a summary
court-martial, he shall not be placed in confinement.

When any person subject to restraint or a charge is placed in confinement PRIOR TO TRIAL,
immediate steps must be taken to inform the apprehended of the specific wrong he or she is
accused, try him or her and dismiss the charges.

REPORTS AND RECEIVING OF PRISONERS

Provost marshal – The officer who is in charge of the military police and the execution of
punishments.

The senior military police officer is the Provost Marshal General, or PMG.

- Provost is a prison keeper

A Provost marshall CANNOT REFUSE to receive or keep any prisoner committed to his charge
by a commissioned officer of the armed forces, when the committing officer furnishes a 1)
statement, 2) signed by him, 3) of the offense charged against him. Neither can a:

1) Commander
2) Guard
3) Master at Arms
Anyone other than the person’s commander orders pre-trial confinement, the commander must
be notified within 24 hours of:

1) The name of the prisoner


2) The offense charged against him
3) The name of the person who ordered or authorized the commitment

Commander must decide within 72 hours whether to continue the confinement, prefer chargers
and/or release the person. The commander must submit a written report for the confinement to
continue.

If the commander continues confinement by the seventh (7) day, a review officer investigates
and determines if continued confinement is required. 10 days is the maximum limit.

If confinement is continued, only the convening authority or Judge may release the person

CONFINEMENT WITH ENEMY PRISONERS PROHIBITED

Simply said, a member of the armed forces such as the NAVY, ARMY or NATIONAL GUARD
cannot be placed adjacent to an enemy for obvious reasons. The member cannot be placed with
foreign nationals either.

To clear up any discrepancies: a member CAN be placed in the same jail or prison; yet NOT in
the same cell

PUNISHMENT PROHIBITED BEFORE TRIAL

NO PERSON can be the subject of punishment or penalty other than simply ARREST or
CONFINEMENT pre-trial

Commonly, this is just known as “pretrial restraint” which is may be imposed on anyone and
must be based on probable cause.

Pretrial restraint is the MORAL or PHYSICAL restraint on a persons’ liberty before and
during disposition of offenses.

NOTE: IF A MEMBER IS PLACED IN PRE-TRIAL CONFINEMENT, ARREST, OR


RESTRICTION IN LIEU, the case MUST go to Court within 120 days.

Requirements of Pre-Trial Restraint:


1) Conditions of Liberty – An injunction is placed which are orders directing a person to do
or refrain from doing specific acts
2) Restriction in lieu of Arrest - Restraints may be imposed by a verbal or written order
directing the person to remain within specified limits
a. A less severe restraint than arrest
b. Unless otherwise specified, the restrained person performs full military duties
3) Arrest is made - the taking away of right to bear arms
a. Moral Restraint
b. Person may not be required to execute military duties
4) Pre-Trial Confinement – only minor punishments allowed
a. Physical Restraint
b. Imposed by order of competent authority
c. Derives a person of freedom pending disposition of offenses

Pre-Trial Confinement may be ordered when:

1) An offense triable by the court-martial HAS been committed


2) The person to be confined committed the offense
3) Confinement is required by circumstances

The arrest or confinement imposed upon the charged officer cannot be any more rigorous than
the circumstances required to insure his presence.

Minor punishments are permitted. Punishments may include cleaning a facility, taking out the
trash or any ordinary cleaning. Minor punishments can be mostly anything as long as it does not
involve the bearing of arms.

DELIVERY OF OFFENDERS TO CIVIL AUTHORITIES

A member of the armed forces accused of an offense against CIVIL AUTHORITY (any member
of the STATE that enforce law and order) may be delivered, upon request, to the civil authority
for trial.

A person of military authority CAN BE TRIED BY REQUEST by a person of civil authority.

The State MUST request permission!

When delivery of the offender is made to any civil authority of a person undergoing sentencing,
the delivery (if followed by a conviction), interrupts the execution of the sentence of the court-
martial.

The offender (after having answered to the civil authorities for this offense) MUST upon request
of competent military authority, be returned to military custody for the completion of his
sentence.