Chapter 4.
Arrest and Confinement

18. ARREST OR CONFINEMENT BEFORE TRIAL.

    1. In general. The law with respect to arrest and confinement pending trial is set out in AW 69, paragraphs 18 through 23, MCM, and AR 600-355, 17 July 1942. An outline of the procedural steps to be taken on arrest or confinement is contained in section XVI, TM 12-255.

    2. Necessity and purpose of restraint. If an offense has been committed for which trial by court-martial is required, the question of imposing some form of restraint on the accused pending trial must be considered. The purpose of such restraint is to insure the presence of the accused at the trial and to prevent him from committing other offenses in the meantime. AW 69 provides that when "charged with crime or with a serious offense" the accused "shall be placed in confinement or arrest as circumstances may require" but "shall not ordinarily be placed in confinement" when charged with a minor offense. It is not mandatory that the accused be restrained at all pending trial (par. 19, MCM). The necessity for any restraint must be determined in the light of the offense charged and the character of the offender. If some restraint is deemed necessary, only the minimum required under the circumstances should be imposed (par. 19, MCM).

    3. Types of restraint. (1) A person in arrest is restrained with certain limits, not by physical force, but by his moral and legal obligation to obey the order or arrest (par. 139a, MCM). When placed in arrest he is required to remain within his barracks, quarters, or tent unless larger bounds, such as the company area, are specified (AW 69).

       (2) By confinement the accused is physically restrained (par. 139a, MCM) either by being imprisoned in a guardhouse or being put under the control of a guard.

    4. Degree of restraint to be imposed. No greater degree of restraint should be imposed than is required by the circumstances of the particular case. Unless physical restraint is necessary, an accused should not be placed in confinement pending trial. Confinement results in loss of manpower. Not only is the person confined unavailable for duty during his confinement, but the more soldiers there are in the guardhouse, the greater the number of guards who must be taken from other duties to control

them. For minor offenses restraint in any form may be unnecessary. For example, there is usually no need to restrain a soldier who voluntarily returns after a few days' absence without leave. The fact that he has returned on his own accord is a good indication of his intention to stay with his organization. His availability for trial a few days later can safely be assumed. Arrest or restriction would in any event be futile if he should decide to run off again. On the other hand, a soldier who breaks restriction and remains absent without leave until apprehended, probably requires confinement since his past conduct indicates that only physical restraint will hold him with his organization. Even a person who commits a serious military offense, such as a sentinel who sleeps on post, is not necessarily to be confined unless there is some basis for believing that otherwise he will flee before trial. The question to be decided in each case is: what restraint, if any, is necessary to insure the presenve of the accused at the trial and to prevent his doing harm to persons oro property in the meantime.
19. WHO MAY ARREST AND CONFINE.

    1. Enlisted men. Any commissioned officer has the power to order an enlisted man into arrest or confinement (par. 20, MCM). A warrant officer does not have the authority of a commissioned officer to arrest or confine enlisted men, except when he is assigned and serving as commander of a station or unit.

       The commanding officer of any company or detachment may delegate to his noncommissioned officers the power to arrest or confine enlisted men belonging to his own company or detachment, or enlisted men of other organizations temporarily in the company's jurisdiction, if such restraint is necessary (par. 20. MCM). Thus, for example, the first sergeant of a company, or any other noncommissioned officer, may be authorized by the company commander to arrest or confine any enlisted man requiring such restraint who commits offenses in the company area.

    2. Officers and warrant officers. A commissioned officer or warrant officer may be placed in arrest or confinement only by order of a "commanding officer" (par. 20, MCM). The term "commanding officer" means the officer commanding a complete or separate organization or command, such as a post or regiment, or any lower unit which is "detached." In other words, a "commanding officer" is an officer who, under AW 10, has power to appoint a summary court-martial. (See par. 52a, infra.) For example, a captain commanding a company would have no power to place in arrest a lieutenant in the company if the company was serving with and as part of a regiment. If, however, the company were "detached," that is, acting alone and not subject to the immediate disciplinary control of a superior of the same branch of the service (par. 5b, MCM), such power would exist. Of course, any authority superior to a "commanding officer" has similar power to arrest or confine. Thus, a post commander may arrest, and so may the commanding general of the service command in

which the post is located; a regimental commander may arrest, and so may his superiors, e.g., the division, corps, and Army commanders. A commanding officer may not delegate to others his power to arrest and confine officers (par. 20, MCM). The order placing a commissioned officer or warrant officer in arrest or confinement must be the order of the commanding officer himself. That does not mean that he personally must communicate his order to the person arrested. Like any order of a commander, it may be issued through other officers or be communicated to the person arrested either in writing or orally (par. 20, MCM).
20. PROCEDURE FOR ARRESTING OR CONFINING.

    1. Preliminary inquiry into offense. No person should be placed in arrest or confinement unless the authority so ordering either has personal knowledge of the offense or has made inquiry into it (par. 19, MCM). The purpose of this requirement is to prevent a person being deprived of his liberty on mere suspicion. A full and exhaustive investigation is, of course, not required. But such investigation should be sufficient to furnish reasonable grounds for believing that an offense has been committed by the person to be restrained.

    2. Procedural steps to arrest. An arrest is imposed by notifying the person to be arrested that he is under arrest and informing him of the limits of his arrest. The order of arrest may be oral or in writing. No particular formality is required. It is desirable to explain to him the meaning of arrest and the penalty which may be imposed if he breaks his arrest.

    3. Procedural steps to place person in confinement. A person to be confined is placed under guard and taken to the guardhouse or other place of confinement. The authority ordering confinement will deliver to the commander of the guard or prison officer a written statement of the name, grade, and organization of the prisoner and the Articles of War which he has violated. (See par. 6a, AR 600-355, 17 July 1942.) Unless such a written statement is delivered with the prisoner, the commander of the guard may refuse to receive the prisoner (AW 71).

    4. Statements and reports required. When a person is placed in arrest or confinement, reports must be made of that fact so that proper authorities will ge sufficiently informed to take proper action.

       (1) The immediate commanding officer of the person restrained (i.e., his company or unit commander) must at once be notified (par. 6c and d, AR 600-355, 17 July 1942), so that he may take disciplinary action, if necessary, and make proper entries in the morning report. If the arrest or confinement was ordered by a person other than an officer, that person must at once report the fact to this own unity commander who will without delay notify the unit commander of the person restrained. Thus, a noncommissioned officer who has placed a soldier from some other organization in arrest or confinement would at once inform his own company commander,

who would without delay notify that soldier's unit commander. If arrest or confinement was ordered by an officer, he will himself notify directly the unit commander of the person restrained. Thus, a lieutenant who placed a soldier in confinement would himself report such confinement to the soldier's unit commander.

If an officer is placed in arrest or confinement without, at the same time,charges being preferred against him, a written report must be made to the officer having general court-martial jurisdiction. (See par. 6b, AR 600-355, 17 July 1942.) Thus, a regimental commander who placed one of his officers in arrest without preferring charges would be required to make a written report to the commanding general of the division; a post commander would make such report to the commanding general of the service command.

(3) If a person is placed in confinement, the commander of the guard (i.e., the officer of the day or other officer in direct control of the guardhouse) within 24 hours after such confinement, or as soon as he is relieved from his guard, must report to the commanding officer the name of the prisoner, the offense charged against him,and the name of the officer who ordered the confinement (AW 72; par 14a, AR 600-375, 17 May 1943). Thus, if a company commander caused an accused to be confined in the post guardhouse, the prisoner officer (or the officer of the day) would be obliged to make the report to the post commander within 24 hours after confinement. The post commander must then see that proper steps are taken to have the prisoner promptly tried or released. (See AW 70.)

21. STATUS OF PERSON IN ARREST OR CONFINEMENT.

    1. Status of arrest. A person in arrest is restricted to his barracks, quarters, or tent or such larger limits as may have been specified in the order of arrest (AW 69). a change of status from duty to arrest having occurred, an entry to that effect will be made in the morning report. (See par. 20, AR 345-400, 3 January 1945.) He cannot, if he is to remain in that status, be required to perform his full military duty, since placing him on duty terminates his arrest. This, however, does not prevent his being required to do ordinary cleaning or policing up about his quarters. He is furthermore subject to the restrictions provided in paragraph 7, AR 600-355, 17 July 1942, such as inability to bear arms or to exercise command of any kind. If he breaks his arrest by going beyond the prescribed limits, he is subject to trial (AW 69) and, if he is a commissioned officer, may suffer the penalty of dismissal for such offense.

    2. Status of confinement prior to trial. A person who is confined pending trial is a "garrison prisoner" and subject to the provisions of AR 600-375, 17 May 1943, with respect to treatment, discipline, and employment. If he is a private or private first class, he will perform such hard labor and military duties as are prescribed in paragraph 20b, AR 600-375, 17 May 1943. If he is of higher rank, he will not be required to perform

military duties or hard labor while detained, except necessary policing of quarters and employment in the mess appropriate to his grade. (See par. 20(d)(2), AR 600-375, 17 May 1943.)
22. DURATION AND TERMINATION OF ARREST AND CONFINEMENT. When a person is placed in arrest or confinement, immediate steps must be taken either to bring him to trial or to release him (AW 70; par. 26, MCM). The law, however, does not prescribe any definite time limit within which he must be released if charges are not preferred. Normally charges can and should be preferred promptly, within at least 48 hours after the accused is restrained. The accused is not automatically released from restraint, however, because of delay in preferring the charges. He must remain in arrest or confinement until released by proper authority. The proper authority to release the accused from arrest is normally the officer who imposed the arrest. Thus, a commissioned officer or warrant officer would be released from arrest by order of the commanding officer who had arrested him. An enlisted man will usually be released from arrest by his own unit commander. The proper authority to order release from confinement is the commanding officer to whose command the guardhouse or prison is subject. Thus, a prisoner confined in a post guardhouse would be ordered released by the post commander; a prisoner in a regimental guardhouse by the regimental commander. Once the prisoner is turned over to the guard, he passes beyond the control of the officer who initially ordered him confined--unless such officer is the "commanding officer" described above--and such officer is not a proper authority to order his release (par. 140a, MCM). The release of a prisoner without proper authority is a punishable offense (AW 73).

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