How Long Can Someone Sit in Confinement w/o Court Marshal?

[itchin]

How Long Can Someone Sit in Confinement w/o Court Martial?

I know there are quite a few Air Force guys in here, who may be able to answer my question. My best bud, in the whole world, has been in confinement since Sept 2011, in Guam. I have no idea why, and cannot find seem to find any info. I have no idea if he has been court martialed or not, and am not sure if this is public info. He does write me letters, but never explains why he is in confinement. I have asked him, but he just says they read his mail. Is there a right to speedy trial like in a civilian court? For all I know he could have been sentenced for something, but like I said I cannot seem to find any info anywhere. Any info would be appreciated. Thanks in advance.

I have known him since he was 5 years old, and is like a little brother to me. All he has ever wanted to do, since he was a little kid, was serve his country. He is the last person, I would ever imagine, getting into trouble, or breaking the law.

 

[RetArmySgt]

Depends on the charge and where it occurred. There is a Major in jail in Korea that has been there for close to 40 years for assault on a woman that occurred off post. There was no Court Marshall because it happened outside of the US jurisdiction and assault on a person let alone a woman in Korea is one of the worse crimes you can commit in their legal system.

 

[itchin]

Wow, 40 years! I wonder if he was convicted by a Korean court?

 

[bagged02]

Dude I am so sorry to hear this. Not sure if its the same a being on restriction as I have been on before or if its different in air force. Sorry man, I dont know but I am truly sorry for this.

 

[majormadmax]

Military personnel fall under the Uniformed Code of Military Justice (UCMJ), which differs significantly from civilian law (you won't be arrested for not going to your civilian job, for example).

I cannot guess why he is "in confinement," but given the fact that he is being held in Guam that leads me to believe he received some sort of sentencing of less than a year for some violation of the UCMJ. Given the seriousness of the offense, he can be held in confinement for up to one year for what is termed "non-judicial punishment" (See UCMJ Section 815. ART. 15. COMMANDING OFFICER'S NON-JUDICIAL PUNISHMENT (b): Any commanding officer may, in addition to or in lieu of admonition or reprimand, (may) impose one or more of the following disciplinary punishments for minor offenses without the intervention of a court-martial).

An Article 15, as it is commonly known, has to be accepted by the military member it is being imposed upon; otherwise they can request a trial by court martial. Given that, your friend would have had to agree to the sentencing imposed based on the offense he committed (whatever it may have been).

So, unfortunately I think there is a reason why your friend doesn't want to confess his discretions to you; he has done something that landed him in his current predicament. He is the only one that can explain what happened and why, but the fact that he is being held is in accordance with military law and completely legal.

Hope that helps, and sorry to hear about his situation but having dealt with this a lot in the past (I was a commander at one point during my career), I can tell you that the military legal system is actually more fair than the civilian one; so if he was found responsible for his actions, there was clear evidence to that fact!

Cheers! M2

 

[itchin]

Military personnel fall under the Uniformed Code of Military Justice (UCMJ), which differs significantly from civilian law (you won't be arrested for not going to your civilian job, for example).

I cannot guess why he is "in confinement," but given the fact that he is being held in Guam that leads me to believe he received some sort of sentencing of less than a year for some violation of the UCMJ. Given the seriousness of the offense, he can be held in confinement for up to one year for what is termed "non-judicial punishment" (See UCMJ Section 815. ART. 15. COMMANDING OFFICER'S NON-JUDICIAL PUNISHMENT (b): Any commanding officer may, in addition to or in lieu of admonition or reprimand, (may) impose one or more of the following disciplinary punishments for minor offenses without the intervention of a court-martial).

An Article 15, as it is commonly known, has to be accepted by the military member it is being imposed upon; otherwise they can request a trial by court martial. Given that, your friend would have had to agree to the sentencing imposed based on the offense he committed (whatever it may have been).

So, unfortunately I think there is a reason why your friend doesn't want to confess his discretions to you; he has done something that landed him in his current predicament. He is the only one that can explain what happened and why, but the fact that he is being held is in accordance with military law and completely legal.

Hope that helps, and sorry to hear about his situation but having dealt with this a lot in the past (I was a commander at one point during my career), I can tell you that the military legal system is actually more fair than the civilian one; so if he was found responsible for his actions, there was clear evidence to that fact!

Cheers! M2

Very helpful. I appreciate Your input. I was hoping You would chime in on this thread.

So basically, if he received a sentence for more than a year they would have sent him off Guam to a prison somewhere else?

 

[majormadmax]

Depends on the charge and where it occurred. There is a Major in jail in Korea that has been there for close to 40 years for assault on a woman that occurred off post. There was no Court Marshall because it happened outside of the US jurisdiction and assault on a person let alone a woman in Korea is one of the worse crimes you can commit in their legal system.

Sorry, either post proof of this story, or I'm calling bullshit! If this alleged individual was convicted in a Korean court, he would be in a Korean jail. The Status of Forces Agreement would have been applied, he would not have been kept in US detention.

And if he was convicted in a Korean court and is in Korean jail, that is what happens when you commit a crime in a foreign country. But 40 years for an assault in Korea doesn't compute either, assaults are not uncommon in that country (pushing and shoving usually follow shouting matches when there is any kind of serious disagreement or altercation).

I have to complete US Forces Korea training every year as my job can take me there, and while their laws are different than ours I am still very skeptical of this claim and want to see proof of it!

 

[majormadmax]

Very helpful. I appreciate Your input. I was hoping You would chime in on this thread.

So basically, if he received a sentence for more than a year they would have sent him off Guam to a prison somewhere else?

It's been a while since I've dealt with this, but if I recall correctly anything a year or less can be completed in a "correctional custody" facility on a base; whereas anything over a year requires confinement at such locations as Leavenworth or Quantico...

 

[itchin]

Thanks alot.

 

[Clockwork]

Bradley Manning (read: douchebag traitor) hasn't had their trial yet. Pretty sure his arrest was in 2010. Nidal Hassan (read: douchebag traitor) hasn't had their trial yet.

The UCMJ process can be quite lengthy...

 

[majormadmax]

True, due process is defined/interpreted differently under the UCMJ versus a civilian court; but you also have to remember that an Article 32 hearing (basically the military's version of a grand jury) has to take place before formal charges can be filed. Plus, such confinement requires that an offense triable by court-martial has been committed (which is not the case here, as I believe it is NJP) and that the restraint ordered is required by the circumstances (grevious accusations such as treason or murder).

Once the person is put into pretrial confinement there are some due process rights and a procedure that must be followed. The rules can be found in UCMJ, Articles 9 and 10, and Rules for Courts-Martial 304 (other than confinement) and 305 (pretrial confinement), as well as some implementing regulations.

Plusefore any servicemember is confined or restricted, there must be a reasonable belief (similar to probable cause) that the servicemember committed an offense triable at court-martial and that confinement or restriction is necessary under the circumstances. Further, there must be a finding that lesser forms of restraint would be inadequate

Also, unlike the civilian courts there is no "bail" system in the military.

The military justice system requires a review of the confinement decision within 48 hours. Within 72 hours, the military member is entitled to have his commanding officer review whether his continued confinement is appropriate. (However, if someone other than the commanding officer confined the member and the commanding officer review was actually conducted within 48 hours, then this commanding officer review can serve to satisfy both review requirements.) A military magistrate who is independent of the command must conduct another review within 7 days.

A military member may request the military judge assigned to the case review the appropriateness of the pretrial confinement. But in the military justice system there is no military judge until charges have been referred, an event that could be months away. So there are times when it may be appropriate to consider an extraordinary writ to the court of criminal appeals to seek release from unlawful pretrial confinement and/or punishment. There are also times when it may be appropriate or best for the client to remain in pretrial confinement (see below for confinement credit and other effects).

Admittedly, most of the above was stolen from herehttp://court-martial.com/ucmj-pretrial-restraint/; as when I was on what is known as G-series orders (which gave me my legal authority to command), I had judge advocate (legal) support for all the UCMJ cases that came before me. That site provides a good rundown and more on the process, and I also had a book the USAF provided called 'The Military Commander and the Law' which can be found online for anyone who wants to research this further.

Cheers! M2

 

[just jk]

first.......it's "courts-MARTIAL" - not Marshall

pre-trial confinement........the short of it is that the government (i.e. prosecution) has to show that the person being detained/confined is a) a flight risk; or b) a risk to harm himself and/or others.......and of course he/she has to be pending some type of charges

military pre-trial confinement is typically VERY tough to get the Mil Judge to agree too - they're typically very liberal and pro-defendant

so if somebody is in an extended pre-trial confinement - it's a very bad thing


one year punishment for non-judicial punishment? sure - its in the book

but in reality? never....a one year sentence is almost always the result of a courts-MARTIAL conviction - typically a BCD Special.....normally anything more than a year and you're going to Leavenworth or one of the other military prisons in CONUS

 

[BMiracleTX]

I agree with everything above. I have been in the USAF for 19 years now... sounds like your buddy did something criminally and is being held in pre-trial confinement while they are gathering everything for the court martial. If it would have been something minor, then they would just Article 15 and discharge.

 

[just jk]

an article 15 is not typically a discharge authority

there are ways to couple the two together but you can't be discharged from an Art 15 or NJP.... my memory is foggy on courts-martial levels, but i believe a Summary CM is the lowest level - and even that does not have discharge authority

what typically happens is a preferral of charges - and then a chapter discharge in lieu of a courts-martial......what actually happens on paper rarely matches what people perceive to have happened

 

[bagged02]

I dont even think its something simple like Failed drug test or DWI. I know simple stuff is pretty much cut and dry. At least back in 99 it was.

 

[just jk]

yeah you wouldnt find somebody serving a one year sentence, or in pre-trial confinement over a DWI or failed piss test

it has to be a felony - the only offenses in the UCMJ that carry a sentence of at least a year - are felonies

 

[bagged02]

And unless they changed it they now give 2 failed drug test not one before they kick you out. Not saying thats it, just going off what "good" "normal" people can mistakenly get into easily. They changed it to 2 drug test failed(Navy at least) Jan 01, 2000

 

[just jk]

i retired from Army CID in 2004 - so i dont know what the current policy is on failed drug tests, but i cant imagine that its more liberal with the draw down going on

there was an unwritten policy that if you were a trainee and burned hot - you were gone......but if you were a first term soldier and burned hot, you'd get an Art 15 and 30/30.......if you were an NCO - say buh bye

 

[bagged02]

your right. Probably also depended on rate/rank such. How much they needed you and how long you been in, history. Forgot, duh, nothing like civilian.

 

[itchin]

first.......it's "courts-MARTIAL" - not Marshall

Thanks. OP edited for spelling.