UCMJ ARTICLES

As a preface to this section, applicable Articles 7 through 14 of the UCMJ are quoted verbatim and are followed in some cases by clarifying explanations that point out legal considerations not always obvious in the quoted article.

Within the quoted material of this section, you will see a reference to persons "subject to this chapter." "Chapter" refers to the chapter of the MCM that contains the articles of the UCMJ under discussion, not to this chapter of the training manual.

Articles 7 through 14 directly concern MAs because they are the basis of "the law" as it relates to taking persons into custody, methods of restraint, and authority to order persons into arrest or confinement.

Article 7-Apprehension

(a) Apprehension is the taking of a person into custody.

(b) Any person authorized under regulations governing the armed forces to apprehend persons subject to this chapter or to trial thereunder may do so upon reasonable belief that an offense has been committed and that the person apprehended committed it.

(c) Commissioned officers, warrant officers, petty officers, and noncommissioned officers shall have authority to quell quarrels, frays, and disorders among persons subject to this chapter, and to apprehend persons subject to this chapter who take part therein.

Section (a) defines apprehension as taking a person into custody. As you will see later, a person is placed under arrest only on the order of an officer. As a practical matter, the fact that you say, "I'm placing you under arrest" instead of "I'm apprehending you" makes no legal difference. The important point is that the offender must be informed clearly that he or she is being taken into custody. The offender won't know unless told. The MCM defines custody in part as "restraint of free locomotion, which is imposed by

lawful apprehension." To make the custody clear, you should normally use some indication of physical restraint, such as taking the offender by the arm. This procedure is not always wise, of course, especially if the offender is argumentative or drunk. Use good judgment when using physical restraint. Remember that the purpose of taking a person into custody is only to restrain the violator until proper authority can be notified.

The MCM clarifies the words in section (b) "authorized under regulations governing the armed forces . . . " to include all petty officers. The important point here is the "reasonable belief." The initial action of apprehending a person is legally sufficient if a reasonable belief exists that the person has committed an offense. Legal proof is seldom available at this stage unless you actually see the violation take place.

Although section (b) uses the words "reasonable belief to justify apprehension, section (c) has no restriction whatever. By virtue of your rating badge, you have the authority to take into custody persons involved not only in a fight, but in a quarrel (angry dispute) as well. The idea, of course, is to stop the quarrel before it develops into a brawl. But sometimes the only way to stop it is to take the individuals into custody, and Article 7 gives you this authority.

Article 7 includes taking custody of any U.S. service member, Navy or otherwise.

Article 8-Apprehension of Deserters

Any civil officer having authority to apprehend offenders under the laws of the United States or of a State, Territory, Commonwealth, or possession, or the District of Columbia may summarily apprehend a deserter from the armed forces and deliver him into the custody of these forces.

Generally speaking, a civilian has no authority to apprehend a suspected deserter. Usually the civilian notifies a civil or military authority about suspicions of desertion. However, once the military sends out a formal declaration that a person is a deserter and offers a reward for picking the deserter up, a private citizen has sufficient authority to apprehend. Even if a civilian apprehends and delivers a deserter without authority, that deserter will be held for trial. A deserter may be apprehended by anyone-the FBI, military police, civil police, and private citizens.

Article 9-Imposition of Restraint

(a) Arrest is the restraint of a person by an order, not imposed as a punishment for an offense, directing him to remain within certain specified limits. Confinement is the physical restraint of a person.

(b) An enlisted member may be ordered into arrest or confinement by any commissioned officer by an order, oral or written, delivered in person or through other persons subject to this chapter. A commanding officer may authorize warrant officers, petty officers, or noncommissioned officers to order enlisted members of his command or subject to his authority into arrest or confinement.

(c) A commissioned officer, a warrant officer, or a civilian subject to this chapter or to trial thereunder may be ordered into arrest or confinement only by a commanding officer to whose authority he is subject, by an order, oral or written, delivered in person or by another commissioned officer. The authority to order such persons into arrest or confinement may not be delegated.

(d) No person may be ordered into arrest or confinement except for probable cause.

(e) Nothing in this article limits the authority of persons authorized to apprehend offenders to secure the custody of an alleged offender until proper authority may be notified.

Congress has given the terms apprehension,

arrest, and confinement distinct meanings. Apprehension, as you learned from Article 7, is the initial act of taking a person into custody. Once a person is taken into custody, that person may be held under restraint for safekeeping while the charges are disposed of, There are three forms of such restraint. The most severe is confinement-the physical restraint of a person. Next comes arrest, which is the restraint of a person by an order directing him or her to remain within certain specified limits. The least severe form of restraint for safekeeping is restriction in lieu of arrest, which is also imposed by an order directing the person to remain within certain specified limits. The difference between arrest and restriction in lieu of arrest is that a restricted person performs all regular duties, whereas a person under arrest does not perform

full military duties. For this reason, personnel who commit relatively minor offenses are normally put under restriction in lieu of arrest.

Confinement, arrest, and restriction in lieu of arrest, when imposed under Article 9, are not forms of punishment. Arrest and restriction in lieu of arrest are similar in one respect: the party is required to stay within specified limits. It is a person's conscience and the force of law, rather than a strong arm or a barred door, that induce an individual to remain within those limits. A person obeys because of a moral and legal obligation to do so.

Confinement before trial is usually not imposed. However, it is imposed if needed to ensure the presence of the accused at the trial, if the offense charged is extremely serious, or if the safety of the public or the accused is in jeopardy.

Article 10-Restraint of Persons Charged With Offenses

Any person subject to this chapter charged with an offense under this chapter shall be ordered into arrest or confinement, as circumstances may require; but when charged only with an offense normally tried by a summary court-martial, he shall not ordinarily be placed in confinement. When any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.

This article, requiring "immediate steps" to try the accused, is strengthened by Article 98, which makes punishable by court-martial any unnecessary delay in the disposition of a case. However, undue haste also is frowned upon. In time of peace no person may, against his or her objection, be brought to trial before a general court-martial within 5 days after being served charges or before a special court-martial within 3 days after being served charges (Article 35).

The MCM amplifies this article by permitting an authorized arresting officer merely to restrict an accused person to specified areas of the military command (restriction in lieu of arrest). (See discussion under Article 9.)

Article 11-Reports and Receiving of Prisoners

(a) No provost marshal, commander of a guard, or master-at-arms may 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 statement, signed by him, of the offense charged against the prisoner.

(b) Every commander of a guard or master-at-arms to whose charge a prisoner is committed shall, within twenty-four hours after that commitment or as soon as he is relieved from guard, report to the commanding officer the name of the prisoner, the offense charged against him, and the name of the person who ordered or authorized the commitment.

An arrest is imposed by notifying the person to be arrested that he or she is under arrest and informing that person of the limits of the arrest. The order to arrest may be oral or written. A person to be confined is placed under guard and taken to the place of confinement.

Article 12-Confinement With Enemy Prisoners Prohibited

No member of the armed forces maybe placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces.

However, members of the Armed Forces may be confined in the same jails, prisons, or other confinement facilities with the categories mentioned above if they are separated from them.

Article 13-Punishment Prohibited Before Trial

Subject to section 857 of this title (Article 57), no person, while being held for trial or as the result of trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances required to ensure his presence, but he may be subjected to minor punishment during that period for infractions of discipline.

The minor punishment permitted under Article 13 includes that authorized for violations of discipline required by the place of confinement. The article does not prevent a person from being required to do ordinary cleaning or policing or from taking part in routine training and duties not involving the bearing of arms.

Article 14-Delivery of Offenders to Civil Authorities

(a) Under such regulations as the Secretary concerned may prescribe, a member of the armed forces accused of an offense against civil authority may be delivered, upon request, to the civil authority for trial.

(b) When delivery under this article is made to any civil authority of a person undergoing sentence of a court-martial, the delivery, if followed by conviction in a civil tribunal, interrupts the execution of the sentence of the court-martial, and the offender after having answered to the civil authorities for his offense shall, upon the request of competent military authority, be returned to military custody for the completion of his sentence.