A clear distinction exists between the authority to
apprehend and the authority to arrest or confine
(article 9). Any person empowered to apprehend an
offender, however, is authorized to secure the custody of
an alleged offender until proper authority may be
notified.
Art. 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 those forces.
When a military service sends out a description of a
deserter, with a request for the deserter’s apprehension,
the notice gives civil officers the authority to apprehend
the person.
Art. 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 code. 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 code 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.
Art. 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.
As the words normally and ordinarily imply, the
provisions of this article may not apply in exceptional
cases. Whether to confine, arrest, or restrict a person in
lieu of arrest is with the discretion of the officer having
the power to do so. What this article says, in effect, is
that in most instances confinement is not necessary for
persons accused of minor offenses.
Art. 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 the 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.
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