Are concurrent civilian and military sentences considered in pretrial confinement credit calculations?

Yes, the calculation of pretrial confinement credit in the military system can be affected by concurrent civilian confinement. The general rule is that a service member is entitled to day-for-day credit against their court-martial sentence for any time they spend in pretrial confinement, whether that confinement is in a military brig or a civilian jail, as long as it is related to the military offenses.

The situation becomes complex when the soldier is confined by civilian authorities for a purely civilian offense and is also awaiting a court-martial for a separate military offense. The key question is whether the civilian confinement was, in effect, also serving the purpose of detaining them for the military. If the military has placed a “detainer” on the soldier with the civilian jail, which prevents their release even if they make bail, then the time spent in civilian confinement is generally credited towards their military sentence.

A military defense attorney will carefully track all periods of confinement. They will argue to the military judge that any time spent in a civilian jail where a military detainer was in place should be fully credited against the court-martial sentence. This ensures that the soldier is not unfairly “double-punished” by serving “dead time” in a civilian facility that is not credited towards their ultimate military sentence. The judge will make a final determination based on the specific facts and the nature of the detainer.

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