with whom Judge BAKER joins, dissenting in part:
I concur with Senior Judge De Giulio’s dissent, but desire to make additional comments. We need not reach the issue seized upon by the majority — the lack of authority for LTC R to review within 48 hours the probable cause prong of the confinement decision. We should focus instead upon the constitutional issue — did the probable cause determination, made by the appellant’s commanding officer before confinement was imposed, meet the prompt review requirement of Gerstein and McLaughlin?
In this case the appellant, a soldier who had been dropped from the rolls of his unit as a deserter, was detained at 1700 hours on 26 June 1991 by a Pearl Harbor Navy Exchange employee based on a reasonable belief that the accused had stolen a small television, CD player, and a YHS recorder from the Exchange. He was turned over to military police who began to investigate his offenses. Under questioning, the appellant admitted that he wanted to quit the Army, and that he absented himself from his unit when they “would not let him out.”
On 27 June 1991, his company commander, a neutral and detached officer, reviewed all the circumstances of the case, determined that probable cause existed to further detain the appellant (i.e., that he could be detained), and ordered that he be confined in the local military confinement facility (i.e., that he should be detained). The confinement decision was reviewed within 48 hours by LTC R, a special court-martial convening authority not in the chain of command. The decision was further reviewed within seven days by the military magistrate. Both properly found that probable cause existed to confine and that further confinement was necessary.
This case is before the Court sitting en banc because of a conflict with a prior decision by another panel of this Court. Judge Naughton and I examined this same issue in United States v. Booth, ACMR 9102787 (A.C.M.R. 27 Jul. 1992) (unpub.). We carefully considered the same assignment of error, the same legal briefs, the same arguments, and the same citations to authority. We concluded the assigned error was totally lacking in merit and was unworthy of a written opinion, as the appellant was attempting to equate entirely different concepts under the Fourth and Fifth Amendments.
How is it, then, that the Court sitting en banc has viewed the issue differently? I fear it is because our brothers have compared apples and oranges, as it were, and exalted form over substance. There is a material difference between: (a) an initial prompt, fair, and reliable determination of probable cause by a judicial officer; and, (b) the subsequent judicial review of a commanding officer’s prior probable cause determination.
I.
We agree with the majority that in Ger-stein v. Pugh the Supreme Court held that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to an extended restraint of liberty follovring warrantless arrest. We all agree that Gerstein allowed flexibility to the various jurisdictions in implementing the review requirement. Indeed, in the majority opinion, our brothers cite that portion of the language from the Supreme Court opinion that the procedures adopted by the various jurisdictions: “must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest.” *719Gerstein, 420 U.S. at 123-25, 95 S.Ct. at 868-69.
We all agree that the “prompt” review requirement of Gerstein generally will be met if a jurisdiction provided a judicial determination of probable cause within 48 hours of a warrantless arrest. McLaughlin, 500 U.S. at-, 111 S.Ct. at 1670, 114 L.Ed.2d at 63 (1992). We are also in agreement that Gerstein and McLaughlin apply to the military.
We are in disagreement as to how the constitutional concepts apply in this case where a neutral and detached commanding officer, acting pursuant to his statutory authority under Article 9, UCMJ, made a correct determination of probable cause prior to ordering the accused into pretrial confinement.
A.
In order to resolve our different views of the appellant’s issue, we must examine the differences and similarities between civilian and military cases. In civilian society, there is no question that an individual who is arrested without a warrant by the police must be taken before a judicial official “promptly,” i.e., within 48 hours for a determination of probable cause. The military counterpart to this situation occurs when a soldier is ordered in arrest or confinement by an authorized person other than a neutral and detached commander.1 See UCMJ arts. 7 and 9. I am satisfied that a soldier in these circumstances also must be the recipient of a prompt review of the decision to restrain.
The situation in the case at bar, however, is more akin to the preliminary hearing in civilian society where a judicial official determines that probable cause exists to continue the detention of the person seized at the time of the warrantless arrest. In the civilian system, the suspected criminal is detained, turned over to the police investigators, and evidence is gathered. He then lias an appearance before a magistrate where a determination of probable cause is made before continued detention is permissible.
Military case law indicates that a commanding officer can be neutral and detached for making determinations of probable cause. See United States v. Lopez, 35 M.J. 35 (C.M.A.1992). There is no constitutional requirement that the person determining probable cause have some minimal legal or educational qualifications, or even that the issuing authority be a lawyer. Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972). The Court of Military Appeals has previously said that a commanding officer is not disqualified from being neutral and detached merely because he was aware of the accused’s prior record of conduct. United States v. Rushing, 11 M.J. 95 (C.M.A.1981).
In this case, a neutral and detached commanding officer made a probable cause determination before he authorized pretrial confinement. In our view, an additional review of the probable cause determination by the neutral and detached official, whether a magistrate in the civilian system or a commander in the military system, is not mandated by Gerstein or McLaughlin.
B.
Our brothers rely on Courtney v. Williams for the proposition that the neutral and detached commanding officer’s decision that probable cause existed should have been further reviewed to pass constitutional muster. Courtney, however, concerned a due process challenge under the Fifth Amendment to a military justice system that made no provision at all for the judicial review of a pretrial confinement decision. The appellant in that case, who was pending a court-martial for two unauthorized absences, attempted to challenge the legality of his pretrial confinement based upon a subsequent assault. At trial the military judge ruled that he had no *720authority to review the pretrial confinement decision.
In reviewing a petition for extraordinary relief filed in Courtney, Chief Judge Fletcher sought to establish a rule for the review of both prongs of the confinement decision. The problem as he saw it was that “The Code provides no procedure for reviewing the probable cause determination that is made by the person ordering arrest or confinement.” Courtney, at 270 (emphasis added). It should be noted that there is a significant difference between reviewing the probable cause determination and making an initial probable cause determination.
My brother, Senior Judge Crean, interprets Courtney too broadly in applying it to the case at bar. Courtney should be interpreted for what it intended — a military due process review of both prongs of the confinement decision. Neither the Fourth Amendment nor the decisions in Gerstein and McLaughlin, however, mandate a further review of a neutral and detached commanding officer’s probable cause determination made prior to ordering a soldier into pretrial confinement.
II.
The majority opinion purports to establish a new rule for the Army based upon the 48-hour standard in McLaughlin. They go too far. The proper impact of McLaughlin on our practice is to change the 72-hour standard in R.C.M. 305(h)(2) to one of 48 hours and to specify that the confining commander or the reviewing commander be neutral and detached.
. Although the civilian detention is termed an "warrantless arrest” and the latter, depending upon the circumstances and the authority of those involved, may be termed "apprehension,” “arrest,” or "confinement,” the constitutional requirement is the same: a prompt (generally within 48 hours) judicial review of probable cause pursuant to the constitutional standards enunciated in Gerstein and McLaughlin before continued detention is permissible.