How Does the Preferral and Referral of Charges Work in the Military Justice System?
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Preferral is the sworn accusation: a person subject to the UCMJ signs the charges and specifications under oath, stating personal knowledge or investigation and belief that they are true (Article 30). Referral is the later order that specified charges “will be tried by a specified court-martial” (R.C.M. 601(a)). Between them, the charges are forwarded and reviewed, and for a general court-martial an Article 32 preliminary hearing and written staff judge advocate advice are required. For covered offenses committed after December 27, 2023, a special trial counsel controls referral, and that decision binds the convening authority (Article 24a(c)(3)-(4)).
Preferral
Who and how. Charges “may be preferred only by a person subject to this chapter” and “shall be preferred by presentment in writing, signed under oath before a commissioned officer of the armed forces who is authorized to administer oaths.” The signer states that he or she “has personal knowledge of, or has investigated,” the matters charged and that they are true to the best of the signer’s knowledge and belief (Article 30(a)-(b)). Any person subject to the UCMJ may prefer charges, but “No person may be ordered to prefer charges to which that person is unable to make truthfully the required oath” (R.C.M. 307(a) and Discussion).
The charge sheet. The Manual refers to DD Form 458 as the template charge sheet. Each charge names the article violated; each specification states the facts alleged.
Notice and disposition. After preferral, the proper authority must, as soon as practicable, inform the accused of the charges and decide what disposition should be made “in the interest of justice and discipline” (Article 30(c)). The immediate commander must tell the accused of the charges, the name of the person who preferred them, and anyone known to have ordered them preferred (R.C.M. 308(a)).
Timing. Charges should be preferred “without unnecessary delay”, subject to the statute of limitations (R.C.M. 307, Discussion). Preferral is also one of the events that starts the 120-day speedy-trial clock, along with certain pretrial restraint and entry on active duty (R.C.M. 707(a)); see how the statute of limitations operates under the UCMJ.
The accuser problem
A person who was the accuser may not convene a general or special court-martial to which the charges are referred, and “an accuser may not refer charges to a general or special court-martial” (R.C.M. 307, Discussion; R.C.M. 601(c)(1)). A special trial counsel is not disqualified from referring by having preferred charges (Article 24a(c)(2)(A); R.C.M. 601(c)(2)), and a commander is not an accuser solely for convening a court-martial to which a special trial counsel referred charges (Articles 22(b)(2), 23(b)(2)).
Between preferral and referral
Commanders who receive preferred charges may dispose of them within their authority, forward them with a recommendation, or send them elsewhere under R.C.M. 401-407. For sex-related offenses (Articles 120, 120b, 120c, 130, and attempts) committed in the United States, the victim must be given an opportunity to say whether the offense should be prosecuted by court-martial or in a civilian court; the commander or convening authority, or the special trial counsel, must consider that preference before the initial disposition, and if the victim prefers civilian prosecution, the civilian authority must be notified and the victim told of its decision (R.C.M. 306(e)(2)-(3); R.C.M. 306A(d)).
Requirements before referral
| Court-martial | Before referral |
|---|---|
| General | Article 32 preliminary hearing, unless waived in writing and the convening authority or special trial counsel agrees (Art. 32(a)(1)); written staff judge advocate advice that each specification alleges an offense, probable cause exists, and a court-martial would have jurisdiction, plus a written disposition recommendation (Art. 34(a)) |
| Special | Convening authority consults a judge advocate on relevant legal issues (Art. 34(b)) |
| Covered offenses (general or special) | Referral only by a special trial counsel, with a written determination on the same three points (Art. 34(c)(1)) |
For other cases, the convening authority may refer a specification if it finds, or is advised by a judge advocate, that there is probable cause that a triable offense was committed and that the accused committed it, and that the specification alleges an offense (R.C.M. 601(d)(1)(A)). The hearing itself is described in the Article 32 preliminary hearing.
Referral
What it is. “Referral is the order of a convening authority or a special trial counsel that one or more charges and specifications against an accused will be tried by a specified court-martial” (R.C.M. 601(a)). The choice of forum sets the punishment ceiling, as compared in the three types of courts-martial.
Who refers. Any convening authority may refer charges to a court-martial it or a predecessor convened, unless a superior has withheld that power. “For charges over which a special trial counsel has exercised authority and has not deferred, only a special trial counsel may refer charges to a court-martial” (R.C.M. 601(b)).
Special trial counsel and covered offenses
For an offense over which a special trial counsel exercises authority, the special trial counsel has “exclusive authority” to withdraw or dismiss charges, refer them to a special or general court-martial, enter a plea agreement, and decide whether a rehearing is impracticable (Article 24a(c)(3)). “The determination of a special trial counsel to refer charges and specifications to a court-martial for trial shall be binding on any applicable convening authority” (Article 24a(c)(4)). If the special trial counsel declines to prefer or refer, a commander or convening authority may act, but not by referring those charges to a special or general court-martial (Article 24a(c)(5)). Once a special trial counsel has exercised authority over an offense not yet charged, the special trial counsel either prefers a charge or defers the offense to a commander (R.C.M. 306A(a)).
Withdrawal after referral
The convening authority or a superior may withdraw a charge “for any reason … at any time before findings are announced”, except that for charges a special trial counsel controls, only a special trial counsel may withdraw them (R.C.M. 604(a)). The Discussion says charges “should not be withdrawn from a court-martial arbitrarily or unfairly to an accused”, and limits on later re-referral appear in R.C.M. 604(b).
Sources
- 10 U.S.C. § 830, Article 30, Charges and specifications (Cornell LII)
- 10 U.S.C. § 824a, Article 24a, Special trial counsel (Cornell LII)
- 10 U.S.C. § 832, Article 32 (Cornell LII)
- 10 U.S.C. § 834, Article 34 (Cornell LII)
- 10 U.S.C. § 822, Article 22 (Cornell LII)
- Manual for Courts-Martial, United States (2024 ed.), R.C.M. 306, 306A, 307, 308, 401-407, 601, 604, 707
This article is general information about military law, not legal advice for any individual case.