The charging process in military courts operates through two distinct steps: preferral and referral. Preferral is the formal accusation sworn under oath, while referral is the convening authority’s order directing that a case proceed to a specific type of court-martial. This two-step process distributes authority between the accuser and the commander while incorporating legal advice from the Staff Judge Advocate at each stage.
Preferral vs. Referral
Preferral of charges is the act of formally accusing a servicemember of an offense under the UCMJ. Any person subject to the UCMJ may prefer charges by signing the charge sheet under oath. The accuser swears that they have personal knowledge of, or have investigated, the matters set forth in the charges and that those charges are true to the best of their knowledge and belief.
Referral of charges is a separate and later step in which the convening authority directs that the charges be tried by a specific type of court-martial. Referral is an executive act by the convening authority that places the court-martial in motion. Without referral, charges cannot proceed to trial regardless of how they were preferred.
Who May Prefer Charges
Any person subject to the UCMJ may prefer charges. In practice, charges are most commonly preferred by the accused’s immediate commander, an investigating officer, or a trial counsel. The accuser must have some basis for the charges, either through personal knowledge or investigation, and must sign the charge sheet under oath.
The Charge Sheet (DD Form 458)
The charge sheet (DD Form 458) is the formal charging document in the military justice system. It must contain the name and description of the accused, a statement of the charges and specifications (each specification alleging a specific offense with sufficient detail to inform the accused of the conduct being charged), and the signature of the accuser under oath.
Each specification must allege every element of the offense, identify the approximate date and location, and describe the accused’s conduct with sufficient specificity to put the accused on notice of what is being alleged.
The Staff Judge Advocate’s Role in Referral
Before charges may be referred to a general court-martial, the Staff Judge Advocate must provide written pretrial advice to the convening authority under Article 34. This advice must address whether the charges are legally sufficient, whether the evidence supports the charges, and whether the court-martial will have jurisdiction. The SJA’s advice is a legal prerequisite to referral for general courts-martial.
For special courts-martial, a legal advisor must also provide advice, though the requirements are less extensive. For summary courts-martial, the convening authority may refer charges without formal SJA advice.
Victim’s Preference in Referral
Under reforms enacted in recent National Defense Authorization Acts, victims of sex-related offenses committed in the United States have the right to express a preference for whether the offense is prosecuted by court-martial or in a civilian court with jurisdiction. If the victim prefers civilian prosecution, the commander must notify the appropriate civilian authorities and inform the victim of those authorities’ decision. However, the victim’s preference is not binding on the convening authority or the Special Trial Counsel.
Adding Charges After Referral
Additional charges may be preferred and referred after the initial referral, provided the procedural requirements for preferral and referral are met for each new charge. The military judge may grant continuances to allow the defense adequate time to prepare for the additional charges. If the additional charges significantly change the nature or scope of the case, the military judge may address any prejudice to the accused.
Legal Effect of Referral
Referral of charges to a court-martial is the act that gives the court jurisdiction over the case. Once charges are referred, the court-martial has the authority to proceed to trial. Referral also triggers various rights for the accused, including speedy trial protections under R.C.M. 707. The convening authority may withdraw charges after referral only under limited circumstances and with the consent of the military judge after the case is in progress.
Combat Zone Considerations
The preferral and referral process may be modified in combat zones or operational environments where the normal administrative support and legal resources are not readily available. However, the fundamental requirements of the UCMJ and MCM must still be met. Deployed judge advocates and commanders must ensure that charges are properly prepared and that the accused’s rights are protected despite operational constraints.
Important Notice
This guide is provided for general informational and educational purposes only. It is not legal advice, and it should not be relied upon as a substitute for consultation with a qualified attorney. Military law is complex, and the application of these rules depends heavily on the specific facts and circumstances of each case. Statutes, regulations, and case law are subject to change. Anyone facing court-martial proceedings or military legal issues should seek the guidance of a licensed attorney experienced in military justice. The information presented here reflects publicly available legal authorities and does not represent the official position of any government agency or military branch.
