What Is the Convening Authority’s Role in the Court-Martial Process?
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The convening authority is the commander empowered to create a court-martial: to refer charges to it, detail its members, approve some pretrial matters, and act on the result within statutory limits. Three changes since 2019 have narrowed the role. For covered offenses committed after December 27, 2023, a special trial counsel, not the convening authority, decides referral; members are detailed under randomized selection rules for courts-martial convened on or after December 23, 2024; and Article 60a bars the convening authority from acting on findings in serious cases.
Who can convene which court-martial
“Convening authority” is a function attached to command positions, set by statute:
| Court-martial | Who may convene | Source |
|---|---|---|
| General | The President, the Secretary of Defense, combatant commanders, the Secretary concerned, commanders of an Army group, army, corps, division, or separate brigade (or Marine Corps equivalent), fleet commanders and certain naval shore commanders abroad, commanders of an air command, air force, air division, or separate wing (or Marine Corps or Space Force equivalent), and others designated by the Secretary or empowered by the President | Art. 22 |
| Special | Any general court-martial convening authority; commanders of installations, brigades, regiments, detached battalions, wings, groups, separate squadrons, vessels, and similar commands; and others empowered by the Secretary | Art. 23 |
| Summary | Any general or special court-martial convening authority; commanders of detached companies and squadrons; others empowered by the Secretary. "When only one commissioned officer is present with a command or detachment", that officer is the summary court-martial | Art. 24 |
The accuser bar. If a convening authority is an accuser, the court “shall be convened by superior competent authority” (Articles 22(b), 23(b)(1)). Articles 22(b)(2) and 23(b)(2) add that a commanding officer “shall not be considered an accuser solely due to the role of the commanding officer in convening” a general or special court-martial “to which charges and specifications were referred by a special trial counsel”. Forwarding charges is not what those provisions address.
Disposition and referral
Disposition. Before any court exists, a commander may take no action, take or initiate administrative action, consider the matter under Article 15 nonjudicial punishment, dispose of charges under R.C.M. 401, or forward the matter to a superior or subordinate authority (R.C.M. 306(c)). For offenses over which a special trial counsel exercises authority, R.C.M. 306A governs instead.
Advice before referral. For a general court-martial, the convening authority “may not refer a specification” unless the staff judge advocate advises in writing that it alleges an offense, that there is probable cause, and that there is jurisdiction; the SJA also gives a written disposition recommendation (Article 34(a)). Before a special court-martial referral, the convening authority must consult a judge advocate (Article 34(b)). The Article 32 hearing officer’s report informs, but does not bind, these decisions. The pretrial path is traced in how preferral and referral of charges work.
Covered offenses and the special trial counsel. For offenses over which a special trial counsel exercises authority (covered offenses listed in 10 U.S.C. § 801(17), committed after December 27, 2023, and certain earlier offenses the special trial counsel elects to take under § 824a(d)):
- the special trial counsel has “exclusive authority” to refer, dismiss, and enter plea agreements (Art. 24a(c)(3));
- a special trial counsel’s decision to refer “shall be binding on any applicable convening authority” (Art. 24a(c)(4));
- if the special trial counsel declines to prefer or refer, the commander or convening authority may use other authorities but “may not refer charges and specifications for a covered offense for trial by special or general court-martial” (Art. 24a(c)(5)).
For non-covered offenses, referral remains with the convening authority unless a special trial counsel takes them as offenses related to a covered offense (Art. 24a(c)(2)(B)).
Detailing the members
The convening authority details members it considers “best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament”, and no one who is the accuser, a prosecution witness, the preliminary hearing officer, or counsel in the same case may serve (Article 25(e)(2)). For courts-martial convened on or after December 23, 2024, the convening authority must also detail members “under such regulations as the President may prescribe for the randomized selection of qualified personnel, to the maximum extent practicable” (Article 25(e)(4); FY2023 NDAA § 543(b)). The convening authority may excuse members before assembly and may delegate that authority under service regulations (Article 25(f)). Panel selection is explained in how court-martial panel members are selected.
During trial
The military judge presides and rules on law and evidence; when all findings of guilty are for offenses committed after December 27, 2023, the judge also imposes the sentence in non-capital cases (Article 53(b)(1)).
Withdrawal of charges. The convening authority or a superior competent authority “may for any reason cause any charge or specification to be withdrawn from a court-martial at any time before findings are announced”, except that for charges over which a special trial counsel exercises authority and has not deferred, only a special trial counsel may withdraw them (R.C.M. 604(a)). Withdrawn charges may be referred to another court-martial “unless the withdrawal was for an improper reason”; after evidence on guilt has been introduced, re-referral is permitted only if the withdrawal was “necessitated by urgent and unforeseen military necessity” (R.C.M. 604(b)).
Command influence. Article 37 bars a convening authority or other commander from censuring, reprimanding, or admonishing the court, any member, the military judge, or counsel about findings, sentence, or other functions, and from deterring witnesses. For violations on or after December 20, 2019, a finding or sentence may be held incorrect on that ground only if the violation “materially prejudices the substantial rights of the accused” (Article 37(c)). See unlawful command influence and how it is addressed.
After trial: Articles 60a and 60b
For cases governed by the Military Justice Act of 2016, which does not apply to charges referred before January 1, 2019, the convening authority’s post-trial power depends on the case.
Article 60a cases. Article 60a applies to a general or special court-martial in which (Art. 60a(a)(2)):
- the maximum confinement authorized for any offense of which the accused is found guilty is more than two years;
- the total confinement imposed, running consecutively, is more than six months;
- the sentence includes a dismissal, dishonorable discharge, or bad-conduct discharge; or
- the accused is found guilty of rape or sexual assault under Article 120(a) or (b), an Article 120b offense, or another offense the Secretary of Defense specifies.
In those cases the convening authority “may not act on the findings” and may not reduce, commute, or suspend confinement of more than six months total, a punitive discharge, or a death sentence (Art. 60a(a)(1), (b)(1)). The exceptions are suspension on the military judge’s recommendation in the statement of trial results (not of a mandatory minimum) (Art. 60a(c)), and reduction, commutation, or suspension, including of a mandatory minimum, on trial counsel’s recommendation for the accused’s substantial assistance in the investigation or prosecution of another person, before or after entry of judgment (Art. 60a(d)).
Article 60b cases. In other courts-martial, the convening authority may dismiss a charge by setting aside a finding of guilty, change a finding to a lesser included offense, disapprove the findings and sentence and dismiss or order a rehearing, or disapprove, commute, or suspend the sentence (Art. 60b(a)(1)).
Timing and submissions. The convening authority acts before entry of judgment, except for post-judgment substantial-assistance action under Article 60a(d)(2), and must consider written matters submitted by the accused and any victim; a victim’s character may be considered only if presented at trial and not excluded (Arts. 60a(a)(3), (e); 60b(a)(3)). The military judge then enters the judgment. The review stages are described in the post-trial review process.
Four months, then a bad-conduct discharge (hypothetical)
An accused is convicted at a special court-martial of a single offense with a two-year maximum and sentenced to four months of confinement and no discharge. None of the Article 60a triggers applies (the maximum is not more than two years, confinement is not more than six months, there is no punitive discharge, and the offense is not a listed sex offense), so under Article 60b the convening authority could set aside the finding or reduce the sentence. If the same accused had received a bad-conduct discharge, Article 60a would apply: no action on the findings, and the discharge could be suspended only on the judge’s recommendation or reduced for substantial assistance.
Sources
- 10 U.S.C. § 822, Article 22 (Cornell LII)
- 10 U.S.C. § 823, Article 23 (Cornell LII)
- 10 U.S.C. § 824, Article 24 (Cornell LII)
- 10 U.S.C. § 824a, Article 24a, Special trial counsel (Cornell LII)
- 10 U.S.C. § 825, Article 25 (Cornell LII)
- 10 U.S.C. § 834, Article 34 (Cornell LII)
- 10 U.S.C. § 860a, Article 60a (Cornell LII)
- 10 U.S.C. § 860b, Article 60b (Cornell LII)
- Manual for Courts-Martial, United States (2024 ed.), R.C.M. 306(c), 604
This article is general information about military law, not legal advice for any individual case.