Investigation of Military Offenses
Report of misconduct
When a servicemember has reportedly committed an offense, the chain of command normally finds out either by civilian law enforcement notification, from notification through the military channels (commonly referred to as “blotter reports”), a report from an alleged victim, or through direct observation of the alleged misconduct. After receiving notification, the command will normally conduct an inquiry pursuant to R.C.M. 303.
The inquiry by the command may range from an examination of the possible charges and an investigative report to a more extensive investigation depending on the offense(s) alleged and the complexity of the case. The investigation may be conducted by members of the command or, in more complex cases, military and civilian law enforcement officials.
Once the investigation is complete, the commander can choose to dispose of the charges by:
- Taking no action;
- Initiating administrative action (which can include separation from the Army);
- Imposing non-judicial punishment (a form of punishment that is not considered a conviction, but can result of loss of rank, pay, and other privileges);
- Preferring charges (the process of formally charging a soldier with and offense for resolution at court-martial); OR
- Forwarding to a higher authority for preferral of charges (R.C.M. 306(c)).
Preferral of Charges
The first formal step in a court-martial, preferral of charges, consists of drafting a charge sheet containing the charges and specifications against the accused. A specification is a plain and concise statement of the essential facts constituting the offense charged. R.C.M. 307(c)(3). The M.C.M. contains model specifications to assist trial counsel and the chain of command in drafting the specifications. The charge sheet must be signed by the accuser under oath before a commissioned officer authorized to administer oaths. R.C.M. 307(b). Any person subject to the UCMJ may prefer charges as the accuser. R.C.M. 307(a).
Referral of Charges
Once charges have been preferred they may be referred to one of three types of courts-martial: summary, special, or general. R.C.M. 401(c). The process of “referral” is simply the order that states that charges against an accused will be tried by a specific court-martial. The determination of which level of court-martial to refer the charge(s) to is made by the Court Martial Convening Authority (CMCA). R.C.M. 504. The CMCA is an appropriate level of commander who, in consultation with the Staff Judge Advocate’s Office, makes her determination. Usually, the seriousness of the offenses alleged determines the type of court-martial.