Preferral of charges R.C.M. 307

Information on preferral of charges R.C.M. 307:

bestmilitarydefenseucmjdefenselawyer291Charges are formally made against an accused when signed and sworn to by a person subject to the UCMJ (known as “the accuser”). This procedure is called “preferral of charges.” Charges are preferred by executing the appropriate portions of the charge sheet. MCM, Appendix 4-1. Implicit in the preferral process are several steps.

Personal data. Block I of page 1 of the charge sheet should be completed first. The information relating to personal data can be found in pertinent portions of the accused’s service record or other administrative records.

The charges. Block II of page 1 of the charge sheet is then completed to indicate the precise misconduct involved in the case. Each punitive article found in Part IV, MCM, contains sample specifications. A detailed treatment of pleading offenses is contained in the Criminal Law Deskbook, Volume II, Crimes and Defenses.

Accuser. The accuser is a person subject to the UCMJ who signs item 11d in block III at the bottom of page 1 of the charge sheet. The accuser should swear to the truth of the charges and have the affidavit executed before an officer authorized to administer oaths.

Oath. The oath must be administered to the accuser and the affidavit so indicating must be executed by a person with proper authority. Article 136, UCMJ, authorizes all judge advocates, summary courts-martial officers, all adjutants, and legal officers to administer oaths for this purpose. No one can be ordered to prefer charges to which she cannot truthfully swear. Often, the trial counsel will administer the oath. When the charges are signed and sworn to, they are “preferred” against the accused. This step also starts the speedy trial clock.

Informing the accused. After formal charges have been signed and sworn to, the preferral process is completed when the charges are submitted to the accused’s immediate commanding officer. The first step which must be taken is to inform the accused of the charges against him. The purpose of this requirement is to provide an accused with reasonable notice of impending criminal prosecution in compliance with criminal due process of law standards. R.C.M. 308 requires the immediate commander of the accused to have the accused informed as soon as practicable of the charges preferred against him, the name of the person who preferred them, and the person who ordered them to be preferred. The important aspect of this requirement is that notice must be given through official sources. The accused should appear before the immediate commander or other designated person giving notice and should be told of the existence of formal charges, the general nature of the charges, and the name of the person who signed the charges as accuser. A copy of the charges should also be given to the accused. After notice has been given, the person who gave notice to the accused will execute item 12 at the top of page 2 of the charge sheet. If not the immediate commander of the accused, the person signing on the “signature” line should state their rank, component, and authority.

Formal receipt of charges. R.C.M. 403(a). Item 13 in block IV on page 2 of the charge sheet records the formal receipt of sworn charges by the officer exercising SCMCA. Often this receipt certification and the notice certification will be executed at the same time, although it is not unusual for the notice certification to be executed prior to the receipt certification. The purpose of the receipt certification is to establish that sworn charges were preferred before the statute of limitations operated to bar prosecution. Article 43, UCMJ, sets forth time limitations for the prosecution of various offenses. If sworn charges are not received by an officer exercising SCM jurisdiction over the accused within the time period applicable to the offense charged, then prosecution for that offense is barred by Article 43, UCMJ. The time period begins on the date the offense was committed and ends on the date appropriate to that offense. Where the accused is absent without leave at the time charges are sworn, it is permissible and proper to execute the receipt certification even though the accused has not been advised of the existence of the charges. In such cases, a statement indicating the reason for the lack of notice should be attached to the case file. When the accused returns to military control, notice should then be given to him. The receipt certification need not be executed personally by the SCM convening authority and is often completed for her by the adjutant.

Referral of Charges. Once the charge sheet and supporting materials are presented to the SCMCA and she makes her decision to refer the case to a SCM the case is referred. The procedure to accomplish referral is by completing item 14 in block V on page 2 of the charge sheet. The referral is executed personally by the SCMCA.

The referral should explicitly detail the type of court to which the case is being referred. Thus, the referral might read “referred for trial to the summary court- martial convened by my summary court-martial convening order XX dated 15 January 201X.” This language precisely identifies a particular kind of court- martial and the particular SCM to try the case.

In addition, the referral on page 2 of the charge sheet should indicate any particular instructions applicable to the case such as “confinement at hard labor is not an authorized punishment in this case” or other instructions desired by the convening authority. If no instructions are applicable to the case, the referral should so indicate by use of the word “none” in the appropriate blank. Once the referral is properly executed, the case is “referred” to trial and the case file forwarded to the proper SCM officer.

R.C.M. 307

SCM officer