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Preferring v. Referring Charges in Military Courts

If you or someone you know are faced with a court-martial, it is important to be familiar with how a court-martial works. It undoubtedly may be a very scary time in your life. This blog will explain two distinct initial stages of a court-martial, the preferring of charges and the referral of charges.

The Preferring Stage: Being Formally Charged

The road leading up to a court-martial begins with an accusation against a member of the armed forces that he or she committed a crime as defined in the UCMJ. After that accusation is brought forth, an investigation occurs by the relevant investigative agency. During the investigation, the agency works to determine whether there is sufficient evidence to believe that the crime occurred.

Each branch of the military has their own investigative agency. For Navy and Marine-Corps members, the Naval Criminal Investigative Service (NCIS) will handle the investigation. On the other hand, the U.S. Army Criminal Investigation Division (CID) will investigate for Army members and the Air Force Office of Special Investigations (OSI) will investigate for Air Force members.

Once the investigation is complete, a report is usually produced and given to the accused’s commanding officer. If the report indicates that the accusation meets the threshold burden of proof (probable cause, a standard much lower than beyond a reasonable doubt), the commanding officer will decide whether to prefer the charges. Charges are preferred when the accused is formally charged with the alleged crimes. If charges are going to be preferred, then the applicable legal office will draft the charges on a charge sheet. Whoever decides to prefer the charges usually signs the charge sheet and takes an oath swearing that the charges are true to the best of his or her knowledge.

The Referral Stage

Preferring charges against the accused does not necessarily mean that the accused will have to face a trial. Only after the charges have been referred to trial will the accused be faced with a court-martial. The referral of charges is the decision to actually prosecute the accused for the alleged crimes.

In the military, the person with authority to dictate whether a court-marital will take place is called a convening authority. This is usually a general officer. If the convening authority decides to send the charges to a general court marital, an Article 32 hearing will be required before referral to make a determination of probable cause.

The procedure for courts-martial can be confusing and complicated. The attorneys at Patriots Law Group have extensive experience defending servicemembers who are accused of crimes. Let them help you by calling 301-952-9000 today!

DISCLAIMER:  The information above is for informational purposes only and is not intended to serve as legal advice for any particular situation.  No attorney-client relationship is intended or created by this information and may not be relied upon based on the above-statements.  Each individual situation is different and therefore a consultation is necessary before any advice can be relied upon as appropriate and accurate for your situation. Please call Patriots Law Group at 301-952-9000 to set up a consultation if you wish to obtain specific legal advice concerning your situation.