2008 edition - Fort Sam Houston - U.S. Army

after trial. It is the responsibility of the convening authority to
apply credit when action is taken on the sentence. See Article 57.
(l) Confinement after release. This subsection is new and is intended
to prevent a “revolving door” situation by giving finality
to the decision to release. Cf. United States v. Malia, supra.
(m) Exceptions. This subsection is new. Its purpose is to eliminate
several procedural requirements in situations where military
exigencies make then practically impossible to comply with. Subsection
(1) would apply not only to combat situations, but also to
circumstances in which a unit is deployed to a remote area or on
a sensitive mission, albeit one not necessarily involving combat.
Subsection (2) recognizes the special problem of vessels at sea,
and permits suspension of certain procedural requirements in such
cases.
Rule 306 Initial disposition
Introduction. Rule 306 describes who may dispose of offenses
and the options available to such authorities. Although these matters
are covered more thoroughly elsewhere (see R.C.M. 401-407,
and R.C.M. 601) they are included here to facilitate a chronological
approach to disposition of offenses.
(a) Who may dispose of offenses. This rule and the first paragraph
of the discussion are based on Articles 15, 22-24, and 30(b), and
paragraphs 30-33, 35, and 128 of MCM, 1969 (Rev.). The second
sentence of the rule and the discussion are also based on paragraphs
5 b(4) and 5c of MCM, 1969 (Rev.); United States v.
Charette, 15 M.J. 197 (C.M.A. 1983); United States v. Blaylock,
15 M.J. 190 (C.M.A. 1983). See also Article 37; United States v.
Hawthorne, 7 U.S.C.M.A. 293, 22 C.M.R. 83 (1956); United
States v. Rembert, 47 C.M.R. 755 (A.C.M.R. 1973); pet. denied,
23 U.S.C.M.A. 598 (1974).
As noted in the second paragraph of the discussion a referral
decision commits the disposition of an offense to the jurisdiction
of a specific judicial forum, and thus bars other action on that
offense until it is withdrawn from that court-martial by the conv
e n i n g a u t h o r i t y o r s u p e r i o r c o m p e t e n t a u t h o r i t y . S e e U n i t e d
States v. Charette, United States v. Blaylock both supra. But see
Article 44; R.C.M. 97(b)(2)(C). Neither dismissal of charges nor
nonjudicial punishment (for a serious offense) bars subsequent
contrary action by the same or a different commander. Thus, a
decision to dismiss charges does not bar a superior commander
from acting on those charges if repreferred or from personally
preferring charges relating to the same offenses, if no jeopardy
attached to the earlier dismissal. See Legal and Legislative Basis,
Manual for Courts-Martial, United States, 1951, 47. Cf. United
States v. Thompson, 251 U.S. 407 (1920); Fed.R.Crim. P. 48;
United States v. Clay, 481 F.2d 133 (7th Cir.), cert, denied, 414
U . S . 1 0 0 9 ( 1 9 7 3 ) ; M a n n v . U n i t e d S t a t e s , 3 0 4 F . 2 d 3 9 4
(D.C.Cir.), cert, denied, 371 U.S. 896 (1962). See also Article 44,
and R.C.M. 905(g) and Analysis, and R.C.M. 907(b)(3) and Analysis.
Similarly, imposition of nonjudicial punishment does not bar
a superior commander from referring the same offenses, if they
are serious, to a court-martial (Article 15(f); see also United
States v. Fretwell, 11 U.S.C.M.A. 377, 29 C.M.R. 193 (1960)), or
from setting aside punishment already imposed. Article 15(e). See
generally Part V.
(b) Policy. This subsection is based on paragraph 30 g of MCM,
ANALYSIS
App. 21, R.C.M. 307(b)
1969 (Rev.). Although it is guidance only, it is sufficiently important
to warrant inclusion in the rules as a presidential statement.
The second paragraph of the discussion provides guidelines for
the exercise of the discretion to dispose of offenses. Guideline
(A) is based on paragraph 33 h of MCM, 1969 (Rev.). Guidelines
(B) through (G) are based on ABA Standards, Prosecution Function
§ 3-3.9(b) (1979). The other guidelines in § 3-3.9 are not
needed here: § 3-3.9(a) (probable cause) is followed in the rule: §
3-3.9(b)(i) is inconsistent with the convening authority’s judicial
function; §§ 3-3.9(c) and (d) are unnecessary in military practice;
and § 3-3.9(e) is implicit in § 3-3.9(a) and in the rule requiring
probable cause. Guidelines (H), (I), and (J) were added to acknowledge
other practical considerations.
(c) How offenses may be disposed of. This subsection is based
generally on Articles 15, 22-24, and 30, and paragraphs 32-35,
and 128 of MCM, 1969 (Rev.). The discussion provides additional
guidance on the disposition options.
Rule 307 Preferral of Charges
(a) Who may prefer charges. This subsection is based on Article
30 and paragraph 29 b of MCM, 1969 (Rev.).
The first sentence of the first paragraph of the discussion is a
new version of the former rule at paragraphs 5a(4) and 29 c of
MCM, 1969 (Rev.), which provided that “A person subject to the
code cannot be ordered to prefer charges to which he is unable
truthfully to make the required oath on his own responsibility.”
This rule is subsumed in the oath requirement of Article 30 and
subsection (b) of the rule. The discussion clarifies the circumstances
under which an order to prefer charges may be given, but
warns against such orders in some circumstances in which they
may tend to encourage litigation or to invalidate an otherwise
valid court-martial. The practice of ordering persons to prefer
charges has a historical basis. W. Winthrop, Military Law and
Precedents 154 (2d ed. 1920 reprint); but cf. Hearings on H.R.
2498 Before a Subcommittee of the House Committee on Armed
Service, 81st Cong., 1st Sess. 850 (1949) (reflecting the fact that
under the code a person who orders another to prefer charges is
an accuser).
The second paragraph of the discussion is a simplified version
of paragraph 25 of MCM, 1969 (Rev.). The discussion observes
that charges may be preferred against a person subject to trial by
court-martial at any time. But see Article 43. Thus, when charges
may be preferred depends only on continued or renewed personal
jurisdiction. The policy forbidding accumulation of charges in
paragraph 25 of MCM, 1969 (Rev.) is now general guidance in
the discussion. Furthermore, the “reasonable delay” aspects of the
discussion are no longer contingent upon the absence of pretrial
arrest and confinement, because delay for a reasonable period and
good cause is always permitted. See also R.C.M. 707.
(b) How charges are preferred; oath. This subsection is taken
f r o m A r t i c l e 3 0 ( a ) . T h i s s u b s e c t i o n i s s i m i l a r i n p u r p o s e t o
Fed.R.Crim. P. 7(c)(1)’s requirement that the indictment or information
“shall be signed by the attorney for the government.” The
same concept of requiring accountability for bringing allegations
to trial appears again at R.C.M. 601 (referral).
The first paragraph of the discussion is based on Article 30 and
paragraph 114i of MCM, 1969 (Rev.).
T h e l a s t p a r a g r a p h o f t h e d i s c u s s i o n i s c o n s i s t e n t w i t h
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