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

Function section 3–3.9(a) (1979). Consistent with the amendment
of Article 34, subsection (1) does not require the convening authority
to evaluate the legal sufficiency of the case personally. In
general courts-martial the legal sufficiency determination must be
made by the staff judge advocate. See Article 34(a) and subsection
(3)(2) of this rule. Subsection (1) requires a similar determin
a t i o n i n a l l c o u r t s - m a r t i a l , i n c l u d i n g s p e c i a l a n d s u m m a r y
courts-martial. Because of the judicial limitations on the sentencing
power of special and summary courts-martial, any judge advocate
may make the determination or the convening authority
may do so personally. (A special or summary court-martial convening
authority does not always have access to a judge advocate
before referring charges; moreover, this subsection does not require
reference to a judge advocate, even if one is available, if the
convening authority elects to make the determination personally.)
A person who serves as a trial counsel is not disqualified from
rendering this advice. Cf. ABA Standards Prosecution Function
Section 3–3.9(a) (1979). Note that there is no requirement under
this subsection that the judge advocate’s advice be written or that
the convening authority memorialize the basis of the referral in
any way.
The “reasonable grounds” standard is based on Article 34’s
prerequisite to referral of charges to a general court-martial that
the charges be warranted by the evidence in the report of the
Article 32 investigation. Further, the legislative history of Article
32 strongly suggests that this is the intended standard of the
investigation. Hearings on H.R. 2498 Before a Subcomm, of the
House Comm. on Armed Services, 81st Cong., 1st Sess. 997 –98
(1949). Nothing suggests that the standard governing referral to
inferior courts-martial should be different from that applicable to
g e n e r a l c o u r t s - m a r t i a l . I t a p p e a r s t h a t t h e r e a s o n a b l e g r o u n d s
standard has been in operation even without an explicit requirement.
See, e.g., United States v. Eagle, 1 M.J. 387, 389 n.4
(C.M.A. 1976); United States v. Kauffman, 33 C.M.R. 748, 795
( A . F . B . R . ) , r e v ’ d o n o t h e r g r o u n d s , 1 4 U . S . C . M . A . 2 8 3 , 3 4
C.M.R. 63 (1963). Cf. Gerstein v. Pugh, 420 U.S. 103 (1975).
Subsection (2) restates the prerequisites for referral to a general
court-martial of Articles 32 and 34. It is consistent with paragraphs
30 c and d, 34 a, and 35 of MCM, 1969 (Rev.) except
insofar as the amendment of Article 34 (see Military Justice Act
of 1983, Pub. L. No. 98–209, § 4, 97 Stat. 1393 (1983)) requires
otherwise. The function of this provision is the same as paragraph
30 of MCM, 1969 (Rev.) to serve as a reminder of procedural
limitations on referral. The waiver provision is based on Article
32(d); S. Rep. No. 53, 98th Cong., 1st Sess. 17 (1983); United
States v. Schaffer, 12 M.J. 425 (C.M.A. 1982); United States v.
Ragan, 14 U.S.C.M.A. 119, 33 C.M.R. 331 (1963).
(e) How changes shall be referred. Subsection (1) is consistent
with paragraph 33 j(1) of MCM, 1969 (Rev.). The personal responsibility
of the convening authority to decide whether to refer
and how to refer is emphasized, but the discussion makes clear
that the administrative aspects of recording that decision may be
delegated.
The discussion’s instructions for subsequent referrals are based
on paragraph 33 j(1) of MCM, 1969 (Rev.).
The special case of referrals to summary courts-martial by the
only officer present in command follows paragraph 33 j(1) of
MCM, 1969 (Rev.) and Article 24(b).
The discussion of limiting instructions follows paragraphs 33
ANALYSIS
App. 21, R.C.M. 603(b)
j(1) and k of MCM, 1969 (Rev.). The advice that convening
authorities be guided by the criteria for capital punishment found
at R.C.M. 1004 is new. See Gregg v. Georgia, 428 U.S. 153, 225
(1976) (White, J., concurring in the judgment).
The last paragraph of the discussion on transmitting the referred
charges and allied papers to the trial counsel is based on
paragraph 33 j(2) of MCM, 1969 (Rev.).
Subsection (2) is less restrictive than the previous military rule
found at paragraphs 26 b and c of MCM, 1969 (Rev.), which
cautioned against joining major and minor offenses. This rule is
inconsistent with Fed. R. Crim. P. 8(a), which requires (in general)
separate trials for each offense. Such a requirement is too
unwieldy to be effective, particularly in combat or deployment.
Joinder is entirely within the discretion of the convening authority.
The last two sentences of the rule dealing with additional
charges are based on paragraph 65 b of MCM, 1969 (Rev.). The
discussion encourages economy, following paragraph 33 h of
MCM, 1969 (Rev.). The last sentence in subsection (2) is new
and clarifies that the accused may consent to the referral of
additional charges after arraignment. Since the prohibition of such
referral is for the accused’s benefit, the accused may forego it
when it would be the accused’s advantage. See United States v.
Lee, 14 M.J. 983 (N.M.C.M.R. 1983).
The first two sentences of subsection (3) restate Fed. R. Crim.
P. 8(b) in military nomenclature. They are consistent with the
approach taken by paragraph 26 d of MCM, 1969 (Rev.). The last
sentence is based on paragraph 33 l of MCM, 1969 (Rev.). There
is no counterpart in federal civilian practice.
(f) Referral by other convening authorities. This new provision
reflects the principle that a subordinate convening authority’s
decision does not preempt different dispositions by superior convening
authorities. See United States v. Charette, 15 M.J. 197
(C.M.A. 1983); United States v. Blaylock, 15 M.J. 190 (C.M.A.
1 9 8 3 ) . S e e a l s o A n a l y s i s , R . C . M . 3 0 6 ( a ) , A n a l y s i s , R . C . M .
905(g), and Analysis, R.C.M. 907(b)(2)(C).
Rule 602 Service of charges
This rule is based on Article 35 and paragraph 44 h of MCM,
1969 (Rev.). Fed. R. Crim. P. 9 is consistent in purpose with this
rule, but not in structure. The warrant system of Fed. R. Crim. P.
9(a), (b)(1), and (c) (2) is unnecessary in military practice. The
remand provision of Fed. R. Crim. P. 9(d) is inconsistent with the
structure of military procedure but consistent with the convening
authority’s discretion to refer charges to a minor forum. See
R.C.M. 306. The provision of Fed. R. Crim. P. 9(c) for service by
mail or delivery to a residence is inconsistent with Article 35.
Rule 603 Changes to charges and specifications
(a) Minor changes defined. This definition and the discussion
consolidate the tests and examples found at paragraphs 33 d, 44
f(1), and 69 b(1) of MCM, 1969 (Rev.). They are consistent with
Fed. R. Crim. P. 7(e).
(b) Minor changes before arraignment. This provision is based
on and consolidates the authority of various persons to make
minor changes as stated at paragraphs 33 d and 44 f(1) of MCM,
1969 (Rev.). It is inappropriate for an Article 32 investigating
officer to make changes, but an investigating officer may recommend
changes. See also Article 34(b) which provides authority
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