The Office of Special Trial Counsel: Who Decides Covered Offenses Now
Key takeaways
- The OSTC was created by the FY22 NDAA (signed 27 December 2021); its core provisions took effect on 27 December 2023 and apply to covered offenses committed on or after that date.
- Covered offenses reach well beyond sexual assault — murder, manslaughter, kidnapping, domestic violence, stalking, retaliation, and child sexual offenses are on the statutory list, plus related offenses charged alongside them.
- Special trial counsel now control preferral and referral of covered offenses, approve an accused’s Article 32 waiver, may direct convening authorities to detail hearing officers, and receive the hearing officer’s report directly.
- Commanders remain convening authorities and keep NJP, administrative separation, and disposition of non-covered offenses — the OSTC took the charging decision, not the whole system.
- For the accused, the audience changed: charging presentations, plea negotiations, and declination requests now go to independent prosecutors applying prosecution-office standards.
Where the OSTC came from: the FY22 NDAA
For most of the UCMJ’s history, the decision to prosecute a sexual assault belonged to the accused’s chain of command — the same convening authorities who owned every other disposition decision. A decade of reform pressure chipped at that arrangement first: a 2012 Department of Defense policy withheld initial disposition authority in sexual assault cases to colonel-level special court-martial convening authorities, and in the Army a convening authority’s refusal to refer sexual assault charges against the staff judge advocate’s advice triggered review by the Secretary of the Army. Congress also made clear, in Article 6b, that victims’ rights did not transfer the charging decision to victims — the discretion under Articles 30 and 34 remained where it was.
The FY22 National Defense Authorization Act, passed on 27 December 2021, ended the incremental era. It created the Office of Special Trial Counsel — a prosecution office in each military department, led by a general or flag officer judge advocate reporting to the service Secretary, outside the accused’s chain of command — and transferred to its special trial counsel the disposition authority over a statutory list of “covered offenses.” The Deskbook describes the change bluntly: the FY22 NDAA “brings substantial changes and updates to the UCMJ and military justice system,” including “the creation of the Office of the Special Trial Counsel (OSTC) and specific rules and restrictions as to the preferral and referral of certain covered offenses.”
What counts as a covered offense
The covered-offense list is statutory, and it is not limited to sexual offenses. It includes:
| Offense category | UCMJ article |
|---|---|
| Rape and sexual assault (including of adults and the contact offenses charged with them) | Art. 120 |
| Rape and sexual assault of a child | Art. 120b |
| Other sexual misconduct offenses | Art. 120c |
| Murder and manslaughter | Arts. 118, 119 |
| Kidnapping | Art. 125 |
| Domestic violence | Art. 128b |
| Stalking | Art. 130 |
| Retaliation | Art. 132 |
| Wrongful broadcast or distribution of intimate images | Art. 117a |
| Child pornography offenses | Art. 134 |
| Conspiracy, solicitation, and attempts to commit the above | Arts. 81, 82, 80 |
Two extensions matter in practice. First, special trial counsel may also exercise authority over known or related offenses — other misconduct connected to a covered offense — so an Article 120 allegation frequently pulls the accused’s entire charge sheet, orders violations and all, into OSTC hands. Second, Congress has continued adding to the list since the original Act, most notably sexual harassment as a standalone offense — so counsel must check the current statute against the date of the alleged conduct. How offenses are defined and organized under the punitive articles generally is covered in how military crimes are defined.
What the OSTC controls
For covered offenses within its authority, the OSTC holds the decisions that used to define command control of a case:
- Preferral and referral. Special trial counsel decide whether charges are brought and whether they are referred to trial — the two decisions explained in preferral and referral of charges. A command cannot force a covered offense to trial over an OSTC declination.
- Article 32 waiver approval. For covered and related offenses under OSTC authority, the special trial counsel — not the convening authority — is the approval authority for an accused’s waiver of the Article 32 preliminary hearing.
- Detailing the hearing officer. Special trial counsel have authority to direct convening authorities to detail Article 32 preliminary hearing officers.
- Report routing. In OSTC-directed hearings, the preliminary hearing officer’s report goes to the special trial counsel rather than to the convening authority — the probable-cause recommendation now informs a prosecutor’s decision, not a commander’s.
The system’s reach extends even into pretrial restraint. The Rules for Courts-Martial now require immediate notice to the OSTC when a covered-offense suspect’s liberty changes:
“If a person who is alleged to have committed a covered offense is ordered into or released from pretrial confinement, the individual ordering confinement or authorizing release shall immediately notify a special trial counsel in accordance with regulations prescribed by the Secretary concerned.”R.C.M. 305(f)
The command still makes the initial pretrial confinement decision under R.C.M. 304–305, but the prosecutors who own the case are in the loop from the first hour.
What commanders still control
The OSTC took the charging decision for covered offenses. It did not dissolve the command’s role in military justice:
- Convening the court. Convening authorities still create the court-martial and perform the functions the rules assign them — the enduring architecture described in who’s who in a court-martial.
- Non-covered offenses. The traditional disposition system — command discretion under Articles 30 and 34, with staff judge advocate advice — continues to govern the large majority of UCMJ offenses.
- Nonjudicial punishment and administrative action. If the OSTC declines a covered offense or defers it, the command may still act through Article 15 nonjudicial punishment, administrative separation, or other administrative tools — which is why an OSTC declination is often the beginning of a second fight, not the end of the case.
- Investigative and personnel decisions. Flags, suspensions, no-contact orders, and the accused’s duty status remain command business throughout.
One doctrine spans both systems: unlawful command influence. Moving the charging decision to independent prosecutors was designed partly to answer UCI concerns, but commanders and senior officials can still taint panels, witnesses, and post-trial processes — the doctrine did not retire with the disposition authority.
Effective dates: which system governs your case
The FY22 NDAA was signed on 27 December 2021, but Congress built in a two-year runway: the Deskbook notes that its “most impactful changes” — the OSTC and the covered-offense preferral and referral rules among them — became effective on 27 December 2023. The dividing line is the date of the alleged offense. Covered offenses committed on or after 27 December 2023 belong to the OSTC; conduct predating it is generally handled under the prior command-centric system, and cases spanning the line raise transition questions counsel must run to ground. The Deskbook itself cautions that older authority “may have limited or reduced applicability” during this transition — an unusually direct warning that practitioners are operating on partially unsettled procedural terrain.
The same reform package rewired sentencing for the new era — judge-alone sentencing and offense-based parameters — covered in sentencing parameters and criteria after the 2023 reforms.
What this means if you are accused of a covered offense
The person deciding your future is now a career prosecutor you will likely never meet, applying written standards, insulated from your commander’s view of you — for better and worse. The good soldier who counted on command support faces a colder audience; the accused whose command wanted him gone gets a decision-maker with no stake in unit politics. Either way, the defense opportunity is the same: a pre-preferral presentation of exculpatory evidence, aimed at a prosecutor who must assess trial risk professionally, can end a weak case before charges exist. That window closes at preferral — use it.
What the change means for the accused
Several practical shifts follow from the new architecture:
- The declination audience changed. Defense submissions arguing against charges now go to the OSTC, and they succeed or fail on evidence and trial risk — not on the accused’s standing with the command.
- Plea negotiations changed hands. For covered offenses, plea agreements are negotiated with special trial counsel, and charging concessions require their assent.
- The Article 32 calculus shifted. Waiver now requires OSTC approval, and the hearing report goes to the prosecutors — so the hearing functions even more clearly as a preview aimed at the office that will try the case.
- Case selection is more professional — and prosecutions more deliberate. An office that answers for its results tends to decline weak cases and prepare strong ones thoroughly. The cases the OSTC does refer should be expected to arrive well-built, which raises rather than lowers the premium on early, aggressive defense preparation.
- Victims still do not decide. As before, the alleged victim’s preference is heard — through counsel and the rights described in our victims’ rights guide — but the disposition decision belongs to the special trial counsel, not to the person who made the report.
Practitioner’s note
Since the OSTC stood up, our pre-preferral practice has changed shape. Under the old system, a persuasive submission often spoke the command’s language — the soldier’s record, the unit’s needs, the cost of a trial. What we present to special trial counsel now reads like a trial brief: the evidence they have not seen, the cross-examination their key witness cannot survive, the instruction problems in their charging theory. We also track the covered-offense line closely at charging — which specifications sit inside OSTC authority and which do not — because that line determines who must approve every disposition decision that follows, and errors in it are litigable.
Frequently asked questions
What offenses does the Office of Special Trial Counsel handle?
The statutory covered-offense list includes rape and sexual assault, sexual offenses against children, other sexual misconduct, murder, manslaughter, kidnapping, domestic violence, stalking, retaliation, wrongful broadcast of intimate images, child pornography offenses, and conspiracies, solicitations, and attempts to commit them. Special trial counsel can also take related offenses charged alongside a covered offense, and Congress has added offenses since the original list.
Can my commander still send my sexual assault case to a court-martial?
Not for offenses committed on or after 27 December 2023. The special trial counsel decides whether a covered offense is preferred and referred, and a command cannot refer one to trial over the OSTC's decision. Your commander still convenes the court, controls your duty status during the case, and can pursue administrative or nonjudicial options if the OSTC declines.
What happens if the OSTC declines to prosecute?
A declination usually ends the court-martial threat for that offense, but not the case. The command may still impose nonjudicial punishment, initiate administrative separation, or take other adverse administrative action based on the same allegations — proceedings with lower burdens of proof where the defense fight continues. Declined allegations can also resurface if new evidence emerges.
Does the OSTC apply to conduct from before December 2023?
Generally no — the OSTC's authority attaches to covered offenses committed on or after 27 December 2023, and earlier conduct is handled under the prior command-disposition system. Cases with conduct on both sides of the line raise genuine transition questions about who controls which specifications, and that allocation is worth scrutinizing because it determines every approval that follows.
Does the alleged victim decide whether charges are preferred under the new system?
No. Victims have enforceable rights — to counsel, to be heard, to express a venue preference — but Congress has been explicit that those rights do not transfer disposition discretion. Under the old system the commander decided; for covered offenses today the special trial counsel decides, after considering the victim's views among the other evidence.
About the attorneys behind this guide
Michael Waddington, Civilian Military Defense Lawyer
Michael Waddington has defended covered offenses — Article 120 allegations, violent crimes, and online sting cases — for more than 25 years, spanning both charging regimes. His years as an Army prosecutor inform how the firm approaches the OSTC: as an office that thinks in terms of trial risk, provable elements, and witness performance. He has litigated courts-martial worldwide under the transition-era rules and reviewed this analysis against the current statutes and Rules for Courts-Martial.
Alexandra González-Waddington, Founding Partner
Alexandra González-Waddington, founding partner of Gonzalez & Waddington, has defended sexual assault, domestic violence, and homicide cases — the heart of the covered-offense list — for more than 20 years across every service branch. Since the OSTC assumed charging authority she has directed the firm’s pre-preferral submissions to special trial counsel and the administrative-board defenses that follow declinations, and she wrote this deep dive to explain who now holds each decision in a covered-offense case.
Talk to a civilian court-martial defense lawyer today
Gonzalez & Waddington defends Soldiers, Sailors, Airmen, Marines, Guardians, and Coast Guardsmen worldwide — in UCMJ investigations, courts-martial, Article 15/NJP actions, GOMOR rebuttals, administrative separation boards, and Boards of Inquiry. We defend the whole case: the investigation, the trial, the administrative fallout, and the long-term consequences to your rank, retirement, clearance, and discharge.
Sources for this guide include the Uniform Code of Military Justice, the Manual for Courts-Martial (2024 ed.), the Rules for Courts-Martial, the TJAGLCS Criminal Law Deskbook, and the cited decisions of the Court of Appeals for the Armed Forces and the service Courts of Criminal Appeals. It is attorney advertising and general legal information — not legal advice, and reading it does not create an attorney–client relationship. Every case turns on its own facts. Service procedures vary; Army references (AR 27-10) are noted where used.