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What Happens After Charges Are Referred to a Court-Martial?

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Short answer: When charges are referred to a court-martial, you are going to trial: you are served the charges, a military judge is detailed, you are arraigned, and discovery, motions, and a trial date follow, usually within two to five months. Civilian military defense lawyer Michael Waddington of Gonzalez & Waddington explains that referral is the point where the case stops being a command decision and becomes a case before a court.

In this video, Michael Waddington explains what happens after charges are referred to a court-martial, from service of the charge sheet through arraignment, motions, and trial.

What does it mean when charges are referred to a court-martial?

Under Rule for Courts-Martial 601, referral is the written order that sends charges to a specific court-martial: summary, special, or general. The order is signed on the charge sheet.

For most offenses, the convening authority makes the referral decision. For covered offenses, including sexual assault, domestic violence, murder, and the other listed offenses, the Office of Special Trial Counsel has made that decision since December 2023, not your commander.

Once charges are referred, the case belongs to a court-martial. A military judge now controls the schedule and rules on the legal issues.

Video: What Happens After Charges Are Referred to Court-Martial? | Road to Trial Explained (4:24) — watch on YouTube

What happens after referral, step by step?

1. You are served the charges. Under Rule for Courts-Martial 602, you receive a copy of the referred charge sheet. Under Article 35, UCMJ, you cannot be tried over your objection within five days of service for a general court-martial, or three days for a special court-martial.

2. A judge and prosecutor are assigned. A military judge is detailed to the case, and trial counsel, the prosecutor, is assigned. Your defense team now has an opponent and a referee.

3. You are arraigned. Under Rule for Courts-Martial 904, you appear before the judge and the charges are read or the reading is waived. Most accused service members reserve pleas at this stage. Arraignment stops the 120-day speedy-trial clock under Rule for Courts-Martial 707.

4. Discovery begins. Under Rule for Courts-Martial 701 and Article 46, the government must turn over its evidence, including evidence favorable to you under Brady v. Maryland. Your lawyer should request the full investigative file, forensic reports, witness statements, and the accuser’s communications with the government.

5. Motions are filed and argued. Common motions seek to suppress statements taken in violation of Article 31, suppress evidence from an unlawful search under Military Rule of Evidence 311, dismiss for speedy-trial violations or unlawful command influence, or compel witnesses and experts. The judge decides them at pretrial sessions held under Article 39(a).

6. You choose your forum. You decide between trial by military judge alone or by a panel of members. If you are enlisted, you can also request that enlisted members serve on the panel.

7. Plea negotiations may happen. Under Rule for Courts-Martial 705, a plea agreement can be reached at any point before findings. Referral is often when the government’s willingness to negotiate becomes clear.

8. The case goes to trial. Trial includes panel selection if you chose members, opening statements, the government’s case, your case, closing arguments, and findings. If you are convicted, a sentencing hearing follows.

How long does it take from referral to trial?

Trial is typically two to five months after referral. It can take longer if experts, forensic testing, overseas witnesses, or contested motions are involved.

The judge issues a scheduling order after arraignment, so your lawyer will know the deadlines for motions, witness requests, and the forum election.

Who decides my sentence if I am convicted?

For offenses committed after December 27, 2023, the military judge decides the sentence in non-capital cases under Article 53, using sentencing parameters set by the President. For older offenses, an accused tried by members could often elect sentencing by those members instead.

Either way, the sentencing record starts long before trial. Your service record, character letters, and conduct while the case is pending can all matter. See what punishments a court-martial can impose.

Can a referred case still be resolved before trial?

Yes. Referred charges can be withdrawn by the convening authority or special trial counsel, resolved through a plea agreement, or dismissed by the judge on a successful motion.

Referral raises the stakes, but it is not a conviction. The government still has to prove each charge beyond a reasonable doubt.

What to do right now

  1. Meet with your defense team every week and keep them updated on anything new.
  2. Give your lawyers every name, message, document, and photo that could matter, good or bad.
  3. Say nothing about the case to anyone except your lawyers, including on social media and by text.
  4. Follow every order, restriction, and protective order without exception.
  5. Show up to work and perform like the service member you want the judge or panel to see.
  6. Start gathering character references and records that show your service and potential.

Key takeaways

  • Referral under Rule for Courts-Martial 601 is the decision that sends your case to trial.
  • For covered offenses, the Office of Special Trial Counsel, not your commander, makes the referral decision.
  • After referral come service, arraignment, discovery, motions, forum selection, possible negotiations, and trial.
  • Arraignment under Rule for Courts-Martial 904 stops the 120-day speedy-trial clock.
  • Most cases reach trial two to five months after referral, and the work you do in that time shapes the outcome.

Video transcript

Transcript of the video “What Happens After Charges Are Referred to Court-Martial? | Road to Trial Explained,” with Michael Waddington of Gonzalez & Waddington.

Read the full transcript of this video

What happens after charges are referred to a court-martial? You’re going to trial. A military judge is assigned, you’re arraigned, discovery and motions begin, and a trial date is set, usually two to five months out. I’m Michael Waddington, civilian military defense lawyer and co-founder of Gonzalez & Waddington. Referral is the point of no return in the process, and here’s exactly what the road to trial looks like.

First, what referral means. Under Rule for Courts-Martial 601, referral is the convening authority’s written order sending the charges to a specific court-martial: summary, special, or general. For covered offenses (sexual assault, domestic violence, murder, and the rest of the list), that decision has belonged to the Office of Special Trial Counsel, not your commander, since December 2023. Either way, once the referral is signed on the charge sheet, the case belongs to a court.

Here’s the sequence. One, service of charges. Under Rule 602, you’re served a copy of the referred charge sheet. For a general court-martial, trial can’t begin for five days after service; for a special, three days. Two, a military judge is detailed, and the trial counsel, the prosecutor, is assigned. Your defense team now has an opponent and a referee. Three, arraignment. Under Rule 904, you appear before the judge, the charges are read or the reading is waived, and you’re asked to plead. Almost everyone reserves pleas at this point. Arraignment stops the 120-day speedy trial clock and starts the judge’s scheduling order.

Four, discovery. Under Rule 701 and Article 46, the government must turn over its evidence, including anything favorable to you under Brady. Your lawyer requests the CID file, the forensic reports, the witness statements, and the accuser’s communications with the government. Fights over discovery are where many cases are won. Five, motions: motions to suppress statements taken in violation of Article 31, to suppress evidence from an unlawful search under Military Rule of Evidence 311, to dismiss for speedy trial violations or unlawful command influence, and to compel witnesses or experts. The judge rules on these at a pretrial hearing under Article 39(a).

Six, forum selection. You choose trial by military judge alone or by a panel of members and, if you’re enlisted, whether to request enlisted members. That choice is due before trial, and it’s one of the biggest decisions in the case. Seven, plea negotiations, if any. A plea agreement under Rule 705 can be reached at any point before findings, and the referral stage is when the government’s willingness to deal becomes clear. Eight, trial: voir dire and member selection if you chose a panel, opening statements, the government’s case, your case, closing arguments, findings, and, if convicted, sentencing.

How long from referral to trial? Typically two to five months, longer if experts, foreign witnesses, or forensic delays are involved. What should you be doing? Meet with your defense team weekly. Give them every name, every message, every document. Say nothing to anyone else. Follow every order. And show up to work like the soldier you want the panel to see. At Gonzalez & Waddington, referral is when the case becomes ours to try. Everything before it was about avoiding this stage. Everything after it is about winning it.

So, what happens after referral? Service, a judge, arraignment, discovery, motions, forum choice, negotiations, and trial. I’m Michael Waddington with Gonzalez & Waddington. We defend service members worldwide. You can learn more at ucmjdefense.com or call 1-800-921-8607 for a free confidential consultation.

Frequently asked questions

Does referral mean I will be convicted?

No. Referral means the decision-maker found the case should go to trial, not that you are guilty. The government must still prove every element of every charge beyond a reasonable doubt.

Do I have to enter a plea at arraignment?

Usually not. Most accused service members reserve their pleas at arraignment, which lets the defense complete discovery and motions before deciding. Your lawyer will advise you on the timing.

What is the difference between a special and a general court-martial referral?

The type of court sets the maximum punishment. A special court-martial is capped at 12 months of confinement and a bad-conduct discharge, while a general court-martial can impose the full maximum for the offense, including a dishonorable discharge.

Can the government withdraw charges after referral?

Yes. Under Rule for Courts-Martial 604, referred charges can be withdrawn, sometimes as part of a negotiated resolution. Withdrawal after trial begins has limits, so timing matters.

Talk to a military defense lawyer

Gonzalez & Waddington defends service members worldwide in investigations, courts-martial, administrative separation boards, and other UCMJ matters. Michael Waddington, a former Army JAG officer, has been a lawyer for over 25 years. Call 1-800-921-8607 or visit ucmjdefense.com for a confidential consultation.

This article is general information, not legal advice. Every case is different, and reading it does not create an attorney-client relationship.

What Happens After Charges Are Referred to a Court-Martial?

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