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What Happens After Court-Martial Charges Are Preferred?

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Short answer: After court-martial charges are preferred, you are formally “the accused,” a 120-day speedy-trial clock generally starts, and the case moves toward an Article 32 preliminary hearing and a referral decision that determines whether you actually go to trial. Civilian military defense lawyer Michael Waddington of Gonzalez & Waddington explains that preferral is an accusation, not a verdict, and the weeks after it are often when a case can still be reduced or stopped.

In this video, Michael Waddington explains what happens after charges are preferred, step by step, and what you should be doing while the government decides whether to refer your case to trial.

What does it mean when charges are preferred?

Preferral is the formal start of a court-martial prosecution. Under Rule for Courts-Martial 307, a person subject to the Uniform Code of Military Justice signs the charges under oath on a DD Form 458, the charge sheet, before an officer authorized to administer oaths. That person is called the accuser.

The accuser is usually your company commander. For covered offenses such as sexual assault, domestic violence, and murder, a special trial counsel from the Office of Special Trial Counsel may prefer the charges instead.

Under Rule for Courts-Martial 308, your immediate commander must inform you of the charges as soon as practicable. Usually you are called in and the charge sheet is read to you. From that moment, you are “the accused.”

Video: What Happens After Court-Martial Charges Are Preferred? | Military Lawyer Explains (3:58) — watch on YouTube

What happens after charges are preferred, step by step?

The order can vary by service and by case, but most preferred cases move through the same stages.

1. You are assigned a military defense lawyer. Your service’s defense organization details a military defense counsel to you if one is not already assigned. If you hired a civilian lawyer during the investigation, the two now work as a team.

2. The speedy-trial clock starts. Under Rule for Courts-Martial 707, the government generally has 120 days from preferral, or from earlier pretrial restraint such as pretrial confinement, to arraign you. Some delays are excluded, but the clock still gives your defense leverage.

3. Pretrial confinement or restriction is reviewed. If you are in pretrial confinement, Rule for Courts-Martial 305 requires a neutral review within seven days. If you are restricted to post or the barracks, follow that order to the letter.

4. An Article 32 preliminary hearing is scheduled. If the government wants a general court-martial, Article 32, UCMJ, and Rule for Courts-Martial 405 require a preliminary hearing unless you waive it. A preliminary hearing officer, usually a judge advocate, decides whether there is probable cause and recommends what should happen to the case.

5. Pretrial advice is prepared. Under Article 34, a convening authority cannot refer charges to a general court-martial without written advice from the staff judge advocate. For covered offenses, the special trial counsel makes the referral determination instead.

6. The referral decision is made. The convening authority, or the special trial counsel for covered offenses, decides whether to refer the charges to a court-martial, dismiss them, or send the case to another forum, such as nonjudicial punishment under Article 15 or an administrative separation board.

Does preferral mean I am going to trial?

No. Charges preferred are not charges referred. Only referral under Rule for Courts-Martial 601 sends your case to a court-martial with a military judge.

Many preferred cases are never referred. Some are dismissed, some are reduced, and some end in an Article 15 or an administrative separation instead. The time between preferral and referral is when your defense lawyer has the most room to work.

Can investigators still question me after charges are preferred?

Yes, they may try. Preferral does not close the investigation, and agents from CID, NCIS, OSI, or CGIS may keep gathering evidence and interviewing the people around you.

Once charges are preferred and you have a lawyer, the rules on questioning you about the charged offenses become stricter. Do not rely on that protection. If anyone asks about the case, say you want your lawyer and stop talking. Learn more about invoking your Article 31 rights.

How long does it take to go from preferral to referral?

It is usually a matter of weeks to a few months. Before a general court-martial referral, the Article 32 hearing must be held or waived, the hearing officer must write a report, and the pretrial advice must be prepared.

Delays requested by either side and approved by the proper authority can be excluded from the 120-day clock. That is why your lawyer should track the timeline from the day of preferral.

What to do right now

  1. Stay silent about the case with everyone except your lawyers, including friends, coworkers, and your chain of command.
  2. Meet with your defense team right away and give them the written account you prepared for your lawyer, plus names, messages, and documents.
  3. Follow every restriction, no-contact order, and military protective order exactly.
  4. Do not contact the accuser or any witness about the case, directly or through anyone else.
  5. Keep doing your job well, because your conduct now becomes part of the record if the case goes forward.
  6. Ask your lawyer about the Article 32 hearing, the speedy-trial timeline, and what can be submitted before referral.

Key takeaways

  • Preferral under Rule for Courts-Martial 307 is a sworn accusation, not a conviction and not a decision to go to trial.
  • Preferral generally starts the 120-day speedy-trial clock under Rule for Courts-Martial 707.
  • A general court-martial requires an Article 32 preliminary hearing, unless you waive it, and Article 34 pretrial advice.
  • For covered offenses, the Office of Special Trial Counsel, not your commander, decides whether to refer.
  • The period between preferral and referral is often your best chance to have charges dismissed, reduced, or sent to a lesser forum.

Video transcript

Transcript of the video “What Happens After Court-Martial Charges Are Preferred? | Military Lawyer Explains,” with Michael Waddington of Gonzalez & Waddington.

Read the full transcript of this video

What happens after court-martial charges are preferred? You’re formally accused. A 120-day speedy trial clock starts, and the case moves toward an Article 32 hearing and a referral decision that determines whether you actually go to trial. I’m Michael Waddington, civilian military defense lawyer and co-founder of Gonzalez & Waddington. Preferral is the moment the investigation becomes a prosecution, and here’s what the next few months look like.

First, what preferral is. Under Rule for Courts-Martial 307, preferral means someone, usually your company commander or a special trial counsel, swears to the charges on a DD Form 458, the charge sheet, in front of a commissioned officer. Under Rule 308, you must be informed of the charges as soon as practicable. That’s the day your commander reads you the charge sheet. You’re now the accused.

Here’s what follows, in order. One, your military defense counsel is assigned. This is when the Trial Defense Service, or your service’s defense office, details a lawyer to you. If you’ve had a civilian lawyer since the investigation, they now work as a team. Two, the speedy trial clock starts. Under Rule 707, the government has 120 days from preferral, or from pretrial confinement if that came first, to arraign you. Delays can be excluded, and often are, but the clock is real leverage. Three, pretrial confinement or restriction, if any. If you are confined, a magistrate reviews it within seven days. If you’re restricted to post or the barracks, that’s an order you follow to the letter.

Four, the Article 32 preliminary hearing. If the case is headed to a general court-martial, a preliminary hearing officer, usually a judge advocate, reviews the evidence, decides whether there’s probable cause, and recommends a disposition. You can waive it; whether you should is its own video. Five, the staff judge advocate’s advice. Under Article 34, before charges can be referred to a general court-martial, the SJA gives the convening authority written advice on whether the charges are warranted. Six, the referral decision. This is the fork in the road. The convening authority, or, for covered offenses like sexual assault and domestic violence, the special trial counsel, decides whether to refer the charges to a court-martial, dismiss them, or send them to a lesser forum like an Article 15 or a separation board. Charges preferred are not charges referred. Many preferred cases never get referred, and the time between the two is when your lawyer works hardest.

What should you be doing? Stay silent. The investigation is still open, and agents still interview after preferral. Follow every restriction and protective order. Meet with your defense team immediately and give them the written account you prepared for your lawyer. And understand that the charge sheet is the government’s opening position, not the verdict. At Gonzalez & Waddington, some of our best results happen between preferral and referral: charges dismissed, reduced, or sent to a forum where the client keeps their career.

So, what happens after charges are preferred? Defense counsel, the speedy trial clock, the Article 32, the SJA’s advice, and the referral decision. 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

Who can prefer court-martial charges?

Under Rule for Courts-Martial 307, any person subject to the UCMJ can prefer charges by signing them under oath. In practice it is usually your commander, or a special trial counsel for covered offenses.

Will I be told when charges are preferred?

Yes. Rule for Courts-Martial 308 requires your immediate commander to inform you of the charges as soon as practicable. Ask for a copy of the charge sheet and give it to your lawyer right away.

Can preferred charges be dropped?

Yes. Preferred charges can be withdrawn or dismissed before referral, or resolved through nonjudicial punishment, administrative separation, or a negotiated agreement. Whether that happens depends on the evidence and on what your defense presents before the referral decision.

Do I get a free military lawyer after charges are preferred?

Yes. You have the right to a detailed military defense counsel at no cost. You also have the right to hire a civilian defense lawyer at your own expense, and many service members use both.

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 Court-Martial Charges Are Preferred?

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