§ 834. Art. 34. Advice to convening authority before referral for trial

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(a)General Court-martial.—

(1)Staff judge advocate advice required before referral.— Subject to subsection (c), before referral of charges and specifications to a general court-martial for trial, the convening authority shall submit the matter to the staff judge advocate for advice, which the staff judge advocate shall provide to the convening authority in writing. The convening authority may not refer a specification under a charge to a general court-martial unless the staff judge advocate advises the convening authority in writing that—

(A)the specification alleges an offense under this chapter;

(B)there is probable cause to believe that the accused committed the offense charged; and

(C)a court-martial would have jurisdiction over the accused and the offense.

(2)Staff judge advocate recommendation as to disposition.— Together with the written advice provided under paragraph (1), the staff judge advocate shall provide a written recommendation to the convening authority as to the disposition that should be made of the specification in the interest of justice and discipline.

(3)Staff judge advocate advice and recommendation to accompany referral.— When a convening authority makes a referral for trial by general court-martial, the written advice of the staff judge advocate under paragraph

(1)and the written recommendation of the staff judge advocate under paragraph

(2)with respect to each specification shall accompany the referral.

(b)Special Court-martial; Convening Authority Consultation With Judge Advocate.— Subject to subsection (c), before referral of charges and specifications to a special court-martial for trial, the convening authority shall consult a judge advocate on relevant legal issues.

(c)Covered Offenses.— A referral to a general or special court-martial for trial of charges and specifications over which a special trial counsel exercises authority may only be made—

(1)by a special trial counsel, subject to a special trial counsel’s written determination accompanying the referral that—

(A)each specification under a charge alleges an offense under this chapter;

(B)there is probable cause to believe that the accused committed the offense charged; and

(C)a court-martial would have jurisdiction over the accused and the offense; or

(2)in the case of charges and specifications that do not allege a covered offense and as to which a special trial counsel declines to prefer or, in the case of charges and specifications preferred by a person other than a special trial counsel, refer charges, by the convening authority in accordance with this section.

(d)General and Special Courts-martial; Correction of Charges and Specifications Before Referral.— Before referral for trial by general court-martial or special court-martial, changes may be made to charges and specifications—

(1)to correct errors in form; and

(2)when applicable, to conform to the substance of the evidence contained in a report under section 832(c) of this title (article 32(c)).

(e)Referral Defined.— In this section, the term “referral” means the order of a convening authority or, with respect to charges and specifications over which a special trial counsel exercises authority in accordance with section 824a of this title (article 24a), a special trial counsel, that charges and specifications against an accused be tried by a specified court-martial.