TRIAL STAGES: Pretrial:  Referral

2019 (October Term)

United States v. Bergdahl, 80 M.J. 230 (there is no requirement that a convening authority adopt the recommendations of an Article 32, UCMJ, preliminary hearing officer). 

2011 (September Term)

United States v. Ballan, 71 M.J. 28 (action by the convening authority showing an intent to refer a particular charge to trial is sufficient to satisfy the jurisdictional requirement of the Rules for Court-Martial). 

(each charge before the court-martial must be referred to it by competent authority; referral is defined as the order of a convening authority that charges against an accused will be tried by a specified court-martial). 

(although the referral order is a jurisdictional prerequisite, the form of the order is not jurisdictional). 

(where the convening authority refers one offense to court-martial on the charge sheet, but enters into a pretrial agreement whereby he agrees to accept a plea of guilty from appellant to a different charge that is also not an LIO of the original charge, a court-martial has jurisdiction over the latter offense because implicit in the convening authority’s entry into a pretrial agreement was his personal decision that the charge be referred to court-martial; the convening authority’s entry into the pretrial agreement was the functional equivalent of a referral order). 

(major changes or amendments to charges or specifications may not be made over the objection of an accused unless the charge or specification affected is preferred anew; in this case, changing the charge from a violation of Article 120, UCMJ, to a violation of Article 134, UCMJ, was, a major change; however, appellant not only did not object to the change, he proposed the change in his pretrial agreement, explained to the military judge why he was guilty before the plea was accepted, and benefited from the amendment; appellant’s actions were the equivalent of agreeing to an amendment to the charge and specification, even though the charge sheet itself was not physically amended). 


United States v. Williams, 55 MJ 302 (when a specific general court-martial convening authority retired and a superior general court-martial convening authority withdrew authority to convene general courts-martial from the subordinate’s successor, the superior general court-martial convening authority thereafter acted as a successor convening authority and had ample authority to withdraw previously referred charges and re-refer them to a different general court-martial convening order).

(although it is preferable for a convening authority to indicate his or her intent expressly, it is reasonable to presume that re-referral of a charge by a proper convening authority implies a decision to withdraw that charge from a prior referral).

(under the circumstances of this case, the convening authority’s intent to withdraw previously referred charges was implicit in his re-referral of those charges to a different general court-martial convening order; any administrative deficiency in memorializing this process was insubstantial and did not deprive the court-martial of jurisdiction).

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