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permit a punitive discharge in cases involving chronic
offenders. In no event, however, may the so-called
escalator clauses operate to exceed the jurisdictional
limits of a particular type of court-martial. With re-
spect to an SPCM, these three clauses have the fol-
lowing impact.
Three or more convictions—If an accused is con-
victed of an offense for which part IV, MCM, does not
authorize a DD, proof of three or more previous con-
victions by court-martial during the year preceding
the commission of any offense of which the accused
is convicted will allow an SPCM to adjudge a BCD,
forfeiture of two-thirds pay per month for 6 months,
and confinement for 6 months, even though that much
punishment is not otherwise authorized. In computing
the 1-year period, any unauthorized absence time is
excluded.
Two or more convictions—If an accused is con-
victed of an offense for which part IV, MCM, does not
authorize a punitive discharge, proof of two or more
convictions within 3 years preceding the commission
of any of the current offenses will authorize an SPCM
to adjudge a BCD, forfeiture of two-thirds pay per
month for 6 months, and, if the confinement autho-
rized by the offense is less than 3 months, confine-
ment for 3 months. For purposes of the second
escalator clause, periods of unauthorized absence are
excluded in computing the 3-year period.
Two or more offenses—If an accused is convicted
of two or more separate offenses, none of which
authorize a punitive discharge, and if the authorized
confinement for these offenses totals 6 months or
more, an SPCM may adjudge a BCD and forfeiture of
two-thirds pay per month for 6 months.
PRETRIAL ASPECTS OF GENERAL
COURTS-MARTIAL
The GCM is the highest level of court-martial in
the military justice system. Such a court-martial may
impose the greatest penalties provided by military law
for any offense. The GCM is composed of a minimum
of five members, a military judge, and lawyer counsel
for the government and the accused. In some cases,
the court is composed of a military judge and counsel,
The GCM is created by the order of a flag or general
officer in command in much the same manner as the
SPCM is created by subordinate commanders. Before
a trial by GCM may lawfully occur, a formal investi-
gation of the alleged offenses must be conducted and
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a report forwarded to the OEGCMJ. This pretrial
investigation (often referred to as an Article 32 inves-
tigation) is normally convened by an SCM CA. This
section will discuss the legal requisites of the pretrial
investigation.
NATURE OF THE PRETRIAL
INVESTIGATION
The formal pretrial investigation (Article 32,
UCMJ) is the military equivalent of the grand jury
proceeding in the civilian criminal procedure. The
purpose of this investigation is to inquire formally
into the truth of allegations contained in a charge
sheet, to secure information pertinent to the decision
on how to dispose of the case, and to aid the accused
in discovering the evidence against which he or she
must defend himself or herself. Basically, this inves-
tigation is protection for the accused; but it is also a
sword for the prosecutor who may test his or her case
for its strength in such a proceeding and seeks its
dismissal if too frail or if groundless.
Authority to Direct
An Article 32, UCMJ, investigation may be di-
rected by one authorized by law to convene an SCM
or some higher level of court-martial. As is true of all
other forms of convening authority, the power to or-
der the Article 32, UCMJ, investigation vests in the
office of the commander.
Mechanics of Convening
When the SCM or higher CA receives charges
against an accused that are serious enough to warrant
trial by a GCM, the CA directs a pretrial investigation,
This is done by written orders of the CA, which assign
personnel to participate in the proceedings. At the
time the investigation is ordered, the charge sheet will
have been completed up to, but not including, the
referral block on page 2. Unlike courts-martial, pre-
trial investigations are directed as required, and stand-
ing orders for such proceedings are inappropriate.
Also unlike courts-martial, there is no separate refer-
ral of a case to a pretrial investigation since the order
creating the investigation also amounts to a referral of
the case to the pretrial investigation. The original
appointing order is sent to the assigned investigating
officer along with the charge
blank Investigating Officer’s
sheet, allied papers, and
Report, DD Form 457.
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