is mandatory. The record of proceedings must reflect
compliance with the Privacy Act. JAGMAN, appendix
A-2-a, should be used.
Because of wide circulation of reports of
investigation, classified information should be omitted
unless inclusion is essential. When classified matter is
included in the investigative report, the report should be
assigned classification of the highest subject matter
contained therein. Encrypted versions of messages should
not be included or attached to investigative reports where
the content or substance of such message is divulged.
Investigative reports for an administrative
fact-finding body not required to conduct a hearing
should be submitted in letter form. Normally, the report
will consist of a preliminary statement, findings of fact,
opinions, recommendations, and enclosures. (See the
example in JAGINST 5800.7C, appendix A-2-e.)
REPORT OF OFFENSE
Any person may report an offense subject to trial by
court-martial. Ordinarily, any military authority who
receives a report of an offense should forward as soon
as possible the report and any accompanying
information to the immediate commander of the suspect.
Competent authority superior to that commander may
direct otherwise. Upon receipt of a report, the immediate
commander of a suspect should refer to Rules for
Courts-Martial (R.C.M.) 306 for initial disposition.
Each commander has the discretion to dispose of
offenses by members of that command. Ordinarily the
immediate commander of a person accused or suspected
of committing an offense triable by court-martial
initially determines how to dispose of that offense. A
superior commander may withhold the authority to
dispose of offenses in individual cases, types of cases,
or generally. A superior commander may not limit the
discretion of a subordinate commander to act on cases
over which authority has not been withheld.
Allegations of offenses should be disposed of in a
timely manner at the lowest appropriate level of
disposition listed in R.C.M. 306. The disposition
decision is one of the most important and difficult
decisions facing a commander. Many factors must be
taken into consideration and balanced, including, to the
extent practical, the nature of the offenses, any
mitigating or extenuating circumstances, the character
and military service of the accused, any
recommendations made by subordinate commanders,
the interests of justice, military exigencies, and the
effect of the decision on the accused and the command
The goal should be a disposition that is warranted,
appropriate, and fair.
Within the limits of the commanders authority, a
commander may take the following actions to initially
dispose of a charge or suspected offense:
No action. A commander may decide to take no
action on an offense. If charges have been preferred,
they may be dismissed.
Administrative action. A commander may take or
initiate administrative action, in addition to or instead of
other action taken under R.C.M. 306, subject to
regulations of the Secretary concerned. Administrative
actions include corrective measures, such as counseling,
admonition, reprimand, exhortation, disapproval,
criticism, censure, reproach, rebuke, extra military
instruction, or the administrative withholding of
privileges, or any combination of the above.
Nonjudicial punishment. A commander may
consider the matter pursuant to Article 15, nonjudicial
Disposition of charges. Charges maybe disposed of
according to R.C.M. 401.
Forwarding for disposition. A commander may
forward a matter concerning an offense, or charges, to
a superior or subordinate authority for disposition.
National security matters. If a commander not
authorized to convene general courts-martial finds that
an offense warrants trial by court-martial, but believes
that trial would be detrimental to the prosecution of a
war or harmful to national security, the matter should be
forwarded to the general court-martial convening
authority for action under R.C.M. 407(b).
PREFERRAL OF CHARGES
Any person subject to the code may prefer charges.
No person may be ordered to prefer charges if that
person is unable to make truthfully the required oath. A
person who has been the accuser or nominal accuser
may not also serve as the convening authority of a
general or special court-martial to which the charges are
later referred. However, a summary court-martial
convening authority is not disqualified by being the
accuser. Charges may be preferred against a person
subject to trial court-martial at anytime but should be
preferred without unnecessary delay.