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Page Title: Preferral of Charges
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Preliminary  Inquiry Every  court-martial  case  begins  with  a  complaint by someone that a person subject to the UCMJ has committed an offense that results in the discovery of misconduct.  The  officer  exercising  immediate  NJP authority over the accused has the duty to make, or cause  to  be  made,  an  inquiry  into  the  truth  of  the complaint  or  apparent  wrongdoing. Preferral  of  Charges Charges are formally made against an accused when signed and sworn to by a person subject to the UCMJ.  This  procedure  is  known  as  preferral  of charges. You prefer charges by executing the appro- priate  portions  of  the  charge  sheet.  There  are  several steps involved in this preferral process. These steps include the following: 1. Personal data—Complete part I of page 1 of the charge sheet first. You can find the information relating to personal data in the pertinent portions of the ac- cused’s  service  record. 2.  The  charges—Next,  you  complete  part  II  of page 1 of the charge sheet indicating the precise mis- conduct  involved  in  the  case.  Each  punitive  article found in part IV, MCM, 1984, contains sample specifi- cations. If the charges are so numerous that they will not all fit in part II, place them on a separate piece of paper and refer to it as attachment A. The preparation of charges and specifications were dealt with in detail in chapter 6. 3. Accuser—The accuser is a person subject to the UCMJ who signs item 11 in part III at the bottom of page 1 of the charge sheet. The accuser swears to the truth of the charges and has the affidavit executed before an officer authorized to administer oaths. This step is important, as an accused has a right to refuse trial on unsworn  charges. 4. Oath—The oath must be administered to the accuser and the affidavit shows that it was executed by a person with proper authority. Article 136, UCMJ, authorizes  commissioned  officers  who  are  judge  advo- cates,  staff  judge  advocates  (SJAs),  legal  officers,  law specialists, SCM officers, adjutants, and Marine Corps and  Navy  commanding  officers,  among  others,  to  ad- minister oaths for this purpose. Also authorized to ad- minister  oaths  are  officers  certified  by  the  Judge Advocate General of the Navy as counsel under Article 27,  UCMJ,  all  officers  in  paygrade  O-4  and  above, executive officers, and administrative officers of Ma- rine Corps aircraft squadrons. Often the legal officer will  administer  the  oath  regardless  of  who  conducted the preliminary inquiry. When the charges are signed and sworn to, they are preferred against the accused. Informing  the  Accused The next step that you take is to inform the ac- cused of the charges against him or her. The purpose of this step is to provide an accused with reasonable notice  of  impending  criminal  prosecution.  This  action is  in  compliance  with  the  criminal  due  process  of  law standards.  The  immediate  commander  of  the  accused is required to have the accused informed as soon as possible  of  the  following  elements:  (1)  the  charges preferred  against  him  or  her;  (2)  the  name  of  the person who preferred the charges; and (3) the name of the  person  who  ordered  the  charges  to  be  preferred. The person who gives notice to the accused exe- cutes block 12 at the top of page 2 of the charge sheet. If not the immediate commander of the accused, the person signing on the signature line should state his or her rank, component, and authority. The law does not require a formal hearing to provide notice to the ac- cused, but the charge sheet must show that notice was given. When the accused is absent without leave at the time charges are sworn, it is permissible and proper to execute the receipt certification even though the ac- cused  cannot  be  advised  of  the  existence  of  the charges.  In  such  cases,  attach  a  statement  indicating the reason for the lack of notice to the case file. When the  accused  returns  to  military  control,  the  notice should then be given. Once formal charges have been signed and sworn to, the preferral process is complete. The preferred charges are then receipted for by the officer exercis- ing  SCM  jurisdiction  over  the  accused.  This  officer  or his or her designee may formally receipt for the pre- ferred charges. The purpose of this receipt certifica- tion is to stop the running of the statute of limitations for the offense charged. The receipt section, part IV of the charge sheet, is filled in now. The Act of Referral Once the charge sheet and the supporting materi- als are presented to the SCM CA and he or she decides to refer the case to an SCM, he or she must send the case  to  one  of  the  SCMs  previously  convened.  You complete  this  procedure  by  means  of  completing 7-3

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