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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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