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Page Title: Pretrial Aspects of General Courts-Martial
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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 7-21 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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