La. Admin. Code tit. 41 § II-502

Current through Register Vol. 50, No. 9, September 20, 2024

Section II-502 - Commander's Duties before Trial

A. General. Upon receiving a DD Form 458, Charge Sheet with its allied papers, a commander with authority to convene courts-martial must examine the file and decide which of the options available he will exercise. If he should decide to refer the case to trial, he incurs certain additional duties. While a commander must have a good understanding of the military justice system and his role in that system, he must never hesitate to consult with the SJA or trial counsel if any questions arise concerning the proper disposition of a case.

B. Insure there is a Case. One of the most frustrating experiences a commander can face is to charge an individual and send him to trial only to have the Military Judge or First Circuit Court of Appeal, or other appellate court, dismiss the case for failure of the specification to state an offense. Part IV of the Manual for Courts-Martial, United States, shall be consulted for discussions and descriptions of the crimes which constitute offenses under the LCMJ. The MCM also includes a discussion of the proof which is required to sustain a conviction for each offense. The "elements of the offense" are those facts which must be proved beyond a reasonable doubt in order to sustain a conviction. The adequacy of the specification should always be checked by the trial counsel before the case is referred to trial. In the event an offense is not alleged, the convening authority should return the DD Form 458, Charge Sheet to the accuser for correction. In the event such action is necessary, it should be expedited to insure that the accused is not denied his right to a speedy trial.

C. Insure the Evidence Supports the Allegations. It is also essential to insure that there is sufficient competent evidence to support the allegations in the charges. In processing charges, it is not necessary for a commander to await the results of a Criminal Investigation Division (CID) Laboratory analysis before he forwards the DD Form 458, Charge Sheet. If a service member has been found with marijuana in his possession and the company commander desires to charge him with a violation of Article 112a, LCMJ, he may begin processing the DD Form 458, Charge Sheet and send it forward even though the lab analysis has not been completed.

D. Consider the Individual Service member. In addition, the commander and the convening authority must inquire into the background of the individual offender before he can make an intelligent decision as how to dispose of the charges. There may be factors in the service member's background or adjustment to his unit which, in part, caused or contributed to commission of the offense. Such factors should be considered by the convening authority.

E. Disposition of Charges. There are several options available to the commander when processing military justice actions among the options are:

1. Dismissal. A commander may dismiss charges that have been preferred. A decision to dismiss a charge does not bar other disposition of the offense, such as administrative action or Article 15 punishment by the same commander, or preferral or repreferral of a charge by the same or a superior commander. Charges are ordinarily dismissed by lining out and initialing the deleted specification. When all charges and specifications are dismissed, the accused and the accuser should ordinarily be informed. A charge should be dismissed when it fails to state an offense, when it is unsupported by available evidence, or when there are other sound reasons why trial by court-martial is not appropriate on the charge. If an accused has already refused Article 15 punishment, but later requests that the Article 15 be reoffered, charges are usually dismissed after Article 15 punishment is imposed.

2. Returning Charges to Subordinate Authority. Instead of dismissing charges or taking other action, a commander may return the charges to a subordinate commander for whatever action the subordinate deems appropriate. This might occur if the commander did not think the offense was as serious as did the subordinate commander. When returning charges to a subordinate commander, the superior commander may not normally direct that the subordinate dispose of the charges in any particular way. Normally the superior commander should only indicate that the subordinate commander dispose of the charges by a means within the subordinate's authority. Otherwise, an issue of "unlawful command influence" may result.

3. Referring Charges to Trial. When an accused's prior record, the seriousness of the offense, and the needs for justice and discipline indicate that a trial by court-martial is warranted, the convening authority may dispose of the charge by referring it for trial by court-martial. The referral of a case to trial is accomplished by completing part V of the DD Form 458, Charge Sheet, authenticated by the signature of an adjutant under the command line of the convening authority. Factors to consider in this analysis include:

a. the charges should be referred to the lowest court which can adjudge an appropriate punishment [See Figure 4-1 for Table of Maximum Punishments];

b. consistent with the needs of discipline and justice, there should be relative uniformity (or proportionality) in the treatment of military justice violations;

c. a commander should also analyze the type of offense before him, and determine whether the offense is one where there is an identifiable victim involved (e.g. larceny), or whether it is a crime where no identifiable victim is involved (e.g. AWOL). In conjunction with this, he should look to see what injury or threat, if any, was inflicted upon the victim and, if so, whether the offender has made meaningful steps toward restitution;

d. an inquiry should be made to determine what evidence, if any, there is of premeditation, reflection, conspiracy, and the relative culpability among multiple offenders;

e. in deciding upon his action or recommendation, a commander should take into account the character and age of the accused as well as his previous military and civilian history. The offender's prior military and civilian record is, or course, only one factor among many that must be considered by a commander;

f. additionally, an offender's mental state should be considered along with any problems the service member may have. The convening authority should also consider any signs the individual has shown toward rehabilitation. If the individual has performed well since the commission of the offense and there seems to be rehabilitation potential present, then perhaps a referral to a lower level court-martial might be appropriate;

g. the recommendations of subordinates should be given their due weight since they are closest to the situation and most likely know the facts and probable repercussions of a military justice violation within the unit. Such reliance should be tempered by caution, however, in that the subordinate is also plagued with having the troublemaker in his unit

h. the previous disposition of similar offenses within the same command should also be considered, the administration of military justice should be even-handed in order to appear fair. If one service member is given an Article 15 for an offense and another service member is given a SPCM for the same offense under identical circumstances, the service members may perceive the system as unfair. Still, each case must be evaluated individually, and there will often be factors that point toward the need for different treatment of service members guilty of substantially similar wrongdoing.

i. Forwarding Charges to Superior Authority. The commander may feel that his power is inadequate to handle the case. If that is the case, then he must forward the file to a superior authority who's judicial or non-judicial powers are greater than his. For example, if a SCM convening authority believes that a punitive discharge is appropriate, he will have to forward the file through channels to the SPCMCA, the next highest authority who can convene a SPCM, the lowest court capable of adjudging a punitive discharge. [See Figure 5-1, Transmittal of Court-Martial Charges.]

4. Judge Advocate Advice. No charges shall be referred to a SPCM or GCM before the convening authority has consulted directly with the appropriate judge advocate or his representative for advice with regard to the investigation, disposition of the case, and guidance in procedural matters. [See Figure 5-2 for example of Judge Advocate Pretrial Advice.]

La. Admin. Code tit. 41, § II-502

Promulgated in accordance with the Office of the Governor, State Military Department, LR 35:2376 (November 2009).

AUTHORITY NOTE: Promulgated in accordance with R.S. 29:11(F).