La. Admin. Code tit. 41 § II-510

Current through Register Vol. 50, No. 8, August 20, 2024

Section II-510 - Preferral and Transmittal of Charges

A. Preferral. Section III of the Charge Sheet is the preferral of charges. The person who believes that the specifications are true signs in block 11d as the accuser. The reference in the affidavit to the "Uniform Code of Military Justice" should be changed to read "Louisiana Code of Military Justice" by deleting the word "Uniform" and substituting in its place the word "Louisiana. While any person subject to the Louisiana Code of Military Justice may be an accuser, it is customary for the Unit Commander to sign as the accuser. A superior authority may not order anyone to act as accuser. The signing of the Charge Sheet by the accuser must be done in the presence of a commissioned officer serving in the capacity of Adjutant, Assistant Adjutant, acting Adjutant, or Personnel Adjutant. [See LCMJ Article 136.] Each unit is authorized to detail in writing an officer in the capacity of acting Adjutant for the purpose of taking such oaths.

B. Informing the Accused. After charges have been preferred, the accused's commanding officer or his designated representative will inform the accused of the charges preferred against him, and will sign the certificate confirming such that is located at the top of page two of the Charge Sheet. This individual shall also advise the accused regarding his right to consult with legal counsel pursuant to LCMJ Article 20. When, because of the unavailability of the accused, this notice cannot be accomplished by reading the charges to him, a letter notifying him of the charges mailed by first class mail to the accused at his address as shown on the unit alert roster will suffice, but the certificate will be amended to reflect that the accused was informed of the charges by mail.

C. Receipt by the Summary Court-Martial Convening Authority. The unit commander next will have all copies of the Charge Sheet and related papers promptly sent to the commander exercising summary court-martial jurisdiction over his unit. This is normally the battalion or squadron commander. The summary court-martial authority or his representative (preferably the S-1) will indicate the time the sworn charges were received and sign the receipt of charges on Page two, Section IV.

D. Referral of Charges for Trial by Courts-Martial. If the convening authority decides to refer the case to trial by court-martial, the appropriate block in Section V of the Charge Sheet should be completed. Ordinarily in the Louisiana National Guard, such referral will be to a summary court-martial and the Charge Sheet should be delivered to the summary court officer, with the convening authority retaining a copy for his records. In lieu of referring the charges for disposition by court-martial, the convening authority may impose non-judicial punishment on the accused, or, if he determines that neither judicial nor non-judicial action is indicated, he may dismiss the charges. The convening authority, in any case, should advise the unit Commander who initiated the charges of his decision.

E. Service of Charges. Section V of the Charge Sheet also contains in the last item the service of the charges. In summary courts-martial, the most common type of court-martial held in the Louisiana National Guard, this service will ordinarily be accomplished by the summary court officer. If the charges have been referred to a special or general court-martial, the service will be accomplished by the trial counsel or at his direction. If, at time of preparation of the Charge Sheet, the accused is present at either at a unit training assembly or annual training, a copy of the Charge Sheet, and a copy of Notice of Court Martial, [See Figure 6-1] will be furnished the accused by the summary court officer or other official who will then sign the certificate which is the last item on page two of the Charge Sheet. At times other than annual training or unit training assemblies, the summary court officer will either serve the accused personally or mail a copy of the Charge Sheet and any Notice of Trial to the accused by first class mail to his home address as shown on the Unit Alert Rosters. A copy will also be furnished to any attorney of record representing the accused whose whereabouts are known or may reasonably be ascertained. A certificate of such service along with the date thereof shall be made part of the record. Service may be waived in writing by either the accused or his counsel. Unless waived, the delay for service of the charges upon the accused or his counsel must be accomplished not later than:

1. five days before trial for GCM;

2. three days before trial for SPCM;

3. 24 hours before trial for SCM. [See, generally, LCMJ Article 35; R.C.M. 602.]

La. Admin. Code tit. 41, § II-510

Promulgated in accordance with the Office of the Governor, State Military Department, LR 35:2382 (November 2009).

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