Louisiana Administrative Code › Title 41 - MILITARY FORCES OF THE STATE › Part II - Military Justice › Chapter 5 - Pretrial Procedures › Section II-502 - Commander's Duties before Trial

Current through Register Vol. 50, No. 6, June 20, 2024
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.]