New York Codes, Rules and Regulations › Title 9 - EXECUTIVE DEPARTMENT › Subtitle L - Division of Military and Naval Affairs › Chapter IV - Military Justice › Part 516 - Rules For Courts-martial › Section 516.6 - Referral, service, amendment and withdrawal of charges

Current through Register Vol. 46, No. 28, July 10, 2024
(a) Referral.
(1) In general. Referral is an order of a
				  convening authority that charges against an accused will be tried by a
				  specified court-martial.
(2) Who
				  may refer. Any convening authority may refer charges to a court-martial
				  convened by that convening authority or a predecessor, unless the power to do
				  so has been withheld by superior competent authority.
(3) Disqualification. An accuser may not
				  refer charges to a general or special court-martial.
(4) When charges may be referred.
(i) Basis for referral. If the convening
				  authority finds or is advised by a judge advocate that there are reasonable
				  grounds to believe that an offense triable by a court-martial has been
				  committed and that the accused committed it, and that the specification alleges
				  an offense, the convening authority may refer it. The finding may be based on
				  hearsay in whole or in part. The convening authority or judge advocate may
				  consider information from any source and is not limited to the information
				  reviewed by any previous authority, but a case may not be referred to a general
				  court-martial except in compliance with subparagraph (ii) of this paragraph.
				  The convening authority or judge advocate is not required before charges are
				  referred to resolve legal issues, including objections to evidence, which may
				  arise at trial.
(ii) General
				  courts-martial. The convening authority may not refer a specification under a
				  charge to a general court-martial unless:
(a)
				  there has been substantial compliance with the pretrial investigation
				  requirements of N.Y.R.C.M. 405; and
(b) the convening authority has received the
				  advice of the staff judge advocate required under N.Y.R.C.M. 406.
These requirements may be waived by the accused.
(5) How
				  charges are referred.
(i) Order,
				  instructions. Referral is made by the personal order of the convening
				  authority. The convening authority may include proper instructions in the
				  order.
(ii) Joinder of offenses. In
				  the discretion of the convening authority, two or more offenses charged against
				  an accused may be referred to the same court-martial for trial, whether serious
				  or minor offenses or both, regardless whether related. Additional charges may
				  be joined with other charges for a single trial at any time before arraignment
				  if all necessary procedural requirements concerning the additional charges have
				  been compiled with. After arraignment of the accused upon charges, no
				  additional charges may be referred to the same trial without consent of the
				  accused.
(iii) Joinder of accused.
				  Allegations against two or more accused may be referred for joint trial if the
				  accused are alleged to have participated in the same act or transaction or in
				  the same series of acts; or transactions constituting an offense or offenses.
				  Such accused may be charged in one or more specifications together or
				  separately, and every accused need not be charged in each specification.
				  Related allegations against two or more accused which may be proved by
				  substantially the same evidence may be referred to a common trial.
(6) Superior convening
				  authorities. Except as otherwise provided in these rules, a superior competent
				  authority may cause charges, whether or not referred, to be transmitted to that
				  authority for further consideration, including, if appropriate,
				  referral.