West Virginia Code of State Rules › Agency 141 - Adjutant General › Title 141 - LEGISLATIVE RULE ADJUTANT GENERAL › Series 141-49 - Military Justice › Section 141-49-4 - Pretrial Procedure

Current through Register Vol. XLI, No. 28, July 12, 2024
4.1.
				Preparation of Charge Sheet.
4.1.a. General.
				-- In preparing charges for trial by courts-martial, the unit commander will
				use the current DD Form 458, Charge Sheet. Detailed instructions for completing
				the Charge Sheet may be found at MCM, R.C.M. 307 and DD Form 458. An example of
				a completed Charge Sheet is located at MCM, appendix 4. Any person subject to
				the USCMJ may prefer charges, but trial counsel should always draft or review
				charges before they are preferred. While the unit commander is responsible for
				the preparation of the Charge Sheet, there is no legal requirement that he do
				it personally. He should, however, supervise its prompt and proper preparation
				and forwarding. Once the charge and specification has been prepared and signed
				under oath, it is a public record, and other than minor administrative changes,
				should not be altered, except upon the advice of a judge advocate. For minor
				administrative or typographical corrections, the officer making same should
				initial in the margin the correction.
4.1.b. Timeliness. -- When the Unit Commander
				has made the decision to prefer court-martial charges and to recommend trial by
				courts-martial, he should promptly dispose of the matter. It is longstanding
				military policy, both in the active forces and in the National Guard that
				military justice be given priority.
4.1.c. Personal Data. -- Section I of the
				Charge Sheet is personal data concerning the accused. This information is
				generally found in the accused's personnel file. The unit commander should have
				reviewed this personnel file before making his decision on disposition of the
				offense during his preliminary investigation. The accused's "grade or rank"
				(Block 3) is his military title (such as PFC) and his "pay grade" (Block 4) is
				his numerical designation (such as E-3). The initial date of the accused's
				current service is the date of his latest enlistment (Block 6). Paragraph 7
				"Pay per Month" is the normal MUTA-4 pay which the accused would receive for
				one month to be inserted in the "basic" block. Members of the West Virginia
				National typically do not receive "sea or foreign duty pay". Block 8, entitled
				"nature of restraint of accused" should show all types of restraint imposed,
				and block 9 should show the corresponding duration (inclusive dates) of the
				restraint and any changes.
4.1.d.
				Charges and Specifications.
4.1.d.1. General.
				-- Section II of the Charge Sheet is the section for charges and
				specifications. This is the most important part of the Charge Sheet. The
				instructions for drafting charges and specifications in Appendix 6, MCM, should
				be followed when applicable. The "charge" indicates the section of the Uniform
				State Code of Military Justice violated. Since DD Form 458, Charge Sheet, is a
				federal form, the reference in Section II to a "violation of the UCMJ, Section
				__" should be changed to "violation of the Uniform State Code of Military
				Justice, Section __." The "specification," which is under the charge, must be
				written so that it clearly advises the accused of the date, time, place and
				circumstances of the alleged offense against him. The specification states the
				facts and circumstances which constitute a violation of the particular section
				of the USCMJ alleged to be violated. Neither the misdesignation of a section
				nor the failure to designate any section is ordinarily material so long as the
				specification alleges an offense over which courts-martial have
				jurisdiction.
4.1.d.2.
				Abbreviations. -- Dates and times should be written in Arabic numerals, and the
				designation of organization or command my include numerals. The armed force,
				namely "West Virginia Army National Guard" or "West Virginia Air National
				Guard" may be abbreviated "WVARNG" and "WVANG," respectively. Otherwise,
				abbreviations should not be used in specifications.
4.1.d.3. Numbering of Charges and
				Specifications. -- If there is only one charge, it is not numbered. When there
				is more than one charge, each is numbered with a Roman numeral. [R.C.M.
				307(c)(2).] When there is more than one specification under a charge, the
				specification under that charge should be numbered, using Arabic numerals, 1,
				2, 3, etc.
4.1.d.4. Designation of
				Charges. -- Except for certain offenses, all charges should be laid under the
				applicable sections of the USCMJ. For example, in the case of absence without
				leave, the charge should be: Violation of the Uniform State Code of Military
				Justice, Section 86.
4.1.d.5. Name
				and Description of the Accused. -- The name of the accused as stated in the
				specification should include his rank and, if necessary, his pay grade. The
				name of the accused should be also accompanied by his organization and armed
				force. In the ordinary case of an enlisted person, for example, the
				specification would read, "In that Private John J. Smith, Company D 1092d Engr
				Bn, WVARNG, did...," etc.
4.1.d.6.
				Time and Place of Offense. The time and place of the commission of the alleged
				offense should be stated in the specification with sufficient precision to
				identify the offense and enable the accused to understand what particular act
				or omission he is called upon to defend. It is proper pleading to allege that a
				particular offense occurred "on or about" a certain day, or if it is necessary,
				to be more explicit as to the time, "at or about" a certain hour. For example,
				in the case of absence without leave, it is proper to allege that accused
				failed to go to his place of duty "on or about 2 May 1987 at or about 0800
				hours" and remained so absent until "on or about 2 May 1987 at or about 1200
				hours."
4.1.d.7. Alleging Separate
				Offenses. Each alleged offense should be set forth in a separate specification.
				Thus, in case of absence without leave, each unauthorized absence should be
				alleged in a separate specification under one charge.
4.1.e. Specimen Charges. The following
				specimen charge is set forth as an example which incorporates the foregoing
				principals of drafting charges and specifications:
"CHARGE: Violation of the Uniform State Code of Military
				  Justice, Section 86. SPECIFICATION: In that Private First Class John J. Smith,
				  WVARNG, 1092d Engr Bn. did, on or about 2 May 1987 at or about 0800 hours,
				  without proper authority fail to go at the time prescribed to his place of duty
				  at which he was required to be, to wit: at unit training assembly of HSC, 1092d
				  EN BN at Parkersburg, West Virginia."
4.1.f. Informing Accused of Charges. Prior to
				forwarding the charges, the immediate commander will inform the accused of the
				charges against him and complete and sign the certificate to that effect on the
				Charge sheet. When, because of the unavailability of the accused, it is
				impractical to comply with the requirement, a report of the circumstances will
				be included in the letter forwarded with the charges (MCM, R.C.M. 308)(See
				Attachment 3).
4.1.g. Signing and
				Swearing to Charges. The oath to the charges must be executed before a person
				authorized by section 136, USCMJ to administer oaths.
4.1.h. Action by Officer Exercising Summary
				Courts-Martial Jurisdiction:
4.1.h.1. Date of
				Receipt. Immediately upon receipt of sworn charges against a member of his
				command, the officer exercising summary courts-martial jurisdiction will cause
				the hour and date of receipt to be entered in the space provided on the Charge
				Sheet (MCM, R.C.M. 403).
4.1.h.2.
				Informing Accused of Charges. If, when charges are received by the officer
				exercising summary courts-martial jurisdiction it appears that the accused has
				not been advised of the charges against him, the action prescribed in paragraph
				4.1.f. will be taken.
4.1.h.3.
				Investigation. If the charges are so serious that it may be appropriate to
				forward them with a recommendation for trial by general courts-martial, the
				officer exercising summary courts-martial jurisdiction will appoint an officer
				to investigate the charges in accordance with Section 32, USCMJ.
4.1.h.4. Disposition of Charges by Trial.
				Unless competent superior authority has directed otherwise, the officer
				exercising summary court-martial jurisdiction may, as a result of preliminary
				inquiry or formal investigation, dismiss all or part of any charges that have
				been preferred. If he determines that some punishment should be adjudged and
				that trial by summary court-martial is appropriate, he should complete the
				Charge Sheet in the prescribed manner and transmit the charges and all
				supporting documents to the summary court-martial. If he is so empowered and
				determines that trial by special court martial is appropriate, he should
				complete the endorsement in the prescribed manner and transmit the charges and
				allied papers to the trial counsel of the court.
4.1.h.5. Forwarding Charges. When trial by a
				special or general court-martial is deemed appropriate and he is not empowered
				to convene a court for a trial of the case, the officer who exercises summary
				court-martial jurisdiction will forward the charges and necessary supporting
				documents (ordinarily through the chain of command) to the officer exercising
				the appropriate kind of court-martial jurisdiction in accordance with MCM,
				R.C.M. 401.
4.1.h.6. Service of
				Charges on Accused. Prior to the trial, a copy of the charge or charges must be
				served on the accused in accordance with MCM, R.C.M. 308, 602. The person who
				served the charges and the written order shall complete and sign the return of
				service on the bottom of the Charge Sheet.