Section 2 — Considerations in All Cases | Manual for Courts-Martial

Appendix 2.1 · Disposition Guidance

Section 2. Considerations in All Cases

2024 Manual for Courts-Martial, United States

2.1. Interests of Justice and Good Order and Discipline The military justice system is a powerful tool that promotes justice and assists in maintaining good order and discipline while protecting the rights of Service members. In determining whether the interests of justice and good order and discipline are served by trial by court-martial or other disposition in a case, the factors listed below should be considered. The weight and priority given to each of these factors may vary depending on the facts and circumstances of the case.

(a) Whether admissible evidence will probably be sufficient to obtain and sustain a finding of guilty in a trial by court-martial when viewed objectively by an unbiased factfinder;

(b) The truth-seeking function of trial by court-martial;

(c) The nature, seriousness, and circumstances of the alleged offense and the accused’s culpability in connection with the alleged offense;

(d) Input, if any, from law enforcement agencies involved in or having an interest in the specific case;

(e) The accused’s willingness to cooperate in the investigation or prosecution of others;

(f) The accused’s criminal history or history of misconduct, whether military or civilian, if any;

(g) The probable sentence or other consequences to the accused of a finding of guilty;

(h) The impact and appropriateness of alternative disposition options—including nonjudicial punishment or administrative action—with respect to the accused’s potential for continued service and the responsibilities of the command with respect to justice and good order and discipline.

(i) In cases involving an individual who is a victim of the alleged offense as defined by Article 6b(b), that individual’s views as to disposition;

(j) The extent of the harm caused to any victim of the alleged offense;

(k) The availability and willingness of the victim of the alleged offense and other witnesses to testify;

(l) The effect of the alleged offense on the morale, health, safety, welfare, and good order and discipline of the command;

(m) The extent to which the conduct tends to bring discredit upon the armed forces;

(n) Whether the alleged offense occurred during wartime, combat, or contingency operations; and

(o) The mission-related responsibilities of the command.

2.2. Consultation with a Judge Advocate Commanders and convening authorities shall at all times communicate directly with their assigned judge advocates in matters relating to the administration of military justice (see R.C.M. 105).

2.3. Referral

(a) Probable cause must exist for each charge and specification referred to a court-martial (see R.C.M. 601(d)(1)). In addition to the consideration required by R.C.M. 601(d)(2),² when making a referral decision, the referral authority should also consider the matters described in paragraph 2.1 of this appendix.

(b) A special trial counsel should not refer, and a staff judge advocate or other judge advocate involved in the disposition process should not recommend that a convening authority refer, a charge to a court-martial unless the special trial counsel, staff judge advocate, or other judge advocate believes that the Service member’s conduct constitutes an offense under the UCMJ and that the admissible evidence will probably be sufficient to obtain and sustain a finding of guilty when viewed objectively by an unbiased factfinder.

(c) A convening authority should not refer a charge to a court-martial unless the admissible evidence will probably be sufficient to obtain and sustain a finding of guilty when viewed objectively by an unbiased factfinder. In assessing whether there is sufficient admissible evidence, a convening authority should consider the advice of a staff judge advocate or other judge advocate authorized to provide pretrial advice.

Footnote 2

“Referral authorities shall consider whether the admissible evidence will probably be sufficient to obtain and sustain a conviction.” Rule for Courts-Martial 601(d)(2), Manual for Courts-Martial, United States (2024 ed.).

2.4. Determining the Charges and Specifications to Refer A referral authority should avoid referring multiple charges when they would:

(a) Unnecessarily complicate the prosecution of the most serious readily provable alleged offense or offenses;

(b) Unnecessarily exaggerate the nature and extent of the accused’s alleged criminal conduct or add unnecessary confusion to the issues at court-martial;

(c) Unnecessarily expose the accused to a harsher potential sentence or range of punishments than the circumstances of the case justify; or

(d) Be disposed of more appropriately through an alternative disposition.

2.5. Determining the Appropriate Type of Court-Martial In determining the appropriate type of court-martial, a convening authority should consider the advice of a staff judge advocate or other judge advocate authorized to provide pretrial advice. Additionally, a referral authority should consider:

(a) The interests of justice and good order and discipline (see paragraph 2.1);

(b) The authorized maximum and minimum punishments for the charged offenses;

(d) Whether the type of court-martial would unnecessarily expose the accused to a harsher potential sentence or range of punishments than the circumstances of the case justify; and

(e) Whether the potential of the accused for rehabilitation and continued service would be better addressed in a specific type of court-martial.

2.6. Alternatives to Referral In determining whether to refer charges and specifications, a referral authority should consider whether an adequate alternative to referral exists. If an adequate alternative to referral exists, in addition to the considerations in paragraph 2.1, a referral authority should consider:

(a) The effect of the alternative disposition on the interests of justice and good order and discipline;

(b) The options available under the alternative disposition;

(d) The likelihood of an effective outcome.

2.7. Inappropriate Considerations The disposition determination must not be influenced by:

(a) The accused’s race; ethnicity; religion; sex; gender (including gender identity); sexual orientation; national origin; or lawful political association, activities, or beliefs;

(b) The personal feelings of anyone authorized to recommend, advise, or make a decision as to disposition of alleged offenses concerning the accused, the accused’s associates, the victim of the alleged offense, or any witness;

(d) The possible effect of the disposition determination on the commander’s, convening authority’s, or special trial counsel’s military career or other professional or personal circumstances;

(e) Political pressure to take or not to take specific actions in the case; or

(f) Improper consideration of the race; ethnicity; religion; sex; gender (including gender identity); sexual orientation; national origin; or lawful political association, activities, or beliefs of the victim of an alleged offense.