Chapter IV · Forwarding and Disposition of Charges
R.C.M. 401A. Disposition of charges over which a special trial counsel exercises authority and has not deferred
2024 Manual for Courts-Martial, United States
See all changes(a) Who may dispose of preferred specifications. Regardless of who preferred a specification, only a special trial counsel may dispose of a specification alleging a covered offense or another offense over which a special trial counsel has exercised authority and has not deferred. A superior competent authority may withhold the authority of a subordinate special trial counsel to dispose of offenses charged in individual cases, types of cases, or generally.
Discussion
The "superior competent authority" referenced in R.C.M. 401A(a) may include the Secretary concerned, the Lead Special Trial Counsel, or other supervisory special trial counsel.
(b) Prompt determination. Special trial counsel shall promptly determine what disposition will be made in the interest of justice and discipline.
Discussion
In determining what level of disposition is appropriate, see R.C.M. 306(b) and (c) and Appendix 2.1 (Disposition Guidance).
(c) Disposition of preferred specifications.
(1) Referral. For those offenses over which a special trial counsel has exercised authority and not deferred, a special trial counsel may refer a charge and any specification thereunder to a special or general court-martial. If a preliminary hearing in accordance with Article 32 and R.C.M. 405 is required, a special trial counsel shall request a hearing officer and a hearing officer shall be provided by the convening authority.
(2) Dismissal. For those offenses over which a special trial counsel has exercised authority and not deferred, a special trial counsel may dismiss any charge or specification thereunder. A dismissal may be accompanied by a deferral as defined in this rule. Further disposition by a special trial counsel in accordance with this rule or by a convening authority pursuant to RCM 306(c) is not barred.
(3) Deferral.
(A) Pre-referral. A special trial counsel may defer a charged offense by electing not to refer the charged offense to a special or general court-martial. Upon such a determination, the special trial counsel shall promptly forward the matter to the commander or convening authority for disposition. The commander or convening authority shall dispose of the offense pursuant to R.C.M. 306 or the charged offense pursuant to R.C.M. 401, as applicable. The commander or convening authority may dismiss a charge preferred by a special trial counsel. However, a convening authority may not refer a charge alleging a covered offense to a special or general court-martial.
(B) Post-referral. After referral, a charge referred to a general or special court-martial by a special trial counsel must be withdrawn before the offense alleged by that charge may be deferred.
Discussion
Following deferral by special trial counsel, a commander or convening authority may dispose of a charge pursuant to R.C.M. 401, including by dismissing charges preferred by special trial counsel. See R.C.M 401(c). However, after referral of charges by a special trial counsel, a special trial counsel must withdraw a charge before it can be deferred to a commander or convening authority. See R.C.M. 604(a).”