R.C.M. 407 — Action by commander exercising general court-martial jurisdiction

Chapter IV · Forwarding and Disposition of Charges

R.C.M. 407. Action by commander exercising general court-martial jurisdiction

2024 Manual for Courts-Martial, United States

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(a) Disposition. Except for covered offenses and any other charges over which a special trial counsel has exercised authority and has not deferred, a commander exercising general court-martial jurisdiction, when in receipt of charges, may:

(1) Dismiss any charge;

Discussion

See R.C.M. 401(c)(1) concerning dismissal of charges and the effect of dismissing charges.

(2) Forward any charge (or, after dismissing charges, the matter) to a subordinate commander for disposition;

Discussion

See R.C.M. 401(c)(2)(B) concerning forwarding charges to a subordinate. A subordinate commander may not be required to take any specific action or to dispose of charges. See R.C.M. 104. See also paragraph 1.d.(2) of Part V. When appropriate, charges may be sent or returned to a subordinate commander for compliance with procedural requirements. See, e.g., R.C.M. 303 (preliminary inquiry); R.C.M. 308 (notification to accused of charges).

(3) Forward any charge to a superior commander for disposition;

Discussion

See R.C.M. 401(c)(2)(A) for guidance concerning forwarding charges to a superior.

(4) Subject to R.C.M. 201(f)(2)(D) and (E), 601(d), and 1301(c), refer any charge to a summary court-martial or to a special court-martial for trial;

Discussion

See R.C.M. 201(f)(2)(D) and (E) and 1301(c) for limitations on the referral of certain offenses to special and summary courts-martial.

(5) Unless otherwise prescribed by the Secretary concerned, direct a preliminary hearing under R.C.M. 405, after which additional action under this rule may be taken;

Discussion

A preliminary hearing should be directed when it appears that the charges are of such a serious nature that trial by general court-martial may be warranted. See R.C.M. 405. If a preliminary hearing of the subject matter has already been conducted, see R.C.M. 405(b).

(6) Subject to R.C.M. 601(d), refer any charge to a general court-martial.

Discussion

See Article 22 and R.C.M. 504(b)(1) concerning who may exercise general court-martial jurisdiction. See R.C.M. 601 concerning referral of charges. See R.C.M. 306 and 401 concerning other dispositions. See Section 1744 (b)-(d) of the National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, 127 Stat. 980 (2013), as amended by Section 541 of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, Pub. L. 113-291, 128 Stat. 3371 (2014) and Service regulations for possible higher-level review requirements for decisions not to refer charges of certain sex-related offenses for trial by court-martial.

(b) National security matters.

(1) Subject to R.C.M. 407(b)(2), when in receipt of charges the trial of which the commander exercising general court-martial jurisdiction finds would probably be detrimental to the prosecution of a war or harmful to national security, that commander, unless otherwise prescribed by regulations of the Secretary concerned, shall determine whether trial is warranted and, if so, whether the security considerations involved are paramount to trial. As the commander finds appropriate, the commander may dismiss the charges, authorize trial of them, or forward them to a superior authority.

(2) For charges and specifications over which a special trial counsel has exercised authority and has not deferred and a commander believes trial would be detrimental to the prosecution of a war or harmful to national security, the matter shall be forwarded to the Secretary concerned.

Discussion

In time of war, charges may be forwarded to the Secretary concerned for disposition under Article 43(e). Under Article 43(e), the Secretary may take action suspending the statute of limitations in time of war.