Chapter VI · Referral, Service, Amendment, and Withdrawal of Charges
R.C.M. 601. Referral
2024 Manual for Courts-Martial, United States
See all changes(a) In general. Referral is the order of a convening authority or a special trial counsel that one or more charges and specifications against an accused will be tried by a specified court-martial.
Discussion
If a court-martial would be warranted but would be detrimental to the prosecution of a war or inimical to national security, see R.C.M. 401(d) and 407(b).
(b) Who may refer.
(1) Except as provided in R.C.M. 601(b)(2), 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.
(2) For charges over which a special trial counsel has exercised authority and has not deferred, only a special trial counsel may refer charges to a court-martial.
Discussion
See R.C.M. 306(a), 403, 404, 407, and 504. The convening authority may be of any command, including a command different from that of the accused, but as a practical matter the accused must be subject to the orders of the convening authority or otherwise under the convening authority’s control to assure the appearance of the accused at trial. The convening authority’s power over the accused may be based upon agreements between the commanders concerned.
(c) Disqualification.
(1) Except as provided in R.C.M. 601(c)(2), an accuser may not refer charges to a general or special court-martial.
(2) A special trial counsel shall not be disqualified from referring charges to a general or special court-martial as a result of having preferred charges or having caused charges to be preferred.
Discussion
Convening authorities are not disqualified from referring charges by prior participation in the same case except when they have acted as accuser. For a definition of “accuser,” see Article 1(9). A convening authority who is disqualified may forward the charges and allied papers for disposition by competent authority superior in rank or command. See R.C.M. 401(c) concerning actions which the superior may take. See R.C.M. 1302 for rules relating to convening summary courts-martial.
(d) When charges may be referred.
(1) Basis for referral.
(A) Except as provided in R.C.M. 601(d)(1)(B), if the convening authority finds or is advised by a judge advocate that there is probable cause 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 shall not be limited to the information reviewed by any previous authority, but a case may not be referred to a general or special court-martial except in compliance with R.C.M. 601(d)(2) or (d)(3). The convening authority or judge advocate shall not be required before charges are referred to resolve legal issues, including objections to evidence, which may arise at trial.
(B) For offenses over which a special trial counsel has exercised authority and has not deferred, if a special trial counsel makes a written determination that each specification under a charge alleges an offense under the UCMJ, there is probable cause to believe that the accused committed the offense charged, and the court-martial would have jurisdiction over the accused and the offense, a special trial counsel may refer it. The finding may be based on hearsay in whole or in part. A special trial counsel may consider information from any source and shall not be 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 R.C.M. 601(d)(2) or (d)(3). A special trial counsel shall not be required before charges are referred to resolve legal issues, including objections to evidence, which may arise at trial.
Discussion
For a discussion of selection among alternative dispositions, see R.C.M. 306. The referral authority is not obliged to refer all charges that the evidence might support. The referral authority should consider the options and considerations under R.C.M. 306 and Appendix 2.1 (Disposition Guidance) in exercising the discretion to refer charges and specifications to court-martial.
(2) Consideration. Referral authorities shall consider whether the admissible evidence will probably be sufficient to obtain and sustain a conviction.
(3) General courts-martial. Charges may not be referred to a general court-martial unless there has been substantial compliance with the preliminary hearing requirements of R.C.M. 405 and:
(A) The convening authority has received the advice of the staff judge advocate required under R.C.M. 406(a)(1) and Article 34(a); or
(B) A special trial counsel has made a written determination as required under R.C.M. 406(b) and Article 34(c).
(4) Special courts-martial. Charges may not be referred to a special court-martial unless:
(A) The convening authority has consulted with a judge advocate as required under R.C.M. 406(a)(2) and Article 34(b); or
(B) A special trial counsel has made a written determination as required under R.C.M. 406(b) and Article 34(c).
Discussion
See R.C.M. 201(f)(2)(C) concerning limitations on referral of capital offenses to special courts-martial. See R.C.M. 103(4) for the definition of the term “capital offense.” See R.C.M. 201(f)(2)(D)and (E) and R.C.M. 1301(c) concerning limitations on the referral of certain cases to special and summary courts-martial. See R.C.M. 905(b)(1) and (e) for the rule regarding forfeiture for failure to object to a defect under this rule.
(e) How charges shall be referred.
(1) Order, instructions. Referral shall be by the personal order of the referral authority.
(A) Capital cases. If a case is to be tried as a capital case, the referral authority shall so indicate by including a special instruction on the charge sheet in accordance with R.C.M. 1004(b)(1).
(B) Special court-martial consisting of a military judge alone. If a case is to be tried as a special court-martial consisting of a military judge alone under Article 16(c)(2)(A), the referral shall so indicate by including a special instruction on the charge sheet prior to arraignment.
Discussion
Under the UCMJ as amended though the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, Pub. L. No. 117- 263 136 Stat. 2395 (2022), a special trial counsel may not refer a charge to a special court-martial consisting of a military judge alone. See Article 16(c)(2)(A), 10 U.S.C. § 816(c)(2)(A) (2019) (“if the case is so referred by the convening authority . . . .”) (emphasis added).”
(C) Other instructions. The referral authority may include any other additional instructions in the order as may be required.
Discussion
Referral is ordinarily evidenced by an indorsement on the charge sheet. Although the indorsement should be completed on all copies of the charge sheet, only the original must be signed. The signature may be that of a person acting by the order or direction of the referral authority. In such a case, the signature element or block should reflect the signer’s authority. If, for any reason, charges are referred to a court-martial different from that to which they were originally referred, the new referral is ordinarily made by a new indorsement attached to the original charge sheet. The previous indorsement should be lined out and initialed by the person signing the new referral. The original indorsement should not be obliterated. See also R.C.M. 604. The failure to include a special instruction that a case is to be tried as a capital case at the time of the referral does not bar the referral authority from later adding the required special instruction, provided that the referral authority has otherwise complied with the applicable notice requirements. If the accused demonstrates specific prejudice from such failure to include the special instruction, a continuance or a recess is an adequate remedy. See R.C.M. 1004(b)(1). For limitations regarding offenses that may be referred to a special court-martial consisting of a military judge alone, see R.C.M. 201(f)(2)(E). If the only officer present in a command refers the charges to a summary court-martial and serves as the summary court-martial under R.C.M. 1302, the indorsement should be completed with the additional comments, “only officer present in the command.” Any special instructions must be stated in the referral indorsement. When the charges have been referred to a court-martial, the indorsed charge sheet and allied papers should be promptly transmitted to the trial counsel.
(2) Joinder of offenses. In the discretion of the referral 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 of whether the offenses are connected. 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 complied with. After arraignment of the accused upon charges, no additional charges may be referred to the same trial without consent of the accused.
(3) 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.
Discussion
A joint offense is one committed by two or more persons acting together with a common intent. Joint offenses may be referred for joint trial, along with all related offenses against each of the accused. A common trial may be used when the evidence of several offenses committed by several accused separately is essentially the same, even though the offenses were not jointly committed. See the Discussion accompanying R.C.M. 307(c)(5). Convening authorities should consider that joint and common trials may be complicated by procedural and evidentiary rules.
(f) 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 the authority for further consideration, including, if appropriate, referral.
(g) Parallel convening authorities.
(1) Except as provided in R.C.M. 601(g)(2), if it is impracticable for the original convening authority to continue exercising authority over the charges, the convening authority may cause the charges, even if referred, to be transmitted to a parallel convening authority. This transmittal must be in writing and in accordance with such regulations as the Secretary concerned may prescribe. Subsequent actions taken by the parallel convening authority are within the sole discretion of that convening authority.
(2) For offenses over which a special trial counsel has exercised authority and has not deferred, a convening authority seeking to transfer charges to a parallel convening authority may do so in accordance with these rules and such regulations prescribed by the Secretary concerned.
Discussion
Parallel convening authorities are those convening authorities that possess the same court-martial jurisdiction authority. Examples of permissible transmittal of charges under this rule include the transmittal from a general court-martial convening authority to another general court-martial convening authority, or from one special court-martial convening authority to another special court-martial convening authority. It would be impracticable for an original convening authority to continue exercising authority over the charges, for example, when a command is being decommissioned or inactivated, or when deploying or redeploying and the accused is remaining behind. If charges have been referred, there is no requirement that the charges be withdrawn or dismissed prior to transfer. See R.C.M. 604. In the event that the case has been referred, the receiving convening authority may adopt the original court-martial convening order, including the court-martial panel selected to hear the case as indicated in that convening order. When charges are transmitted under this rule, no recommendation as to disposition may be made. The transfer process is subject to the limitations contained in these rules, including the requirement that only a special trial counsel may withdraw, dismiss, or refer charges over which a special trial counsel has exercised authority and has not deferred.