Summary of changes
R.C.M. 309 — Pre-referral judicial proceedings
The text as it stood in the last Manual for Courts-Martial edition beside the current text, provision by provision, with every recorded amendment and the authority behind it — the whole R.C.M. in one view.
1 amended
0 added
0 removed
28 unchanged
1 authority-backed edit · recorded
2026-07-14 – 2026-07-14
Authorities behind these changes
- Exec. Order 14130 (Dec. 20, 2024) · Executive Order, eff. 2024-12-20 · 1 change
Showing every provision.
Provisions
309(a)
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Original text
In general.
Current text
In general.
309(a)(1)
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Original text
A military judge detailed under regulations of the Secretary concerned may conduct proceedings under Article 30a, before referral of charges and specifications to court-martial for trial, and may issue such rulings and orders as necessary to further the purpose of the proceedings. A military judge may issue such orders and rulings only when the matters would be subject to consideration by a military judge in a general or special court-martial.
Current text
A military judge detailed under regulations of the Secretary concerned may conduct proceedings under Article 30a, before referral of charges and specifications to court-martial for trial, and may issue such rulings and orders as necessary to further the purpose of the proceedings. A military judge may issue such orders and rulings only when the matters would be subject to consideration by a military judge in a general or special court-martial.
309(a)(1)|D
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Original text
In determining whether to issue a ruling or order before referral, a military judge may consider chain of command recommendations as to disposition of a charged offense or offenses, representations of counsel or a federal law enforcement officer, the frequency or severity of a charged offense or offenses, and any other matter deemed relevant by the military judge.
Current text
In determining whether to issue a ruling or order before referral, a military judge may consider chain of command recommendations as to disposition of a charged offense or offenses, representations of counsel or a federal law enforcement officer, the frequency or severity of a charged offense or offenses, and any other matter deemed relevant by the military judge.
309(a)(2)
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Original text
The matters that may be considered and ruled upon by a military judge under this rule are limited to those matters specified in R.C.M. 309(b).
Current text
The matters that may be considered and ruled upon by a military judge under this rule are limited to those matters specified in R.C.M. 309(b).
309(a)(3)
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Original text
If any matter in a proceeding under this rule becomes a subject at issue with respect to charges that have been referred to a general or special court-martial, the matter, to include any motions, related papers, and the record of the hearing, if any, shall be provided to the military judge detailed to the court-martial.
Current text
If any matter in a proceeding under this rule becomes a subject at issue with respect to charges that have been referred to a general or special court-martial, the matter, to include any motions, related papers, and the record of the hearing, if any, shall be provided to the military judge detailed to the court-martial.
309(b)
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Original text
Pre-referral matters.
Current text
Pre-referral matters.
309(b)(1)
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Original text
Pre-referral investigative subpoenas.
A military judge may, upon application by the Government, consider whether to issue a pre-referral investigative subpoena under R.C.M. 703(g)(3)(C). The proceeding may be conducted ex parte and may be conducted in camera.
Current text
Pre-referral investigative subpoenas.
A military judge may, upon application by the Government, consider whether to issue a pre-referral investigative subpoena under R.C.M. 703(g)(3)(C). The proceeding may be conducted ex parte and may be conducted in camera.
309(b)(2)
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Original text
Pre-referral warrants or orders for wire or electronic communications.
A military judge may, upon written application by a federal law enforcement officer or authorized counsel for the Government in connection with an ongoing investigation of an offense or offenses under the UCMJ, consider whether to issue a warrant or order for wire or electronic communications and related information as provided under R.C.M. 703A. The proceeding may be conducted ex parte and may be conducted in camera.
Current text
Pre-referral warrants or orders for wire or electronic communications.
A military judge may, upon written application by a federal law enforcement officer or authorized counsel for the Government in connection with an ongoing investigation of an offense or offenses under the UCMJ, consider whether to issue a warrant or order for wire or electronic communications and related information as provided under R.C.M. 703A. The proceeding may be conducted ex parte and may be conducted in camera.
309(b)(2)|D
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Original text
The defense may request that the trial counsel or other counsel for the Government make an application under R.C.M. 309(b)(1) or (b)(2) of this rule. The military judge may, as a matter of discretion, afford the defense an opportunity to be heard.
Current text
The defense may request that the trial counsel or other counsel for the Government make an application under R.C.M. 309(b)(1) or (b)(2) of this rule. The military judge may, as a matter of discretion, afford the defense an opportunity to be heard.
309(b)(3)
amended
Version history
Original text
Requests for relief from subpoena or other process.
A person in receipt of a pre-referral investigative subpoena under R.C.M. 703(g)(3)(C), a victim named in a specification whose personal and confidential information has been subpoenaed under R.C.M. 703(g)(3)(C)(ii), a service provider in receipt of a warrant or court order to disclose information about wire or electronic communications under R.C.M. 703A(a), or a person ordered to sit for a deposition under R.C.M. 702(b)(2) may request relief on grounds that compliance with the subpoena, warrant, or order is unreasonable, oppressive, or prohibited by law. The military judge shall review the request and shall either order the person or service provider to comply with the subpoena, warrant, or order, or modify or quash the subpoena, warrant, or order, as appropriate. In a proceeding under this paragraph, the United States shall be represented by an authorized counsel for the Government.
Current text
Requests for relief from subpoena or other process.
A person in receipt of a pre referral investigative subpoena under R.C.M. 703(g)(3)(C), a victim whose personal or confidential information has been subpoenaed under 703(g)(3)(C)(ii), a service provider in receipt of a warrant or court order to disclose information about wire or electronic communications under R.C.M. 703A(a), or a person ordered to sit for a deposition under R.C.M. 702(b)(2) may request relief on grounds that compliance with the subpoena, warrant, or order is unreasonable, oppressive, or prohibited by law. The military judge shall review the request and shall either order the person or service provider to comply with the subpoena, warrant, or order, or modify or quash the subpoena, warrant, or order, as appropriate. In a proceeding under this paragraph, the United States shall be represented by an authorized counsel for the Government.
All changes since the original (removed / added)
Requests for relief from subpoena or other process.
A person in receipt of apre-referralpre referral investigative subpoena under R.C.M. 703(g)(3)(C), a victim named in a specification whose personal andor confidential information has been subpoenaed under R.C.M. 703(g)(3)(C)(ii), a service provider in receipt of a warrant or court order to disclose information about wire or electronic communications under R.C.M. 703A(a), or a person ordered to sit for a deposition under R.C.M. 702(b)(2) may request relief on grounds that compliance with the subpoena, warrant, or order is unreasonable, oppressive, or prohibited by law. The military judge shall review the request and shall either order the person or service provider to comply with the subpoena, warrant, or order, or modify or quash the subpoena, warrant, or order, as appropriate. In a proceeding under this paragraph, the United States shall be represented by an authorized counsel for the Government.
A person in receipt of a
Step-by-step: 1 recorded edit
| Version | Date | Authority | Note | Editor |
|---|---|---|---|---|
| v2 | 2026-07-14 | Exec. Order 14130 (Dec. 20, 2024) (Executive Order, eff. 2024-12-20) | Section 1. Part II of the Manual for Courts-Martial, United States, is amended as follows: . . . (g) R.C.M. 309(b)(3) is amended to read as follows: “(3) Requests for relief from subpoena or other process. A person in receipt of a pre referral investigative subpoena under R.C.M. 703(g)(3)(C), a victim whose personal or confidential information has been subpoenaed under 703(g)(3)(C)(ii), a service provider in receipt of a warrant or court order to disclose information about wire or electronic communications under R.C.M. 703A(a), or a person ordered to sit for a deposition under R.C.M. 702(b)(2) may request relief on grounds that compliance with the subpoena, warrant, or order is unreasonable, oppressive, or prohibited by law. The military judge shall review the request and shall either order the person or service provider to comply with the subpoena, warrant, or order, or modify or quash the subpoena, warrant, or order, as appropriate. In a proceeding under this paragraph, the United States shall be represented by an authorized counsel for the Government.” | admin |
Requests for relief from subpoena or other process. A person in receipt of a |
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309(b)(3)|D
unchanged
Original text
See Article 46; R.C.M. 703(g)(3)(G); R.C.M. 703A(c)(2).
Current text
See Article 46; R.C.M. 703(g)(3)(G); R.C.M. 703A(c)(2).
309(b)(4)
unchanged
Original text
Pre-referral matters referred by an appellate court.
When a Court of Criminal Appeals or the Court of Appeals for the Armed Forces, in the course of exercising the jurisdiction of such court, remands the case for a pre-referral judicial proceeding, a military judge may conduct such a proceeding under this rule. This includes matters referred by a Court of Criminal Appeals under subsection (e) of Article 6b.
Current text
Pre-referral matters referred by an appellate court.
When a Court of Criminal Appeals or the Court of Appeals for the Armed Forces, in the course of exercising the jurisdiction of such court, remands the case for a pre-referral judicial proceeding, a military judge may conduct such a proceeding under this rule. This includes matters referred by a Court of Criminal Appeals under subsection (e) of Article 6b.
309(b)(5)
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Original text
Pre-referral matters under subsection (c) of Article 6b.
The military judge may designate a suitable person to assume the rights of a victim who is under 18 years of age (but who is not a member of the armed forces), or who is incompetent, incapacitated, or deceased. Upon appointment by the military judge, the legal guardian of the victim, the representative of the victim’s estate, a family member, or any other person designated as suitable by the military judge, may assume the rights of the victim. Under no circumstances may the military judge designate the accused to assume the rights of the victim.
Current text
Pre-referral matters under subsection (c) of Article 6b.
The military judge may designate a suitable person to assume the rights of a victim who is under 18 years of age (but who is not a member of the armed forces), or who is incompetent, incapacitated, or deceased. Upon appointment by the military judge, the legal guardian of the victim, the representative of the victim’s estate, a family member, or any other person designated as suitable by the military judge, may assume the rights of the victim. Under no circumstances may the military judge designate the accused to assume the rights of the victim.
309(b)(6)
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Original text
Pretrial confinement of an accused.
After action by the 7-day reviewing officer under R.C.M. 305(j)(2)(C), a military judge may, upon application of an accused for appropriate relief, review the propriety of pretrial confinement. A military judge may order release from pretrial confinement under the provisions of R.C.M. 305(k)(1).
Current text
Pretrial confinement of an accused.
After action by the 7-day reviewing officer under R.C.M. 305(j)(2)(C), a military judge may, upon application of an accused for appropriate relief, review the propriety of pretrial confinement. A military judge may order release from pretrial confinement under the provisions of R.C.M. 305(k)(1).
309(b)(7)
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Original text
The mental capacity or mental responsibility of an accused.
Current text
The mental capacity or mental responsibility of an accused.
309(b)(7)(A)
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Original text
A military judge may, under the provisions of R.C.M. 706(b)(1), order an inquiry into the mental capacity or mental responsibility of an accused before referral of charges. The proceeding may be conducted ex parte and may be conducted in camera.
Current text
A military judge may, under the provisions of R.C.M. 706(b)(1), order an inquiry into the mental capacity or mental responsibility of an accused before referral of charges. The proceeding may be conducted ex parte and may be conducted in camera.
309(b)(7)(B)
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Original text
A military judge may, under the provisions of R.C.M. 909, conduct a hearing to determine the mental capacity of the accused.
Current text
A military judge may, under the provisions of R.C.M. 909, conduct a hearing to determine the mental capacity of the accused.
309(b)(8)
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Original text
A request for individual military counsel.
When an accused requests individual military counsel prior to charges being referred to a general or special court-martial, a military judge may review the request subject to the provisions of R.C.M. 506(b).
Current text
A request for individual military counsel.
When an accused requests individual military counsel prior to charges being referred to a general or special court-martial, a military judge may review the request subject to the provisions of R.C.M. 506(b).
309(b)(9)
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Original text
Victim’s petition for relief.
Current text
Victim’s petition for relief.
309(b)(9)(A)
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Original text
A victim of an offense under the UCMJ, as defined in Article 6b(b), may file a motion pre-referral requesting that a military judge require a preliminary hearing officer conducting a preliminary hearing under R.C.M. 405 to comply with:
Current text
A victim of an offense under the UCMJ, as defined in Article 6b(b), may file a motion pre-referral requesting that a military judge require a preliminary hearing officer conducting a preliminary hearing under R.C.M. 405 to comply with:
309(b)(9)(A)(i)
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Original text
Articles 6b or 32;
Current text
Articles 6b or 32;
309(b)(9)(A)(ii)
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Original text
R.C.M. 405; or
Current text
R.C.M. 405; or
309(b)(9)(A)(iii)
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Original text
Mil. R. Evid. 412, 513, 514, or 615.
Current text
Mil. R. Evid. 412, 513, 514, or 615.
309(b)(9)(B)
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Original text
The military judge may grant or deny such a motion. The ruling is subject to further review pursuant to Article 6b(e).
Current text
The military judge may grant or deny such a motion. The ruling is subject to further review pursuant to Article 6b(e).
309(b)(10)
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Original text
Pre-referral depositions.
A military judge may, upon application by a party, consider whether to order a pre-referral deposition under R.C.M. 702(c)(2).
Current text
Pre-referral depositions.
A military judge may, upon application by a party, consider whether to order a pre-referral deposition under R.C.M. 702(c)(2).
309(c)
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Original text
Procedure for submissions.
The Secretary concerned shall prescribe the procedures for receiving requests for proceedings under this rule and for detailing military judges to such proceedings.
Current text
Procedure for submissions.
The Secretary concerned shall prescribe the procedures for receiving requests for proceedings under this rule and for detailing military judges to such proceedings.
309(d)
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Original text
Hearings.
Any hearing conducted under this rule shall be conducted in accordance with the procedures generally applicable to sessions conducted under Article 39(a), and R.C.M. 803.
Current text
Hearings.
Any hearing conducted under this rule shall be conducted in accordance with the procedures generally applicable to sessions conducted under Article 39(a), and R.C.M. 803.
309(e)
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Original text
Record.
A separate record of any proceeding under this rule shall be prepared and forwarded to the convening authority, special trial counsel, or any combination thereof, with authority to dispose of the charges or offenses in the case. If charges are referred to trial in the case, such record shall be included in the record of trial.
Current text
Record.
A separate record of any proceeding under this rule shall be prepared and forwarded to the convening authority, special trial counsel, or any combination thereof, with authority to dispose of the charges or offenses in the case. If charges are referred to trial in the case, such record shall be included in the record of trial.
309(f)
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Original text
Military magistrate.
If authorized under regulations of the Secretary concerned, a military judge detailed to a proceeding under this rule, other than a proceeding under paragraph (b)(2), (b)(7)(B), or (b)(8) of this rule, may designate a military magistrate to preside and exercise the authority of the military judge over the proceeding.
Current text
Military magistrate.
If authorized under regulations of the Secretary concerned, a military judge detailed to a proceeding under this rule, other than a proceeding under paragraph (b)(2), (b)(7)(B), or (b)(8) of this rule, may designate a military magistrate to preside and exercise the authority of the military judge over the proceeding.
“Original text” is the state captured the first time a provision was edited under change tracking — i.e. the text as published in the last Manual for Courts-Martial edition. Provisions edited without being “marked as changed” (typos, formatting) are not recorded here; see the recent revisions feed and the site-wide changes log.