Except as provided by R.C.M. 406(b), before any charge may be referred for trial by a general court-martial, it shall be submitted to the staff judge advocate of the convening authority for consideration and advice. The advice of the staff judge advocate shall include a written and signed statement which sets forth the staff judge advocate’s:

Conclusion with respect to whether each specification alleges an offense under the UCMJ;

Conclusion with respect to whether there is probable cause to believe that the accused committed the offense charged in the specification;

Conclusion with respect to whether a court-martial would have jurisdiction over the accused and the offense; and

Recommendation as to the disposition that should be made of the charges and specifications by the convening authority in the interest of justice and discipline.

A written pretrial advice need not be prepared in cases referred to special or summary courts-martial. A convening authority is required to consult with a judge advocate before referring charges to a special court-martial ( see R.C.M. 406(a)(2)) and may seek the advice of a lawyer before referring charges to a summary court-martial. When charges have been withdrawn from a general court-martial ( see R.C.M. 604) or when a mistrial has been declared in a general court-martial ( see R.C.M. 915), supplementary advice is necessary before the charges may be referred to another general court-martial. The staff judge advocate may make changes in the charges and specifications in accordance with R.C.M. 603. For guidance concerning the disposition of charges and specifications, see Appendix 2.1 (Disposition Guidance). The staff judge advocate is personally responsible for the pretrial advice and must make an independent and informed appraisal of the charges and evidence in order to render the advice. While the staff judge advocate may use a preliminary hearing officer’s report in preparing pretrial advice, and another person may prepare the advice, the staff judge advocate is, unless disqualified, responsible for it and must sign it personally. Grounds for disqualification in a case include previous action in the case as preliminary hearing officer, military judge, trial counsel, defense counsel, or member. The advice need not set forth the underlying analysis or rationale for its conclusions. Ordinarily, the charge sheet, forwarding letter, endorsements, and report of preliminary hearing are forwarded with the pretrial advice. In addition, the pretrial advice should include, when appropriate: a brief summary of the evidence; discussion of significant aggravating, extenuating, or mitigating factors; any recommendations for disposition of the case by commanders or others who have forwarded the charges; and any recommendations of the Article 32 preliminary hearing officer. However, there is no legal requirement to include such information, and failure to do so is not error. Information which is incorrect or so incomplete as to be misleading may result in a determination that the advice is defective, necessitating appropriate relief. See R.C.M. 905(b)(1), 906(b)(3). Defects in the pretrial advice are not jurisdictional and are raised by pretrial motion. See R.C.M. 905(b)(1) and its Discussion.

Subject to R.C.M. 406(b), before any charge may be referred for trial by a special court-martial, the convening authority shall consult a judge advocate on relevant legal issues. Such issues may include:

Whether each specification alleges an offense under the UCMJ;

Whether there is probable cause to believe the accused committed the offense(s) charged;

Whether a court-martial would have jurisdiction over the accused and the offense;

The form of the charges and specifications and any necessary modifications; and

Any other factors relating to disposition of the charges and specifications in the interest of justice and discipline.

For all charges alleging covered offenses, and other charges over which special trial counsel has exercised authority and has not deferred, referral to a special or general court-martial may be made only by a special trial counsel and the referral must be accompanied by a special trial counsel’s 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

a court-martial would have jurisdiction over the accused and the offense.

Subject to R.C.M. 406(c)(2), a copy of the written advice of the staff judge advocate shall be provided to the defense if charges are referred for trial by general court-martial.

For those cases over which special trial counsel exercises exclusive authority, a copy of the written determination by special trial counsel shall be provided to the defense if charges are referred for trial by general or special court-martial.