A motion to dismiss is a request to terminate further proceedings as to one or more charges and specifications on grounds capable of resolution without trial of the general issue of guilt.

Dismissal of a specification terminates the proceeding with respect to that specification unless the decision to dismiss is reconsidered and reversed by the military judge. See R.C.M. 905(f). Dismissal of a specification on grounds stated in R.C.M. 907(b)(1) or (b)(3)(A) does not ordinarily bar a later court-martial for the same offense if the grounds for dismissal no longer exist. See also R.C.M. 905(g) and R.C.M. 907(b)(2). See R.C.M. 916 concerning defenses.

Grounds for dismissal include the following—

A charge or specification shall be dismissed at any stage of the proceedings if the court-martial lacks jurisdiction to try the accused for the offense.

A charge or specification shall be dismissed upon motion made by the accused before the final adjournment of the court-martial in that case if:

Dismissal is required under R.C.M. 707;

The statute of limitations (Article 43) has run, provided that, if it appears that the accused is unaware of the right to assert the statute of limitations in bar of trial, the military judge shall inform the accused of this right;

Except for certain offenses for which there is either: no limitation as to time; or child abuse offenses for which a time limitation has been enacted and applies that is based upon the life of a child abuse victim, see Article 43(a) and (b)(2), a person charged with an offense under the UCMJ may not be tried by court-martial over objection if sworn charges have not been received by the officer exercising summary court-martial jurisdiction over the command within five years. See Article 43(b). This period may be tolled (Article 43(c) and (d)), extended (Article 43(e) and (g)), or suspended (Article 43(f)) under certain circumstances. The prosecution bears the burden of proving that the statute of limitations has been tolled, extended, or suspended if it appears that is has run. Some offenses are continuing offenses and any period of the offense occurring within the statute of limitations is not barred. Absence without leave, desertion, and fraudulent enlistment are not continuing offenses and are committed, respectively, on the day the person goes absent, deserts, or first receives pay or allowances under the enlistment. When computing the statute of limitations, periods in which the accused was fleeing from justice or periods when the accused was absent without leave or in desertion are excluded. The military judge must determine by a preponderance, as an interlocutory matter, whether the accused was absent without authority or fleeing from justice. It would not be necessary that the accused be charged with the absence offense. In cases where the accused is charged with both an absence offense and a non-absence offense, but is found not guilty of the absence offense, the military judge would reconsider, by a preponderance, his or her prior determination whether that period of time is excludable. If sworn charges have been received by an officer exercising summary court-martial jurisdiction over the command within the period of the statute, minor amendments ( see R.C.M. 603(a)) may be made to the specification after the statute of limitations has run. However, if new charges are drafted or a major amendment made ( see R.C.M. 603(d)) after the statute of limitations has run, prosecution is barred. The date of receipt of sworn charges is excluded when computing the appropriate statutory period. The date of the offense is included in the computation of the elapsed time. Article 43(g) allows the Government time to reinstate charges dismissed as defective or insufficient for any cause. The Government would have up to six months to reinstate the charges if the original period of limitations has expired or will expire within six months of the dismissal. In some cases, the issue whether the statute of limitations has run will depend on the findings on the general issue of guilt. For example, where the date of an offense is in dispute, a finding by the court-martial that the offense occurred at an earlier time may affect a determination as to the running of the statute of limitations. When the statute of limitations has run as to a lesser included offense, but not as to the charged offense, see R.C.M. 920(e)(2) with regard to instructions on the lesser offense.

The accused has previously been tried by court-martial or federal civilian court for the same offense, provided that:

No court-martial proceeding is a trial in the sense of this rule unless—

In the case of a trial by military judge alone, presentation of the evidence on the general issue of guilt has begun;

In the case of a trial with a military judge and members, the members have been impaneled; or

In the case of a summary court-martial, presentation of the evidence on the general issue of guilt has begun.

No court-martial proceeding which has been terminated under R.C.M. 604(b) or R.C.M. 915 shall bar later prosecution for the same offense or offenses, if so provided in those rules;

No court-martial proceeding in which an accused has been found guilty of any charge or specification is a trial in the sense of this rule until the finding of guilty has become final after review of the case has been fully completed; and

No court-martial proceeding which lacked jurisdiction to try the accused for the offense is a trial in the sense of this rule.

R.C.M. 907(b)(2)(C)(i)(I) includes special courts-martial consisting of a military judge alone under Article 16(c)(2)(A).

Prosecution is barred by:

A pardon issued by the President;

Immunity from prosecution granted by a person authorized to do so; or

See R.C.M. 704.

Prior punishment under Article 13 or 15 for the same offense, if that offense was punishable by confinement of one year or less.

See Article 13 and Appendix 12, Maximum Punishment Chart.

The specification fails to state an offense.

A specification may be dismissed upon timely motion by the accused if one of the following is applicable:

When the specification is so defective that it substantially misled the accused, and the military judge finds that, in the interest of justice, trial should proceed on any remaining charges and specifications without undue delay; or

When the specification is multiplicious with another specification, is unnecessary to enable the prosecution to meet the exigencies of proof through trial, review, and appellate action, and should be dismissed in the interest of justice. A charge is multiplicious if the proof of such charge also proves every element of another charge.

Ordinarily, a specification should not be dismissed for multiplicity before trial unless it clearly alleges the same offense, or one necessarily included therein, as is alleged in another specification. It may be appropriate to dismiss the less serious of any multiplicious specifications after findings have been reached. Due consideration must be given, however, to possible post-trial or appellate action with regard to the remaining specification.