Summary of changes

Section 2 — Considerations in All Cases

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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 Section in one view.

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No changes recorded for this Section — its text is the same as the last Manual for Courts-Martial edition.
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Provisions
2.1 unchanged
Original text
Interests of Justice and Good Order and Discipline
The military justice system is a powerful tool that promotes justice and assists in maintaining good order and discipline while protecting the rights of Service members. In determining whether the interests of justice and good order and discipline are served by trial by court-martial or other disposition in a case, the factors listed below should be considered. The weight and priority given to each of these factors may vary depending on the facts and circumstances of the case.
Current text
Interests of Justice and Good Order and Discipline
The military justice system is a powerful tool that promotes justice and assists in maintaining good order and discipline while protecting the rights of Service members. In determining whether the interests of justice and good order and discipline are served by trial by court-martial or other disposition in a case, the factors listed below should be considered. The weight and priority given to each of these factors may vary depending on the facts and circumstances of the case.
2.1(a) unchanged
Original text
Whether admissible evidence will probably be sufficient to obtain and sustain a finding of guilty in a trial by court-martial when viewed objectively by an unbiased factfinder;
Current text
Whether admissible evidence will probably be sufficient to obtain and sustain a finding of guilty in a trial by court-martial when viewed objectively by an unbiased factfinder;
2.1(b) unchanged
Original text
The truth-seeking function of trial by court-martial;
Current text
The truth-seeking function of trial by court-martial;
2.1(c) unchanged
Original text
The nature, seriousness, and circumstances of the alleged offense and the accused’s culpability in connection with the alleged offense;
Current text
The nature, seriousness, and circumstances of the alleged offense and the accused’s culpability in connection with the alleged offense;
2.1(d) unchanged
Original text
Input, if any, from law enforcement agencies involved in or having an interest in the specific case;
Current text
Input, if any, from law enforcement agencies involved in or having an interest in the specific case;
2.1(e) unchanged
Original text
The accused’s willingness to cooperate in the investigation or prosecution of others;
Current text
The accused’s willingness to cooperate in the investigation or prosecution of others;
2.1(f) unchanged
Original text
The accused’s criminal history or history of misconduct, whether military or civilian, if any;
Current text
The accused’s criminal history or history of misconduct, whether military or civilian, if any;
2.1(g) unchanged
Original text
The probable sentence or other consequences to the accused of a finding of guilty;
Current text
The probable sentence or other consequences to the accused of a finding of guilty;
2.1(h) unchanged
Original text
The impact and appropriateness of alternative disposition options—including nonjudicial punishment or administrative action—with respect to the accused’s potential for continued service and the responsibilities of the command with respect to justice and good order and discipline.
Current text
The impact and appropriateness of alternative disposition options—including nonjudicial punishment or administrative action—with respect to the accused’s potential for continued service and the responsibilities of the command with respect to justice and good order and discipline.
2.1(i) unchanged
Original text
In cases involving an individual who is a victim of the alleged offense as defined by Article 6b(b), that individual’s views as to disposition;
Current text
In cases involving an individual who is a victim of the alleged offense as defined by Article 6b(b), that individual’s views as to disposition;
2.1(j) unchanged
Original text
The extent of the harm caused to any victim of the alleged offense;
Current text
The extent of the harm caused to any victim of the alleged offense;
2.1(k) unchanged
Original text
The availability and willingness of the victim of the alleged offense and other witnesses to testify;
Current text
The availability and willingness of the victim of the alleged offense and other witnesses to testify;
2.1(l) unchanged
Original text
The effect of the alleged offense on the morale, health, safety, welfare, and good order and discipline of the command;
Current text
The effect of the alleged offense on the morale, health, safety, welfare, and good order and discipline of the command;
2.1(m) unchanged
Original text
The extent to which the conduct tends to bring discredit upon the armed forces;
Current text
The extent to which the conduct tends to bring discredit upon the armed forces;
2.1(n) unchanged
Original text
Whether the alleged offense occurred during wartime, combat, or contingency operations; and
Current text
Whether the alleged offense occurred during wartime, combat, or contingency operations; and
2.1(o) unchanged
Original text
The mission-related responsibilities of the command.
Current text
The mission-related responsibilities of the command.
2.2 unchanged
Original text
Consultation with a Judge Advocate
Commanders and convening authorities shall at all times communicate directly with their assigned judge advocates in matters relating to the administration of military justice (see R.C.M. 105).
Current text
Consultation with a Judge Advocate
Commanders and convening authorities shall at all times communicate directly with their assigned judge advocates in matters relating to the administration of military justice (see R.C.M. 105).
2.3 unchanged
Original text
Referral
Current text
Referral
2.3(a) unchanged
Original text
Probable cause must exist for each charge and specification referred to a court-martial (see R.C.M. 601(d)(1)). In addition to the consideration required by R.C.M. 601(d)(2),² when making a referral decision, the referral authority should also consider the matters described in paragraph 2.1 of this appendix.
Current text
Probable cause must exist for each charge and specification referred to a court-martial (see R.C.M. 601(d)(1)). In addition to the consideration required by R.C.M. 601(d)(2),² when making a referral decision, the referral authority should also consider the matters described in paragraph 2.1 of this appendix.
2.3(b) unchanged
Original text
A special trial counsel should not refer, and a staff judge advocate or other judge advocate involved in the disposition process should not recommend that a convening authority refer, a charge to a court-martial unless the special trial counsel, staff judge advocate, or other judge advocate believes that the Service member’s conduct constitutes an offense under the UCMJ and that the admissible evidence will probably be sufficient to obtain and sustain a finding of guilty when viewed objectively by an unbiased factfinder.
Current text
A special trial counsel should not refer, and a staff judge advocate or other judge advocate involved in the disposition process should not recommend that a convening authority refer, a charge to a court-martial unless the special trial counsel, staff judge advocate, or other judge advocate believes that the Service member’s conduct constitutes an offense under the UCMJ and that the admissible evidence will probably be sufficient to obtain and sustain a finding of guilty when viewed objectively by an unbiased factfinder.
2.3(c) unchanged
Original text
A convening authority should not refer a charge to a court-martial unless the admissible evidence will probably be sufficient to obtain and sustain a finding of guilty when viewed objectively by an unbiased factfinder. In assessing whether there is sufficient admissible evidence, a convening authority should consider the advice of a staff judge advocate or other judge advocate authorized to provide pretrial advice.
Current text
A convening authority should not refer a charge to a court-martial unless the admissible evidence will probably be sufficient to obtain and sustain a finding of guilty when viewed objectively by an unbiased factfinder. In assessing whether there is sufficient admissible evidence, a convening authority should consider the advice of a staff judge advocate or other judge advocate authorized to provide pretrial advice.
2.3-fn2 unchanged
Original text
“Referral authorities shall consider whether the admissible evidence will probably be sufficient to obtain and sustain a conviction.” Rule for Courts-Martial 601(d)(2), Manual for Courts-Martial, United States (2024 ed.).
Current text
“Referral authorities shall consider whether the admissible evidence will probably be sufficient to obtain and sustain a conviction.” Rule for Courts-Martial 601(d)(2), Manual for Courts-Martial, United States (2024 ed.).
2.4 unchanged
Original text
Determining the Charges and Specifications to Refer
A referral authority should avoid referring multiple charges when they would:
Current text
Determining the Charges and Specifications to Refer
A referral authority should avoid referring multiple charges when they would:
2.4(a) unchanged
Original text
Unnecessarily complicate the prosecution of the most serious readily provable alleged offense or offenses;
Current text
Unnecessarily complicate the prosecution of the most serious readily provable alleged offense or offenses;
2.4(b) unchanged
Original text
Unnecessarily exaggerate the nature and extent of the accused’s alleged criminal conduct or add unnecessary confusion to the issues at court-martial;
Current text
Unnecessarily exaggerate the nature and extent of the accused’s alleged criminal conduct or add unnecessary confusion to the issues at court-martial;
2.4(c) unchanged
Original text
Unnecessarily expose the accused to a harsher potential sentence or range of punishments than the circumstances of the case justify; or
Current text
Unnecessarily expose the accused to a harsher potential sentence or range of punishments than the circumstances of the case justify; or
2.4(d) unchanged
Original text
Be disposed of more appropriately through an alternative disposition.
Current text
Be disposed of more appropriately through an alternative disposition.
2.5 unchanged
Original text
Determining the Appropriate Type of Court-Martial
In determining the appropriate type of court-martial, a convening authority should consider the advice of a staff judge advocate or other judge advocate authorized to provide pretrial advice. Additionally, a referral authority should consider:
Current text
Determining the Appropriate Type of Court-Martial
In determining the appropriate type of court-martial, a convening authority should consider the advice of a staff judge advocate or other judge advocate authorized to provide pretrial advice. Additionally, a referral authority should consider:
2.5(a) unchanged
Original text
The interests of justice and good order and discipline (see paragraph 2.1);
Current text
The interests of justice and good order and discipline (see paragraph 2.1);
2.5(b) unchanged
Original text
The authorized maximum and minimum punishments for the charged offenses;
Current text
The authorized maximum and minimum punishments for the charged offenses;
2.5(c) unchanged
Original text
Any unique circumstances in the case requiring immediate disposition of the charges;
Current text
Any unique circumstances in the case requiring immediate disposition of the charges;
2.5(d) unchanged
Original text
Whether the type of court-martial would unnecessarily expose the accused to a harsher potential sentence or range of punishments than the circumstances of the case justify; and
Current text
Whether the type of court-martial would unnecessarily expose the accused to a harsher potential sentence or range of punishments than the circumstances of the case justify; and
2.5(e) unchanged
Original text
Whether the potential of the accused for rehabilitation and continued service would be better addressed in a specific type of court-martial.
Current text
Whether the potential of the accused for rehabilitation and continued service would be better addressed in a specific type of court-martial.
2.6 unchanged
Original text
Alternatives to Referral
In determining whether to refer charges and specifications, a referral authority should consider whether an adequate alternative to referral exists. If an adequate alternative to referral exists, in addition to the considerations in paragraph 2.1, a referral authority should consider:
Current text
Alternatives to Referral
In determining whether to refer charges and specifications, a referral authority should consider whether an adequate alternative to referral exists. If an adequate alternative to referral exists, in addition to the considerations in paragraph 2.1, a referral authority should consider:
2.6(a) unchanged
Original text
The effect of the alternative disposition on the interests of justice and good order and discipline;
Current text
The effect of the alternative disposition on the interests of justice and good order and discipline;
2.6(b) unchanged
Original text
The options available under the alternative disposition;
Current text
The options available under the alternative disposition;
2.6(c) unchanged
Original text
The views of the victim of the alleged offense, if any, concerning the alternative disposition of the case; and
Current text
The views of the victim of the alleged offense, if any, concerning the alternative disposition of the case; and
2.6(d) unchanged
Original text
The likelihood of an effective outcome.
Current text
The likelihood of an effective outcome.
2.7 unchanged
Original text
Inappropriate Considerations
The disposition determination must not be influenced by:
Current text
Inappropriate Considerations
The disposition determination must not be influenced by:
2.7(a) unchanged
Original text
The accused’s race; ethnicity; religion; sex; gender (including gender identity); sexual orientation; national origin; or lawful political association, activities, or beliefs;
Current text
The accused’s race; ethnicity; religion; sex; gender (including gender identity); sexual orientation; national origin; or lawful political association, activities, or beliefs;
2.7(b) unchanged
Original text
The personal feelings of anyone authorized to recommend, advise, or make a decision as to disposition of alleged offenses concerning the accused, the accused’s associates, the victim of the alleged offense, or any witness;
Current text
The personal feelings of anyone authorized to recommend, advise, or make a decision as to disposition of alleged offenses concerning the accused, the accused’s associates, the victim of the alleged offense, or any witness;
2.7(c) unchanged
Original text
The time and resources already expended in the investigation of the case;
Current text
The time and resources already expended in the investigation of the case;
2.7(d) unchanged
Original text
The possible effect of the disposition determination on the commander’s, convening authority’s, or special trial counsel’s military career or other professional or personal circumstances;
Current text
The possible effect of the disposition determination on the commander’s, convening authority’s, or special trial counsel’s military career or other professional or personal circumstances;
2.7(e) unchanged
Original text
Political pressure to take or not to take specific actions in the case; or
Current text
Political pressure to take or not to take specific actions in the case; or
2.7(f) unchanged
Original text
Improper consideration of the race; ethnicity; religion; sex; gender (including gender identity); sexual orientation; national origin; or lawful political association, activities, or beliefs of the victim of an alleged offense.
Current text
Improper consideration of the race; ethnicity; religion; sex; gender (including gender identity); sexual orientation; national origin; or lawful political association, activities, or beliefs of the victim of an alleged offense.

“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.