Prosecutorial Discretion: In civilian communities, police and prosecutors exercise discretion in deciding whether an offense should be charged and offenders punished. In the military, commanders make this decision. Once the investigation is complete, the commander must make a decision about how to dispose of the case. Throughout the investigation, the commander has a lawyer (judge advocate) available to assist and provide advice. With the assistance of his lawyer, the commander decides whether a case will be resolved administratively, through a nonjudicial punishment action under Article 15, UCMJ, or referred to trial, and what the charges will be. The disposition decision is one of the most important and difficult decisions facing a commander. Each commander in the chain of command has independent, yet overlapping discretion to dispose of offenses within the limits of the officer’s authority. The commander at the lowest level makes the initial decision regarding disposition. Under the Uniform Code of Military Justice (UCMJ), superior commanders may not seek to improperly influence the subordinate commander’s exercise of independent judgment or disciplinary action. However, nothing prevents a superior commander from withholding authority to himself or herself to dispose of offenses in individual cases or types of cases (e.g., officers, senior NCOs, drug cases, DUI).
Levels Of Disposition: Charges can be disposed of at four levels within the military justice system: (1) by the unit commander who exercises immediate Article 15, UCMJ, jurisdiction over the accused; (2) by the summary court-martial convening authority (normally a battalion or squadron commander); (3) by the special court-martial convening authority (normally a brigade or wing commander); and (4) by the general court-martial convening authority (normally a general officer who is commanding). Each commander or convening authority within the military justice chain has a range of available options and each commander exercises discretion in selecting one of the available options or makes a recommendation to a higher commander. As charges progress up the military justice chain, the convening authority has more options available. Any higher-level convening authority has all the powers and alternatives of any lower-level convening authority or commander. Thus a summary court-martial convening authority has available all the options of the immediate commander and additional alternatives as a convening authority. Similarly, a special court-martial convening authority is empowered to convene a summary court-martial as well as a special court-martial. Finally, a general court-martial convening authority possesses all the powers of the subordinate commanders and convening authorities.
Commander’s Range Of Options: The commander has a number of options available for the resolution of disciplinary problems. Briefly summarized, they are as follows:
1. The commander may choose to take no action. While this may seem to be unusual, the circumstances surrounding an event actually may warrant that no adverse action be taken. The preliminary inquiry might indicate that the accused is innocent of the crime, which the only evidence is inadmissible, or the commander may decide that other valid reasons exist not to prosecute. A subordinate commander's decision not to take action is not binding on a superior commander’s independent authority to take action.
2. The commander may initiate administrative action against a servicemember. The commander might determine that the accused committed an offense, but that the best disposition for this offense and this offender is to take administrative rather than punitive action. A commander can initiate action against the servicemember, alone or in conjunction with action under the UCMJ. Administrative action is not punitive in character; instead, it is meant to be corrective and rehabilitative. Administrative actions include measures ranging from counseling or a reprimand to involuntary separation.
3. The commander may dispose of the offense with nonjudicial punishment. Article 15, UCMJ, is a means of handling minor offenses requiring immediate corrective action. A minor offense is one for which the maximum sentence imposable at a court-martial would not include a dishonorable discharge or confinement in excess of one year. If a commander imposes Article 15 punishment for a minor offense, trial by court-martial is barred. If a commander imposes Article 15 punishment, but the offense is not minor, later trial by court-martial is not barred. Nonjudicial punishment hearings are non-adversarial. They are not a “mini-trial” with questioning by opposing sides. The commander conducts the hearing. The servicemember may request an open or closed hearing, speak with an attorney about his case, have someone speak on his behalf, and present witnesses who are reasonably available. The rules of evidence do not apply. In order to find the servicemember “guilty,” the commander must be convinced that the servicemember committed the offense. Generally speaking, the UCMJ and Manual for Courts-Martial establish maximum punishment limits based on the rank of the commander imposing punishment and the rank of the servicemember being punished. The servicemember has a right to appeal the imposing commander’s decision to the next-higher commander.
4. The commander may dispose of the offenses by court-martial. If the commander decides that the offense is sufficiently serious under the circumstances to warrant trial by court-martial, the commander may exercise the fourth option, preferring (initiating) charges and forwarding them to a commander possessing court-martial convening authority. Whenever charges are forwarded to a superior commander for disposition, the subordinate commander must make a personal recommendation as to disposition, to include the level of court that the subordinate commander believes to be appropriate. Here again, the commander first has the benefit of legal advice from his attorney (judge advocate).
The Accuser and How Charges Are Filed: The person who signs the charge sheet and attests to the accuracy of the charges is known as the accuser. Charges are filed under the Uniform Code of Military Justice by act of “preferral.” Although, any person subject to the Uniform Code of Military Justice may prefer charges, in most instances the unit commander prefers the charges.
Preferral Process: Charges are preferred (formally initiated) when the accuser, under oath, signs them before a commissioned officer of the armed forces authorized to administer oaths. The accuser must also state that he has personal knowledge or has investigated the matters set forth therein and believes they are true in fact to the best of his or her knowledge and belief. When an immediate commander acts as accuser, the commander may rely on the information developed in an investigative report.