Referral of Charges

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After each level of the command reviews the nature of the charges and receives a report on the offenses, they give a recommendation regarding what should happen with the charges. Most often, they recommend to the base commander to send the case forward to a court-martial. The process of making allegations on a charge sheet an official court-martial is known as the Referral of charges.

Referral occurs when the General Court-Martial Convening Authority, makes a decision that the offense states a crime, each offense is supported by probable cause, and there is jurisdiction over the offense and the person. Sending it forward to court is the referral process. Referral is signified by a signature on the back side of the charge sheet and accompanies a document known as the Staff Judge Advocate Advice. When the case is referred, it is also annotated to which court-martial convening order the case is referred to.

It is important to note that while these processes happen every day, so too are mistakes made. There are specific technical requirements and when they are not met, your advocate should decide whether to file written documents to object to the referral as being improper or as being deficient in some specific way. Realize that most often failure to properly refer does not mean the case goes away in its entirety; in these instances, the government will have to repeat one or more steps until they get it right. There are often tactical decisions that override filing these actions.

Other than the technical aspects of this process, what is important to the military accused is awareness that the government will be required to serve another copy of the DD Form 453 on the accused. In many if not most cases, the charge sheet looks identical to the one at the Preferral stage. Even when the charge or charges are the same, the prosecution is required via the command to demonstrate that the accused was provided a copy of the referred charge sheet.

A military accused person should expect the day of referral or maybe even a day or two later to be called into the command or the legal office at a designated time in a specific uniform. Typically, the person will be told to wear the usual duty uniform. This is a brief event to receive the copy and to sign some kind of acknowledgement of receipt of the referred charge sheet. Even though the attorneys will receive their own copy, it is always a good idea to send a copy to the attorney to make sure they know as early as possible that referral has occurred.

As with the preferral of charges, it is important to remain stoic during this process. This is also not an appropriate time to try to ask questions of the government, command, or prosecution. Those questions could later be used against you in trial. Simply be in receive mode, be professional, obtain your copy, and then depart the area to update your counsel.