The preliminary hearing officer who presides over an Article 32 hearing produces a recommendation, but that recommendation is not a decision. The convening authority, the commanding general or flag officer who referred the case, retains the power to send charges to trial regardless of what the preliminary hearing officer concludes. This is one of the features of the military justice system that most distinguishes it from civilian criminal procedure, where a grand jury’s failure to indict typically ends a prosecution.
Understanding this dynamic is essential for managing expectations and planning a defense strategy. A strong Article 32 performance that produces a favorable recommendation is valuable, but it is not the end of the fight. The defense must be prepared to continue if the convening authority disagrees, and must document the record at the hearing in a way that supports any later challenge to the referral decision.
The Role of the Preliminary Hearing Officer
The preliminary hearing officer is a judge advocate, typically with trial experience, who is appointed to conduct the Article 32 hearing. The PHO is not a decision-maker in the final sense. They review the evidence presented, hear argument from both sides, examine witnesses if called, and produce a written report containing findings and a recommendation. That report goes to the convening authority, who is not bound by it.
The PHO’s role requires neutrality, but neutrality does not mean passivity. PHOs ask their own questions, make evidentiary rulings within the context of the hearing, and have the authority to call for additional evidence. A defense attorney who appears before a PHO who takes the role seriously can use the hearing to develop a record that the convening authority and, later, the trial judge will see. The PHO’s observations about witness credibility and the strength of the evidence can be meaningful even when the ultimate referral decision goes against the defense.
Why the Convening Authority Has Final Referral Power
The convening authority’s power to refer charges over a PHO’s recommendation against referral is one of the features of the military justice system that most clearly distinguishes it from civilian criminal procedure. The rationale is that the convening authority, as a senior military officer with command responsibility, bears accountability for the administration of military justice within their jurisdiction. That accountability is accompanied by authority, and the authority includes the final decision about whether charges go forward.
Critics of this structure argue that it creates the possibility of command-driven prosecutions that the preliminary hearing process was designed to prevent. Proponents argue that the convening authority serves as a check on the PHO’s analysis rather than a mechanism for overriding it arbitrarily. In practice, convening authorities who refer charges over a PHO’s adverse recommendation do so with the awareness that the decision will be scrutinized and that a weak case sent to trial over a PHO’s objection can result in acquittal and appellate reversal.
The Convening Authority’s Discretion and How It Is Exercised
The convening authority exercises referral discretion based on the PHO’s report, the recommendation of the staff judge advocate, and the convening authority’s own assessment of the facts, the law, and the command’s interests. The SJA’s written opinion on whether to refer is a mandatory step, and the convening authority cannot refer without receiving it. But the SJA opinion is advisory, and the convening authority may disagree.
In practice, convening authorities rarely refer charges when the PHO and the SJA both recommend against it. Cases where the referral decision goes against both recommendations are exceptional and tend to occur in high-profile matters where command, political, or victim-advocacy pressures are intense. Defense counsel who anticipate this possibility must prepare for trial while still pursuing every avenue to prevent referral.
What the Defense Can Do When a Dismissal Recommendation Is Ignored
When a convening authority refers charges over a PHO’s recommendation to dismiss, the defense has limited but real options. The referral decision itself can be challenged if it was made in violation of applicable regulations, without the required SJA opinion, or in circumstances that suggest unlawful command influence. A motion to dismiss based on the failure of the referral process to comply with the UCMJ’s requirements is a recognized avenue of relief.
More commonly, the defense uses the PHO’s recommendation as evidence at trial. A neutral judge advocate who reviewed the evidence and concluded that it did not support referral has made a finding that the defense can use to undermine the government’s case before a panel. While the PHO’s recommendation is not evidence of innocence, it is a documented professional assessment that the case was weak, and that assessment can influence how panel members receive the government’s presentation.
Appealing Referral Decisions and the Limits of That Process
Referral decisions are not directly appealable before trial. The military appellate system addresses conviction and sentence outcomes, not pre-trial procedural decisions. A service member who believes the referral was improper must raise that claim through pretrial motions before the military judge and preserve it for post-conviction review if the motions are denied and the case proceeds to trial.
The practical implication is that the fight against an improper referral must be waged in the trial court before the trial begins. Pretrial motions that challenge the referral on grounds of unlawful command influence, failure to comply with Article 32 procedures, or other legal defects must be filed, argued, and decided before the trial proceeds. The record developed in those motions is what the appellate court will review if the case ends in conviction.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.