The decision about which type of court-martial a service member faces is made by a convening authority, typically a general or flag officer, based on the recommendation of a staff judge advocate. The accused does not choose the forum, but that does not mean the defense is without influence over the outcome. Experienced military defense attorneys understand how to present mitigation, challenge the adequacy of the investigation, and engage the SJA process in ways that can affect the charging decision before it is final.
The forum choice matters more than most accused service members initially realize. The maximum punishment available, the composition of the panel, and the procedural rights of the accused all vary depending on which type of court-martial is convened. A case that could result in a bad conduct discharge at a special court-martial might face a dishonorable discharge if referred to a general, and that difference can define the rest of a veteran’s life.
How Convening Authorities Decide Which Forum to Use
The convening authority’s forum selection decision is formally based on the nature and severity of the alleged offense, the strength of the evidence, and the range of punishments appropriate to the case. In practice, it also reflects the SJA’s assessment of what the case is worth in terms of the government’s time and resources, and what message the command wants to send about the conduct involved. These practical considerations create room for advocacy that a skilled defense attorney can exploit.
Serious offenses with strong evidence generally go to general court-martial because that forum carries the full range of UCMJ punishments. Moderate offenses often go to special court-martial. Lesser offenses may be handled through NJP or summary court-martial. But the lines are not rigid, and cases that fall near the border between forums are genuinely negotiable. A defense attorney who presents compelling mitigation, challenges the adequacy of the investigation, or raises legal questions about the charge can shift the SJA’s recommendation in a way that changes the forum and, with it, the maximum exposure.
The Role of the Staff Judge Advocate in the Referral Decision
The staff judge advocate is the senior legal advisor to the convening authority and plays a central role in the forum selection decision. Before any charge is referred to a general court-martial, the convening authority must obtain a written SJA opinion addressing the legal sufficiency of the charges and any other legal issues. The SJA’s recommendation about forum is typically included in that opinion, and it carries significant weight even though it is not binding.
Defense counsel who understand the SJA’s role can engage the SJA process as an advocacy opportunity. Submitting written matters to the SJA before the opinion is finalized, presenting mitigating information, and raising legal objections to the charges or the investigation can all influence what the SJA recommends. A convening authority who receives an SJA opinion that identifies legal problems or recommends a lesser forum is less likely to override that recommendation without strong reason.
Legal and Practical Ways the Defense Can Influence Forum Selection
The defense’s ability to influence forum selection operates through several channels. Written submissions to the convening authority or the SJA can present mitigation, question the adequacy of the investigation, and raise legal arguments against specific charges. Engagement with the Article 32 process that produces a strong PHO recommendation against referral or against general court-martial referral specifically gives the convening authority documentary support for a more favorable forum decision. And the quality of the defense team itself can signal to the government that a general court-martial will be aggressively contested.
Plea negotiations that result in a pretrial agreement specifying the forum are another avenue. A convening authority who is willing to refer to a special rather than a general court-martial as part of a pretrial agreement has effectively allowed the defense to influence forum selection through negotiation. Whether to pursue that avenue, and on what terms, is a strategic decision that must weigh the benefits of a lesser forum against the costs of a guilty plea.
Why Forum Choice Has Major Consequences for Sentencing
The forum determines the maximum punishment available, the composition of the fact-finder, and the procedural rights of the accused. A general court-martial can impose a dishonorable discharge, confinement for life in the most serious cases, and total forfeiture of pay and allowances. A special court-martial’s punishment authority is substantially more limited. The difference in sentencing exposure between the two forums is not marginal. It can be the difference between a punitive discharge that ends a career and decades of confinement.
For the accused who is considering whether to fight the charges or negotiate, the forum in which the case will be heard is a central variable in that calculation. The decision to enter a pretrial agreement, the terms that are acceptable, and the risk of trial all look different depending on whether the accused is facing a general or a special court-martial. Understanding the forum’s implications before any decision is made is essential for making decisions that serve the accused’s actual interests.
When to Push for a Lower Forum and When Not To
Pushing for a lower forum is almost always in the defense’s interest when the government is considering general court-martial referral, because the lower forum’s sentencing limitations protect the accused against the worst outcomes. But there are exceptions. A special court-martial that can impose a bad conduct discharge may be a worse outcome than a general court-martial conviction that results in administrative separation rather than a punitive discharge, depending on how the pretrial agreement is structured.
The decision requires a careful analysis of the realistic sentencing range in both forums, the availability of a pretrial agreement that addresses the forum, and the accused’s priorities regarding career, retirement, benefits, and post-service life. Defense counsel who have experience with how specific convening authorities and SJAs make these decisions bring information to this analysis that the accused cannot develop independently.
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.