While a commander technically has the authority to “prefer” charges (the formal accusation) without a prior legal review, doing so is highly irregular, contrary to standard practice, and fraught with risk. The guidelines that govern this process strongly favor a thorough legal review before any charges are preferred. The Manual for Courts-Martial and service regulations emphasize that a commander should consult with their legal advisor (SJA) to ensure that there is a good-faith basis for the charges and that they are drafted correctly.
Preferring charges is a formal legal step that triggers significant rights for the accused. If a commander prefers charges that are legally or factually deficient, they risk having the case immediately challenged and dismissed. Standard procedure across all services is for the commander’s legal office to review the evidence from an investigation and then to draft the charge sheet (DD Form 458) for the commander’s signature. This ensures the charges are legally sufficient from the outset.
A commander who bypasses their SJA and prefers charges on their own is taking a significant risk. A military defense attorney who receives a charge sheet that has not had a proper legal review will scrutinize it for any and all errors. They will immediately challenge any deficiencies. While a commander can technically prefer charges without a legal review, it is a deviation from accepted practice that is likely to result in a flawed and legally vulnerable prosecution, and it may even be viewed as evidence of a commander’s bias or improper motive.