Yes, under most circumstances, an Article 32 preliminary hearing is a mandatory prerequisite before any charge can be referred to a general court-martial. Article 32(a) of the UCMJ explicitly states that no charge or specification may be referred to a general court-martial for trial until a thorough and impartial preliminary hearing has been conducted. This requirement serves as a critical procedural safeguard for the accused.
This mandatory nature underscores the importance of the hearing in the military justice system. It is designed to act as a check on prosecutorial power, ensuring that a service member is not forced to face the most serious type of court-martial, with its potentially severe punishments, unless the charges have first been vetted by a neutral officer. The hearing provides an essential layer of due process that protects the accused from unsubstantiated or improperly motivated prosecutions.
The only significant exception to this rule is if the accused knowingly and voluntarily waives their right to the Article 32 hearing. An accused, after consulting with their defense counsel, may decide to waive the hearing for strategic reasons. This waiver must be in writing. If a waiver occurs, the convening authority can proceed with referring the charges directly to a general court-martial without the preliminary investigation.
It is important to note that this requirement applies specifically to referral to a general court-martial. There is no right to an Article 32 hearing for cases being considered for a special or summary court-martial, which are lower levels of trial forums. The mandate for an Article 32 hearing is triggered by the potential for a case to be tried at the highest trial level within the military justice system, reflecting the seriousness of the proceedings.