If the Preliminary Hearing Officer (PHO) concludes that there is insufficient probable cause to believe an offense was committed or that the accused committed it, they will document this finding in their formal report to the convening authority. For each charge where probable cause is lacking, the PHO will recommend that the charge be dismissed and not be referred to a court-martial.
This recommendation, while not legally binding, carries significant weight. It serves as a strong signal to the convening authority that, in the opinion of an impartial officer who has reviewed the evidence, the government’s case on that particular charge is weak or unsubstantiated. A convening authority who chooses to proceed with a charge in the face of a no-probable-cause recommendation from the PHO may be required to provide a written explanation for their disagreement.
The convening authority must carefully consider this recommendation along with the advice of their Staff Judge Advocate (SJA). In most instances, a convening authority will follow the PHO’s recommendation to dismiss a charge that lacks probable cause. Proceeding against the PHO’s advice can create the appearance of unfairness or vindictive prosecution and could become an issue for appellate review if the accused is ultimately convicted.
However, the convening authority retains the final discretion. If the commander, after reviewing all the information, believes that probable cause does exist despite the PHO’s finding, they can still refer the charge to a court-martial. This is an unusual step and is generally taken only if the commander has access to additional information not presented at the hearing or fundamentally disagrees with the PHO’s legal or factual analysis. The PHO’s finding gives the defense a powerful argument, but it does not guarantee dismissal.