After receiving the Preliminary Hearing Officer’s (PHO) report, the convening authority assumes the central role in deciding the fate of the case. The convening authority, a senior commander, is the ultimate decision-maker, and the PHO’s report is a key piece of advisory information to guide that decision. The commander’s first step is to carefully review the entire report.
The convening authority must consider the PHO’s summary of the evidence, their specific findings on whether probable cause exists for each charge, and their final recommendation for disposition. In addition to the PHO’s report, the commander will also receive and review a separate legal memorandum from their Staff Judge Advocate (SJA). This SJA advice will analyze the PHO’s report and provide the commander with an independent legal recommendation on how to proceed.
Based on these advisory documents and any other relevant information, the convening authority has several options. They can adopt the PHO’s recommendation entirely, such as by dismissing charges or referring them to the recommended court-martial forum. They can also disagree with the PHO. The commander might decide to refer a charge to trial even if the PHO recommended dismissal, or they might reduce a charge that the PHO believed was supported by probable cause.
Ultimately, the convening authority exercises their command discretion to direct the next step. Their decision is formalized in a document called the “referral,” which officially sends the charges to a specific court-martial for trial. This decision must be based on a holistic view of the case, balancing the evidence, the legal advice received, the interests of justice and the victim, and the need to maintain good order and discipline within the military.