Yes, evidence of an accused’s prior service misconduct can potentially be introduced during the Article 32 preliminary hearing phase, but its relevance and purpose must be carefully considered by the Preliminary Hearing Officer (PHO). The relaxed evidentiary standards of the hearing allow for a broader range of information than would be admissible at trial.
The government might seek to introduce prior misconduct, such as records of nonjudicial punishment (NJP) or administrative reprimands, for a limited purpose. For instance, if the current charge involves a pattern of behavior, the government could argue the prior misconduct is relevant to show motive, intent, or absence of mistake. However, it cannot be used simply to argue that the accused has a bad character and is therefore likely to have committed the charged offense (propensity evidence).
More commonly, evidence of prior misconduct becomes relevant to the PHO’s recommendation on disposition. The PHO is tasked not only with determining probable cause but also with recommending how the case should be handled. An accused’s disciplinary history is a highly relevant factor for a commander when deciding whether to refer a case to a general court-martial, a special court-martial, or to handle it administratively. The PHO can legitimately consider this information for that purpose.
The defense can, and should, object if the government appears to be using prior misconduct for an improper propensity purpose. The defense can also introduce evidence of a lack of prior misconduct, presenting the accused’s good military record as a reason for a more lenient disposition. The PHO must weigh this information appropriately, using it to inform the recommendation on disposition rather than the determination of probable cause for the specific offense charged.