If a Preliminary Hearing Officer (PHO) fails to address a specific charge or specification in the recommendation section of their written report, it is considered a procedural error that must be corrected. The PHO has a duty to provide a finding on probable cause and a recommendation for disposition for every single charge and specification that was the subject of the Article 32 hearing.
The first course of action would be for either the government or defense counsel to identify the omission and bring it to the attention of the PHO and the convening authority’s legal office. In most cases, this is a simple administrative oversight. The PHO would then issue an addendum or a corrected report that includes the missing analysis and recommendation for the overlooked charge.
If the omission is not corrected, the report is legally insufficient. The Staff Judge Advocate (SJA) who reviews the report before it goes to the convening authority should catch the error and return the report to the PHO for completion. A convening authority cannot legally refer a charge to a general court-martial based on an Article 32 report that is silent on that particular charge. Doing so would violate the procedural requirements of the UCMJ.
The defense should be particularly vigilant in reviewing the PHO’s report for such errors. While often an innocent mistake, a failure to address a charge could be argued by the defense as a lack of evidence to support it. The proper remedy, however, is not to assume a favorable finding, but to have the report corrected to ensure a complete and legally compliant pretrial investigation before the convening authority makes any referral decision.