Defense motions to dismiss charges immediately following Article 32 hearings face procedural obstacles since convening authorities, not military judges, control referral decisions based on PHO recommendations. However, defense counsel may submit written matters to convening authorities arguing against referral based on preliminary hearing revelations, essentially functioning as dismissal requests though technically not motions. These submissions should comprehensively detail why charges lack merit, evidence, or serve military justice interests based on hearing developments.
Substantive arguments for non-referral include PHO recommendations against proceeding, exposing fatal evidence weaknesses, demonstrating witness credibility collapse, revealing constitutional violations requiring dismissal, or showing alternative disposition better serves justice. Timing matters as convening authorities remain most receptive immediately following preliminary hearings before bureaucratic momentum builds toward referral. Coordinated strategies might combine legal arguments with command support for alternative resolution and victim input favoring non-judicial disposition.
If charges are referred despite defense efforts, immediate post-arraignment motions to dismiss may incorporate preliminary hearing results arguing fundamental defects apparent from inception. While judges independently evaluate dismissal motions, favorable PHO recommendations and hearing revelations provide powerful context supporting defense arguments. Preservation requires raising issues at earliest opportunities rather than waiting for trial, maintaining consistent positions from preliminary hearings through post-trial proceedings.
Success remains limited given systemic preferences for trial resolution over preliminary dismissal, but aggressive advocacy occasionally prevents referral or achieves early dismissal when cases truly lack merit. The key involves transforming preliminary hearing victories into immediate written advocacy rather than passively awaiting unfavorable referral decisions, maximizing narrow windows when dismissal remains possible.