Yes. An Article 32 preliminary hearing officer can recommend that charges be dismissed even when probable cause is present. Probable cause and disposition are two different questions, and the officer is required to address both. Understanding why these inquiries are separate helps a service member and counsel make better use of the hearing.
What the Reforms Changed
The function once known as the Article 32 “investigation” became a “preliminary hearing” after Congress amended Article 32 of the Uniform Code of Military Justice. The changes were enacted in the National Defense Authorization Acts for Fiscal Years 2014 and 2015, implemented through revisions to Rule for Courts-Martial 405, and applied to preliminary hearings conducted on or after December 26, 2014. The earlier model, which functioned partly as a broad discovery tool, was narrowed. The hearing now centers on a limited set of statutory questions rather than a free-ranging look at the entire case.
The officer who runs the hearing is called the preliminary hearing officer. Whenever practicable, this is a judge advocate, and for a general court-martial the rules favor an officer who is a judge advocate certified under Article 27(b).
The Two Separate Questions
Article 32, as amended, directs the preliminary hearing officer to determine several things. First, whether there is probable cause to believe that an offense has been committed and that the accused committed it. Second, whether the convening authority has court-martial jurisdiction over the accused and the offense. Third, whether each specification is properly drafted. Fourth, a recommendation about how the case should be disposed of.
Probable cause is a low threshold. It asks only whether there is a reasonable belief that the offense occurred and that the accused was involved. It is far below the trial standard of proof beyond a reasonable doubt. Because the bar is low, the government can frequently clear it.
Disposition is a different inquiry altogether. Even where the evidence reaches probable cause, the officer may conclude that referral to a general court-martial is not the right outcome. The recommendation may favor dismissal, resolution at a lower forum such as a special court-martial, nonjudicial punishment, or administrative action. Nothing in the rule forces the officer to recommend trial simply because the probable cause box can be checked.
Why a Dismissal Recommendation Can Coexist With Probable Cause
The preliminary hearing officer weighs the strength and reliability of the evidence, not just its bare sufficiency. Witness credibility problems, gaps in corroboration, weak forensic support, or proof that depends heavily on a single contested account can all lead an officer to find probable cause technically satisfied while still doubting that the case should proceed to a felony-level trial. The officer may also consider whether the charges are properly drafted, whether jurisdiction is sound, and whether the interests of justice and good order would be better served by a different disposition.
In short, the probable cause finding measures whether the case can go forward. The disposition recommendation measures whether it should. Those answers do not have to point in the same direction.
The Recommendation Is Advisory
It is important to be realistic about the weight of the recommendation. The preliminary hearing officer prepares a report containing the findings and the disposition recommendation, but that report is advisory. The convening authority, advised by the staff judge advocate, makes the actual referral decision. A convening authority may refer charges to a general court-martial even after the officer recommends dismissal, and may decline to refer even after a finding of probable cause.
That said, a recommendation against referral is not meaningless. It becomes part of the record, it can shape the staff judge advocate’s pretrial advice under Article 34, and it gives the defense a documented, neutral assessment of weaknesses in the government’s proof. Counsel can use a favorable recommendation in negotiations with the convening authority and in later motions practice.
Practical Takeaways for the Accused
Because the hearing is now narrower than the old investigation, defense counsel should approach it strategically rather than treating it as full discovery. The defense can cross-examine witnesses the government produces, present matters in defense and mitigation, and argue directly that the proper disposition is dismissal or a reduced forum even if probable cause is met. Building a clear record on credibility and evidentiary weaknesses gives the preliminary hearing officer a basis to recommend against a general court-martial.
A service member should also remember that a recommendation of dismissal does not end the matter on its own. The fight may continue before the convening authority and, if charges are referred anyway, at trial through motions and on the merits. The Article 32 hearing is one stage in that process, and a favorable recommendation is a useful tool rather than a guaranteed outcome.
If you are facing charges and an Article 32 preliminary hearing has been ordered, qualified defense counsel can help you decide which witnesses to confront, what evidence to present, and how to frame a disposition argument that asks the officer to recommend dismissal even where the low probable cause standard is technically satisfied.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.