The preliminary hearing officer in a military case is required to produce a written report covering the charges, and that report is supposed to address each specification. Sometimes it does not. A charge may be omitted, a probable cause finding may be missing for one specification, or the recommendation may simply fail to discuss a charge that later gets referred to trial. This article explains what that omission means legally, whether it stops the case, and how the defense can use it. The recurring theme is that an Article 32 defect rarely ends a prosecution on its own, but it can still matter.
What the PHO’s written report is supposed to contain
Article 32 of the UCMJ, codified at 10 U.S.C. 832, sets the scope of the preliminary hearing and the report. For the charges before the hearing officer, the report should reflect whether each specification states an offense, whether there is probable cause to believe the accused committed each charged offense, whether the convening authority has jurisdiction, and a recommendation on disposition. The implementing Rules for Courts-Martial require the report to be in writing and to address these matters. A complete report walks through the specifications rather than treating the case as a single undifferentiated block.
When the report omits a charge, several things might have happened: the PHO overlooked it, the parties did not present it clearly, the charge was added later, or the PHO believed it was subsumed in another. The legal significance depends on what the omission actually is.
An Article 32 defect is generally not jurisdictional
The most important principle is that the preliminary hearing is a procedural protection, not a source of the court’s power to act. A defect in the Article 32 process, including a failure to address a charge, does not by itself deprive the court-martial of jurisdiction. This matters because a non-jurisdictional error is treated differently from a jurisdictional one. It generally must be raised in a timely way, and on review it is usually tested for prejudice rather than treated as automatically fatal. So the bare fact that the PHO did not discuss a particular charge does not mean the charge is void.
That said, the protection still has teeth when it is invoked properly and the omission caused real harm.
The remedy is usually to object and seek relief before trial
The correct response to a missing charge in the report is to raise it promptly. The defense can object to the report’s sufficiency and can move for appropriate relief. Common requests include asking the military judge to order a new or supplemental preliminary hearing that addresses the omitted charge, or moving to dismiss the affected specification on the ground that it was referred without the preliminary hearing that Article 32 requires. The judge evaluates whether the omission deprived the accused of the hearing’s protections as to that charge and what relief fits.
If the defect is curable, the typical outcome is a corrective hearing rather than outright dismissal, because the system favors giving the accused the process the statute guarantees rather than ending the case over a fixable procedural gap. If a charge was never the subject of any preliminary hearing and is then referred to a general court-martial, that is a stronger basis to seek dismissal of that specification, since the statutory precondition for referral to a general court-martial was not met for that charge.
Forfeiture and the importance of timing
Because the defect is procedural, failing to raise it can forfeit the issue. The Rules for Courts-Martial require many objections relating to the preliminary hearing and the charges to be made before trial, and a defense that waits risks having the omission reviewed only for plain error or treated as waived. That is why counsel reviews the PHO report against the referred charge sheet specification by specification. If a referred specification was not addressed, the time to act is immediately, by objecting and requesting relief, not after findings.
Distinguishing a true omission from a permissible recommendation
Not every gap is an error. A PHO might decline to recommend a charge while still addressing it, or might recommend dismissal of a charge that the deciding authority then refers anyway, which is permitted because the recommendation is advisory. Those are not failures to address the charge; they are recommendations the deciding authority can lawfully reject. The defect this article concerns is a genuine failure to consider or report on a specification that is part of the case. Counsel must read the report carefully to tell the difference, because the available relief depends on whether the charge was analyzed and rejected or simply skipped.
Preserving the issue for appeal
If the military judge denies relief, the objection preserves the issue for appellate review before the service Court of Criminal Appeals and potentially the Court of Appeals for the Armed Forces. On appeal, because the error is non-jurisdictional, the question will usually be whether the omission materially prejudiced the substantial rights of the accused. A well-documented objection at trial, showing what the missing analysis was and how it harmed the defense, gives the appellate court the record it needs to assess prejudice.
Practical steps for the accused
A service member should obtain the full written PHO report and compare it line by line to the charges that were actually referred. Any specification that appears on the charge sheet but is not addressed in the report should be flagged to defense counsel at once. Counsel can then decide whether to demand a supplemental hearing, move to dismiss the affected charge, or both, and will make the objection before trial to avoid forfeiture. Keeping the focus on the specific charge that was omitted, and on the concrete harm, is more effective than a general complaint about the report.
Conclusion
If the PHO fails to address a charge in the written recommendation, the case usually does not end automatically, because the preliminary hearing is a procedural safeguard rather than a jurisdictional requirement. The right move is to raise the omission promptly, seek a supplemental hearing or dismissal of the affected specification, and preserve the issue for appeal, where it is tested for prejudice. A service member who spots a referred charge missing from the report should bring it to counsel immediately so the objection is made before trial.
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.