The role of the convening authority in sexual assault cases has changed substantially. For most of the modern history of military justice, a commander serving as convening authority decided whether Article 120 charges would go to a court-martial. Reforms enacted in the National Defense Authorization Act for Fiscal Year 2022 and implemented at the end of 2023 shifted key decisions in serious sexual assault cases away from commanders and to independent military prosecutors. To understand the convening authority’s function in Article 120 charges today, you have to understand both what changed and what the convening authority still does.
The Traditional Convening Authority Function
A convening authority is a commander empowered to create, or convene, a court-martial. Historically this person performed several gatekeeping roles. The convening authority decided whether to refer charges to trial, selected the type of court-martial, detailed the members who would serve on the panel, and once held broad power to modify findings and sentences after trial. In sexual assault cases, this concentration of authority in the chain of command drew sustained criticism, because the same commander who oversaw the accused and the accuser also decided whether the case would be prosecuted.
The Creation of Special Trial Counsel
Congress responded by creating offices of special trial counsel, authorized under Article 24a of the UCMJ, 10 U.S.C. 824a. These are senior, independent judge advocates who sit outside the accused’s chain of command. For a defined set of covered offenses, which include rape and sexual assault under Article 120, the special trial counsel now holds the binding authority to decide whether charges will be preferred and whether they will be referred to a general or special court-martial. This authority took effect in December 2023.
The practical result is that for an Article 120 covered offense, the central prosecutorial decision no longer belongs to the convening authority. If a special trial counsel determines that a covered offense should be referred to trial, that determination is binding on the convening authority. If the special trial counsel decides not to pursue the covered offense, the convening authority cannot refer that covered offense to a special or general court-martial on its own.
What the Convening Authority Still Does in Article 120 Cases
The convening authority has not disappeared from Article 120 cases. Several important functions remain.
First, the convening authority still convenes the court-martial itself. Even when a special trial counsel makes the referral decision for a covered offense, the court-martial is created under the authority of a convening authority, and the administrative machinery of detailing the court flows through that office in coordination with the special trial counsel framework.
Second, the convening authority retains authority over offenses that are not covered offenses. A single incident can generate multiple charges. The special trial counsel controls the covered Article 120 offense, while the convening authority may continue to exercise traditional authority over related non-covered charges, subject to coordination rules designed to keep related charges together.
Third, the convening authority continues to handle a range of pretrial and administrative matters, including approving certain pretrial confinement decisions within the applicable rules, acting on some requests, and addressing matters that fall outside the special trial counsel’s defined lane.
Advice Before Referral and the Role of Legal Review
Article 34 of the UCMJ, 10 U.S.C. 834, requires legal advice before referral, including a determination that the charges allege an offense, are warranted by the evidence, and that a court-martial would have jurisdiction. In the reformed system, the special trial counsel’s referral of a covered offense is accompanied by a written determination. The requirement for careful legal vetting before a case goes to trial remains a structural safeguard, now anchored in the independent prosecutor’s judgment for covered sexual assault offenses.
Post-Trial Authority Is Sharply Limited
Earlier reforms had already curtailed the convening authority’s power after trial. Under Article 60a, 10 U.S.C. 860a, the convening authority’s ability to modify findings and sentences is limited, and for serious offenses the convening authority generally cannot set aside a finding of guilty or reduce a qualifying sentence. This means that even where a convening authority remains involved administratively, that official cannot simply undo an Article 120 conviction returned by the court-martial.
Victim Considerations in the Disposition Process
Throughout the disposition process, the views of the person who reported the offense are part of the framework. The reforms preserved mechanisms for ensuring that a victim’s statement and views about disposition are considered, and the shift to independent special trial counsel was driven in part by the goal of insulating these decisions from command influence and improving confidence in the fairness of the process.
Conclusion
In Article 120 cases involving covered sexual assault offenses, the most consequential prosecutorial decisions, whether to prefer and whether to refer charges to a court-martial, now rest with an independent special trial counsel rather than the convening authority. The convening authority still convenes the court, handles non-covered and administrative matters, and operates within a system of legal review, but its historical role as the commander who decides whether a sexual assault case is prosecuted has been replaced for covered offenses. Anyone navigating an Article 120 case should understand this division of authority, because it determines who makes the decisions that shape the case.
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.
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