No, Article 32 preliminary hearings are not required for cases that are being considered for referral to a special court-martial. The requirement for this robust pretrial investigation is reserved exclusively for cases heading toward a general court-martial, the highest trial forum in the military justice system.
This distinction is explicitly laid out in Article 32 of the UCMJ. The statute specifies that no charge may be referred to a general court-martial until after a thorough and impartial preliminary hearing has been conducted. It makes no such requirement for referral to a special court-martial. This procedural difference reflects the significant disparity in the potential punishments between the two forums. A general court-martial can adjudge any lawful sentence, including a dishonorable discharge and lengthy confinement, whereas a special court-martial has jurisdictional limits on punishment.
For cases contemplated for a special court-martial, the convening authority makes the referral decision based on a review of the investigative file provided by law enforcement and the legal advice of their Staff Judge Advocate (SJA). There is no formal, adversarial hearing where the defense can cross-examine witnesses and present evidence before the referral decision is made.
While a convening authority always has the discretion to order additional investigation into a matter, this would not be a formal Article 32 proceeding with all of its associated rights. The absence of a mandatory preliminary hearing is one of the most significant procedural differences between how special and general court-martial cases are processed, underscoring the UCMJ’s tiered approach to military justice.