Yes, a convening authority, who is the commander with referral power, can override a Preliminary Hearing Officer’s (PHO) recommendation to dismiss charges. The PHO’s report and recommendations are purely advisory and are not legally binding on the commander. The final decision regarding the disposition of charges rests solely within the discretion of the convening authority.
This power is a central feature of the command-centric military justice system. The commander is expected to consider the PHO’s report and the separate legal advice from their Staff Judge Advocate (SJA) but is not required to follow either recommendation. The commander must exercise their own independent judgment based on all the facts and circumstances available to them.
However, a decision to override a PHO’s recommendation to dismiss is not taken lightly and is relatively uncommon. The PHO’s report provides a detailed, impartial analysis of the evidence. A recommendation of dismissal signals a significant weakness in the government’s case. If a commander chooses to refer a charge to trial despite the PHO finding a lack of probable cause, they are often required to provide a written justification for their decision.
This justification could be based on evidence not presented at the hearing or a fundamental disagreement with the PHO’s legal or factual analysis. Such a decision would be scrutinized carefully by the defense and could potentially become an issue on appeal, where it might be raised as evidence of an abuse of discretion or unlawful command influence. Therefore, while the commander has the authority to override the PHO, it is a power that is exercised with caution.