A common and important question for any service member facing a sexual offense allegation under Article 120 of the Uniform Code of Military Justice is whether the government can skip the Article 32 preliminary hearing and send the case straight to a general court-martial. The general rule is that it cannot. An Article 32 preliminary hearing is a statutory prerequisite to referral to a general court-martial, and there are only narrow circumstances in which that step is bypassed.
The statutory requirement
Article 32 of the Uniform Code of Military Justice requires that a preliminary hearing be conducted before charges may be referred to a general court-martial for trial. This requirement is not discretionary in the ordinary case. A general court-martial is the highest level of military trial and the only forum with jurisdiction to adjudge the most serious punishments, and Congress conditioned access to that forum on first holding the preliminary hearing. Because Article 120 sexual offenses proceed at the general court-martial level, the Article 32 requirement applies squarely to them.
The purpose of the preliminary hearing
The Article 32 hearing serves as a screening function before the case advances. A preliminary hearing officer examines whether each specification alleges an offense under the code, whether the command has jurisdiction over the accused and the offense, whether there is probable cause to believe the accused committed the charged offense, and what disposition the officer recommends. The hearing also gives the accused, often for the first time, a structured look at part of the government’s case and an opportunity to be heard before the matter is referred for trial.
It is worth emphasizing what the hearing is not. It is not a trial, and its purpose is not to perfect the government’s case or to serve as a discovery device. Its role is limited to the screening questions above. But limited as it is, the hearing is a meaningful procedural checkpoint that the government must clear before reaching a general court-martial.
The principal exception: waiver
The main way an Article 120 case reaches a general court-martial without a hearing is through waiver by the accused. The statute allows the accused to submit a written waiver of the preliminary hearing. Even then, the convening authority must determine whether a hearing is nonetheless required. An accused might choose to waive for strategic reasons, such as avoiding an early airing of testimony, or as part of broader negotiations. The decision to waive should be made only with the advice of counsel, because giving up the hearing forfeits a valuable opportunity to test probable cause, hear from witnesses, and shape the recommendation that goes to the decision-maker.
What the hearing does not guarantee
Even when the hearing is held, the accused should understand its limits. The preliminary hearing officer makes a recommendation, but that recommendation is not binding. The authority deciding on referral can refer charges to a general court-martial even if the hearing officer recommended otherwise, and the probable cause threshold is a relatively low bar compared with the proof beyond a reasonable doubt required at trial. So clearing the Article 32 stage does not mean the government has a strong case, and a favorable recommendation does not guarantee the charges will be dropped.
How recent reforms fit in
The structure for prosecuting sexual offenses has changed with the creation of independent military prosecutors who now decide whether to pursue covered offenses, including those under Article 120. These changes affect who controls the charging and referral decision, but they do not eliminate the Article 32 preliminary hearing requirement for a general court-martial. The hearing remains a required step in the ordinary course, subject to the waiver provision.
The bottom line for the accused
For a service member charged under Article 120, the practical answer is this. The government generally cannot refer the case directly to a general court-martial without first holding an Article 32 preliminary hearing. The most common path that skips the hearing is a voluntary, written waiver by the accused, and even that is subject to the convening authority’s determination. Because the hearing is one of the few pretrial opportunities to challenge probable cause, examine the government’s evidence, and influence the disposition recommendation, the decision to waive it should never be made lightly. Experienced military defense counsel can advise whether to demand the hearing and how to use it most effectively.
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.