Getting an Article 32 preliminary hearing on the calendar can take time. Witnesses must be located and made available, counsel need time to prepare, evidence has to be gathered, and a preliminary hearing officer has to be detailed and scheduled. When that process drags, an accused naturally wonders whether the delay can support a speedy trial motion. The answer is that it can, in principle, but whether a particular Article 32 delay actually helps depends on which speedy trial protection is invoked and, critically, on whether the delay was properly approved and reasonable. Much Article 32 scheduling delay turns out to be excludable, which blunts its value as a basis for relief.
The three speedy trial protections in the military
A military accused has three overlapping speedy trial protections, and Article 32 delay is analyzed differently under each.
The first is Rule for Courts-Martial 707, which sets a concrete deadline. The government must bring the accused to trial within 120 days after the earlier of the preferral of charges, the imposition of certain pretrial restraint such as restriction, arrest, or confinement, or the accused’s entry on active duty for the offense. The accused is brought to trial for this purpose when arraigned. The triggering date does not count, but the date of arraignment does.
The second is Article 10 of the UCMJ, which applies with particular force when the accused is in pretrial confinement or arrest. Once an accused is confined, the government must take immediate steps to try the person or release them, and the standard is reasonable diligence. Article 10 is independent of the 120-day rule; meeting the 120-day clock does not prove the government exercised the reasonable diligence Article 10 demands.
The third is the constitutional right to a speedy trial under the Sixth Amendment, evaluated through the familiar balancing of the length of the delay, the reasons for it, the accused’s assertion of the right, and the prejudice caused.
Why most Article 32 scheduling delay is excludable under the 120-day rule
Under the 120-day framework, the key concept is excludable delay. Periods of delay that are approved by the appropriate authority do not count against the 120 days. Before referral, the convening authority can approve and exclude delay, and that authority can be delegated, including to the preliminary hearing officer for matters connected to the hearing. After referral, the military judge controls exclusions.
Article 32 scheduling delays frequently fall into this excludable category. A reasonable delay to secure the attendance of witnesses for the preliminary hearing is the classic example. Military courts have upheld the exclusion of such time when the delay was reasonable and the authority to grant it had been properly granted or delegated. The practical consequence is that a well-documented, properly approved delay to get witnesses or evidence ready for the Article 32 hearing usually does not move the 120-day clock at all, which means it ordinarily will not support a Rule for Courts-Martial 707 motion.
The leverage for the defense under the 120-day rule, then, is not the mere fact that the Article 32 hearing was delayed. It is whether the delay was actually approved by someone with authority to approve it, whether the stated reason was genuine and reasonable, and whether the exclusion was properly recorded. A delay that was never validly approved, or that was justified by a pretextual or unreasonable reason, may not be excludable and can count against the government.
Where Article 32 delay carries more weight
The analysis shifts when the accused is in pretrial confinement, because Article 10’s reasonable diligence standard then applies independently. Even if Article 32 scheduling delay is technically excludable under the 120-day rule, a pattern of foot-dragging in getting the preliminary hearing scheduled and completed can still show a lack of reasonable diligence while the accused sits in confinement. So for a confined accused, slow Article 32 scheduling can be meaningful evidence in an Article 10 motion in a way that it might not be under the rigid 120-day count.
Under the constitutional analysis, Article 32 scheduling delay is one factor among several. A long delay attributable to the government’s lack of preparation weighs more heavily against the government than a short delay caused by genuinely unavailable witnesses or by the defense’s own requests. Delay that the defense itself sought or caused generally cannot be used by the defense to claim a constitutional speedy trial violation.
How a motion is likely to play out
A defense attorney evaluating an Article 32 scheduling delay will typically ask a series of questions. Was the accused in pretrial confinement, which activates Article 10? Was the delay formally approved, by whom, and for what stated reason? Was that reason reasonable, or does it look like inattention or a tactical stall by the government? Who actually caused the delay? The answers determine whether the delay is excludable, and therefore whether it helps. A short, reasonable, properly approved delay to secure hearing witnesses is unlikely to support relief, while an unexplained or poorly justified delay, especially during pretrial confinement, can become a real basis for a motion.
Bottom line
Delays caused by Article 32 scheduling can be grounds for a speedy trial motion, but they often are not, because much of that delay is excludable when it is reasonable and properly approved. Under the 120-day rule of Rule for Courts-Martial 707, validly approved Article 32 delay does not count against the government. The delay carries more weight under Article 10 when the accused is confined, since the government must show reasonable diligence regardless of the day count, and it figures as one factor in the constitutional balancing test. The decisive questions are whether the delay was properly approved, whether it was reasonable, who caused it, and whether the accused was in pretrial confinement.
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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