Not in the way the question might suggest. An Article 32 preliminary hearing officer has no authority to dismiss charges, so the defense cannot win a dismissal from the hearing officer the moment the hearing ends. What the defense can do is use the conclusion of the hearing to press for a favorable disposition through the next decision-maker in the process, the convening authority, and then, if the case is referred to a court-martial, to file motions to dismiss before the military judge who has the power to grant them. In other words, the path to dismissal runs through the convening authority’s referral decision and the trial court, not through a motion ruled on by the preliminary hearing officer.
Why the hearing officer cannot dismiss
The Article 32 hearing is a screening proceeding, not a tribunal that adjudicates the case. The preliminary hearing officer’s job is limited to determining whether the specifications allege offenses under the Uniform Code of Military Justice, whether there is probable cause to believe the accused committed them, whether the convening authority has jurisdiction, and what disposition to recommend. The hearing officer then submits a report with those determinations and a recommendation. Crucially, the hearing officer recommends; the hearing officer does not order. The decision whether to dismiss, refer, or otherwise dispose of the charges belongs to the convening authority, not to the hearing officer. So a defense request that the charges be dropped is, at the hearing stage, properly understood as advocacy directed at the hearing officer’s recommendation and, ultimately, at the convening authority’s decision, rather than a motion the hearing officer can grant outright.
Using the hearing to seek a no-probable-cause recommendation
The most direct way the defense influences the outcome right after the hearing is by persuading the hearing officer to recommend against referral, ideally by finding that probable cause is lacking or that the charges should not proceed. A hearing officer’s report that concludes there is no probable cause, or that recommends dismissal or a lesser disposition, carries weight with the convening authority. While it does not compel any particular result, it is an important input, and convening authorities give the hearing officer’s recommendation serious consideration. Effective defense advocacy at and immediately after the hearing therefore focuses on the report, including any matters the defense is entitled to submit for the hearing officer’s consideration, with the goal of shaping a recommendation that favors dismissal.
The recommendation does not bind the convening authority
A central limitation must be understood. Even a hearing officer’s finding of no probable cause does not prevent the convening authority from referring the charges to a court-martial. Article 32 requirements are binding on those administering the system, but a failure to comply does not amount to jurisdictional error, and the convening authority retains discretion over disposition. This means the defense cannot treat a favorable hearing outcome as a guaranteed dismissal. A no-probable-cause recommendation improves the defense’s position and may well lead the convening authority to decline referral, but the convening authority can lawfully refer charges over that recommendation. The realistic goal immediately after the hearing is to maximize the chance that the convening authority chooses not to refer, not to obtain an enforceable dismissal from the hearing itself.
Where genuine motions to dismiss are filed
The forum with actual power to dismiss is the court-martial. If the convening authority refers the charges, the case goes before a military judge, and that is where the defense files motions to dismiss. Such motions can raise defects in the preliminary hearing, jurisdictional problems, failure to state an offense, statute of limitations issues, unlawful command influence, speedy trial violations, and other recognized grounds, and the military judge rules on them. A defect in the Article 32 process can be raised before the judge, although relief depends on the nature of the defect and any showing of prejudice, and because the statute provides that noncompliance is not jurisdictional, not every flaw will result in dismissal. The key point is that these dismissal motions belong to the trial stage and are decided by the judge, after referral, rather than by the hearing officer at the close of the preliminary hearing.
A practical timeline for the defense
Thinking in sequence helps. During and at the close of the Article 32 hearing, the defense argues the weaknesses in the government’s probable-cause showing and submits matters aimed at the hearing officer’s report, seeking a recommendation against referral. After the hearing, while the convening authority is deciding disposition, the defense can continue to advocate for dismissal or an alternative resolution through the channels available before referral. If the convening authority nevertheless refers the case, the defense then files its motions to dismiss with the military judge, raising every viable legal ground, including any deficiency in the preliminary hearing itself. Each stage has its own decision-maker and its own standard, and the defense tailors its requests accordingly.
Bottom line
The defense cannot obtain a dismissal directly from the Article 32 hearing officer, because that officer only makes findings and a recommendation and lacks the power to dismiss. The realistic immediate objective is a hearing report that recommends against referral, which the convening authority will weigh but is not bound to follow, since a no-probable-cause finding does not bar referral. True motions to dismiss are filed after referral, before the military judge at the court-martial, who has the authority to grant them on recognized legal grounds. Understanding which decision-maker holds the dismissal power at each stage is essential to pursuing it 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.