When charges are referred toward a general court-martial, the case usually passes through an Article 32 preliminary hearing first. The officer who runs that hearing is the preliminary hearing officer, commonly called the PHO. Accused service members and their families often ask a practical question about this stage: if the PHO believes a full court-martial is too severe, can that officer recommend that the command handle the matter through nonjudicial punishment instead? The short answer is yes, the PHO may recommend nonjudicial punishment or another lower forum as the appropriate disposition. The longer answer requires understanding what the PHO actually decides, how much weight that recommendation carries, and who holds the final authority.
What the preliminary hearing officer is asked to decide
The scope of the Article 32 preliminary hearing is set by Rule for Courts-Martial 405. After the 2014 reforms to Article 32 of the Uniform Code of Military Justice, the hearing stopped being a broad discovery proceeding and became a narrower probable cause review. The PHO is limited to examining evidence relevant to four specific questions.
First, the PHO determines whether each specification properly alleges an offense under the UCMJ. Second, the PHO determines whether there is probable cause to believe the accused committed each charged offense. Third, the PHO determines whether the convening authority has court-martial jurisdiction over both the accused and the offense. Fourth, and most relevant to the forum question, the PHO makes a recommendation as to the disposition that should be made of the case.
That fourth function is where forum choice lives. The PHO is not simply asked whether the accused could be tried. The PHO is asked what should happen with the case, and that opinion is a formal part of the report submitted up the chain.
Recommending nonjudicial punishment or another lower forum
Because the disposition recommendation is explicitly part of the PHO’s job, the officer is free to recommend a forum other than a general court-martial. The PHO can recommend that the charges proceed to a general court-martial, recommend a special court-martial, recommend that some or all charges be dismissed, or recommend that the matter be handled through nonjudicial punishment under Article 15. The PHO may also recommend administrative measures such as separation or a letter of reprimand, or recommend adding or removing specific charges.
Nonjudicial punishment, known in the Navy and Coast Guard as captain’s mast and in the Marine Corps as office hours, is a lower disciplinary forum than a court-martial. It does not produce a federal conviction and carries far lighter maximum consequences. When the evidence is thin, when the alleged misconduct is comparatively minor, or when the equities favor a measured response, a PHO may conclude that nonjudicial punishment is the more appropriate disposition and say so in the report.
It is worth noting that the probable cause finding and the disposition recommendation are separate. A PHO can find probable cause that the accused committed an offense and still recommend that the case be resolved through nonjudicial punishment rather than a trial. Probable cause speaks to whether a forum is legally available. The disposition recommendation speaks to which forum the officer believes the command should actually use.
The recommendation is advisory, not binding
A critical point for any accused service member to understand is that the PHO does not decide the forum. The recommendation is advisory. The decision to send a case to court-martial, divert it to nonjudicial punishment, resolve it administratively, or drop it entirely belongs to the convening authority, typically a senior commander with general court-martial authority.
After the hearing, the PHO writes a report containing the findings on the four questions and the disposition recommendation. That report travels to the convening authority along with the advice of the staff judge advocate, who provides an independent legal review before referral. The convening authority weighs all of this material and then chooses the forum. The convening authority is free to follow the PHO’s recommendation or to reject it. A commander may refer a case to a general court-martial even when the PHO recommended nonjudicial punishment, and a commander may choose nonjudicial punishment even when the PHO recommended trial.
Why the recommendation still matters to the defense
Because the recommendation is not binding, it can be tempting to dismiss the Article 32 hearing as a formality. That would be a mistake. A favorable disposition recommendation gives the defense a documented, neutral opinion that a court-martial is not warranted, and a thoughtful convening authority and staff judge advocate will take a well-reasoned PHO recommendation seriously. The hearing is also the defense’s first structured look at the government’s evidence and the credibility of its witnesses.
Defense counsel can use the hearing to highlight weaknesses in the government’s proof, to develop testimony that supports a lower forum, and to argue affirmatively that nonjudicial punishment would adequately address the conduct. Even where probable cause exists, persuasive advocacy on disposition can shape the recommendation the PHO ultimately makes. A service member should treat the Article 32 hearing as a genuine opportunity rather than a rubber stamp.
Practical takeaways
The preliminary hearing officer can recommend nonjudicial punishment or another forum instead of a court-martial, because recommending an appropriate disposition is one of the four things the PHO is expressly tasked to do under Rule for Courts-Martial 405. That recommendation, however, is advice. The convening authority holds the final decision on forum, informed by the PHO’s report and the staff judge advocate’s independent legal advice. An accused who hopes to steer a case away from court-martial should work closely with defense counsel to build the record at the Article 32 hearing that supports a lower forum, while understanding that the ultimate choice rests with the command.
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.