Yes, the Preliminary Hearing Officer (PHO) absolutely has the authority to recommend the dismissal of charges after an Article 32 hearing. This is one of the most critical functions of the PHO and a primary reason why the hearing is such an important procedural safeguard for the accused. The PHO’s duty is not just to rubber-stamp the charges but to conduct an impartial evaluation of the evidence.
If, after hearing all the testimony and reviewing all the evidence, the PHO concludes that the government has failed to establish probable cause for a particular charge or specification, the PHO is obligated to recommend its dismissal. This finding and recommendation must be clearly stated and explained in the final written report submitted to the convening authority. The PHO would detail why the evidence presented was insufficient to support a reasonable belief that the accused committed the offense.
A recommendation for dismissal can occur for various reasons. The PHO may find the testimony of a key government witness to be completely lacking in credibility. The evidence may be purely circumstantial and too weak to support a reasonable inference of guilt. Or, the defense may have presented compelling evidence, such as a strong alibi, that directly refutes the government’s allegations.
While this recommendation is not binding on the convening authority, it provides powerful ammunition for the defense. A recommendation of dismissal from a neutral, legally trained officer signals a significant weakness in the government’s case. It forces the convening authority and their Staff Judge Advocate (SJA) to seriously reconsider the wisdom of proceeding to trial on that charge, often leading to the charge being formally dropped before it is ever referred to a court-martial.