Yes. The preliminary hearing officer, commonly called the PHO, can recommend that charges be dismissed after an Article 32 hearing. That recommendation is one of the formal outputs the statute expects, and it can carry real weight in how a case proceeds. What the PHO cannot do is dismiss charges outright. The decision whether to dismiss, refer, or otherwise dispose of charges belongs to the convening authority, who is not bound by the PHO’s recommendation. Understanding the line between recommending and deciding is the key to understanding the PHO’s role.
What the PHO is asked to determine
Article 32 of the Uniform Code of Military Justice, at 10 U.S.C. 832, requires an impartial hearing officer to conduct a preliminary hearing before charges are referred to a general court-martial. The statute limits the hearing’s purpose to four questions: whether each specification alleges an offense under the code, whether there is probable cause to believe the accused committed the offense charged, whether the convening authority has court-martial jurisdiction over the accused and the offense, and a recommendation as to the disposition that should be made of the case.
The fourth element is the source of the dismissal recommendation. The statute expressly contemplates that the PHO will recommend a disposition, and dismissal is among the dispositions the officer can recommend. If the PHO concludes that the evidence does not establish probable cause, that a specification fails to allege an offense, or that jurisdiction is lacking, recommending dismissal of the affected charges is the logical result.
When a dismissal recommendation is appropriate
A PHO weighs the credibility of the evidence presented and applies the probable cause standard, which is lower than the trial standard of proof beyond a reasonable doubt. Even under that modest threshold, the PHO may find that the government has not shown a reasonable basis to believe the accused committed a charged offense. In that situation the officer can recommend that the charge not go forward.
Recommendations are also specification by specification. The PHO may find probable cause for some charges and not others, and may recommend dismissing the unsupported ones while letting the rest proceed. The officer can additionally recommend modifications to the form of charges or specifications, so the output is not limited to a simple all-or-nothing choice. A recommendation to dismiss can be partial, targeted at the charges the evidence does not support.
The written report
After the hearing the PHO submits a written report to the convening authority. By statute that report must include, for each specification, the PHO’s reasoning and conclusions, a summary of relevant witness testimony, observations about witness testimony and the availability and admissibility of evidence at trial, and any recommended modifications to the charges. A recommendation to dismiss is documented within this report, supported by the reasoning behind it.
This written explanation is important. A recommendation to dismiss that is well reasoned, that identifies specific gaps in proof or credibility problems, and that ties those findings to the probable cause standard is far more persuasive than a bare conclusion. The quality of the report shapes how seriously the recommendation is taken.
The recommendation does not bind the convening authority
Here is the crucial limit. The convening authority is not required to follow the PHO’s recommendation. Even if the PHO recommends dismissal because no probable cause exists, the convening authority retains discretion over the disposition of charges, subject to the separate pre-referral advice the law requires. In practice this means a PHO recommendation to dismiss is influential but not controlling, and charges the PHO would have dropped can still be referred.
That allocation of authority reflects the structure of military justice. The PHO is a screening and advising official, not a judge with dispositive power over the charges. The responsibility for charging decisions rests with the command structure that convenes the court-martial.
Why the recommendation still matters
Given that it is not binding, a recommendation to dismiss can feel hollow, but it carries genuine practical value. A strong recommendation to dismiss can persuade the convening authority to drop or reduce charges, can prompt renegotiation of the case, and can give the defense leverage going forward. It also creates a documented assessment of weaknesses in the government’s case, complete with the PHO’s observations about witnesses and evidence, which can inform later strategy. A favorable PHO report is one of the best non-trial outcomes a defense can achieve at this stage even though it does not end the case by itself.
Bottom line
The PHO can and does recommend dismissal when the evidence, the pleadings, or jurisdiction do not support a charge, and that recommendation is a formal part of the Article 32 process and the written report. But the PHO recommends; the convening authority decides. Because the recommendation is advisory rather than binding, the defense should treat the hearing as an opportunity to build the strongest possible record for dismissal while recognizing that the final disposition rests elsewhere. Service members facing an Article 32 hearing should work with qualified military defense counsel to make the most of that opportunity.
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.