Military Lawyers

Yes, an Article 32 preliminary hearing can be rescheduled when the defense is not ready, but a continuance is not automatic. It must be requested, and it will be granted only if there is good cause and only if the official deciding the request has been given the authority to do so. The preliminary hearing officer must balance the accused’s legitimate need for time to prepare against the military’s interest in the prompt disposition of charges. Knowing how that balance is struck helps the defense make a request that has a realistic chance of success.

The Article 32 framework and the source of continuance authority

Article 32 of the Uniform Code of Military Justice, found at 10 U.S.C. 832, requires a preliminary hearing before charges are referred to a general court-martial. The hearing is run by a preliminary hearing officer who assesses probable cause, jurisdiction, and disposition.

A threshold practical point is often overlooked: the preliminary hearing officer can grant a continuance only if that power has been delegated. The convening authority’s appointment of the hearing officer, or another written authorization, must give the officer the authority to continue the hearing. Where that authority has not been delegated, a request to reschedule may have to be directed to the convening authority instead. This is one of the first things competent defense counsel will check when preparing a continuance request.

The good cause standard

When the defense asks to reschedule because it is not ready, the request is evaluated under a good cause standard. The hearing officer must carefully and impartially balance the accused’s need for additional preparation time against the need for speedy disposition of the charges. Neither interest automatically wins. A vague assertion that the defense would simply like more time is unlikely to carry the day; a concrete, documented explanation of why the defense genuinely cannot proceed has a much stronger chance.

To make a sound decision, the hearing officer typically develops a record of the relevant timeline. That record commonly addresses when counsel first learned of the case, when counsel received the required disclosures, and the specific reasons counsel cannot proceed on the scheduled date. The more clearly the defense ties its request to identifiable preparation needs, the easier it is for the hearing officer to find good cause.

Common grounds for a defense continuance

Several recurring situations support rescheduling. Late or incomplete disclosure of the government’s …

The short answer is that a command investigation can move forward without an Article 31 rights advisement, but any statement the government obtains from a suspect through questioning may be suppressed if the warning was required and not given. Article 31 of the Uniform Code of Military Justice, codified at 10 U.S.C. 831, does not stop an investigation from happening. It controls when and how a suspect may be questioned, and it sets the consequence for getting that wrong.

What Article 31(b) actually requires

Article 31(b) provides that no person subject to the UCMJ may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing that person of the nature of the accusation, advising that the person does not have to make any statement regarding the offense, and warning that any statement made may be used as evidence against the person in a trial by court-martial.

This is broader than civilian Miranda warnings in one important respect. Miranda is triggered by custodial interrogation. Article 31(b) is triggered whenever a person subject to the code questions a suspect about a suspected offense, even if the suspect is not in custody and even if the questioning takes place in a barracks room, a motor pool, or an office rather than an interrogation room. Custody is not the trigger. Suspicion plus questioning is.

When the warning is required

Military courts apply a multi-part framework. A warning is generally required when a person subject to the UCMJ questions or requests a statement from someone who is a suspect or accused, the questioning concerns the suspected offense, and the questioner is acting in an official law enforcement or disciplinary capacity rather than in a purely personal or administrative one.

That last requirement matters for command investigations. Courts ask whether the questioner was acting officially and whether a reasonable person in the suspect’s position would have perceived the questioning as an official inquiry into possible misconduct. A casual conversation between peers ordinarily does not trigger the warning. A commander or investigator questioning a known suspect about the offense ordinarily does.

There is also a separate concept of who counts as a person subject to the code. Military investigators, including agents of organizations such as the Army Criminal Investigation Division, the Naval Criminal Investigative Service, and the Air Force Office of Special Investigations, are required to give the warning …

The short answer is that an Article 32 preliminary hearing is not the right forum for litigating and resolving discovery violations, but a defense team can and often does note discovery problems on the record so they can be pursued later before a military judge. Understanding why requires looking at what the modern Article 32 hearing is designed to do and, just as importantly, what it is not designed to do.

The Article 32 preliminary hearing changed substantially after Congress amended the governing statute. It is no longer the broad investigative proceeding it once was. The hearing officer does not run a mini-trial, does not rule on the admissibility of evidence as a trial judge would, and does not grant trial-style relief. That narrowed mission directly shapes how discovery complaints can be handled.

The Limited Purpose of the Hearing

By statute and under Rule for Courts-Martial 405, the Article 32 preliminary hearing is confined to a few specific determinations. The preliminary hearing officer examines whether each specification states an offense, whether there is probable cause to believe the accused committed the charged offenses, whether the convening authority has court-martial jurisdiction over the offenses and the accused, and what disposition the officer recommends. Everything that happens at the hearing is supposed to serve those limited questions.

Notably, discovery is not one of the recognized purposes of the hearing. The rules and the supporting guidance are explicit that the preliminary hearing is not intended to serve as a vehicle for discovery and is not meant to perfect the government’s case or provide the full confrontation rights that attach at trial. Because of that design, the hearing officer lacks the authority to order the government to produce material, to sanction the government for failing to disclose, or to exclude evidence as a remedy.

Why Discovery Disputes Belong Before the Military Judge

The authority to compel discovery and to remedy discovery violations rests with the military judge once charges are referred to a court-martial. After referral, the defense can file motions to compel discovery and motions for appropriate relief, and the judge can order production, continue proceedings, exclude evidence, or fashion other remedies depending on the seriousness of the violation. None of those powers exists at the preliminary hearing stage, where there is no military judge presiding and no trial-level docket.

This division of labor is deliberate. The preliminary hearing is a screening step …

When a command directs members to attend a mandatory training session, a member who declines may wonder whether skipping it can really lead to military justice consequences. Diversity training is one example that prompts the question, but the legal analysis is the same for any mandatory training a command directs. Refusing to participate can be a punishable offense under the Uniform Code of Military Justice, but only if the underlying directive meets specific requirements. The answer turns not on the subject matter of the training but on whether the order to attend was lawful and whether the member knowingly failed to obey it.

The governing provision: Article 92

Refusal to attend or participate in directed training is analyzed under Article 92 of the UCMJ, failure to obey an order or regulation. Article 92 reaches three categories of conduct: violating or failing to obey a lawful general order or regulation, failing to obey other lawful orders that the member had a duty to obey, and dereliction in the performance of duties. A directive to complete mandatory training generally fits within the order or regulation framework, so a member who refuses to comply can be charged under Article 92 if the elements are met.

The key elements are that a lawful order or regulation existed and was issued by competent authority, that the member knew of the order or had a duty to comply with it, and that the member failed to obey it. Each element matters, and each is a potential point of dispute.

The lawfulness requirement is the heart of the analysis

Article 92 only punishes the failure to obey a lawful order or regulation. An order is presumed lawful when it is issued by competent authority and relates to military duty. A directive requiring attendance at command training will ordinarily satisfy that standard, because ensuring that members complete required training is a recognized military function and falls within a commander’s authority to maintain readiness and good order.

This is why the subject of the training, including diversity training, does not by itself determine whether refusal is punishable. The question is whether the command had the authority to direct the training and whether the directive connects to military duty, not whether the member agrees with the content. A lawful order does not become unlawful simply because a member objects to its purpose or finds it disagreeable.

When can a member

…

Malingering and medical non-compliance can look similar on the surface. In both situations a service member is not performing duty, and in both a medical condition or complaint is part of the picture. But the two are legally distinct, and the difference decides whether a member faces a punitive charge or, at most, administrative or medical handling. The dividing line is intent. Malingering is a crime built on a deliberate purpose to avoid duty. Medical non-compliance, standing alone, is not a defined punitive offense and usually reflects a treatment or readiness problem rather than criminal conduct.

What Malingering Is Under the UCMJ

Malingering is charged under Article 83 of the Uniform Code of Military Justice. To obtain a conviction, the prosecution must prove that the accused was assigned to, or was aware of prospective assignment to or availability for, the performance of work, duty, or service; that the accused feigned illness, physical disablement, mental lapse or derangement, or intentionally inflicted injury upon himself or herself; and that the accused’s purpose or intent in doing so was to avoid that work, duty, or service.

Article 83 reaches two forms of conduct. The first is pretending to be sick, injured, or otherwise unfit when the member is not. The second is intentionally causing real injury to oneself in order to escape duty. In both forms the offense turns on a specific intent to avoid work, duty, or service. The maximum punishment varies with the form and circumstances, and it increases when the conduct occurs in a hostile fire zone or in time of war, reflecting how seriously the military treats deliberate avoidance of duty under those conditions.

Why Medical Non-Compliance Is Different

Medical non-compliance describes a member who does not follow a prescribed course of treatment, misses appointments, declines a recommended procedure, or otherwise fails to adhere to medical guidance. By itself, that conduct is not malingering and is not a stand-alone punitive offense under the code. A member who genuinely has a condition, but who is a poor patient, has a medical and readiness problem, not necessarily a criminal one. The fact that someone is not getting better, or is not cooperating with providers, does not establish the deliberate deception or self-injury that Article 83 requires.

The reason this matters in a court-martial is that the existence of a real condition undercuts the feigning element. Malingering requires that the illness or …

A service member who asks for a lawyer during a criminal investigation, and then suffers some adverse consequence, may believe the request itself was punished. Claims of this kind sit at the intersection of several distinct bodies of law, because the protection against being penalized for invoking counsel comes from different sources depending on what form the alleged retaliation takes. There is the constitutional and statutory right to counsel and to silence, the evidentiary rule barring use of an invocation against the accused, the offense of reprisal, and the broader whistleblower protections. The standards differ across these channels, and identifying the right one is the first step in evaluating such a claim.

The right to counsel and to remain silent

The foundation is the right itself. Under Article 31 of the UCMJ, codified at 10 U.S.C. section 831, and the constitutional protections that apply in custodial interrogation, a suspect must be advised of the right to counsel and may invoke it. Once a suspect clearly requests counsel during custodial interrogation, questioning must cease, and under the rule recognized in Edwards v. Arizona, authorities may not reinterrogate the suspect about the offense unless counsel is present or the suspect reinitiates. The invocation must be clear; an ambiguous reference to a lawyer that a reasonable officer would understand only as a possible request does not require questioning to stop, a principle the Supreme Court applied in Davis v. United States. These rules define what counts as a protected invocation in the first place.

The bar on using an invocation as evidence

The most direct protection against retaliation in the courtroom sense is the rule that an invocation cannot be used against the accused. Military Rule of Evidence 301(f)(2) provides that the fact that the accused, during official questioning and in the exercise of rights under the Fifth Amendment or Article 31, remained silent, refused to answer a question, requested counsel, or asked that questioning be terminated, is not admissible against the accused. The prosecution may not comment on the invocation or invite the members to draw an adverse inference from it. If the government uses the request for counsel as evidence of guilt, that is error, and the standard for relief is whether the improper use prejudiced the accused, an analysis the military judge and appellate courts conduct under the usual framework for evidentiary and constitutional error.

Statements taken after an invocation

…

A court-martial cannot proceed against a service member who is presently unable to understand the proceedings or to assist in the defense. When an accused becomes medically unfit to participate, the military justice system has a defined process for pausing the case, evaluating the condition, and deciding whether and when the prosecution can continue. The governing framework is Rule for Courts-Martial 909, supported by the sanity board mechanism in Rule for Courts-Martial 706.

The Capacity Requirement

Rule for Courts-Martial 909 provides that no person may be brought to trial by court-martial if that person is presently suffering from a mental disease or defect rendering the person mentally incompetent to the extent that the person is unable to understand the nature of the proceedings or to conduct or cooperate intelligently in the defense. This is a present-ability standard. The question is not whether the accused was competent at the time of the alleged offense, which is the separate issue of mental responsibility, but whether the accused can meaningfully participate right now.

The accused is presumed to have the capacity to stand trial. To overcome that presumption, the defense bears the burden of proving incapacity by a preponderance of the evidence. The core inquiry is whether the accused has sufficient present ability to consult with counsel with a reasonable degree of rational understanding and possesses both a rational and a factual understanding of the proceedings. Mere orientation to time and place, or some recollection of events, is not enough.

When the Question Arises

Capacity can be raised at any point, and it most often surfaces when the accused develops or reveals a condition that interferes with participation. This can include a serious mental health crisis, a traumatic brain injury, a degenerative illness, the effects of medication, or any condition that impairs comprehension or communication with counsel. The military judge may address the issue on motion by either party or on the judge’s own initiative when the record raises a genuine doubt about the accused’s competence.

It is worth distinguishing between a temporary medical problem and a true incapacity. A short-term illness or injury that simply prevents attendance on a given day is typically handled through a continuance, with the proceedings resumed when the accused recovers. The capacity rules engage when the impairment goes to the accused’s ability to understand and assist, not merely to physical presence.

The Sanity Board Evaluation

When a …

Yes, new charges can be added after an Article 32 preliminary hearing concludes, but not freely and not without consequences for procedure. The convening authority retains broad power over what is ultimately referred to a general court-martial, yet the structure of Article 32 of the Uniform Code of Military Justice generally entitles an accused to a preliminary hearing on the charges before they go to a general court-martial. The result is a balance: the government can pursue additional charges, but doing so usually requires giving the accused the process Article 32 guarantees as to those new charges.

The role of the Article 32 hearing and the referral decision

Article 32, codified at 10 U.S.C. 832, requires a preliminary hearing before charges are referred to a general court-martial. A preliminary hearing officer evaluates probable cause, jurisdiction, and the proper disposition of the charges, then submits a report with a recommendation. That report is advisory.

The decision to refer charges to trial belongs to the convening authority, not the hearing officer. The convening authority may follow the recommendation or depart from it. The convening authority may refer the charges as preferred, may decline to refer some of them, may modify them, or may add charges. Because that authority is broad, the bare fact that a charge was not part of the original Article 32 hearing does not, by itself, prevent it from later reaching a court-martial.

Why a new Article 32 hearing is generally required for new charges

The power to add charges is constrained by the same statute that creates the hearing. Article 32 generally entitles the accused to a preliminary hearing on charges before they are referred to a general court-martial. If the government wants to add a charge that was never examined at the preliminary hearing, the accused has had no opportunity to test that charge, cross-examine witnesses on it, or address probable cause and disposition as to it.

For that reason, the proper course when the government seeks to add charges after the hearing is ordinarily to provide a preliminary hearing on the new charges. The hearing may be reopened or a further hearing conducted so that the accused receives, as to the additional charges, the same rights the original hearing provided. Skipping that step risks the new charges being challenged and potentially dismissed for failure to comply with Article 32.

When charges surface during or after the

…

Before serious charges go to a general court-martial, the UCMJ requires a preliminary hearing, and a preliminary hearing officer issues a written report that includes a recommendation about how the case should be disposed of. Service members and their families often assume that if the hearing officer recommends dismissal, the case is over. It is not necessarily over. The recommendation is advisory, and the authority that decides whether to send the case forward is not bound by it. This article explains who decides, how much weight the recommendation carries, and what limits exist on the decision.

The Article 32 preliminary hearing and the PHO’s role

Article 32 of the UCMJ, codified at 10 U.S.C. 832, requires a preliminary hearing before charges may be referred to a general court-martial. A preliminary hearing officer, or PHO, conducts it. The hearing has a limited statutory purpose: to determine whether there is probable cause to believe an offense was committed and that the accused committed it, to determine whether the convening authority has court-martial jurisdiction over the offense and the accused, to consider the form of the charges, and to recommend a disposition of the case.

At the end, the PHO prepares a written report stating findings on those points and a recommendation. That recommendation may be to refer the charges to a general or special court-martial, to handle the matter administratively or through nonjudicial means, or to dismiss some or all of the charges, for example where the PHO finds no probable cause.

The recommendation is advisory

The key legal point is that the PHO’s recommendation is not a decision. Article 32 frames the hearing as a step that informs the disposition decision; it does not transfer the disposition decision to the PHO. The authority responsible for deciding whether to refer charges is not required to follow the recommendation. So if a PHO recommends dismissal, the deciding authority can still choose to send the case to trial, provided the other legal prerequisites for referral are met.

This advisory character is by design. The preliminary hearing protects the accused by testing the government’s case and exposing weaknesses, but the system reserves the charging decision to a responsible authority who weighs the PHO’s input along with the advice of a judge advocate and the overall interests of justice and discipline.

Who actually decides: convening authority and the special trial counsel reform

Historically, the convening authority …

Service members often assume that because Article 31 of the Uniform Code of Military Justice protects them from self-incrimination, it must also keep their text messages out of a court-martial. The reality is more precise. Article 31, codified at 10 U.S.C. section 831, has a narrow and specific reach. Understanding exactly what it does and does not touch is essential to predicting whether messages pulled from a phone will reach a panel.

What Article 31 Actually Protects

Article 31(b) prohibits anyone subject to the UCMJ from interrogating or requesting a statement from an accused or a suspect without first informing the person of the nature of the accusation, advising that the person does not have to make any statement, and warning that any statement made may be used as evidence in a trial by court-martial. The provision is the military analog to the Fifth Amendment privilege against compelled self-incrimination, and the military requires these warnings earlier than the civilian Miranda framework does. In the armed forces, the duty to warn can attach during official questioning by a superior who suspects an offense, not only during custodial interrogation.

The crucial limit is that Article 31, like the Fifth Amendment, reaches only testimonial or communicative evidence. Courts describe protected material as the product of a suspect’s thought process about a crime, whether expressed verbally, in writing, or through gestures. Physical and nontestimonial evidence falls outside the article entirely. Fingerprints, handwriting exemplars, voice samples, and blood or urine specimens are governed by the Fourth Amendment and other rules, not by Article 31.

Why a Text Message Is Usually Not an Article 31 Problem

A text message already exists before any investigator speaks to the accused. When the government recovers messages from a phone, a cloud backup, or another participant in the conversation, it is not compelling the accused to make a present statement. The messages were created voluntarily at an earlier time. For that reason, the act of obtaining stored text messages is ordinarily analyzed under search and seizure principles and the Fourth Amendment, not under Article 31. A lawfully seized phone, a valid search authorization, or messages provided by the other party to the exchange will generally survive an Article 31 challenge because no compelled testimonial act produced them.

This distinction explains a common misunderstanding. Article 31 can suppress what a suspect says during questioning, including an oral or written confession given …