Before most serious charges can be referred to a general court-martial, the Uniform Code of Military Justice requires a preliminary hearing under Article 32. The hearing is conducted by a preliminary hearing officer who examines whether there is probable cause to believe an offense occurred and that the accused committed it, whether the convening authority has jurisdiction, and what disposition the officer recommends. While the hearing officer cannot dismiss charges outright, the recommendations and findings that come out of an Article 32 hearing frequently lead the convening authority to drop or reduce charges before referral. Understanding the most common reasons charges fall away at this stage helps explain why the Article 32 hearing remains a meaningful checkpoint even after Congress narrowed its scope in 2014.
What the Article 32 Hearing Decides
Since the 2014 reforms, the Article 32 proceeding is a preliminary hearing rather than the broad investigation it once was. Its purpose is limited and specific: to determine whether probable cause exists to believe each charged offense was committed by the accused, to confirm jurisdiction over the offense and the accused, to consider the form of the charges, and to make a recommendation on disposition. The hearing officer issues a report. Although that report is advisory and the convening authority retains the decision to refer, a hearing officer’s conclusion that probable cause is lacking carries real weight and is among the leading reasons charges do not move forward.
Lack of Probable Cause
The most direct reason charges drop at this phase is a finding that probable cause is insufficient. Probable cause is a low threshold, but it is not nothing. The government must present enough to support a reasonable belief that each element of the charged offense is met and that the accused is responsible. When the evidence offered does not establish a key element, when it rests on speculation, or when it fails to connect the accused to the conduct, the hearing officer may find probable cause wanting. A recommendation of no probable cause on a particular specification commonly prompts the convening authority to drop that specification.
Weak or Inconsistent Evidence
Closely related is the practical weakness of the government’s proof as it appears at the hearing. Even where some evidence exists, internal inconsistencies, contradictions between witnesses, gaps in a timeline, or an absence of corroboration can undercut the case. Because the defense has an opportunity to cross-examine witnesses who do appear and to present its own evidence relevant to the limited issues, weaknesses can be exposed early. A hearing officer who concludes the evidence is too thin to support referral, or a convening authority who sees those weaknesses in the report, may decide that proceeding to a general court-martial is not justified.
Charging Defects and Overcharging
Charges sometimes fall away because of how they are drafted rather than the strength of the underlying facts. A specification that fails to state an offense, that is duplicative of another charge, that misstates the applicable article, or that does not allege the necessary elements may be flagged at the hearing. The hearing officer reviews the form of the charges and can recommend amendment, consolidation, or dismissal. Overcharging is a frequent driver here. When prosecutors pile on multiple specifications arising from a single act, the hearing can reveal that several should be dismissed or merged, leaving a leaner set of charges.
Jurisdictional Problems
Jurisdiction is one of the explicit issues the hearing officer must address. If there is a genuine question about whether the court-martial has jurisdiction over the accused or the offense, charges can be jeopardized. Questions about the accused’s military status at the relevant time, or about whether the conduct is properly subject to the code, can lead to a recommendation against referral on jurisdictional grounds.
Disposition Recommendations Favoring a Lesser Forum
The hearing officer recommends a disposition, and that recommendation does not have to be a general court-martial. The officer may conclude that the matter is better resolved through a special court-martial, nonjudicial punishment, administrative action, or dismissal. When a hearing officer recommends a forum other than a general court-martial, the original charges may effectively be dropped at the general court-martial level even though some action continues elsewhere. This redirection is a common practical outcome and reflects the screening function the hearing serves.
Negotiated Outcomes Around the Hearing
The Article 32 phase also creates leverage that leads to charges being withdrawn. Once the defense sees the government’s evidence and the government sees how its witnesses hold up, the parties often reassess. Plea negotiations frequently mature around this stage, and charges may be reduced or dismissed as part of a resolution. While this is not a dismissal by the hearing officer, it is a common reason charges do not survive in their original form past the Article 32 phase.
The Limits of What the Hearing Can Do
It is important to be realistic about the hearing’s power. The probable cause standard is deliberately low, the hearing is now primarily a screening proceeding rather than a full evidentiary contest, and the convening authority is not bound by the hearing officer’s recommendation. The convening authority may refer charges even over a recommendation of no probable cause. As a result, many charges survive the Article 32 phase, and the defense should treat the hearing as one opportunity among several rather than a likely off-ramp. Still, a well-prepared defense that exposes a missing element, a fatal inconsistency, or a charging defect can meaningfully shape what gets referred.
The Bottom Line
Charges most commonly fall away at the Article 32 phase because the hearing officer finds insufficient probable cause, because the evidence proves weak or inconsistent on examination, because the charges are defectively drafted or overcharged, because of jurisdictional problems, or because the recommended disposition points to a lesser forum than a general court-martial. Negotiated resolutions around the hearing also account for many charges that do not survive in their original form. The hearing officer cannot dismiss charges directly, but the findings and recommendations strongly influence the convening authority, which is why a focused defense effort at this stage can pay off even within the narrowed, probable-cause-focused scope of the modern Article 32 hearing.
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.