Preferral of charges is the first formal step in the court-martial process, and it is often a commander who takes it. A frequent point of confusion is whether a commander must obtain a lawyer’s review before preferring charges, or whether charges can be preferred on the commander’s own judgment. The guidelines that govern this are found in the Rules for Courts-Martial, and they draw a clear line between what is legally required to prefer charges and what is expected to happen before charges advance further.
What preferral actually is
Under Rule for Courts-Martial 307, preferral is the act of formally drafting and swearing to charges and specifications against an accused on a charge sheet. The person who prefers the charges is the accuser. To prefer charges, the accuser signs the charge sheet under oath before a commissioned officer authorized to administer oaths, affirming that the accuser has personal knowledge of, or has investigated, the matters set forth and that they are true to the best of the accuser’s knowledge and belief.
Preferral is therefore an accusatory step, not an adjudicative one. It starts the process and frames the allegations. It does not, by itself, send the case to a court-martial. That later movement of the case, through forwarding and referral, is where additional safeguards and legal involvement come into play.
Who may prefer charges and the standard that applies
Rule for Courts-Martial 307 provides that any person subject to the Code may prefer charges, although in practice it is commonly a commander or another servicemember with knowledge of the offense. The accuser must believe the charges are true in fact to the best of his or her knowledge and belief and that the offenses are within the jurisdiction of the armed forces. The oath ties the accuser personally to the truthfulness of the allegations.
What the rule does not impose as a precondition to preferral is a mandatory legal review of the charges by a judge advocate. The act of preferral is keyed to the accuser’s sworn belief in the truth of the charges, not to a lawyer’s prior sign-off. In that sense, a commander may prefer charges based on a good-faith belief in their truth without a formal legal review having first occurred.
Where legal review enters the process
The absence of a strict legal-review requirement at preferral does not mean lawyers are absent from the system. Legal review is built into the process, but at later stages and through other mechanisms. As a case moves beyond preferral toward a court-martial, it passes through forwarding and, depending on the level of court-martial, a pretrial advice or review by a judge advocate before referral. The required pretrial advice for a general court-martial, for example, is a recognized point at which a staff judge advocate evaluates the charges, their legal sufficiency, and whether they are warranted by the evidence.
In addition, commanders routinely consult their servicing legal office as a matter of sound practice well before and around the time of preferral. While the rules center the act of preferral on the accuser’s sworn belief rather than on a completed legal review, prudent commanders seek legal advice to ensure the charges are properly drafted, supported by evidence, and within jurisdiction. The system thus relies on a combination of the accuser’s sworn responsibility at preferral and formal legal review at the forwarding and referral stages.
Safeguards that accompany preferral
Several features of Rule for Courts-Martial 307 guard against improper or careless preferral even without a mandatory pre-preferral legal review. The oath requirement makes the accuser personally accountable for the truthfulness of the allegations. The accuser must have personal knowledge of, or have investigated, the matters charged. The accused must be informed of the charges preferred against them as soon as practicable. And the charges must be drafted in proper form, identifying the accused, the offenses, and the supporting specifications.
Beyond preferral, the larger process supplies additional protection. Charges are scrutinized as the case advances, and the requirement of pretrial advice or review before referral to a court-martial provides a legal checkpoint. The convening authority’s decisions about disposition, and the involvement of the staff judge advocate, ensure that a case does not reach trial without legal evaluation, even if that evaluation was not a formal precondition to the initial preferral.
Practical takeaways
So what guidelines determine when a commander may prefer charges without legal review? Under Rule for Courts-Martial 307, a commander acting as accuser may prefer charges based on a sworn, good-faith belief that the charges are true and within military jurisdiction, supported by personal knowledge or investigation, without a mandatory legal review being a strict prerequisite to that act. The formal legal review is structured into later stages of the process, particularly the pretrial advice or review that precedes referral to a court-martial.
In practice, the prudent course is for commanders to consult their legal office before preferring charges, both to ensure the charges are well founded and properly drafted and to avoid problems later in the process. For an accused, the key insight is that preferral is only the beginning. The presence of sworn accountability at preferral and formal legal review before referral are both important checkpoints, and a servicemember facing preferred charges should consult military defense counsel promptly to evaluate the sufficiency of the charges and the conduct of the process.
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.