In the military justice system, the preliminary hearing officer, or PHO, presides over the Article 32 preliminary hearing that ordinarily precedes referral of charges to a general court-martial. The PHO’s role is governed by Article 32 of the UCMJ, codified at 10 U.S.C. section 832, and by Rule for Courts-Martial 405. A natural question for an accused is what happens if, during that hearing, the PHO identifies procedural errors in how the case was investigated or charged. The answer is that the PHO can note and report such errors, but the PHO’s findings are recommendations only, and they do not by themselves dismiss charges or bind the authority who decides whether the case goes forward.
What the Article 32 hearing is for
Since the 2014 reforms, the Article 32 proceeding is a preliminary hearing rather than a full investigation. Its limited statutory purposes are 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. The hearing is not a discovery vehicle or a mini-trial, and the PHO’s authority is correspondingly narrow.
What the PHO can do about procedural errors
If a party believes the procedures of Rule for Courts-Martial 405 were not followed, the objection must be raised promptly upon discovery. The PHO is generally not required to rule definitively on objections that the hearing’s own procedures were violated, but when a party objects, and that party so requests, the PHO must include the objection in the report. This ensures that any claimed procedural defect is preserved on the record for the authorities who later review the case and for the military judge at trial.
The PHO may also address legal and procedural issues that bear on the matters the hearing is meant to decide. The PHO can note in the report concerns about the form of the charges, gaps or irregularities in the investigation, or other procedural problems observed during the proceeding. These observations become part of the written report and recommendation that the PHO forwards.
The PHO’s findings are a recommendation, not a ruling
The crucial point is that the PHO does not have the power to dismiss charges or to grant relief for procedural errors. The PHO produces a written report and recommendation addressing probable cause, jurisdiction, the form of the charges, any procedural issues, and a recommended disposition. That report is advisory. The authority who decides whether to refer the case, whether the traditional convening authority or, for covered offenses, the special trial counsel, is not bound by the PHO’s recommendation. Even a PHO who finds significant procedural problems or who recommends against referral cannot prevent the case from going forward if the deciding authority chooses to refer it.
Why a PHO’s findings still matter
Although the PHO’s conclusions are not binding, they carry real practical weight. A report that identifies procedural errors, questions probable cause, or recommends dismissal or modification of charges gives the defense a documented, contemporaneous statement of the problems in the government’s case. The deciding authority must consider the report and, while free to disagree, does so with the PHO’s analysis in front of it. A strong PHO report can influence whether charges are referred at all, which charges survive, and how the case is litigated. It also preserves issues for later challenge, because procedural defects identified and objected to at the hearing are part of the record the military judge will examine.
Raising procedural errors at trial
If the case proceeds to a general court-martial despite procedural errors the PHO noted, the proper forum to seek relief is before the military judge. The defense can move to dismiss charges or for other appropriate relief based on defects in the Article 32 proceeding or the underlying investigation. The standard for such relief is generally exacting; a defect in the preliminary hearing typically requires a showing of prejudice to warrant dismissal, and many procedural irregularities are treated as curable or harmless if they did not affect the accused’s substantial rights. This is precisely why preserving the objection in the PHO’s report matters, because it lays the foundation for the motion the defense may bring later.
What the accused should do
For an accused, the lesson is twofold. First, procedural errors should be identified and objected to during the Article 32 hearing, promptly and on the record, with a request that the PHO include the objection in the report. Second, the accused should not expect the PHO to fix the problem on the spot, because the PHO lacks that authority. The realistic path is to build a documented record at the hearing and then pursue dismissal or other relief before the military judge if the case is referred. Experienced defense counsel will treat the Article 32 not as a place to win the case outright but as an opportunity to expose weaknesses, preserve issues, and shape the disposition decision.
Bottom line
If the PHO finds procedural errors in the investigation, the PHO can note them, include any properly raised objections in the report, and factor them into a recommendation, but the PHO cannot dismiss charges or grant relief. The report is advisory only, and the authority who decides on referral is not bound by it. The errors still matter, because they inform the disposition decision and preserve issues for a later motion before the military judge, where the accused must ordinarily show prejudice to obtain relief.
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.