When a service member faces a general court-martial, federal law normally requires a preliminary hearing before the charges can be sent forward. That hearing is governed by Article 32 of the Uniform Code of Military Justice (UCMJ), found at 10 U.S.C. 832, and by Rule for Courts-Martial (RCM) 405. A common question after charges are referred is what an accused can do when the Article 32 hearing was incomplete, rushed, or otherwise failed to develop the record the rule contemplates. The answer turns on what Article 32 actually requires, what counts as a defect, and how and when the objection must be raised.
What an Article 32 preliminary hearing is supposed to do
The 2014 amendments to Article 32 narrowed the scope of the proceeding. It is now a preliminary hearing rather than a full pretrial investigation. The preliminary hearing officer (PHO) examines a limited set of questions: whether there is probable cause to believe an offense was committed and that the accused committed it, whether the convening authority has court-martial jurisdiction over the accused and the offense, whether the charges are in proper form, and a recommendation on the disposition of the case. The PHO produces a written report containing these determinations.
Because the inquiry is narrow, the volume of evidence developed at an Article 32 hearing is often smaller than service members expect. A thin record is not automatically a defective one. The relevant question is whether the hearing satisfied the requirements of Article 32 and RCM 405, not whether it resembled a trial.
What counts as an insufficient or defective hearing
Defects can take several forms. The PHO may have reached conclusions unsupported by the limited record, failed to address jurisdiction or the form of the charges, denied the accused a right the rule guarantees, or produced a report that omits a required determination. The accused has procedural rights at the hearing, including the right to be represented by counsel, to cross-examine witnesses who are reasonably available, and to present matters in defense and mitigation. A failure to honor one of those rights can render the hearing inadequate.
It is important to separate two ideas that are easy to confuse. The PHO’s recommendation on disposition is advisory only. A convening authority may refer charges even when the PHO recommends dismissal, because the recommendation does not bind the referral decision. So a service member who is unhappy that charges went forward despite a favorable recommendation has not, by that fact alone, identified a legal defect. A genuine defect is a failure of the process the rule requires, not an unwelcome outcome.
The required path: timely objection to the convening authority
RCM 405 sets out a specific mechanism for raising problems with the hearing. Defects in the preliminary hearing or in the PHO’s report must be raised with the convening authority through the preliminary hearing officer by a timely objection, ordinarily within five days of the accused’s receipt of the report. This is not a formality. Under RCM 405, failure to make a timely objection to the conduct of the preliminary hearing or to the report forfeits the objection.
Forfeiture is not always fatal. The rule allows the convening authority who directed the hearing, a superior convening authority, or the military judge to grant relief from the forfeiture for good cause shown. Still, the safest course is to identify and raise the defect within the window the rule provides, in writing, with enough specificity that the convening authority understands exactly what went wrong and what corrective action is sought.
The ordinary remedy: reopening the hearing
When a defect is established, the typical remedy is not dismissal of the charges. The ordinary corrective action is a continuance to reopen the preliminary hearing so that the deficiency can be cured. The discussion accompanying RCM 906(b)(3) reflects this approach, treating reopening as the standard relief for an inadequate preliminary hearing. In practical terms, if the hearing failed to allow proper cross-examination or omitted a required determination, the appropriate result is to send the matter back so the process can be completed correctly, after which the convening authority can make a fresh referral decision on a proper record.
Raising the issue at trial through a motion
If the convening authority does not provide adequate relief, the defense can litigate the matter before the military judge. The vehicle is a motion for appropriate relief under RCM 906. Through that motion, the defense asks the judge to recognize the defect and order a remedy, which again ordinarily means reopening or completing the preliminary hearing rather than dismissing the case outright. The military judge has authority to address forfeited objections for good cause and to fashion relief that fits the specific defect.
One point service members should understand is the role of prejudice. Military courts have at times required an accused to show that a hearing defect caused some articulable harm before a remedy is granted. There is authority indicating that once a violation of the accused’s preliminary hearing rights is found, relief should follow without first requiring a separate showing of prejudice. Because the case law on this question is not uniform, the defense should both identify the specific right that was denied and, where possible, explain how the defect affected the accused’s ability to prepare or to contest disposition. Framing the objection both ways protects the issue regardless of which standard the judge applies.
What relief generally does not include
Dismissal of the charges as a remedy for an Article 32 defect is uncommon. Because the statute itself supplies a curative path, and because the preliminary hearing is a screening mechanism rather than the trial, courts strongly favor completing the process over ending the prosecution. An accused who hopes that a flawed Article 32 hearing will end the case should temper that expectation. The realistic objective is a corrected hearing and a referral decision made on an adequate record.
Practical takeaways
A service member who believes the Article 32 hearing was insufficient should act quickly. The five-day objection window under RCM 405 is short, and missing it shifts the burden to showing good cause for relief from forfeiture. The objection should pinpoint the specific requirement that was not met, whether that is a denied right, an unsupported conclusion, or a missing determination in the report. If the convening authority does not fix the problem, the defense preserves it for a motion under RCM 906 before the military judge. Throughout, the most likely and most realistic remedy is a reopened or completed hearing, followed by a renewed referral decision, rather than dismissal.
Because the consequences of a general court-martial are severe and the procedural windows are narrow, a service member confronting a possibly defective preliminary hearing should consult qualified military defense counsel immediately to evaluate the record and protect the objection before it is forfeited.
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.