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10 U.S.C. § 834 — Art. 34. Advice to convening authority before referral for trial
Federal law — U.S. Code and appendices · legal_authorities
**(a) General Court-martial.—**
(1) **Staff judge advocate advice required before referral.—** — Subject to subsection (c), before referral of charges and specifications to a general court-martial for trial, the convening authority shall submit the matter to the staff judge advocate for advice, which the staff judge advocate shall provide to the convening authority in writing. The convening authority may not refer a specification under a charge to a general court-martial unless the staff judge advocate advises the convening authority in writing that—
(A) the specification alleges an offense under this chapter;
(B) there is probable cause to believe that the accused committed the offense charged; and
(C) a court-martial would have jurisdiction over the accused and the offense.
(2) **Staff judge advocate recommendation as to disposition.—** — Together with the written advice provided under paragraph (1), the staff judge advocate shall provide a written recommendation to the convening authority as to the disposition that should be made of the specification in the interest of justice and discipline.
(3) **Staff judge advocate advice and recommendation to accompany referral.—** — When a convening authority makes a referral for trial by general court-martial, the written advice of the staff judge advocate under paragraph (1) and the written recommendation of the staff judge advocate under paragraph (2) with respect to each specification shall accompany the referral.
**(b) Special Court-martial; Convening Authority Consultation With Judge Advocate.—** Subject to subsection (c), before referral of charges and specifications to a special court-martial for trial, the convening authority shall consult a judge advocate on relevant legal issues.
**(c) Covered Offenses.
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Source location: Title 10, Chapter 47, § 834; chapter-047-uniform-code-of-military-justice.md
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**(a) General Court-martial.—**
(1) **Staff judge advocate advice required before referral.—** — Subject to subsection (c), before referral of charges and specifications to a general court-martial for trial, the convening authority shall submit the matter to the staff judge advocate for advice, which the staff judge advocate shall provide to the convening authority in writing. The convening authority may not refer a specification under a charge to a general court-martial unless the staff judge advocate advises the convening authority in writing that—
(A) the specification alleges an offense under this chapter;
(B) there is probable cause to believe that the accused committed the offense charged; and
(C) a court-martial would have jurisdiction over the accused and the offense.
(2) **Staff judge advocate recommendation as to disposition.—** — Together with the written advice provided under paragraph (1), the staff judge advocate shall provide a written recommendation to the convening authority as to the disposition that should be made of the specification in the interest of justice and discipline.
(3) **Staff judge advocate advice and recommendation to accompany referral.—** — When a convening authority makes a referral for trial by general court-martial, the written advice of the staff judge advocate under paragraph (1) and the written recommendation of the staff judge advocate under paragraph (2) with respect to each specification shall accompany the referral.
**(b) Special Court-martial; Convening Authority Consultation With Judge Advocate.—** Subject to subsection (c), before referral of charges and specifications to a special court-martial for trial, the convening authority shall consult a judge advocate on relevant legal issues.
**(c) Covered Offenses.—** A referral to a general or special court-martial for trial of charges and specifications over which a special trial counsel exercises authority may only be made—
(1) by a special trial counsel, subject to a special trial counsel’s written determination accompanying the referral that—
(A) each specification under a charge alleges an offense under this chapter;
(B) there is probable cause to believe that the accused committed the offense charged; and
(C) a court-martial would have jurisdiction over the accused and the offense; or
(2) in the case of charges and specifications that do not allege a covered offense and as to which a special trial counsel declines to prefer or, in the case of charges and specifications preferred by a person other than a special trial counsel, refer charges, by the convening authority in accordance with this section.
**(d) General and Special Courts-martial; Correction of Charges and Specifications Before Referral.—** Before referral for trial by general court-martial or special court-martial, changes may be made to charges and specifications—
(1) to correct errors in form; and
(2) when applicable, to conform to the substance of the evidence contained in a report under [section 832(c) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section832/c&num=0&edition=prelim) (article 32(c)).
**(e) Referral Defined.—** In this section, the term “referral” means the order of a convening authority or, with respect to charges and specifications over which a special trial counsel exercises authority in accordance with [section 824a of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section824a&num=0&edition=prelim) (article 24a), a special trial counsel, that charges and specifications against an accused be tried by a specified court-martial.
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Federal law — U.S. Code and appendices · legal_authorities
**(a) In General.—** Charges and specifications—
(1) may be preferred only by a person subject to this chapter; and
(2) shall be preferred by presentment in writing, signed under oath before a commissioned officer of the armed forces who is authorized to administer oaths.
**(b) Required Content.—** The writing under subsection (a) shall state that—
(1) the signer has personal knowledge of, or has investigated, the matters set forth in the charges and specifications; and
(2) the matters set forth in the charges and specifications are true, to the best of the knowledge and belief of the signer.
**(c) Duty of Proper Authority.—** When charges and specifications are preferred under subsection (a), the proper authority shall, as soon as practicable—
(1) inform the person accused of the charges and specifications; and
(2) determine what disposition should be made of the charges and specifications in the interest of justice and discipline.
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Federal law — U.S. Code and appendices · legal_authorities
**(a) Rape.—** Any person subject to this chapter who commits a sexual act upon another person by—
(1) using unlawful force against that other person;
(2) using force causing or likely to cause death or grievous bodily harm to any person;
(3) threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping;
(4) first rendering that other person unconscious; or
(5) administering to that other person by force or threat of force, or without the knowledge or consent of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct;
is guilty of rape and shall be punished as a court-martial may direct.
**(b) Sexual Assault.—** Any person subject to this chapter who—
(1) commits a sexual act upon another person by—
(A) threatening or placing that other person in fear;
(B) making a fraudulent representation that the sexual act serves a professional purpose; or
(C) inducing a belief by any artifice, pretense, or concealment that the person is another person;
(2) commits a sexual act upon another person—
(A) without the consent of the other person; or
(B) when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring; or
(3) commits a sexual act upon another person when the other person is incapable of consenting to the sexual act due to—
(A) impairment by any drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person; or
(B) a mental disease or defect, or physical disability, and that condition is known or reasonably should be known by the person;
i
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Federal law — U.S. Code and appendices · legal_authorities
**(a)** The following persons are subject to this chapter:
(1) Members of a regular component of the armed forces, and members of the Space Force on active duty under [section 20105 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section20105&num=0&edition=prelim), including those awaiting discharge after expiration of their terms of enlistment; volunteers from the time of their muster or acceptance into the armed forces; inductees from the time of their actual induction into the armed forces; and other persons lawfully called or ordered into, or to duty in or for training in, the armed forces, from the dates when they are required by the terms of the call or order to obey it.
(2) Cadets, aviation cadets, and midshipmen.
(3)
(A) While on inactive-duty training and during any of the periods specified in subparagraph (B)—
(i) members of a reserve component or the Space Force; and
(ii) members of the Army National Guard of the United States or the Air National Guard of the United States, but only when in Federal service.
(B) The periods referred to in subparagraph (A) are the following:
(i) Travel to and from the inactive-duty training site of the member, pursuant to orders or regulations.
(ii) Intervals between consecutive periods of inactive-duty training on the same day, pursuant to orders or regulations.
(iii) Intervals between inactive-duty training on consecutive days, pursuant to orders or regulations.
(4) Retired members of a regular component of the armed forces who are entitled to pay.
(5) Retired members of a reserve component, or retired members of the Space Force who qualified for a non-regular retirement and are receiving retired pay, who are receiving hospitalization from an armed force.
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Federal law — U.S. Code and appendices · legal_authorities
In this chapter (the Uniform Code of Military Justice):
(1) The term “Judge Advocate General” means, severally, the Judge Advocates General of the Army, Navy, and Air Force and, except when the Coast Guard is operating as a service in the Navy, an official designated to serve as Judge Advocate General of the Coast Guard by the Secretary of Homeland Security.
(2) The Navy, the Marine Corps, and the Coast Guard when it is operating as a service in the Navy, shall be considered as one armed force.
(3) The term “commanding officer” includes only commissioned officers.
(4) The term “officer in charge” means a member of the Navy, the Marine Corps, or the Coast Guard designated as such by appropriate authority.
(5) The term “superior commissioned officer” means a commissioned officer superior in rank or command.
(6) The term “cadet” means a cadet of the United States Military Academy, the United States Air Force Academy, or the United States Coast Guard Academy.
(7) The term “midshipman” means a midshipman of the United States Naval Academy and any other midshipman on active duty in the naval service.
(8) The term “military” refers to any or all of the armed forces.
(9) The term “accuser” means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than an official interest in the prosecution of the accused.
(10) The term “military judge” means a judge advocate designated under [section 826(c) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section826/c&num=0&edition=prelim) (article 26(c)) who is detailed under section 826(a) or [section 830a of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-
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Federal law — U.S. Code and appendices · legal_authorities
**(a) Detail of Special Trial Counsel.—** Each Secretary concerned shall promulgate regulations for the detail of commissioned officers to serve as special trial counsel.
**(b) Qualifications.—** A special trial counsel shall be a commissioned officer who—
(1)
(A) is a judge advocate who is qualified under [section 806(a)(1) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section806/a/1&num=0&edition=prelim) (article 6(a)(1)); and
(B) is certified to be qualified, by reason of education, training, experience, and temperament, for duty as a special trial counsel by—
(i) the Judge Advocate General of the armed force of which the officer is a member; or
(ii) in the case of the Marine Corps, the Staff Judge Advocate to the Commandant of the Marine Corps; and
(2) in the case of a lead special trial counsel appointed pursuant to [section 1044f(a)(2) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section1044f/a/2&num=0&edition=prelim), is in a grade no lower than O–7.
**(c) Duties and Authorities.—**
(1) **In general.—** — Special trial counsel shall carry out the duties described in this chapter and any other duties prescribed by the Secretary concerned, by regulation.
(2) **Determination of covered offense; related charges.—**
(A) *Authority.—* — A special trial counsel shall have exclusive authority to determine if a reported offense is a covered offense and shall exercise authority over any such offense in accordance with this chapter. Any determination to prefer or refer charges shall not act to disqualify the special trial counsel as an accuser.
(B) *Known and related offenses.—* — If a special trial counsel determines that a reported offense is a covered offense, the spe
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Federal law — U.S. Code and appendices · legal_authorities
**(a) In General.—**
(1)
(A) Except as provided in subparagraph (B), a preliminary hearing shall be held before referral of charges and specifications for trial by general court-martial. The preliminary hearing shall be conducted by an impartial hearing officer detailed in accordance with subparagraph (C).
(B) Under regulations prescribed by the President, a preliminary hearing need not be held if the accused submits a written waiver to—
(i) except as provided in clause (ii), the convening authority and the convening authority determines that a hearing is not required; and
(ii) with respect to charges and specifications over which the special trial counsel is exercising authority in accordance with [section 824a of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section824a&num=0&edition=prelim) (article 24a), the special trial counsel and the special trial counsel determines that a hearing is not required.
(C)
(i) Except as provided in clause (ii), the convening authority shall detail a hearing officer.
(ii) If a special trial counsel is exercising authority over the charges and specifications subject to a preliminary hearing under this section (article), the special trial counsel shall request a hearing officer and a hearing officer shall be provided by the convening authority, in accordance with regulations prescribed by the President.
(2) The purpose of the preliminary hearing shall be limited to determining the following:
(A) Whether or not the specification alleges an offense under this chapter.
(B) Whether or not there is probable cause to believe that the accused committed the offense charged.
(C) Whether or not the convening authority has court-martial jurisdiction over the accused and ove
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Federal law — U.S. Code and appendices · legal_authorities
### Statutory Notes
Section 601, act May 5, 1950, ch. 169, § 1, 64 Stat. 118, related to charges and specifications. See [section 830 of Title 10](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section830&num=0&edition=prelim), Armed Forces.
Section 602, act May 5, 1950, ch. 169, § 1, 64 Stat. 118, prohibited compulsory self-incrimination. See [section 831 of Title 10](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section831&num=0&edition=prelim).
Section 603, act May 5, 1950, ch. 169, § 1, 64 Stat. 118, related to investigations. See [section 832 of Title 10](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section832&num=0&edition=prelim).
Section 604, act May 5, 1950, ch. 169, § 1, 64 Stat. 119, provided for forwarding of charges. See [section 833 of Title 10](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section833&num=0&edition=prelim).
Section 605, act May 5, 1950, ch. 169, § 1, 64 Stat. 119, related to advice of staff judge advocate and reference for trial. See [section 834 of Title 10](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section834&num=0&edition=prelim).
Section 606, act May 5, 1950, ch. 169, § 1, 64 Stat. 119, provided for service of charges. See [section 835 of Title 10](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section835&num=0&edition=prelim).
#### Effective Date of Repeal
Repeal effective Jan. 1, 1957, see act Aug. 10, 1956, ch. 1041, § 53 footnote, 70A Stat. 680.
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Federal law — U.S. Code and appendices · legal_authorities
Page 749
TITLE 10—ARMED FORCES
§ 834
Subsec. (g). Pub. L. 114–328, § 5203(d), inserted at end
‘‘A defect in a report under subsection (c) is not a basis
for relief if the report is in substantial compliance with
that subsection.’’
2014—Subsec. (a)(1). Pub. L. 113–291 inserted ‘‘, unless
such hearing is waived by the accused’’ after ‘‘prelimi-
nary hearing’’.
2013—Pub. L. 113–66 substituted ‘‘Preliminary hear-
ing’’ for ‘‘Investigation’’ in section catchline and
amended text generally. Prior to amendment, section
provided that no charge or specification may be re-
ferred to general court-martial for trial until thorough
and impartial investigation of all the matters had been
made.
1996—Subsecs. (d), (e). Pub. L. 104–106 added subsec.
(d) and redesignated former subsec. (d) as (e).
1981—Subsec. (b). Pub. L. 97–81 substituted ‘‘The ac-
cused has the right to be represented at that investiga-
tion as provided in section 838 of this title (article 38)
and in regulations prescribed under that section’’ for
‘‘Upon his own request he shall be represented by civil-
ian counsel if provided by him, or military counsel of
his own selection if such counsel is reasonably avail-
able, or by counsel detailed by the officer exercising
general court-martial jurisdiction over the command’’.
Statutory Notes and Related Subsidiaries
EFFECTIVE DATE OF 2021 AMENDMENT
Amendment by Pub. L. 117–81 effective on the date
that is two years after Dec. 27, 2021, and applicable with
respect to offenses that occur after that date, with pro-
visions for delayed effect and applicability if regula-
tions are not prescribed by the President before the
date that is two years after Dec. 27, 2021, see section
539C of Pub. L. 117–81, set out as a note under section
801 of this title.
EF
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