10 U.S.C. § 834 — Art. 34. Advice to convening authority be-

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. EFFECTIVE DATE OF 2016 AMENDMENT Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with imple- menting regulations and provisions relating to applica- bility to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title. EFFECTIVE DATE OF 2013 AMENDMENT Amendment by Pub. L. 113–66 effective on the later of Dec. 26, 2014, or the date of the enactment of the Carl Levin and Howard P. ‘‘Buck’’ McKeon National Defense Authorization Act for Fiscal Year 2015 (Dec. 19, 2014) and applicable with respect to preliminary hearings conducted on or after that effective date, see section 1702(d)(1) of Pub. L. 113–66, set out as a note under sec- tion 802 of this title. EFFECTIVE DATE OF 1981 AMENDMENT Amendment by Pub. L. 97–81 to take effect at end of 60-day period beginning on Nov. 20, 1981, and to apply with respect to investigations under this section that begin on or after that date, see section 7(a) and (b)(3) of Pub. L. 97–81, set out as an Effective Date note under section 706 of this title. § 833. Art. 33. Disposition guidance The President shall direct the Secretary of De- fense to issue, in consultation with the Sec- retary of the department in which the Coast Guard is operating when it is not operating as a service in the Navy, non-binding guidance re- garding factors that commanders, convening au- thorities, staff judge advocates, and judge advo- cates should take into account when exercising their duties with respect to disposition of charges and specifications in the interest of jus- tice and discipline under sections 830 and 834 of this title (articles 30 and 34). Such guidance shall take into account, with appropriate con- sideration of military requirements, the prin- ciples contained in official guidance of the At- torney General to attorneys for the Government with respect to disposition of Federal criminal cases in accordance with the principle of fair and evenhanded administration of Federal criminal law. (Aug. 10, 1956, ch. 1041, 70A Stat. 49; Pub. L. 114–328, div. E, title LVI, § 5204, Dec. 23, 2016, 130 Stat. 2906.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 833 .......... 50:604. May 5, 1950, ch. 169, § 1 (Art. 33), 64 Stat. 119. Editorial Notes AMENDMENTS 2016—Pub. L. 114–328 amended section generally. Prior to amendment, text read as follows: ‘‘When a person is held for trial by general court-martial the commanding officer shall, within eight days after the accused is or- dered into arrest or confinement, if practicable, for- ward the charges, together with the investigation and allied papers, to the officer exercising general court- martial jurisdiction. If that is not practicable, he shall report in writing to that officer the reasons for delay.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2016 AMENDMENT Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with imple- menting regulations and provisions relating to applica- bility to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title. § 834. Art. 34. Advice to convening authority be- fore referral for trial (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 con- vening authority shall submit the matter to the staff judge advocate for advice, which the staff judge advocate shall provide to the con- vening 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 au- thority 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 rec- ommendation to the convening authority as to the disposition that should be made of the specification in the interest of justice and dis- cipline. Page 750 TITLE 10—ARMED FORCES § 834 (3) STAFF JUDGE ADVOCATE ADVICE AND REC- OMMENDATION TO ACCOMPANY REFERRAL.—When a convening authority makes a referral for trial by general court-martial, the written ad- vice of the staff judge advocate under para- graph (1) and the written recommendation of the staff judge advocate under paragraph (2) with respect to each specification shall accom- pany the referral. (b) SPECIAL COURT-MARTIAL; CONVENING AU- THORITY 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 gen- eral 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 al- leges 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 au- thority in accordance with this section. (d) GENERAL AND SPECIAL COURTS-MARTIAL; CORRECTION OF CHARGES AND SPECIFICATIONS BE- FORE REFERRAL.—Before referral for trial by general court-martial or special court-martial, changes may be made to charges and specifica- tions— (1) to correct errors in form; and (2) when applicable, to conform to the sub- stance of the evidence contained in a report under section 832(c) of this title (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 speci- fications over which a special trial counsel exer- cises authority in accordance with section 824a of this title (article 24a), a special trial counsel, that charges and specifications against an ac- cused be tried by a specified court-martial. (Aug. 10, 1956, ch. 1041, 70A Stat. 49; Pub. L. 98–209, § 4, Dec. 6, 1983, 97 Stat. 1395; Pub. L. 113–66, div. A, title XVII, § 1702(c)(3)(B), Dec. 26, 2013, 127 Stat. 957; Pub. L. 113–291, div. A, title V, § 531(a)(4)(B), Dec. 19, 2014, 128 Stat. 3363; Pub. L. 114–328, div. E, title LVI, § 5205, Dec. 23, 2016, 130 Stat. 2907; Pub. L. 117–81, div. A, title V, § 537, Dec. 27, 2021, 135 Stat. 1697.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 834(a) ...... 834(b) ...... 50:605(a). 50:605(b). May 5, 1950, ch. 169, § 1 (Art. 34), 64 Stat. 119. In subsection (a), the word ‘‘may’’ is substituted for the word ‘‘shall’’. Editorial Notes AMENDMENTS 2021—Subsec. (a)(1). Pub. L. 117–81, § 537(1), substituted ‘‘Subject to subsection (c), before referral’’ for ‘‘Before referral’’ in introductory provisions. Subsec. (b). Pub. L. 117–81, § 537(2), substituted ‘‘Sub- ject to subsection (c), before referral’’ for ‘‘Before refer- ral’’. Subsecs. (c), (d). Pub. L. 117–81, § 537(3), (4), added sub- sec. (c) and redesignated former subsec. (c) as (d). Former subsec. (d) redesignated (e). Subsec. (e). Pub. L. 117–81, § 537(5), inserted ‘‘or, with respect to charges and specifications over which a spe- cial trial counsel exercises authority in accordance with section 824a of this title (article 24a), a special trial counsel,’’ after ‘‘convening authority’’. Pub. L. 117–81, § 537(3), redesignated subsec. (d) as (e). 2016—Pub. L. 114–328 amended section generally. Prior to amendment, section consisted of subsecs. (a) to (c) relating to reference of charge to staff judge advocate for consideration and advice before trial, written and signed statement of advice by the staff judge advocate, and corrections to charges and specifications, respec- tively. 2014—Subsec. (a)(2). Pub. L. 113–291 inserted ‘‘(if there is such a report)’’ after ‘‘(article 32)’’. 2013—Subsec. (a)(2). Pub. L. 113–66 substituted ‘‘a pre- liminary hearing under section 832 of this title (article 32)’’ for ‘‘investigation under section 832 of this title (article 32) (if there is such a report)’’. 1983—Subsec. (a). Pub. L. 98–209, § 4(a), substituted ‘‘judge advocate’’ for ‘‘judge advocate or legal officer’’, and provisions that the convening authority may not refer a specification under a charge to a general court- martial for trial unless he has been advised in writing by the staff judge advocate that the specification al- leges an offense under this chapter, the specification is warranted by the evidence indicated in the report of in- vestigation under section 832 of this title (article 32) (if there is such a report), and a court-martial would have jurisdiction over the accused and the offense, for provi- sion that the convening authority could not refer a charge to a general court-martial for trial unless he found that the charge alleged an offense under this chapter and was warranted by evidence indicated in the report of investigation. Subsecs. (b), (c). Pub. L. 98–209, § 4(b), added subsec. (b) and redesignated former subsec. (b) as (c). 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. EFFECTIVE DATE OF 2016 AMENDMENT Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with imple- menting regulations and provisions relating to applica- bility to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title. EFFECTIVE DATE OF 2013 AMENDMENT Amendment by Pub. L. 113–66 effective on the later of Dec. 26, 2014, or the date of the enactment of the Carl Levin and Howard P. ‘‘Buck’’ McKeon National Defense Authorization Act for Fiscal Year 2015 (Dec. 19, 2014) Page 751 TITLE 10—ARMED FORCES § 835 and applicable with respect to preliminary hearings conducted on or after that effective date, see section 1702(d)(1) of Pub. L. 113–66, set out as a note under sec- tion 802 of this title. EFFECTIVE DATE OF 1983 AMENDMENT Amendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, but not to apply to any case in which charges were referred to trial before that date, and proceedings in any such case to be held in the same manner and with the same effect as if such amendments had not been enacted, see section 12(a)(1), (3) of Pub. L. 98–209, set out as a note under section 801 of this title. REVIEW OF DECISIONS NOT TO REFER CHARGES OF CER- TAIN SEX-RELATED OFFENSES FOR TRIAL BY COURT- MARTIAL Pub. L. 113–66, div. A, title XVII, § 1744, Dec. 26, 2013, 127 Stat. 980, as amended by Pub. L. 113–291, div. A, title V, § 541, Dec. 19, 2014, 128 Stat. 3371, provided that: ‘‘(a) REVIEW REQUIRED.— ‘‘(1) IN GENERAL.—The Secretary of Defense shall re- quire the Secretaries of the military departments to provide for review of decisions not to refer charges for trial by court-martial in cases where a sex-related offense has been alleged by a victim of the alleged of- fense. ‘‘(2) SPECIFIC REVIEW REQUIREMENTS.—As part of a review conducted pursuant to paragraph (1), the Sec- retary of a military department shall require that— ‘‘(A) consideration be given to the victim’s state- ment provided during the course of the criminal in- vestigation regarding the alleged sex-related of- fense perpetrated against the victim; and ‘‘(B) a determination be made whether the vic- tim’s statement and views concerning disposition of the alleged sex-related offense were considered by the convening authority in making the referral de- cision. ‘‘(b) SEX-RELATED OFFENSE DEFINED.—In this section, the term ‘sex-related offense’ means any of the fol- lowing: ‘‘(1) Rape or sexual assault under subsection (a) or (b) of section 920 of title 10, United States Code (arti- cle 120 of the Uniform Code of Military Justice). ‘‘(2) Forcible sodomy under section 925 of such title (article 125 of the Uniform Code of Military Justice). ‘‘(3) An attempt to commit an offense specified in paragraph (1) or (2) as punishable under section 880 of such title (article 80 of the Uniform Code of Military Justice). ‘‘(c) REVIEW OF CERTAIN CASES NOT REFERRED TO COURT-MARTIAL.— ‘‘(1) CASES NOT REFERRED FOLLOWING STAFF JUDGE ADVOCATE RECOMMENDATION FOR REFERRAL FOR TRIAL.—In any case where a staff judge advocate, pur- suant to section 834 of title 10, United States Code (article 34 of the Uniform Code of Military Justice), recommends that charges of a sex-related offense be referred for trial by court-martial and the convening authority decides not to refer any charges to a court- martial, the convening authority shall forward the case file to the Secretary of the military department concerned for review as a superior authorized to exer- cise general court-martial convening authority. ‘‘(2) CASES NOT REFERRED BY CONVENING AUTHORITY UPON REQUEST FOR REVIEW BY CHIEF PROSECUTOR.— ‘‘(A) IN GENERAL.—In any case where a convening authority decides not to refer a charge of a sex-re- lated offense to trial by court-martial, the Sec- retary of the military department concerned shall review the decision as a superior authority author- ized to exercise general court-martial convening authority if the chief prosecutor of the Armed Force concerned, in response to a request by the de- tailed counsel for the Government, requests review of the decision by the Secretary. ‘‘(B) CHIEF PROSECUTOR DEFINED.—In this para- graph, the term ‘chief prosecutor’ means the chief prosecutor or equivalent position of an Armed Force, or, if an Armed Force does not have a chief prosecutor or equivalent position, such other trial counsel as shall be designated by the Judge Advo- cate General of that Armed Force, or in the case of the Marine Corps, the Staff Judge Advocate to the Commandant of the Marine Corps. ‘‘(d) REVIEW OF CASES NOT REFERRED TO COURT-MAR- TIAL FOLLOWING STAFF JUDGE ADVOCATE RECOMMENDA- TION NOT TO REFER FOR TRIAL.—In any case where a staff judge advocate, pursuant to section 834 of title 10, United States Code (article 34 of the Uniform Code of Military Justice), recommends that charges of a sex-re- lated offense should not be referred for trial by court- martial and the convening authority decides not to refer any charges to a court-martial, the convening au- thority shall forward the case file for review to the next superior commander authorized to exercise gen- eral court-martial convening authority. ‘‘(e) ELEMENTS OF CASE FILE.—A case file forwarded to higher authority for review pursuant to subsection (c) or (d) shall include the following: ‘‘(1) All charges and specifications preferred under section 830 of title 10, United States Code (article 30 of the Uniform Code of Military Justice). ‘‘(2) All reports of investigations of such charges, including the military criminal investigative organi- zation investigation report and the report prepared under section 832 of title 10, United States Code (arti- cle 32 of the Uniform Code of Military Justice), as amended by section 1702. ‘‘(3) A certification that the victim of the alleged sex-related offense was notified of the opportunity to express views on the victim’s preferred disposition of the alleged offense for consideration by the con- vening authority. ‘‘(4) All statements of the victim provided to the military criminal investigative organization and to the victim’s chain of command relating to the alleged sex-related offense and any statement provided by the victim to the convening authority expressing the victim’s view on the victim’s preferred disposition of the alleged offense. ‘‘(5) The written advice of the staff judge advocate to the convening authority pursuant to section 834 of title 10, United States Code (article 34 of the Uniform Code of Military Justice). ‘‘(6) A written statement explaining the reasons for the convening authority’s decision not to refer any charges for trial by court-martial. ‘‘(7) A certification that the victim of the alleged sex-related offense was informed of the convening authority’s decision to forward the case as provided in subsection (c) or (d). ‘‘(f) NOTICE ON RESULTS OR REVIEW.—The victim of the alleged sex-related offense shall be notified of the results of the review conducted under subsection (c) or (d) in the manner prescribed by the victims and witness assistance program of the Armed Force concerned. ‘‘(g) VICTIM ALLEGATION OF SEX-RELATED OFFENSE.— The Secretary of Defense shall require the Secretaries of the military departments to develop a system to en- sure that a victim of a possible sex-related offense under the Uniform Code of Military Justice is given the opportunity to state, either at the time of making an unrestricted report of the allegation or during the criminal investigation of the allegation, whether or not the victim believes that the offense alleged is a sex-re- lated offense subject to the requirements of this sec- tion.’’ § 835. Art. 35. Service of charges; commencement of trial (a) IN GENERAL.—Trial counsel detailed for a court-martial under section 827 of this title (ar- ticle 27) shall cause to be served upon the ac- cused a copy of the charges and specifications referred for trial.