SUFFICIENCY OF SPECIFICATIONS.- If a specification that the accused has been found guilty fails to allege any offense under the Code, the proceedings as to that specification are a nullity and must be declared invalid. If a specification alleges an offense under the Code, the proceedings as to that specification should not be held invalid solely because the specification is defective. However, if it appears from the record that the accused was misled by the defect or that his or her substantial rights were otherwise materially prejudiced, appropriate corrective action must be taken. The test of the sufficiency of a specification is not whether it could have been made more definite and certain, but whether the facts alleged and reasonably implied set forth the offense sought to be charged with sufficient clarity to apprise the accused of what he or she must defend himself or herself against. Whether the record is sufficient to enable the accused to avoid a second prosecution for the same offense must also be considered in applying this test.

Preparation Instructions

The preparation of the charge sheet is a matter for the regulations of the secretary of a department; however, certain rules and considerations have been adopted to make sure there is consistency in the preparation of the charge sheet. In typing the charge sheet use initial caps. Let us take a look at the block-by-block preparation instructions:

Block 1: Name of Accused-Type the accused's last name, first name, and middle initial.

Block 2: SSN-Verify the accused's SSN from his or her enlistment contract and type in as verified.

Block 3: Grade or Rank-Abbreviate the grade or rank of the accused; for example, SN, YN3, BM2, PFC, ENS, or LT.

Block 4: Paygrade-Indicate the accused's paygrade by either an O or E level; for example, E-3, E-4, E-7, O-2, or O-4.

Block 5: Unit or Organization-Type the organization to which the accused is assigned for strength accountability. For example, for ships use the name of ship and hull number, USS Midway (CV 41); for shore activities use the name of activity and geographical location, U.S. Naval Support Activity, Naples, Italy; or Fighter Squadron One Zero One, Naval Air Station, Oceana, Virginia Beach, Virginia.

Block 6: Current Service-Verify these entries from the accused's enlistment contract(s).

a. Initial Date-Example: 1 April 19CY.

b. Term-Example: 3 years, 4 years, or Indefinite.

Block 7: Pay Per Month-Verify this amount with the disbursing or finance office.

a. Basic-Dollar amount. Example: $1,297.00.

b. Sea/Foreign Duty-Dollar amount. Example: $100.00. (If there is no sea or foreign duty pay, then type in the word None.)

c. Total-Add up the pay per month and the sea/foreign duty pay and enter the dollar amount. Example: $1,397.00.

Block 8: Nature of Restraint of Accused-Use one of the following terms: Restriction, Confinement, or None, whichever is applicable.

Block 9: Date(s) Imposed-Show the inclusive dates of any restraint, including the beginning and ending dates. Example: 1-2 August 19CY or 1 May -7 June 19CY.

If the accused is still in restraint on the date you are preparing the charge sheet, show only the date that the restraint began. If the accused is released from restraint status after the charge sheet is typed and before the date of trial, the trial counsel (TC) will amend the entry as appropriate and initial it.

According to the decision rendered in United States

v. Allen, 17 M.J. 126 (1984), periods of legal pretrial confinement are given a day-for-day credit against any confinement awarded at trial. Additionally, periods of illegal pretrial confinement or restriction that is considered by the military judge to be equal to confinement will be given an additional day-for-day credit. You may also list confinement by civilian authorities. However, it must be related to, or as a result of, the current charges listed on the charge sheet.

Block 10: Charges and Specifications-Use block 10 for stating the charges and specifications alleged ^{against the accused.} Prepare the charges and specifications according to part IV, MCM.

Block 11a: Name of Accuser-Type in the accuser's last name, first name, and middle initial.

Block 11b: Grade-List the grade or rate of the accuser. Example: CAPT, ENS, LTJG, LNC, or YN1. You may spell out the grade if room allows.

Block 11c: Organization of Accuser-Type in the activity of the accuser. Example: U.S. Naval Support Activity, Naples, Italy.

Block 11d and e: Signature of Accuser/Date-The accuser will sign and date this entry after swearing to the charges and specifications. The accuser must sign all copies of the charge sheet in the presence of the officer who administers the oath. The accuser, by signing the charge sheet, "prefers" the charges. Any person subject to the Code may prefer charges.

Block 11: Affidavit-Line out information where appropriate.

a. Day, Month, and Year-You may type this entry or leave it blank until the affidavit is signed. Then the officer who signs the affidavit can pen in the information.

b. Typed Name of Officer-Type in this information as the person will sign.

c. Grade-Include armed force and Staff Corps designation (if applicable). Example: LCDR, JAGC, USN, or MAJ, JAGC, USA.

d. Organization of Officer-Refer to the typing instructions given for the accuser in block 11c.

e. Official Capacity to Administer Oath-Only certain officers are authorized to administer oaths. These officers are set forth in (1) Article 136(a), UCMJ, that extends this authorization to all judge advocates; all summary courts-martial; all adjutants; assistant adjutants; acting and personal adjutants; all COs of the Navy, Marine Corps, and Coast Guard; all staff judge advocates (SJAs) and legal officers and acting or assistant SJAs and legal officers; and all other persons designated by regulations of the armed forces or by statute; (2) Section (b) of Article 136, MCM, lists other persons who may administer oaths in the performance of their duties; and (3) Manual of the Judge Advocate General (JAGMAN).

This officer must not only witness the accuser's signature on the charge sheet, but must actually administer to the accuser the oath to charges that is set forth in Rules for Courts-Martial (R. C, M.) 307, MCM, 1984.

Block 12: Informing Accused of Charges-Line out information where appropriate.

a. Date-This entry will be the date that the accused is formally informed of the charges.

b. Typed Name of Immediate Commander-Type the name of the person who actually informs the accused of the charges. Often, this person is the discipline officer and the block will be marked accordingly.

c. Grade-Refer to the example in the affidavit sections for typing grade.

d. Organization of Immediate Commander- Type in the name of the unit or organization that the person informing the accused belongs to. Example: USS Midway (CV 47) or U.S. Naval Support Activity, Naples, Italy.

e. Signature-This entry will bear the signature of the person who actually informs the accused of the charges. This person personally signs the original charge sheet and all copies. R.C.M. 308, MCM, 1984, states that the accused's immediate commander will cause the accused to be informed of the charges against him or her and the name of the accuser. This is done by the immediate commander personally informing the accused and signing or certifying with his or her signature that he or she has caused this to be done.

Block 13: Receipt for Sworn Charges.

a. Designation of Command or Officer Exercising Summary Court-Martial Jurisdiction-Type in the name of the activity or the name of the officer holding that designation.

b. Typed Name of Officer-Type in the name of the individual who will sign.

c. Grade-Refer to the example for affidavit.

d. Official Capacity of Officer Signing-What position does the individual who is signing hold within the command? Is it adjutant, judge advocate, or personnel officer? The position may be the commander or a subordinate authorized to sign for him or her. When the commander signs personally, strike out the inapplicable words FOR THE appearing above the signature line; for example, COMMANDERZZ!!w

e. Date/Hour-The date of receipt of the charges is extremely important. If this date occurs during the running of the statute of limitations, the accused can be tried by court-martial. If this date occurs after the running of the statute of limitations, the accused is not liable to be tried by court-martial. Leave the hours section blank until receipt of the sworn charges has been signed, then the officer signing will pen in the hours entry.

Block 14: Referral of Charges.

a. Designation of Command of Convening Authority-Type in the name of the activity. For ships, type in uppercase and include the hull number.

b. Place-Give the geographical location of all activities other than ships. For ships, leave blank.

c. Date-This entry will be the date that the convening authority (CA) refers the charges for court-martial.

d. Convened by-Type in the convening order number and its date; for example, my Special Court-Martial Convening Order 1-CY of 1 January 19CY.

e. Subject to the Following Instructions-The CA may have any number of instructions about a case being referred to court-martial. In this event, the CA would state in this section what instructions or conditions are applicable. These instructions could include ( 1 ) that the charges against the accused be tried with certain other charges; (2) that the CA is referring a capital offense as noncapital if the death penalty is not mandatory (when a CA has this discretion to refer a capital case as noncapital, he or she should refer to the criteria found in R.C.M. 1004); (3) that no bad-conduct discharge (BCD) be adjudged; and (4) instructions on amending orders to the court-martial. NOTE: You must state all special instructions in the referral.

f. By Command or Order of-Referral will be by the personal order of the CA. In some instances, the CA may not be signing the charge sheet. If this should occur, reflect it by showing the signer's authority.

If the CA is signing (which is usually the case), then this section would be lined out by using slashes. SPECIAL NOTE: If the only officer present in the command refers the charges to an summary court-martial (SCM) and serves as SCM officer, complete the referral with this additional comment: Only Officer Present in the Command.

Block 15: Service of Charges.

a. Date-Type or handwrite in the date that service upon the accused is made.

b. Typed Name of Trial Counsel-Type in the full name of the TC.

c. Grade or Rank of Trial Counsel-Example: LT, JAGC, USNR (spell out if room allows).

^{d. Signature}-The TC signs his or her name as typed in this block.

If charges are for trial by SCM, this section would reflect that the summary court served the accused. This process would be done by typing slashes through the words Trial Counsel and replacing them with the words Summary Court.

The TC is responsible for serving the accused. Some items to keep in mind at this point are that you or the TC must actually give a copy of the charges to the accused. Substitute service upon the defense counsel ^{(DC) is not enough.} Service should be made immediately after receipt of the charges by the TC. The TC promptly informs the DC that service was made.

Any questions by the accused when served should be referred to the respective DC. Changes or amendments to the charge sheet need to be brought to the attention of the DC. Any charge sheet that is amended or substantially changed must be additionally served upon the accused.

e. Service on Accused "By Direction" of the Trial Counsel-Although the TC is tasked with service of charges upon the accused, the TC may not be able to accomplish this on all occasions. If this situation should occur, follow the steps set forth below:

(1) Service section will reflect all personal information of the TC.

^{(2) Service} "By direction of the Trial Counsel" is shown by leaving the section (caused to be) unmarked.

In time of peace, no person may, over objection, be brought to trial, including an Article 39(a) session, before a general court-martial (GCM) within the period of 5 days after service of charges, or before a special court-martial (SPCM) within a period of 3 days after service of charges.

In computing these dates, exclude the date of service. You will also exclude the date of trial. However, you will include holidays and Sundays. The accused has the right, however, to waive the mandatory waiting period and proceed to trial before the 3- or 5-day period has elapsed.