The Act of Referral

Once the charge sheet and the supporting materials are presented to the SCM CA and he or she decides to refer the case to an SCM, he or she must send the case to one of the SCMs previously convened. You complete this procedure by means of completing block 14 in part V on page 2 of the charge sheet. The referral is executed personally by the CA. It explicitly details the type of court to which the case is being referred (SCM, SPCM, GCM) and the specific court to which the case is being referred.

A court-martial can only hear a case properly referred to it. The simplest and most accurate way to describe the correct court is to use the serial number and date of the order creating that court. Thus, the referral might read "referred for trial to the summary court-martial appointed by my summary court- martial convening order 1-CY dated 17 July 19CY." This language precisely identifies a particular kind of court-martial and the particular SCM to try the case.

In addition, the referral on page 2 of the charge sheet should show any particular instructions applicable to the case. These instructions could include statements such as confinement is not an authorized punishment in this case or any other instructions desired by the CA. If no instructions apply to the particular case, the referral should so indicate by use of the word None in the appropriate blank. Once the referral is properly executed, the case is referred to trial. Send the case file to the proper SCM officer for further action.

PRETRIAL PREPARATION

After charges are referred to trial by SCM, and all case materials are sent to the proper SCM officer, he or she is responsible for preparing the case for trial.

Preliminary Preparation

Upon receipt of the charges and accompanying papers, the SCM officer begins preparation for trial. The charge sheet is carefully examined, and all obvious administrative, clerical, and typographical errors are corrected. The SCM officer initials each correction he or she makes on the charge sheet. If there are so many errors as to require preparation of a new charge sheet, reswearing of the charges and re-referral are required. If the SCM officer changes an existing specification to include any new person, offense, or matter not fairly included in the original specification, the new specification must be resworn and re-referred. The SCM officer continues with his or her examination of the charge sheet to determine the correctness and completeness of the information on pages 1 and 2.

Pretrial Conference With the Accused

After initial review of the court-martial file, the SCM officer meets with the accused in a pretrial conference. This section discusses the accused's right to counsel later in this chapter. If the accused elects representation by counsel, all dealings with the accused are through his or her counsel. Thus, the accused's counsel, if any, should be invited to attend the ^{pretrial conference.} At the pretrial conference, the SCM officer follows the suggested guide found in appendix 9, MCM, 1984, and documents the fact that all applicable rights were explained to the accused. This is done by completing blocks 4 and 5 on the Record of Trial by Summary Court-Martial, DD Form 2329.

Purpose

The purpose of the pretrial conference is to provide the accused with information on the nature of the court-martial, the procedure to be used, and his or her rights with respect to that procedure. No attempt should be made by the SCM officer to interrogate the accused or otherwise discuss the merits of the charges. The proper time to deal with the merits of the accusations against the accused is at trial. The SCM officer provides the accused with a meaningful and thorough briefing so the accused fully understands the court-martial process and his or her rights pertaining to that process.

Advice to Accused-Rights

The SCM officer advises the accused of the following matters: . The general nature of the charges . The fact that the charges have been referred to an SCM for trial and the date of referral l The identity of the CA 

l The name of the accuser . The name of the witnesses who could be called to testify and any documents or physical evidence that the SCM officer expects to introduce into evidence 

l The accused's right to inspect the allied papers and immediately available personnel records 

c That during the trial the SCM officer will not consider any matters including statements previously made by the accused to the officer detailed as SCM unless they are admitted according to the Military Rules of Evidence 

l The right to plead not guilty or guilty 

l The right to cross-examine witnesses and have the SCM officer cross-examine witnesses on behalf of the accused 

l The right to call witnesses and produce evidence with the assistance of the SCM officer, if necessary 

l The right to testify on the merits or to remain silent with the assurance that no adverse inference will be drawn by the SCM officer for such silence 

l If any findings of guilty are announced, the right to remain silent, to make an unsworn statement, oral or written or both, to testify, and to introduce evidence in extenuation and mitigation

. The right to object to trial by SCM

l The maximum sentence that the SCM officer may adjudge if found guilty of the offense(s) alleged

The maximum punishment at a SCM includes the following:

E-4 and below-The jurisdictional maximum sentence that an SCM may adjudge in the case of an accused who, at the time of trial is in paygrade E-4 or below, extends to (1) reduction to the lowest paygrade (E-1); (2) forfeiture of two-thirds of 1 month's pay (CA may apportion collection over no more than 3 months); (3) a fine not to exceed two-thirds of 1 month's pay; (4) confinement not to exceed 1 month; (5) hard labor without confinement not to exceed 45 days (instead of confinement); and (6) restriction to specified limits for 2 months. If the accused is attached to or embarked in a vessel and is in paygrade E-3 or below, he or she may be sentenced to serve 3 days' confinement on bread and water/diminished rations and 24 days' confinement instead of 30 days' confinement.

E-5 and above-The jurisdictional maximum that an SCM could impose in the case of an accused who, at the time of trial is in paygrade E-5 or above, extends to (1) reduction, but only to the next inferior paygrade; (2) restriction to specified limits for 2 months; and (3) forfeiture of two-thirds of 1 month's pay. Unlike NJP, where an E-4 may be reduced to E-3 and then awarded restraint punishments imposable only upon an E-3 or below, at SCM, an E-5 cannot be sentenced to confinement or hard labor without confinement even if a reduction to E-4 has also been adjudged.