POSTHEARING PROCEDURES

After the hearing is completed, the investigating officer prepares his or her report and submits it to the CO who directed the investigation. Figure 7-5 illustrates a completed investigating officer's report. The CO considers the investigating officer's recommendation as to disposition, but he or she need not follow it. The CO may dispose of the charges as he or she sees fit. If the CO deems a GCM is appropriate, but lacks the authority to convene such a court-martial, then he or she must send the report to the area coordinator, absent direction to the contrary from the OEGCMJ in his or her chain of command.

The report is sent with an endorsement that includes the recommendation of the officer directing the pretrial investigation, the recommendations of the

investigating officer, a detailed and explanatory chronology of events in the case, and any comments deemed appropriate. A sample endorsement is shown in figure 7-6.

If the CO who ordered the investigation is also an OEGCMJ, he or she may refer the case to trial by GCM if he or she believes the charges are warranted by the evidence and such disposition is appropriate.

Before a case is referred to a GCM, the CA's SJA must review the case and prepare a written legal opinion on the sufficiency of the evidence and advisability of trial. This written legal opinion is referred to as the pretrial advice and is shown in figure 7-7.

Figure 7-6.-Sample endorsement on an Article 32 investigating officer's report.

Figure 7-7.-Article 34 advice of the staff judge advocate.

Figure 7-7.-Article 34 advice of the staff judge advocate-Continued.

The advice of the SJA includes a written and signed statement that sets forth that person's opinions regarding the following:

l Whether each specification on the charge sheet alleges an offense under the UCMJ

l Whether each allegation is substantiated by the evidence indicated in the Article 32 report of investigation

l Whether a court-martial would have jurisdiction over the accused and the offense(s)

l The action to be taken by the CA

The SJA is personally responsible for the pretrial advice and must make an independent and informed appraisal of the charges and evidence to render the advice. Another person may prepare the advice, but the SJA is responsible for it and must sign it personally.

The advice need not set forth the underlying analysis or rationale for its conclusions. Ordinarily, the charge sheet, forwarding letter and endorsements, and report of investigation are sent along with the pretrial advice. In addition, the pretrial advice should include, when appropriate, a brief summary of the evidence; discussion of significant aggravating, extenuating, or mitigating factors; and any previous recommendations, by commanders or others who have forwarded the charges, for disposition of the case. There is no legal requirement to include such information and failure to do so is not an error. Lastly, it should be noted that the legal conclusions reached by the SJA are binding on the CA whereas the recommendation is not.