What Happens Before a Court-Martial: The Pretrial Stages Explained

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Most of a military case happens before anyone enters a courtroom. The Uniform Code of Military Justice sets out the stages in sequence, and each one has its own article, its own decision-maker, and in several cases its own clock.

This page is the sequence. It names each stage, quotes the provision that governs it, and identifies who acts. The detail of each stage lives on its own page; what this page owns is the order, because the order is what makes a single decision intelligible.

It does not assess any stage in any case, and it does not tell anyone what to do at one.

The sequence, in the statute’s order

restraint (Art. 10)  ->  preferral (Art. 30)  ->  notice and disposition (Art. 30(c))
      ->  preliminary hearing (Art. 32)  ->  SJA advice (Art. 34)
      ->  referral  ->  service of charges (Art. 35)  ->  arraignment

Not every case passes through every stage. Restraint is conditional, the preliminary hearing can be waived, and the Article 34 advice is required for general courts-martial.

Restraint, which can come before charges

Article 10 permits arrest or confinement of a person charged, and immediately imposes duties on the government.

“(b) Notification to Accused and Related Procedures.—(1) When a person subject to this chapter is ordered into arrest or confinement before trial, immediate steps shall be taken— (A) to inform the person of the specific offense of which the person is accused; and (B) to try the person or to dismiss the charges and release the person.”

Source: 10 U.S.C. 810 (Article 10), subsection (b)(1).

Clause (B) is the pretrial speed provision, and its standard is “immediate steps” rather than a number of days. Article 10(a)(2) adds a restriction: where a person is charged only with an offense “that is normally tried by summary court-martial”, the person “ordinarily shall not be ordered into confinement.”

Preferral: charges come into existence

Charges are preferred under Article 30 by a person subject to the Code, in writing, signed under oath. The signer swears that the matters are true “to the best of the knowledge and belief of the signer.”

Two duties follow “as soon as practicable”: informing the accused, and determining disposition “in the interest of justice and discipline.” The mechanics are in preferral of charges.

Disposition guidance, which is not binding

Between preferral and any decision about trial sits a document the Code requires but does not make binding. Article 33 both orders it into existence and fixes its status in one word.

“The President shall direct the Secretary of Defense to issue, in consultation with the Secretary of the department in which the Coast Guard is operating when it is not operating as a service in the Navy, non-binding guidance regarding factors that commanders, convening authorities, staff judge advocates, and judge advocates should take into account when exercising their duties with respect to disposition of charges and specifications in the interest of justice and discipline under sections 830 and 834 of this title (articles 30 and 34).”

Source: 10 U.S.C. 833 (Article 33).

The article also fixes what the guidance must draw on: it “shall take into account, with appropriate consideration of military requirements, the principles contained in official guidance of the Attorney General to attorneys for the Government with respect to disposition of Federal criminal cases.”

So disposition decisions are guided by a document modelled on federal prosecutorial principles, and the guidance is expressly non-binding.

The preliminary hearing, and what it is limited to

Article 32 requires a hearing before referral to a general court-martial and states its purpose as a closed list.

“(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).”

Source: 10 U.S.C. 832 (Article 32), subsection (a)(1)(A).

The purpose is “limited to determining” a short list, beginning with whether the specification alleges an offense under the chapter and whether there is probable cause. This is not a trial, and the hearing officer is not a judge.

Two features reflect the recent reallocation of authority. The hearing can be waived: under regulations prescribed by the President, no hearing need be held if the accused submits a written waiver and the deciding official determines a hearing is not required. Who that official is depends on the offense: ordinarily the convening authority, but “with respect to charges and specifications over which the special trial counsel is exercising authority in accordance with section 824a”, the special trial counsel. The same split governs who obtains the hearing officer.

How the preliminary hearing actually runs

Article 32 creates the hearing and states its purposes. The rule states its choreography, and it was rewritten on 20 December 2024.

“(1) Generally. The preliminary hearing shall begin with the preliminary hearing officer informing the accused of the accused’s rights under R.C.M. 405(g). Counsel for the Government will then present evidence. Upon the conclusion of counsel for the Government’s presentation of evidence, defense counsel may present matters. Both counsel for the Government and defense counsel shall be afforded an opportunity to cross-examine adverse witnesses. The preliminary hearing officer may also question witnesses called by the parties.”

Source: Executive Order 14130, 20 December 2024, Annex, amending the Manual for Courts-Martial.

Four things follow, and the last is the sharpest.

The order is fixed. Rights advice, then the Government’s evidence, then the defence’s matters. The defence “may” present; it is not required to.

Cross-examination is guaranteed to both sides. “Shall be afforded an opportunity”, not left to the hearing officer’s discretion.

The hearing officer may question, but only the parties’ witnesses. The rule says the officer may question “witnesses called by the parties”.

And the officer cannot go looking. The same paragraph ends: “The preliminary hearing officer shall not call witnesses sua sponte.” Where the officer decides further evidence is relevant, not cumulative and necessary, the Government produces it, and where it is not reasonably available the Government files a written explanation that goes into the hearing report.

That last mechanism is what keeps the hearing adversarial rather than inquisitorial. The officer decides what is needed and the Government bears the burden of producing it or explaining its absence in writing.

Advice before referral

For a general court-martial, Article 34 gates referral on written advice from a staff judge advocate containing three findings: that the specification alleges an offense under the chapter, that there is probable cause to believe the accused committed it, and that a court-martial would have jurisdiction over the accused and the offense. Article 34(a)(2) requires a separate written recommendation on disposition alongside it. The article and the separate disposition recommendation are set out in the staff judge advocate.

Referral, and who makes it

Referral sends charges to a specified court-martial. It is a decision of a convening authority, except for covered offenses, where Article 24a gives a special trial counsel exclusive authority to refer and makes that determination binding on the convening authority. The full allocation is in convening authority.

Service of charges, and the waiting period

After referral, Article 35 requires service and then imposes a delay the accused can insist on.

“(b) Commencement of Trial.—(1) Subject to paragraphs (2) and (3), no trial or other proceeding of a general court-martial or a special court-martial (including any session under section 839(a) of this title (article 39(a)) may be held over the objection of the accused— (A) with respect to a general court-martial, from the time of service through the fifth day after the date of service; or (B) with respect to a special court-martial, from the time of service through the third day after the date of service.”

Source: 10 U.S.C. 835 (Article 35), subsection (b)(1).

Two conditions attach. The objection may be raised “only at the first session of the trial or other proceeding and only if the first session occurs before the end of the applicable period”, and where that happens the military judge “shall, at that session, inquire as to whether the defense objects.” And paragraph (3) removes the whole subsection in one circumstance: “This subsection shall not apply in time of war.”

Service itself is a duty of trial counsel, who “shall cause to be served upon the accused a copy of the charges and specifications referred for trial.”

What this page does not decide

Whether any stage was properly conducted in a particular case. Each has its own standard and its own record.

How long any stage takes. The Code uses “as soon as practicable” and “immediate steps” rather than deadlines, except for the five-day and three-day periods in Article 35.

Whether to waive the preliminary hearing or to object under Article 35. Both are choices the statute gives the accused, and both are decisions for the accused with counsel.

Where to go from here

The first courtroom event after this sequence is arraignment, and the motions that shape what the trial will consider are in pretrial motions. Where an Army inquiry precedes all of this, see AR 15-6 investigations.

Sources

What this page did not open. The Manual for Courts-Martial was not opened, and the regulations governing preliminary hearing waiver and hearing officer detailing are prescribed there. The disposition guidance issued under Article 33 was not opened. No court decision was opened.

Checked on 19 September 2026, and checked for currency as well as for accuracy. Every statutory provision cited on this page was traced to the current United States Code: where a provision has not been amended since the 2023 edition, that edition’s text is the current text and its amendment record was read to confirm it; where a provision was amended by Pub. L. 118–159 (23 December 2024) or Pub. L. 119–60 (18 December 2025), the current text is quoted above and the amending Act is named beside it. The two Acts’ own texts were read to establish the complete list of provisions in this chapter that they changed. This was done through the Cornell mirror of the Code and through the Acts as published by the Government Publishing Office; the House preliminary Code could not be reached from here, so no third source confirms it. No independent expert review has taken place yet, and this page says so rather than implying one.

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