What Happens Before a Court-Martial: The Pretrial Stages Explained
On this page
- The pretrial sequence at a glance
- Stage one: investigation and the rights warning
- Stage two: preferral, where the case becomes formal
- Stage three: disposition and the lawyer’s advice
- Stage four: the Article 32 preliminary hearing
- Stage five: referral, the order that creates the trial
- Stage six: arraignment, the bridge into trial
- How a single case moves through the stages
- Frequently asked questions
- Sources and Authorities
- Disclaimer
By the time a service member sits down at the defense table for arraignment, the case has already moved through a chain of decisions that took months and passed through several different hands. None of those decisions was a trial, yet each one narrowed the range of outcomes still available. A first sergeant’s referral of an allegation to investigators, a commander’s choice about how to dispose of it, a lawyer’s written advice, a preliminary hearing officer’s report, and a convening authority’s order to send the case forward all happen before any witness is sworn before a panel. The Manual for Courts-Martial documents each of these steps in its own rule, but it never lays them out as a single sequence. What follows assembles that sequence into one map: who acts at each stage, what is actually being decided, and how the choice made at one stage limits the choices at the next.
The pretrial sequence at a glance
Military justice does not begin with a charge. It begins with a report of suspected misconduct and a question that has to be answered before anything formal happens: is there enough here to act on, and if so, how. Each stage below answers a different version of that question, and the case can stop or change direction at any of them.
| Stage | Who decides | The decision being made | Governing authority |
|---|---|---|---|
| Investigation | Military criminal investigators or a command inquiry | Whether evidence supports a suspicion of an offense | Service investigative regulations; AR 15-6 for command inquiries |
| Rights warning | The investigator or questioner | Whether a statement from the suspect can lawfully be used | Article 31(b), UCMJ |
| Preferral | An accuser (often a commander) | Whether to formally swear out charges on the charge sheet | Article 30; RCM 307 |
| Disposition / advice | Commander, or for covered offenses the Special Trial Counsel; staff judge advocate | How to dispose of the charges, and whether to recommend trial | RCM 306, RCM 401; Article 34 / RCM 406 |
| Preliminary hearing | A preliminary hearing officer | Whether probable cause and jurisdiction support a general court-martial | Article 32; RCM 405 |
| Referral | The convening authority, or the Special Trial Counsel for covered offenses | Whether, and to which court-martial, the case is sent for trial | Article 34; RCM 601 |
| Arraignment | The military judge | Formally opening the case; reading charges, pleas, forum | RCM 904 |
The rest of this guide walks each stage in order, because the logic of the system is in how the stages connect, not in any one of them standing alone.
Stage one: investigation and the rights warning
Almost every court-martial traces back to an investigation. Depending on the seriousness of the suspected offense, that work is done by a service’s criminal investigative organization, by military police, or by a command-level inquiry. The command-level route, when the Army uses it, is a regulatory investigation conducted under the framework that governs administrative fact-finding, the subject of the dedicated discussion of those command inquiries. The point of this stage is evidentiary, not adjudicative: investigators assemble what is known, identify witnesses, and determine whether the facts support a reasonable suspicion that a specific person committed a specific offense.
The moment a questioner suspects a particular service member of an offense, a distinctly military protection attaches. Before any official may interrogate or request a statement from a suspect, that person must be told the nature of the offense, that no statement need be made, and that anything said may be used as evidence. This warning, and the way it differs from the civilian rule announced in Miranda, is the subject of its own discussion in this guide. For the purposes of the pretrial sequence, what matters is that the warning is the hinge between an investigation and admissible evidence: a statement taken in violation of it cannot be used, which means investigators who cut the corner can lose the very evidence that would have justified going forward.
The investigative stage decides nothing about guilt. It decides whether there is anything to charge. Many reports end here, with no further action, because the evidence does not support proceeding.
Stage two: preferral, where the case becomes formal
A suspicion becomes a case when someone prefers charges. Preferral is the first formal step in the entire process. An accuser, frequently the service member’s commander, drafts the charges and specifications on the charge sheet and signs them under oath before an officer authorized to administer oaths, swearing that the accuser has personal knowledge of, or has investigated, the matters stated and believes them to be true. The charge sheet itself, the joint form used across all the services, and the elements of drafting a legally sufficient specification are covered in the dedicated discussion of preferral.
Preferral matters to the sequence for two reasons that the rule books treat as routine but that shape everything afterward. First, it converts an open-ended inquiry into a defined accusation: from this point the case is about specific articles of the UCMJ and specific alleged facts, and the later stages test those, not the underlying suspicion at large. Second, preferral is the event that, in most cases, starts the speedy-trial clock. The 120-day period within which the accused must be brought to arraignment runs from the earliest of preferral, the imposition of pretrial restraint, or entry on active duty, not from the date of the offense and not from referral. A case can be investigated for a long time before charges are sworn without the clock running; once charges are preferred, the calendar begins to matter.
Stage three: disposition and the lawyer’s advice
Preferred charges do not go straight to a courtroom. They go up the chain for a disposition decision. A commander reviewing preferred charges has a menu of options that ranges from taking no action, to administrative measures, to nonjudicial punishment, to forwarding the charges with a recommendation that they be tried by court-martial. That disposition judgment, and the levels of court-martial that a case can be sent to, are explained in the broader treatment of how a convening authority handles a case.
Two features of this stage reset who is actually deciding. The first is the staff judge advocate’s pretrial advice. Before a convening authority may refer charges to a general court-martial, the law requires a written, signed analysis from a legally trained advisor addressing whether each specification states an offense, whether the evidence supports it, whether the command has jurisdiction, and what action to recommend. That advice has to accompany a general court-martial referral. It is the system’s built-in legal check on a command-driven process, and it is the reason a general court-martial cannot be ordered on a commander’s instinct alone.
The second feature is newer and more fundamental. For a defined set of serious offenses, the disposition decision has been taken out of the commander’s hands entirely. Since late December 2023, independent special trial counsel hold exclusive authority over the prosecution of covered offenses, a category that includes sexual assault, murder, manslaughter, kidnapping, and domestic violence, among others. When a case involves a covered offense, the special trial counsel, not the commander, decides whether it is prosecuted and, ultimately, refers it; that determination binds the convening authority. The structural significance of this shift, and which authorities lost which powers, is the subject of the dedicated discussion of the convening authority. For the pretrial sequence, the takeaway is that the answer to “who decides whether this case goes forward” now depends on what the case is about.
Stage four: the Article 32 preliminary hearing
If the path leads toward a general court-martial, one more gate stands before trial: the preliminary hearing. No charge may be referred to a general court-martial until a preliminary hearing has been held, unless the accused waives it. A preliminary hearing officer, a neutral party detailed for the purpose, takes evidence and produces a report answering three narrow questions: whether the specifications allege offenses under the UCMJ, whether there is probable cause to believe the accused committed them, and whether the convening authority has jurisdiction. The hearing also lets the officer recommend a disposition.
This is the stage most often misunderstood as a “military grand jury,” and the comparison misleads in both directions. The preliminary hearing is not a trial: it does not decide guilt, the rules of evidence are relaxed, and live testimony is now the exception rather than the rule because the hearing officer may rely on sworn statements, reports, and records when witnesses are not reasonably available. But it is also not the rubber stamp a closed grand jury can be, because the defense is present, may cross-examine the witnesses who do appear, and may submit matters for the report. The hearing’s recommendations are not binding on the convening authority, which is the point that surprises people: a convening authority may refer a case the hearing officer recommended against, or decline to refer one the officer endorsed. The preliminary hearing is a check on probable cause and a development tool, not a veto. The deeper mechanics of the hearing, and the pretrial motions that grow out of it, are treated in the dedicated discussion of Article 32 and motions practice. A special court-martial does not require an Article 32 hearing at all, which is one practical reason the level of court-martial chosen at disposition matters.
Stage five: referral, the order that creates the trial
Referral is the decision that actually creates a court-martial. It is the order, signed by the convening authority, directing that specified charges against a specific accused be tried by a specific court-martial. Until referral, there is a case file; after referral, there is a pending trial with a court that exists to hear it. For covered offenses the referral order comes from the special trial counsel and binds the convening authority, the structural change described above.
Referral is where the threads gather. The charges that survive to this point are the preferred charges as the disposition and preliminary-hearing stages have refined them; the legal sufficiency check has been satisfied by the staff judge advocate’s advice; jurisdiction has been confirmed; and the convening authority has decided which level of court-martial fits. The order specifies the court-martial, and from that moment the case belongs to a military judge rather than to a commander.
Stage six: arraignment, the bridge into trial
Arraignment is the first courtroom session and the formal start of trial proceedings. The accused appears before the military judge, the charges are read or their reading is waived, the accused is advised of rights, a plea is entered to each charge, and the forum is elected. Arraignment is also the event that stops the speedy-trial clock that preferral started, which is why its timing is tracked so closely. What happens inside that proceeding, the sequence of events and the plea and forum decisions made there, is the subject of the companion discussion of arraignment.
The reason arraignment belongs at the end of this map rather than the beginning of a separate one is that everything before it is preparation for it. The investigation produced evidence; the rights warning made that evidence usable; preferral defined the accusation and started the clock; disposition and the staff judge advocate’s advice tested whether the accusation should be pursued and by whom; the preliminary hearing tested probable cause for the most serious forum; and referral committed the case to a court. Arraignment is where all of that becomes a trial.
How a single case moves through the stages
A worked illustration shows how the gates connect. Suppose investigators develop evidence that a soldier committed larceny on post. Investigators interview the soldier, who is first advised of the offense and the right to remain silent; a statement taken without that warning would be suppressed and could collapse the case. The soldier’s commander, persuaded by the evidence, prefers a single specification of larceny and signs the charge sheet under oath; the speedy-trial clock starts that day. Because larceny is not a covered offense, the commander, not a special trial counsel, makes the disposition decision and forwards the charges with a recommendation. If the command points the case toward a general court-martial, the staff judge advocate must first provide written pretrial advice, and a preliminary hearing officer must hold an Article 32 hearing and report on probable cause and jurisdiction. Only after those steps may the convening authority sign a referral order sending the case to a general court-martial. The soldier is then arraigned, and the pretrial phase ends.
Change one fact, a covered offense instead of larceny, and the map changes at the disposition stage: a special trial counsel, not the commander, decides whether the case is prosecuted and issues the binding referral, while the investigation, rights warning, preferral, advice, preliminary hearing, and arraignment stages remain in place. The skeleton of the sequence is stable; what moves is the identity of the decision-maker at the disposition and referral gates.
Frequently asked questions
Does a court-martial start with charges being filed? No. The formal sequence starts earlier, with an investigation, and “charges” in the military sense are preferred, that is, sworn out on a charge sheet, only after the evidence supports doing so. Preferral is a stage in the middle of the process, not its beginning.
Is the Article 32 preliminary hearing the same as a civilian grand jury? They occupy a similar place in the timeline, but they work differently. The preliminary hearing is open to the defense, the hearing officer is a neutral party who may rely on documentary evidence, and the resulting report and recommendation do not bind the convening authority. It is required only before a general court-martial.
How long can the pretrial process take? There is no fixed total, but once charges are preferred the government must bring the accused to arraignment within 120 days, measured from the earliest of preferral, pretrial restraint, or entry on active duty, with certain delays excluded. The investigative phase before preferral is not counted against that period.
Who decides whether a case goes to trial? It depends on the offense. For most offenses the convening authority makes the referral decision after receiving legal advice. For covered offenses such as sexual assault and certain violent crimes, an independent special trial counsel holds that authority, and the special trial counsel’s referral binds the convening authority.
Can the pretrial process end without a trial? Yes, at several points. A case can close after investigation for lack of evidence, a commander can dispose of preferred charges short of court-martial, and a convening authority can decline to refer charges even after a preliminary hearing. Referral is the point of no return into trial proceedings.
Sources and Authorities
- Uniform Code of Military Justice, Articles 30 (preferral), 31 (compulsory self-incrimination and rights warning), 32 (preliminary hearing), 34 (advice to convening authority before referral), and 24a (special trial counsel), 10 U.S.C. ch. 47.
- Rules for Courts-Martial, Manual for Courts-Martial, United States (2024 ed.): RCM 306 and 401 (initial disposition and forwarding), RCM 307 (preferral), RCM 405 (Article 32 preliminary hearing), RCM 406 (pretrial advice), RCM 601 (referral), RCM 707 (speedy trial), and RCM 904 (arraignment).
- FY2022 National Defense Authorization Act, Section 539E, and implementing executive order establishing the Office of Special Trial Counsel and its exclusive authority over covered offenses, effective 27 December 2023.
- Office of Special Trial Counsel referral materials and service implementing regulations describing the report-to-referral flow.
Disclaimer
This guide explains how the pretrial stages of the military justice system are structured under current law as of 2026; it is general legal information, not legal advice, and it does not describe how any particular case will proceed. Procedures vary by service, by the level of court-martial, and by the offenses charged, and the law in this area was significantly revised by reforms effective in 2019 and again in December 2023. A service member facing any stage of this process should rely on counsel detailed or retained for the specific case rather than on a general explanation.