Convening Authority and Courts-Martial

Three Court-Martial Levels

The court-martial system has three forums. Each has different procedural requirements, sentence limits, and convening authorities.

The "designated" convening authority hierarchy is set by service regulation. Local SOP and the unit's chain of command identify the specific GCM and SPCM convening authority.

Where the Battalion CO Fits

An O-5 Battalion Commander typically:

• Has SCM convening authority
• Refers cases up the chain for SPCM or GCM convening
• Acts as the unit-level referral source for cases above SCM authority
• Coordinates with SJA and the designated convening authority for higher-level cases

Cases at SPCM and GCM levels run through a higher convening authority. The Battalion CO's role is referral with recommendation, not direct convening.

OSTC Overlap on Covered Offenses

Per MARADMIN 633/24, OSTC has exclusive referral authority over covered offenses once OSTC exercises authority. The covered offense list (Art. 117a, 118, 119, 119a, 120, 120a, 120b, 120c, 125, 128b, 130, 132, 134(a), 134(b) substantiated sexual harassment, and ancillary conspiracy/solicitation/attempt) lives in the Turnover topic.

When OSTC exercises authority on a covered offense:

• The convening authority chain runs through OSTC
• The Battalion CO does not refer the case to court-martial
• Plea negotiations run through OSTC and trial counsel
• Convening authority action under RCM 1109 happens at the OSTC chain level, not at the unit
• The unit CO retains administrative authorities (legal hold, MPO, climate response)

Before any referral decision on a Marine alleged to have committed a covered offense, confirm OSTC posture with SJA.

Referral Decision Framework (RCM 401)

When a case is forwarded for disposition, the convening authority decides:

1. Dismiss without prejudice or with prejudice
2. Refer to administrative action (separation, reprimand, counseling)
3. Refer to NJP under Article 15
4. Refer to Summary Court-Martial
5. Refer to Special Court-Martial
6. Refer to General Court-Martial (typically requires forwarding to designated GCM convening authority)
7. Refer for further investigation before disposition

The factors:

• Seriousness of the offense
• Evidence available
• Marine's record
• Impact on the unit and mission
• Victim considerations
• Likelihood of conviction
• Appropriate punishment range

SJA advises on each factor. The convening authority decides.

Pretrial Confinement (RCM 305)

Pretrial confinement is the most serious pre-trial action a CO takes. RCM 305 establishes the criteria and the review timeline.

Criteria for pretrial confinement

The convening authority confines a Marine pretrial only when:

1. Probable cause to believe the offense was committed
2. Probable cause to believe the accused committed it
3. The confinement is necessary because:
   • Lesser restraint is inadequate
   • The accused poses a flight risk
   • The accused poses a danger to others or self
   • The accused will engage in further misconduct without confinement

Timeline triggers under RCM 305

The 7-day IRO review is not optional. Missed IRO review results in release with potential dismissal of charges.

The IRO

The Initial Review Officer is a neutral officer (not in the chain of command of the accused) designated by competent authority. The IRO reviews the basis for confinement and either continues or releases.

CO discipline on pretrial confinement

A CO who orders pretrial confinement on a Marine:

• Coordinates immediately with SJA
• Ensures the Marine has counsel access
• Designates a confinement facility per local procedure
• Tracks the IRO review timeline personally
• Reviews the confinement decision at least weekly
• Manages family notification appropriately
• Continues case investigation under SJA guidance

Article 32 Preliminary Hearing

Before a GCM referral on charges, an Article 32 preliminary hearing is typically held to determine probable cause and recommend disposition. The Article 32 hearing officer (a judge advocate) prepares a report. The convening authority considers the report in the referral decision.

Article 32 procedures changed substantially after the Military Justice Act amendments. The hearing is less of a "mini-trial" than it was historically. The hearing officer is typically a JAG.

Convening Authority Action (RCM 1109)

After a conviction at court-martial, the convening authority reviews the case and takes "action" under RCM 1109. This is the post-trial step where the convening authority:

• Reviews the record of trial
• Considers any matters submitted by the accused
• Takes action on the sentence (approve, disapprove parts, mitigate)
• Approves or disapproves findings (limited authority post-Military Justice Act)
• Forwards the case for appellate review where applicable

The convening authority's discretion is narrower than it was historically. The Military Justice Act significantly constrained CA action authority. SJA advises on what action is legally available.

Appellate Review

Convictions at SPCM and GCM enter appellate review. The Service Court of Criminal Appeals (NMCCA for Marines), the United States Court of Appeals for the Armed Forces (CAAF), and (rarely) the Supreme Court review cases per UCMJ Articles 66-67.

The convening authority's role essentially ends at action under RCM 1109 plus required notifications.

SCM Procedural Notes

The Summary Court-Martial is a single-officer forum used for minor misconduct beyond NJP. The Marine has the right to refuse SCM and demand trial by SPCM or GCM (Article 20). If refused, the case routes up.

A typical SCM:

• Single officer (typically O-3 or above) acts as Summary Court Officer
• No JAG defense counsel as of right (the Marine has the right to consult counsel pretrial)
• Maximum punishment: 30 days confinement, reduction to E-1, forfeiture of 2/3 pay for 1 month
• Conviction creates a federal record of the proceeding (not a federal criminal conviction)

The SCM is rarely used in current practice because of the Marine's right to refuse and because NJP often covers similar conduct without the procedural overhead.

Common Failures

1. Convening authority action without RCM 1109 awareness. Post-Military Justice Act, CA discretion is narrower than memory suggests. SJA reviews the available actions.
2. Pretrial confinement without IRO review on schedule. RCM 305 violation. Potential dismissal.
3. Referral decision without SJA coordination. Procedural and legal risk.
4. OSTC overlap missed at referral. MARADMIN 633/24 violation.
5. SCM imposed despite Marine's refusal. Article 20 violation. Voidable.
6. Article 32 hearing report ignored at referral. Procedural risk.
7. Speedy trial clock under RCM 707 ignored. 120-day rule. Dismissal risk.

Decision Framework Before Referral

Before signing a referral or taking convening authority action:

1. Has SJA reviewed the case?
2. Is OSTC posture confirmed for any covered offense overlap?
3. Is the forum appropriate to the alleged conduct?
4. Do I have referral authority for this forum?
5. Has the Marine had counsel access?
6. Are pretrial restraint decisions documented and reviewed on time?
7. Is the speedy trial clock tracked?
8. Is my contemplated action consistent with RCM 1109 limits?

Related Pages

• Discipline and Records Overview (this topic, order 1)
• NJP Routing and Commander Authority (this topic, order 2)
• Page 11 Entries (this topic, order 3)
• Command Investigations (this topic, order 5)
• UPB and SRB Records Management (this topic, order 6)
• OSTC Covered Offenses (Turnover topic) - overlap rules
• Covered Offense Incident Response (Incident Playbooks topic)