10 U.S.C. § 834: Art. 34. Advice to convening authority before referral for trial

the specification alleges an offense under this chapter; there is probable cause to believe that the accused committed the offense charged; and a court-martial would have jurisdiction over the accused and the offense. Together with the written advice provided under paragraph (1), the staff judge advocate shall provide a written recommendation to the convening authority as to the disposition that should be made of the specification in the interest of justice and discipline. When a convening authority makes a referral for trial by general court-martial, the written advice of the staff judge advocate under paragraph (1) and the written recommendation of the staff judge advocate under paragraph (2) with respect to each specification shall accompany the referral. Subject to subsection (c), before referral of charges and specifications to a special court-martial for trial, the convening authority shall consult a judge advocate on relevant legal issues. each specification under a charge alleges an offense under this chapter; there is probable cause to believe that the accused committed the offense charged; and a court-martial would have jurisdiction over the accused and the offense; or in the case of charges and specifications that do not allege a covered offense and as to which a special trial counsel declines to prefer or, in the case of charges and specifications preferred by a person other than a special trial counsel, refer charges, by the convening authority in accordance with this section. to correct errors in form; and when applicable, to conform to the substance of the evidence contained in a report under section 832(c) of this title (article 32(c)). In this section, the term “referral” means the order of a convening authority or, with respect to charges and specifications over which a special trial counsel exercises authority in accordance with section 824a of this title (article 24a), a special trial counsel, that charges and specifications against an accused be tried by a specified court-martial. The Secretary of Defense shall require the Secretaries of the military departments to provide for review of decisions not to refer charges for trial by court-martial in cases where a sex-related offense has been alleged by a victim of the alleged offense. consideration be given to the victim’s statement provided during the course of the criminal investigation regarding the alleged sex-related offense perpetrated against the victim; and a determination be made whether the victim’s statement and views concerning disposition of the alleged sex-related offense were considered by the convening authority in making the referral decision. Rape or sexual assault under subsection (a) or (b) of section 920 of title 10 , United States Code (article 120 of the Uniform Code of Military Justice). Forcible sodomy under section 925 of such title (article 125 of the Uniform Code of Military Justice). An attempt to commit an offense specified in paragraph (1) or (2) as punishable under section 880 of such title (article 80 of the Uniform Code of Military Justice). In any case where a staff judge advocate, pursuant to section 834 of title 10 , United States Code (article 34 of the Uniform Code of Military Justice), recommends that charges of a sex-related offense be referred for trial by court-martial and the convening authority decides not to refer any charges to a court-martial, the convening authority shall forward the case file to the Secretary of the military department concerned for review as a superior authorized to exercise general court-martial convening authority. In any case where a convening authority decides not to refer a charge of a sex-related offense to trial by court-martial, the Secretary of the military department concerned shall review the decision as a superior authority authorized to exercise general court-martial convening authority if the chief prosecutor of the Armed Force concerned, in response to a request by the detailed counsel for the Government, requests review of the decision by the Secretary. In this paragraph, the term ‘chief prosecutor’ means the chief prosecutor or equivalent position of an Armed Force, or, if an Armed Force does not have a chief prosecutor or equivalent position, such other trial counsel as shall be designated by the Judge Advocate General of that Armed Force, or in the case of the Marine Corps, the Staff Judge Advocate to the Commandant of the Marine Corps. In any case where a staff judge advocate, pursuant to section 834 of title 10 , United States Code (article 34 of the Uniform Code of Military Justice), recommends that charges of a sex-related offense should not be referred for trial by court-martial and the convening authority decides not to refer any charges to a court-martial, the convening authority shall forward the case file for review to the next superior commander authorized to exercise general court-martial convening authority. All charges and specifications preferred under section 830 of title 10 , United States Code (article 30 of the Uniform Code of Military Justice). All reports of investigations of such charges, including the military criminal investigative organization investigation report and the report prepared under section 832 of title 10 , United States Code (article 32 of the Uniform Code of Military Justice), as amended by section 1702. A certification that the victim of the alleged sex-related offense was notified of the opportunity to express views on the victim’s preferred disposition of the alleged offense for consideration by the convening authority. All statements of the victim provided to the military criminal investigative organization and to the victim’s chain of command relating to the alleged sex-related offense and any statement provided by the victim to the convening authority expressing the victim’s view on the victim’s preferred disposition of the alleged offense. The written advice of the staff judge advocate to the convening authority pursuant to section 834 of title 10 , United States Code (article 34 of the Uniform Code of Military Justice). A written statement explaining the reasons for the convening authority’s decision not to refer any charges for trial by court-martial. A certification that the victim of the alleged sex-related offense was informed of the convening authority’s decision to forward the case as provided in subsection (c) or (d). The victim of the alleged sex-related offense shall be notified of the results of the review conducted under subsection (c) or (d) in the manner prescribed by the victims and witness assistance program of the Armed Force concerned. The Secretary of Defense shall require the Secretaries of the military departments to develop a system to ensure that a victim of a possible sex-related offense under the Uniform Code of Military Justice is given the opportunity to state, either at the time of making an unrestricted report of the allegation or during the criminal investigation of the allegation, whether or not the victim believes that the offense alleged is a sex-related offense subject to the requirements of this section.”