Before a general court-martial referral, the convening authority must get written advice from the state judge advocate and cannot refer the charge unless that advice supports it; before a special court-martial referral, the convening authority must consult a judge advocate.
§134. Article 34. Advice to convening authority before referral for trial A. General court-martial. (1) Before referral of charges and specifications to a general court-martial for trial, the convening authority shall submit the matter to the state judge advocate for advice, which the state judge advocate shall provide to the convening authority in writing. The convening authority may not refer a specification under a charge to a general court-martial unless the state judge advocate advises the convening authority in writing that: (a) The specification alleges an offense under this Code; (b) There is probable cause to believe that the accused committed the offense charged; and (c) A court-martial would have jurisdiction over the accused and the offense. (2) Together with the written advice provided under Paragraph (1) of this Subsection, the state judge advocate shall provide a written recommendation to the convening authority as to the disposition that should be made of this specification in the interest of justice and discipline. (3) When a convening authority makes a referral for trial by general court-martial, the written advice of the state judge advocate under Paragraph (1) of this Subsection and the written recommendation of the state judge advocate under Paragraph (2) of this Subsection with respect to each specification shall accompany the referral. B. Special court-martial. 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. C. Before referral for trial by general court-martial or special court-martial, changes may be made to charges and specifications: (1) To correct errors in form; and (2) When applicable, to conform to the substance of the evidence contained in a report under Article 32(C) of this Code. D. In this Article, the term "referral" means the order of a convening authority that charges and specifications against an accused be tried by a specified court-martial. Acts 1974, No. 621, §1; Acts 2019, No. 373, §1.