vol 4 Flashcards
(278 cards)
1
Q
- What does the term “jurisdiction” mean?
A
- The power to hear a case and to render a legally competent decision.
2
Q
- Could James Smith be court-martialed for an offense committed subsequent to his discharge?
Explain.
A
- Yes, if he committed additional offenses while in military custody for fraudulently obtaining a discharge.
3
Q
- What factor establishes the court-martial jurisdiction over the accused?
A
- Jurisdiction depends solely on the accused’s status as a member of the armed forces.
4
Q
- Technical sergeant (TSgt) Carlin committed an assault upon Mr. Alvin Redman, a civilian, while
off base. Can TSgt Carlin be tried by court-martial? Explain.
A
- Yes, as long as TSgt Carlin was subject to the UCMJ at the time of the offense and at the time of trial.
5
Q
- Is it possible for the AF and civil courts to try an individual for the same offense? Explain.
A
- Yes, if the offense constituted a crime under the UCMJ and civil statutes, and the ends of justice could be
met in no other way.
6
Q
- How may the statute of limitations be tolled?
A
- By the charges being received by the officer exercising SCM jurisdiction within the specific time period.
7
Q
- When does the AF exercise court-martial jurisdiction over AFR and Air National Guard
personnel?
A
- When reservists are serving on active duty or IDT and when Air National Guard members are serving in
federal status.
8
Q
- Can a reservist be tried for an offense committed on IDT that has terminated? Explain.
A
- Yes, as long as the alleged offense was committed during the period of active duty or IDT and the
reservist’s military status has not been completely terminated after the commission of the offense.
9
Q
- Who can order a reservist to active duty for court-martial purposes when the reservist is
performing duties at a reserve unit?
A
- The supporting active duty GCMCA in accordance with the applicable host-tenant support agreement.
10
Q
- If a reservist is to be tried by GCM or SPCM, when must he or she return to active duty?
A
- Prior to arraignment at the trial.
11
Q
- How do the procedures for conducting an SCM for a reservist differ from those of a special or
general court-martial?
A
- A reservist can be tried by an SCM while on active or IDT but must be on active duty status when being
tried by a special or general court-martial.
12
Q
- When may a member of an armed force be tried by a court-martial convened by a member of
another armed force?
A
- When that member is serving as a member of a unified or specified combatant command.
13
Q
- The findings in the President’s Task Force on Victims led to the passage of what three acts?
A
- VWPA of 1982, the VOCA of 1984, and the VRRA of 1990.
14
Q
- What are the six key components of the VWPA of 1982?
A
- (1) Victims receive prompt social and medical services.
(2) Victims are notified of important criminal justice proceedings and scheduling changes.
(3) The prosecution can obtain views of victims of serious crimes for plea bargaining and pretrial release.
(4) Encourage employers to continue to pay victims and witnesses for work absences to assist
investigations and prosecutions.
(5) Training law enforcement personnel in victim assistance.
(6) Informing victims or witnesses on legal steps for protection from intimidation.
15
Q
- Which act created the Crime Victims Fund?
A
- The VOCA of 1984.
16
Q
- What criteria must victims of crimes meet to be entitled to compensation from the Crime Victims
Fund?
A
- Be innocent of wrongdoing; report the crime promptly to the police; cooperate with the criminal justice
system, and submit a timely application through the state victims’ compensation agency.
17
Q
- What was the first legislation that contained a listing of rights for victims of crimes?
A
- VRRA of 1990.
18
Q
- Under the VRRA of 1990, what are the rights for victims of crimes?
A
- (1) To be treated with fairness and with respect for the victim’s dignity and privacy.
(2) To be reasonably protected from the accused or suspect.
(3) Be notified of court-martial proceedings.
(4) Be present at all public court-martial proceedings, unless the military judge determines the victim’s
testimony would be materially affected if the victim heard other testimony.
(5) Confer with trial counsel in the case.
1–47
(6) Information about the accused’s conviction, sentencing, imprisonment, and release.
(7) Appropriate restitution or compensation.
19
Q
- What are the objectives of the VWAP?
A
- (1) Mitigate the physical, psychological, and financial hardships suffered by victims and witnesses of
offenses investigated by AF authorities.
(2) Foster cooperation of victims and witnesses within the military criminal justice system.
(3) Ensure best efforts are made to give to victims of crime certain enumerated rights.
20
Q
- Who is designated the LRO at installation level? To whom is this responsibility normally
delegated?
A
- Each installation commander; the SJA.
21
Q
- When does AF VWAP normally apply?
A
- In all cases in which criminal conduct adversely affects victims or in which witnesses provide information
regarding criminal activity if any portion of the investigation is conducted primarily by the DOD
components.
22
Q
- Who is responsible for providing the victim with a victim information packet?
A
- Victim liaison.
23
Q
- What form does law enforcement and investigative person provide to victims and witnesses at the
earliest opportunity after identification of a victim/witness of a crime?
A
- DD Form 2701, Initial Information for Victims and Witnesses of Crime.
24
Q
- What is the purpose of the DD Form 2704, Victim/Witness Certification and Election Concerning
Prisoner Status?
A
- In cases where the accused is sentenced to confinement, the victim/witness uses this form to indicate
whether or not to exercise the right to be notified when the inmate is moved to a new facility, to receive
prior notice of parole hearings, and to receive notice of accused’s release from confinement.
25
13. What is transitional compensation?
13. Monthly payments and other benefits for dependents of members who are separated for dependent abuse.
26
14. What criteria must be met to receive transitional compensation under 10 U.S.C. § 1059?
14. Individuals must be dependents of members of the Armed Forces who have been on active duty for more
than 30 days and who after 29 November 1993 are separated from active duty under a court-martial
sentence resulting from a dependent-abuse offense, administratively separated from active duty if the basis
for separation includes a dependent-abuse offense, or sentenced to forfeiture of all pay and allowances by a
court-martial which has convicted the member of a dependent-abuse offense.
27
15. What situations would require transitional compensation to terminate?
15. When a spouse remarries, if the member lives in the same house as the spouse or dependent child to whom
compensation is payable, or if the victim was a dependent child and the installation commander finds the
spouse actively participated in the conduct constituting the criminal offense or actively aided or abetted the
member in such conduct against the dependent child.
28
16. What conditions must be met for a former or legally separated spouse to receive compensation
under the Uniformed Services Former Spouse Protection Act?
16. The member had 20-plus years of active service.
29
17. When must legal offices submit reports on victim and witness assistance to their MAJCOM?
17. By 15 February each year.
30
1. What does placing a member on administrative hold ensure?
1. His or her presence at trial and prevents PCS, retirement, or separation.
31
2. Which AFI lists assignment availability codes needed to place a member on administrative hold?
2. AFI 36–2110, Total Force Assignments.
32
3. Once an administrative hold memorandum is signed, where is a copy sent to ensure the member
is placed on hold?
3. Send the letter to the MPS.
33
1. Define conditions on liberty, arrest, restriction, and PTC.
1. Conditions on liberty—orders by a commander to an individual to do or refrain from doing specified acts.
Arrest—the restraint of a person by oral or written order not imposed as punishment, directing the person to
remain within specified limits. Restriction—a moral rather than a physical restraint of an accused. Unlike
arrest, the person will perform full military duties and activities while restricted. PTC—a physical restraint
imposed by order of competent authority, depriving a person of freedom pending the disposition of charges.
34
2. Who may impose pretrial restraint?
2. Only a commanding officer to whose authority the individual is subject may order a civilian or
commissioned and warrant officers into pretrial restraint. Any commissioned officer may order pretrial
restraint of an enlisted person.
35
3. What must first be determined before a person may be ordered into restraint before trial?
3. Probable cause.
36
4. How is pretrial restraint, other than PTC, imposed on a person?
4. By notifying the person either orally or in writing of the restraint, including the terms and limitations.
37
5. What information must a person placed in PTC be informed of?
5. The nature of the offenses for which held, the right to remain silent and that any statement made by the
person may be used against him or her, the right to retain civilian counsel at no expense to the United States
and the right to request assignment of military counsel, and the procedures by which PTC will be reviewed.
38
6. What is the first notification that must take place in the PTC review process?
6. Unless the commander of the prisoner ordered the PTC, the confinement facility will, within 24 hours after
commitment, inform the member’s immediate commander the name of the prisoner, the offenses charged
against the prisoner, and the name of the person who ordered or authorized confinement.
39
7. When must the member’s commander decide whether to continue PTC?
7. No later than 72 hours after the commander orders a military member into PTC or after receipt of a report
that a member of the commander’s unit has been confined.
40
8. What is the next step after the member’s commander completes his or her review memorandum?
8. The memorandum is forwarded to the PCRO through the SJA and SPCMCA.
41
9. When must the PCRO make the determination whether to continue PTC?
9. Within seven days of the imposition of PTC under military control.
42
10. When must the PCRO complete their memorandum? What must it contain?
10. Within 24 hours of making the PTC decision. It must outline the findings and conclusion on which the
decision was based.
43
11. Within how many days from preferral of charges or imposition of restraint should a person be
brought to trial or risk dismissal of the charges if a delay is not approved in advance?
11. 120 days.
44
12. Who has the authority to apprehend persons subject to the UCMJ? What rule governs this?
12. All commissioned officers, warrant officers, petty officers, NCOs, and military law enforcement officials.
R.C.M. 302.
45
13. When probable cause exists to apprehend, what is the first thing you should do when
apprehending that person?
13. Clearly notify the person being apprehended that he or she is in custody.
46
1. What causes a preliminary inquiry?
1. A report or complaint.
47
2. What is the difference between an “authorization to search” and a “search warrant”?
2. An “authorization for search” is express permission, written or oral, issued by a competent military
authority to search a person or an area for specified property or evidence or for a specific person and to
seize such property, evidence, or person. A “search warrant” is express permission to search and seize
issued by competent civilian authority.
48
3. What may probable cause determinations for searches be based on?
3. Written statements, oral statements (made in person or via telephone, including hearsay), or information is
known by the person authorizing the search as long as it does not impugn his or her impartiality.
49
4. When does probable cause to seize property or evidence exist?
4. When there is a reasonable belief the property or evidence is an unlawful weapon, contraband, or evidence
of a crime or might be used to resist apprehension or to escape.
50
5. What is a chronology?
5. The arrangement of events in order of occurrence.
51
6. If during the scope of the investigation additional information is discovered that could reveal
additional misconduct what should you do?
6. Consult with your attorney immediately to see if the scope of the investigation should be expanded.
52
7. What are the two types of evidence from which members may find the truth as to the facts of a
case?
7. Direct and circumstantial.
53
8. What type of evidence is discovered as a result of illegally obtained evidence and is therefore
inadmissible because of the primary taint?
8. Derivative.
54
9. What form is used to record a detailed description of all evidence and to maintain a complete
chain of custody accounting of all personnel who handled the evidence?
9. AF Form 52, Evidence Tag.
55
10. What is the chain of custody?
10. The movement and location of real evidence, and the history of those persons who had it in their custody,
from the time it is obtained to the time it is presented in court.
56
11. In cases where an ROI is published, within how many days of the date of discovery of the offense
should an ROI be completed for a GCM and for a SPCM?
11. 75 days for a GCM and 30 days for a SPCM.
57
12. Who typically acts as the custodian for all ROIs?
12. NCOIC, military justice.
58
13. When does involuntary self-incrimination occur?
13. When the admission is not the product of the accused’s informed free choice and cannot be used against the
accused in most cases.
59
14. What rule affords members the right to consult with counsel prior to an interrogation?
14. M.R.E. 305.
60
1. What are the three specific reasons why you interview a witness?
1. Verify or corroborate previously learned information; identify any additional witnesses; and discover
details of offenses committed but not previously known.
61
2. During a witness interview, what affects the quality of the information you receive?
2. The witness’ ability to recall correctly and relay facts accurately.
62
3. List the reasons why a witness/victim may be reluctant to talk.
3. Fear of involvement, inconvenience, resentment, and personality conflicts between the interviewee and
interviewer.
63
4. When conducting an interview of a witness (rather than a victim, complainant, or suspect), what
should the witness be able to tell you concerning the incident?
4. Who committed the offense, how it was committed, or when it was committed.
64
5. What should you do prior to conducting a witness interview?
5. Prepare for the interview by becoming familiar with the case, researching the background of the
interviewee, and determining what information will be sought.
65
6. When should you plan to conduct the interview session?
6. As far in advance as possible.
66
7. What is the first step in conducting an interview?
7. Establish rapport.
67
8. List three common approaches you may use during an interview.
8. Direct, indirect, and alternating.
68
9. When can the prosecution compel a civilian witness to testify?
9. After referral of charges, only then does the prosecution have subpoena authority.
69
10. What is the final step in the interview process? What does it involve?
10. Closing the interview. Review the information and clarify any points that are in contradiction to previously
obtained information or are just unclear or vague, display appreciation for the cooperation of the interviewee, provide the interviewee one last opportunity to provide information about matters that have not
been specifically covered, and provide your contact information.
70
11. What kind of identifying material must a statement contain about the witness?
11. Full name, SSN, permanent and temporary addresses, work and home telephone numbers, and his or her future
availability.
71
1. What standard is used to “test” evidence during the legal review for sufficiency of evidence?
1. The test for legal sufficiency of the evidence is whether, when considering the evidence in the light most
favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a
reasonable doubt.
72
2. What type of guidance is provided by the M.R.E.?1. What standard is used to “test” evidence during the legal review for sufficiency of evidence?
73
1. Into what five parts does the MCM divide the punitive articles (77 through 134)?
2. On evidentiary rules applicable in a court-martial.
74
2. If three of four elements of an offense are met, can the accused be charged with that offense?
Explain.
2. No. All elements of the offense must be met before the accused can be charged for violating the offense.
75
3. What task must you accomplish before choosing the punitive article(s) you believe a member
may have committed?
3. You must read through all the evidence.
76
4. After you narrow down the punitive article(s) by reviewing the information in the MCM,
Appendix 2, Subchapter X, what is your next step in determining the appropriate punitive article
to charge?
4. Go to Part IV of the MCM to check the evidence against the elements of the offense.
77
1. What is the purpose of a proof analysis?
1. It provides a brief summary of key issues relating to pending court action.
78
2. What information should be in the proof analysis?
2. (1) Charge(s) and specification(s).
(2) LIOs.
(3) Maximum punishment.
(4) Elements to the charge.
(5) Evidence to prove each element.
(6) Any information regarding potential defenses.
(7) Any notes of potential evidentiary problems.
79
3. What is the first step in preparing a proof analysis?
3. List the charge and the elements to the charge the accused has violated.
80
4. Why do you refer to the Military Judges’ Benchbook if the elements of the specification differ
from those in the MCM?
4. This is the book the judge will use during court proceedings.
81
1. What basic questions regarding evidence do you need to consider before trial?
1. What evidence will your team present at trial? Is the evidence supporting the case in chief or for use in
rebuttal? Who is the custodian of the evidence? How do you get it to trial? Consider the need for certified
copies, sealed evidence, and so forth, and chain of custody issues. Evidence storage in lengthy trials? How
will you return the evidence to the investigative agency post-trial?
82
2. Who has the primary responsibility for evidence strategy?
2. Trial counsel.
83
1. State the purpose of NJP.
1. Article 15, UCMJ provides commanders with an essential and prompt way of disposing of minor
disciplinary infractions.
84
2. What are the factors that determine if an offense is “minor”?
2. Nature of the offense; circumstances surrounding its commission; age, rank, duty assignment, record, and
experience of the offender; and the maximum sentence imposable if tried by a GCM.
85
3. Who has the final authority on whether or not to impose NJP?
3. The commander bears sole responsibility for the final decision.
86
4. What proof should be considered before initiating action under Article 15, UCMJ?
4. While no specific standard of proof applies to NJP proceedings, including appeals, commanders should
recognize a member is entitled to demand trial by court-martial, in which case proof beyond a reasonable
doubt of each element of every offense by legal and competent evidence is a prerequisite to conviction.
Whether such proof is available should be considered before initiating action under Article 15, UCMJ.
87
5. What document must be published before a successor can have NJP jurisdiction in the temporary
absence of the commander?
5. Before a successor in command can assume NJP jurisdiction, an assumption of command order (also
known as G-series orders, AF Form 35) must be published.
88
6. When a commander is a victim of a crime in a personal capacity, to whom is the report of
incident submitted?
6. The commander who is the victim of the crime should forward the report of the incident to the next higher
commander.
89
7. What officers may delegate their NJP powers to principal assistants?
7. A commander who is a general officer or a GCMCA may delegate his or her NJP powers to a principal
assistant.
90
8. If a GCMCA commander withholds NJP authority from a base commander, what office keeps the
original withholding document, and what office keeps a copy?
8. The original letter or directive is filed in the office of the SJA servicing the commander withholding the
authority. A copy must be filed in the SJA’s office servicing the commander whose authority has been
withheld.
91
9. To ensure the timely administration of military justice, when should a commander offer NJP?
9. Commanders should offer NJP within 21 days of the date of discovery of the offense , or be able to explain
why this was not appropriate.
92
10. How soon should the SJA review be completed after discovering the commission of an offense by
a member?
10. Commanders must complete 80 percent of all NJP actions (date of discovery through servicing SJA review
date) within 39 days.
93
1. Upon receipt of all evidence, what is the first thing you should do?
1. Review the evidence and compare it to the elements listed under the particular article of the UCMJ the
member is accused of violating.
94
2. Where can you find sample language for NJP specifications?
2. Each punitive article of the UCMJ contains sample specifications for use in preparing charges and
specifications.
95
3. Where do you look for model specifications on check cases?
3. Department of the Army (DA) Pamphlet 27–9, Military Judges’ Benchbook, or the samples provided in
AFI 51–201, Administration of Military Justice.
96
4. What is the first stage of the NJP process?
4. The first stage in the NJP process is “the offer”
97
5. What date starts the running of the three duty-day period for the member to either accept NJP
proceedings or demand trial by court-martial?
5. Service of “the offer” of NJP.
98
6. In NJP, what is the purpose of oral presentations?
6. They provide the member a chance to speak to the commander face to face.
99
7. What should the commander do when a member refuses NJP and elects trial by court-martial?
7. Immediately refers the matter to the servicing SJA.
100
8. Who can grant a member permission to withdraw a previous request for trial by court-martial?
8. The commander, with the concurrence of the convening authority.
101
9. What are two primary considerations in determining the kind or amount of punishment authorized
under NJP?
9. The grade and status of the commander, and the grade of the accused.
102
10. When forfeiture of pay is imposed along with a reduction in grade (whether or not the reduction
is suspended), on what pay grade is the forfeiture of pay based?
10. The forfeiture is based on the reduced grade.
103
11. In a case where the initiating commander is unable to impose punishment, what two options does
a successor in command have?
11. (1) Withdraw the old AF Form 3070 and initiate a new action on a new AF Form 3070.
(2) Notify the member in writing of the change in commanders by using the notification format in AFI 51–
202, Attachment 3. When using the memorandum, verify a copy is attached to the AF Form 3070.
104
12. An unsuspended reduction in grade or forfeiture of pay takes effect upon what date?
12. The date the commander imposes punishment.
105
13. What is the rule when combining the punishments of restriction and extra duties?
13. Restriction and extra duties may run concurrently, but the combination may not exceed the maximum
imposable for extra duties.
106
14. After a member has acknowledged his or her punishment, what must the member do within five
calendars days from the receipt of that punishment?
14. The member must indicate his or her appeal decision within five calendar days by initialing only one area in
block 6a–c, Member’s Appeal Decision, of the AF Form 3070.
107
15. If a member’s appeal is not granted in full by the imposing commander, what happens next in the
NJP process?
15. If less than full relief is granted, the appeal must be sent to the appeal authority, through the SJA.
108
16. What is the effective date of relief when granted as a result of an appeal?
16. Unless otherwise stated, relief granted as a result of an appeal is effective from the date the punishment was
initially imposed.
109
17. Under what circumstances must an enlisted member’s NJP action be filed in a UIF?
17. For enlisted members, a record of any suspended punishment under Article 15 or unsuspended Article 15
punishment with any portion of the punishment exceeding one month (31 days or more) must be filed in a
UIF.
110
18. When must a decision to file a member’s NJP action in his or her promotion selection record be
made?
18. When the member is an officer or enlisted member required to meet an evaluation board the commander
imposing punishment decides whether or not to file the NJP in the member’s promotion selection record.
When the member is an officer or enlisted member required to meet an evaluation board the commander
imposing punishment decides whether or not to file the NJP in the member’s promotion selection record.
The filing decision is made after punishment is imposed and any appeal is resolved.
111
1. What is the next step in the NJP process after the legal office receives the completed NJP action
from the commander?
1. The SJA or designee reviews the NJP action for legal sufficiency.
112
2. What document records MPS’s receipt of the NJP action?
2. An AF Form 1373.
113
3. After providing a copy of the NJP record to the MPS and AFO, and noting the dates of receipt,
where is the original NJP sent?
3. To the SJA for the officer exercising GCMCA.
114
4. After the GCMCA SJA review, where is the original NJP record filed?
4. The GCMCA SJA sends the original record for filing in the master personnel record group at AFPC.
115
5. What office maintains the evidence supporting NJP action?
5. Evidence and other written materials are filed in the office of the SJA servicing the commander who
initiated the NJP as attachments to the file copy of the action.
116
6. What supplementary actions may be taken on NJP actions?
6. Set-aside, remission, mitigation, suspension.
117
7. Who may take supplementary action on NJP actions?
7. The commander or a successor in command.
118
9. Where are requests for suspension, mitigation, remission, or set aside of punishment, and any
actions in response, filed?
9. All requests f are processed and filed with the original NJP record to ensure inclusion with other official file
copies.
119
10. When may a previously suspended punishment under NJP be vacated? Who may take vacation
action?
10. If the member violates any punitive article of the UCMJ or a condition of suspension specified in writing by
the commander during the period of suspension, the commander who imposed the punishment or a
successor in command may vacate the suspension.
120
11. In a vacation action, what rights does the member not have?
11. The member does not have the option of demanding trial by court-martial or the right to appeal the action to
a superior commander once the punishment previously suspended is ordered executed.
121
12. What is the AF policy regarding vacation and new NJP action based on a single offense?
12. The commander may take vacation action and, if appropriate, offer new NJP, based on the same offense
122
13. When a commander wants to vacate a suspended punishment based on a new offense, when must
the new offense have taken place?
13. The new offense occurred during the period of probation.
123
14. If a reduction in grade is suspended, but later vacated, what is the member’s new DOR?
14. It is reduced is the date the original reduction was imposed by the commander; however, the effective date
is the date of the vacation action.
124
1. What kind of offenses is withheld from initial disposition by the Secretary of Defense from a
commander not in the grade of O–6 or higher and does not possess SPCMCA?
1. Rape or sexual assault in violation of Article 120, UCMJ; forcible sodomy, in violation of Article 125,
UCMJ; and attempts to commit the offenses above, in violation of Article 80, UCMJ.
125
2. What are the mandatory items that the SPCMCA must consider when making a decision?
2. Matters transmitted from lower commanders, court-martial charges (if any), any independent review and
recommendation received, victim input, and/or consultation with the SJA.
126
3. What information may the SPCMCA consider when making their decision?
3. The SPCMCA may consider the disposition guidance contained in Appendix 2.1 of the Manual for Courts-
Martial.
127
4. What office is required to draft the legal review, and who must acknowledge the disposition
decision in writing?
4. The office of the SJA drafts the legal review for the SPCMCA and forwards it to the GCMCA for
acknowledgement.
128
1. Why is it important to check that the personal data on the DD Form 458 is accurate?
1. Because it can affect the sentence.
129
2. What information is included in the Current Service block on the DD Form 458?
2. The beginning date of current enlistment and number of years of enlistment.
130
3. Who can sign a charge sheet as an accuser?
3. A person subject to the UCMJ.
131
4. What must an accuser do before he or she can prefer charges on an accused?
4. He or she must sign the charges and specifications under oath before a commissioned officer of the armed
forces authorized to administer oaths and have personal knowledge of or must have investigated the
offense(s) alleged and that they are true in fact to the best of that person’s knowledge and belief.
132
5. In the preferral process, what happens after the accuser signs the DD Form 458 in block 11d?
5. The immediate commander will personally inform the accused of the charges by reading them to the
accused and will sign in block 12 of the charge sheet.
133
6. After the accused is notified of the charges against him or her, what important step must take
place and why is it so important?
6. The SCMCA must receive the sworn charges. It is important because it stops the running of the statute of
limitations.
134
7. Once the SPCMCA receives the charges, what options does the SPCMCA have?
7. Dismiss the charges; forward the charges to a subordinate commander for disposition; forward any charges
to a superior commander for disposition; refer charges to an SCM or SPCM; or direct a pretrial
investigation under R.C.M. 405, and, if appropriate, forward the report to a superior commander for
disposition.
135
8. If the SPCMCA desires to dispose of the case by a GCM, what must happen?
8. The SPCMCA forwards the preferred charges to a preliminary hearing under Article 32, UCMJ.
136
1. When may a convening authority refer a case to a court-martial?
1. When the convening authority finds or is advised by a judge advocate that there is probable cause to
believe that an offense triable by a court-martial has been committed, that the accused committed it,, and
that the specification alleges an offense, then the convening authority may refer it.
137
2. What situation determines which level of legal office will prepare the referral of charges and
convening order?
2. The type of court-martial the case is referred to.
138
3. What is the next step in the referral process after the convening authority determines what type of
court is appropriate?
3. The convening authority will either personally sign Part V, Referral, Service of Charges, of the charge sheet
or delegate the authority to sign to a judge advocate.
139
4. If two individuals are being tried jointly, what information must be included in the referral for
trial?
4. “To be tried in a (joint/common) trial with (name).”
140
5. In general, what is the maximum number of members detailed to an SPCM?
5. 12.
141
6. What is the minimum number of members that are required to be detailed to the court for a GCM
where the death penalty may be imposed?
6. Twelve.
142
7. If enlisted members are requested by the accused, what portion of the court members must be
enlisted?
7. At least one-third.
143
8. What must take place if the accused is a foreign national USAF member?
8. The SPCMCA SJA must have the accused’s records examined to ascertain the accused’s nationality no
later than 24 hours after referral, even if a claim of foreign nationality has not been made.
144
9. Once charges are referred to trial, what must occur? Who verifies it is accomplished?
9. The charges must be served on the accused. The trial counsel ensures it.
145
10. How are changes made to charges and/or specifications?
10. The changes are made on the original charge sheet by lining through the material while ensuring the form
remains legible, and the person making the changes will initial and date by each change.
146
11. What is a major change to a charge and/or specification?
11. It is one that adds a party, an offense, or a substantial matter not fairly included in the preferred charge or
specification, or that is likely to mislead the accused as to the offense charged.
147
12. What is the most significant difference between making minor and major changes to a charge
and/or specification?
12. Major changes cannot be made over the objection of the accused unless the charge and/or specification
are referred anew.
148
13. How are additional charges numbered on the DD Form 458?
13. When there are additional charges, prepare an additional DD Form 458. Number the additional charges in
the same basic manner as initial charges. For example, designate a single additional charge simply as
“ADDITIONAL CHARGE;” however, if there is more than one additional charge, designate them as
ADDITIONAL CHARGE I, ADDITIONAL CHARGE II, and so forth.
149
14. What is the purpose of a convening order?
14. It designates the type of court, details the members of the court, and states the place it is to meet.
150
15. In what two ways may an SCM be convened?
15. It may be convened by a separate order that is prepared in accordance with R.C.M. 504(d)(2) or it may
consist of a notation on the charge sheet signed by the convening authority.
151
16. What date is placed on a court-martial convening order?
16. The same date as designated in the referral portion of the charge sheet.
152
17. How are members identified in a convening order?
17. Rank, name, unit, MAJCOM, and base.
153
18. How are orders convening courts-martial numbered?
18. They are numbered consecutively on a fiscal year basis, starting with number 1, with the number following
an A-series prefix.
154
19. How many amendments may be issued to the convening order before publishing a new order?
19. No more than two.
155
20. What is the purpose of a savings clause?
20. Transfers all cases that have not yet been assembled to the new order by the court.
156
1. Who may be tried by an SCM?
1. Enlisted members subject to the UCMJ for any noncapital case offense made punishable by the UCMJ.
157
2. What punishment restrictions in an SCM apply to military members E–5 or above?
2. They may not receive confinement, hard labor without confinement or reduction, except to the next pay
grade.
158
3. Before an SCM begins, what must the SCMO accomplish?
3. The SCMO shall examine the charge sheet, allied papers (convening orders, investigative reports,
correspondence relating to the case, and witness statements), and the accused’s personnel records to verify
they are complete and free from errors or omissions which might affect admissibility.
159
4. On what form is the SCM ROT prepared?
4. DD Form 2329, Record of Trial by Summary Court-Martial.
160
5. What is the composition of a SPCM?
5. A military judge and four members with or without alternates or a military judge alone if requested by the
accused and approved by the military judge.
161
6. What is the composition of a GCM?
6. In non-capital GCM cases, the quorum may fall to six members after impanelment without having to return to
the convening authority to detail new members to the court. In all capital cases, GCMs shall consist of a
military judge and not less than 12 members with or without alternates.
162
1. State the purpose of an Article 32, UCMJ preliminary hearing.
1. The primary purpose of an Article 32, UCMJ preliminary hearing is to determine:
Whether the specification alleges an offense under the UCMJ.
Whether there is probable cause to believe that the accused committed the offense charged.
Whether the convening authority has court-martial jurisdiction over the accused and the offense.
A recommendation as to the disposition that should be made of the case.
163
2. What are the general qualifications of an officer who can be appointed as an Article 32, UCMJ
PHO?
2. The PHO should be senior in rank to the accused, must be a designated judge advocate, and should be
certified under article 27(b), UCMJ.
164
3. What is one of the first things you should do when you know who the PHO will be?
3. Ensure the PHO has a copy of the AFLOA/JAJM Article 32 Preliminary Hearing Officer’s Guide and
script for review.
165
4. What is the primary difference between a court-martial and an Article 32, UCMJ preliminary
hearing?
4. An Article 32, UCMJ preliminary hearing is concerned only with finding facts. A court-martial determines
guilt or innocence and imposes punishment.
166
5. What must the PHO do before the Article 32, UCMJ preliminary hearing?
5. Review the charge sheet and the evidence that forms the basis for the charge(s), and any other documents
attached to the PHO appointment letter.
167
6. What form does the PHO use to make his or her report after the investigation? How is it used?
6. The DD Form 457 with supplemental pages, if necessary, to record findings and recommendations.
168
7. What is the next step in the process after the PHO forwards the report to the SJA of the convening
authority who directed the Article 32, UCMJ preliminary hearing?
7. The SJA makes photocopies of the report and delivers it to the convening authority and, if delegated, will
promptly cause a copy of the report to be served on both the accused and accused’s counsel.
169
8. What options are available to the SPCMCA after an Article 32, UCMJ preliminary hearing is
conducted?
8. The convening authority may decide to dispose of it within his or her jurisdictional limits or recommend to
the officer exercising GCM jurisdiction (GCMCA) a GCM tries the case.
170
9. When is a formal written pretrial advice of the SJA required?
9. In any case that may be referred to a GCM.
171
10. What information must be included in the SJA’s pretrial advice?
10. Conclusion concerning whether each specification alleges an offense under the UCMJ; Conclusion
concerning whether there is probable cause to believe that the accused committed the offense charged in the
specification; conclusion concerning whether a court-martial would have jurisdiction over the accused and
the offense; and recommendation as to the disposition that should be made of the charges and specifications
by the convening authority in the interest of justice and discipline.
172
11. What is the next step after pretrial advice is finalized?
11. A referral package is prepared.
173
12. What does a referral package include?
12. It includes the charge sheet, commander’s indorsement, forwarding letters or other indorsements, and, if
applicable, the investigating officer’s appointment letter with attachments, any other evidence the SJA
deems pertinent. In cases where the Article 32, UCMJ was waived by the accused, forward the accused’s
waiver along with any evidence the SJA relied upon to conclude the charges and specifications are
warranted.
174
13. What are some of your duties when Article 32, UCMJ preliminary hearings are conducted?
13. Normally, you are responsible for not only assisting the convening authority in obtaining personnel to
participate in the preliminary hearing but also assisting the PHO in preparing the report. This may include
acting as a reporter for an Article 32, UCMJ preliminary hearing and providing the PHO with a DD Form
457.
175
1. What chapter in AFI 36–3208 provides guidance on an enlisted member’s request for discharge in
lieu of court-martial?
1. Chapter 4.
176
2. In most cases, what is the service characterization for an enlisted Airman administratively
discharged in lieu of court-martial?
2. UOTHC.
177
3. To whom does an enlisted accused submit his or her request for discharge in lieu of courtmartial?
3. Unit commander.
178
4. What happens to a request for discharge in lieu of court-martial after the unit commander makes
his or her recommendations?
4. The commander sends the case file, along with the recommendation letter to the MPS.
179
5. Who is the final approval authority on a discharge request in lieu of trial by court-martial?
5. The GCMCA, except in cases where the charges were referred to an SCM, and GCMCA wishes to seek
SAF approval for a UOTHC.
180
6. If an officer requests to resign for the good of the service (RILO) and charges have not been
referred, who may deny the resignation?
6. SPCMCAs, GCMCAs, and MAJCOM commanders.
181
7. How does the RILO process begin?
7. The wing commander or equivalent authority indorses the resignation to the GCMCA.
182
8. What level legal office is required to do a comprehensive legal review on all RILO requests?
8. The base level, or equivalent, legal office where the RILO originated.
183
9. What is the GCMCA required to do after he or she receives a RILO withdrawal request?
9. Indorse the request and forward it to the officer’s MAJCOM of assignment.
184
10. When a RILO is pending, what is required before a case can proceed to trial?
10. Prior authorization from AFLOA/JAJM.
185
1. Who serves as the focal point for all courts-martial docketing and detailing decisions?
1. CDO
186
2. What action must the legal office tasked with prosecuting the case take after referral and service
of charges on the accused?
2. Immediately notify the CDO of the referred charges and detailed counsel by email.
187
3. Who is responsible for holding a docketing conference with counsel? When should it be held?
3. The Clerk of Trial Courts or the docketing judge. The docketing conference should be held within two duty days following the day of notice of referral.
188
4. What is the purpose of a pretrial scheduling conference?
4. To promote a fair and expeditious trial and discuss issues that are outstanding or foreseeable and capable of
early resolution, such as approval of experts, discovery, evidentiary motions, requests for sanity boards, and
so forth.
189
5. When is a request for trial by the military judge alone approved?
5. During the Article 39(a) proceeding and only after the military judge has made certain inquiries of the
accused and is convinced the accused understands the meaning and effect of trial by military judge alone.
190
6. What information should you notify members who have been detailed to a court-martial, them?
6. The date, time, place, and the uniform required for courts-martial.
191
1. If there is a disagreement between the trial counsel and defense counsel as to whether the
testimony of a witness is relevant, to whom is the matter referred for a decision?
1. The detailed military judge.
192
2. What are the primary reasons the status of a witness is determined?
2. To determine proper notification procedures ensuring his or her presence at trial and to determine who will
be responsible for funding his or her travel.
193
3. Who has the power to compel a witness to appear and testify before a court-martial?
3. The trial counsel.
194
4. When is formal service of a subpoena required?
4. When the witness is unwilling to testify.
195
5. After you determine the status of a witness, what is the next step in funding witness travel and
fees?
5. Determine who will provide the funding.
196
6. What is the first step in requesting witness funding from AFLOA/JAJM?
6. Complete a request via the WFMS at least ten days before the proceed date entered in WFMS.
197
7. When not funded by AFLOA/JAJM, who funds witnesses for a GCM?
7. The GCMCA.
198
8. Who funds forensic experts for urinalysis cases?
8. The AFLOA/JAJM.
199
9. How much is CWF authorized to pay civilian expert witnesses per day and per case?
9. $1,000 per day with a maximum of $4,000 per case.
200
10. What is the maximum number of days witnesses have to complete their travel vouchers through
DTS?
10. Within five calendar days of returning from TDY.
201
11. What documentation is used to process expert fee vouchers?
11. The SF 1034, Public Voucher for Purchases and Services Other Than Personal.
202
1. What is a deposition?
1. An out-of-court testimony of a witness under oath in response to questions by the parties, which is
transcribed or recorded on videotape, audiotape, or similar material.
203
2. Why are depositions used?
2. To preserve the testimony of a witness who is likely to be unavailable at the investigation under Article 32
or at the time of trial.
204
3. What is considered good cause for denial of a deposition request?
3. Failure to state a proper ground for taking a deposition, failure to show the probable relevance of the
witness’ testimony, or that the witness’ testimony would be unnecessary.
205
4. Who has the discretion to decide whether depositions recorded by videotape, audiotape, or sound
film may be played for the court-martial or may be transcribed and read to the court-martial?
4. Military judge.
206
1. Why do we request immunity?
1. We request immunity when we need a witness to testify without fear that his or her testimony may be used
against him or her.
207
2. What are the two types of immunity?
2. Transactional immunity and testimonial immunity.
208
3. Who has the authority to grant immunity to a witness?
3. A GCMCA; it may be delegated and may be limited by a superior authority.
209
4. To whom may a GCMCA grant immunity?
4. Any person subject to the code, unless specifically authorized to do so by the Attorney General of the
United States or other authority designated under 18 U.S.C. 6004. A GCMCA may grant immunity to
persons not subject to the code only when specifically authorized to do so by the Attorney General of the
United States or other authority designated under 18 U.S.C. § 6004.
210
1. What does the term stipulation mean?
1. An agreement between two or more parties.
211
2. Why are stipulations of fact important?
2. They can reduce the time and expense of a court-martial.
212
3. What type of stipulation may be attacked, contradicted, or explained?
3. Stipulations of expected testimony.
213
4. Why do we write motions?
4. Because we want the court to rule in our favor on a particular issue.
214
5. Why are motions important?
5. They can influence the kind of evidence either party can present at trial.
215
6. Who is allowed to make pretrial motions or raise motions during the trial?
6. Either party; the prosecution and/or the defense.
216
1. Define a plea agreement.
1. An agreement between the accused and the convening authority to fulfill terms or conditions agreed upon
prior to trial.
217
2. Who may initiate a plea agreement?
2. The trial counsel, SJA, convening authority, and duly authorized representatives, or defense counsel and
accused.
218
3. Who is authorized to enter into or reject offers to enter into plea agreements with the accused?
3. GCMCAs and SPCMCAs, unless a superior commander withholds such authority.
219
4. When is the military judge notified of plea agreements?
4. Before arraignment.
220
5. How is withdrawal of a plea agreement by the accused submitted?
5. In writing and given to the SJA or trial counsel.
221
1. Which regulation outlines specific rules for discovery that must be followed for all courtsmartial?
1. AFI 51-110.
222
2. What does mandatory disclosure mean?
2. The information must be turned over automatically by both sides; no request is required.
223
3. Who resolves the issue when there is a disagreement of whether or not information or evidence is
discoverable?
3. The military judge.
224
1. What is the first step in preparing the courtroom?
1. To ensure the courtroom has a neat, clean, and orderly appearance.
225
2. What should be provided to the trial participants before the court convenes?
2. Appropriate supplies (e.g., paper and pencils), a copy of the convening order, and any amendments.
226
3. When does trial counsel provide the flyers to the members of the court?
3. During the open session of the court when members are present.
227
4. What is probably the most important aspect of preparing the courtroom?
4. Setting up the court-reporting equipment.
228
5. What must you remember in preparing trial folders?
5. Trial counsel and defense counsel must have the same exact documentation within their respective folders.
229
6. What are the bailiff’s duties before trial?
6. Reports to the base legal office prior to the day of trial to receive a bailiff’s guide, a briefing, and walkthrough
of the office; reports to the trial counsel in proper uniform at least 30 minutes before
commencement of each day’s procedures; ensures courtroom and jury deliberation room have a neat, clean,
and orderly appearance, and furniture is in proper arrangement.
230
7. What responsibility does the bailiff have regarding spectators?
7. See that they can enter the courtroom, be seated, and leave quietly.
231
8. If the bailiff is instructed to deliver an item to a court member in closed session, what must the
bailiff do first?
8. Must inform the military judge and obtain approval.
232
9. What miscellaneous duties may the bailiff have during the trial?
9. Summon the court members, counsel, and all required parties to the courtroom when needed; summon
witnesses when requested; deliver items to the court (e.g., evidence, findings, and sentence worksheets);
deliver items of evidence to any deliberation room if instructed by the military judge; and perform
administrative errands as requested.
233
1. What takes place during the Article 39(a) session of a court-martial?
1. The military judge hears and determines motions; hears and rules on matters authorized under the UCMJ;
conducts arraignment, and the entering of pleas.
234
2. What is the purpose of voir dire?
2. Court members are examined to determine whether they can try the case fairly and impartially.
235
3. What is the customary procedure concerning arraignment when a military judge presides over a
trial?
3. To hold the arraignment at an Article 39(a) session out of the presence of the court members.
236
4. What is the purpose of a Care inquiry?
4. To ensure the accused understands what he or she is pleading guilty to, and that he or she is, in fact, guilty
of each element of each charge and specification.
237
5. What is the usual sequence followed during the presentation of evidence?
5. Presentation of evidence for the prosecution; presentation of evidence for the defense; presentation of
prosecution evidence in rebuttal; presentation of defense evidence in surrebuttal; additional rebuttal
evidence at the discretion of the military judge; presentation of evidence requested by the military judge or
members.
238
6. When is it appropriate to motion for a finding of not guilty?
6. After presentation of the evidence on findings, but before the sentencing portion of a court-martial.
239
7. What must the defense specify when making a motion for a finding of “not guilty”?
7. How the evidence is insufficient.
240
8. What standard of proof is applied for guilty findings?
8. Proof beyond a reasonable doubt based on direct or circumstantial evidence.
241
9. How do court members vote?
9. By secret written ballot for each charge and specification.
242
10. What is the purpose of the sentencing phase of the court-martial?
10. To determine the type of punishment the accused will receive after a finding of guilty.
243
11. What categories of evidence may the trial counsel submit during sentencing?
11. The PDS; character of the accused’s prior service; prior convictions from a military court-martial or civilian
court; evidence of aggravation; and evidence of rehabilitative potential.
244
12. What should the military judge do if he or she deviates significantly from the standard sentencing
instruction?
12. State on the record the reason(s) for the deviation.
245
13. Why may a trial counsel not claim to speak for the convening authority?
13. To prevent any hint of command influence.
246
14. What should a defense counsel not do when giving the sentencing argument?
14. Not concede the accused guilt if the accused pled not guilty during arraignment.
247
15. What is one of your paralegal duties when the sentence is announced in court?
15. Write down the sentence exactly as it is announced in court.
248
1. From what point in the post-sentencing procedure does the accused have to submit matters for
consideration by the convening authority?
1. The clock for submission of matters starts immediately following the announcement of sentence.
249
2. Matters submitted by the crime victim are served on the accused. How long does the accused
have to submit a rebuttal for consideration of the convening authority?
2. Five calendar days.
250
1. What is the purpose of the statement of trial results?
1. To promptly notify specific individuals of the pleas, findings, sentence, forum, plea agreement, suspension
recommendation and other information directed by the military judge.
251
2. How are the specifications in the statement of trial results written?
2. The specifications on the STR are written in a similar manner to those on the DD Form 458, Charge Sheet,
but the specifications on this memorandum may be summarized.
252
3. List the contents of the statement of trial results.
3. Findings, sentence, forum, plea agreements, suspension recommendations, other information the military
judge deems necessary
253
4. Who may rescind a deferment of confinement?
4. The deferment may be rescinded at any time by the officer who granted it or, if the accused is no longer
under that individual’s jurisdiction, by the officer exercising GCM jurisdiction over the command to which
the accused is currently assigned.
254
5. When can automatic forfeitures under Article 58b, UCMJ be waived?
5. Only in cases where the accused has dependents.
255
6. What is the purpose of action by the convening authority?
6. To approve or disapprove all or part of the findings or sentence, or both.
256
7. What punishments can the convening authority approve in the action by the convening authority?
7. It can approve all punishments that will be established in an Entry of Judgment but it cannot order a
punitive discharge or the death penalty executed until the case has gone through all levels of appellate
review.
257
8. What is the purpose of the EOJ?
8. It reflects the result of the court-martial, as modified by any post-trial actions, rulings, or orders.
258
1. What items are included in the ROT?
(1) The judgment entered into the record by the EOJ.
(2) The STR.
(3) Any action by the convening authority under R.C.M. 1109 or 1110.
(4) A substantially verbatim recording of the court-martial proceedings except sessions closed for
deliberations and voting.
(5) The original charge sheet or a duplicate.
(6) A copy of the convening order and any amending order.
(7) The request, if any, for trial by military judge alone; the accused’s election, if any, of members under
R.C.M. 903; and, when applicable, any statement by the convening authority required under R.C.M.
503(a)(2).
(8) The election, if any, for sentencing by members in lieu of sentencing by military judge under R.C.M.
1002(b).
(9) Exhibits.
(10) Prosecution exhibits admitted during trial.
259
2. What items are attached to the ROT?
2. (1) PHO report.*
(2) Pretrial advice.*
(3) Record of former hearings (retrials).*
(4) Exhibits not in evidence.
(5) RCM 1106/1106A matters.
(6) Deferment requests and action.
(7) Waiver/withdrawal of appellate review.
(8) Transcript.
(9) Other items as required by AFMAN 51–203.
260
3. Explain the process for certifying the ROT after the record has been transcribed.
3. The court reporter notes any transcription errors then forwards it to trial counsel and signs a certification
verifying the examination, the record is then sent to the defense counsel, and finally to the military judge.
261
1. What is the purpose of the Article 64 review?
1. To determine if the findings and sentence are correct in law and fact.
262
2. What cases require an Article 64 review?
2. SCMs with a finding of guilty.
263
3. Under an Article 69 review, when must the accused submit matters for TJAG’s consideration and
to whom are they submitted?
3. Matters must be submitted directly to AFLOA/JAJM on or before the 30th day after the date the GCMCA
approved the sentence, unless the accused establishes good cause for not filing matters within that time.
264
4. Within what period of time may an accused petition the CAAF?
4. 60 days from the time he or she is personally notified of the AFCCA decision or the date a copy of the
decision, after being served on appellate defense counsel, was deposited in the US mail for delivery by
first-class certified mail, whichever is earlier.
265
5. When must the CAAF review ROTs?
5. In all cases in which the sentence, as affirmed by the AFCCA, extends to death; cases reviewed by the
AFCCA that TJAG orders sent to the CAAF for review; and cases reviewed by the AFCCA in which, upon
petition of the accused and on good cause shown, the CAAF has granted review.
266
6. When are decisions of the CAAF reviewed by the Supreme Court by writ of certiorari?
6. In cases reviewed by CAAF in which the sentence extends to death; cases reviewed by AFCCA, which
TJAG certifies to the CAAF; all cases where the CAAF granted a petition for review for good cause; and
cases in which the CAAF granted relief.
267
7. When may the Supreme Court not review by writ of certiorari?
7. Any action of the CAAF in refusing to grant a petition for review.
268
8. When may a trial counsel appeal an order or ruling by the military judge?
8. With the approval of TJAG, the government may appeal a sentence to the AFCCA on the grounds that the
sentence violates the law or is plainly unreasonable.
269
1. What is the procedure for a rehearing on sentence only?
1. The same as in an original trial, except the portion of the procedure that ordinarily occurs after challenges
and through and including findings is omitted.
270
2. What triggers the speedy trial clock for a rehearing?
2. Receipt of decision by the original convening authority’s SJA.
271
3. What is the disposition of a DD Form 458 for a rehearing?
3. The new referral is attached to the original referral.
272
4. What kind of hearing is ordered when an appeal cannot be resolved without factual clarification?
4. A DuBay hearing.
273
5. Who may direct a DuBay hearing?
5. The CAAF, AFCCA, convening and supervisory authorities, or a detailed military judge.
274
6. Why are in-camera proceedings normally held?
6. To determine the extent of disclosure of classified information.
275
7. What is the disposition of the record of the in-camera proceeding?
7. It is sealed and attached to the ROT as an appellate exhibit.
276
1. What information must all inquiry responses include?
1. A detailed response to specific inquiries; narrative of the activity, including dates, resulting in the action in
question; and any other unique or significant aspects.
277
2. What governs the disclosure of ROTs to the public?
2. PA and FOIA.
278
3. Who is the disclosure authority for ROTs?
