Referral

(a) In general. Referral is the order of a convening authority that charges and specifications against an accused will be tried by a specified court-martial. (b) Who may refer. Any convening authority may refer charges to a court-martial convened by that convening authority or a predecessor, unless the power to do so has been withheld by superior competent authority. (c) Disqualification. An accuser may not refer charges to a general or special court-martial. (d) When charges may be referred. (1) Basis for referral. If 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 and that the accused committed it, and that the specification alleges an offense, the convening authority may refer it. The finding may be based on hearsay in whole or in part. The convening authority or judge advocate may consider information from any source and shall not be limited to the information reviewed by any previous authority, but a case may not be referred to a general or special court-martial except in compliance with paragraph (d)(2) or (d)(3) of this rule. The convening authority or judge advocate shall not be required before charges are referred to resolve legal issues, including objections to evidence, which may arise at trial. (2) General courts-martial. The convening authority may not refer a specification under a charge to a general court-martial unless — (A) There has been substantial compliance with the preliminary hearing requirements of R.C.M. 405; and (B) The convening authority has received the advice of the staff judge advocate required under R.C.M. 406 and Article 34(a). (3) Special courts-martial. The convening authority may not refer charges and specifications to a special court-martial unless the convening authority has consulted with a judge advocate as required under R.C.M. 406A and Article 34(b). (e) How charges shall be referred. (1) Order, instructions. Referral shall be by the personal order of the convening authority. II-38 (A) Capital cases. If a case is to be tried as a capital case, the convening authority shall so indicate by including a special instruction on the charge sheet in accordance with R.C.M. 1004(b)(1). (B) Special court-martial consisting of a military judge alone. If a case is to be tried as a special court- martial consisting of a military judge alone under Article 16(c)(2)(A), the convening authority shall so indicate by including a special instruction on the charge sheet prior to arraignment. (C) Other instructions. The convening authority may include any other additional instructions in the order as may be required. (2) Joinder of offenses. In the discretion of the convening authority, two or more offenses charged against an accused may be referred to the same court- martial for trial, whether serious or minor offenses or both, regardless whether related. Additional charges may be joined with other charges for a single trial at any time before arraignment if all necessary procedural requirements concerning the additional charges have been complied with. After arraignment of the accused upon charges, no additional charges may be referred to the same trial without consent of the accused. (3) Joinder of accused. Allegations against two or more accused may be referred for joint trial if the accused are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such accused may be charged in one or more specifications together or separately, and every accused need not be charged in each specification. Related allegations against two or more accused which may be proved by substantially the same evidence may be referred to a common trial. (f) Superior convening authorities. Except as otherwise provided in these rules, a superior competent authority may cause charges, whether or not referred, to be the authority for further to consideration, including, if appropriate, referral. (g) Parallel convening authorities. is impracticable for the original convening authority to continue exercising authority over the charges, the convening authority may cause the charges, even if referred, to be transmitted to a parallel convening authority. This transmittal must be in writing and in transmitted If it accordance with such regulations as the Secretary concerned may prescribe. Subsequent actions taken by the parallel convening authority are within the sole discretion of that convening authority.