La. Admin. Code tit. 41, § II-509 - Preparation of the Charge Sheet

A. General. In preparing charges for trial by courts-martial, the unit commander will use the current DD Form 458, Charge Sheet. Detailed instructions for completing the Charge Sheet may be found at R.C.M. 307 and at Figure 5-8 of this Regulation. An example of a completed Charge Sheet is located at Figure 5-7 any person subject to the LCMJ may prefer charges, but trial counsel should always draft or review charges before they are preferred. While the unit commander is responsible for the preparation of the Charge Sheet, there is no legal requirement that he do it personally. He should, however, supervise its prompt and proper preparation and forwarding. Once the charge and specification has been prepared and signed under oath, it is a public record, and other than minor administrative changes, should not be altered, except upon the advice of a judge advocate. For minor administrative or typographical corrections, the officer making same should initial in the margin the correction.

B. Timeliness. When the Unit Commander has made the decision to prefer court-martial charges and to recommend trial by courts-martial, he should promptly dispose of the matter. It is longstanding military policy, both in the active forces and in the National Guard that military justice be given priority.

C. Personal Data. Section I of the Charge Sheet is personal data concerning the accused. This information is generally found in the accused's personnel file. The unit commander should have reviewed this personnel file before making his decision on disposition of the offense during his preliminary investigation. The accused's "grade or rank" (Block 3) is his military title (such as PFC) and his "pay grade" (Block 4) is his numerical designation (such as E-3). The initial date of the accused's current service is the date of his latest enlistment (Block 6). Paragraph 7 "Pay per Month" is the normal MUTA-4 pay which the accused would receive for one month to be inserted in the "basic" block. Louisiana National Service members do not receive "sea or foreign duty pay". Block 8, entitled "nature of restraint of accused" should show all types of restraint imposed, and block 9 should show the corresponding duration (inclusive dates) of the restraint and any changes.

D. Charges and Specifications

1. General. Section II of the Charge Sheet is the section for charges and specifications. This is the most important part of the Charge Sheet. The "charge" indicates the section of the Louisiana Code of Military Justice violated. Since DD Form 458, Charge Sheet, is a federal form, the reference in Section II to a "violation of the UCMJ, Article __" should be changed to "violation of the Louisiana Code of Military Justice, Article __." The "specification," which is under the charge, must be written so that it clearly advises the accused of the date, time, place and circumstances of the alleged offense against him. The specification states the facts and circumstances which constitute a violation of the particular section of the LCMJ alleged to be violated. Neither the misdesignation of an article nor the failure to designate any article is ordinarily material so long as the specification alleges an offense over which courts-martial have jurisdiction. If there is only one charge, it is not numbered. When there is more than one charge, each is numbered with a Roman numeral. [R.C.M. 307(c).]

2. Elements of the Offense. Part IV of the Manual for Courts-Martial, United States, lists each essential element of all equivalent punitive Articles in the LCMJ. It is imperative that commanders familiarize themselves with the contents of these materials. The Unit Commander should refer to one of these references for a discussion of "proof" and an outline of the "elements of the offense." This will help the Commander to recognize criminal conduct and in drafting a clear, complete specification. When the specification is written, the Commander should be able to find each of the discussed "elements" in the specification.

3. Legal Advice. The unit commander should not alter the words in a model specification without legal advice from a Judge Advocate. If he, or his legal clerk, has any questions in the selection or drafting of a specification, he should contact the Staff Judge Advocate of his Direct Reporting Unit.

Notes

La. Admin. Code tit. 41, § II-509

Promulgated in accordance with the Office of the Governor, State Military Department, LR 35:2381 (November 2009).

AUTHORITY NOTE: Promulgated in accordance with R.S. 29:11(F).