10 U.S. Code § 834 - Art. 34. Advice of staff judge advocate and reference for trial
Pub. L. 114–328, div. E, title LVI, § 5205, title LXIII, § 5542, Dec. 23, 2016, 130 Stat. 2907, 2967, and Ex. Ord. No. 13825, Mar. 1, 2018, 83 F.R. 9889, provided that, except as otherwise provided, effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, this section is amended to read as follows:
§ 834. Art. 34. Advice to convening authority before referral for trial
(a) General Court-martial.—
(1) Staff judge advocate advice required before referral.—Before referral of charges and specifications to a general court-martial for trial, the convening authority shall submit the matter to the staff judge advocate for advice, which the staff 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 staff judge advocate advises the convening authority in writing that—
(A) the specification alleges an offense under this chapter;
(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) Staff judge advocate recommendation as to disposition.—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.
(3) Staff judge advocate advice and recommendation to accompany referral.—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.
(b) Special Court-martial; Convening Authority Consultation With Judge Advocate.—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) General and Special Courts-martial; Correction of Charges and Specifications Before Referral.—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 section 832(c) of this title (article 32(c)).
(d) Referral Defined.—In this section, the term “referral” means the order of a convening authority that charges and specifications against an accused be tried by a specified court-martial.
See 2016 Amendment note below.
Historical and Revision Notes
Source (U.S. Code)
Source (Statutes at Large)
In subsection (a), the word “may” is substituted for the word “shall”.
2016—Pub. L. 114–328 amended section generally. Prior to amendment, section consisted of subsecs. (a) to (c) relating to reference of charge to staff judge advocate for consideration and advice before trial, written and signed statement of advice by the staff judge advocate, and corrections to charges and specifications, respectively.
2014—Subsec. (a)(2). Pub. L. 113–291 inserted “(if there is such a report)” after “(article 32)”.
2013—Subsec. (a)(2). Pub. L. 113–66 substituted “a preliminary hearing under section 832 of this title (article 32)” for “investigation under section 832 of this title (article 32) (if there is such a report)”.
1983—Subsec. (a). Pub. L. 98–209, § 4(a), substituted “judge advocate” for “judge advocate or legal officer”, and provisions that the convening authority may not refer a specification under a charge to a general court-martial for trial unless he has been advised in writing by the staff judge advocate that the specification alleges an offense under this chapter, the specification is warranted by the evidence indicated in the report of investigation under section 832 of this title (article 32) (if there is such a report), and a court-martial would have jurisdiction over the accused and the offense, for provision that the convening authority could not refer a charge to a general court-martial for trial unless he found that the charge alleged an offense under this chapter and was warranted by evidence indicated in the report of investigation.
Subsecs. (b), (c). Pub. L. 98–209, § 4(b), added subsec. (b) and redesignated former subsec. (b) as (c).
Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.
Amendment by Pub. L. 113–66 effective on the later of Dec. 26, 2014, or the date of the enactment of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 (Dec. 19, 2014) and applicable with respect to preliminary hearings conducted on or after that effective date, see section 1702(d)(1) of Pub. L. 113–66, set out as a note under section 802 of this title.
Amendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, but not to apply to any case in which charges were referred to trial before that date, and proceedings in any such case to be held in the same manner and with the same effect as if such amendments had not been enacted, see section 12(a)(1), (3) of Pub. L. 98–209, set out as a note under section 801 of this title.