Section 400.520  Advice of Judge Advocate and Referral for Trial

a)         The convening authority shall refer the charges to the senior force judge advocate or designee for consideration and advice pursuant to Code Section 34.  The judge advocate shall be provided with a complete copy of all documents, records or other evidence in the possession of the State and review all charges, together with the investigation and allied papers referenced in Code Section 33, as part of his or her legal review.

b)         Before any charge or specification may be referred for trial by general or special court-martial, the convening authority shall refer it to a judge advocate for consideration and advice.

1)         The convening authority may not refer a specification under a charge to a general or special court-martial for trial unless the convening authority has been advised in writing by a judge advocate that:

A)        the specification alleges an offense under the Code;

B)        the specification is warranted by the evidence indicated in the report of investigation under Code Section 32, if there is such a report; and

C)        a court-martial would have jurisdiction over the accused and the offense. (Code Section 34(a))

2)         The judge advocate shall also make to the convening authority a recommendation of the action to be taken by the convening authority. (Code Section 34(b)(2))

c)         The advice of the judge advocate under subsection (b) with respect to a specification under a charge shall include a written and signed statement by the judge advocate expressing conclusions with respect to each matter set forth in subsection (b)(1).  (Code Section 34(b)(1))

d)         A copy of the advice of the judge advocate shall be referred to the accused if charges are referred to a general or special court-martial.

e)         If the charges or specifications are not formally correct or do not conform to the substance of the evidence contained in the report of the investigating officer, formal corrections, and such changes in the charges and specifications as are needed to make them conform to the evidence, may be made. (Code Section 34(c))