10 U.S.C. § 834 — Art. 34. Advice to convening authority before referral for trial

(a) General court-martial. (1) Required staff judge advocate advice. Subject to subsection (c), before referring charges and specifications to a general court-martial, the convening authority must send them to the staff judge advocate for written advice. The convening authority may not refer a specification unless the advice says that: (A) the specification alleges an offense under this chapter; (B) probable cause exists to believe the accused committed the charged offense; and (C) a court-martial would have jurisdiction over the accused and the offense. (2) Recommendation. With that advice, the staff judge advocate must give the convening authority a written recommendation about how each specification should be handled in the interest of justice and discipline. (3) Documents accompanying referral. When the convening authority refers a case to a general court-martial, the written advice and recommendation for each specification must go with the referral. (b) Special court-martial. Subject to subsection (c), before referring charges and specifications to a special court-martial, the convening authority must consult a judge advocate about relevant legal issues. (c) Covered offenses. A referral to either kind of court-martial involving charges and specifications over which a special trial counsel has authority may be made only: (1) by the special trial counsel, with a written determination stating that each specification alleges an offense under this chapter, probable cause exists to believe the accused committed it, and a court-martial has jurisdiction over the accused and offense; or (2) by the convening authority under this section, when the charges and specifications do not allege a covered offense and the special trial counsel declines to prefer them—or, if someone else preferred them, declines to refer them. (d) Corrections before referral. Before referral to either a general or special court-martial, charges and specifications may be changed to correct errors in form and, when applicable, to match the evidence in a report under section 832(c). (e) Meaning of “referral.” In this section, “referral” means an order by the convening authority—or, for charges and specifications under a special trial counsel’s authority under section 824a, by that special trial counsel—that the charges and specifications against an accused be tried by a specified court-martial.