The Department of the Army provides an online resource, outlining the procedural rights of a service member who is subject to an investigation under Article 32 of the Uniform Code of Military Justice. Although this type of military proceeding is sometimes compared to a grand jury, it is important to understand certain differences.
As background, both a grand jury and an Article 32 investigation serve a protective function. The former is a Fifth Amendment constitutional right, providing a screening method to ensure that there is sufficient evidence before a criminal proceeding is brought against an accused. Similarly, an Article 32 investigation offers a procedural buffer against a general court-martial proceeding, which is the most serious type of court-martial. An officer must investigate the charges against a service member and issue his or her recommendation before the general court-martial is commenced.
However, an Article 32 hearing functions more like an open proceeding. The accused has the right to attend the hearing, review the evidence against him or her, and cross-examine witnesses. In addition, the military rules of evidence generally do not apply to the Article 32 investigative hearing. After the hearing, the investigating officer must forward a written report to the commander.
Finally, an Article 32 investigation often takes longer than a grand jury, sometimes even years before charges are brought. The commanding officer may not have any legal training, unlike a prosecutor preparing for a grand jury.
Our law firm focuses on military law, including courts-martial defense. We take the view that an entire military career could be at risk if the investigation proceeds to a court-martial. For that reason, we believe it is important for a service member to seek legal counsel even during the Article 32 investigation. Although a JAG officer may be available, he or she may be young, overworked and/or inexperienced. We recommend an attorney that has experience defending against this type of proceeding.
Source: Department of the Army, “Procedural Guide for Article 32 Preliminary Hearing Officer,” revised July 15, 2015