Court-Martial Process Explained: From Charges to Sentencing

In this post, I walk through the entire court-martial process—from preliminary investigation through trial to sentencing—updated to reflect the major reforms enacted between 2014 and 2024.

The court-martial process is governed by stringent rules of procedure that must be carefully followed. Procedural safeguards exist to protect the rights of the accused, and failure to adhere to them can have significant adverse consequences—up to and including reversal on appeal. Since 2014, Congress has rewritten significant portions of the Uniform Code of Military Justice (UCMJ) and the procedure that governs courts-martial, most notably through the Military Justice Act of 2016 and the FY 2022 National Defense Authorization Act. The framework below reflects current law as of 2026.

Key Takeaways

↓ Jump to FAQ for quick answers

Three tiers of court-martial. Summary (up to 30 days confinement, no criminal record), special (up to one year and a bad-conduct discharge), and general (up to and including death and a dishonorable discharge).
Most cases still flow through the commander. A company commander prefers charges; the special and general court-martial convening authorities decide what forum—if any—handles them.
Covered offenses bypass the commander chain. Since 27 December 2023, the Office of Special Trial Counsel (OSTC) has exclusive authority over sexual assault, murder, manslaughter, kidnapping, domestic violence, and other “covered offenses” under Article 24a, UCMJ.
Article 32 is now a preliminary hearing. Before any general court-martial, an Article 32 preliminary hearing officer determines probable cause. Reforms in the FY 2014 NDAA narrowed the hearing's scope and largely ended its use as a discovery tool.
The military judge sentences—not the panel. Under §539E of the FY 2022 NDAA, the military judge alone sets the sentence in non-capital cases.
Convening-authority clemency is now a shadow of its former self. The 2014 NDAA stripped the convening authority of the power to disapprove most punitive discharges or any confinement greater than six months for non-“qualifying offenses” under § 860(c)(3).

Beginning the Court-Martial Process

The court-martial process begins with a report of incident, followed by an investigation conducted either by civilian authorities or by the appropriate military investigative agency—the Department of the Army Criminal Investigation Division (CID; reorganized in 2021 as a civilian-led organization separate from the Military Police chain), the Naval Criminal Investigative Service (NCIS), or the Air Force Office of Special Investigations (OSI). For the rest of this post, I will focus on the Army.

Preferral by the company commander

The first-line commander is normally the company commander, usually a captain. For offenses other than “covered offenses” under Article 24a, UCMJ—which I’ll discuss in the next subsection—the company commander has four basic options based on the findings of the investigation: take no further action, impose non-judicial punishment under Article 15, UCMJ, pursue adverse administrative action, or prefer charges.

Preferring charges—known as preferral—is the commander’s formal swearing of charges and signing of the charge sheet (DD Form 458). This occurs when the commander believes both that the offense occurred and that it is serious enough to warrant referral to a court-martial.

Special rules for covered offenses

Until December 2023, sexual assault and a handful of related offenses were subject to special preferral rules that pushed disposition decisions up the chain of command. As of 27 December 2023, those rules went further: under Article 24a, UCMJ, an independent Office of Special Trial Counsel (OSTC) has exclusive authority to refer charges or specifications alleging certain “covered offenses”—including rape, sexual assault, murder, manslaughter, kidnapping, child sexual offenses, domestic violence, stalking, retaliation, child pornography, and the wrongful broadcast or distribution of intimate visual images under Article 117a—for trial by court-martial.

The FY 2023 NDAA expanded the list to add Articles 119a (death or injury of an unborn child) and 120a (stalking by way of electronic communications) effective the same date, and added the standalone offense of sexual harassment under Article 134 effective 1 January 2025. The OSTC’s referral decision is binding on the convening authority. Commanders no longer make the call on these cases at all.

The OSTC’s referral decision is binding on the convening authority. Commanders no longer make the call on these cases at all.

For everything else, the commander’s preferral decision still starts the clock.

Going to Trial

Preferral starts the trial phase of the court-martial process. The charge sheet is sent to the summary court-martial convening authority. Under Article 24, UCMJ, summary court-martial convening authority is the broadest of the three: anyone authorized to convene a special or general court-martial may convene a summary, and so may any commanding officer of a detached company or other detachment. In practice, this is typically the next commander above the company commander—usually a battalion commander.

Summary court-martial

The summary court-martial convening authority can take any action the company commander could have taken—including dismissal—or convene a summary court-martial. A summary court-martial is presided over by a single commissioned officer and is limited to enlisted accused who consent to the proceeding. The maximum punishment is 30 days of confinement, forfeiture of two-thirds pay for one month, and reduction in grade. There is a separate carve-out under Rule for Courts-Martial 1301(d) for senior enlisted accused: a summary court-martial may not adjudge confinement or hard labor without confinement against an E-5 or above, and may not reduce such a service member below the next-inferior pay grade. A “conviction” at a summary court-martial is not considered a federal criminal conviction; it is an internal military disciplinary proceeding.

Special court-martial

If the offenses are too serious for a summary court-martial, the matter moves up to the special court-martial convening authority, who under Article 23, UCMJ is the commanding officer of a brigade, regiment, detached battalion, or corresponding unit—customarily an O-6 (colonel in the Army), though the statute specifies the unit, not the grade. The special court-martial convening authority can take any of the lesser actions, refer the case to special court-martial, or forward it to the general court-martial convening authority for general court-martial referral.

A special court-martial tried before a member panel can impose up to one year of confinement, forfeiture of two-thirds pay per month for up to a year, reduction in grade, and a bad-conduct discharge. It is roughly analogous to a misdemeanor court in the civilian world. A special court-martial tried by a military judge alone—now a common forum after the Military Justice Act of 2016 introduced it as the “judge-alone special court-martial”—is more limited under § 819(b): no bad-conduct discharge, confinement no greater than six months, and forfeitures no greater than six months.

General court-martial

For the most serious matters, the general court-martial convening authority decides whether to refer the case to a general court-martial. Article 22, UCMJ lists multiple categories of GCM convening authorities—the President, the Secretary of Defense, service Secretaries, combatant commanders, and various Army group, Army, corps, division, and separate-brigade commanders, plus equivalent commanders in the other services. In practice, the GCMCA most service members encounter is a major general commanding a division. A general court-martial can impose any punishment authorized by the Manual for Courts-Martial, including a dishonorable discharge or dismissal (for officers), confinement up to life without parole, and—in capital cases—the death penalty. The general court-martial convening authority can, of course, also take any of the lesser actions a referring commander could have taken.

The Article 32 Preliminary Hearing

Before any general court-martial can convene, the case must go through an Article 32 preliminary hearing. Special and summary courts-martial do not require one.

An Article 32 preliminary hearing is roughly analogous to a civilian preliminary hearing—not a grand jury proceeding, despite that older comparison still appearing in some primers. Following the substantive amendments in the FY 2014 NDAA and technical clarifications in the FY 2015 NDAA, Article 32’s scope is narrow and largely paper-based: an impartial preliminary hearing officer (typically a judge advocate) determines whether there is probable cause to believe an offense was committed and that the accused committed it, and recommends a disposition. The hearing officer’s recommendation is not binding on the convening authority.

If the hearing officer finds probable cause and the convening authority concurs, the case moves to arraignment and trial. The accused may also waive the Article 32 hearing in writing under § 832(a)(1)(B); waivers are common when the parties have reached a pretrial agreement and intend to proceed by guilty plea. Cases referred by the OSTC under Article 24a still require an Article 32 hearing before referral to general court-martial unless the accused waives it; the OSTC’s exclusive authority controls who decides whether to refer, not the procedural prerequisites.

Trial and Sentencing

If the accused is convicted at trial, sentencing follows. From the Articles of War of 1775 through the post-MJA-2016 period, members—not the judge—imposed the sentence in courts-martial composed of members. That is no longer the default.

Under §539E of the FY 2022 NDAA, effective 27 December 2023, 10 U.S.C. § 853(b)(1) now provides that “[e]xcept as provided in subsection (c) for capital offenses, if the accused is convicted of an offense in a trial by general or special court-martial, the military judge shall sentence the accused.” Members no longer participate in sentencing in non-capital cases. Capital cases are the carve-out—if the accused is convicted of a capital offense and the death penalty is sought, members continue to determine the sentence.

Sentencing still follows immediately on the heels of conviction, without the months-long delay common in civilian practice. But the §539E reforms also introduced segmented sentencing for certain offenses, with sentencing parameters (akin to civilian sentencing guidelines) for many offenses—so the sentencing phase itself can take longer than the simple announcement that used to follow a panel’s deliberation.

The Post-Trial Phase

After sentencing, the court-martial process moves into the post-trial phase, which includes the entry of judgment, the convening authority’s action, and any final request for clemency.

What the convening authority can—and cannot—do

In 2014, the convening authority’s traditional authority to reduce sentences and even vacate convictions was a centerpiece of military justice and a frequent target of reformers. The FY 2014 NDAA ended that. Article 60’s amendments took effect 24 June 2014 (Pub. L. 113-66 § 1702(d)(2)(A)); the related Article 32 narrowing took effect six months later, on 26 December 2014.

Under the post-2014 regime, the convening authority can no longer disapprove a finding of guilt or any portion of an adjudged sentence of confinement greater than six months for any offense that is not a “qualifying offense” under 10 U.S.C. § 860(c)(3)—a defined statutory category limited to offenses with a maximum punishment of two years or less, an adjudged sentence under six months’ confinement, and excluding the most serious sex offenses (Articles 120, 120b, and 125). The convening authority also can no longer disapprove an adjudged punitive discharge for any non-qualifying offense. Limited clemency authority survives over qualifying offenses, over the unsuspended portions of suspended sentences, and through pretrial-agreement and substantial-assistance exceptions—but the broad post-conviction power that once defined the convening authority’s role is gone.

Appeals and beyond

If the convening authority does not vacate the conviction (which is now rare and limited by statute), the case enters the appellate phase. Under 10 U.S.C. § 866(b)(3), cases involving death, dismissal of a commissioned officer or cadet/midshipman, a dishonorable or bad-conduct discharge, or confinement of two years or more proceed automatically to the relevant service Court of Criminal Appeals. The Military Justice Act of 2016 raised that confinement threshold from one year to two, effective January 1, 2019. The FY 2023 NDAA separately added a right of direct appeal on application for any general or special court-martial conviction regardless of sentence under § 866(b)(1)(A)—but that is appeal by application, not automatic review. Further review is available at the U.S. Court of Appeals for the Armed Forces and, by certiorari, at the U.S. Supreme Court. I will discuss the appellate phase in a future post.

The convening authority’s broad post-conviction power that once defined the role is gone—reformed, narrowed, and largely transferred to military judges and an independent prosecutor.

Frequently Asked Questions

What is the difference between a summary, special, and general court-martial?

A summary court-martial handles minor enlisted misconduct with no permanent criminal record and a 30-day confinement cap. A special court-martial handles intermediate offenses with up to one year of confinement and a bad-conduct discharge. A general court-martial is the felony-level forum and can impose any punishment authorized by the Manual for Courts-Martial, up to and including death.

Who can convene a court-martial?

Summary court-martial convening authority typically rests with the next commander above the company commander. Special court-martial convening authority rests with the commanding officer of a brigade, regiment, detached battalion, or corresponding unit under Article 23, UCMJ—customarily an O-6 colonel, though the statute specifies the unit, not the grade. General court-martial convening authority rests with a general officer or other authority listed in Article 22, UCMJ; in practice, most service members encounter a major general commanding a division.

Does every court-martial require an Article 32 hearing?

No. Only general courts-martial require an Article 32 preliminary hearing before referral. Summary and special courts-martial do not.

Can the accused waive an Article 32 hearing?

Yes. The accused may waive the Article 32 hearing in writing, often as part of a pretrial agreement. Waiver is common when the defense and prosecution have agreed to proceed by guilty plea.

Who imposes the sentence at a court-martial today?

Since 27 December 2023, the military judge alone imposes the sentence in any non-capital general or special court-martial. Members continue to sentence only in capital cases.

What happened to the commander’s authority over sexual assault cases?

Under Article 24a, UCMJ, enacted in the FY 2022 NDAA and effective 27 December 2023, the Office of Special Trial Counsel has exclusive authority to dismiss, withdraw, or refer charges for any “covered offense”—including sexual assault, murder, manslaughter, kidnapping, domestic violence, and several other serious crimes. The convening authority is bound by the OSTC’s decision.

Can the convening authority still reduce a sentence after trial?

Only in narrow circumstances. The FY 2014 NDAA prohibits the convening authority from disapproving findings of guilt, any adjudged punitive discharge, or any confinement greater than six months for any offense that is not a “qualifying offense” under 10 U.S.C. § 860(c)(3). Some clemency power remains for qualifying offenses, for the unsuspended portions of suspended sentences, and through pretrial-agreement and substantial-assistance exceptions—but the broad post-conviction discretion that defined the role pre-2014 is gone.

How long does the court-martial process take?

It varies widely. From preferral to verdict, a contested general court-martial typically takes six months to over a year; complex cases take longer. Article 32 preliminary hearings, motions practice, witness availability, and military operational tempo all affect the timeline.

The views and opinions expressed in this post are the author’s own and do not reflect the official policy or position of the United States Army, the Arkansas National Guard, the Department of Defense, or the United States Government. This post is general legal information about the military justice system and is not legal advice. If you are facing court-martial charges, contact a military defense counsel through your service’s Trial Defense Service or retain civilian counsel experienced in military justice.