38-2-1034. Advice of staff judge advocate and reference for trial; corrections.

Before directing the trial of any charge by general or special court-martial, the convening authority shall refer it to the staff judge advocate of the service of the accused for consideration and advice. The convening authority shall 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 the staff judge advocate of the service of the accused that:#

1. (1)

   The specification alleges an offense under this article;#

2. (2)

   The specification is warranted by the evidence indicated in the report of investigation as provided for under Code Section 38-2-1032, if there is such a report; and#

3. (3)

   A court-martial would have jurisdiction over the accused and the offense.#

The advice of the staff judge advocate under subsection (a) of this Code section with respect to a specification under a charge shall include a written and signed statement by the staff judge advocate:#

1. (1)

   Expressing conclusions with respect to each matter set forth in subsection (a) of this Code section; and#

2. (2)

   Recommending action that the convening authority take regarding the specification.#

3. If the specification is referred for trial, the recommendation of the staff judge advocate shall accompany the specification.

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.#