W. Va. Code R. § 141-49-4

Current through Register Vol. XLI, No. 40, October 4, 2024

Section 141-49-4 - Pretrial Procedure

4.1. Preparation of Charge Sheet.

4.1.a. General. -- In preparing charges for trial by courts-martial, the unit commander will use the current DD Form 458, Charge Sheet. Detailed instructions for completing the Charge Sheet may be found at MCM, R.C.M. 307 and DD Form 458. An example of a completed Charge Sheet is located at MCM, appendix 4. Any person subject to the USCMJ may prefer charges, but trial counsel should always draft or review charges before they are preferred. While the unit commander is responsible for the preparation of the Charge Sheet, there is no legal requirement that he do it personally. He should, however, supervise its prompt and proper preparation and forwarding. Once the charge and specification has been prepared and signed under oath, it is a public record, and other than minor administrative changes, should not be altered, except upon the advice of a judge advocate. For minor administrative or typographical corrections, the officer making same should initial in the margin the correction.

4.1.b. Timeliness. -- When the Unit Commander has made the decision to prefer court-martial charges and to recommend trial by courts-martial, he should promptly dispose of the matter. It is longstanding military policy, both in the active forces and in the National Guard that military justice be given priority.

4.1.c. Personal Data. -- Section I of the Charge Sheet is personal data concerning the accused. This information is generally found in the accused's personnel file. The unit commander should have reviewed this personnel file before making his decision on disposition of the offense during his preliminary investigation. The accused's "grade or rank" (Block 3) is his military title (such as PFC) and his "pay grade" (Block 4) is his numerical designation (such as E-3). The initial date of the accused's current service is the date of his latest enlistment (Block 6). Paragraph 7 "Pay per Month" is the normal MUTA-4 pay which the accused would receive for one month to be inserted in the "basic" block. Members of the West Virginia National typically do not receive "sea or foreign duty pay". Block 8, entitled "nature of restraint of accused" should show all types of restraint imposed, and block 9 should show the corresponding duration (inclusive dates) of the restraint and any changes.

4.1.d. Charges and Specifications.

4.1.d.1. General. -- Section II of the Charge Sheet is the section for charges and specifications. This is the most important part of the Charge Sheet. The instructions for drafting charges and specifications in Appendix 6, MCM, should be followed when applicable. The "charge" indicates the section of the Uniform State Code of Military Justice violated. Since DD Form 458, Charge Sheet, is a federal form, the reference in Section II to a "violation of the UCMJ, Section __" should be changed to "violation of the Uniform State Code of Military Justice, Section __." The "specification," which is under the charge, must be written so that it clearly advises the accused of the date, time, place and circumstances of the alleged offense against him. The specification states the facts and circumstances which constitute a violation of the particular section of the USCMJ alleged to be violated. Neither the misdesignation of a section nor the failure to designate any section is ordinarily material so long as the specification alleges an offense over which courts-martial have jurisdiction.

4.1.d.2. Abbreviations. -- Dates and times should be written in Arabic numerals, and the designation of organization or command my include numerals. The armed force, namely "West Virginia Army National Guard" or "West Virginia Air National Guard" may be abbreviated "WVARNG" and "WVANG," respectively. Otherwise, abbreviations should not be used in specifications.

4.1.d.3. Numbering of Charges and Specifications. -- If there is only one charge, it is not numbered. When there is more than one charge, each is numbered with a Roman numeral. [R.C.M. 307(c)(2).] When there is more than one specification under a charge, the specification under that charge should be numbered, using Arabic numerals, 1, 2, 3, etc.

4.1.d.4. Designation of Charges. -- Except for certain offenses, all charges should be laid under the applicable sections of the USCMJ. For example, in the case of absence without leave, the charge should be: Violation of the Uniform State Code of Military Justice, Section 86.

4.1.d.5. Name and Description of the Accused. -- The name of the accused as stated in the specification should include his rank and, if necessary, his pay grade. The name of the accused should be also accompanied by his organization and armed force. In the ordinary case of an enlisted person, for example, the specification would read, "In that Private John J. Smith, Company D 1092d Engr Bn, WVARNG, did...," etc.

4.1.d.6. Time and Place of Offense. The time and place of the commission of the alleged offense should be stated in the specification with sufficient precision to identify the offense and enable the accused to understand what particular act or omission he is called upon to defend. It is proper pleading to allege that a particular offense occurred "on or about" a certain day, or if it is necessary, to be more explicit as to the time, "at or about" a certain hour. For example, in the case of absence without leave, it is proper to allege that accused failed to go to his place of duty "on or about 2 May 1987 at or about 0800 hours" and remained so absent until "on or about 2 May 1987 at or about 1200 hours."

4.1.d.7. Alleging Separate Offenses. Each alleged offense should be set forth in a separate specification. Thus, in case of absence without leave, each unauthorized absence should be alleged in a separate specification under one charge.

4.1.e. Specimen Charges. The following specimen charge is set forth as an example which incorporates the foregoing principals of drafting charges and specifications:

"CHARGE: Violation of the Uniform State Code of Military Justice, Section 86. SPECIFICATION: In that Private First Class John J. Smith, WVARNG, 1092d Engr Bn. did, on or about 2 May 1987 at or about 0800 hours, without proper authority fail to go at the time prescribed to his place of duty at which he was required to be, to wit: at unit training assembly of HSC, 1092d EN BN at Parkersburg, West Virginia."

4.1.f. Informing Accused of Charges. Prior to forwarding the charges, the immediate commander will inform the accused of the charges against him and complete and sign the certificate to that effect on the Charge sheet. When, because of the unavailability of the accused, it is impractical to comply with the requirement, a report of the circumstances will be included in the letter forwarded with the charges (MCM, R.C.M. 308)(See Attachment 3).

4.1.g. Signing and Swearing to Charges. The oath to the charges must be executed before a person authorized by section 136, USCMJ to administer oaths.

4.1.h. Action by Officer Exercising Summary Courts-Martial Jurisdiction:

4.1.h.1. Date of Receipt. Immediately upon receipt of sworn charges against a member of his command, the officer exercising summary courts-martial jurisdiction will cause the hour and date of receipt to be entered in the space provided on the Charge Sheet (MCM, R.C.M. 403).

4.1.h.2. Informing Accused of Charges. If, when charges are received by the officer exercising summary courts-martial jurisdiction it appears that the accused has not been advised of the charges against him, the action prescribed in paragraph 4.1.f. will be taken.

4.1.h.3. Investigation. If the charges are so serious that it may be appropriate to forward them with a recommendation for trial by general courts-martial, the officer exercising summary courts-martial jurisdiction will appoint an officer to investigate the charges in accordance with Section 32, USCMJ.

4.1.h.4. Disposition of Charges by Trial. Unless competent superior authority has directed otherwise, the officer exercising summary court-martial jurisdiction may, as a result of preliminary inquiry or formal investigation, dismiss all or part of any charges that have been preferred. If he determines that some punishment should be adjudged and that trial by summary court-martial is appropriate, he should complete the Charge Sheet in the prescribed manner and transmit the charges and all supporting documents to the summary court-martial. If he is so empowered and determines that trial by special court martial is appropriate, he should complete the endorsement in the prescribed manner and transmit the charges and allied papers to the trial counsel of the court.

4.1.h.5. Forwarding Charges. When trial by a special or general court-martial is deemed appropriate and he is not empowered to convene a court for a trial of the case, the officer who exercises summary court-martial jurisdiction will forward the charges and necessary supporting documents (ordinarily through the chain of command) to the officer exercising the appropriate kind of court-martial jurisdiction in accordance with MCM, R.C.M. 401.

4.1.h.6. Service of Charges on Accused. Prior to the trial, a copy of the charge or charges must be served on the accused in accordance with MCM, R.C.M. 308, 602. The person who served the charges and the written order shall complete and sign the return of service on the bottom of the Charge Sheet.

4.2. Service of Charges.

4.2.a. General. Service of charges referred to trial by a general or special court-martial will be made by the trial counsel in the manner set forth in Section 35, USCMJ. Service of charges referred to trial by a summary court will be made by the summary court officer by personally presenting a copy of the Charge Sheet to the accused. At the same time or at any subsequent time the trial counsel or summary court will notify the accused as to the time and place of trial and order him to be present.

4.2.b. Convening Orders. Courts-martial are created by a convening order issued by the convening authority. The convening order shall designate the kind of court, the place and time it is to meet, members of the court, and, when appropriate, the military judge and members of the prosecution and defense. The provisions of MCM, R.C.M. 504 should be followed as much as practicable. (See Attachment 4).

4.2.c. Reference for Trial. Charges shall be referred for trial by courts-martial in accordance with the provisions of MCM, R.C.M. 601 as much as practicable.

4.3. Apprehension and Restraint.

4.3.a. Sections 8-11, USCMJ, Chapter 2, WVMCM and Chapter V, MCM will be followed as far as they are applicable.

4.3.b. Pretrial confinement in a place other than a military installation.

4.3.b.1. Pretrial confinement is never required by law. It may be imposed only when it is necessary to ensure the presence of the accused at trial or to prevent foreseeable serious misconduct, including any efforts at obstructing justice, and when lesser forms of restraint are inadequate. Pretrial confinement is not authorized without the prior approval of The Adjutant General. Facts concerning the proposed arrest of an individual will be forwarded in letter form and will include the information required in paragraph 25.

4.3.b.2. A military judge of a general or a special court-martial or the president of a special court-martial without a military judge; or the summary court officer may issue a warrant (See Attachment 2), directed to the sheriff of any county or to any law enforcement officer to apprehend the accused and bring him before the court-martial for trial.

4.3.b.3. The military judge of a general or a special court-martial, or the president of a special court-martial without a military judge; or the summary court officer will set the amount of bail, not to exceed four times the maximum fine which may be imposed by the particular court-martial. Bail must be furnished in the form of:

4.3.b.3.A. A deposit by the member or by some other person for him of cash with the bonding officer who will be responsible for its safe keeping.

4.3.b.3.B. A written undertaking by one or more persons to forfeit a sum of money equal to the amount of the bail if the defendant is in default for appearance.

4.3.b.3.C. Such other form as may be determined, to include personal recognizance.

W. Va. Code R. § 141-49-4