All RCMs

Question 1

Rule 104. Unlawful command influence

Answer 1

Rule 104. Unlawful command influence

No convening authority or commander may censure,
reprimand, or admonish a court-martial or other military tribunal or any member, military judge, or
counsel thereof, with respect to the findings or sentence
adjudged by the court-martial or tribunal, or
with respect to any other exercise of the functions of
the court-martial or tribunal or such persons in the
conduct of the proceedings.

Question 2

Rule 105. Direct communications:

a) convening authorities and staff judge
advocates
b) among staff judge advocates

Answer 2

Rule 105. Direct communications:

(a) Convening authorities shall at all times communicate
directly with their staff judge advocates in matters
relating to the administration of military justice.

(b) The staff judge advocate of any
command is entitled to communicate directly with
the staff judge advocate of a superior or subordinate
command, or with the Judge Advocate General.

Question 3

Rule 106. Delivery of military offenders to
civilian authorities

May members be delivered to civilian authorities?

When may they be placed in restraint for this purpose?

How long can they be restrained?

Answer 3

Rule 106. Delivery of military offenders to
civilian authorities

A member of the armed forces accused
of an offense against civilian authority may be
delivered, upon request, to the civilian authority for
trial.

1. Upon receipt of a duly issued warrant
2. Upon receipt of:
   a) Information establishing
   probable cause that the member committed an offense,
   and
   b) Upon reasonable belief that such restraint
   is necessary.
3. Such restraint may continue only for
   such time as is reasonably necessary to effect the
   delivery.

Question 4

Rule 301. Report of offense

(a) Who may report?
(b) To whom may reports be conveyed for disposition?

Answer 4

Rule 301. Report of offense
(a) Who may report. Any person may report an offense
subject to trial by court-martial.
(b) To whom reports conveyed for disposition. Ordinarily,
any military authority who receives a report
of an offense shall forward as soon as practicable
the report and any accompanying information to the
immediate commander of the suspect. Competent
authority superior to that commander may direct
otherwise.

Question 5

Rule 302. Apprehension: Who may apprehend any person subject to trial by court-martial?

Answer 5

Rule 302. Apprehension

(1 ) Military law enforcement officials. Security police, military police, master at arms personnel,
members of the shore patrol, and persons designated
by proper authorities to perform military criminal
investigative, guard, or police duties, whether subject
to the code or not, when in each of the foregoing
instances, the official making the apprehension
is in the execution of law enforcement duties;
(2) Commissioned, warrant, petty, and noncommissioned
officers. All commissioned, warrant, petty,
and noncommissioned officers on active duty or
inactive duty training;

Question 6

Rule 302. Apprehension: Grounds for apprehension.

Answer 6

(c) Grounds for apprehension. A person subject to
the code or trial thereunder may be apprehended for
an offense triable by court-martial upon probable
cause to apprehend. Probable cause to apprehend
exists when there are reasonable grounds to believe
that an offense has been or is being committed and
the person to be apprehended committed or is committing
it. Persons authorized to apprehend under
subsection (b)(2) of this rule may also apprehend
persons subject to the code who take part in quarrels,
frays, or disorders, wherever they occur.

Question 7

Rule 302. Apprehension: Definition

Answer 7

Rule 302. Apprehension

(1) Definition. Apprehension is the taking of a
person into custody.

Question 8

Rule 302. Apprehension: How may an apprehension may be made?

Answer 8

(d) How an apprehension may be made.

(1 ) In general. An apprehension is made by
clearly notifying the person to be apprehended that
person is in custody. This notice should be given
orally or in writing, but it may be implied by the
circumstances.
(2) Warrants. Neither warrants nor any other authorization shall be required for an apprehension under these rules except as required in subsection (e)(2) of this rule.
(3) Use of force. Any person authorized under
these rules to make an apprehension may use such
force and means as reasonably necessary under the
circumstances to effect the apprehension.

Question 9

Rule 302. Apprehension: Where can an apprehension be made?

Answer 9

(e) Any place except a private dwelling.

For private dwellings, we need either:

1) Consent
2) Exigent circumstances
3) Apprehension authorization or arrest warrant, and
4) Search authorization or search warrant when the suspect is in a dwelling of another person.

Question 10

Rule 303. Preliminary inquiry into reported

offenses

Answer 10

Rule 303. Preliminary inquiry into reported
offenses
Upon receipt of information that a member of the
command is accused or suspected of committing an
offense or offenses triable by court-martial, the immediate commander shall make or cause to be made
a preliminary inquiry into the charges or suspected
offenses.

Question 11

Rule 304. Pretrial restraint

What are the types of pretrial restraint?

Answer 11

Rule 304. Pretrial restraint
(a) Types of pretrial restraint. Pretrial restraint is
moral or physical restraint on a person’s liberty
which is imposed before and during disposition of
offenses. Pretrial restraint may consist of conditions
on liberty, restriction in lieu of arrest, arrest, or
confinement.

(1) Conditions on liberty: orders directing a person to do or refrain from doing specified acts
(2) Restriction in lieu of arrest: orders directing the person to remain within specified limits:
(3) Arrest. Non-punitive restriction often with modified/lessened military duties.

(4) Confinement. Pretrial confinement is physical
restraint, imposed by order of competent authority,
depriving a person of freedom pending disposition
of offenses. See R.C.M. 305.

Question 12

Rule 305. Pretrial confinement

When may a person be confined?

Answer 12

(d) When a person may be confined. No person may
be ordered into pretrial confinement except for probable cause. Probable cause to order pretrial confinement
exists when there is a reasonable belief that:

(1) An offense triable by court-martial has been
committed;
(2) The person confined committed it; and
(3) Confinement is required by the circumstances.

Question 13

Rule 305. Pretrial confinement: Advice to the accused upon confinement.

Answer 13

(e) Advice to the accused upon confinement. Each
person confined shall be promptly informed of:
(1) The nature of the offenses for which held;
(2) The right to remain silent and that any statement
made by the person may be used against the
person;
(3) The right to retain civilian counsel at no expense
to the United States, and the right to request
assignment of military counsel; and
(4) The procedures by which pretrial confinement
will be reviewed.

(f) Military counsel. If requested by the prisoner
and such request is made known to military authorities,
military counsel shall be provided to the prisoner
before the initial review under subsection (i) of
this rule or within 72 hours of such a request being
first communicated to military authorities, whichever
occurs first. Counsel may be assigned for the limited
purpose of representing the accused only during the
pretrial confinement proceedings before charges are
referred.

Question 14

Rule 305. Pretrial confinement: Hearing

Answer 14

(A) Decision. Not later than 72 hours after the
commander’s ordering of a prisoner into pretrial
confinement or, after receipt of a report that a member
of the commander’s unit or organization has
been confined, whichever situation is applicable, the
commander shall decide whether pretrial confinement will continue. A commander’s compliance
with this subsection may also satisfy the 48-hour
probable cause determination of subsection R.C.M.
305(i)(1) below, provided the commander is a neutral
and detached officer and acts within 48 hours of
the imposition of confinement under military control.
Nothing in subsections R.C.M. 305(d), R.C.M. 305(i)(1), or this subsection prevents a neutral and
detached commander from completing the 48-hour
probable cause determination and the 72-hour commander’s decision immediately after an accused is
ordered into pretrial confinement.

Question 15

Rule 305. Pretrial confinement: Requirements for confinement.

Answer 15

(B) The commander
shall direct the prisoner’s release from pretrial confinement except the command believes upon probable cause, that is, upon reasonable grounds, that:
(i) An offense triable by a court-martial has
been committed;
(ii) The prisoner committed it; and
(iii) Confinement is necessary because it is
foreseeable that:
(a) The prisoner will not appear at trial,
pretrial hearing, or investigation, or
(b ) The prisoner will engage in serious
criminal misconduct; and
(iv) Less severe forms of restraint are inadequate.

Question 16

Rule 305. Pretrial Confinement: 72-hour memorandum.

Answer 16

(C) 72-hour memorandum. If continued pretrial
confinement is approved, the commander shall prepare
a written memorandum that states the reasons
for the conclusion that the requirements for confinement
in subsection (h)(2)(B) of this rule have been
met. This memorandum may include hearsay and
may incorporate by reference other documents, such
as witness statements, investigative reports, or official
records. This memorandum shall be forwarded
t o t h e 7 - d a y r e v i e w i n g o f f i c e r u n d e r s u b s e c t i o n
(i)(2) of this rule. If such a memorandum was prepared
by the commander before ordering confinement,
a second memorandum need not be prepared;
however, additional information may be added to the
memorandum at any time.

Question 17

Rule 305. Pretrial Confinement: Procedures for review of pretrial confinement.

Answer 17

(i) Procedures for review of pretrial confinement.

(1 ) 48 hour probable cause determination. Review of the adequacy of probable cause to continue
pretrial confinement shall be made by a neutral and
detached officer within 48 hours of imposition of
confinement under military control. If the prisoner is
apprehended by civilian authorities and remains in
civilian custody at the request of military authorities,
reasonable efforts will be made to bring the prisoner
under military control in a timely fashion.

(2) 7-day review of pretrial confinement. Within
7 days of the imposition of confinement, a neutral
and detached officer appointed in accordance with
regulations prescribed by the Secretary concerned
shall review the probable cause determination and
necessity for continued pretrial confinement. In calculating the number of days of confinement for purposes of this rule, the initial date of confinement under military control shall count as one day and the
date of the review shall also count as one day.

Question 18

Rule 305. Nature of the 7-day review.

Answer 18

-review of the memorandum submitted by the prisoner’s commander
-Additional written matters
-The prisoner and the prisoner’s counsel, if any, shall be allowed to appear before the 7-day reviewing officer and make a statement,
-A representative of the command
may also appear before the reviewing officer to make a statement.

Upon completion of review, the reviewing officer shall
approve continued confinement or order immediate
release.

Question 19

Rule 306. Initial disposition

Answer 19

Rule 306. Initial disposition
(a) Who may dispose of offenses. Each commander
has discretion to dispose of offenses by members of
that command. Ordinarily the immediate commander
of a person accused or suspected of committing an
offense triable by court-martial initially determines
how to dispose of that offense. A superior commander may withhold the authority to dispose of
offenses in individual cases, types of cases, or generally.
A superior commander may not limit the discretion
of a subordinate commander to act on cases
over which authority has not been withheld.

Question 20

Rule 307. Preferral of charges

Answer 20

Rule 307. Preferral of charges
(a) Who may prefer charges. Any person subject to
the code may prefer charges.
(b) How charges are preferred; oath. A person who
prefers charges must:
(1) Sign the charges and specifications under oath
before a commissioned officer of the armed forces
authorized to administer oaths; and
(2) State that the signer has personal knowledge
of or has investigated the matters set forth in the
charges and specifications and that they are true in
fact to the best of that person’s knowledge and
belief.

Question 21

Rule 307. Preferral of charges:

When is a specification sufficient?

Answer 21

(3) Specification. A specification is a plain, concise,
and definite statement of the essential facts
constituting the offense charged. A specification is
sufficient if it alleges every element of the charged offense expressly or by necessary implication. Except
for aggravating factors under R.C.M 1003(d)
and R.C.M. 1004, facts that increase the maximum
authorized punishment must be alleged in order to
permit the possible increased punishment. No particular
format is required.

Question 22

Rule 308. Notification to accused of charges

Answer 22

Rule 308. Notification to accused of charges
(a ) Immediate commander. The immediate commander of the accused shall cause the accused to be
informed of the charges preferred against the accused,
and the name of the person who preferred the
charges and of any person who ordered the charges
to be preferred, if known, as soon as practicable.

Question 23

Rule 401. Forwarding and disposition of

charges in general

Answer 23

Rule 401. Forwarding and disposition of
charges in general

(a) Who may dispose of charges. Only persons authorized
to convene courts-martial or to administer
nonjudicial punishment under Article 15 may dispose
of charges. A superior competent authority may
withhold the authority of a subordinate to dispose of
charges in individual cases, types of cases, or
generally.
(b) Prompt determination. When a commander with
authority to dispose of charges receives charges, that
commander shall promptly determine what disposition will be made in the interest of justice and
discipline.
(c) How charges may be disposed of. Unless the
authority to do so has been limited or withheld by
superior competent authority, a commander may dispose
of charges by dismissing any or all of them,
forwarding any or all of them to another commander
for disposition, or referring any or all of them to a
court-martial which the commander is empowered to
convene. Charges should be disposed of in accordance
with the policy in R.C.M. 306(b).

Question 24

Rule 402. Action by commander not
authorized to convene courts-martial

What actions can these commanders take?

Answer 24

Rule 402. Action by commander not
authorized to convene courts-martial
When in receipt of charges, a commander authorized
to administer nonjudicial punishment but not
authorized to convene courts-martial may:
(1) Dismiss any charges; or
(2 ) Forward them to a superior commander for
disposition.

Question 25

Rule 201(f)

Answer 25

Limits jx for penetrative offenses to GCM for offenses after 23 June 14

Question 26

Rule 405. Preliminary Hearing

Answer 26

“Rule 405. Preliminary hearing
(a) In general. Except as provided in subsection (k) of this rule, no charge or specification m~y
be referred to a general court-martial for trial until completion of a preliminary hearing in
substantial compliance with this rule. A preliminary hearing conducted under this rule is not
intended to serve as a means of discovery and will be limited to an examination of those issues
necessary to determine whether there is probable cause to conclude ‘that an offense or offenses
have been committed and whether the accused committed it; to determine whether a court-
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martial would have jurisdiction over the offense( s) and the accused; to consider the form of the
charge(s); and to recommend the disposition that should be made of the charge(s). Failure to
comply with this rule shall have no effect on the disposition of the charge(s) if the charge(s) is
not referred to a general court-martial.