Page 225 - Trump Executive Orders 2017-2021

9928 Federal Register / Vol. 83, No. 46 / Thursday, March 8, 2018 / Presidential Documents

request relief on grounds that compliance with the subpoena or order is unreasonable,
oppressive or prohibited by law. The military judge shall review the request and shall either
order the person or service provider to comply with the subpoena or order, or modify or quash
the subpoena or order as appropriate. In a proceeding under this paragraph, the United States
shall be represented by an authorized counsel for the Government.
( 4) Pre-referral matters referred by an appellate court. When a Court of Criminal Appeals
or the Court of Appeals for the Armed Forces, in the course of exercising the jurisdiction of
such court, remands the case for a pre-referral judicial proceeding, a military judge may
conduct such a proceeding under this rule.
(c) Procedure for submissions. The Secretaty concerned shall prescribe the procedures for
receiving requests for proceedings under this rule and for detailing military judges to such
proceedings.
(d) Hearing••. Any hearing conducted under this rule shall be conducted in accordance with the
procedures generally applicable to sessions conducted under Article 39(a) and R.C.M. 803.
(e) Record A separate record of any proceeding under this rule shall be prepared and forwarded
to the convening authority or commander with authority to dispose of the charges or offenses in
the case. If charges are referred to trial in the case, such record shall be included in the record
of trial.
(f) A1ilitmy magistrate. If authorized under regulations of the Secretary concerned, a military
judge detailed to a proceeding under this rule, other than a proceeding under paragraph (b )(2),
may designate a military magistrate to preside and exercise the authority of the military judge
over the proceeding.

Rule 401. Forwarding and disposition of charges in general
(a) Who may di!)pose 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 ).
(1) Dismissal. When a commander dismisses charges further disposition under RC.M.
306( c) of the offenses is not barred.
(2) Fonmrding chatges.
(A) Fonvarding to a superior commander. When charges are forwarded to a superior
commander for disposition, the forwarding commander shall make a personal recommendation as
to disposition. If the forwarding commander is disqualified from acting as convening authority in
the case, the basis for the disqualification shall be noted.
(B) Other cases. When charges are forwarded to a commander who is not a superior of the
forwarding commander, no recommendation as to disposition may be made.
sradovich on DSK3GMQ082PROD with PRES DOCS VerDate Sep<11>2014 18:39 Mar 07, 2018 Jkt 244001 PO 00000 Frm 00042 Fmt 4705 23 Sfmt 4790 E:\FR\FM\08MRE0.SGM 08MRE0 ER08MR18.044</GPH>
(3) Referral~~ charges. See R.C.M. 403, 404, 407, 601.