DEPARTMENT OF THE AIR FORCE DAFI51-201

DEPARTMENT OF THE AIR FORCE

HEADQUARTERS UNITED STATES AIR FORCE

WASHINGTON, DC

DAFI51-201_DAFGM2024-03

3 October 2024

MEMORANDUM FOR DISTRIBUTION C

MAJCOMs/FLDCOMs/FOAs/DRUs

FROM: HQ USAF/JA

1420 Air Force Pentagon

Washington, DC 20330-1420

SUBJECT: Department of the Air Force Guidance Memorandum to Department of the Air

Force Instruction (DAFI) 51-201, Administration of Military Justice

By Order of the Secretary of the Air Force, this Department of the Air Force Guidance

Memorandum (DAFGM) immediately changes DAFI 51-201, Administration of Military Justice.

Compliance with this memorandum is mandatory. To the extent its directions are inconsistent

with other Department of the Air Force publications, the information herein prevails, in

accordance with Department of the Air Force Instruction (DAFI) 90-160, Publications and

Forms Management and Department of the Air Force Manual (DAFMAN) 90-161, Publishing

Processes and Procedures.

This guidance is applicable to the entire Department of the Air Force (DAF),

including uniformed members of the Regular Air Force, United States Space Force, Air Force

Reserve and Air National Guard, except where noted otherwise, all DAF civilian employees and

those with a contractual obligation to abide by the terms of DAF issuances.

This DAFGM renews previous guidance and adds requirements for notifying AF/JAJG

for Article 62, Uniform Code of Military Justice (UCMJ) matters, utilizing the Post-Trial

Processing Dashboard, and completing the AF/JAT End of Trial Documents and Article 140a,

UCMJ, checklists and certifications.

This memorandum becomes void after one year has elapsed from the date of this

memorandum, or upon incorporation by interim change (IC) or rewrite of the affected

publication, whichever is earlier.

CHARLES L. PLUMMER

Lieutenant General, USAF

The Judge Advocate General

Attachment:

Guidance Changes

DAFI51-201_DAFGM2024-03

Guidance Changes

Current guidance in DAFI 51-201, Administration of Military Justice, remains in effect with

the following changes:

Section 1A (Updated)—Overview

1.2. (Updated) Templates. All templates implementing the UCMJ and MCM that are

referenced in this instruction can be found on the Virtual Military Justice Deskbook (VMJD) 2.0

on Federal Legal Information Through Electronics (FLITE) Knowledge Management (KM) as

well as the AF/JAJM Outreach and Training page on Microsoft Teams (hereinafter AF/JAJM

Teams Page). Contact AF/JAJM for questions. Air Force JAG Corps personnel can access the

VMJD at https://kmjas.jag.af.mil/moodle/course/view.php?id=563 and the AF/JAJM Teams

Page at

https://dod.teams.microsoft.us/l/team/19%3adod%3a85ded12aa2304ea1ac0223d14119168e%40t

hread.tacv2/conversations?groupId=6db8414f-1fa7-48e6-9714-

7756762703b9&tenantId=8331b18d-2d87-48ef-a35f-ac8818ebf9b4. Non-JAG Corps personnel

requesting copies of templates should work with the relevant servicing legal office to obtain

needed templates and other documents.

12.14. (Updated) Forwarding the PHO Report to a Superior Convening Authority.

12.14.2. (DELETED)

19.14.1. (Updated) For offenses under command authority, trial counsel may file a notice of

appeal by the United States under Article 62, UCMJ, and R.C.M. 908, only after consultation

with AF/JAJG. The SJA decides whether to file such notice of appeal with the convening

authority’s concurrence. For offenses under OSTC authority, trial counsel may file a notice of

appeal only after consultation with AF/JAJG and with the concurrence of the detailed STC.

19.14.2. (Updated) DAF prosecutors are encouraged to consult with JAJG if, at any general or

special court-martial, any criteria for appeal under Article 62 is met. DAF prosecutors must

notify JAJG if, at a general court-martial under command authority: (1) a charge or specification

identifying a named victim is dismissed because of a military judge’s ruling adverse to the

government; or (2) a military judge issues an order or ruling which is case dispositive.

19.14.2.1. (Added) As soon as possible, but no later than eight hours after receiving the miliary

judge’s adverse ruling, prosecutors will telephone JAJG to notify JAJG of the ruling and discuss

the context of the ruling and will email JAJG the charge sheet, adverse ruling, relevant motions

written by all parties, and any additional information requested by JAJG. Once received, JAJG

will review the information and provide guidance on a potential motion for reconsideration or

appeal under Article 62.

19.14.2.2. (Added) For cases under command authority, the base SJA or designee is responsible

for JAJG notification.

DAFI51-201_DAFGM2024-03

Guidance Changes

19.14.3. (Updated) After filing a notice of appeal conforming to the requirements of R.C.M.

908(b) with the military judge and after initial notification to AF/JAJG, trial counsel sends to

AF/JAJG within 20 days the following:

Section 19K (Added)—End of Trial Documents Checklist.

19.29. (Added) End of Trial Documents Checklist. For all special and general courts-martial,

practitioners are required to use the AF/JAT End of Trial Documents Checklist, located on the

VMJD. Immediately at the conclusion of trial, trial counsel and the court reporter will verify, in

person, that Trial Counsel has physical and complete possession of all documents and items on

the checklist. Both Trial Counsel and the Court Reporter will sign and date the checklist

immediately following trial, after verifying the physical presence of all required documents and

items immediately after trial concludes. If trial concludes after the end of normal duty hours, the

checklist and verification will occur no later than the morning following trial. See, Rule for

Courts-Martial 1112(b).

20.47.3. (Updated) Certification. Prior to certification of the transcript by the court reporter, the

court reporter must forward the transcript to the trial counsel, who examines it for accuracy and

signs a memorandum verifying the examination was accomplished. (T-1) Trial counsel must

complete their examination within 14 calendar days of receipt from the court reporter. A sample

memorandum is located in DAFMAN 51-203. The SJA must also afford defense counsel 14

calendar days to examine the transcript before certification. (T-0) Time for trial and defense

counsel to conduct their examination runs concurrently, starting from the day each receives the

transcript from the court reporter. Where defense counsel does not provide comments or edits on

the transcript prior to certification, the reason(s) should be attached to the record. The transcript

must be certified by the court reporter(s) detailed to the proceeding and included in the ROT

prior to forwarding for appellate review. (T-0) For certification requirements, refer to DAFMAN

51-203.

Section 20O (Added)—Post-Trial Processing Dashboard.

20.62. (Added) Post-Trial Processing Dashboard. Practitioners are required to use the Post-

Trial Processing Dashboard to track all post-trial processing timelines. MAJCOMs and

FLDCOMs are responsible for Post-Trial Processing Dashboard entries, unless otherwise

delegated. The link for the Post Trial Processing Dashboard, Dashboard User Guidance, and

trainings can be found on the VMJD.

Section 20M (Updated)—Excess Leave

20.53.6.2. (Added) If the member is operationally gained by AFSFC, the consolidated brig will

complete the excess leave paperwork upon release from confinement.

DAFI51-201_DAFGM2024-03

Guidance Changes

Section 23B (Updated)—Composition of an SCM

23.8. (Updated) Summary Court-Martial Officer (SCMO). An impartial, RegAF or Space

Force commissioned officer presides over an SCM as the SCMO. A Reserve commissioned

officer on active duty or an ANG commissioned officer on active duty in federal service may

serve as an SCMO. The SCMO must be impartial. Before appointing an officer to serve as an

SCMO, the convening authority should consider the appointment in the context of the officer’s

normally assigned duties and assess whether the SCMO’s impartiality could be questioned based

on the SCMO’s relationship with the case, the parties, and the base legal office. A commanding

officer in the accused’s chain of command may not serve as the SCMO unless that commanding

officer is the only commissioned officer present with a command or detachment in accordance

with Article 24, UCMJ, and R.C.M. 1301.

Section 23F (Updated)—Post-Trial Procedure (R.C.M. 1306)

23.16.1. (Added) If correction to the SJA’s first indorsement is required, correct in accordance

with paragraph 21.13 and redistribute in accordance with paragraph 23.17.

Section 24A (Updated)—Appellate Defense Counsel

24.3.4. (Updated) In the event of withdrawal, appellate defense counsel must file a motion with

the appropriate appellate court. If the appellate court grants the motion, AF/JAJM will notify the

original GCMCA SJA to complete an Article 65(d), UCMJ, review conducted in accordance

with R.C.M. 1201 and paragraph 24.16. A Certification of Final Review (CFR) will need to be

completed by the responsible authority in accordance with Chapter 27.

Section 24C (Updated)—Judge Advocate Review of Summary Courts-Martial (Article 64,

UCMJ; R.C.M. 1307)

24.8.3.3. (Updated) The GCMCA takes further action in accordance with R.C.M. 1307(e) and

Article 64(c), UCMJ, and the review and action are included in the ROT. There will be no

additional notation on the DD Form 490 and no additional notation on the DD Form 2329.

Section 24G (Updated)—Petition for New Trial (Article 73, UCMJ; R.C.M. 1210)

24.25.2.1. (Updated) If the petitioner’s case is pending before AFCCA, AF/JAJM forwards the

following documents to the Court: the signed petition and supporting documents, and the original

ROT. AF/JAJM also forwards a copy of the petition and supporting documents to appellate

defense and appellate government counsel. R.C.M 1210(e).

DAFI51-201_DAFGM2024-03

Guidance Changes

Chapter 27 (Updated)—CERTIFICATION OF FINAL REVIEW

27.1.3. (Added) In courts-martial in which the member waived or withdrew from appellate

review, the original GCMCA SJA is responsible for accomplishing the CFR except for cases

falling under paragraph 27.1.2.

Section 29B (Updated)—Criminal History Record Information (CHRI) and Fingerprint

Collection and Submission (28 U.S.C. § 534, Acquisition, preservation, and exchange of

identification records and information; appointment of officials; 28 C.F.R. § 20.30, et seq.,

Federal Systems and Exchange of Criminal History Record Information; DoDI 5505.11)

29.10. (Updated) Criminal History Record Information. CHRI reported in accordance with

DoDI 5505.11 and DAFMAN 71-102 consists of identifiable descriptions of individuals; initial

notations of arrests, detentions, indictments, and information or other formal criminal charges;

and any disposition arising from any such entry (e.g., acquittal, sentencing, NJP, or

administrative discharge).

29.12. (Updated) Disposition Data. The DAF, through DAF-CJIC, OSI, and Security Forces,

is responsible for updating disposition data for any qualifying offense for which there was

probable cause. This disposition data merely states what the ultimate disposition of any action

taken was regarding each qualifying offense. The disposition includes acquittals, convictions,

sentencing, NJP, and certain types of discharge. Failure to comply with this section will result in

inaccurate disposition data, which can have adverse impacts on individuals lawfully indexed in

III.

29.19.1. (Updated) The final disposition (e.g., conviction at GCM or SPCM, acquittal,

dismissal of charges, conviction of a LIO, sentence data, NJP) is submitted by OSI or Security

Forces for each qualifying offense reported in III or NCIC. OSI or Security Forces, whichever is

applicable, obtains the final disposition data from the legal office responsible for advising on

disposition of the case (generally the servicing base legal office). See DAFMAN 71-102, Table

1.1 for Disposition Documentation Requirements. If an accused was arraigned at a court-martial,

the final disposition is memorialized on the STR and EoJ. A first indorsement signed by the SJA

must accompany the STR and EoJ. Servicing legal offices must provide the DAF Form 239 and

the appropriate disposition documents to DAF-CJIC within three duty days of completion.

Section 29D (Updated)—Possession or Purchase of Firearms Prohibited (18 U.S.C. §§ 921-

922, Definitions; Unlawful acts; 27 C.F.R. § 478.11)

29.30.7. (Updated) Persons convicted of a crime of misdemeanor domestic violence (the

“Lautenberg Amendment”) at a GCM or SPCM. See 18 U.S.C. § 922(g)(9). Note: Persons

convicted of felony crimes of domestic violence at a GCM are covered under 18 U.S.C. §

922(g)(1).

DAFI51-201_DAFGM2024-03

Guidance Changes

Section 29E (Updated)—Distribution of Court-Martial Data for Indexing Purposes

29.35.10. Other final disposition documentation in cases not referred to trial where the offense

investigated is a qualifying offense under Sections 29B-D of this chapter (e.g., decision not to

refer certain sexual assault offenses to trial in accordance with paragraph 10.2; NJP records in

accordance with DAFI 51-202; notification of administrative discharge where the basis is a

qualifying offense; approval of a request for discharge, resignation, or retirement in lieu of trial

by court-martial). There is no requirement to provide administrative paperwork (e.g. Letters of

Reprimand, Admonishment, or Counseling).

Section 31A (Updated)—General Information

31.3.1. (Updated) AF/JA is the release authority for data collected and stored in DCMS-

AMJAMS and the products they may generate. This includes data in the OSTC module.

Section 31D (Updated)—SIRs and Covered Offense Notifications

31.10. (Updated) Reporting Special Interest Cases. Certain cases involving DAF members

generate interest within Headquarters DAF because of the nature of the offense, the subject’s

grade, or some other reason. SJAs must be sensitive to SIR requirements.

31.11. Responsibilities. Reporting special interest cases in DCMS is a base-level responsibility.

Reports must be prepared and forwarded to AF/JAJM within one duty day of learning of the

incident by the base legal office responsible for the case or supporting the subject’s unit of

assignment. If a base legal office learns of a SIR case but another office is responsible for it, the

base legal office with knowledge of the case should inform the responsible legal office. Legal

office reporting responsibilities do not preclude or pre-empt and should not precede

commanders’ reporting responsibilities or command authorities. The SJA should coordinate SIR

reporting, especially initial reports, with the wing commander or equivalent authority.

31.12. (Updated) Requirements. SIRs must be created in the circumstances outlined in

paragraphs 31.12.1 – 31.12.3. MAJCOM/FLDCOM and NAF SJAs may not impose additional

SIR requirements without TJAG approval. However, this paragraph does not preclude

MAJCOM/FLDCOM SJAs from notifying senior JAG Corps leaders of cases that may not fit

within the circumstances specifically listed below. MAJCOM/FLDCOM SJAs must exercise

their judgment in making such notifications.

31.12.1. (Updated) Select Officer and Senior Enlisted Leader (SEL) Subjects. Regardless of

offense, report all allegations of misconduct resulting in an investigation involving officers in the

grade of O-6 or above, G-Series commanders (exception: section commanders), first sergeants,

enlisted members in the grade of E-9, and SELs at group-level or higher.

DAFI51-201_DAFGM2024-03

Guidance Changes

31.12.2. (Updated) Serious Crimes. Regardless of the subject’s grade, report all cases

involving the following crimes, including attempts, conspiracies, and solicitations to commit

these crimes: espionage, subversion, aiding the enemy, sabotage, spying, or violations of

punitive regulations or statutes regarding the handling of classified information or the foreign

relations of the United States.

31.12.2.1. (DELETED)

31.12.2.2. (DELETED)

31.12.2.3. (DELETED)

31.12.2.4. (DELETED)

31.12.2.5. (DELETED)

31.12.2.6. (DELETED)

31.12.2.7. (DELETED)

31.12.2.8. (DELETED)

31.12.2.9. (DELETED)

31.12.3. Cases Involving Command or Media Interest.

31.12.3.1. (DELETED)

31.12.3.2. (DELETED)

31.13. What to Report. Use DCMS-AMJAMS to generate the SIR, which must include case

details, including a description of the alleged offenses, dates and locations, UCMJ articles and

specifications, media interest, investigating agency, next steps, and any unusual or significant

features of the case. Identify missing information and follow up as soon as possible.

31.13.1. If at the time of an incident, the alleged perpetrator is unidentified, report the case to

AF/JAJM via email.

31.13.2. Ensure law enforcement sensitive investigative information is not included in the SIR

without concurrence of the OSI Detachment Commander/Special Agent-in-Charge or

investigating agency.

DAFI51-201_DAFGM2024-03

Guidance Changes

31.13.3. For matters investigated by CDI, IG, or Military Equal Opportunity (MEO), summarize

the allegations and, when the investigation is done, identify substantiated and not-substantiated

findings.

31.13.4. For cases disposed of by NJP or administrative action, identify the wrongdoing or

offenses alleged (e.g., “On (date), Subject received NJP/letter of reprimand (LOR) for…”).

31.13.5. For cases handled by civilian authorities, include information that identifies the

investigative and prosecutorial authorities, court, jurisdiction, and a summary of the charges,

pleas, findings and sentence.

31.13.6. If a case was closed without action, explain why.

31.14. When to Submit a SIR.

31.14.1. Initial SIR. Within one duty day of learning of an incident that requires a SIR. If an

initial report does not provide sufficient information to determine whether a SIR is required, the

installation legal office should work with investigators to gather additional information and

submit a SIR within one duty day of receiving sufficient information to determine a SIR is

required. If DCMS-AMJAMS cannot be accessed within one duty day, submit case information

using the most expeditious means possible (likely email), and input the case into DCMS-

AMJAMS as soon as possible.

31.14.2. Final SIR. Submit a final SIR upon completion of the court-martial, NJP or

administrative action, including the decision whether to file NJP action in an Officer Selection

Record or Senior Noncommissioned Officer Selection Record, or as directed upon case closure.

31.15. How to Report.

31.15.1. Use DCMS-AMJAMS to generate the SIR. Complete the SIR and Special Identifier

tabs in DCMS-AMJAMS.

31.15.2. Transmitting SIRs to AF/JAJM. Generate a PDF copy of the SIR in DCMS-AMJAMS

and send it via encrypted email to [email protected]. Further instructions are

available on the VMJD and AF/JAJM Teams page.

31.15.3. Initial. When submitting an initial SIR, use the following subject line/title: Controlled

Unclassified Information (CUI) NEW SIR: CASE ID # - RANK SURNAME – BASE.

31.15.4. Final. When submitting a final SIR, use the following subject line/title: Controlled

Unclassified Information (CUI) FINAL SIR: CASE ID # - RANK SURNAME – BASE.

DAFI51-201_DAFGM2024-03

Guidance Changes

31.15.5. (Added) Covered Offense Notifications. When sending a covered offense notification

to OSTC, also copy the AF/JAJM SIR Workflow [email protected] and the

servicing NAF/MAJCOM/FLDCOM legal offices.

Section 34C (Updated)—Reporting Cases Involving Foreign National DAF Members

34.7. (Updated) When to Report. Consistent with AFI 51-707, Consular Protection of

Foreign Nationals Subject to the Uniform Code of Military Justice, notify AF/JAO when a

foreign national DAF member is:

34.7.1. Apprehended under circumstances likely to result in confinement or trial by court-

martial, and states that they are a foreign national;

34.7.2. Ordered into arrest or confinement;

34.7.3. Held for trial with or without any form of restraint; or

34.7.4. Pending court-martial charges that have been referred for trial.

34.8. What to Report. Include the following:

34.8.1. (Updated) The name, grade, SSN, nationality, organization, and station of the member;

34.15. (Updated) Compliance Review. MAJCOM/FLDCOM legal offices will review their

compliance with Article 140a, UCMJ, every 6 months by reviewing both their compliance with

the 45-day metric and their compliance with the requirements set out in the 140a checklist,

located on the VMJD. Results of the compliance review will be reported to AF/JAJM no later

than 1 January and 1 July of each calendar year. Results will include cases in which the Article

140a metric date falls within the 6-month review period and include case name, verdict date,

ROT certification date, Article 140a completion date, and checklist certification.

34.17. (Added) Certification. All installation, MAJCOM, and FLDCOM legal offices must

complete an Article 140a checklist, located on the VMJD, for each case. Installation and

MAJCOM or FLDCOM personnel must certify on the checklist that all steps are complete by

signing and dating the bottom of the checklist.

BY ORDER OF THE

SECRETARY OF THE AIR FORCE

DEPARTMENT OF THE AIR FORCE

INSTRUCTION 51-201

24 JANUARY 2024

Law

ADMINISTRATION OF MILITARY

JUSTICE

COMPLIANCE WITH THIS PUBLICATION IS MANDATORY

ACCESSIBILITY: Publications and forms are available on the e-Publishing website at

www.e-Publishing.af.mil for downloading or ordering.

RELEASABILITY: There are no releasability restrictions on this publication.

OPR: AF/JAJM Certified by: AF/JAJ

(Brig Gen Gail E. Crawford)

Supersedes:

DAFI 51-201_DAFGM2023-01, 28 September 2023

Pages: 264

This instruction implements Department of the Air Force Policy Directive (DAFPD) 51-2, Military

Justice and Other Criminal Proceedings. It provides guidance and procedures for administering

military justice. Users of this instruction must familiarize themselves with the Uniform Code of

Military Justice (UCMJ), Manual for Courts-Martial (MCM), including the Rules for Courts-

Martial (R.C.M.) and Military Rules of Evidence (M.R.E.), and applicable Department of Defense

(DoD) guidance. This publication is applicable to the entire Department of the Air Force (DAF),

including uniformed members of the Regular Air Force, United States Space Force, Air Force

Reserve and Air National Guard, except where noted otherwise, all DAF civilian employees and

those with a contractual obligation to abide by the terms of DAF issuances. Commands may

supplement this instruction only with the prior, written approval of the Military Justice Law and

Policy Division (AF/JAJM), 1500 West Perimeter Road, Suite 1130, Joint Base Andrews,

Maryland 20762; DSN 612-4820. This Instruction requires the collection and or maintenance of

information protected by the Privacy Act of 1974 authorized by DoD Directive (DoDD) 5400.11,

DoD Privacy Program. The applicable System of Records Notice (SORN), “Military Justice and

Civilian Criminal Case Records,” DoD 0006, is available at

https://www.federalregister.gov/documents/2021/05/25/2021-10367/privacy-act-of-1974-

system-of-records. Refer recommended changes and questions about this publication to the

Office of Primary Responsibility using the DAF Form 847, Recommendation for Change of

Publication; route DAF Forms 847 from the field through major command (MAJCOM) or field

command (FLDCOM) functional managers. The authorities to waive requirements in this

publication are identified with a Tier (“T-0, T-1, T-2, T-3”) number following the compliance

statement. See Department of the Air Force Manual (DAFMAN) 90-161, Publishing Processes

2 DAFI51-201 24 JANUARY 2024

and Procedures, for a description of the authorities associated with the Tier numbers. For tiered

items, submit requests for waivers through the chain of command to the appropriate Tier waiver

approval authority. All waivers of non-tiered compliance statements must be submitted to

AF/JAJM, the publication OPR. Commanders may not waive non-tiered compliance items in this

instruction. See DAFMAN 90-161, paragraph 9.2.2. Ensure all records generated as a result of

processes prescribed in this publication adhere to Air Force Instruction (AFI) 33-322, Records

Management and Information Governance Program, and are disposed in accordance with the Air

Force Records Disposition Schedule, which is located in the Air Force Records Information

Management System. The use of the name or mark of any specific manufacturer, commercial

product, commodity, or service in this publication does not imply endorsement by the Department

of the Air Force.

SUMMARY OF CHANGES

This document has been substantially revised and must be completely reviewed. This document

implements requirements contained in the Fiscal Year (FY) 2022 National Defense Authorization

Act (NDAA) and FY 2023 NDAA, as well as Executive Order (EO) 14103, 2023 Amendments to

the Manual for Courts-Martial, United States. It contains guidance to implement establishment

of the Office of the Special Trial Counsel (OSTC) and guidance concerning UCMJ amendments

to sentencing rules and appellate rights.

Chapter 1—OVERVIEW, TEMPLATES, ROLES & RESPONSIBILITIES 26

Section 1A—Overview 26

1.1. Overview. ................................................................................................................. 26

1.2. Templates. ................................................................................................................ 26

1.3. Mandatory Use of Court-Martial Checklists. ........................................................... 26

Section 1B—Roles and Responsibilities 27

1.4. Secretary of the Air Force (SecAF). ........................................................................ 27

1.5. The Judge Advocate General. .................................................................................. 27

1.6. Office of Special Trial Counsel (OSTC). ................................................................ 27

1.7. Military Justice and Discipline Directorate (JAJ). ................................................... 27

1.8. Trial Judiciary (AF/JAT). ........................................................................................ 31

1.9. Court Reporter. ........................................................................................................ 32

1.10. SJA. .......................................................................................................................... 32

1.11. Court-Martial Convening Authority. ....................................................................... 32

1.12. Installation Commanders’ Logistical Support. ........................................................ 33

1.13. Unit Commander. ..................................................................................................... 34

1.14. FSS/CC. ................................................................................................................... 34

DAFI51-201  24 JANUARY 2024  3 
Section 1C—Additional Requirements and Delegations Affecting the Staff Judge Advocate    34 
15.  Title of Staff Judge Advocate. .................................................................................   34 
16.  Acting as the Staff Judge Advocate. ........................................................................   34 
17.  Convening Authority Delegation of Military Justice Administrative Duties. .........   34 
18.  Signing on Behalf of the Convening Authority. ......................................................   34 
19.  Staff Judge Advocate Rating Chain. ........................................................................   34 
Section 1D—Applicability of This Instruction    34 
20.  General Rule. ...........................................................................................................   34 
21.  Effective Dates. ........................................................................................................   34 
22.  Article 60 Authority. ................................................................................................   35 
23.  Offenses Under OSTC Authority.............................................................................   35 
Chapter 2—COURT-MARTIAL CONVENING AUTHORITY    36 
Section 2A—DAF Court-Martial Convening Authority (Articles 22, 23, and 24, UCMJ; R.C.M. 
504)    36 
1.  General Court-Martial Convening Authority (GCMCA). .......................................   36 
2.  Special Court-Martial Convening Authority (SPCMCA). .......................................   36 
3.  Summary Court-Martial Convening Authority (SCMCA). .....................................   37 
Section 2B—UCMJ Jurisdiction (Articles 2 and 3, UCMJ; R.C.M. 201, 202, 203, and 204)    37 
4.  Exercise of UCMJ Jurisdiction. ...............................................................................   37 
5.  Members of Department of Air Force Tenant Organizations. .................................   37 
6.  Jurisdiction of Air Force District of Washington (AFDW). ....................................   38 
7.  Jurisdiction of Space Operations Command (SpOC). .............................................   39 
8.  Members of the Air Force Assigned to Headquarters Department of the Air 
Force, Joint Staff, or Office of the Secretary of Defense. ........................................   39 
9.  Members of the Space Force Assigned to Headquarters Department of the Air 
Force, Joint Staff, or Office of the Secretary of Defense. ........................................   39 
10.  North Atlantic Treaty Organization (NATO). .........................................................   39 
11.  Joint Commands and Other Armed Forces. .............................................................   39 
12.  General Officers. ......................................................................................................   40 
13.  United States Air Force Academy (USAFA) Cadets. ..............................................   40 
14.  Jurisdiction over Separated and Retired Members. .................................................   40 
15.  Jurisdiction Involving Federal Agencies. ................................................................   42 
16.  Jurisdiction Involving State or Foreign Prosecution Interest (R.C.M. 201(d)). .......   42 

4  DAFI51-201  24 JANUARY 2024 
Chapter 3—MATTERS SPECIFIC TO THE AIR RESERVE COMPONENT    45 
Section 3A—Overview    45 
3.1.  Air Reserve Component (ARC) References. ...........................................................   45 
3.2.  ARC Status. .............................................................................................................   45 
Section 3B—Jurisdiction, UCMJ Authority, and Recall Process    45 
3.3.  Court-Martial Jurisdiction over ARC Members. .....................................................   45 
3.4.  Court-Martial Considerations for ARC Members. ..................................................   47 
3.5.  Recall to Duty Considerations for ARC Members. .................................................   48 
3.6.  ARC Member Recall Authority. ..............................................................................   48 
3.7.  Additional Process Requirements to Recall an ARC Member. ...............................   49 
3.8.  Secretarial Approval of ARC Member Recall for Court-Martial. ...........................   51 
3.9.  NJP Jurisdiction Over ARC Members. ....................................................................   51 
3.10.  Other Administrative Action....................................................................................   51 
Section 3C—Investigations and Initial Disposition    52 
3.11.  Investigations Involving ARC Members. ................................................................   52 
3.12.  Search Authorizations (M.R.E. 315). .......................................................................   52 
3.13.  Initial Disposition Authority of Qualifying Sex-Related Offense Allegation(s) 
under Command Authority. .....................................................................................   52 
3.14.  Initial Disposition Authority for Offenses Under OSTC Authority Involving 
ARC Members. ........................................................................................................   53 
Section 3D—Pre-Trial Matters    54 
3.15.  Detailing ARC Members to Courts-Martial (R.C.M. 501, 502, 503, 912A; 
Articles 25, 29, UCMJ). ...........................................................................................   54 
3.16.  IMDC Requests. .......................................................................................................   54 
3.17.  Plea Agreement Considerations with ARC Members. .............................................   54 
Section 3E—Post-Trial and Punishment Considerations for ARC Members.    54 
3.18.  Post-Trial and Punishment Considerations for ARC Members. ..............................   54 
Section 3F—Victim Witness Assistance Program and ARC Members    55 
3.19.  General Provision. ...................................................................................................   55 
3.20.  Determining the Appropriate Local Responsible Official (LRO). ...........................   55 
Section 3G—ARC Judge Advocate Requirements    55 
3.21.  ARC Judge Advocates Serving as Counsel. ............................................................   55 
3.22.  ARC Judge Advocates Serving as PHOs. ................................................................   56 

DAFI51-201  24 JANUARY 2024  5 
3.23.  ARC Judge Advocates Serving as Summary Court-Martial Officers (SCMOs). ....   56 
Section 3H—ARC Mandatory Legal Training    56 
3.24.  SAPR Program First Responder Training for Legal Personnel. ..............................   56 
3.25.  Article 137 Briefing Requirements for ARC Members. ..........................................   56 
Section 3I—ARC DCMS-AMJAMS Issues    57 
3.26.  Obtaining Inputs. .....................................................................................................   57 
3.27.  Special Interest Reports (SIRs). ...............................................................................   57 
Chapter 4—INITIAL STEPS UPON NOTIFICATION OF AN OFFENSE:  IPST, CIP, 
VICTIM SUPPORT, PROTECTIVE ORDERS, AND ADMINISTRATIVE 
HOLDS    58 
Section 4A—Overview    58 
4.1.  General Provision. ...................................................................................................   58 
4.2.  Offenses under Command Authority. ......................................................................   58 
4.3.  Offenses under OSTC Authority. ............................................................................   58 
Section 4B—Investigation and Prosecution Support Teams (IPST)    59 
4.4.  General Provision. ...................................................................................................   59 
4.5.  Initial Notification. ...................................................................................................   59 
4.6.  IPST Composition and Qualifications. ....................................................................   60 
4.7.  Consultations. ..........................................................................................................   60 
Section 4C—Criminal Investigation and Prosecution (CIP) Capability    61 
4.8.  CIP Capability. .........................................................................................................   61 
4.9.  Activation of CIP Capability. ..................................................................................   61 
4.10.  Composition of the CIP Capability. .........................................................................   61 
4.11.  CIP Capability Process. ...........................................................................................   62 
4.12.  Case Development. ..................................................................................................   62 
Section 4D—Victim Support During Investigations    63 
4.13.  Victim Support. ........................................................................................................   63 
Section 4E—No Contact and Military Protective Orders    64 
4.14.  General Provision. ...................................................................................................   64 
4.15.  No-Contact Orders. ..................................................................................................   64 
4.16.  Military Protective Orders (MPOs). ........................................................................   64 
4.17.  Command Review of Military Protective Orders. ...................................................   66 

6  DAFI51-201  24 JANUARY 2024 
4.18.  Military Protective Orders and Unrestricted Sexual Assault Reports. .....................   68 
4.19.  Military Protective Orders and Unrestricted Domestic Violence Reports. ..............   68 
Section 4F—Legal Office Periodic Notification to Victims    68 
4.20.  Monthly Notice Required. .......................................................................................   68 
Section 4G—Administrative Holds    68 
4.21.  Administrative Holds. ..............................................................................................   68 
4.22.  Accused Members Assigned to CONUS. ................................................................   69 
4.23.  Directed ....................................................................................................................   69 
Section 4H—Proof Analyses, Sensitive Case Information, and Lessons Learned    69 
4.24.  Proof Analyses. ........................................................................................................   69 
4.25.  Disclosure and Reporting of Sensitive Case Information. .......................................   70 
4.26.  Lessons Learned. .....................................................................................................   70 
Chapter 5—COMPETENT SEARCH AUTHORITIES    71 
5.1.  Appointment of Other Competent Search Authorities (CSA) (Military Rule of 
Evidence 315(d)(3)). ................................................................................................   71 
5.2.  Qualifications. ..........................................................................................................   71 
5.3.  Authority. .................................................................................................................   71 
5.4.  Non-DAF Military Installations. ..............................................................................   71 
Chapter 6—OBTAINING EVIDENCE IN SUPPORT OF CRIMINAL INVESTIGATIONS   72 
Section 6A—Overview of Authorities for Search and Seizure    72 
6.1.  Authorization for Search and Seizure. .....................................................................   72 
Section 6B—Search Authorizations (M.R.E. 315)    72 
6.2.  Search Authority. .....................................................................................................   72 
Section 6C—United States Mail and Government Information Systems    74 
6.3.  United States Mail. ..................................................................................................   74 
6.4.  Government Information Systems. ..........................................................................   74 
Section 6D—Investigative Subpoenas    74 
6.5.  Overview. .................................................................................................................   74 
Section 6E—Stored Communications Act Data (R.C.M. 309 and 703A; Article 30(a), UCMJ)    77 
6.6.  General Provision. ...................................................................................................   77 
6.7.  Warrants for Stored Communications Act Data. .....................................................   78 
6.8.  Court Order for Stored Communications Act Data. ................................................   79 

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6.9.  Non-Disclosure Order to Electronic Communications Service or Remote 
Computing Service. .................................................................................................   79 
6.10.  Ex Parte or In Camera Nature of the Proceeding. ....................................................   79 
6.11.  Consequences of Failure to Comply. .......................................................................   80 
6.12.  Defense Requests for Warrants or Orders for Wire or Electronic 
Communications. .....................................................................................................   80 
6.13.  Requests for Relief from Subpoena or Other Process. .............................................   80 
6.14.  Post-Referral Requests for Warrants or Orders. ......................................................   80 
Section 6F—Immunity (R.C.M. 704, M.R.E. 301(d)).    80 
6.15.  Grants of Immunity. .................................................................................................   80 
Chapter 7—PRE-REFERRAL JUDICIAL PROCEEDINGS (ARTICLE 30A, UCMJ; 
R.C.M. 309)    83 
7.1.  General Provision. ...................................................................................................   83 
7.2.  Detailing of Military Judges for Pre-Referral Proceedings. ....................................   83 
7.3.  Covered Matters. ......................................................................................................   83 
7.4.  Pre-Referral Investigative Subpoenas. .....................................................................   83 
7.5.  Pre-Referral Warrants or Orders for Stored Communications Act Data. ................   83 
7.6.  Requests for Relief from Subpoena or Other Process. .............................................   83 
7.7.  Pre-Referral Appointment of a Representative Pursuant to Article 6b. ...................   83 
7.8.  Recording of Pre-Referral Proceedings. ..................................................................   84 
Chapter 8—RELEASE OF INFORMATION    85 
Section 8A—Provision of Information to Defense Counsel    85 
8.1.  Release of Information to Defense Counsel. ...........................................................   85 
8.2.  Distinction Between Discovery and Freedom of Information Act (FOIA)/Privacy 
Act Release. .............................................................................................................   85 
8.3.  Coordination for Review and Analysis of Child Sexual Abuse Material. ...............   85 
Section 8B—Provision of Information to Victims’ Counsel    86 
8.4.  Release of Records to VCs. .....................................................................................   86 
8.5.  SJA Release of Information. ....................................................................................   86 
8.6.  Victims’ Counsel Responsibilities. ..........................................................................   87 
Section 8C—Confidential or Otherwise Protected Information    87 
8.7.  Restricted and Unrestricted Reports of Sexual Assault and Sexual Harassment. ....   87 
8.8.  Restricted and Unrestricted Reports of Domestic Abuse. ........................................   88 

8  DAFI51-201  24 JANUARY 2024 
8.9.  Confidential Drug or Alcohol Abuse Treatment Records. ......................................   89 
8.10.  Limited Privilege Suicide Prevention (LPSP) Program. ..........................................   89 
Chapter 9—PRETRIAL CONFINEMENT (R.C.M. 305)    92 
9.1.  General Provision. ...................................................................................................   92 
9.2.  Limitation on Confinement Location. ......................................................................   92 
9.3.  Required Notifications. ............................................................................................   92 
9.4.  Procedures. ...............................................................................................................   92 
9.5.  48-Hour Probable Cause Determination (R.C.M. 305(j)(1)). ..................................   92 
9.6.  72-Hour Commander’s Decision and Memorandum (R.C.M. 305(i)(2)(C)). ..........   93 
9.7.  Pretrial Confinement Review (R.C.M. 305(j)(2)). ...................................................   93 
9.8.  Review by military judge. ........................................................................................   94 
9.9.  Pretrial Restraint Upon Release From Confinement................................................   94 
9.10.  Suicide Prevention. ..................................................................................................   94 
9.11.  Pretrial Determination of Mental Competence. .......................................................   95 
Chapter 10—CONSIDERATIONS PRIOR TO DETERMINING DISPOSITION OF 
CHARGES    96 
Section 10A—Victims of Sexual Offenses: Views on Prosecutorial Jurisdiction    96 
10.1.  Consideration of Victim’s Views on Jurisdiction and Disposition (R.C.M. 306(e) 
and R.C.M. 306A(d)). ..............................................................................................   96 
Section 10B—Initial Disposition of Offenses under OSTC Authority (R.C.M. 306A)    97 
10.2.  Disposition Authority. .............................................................................................   97 
10.3.  Commander Disposition Input. ................................................................................   97 
10.4.  Deferral. ...................................................................................................................   97 
Section 10C—Initial Disposition of Qualifying Sex-Related Offense Allegation(s) Committed 
Prior to 28 December 2023 and Under Command Authority (R.C.M. 306)    98 
10.5.  Initial Disposition of Qualifying Sex-Related Offense Allegation(s) (R.C.M. 
306). .........................................................................................................................   98 
10.6.  GCMCA Review of Initial Disposition Decision for Qualifying Sex-Related 
Offenses Under Command Authority. .....................................................................   99 
Section 10D—Coordination on All Cases Involving Separate but Concurrent Prosecution    99 
10.7.  Required Coordination for Cases Involving Concurrent Military and Civilian 
Prosecutions. ............................................................................................................   99 

DAFI51-201  24 JANUARY 2024  9 
Section 10E—Command Influence (Article 37, UCMJ; R.C.M. 104)    100 
8.  Independent Command Authority. ...........................................................................   100 
Section 10F—Safe-to-Report Policy (FY 2021 NDAA, Section 539A)    100 
9.  Safe-to-Report Policy. .............................................................................................   100 
Chapter 11—PREFERRAL OF CHARGES (ARTICLE 30, UCMJ; R.C.M. 307)    103 
Section 11A—Miscellaneous Considerations Prior to Preferral of Charges    103 
1.  Accuser is Senior to the Convening Authority. .......................................................   103 
2.  Effect of Preferral on Statute of Limitations in Lengthy Absence Cases. ...............   103 
3.  Involuntary Extension Beyond ETS. .......................................................................   103 
4.  Retirement Holds and Other Actions Taken to Suspend or Cancel Separation 
Processing. ...............................................................................................................   103 
5.  Accused With Prior Adjudged Punitive Discharge. .................................................   104 
6.  Recoupment. ............................................................................................................   104 
Section 11B—Preferral of Charges (Article 30, UCMJ; R.C.M. 307)    104 
7.  Preparing the Charge Sheet for Preferral (DD Form 458, Charge Sheet). ...............   104 
8.  Signing the Charge Sheet. ........................................................................................   106 
9.  Forwarding of Charges for offenses under Command Authority (R.C.M. 401). .....   106 
10.  Receipt of Charges (R.C.M. 404). ...........................................................................   107 
Chapter 12—ARTICLE 32, UCMJ, PRELIMINARY HEARINGS (R.C.M. 405)    108 
1.  Applicable Rules. .....................................................................................................   108 
2.  Preliminary Hearing Personnel. ...............................................................................   108 
3.  Pre-Hearing Matters. ................................................................................................   109 
4.  Victims’ Rights Regarding the Preliminary Hearing. ..............................................   109 
5.  VC Access to Hearing. .............................................................................................   109 
6.  Production of Witnesses. .........................................................................................   109 
7.  Production of Evidence. ...........................................................................................   110 
8.  Recording the Preliminary Hearing. ........................................................................   110 
9.  Conducting the Preliminary Hearing. ......................................................................   110 
10.  Supplementary Information. ....................................................................................   111 
11.  Assembly of the PHO Report. .................................................................................   111 
12.  Distributing the PHO Report. ..................................................................................   111 
13.  Objecting to the PHO Report. ..................................................................................   112 

10  DAFI51-201  24 JANUARY 2024 
12.14.  Forwarding the PHO Report to a Superior Convening Authority............................   112 
12.15.  Reviewing Sealed Materials in or Attached to a PHO Report. ................................   112 
Chapter 13—FORWARDING AND DISPOSITION OF CHARGES    113 
Section 13A—Pretrial Advice, Forwarding, and Review of Offenses Under Command Authority    113 
13.1.  Pretrial Advice in General Courts-Martial. ..............................................................   113 
13.2.  Pretrial Advice in Special Courts-Martial (Article 34, UCMJ; R.C.M. 406). .........   113 
13.3.  Pretrial Advice in Summary Courts-Martial. ...........................................................   113 
13.4.  Disposition Guidance. ..............................................................................................   113 
13.5.  Forwarding of Pretrial Advice in General Courts-Martial. ......................................   113 
13.6.  GCMCA Decision Not to Refer Certain Sex Offense Charges Under Command 
Authority. .................................................................................................................   114 
Section 13B—STC Determination and Disposition of Offenses Under OSTC Authority (R.C.M. 
306A, 401A, 406)    115 
13.7.  Disposition of Offenses Under OSTC Authority. ....................................................   115 
13.8.  STC Written Determination. ....................................................................................   116 
Section 13C—Dismissal of Charges    116 
13.9.  Annotating the Charge Sheet for Charges Dismissed Prior to Referral. ..................   116 
Section 13D—Referral of Charges (R.C.M. 601)    116 
13.10.  Referral of Charges to Court-Martial. ......................................................................   116 
13.11.  “Re-referral” of Charges. .........................................................................................   118 
Section 13E—Reporting Referral of Additional Charges in Cases Pending Appellate or Post-Trial 
Review    118 
13.12.  Notification of Referral of Later Charges in Pending Cases. ..................................   118 
Section 13F—Referral to Special Court-Martial by Military Judge Alone (Article 16(c)(2)(A), 
UCMJ)    119 
13.13.  General Provision. ...................................................................................................   119 
13.14.  Required Language on Charge Sheet. ......................................................................   119 
13.15.  Notice to Accused. ...................................................................................................   119 
13.16.  Objection by Accused for Offenses Carrying More Than Two Years Maximum 
Confinement.............................................................................................................   119 
13.17.  Objection by Accused for Offenses Requiring Sex Offender Notification. .............   119 
Section 13G—Transferring Charges    119 
13.18.  Transferring Charges to Parallel Convening Authority (R.C.M. 601(g)). ...............   119 

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Chapter 14—CONVENING COURTS-MARTIAL    120 
Section 14A—Detailing Members (R.C.M. 501, 502, 503, 911, 912A; Articles 25, 29, UCMJ).    120 
14.1.  General Provision. ...................................................................................................   120 
14.2.  Standing Courts-Martial Panels. ..............................................................................   120 
14.3.  Impaneling Alternate Members. ..............................................................................   121 
14.4.  Replacing or Excusing Detailed Members (R.C.M. 505). .......................................   121 
Section 14B—Preparing the Convening Order    121 
14.5.  Special Order Convening Courts-Martial. ...............................................................   121 
14.6.  Docketing. ................................................................................................................   122 
Chapter 15—COURT-MARTIAL COMPOSITION AND COURT REPORTERS    123 
Section 15A—Military Judges (R.C.M. 503(b))    123 
15.1.  Detailing Military Judges. ........................................................................................   123 
Section 15B—Counsel (R.C.M. 503(c))    123 
15.2.  Detailing Defense Counsel. .....................................................................................   123 
15.3.  Detailing Trial Counsel. ...........................................................................................   123 
15.4.  Qualifications of Counsel. .......................................................................................   124 
15.5.  Disqualifications (Articles 26(d) and 27(a)(2), UCMJ; R.C.M. 502(d)(3)). ............   124 
15.6.  Request for IMDC (R.C.M. 502(d)(2)(B) and 506(b)). ...........................................   124 
Section 15C—Oaths (Article 136, UCMJ; R.C.M. 807)    128 
15.7.  One-Time Oath. .......................................................................................................   128 
15.8.  Uncertified Military Counsel and Civilian Defense Counsel. .................................   128 
15.9.  Court Members. .......................................................................................................   128 
15.10.  Interpreters. ..............................................................................................................   128 
Section 15D—Court Reporters    128 
15.11.  Court Reporter Duties. .............................................................................................   128 
15.12.  Transcription Requirements. ....................................................................................   129 
Chapter 16—PRE-TRIAL MATTERS    130 
Section 16A—Changes to and Withdrawal of Charges and/or Specifications    130 
16.1.  Changes to Charges or Specifications. .....................................................................   130 
16.2.  Withdrawal of Charges or Specifications (R.C.M. 604). .........................................   130 

DAFI51-201  24 JANUARY 2024 
Section 16B—Evidentiary Matters    132 
3.  Warrants of Attachment. ..........................................................................................   132 
4.  Depositions. .............................................................................................................   133 
5.  Subpoena Limitations. .............................................................................................   133 
Section 16C—Child Sexual Assault Material in Evidence and Exhibits    134 
6.  Distinction between Evidence and Exhibits.............................................................   134 
Section 16D—Defense Investigative Support    135 
7.  Defense Investigative Capability. ............................................................................   135 
8.  Defense Requests for Investigative Support from OSI. ...........................................   135 
Chapter 17—PLEA AGREEMENTS AND CONDITIONAL GUILTY PLEAS    137 
Section 17A—Conditional Guilty Plea    137 
1.  Conditional Guilty Plea. ..........................................................................................   137 
Section 17B—Plea Agreements (Article 53a, UCMJ, R.C.M. 705, and R.C.M. 910)    137 
2.  Applicability. ...........................................................................................................   137 
3.  Policy Considerations for Plea Agreements. ...........................................................   137 
4.  Plea Agreements in National Security and Related Cases. ......................................   138 
5.  Authority to Approve a Plea Agreement. ................................................................   139 
6.  Plea Agreement Terms (R.C.M. 705(b)-(d)). ..........................................................   139 
Chapter 18—RESIGNATION AND RETIREMENT IN LIEU OF COURT-MARTIAL    142 
Section 18A—Officer Resignation in Lieu of Trial by Court Martial (RILO)    142 
1.  General. ....................................................................................................................   142 
2.  Considerations. ........................................................................................................   142 
3.  Timing. .....................................................................................................................   142 
4.  Defense Counsel. .....................................................................................................   142 
5.  Recoupment. ............................................................................................................   142 
6.  Resignation in Lieu of Trial by Court-Martial Request and Additional 
Documents. ..............................................................................................................   143 
7.  Review and Recommendation. ................................................................................   143 
8.  Legal Review. ..........................................................................................................   143 
9.  Permission to Proceed to Trial Pending Action on a RILO Request. ......................   143 
10.  Subsequent Resignation in Lieu of Trial by Court-Martial Requests. .....................   144 
11.  Withdrawing RILO Requests. ..................................................................................   145 

DAFI51-201  24 JANUARY 2024  13 
18.12.  RILO Processing Time Management. ......................................................................   145 
18.13.  Withdrawal and Dismissal of Charges. ....................................................................   146 
18.14.  Retirement in Lieu of Trial by Court-Martial (RetILO). .........................................   146 
Chapter 19—TRIAL MATTERS    147 
Section 19A—Rules of Court-Martial Practice (R.C.M. 108)    147 
19.1.  Authority to Prescribe Rules of Court-Martial Practice. ..........................................   147 
Section 19B—Arraignment and Pleas    147 
19.2.  Arraignment and Pleas (Article 39(a), UCMJ). .......................................................   147 
Section 19C—Trial by Members    147 
19.3.  Randomization and Assembly. ................................................................................   147 
19.4.  Impanelment. ...........................................................................................................   147 
Section 19D—Trial by Military Judge Alone at the Request of the Accused    147 
19.5.  Requesting Trial by Military Judge Alone (R.C.M. 903). .......................................   147 
Section 19E—Audiovisual and Teleconferencing Technology    147 
19.6.  Use of Audiovisual and Teleconferencing Technology. ..........................................   147 
Section 19F—Classified, Confidential and Privileged Matters    148 
19.7.  General Provision. ...................................................................................................   148 
19.8.  Classified or Controlled Information (M.R.E. 505). ................................................   148 
19.9.  Government Information Other than Classified Information (M.R.E. 506). ...........   148 
19.10.  Lawyer-Client Privilege with the Air Force or Space Force as the Client. ..............   149 
19.11.  Psychotherapist-Patient Privilege (M.R.E. 513). .....................................................   149 
Section 19G—Pre-sentencing Matters (R.C.M. 1001)    149 
19.12.  Personnel Records of the Accused. ..........................................................................   149 
19.13.  Intentional Selection of a Victim. ............................................................................   150 
19.14.  Appeals by the United States from an Adverse Ruling by a Military Judge 
(R.C.M. 908). ...........................................................................................................   150 
19.15.  Extraordinary Writs by TC or VC. ..........................................................................   151 
Section 19H—Sentencing    151 
19.16.  Applicable Sentencing Rules. ..................................................................................   151 
19.17.  Plea Agreements and Sentencing Rules. ..................................................................   151 
19.18.  Sentencing by Members. ..........................................................................................   151 
19.19.  Sentencing by Military Judge Alone. .......................................................................   151 

DAFI51-201  24 JANUARY 2024 
20.  Announcement of the Sentence. ..............................................................................   151 
21.  Completion of the AF Form 304, Request for Appellate Defense Counsel. ............   151 
22.  Recommendation for Suspension of Sentence. ........................................................   151 
Section 19I—Waiver of Appellate Review    152 
23.  Waiver of Appellate Review (Article 61, UCMJ; R.C.M. 1115). ...........................   152 
Section 19J—Contempt Proceedings    152 
24.  General Overview of Contempt Proceedings. .........................................................   152 
25.  Punishment Authority. .............................................................................................   152 
26.  Contempt Punishment. .............................................................................................   152 
27.  Process. ....................................................................................................................   152 
28.  Record. .....................................................................................................................   152 
Chapter 20—STR THROUGH EOJ (POST-TRIAL PROCESS)    153 
Section 20A—General Post-Trial Overview    153 
1.  Applicability. ...........................................................................................................   153 
2.  Definition of “Victim” for Post-Trial. .....................................................................   153 
Section 20B—STR    153 
3.  Requirement for a STR and Exceptions to Requirement. ........................................   153 
4.  Mandatory Contents of STR. ...................................................................................   153 
5.  Military Judge Recommendation for Suspension of Sentence. ...............................   153 
6.  Requirement for First Indorsement to STR. ............................................................   153 
7.  Distributing the STR. ...............................................................................................   154 
8.  Unexpurgated and Expurgated Statements of Trial Results. ...................................   154 
Section 20C—Accused’s Submission of Matters    155 
9.  General Requirement. ..............................................................................................   155 
10.  Time Periods for Submissions. ................................................................................   155 
11.  Access to Court-Martial Recordings and Evidence. ................................................   156 
12.  Application to Defer Sentence and Waive Required Forfeitures. ............................   157 
13.  Return to Duty. ........................................................................................................   157 
Section 20D—Victim’s Submission of Matters    157 
14.  Generally. .................................................................................................................   157 
15.  Time Periods for Submissions. ................................................................................   157 
16.  Notification. .............................................................................................................   158 

DAFI51-201  24 JANUARY 2024  15 
17.  Access to Court-Martial Recordings and Evidence. ................................................   158 
Section 20E—Convening Authority Decision on Action    159 
18.  Applicable Version of Article 60, UCMJ. ...............................................................   159 
19.  Convening Authority Discretion. .............................................................................   159 
20.  Military Judge Suspension Recommendation. .........................................................   160 
21.  Required Considerations. .........................................................................................   160 
22.  Consultation with Staff Judge Advocate. .................................................................   160 
23.  Matters Adverse to the Accused. .............................................................................   161 
24.  Timing of Convening Authority Decision to Take Action/No Action. ...................   161 
25.  Documenting Convening Authority Action/No Action in a GCM or SPCM. .........   161 
26.  Service of the CADAM in a GCM/SPCM. ..............................................................   162 
27.  Documenting and Serving Convening Authority Action in an SCM. .....................   162 
28.  Disqualification of a Convening Authority. .............................................................   162 
Section 20F—Forfeitures of Pay, Deferment and Waiver (Articles 57(b) and 58b, UCMJ; R.C.M. 
1103)    163 
29.  Adjudged Versus Automatic Forfeitures. ................................................................   163 
30.  Required Adjustment of Forfeitures. .......................................................................   163 
31.  Deferment Versus Waiver........................................................................................   163 
32.  Mechanics of Deferring and Waiving Forfeiture of Pay. .........................................   165 
33.  Dependency Determinations for Waivers under Article 58b, UCMJ. .....................   167 
34.  Deferment and Waiver in Cases with Offenses Committed Prior to 1 April 1996. .   167 
Table  20.1.  Relationship between Adjudged and Automatic Forfeitures. ..................................   167 
35.  Service of Legal Review on the Accused. ...............................................................   168 
Section 20G—Contingent Confinement    169 
36.  Contingent Confinement. .........................................................................................   169 
37.  Procedures for Executing Contingent Confinement. ...............................................   169 
Section 20H—Notification of Adjudged Sentence, EoJ    172 
38.  14-Day Memorandum and 24-Hour Memorandum. ................................................   172 
Section 20I—EoJ (R.C.M. 1111; Article 60c, UCMJ)    172 
39.  General Provision. ...................................................................................................   172 
40.  Preparing the EoJ. ....................................................................................................   172 
41.  First Indorsement to the EoJ. ...................................................................................   173 

DAFI51-201  24 JANUARY 2024 
42.  Distributing the EoJ. ................................................................................................   173 
Section 20J—Post-Trial Confinement    173 
43.  Entry into Post-Trial Confinement...........................................................................   173 
44.  Processing the DD Form 2707. ................................................................................   173 
45.  Effect of Pretrial Confinement. ................................................................................   174 
46.  Confinement Facility (R.C.M. 1101, 1102(b)(2)(F)). ..............................................   174 
Section 20K—Preparing and Certifying the ROT (R.C.M. 1104)    174 
47.  Transcription Requirements. ....................................................................................   174 
48.  Preparing and Certifying the ROT in GCMs and SPCMs. ......................................   175 
Section 20L—Service and Forwarding of the ROT (R.C.M. 1104; 1112(e))    175 
49.  Service of the ROT Generally..................................................................................   175 
50.  Serving the ROT on the Accused.............................................................................   175 
51.  Serving the ROT on Eligible Victim(s). ..................................................................   176 
52.  Forwarding the ROT. ...............................................................................................   176 
Section 20M—Excess Leave    176 
53.  Involuntary (Required) and Excess Leave. ..............................................................   176 
54.  Excess Leave for Accused Assigned Outside the Continental United States. .........   177 
55.  Excess Leave Procedures. ........................................................................................   178 
56.  Travel of Personnel Awaiting Completion of Appellate Review. ...........................   178 
Section 20N—Post-EoJ Action by the Convening Authority    179 
57.  General Provision. ...................................................................................................   179 
58.  Requirement for Subsequent CADAM. ...................................................................   179 
59.  Procedures. ...............................................................................................................   179 
60.  Service on Accused and Any Victims. ....................................................................   179 
61.  Requirement for Additional EoJ. .............................................................................   179 
Chapter 21—CORRECTING OR MODIFYING POST-TRIAL PAPERWORK AND THE 
RECORD OF TRIAL    180 
Section 21A—Correcting the STR and First Indorsement    180 
1.  Contents of the STR. ................................................................................................   180 
2.  Administrative Errors. .............................................................................................   180 
3.  First Indorsement. ....................................................................................................   180 
4.  Errors Identified Prior to EoJ. ..................................................................................   180 

DAFI51-201  24 JANUARY 2024  17 
Section 21B—Correcting the Convening Authority’s Decision on Action.    180 
21.5.  Contents of the Convening Authority’s Decision on Action Memorandum. ...........   180 
21.6.  Errors in the Action Language. ................................................................................   180 
Section 21C—Correcting the EoJ    181 
21.7.  Contents of the EoJ. .................................................................................................   181 
21.8.  Errors Identified in the EoJ. .....................................................................................   181 
21.9.  After Certification of the Record. ............................................................................   181 
21.10.  First Indorsement. ....................................................................................................   181 
Section 21D—Method for Making Corrections    181 
21.11.  General Provision. ...................................................................................................   181 
21.12.  Header. .....................................................................................................................   181 
21.13.  Making Corrections on the first indorsement, STR, CADAM (as described in 
paragraph 21.5.1), and EoJ. .....................................................................................   181 
21.14.  Signatures.................................................................................................................   182 
Section 21E—Correcting the ROT    182 
21.15.  Defective or Incomplete ROT. .................................................................................   182 
Chapter 22—COURTS OF INQUIRY (ARTICLE 135, UCMJ; MCM, PART I, 
PARAGRAPH 2(B)(3))    183 
22.1.  General. ....................................................................................................................   183 
22.2.  Personnel. .................................................................................................................   183 
22.3.  Procedures. ...............................................................................................................   183 
Chapter 23—SUMMARY COURTS-MARTIAL    185 
Section 23A—General Guidance for SCMs    185 
23.1.  Summary Court-Martial Guide. ...............................................................................   185 
23.2.  Non-Criminal Forum. ..............................................................................................   185 
23.3.  Former Jeopardy Considerations. ............................................................................   185 
23.4.  Lack of Jurisdiction of SCM. ...................................................................................   185 
23.5.  Right to Object to Trial by SCM..............................................................................   185 
23.6.  Punishment Limitations. ..........................................................................................   185 
23.7.  Victims’ Rights. .......................................................................................................   185 
Section 23B—Composition of an SCM    185 
23.8.  Summary Court-Martial Officer (SCMO). ..............................................................   185 

DAFI51-201  24 JANUARY 2024 
9.  Defense Counsel. .....................................................................................................   186 
10.  Government Counsel. ..............................................................................................   186 
Section 23C—Convening an SCM    186 
11.  Convening Authority. ..............................................................................................   186 
12.  Detailing Summary Courts-Martial. ........................................................................   186 
Section 23D—Preparing the DD Form 2329, Record of Trial by Summary Court-Martial    187 
13.  DD Form 2329. ........................................................................................................   187 
14.  Completing the DD Form 2329. ..............................................................................   187 
Section 23E—Conducting the SCM (R.C.M. 1304)    188 
15.  Procedures. ...............................................................................................................   188 
Section 23F—Post-Trial Procedure (R.C.M. 1306)    188 
16.  Required SJA first indorsement to DD Form 2329..................................................   188 
17.  Distribution of the DD Form 2329 following trial. ..................................................   188 
18.  14-Day Memorandum and 24-Hour Memorandum. ................................................   188 
19.  Matters Submitted by the Accused. .........................................................................   189 
20.  Matters Submitted by the Victim(s). ........................................................................   189 
21.  Rehearing. ................................................................................................................   189 
22.  Convening Authority Action....................................................................................   189 
23.  Annotating Convening Authority Action. ................................................................   189 
24.  Distribution of the DD Form 2329 after Action. .....................................................   190 
25.  Serving Convening Authority Action on the Accused and Victim. .........................   190 
26.  Correcting Convening Authority Action. ................................................................   190 
Section 23G—Preparing and Serving the ROT and Post-Trial Review    190 
27.  See DAFMAN 51-203. ............................................................................................   190 
Chapter 24—APPEALS, REVIEWS, AND PETITIONS FOR NEW TRIAL    191 
Section 24A—Appellate Defense Counsel    191 
1.  Accused’s Request for Appellate Defense Counsel (Article 70, UCMJ). ...............   191 
2.  Withdrawal of Request for or Declination of Appellate Defense Counsel. .............   191 
3.  Waiver/Withdrawal of Appellate Review (Article 61, UCMJ; R.C.M. 1115). .......   191 
Section 24B—Appeals of Sentence by the United States (Art 56, UCMJ; R.C.M. 1117)    192 
4.  General Provision. ...................................................................................................   192 

DAFI51-201  24 JANUARY 2024  19 
Section 24C—Judge Advocate Review of Summary Courts-Martial (Article 64, UCMJ; R.C.M. 
1307)    193 
5.  Article 64, UCMJ, Overview. ..................................................................................   193 
6.  Article 64, UCMJ, Review Requirements. ..............................................................   193 
7.  Disqualification. .......................................................................................................   194 
8.  Form and Content of Article 64, UCMJ, Reviews. ..................................................   194 
9.  Finality of SCM. ......................................................................................................   195 
10.  Article 64, UCMJ, Review Distribution. .................................................................   195 
Section 24D—Review by AFCCA, CAAF, or the Supreme Court of the United States    196 
11.  AFCCA Review (Article 66, UCMJ; R.C.M. 1203). ...............................................   196 
12.  CAAF Review (Article 67, UCMJ; R.C.M. 1204). .................................................   197 
13.  Petition by Writ of Certiorari for Supreme Court Review (Article 67a, UCMJ). ....   197 
Section 24E—Review by TJAG of GCMs and SPCMs Not Appealed to the AFCCA (Article 65, 
UCMJ)    198 
14.  Overview. .................................................................................................................   198 
15.  Article 65(d), UCMJ, Review Requirements. ..........................................................   198 
16.  Form, Content, and Distribution of Article 65(d), UCMJ, Judge Advocate 
Reviews. ...................................................................................................................   198 
17.  Distribution of Judge Advocate Reviews Performed at the GCMCA Legal Office.   199 
18.  Finality of SPCM or GCM under Article 65, UCMJ. ..............................................   199 
Section 24F—Review by The Judge Advocate General (Article 69, UCMJ)    199 
19.  Scope of Article 69, UCMJ, Review (R.C.M. 1201(h) & (k)). ................................   199 
20.  Prerequisite of Finality of Review. ..........................................................................   199 
21.  Contents of Article 69(a), UCMJ, Application. .......................................................   200 
22.  Article 69(a), UCMJ, Application Procedures. ........................................................   200 
23.  Review of Sealed Records when Considering Article 69(d), UCMJ, Review. ........   200 
24.  Notification of Article 69, UCMJ, Review Results. ................................................   200 
Section 24G—Petition for New Trial (Article 73, UCMJ; R.C.M. 1210)    201 
25.  Petition for New Trial. .............................................................................................   201 
26.  TJAG Review of the Petition. ..................................................................................   202 
27.  Action on Petition. ...................................................................................................   203 
28.  Miscellaneous Writs and Petitions. ..........................................................................   203 

DAFI51-201  24 JANUARY 2024 
Chapter 25—REMISSION AND SUSPENSION (ARTICLE 74, UCMJ)    204 
1.  General Information. ................................................................................................   204 
2.  Authority Over Confinees. .......................................................................................   204 
3.  Authority Reserved to the SecAF. ...........................................................................   204 
4.  Authority of The Judge Advocate General. .............................................................   204 
5.  Authority of the Accused’s Commander. ................................................................   204 
6.  Publication of SecAF Actions under Article 74, UCMJ. .........................................   205 
Chapter 26—REHEARINGS, NEW TRIALS, OTHER TRIALS, AND REMANDS 
(ARTICLES 63 AND 66(F), UCMJ)    206 
1.  Terminology.............................................................................................................   206 
2.  Notification of the Accused and Counsel. ...............................................................   206 
3.  Notification of the Victim(s). ...................................................................................   206 
4.  Notification to OSTC. ..............................................................................................   206 
5.  Procedures Generally. ..............................................................................................   206 
6.  Convening Authority Post-Trial Action Memorandum. ..........................................   207 
7.  Composition of the Proceedings. .............................................................................   207 
8.  Sentence Limitations. ...............................................................................................   208 
Section 26A—Rehearings (Article 63, UCMJ; R.C.M. 810)    208 
9.  Receipt of Decision and Speedy Trial Clock. ..........................................................   208 
10.  Rehearings in Full. ...................................................................................................   208 
11.  Rehearings on Sentence Only. .................................................................................   208 
12.  Combined Rehearings. .............................................................................................   208 
13.  Rehearings Ordered. ................................................................................................   208 
Section 26B—Other Trials.    209 
14.  Ordering Other Trials. ..............................................................................................   209 
15.  Procedures in Other Trials. ......................................................................................   209 
Section 26C—New Trials    209 
16.  Procedures in New Trials. ........................................................................................   209 
Section 26D—Remand    209 
17.  Overview. .................................................................................................................   209 
18.  Remand Order. .........................................................................................................   209 
19.  Detailing of Military Judge. .....................................................................................   209 

DAFI51-201  24 JANUARY 2024  21 
Section 26E—ROT and Post-Remand Concerns.    209 
26.20.  Maintaining the ROT. ..............................................................................................   209 
Chapter 27—CERTIFICATION OF FINAL REVIEW    211 
27.1.  General Provision. ...................................................................................................   211 
27.2.  Requirement for CFR. ..............................................................................................   211 
27.3.  Completion of CFR. .................................................................................................   211 
27.4.  Distribution of the CFR. ..........................................................................................   211 
Chapter 28—MILITARY JUSTICE ORDER LOGS    212 
Section 28A—Convening Order Logs    212 
28.1.  Separate Logs Required. ..........................................................................................   212 
28.2.  Content of Log. ........................................................................................................   212 
Section 28B—Courts-Martial/Supplemental Order Logs    212 
28.3.  Separate Logs Required. ..........................................................................................   212 
28.4.  Content of Log. ........................................................................................................   212 
Chapter 29—SEX OFFENDER NOTIFICATION, CRIMINAL INDEXING AND DNA 
COLLECTION    213 
Section 29A—Sex Offender Notification    213 
29.1.  General Provision. ...................................................................................................   213 
29.2.  Qualifying Offenses. ................................................................................................   213 
29.3.  Notification Requirement.........................................................................................   213 
29.4.  Timing of Notification. ............................................................................................   213 
29.5.  Legal Office Responsibilities. ..................................................................................   214 
29.6.  STR and EoJ. ...........................................................................................................   214 
29.7.  Notification to the Installation Confinement Officer/NCO. ....................................   214 
29.8.  Convictions by a Host Country. ...............................................................................   214 
Section 29B—Criminal History Record Information (CHRI) and Fingerprint Collection and 
Submission (28 U.S.C. § 534, Acquisition, preservation, and exchange of 
identification records and information; appointment of officials; 28 C.F.R. § 
20.30, et seq., Federal Systems and Exchange of Criminal History Record 
Information; DoDI 5505.11)    214 
29.9.  General Provision. ...................................................................................................   214 
29.10.  Criminal History Record Information. .....................................................................   214 
29.11.  Identified Individuals. ..............................................................................................   215 

DAFI51-201  24 JANUARY 2024 
12.  Disposition Data. .....................................................................................................   215 
13.  Qualifying Offenses. ................................................................................................   215 
14.  Military Protective Orders. ......................................................................................   215 
15.  Qualifying Offenses Investigated by Commander Directed Investigation (CDI). ...   215 
16.  Probable Cause Requirement. ..................................................................................   215 
17.  SJA Coordination Requirement. ..............................................................................   215 
18.  Process for Submission of Criminal History Data. ..................................................   216 
19.  Legal Office Final Disposition Requirement. ..........................................................   216 
20.  Expungement of Criminal History Data and Fingerprints. ......................................   216 
Section 29C—DNA Collection (10 U.S.C. §    216 
21.  General Provision. ...................................................................................................   217 
22.  Qualifying Offenses. ................................................................................................   217 
23.  Probable Cause Requirement. ..................................................................................   217 
24.  SJA Coordination Requirement. ..............................................................................   217 
25.  Timing of Collection and Forwarding. ....................................................................   217 
26.  STR and EoJ. ...........................................................................................................   217 
27.  Final Disposition Requirement. ...............................................................................   217 
28.  Expungement of DNA. ............................................................................................   218 
Section 29D—Possession or Purchase of Firearms Prohibited (18 U.S.C. §§    218 
29.  General Provision. ...................................................................................................   218 
30.  Categories of Prohibition. ........................................................................................   218 
31.  Notification to the Accused of Firearms Prohibition. ..............................................   220 
32.  STR and EoJ. ...........................................................................................................   222 
33.  Final Disposition Requirement. ...............................................................................   222 
34.  SJA Coordination with Commanders. .....................................................................   222 
Section 29E—Distribution of Court-Martial Data for Indexing Purposes    222 
35.  General Provision. ...................................................................................................   222 
36.  Additional Notification Requirements. ....................................................................   223 
37.  General Courts-Martial Continuances, Delays and Abatements..............................   223 
38.  Electronic Submission Preferred. .............................................................................   223 
Section 29F—Protective Order Submissions    223 
39.  National Crime Information Center (NCIC) Submission. .......................................   223 

DAFI51-201  24 JANUARY 2024  23 
Chapter 30—METRICS AND MILESTONES    224 
Section 30A—Case Processing Overview    224 
30.1.  Case Processing Time. .............................................................................................   224 
Section 30B—Metrics    224 
30.2.  General Provision. ...................................................................................................   224 
Section 30C—Milestones    225 
30.3.  Milestones Generally. ..............................................................................................   225 
30.4.  GCM Milestones. .....................................................................................................   225 
30.5.  Special Court Martial Milestones. ...........................................................................   226 
30.6.  Transcription Milestones. ........................................................................................   226 
Section 30D—Summary Court-Martial Measures    227 
30.7.  Summary Court-Martial Processing. .......................................................................   227 
Section 30E—Milestones Common to All Courts-Martial    227 
30.8.  Date of Discovery. ...................................................................................................   227 
Chapter 31—DISCIPLINARY CASE MANAGEMENT SYSTEM (DCMS) – 
AUTOMATED MILITARY JUSTICE ANALYSIS AND MANAGEMENT 
SYSTEM (AMJAMS) MODULE    228 
Section 31A—General Information    228 
31.1.  Purpose.....................................................................................................................   228 
31.2.  Uses. .........................................................................................................................   228 
31.3.  Release. ....................................................................................................................   228 
31.4.  Policy. ......................................................................................................................   229 
31.5.  Responsibilities. .......................................................................................................   229 
Section 31B—Case Processing    230 
31.6.  Investigation.............................................................................................................   230 
31.7.  DCMS-AMJAMS Data Completion. .......................................................................   230 
Section 31C—Reports and Queries    230 
31.8.  Reports. ....................................................................................................................   230 
31.9.  Queries. ....................................................................................................................   230 
Section 31D—SIRs    230 
31.10.  Reporting Special Interest Cases. ............................................................................   230 
31.11.  Responsibilities. .......................................................................................................   230 

24  DAFI51-201  24 JANUARY 2024 
31.12.  Requirements. ..........................................................................................................   231 
31.13.  What to Report. ........................................................................................................   231 
31.14.  When to Submit a SIR. ............................................................................................   232 
31.15.  How to Report. .........................................................................................................   232 
Section 31E—Requesting Access to DCMS-AMJAMS    233 
31.16.  Overview. .................................................................................................................   233 
Chapter 32—ARTICLE 137, UCMJ, REQUIRED COMMANDER BRIEFINGS, AND 
STATUS OF DISCIPLINE    234 
Section 32A—Article 137, UCMJ, Briefings for Enlisted Personnel and Officers    234 
32.1.  Responsibilities. .......................................................................................................   234 
32.2.  Content. ....................................................................................................................   234 
32.3.  Article 137, UCMJ, Delivery Methods. ...................................................................   234 
32.4.  Enlisted Completion Requirements. ........................................................................   235 
32.5.  Officer Completion Requirements. ..........................................................................   235 
Section 32B—Required Commander Training    235 
32.6.  Overview. .................................................................................................................   235 
Section 32C—Status of Discipline Briefings    237 
32.7.  Overview. .................................................................................................................   237 
32.8.  Minimum Requirements. .........................................................................................   237 
Table  32.1.  SOD Minimum Requirements. ................................................................................   237 
Section 32D—Publish the Nature and Results of all Sexual Misconduct Disciplinary Actions    238 
32.9.  Overview. .................................................................................................................   238 
Chapter 33—STAFF JUDGE ADVOCATE SUPPORT TO EXTERNAL PROGRAMS    240 
Section 33A—Staff Judge Advocate’s Responsibilities to Defense Counsel    240 
33.1.  The ADC Program. ..................................................................................................   240 
33.2.  Staff Judge Advocate Responsibilities. ....................................................................   240 
Section 33B—Staff Judge Advocate’s Responsibilities to Victims’ Counsel    240 
33.3.  The Victims’ Counsel Program. ..............................................................................   240 
33.4.  Staff Judge Advocate Responsibilities. ....................................................................   241 
Section 33C—Support of Defense Sexual Assault Incident Database (DSAID)    241 
33.5.  Defense Sexual Assault Incident Database. .............................................................   241 

DAFI51-201  24 JANUARY 2024  25 
Chapter 34—REQUESTS FOR AND RELEASE OF INFORMATION    243 
Section 34A—Extrajudicial Statements and Release of Information    243 
34.1.  General Provision. ...................................................................................................   243 
34.2.  Extrajudicial Statements. .........................................................................................   243 
34.3.  Release of Information from Records of Trial or Related Records. ........................   246 
Section 34B—Direct Communications and Reports    247 
34.4.  AF/JAJM and AF/JAJI Requests for Information. ..................................................   247 
34.5.  Field Response to High-Level Inquiry. ....................................................................   249 
Section 34C—Reporting Cases Involving Foreign National DAF Members    249 
34.6.  Foreign National DAF Member Defined. ................................................................   249 
34.7.  When to Report. .......................................................................................................   249 
34.8.  What to Report. ........................................................................................................   249 
34.9.  Examination of Member’s Records. ........................................................................   250 
34.10.  Notification Not Required........................................................................................   250 
Section 34D—Article 140a, UCMJ, Guidance    250 
34.11.  General Provision. ...................................................................................................   250 
34.12.  Applicability. ...........................................................................................................   250 
34.13.  AF/JAJM Article 140a, UCMJ, Redaction Guide. ..................................................   250 
34.14.  Timing and Process. .................................................................................................   250 
34.15.  Compliance Review. ................................................................................................   250 
34.16.  The Judge Advocate General’s Corps DAF Court-Martial Docket. ........................   250 
Attachment 1—GLOSSARY OF REFERENCES AND SUPPORTING INFORMATION    252 
 

26 DAFI51-201 24 JANUARY 2024

Chapter 1

OVERVIEW, TEMPLATES, ROLES & RESPONSIBILITIES

Section 1A—Overview

1.1. Overview. The military justice system promotes justice, deters misconduct, facilitates

appropriate accountability, assists in maintaining good order and discipline, and promotes military

efficiency and effectiveness, thereby strengthening the national security of the United States. This

instruction implements requirements for the administration of military justice in the Department

of the Air Force (DAF) (comprised of the Air Force and Space Force). The primary sources of

direction and guidance on military justice are the UCMJ, Title 10 United States Code (U.S.C.) §§

801-946a, and the MCM which includes the R.C.M. and M.R.E. Compliance is mandatory with

the UCMJ as federal law, and with the MCM as an executive order. (T-0) While this publication

may expand upon articles of the UCMJ or rules in the MCM, to the extent this publication is ever

in direct conflict with the UCMJ or MCM, those sources take precedence over this publication.

All requirements that are not tiered may only be waived by AF/JAJM or superior functional

authority with coordination with AF/JAJM. Submit waiver requests via DAF Form 679 through

the functional chain.

1.2. Templates. All templates implementing the UCMJ and MCM that are referenced in this

instruction can be found on the Virtual Military Justice Deskbook (VMJD) on Federal Legal

Information Through Electronics (FLITE) Knowledge Management (KM) as well as the AF/JAJM

Outreach and Training page on Microsoft Teams (hereinafter AF/JAJM Teams Page). Contact

AF/JAJM for questions. Air Force JAG Corps personnel can access the VMJD at

https://kmjas.jag.af.mil/moodle/course/view.php?id=251 and the AF/JAJM Teams Page at

https://dod.teams.microsoft.us/l/team/19%3adod%3a85ded12aa2304ea1ac0223d14119168e

%40thread.tacv2/conversations?groupId=6db8414f-1fa7-48e6-9714-

7756762703b9&tenantId=8331b18d-2d87-48ef-a35f-ac8818ebf9b4. Non-JAG Corps

personnel requesting copies of templates should work with the relevant servicing legal office to

obtain needed templates and other documents.

1.2.1. Templates. Legal offices are strongly advised to use AF/JAJM-produced templates

included on the VMJD and AF/JAJM Teams Page. Templates may be modified as needed to

address the particulars of a given case, however the format should be adhered to unless

modification is required. This ensures consistency in military justice documentation and

records of trial (ROTs) throughout the DAF. Nothing in the templates should be construed to

inhibit the ability of an attorney to provide legal advice to a commander, convening authority,

or trial participant.

1.2.2. Modification of Templates. Deviation on substantive provisions is not recommended

without prior approval of AF/JAJM; however, templates may be modified to address the facts

and circumstances of each individual case (e.g., names, addresses, offense types). If there is

uncertainty about whether a specific provision is substantive, contact AF/JAJM for guidance.

1.3. Mandatory Use of Court-Martial Checklists. The base legal office responsible for

administrating a court-martial must use the applicable AF/JAJM court-martial checklists, to

include checklists for completion of post-sentencing paperwork and distribution, available on the

VMJD and AF/JAJM Teams Page. Legal offices must begin using the checklists as soon as they

DAFI51-201 24 JANUARY 2024 27

start reviewing a case with an eye toward the earlier of pretrial confinement, preferral of charges,

or an Article 30a, UCMJ, pre-referral judicial proceeding. Supplemental checklists may only be

used if reviewed and approved by, or provided by, AF/JAJM. Checklists used for an individual

court-martial case are maintained and disposed of in accordance with the disposition schedule for

the ROT and are kept with the base copy of the ROT.

Section 1B—Roles and Responsibilities

1.4. Secretary of the Air Force (SecAF). Exercises DAF secretarial authorities set out in 10

U.S.C. § 9013, Secretary of the Air Force, the UCMJ, and the MCM. Is a general court-martial

convening authority (GCMCA) pursuant to Article 22, UCMJ. Designates commanders with

convening authority pursuant to R.C.M. 504. Issues DAFPD 51-2 and other regulations to

implement the UCMJ, MCM, and DoD policy. Authorizes The Judge Advocate General (TJAG)

to issue DAF publications establishing procedures to administer military justice in the DAF, as

directed in DAFPD 51-2. Exercises direct reporting authority over the Office of Special Trial

Counsel (OSTC) with no intervening authorities.

1.5. The Judge Advocate General. Exercises TJAG authorities set out in the UCMJ and MCM

for the DAF. Conducts inspections to supervise the administration of military justice pursuant to

Article 6, UCMJ. Advises the SecAF, the Chief of Staff of the Air Force, and the Chief of Space

Operations on military justice matters. Provides oversight of the DAF military justice system.

Issues DAF publications establishing procedures to administer military justice in the DAF.

1.6. Office of Special Trial Counsel (OSTC). Provides expert, specialized, independent, and

ethical representation of the United States, under the direct civilian control of the SecAF, in the

investigation and trial-level litigation of covered offenses, as prescribed by Article 1(17), UCMJ,

and other offenses over which the office exercises authority pursuant to Article 24a, UCMJ. OSTC

reports directly to SecAF with no intervening authority.

1.6.1. Lead Special Trial Counsel (LSTC). Leads OSTC for the DAF and establishes policies,

procedures, and delegations necessary to exercise OSTC’s statutory authorities. OSTC

executes its duties independently of the military chains of command of both victims and those

accused of offenses under OSTC authority.

1.6.2. Special Trial Counsel (STC). Judge advocates certified under Article 24a, UCMJ, who

exercise OSTC authorities set out in the UCMJ, MCM, and OSTC Standard Operating

Procedures.

1.7. Military Justice and Discipline Directorate (JAJ). Exercises supervisory responsibility for

its subordinate divisions. Adjudicates central witness funding matters.

1.7.1. The Director, Military Justice and Discipline (JAJ). A senior judge advocate assigned

by TJAG to direct the duties of and to exercise supervisory responsibility for all JAJ personnel,

including all members assigned who are detailed to perform full-time duties as district trial

counsel (DTC); chief district defense counsel (CDDC), senior defense counsel (SDC), area

defense counsel (ADC), defense paralegal managers (DPM), and defense paralegals (DP);

chief district victims’ counsel (CDVC), victims’ counsel (VC), and victims’ paralegals (VP);

and appellate government and appellate defense counsel.

1.7.2. Chief, Military Justice Law and Policy Division (AF/JAJM). A senior judge advocate

assigned by TJAG to direct the duties of and be responsible for providing field support for the

28 DAFI51-201 24 JANUARY 2024

administration of military justice, development and dissemination of DAF military justice

instructions and policy, and supervision of certain other actions required by TJAG.

1.7.2.1. AF/JAJM provides counsel, guidance and support to Headquarters DAF, court-

martial convening authorities and staff judge advocates (SJAs) on the administration of

military justice.

1.7.2.2. AF/JAJM is the Office of Primary Responsibility for this instruction and other

regulations establishing procedures to administer military justice in the DAF.

1.7.2.3. AF/JAJM functions as a component of the Office of The Judge Advocate General

(AF/JA) for matters pursuant to the UCMJ, as determined by TJAG, operating in close

coordination with AF/JAJ.

1.7.2.4. AF/JAJM manages the Disciplinary Case Management System (DCMS),

Automated Military Justice Analysis and Management System (AMJAMS), and any

replacement systems. All references to AMJAMS in this publication apply equally to

DCMS and any future replacement systems.

1.7.2.5. AF/JAJM is responsible for maintaining and archiving ROTs for all DAF courts-

martial.

1.7.2.6. AF/JAJM provides the DAF active-duty voting member and working group

member to the Joint Service Committee on Military Justice.

1.7.3. Chief, Government Trial and Appellate Operations Division (AF/JAJG). A senior judge

advocate assigned by TJAG to direct the duties of and to supervise DTCs and Government

appellate counsel. For offenses under command authority, this individual manages the training

and assignment of DTCs, including the detailing of one or more DTCs to courts-martial. This

individual supervises all DAF appeals before the United States Air Force Court of Criminal

Appeals (AFCCA), the United States Court of Appeals for the Armed Forces (CAAF), and the

Supreme Court of the United States. This individual may delegate one or more of these

authorities to their Director of Operations.

1.7.3.1. Director of Operations, AF/JAJG. Must be a judge advocate, certified under

Article 27(b)(2), UCMJ. Supports the Chief, AF/JAJG, in directing the duties of and

supervising DTCs and Government appellate counsel. This individual may detail DTCs to

courts-martial and other military justice proceedings, and supports the Chief, AF/JAJG in

supervising all DAF appeals before AFCCA, CAAF, and the Supreme Court of the United

States.

1.7.3.2. DTC. A judge advocate, certified under Article 27(b)(2), UCMJ, generally

responsible for the prosecution of complex offenses under command authority. The

Director of Operations, AF/JAJG, serves as the lead DTC for the DAF. DTC primary

duties include the following, in order of priority:

1.7.3.2.1. Serve as lead trial counsel in courts-martial under command authority upon

request by an installation-level SJA and approval by the Chief or Director of

Operations, AF/JAJG, with litigated general courts-martial generally having priority.

1.7.3.2.2. Serve as the government representative in Article 32, UCMJ, preliminary

hearings for offenses under command authority.

DAFI51-201 24 JANUARY 2024 29

1.7.3.2.3. Serve as the recorder in administrative discharge boards and boards of

inquiry, upon request by an installation-level SJA, approval by the Chief or Director of

Operations, AF/JAJG, and appointment by the convening authority concerned.

1.7.3.2.4. Train, advise, and assist installation-level personnel in the investigation and

disposition of offenses under command authority.

1.7.3.2.5. Installation-level SJAs are expected to use their assigned DTCs for support

and employ their expertise and services to the maximum extent possible. As outlined

more fully below, a DTC should generally be the most senior prosecutor assigned to

any Criminal Investigation and Prosecution (CIP) team.

1.7.4. Chief, Trial Defense Division (AF/JAJD). A senior judge advocate assigned by TJAG

with overarching supervisory authority over all CDDCs, SDCs, ADCs, DPMs, DPs, the

Manager, JAJD, the Deputy Chief JAJD, criminal defense investigators, and the Defense

Counsel Assistance Program (DCAP). The Chief, AF/JAJD’s duties include: (1) serving as

the ultimate detailing authority on all detailing decisions and individual military defense

counsel (IMDC) requests for personnel within the division; (2) managing the training, legal

and developmental education, and career progression of all AF/JAJD personnel; (3) personally

defending senior officers and others in select cases; (4) overseeing the management of trial

defense facilities, equipment, and budgets; (5) serving in the functional rating chain for all

AF/JAJD personnel not otherwise delegated; and (6) establishing policy and strategic guidance

to enhance the trial defense services worldwide.

1.7.4.1. Deputy Chief AF/JAJD. The Deputy Chief is an attorney designated by the Chief,

AF/JAJD to perform the duties of the Chief, AF/JAJD, in the Chief’s absence, and to

manage policy and professional development for all personnel within the division. The

Deputy Chief may be detailed by the Chief to defend senior officers and others in select

cases, and perform other duties as assigned by the Chief, AF/JAJD.

1.7.4.2. DCAP. The DCAP reports directly to the Chief, AF/JAJD. The DCAP is

responsible for providing technical expertise, strategic planning/policy development, and

programmatic continuity for the division. This DCAP also develops training for AF/JAJD

personnel, serves as reach-back to the field on new and complex issues, and responds to

various inquiries and taskers from higher headquarters, Congress, and within the DoD.

1.7.4.3. Manager, AF/JAJD. The Manager is the senior noncommissioned officer

assigned to AF/JAJD whose primary duty is to assist and advise the Chief, AF/JAJD,

CDDCs and DPMs with all enlisted matters (e.g., training, mentoring, and administrative

aspects of enlisted affairs) within the division. Additionally, the Manager is responsible

for office management matters.

1.7.4.4. CDDC. CDDCs, in concert with subordinate SDCs, mentor, train, and direct the

provision of defense services throughout their district. CDDC duties consist of the

following: (1) exercising supervisory authority over all ADCs, DPs, SDCs, and the DPM

assigned to their district; (2) managing all administrative and personnel actions (e.g.,

evaluations, awards, and decorations) for personnel assigned to the district; (3) serving as

the rater for all ADCs and additional rater for all DPs assigned to the district; (4) serving

as defense counsel in selected courts-martial, administrative boards, investigations, and

other adverse actions; (5) making detailing decisions; (6) acting on IMDC requests for

30 DAFI51-201 24 JANUARY 2024

personnel currently assigned to the district; (7) overseeing the management of trial defense

facilities, equipment, and budgets; and (8) performing other duties as assigned by the Chief,

AF/JAJD.

1.7.4.5. DPM. DPMs are the senior enlisted advisors to the CDDCs on all DP matters

within their assigned district. DPMs also assist and advise CDDCs, SDCs and ADCs on

DP professional development, evaluations, awards and decorations, manpower issues, and

training/utilization of their district’s assigned DPs. The DPM evaluates and monitors DP

proficiency/upgrade training requirements and coordinates compliance with wing legal

offices. DPMs provide DPs with career guidance, training on duties and responsibilities,

and oversee law office and resource management. DPMs conduct staff assistance

inspections and help provide oversight on the management of trial defense facilities,

equipment, and budgets.

1.7.4.6. SDC. SDCs, in concert with the CDDCs, mentor, train, and direct the provision

of defense services throughout their assigned district. SDC duties include the following:

(1) serving as the first-line supervisory attorney to all ADCs assigned to their region; (2)

assisting with administrative matters and personnel actions, as directed by their supervising

CDDC; (3) making detailing decisions in accordance with the AF/JAJD Operating

Instruction; (4) serving as defense counsel in select courts-martial, administrative boards,

and other adverse actions; and (5) training, advising, and assisting other defense personnel

in the region, as needed.

1.7.4.7. ADC. ADCs are responsible for providing defense services at the installation

where assigned and any designated geographically separated units, subject to conflicts and

detailing decisions made by the SDC or CDDC. ADCs serve as a rater and supervisor for

the DP(s) assigned to their office. In an office with more than one ADC, the ADC senior

in grade or rank is responsible for rating the DP(s) and for oversight of office

administration.

1.7.4.8. DP. DPs’ primary duties are to support ADCs in the management and operation

of the ADC office. As appropriate, DPs shall complete upgrade training in a timely

manner, as described in their respective career field education and training plan (CFETP)

or other official publication(s).

1.7.4.9. Other Designated Defense Counsel. In accordance with R.C.M. 502(d)(2)(B) and

506(b), counsel not currently assigned to AF/JAJD may be detailed as defense counsel

through the IMDC process. All IMDC requests shall be processed in accordance with this

instruction.

1.7.5. Chief, Appellate Defense Division (AF/JAJA). A senior judge advocate assigned by

TJAG to direct the duties of and to supervise the division’s appellate counsel in representing

DAF members entitled to representation under Article 70, UCMJ, before the AFCCA, CAAF,

and the Supreme Court of the United States.

1.7.6. Victims’ Counsel Division (AF/JAJS). Provides legal representation to victims of

crimes in accordance with 10 U.S.C. § 1044e, Special Victims’ Counsel for victims of sex-

related offenses, 10 U.S.C. § 1565, DNA identification information: collection from certain

offenders; use, 10 U.S.C. § 1044, Legal assistance, Public Law 116-92, Section 548, Legal

counsel for victims of alleged domestic violence offenses, and other applicable rules and

DAFI51-201 24 JANUARY 2024 31

regulations. Additionally, the division provides policy guidance on legal representation of

victims under those prescribed laws and regulations. For additional information, see DAFI 51-

207, Victim and Witness Rights and Procedures.

1.7.7. Office of Disability Counsel (AF/JAJO). Provides legal representation of DAF

members meeting established criteria for referral into the Disability Evaluation System (DES)

in accordance with 10 U.S.C. Chapter 61, Retirement or Separation for Physical Disability;

DoDI 1332.18, Disability Evaluation System; and AFI 36-3212, Physical Evaluation for

Retention, Retirement and Separation.

1.7.8. Investigations, Inquiries and Relief Division (AF/JAJI). Functions as a component of

AF/JA for matters pursuant to the UCMJ, as determined by TJAG and operating in close

coordination with AF/JAJ. Advises senior leaders, SAF/IGQ and SAF/IGS on senior officer

misconduct and other matters. Processes adverse actions that require SecAF coordination or

approval, including but not limited to nonjudicial punishment (NJP) appeals, recalls to active

duty, requests for resignation, retirements, and discharges in lieu of court-martial. Advises

SecAF on promotion propriety actions. Conducts final legal review of formal Article 138,

UCMJ, complaints on behalf of SecAF. Advises AF/JA on media, congressional, secretarial,

and White House inquiries pertaining to military justice and discipline matters. Coordinates

on Board for Correction of Military Records petitions. Recommends actions by SecAF on all

affirmed officer courts-martial resulting in a dismissal, and action by SecAF or TJAG on all

court-martial sentences in which clemency may be appropriate. Represents TJAG on the Air

Force Clemency and Parole Board, advises the Office of the Pardon Attorney on applications

for Presidential Pardon, and is counsel to the Director of Air Force Corrections on matters

relating to corrections and rehabilitation of DAF inmates.

1.8. Trial Judiciary (AF/JAT). Provides support to military courts-martial throughout the DAF.

Details trial judges and court reporters to courts-martial. Dockets courts-martial. Provides

oversight of military judges and court reporters throughout the DAF. Prescribes guidance for

military judges and court reporters regarding procedural and substantive aspects of trials by courts-

martial. Responsible for the centralized management of the court reporter program and serves as

the single point of contact for all requests for transcription assistance and court reporter temporary

duty support. See DAFMAN 51-203, Records of Trial, for guidance on requesting court reporter

assistance.

1.8.1. Chief Trial Judge. A senior judge advocate designated by TJAG, pursuant to statutory

authority under Article 26(c) and (g), UCMJ, to direct and manage AF/JAT. The Chief Trial

Judge supervises all trial judges, details judges to all DAF general and special courts-martial,

supervises the Central Docketing Office, maintains and updates the Uniform Rules of Practice

Before Department of the Air Force Courts-Martial, supervises the docketing of all general

and special courts-martial within the DAF, and manages and details military judges to

administrative hearings as appropriate. The Chief Trial Judge shall be responsible for all

policies pertaining to court reporters and the overall management of the court reporter program.

1.8.2. Central Docketing Office. The Central Docketing Office reports directly to the Chief

Trial Judge. The Central Docketing Office’s primary function shall be to implement the Chief

Trial Judge’s (or the Chief Trial Judge’s delegee’s) decisions regarding the docketing of courts-

martial and detailing of military judges.

32 DAFI51-201 24 JANUARY 2024

1.8.3. Military Judge. Must be a judge advocate, certified under Article 27(b)(2), UCMJ, and

designated by TJAG as a military judge according to Article 26(b) or (c), UCMJ. Military

judges are assigned to a designated district or to the Chief Trial Judge. Judges may perform

the following duties, in an installation or expeditionary environment, subject to availability as

determined by the Chief Trial Judge:

1.8.3.1. Preside over courts-martial.

1.8.3.2. Preside over Article 30a, UCMJ, and other R.C.M. 309 proceedings.

1.8.3.3. Serve as Article 32, UCMJ, preliminary hearing officers (PHOs).

1.8.3.4. Serve as legal advisors for administrative discharge boards or boards of inquiry.

1.8.3.5. Serve as hearing officers for contingent confinement hearings.

1.8.3.6. Serve as pretrial confinement hearing officers.

1.8.3.7. Conduct other investigations.

1.8.3.8. Other duties as detailed by the Chief Trial Judge (e.g., presiding over

environmental impact public hearings).

1.8.4. Air Force Trial Judiciary Court Reporter Manager. A paralegal assigned to the Trial

Judiciary who is delegated operational authority over the court reporter program. The Court

Reporter Manager shall be responsible for the centralized management and detailing of all

court reporting and transcription taskings.

1.9. Court Reporter. Records and transcribes records for Article 30a and other R.C.M. 309 pre-

referral judicial proceedings, courts-martial, and other proceedings, as required or able, in

accordance with the MCM, UCMJ, and DAFMAN 51-203 and in the priority designated by the

Chief Trial Judge. Assists counsel, hearing officers, and the military judge in preparing and

marking documents associated with proceedings and may assist paralegals with the assembly of

the ROT. Remains neutral and refrains from expressing personal opinions about the case being

reported. Records everything that is said or done verbatim, from the initial Article 39(a) session

until the court adjourns, and maintains the reporter’s notes and recordings according to the Air

Force Records Disposition Standards.

1.10. SJA. Performs the duties of the SJA set out in the UCMJ and MCM. Directly reports to

and advises the court-martial convening authority or commander on military justice matters.

Supervises the administration of military justice for the command and installation. Forwards

specified disposition data for criminal indexing to the appropriate points of contact. Installation

SJAs ensure individuals identified by the Force Support Squadron Commander (FSS/CC) receive

Article 137 briefings (if there is not a local installation SJA, then the SJA who advises the court-

martial convening authority will ensure the Article 137 briefings are completed). Serves as the

release authority on certain court-martial and disciplinary documents pursuant to VC and civilian

victim attorney requests for information, as outlined in this instruction. Supports CIP capabilities

and the OSTC-led Investigation and Prosecution Support Team (IPST) capability. Ensures legal

office responsibilities are accomplished in accordance with this and other applicable instructions.

See Section 1C for additional guidance.

1.11. Court-Martial Convening Authority. Exercises court-martial convening authority

powers, and, upon OSTC determination to refer offenses under their authority, convenes courts-

DAFI51-201 24 JANUARY 2024 33

martial to support OSTC’s statutory authority to refer covered, known, and related offenses to trial.

With the exception of the President of the United States, the Secretary of Defense, and SecAF, is

a commander or commanding officer on G-series orders. In this regulation, the term “court-martial

convening authority” may be used to refer to an individual authorized to convene courts-martial

or to the authority to convene courts-martial. Convening Authorities are specified in the

Worldwide Convening Authority Designation Memorandum (WWCADM) (see Chapter 2).

1.12. Installation Commanders’ Logistical Support.

1.12.1. Commanders of installations where AF/JAJ, OSTC, or AF/JAT personnel are assigned

or on temporary duty (TDY) are responsible for their administrative and logistical support.

Host commanders will provide support to AF/JAJ, OSTC, and AF/JAT personnel as set forth

in AFI 25-201, Intra-Service, Intra-Agency, and Inter-Agency Support Agreements

Procedures.

1.12.1.1. Installation commanders will ensure that assigned military judges, court

reporters, DTC, VC, STC, and ADC offices receive no less than the same support provided

to other units assigned to the host command. This support must include, but is not limited

to, the following:

1.12.1.1.1. Private office space clearly designated as a military judge, DTC, VC, STC,

or ADC office including necessary furniture/supplies and access to electronic law

library facilities. When practicable, ADC offices and VC offices shall be physically

separated from one another and from the offices of the SJA and the convening

authority. DAFMAN 32-1084, Standard Facility Requirements, sets forth minimum

space requirements.

1.12.1.1.2. All communications equipment and support, to include: telephone

services, e-mail capability, installation of security measures in offices where AF/JAJ,

OSTC, and AF/JAT personnel are designated to work, to include courtrooms, and

office equipment, including, but not limited to, computer refresh and multi-function

device equipment including copier maintenance agreements.

1.12.1.1.3. Military family housing on the same basis as other personnel of like grade,

rank, and responsibility.

1.12.1.1.4. Civilian personnel services normally provided by the Civilian Personnel

Office.

1.12.1.1.5. Publications support normally furnished to tenant units.

1.12.1.1.6. Funding for necessary supplies.

1.12.1.1.7. Duress alarms.

1.12.1.2. Military transportation support is crucial to successful execution of military

justice proceedings. The host installation commander should provide suitable military

transportation support, such as a government-owned vehicle, to AF/JAJ, OSTC, and

AF/JAT personnel TDY to their installation.

1.12.1.3. Host SJAs will assist TDY AF/JAJ, OSTC, and AF/JAT personnel by arranging

appropriate billeting, messing, and transportation in advance to ensure TDY personnel may

devote full attention to their duties.

34 DAFI51-201 24 JANUARY 2024

1.12.1.4. AF/JAJ and OSTC, as appropriate, provide funding for travel costs and per diem

expenses for their personnel when TDY to execute their military justice duties. AF/JAT

provides funding for military judges when TDY to execute their military duties. The

convening authority funds traveling court reporters.

1.13. Unit Commander. Exercises authorities of a commanding officer set out in the UCMJ and

MCM.

1.14. FSS/CC. Identifies individuals that require Article 137 briefings.

Section 1C—Additional Requirements and Delegations Affecting the Staff Judge Advocate

1.15. Title of Staff Judge Advocate. Unless otherwise specified by TJAG, the senior judge

advocate on a commander’s staff is designated the “Staff Judge Advocate” of that command. All

other judge advocates assigned to a command are designated “Assistant Staff Judge Advocates”

for the purpose of pretrial advice, post-trial recommendations, and court-martial orders.

1.16. Acting as the Staff Judge Advocate. The Deputy Staff Judge Advocate (DSJA) or other

assistant staff judge advocate signs “Acting as the Staff Judge Advocate” when the SJA is absent

or ineligible to act in a particular case. In all other matters, titles such as “Deputy Staff Judge

Advocate” or “Chief, Military Justice,” may be used.

1.17. Convening Authority Delegation of Military Justice Administrative Duties. Convening

authorities may delegate military justice administrative duties to the SJA or any other attorney

assigned to the servicing SJA’s office. A template delegation letter is located on the VMJD and

AF/JAJM Teams Page. In addition to the duties listed in the template, convening authorities may

delegate any other military justice administrative duties not expressly requiring convening

authority action. The delegation letter should be updated when a new commander is appointed to

or assumes a command with convening authority.

1.18. Signing on Behalf of the Convening Authority. When signing a military justice matter

for the convening authority, use the signature element, “FOR THE COMMANDER.”

1.19. Staff Judge Advocate Rating Chain. To maintain unfettered access to military justice

legal advice, avoid conflicts of interest, execute delegations of convening authority prerogatives,

and maintain confidentiality, officers designated as SJAs by TJAG in accordance with Article 6(a),

UCMJ, shall report to and be rated by the first commander in the chain of command who has been

designated as a convening authority. TJAG-designated SJAs, assigned to units where the

commander is not designated as a convening authority, should ordinarily report to and be rated by

the immediate commander despite not being designated as a convening authority.

Section 1D—Applicability of This Instruction

1.20. General Rule. This version of DAFI 51-201 applies equally to cases under traditional

command authority and cases under OSTC authority. See paragraph 1.23.

1.21. Effective Dates. Unless otherwise noted, this version of DAFI 51-201 applies to military

justice administration after 27 December 2023. Nothing in this publication shall be construed to

invalidate any restraint, preliminary hearing, referral of charges, trial in which arraignment

occurred, or other action began on or before 27 December 2023. Any such restraint, preliminary

hearing, referral of charges, trial in which arraignment occurred, or other action may proceed in

DAFI51-201 24 JANUARY 2024 35

the same manner and with the same effect as prescribed in the previous applicable version of this

instruction.

1.22. Article 60 Authority. Use the version of Article 60 in effect on the date of the earliest

offense resulting in a conviction to determine the convening authority’s ability to modify the

findings and/or sentence for an entire case. In all cases, regardless of the date of the offense, the

convening authority may suspend certain sentences upon the recommendation of the military judge

pursuant to Article 60a(c).

1.23. Offenses Under OSTC Authority. After 27 December 2023, STC have exclusive

authority to determine whether reported misconduct constitutes an offense under OSTC authority.

See R.C.M. 301, 303A. This instruction applies to the administration of offenses under traditional

command authority as well as those offenses under OSTC authority.

36 DAFI51-201 24 JANUARY 2024

Chapter 2

COURT-MARTIAL CONVENING AUTHORITY

Section 2A—DAF Court-Martial Convening Authority (Articles 22, 23, and 24, UCMJ;

R.C.M. 504)

2.1. General Court-Martial Convening Authority (GCMCA).

2.1.1. The following DAF commanders may exercise GCMCA:

2.1.1.1. Commanders of organizations designated in Article 22(a)(7), UCMJ, who have

been authorized by SecAF to convene general courts-martial (GCMs) under Article

22(a)(7), UCMJ.

2.1.1.2. Commanders of organizations not designated in Article 22(a)(7), UCMJ, but who

are authorized and designated to convene GCMs by SecAF under Article 22(a)(8) or who

are empowered by the President under Article 22(a)(9), UCMJ.

2.1.2. Commanders empowered by SecAF to convene GCMs are listed in the current

worldwide convening order or worldwide convening authority designation memorandum

(WWCO or WWCADM) which can be located on the VMJD and AF/JAJM Teams Page.

2.1.3. Requests for authorization to exercise GCMCA are forwarded through functional

channels with commanders’ indorsements to AF/JAJM.

2.2. Special Court-Martial Convening Authority (SPCMCA).

2.2.1. The following DAF commanders may exercise SPCMCA:

2.2.1.1. Commanders authorized to convene GCMs under paragraph 2.1. See Article

23(a)(1), UCMJ.

2.2.1.2. Commanders of organizations designated in Article 23(a), UCMJ, who have been

authorized to exercise SPCMCA by SecAF. Commanders empowered by SecAF to

convene special courts-martial (SPCMs) are listed in the current WWCO or WWCADM

which can be located on the VMJD and AF/JAJM Teams Page.

2.2.1.3. Commanders of organizations designated in Article 23(a)(4), UCMJ, who are not

authorized by SecAF to exercise SPCMCA, but who are authorized by the superior

commander of an Air Force MAJCOM or Space Force FLDCOM to convene SPCMs.

Note: Prior to exercise of SPCMCA by a commander pursuant to this paragraph, the SJA

of the authorizing MAJCOM/FLDCOM must send a copy of the authorization to

AF/JAJM.

2.2.1.4. Commanders who are not authorized by SecAF to exercise SPCMCA, but who

are authorized to exercise SPCMCA by the superior commander of a DAF component of

a unified or specified combatant command.

2.2.1.4.1. The commander of a DAF component of a unified or specified combatant

command may only authorize subordinate commanders to exercise SPCMCA if the

subordinate commander commands an organization identified by Article 23, UCMJ,

and that organization or unit is assigned or attached to the superior component

commander’s command. See AFI 38-101, Manpower and Organization.

DAFI51-201 24 JANUARY 2024 37

2.2.1.4.2. Prior to the exercise of SPCMCA by a commander pursuant to

paragraph2.2.1.4.1, the SJA of the authorizing GCMCA must send a copy of the

authorization to AF/JAJM.

2.2.2. A request for authorization to exercise SPCMCA or a superior commander’s

authorization for a subordinate commander to exercise SPCMCA is forwarded through

functional channels with commanders’ indorsements to JAJM to process SecAF’s

acknowledgement. Note: This does not apply to organizations identified in paragraph

2.2.1.4.

2.2.3. SPCMCA includes the authority to refer cases to a special court-martial by military

judge alone as defined in Article 16(c)(2)(A).

2.3. Summary Court-Martial Convening Authority (SCMCA). Any person who may convene

a GCM or SPCM may convene a summary court-martial (SCM) under Article 24(a)(1), UCMJ.

2.3.1. The commanding officer of a detached squadron or other DAF detachment may also

convene an SCM under Article 24(a)(3), UCMJ, but only with the express authorization of the

superior GCMCA for the detached squadron or other detachment consistent with R.C.M.

504(b)(2)(B).

2.3.2. Prior to the exercise of summary court-martial convening authority by a commander

pursuant to paragraph 2.3.1, the SJA of the authorizing GCMCA sends a copy of the

authorization to AF/JAJM.

Section 2B—UCMJ Jurisdiction (Articles 2 and 3, UCMJ; R.C.M. 201, 202, 203, and 204)

2.4. Exercise of UCMJ Jurisdiction. This section details the exercise of UCMJ jurisdiction and

general, special, and summary courts-martial convening authority in the DAF. No other order,

document, or implementing agreement is required unless otherwise stipulated below. This section

applies to DAF members and Air Reserve Component members when subject to the UCMJ in

accordance with Article 2, UCMJ.

2.5. Members of Department of Air Force Tenant Organizations.

2.5.1. Unless otherwise stated in this chapter, all members of a DAF tenant unit or DAF

element, whether designated as a unit or not, are attached to the host command and its

appropriate subordinate and higher commands for the exercise of court-martial convening

authority. On bases, to include joint bases, where a unit of another military service has been

designated as the host unit, the DAF unit that has the preponderance of military justice

capabilities will be considered the “host command” for the purposes of this paragraph unless

an installation service agreement specifying the contrary is otherwise in place. Requests for

exceptions to the exercise of jurisdiction or convening authority pursuant to this instruction

shall be coordinated with AF/JAJM in advance of any exercise of jurisdiction pursuant to this

paragraph. Attachment to a host command for purposes of this paragraph does not serve to

divest any commander from the lawful exercise of convening authority. See paragraph 2.5.5.

2.5.2. For guidance specific to the Reserve Component, see Chapter 3.

2.5.3. Members of a tenant unit, DAF Element, or Reserve or National Guard unit include

personnel on temporary duty with or otherwise attached to such unit. See also AFI 90-1001,

Total Force Associations (TFAs).

38 DAFI51-201 24 JANUARY 2024

2.5.4. Jurisdiction pursuant to paragraph 2.5 is concurrent jurisdiction to be shared between

the command chain of the relevant tenant, DAF Element, Reserve, or Title 10 National Guard

unit and the relevant Regular Air Force or Space Force unit or host command.

2.5.5. Attachment for the exercise of court-martial convening authority does not serve to

divest any commander of authority over a member of an Air Force or Space Force tenant unit,

an Air Force or Space Force Element, or a member of the Reserve or National Guard.

2.5.5.1. Exercise of such authority by the applicable Regular Air Force or Space Force

host command is preferred to resolve the matter expeditiously, preserve resources, and

retain command prerogatives pertaining to matters affecting the maintenance of good order

and discipline within the DAF.

2.5.5.2. Convening authorities with concurrent jurisdiction must coordinate before

disposition is determined.

2.5.5.3. When it is necessary or desirable to deviate from this jurisdiction arrangement, it

must be documented in a support agreement or similar document signed at the GCMCA

level or a superior level of command with a copy provided to AF/JAJM.

2.5.6. Judge Advocate Field Operating Agency (JA FOA) (formerly AFLOA). The following

members are attached to JA FOA/CC, the Deputy Judge Advocate General (DJAG), for the

exercise of SPCMCA and GCMCA, regardless of where they are stationed:

2.5.6.1. DTC, CDDC, SDC, and CDVC;

2.5.6.2. ADC and DP;

2.5.6.3. Appellate Government Counsel and Appellate Defense Counsel;

2.5.6.4. VC and VP;

2.5.6.5. Office of Disability Counsel judge advocates and paralegals; and

2.5.6.6. All other members assigned to the JA FOA

2.6. Jurisdiction of Air Force District of Washington (AFDW). The commander, AFDW

(AFDW/CC), as GCMCA, and the Commander, 11th Wing (11 WG/CC), as the SPCMCA, are

authorized to exercise court-martial convening authority over Air Force members whose

organization is not subordinate to an Air Force or Space Force GCMCA and who are not assigned

to an Air Force or Space Force commander authorized to exercise general or SPCMCA. Such

organizations include, but are not limited to, Air Force and Space Force field operating agencies,

direct reporting units, elements of DoD activities, DoD field agencies, and other departments and

agencies of the United States Government.

2.6.1. Air Force personnel stationed or otherwise performing duty at or near Fort Meade,

Maryland, but not assigned, attached, or detailed to the 70th Intelligence, Surveillance, and

Reconnaissance Wing or its subordinate units are attached to AFDW and its subordinate

commands for the exercise of court-martial convening authority.

2.6.2. Military judges and staff assigned to the AF/JAT, regardless of base of assignment, and

the military appellate judges and staff assigned to the AFCCA are attached to AFDW and its

subordinate commands for the exercise of court-martial convening authority.

DAFI51-201 24 JANUARY 2024 39

2.6.3. Inmates, parolees, and members on appellate leave assigned to the Air Force Security

Forces Center (AFSFC), Confinement and Corrections Directorate, are attached to AFDW and

its subordinate commands for court-martial convening authority. This includes members of

the USSF who are so assigned.

2.6.4. See paragraph 2.12 for the exercise of convening authority over general officers.

2.7. Jurisdiction of Space Operations Command (SpOC). The commander, SpOC

(SpOC/CC), is authorized to exercise court-martial convening authority over Space Force

members whose organization is not subordinate to a Space Force or Air Force GCMCA and who

are not assigned to a Space Force or Air Force commander authorized to exercise general or

SPCMCA. Such organizations include, but are not limited to, Space Force field operating

agencies, direct reporting units, elements of DoD activities, DoD field agencies, and other

departments and agencies of the United States Government.

2.7.1. Space Force personnel stationed or otherwise performing duty at or near Fort Meade,

Maryland, but not assigned, attached, or detailed to the 70th Intelligence, Surveillance, and

Reconnaissance Wing or its subordinate units are attached to SpOC and its subordinate units

for the exercise of court-martial convening authority.

2.7.2. See paragraph 2.12 for the exercise of convening authority over general officers.

2.8. Members of the Air Force Assigned to Headquarters Department of the Air Force, Joint

Staff, or Office of the Secretary of Defense. Air Force members assigned or attached to

Headquarters DAF, including the Air Staff and the Office of SecAF; Office of the Chief of Space

Operations; Office of Special Trial Counsel; Joint Staff, including the Office of the Chairman of

the Joint Chiefs of Staff; and the DoD, including the Office of the Secretary of Defense, are

attached to AFDW and subordinate units for the exercise of court-martial convening authority.

See AFPD 51-5, Administrative Law, Gifts, and Command Relationships.

2.9. Members of the Space Force Assigned to Headquarters Department of the Air Force,

Joint Staff, or Office of the Secretary of Defense. Space Force members assigned or attached

to Headquarters DAF, including the Office of Chief of Space Operations, Air and Space Staffs and

the Office of SecAF; Joint Staff, including the Office of the Chairman of the Joint Chiefs of Staff;

and the DoD, including the Office of the Secretary of Defense, are attached to SpOC and

subordinate units for the exercise of court-martial convening authority. See AFPD 51-5..

2.10. North Atlantic Treaty Organization (NATO). Air Force members assigned or attached

to NATO and stationed in Europe are attached to the United States Air Forces in Europe and Air

Forces Africa for the exercise of court-martial convening authority and other disciplinary purposes.

Space Force members assigned or attached to NATO and stationed in Europe are attached to SpOC

for the exercise of court-martial convening authority and other disciplinary purposes. See DAFPD

51-2.

2.11. Joint Commands and Other Armed Forces. Pursuant to R.C.M. 201(e), a commander of

a unified or specified combatant command may convene courts-martial over any armed forces

member. Also, a convening authority of one armed force may convene a court-martial to try a

member of another armed force. Nonetheless, a joint or non-DAF commander normally allows

the appropriate DAF commander to exercise court-martial convening authority over a DAF

member. See AFI 38-101.

40 DAFI51-201 24 JANUARY 2024

2.11.1. DAF members in a joint command fall under the applicable DAF component

commander for disciplinary purposes. DAF members assigned or attached to an air

expeditionary unit fall under the air expeditionary unit chain of command for disciplinary

purposes. While attached to a joint command or air expeditionary unit, DAF members

normally remain assigned to a home station DAF unit, and the home station chain of command

maintains concurrent jurisdiction.

2.11.2. DAF convening authorities exercise court-martial jurisdiction over members outside

the DAF only when warranted by R.C.M. 201(e)(3). Prior to exercising such authority, the

convening authority’s SJA must coordinate with AF/JAJM.

2.11.3. Transmitting or transferring any proceeding from one armed force to another armed

force within the DAF prior to final action (e.g., court-martial entry of judgment (EoJ), Article

15 SJA legal review, or separation action) shall not invalidate an otherwise valid proceeding.

2.12. General Officers. Only a commander of an Air Force MAJCOM, Space Force FLDCOM,

or a superior convening authority may exercise court-martial convening authority over a DAF

general officer. This limitation does not apply to the exercise of court-martial convening authority

by the commanding officer of a unified or specified command. SecAF has court-martial convening

authority over the Chief of Staff of the Air Force, Chief of Space Operations, commanders of

MAJCOMs, commanders of FLDCOMs, AFDW/CC, and DAF generals not assigned to a

MAJCOM, FLDCOM, or combatant command.

2.13. United States Air Force Academy (USAFA) Cadets. Only the Commandant of Cadets, a

superior commander at USAFA (e.g., the Superintendent), or a commander designated by SecAF

may exercise court-martial convening authority over a USAFA cadet. USAFA cadets are

considered either Regular Air Force or Space Force personnel and are subject to the UCMJ. See

Article 2(a), UCMJ. For purposes of courts-martial jurisdiction and limitations on punishments,

cadets are treated as officers. See R.C.M. 1003(c)(2)(A). However, cadets cannot serve as

members on a court-martial.

2.14. Jurisdiction over Separated and Retired Members.

2.14.1. General Provision. Generally, jurisdiction to try a member of the military by court-

martial ceases upon discharge or other separation, provided the discharge is a complete

termination of military status and relieves the member of any further military service, including

service in the Individual Ready Reserve. Jurisdiction over active-duty military personnel

normally continues until the member receives a valid discharge certificate, there is a final

accounting of pay, and the member has completed administrative clearance processes required

by SecAF. See United States v. Christensen, 78 M.J. 1 (C.A.A.F. 2018) (reaffirming the three-

part test and applying a “reason or policy” standard); United States v. Nettles, 74 M.J. 289

(C.A.A.F. 2015) (pertaining to discharge of reservists); United States v. Hart, 66 M.J. 273

(C.A.A.F. 2008). Exceptions may include regaining military jurisdiction for members upon

reentry into military service or recalling to active-duty retired members receiving pay. See

Article 2(a), UCMJ, R.C.M. 202(a), R.C.M. 204(d).

2.14.2. Members Pending Expiration of Terms of Service, Discharge or Separation. Court-

martial jurisdiction extends to those Regular Air Force or Space Force members whose

enlistments have expired but are awaiting discharge. See Articles 2(a)(1) and 3(a), UCMJ. A

DAF member separated or discharged prior to the expiration of a term of service on active duty

DAFI51-201 24 JANUARY 2024 41

remains subject to UCMJ jurisdiction and may be recalled if the member retains military status

in a reserve component. Action with a view to trial should be taken as soon as practicable to

preserve jurisdiction. Jurisdiction may attach by apprehension, imposition of restraint, or

preferral of charges. Once attached, jurisdiction continues for purposes of trial, sentence, and

punishment. See R.C.M. 202(c).

2.14.3. Retired Personnel.

2.14.3.1. Retired Regular Air Force members who are entitled to receive pay (Article

2(a)(4), UCMJ), retired members of a reserve component receiving hospitalization from an

armed force (Article 2(a)(5), UCMJ), and retired reserve component members not

receiving pay (see Morgan v. Mahoney, Misc. Dkt. No. 99-03, 1999 CCA LEXIS 173

(AFCCA 15 Mar. 1999)), may be tried by court-martial subject to both legal and policy

limitations.

2.14.3.1.1. For retired Air Reserve Component (ARC) members, the acts or omissions

must have been committed while on active duty, inactive duty training or for ANG

members while in federal status. Even so, prosecution is ordinarily not appropriate

unless their conduct clearly links them with the military or is adverse to a significant

military interest of the United States.

2.14.3.1.2. Retired Regular Air Force members who are subject to the UCMJ and who

commit misconduct after retirement will not ordinarily be tried by court-martial unless:

2.14.3.1.2.1. A federal, state or local jurisdiction is unable or unwilling to

prosecute; and

2.14.3.1.2.2. The misconduct links them to the military or is adverse to a

significant military interest of the United States. See DAFPD 51-2.

2.14.3.2. If a retiree meeting the qualifications of paragraph 2.14.3.1 is to be recalled to

active duty to be tried by court-martial, the commander seeking the recall should consider

the location of the alleged offense, whether the alleged offense occurred outside the United

States, the current location of the retired member, and the current location of the victim, if

any, to determine the appropriate recall authority. Retired DAF members recalled to active

duty by SecAF may be tried by a court-martial convened by a DAF convening authority

and confined in accordance with applicable instructions.

2.14.3.3. SecAF approval to recall a retired member to active duty must be obtained prior

to preferral of charges. The supporting legal office of the command seeking the member’s

recall forwards the request for SecAF approval via functional channels to AF/JAJI. For

offenses under OSTC authority, AF/JAJI will coordinate the request with Headquarters

OSTC for LSTC input. The request should include coordination with the GCMCA and

additional information addressing the policy implications described in paragraph

2.14.3.1. If there is an immediate issue regarding the statute of limitations (Article 43,

UCMJ) and the time prescribed by the relevant statute of limitations is about to expire, the

SJA coordinates immediate preferral of charges and forwards a request for SecAF approval

of the retiree’s recall as soon as possible.

42 DAFI51-201 24 JANUARY 2024

2.15. Jurisdiction Involving Federal Agencies.

2.15.1. Department of Justice. As with state (non-federal) nonexclusive jurisdiction, the

determination of whether civilian federal or military authorities will exercise jurisdiction is

made through consultation or prior agreement between appropriate DAF and civilian

authorities. Convening authorities and SJAs foster relationships with local civilian authorities

with a view toward maximizing DAF jurisdiction. See DoD Instruction (DoDI) 5525.07,

Implementation of the Memorandum of Understanding Between the Departments of Justice

and Defense Relating to the Investigation and Prosecution of Certain Crimes, which sets forth

DoD and Department of Justice responsibilities for investigating and prosecuting offenses over

which the two departments have concurrent jurisdiction.

2.15.2. United States Secret Service. The Secret Service exercises primary investigative

responsibility for all cases involving alleged threats against the President or successors to the

Presidency. 18 U.S.C. § 3056, Powers, authorities, and duties of United States Secret Service.

The Chief, AF/JAJM, or a designee, coordinates with representatives of the Department of

Justice and the Secret Service to determine which department will exercise jurisdiction in any

such case involving a DAF subject.

2.15.3. 18 U.S.C. § 3261 et seq., Criminal offenses committed by certain members of the

Armed Forces and by persons employed by or accompanying the Armed Forces outside the

United States (Military Extraterritorial Jurisdiction Act (MEJA) of 2000). Pursuant to MEJA,

military members subject to the UCMJ as well as civilians employed by or accompanying the

armed forces outside the United States may be subject to United States civilian federal

jurisdiction for offenses committed while overseas. The court-martial convening authority

with jurisdiction reports any potential MEJA cases through command channels, and the

supporting SJA reports the same through functional channels to AF/JAJM. AF/JAJM

coordinates potential MEJA cases with the DoD Office of General Counsel and Department of

Justice. See DAFI 51-205, Delivery of Personnel to United States Civilian Authorities for

Trial and Criminal Jurisdiction Over Civilians and Dependents Not in the United States, for

guidance and procedures in MEJA cases.

2.15.4. Federal Criminal Proceedings. A member pending trial or who has been tried by a

federal civilian court may not be tried by court-martial or subjected to NJP proceedings for the

same act or omission. Unlike exercise of jurisdiction by a state or foreign authority, exercise

of jurisdiction by federal civilian authorities prevents exercise of jurisdiction by military

authorities for the same act or omission. See R.C.M. 907(b)(2)(C). See paragraph 2.16.4 for

further guidance.

2.16. Jurisdiction Involving State or Foreign Prosecution Interest (R.C.M. 201(d)).

2.16.1. Courts-martial have exclusive jurisdiction of purely military offenses. However, when

a member is subject to both the UCMJ and state (non-federal) or foreign jurisdiction for

substantially the same act or omission, the determination of which sovereign shall exercise

jurisdiction should be made through consultation or prior agreement between appropriate

authorities (e.g., memoranda of agreements, status of forces agreements). Convening

Authorities, SJAs, and OSTC should foster relationships with local civilian authorities with a

view toward maximizing DAF jurisdiction when it is in the DAF’s best interest. For cases

within the United States involving sexual assault, see Section 10A.

DAFI51-201 24 JANUARY 2024 43

2.16.1.1. Members who are being investigated by a civilian jurisdiction which has not

relinquished jurisdiction, as well as members pending civilian criminal trial or who have

been tried by a state or foreign court, should not ordinarily be tried by court-martial or

subjected to NJP for the same act or omission, except upon SecAF approval (see

paragraph 2.16.4.). This policy is based on comity between the federal government and

state and foreign governments and is not intended to confer additional rights upon the

accused. See United States v. Kohut, 44 M.J. 245 (C.A.A.F. 1996).

2.16.1.1.1. This limitation does not apply to NJP action or vacation proceedings under

R.C.M. 1108 and MCM, Part V, paragraph 6a(4)-(5).

2.16.1.1.2. A member may be considered to be “pending trial” when state or foreign

authorities have expressed their intention to try the member, even if formal charges

have not yet been brought (e.g., upon arrest of the member or a representation by

civilian authorities that they intend to pursue the case).

2.16.1.1.3. A member is deemed “tried” if jeopardy has attached. Follow the state or

foreign law to determine when this occurs.

2.16.1.1.4. A member is not deemed “tried” if the prosecution is deferred, held in

abeyance, or otherwise diverted from normal channels pending completion of

conditions as an alternative to prosecution, without an initial determination of guilt. If

deferral, abeyance, or diversion is conditional and the member remains subject to

prosecution if a condition is violated, UCMJ action should not be taken until after the

deferral, abeyance, or diversion is completed.

2.16.1.1.5. A member is not deemed “tried” in situations where jeopardy attached

without resolution of the case, if further prosecutorial action is authorized under state

or foreign law (for example, in the case of a mistrial).

2.16.1.2. If the state or foreign proceedings end without jeopardy attaching or if the DAF

receives clear indication in writing from an authorized state or foreign government

representative that the state or foreign proceedings will not continue pending military

authorities taking UCMJ action, the principle of comity is satisfied and the DAF may

proceed with court-martial or NJP.

2.16.2. When a member is subject to both the UCMJ and state or foreign jurisdiction, the

installation commander and SJA should determine whether the exercise of jurisdiction is in the

best interests of the DAF. For offenses under OSTC authority, STC, in consultation with the

installation commander and installation SJA, will determine whether the exercise of

jurisdiction is in the best interest of the DAF. Some factors to consider in making this

determination include, but are not limited to location of offense, lead investigative agency,

status of victims and witnesses, and public attention.

2.16.2.1. If the exercise of jurisdiction is sought, DAF authorities (normally the SPCMCA

SJA or delegee, or STC for offenses under OSTC authority) contact appropriate civilian

authorities; notify them of the DAF desire to exercise jurisdiction; and, if civilian

authorities have primary jurisdiction, request a waiver of state or foreign jurisdiction

(additional procedures for seeking jurisdiction from foreign authorities are discussed in

paragraph 2.16.3).

44 DAFI51-201 24 JANUARY 2024

2.16.2.2. DAF requests for waivers of jurisdiction from state or foreign authorities must

be in writing with written responses requested.

2.16.2.3. If state or foreign authorities decline or waive the right to exercise jurisdiction,

the DAF may proceed with action, up to and including court-martial or NJP.

2.16.2.4. The written request and response shall be maintained as part of the case file and

documented in DCMS-AMJAMS.

2.16.3. Foreign Criminal Jurisdiction. The procedures to determine whether United States

military authorities or foreign (host nation) authorities will exercise criminal jurisdiction over

military members present in foreign countries vary from country to country. The status of

forces agreement, or a similar agreement, should address procedures for dealing

with nonexclusive or concurrent jurisdiction offenses. Comply with AFI 51-402,

International Law.

2.16.4. Secretarial Approval. Only SecAF may approve initiation of court-martial or NJP

action against a member previously tried by a state or foreign court for the same act or

omission, regardless of whether the member was convicted or acquitted of the offense.

Approval by SecAF will be granted in only the most unusual cases when justice and good

order and discipline can be satisfied in no other way. A request may be submitted only

after the member has been tried in a state or foreign court. Submit the request with full

justification and commanders’ indorsements through functional channels to AF/JAJI. For

offenses under OSTC authority, AF/JAJI will coordinate the request with Headquarters

OSTC for LSTC input.

2.16.5. Department of Defense (DoD) Civilian Employees, Department of Defense (DoD)

Contractor Personnel, and Other Persons. For authorities and procedures related to DoD

civilian employees, DoD contractor personnel, and other persons, refer to DAFI 51-205.

DAFI51-201 24 JANUARY 2024 45

Chapter 3

MATTERS SPECIFIC TO THE AIR RESERVE COMPONENT

Section 3A—Overview

3.1. Air Reserve Component (ARC) References. ARC is both the Air Force Reserve (AFR)

and the Air National Guard (ANG).

3.2. ARC Status. Practitioners must be cognizant of how different ARC statuses impact UCMJ

jurisdiction and military justice administration. These statuses are defined in law and policy,

including but not limited to: 10 U.S.C. § 12301, Reserve components generally; 10 U.S.C. § 12302,

Ready Reserve; 10 U.S.C. § 12304, Selected Reserve and certain Individual Ready Reserve

members; order to active duty other than during war or national emergency; 10 U.S.C. § 12310,

Reserves: for organizing, administering, etc., reserve components; 32 U.S.C. § 325, Relief from

National Guard duty when ordered to active duty; DoDI 1215.06, Uniform Reserve, Training, and

Retirement Categories for the Reserve Components; AFMAN 36-2136, Reserve Personnel

Participation. For a primer on ARC statuses, see The Military Commander and the Law.

Section 3B—Jurisdiction, UCMJ Authority, and Recall Process

3.3. Court-Martial Jurisdiction over ARC Members. ARC members meeting the

requirements of Article 2, UCMJ, are subject to UCMJ jurisdiction for NJP, and general, special,

and summary courts-martial for offenses committed while in federal status, on active duty, or on

IDT for AFR members. For guidance on NJP, see DAFI 51-202, Nonjudicial Punishment. Note:

Federal active duty statuses for ANGUS personnel may include active duty for training (ADT),

active duty other than training (ADOT) which includes operational support to the active

component (ADOS-AC) or active-duty operational support to the reserve component (ADOS-

RC), and National Guard Bureau (NGB). See Article 2(a)(3), UCMJ, for further guidance.

Note: For ARC members, contact Air Force Reserve Command (AFRC) JA for the members’

orders-history, and review the member’s orders to determine the status (e.g., annual tour or

IDT, etc.) and the authority for the orders (e.g., Title 10, Title 32, state authority, etc.). ANG

members’ orders may have a clause that auto-converts orders from one status to another, so it is

vital to review orders to identify the member’s status as early into the investigation as possible

to identify whether the military has prosecutorial jurisdiction over the member.

3.3.1. Concurrent Nature of Jurisdiction. Jurisdiction pursuant to paragraph 3.3 is concurrent

jurisdiction to be shared between the command chain of the relevant ARC unit and the relevant

Regular Air Force unit or host command. Convening authorities with concurrent jurisdiction

must coordinate before disposition is determined. Attachment for the exercise of court-martial

convening authority does not serve to divest any commander from the exercise of such

authority over a member of an Air Force or Space Force tenant unit or Air Force or Space

Force element or a member of the ARC.

3.3.2. Exercise of Court-Martial Jurisdiction over ANGUS Members. All ANGUS members

are assigned to the 201st Mission Support Squadron (MSS) and are attached for ADOT or ADT

to the relevant Regular DAF unit or host command.

46 DAFI51-201 24 JANUARY 2024

3.3.2.1. Convening authorities generally will reside with the Regular Air Force unit, host

command, or with that attached Regular USAF or USSF unit host command’s

NAF/FLDCOM. Moreover, the exercise of convening authority by the Regular USAF or

USSF host command ensures expeditious resolution of military justice matters (bearing in

mind due process considerations of the accused and the interest of victims in timely

resolution), preserves resources, and retains command prerogatives pertaining to matters

affecting the maintenance of good order and discipline within the DAF.

3.3.2.2. Convening authorities with concurrent jurisdiction must coordinate before

disposition is determined. Accordingly, prior to taking judicial action against an ANG

member, legal offices, commanders, and convening authorities at all attached Regular DAF

unit or host commands must coordinate with 201 MSS through Air National Guard

Readiness Center (ANGRC). Correspondence can be directed to

[email protected]. Such coordination is required to ensure

jurisdiction properly attaches. Note: Attached/host command legal office coordination

with the Military Justice Attorney for the National Guard Bureau, Office of the General

Counsel (NGB-GC) is required; however, NGB-GC is not an active-duty SJA, but a legal

advisor assigned to support the 201 MSS in ensuring appropriate Total Force Discipline

with regard to current and former ANGUS members.

3.3.3. Duration of Jurisdiction. Once court-martial jurisdiction attaches for an offense, an

accused remains subject to the UCMJ for that offense through the execution and enforcement

of a sentence, or, if not sentenced to confinement, until such time as the member is no longer

in a federal status.

3.3.3.1. AFR members may be involuntarily ordered to active duty as necessary if not in

federal status, on active duty, or in IDT status when the offense is discovered. Once

jurisdiction attaches in accordance with R.C.M. 202(c), the servicing SJA must consult

with AF/JAJI and the member’s Reserve chain of command through AFRC/JA prior to

holding the member on active duty or recalling the member to active duty. AFR members

may be held on active duty pending disposition of offenses or may be released to reserve

status and recalled as necessary for imposing restrictions on liberty in advance of trial,

preferral and referral of charges, preliminary hearing, trial by general or special court-

martial, and initial entry into confinement, if adjudged. See R.C.M. 204(b).

3.3.3.2. ANGUS members are subject to UCMJ jurisdiction while on Title 10 orders, in

accordance with R.C.M. 202(c). However, ANGUS orders cannot be administratively

extended for purposes of investigations into UCMJ violations.

3.3.3.2.1. When ANGUS members have or are about to revert to a State or Title 32

status, the previously attached Regular DAF unit or host command legal office must

contact the Military Justice Attorney for NGB-GC, who is the legal advisor detailed to

the 201 MSS, ANGRC at Joint Base Andrews, to discuss the timing of exercising

jurisdiction and options for maintaining jurisdiction.

3.3.3.2.2. If the attached Regular DAF unit or host command will not be able to

complete UCMJ disciplinary action by NJP or court-martial before an ANGUS

member’s status reverts to a non-federal status, the Regular DAF unit or host command

should contact the SJA for the Regular Air Force or Space Force unit that is

geographically closest to the member’s home state ANG wing. The two Regular DAF

DAFI51-201 24 JANUARY 2024 47

units should consider whether it would be appropriate to transfer the case, including its

DCMS-AMJAMS entry, to the geographically closer installation in order to complete

any necessary military justice actions, including involuntarily recalling that ANG

member to active duty for NJP or court-martial. Ordinarily the case should transfer to

the installation geographically closer to the member’s home state ANG wing. Note:

Nothing in this paragraph is intended to limit concurrent jurisdiction or otherwise

inhibit the ability of any other convening authority from exercising convening authority

(and its ancillary recall authority, if applicable) over the ANG member.

3.3.4. Jurisdiction over Separated/Retired Members.

3.3.4.1. See paragraph 2.14.1 and paragraph 2.14.2 for effects of completion of Regular

DAF Military Service.

3.3.4.2. A member separated or discharged from the Regular DAF prior to the expiration

of a term of service on active duty remains subject to UCMJ jurisdiction and may be

recalled if the service member retains military status in the ARC.

3.3.4.3. Retired ARC members receiving hospitalization from an armed force (Article

2(a)(5), UCMJ), and retired ARC members not receiving pay (see Morgan v. Mahoney, ,

1999 CCA LEXIS 173 (AFCCA 15 Mar. 1999)), may be tried by court-martial for acts or

omissions committed while on active duty or inactive duty training or in federal status, if

their conduct clearly links them with the military or is adverse to a significant military

interest of the United States.

3.3.5. Responsible Regular DAF Command.

3.3.5.1. AFR members are attached to the host command of the nearest Regular Air Force

wing or Space Force equivalent and its appropriate subordinate and higher commands for

the exercise of court-martial convening authority. See R.C.M. 204(a).

3.3.5.2. ANG members who commit UCMJ offenses while in federal status or on Title 10

orders, will ordinarily be tried by the Regular Air Force or Space Force unit to which they

are assigned or attached. Once recalled to federal status, ANG members not assigned or

attached to a Regular Air Force or Space Force unit will be attached to the host command

of the nearest Regular Air Force wing or Space Force equivalent and its appropriate

subordinate and higher commands for the exercise of court-martial convening authority.

See R.C.M. 204(a).

3.3.5.3. Mobilized or deployed ARC members. The organizational commander exercising

Operational Control (OPCON) over the unit/organization to which a recalled or activated

reservist is assigned or attached for duty (at the mobilized or deployed location) has

concurrent UCMJ punishment authority. However, the deployed commander will confer

with the ARC Airman’s commander at his or her permanently assigned duty station before

taking any action. See AFI 10-402_ANGSUP, Mobilization Planning, paragraph 5.5..

3.4. Court-Martial Considerations for ARC Members.

3.4.1. General and Special Courts-Martial.

3.4.1.1. In ARC member cases, trial counsel must be prepared to introduce sufficient

evidence to establish in personam (personal) jurisdiction over the accused at the time of

the offense. (T-0) See R.C.M. 307; United States v. Miller, 78 M.J. 835 (ACCA 2019);

48 DAFI51-201 24 JANUARY 2024

United States v. McDonagh, 14 M.J. 415, 422 (C.M.A. 1983); United States v. Laws, 11

M.J. 475 (C.M.A. 1981).

3.4.1.2. ARC members must be on active duty prior to arraignment at a general or special

court-martial. (T-0) See R.C.M. 204(b)(1).

3.4.2. Summary Courts-Martial.

3.4.2.1. ARC members may be tried by SCM during the member’s period of Title 10 active

duty or normal period of IDT for reservists.

3.4.2.2. All punishments remaining unserved at the end of a period of Title 10 active duty

or the end of any normal period of inactive duty training may be carried over to subsequent

periods of IDT or Title 10 active duty. See Article 2(d)(4), UCMJ and R.C.M. 204(b)(2).

3.5. Recall to Duty Considerations for ARC Members.

3.5.1. In order for an ARC member to be adjudged confinement or any other restriction on

liberty, SecAF must approve the recall to active duty. See Article 2(d)(5), UCMJ. (T-0)

3.5.2. An ARC member must be in a Title 10 federal status for the following stages in the

court-martial process:

3.5.2.1. While in pretrial confinement; (T-0)

3.5.2.2. Preferral (Note: When preparing the DD Form 458, Charge Sheet, for ARC

members serving on extended active duty, use the organization to which they are attached

for active duty in Block 5); (T-0)

3.5.2.3. Article 32 preliminary hearing; (T-0)

3.5.2.4. Service of referral documents; (T-0)

3.5.2.5. Any court-martial proceeding at which the accused has a right to be present, to

include arraignment and sentencing proceedings; (T-0)

3.5.2.6. When testifying at a court-martial as a named victim of a charged offense; and

3.5.2.7. When required to testify at a court-martial as a military duty (i.e., when there is a

nexus between the member's military duties and the testimony to be given).

3.5.3. An ARC member confined pursuant to a sentence imposed by a court-martial having in

personam jurisdiction over the member at the time of trial remains subject to the UCMJ while

in a military confinement facility. See Article 2(a)(7), UCMJ.

3.6. ARC Member Recall Authority.

3.6.1. Recall Authority for AFR Members. Subject to the consultation requirement of

paragraph 3.8.7 the following individuals may recall a Reserve member to active duty:

3.6.1.1. A GCMCA for the Regular DAF unit to which the ARC member is attached for

training purposes;

3.6.1.2. A GCMCA for the Regular DAF unit in which the ARC member performed

federal service, active duty, or inactive duty training when the offense occurred;

DAFI51-201 24 JANUARY 2024 49

3.6.1.3. A GCMCA for the Regular DAF host unit, as designated in the applicable host-

tenant support agreement, if the ARC member is assigned to an ARC unit for training

purposes or was attached to such a unit when the offense occurred;

3.6.1.4. AFRC/CC, 4 AF/CC, 10 AF/CC, or 22 AF/CC for ARC members assigned or

attached to their respective commands; or

3.6.1.5. A GCMCA for the Regular DAF host command described in paragraphs 2.5.1 and

2.5.5. See Article 2(d), UCMJ.

3.6.2. Recall Authority for ANG Members. If an ANG member reverts to Title 32 or state

status before UCMJ action commences, the member must be recalled to active duty under Title

10 U.S.C. § 802(d), Persons subject to this chapter. (T-0)

3.6.2.1. Subject to the consultation requirement of paragraph 3.8.7, the following

individuals are authorized to order the recall of an ANG member to Title 10 active duty:

3.6.2.1.1. A GCMCA for the Regular DAF unit to which the member was attached for

duty;

3.6.2.1.2. A GCMCA for the Regular DAF unit to which the member was attached for

training;

3.6.2.1.3. A GCMCA for the host command of the nearest Regular Air Force wing or

Space Force equivalent and its appropriate subordinate and higher commands; or

3.6.2.1.4. A GCMCA pursuant to an agreement with the former attached supported

unit commander or attached unit training commander.

3.6.2.2. Legal Office Coordination.

3.6.2.2.1. For offenses under command authority, the local legal office supporting the

relevant SPCMCA will coordinate with the GCMCA legal office and the Military

Justice Attorney for NGB-GC, who is the legal advisor detailed to the 201 MSS when

determining whether ANG member recall to active duty is appropriate in each

applicable case. If the GCMCA concurs with the SPCMCA legal office that an ANG

member’s recall to active duty is appropriate, that local SPCMCA legal office will work

with the NGB-GC legal advisor on the process to involuntarily recall the ANG member

to active duty.

3.6.2.2.2. For offenses under OSTC authority, the local legal office supporting the

relevant SPCMCA will coordinate with the OSTC District Office, in addition to the

GCMCA legal office and the NGB-GC legal advisor to the 201 MSS/CC. If OSTC

determines that court-martial is an appropriate disposition, the local SPCMCA legal

office will work with the Military Justice Attorney for NGB-GC on the process to

involuntarily recall the ANG member to active duty.

3.7. Additional Process Requirements to Recall an ARC Member.

3.7.1. The GCMCA, in consultation with its SJA, evaluates recall recommendations made by

the subordinate unit, legal office, and, as applicable, servicing OSTC District Office.

50 DAFI51-201 24 JANUARY 2024

3.7.1.1. In order to proceed with recall, the GCMCA SJA concurs with the local SPCMCA

SJA’s evaluation of the evidence that establishes a probable cause standard has been met

and that NJP or court-martial is an appropriate UCMJ process.

3.7.1.2. In order to proceed with recall for offenses under OSTC authority, OSTC must

determine that court-martial is an appropriate disposition or defer the offense(s) back to

command. Upon deferral of an offense under OSTC authority, command may take

appropriate action including NJP; however, command may not dispose of a covered offense

by general or special court-martial.

3.7.2. The installation legal office informs the Military Justice Attorney for AFRC/JA

(Traditional Reservists), ARPC/JA (IMAs), or NGB-GC (ANG members) of the GCMCA SJA

concurrence and GCMCA intent to recall the member.

3.7.3. For ANG members: the Military Justice Attorney for NGB-GC forwards the

recommendation to the 201 MSS/CC for concurrence. Upon concurrence, the 201 MSS/CC

requests the applicable state TAG’s documented consultation and concurrence with the

decision to seek the ANG member’s involuntary recall to active duty. See paragraph 3.8.7

for documents that must be forwarded to TAG. Upon receipt of the TAG’s memorandum, the

Military Justice Attorney for NGB-GC forwards the memorandum to the installation legal

office staffing the recall package for continued processing of the request.

3.7.4. If confinement is sought, the recall request is routed through AF/JAJI to the SecAF for

approval in accordance with paragraph 3.8. Note: This step may be skipped if there is no

intent to seek confinement in sentencing.

3.7.5. The GCMCA signs the order recalling the member to Title 10 status for UCMJ action.

3.7.6. AF/A1M provides the man days for the orders under 10 U.S.C. § 802(d).

3.7.7. The member’s home station creates the pay order(s) based upon directions provided by

AFRC/JA (AFR members) or 201 MSS (ANG members).

3.7.8. Travel Funding for Recalled Member. The GCMCA who recalls the member to active-

duty funds travel-related entitlements in accordance with the Joint Travel Regulations, Chapter

3, Part A. https://www.defensetravel.dod.mil/site/travelreg.cfm

3.7.9. Man Days and Travel Funding for Military Witnesses. The convening authority that

convenes a court-martial is responsible for providing man days for active-duty military orders

and any accompanying travel-related entitlements for ARC members appearing as military

witnesses.

3.7.9.1. When calling an ANG member to testify in a court-martial, practitioners must

carefully consider the member's duty status. If there is a factual nexus between an ANG

member's military status and the subject matter of their testimony, or if the ANG member

is a named victim of a charged offense and was in a military status at the time of the alleged

offense, then the ANG member must be placed in Title 10 status on active-duty orders for

their court-martial testimony. ANG members must be placed on orders for the duration of

the court-martial in which they may be called as a military witness. ANG members must

be activated using DAF military personnel appropriations. Conversely, if there is no nexus,

the ANG member is treated as a civilian for purposes of travel and duty status (although

the member may choose to testify in uniform).

DAFI51-201 24 JANUARY 2024 51

3.7.9.2. In cases involving the travel and potential testimony of ANG witnesses, trial

counsel should proactively work with the servicing SJA and the NGB-GC legal advisor to

ensure those witnesses are traveled under the appropriate authority and placed in the

appropriate status during the court-martial.

3.8. Secretarial Approval of ARC Member Recall for Court-Martial. Forward requests for

SecAF approval of an order to recall an ARC member for court-martial via functional channels to

AF/JAJI. For offenses under OSTC authority, AF/JAJI will coordinate the request with

Headquarters OSTC for LSTC input. The request should be made prior to preferral of charges

whenever possible. SecAF must approve the recall prior to referral of charges in order to preserve

confinement or any restriction on liberty as a punishment option. Requests forwarded to AF/JAJI

for processing shall include, at a minimum, the following:

3.8.1. For offenses under command authority, concurrence of the GCMCA for the DAF unit

convening the court-martial. For offenses under OSTC Authority, concurrence of the LSTC.

3.8.2. The preferred or anticipated charges and specifications. If charges have been preferred,

include a copy of the charge sheet and personal data sheet.

3.8.3. A summary of the evidence relating to each offense. Include copies of any reports of

investigation, witness statements, or documentary evidence.

3.8.4. A description and copies of any records of the member’s prior court-martial convictions

and NJPs, if any.

3.8.5. Whether the member refused an offer of NJP for any of the charged offenses at issue in

the case.

3.8.6. The member’s background, including civilian employment, family circumstances, and

character of military service.

3.8.7. Documentation of consultation with the member’s ARC chain of command. Note: For

ANG members, the state TAG must be informed, which consists of providing the state TAG

or chain of command with the general nature of the charges, copies of all investigative reports,

and/or other evidence in the government’s possession used to support a finding of probable

cause.

3.8.8. For offenses under command authority, a written legal review by the installation-level

legal office requesting the recall. Additional written legal reviews by legal offices at

intermediate levels of command are not required unless the intermediate legal office or

reviewing commander non-concurs with the required legal review or recommendation of a

subordinate reviewing commander. Otherwise, written coordination indicating concurrence is

sufficient and preferred.

3.9. NJP Jurisdiction Over ARC Members. Refer to DAFI 51-202 for jurisdictional

considerations and processing of ARC members.

3.10. Other Administrative Action. Refer to DAFI 36-2907, Adverse Administrative Actions,

for disciplinary matters not rising to NJP or court-martial.

52 DAFI51-201 24 JANUARY 2024

Section 3C—Investigations and Initial Disposition

3.11. Investigations Involving ARC Members.

3.11.1. Investigations are conducted by the applicable DAF law enforcement.

3.11.2. The legal office for the responsible Regular DAF command over the ARC member is

responsible for advising law enforcement and the command on the case. For offenses under

OSTC authority, an STC will lead an Investigation and Prosecution Support Team (IPST)

responsible for investigating the reported misconduct. See Section 4A for additional

information on the IPST function.

3.11.3. NGB-GC and ANG wing legal offices are not responsible for advising law

enforcement, or the Regular DAF commander, or the convening authority on the case.

3.11.4. Investigation considerations for ARC members. Upon discovery, the servicing

Regular DAF legal office should consult with AFRC/JA for specific status considerations.

3.11.5. Investigation Considerations for ANG members.

3.11.5.1. When ANG members are investigated, the legal office servicing the DAF

investigative agency must notify the Military Justice Attorney for NGB-GC. When data

entry would potentially compromise an investigation, delayed data entry is authorized. In

those cases, report circumstances of the investigation via email to AF/JAJM and document

the rationale for the delayed entry in DCMS-AMJAMS case notes.

3.11.5.2. Although service members may be involuntarily retained beyond their expiration

of term of service to undergo court-martial, there is no authority to administratively extend

an ANGUS member’s active-duty orders for the purpose of completing an investigation.

3.12. Search Authorizations (M.R.E. 315). Commanders acting as search authority for AFRC

installations must be serving in a Title 10 status to authorize a search. See Section 6A for general

information on search authorizations.

3.13. Initial Disposition Authority of Qualifying Sex-Related Offense Allegation(s) under

Command Authority. This provision applies to offenses committed prior to 28 December 2023

that are not otherwise under OSTC authority. For general instructions and qualifying offenses, see

paragraph 10.5.

3.13.1. Servicing Legal Office. The servicing legal office responsible for advising the Regular

DAF SPCMCA and GCMCA regarding the initial disposition is the Regular Air Force or Space

Force legal office that services the Regular DAF SPCMCA to whom the accused is assigned,

unless such provision of advice has been withheld to the Regular DAF GCMCA legal office

level.

3.13.1.1. Air Force Reserve Members. AFRC is not responsible for the processes defined

in Section 10C. However, servicing Regular DAF legal offices should consult with

AFRC/JA prior to making a recommendation as to initial disposition.

3.13.1.2. Air National Guard Members. The 201 MSS, Air National Guard Readiness

Center is not responsible for the processes defined in Section 10C. However, servicing

Regular DAF legal offices should consult the 201

MSS/CC and the Military Justice

DAFI51-201  24 JANUARY 2024  53 
Attorney for NGB-GC prior to making a recommendation to the SPCMCA as to initial 
disposition of allegations of sexual assault allegations. 
3.13.2.  AFR members accused of committing a qualifying offense in paragraph 10.5 while 
in Title 10 status.  The responsible SPCMCA will obtain the victim’s views on jurisdiction and 
disposition.  See Section 10A.  The responsible GCMCA will conduct the review of initial 
disposition decision.  See paragraph 10.6. 
3.13.3.  ANG members accused of committing a qualifying offense in paragraph 10.5 while 
on  Title  10  active  duty.    The  responsible  SPCMCA  will  obtain  the  victim’s  views  on 
jurisdiction and disposition if the member has been previously recalled to Title 10 active duty 
status or has remained on Title 10 active duty status.  See Section 10A.  The responsible 
GCMCA will conduct the review of initial disposition decision.  See paragraph 10.6.  In the 
event the offense occurred while the member was in Title 32 or civilian status, the active duty 
SPCMCA and GCMCA are not subject to the requirements of Sections 10A-10D. 
3.13.3.1.  If the following conditions apply, the local legal office should contact AF/JAJI 
for guidance: 
3.13.3.1.1.  The ANG member committed the offense while in Title 10 active duty 
status; 
3.13.3.1.2.  The ANG member was subsequently released from Title 10 active duty 
status; 
3.13.3.1.3.  The ANG member has not been recalled; and 
3.13.3.1.4.  No convening authority listed in paragraph 3.6.2 has indicated an intent 
to recall the member for either NJP or court-martial. 
3.13.4.  If the initial disposition decision is to not refer the qualifying offense to a court-martial, 
the responsible legal office will make the required notifications. 
3.13.5.  In cases where the convening authority with initial disposition authority (IDA) decides 
to dispose of qualifying sexual assault offenses as listed in paragraph 10.5, the servicing legal 
office must notify the 201 MSS/CC through the Military Justice Attorney for NGB-GC of the 
decision.  If applicable, the servicing legal office may also recommend adverse administrative 
action which may be appropriately taken by either the 201 MSS/CC or the ANGRC/CC 
3.14.  Initial  Disposition  Authority  for  Offenses  Under  OSTC  Authority  Involving  ARC 
Members. 
3.14.1.  Only an STC may dispose of offenses under OSTC authority.  For general instructions 
and qualifying offenses see Chapters 4 and 10. 
3.14.1.1.  Servicing Legal Office.  The Regular DAF SPCMCA legal office is responsible 
for updating command on case status, unless such provision of advice has been withheld 
to the Regular DAF GCMCA legal office level.  The Regular  DAF SPCMCA is also 
responsible for ensuring the legal offices for any applicable command with concurrent 
jurisdiction (e.g., ARC Wing legal offices) are aware of the case status. 
3.14.1.2.  Air Force Reserve Members.  The servicing legal office will notify AFRC/JA of 
the STC’s initial disposition decision. 

54 DAFI51-201 24 JANUARY 2024

3.14.1.3. Air National Guard Members. The servicing legal office will notify the 201

MSS/CC and the Military Justice Attorney for NGB-GC of the STC’s initial disposition

decision.

3.14.2. If OSTC declines to prefer or refer the qualifying offense to a court-martial, the

responsible legal office will make the required notifications. The servicing legal office must

notify the 201 MSS/CC and NGB-GC of the decision. If applicable, the servicing legal office

may also recommend adverse administrative action which may be appropriately taken by either

the 201 MSS/CC or the ANGRC/CC.

Section 3D—Pre-Trial Matters

3.15. Detailing ARC Members to Courts-Martial (R.C.M. 501, 502, 503, 912A; Articles 25,

29, UCMJ). For courts-martial involving an AFR accused, convening authorities should consider

detailing AFR members on active duty who meet the qualifications in Article 25, UCMJ, and

R.C.M. 502. For courts-martial involving an ANG accused, convening authorities should consider

detailing ANG members on active duty who meet the qualifications in Article 25, UCMJ, and

R.C.M. 502.

3.16. IMDC Requests. For any Title 10 proceeding, only ARC judge advocates who are ready

and available to be placed on extended Title 10 active-duty tours are eligible for IMDC requests

and may be made available. The reasonable availability of ARC judge advocates is assessed in

the context of R.C.M. 506(b)(1) and paragraph 15.6 (i.e., the restrictions apply to the active and

reserve components alike). ARC judge advocates must be placed in Title 10 status for the purposes

of such representation but need not be on continuous orders. Orders may be broken up so that the

ARC judge advocate is in Title 10 status at the times the member’s matter is processed or worked

upon. Requests for ARC judge advocates are processed in accordance with paragraph 15.6.

3.17. Plea Agreement Considerations with ARC Members. As with expiration of term of

service (ETS) for Regular Air Force members, if an ARC member’s Title 10 status expires (e.g.,

members recalled to Title 10 active duty in order to be tried by court-martial), there are no

forfeitures to waive after the status expires. Any plea agreement to approve a waiver of any amount

of forfeitures when the accused is near or beyond their expiration of Title 10 status may render

pleas improvident because the accused may not receive the benefit of the bargain. The convening

authority or STC, as applicable, will only approve plea agreements containing a waiver provision

if it clearly states that any waiver is only applicable to pay and allowances that the accused is

otherwise entitled to receive. (T-0) See United States v. Perron, 58 M.J. 78 (C.A.A.F. 2003).

Section 3E—Post-Trial and Punishment Considerations for ARC Members.

3.18. Post-Trial and Punishment Considerations for ARC Members.

3.18.1. Confinement and Restrictions on Liberty. Without SecAF approval of the order to

active duty (see paragraph 3.8), an ARC member recalled to active duty for trial by court-

martial may not be sentenced to confinement or required to serve a punishment consisting of

any restriction on liberty during the recall period of duty. Article 2(d)(5), UCMJ. A

punishment of restriction to specified limits may be served only during normal periods of

inactive duty training or active duty.

3.18.2. Forfeitures.

DAFI51-201 24 JANUARY 2024 55

3.18.2.1. Member Status. An ARC member involuntarily recalled to active duty and

sentenced to post-trial confinement should not normally be placed in an active duty pay

status beyond the EoJ.

3.18.2.2. Active Duty Pay. An ARC member in confinement is ordinarily not entitled to

pay unless ordered on active duty by statute (mission-related need or disciplinary purposes

under 10 U.S.C. § 802(d)), or necessarily incident to an authorized expenditure.

3.18.2.3. Legal Office Responsibilities. Legal offices must pay particular attention to the

ARC member’s status after EoJ or, if applicable, entry into confinement. If the ARC

member is removed from active-duty status after the EoJ, it may limit the relief a convening

authority may provide to the member or the member’s family under R.C.M. 1103, 1109-

1110 (e.g., it may limit the ability of the convening authority to waive forfeitures for the

benefit of the dependents).

3.18.3. Involuntary (Required) and Excess Leave. See Section 20M for general guidance on

excess leave. ARC members may be removed from active-duty status after serving an

approved sentence of confinement and recalled as necessary to complete appellate review

rather than being placed in excess leave. AFRC/JA and AF/A1M should be consulted for

further guidance on excess leave for ARC members. Only a GCMCA may involuntarily recall

an ANG member to active duty under 10 U.S.C. § 802(d) for purposes of appellate review by

the GCMCA.

3.18.4. Release from Active Duty. At the final adjournment of the court-martial, the ARC

member ordered to active duty for the purpose of conducting disciplinary proceedings should

be released from active duty within one duty day, unless the order to active duty was approved

by SecAF and confinement was adjudged.

3.18.5. Unserved Punishment.

3.18.5.1. AFR members. Any other unserved punishments, including a restriction on

liberty, may be served during subsequent periods of inactive duty training or active duty.

See Article 2(d)(5), UCMJ; R.C.M. 204(b) and 1003(c)(3).

3.18.5.2. ANG members. ANG members may not be placed on NGB or ANG funded

orders for the sole purpose of serving unserved punishments, including any restriction on

liberty.

Section 3F—Victim Witness Assistance Program and ARC Members

3.19. General Provision. For general instructions see DAFI 51-207, Chapter 2.

3.20. Determining the Appropriate Local Responsible Official (LRO). To determine the

appropriate LRO, see DAFI 51-207, Chapter 2.

Section 3G—ARC Judge Advocate Requirements

3.21. ARC Judge Advocates Serving as Counsel. The requirements of certification and

designation set out in paragraph 15.4 apply to ARC judge advocates. Only those AFR judge

advocates assigned as District Trial or District Defense Counsel may be certified annually. Other

ARC judge advocates are certified according to DAFI 51-101, The Air Force Judge Advocate

56 DAFI51-201 24 JANUARY 2024

General’s (AFJAG) Corps Operations, Accessions, and Professional Development. ARC judge

advocates must be on active duty or performing inactive duty training to be detailed and perform

duties as trial counsel or military defense counsel. Paragraph 15.6 provides additional guidance

on ARC judge advocates performing IMDC duties.

3.22. ARC Judge Advocates Serving as PHOs. Refer to paragraph 12.2.1 for general

qualifications of a PHO. ARC judge advocates may serve as a PHO while on Title 10 federal

status or performing inactive duty training. ANG judge advocates may serve as a PHO but must

be on Title 10 orders. (T-0) Article 136(b), UCMJ, authorizes ARC judge advocates to administer

oaths while on active duty or performing inactive duty training.

3.23. ARC Judge Advocates Serving as Summary Court-Martial Officers (SCMOs).

3.23.1. An AFR on active duty who is a commissioned officer may serve as an SCMO under

R.C.M. 1301. AFR judge advocates on inactive duty for training are not on active duty and

cannot serve as SCMOs.

3.23.2. An ANG officer serving on active duty in federal status may serve as an SCMO under

R.C.M. 1301.

Section 3H—ARC Mandatory Legal Training

3.24. SAPR Program First Responder Training for Legal Personnel. Annual SAPR First

Responder Training for Legal Personnel is required for certain legal personnel (judge advocates,

victim and witness assistance program personnel, legal assistance attorneys, and trial counsel in

accordance with DoDI 6495.02, Volume 1, Enclosure 10, paragraph 2, Sexual Assault Prevention

and Response (SAPR): Program Procedures). See DAFI 51-207, Chapter 4 for additional

information.

3.24.1. ARC judge advocates who practice in military justice (including Article 32 PHOs) or

legal assistance (this may include VCs and defense counsel) or who serve as trial counsel are

required to complete the annual training.

3.24.2. ARC paralegals who provide legal assistance support or directly contribute to a VWAP

are required to complete the annual training.

3.25. Article 137 Briefing Requirements for ARC Members.

3.25.1. ARC enlisted members are required to receive the Article 137 briefing within 14

calendar days of initial entrance on a duty status with an ARC, again after completing basic

training, and again at the time of reenlistment. (T-0)

3.25.2. ARC officers are required to receive the Article 137 briefing within six months of

commissioning in a reserve component. (T-0)

3.25.3. Training Wing SJAs ensure officers who commission through the Reserve Officers’

Training Corps (ROTC) receive the required briefing during training.

DAFI51-201 24 JANUARY 2024 57

Section 3I—ARC DCMS-AMJAMS Issues

3.26. Obtaining Inputs.

3.26.1. Demographic Data. If demographic data does not automatically populate for members

of the ARC, the servicing RegAF or USSF legal office should contact the unit to which the

member is assigned or attached, which may be either a RegAF or reserve unit, to request the

member’s record review RIP. For ANG members, the servicing legal office should contact the

201 MSS and the Military Justice Attorney for NGB-GC to obtain such data.

3.26.2. Command Inputs. The servicing Regular DAF legal office should periodically contact

the member’s ARC chain of command for DCMS-AMJAMS inputs. For ANG members, this

means contacting the Military Justice Attorney for NGB-GC to request substantive inputs.

3.27. Special Interest Reports (SIRs). The servicing Regular DAF legal office is responsible

for creation, modification, closure, and submission of SIRs in cases for which they are the servicing

legal office, including where the members belong to the ARC. See Chapter 31 for specific SIR

requirements.

58 DAFI51-201 24 JANUARY 2024

Chapter 4

INITIAL STEPS UPON NOTIFICATION OF AN OFFENSE: IPST, CIP, VICTIM

SUPPORT, PROTECTIVE ORDERS, AND ADMINISTRATIVE HOLDS

Section 4A—Overview

4.1. General Provision. An effective military justice process starts with a timely, thorough, and

accurate investigation. Legal office, STC, and investigative personnel must develop a

collaborative relationship focused on integrating investigative efforts and the legal process. The

goal is thorough, case-ready reports of investigation, robust litigation preparation, and timely

resolution of military justice cases.

4.1.1. Initiation of Substantive Investigation. If a report of a criminal offense is made to

military law enforcement, such that either Security Forces or Department of the Air Force

Office of Special Investigations (OSI) initiates an investigation into the alleged offense, the

investigator or agent must notify the servicing legal office of the receipt of the report or

allegation within 24 hours.

4.1.2. For offenses under OSTC authority, STC will take the lead in providing investigative

support for qualifying offense cases through the Investigation and Prosecution Support Team

(IPST) function at each MAJCOM/FLDCOM-aligned District. Installation legal offices will

coordinate closely with their District designated IPST. See Section 4B.

4.1.3. For complex offense cases that are under command authority and do not trigger IPST,

the Criminal Investigative and Prosecution (CIP) Capability remains an important investigative

support tool. See Section 4C.

4.2. Offenses under Command Authority. Offenses over which OSTC does not have authority

or has not exercised authority, including offenses deferred to command.

4.3. Offenses under OSTC Authority. STC retain the exclusive authority to determine if a

reported offense is a covered offense, as defined by Article 1(17), UCMJ. If an STC determines

that a reported offense is a covered offense, the STC shall exercise authority over the offense.

Once an STC exercises authority over a covered offense, the STC may also exercise authority over

any related or known offense(s). See R.C.M. 303A.

4.3.1. Covered offenses include:

4.3.1.1. Wrongful broadcast or distribution of intimate visual images (Article 117a,

UCMJ),

4.3.1.2. Murder (Article 118, UCMJ),

4.3.1.3. Manslaughter (Article 119, UCMJ),

4.3.1.4. Causing the death or injury of an unborn child (Article 119a, UCMJ),

4.3.1.5. Rape and sexual assault generally (Article 120, UCMJ),

4.3.1.6. Depositing obscene matters in the mail (Article 120a, UCMJ),

4.3.1.7. Rape and sexual assault of a child (Article 120b, UCMJ),

4.3.1.8. Other sexual misconduct (Article 120c, UCMJ),

DAFI51-201 24 JANUARY 2024 59

4.3.1.9. Kidnapping (Article 125, UCMJ),

4.3.1.10. Domestic violence (Article 128b, UCMJ),

4.3.1.11. Stalking (Article 130, UCMJ),

4.3.1.12. Retaliation (Article 132, UCMJ), and

4.3.1.13. Child pornography (Article 134, UCMJ).

4.3.2. After 1 January 2025, covered offenses also include formal and substantiated claims of

sexual harassment (Article 134, UCMJ).

4.3.3. Covered offenses further include any attempt (Article 80, UCMJ), conspiracy (Article

81, UCMJ), or solicitation (Article 82, UCMJ) to commit a covered offense.

4.3.4. Related offenses (R.C.M. 303A(c)). Any offense alleged to have been committed by

the suspect of the offense or anyone else subject to the UCMJ. STC have exclusive authority

to determine whether a reported offense is a related offense.

4.3.5. Known offenses (R.C.M. 303A(d)). Any offense alleged to have been committed by

the suspect of a covered offense. STC have exclusive authority to determine whether a reported

offense is a known offense.

Section 4B—Investigation and Prosecution Support Teams (IPST)

4.4. General Provision. The IPST function will be designated to support each investigation of

offenses under OSTC authority, including covered, known, and related offenses, as defined above.

4.4.1. DoDI 5505.19, Establishment of Special Victim Investigation and Prosecution (SVIP)

Capability within the Military Criminal Investigative Organizations (MCIOs), requires

activation for certain offenses including (1) all unrestricted reports of adult sexual assault

(including penetrative and contact offenses); (2) unrestricted reports of domestic violence

involving (a) strangulation or suffocation, (b) a dangerous weapon, or (c) resulting in

substantial or grievous bodily harm; and (3) child abuse involving sexual assault and/or

aggravated assault with grievous bodily harm. (T-0) The implementation of IPST for offenses

under OSTC authority ensures compliance with SVIP requirements outlined in DoDI 5505.19.

4.5. Initial Notification.

4.5.1. Initial STC Notification (R.C.M. 301, 303). Legal offices shall forward reports of

misconduct that may constitute an offense under OSTC authority to the servicing OSTC

District Office immediately and no later than 24 hours from when the legal office becomes

aware of a report of misconduct that may constitute an offense under OSTC authority.-

(T-1) Initial STC notification within 24 hours may be accomplished via phone call or

electronic message, with written notification to follow within one duty-day courtesy copying

[email protected]. This notification is required for all reported covered

offenses, including offenses reported to civilian or foreign criminal law enforcement. Only an

STC may determine if misconduct constitutes a covered, known, or related offense, so

installation legal offices must immediately seek STC consultation. This requirement applies

even if an MCIO has not yet opened an official case on the alleged misconduct. This

notification will trigger the IPST function. IPST STC are assigned to each OSTC District

60 DAFI51-201 24 JANUARY 2024

Office, and they are on-call and available for case consultation 24 hours a day and seven days

a week.

4.5.2. Initial Command Notification. The STC will notify the SPCMCA when STC exercises

authority over any reported offense. The STC’s notification may be communicated to the

SPCMCA through the SJA or designee. See R.C.M. 303A(e).

4.6. IPST Composition and Qualifications.

4.6.1. Each IPST will consist of an STC, detailed as the primary legal advisor to provide

specialized and expert investigative guidance, and will further include: MCIO investigative

personnel, installation trial counsel, installation case paralegal(s), VWAP liaison(s), and other

personnel as needed.

4.7. Consultations.

4.7.1. IPST Case Consultation. Initial collaboration of the IPST must occur within 48 hours

of confirmation from an STC that an allegation constitutes an offense under OSTC authority.

(T-0)

4.7.1.1. Case update consultations involving all IPST members must occur on at least a

weekly basis thereafter, and legal office personnel should coordinate with assigned STC

on timing and frequency. Consultations may be conducted in person, telephonically, over

video-teleconference (VTC), through e-mail, or utilizing other collaborative tools, as

determined by the individual IPST capability. The case paralegal or legal office judge

advocate member must document these weekly meetings in DCMS-AMJAMS.

4.7.1.2. Legal office personnel will integrate with STC and should help facilitate MCIO

investigative processes with STC taking the lead on coordinating essential investigative

steps with the MCIO, including: victim, subject, and key witness interviews; search

authorizations and search warrants; collaboration with local law enforcement; and victim

engagement.

4.7.2. Judge advocate and paralegal members of the IPST should avoid direct participation in

MCIO activities that may disqualify them from participating as trial counsel or case paralegal

on a court-martial.

4.7.3. The IPST should properly safeguard all attorney work-product material. Investigative

personnel will not be provided with DCMS-AMJAMS materials or any other attorney work

product, and legal office personnel must be cautious to avoid discussing work product

materials when investigators are present.

4.7.4. Consultation with External Personnel. In addition, the IPST shall coordinate, as

applicable, with the following personnel:

4.7.4.1. Sexual Assault Response Coordinators (SARC) providing services to any

victim(s) in an investigation or case.

4.7.4.2. Victim Advocates (VA) providing services to any victim(s) in an investigation or

case.

4.7.4.3. Family Advocacy Program (FAP) personnel, to include FAP managers, providing

services to any victim(s) in an investigation or case.

DAFI51-201 24 JANUARY 2024 61

4.7.4.4. Domestic Abuse Victim Advocates (DAVAs) providing services to any victim(s)

in an investigation or case.

4.7.4.5. VCs representing any victim(s) in an investigation or case.

Section 4C—Criminal Investigation and Prosecution (CIP) Capability

4.8. CIP Capability. For offenses under command authority, the CIP capability integrates DAF

military legal capabilities and military criminal investigation capabilities at the earliest possible

opportunity in cases where the servicing legal office SJA determines a substantive investigation

warrants CIP capability activation.

4.9. Activation of CIP Capability.

4.9.1. Within 24 hours of determining a substantive investigation warrants CIP capability, the

SJA or designated legal office personnel may request DTC support in accordance with

AF/JAJG requirements. AF/JAJG will generally assign a DTC to the CIP capability within 24

hours.

4.9.2. When a legal office receives a report of child abuse involving aggravated assault with

grievous bodily harm, and the offense does not fall under OSTC authority, CIP activation with

DTC support is mandatory to comply with the SVIP requirements of DoDI 5505.19. (T-0)

4.9.3. Receipt of Jurisdiction from Local Authorities. If a criminal report is made to non-DoD

law enforcement, such that neither Security Forces nor OSI initiates substantive investigative

steps, Security Forces or OSI will notify the servicing legal office SJA within 24 hours of the

earlier of either: (1) non-DoD law enforcement cease their investigation and either Security

Forces or OSI becomes the primary investigative agency; or (2) the DAF requests and receives

jurisdiction from the local authorities.

4.10. Composition of the CIP Capability. The CIP capability will consist of investigative

personnel and the servicing base legal office judge advocates and paralegals. The CIP capability

also includes individually assigned but not detailed DTCs, in those cases where the servicing legal

office SJA determines DTC support is warranted. Other personnel may join the capability on a

case-by-case basis as necessary at the discretion of the SJA or the DTC, if assigned.

4.10.1. Investigative Personnel. The investigator or agent assigned to an investigation is part

of the CIP capability. During the investigative stage of the case and until a decision on

disposition (e.g., preferral of charges), the investigator or agent is supported by the other CIP

capability members. Once charges are preferred the CIP capability investigator or agent will

support the capability’s prosecutorial investigation and trial preparation.

4.10.2. Legal Office Personnel. If the servicing legal office SJA determines CIP capability

activation is warranted, the servicing legal office SJA must appoint, in writing, the legal office

members of the CIP capability, which must consist of at least one judge advocate, one

paralegal, and one victim/witness liaison (VWL). Judge advocate, paralegal and VWL

members can be designated as a standing capability or may be appointed on a case-by-case

basis. SJAs should appoint more experienced judge advocates, paralegals and VWLs to the

more complex and serious cases.

4.10.3. DTCs. DTCs are assigned to a CIP capability by either the Chief, or Director of

Operations, AF/JAJG. DTCs will be detailed in appropriate cases pursuant to AF/JAJG

62 DAFI51-201 24 JANUARY 2024

guidance. Once charges are preferred, the CIP capability DTC will continue to provide

pretrial and trial advice to the servicing legal office and military criminal investigators. If the

CIP capability DTC is detailed as trial counsel to the case, the DTC is the lead prosecutor and

will be supported by the other CIP capability members.

4.11. CIP Capability Process.

4.11.1. Designation and Notification of CIP Activation. In cases where a DTC is requested,

no later than one duty day after DTC assignment, the SJA will ensure the membership of the

CIP capability is memorialized in writing and documentation of such is provided to the

members of the CIP capability. Where no DTC is requested, the SJA will ensure membership

of the CIP capability is memorialized no later than one duty day after CIP activation. This

designation and notification may only be made by the SJA or person acting as the SJA.

4.11.2. Case Consultation. Within five duty days of the later of (1) CIP activation; or (2) DTC

assignment for a specific case, the CIP capability must conduct a case consultation to obtain

the facts and circumstances of the alleged offense and discuss initial legal matters relevant to

the investigation. The frequency of further case consultations will be determined on a case-

by-case basis, at the discretion of the assigned DTC and the servicing legal office SJA. The

case update consultations may be conducted in person, telephonically, over video-

teleconference (VTC), through e-mail, or utilizing other collaborative tools, as determined by

the individual CIP capability. The case paralegal or judge advocate member must document

CIP consultation meetings in the case file and DCMS-AMJAMS entry.

4.11.3. The CIP capability supports the case agent or investigator during the investigative

stage of the case.

4.11.3.1. Judge advocate and paralegal members of the CIP capability should avoid direct

participation in MCIO activities that may disqualify them from participating as trial

counsel or case paralegal on a court-martial. Judge advocates and paralegals should consult

with their assigned DTC and SJA to identify any activities posing this risk. The capability

should properly safeguard all attorney work-product material. See Hickman v. Taylor, 329

U.S. 495 (1947); United States v. Romano, 46 M.J. 269 (C.A.A.F. 1997); United States v.

Vanderwier, 25 M.J. 263 (C.M.A. 1987).

4.11.3.2. Trial counsel and paralegals provide legal support to the investigator, to include

addressing any requests for investigative subpoenas, immunity, or judicial process.

4.11.3.3. The capability will work with investigators during the development of the

investigative plan. This includes working with the case agent or investigator in identifying

potential criminal offenses for investigation and comparing the evidence in the case with

the elements of proof for a given offense.

4.11.3.4. Judge advocates will coordinate with the case agents or investigators on subject

interviews and victim interviews. Preferably, judge advocates should coordinate with the

case agents or investigators on all substantive witness interviews.

4.12. Case Development.

4.12.1. The CIP capability and the case agents will continue their collaborative efforts as the

investigation proceeds. As appropriate, designated investigative support capability members

or judge advocate staff members will attend OSI and Security Forces case review meetings.

DAFI51-201 24 JANUARY 2024 63

Likewise, OSI personnel and Security Forces investigators may be invited to attend portions

of judge advocate military justice meetings for relevant case updates. Investigative personnel

will not be provided with DCMS-AMJAMS materials or any other attorney work product, and

legal office personnel must be cautious to avoid discussing work product materials when

investigators are present.

Section 4D—Victim Support During Investigations

4.13. Victim Support. See DAFI 51-207 for further rights, privileges and responsibilities to

victims of crimes and for special requirements pertaining to victims of certain sexual offenses and

crimes of domestic violence.

4.13.1. Victim Access to Legal Assistance. If victims are eligible for legal assistance, the

victim liaison must notify them of their eligibility during their initial meeting.

4.13.2. Victim Access to VC. If a victim is not represented by a VC but is eligible for

representation, the IPST or CIP capability is responsible for notifying the victim of eligibility

during the initial meeting. This notification will typically be accomplished by the victim

liaison.

4.13.3. Victims’ Rights. In cases where victims are not represented by a VC, crime victims

must be notified by the IPST or CIP capability of their rights, as discussed in DAFI 51-207.

Where applicable, this includes the additional rights afforded to victims of sexual assault, as

noted in DAFI 51-207. This notification will typically be accomplished by the victim liaison

during the initial meeting with the victim.

4.13.4. Child Forensic Interviewers. The IPST or CIP capability should request MCIO

provided specially trained child forensic interviewers to support the investigations and

prosecution of complex child abuse and child sexual abuse cases, or other cases where a child

was a witness to an alleged offense.

4.13.5. Coordination with Key Organizations and Victim Support Services. Legal offices

must establish and maintain active liaisons with the following organizations and key

individuals to ensure appropriate victim support:

4.13.5.1. OSTC District Office;

4.13.5.2. Local OSI Detachment;

4.13.5.3. Local civilian law enforcement and prosecutors’ offices;

4.13.5.4. Local civilian victim advocacy organizations;

4.13.5.5. SARC and SAPR victim advocates;

4.13.5.6. VC;

4.13.5.7. FAP clinicians, FAP managers, and domestic abuse victim advocates;

4.13.5.8. Military chaplain offices;

4.13.5.9. Medical and mental health providers; and

4.13.5.10. Commanders and first sergeants.

64 DAFI51-201 24 JANUARY 2024

Section 4E—No Contact and Military Protective Orders

4.14. General Provision. There are two types of orders that fall under this category that are

issued by military members, to military members: informal “no-contact” orders and formal

military protective orders (MPOs). Commanders must consult with SJAs prior to the issuance of

any such order, to include which type of order is appropriate in each situation. Legal offices should

consult with MCIO and STC/DTC (as applicable) if command intends to issue a no-contact order

or MPO prior to a subject being notified of an active investigation.

4.15. No-Contact Orders.

4.15.1. Overview. No-contact orders may be verbal or written in memorandum form

addressed to the person being given the order to have no contact with another. No-contact

orders are appropriately used to temporarily stop communications between two or more parties

who are involved in a dispute that does not rise to the level of a criminal investigation or to

safeguard the investigative process in a criminal matter. No-contact orders may also be

appropriately used as a brief, interim measure when a commander on G-Series orders is

unavailable to issue an MPO. No-contact orders can be used CONUS and OCONUS.

Generally, no-contact orders should be of limited duration or have a defined beginning and end

date.

4.15.2. Issuing a No-Contact Order. No-contact orders may be issued by commanders, first

sergeants, and other members senior in rank to the recipient of the order. If a no-contact order

is issued verbally, it should be memorialized in writing as soon as practicable. Note: No-

contact orders may not be used with the intent to stop defense counsel from contacting

witnesses as part of their duty to investigate charges pertaining to their client.

4.15.3. Limitations of a No-Contact Order. These orders are generally not known to civilian

law enforcement and not enforced by civilian law enforcement. Moreover, unless notified of

the existence of the no-contact order, military law enforcement is generally unaware of the

existence of any such order and, therefore, cannot act to enforce the order on the installation.

4.16. Military Protective Orders (MPOs).

4.16.1. Overview. An MPO is a formal protective order. MPOs are appropriately used to

ensure a person is protected from a subject during criminal investigations and prosecutions.

Unlike a no-contact order, an MPO offers broad protections to the person being protected. An

MPO affords the commander the opportunity to: limit communications; prohibit a subject or

accused from being within a certain physical distance of a protected person or protected

person’s household, residence and workplace; mandate counseling; require disposal of

firearms located on the installation; and take other such measures necessary to ensure adequate

protection of the protected person. MPOs are generally used in all cases involving domestic

violence or sexual assault, though commanders may elect to use a no-contact order if more

appropriate in the particular case.

4.16.2. Issuing an MPO. MPOs must be completed on DD Form 2873, Military Protection

Order. (T-0) Only a commander on G-Series orders may issue an MPO.

4.16.3. Member Request for Review of an MPO. Any individual who is either the subject of

or a party protected by an MPO may request the issuing commander review the MPO or any

terms included on the MPO. Such requests are processed in accordance with paragraph 4.17.

DAFI51-201 24 JANUARY 2024 65

4.16.4. Modifying or Rescinding an MPO. Modification and/or rescission of an MPO must

be completed via DD Form 2873-1. (T-0) Commanders may modify or rescind an MPO of

their own volition, responsive to requests from either of the parties, responsive to the periodic

review process outlined in paragraph 4.17, or for other reasons.

4.16.5. Expiration of an MPO. MPOs do not expire, and an expiration date may not be listed

on the DD Form 2873. Commanders must periodically review MPOs on file with their units

in accordance with the procedures outlined in paragraph 4.17.

4.16.6. Effect of Change of Command or Permanent Change of Station. If a member subject

to an MPO goes TDY or permanently changes duty stations, the gaining commander must be

made aware of the existence of the MPO within the 30 days prior to the member’s movement.

In the event a member subject to an MPO is transferred to a different unit, the losing

commander shall, not later than the date of the transfer, notify the gaining commander of the

issuance of the MPO and the individuals involved in the MPO. (T-0) The gaining commander

shall make the notification requirements in paragraph 4.16.9 to the local authorities within

seven days of gaining the member. (T-0) If the commander changes command or moves to a

new duty station, then the gaining commander must be made aware of and provided a copy of

the MPO within 30 duty days of taking command. The gaining commander, in either

circumstance, must conduct the periodic review described in paragraph 4.17.

4.16.7. Limitations of an MPO. These orders are not enforced by civilian law enforcement;

however, civilian law enforcement may notify military law enforcement (e.g., Base Defense

Operations Center (BDOC)) if an MPO is violated, provided the MPO is properly indexed in

the National Crime Information Center (NCIC) and therefore visible to civilian law

enforcement. See paragraph 4.16.9 and 4.16.10. Note: Foreign criminal law enforcement

will not have access to NCIC.

4.16.8. Service. Copies of completed DD Forms 2873 and 2873-1 are served on each of the

parties involved in the order as soon as possible.

4.16.9. Security Forces Notification. All new, modified, and rescinded MPOs (i.e., DD Forms

2873 and 2873-1) must be forwarded by the issuing commander to Security Forces (or service

equivalent on installations where there is no Security Forces presence) for indexing in

accordance with AFMAN 71-102, Air Force Criminal Indexing, and DoD Policy

Memorandum, Placing Military Protective Orders in the National Crime Information Center

Protective Order File, dated 26 June 2014 and DoDI 6400.06, DoD Coordinated Community

Response to Domestic Abuse Involving DoD Military and Certain Affiliated Personnel. On

installations where there is a BDOC, MPOs are forwarded to BDOC. On installations where

there is no Security Forces presence, MPOs are forwarded to the primary military law

enforcement agency on that installation.

4.16.10. Local Authorities Notification. The installation commander is required to notify the

civilian authorities of the issuance of any MPO, the identities of individuals involved in the

order, any modifications to the order, and the termination of the protective order. (T-0) See

10 U.S.C. § 1567a, Mandatory notification of issuance of military protective order to civilian

law enforcement. This requirement is satisfied when the issuing commander provides the

required information to Security Forces, per paragraph 4.16.9, and Security Forces submits

the order to NCIC. See Section 29B.

66 DAFI51-201 24 JANUARY 2024

4.16.11. Orders Issued in Conjunction with Civilian Protective Orders. A commander may

issue a “no-contact” order or MPO in conjunction with a protective order issued by civilian

authorities. In determining whether issuance of a “no contact” order or MPO is appropriate,

commanders should review the terms and length of any civilian protective order (e.g.,

prohibition against being within 500 feet of a person or prohibition against carrying a firearm

vice merely preventing communication). This will help commanders determine which type of

order is appropriate and prevent issuance of an order with terms that are contrary to or less

restrictive than that issued by civilian authorities. See also 10 U.S.C. § 1561a, Civilian orders

of protection: force and effect on military installations. Commanders must also consider that

civilian authorities will not enforce a no-contact order or MPO, but will enforce a civilian

protective order; therefore, MPOs should be no less restrictive than any civilian protective

order. Commanders may issue MPOs with terms that are more restrictive than any civilian

protective order.

4.17. Command Review of Military Protective Orders.

4.17.1. Subject Requests for Review.

4.17.1.1. Members subject to an MPO may request the review of an MPO or any of its

terms.

4.17.1.2. Any such request and supporting matters must be submitted in writing.

4.17.1.3. The commander may elect to allow the member to further present matters in

person, telephonically, or in writing.

4.17.1.4. Upon receipt of such requests, the commander must provide a copy of the request

to the party protected by the MPO and allow that party three calendar days to provide any

matters in response. The commander must consider the response of the protected party in

making a determination as to whether to modify or rescind the MPO or any of its terms.

4.17.1.5. Any decision must be communicated to the member and protected party in

writing. If the commander modifies or rescinds the MPO, it must be formalized on DD

Form 2873-1. (T-0)

4.17.1.6. The determination of the commander is final. Members may request additional

review of the MPO if the circumstances underlying the MPO or previous request for review

have materially changed.

4.17.2. Protected Party Request for Review.

4.17.2.1. Parties protected by an MPO may request the review of an MPO or any of its

terms.

4.17.2.2. Any such request and supporting matters must be submitted in writing.

4.17.2.3. The commander may elect to allow the protected party to further present matters

in person, telephonically, or in writing.

4.17.2.4. Any decision must be communicated to the member and protected party in

writing. If the commander modifies or rescinds the MPO, it must be formalized on DD

Form 2873-1. (T-0)

DAFI51-201 24 JANUARY 2024 67

4.17.2.5. The determination of the commander is final. However, protected parties may

request additional review of the MPO if the circumstances underlying the MPO or previous

request for review have materially changed.

4.17.3. Required Commander Reviews.

4.17.3.1. Annual Review. Commanders must review existing MPOs on at least an annual

basis. This obligation is not delegable. This review should be documented in writing,

though no format is prescribed.

4.17.3.2. Review at Case Closure. When a case is closed, the commander must review the

MPO to assess whether the MPO and its terms continue to be valid. Case closure includes

when an investigation is closed with no action, and when administrative action, NJP, or

trial by court-martial are complete. This review should be documented in writing, though

no format is prescribed.

4.17.3.3. Review as the Result of the Movement of a Member Subject to MPO. In the

event a member subject to an MPO moves to a new duty station on either an extended

TDY, deployment, or permanent change of station (PCS), the losing commander must

notify the losing BDOC and the gaining commander of the existence of the MPO within

30 days prior to the member’s arrival at the new unit. This ensures sufficient safeguards

for the member and the protected party are put into place prior to the member’s arrival and

that the gaining commander is put on notice of the requirement to review the MPO. The

gaining commander must review the MPO within seven days of the member’s arrival to

assess whether the MPO and its terms continue to be valid. If the gaining commander

determines that the MPO continues to be valid, the gaining commander must notify the

protected parties and BDOC within that initial seven-day period. (T-0) This obligation is

not delegable.

4.17.3.4. Review as the Result of Change of Command. In the event the issuing

commander (or subsequent commander who determined the MPO continued to be

necessary) changes command, retires, separates, or otherwise ceases to be the commander

of the unit to which the individual is assigned, the outgoing commander must notify the

incoming commander of the existence of the MPO within 30 days after the change of

command. This ensures sufficient safeguards for the member and the protected party

remain in place and that the new commander is put on notice of their requirement to review

the MPO. The new commander must review the MPO within 30 days of the commander’s

arrival to assess whether the MPO and its terms continue to be valid. This obligation is not

delegable.

4.17.4. Review Process.

4.17.4.1. In order to maintain the MPO and its terms, the commander must determine that

the MPO continues to be the least restrictive means necessary to safeguard the protected

party from the subject of the MPO.

4.17.4.2. The commander may review the MPO at any time without notifying the subject

or victim. However, prior to modifying or rescinding an MPO, the commander (or the

commander’s designee) must make reasonable attempts to notify the protected party to

ensure the opportunity to provide matters for consideration by the commander. The

commander (or the commander’s designee) should document all attempts to reach the

68 DAFI51-201 24 JANUARY 2024

protected party. The commander must consider the response of the protected party in

making a determination as to whether to modify or rescind the MPO or any of its terms.

4.17.4.3. After reviewing the MPO and any matters provided by the protected party, the

commander makes a determination as to whether to retain the MPO. If the MPO is retained

in its entirety, the commander must annotate their review in writing. It is recommended

that any such documentation be retained with the MPO. If the MPO is rescinded or

modified, any such rescission or modification must be documented on DD Form 2873-1

and a copy must be served on all parties and provided to BDOC. (T-0) On installations

where there is no Security Forces presence, a copy should be forwarded to the primary

military law enforcement agency on that installation.

4.18. Military Protective Orders and Unrestricted Sexual Assault Reports. In cases

involving an unrestricted report of a sexual assault, the commander ensures the issuance of any

military protective order complies with DoDI 6495.02. (T-0) If a victim requests a military

protective order, be it an informal no-contact order or a formal MPO, and the commander elects

to deny the victim’s request, the commander documents in writing the basis for denial and forwards

the request and basis for denial to the installation commander or equivalent. For offenses under

OSTC authority, the installation legal office will notify the assigned STC if command issues or

rescinds an MPO.

4.19. Military Protective Orders and Unrestricted Domestic Violence Reports. In cases

involving an unrestricted report of a domestic violence, the commander acts in accordance with

this paragraph. If a victim requests a military protective order, be it an informal no-contact order

or a formal MPO, and the commander elects to deny the victim’s request, the commander must

document in writing the basis for denial and forward the request and basis for denial to the

installation commander or equivalent. For offenses under OSTC authority, the installation legal

office will notify the assigned STC if command issues or rescinds an MPO.

Section 4F—Legal Office Periodic Notification to Victims

4.20. Monthly Notice Required. Victims must be notified, no less than monthly, of the status of

the investigation, prosecution, or alternate disposition of the allegation reported to law

enforcement or the command, whichever is applicable. Written notification or memorialization is

required in accordance with DAFI 51-207. This notification is required regardless of whether a

victim is represented by counsel. See DAFI 51-207 for guidance on contacting represented

victims. For offenses under OSTC authority, legal office personnel shall coordinate notifications

with an STC prior to engaging with a victim.

Section 4G—Administrative Holds

4.21. Administrative Holds. Placing an administrative hold on an accused pursuant to DAFI 36-

2110, Total Force Assignments, and AFI 36-2606, Reenlistment and Extension of Enlistment in

the United States Air Force, is generally advisable and, in most cases, necessary to avoid risk of

PCS or separation of an accused during the pendency of an investigation or judicial proceedings.

However, holding a member beyond their separation date is only permitted if there is intent to

court-martial. Note: Administrative hold is not sufficient to extend an accused on active duty

beyond their ETS. See paragraph 11.3.

DAFI51-201 24 JANUARY 2024 69

4.22. Accused Members Assigned to CONUS. Accused members assigned CONUS will

normally be subject to administrative hold and remain in the same assignment throughout

investigation and any judicial proceedings. However, administrative holds of an accused can pose

additional challenges at overseas stations or other locations with frequent personnel turnover.

Practitioners may exercise discretion in determining whether initiating an administrative hold or

terminating an existing administrative hold is in the best interest of the DAF.

4.22.1. Practitioners should consider the following non-exhaustive list of factors: the

anticipated length of investigation or proceedings, the accused’s DEROS, whether the offenses

were allegedly committed at the currently assigned station, whether the accused's tour is

accompanied or unaccompanied, location of accused’s dependents and support network, the

health and safety of the accused, availability of services in the community or host nation,

current and anticipated locations of DoD and non-DoD witnesses, availability of service of

process and court compulsion, U.S. or host nation restrictions on travel, substantial recurring

difficulty in coordinating across geographic boundaries or time zones, and other practical

obstacles to holding a trial at or near the accused's current duty station.

4.22.2. If an investigation is open, coordination with the military law enforcement office or

other investigating offices is strongly recommended.

4.22.3. For offenses under OSTC authority, a decision to terminate an administrative hold or

permit an accused member to PCS must be coordinated with an STC.

4.23. Directed PCS of Accused Members. For accused members under law enforcement

investigation, with pending charges preferred against them, or for whom a commander is

contemplating charges, MAJCOM or FLDCOM SJAs may direct PCS of the accused when in the

best interest of the DAF. See DAFI 36-2110. Legal offices at each level of the chain of command

should coordinate with their counterparts in the intended gaining commands prior to directing PCS.

For offenses under OSTC authority, legal offices shall coordinate with their OSTC District Office

prior to a MAJCOM or FLDCOM SJA directing PCS of an Accused member.

Section 4H—Proof Analyses, Sensitive Case Information, and Lessons Learned

4.24. Proof Analyses. Trial counsel should normally complete the first draft of a proof analysis

within 60 days of the activation of CIP or IPST. In cases resulting from command-initiated

investigations or inquiries, a proof analysis should be complete as soon as possible after the legal

office is made aware the commander is exploring the option of preferring charges.

4.24.1. For offenses under OSTC authority, installation-level trial counsel remains responsible

for drafting, updating, and reviewing the proof analysis. STC are responsible for guiding the

scope and nature of an investigation, including the identification of charges/specifications and

supervision of the proof analysis.

4.24.2. For all investigations, the initial proof analysis crafted by trial counsel should be

reviewed and updated to address the elements, evidence, anticipated objections, and potential

defenses for each specification as appropriate, but at least on a monthly basis. Judge advocates

may generally discuss the analysis with the case agent, investigator, or command as a means

of guiding investigative steps, but should not provide investigators or command with copies of

the proof analysis. A proof analysis is typically attorney work-product material; provision of

70 DAFI51-201 24 JANUARY 2024

the proof analysis to investigators or command may result in legal challenge to the work

product privilege.

4.24.3. In accordance with DAFI 51-205, the SJA initiates the coordination process as early

as possible for cases falling under MEJA.

4.25. Disclosure and Reporting of Sensitive Case Information. As a case develops, both the

SJA and law enforcement are required to provide case information and status updates to higher

commands through their respective reporting channels. If the detachment commander, special

agent in charge, or security forces commander determines that a case involves sensitive

investigative information, to avoid compromising an ongoing investigation, the SJA will not allow

disclosure of such information without the concurrence of the detachment commander, special

agent in charge, or security forces commander. Some examples of sensitive investigative

information could include certain investigative techniques, case leads, and confidential source

information. After service of charges, the rules of discovery will control the release of any

sensitive investigative information. In addition, portions of the ROI that are in draft form should

not be released outside OSTC or legal office channels without detachment concurrence.

4.26. Lessons Learned. Within 30 calendar days of the conclusion of trial under command

authority, the legal office trying the case and the investigative office responsible for the

investigation of the case should conduct a “hot wash.” The hot wash should include the SJA or

DSJA, chief of military justice, and trial team from the legal office (to include applicable VWAP

personnel), as well as the STC for cases under OSTC authority, AFOSI detachment

commander/SFS commander, lead investigator and other case agent(s) or investigators. Other

legal office and investigative personnel may attend. Lessons learned may be captured in an after-

action report, but an after-action report is not required.

DAFI51-201 24 JANUARY 2024 71

Chapter 5

COMPETENT SEARCH AUTHORITIES

5.1. Appointment of Other Competent Search Authorities (CSA) (Military Rule of Evidence

315(d)(3)). The DAF installation commander may appoint a maximum of four officers to serve

as CSAs for that installation. For certain installations comprised of multiple geographically

separated locations, a maximum of four officers may be appointed as CSAs for each

geographically separated location. If unique circumstances exist that warrant the appointment of

more than four CSAs for any one location, the installation-level SJA should request permission

from AF/JAJM to appoint additional officers through functional legal channels. If the installation

commander is not a DAF commander, see paragraph 5.4.

5.1.1. A commander appoints CSAs in writing by name, not position, and specifies the

installation over which the CSAs may exercise search authority.

5.1.2. The SJA for the appointing commander ensures the CSAs are briefed on their duties at

the time of their appointment and whenever necessary thereafter. A template briefing is

available on the VMJD and the AF/JAJM Teams Page.

5.2. Qualifications. A CSA should be an officer with judicial temperament serving in the rank

of lieutenant colonel or above. Chaplains, legal office personnel, and Air Force Office of Special

Investigations and Security Forces members may not serve in the position. A convening authority

should not be appointed as a CSA, but a convening authority who is a commander with control

over the place where the property or person to be searched is situated or found may authorize a

search under M.R.E. 315(d)(1). Officers appointed as CSAs for AFRC installations must be

serving in a Title 10 status (that is, a period of inactive duty training or active duty) to perform

such duties.

5.3. Authority. A CSA’s authority to issue search and seizure authorizations is found in M.R.E.

315(d)(3). Such authorizations to search and seize are based upon probable cause. If more than

one CSA is appointed for an installation or location, each exercises concurrent authority with the

others and with the installation commander. The commander need not be unavailable for a CSA

to exercise this authority. A CSA’s authority is non-delegable.

5.4. Non-DAF Military Installations. At a military installation where the installation

commander is not a DAF commander, the DAF commander who holds SPCMCA for the supported

command may appoint a maximum of four officers to serve as CSAs for searches involving DAF

personnel and property on the installation. Based on probable cause, a CSA appointed under this

paragraph may authorize search and seizure (and apprehension) of DAF personnel and property at

non-DAF military installations to the extent the commander appointing the CSA has control over

the place where the property or person to be searched is situated or found, or over the person to be

apprehended. M.R.E. 315(d)(1); R.C.M. 302(e)(2). This CSA exercises concurrent search and

seizure authority with the commander who appointed him or her. Nothing in this paragraph is

intended to negate or diminish the authority of a non-DAF commander or any CSA (DAF or

otherwise) appointed by the non-DAF installation commander to authorize searches consistent

with M.R.E. 315.

72 DAFI51-201 24 JANUARY 2024

Chapter 6

OBTAINING EVIDENCE IN SUPPORT OF CRIMINAL INVESTIGATIONS

Section 6A—Overview of Authorities for Search and Seizure

6.1. Authorization for Search and Seizure. Military judges and qualified commanders have the

authority to grant search authorizations based upon probable cause for personnel and locations

within the military span of control in accordance with M.R.E. 315(d)(1).

6.1.1. Order of Preference. When attempting to obtain a search authorization, legal offices

must first attempt to identify a qualifying commander or CSA, if appointed, before seeking

authorization from a military judge. This reduces the chance that the military judge will be

conflicted out of being detailed to subsequent proceedings related to the search authorization.

Note: this order of preference does not apply to requests for searches that fall under the Stored

Communications Act. See Section 6E.

6.1.2. Obtaining Search Authorization from a Military Judge. Government counsel may

request a search authorization from a military judge in accordance with the Uniform Rules of

Practice Before Department of the Air Force Courts-Martial.

6.1.3. Forms. Air Force Form 1176, Authority to Search and Seize, is used to document

authorization for a search of a person, location, or property and seizure of property pursuant to

M.R.E. 315(d). When required by circumstances, verbal authorization may be given but

should be followed by written documentation.

Section 6B—Search Authorizations (M.R.E. 315)

6.2. Search Authority. A commander is only qualified to grant a search authorization if the

commander has control over the place where the property or person to be searched is situated or

found, or, if the place is not under military control, if the commander has control over persons

subject to military law or law of war. See M.R.E. 315.

6.2.1. Legal Determinations. Government counsel, including STC, advising on the decision

as to whether to request a search authorization from a military judge, commander, or CSA,

must carefully review the facts in each instance to determine whether an impartial commander

is qualified to grant a search authorization without conflicting that commander out of other

parts of the courts-martial process (e.g., preferral, referral). Counsel must also determine

whether a commander is qualified to act as a search authority each time a request arises (e.g.,

whether the commander has control over the place where the person or property to be searched

is situated or found, or over the person to be apprehended).

6.2.2. Requirement for Neutral and Detached Commander Acting as Search Authority. A

commander issuing a search authorization must be neutral and detached. This excludes

commanders who exhibit bias or appear to be predisposed to one outcome or another.

However, the participation of a commander in investigative activities in furtherance of

command activities does not per se disqualify that commander from authorizing a search under

M.R.E. 315. See United States v. Huntzinger, 69 M.J. 1 (C.A.A.F. 2010); United States v.

Freeman, 42 M.J. 239 (C.A.A.F. 1995). Prior to utilizing a commander for granting search

authorization, government counsel should determine whether the commander’s involvement

DAFI51-201 24 JANUARY 2024 73

may preclude them from preferring or referring charges in the same case. Law enforcement

members shall not exercise authority to grant search authorizations under M.R.E. 315.

6.2.3. AFRC Jurisdiction. Commanders acting as search authority for Air Force Reserve

Command installations and personnel must be in a Title 10 status.

6.2.4. Military Installations Not Under Control of the Air Force or Space Force. Qualifying

DAF commanders may exercise search authority for matters involving DAF personnel on the

installation. Based on probable cause, qualifying commanders may authorize search and

seizure (and apprehension) involving DAF personnel at such installations to the extent the

commander has control over the place where the property or person to be searched is situated

or found, or over the person to be apprehended. M.R.E. 315(d)(1); R.C.M. 302(e)(2).

Commanders may possess concurrent search and seizure authority with non-DAF

commanders. Nothing in this paragraph is intended to negate or diminish the authority of a

non-DAF commander, military judge, or magistrate to authorize searches consistent with

M.R.E. 315.

6.2.5. Pentagon Reservation. AFDW/CC may authorize searches involving DAF controlled

or occupied spaces of the Pentagon Reservation or DAF personnel located, assigned or

attached therein, pursuant to M.R.E. 315(d)(1). SpOC/CC may authorize searches involving

USSF controlled or occupied spaces of the Pentagon Reservation or USSF personnel located,

assigned, or attached therein. Additionally, any other DAF commander located in the Pentagon

may authorize searches over people or places under that specific commander’s control.

Generally, authorized searches within the Pentagon Reservation are coordinated with

Washington Headquarters Services and the Pentagon Force Protection Agency prior to

execution. The failure to coordinate with the Washington Headquarters Services and Pentagon

Force Protection Agency does not create any right or benefit for any DAF member.

6.2.6. Tenant Units. A tenant unit commander may exercise search authority for matters

involving DAF personnel to the extent the commander has control over the place where the

property or person to be searched is situated or found, or over the person to be searched or

apprehended. Depending on the place to be searched, other commanders on the installation

may be the more appropriate choice to exercise search authority.

6.2.7. Searches of Locations or Property Under the Control of Military Counsel. If a location

or property that is to be inspected or searched is under the control of a military DC or VC,

precautions should be taken to protect client confidentiality, privileged communications, and

attorney work product to the maximum extent possible. Such a search should be pursued only

when there is no other feasible alternative.

6.2.7.1. The base-level SJA informs the Director, AF/JAJ, before such a search is executed

pursuant to authorization under M.R.E. 315(d) or as soon as possible if exigent

circumstances exist pursuant to M.R.E. 315(g).

6.2.7.2. The purpose of this notification is to provide information, not to seek assistance

in obtaining or authorizing a search of DC or VC property. If a search is authorized, it

should be conducted so as to minimize disruption to the operation of the office of the

defense counsel or VC and should occur at a time when clients are unlikely to be present.

It is further recommended that additional precautions, such as having an investigator and

judge advocate unaffiliated with the installation conduct the search, ordering the searchers

74 DAFI51-201 24 JANUARY 2024

not to disclose the matters, and have a military judge review papers seized to determine

what matters are responsive to the search authorization and how to handle other seized

material. See United States v. Calhoun, 49 M.J. 485 (C.A.A.F. 1998).

Section 6C—United States Mail and Government Information Systems

6.3. United States Mail. For the inspection, search, and/or seizure of mail in the custody of the

military postal service OCONUS, a convening authority authorized under Article 23(a) may issue

a search authorization for the particular person or location involved. See DoD 4525.6-M,

Department of Defense Postal Manual, for procedures. For the inspection, search, and/or seizure

of mail in the United States, a warrant or other court order issued by a federal civilian magistrate

or civilian judge is generally required. See United States Postal Service Administrative Support

Manual, Part 274.

6.4. Government Information Systems. Government information systems are subject to

monitoring, interception, search, and seizure for all authorized purposes in accordance with the

DoD Consent Banner placed on government information systems.

6.4.1. The DoD Consent Banner does not permit monitoring pursuant to a law enforcement

investigation of the content of privileged communications or work product related to personal

representation or services by attorneys, psychotherapists, or clergy, to include their assistants.

Users should annotate their privileged communications in e-mails and documents to ensure

such information is kept confidential and not inappropriately accessed or read during

authorized search, seizure, interception, or monitoring activities. Failure to annotate that a

communication is privileged does not, per se, waive the privilege. Investigators should consult

with the appropriate legal office or OSI/JA prior to and during such activities to ensure

privileged communications are appropriately protected and remain confidential.

6.4.2. Under normal circumstances, a person does not have a reasonable expectation of

privacy in government property that is not issued for personal use. See M.R.E. 314(d).

However, if the totality of the facts and circumstances indicate that the subject has a reasonable

expectation of privacy, usually because the government property was issued for exclusive

personal use, obtaining a search authorization is warranted.

6.4.3. Monitoring of information on Government systems, including privileged

communications, pursuant to the DoD Consent Banner may occur for other reasons, such as

for Operations Security (OPSEC). See AFI 10-701, Operations Security (OPSEC). In

accordance with DoDI 8560.01, Communications Security (COMSEC) Monitoring, and AFI

10-701, it is DAF policy that information derived from obtained during an OPSEC electronic

monitoring mission will not be used as evidence in a criminal prosecution without approval of

SAF/GC.

Section 6D—Investigative Subpoenas

6.5. Overview. Investigative subpoenas may be issued at any point during the investigative or

court-martial process (e.g., at any point after an allegation is received and prior to certification of

the record of trial). Investigative subpoenas may be issued pre-referral either by counsel for the

government (when authorized by the GCMCA or delegee) or by a military judge, and may be

DAFI51-201 24 JANUARY 2024 75

issued post-referral by trial counsel. See R.C.M. 703. Investigative subpoenas may be issued for

production of evidence, unless otherwise limited by law.

6.5.1. Limitations of Investigative Subpoenas.

6.5.1.1. Pre-referral investigative subpoenas may not be used for witness testimony.

6.5.1.2. Investigative subpoenas may not be used to obtain the content of wire or electronic

communications held by electronic service providers. (T-0) See Section 6E, R.C.M.

309(b); R.C.M. 703A. However, this does not limit the issuing of an investigative

subpoena for basic subscriber information.

6.5.1.3. Investigative subpoenas to members of the media are subject to the restrictions

imposed under Paragraph 16.5.2.

6.5.1.4. Investigative subpoenas served on financial institutions for records concerning a

customer of that financial institution are subject to the Right to Financial Privacy Act

(RFPA), 12 .S.C. § 3401, et seq, Right to Financial Privacy Act. Before serving such a

subpoena on the financial institution, a copy of the subpoena must be served on the

customer (or mailed to the last known address) along with the statement, motion paper

template, sworn statement template, and other information required by 12 U.S.C. § 3405.

At the expiration of any required notice period, an investigative subpoena served on a

financial institution shall be accompanied by a certification that the issuer of the subpoena

has fully complied with the requirements of the RFPA. Delayed notice to a customer may

be authorized by a military judge in accordance with 12 U.S.C. § 3409, Delayed Notice.

6.5.2. Trial Counsel Investigative Subpoenas.

6.5.2.1. Pre-Referral Investigative Subpoenas. Prior to issuing a pre-referral investigative

subpoena, all government counsel must request authorization to issue each pre-referral

investigative subpoena from the GCMCA. See R.C.M. 703(g)(3)(D)(v). The convening

authority’s authorization is limited to specific subpoenas. Blanket authorization to issue

subpoenas is not authorized (e.g., a convening authority may not permit government

counsel to issue “all the subpoenas necessary in the case of United States v. Amn Snuffy”

but may permit government counsel to issue “a subpoena for bar receipts of Amn Snuffy

and SSgt Doe to Bar X”). Authorization by the convening authority to government counsel

must be in writing. A template can be found on the VMJD and AF/JAJM Teams page.

6.5.2.2. Post-Referral Subpoenas. Government counsel may issue post-referral subpoenas

in accordance with R.C.M. 703(g)(3)(D). There is no requirement to obtain convening

authority approval to issue any such subpoena.

6.5.3. Convening Authority Authorization to Issue Investigative Subpoenas. Convening

authorities do not have the independent authority to issue investigative subpoenas.

Investigative subpoenas may only be issued by government counsel. See R.C.M. 703(g).

6.5.4. GCMCA Delegation of Authorization to Issue Investigative Subpoenas. The GCMCA

may delegate the authority to approve pre-referral investigative subpoenas to subordinate

SPCMCAs, but such delegation must be in writing. A template for this delegation can be found

on the VMJD and AF/JAJM Teams page.

6.5.5. Military Judge Investigative Subpoenas. Military judges may issue investigative

subpoenas pre-referral, but may not issue investigative subpoenas post-referral.

76 DAFI51-201 24 JANUARY 2024

6.5.5.1. Upon application by government counsel, a military judge may issue a pre-referral

investigative subpoena under R.C.M. 703(g)(3)(C). See R.C.M. 309(b)(1); Articles 30a

and 46, UCMJ.

6.5.5.2. Defense counsel may request that government counsel make an application for a

pre-referral investigative subpoena. See R.C.M. 309(b) Discussion. Government counsel

must submit the defense application to the military judge, and the military judge has

discretion to grant defense counsel an opportunity to be heard. (T-0)

6.5.6. Victim Notification. Subpoenas for personal or confidential information about a victim

named in a specification require the victim be given notice in accordance with R.C.M.

703(g)(3)(C)(ii) so that said victim has the opportunity to move for appropriate relief, unless

exceptional circumstances exist. This notification is required regardless of whether the

subpoena is issued by a military judge or by government counsel.

6.5.7. Required Format. Investigative subpoenas are issued on DD Form 453, Subpoena. (T-0)

6.5.7.1. In the absence of specific direction from a military judge, government counsel

should ordinarily be listed on DD Form 453 as the individual to whom requests for relief

should be directed.

6.5.7.2. While neither government counsel nor the convening authority have statutory

ability to grant relief, government counsel is responsible for forwarding requests for relief

to the detailed military judge or AF/JAT to request a military judge be detailed to address

any such requests.

6.5.8. Service of Subpoenas and Other Legal Process.

6.5.8.1. It is the responsibility of government counsel to ensure the subpoena or other legal

process is served on the subject party or their authorized agent in accordance with R.C.M.

703(g)(3)(E).

6.5.8.2. Informal service may suffice if a witness will voluntarily comply with the

subpoena. Informal service is accomplished by mailing to duplicate copies of the subpoena

to witness and a postage-paid envelope bearing a return address, with the request that the

party sign acceptance of service and return it in the envelope provided. Because informal

service limits the Government’s ability to seek a Warrant of Attachment, contempt

sanctions, or other appropriate relief for non-compliance with a subpoena, it should be used

only when voluntary compliance is likely. See Section 16B. R.C.M. 703(g)(3)(H).

6.5.8.3. Formal service is advisable if the party subject to the subpoena may not comply

voluntarily. Formal service should ordinarily be made by a person subject to the UCMJ.

See R.C.M. 703(g)(3)(H). Formal service should also include a means for reimbursement

for fees and mileage.

6.5.8.4. When serving an electronic service provider under Section 6E or other large

business entity, evaluate service on the closest registered agent or through the entity’s

submission website for service of legal process. See www.search.org/resources.isp-list.

DAFI51-201 24 JANUARY 2024 77

Section 6E—Stored Communications Act Data (R.C.M. 309 and 703A; Article 30(a), UCMJ)

6.6. General Provision. A detailed military judge, upon application by government counsel in

connection with an ongoing investigation of an offense under the UCMJ, may issue a warrant to a

qualifying provider of electronic communications service or remote computing service for the

disclosure of the contents of wire or electronic communications, both pre-referral (including pre-

preferral) and post-referral. See R.C.M. 703A. In addition, a military judge may issue a warrant

or order for disclosure of non-content data and information pertaining to subscribers or customers

of those services. See R.C.M. 703A; Articles 26 and 30a, UCMJ; United States v. Carpenter, 138

S.Ct. 2206 (2018), United States v. Warshak, 631 F.3d 266 (6th Cir. 2010). See also 18 U.S.C. §

2701, et seq, Unlawful access to stored communications. This does not limit the issuing of an

investigative subpoena for basic subscriber information. Templates can be found on Knowledge

Management under the Government Trial Counsel section.

6.6.1. Preservation Requests. Upon learning of the existence of evidence maintained by a

provider of wire or electronic communication services or remote computing services,

government counsel should coordinate with law enforcement to request that the provider

preserve the pertinent records. Preservation requests should be issued on official Air Force

letterhead.

6.6.1.1. A provider receiving such a request must preserve the records for 90 days, which

may be extended an additional 90 days on receipt of another request. A provider has no

legal obligation to preserve data beyond 180 days. Preservation requests are not

prospective; requests apply only to data already in existence, not data created after the

preservation request. See R.C.M. 703A(f).

6.6.1.2. When a provider makes a report of apparent child sexual abuse material to the

National Center for Missing and Exploited Children as required under 18 U.S.C. § 2258A,

Reporting requirements of providers, such a provider is required to preserve relevant data

for 90 days from submission of the report even absent a request by law enforcement. The

initial 90-day period may be extended one time on request of law enforcement for an

additional 90 days. However, as above, a provider has no legal obligation to preserve data

beyond 180 days.

6.6.2. Warrants Required for Certain Data. Some categories of remotely held data require a

search warrant. Practitioners should be aware of current caselaw as to whether a search warrant

is required to compel certain types of data or whether a judicial order will suffice.

6.6.2.1. Content Data. Judicial orders may not be used to compel a provider of electronic

communication service or remote computing services to disclose the content of any wire

or electronic communication that is in electronic storage in an electronic communication

system. In accordance with United States v. Warshak, 631 F.3d 266 (6th Cir. 2010),

warrants are required for disclosure of the content of any wire or electronic communication

in electronic storage in an electronic communications system, regardless of the length of

time the content is maintained.

6.6.2.2. Location Data. Judicial orders may not be used to compel a provider to disclose

detailed location data. See United States v. Carpenter, 138 S.Ct. 2206 (2018); United

States v. Jones, 565 U.S. 400 (2012). Warrants are required for disclosure of detailed

global positioning satellite (GPS) data and cell site location information (CSLI) data.

78 DAFI51-201 24 JANUARY 2024

6.6.3. Providers of Services to the Public. The Stored Communications Act, Article 30a, and

R.C.M. 703A and the procedures of this Section apply only to legal process directed to

electronic communications services and remote computing services who provide services to

the public. See 18 U.S.C. § 2510, Definitions, and 18 U.S.C. § 2711, Definitions for chapter.

6.6.4. Data Held Outside the United States. Generally, providers in the United States must

provide data responsive to legal process when the data is in the provider’s possession, custody,

or control, irrespective of the physical location of the server on which communications are

stored. 18 U.S.C. § 2713, Required preservation and disclosure of communications and

records. When the provider is located outside of the United States or is otherwise beyond

compulsory legal process, practitioners should evaluate whether there exists with the nation in

which the target provider is located an executive agreement under 18 U.S.C. § 2523, Executive

agreements on access to data by foreign governments, or a mutual legal assistance treaty. In

rare circumstances, providers may also evaluate the appropriateness of letters rogatory. See

22 C.F.R. § 92.49 - § 92.71, Depositions and Letters Rogatory. Requests for data held outside

of the United States should be coordinated with the Office of International Relations, Criminal

Division, Department of Justice.

6.6.5. Request for Military Judge. Government counsel is responsible for requesting a military

judge be detailed and for submitting the application for a warrant or order to the military judge,

regardless of the author of the affidavit. (T-0)

6.6.6. Real Time Interception Not Affected. Neither this section nor R.C.M. 309 or 703A, or

Article 30a, apply to “real-time” interception of wire, electronic and oral communications in

accordance with DoDI 5505.09, Interception of Wire, Electronic and Oral Communications

for Law Enforcement and 18 U.S.C. § 2510, et seq.

6.7. Warrants for Stored Communications Act Data.

6.7.1. General Provision. A warrant is a writ, supported by probable cause, issued by a military

judge directing an electronic communications service or remote computing service to produce

data. Such warrants may be applied for and issued by a military judge both pre-referral

(including pre-preferral) and post-referral. See R.C.M. 703A. While a warrant is required for

content data or detailed location data as discussed in paragraph 6.6.2, a warrant may also

compel production of any data obtainable under a judicial order or an investigative subpoena.

6.7.2. Warrant Request. To obtain a warrant, government counsel must submit a request in

accordance with the Uniform Rules of Practice Before Department of the Air Force Courts-

Martial. The requesting party (government counsel or federal law enforcement) must prepare

a warrant application and draft warrant. Government counsel must submit the application,

draft warrant, and supporting evidence, which may include sworn witness testimony, to the

military judge.

6.7.3. Request for Non-Disclosure Order. If government counsel asserts that a non-disclosure

order is necessary, government counsel indicates such on the warrant application and submit,

in writing, the reasons for the request. Government counsel must also prepare a draft non-

disclosure order. See paragraph 6.9.; 18 U.S.C. § 2705(b), Delayed notice.

6.7.4. Issuance by Military Judge. If the military judge determines there is probable cause to

believe the information sought contains evidence of a crime, the military judge will issue the

warrant to the requesting federal law enforcement officer or government counsel. (T-0) See

DAFI51-201 24 JANUARY 2024 79

18 U.S.C. § 2703(b)(1)(A), Required disclosure of customer communications of records;

R.C.M. 703A(b). If a request for a non-disclosure order is submitted with the warrant

application, the military judge determines whether or not a non-disclosure order is appropriate

and issues any such order in writing. (T-0)

6.7.5. Forms. Warrant applications are accomplished via DD Form 3057, Application for

Search and Seizure Warrant Pursuant to 18 U.S.C. § 2703 and DD Form 3056, Search and

Seizure Warrant Pursuant to 18 U.S.C. § 2703.

6.8. Court Order for Stored Communications Act Data.

6.8.1. General Provision. A judicial order, supported by reasonable grounds to believe that the

records or information sought are relevant and material to an ongoing criminal investigation,

may be issued to an electronic communications service or remote computing service for data

other than content (e.g., basic subscriber information, detailed usage logs, session logs, friend

lists, etc.). While a warrant is required for content data or detailed location data as discussed

in paragraph 6.6.2, a judicial order may also compel production of any data obtainable under

an investigative subpoena. Consult current case law to determine whether an order is sufficient

to obtain the data sought.

6.8.2. Order Request. To obtain an order, trial counsel must submit a request in accordance

with the Uniform Rules of Practice Before Department of the Air Force Courts-Martial. The

requesting party (government counsel or federal law enforcement) must prepare an order

application. Government counsel must submit the application and supporting evidence, which

may include sworn testimony, to the military judge. The federal law enforcement agent or

government counsel completing the order application should annotate whether delayed

notification to the subscriber is requested. See 18 U.S.C. § 2705(b). The party seeking the

order must notify the subscriber of the application for the order unless the party requests the

military judge grant delayed notification. (T-0) The federal law enforcement agent or

government counsel completing the order application must prepare a draft disclosure order and

any draft delayed notification orders in writing for the military judge. If granted, the disclosure

order and any delayed notification orders must be in writing.

6.9. Non-Disclosure Order to Electronic Communications Service or Remote Computing

Service. In accordance with 18 U.S.C. § 2703(b)(1)(A), 18 U.S.C. § 2705(b) and R.C.M.

703A(d)(2), government counsel may request the military judge order the electronic

communications or remote computing service not to disclose the existence of a warrant or order to

any third party, including the subscriber. The non-disclosure order must be issued by the military

judge consistent with R.C.M. 703A. (T-0) If a request for a non-disclosure order is submitted,

the military judge determines whether or not a non-disclosure order is appropriate and issues any

such order in writing for provision to the applicable service provider.

6.10. Ex Parte or In Camera Nature of the Proceeding. Proceedings related to requests for

investigative subpoenas and warrants/orders for wire or electronic communications will ordinarily

be conducted by the detailed judge ex parte and in camera, without a hearing. The record of

proceedings will consist of all documents considered or issued by the detailed judge in acting upon

such requests. The military judge has discretion as to whether to hold a hearing in relation to

requests for investigative subpoenas and warrants/orders for wire or electronic communications.

80 DAFI51-201 24 JANUARY 2024

6.11. Consequences of Failure to Comply. Failure of an electronic communications service or

remote computing service provider to comply with legal process may subject the provider to a

warrant of attachment or contempt proceedings. See Article 48, UCMJ, Section 16B and Section

19J.

6.12. Defense Requests for Warrants or Orders for Wire or Electronic

Communications. Defense counsel may request that government counsel make an application

for a warrant or order both before and after referral. See R.C.M. 703(g)(3)(D) and 703A(a).

Government counsel must submit the defense application to the military judge, and the military

judge has discretion to grant defense counsel an opportunity to be heard. Government counsel

should also consult with the investigating agency to determine the appropriateness of sending a

preservation request at that time.

6.13. Requests for Relief from Subpoena or Other Process. Individuals or entities in receipt

of an investigative subpoena, judicial order, or warrant to disclose information regarding wire or

electronic communications may request relief on the grounds that compliance is unreasonable,

oppressive or prohibited by law. The military judge will then make a determination as to whether

the party must comply or will modify or quash the subpoena, warrant, or order. See R.C.M.

703A(c)(2).

6.14. Post-Referral Requests for Warrants or Orders. An Article 30a, UCMJ, proceeding is

only required pre-referral. Requests for court orders or search warrants post-referral may require

a hearing under Article 39(a), UCMJ.

Section 6F—Immunity (R.C.M. 704, M.R.E. 301(d)).

6.15. Grants of Immunity.

6.15.1. Authority to Grant Immunity.

6.15.1.1. Except as provided in paragraph 6.15.1.2., a GCMCA possesses the authority

to grant or deny immunity to witnesses. The GCMCA may delegate this authority to

subordinate SPCMCAs. The GCMCA’s delegation must be in writing, and the

authorization may not be further delegated. (T-0). If the GCMCA delegates authority to

grant immunity to the SPCMCA, the SPCMCA SJA must consult with the GCMCA SJA

before requesting a grant of immunity from the SPCMCA. Ordinarily, the GCMCA with

authority over the subject court-martial shall grant immunity. When another GCMCA

retains administrative control over the witness to be immunized, prior coordination with

the retaining GCMCA or delegee, if applicable, is recommended.

6.15.1.2. For offenses under OSTC authority, the LSTC possesses the authority to grant

immunity to witnesses. The LSTC may delegate this authority to subordinate STC in

writing. Requests for immunity should be routed through the OSTC District Office to

OSTC Headquarters for LSTC approval.

6.15.1.3. A GCMCA or LSTC or their designees may grant immunity to a person subject

to the UCMJ. However, such immunity may extend to a prosecution in a United States

District Court only when specifically authorized by the Attorney General of the United

States or other designated authority under Chapter 601 of 18 U.S.C.

DAFI51-201 24 JANUARY 2024 81

6.15.1.4. A GCMCA or LSTC or their designees may grant immunity to persons not

subject to the UCMJ only when specifically authorized to do so by the Attorney General

of the United States or other designated authority under Chapter 601 of 18 U.S.C.

6.15.2. Procedure. All grants of immunity must be in writing, signed by the issuing authority,

and attached to the record of trial (ROT). Grants of immunity should include language stating

the immunity grant takes effect on the date the witness receives a copy of it. The convening

authority shall order a person subject to the UCMJ who has received a grant of immunity to

answer questions or testify, to include those receiving a grant of immunity from an STC. See

R.C.M. 704(d)(2). Sample grants of immunity and orders to testify are available on the VMJD

and AF/JAJM Teams page.

6.15.3. National Security Cases. Process immunity requests for witnesses suspected of

criminal activity involving national security according to paragraph 6.15.4, regardless of

whether the witness is subject to the UCMJ. AF/JAJG is responsible for coordinating such

cases with the Department of Justice and other interested United States agencies. If the case

involves offenses under OSTC authority, coordination shall include the servicing OSTC

District Office.

6.15.4. Cases Involving the Department of Justice. If the Department of Justice has an interest

in investigating and prosecuting a witness suspected of criminal activity, prepare the immunity

request, regardless of whether the witness is subject to the UCMJ. (T-0) The GCMCA, LSTC,

or delegee, as applicable, must indicate the intent to approve a request for immunity to the

Department of Justice. A written memorandum from the GCMCA, LSTC, or delegee is then

forwarded to AF/JAJG, who will staff the package to the Department of Justice. The

Department of Justice (or other authority designated under 18 U.S.C. § 6004, Certain

administrative proceedings) will then either authorize the GCMCA to offer immunity or will

disapprove the request. If authorized, the GCMCA, LSTC, or delegee may then offer the

person immunity. Prepare requests for Department of Justice authorization in accordance with

paragraph 6.15.5.

6.15.5. Requests for Department of Justice Authorization.

6.15.5.1. In cases requiring Department of Justice authorization, the SJA whose office is

prosecuting the court-martial initiates the request for Department of Justice authorization.

When the GCMCA, LSTC, or delegee, indicates in a memorandum the intent to grant

immunity, the GCMCA SJA or SPCMCA SJA, if the authority to grant immunity has been

delegated to the SPCMCA, forwards the request with written endorsement, by e-mail,

directly to AF/JAJG, with information copies to the MAJCOM SJA and OSTC District

Office, if applicable. The SJA should consult with AF/JAJG prior to forwarding the

request as the Department of Justice requires requests be forwarded in a specific format.

Requests are forwarded no less than 30 days in advance of the date the witness is expected

to testify. SJAs should consider requesting a delay pursuant to R.C.M. 707(c)(1) while

authorization is pending.

6.15.5.2. The written request should include the following information:

6.15.5.2.1. Case name and nature of the proceeding for which requesting immunity;

6.15.5.2.2. Nature of the charges against the accused and anticipated date of the

proceeding;

82 DAFI51-201 24 JANUARY 2024

6.15.5.2.3. Name, social security number (SSN), date and place of birth, and address

of the witness;

6.15.5.2.4. The witness’s military status and organization, if any;

6.15.5.2.5. Whether the defense or prosecution requested the immunity;

6.15.5.2.6. Name, grade, organization, and mailing address of the GCMCA or delegee

who will grant the immunity after receiving Department of Justice authorization, and a

statement that the GCMCA or delegee supports the immunity request. Note: Immunity

is not actually granted until approved by the GCMCA or delegee after receiving

Department of Justice authorization;

6.15.5.2.7. An explanation of why immunity is necessary, including whether any state

or federal charges are pending against the witness and a description of those charges,

if any;

6.15.5.2.8. Whether the witness is currently incarcerated and, if so, the location, cause,

and length of incarceration;

6.15.5.2.9. A summary of the witness’s expected testimony;

6.15.5.2.10. Factual basis for believing the witness will assert the privilege against

self- incrimination, including the nature of the offenses in which the witness may be

incriminated;

6.15.5.2.11. The likelihood of the witness testifying, should immunity be granted; and

6.15.5.2.12. Name, title, address and telephone number of the representative from the

local State’s Attorney’s Office and United States Attorney’s Office with whom trial

counsel coordinated the request. Include information on whether the representative

supports or opposes the request.

6.15.6. Preliminary Discussions of Immunity. Judge advocates and investigators are to be

exceedingly careful in discussing the possibility of immunity with anyone involved in an

investigation or potential prosecution. Avoid creating a perceived expectation of immunity

that may be unfounded. The best practice is to first coordinate potential grants of immunity

with the appropriate convening authority, and when appropriate, OSTC or AF/JAJG.

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Chapter 7

PRE-REFERRAL JUDICIAL PROCEEDINGS (ARTICLE 30A, UCMJ; R.C.M. 309)

7.1. General Provision. A pre-referral proceeding may occur at any point prior to referral, to

include pre-preferral.

7.2. Detailing of Military Judges for Pre-Referral Proceedings. Military judges are requested

and detailed to the pre-referral proceedings described in this chapter in accordance with the

Uniform Rules of Practice Before Department of the Air Force Courts-Martial.

7.3. Covered Matters. See Article 30a, UCMJ, and R.C.M. 309 for matters which may be

addressed in pre-referral judicial proceedings. Additional requirements are discussed in this

chapter.

7.4. Pre-Referral Investigative Subpoenas. If issuance of an investigative subpoena is

requested from a military judge pre-referral, the military judge determines whether or not a hearing

is required. See Section 6D for further information and procedures. Proceedings will ordinarily

be conducted by the detailed judge ex parte and in camera, without a hearing. See Uniform Rules

of Practice Before Department of the Air Force Courts-Martial.

7.5. Pre-Referral Warrants or Orders for Stored Communications Act Data. If issuance of

a warrant or order from a military judge is requested pre-referral, the military judge determines

whether or not a hearing is required. See Section 6E for further information and procedures.

Proceedings will ordinarily be conducted by the detailed judge ex parte and in camera, without a

hearing. See Uniform Rules of Practice Before Department of the Air Force Courts-Martial.

7.6. Requests for Relief from Subpoena or Other Process. Prior to referral, only the entities

listed in R.C.M. 309(b)(3) may request relief from subpoenas or other judicial process.

7.7. Pre-Referral Appointment of a Representative Pursuant to Article 6b. Prior to referral,

the military judge may designate a suitable person to assume the rights of a victim who is under

18 years of age (but who is not a member of the armed forces), or who is incompetent,

incapacitated, or deceased. See Article 6b(c) UCMJ; R.C.M. 309(b)(5). This appointment allows

military authorities to fulfill their obligations to crime victims, e.g., notice of pre-trial confinement,

or right to speak at a pre-trial confinement hearing (see, e.g., paragraph 9.3.2.). It also allows a

suitable person to express the interests of the victim regarding pre-trial confinement, case

disposition, victim participation, input in the court-martial process, and representation by a

victims’ counsel. The legal guardian of the victim, the representative of the victim’s estate, a

family member, or any other person designated as suitable by the military judge, may assume the

rights of the victim. Under no circumstances may the military judge designate the accused to

assume the rights of the victim.

7.7.1. Initial Need Assessment. Prior to referral, trial counsel determines whether an Article

6b representative should be appointed based on the totality of the circumstances, including

personal interactions with the victim, input from law enforcement authorities, and input from

any other persons involved in the case. In the case of a child victim, it may be appropriate for

trial counsel to request input from a VC if a VC had been previously requested. If trial counsel

determines an Article 6b representative is warranted, they must coordinate a suitable person to

assume the rights of any named victim of potential charges who is under 18 years of age (but

who is not a member of the armed forces) or any other category listed in R.C.M. 309(b)(5).

84 DAFI51-201 24 JANUARY 2024

Trial counsel must seek appointment from a military judge prior to seeking input on any case

for disposition for which a named victim lacks capacity to decide.

7.7.2. Appointment Procedures.

7.7.2.1. Generally, government representatives (e.g., trial counsel or the VWAP

coordinator) will send a request to the trial judiciary’s central docketing office to request

detailing of a military judge. The government representative should include in the request

to the judiciary, at a minimum, evidence of the victim’s status, the status of the case against

the accused (e.g., the Charge Sheet), and evidence of the relationship between the victim

and the proposed Article 6b representative (e.g., 1168 from a non-offending parent).

7.7.2.2. If government representatives believe Article 6b representation is unnecessary,

but a VC, based on interactions with the victim, believe 6b representation is warranted, the

VC should engage the trial counsel to reconsider the position and request trial counsel

submit a request to the trial judiciary’s central docking office. If trial counsel still believes

6b representation is not warranted, the SJA will supply the VC with the substantiation

necessary for the military judge to resolve the issues specified in paragraphs 7.7.2.1. The

VC may in this circumstance file a request directly with the trial judiciary’s central

docketing office to detail a military judge to resolve the issue.

7.8. Recording of Pre-Referral Proceedings. All hearings conducted pursuant to Article 30a,

UCMJ, must be recorded verbatim and transcribed. For recording purposes, follow the procedures

in paragraph 12.8 used for recording an Article 32, UCMJ, preliminary hearing. See DAFMAN

51-203 for guidance on preparation of the record of proceedings required in R.C.M. 309. The trial

counsel must ensure that the record of proceedings is maintained on behalf of or by the appropriate

convening authority or commander, and such record will be included in the ROT if applicable.

DAFI51-201 24 JANUARY 2024 85

Chapter 8

RELEASE OF INFORMATION

Section 8A—Provision of Information to Defense Counsel

8.1. Release of Information to Defense Counsel. SJAs and trial counsel are strongly encouraged

to provide matters to defense counsel as soon as practicable. This may be prior to preferral of

charges. At preferral, trial counsel must, at a minimum, provide defense counsel copies of the

matters listed in R.C.M. 308(c). (T-0) If it is impractical to provide these matters, trial counsel

must permit the defense to inspect them. The provisions in this section are not intended to create

any additional substantive or procedural right to discovery, which is described in the MCM. After

referral of charges to trial, both trial and defense counsel conduct discovery in accordance with

R.C.M.s 701 and 703.

8.2. Distinction Between Discovery and Freedom of Information Act (FOIA)/Privacy Act

Release. When stating that certain documents are protected from release, or that certain

discoverable documents should be redacted before being provided to defense counsel, trial counsel

should distinguish between rules pertaining to discovery and rules pertaining to the release of

information to a third party (such as FOIA or Privacy Act). Trial counsel should maintain an

unredacted copy of any redacted items provided to defense in the event unredacted items must

later be provided to defense.

8.2.1. Releasing Privacy Act Material to Defense Counsel. When releasing Privacy Act

material to defense counsel, trial counsel should redact non-discoverable Privacy Act

information regarding individuals other than the accused. An example of this is DoD ID

numbers of individuals providing urinalysis samples, which are listed in an otherwise

discoverable document, but which have no relevance to the case. Contact information and

dates of birth for witnesses, however, are usually relevant to defense preparation. When

Privacy Act material is not redacted in discovery material, defense counsel must take

appropriate steps to guard against improper release of this information. Additionally, if trial

counsel elect not to redact Privacy Act material when providing discovery to civilian defense

counsel, trial counsel should obtain a signed statement from the civilian defense counsel stating

the defense counsel agrees not to release Privacy Act information to others not involved with

the defense of the case, using the format set forth at the VMJD and AF/JAJM Teams page.

8.3. Coordination for Review and Analysis of Child Sexual Abuse Material. When evidence

includes child sexual abuse material, refer to 34 U.S.C. § 20911 et seq., Relevant definitions,

including Amie Zyla expansion of sex offender definition and expanded inclusion of child

predators, commonly known as “The Adam Walsh Act,” and 18 U.S.C. § 3509, Child victims’

and child witnesses’ rights, with regard to discovery. Review and analysis of all evidence of child

sexual abuse material must be coordinated with the OSI detachment investigating the case.

Misconduct involving child sexual abuse material constitutes a covered offense, and STC must be

consulted for the review and analysis of evidence. Note: Responsibility for handling of child

sexual abuse material differs based on the status of the material. See Section 16C.

86 DAFI51-201 24 JANUARY 2024

Section 8B—Provision of Information to Victims’ Counsel

8.4. Release of Records to VCs. Requests from DAF VCs and VCs from other services for

records pertaining to a court-martial proceeding involving their clients are properly addressed as

“official use” requests under the Privacy Act and FOIA. See 5 U.S.C. § 552a(b)(1); DoD 5400.11-

R, Department of Defense Privacy Program, paragraph C4.2.1.. Victims may also hire civilian

attorneys to serve as VC. In such cases, a civilian VC may request information pursuant to the

“routine use” provision of the SORN “Military Justice and Civilian Criminal Case Records,” DoD

0006, consistent with law and policy as to victims’ rights and access to information.

8.5. SJA Release of Information.

8.5.1. An SJA’s decision to release information is limited in scope to information generated

and maintained by the servicing legal office in accordance with law and policy. See also SORN

F051 AFJA I, Military Justice and Magistrate Court Records.

8.5.2. An SJA’s decision to release information pursuant to an official request or routine use

request is discretionary, unless the SJA is otherwise required by law or policy to provide that

information to the victim or VC. See DAFI 51-207, paragraph 5.11.

8.5.3. Pursuant to an official or routine use request, SJAs have discretion to release records

that are minimally required to accomplish the VC’s intended use as articulated in the request.

See DoD 5400.11-R, paragraph C4.2.1. Such records may include but are not limited to the

following items:

8.5.3.1. Copies of the VC’s client’s statements and documents provided by the client.

8.5.3.2. Copies of or access to statements by the accused or another witness implicating

an Article 6b, UCMJ right or privilege of VC’s client. For example, evidence that could

potentially be covered under M.R.E. 412 or another privilege.

8.5.3.3. Copies of or access to any evidence or information that could suggest a safety

concern to the VC’s client. Any victim or witness should immediately be informed of any

information that suggests a safety concern for that victim or witness.

8.5.3.4. Copies of any evidence directly relating to or derived from the VC’s client. For

example, photos, medical records, or communications by the VC’s client.

8.5.3.5. Copies of or access to evidence or information that could indicate retaliation

against or ostracism towards the VC’s client.

8.5.3.6. Copies of or access to evidence directly relating to an alleged offense against the

VC’s client.

8.5.4. Releasing Privacy Act Material to VC. Trial counsel should redact Privacy Act

information regarding individuals other than the attorney’s client. An example is SSNs of

other victims, which have no relevance to the case. When Privacy Act material is not redacted

in official use material, VCs should take appropriate steps to guard against improper release of

this information. SJAs should consider obtaining agreement from civilian counsel that they

will return the Report of Investigation at the conclusion of the case or post-trial consistent with

the admonitions of Gray v. Mahoney, 39 M.J. 299 (C.M.A. 1994), or in the alternative merely

providing access to the report. Further, SJAs must obtain a signed statement from the civilian

DAFI51-201 24 JANUARY 2024 87

VC stating counsel agrees not to release any protected information to others not involved with

representing the victim. A template is available on the VMJD and AF/JAJM Teams page.

8.5.5. Releasing Privacy Act Material to Victims. When a victim is making the request on

their own and is otherwise unrepresented, Government may provide access to requested

material as a routine use under the Privacy Act SORN for “Military Justice and Civilian

Criminal Case Records,” DoD 0006. If the government chooses to provide copies, third-party

personal information must first be redacted. Note: Victims should not be given access to or

copies of sealed exhibits.

8.5.6. Law Enforcement Records.

8.5.6.1. Draft Documents and Unpublished Reports of Investigations. SJAs may not

release unpublished law enforcement ROIs (or portions of ROIs, to include statements and

summaries of statements) without prior coordination with the relevant law enforcement

agency. SJAs may either forward the request or direct the requester to the commander or

equivalent for the law enforcement agency that generated the draft/unpublished report.

8.5.6.2. Published ROIs. SJAs must consult with the commander or equivalent for the law

enforcement agency that generated the report before releasing published law enforcement

ROIs or portions thereof to any DC or VC. The law enforcement commander or equivalent

shall have the opportunity to object or raise any concerns (e.g., tradecraft, privileged

matters) prior to the SJA carrying out discovery or disclosure requirements of such material

as articulated in the UCMJ, R.C.M., and DoD and DAF policies.

8.5.7. Decisions to release any documents or portion thereof over the objection of the law

enforcement commander, or to deny such release, must be memorialized in writing.

8.5.8. The responsibilities in this section are delegable no lower than the DSJA unless

otherwise stated herein.

8.6. Victims’ Counsel Responsibilities. All requests must be in writing and sufficiently detailed

to allow the SJA to respond to the request. All counsel must take necessary steps to protect

information from improper release. See paragraph 8.5.4.

Section 8C—Confidential or Otherwise Protected Information

8.7. Restricted and Unrestricted Reports of Sexual Assault and Sexual Harassment.

8.7.1. Restricted Reporting. Restricted reporting allows a sexual assault or sexual harassment

victim to confidentially disclose the details of the assault to specified individuals and receive

care and access to support services, including medical care and counseling, without triggering

the official investigative process.

8.7.1.1. In cases where a victim of sexual assault selects the restricted reporting option by

completing and signing Department of Defense (DD) Form 2910, Victim Reporting

Preference Statement, providers authorized to receive such reports under DAFI 90-6001,

Sexual Assault Prevention and Response (SAPR) Program or DoDD 6495.01, Sexual

Assault Prevention and Response (SAPR) Program, may not disclose covered

communications to law enforcement or command authorities, either within or outside the

DoD, except as provided by DoDI, DAF policy or law. (T-0) A sexual assault victim may

88 DAFI51-201 24 JANUARY 2024

elect to convert a restricted report to an unrestricted report at any time by completing a DD

Form 2910 and selecting the unrestricted reporting option.

8.7.1.2. In cases where a victim of sexual harassment selects the restricted reporting option

by completing and signing the Military Sexual Harassment Victim Reporting Preference

Statement (hereinafter Preference Statement) in accordance with DAFI 90-6001, those

authorized to receive the restricted report may not disclose covered communications to law

enforcement or command authorities, either within or outside the DoD, except as provided

by DoDI, DAF policy, or law. (T-0) A sexual harassment victim may elect to convert a

restricted report to an unrestricted report by completing the Preference Statement.

8.7.2. The SARC, assigned Victim Advocate, and health care providers must consult with the

servicing legal office, in the same manner as other recipients of privileged information, to

determine if an exception applies permitting disclosure of identifying information. For

offenses under OSTC authority, the servicing legal office shall coordinate with an STC prior

to responding. Until those determinations are made, only non-identifying information should

be disclosed. When there is uncertainty or disagreement on whether an exception applies, the

matter is resolved in accordance with DAFI 90-6001.

8.7.3. Unrestricted Reporting. Officially, an unrestricted report of a sexual assault can only

be made via DD Form 2910. M.R.E. 514 protects statements made by the victim to specified

individuals such as the SARC or a victim advocate, enabling the confidential disclosure of a

sexual assault, but the filing of an unrestricted report triggers a notification to OSI.

8.7.4. OSTC Notification. Sexual assault, and substantiated formal allegations of sexual

harassment after 1 January 2025, are covered offenses, and the OSTC District Office shall be

notified of unrestricted reports of misconduct that may constitute sexual assault or sexual

harassment.

8.7.5. Independent Investigation. An independent investigation is an official law enforcement

investigation not initiated by a victim’s report of sexual assault (via completion of DD Form

2910). An independent investigation may be initiated based on independently acquired

information, such as when a commander immediately notifies OSI or the appropriate MCIO

with information about a sexual assault from a source other than the victim or from other

sources to law enforcement (e.g., friend of the victim or witness to the crime). Refer to Section

33C for Defense Sexual Assault Incident Database (DSAID) reporting requirements associated

with unrestricted reports and independent investigations of sexual assault. OSI or the

appropriate MCIO will follow the guidance in DoDI 5505.18, Investigation of Adult Sexual

Assault in the Department of Defense, when they receive a third-party report of a sexual assault.

8.8. Restricted and Unrestricted Reports of Domestic Abuse.

8.8.1. Restricted Reporting. Restricted reporting is a process allowing an adult victim of

domestic abuse, who is eligible to receive military medical treatment the option of

confidentially reporting an incident of domestic abuse to a DAVA, FAP staff member, or any

MTF healthcare provider for the purpose of receiving medical care, supportive services, and/or

advocacy and information without initiating the investigative process or notification to the

victim’s or alleged offender’s commander. See DAFI 40-301, Family Advocacy Program;

DoDI 6400.06. M.R.E. 514 protects statements made by an alleged victim to victim advocates.

DAFI51-201 24 JANUARY 2024 89

8.8.2. Unrestricted Reporting. A process allowing a victim of domestic abuse to report an

incident using chain of command, law enforcement or OSI and the FAP for clinical

intervention. Victims of domestic abuse who choose to pursue an official command or criminal

investigation of an incident should use these reporting channels. See DAFI 40-301.

8.8.3. OSTC Notification. Domestic violence is a covered offense, and the OSTC District

Office shall be notified of unrestricted reports of misconduct that may constitute domestic

violence.

8.9. Confidential Drug or Alcohol Abuse Treatment Records. Federal statutes and regulations

restrict the disclosure of records of the identity, diagnosis, prognosis, or treatment of any patient

maintained in connection with a federal drug and alcohol abuse education, prevention, training,

treatment, rehabilitation, or research program. Refer to 42 U.S.C. § 290dd-2, Confidentiality of

Records, and 42 C.F.R. § 2.1, Statutory authority for confidentiality of substance use disorder

patient records.

8.9.1. Although the interchange of records entirely within the armed forces is exempt from the

prohibitions in paragraph 8.9, the DoD adopted the standards as a matter of policy to the

extent it provides such records may not be used to initiate or substantiate any criminal charges

against the rehabilitant, except as authorized by a court order issued under 42 U.S.C. § 290dd-

2 and as allowed in DAFMAN 44-197, Military Drug Demand Reduction Program.

8.9.2. Disclosure of these records is permitted at the request of, and with written consent of,

the accused-patient, in the following circumstances:

8.9.2.1. As evidence for the defense before findings.

8.9.2.2. As evidence in mitigation or extenuation in pre-sentencing proceedings.

8.9.2.3. After trial in support of clemency or clemency petitions to TJAG or SecAF.

8.9.3. 42 C.F.R. § 2.31, Consent requirements, outlines the procedures to be followed in

authorizing release of the records by the accused-patient. Discussion of the records in open

court should be avoided to the extent feasible.

8.9.4. An accused may limit release to necessary and relevant records, but an accused cannot

selectively authorize disclosure of the records to mislead the court or other parties to the trial

(e.g., disclosing favorable early records, but not later ones indicating regression). If there is

reason to believe an accused is selectively authorizing disclosure, the matter may be resolved

among counsel or by an in camera review of the records by the military judge.

8.9.5. Drug and alcohol abuse records may be disclosed at trial without the consent of the

accused to rebut or impeach evidence presented by the accused. See United States v. Evans,

20 M.J. 504 (A.F.C.M.R. 1985); United States v. Fenyo, 6 M.J. 933 (A.F.C.M.R. 1979), pet.

denied, 7 M.J. 161 (C.M.A. 1979).

8.10. Limited Privilege Suicide Prevention (LPSP) Program.

8.10.1. Overview & Responsibilities. The LPSP program is designed to facilitate timely

mental health treatment for Airmen and Guardians facing adverse actions who are at risk of

suicide. Counseling, therapy or treatment, and admissions can all qualify under this program.

8.10.1.1. Mental Health Facility Responsibilities. Mental health facilities provide patient

care in accordance with their own regulations and guidance.

90 DAFI51-201 24 JANUARY 2024

8.10.1.2. Commander Responsibilities. Commanders direct mental health evaluations in

accordance with DoDI 6490.04, Mental Health Evaluations of Members of the Military

Services, and AFI 44-172, Mental Health, paragraph 6.9.. (T-0)

8.10.1.3. Legal Office Responsibilities. Legal offices or medical law attorneys provide

legal advice to the mental health facility and treatment providers regarding the LPSP

program. Legal offices are responsible for training those involved in the military justice

process on the LPSP program.

8.10.2. Program Objective. The objective of the LPSP program is to identify and treat Airmen

and Guardians who, because of the stress of impending disciplinary action under the UCMJ,

are at risk for suicide. Experience has shown that military members are often discouraged from

seeking or participating in mental health treatment due to a perceived risk that doing so may

result in worse outcomes in a future disciplinary action. In order to encourage and facilitate

treatment, the LPSP program limits the use of certain confidential communications in

disciplinary actions and service characterization in administrative separations.

8.10.3. Program Eligibility. Any Airman or Guardian who has been officially notified,

verbally or in writing, that he or she is under investigation or is suspected of having committed

an offense under the UCMJ is eligible for the LPSP program. Eligible Airmen and Guardians

should be informed of the LPSP program and, when appropriate, encouraged to seek treatment

from a mental health provider. Any person may inform the member about the program,

including defense counsel and defense paralegals, commanders, first sergeants, supervisors

and all those involved in the military justice process.

8.10.4. Initiation. An Airman or Guardian enters the LPSP program when, subsequent to the

notification described in paragraph 8.10.3, the Airman or Guardian receives treatment or care

from a mental health provider (MHP). This may be the result of a command directed mental

health evaluation, on the Airman’s or Guardian’s own initiative, or a continuation of ongoing

or previous treatment.

8.10.5. Duration. The limited protections provided by the LPSP program shall apply until the

member is no longer receiving mental health treatment or until the investigation and

subsequent disciplinary action, if any, is closed. (T-1) However, matters that were disclosed

while the member was in the LPSP program remain protected.

8.10.6. Limited Protection. Members in the LPSP program are granted limited protection with

regard to information revealed in, or generated by, their clinical relationship with MHPs. Such

information may not be used in any existing or future UCMJ action or when weighing

characterization of service in an administrative separation. Commanders or persons acting

under their authority, such as SJAs, squadron executive officers, or first sergeants, may use the

information for any other purposes authorized by law, this instruction, and other AFIs and

programs.

8.10.7. The limited protection provided by the LPSP program does not apply to:

8.10.7.1. The introduction of evidence for impeachment or rebuttal purposes in any

proceeding in which evidence, generated by and during the LPSP relationship, has first

been introduced by the member.

DAFI51-201 24 JANUARY 2024 91

8.10.7.2. Disciplinary or other action based on independently derived evidence (other than

from communications falling under the LPSP program).

92 DAFI51-201 24 JANUARY 2024

Chapter 9

PRETRIAL CONFINEMENT (R.C.M. 305)

9.1. General Provision. No person may be ordered into pretrial confinement except for when

there is probable cause as defined in R.C.M. 305(d). (T-0) Normally, offenses intended to be

disposed of by a SCM do not warrant pretrial confinement. Note: Imposition of pretrial

confinement or restraint will trigger the speedy trial clock under R.C.M. 707 and the speedy trial

analysis under Article 10, UCMJ.

9.2. Limitation on Confinement Location. Military members may not be placed in confinement

in immediate association with enemy prisoners, or foreign nationals detained under the law of war

who are not otherwise members of the armed forces. See Article 12, UCMJ. (T-0)

9.3. Required Notifications.

9.3.1. STC Notification. If the member is alleged to have committed an offense under OSTC

authority, the servicing legal office must ensure the assigned STC is notified when the member

is ordered into or released from pretrial confinement. See R.C.M. 305(f). Installation legal

personnel should seek STC input, guidance, and assistance at all stages of the pretrial

confinement process.

9.3.2. Victim Notifications. In cases involving a victim as defined by Article 6b, UCMJ, the

SJA must ensure said victim is notified:

9.3.2.1. Upon the confinee’s entering pretrial confinement. (T-0)

9.3.2.2. Upon the confinee’s release from pretrial confinement. (T-0)

9.3.2.3. Additionally, the Pretrial Confinement Review Officer (PCRO), through the SJA

or government representative, is required to ensure the victim has the opportunity to make

a statement either personally or through counsel at the pretrial confinement review hearing.

(T-0). See R.C.M. 305(j)(2)(A)(iv).

9.4. Procedures. Once a member is ordered into pretrial confinement, follow the procedures

required in R.C.M. 305, to include providing initial notifications to the accused.

9.5. 48-Hour Probable Cause Determination (R.C.M. 305(j)(1)). Within 48 hours of the

imposition of military pretrial confinement (including confinement at a civilian facility at the

request of the military), a neutral and detached officer must review the adequacy of probable cause

to continue pretrial confinement. (T-0) R.C.M. 305(j)(1); Gerstein v. Pugh, 420 U.S. 103, 124–

25 (1975); County of Riverside v. McLaughlin, 500 U.S. 44, 45 (1991). The determination must

be in writing and included in the ROT. A template is available on the VMJD and AF/JAJM Teams

page. If the probable cause determination is not made within 48 hours, the government may have

to establish the existence of a bona fide emergency or other extraordinary circumstances.

9.5.1. An officer is neutral and detached if they have not demonstrated personal bias or

involvement in the investigative or prosecutorial process against the accused. United States v.

McLeod, 39 M.J. 278 (C.M.A. 1994). Factors to consider in determining whether an officer is

neutral and detached include whether the officer is the formal accuser on the charge sheet, the

officer who ordered the accused into confinement, or is directly or particularly involved in the

DAFI51-201 24 JANUARY 2024 93

command’s law enforcement functions. United States v. Rexroat, 38 M.J. 292, 298 (C.M.A.

1993); United States v. Lynch, 13 M.J. 394, 397 (C.M.A. 1982).

9.5.2. The PCRO’s seven-day review in paragraph 9.7 may satisfy the 48-hour probable

cause determination requirement if the PCRO’s decision memorandum is completed within 48

hours of the imposition of confinement. In such cases, the PCRO’s memorandum must

specifically state when the probable cause determination was made. (T-0) Likewise, the 72-

hour commander’s decision and memorandum in paragraph 9.6 may satisfy the 48-hour

probable cause requirement if the commander is neutral and detached and the commander’s

memorandum is completed within 48 hours of the imposition of confinement.

9.5.3. If a military member is arrested by civilian authorities and subsequently transferred to

military custody and placed in military pre-trial confinement, a 48-hour probable cause

determination is still required regardless of whether civilian authorities made a probable cause

determination. (T-0) If civilian authorities made a probable cause determination, include that

in the ROT in addition to the 48-hour determination required under R.C.M. 305(j).

9.6. 72-Hour Commander’s Decision and Memorandum (R.C.M. 305(i)(2)(C)). The

commander shall decide whether to continue pretrial confinement no later than 72 hours after (a)

a military member is ordered into pretrial confinement, or (b) after the commander’s receipt of a

report that a member of the commander’s unit or organization has been confined under military

custody, whichever situation is applicable. (T-0) The commander must address the requirements

for confinement in R.C.M. 305(i)(2)(B) and should consider the factors in the Discussion to that

section. When deciding to continue pretrial confinement, the commander must prepare a written

memorandum in accordance with R.C.M. 305(i)(2)(C). The memorandum is then forwarded to

the PCRO, through the SJA and SPCMCA. If a court-martial results, the commander’s

memorandum is included in the ROT. A template is available on the VMJD and AF/JAJM Teams

page.

9.7. Pretrial Confinement Review (R.C.M. 305(j)(2)). Within seven calendar days of the

member being placed in military pretrial confinement, the PCRO reviews the probable cause

determination and makes a decision about the necessity for continued pretrial confinement. The

day placed in confinement counts as day one and the date of review counts as one day.

9.7.1. Appointment of a Pretrial Confinement Review Officer (PCRO) (R.C.M. 305(j)(2)).

The SPCMCA appoints, in writing, a reasonable number of qualified officers to serve as

PCROs. Chaplains, legal office personnel, law enforcement personnel, and court-martial

convening authorities may not serve as PCROs. When the situation warrants, a PCRO from

another military service may be appointed. Similarly, an otherwise qualified Air Force or

Space Force member may serve as a PCRO for another military service. SJAs must ensure

PCROs are briefed on their duties when appointed and updated as appropriate thereafter.

9.7.2. The PCRO reviews the 72-hour commander’s decision to continue pretrial confinement

and considers any matters submitted by the pretrial confinee.

9.7.3. Hearing. The PCRO conducts a hearing at which the pretrial confinee and defense

counsel, if practicable, are allowed to appear and make a statement before the PCRO. The

accused does not have a right to have defense counsel appear in person before the PCRO.

Defense counsel may represent their client at the hearing via telephone or video teleconference

technology as long as there is a mechanism for defense counsel and accused to have private

94 DAFI51-201 24 JANUARY 2024

and confidential communication as necessary. A government representative, usually a judge

advocate, may also make a statement, if practicable. Although the pretrial confinement review

is not an adversarial proceeding, the PCRO may exercise discretion by allowing the pretrial

confinee, defense counsel or government representative to present evidence and cross-examine

witnesses. The PCRO completes a written summary of the relevant testimony of any

witnesses, including information elicited by defense counsel. The only rules of evidence that

apply are M.R.E. 302, 305, and 501-514. See R.C.M. 305(j)(2)(A)(ii).

9.7.3.1. If custody classification does not dictate a distinctive uniform, a pretrial confinee

is allowed to wear a duty uniform for the hearing rather than civilian confinement attire.

See DAFMAN 31-115, Vol 1, Department of the Air Force Corrections System.

9.7.3.2. The pretrial confinee, defense counsel, or both may present evidence related to

confinement conditions in apparent violation of Articles 12 or 13, UCMJ. If such evidence

is presented, the PCRO summarizes the evidence in the PCRO memorandum and informs

the SJA. The SJA reviews the evidence pertaining to allegedly illegal confinement

conditions and works with the member’s commander and the local Security Forces

commander or other confinement officials to remedy the situation as necessary.

9.7.4. Upon completion of the PCRO’s review, the PCRO approves continued confinement or

orders immediate release. The PCRO must find the requirements of R.C.M. 305(i)(2)(B) have

been proven by a preponderance of the evidence in order to continue pretrial confinement.

(T-0) If the requirements of R.C.M. 305(i)(2)(B) have not been proven, the PCRO orders

immediate release of the pretrial confinee. The PCRO may not impose conditions on release

but may recommend the commander impose a less severe form of pretrial restraint.

9.7.5. The PCRO must convey their pretrial confinement decision within seven days of the

imposition of confinement. See R.C.M. 305(j)(2)(C). Within 24 hours of conveying the

pretrial confinement decision, the PCRO must complete a memorandum of the PCRO’s

conclusions and the findings on which they are based. See R.C.M. 305(j)(2)(D). A copy of

all documents and summaries of all oral statements considered by the PCRO are attached to

the memorandum. The memorandum with attachments is provided to the SPCMCA, the

SPCMCA’s SJA, the confinement officer, the pretrial confinee, and the pretrial confinee’s

defense counsel. A sample format for the PCRO’s memorandum is listed on the VMJD and

AF/JAJM Teams page.

9.8. Review by military judge. A military judge shall review the propriety of pretrial

confinement upon motion for appropriate relief in a pre-referral proceeding conducted in

accordance with R.C.M. 309, or once the charges for which the accused has been confined are

referred to trial. See R.C.M. 305(k).

9.9. Pretrial Restraint Upon Release From Confinement. A commander may impose any

alternative lesser form of pretrial restraint authorized by R.C.M. 304(a)(1)-(3), if release is ordered

by the PCRO. Re-confinement after release is limited to circumstances provided in R.C.M.

305(m). United States v. Mahoney, 36 M.J. 679 (A.F.C.M.R. 1992) (dictum). The requirements

of this chapter apply to a member upon imposition of re-confinement.

9.10. Suicide Prevention. Preventing an accused from committing suicide is not valid as the sole

basis for ordering the accused into or continuing pretrial confinement or pretrial restraint. Such

an accused should be referred to mental health practitioners for evaluation and treatment and, if

DAFI51-201 24 JANUARY 2024 95

necessary, involuntary commitment in a mental health facility. United States v. Doane, 54 M.J.

978, 982 (A.F.C.C.A. 2001).

9.11. Pretrial Determination of Mental Competence. A convening authority may determine

the place and condition of pretrial detention, including confinement in a civilian facility, for the

purpose of evaluating the competency of the accused. The conditions may not be more harsh than

necessary to ensure the accused’s presence at trial, and the facility must be capable of conducting

the competency evaluations and providing care and treatment of the accused. See Article 13,

UCMJ; R.C.M.s 706 & 909; Short v. Chambers, 33 M.J. 49, 52 (C.M.A. 1991); 18 U.S.C. § 4241.

96 DAFI51-201 24 JANUARY 2024

Chapter 10

CONSIDERATIONS PRIOR TO DETERMINING DISPOSITION OF CHARGES

Section 10A—Victims of Sexual Offenses: Views on Prosecutorial Jurisdiction

10.1. Consideration of Victim’s Views on Jurisdiction and Disposition (R.C.M. 306(e) and

R.C.M. 306A(d)).

10.1.1. Victim Preference for Civilian or Military Prosecution. Victims of any sex-related

offense that occurs in the United States have the right to express a preference as to whether the

offense will be prosecuted by court-martial or in a civilian court with jurisdiction over the

offense.

10.1.1.1. Sex-Related Offenses.

10.1.1.1.1. Offenses under command authority are processed under R.C.M. 306(e),

and qualifying sex-related offenses are allegations arising under Articles 120, 120a,

120b, 120c, or 125, UCMJ, including attempts thereof, which occurred prior to 1

January 2019; or any allegation arising under Articles 120, 120b, 120c, or 130, UCMJ,

including attempts thereof, which occurred between on or after 1 January 2019 and

before 28 December 2023.

10.1.1.1.2. Offenses under OSTC authority are processed under R.C.M. 306A(d), and

qualifying sex-related offenses are allegations arising under Article 120, 120b, 120c,

or 130, UCMJ, or any attempt thereof under Article 80, UCMJ, which occurred on or

after 28 December 2023.

10.1.1.2. Obtaining Victim’s Preference for Jurisdiction.

10.1.1.2.1. In all cases where a sex-related offense is alleged to have occurred in the

United States, the SJA must obtain the victim’s preference as to whether the case should

be prosecuted by the military or civilian prosecutors as early in the process as possible.

(T-0) For sex-related offenses under OSTC authority, the legal office must coordinate

with an STC prior to seeking a victim’s jurisdictional preference.

10.1.1.2.2. The victim’s preference will be annotated on the template found on the

VMJD and AF/JAJM Teams Page. If the victim declines to complete the form, the

SJA or STC must document on the template that the victim declined to complete the

form. If seven days have passed from solicitation of the victim’s preference without a

response from the victim (or detailed VC), the SJA or STC may presume that the victim

does not wish to express a preference. A copy of the notification memorandum and the

indorsement with the victim’s preference must be maintained in the case file. Template

notification memoranda are available on the VMJD and AF/JAJM Teams Page.

10.1.2. Victim’s Disposition Input. Although the victim’s preference is not binding, the

disposition authority, must consider the victim’s views before taking action. Where the

disposition authority is considering taking no action or disposition by means other than court-

martial, the disposition authority will, through the SJA, solicit the victim’s inputs prior to

rendering a final decision. The disposition authority should consider the victim’s input prior

to rendering a final decision. For offenses under OSTC authority, the legal office shall

DAFI51-201 24 JANUARY 2024 97

coordinate with an STC prior to seeking a victim’s disposition preference. (T-0) If seven days

have passed from solicitation of the victim’s input without a response from the victim (or

detailed VC), the SJA may presume that the victim does not wish to express input as to

disposition. Refer to DAFI 51-207 for additional information.

10.1.3. Civilian Prosecution Preferred.

10.1.3.1. If the offense was committed in an area of concurrent jurisdiction, the SJA, or

STC for offenses over which OSTC has exercised authority, should determine whether the

victim has a preference for prosecution by the state or federal government or has no

preference.

10.1.3.2. In the event the victim indicates they prefer civilian prosecution of the sex-

related offense, the SJA, or STC for offenses over which OSTC has exercised authority,

must notify the prosecutorial agency or agencies in that jurisdiction of the victim’s

preference. If the offense was committed in an area of exclusive federal jurisdiction and

the victim indicates a preference for civilian prosecution, the SJA or STC, as applicable,

must notify the United States Attorney’s Office. The SJA or STC must then notify the

victim of the civilian agency’s response. Forms for accomplishing both notifications are

on the VMJD and AF/JAJM Teams page.

Section 10B—Initial Disposition of Offenses under OSTC Authority (R.C.M. 306A)

10.2. Disposition Authority. Only an STC may dispose of offenses under OSTC authority.

These include covered, known, and related offenses, as outlined in Chapter 4. See also Article

1(17), UCMJ, and R.C.M. 303A. Within OSTC, disposition authority is offense-specific and

withheld to certain duty positions. For each offense under OSTC authority, an STC will either

prefer a charge or defer the offense to command.

10.3. Commander Disposition Input. Commanders may provide non-binding disposition input

via their servicing legal office to OSTC for members of their unit who are a victim and/or an

accused of offenses under OSTC authority. A template for the commander’s disposition input is

on the VMJD and AF/JAJM Teams page.

10.4. Deferral. Deferred offenses will be forwarded by the OSTC District Office to the

commander or convening authority via the servicing legal office.

10.4.1. Following deferral, command may take any lawful disposition action for the deferred

offense(s), but a convening authority may not refer a deferred covered offense to a special or

general court-martial (GCM).

10.4.2. If command seeks reconsideration of the deferral decision for covered offense(s), the

servicing legal office will coordinate the request with the OSTC District Office. This includes

requests for reconsideration following an accused’s turndown of NJP and demand for trial by

court-martial under Article 15, UCMJ.

98 DAFI51-201 24 JANUARY 2024

Section 10C—Initial Disposition of Qualifying Sex-Related Offense Allegation(s) Committed

Prior to 28 December 2023 and Under Command Authority (R.C.M. 306)

10.5. Initial Disposition of Qualifying Sex-Related Offense Allegation(s) (R.C.M. 306). This

provision applies to offenses committed prior to 28 December 2023 and not otherwise under OSTC

authority.

10.5.1. For qualifying offenses, the Secretary of Defense has withheld Initial Disposition

Authority (IDA) from all commanders within the DoD who do not possess at least SPCMCA

and who are not in the grade of O-6 or higher, with respect to any of the following alleged

offenses if committed prior to 28 December 2023:

10.5.1.1. Rape or sexual assault, in violation of Article 120, UCMJ;

10.5.1.2. Forcible sodomy, in violation of Article 125, UCMJ (which was in effect prior

to 1 January 2019); and

10.5.1.3. Attempts to commit the above offenses, in violation of Article 80, UCMJ.

10.5.2. For those offenses for which IDA is withheld, the subordinate commander forwards

the case file, along with a written recommendation, to the convening authority with IDA.

10.5.3. The convening authority with IDA is responsible for determining what initial

disposition action is appropriate, including whether further action is warranted. (T-0) R.C.M.

306(c) describes initial disposition as no action, administrative action, NJP, or disposition of

charges (dismissing, referring, or forwarding for disposition to a superior or subordinate

authority). The initial disposition by the convening authority with IDA may be to permit the

subordinate commander to take action in the case in accordance with the subordinate

commander’s recommendation. Note: Preferral is not an initial disposition action, thus a

subordinate commander may prefer charges before forwarding them to the convening authority

with IDA for disposition.

10.5.3.1. The convening authority with IDA shall base the disposition decision upon

review of the following:

10.5.3.1.1. Matters transmitted;

10.5.3.1.2. Court-martial charges, if any;

10.5.3.1.3. Any independent review and recommendation received;

10.5.3.1.4. Matters submitted by the accused, if any;

10.5.3.1.5. Victim input, if any;

10.5.3.1.6. Consultation with a judge advocate; and

10.5.3.1.7. The factors in the discussion under R.C.M. 306(b) and Appendix 2.1 to the

MCM (The Secretary of Defense’s Disposition Guidance).

10.5.4. The convening authority with IDA must provide the GCMCA (who would have been

in the position to refer charges) in the grade of O-7 or above written notice of initial disposition

within 30 days following the date of the initial disposition decision. See paragraph 10.6. The

SJA supporting the convening authority with IDA should consider coordinating with the

GCMCA/SJA to determine whether the convening authority with IDA should await a GCMCA

DAFI51-201 24 JANUARY 2024 99

review decision prior to taking further action (e.g., send the case back to the subordinate

commander for appropriate action or otherwise dispose of a case).

10.5.5. Collateral Misconduct. The withholding of IDA applies to all alleged offenses arising

from or relating to an allegation of a qualifying offense as listed in paragraphs 10.5.1. This

includes collateral misconduct by the accused or victim. See paragraph 10.9 for the Safe-to-

Report policy for victim collateral misconduct.

10.6. GCMCA Review of Initial Disposition Decision for Qualifying Sex-Related Offenses

Under Command Authority.

10.6.1. For offenses under command authority, if the convening authority with IDA

recommends no qualifying specifications under paragraphs 10.5.1.1 through 10.5.1.3 as to a

victim be referred, see paragraph 13.6 for documentation and review requirements.

Forwarding charges and specifications for referral to the GCMCA in the grade of O-7 or above

satisfies this requirement, even in cases where the GCMCA subsequently declines to refer the

charges.

10.6.2. When disposition of the alleged offense is complete, the GCMCA signs the written

acknowledgment of the action by the convening authority with IDA. This responsibility is not

delegable. A copy of the GCMCA’s acknowledgment serves as a notice of disposition and is

forwarded by the legal office supporting the SPCMCA to OSI. Refer to Chapter 29 for

additional information on disposition data submission to law enforcement. See, e.g.,

Paragraph 29.12. Templates are located on the VMJD and AF/JAJM Teams page.

10.6.3. If the convening authority assesses there is insufficient evidence to support the

prosecution of a qualifying sex-related offense and decides not to refer such specification to a

general or special court-martial, consult DAFI 51-207 for notification requirements to victims.

Section 10D—Coordination on All Cases Involving Separate but Concurrent Prosecution

10.7. Required Coordination for Cases Involving Concurrent Military and Civilian

Prosecutions. Additional coordination is required before proceeding in cases where the military

will prosecute some specifications and the local civilian authorities prosecute other offenses.

10.7.1. The servicing legal office shall coordinate with AFSFC and AF/JAJG on the terms of

the arrangement before entering into an arrangement or agreement with civilian authorities

regarding the order in which the military and civilian cases will proceed and the order in which

the accused will serve confinement, if any is adjudged after conviction. For offenses under

OSTC authority, coordination must also include the assigned STC.

10.7.2. Specifically, the following matters should be considered and discussed with AFSFC,

AF/JAJG, and OSTC, as appropriate:

10.7.2.1. The impact the order of prosecution will have on the subsequent prosecution;

10.7.2.2. Estimated trial dates for the military or civilian authorities;

10.7.2.3. Likelihood of a delay;

10.7.2.4. Potential for loss of evidence and/or witnesses between investigation, first trial,

and the second trial;

100 DAFI51-201 24 JANUARY 2024

10.7.2.5. Impact of result of first trial on the prosecution of the second; and

10.7.2.6. Impact of the order of military and civilian prosecutions may have on a plea

agreement with the accused, if any.

10.7.2.7. The accused, if convicted, will remain in the military until the duration of

military confinement is served. Therefore, if civilian confinement is served prior to

military confinement, the accused will remain in the military for the duration of both the

civilian confinement and the military confinement.

10.7.2.8. The impact a delay in serving military confinement may have on appellate rights

of the accused.

Section 10E—Command Influence (Article 37, UCMJ; R.C.M. 104)

10.8. Independent Command Authority. The military justice system must promote the

independence of command authority and operate free of unlawful command influence. To ensure

a fair and just outcome in every case, court-martial convening authorities, commanders, SJAs, and

all other personnel involved in the military justice process should be sensitive to unlawful

command influence and circumstances that might lead to it. See Article 37, UCMJ.

Section 10F—Safe-to-Report Policy (FY 2021 NDAA, Section 539A)

10.9. Safe-to-Report Policy. If there are allegations of collateral misconduct committed by a

victim of an alleged sexual assault, the Safe-to-Report Policy required by section 539A of the FY

2021 NDAA, and implemented by the DoD, prescribes how such misconduct will be handled.

10.9.1. For purposes of the Safe-to-Report Policy, “sexual assault” is more broadly defined

than for IDA purposes as described above: alleged penetrative and non-penetrative violations

of the applicable version of Article 120, UCMJ; alleged violations of Article 125, UCMJ for

acts of forcible sodomy of a victim age 16 years old or older, occurring before 1 January 2019;

and alleged attempts and conspiracies to commit any of these offenses.

10.9.2. Collateral misconduct means misconduct that is potentially punishable under the

UCMJ that: 1) is committed close in time to or during the sexual assault, and directly related

to the incident that forms the basis of the sexual assault allegation; and 2) is discovered as a

direct result of the report of or the investigation into the sexual assault.

10.9.3. Collateral misconduct by a victim of an offense over which OSTC has exercised

authority constitutes a related offense over which OSTC may choose to exercise authority. If

OSTC declines to exercise authority or defers victim collateral misconduct to command,

commanders must follow the Safe-to-Report Policy outlined in this section.

10.9.4. The Safe-to-Report Policy is applicable to any allegation of sexual assault, regardless

of whether the victim has filed a restricted or unrestricted report. The threshold issue for the

applicability of the Safe-to-Report Policy is determining whether the alleged collateral

misconduct in question is “minor” or “non-minor.” The authority to make such a determination

is withheld to the IDA, as outlined in paragraph 10.5.1. The IDA’s determination is

discretionary based on the totality of the circumstances involved in the case, but the IDA must

assess the alleged collateral misconduct against the delineated aggravating and mitigating

circumstances at a minimum.

DAFI51-201 24 JANUARY 2024 101

10.9.5. If the alleged collateral misconduct is deemed minor, then the Safe-to-Report Policy

applies and the victim will not be disciplined.

10.9.6. If the alleged collateral misconduct is non-minor, then the Safe-to-Report Policy does

NOT apply, and the victim could be subject to disciplinary action.

10.9.7. In addition to evaluating the nature of the alleged collateral misconduct itself,

commanders shall take into account the following factors in determining whether the alleged

collateral misconduct is minor or non-minor.

10.9.7.1. Aggravating circumstances include, but are not limited to, whether the alleged

misconduct intentionally or unintentionally: (a) Threatened the health and safety of any

person, not including acts of self-harm or acts of self-defense against the alleged

perpetrator(s) of an assault; (b) Resulted or imminently threatened to result in failure of a

specified military mission or objective; or (c) Resulted in significant damage to

government property, or to the personal property of others, except when such damage was

the collateral result of an assault and/or resulted from an act of self-defense.

10.9.7.2. Mitigating circumstances include, but are not limited to: (a) The victim’s age and

military experience level; (b) Whether the suspect is in a position of authority over the

victim or a higher grade than the victim; (c) Whether the suspect engaged in actions to

stalk, harass, haze, coerce and/or otherwise influence the victim to engage in sexual

behavior; (d) Whether the alleged collateral misconduct was known to command prior to

the report of sexual assault, and if not known, the likelihood that the alleged collateral

misconduct would have otherwise been discovered, but for the victim disclosing or

reporting the sexual assault; or (e) The victim engaging in misconduct after the sexual

assault, which may be related to symptoms of exposure to trauma (e.g., the victim engaged

in underage drinking as a coping mechanism to alleviate sexual assault trauma symptoms).

10.9.8. Convening authorities exercising IDA retain discretion to make the final determination

of whether the alleged collateral misconduct is minor or not, based on their analysis of

aggravating and mitigating factors. Commanders shall consult with their servicing SJA in

reaching these determinations and shall make such determinations in writing. SJAs are

required to track all such determinations to include why the collateral misconduct was deemed

non-minor, or why the collateral misconduct was considered minor and subject to the Safe-to-

Report Policy.

10.9.8.1. If the final determination is made that the alleged collateral misconduct is minor,

the individual shall not be disciplined. In this context, the term “discipline” includes an

officially documented command action that has been initiated against the victim in

response to alleged collateral misconduct, including: letters of reprimand, counseling, or

admonishment; written records of individual counseling in official personnel files;

imposition of NJP; preferral of charges; initiation of involuntary administrative separation

proceedings; or administrative demotion. This also includes discipline under

cadet/midshipman regulations at the Military Service Academies.

10.9.8.2. This policy does not preclude the commander from fulfilling certain

administrative requirements, for example: referral to substance abuse screening if the

minor collateral misconduct involves any kind of substance abuse, referral to behavioral

health or medical providers for a fitness for duty determination, or temporarily suspending

102 DAFI51-201 24 JANUARY 2024

access to critical positions such as positions in the personnel reliability program (PRP). It

may be appropriate to temporarily decertify the victim from PRP status or other critical

positions until appropriate evaluations can be conducted.

10.9.9. If the victim is a military member who falls under a separate chain of command, the

convening authority exercising IDA shall consult with the SPCMCA in the victim’s chain of

command and shall document such consultation in writing before making the determination as

to whether the collateral misconduct is minor or not.

DAFI51-201 24 JANUARY 2024 103

Chapter 11

PREFERRAL OF CHARGES (ARTICLE 30, UCMJ; R.C.M. 307)

Section 11A—Miscellaneous Considerations Prior to Preferral of Charges

11.1. Accuser is Senior to the Convening Authority. Consult R.C.M. 504(c)(2) and (3) when

the accuser is senior in rank to the convening authority.

11.2. Effect of Preferral on Statute of Limitations in Lengthy Absence Cases. Effective 14

November 1986, SCMCAs are no longer required to receipt for charges alleging either desertion

or absent without leave in order to toll the statute of limitations. Article 43, UCMJ. Therefore,

where an unauthorized absence began after 14 November 1986, the statute of limitations is

automatically tolled. With the exception of those cases involving desertion or absent without leave

during a time of war, if the unauthorized absence began before or on 14 November 1986, the statute

of limitations was tolled only (1) upon receipt of sworn charges and specifications by an officer

exercising summary court-martial convening authority within the statute of limitations period; or

(2) if the accused was absent from territory in which the United States has authority to apprehend

the accused, in the custody of civil authorities, or in the hands of the enemy.

11.3. Involuntary Extension Beyond ETS.

11.3.1. DAF members may be involuntarily retained beyond their ETS to undergo court-

martial. The involuntary extension may be done in anticipation of the preferral of charges to

include cases still in the investigative stage. The SJA notifies the Air Force Personnel Center’s

(AFPC) Separations Branch in writing through the local Force Support Squadron Career

Development Section. Contact the Force Support Squadron Career Development Section to

ensure the written notice was sent to AFPC and the involuntary extension was completed.

AFPC/JA is available to assist SJAs with involuntary extensions of expiration of term of

service. Note: An “administrative hold” may affect a member’s date of separation and prevent

a permanent change of station or temporary duty, but it does not affect a member’s expiration

of term of service or equate to an involuntary extension. See DAFI 36-2606; DAFI 36-3211,

Military Separations; Webb v. United States, 67 M.J. 765 (A.F.C.C.A. 2009).

11.3.2. Time spent in confinement is considered “lost time” or non-creditable service if the

member is currently serving an original enlistment, reenlistment or a voluntary extension of an

enlistment. Time spent in confinement is not considered lost time if the member is serving on

an involuntary extension of an enlistment. The member’s expiration of term of service date

will be adjusted to reflect either the amount of time the member spent in confinement, or the

amount of time from date of confinement until the member reached their expiration of term of

service in confinement, thereby extending the member’s ETS. This is a result of the fact that

a member signs a contract for a period of time, and the member still owes the government the

amount of time that was lost to confinement. This is an automatic process that cannot be

waived.

11.4. Retirement Holds and Other Actions Taken to Suspend or Cancel Separation

Processing. If a member has applied to retire or has been approved to retire, the retirement may

be suspended or cancelled by contacting the AFPC Retirements Branch with notice that the

member is under investigation. For offenses under OSTC authority, notify the OSTC District

Office of actions to suspend or cancel retirement. If charges do not materialize or a punitive

104 DAFI51-201 24 JANUARY 2024

discharge is not adjudged at trial, the member’s retirement may be reinstated, or they may reapply

for retirement. Note that the common “administrative hold” may stop a member’s permanent

change of station or temporary duty, but it does not prevent a member from retiring on an approved

retirement date or separating on an approved separation date. See DAFI 36-3203, Service

Retirements.

11.5. Accused With Prior Adjudged Punitive Discharge. If an accused has an adjudged but

unexecuted punitive discharge, the SJA for the SPCMCA immediately notifies AF/JAJM

concerning preferral of new charges, with information copies sent to the appropriate GCMCA and

MAJCOM/FLDCOM SJA. This notice enables AF/JAJM to ensure that the execution of the

previous punitive discharge does not occur, providing continuing court-martial jurisdiction over

the accused.

11.6. Recoupment. If an accused received education assistance, special pay, or bonus money and

faces separation or discharge before completion of the agreed-upon period of active duty, notice

of recoupment should be given when court-martial charges are preferred, in accordance with 10

U.S.C. § 2005, Advanced education assistance: active duty agreement; reimbursement

requirements, or 37 U.S.C. § 303a(e), Special pay: general provisions. The member should sign

a statement of understanding regarding recoupment. A template is located on the VMJD and

AF/JAJM Teams page. This notice is included in the ROT as an attachment in accordance with

DAFMAN 51-203.

Section 11B—Preferral of Charges (Article 30, UCMJ; R.C.M. 307)

11.7. Preparing the Charge Sheet for Preferral (DD Form 458, Charge Sheet).

11.7.1. The servicing legal office prepares charges and specifications on the DD Form 458,

Charge Sheet. The Charge Sheet is prepared by inputting the data into DCMS-AMJAMS and

generating the electronic version of the DD Form 458. (Note: If DCMS-AMJAMS is

unavailable, a charge sheet may be accomplished manually but must be updated immediately

in AMJAMS once it becomes available.) Information in DCMS-AMJAMS is reflected as

follows:

11.7.1.1. Blocks 1, 2, 3, and 4. Autofill information in DCMS-AMJAMS from AFPC and

ensure its accuracy. Make pen and ink changes to the charge sheet to reflect any change

in the accused’s grade prior to arraignment by lining through and keeping the information

legible. Government counsel should initial and date any changes. Changes should be

updated in DCMS-AMJAMS.

11.7.1.2. Block 5. Enter the accused’s assigned organization under the “Duty Status” tab.

The address should reflect the base name, state and zip. Ensure the correct pull down is

selected for the applicable MAJCOM or FLDCOM. For the squadron, enter “111th Civil

Engineer Squadron,” not “111th Civil Engineer Squadron Section.” For ARC members

serving on extended active duty, use the organization to which they are attached for active

duty.

11.7.1.3. Block 6. The accused’s current service is the date the current enlistment began

for enlisted personnel or the Total Active Federal Military Service Date (TAFMSD) for

officers. Extensions do not change the current enlistment date. This information can be

found in the accused’s personnel records or in the record review listing prepared by the

DAFI51-201 24 JANUARY 2024 105

servicing personnel office. Double check the Reports on Individual Personnel (RIPs)

against the information auto-filled from AFPC.

11.7.1.4. Block 7. The accused’s current pay per month, to include cents, is entered

automatically based on the listed grade and should be updated if necessary. If the accused’s

grade changes prior to the announcement of sentence, the pay may be corrected with a pen

and ink change and initials. Note: Pay may also require correction if the incorrect grade

is listed, the accused is promoted or demoted, or the accused is brought to trial in a

subsequent calendar year.

11.7.1.5. Blocks 8 and 9. Include any form of restraint, including restraint by civilian

authorities at the request of the Air Force. An example of this is when a member in “absent

without leave” or “deserter” status is apprehended by civilian police and incarcerated or

detained until DAF officials take custody of the accused. This is accomplished by adding

the pretrial restraint folder under the pretrial information data in DCMS-AMJAMS.

11.7.2. Charges and Specifications. Consult R.C.M. 307 and refer to the sample specifications

in the MCM, Part IV, and the Military Judges’ Benchbook, Department of the Army (DA)

Pamphlet 27-9. DCMS-AMJAMS will autofill the charge and specification indicators. When

alleging Article 134, UCMJ, offenses, ensure the specification alleges the terminal element, as

required by R.C.M. 307(c)(3). Review Appendix 12A in the MCM to determine if a lesser

included offense (LIO) is designated as such by the President. 10 U.S.C. § 879(b)(2).

11.7.2.1. Format. Type the words “CHARGE” and “ADDITIONAL CHARGE” in all

capital letters. “Specification” includes upper- and lower-case letters. Where more than

one charge or specification is alleged, charges are numbered with Roman numerals (e.g.,

I, II, III) and specifications with Arabic numerals (e.g., 1, 2, 3). A single charge or

specification is not numbered.

11.7.2.2. Additional Charges. When additional charges are preferred, add an “Additional

Charges Preferred” Folder in DCMS-AMJAMS. If more charges are preferred after

preferral of additional charges, add another “Additional Charges Preferred” folder in

DCMS-AMJAMS. Manually edit the charge sheet to add the correct label with the written

number for the additional charges (e.g., SECOND ADDITIONAL CHARGES, THIRD

ADDITIONAL CHARGES).

11.7.2.3. Identification of the Accused. In the specifications, identify the accused by

present grade, followed by the grade on the date of the alleged offense, if different. Use

all capital letters. List known aliases. List the member’s armed force. Do not include the

MAJCOM or FLDCOM. For example. “In that TECHNICAL SERGEANT ADAM P.

SMITH, United States Air Force, alias CAPTAIN JACK P. SMITH, United States Air

Force, did,...” Note: Do not include the accused’s unit or location of assignment unless

directly pertinent to the offense charged. Change the accused’s rank from the current rank

to the rank at the time of the allegation only if pertinent to the offense charged. R.C.M.

307(c)(3), Discussion.

11.7.2.4. Identification of Victim. If the alleged victim is identified in the specification,

do not put the victim’s name or rank in all capital letters.

106 DAFI51-201 24 JANUARY 2024

11.7.2.4.1. Victims of Sex-Related Offenses. Do not substitute initials for the name

of sex offense victims. Initials will be substituted in an expurgated Statement of Trial

Results (STR) and EoJ, if applicable.

11.7.2.4.2. Minors. Do not substitute initials for the name of children or minors listed

in specifications, regardless of the nature of the offense charged. Initials will be

substituted in an expurgated STR and EoJ, if applicable.

11.7.2.5. Pleading Check Cases. Where the offense involves use of a worthless check

rather than a forged check, the contents need not be pled verbatim. See the Military Judges’

Benchbook, DA Pamphlet 27-9, and consult with AF/JAJG.

11.7.2.6. Pleading Child Pornography Cases. Exercise care in drafting specifications in a

case involving multiple images of child sex abuse. See United States v. Piolunek, 72 M.J.

830 (A.F.C.C.A. 2013), aff'd, 74 M.J. 107 (C.A.A.F. 2015). The best method of pleading

a child pornography case will depend on the facts unique to that case. Offenses involving

child sex abuse and child sex abuse material are covered offenses, so charges and

specifications must be approved by an STC.

11.7.2.7. Pleading Article 93a, UCMJ, Cases. SecAF has promulgated required

definitions for the offenses chargeable under Article 93a, UCMJ, in AFI 36-2909, Air

Force Professional Relationships and Conduct. Counsel for the government must

carefully review these definitions prior to drafting charges and specifications for such

offenses to ensure the alleged misconduct fits under these definitions.

11.7.3. Preferral and Deferral.

11.7.3.1. Any person subject to the UCMJ may prefer charges. For offenses under OSTC

authority, the District Chief STC will ordinarily be the preferral authority. The completed

DD Form 458 should be routed to the OSTC District Office for STC signature as the

accuser.

11.7.3.2. For all offenses, the immediate commander of the accused will cause the accused

to be informed of the charges and the name of the accuser. R.C.M. 308. (T-0)

11.7.3.3. If OSTC declines to prefer charges for an offense over which it has exercised

authority, the offense is deferred back to command. Deferred offenses are forwarded,

through the installation legal office, to command for further disposition. Deferred covered

offenses may not be referred by a convening authority to trial by general or special court-

martial.

11.8. Signing the Charge Sheet. The DD Form 458 may be signed with pen and ink or

electronically.

11.9. Forwarding of Charges for offenses under Command Authority (R.C.M. 401). The

commander forwards the charges to the convening authority by attaching an indorsement to the

charge sheet. Attach a personal data sheet on the accused and a copy of the report of investigation

or other evidence supporting the charges. The servicing legal office should redact Privacy Act

information not relevant to the charges from documents before forwarding them to the convening

authority. The commander signs and dates the indorsement when preferring charges or when

forwarding charges preferred by another. The indorsement must give each attachment a

descriptive name (e.g., “Report of Investigation dated 1 January 2019” or “AF 1168 of Amn

DAFI51-201 24 JANUARY 2024 107

Snuffy,” not “Evidence”). Address the indorsement to the officer exercising SPCMCA over the

accused. If additional charges are later added, forward them with a new indorsement.

11.10. Receipt of Charges (R.C.M. 404). For all offenses, a judge advocate may receipt for

charges on behalf of the SPCMCA if the convening authority delegates that authority in writing.

If delegated, receive the charges “FOR THE COMMANDER.”

11.10.1. For all offenses, the SJA to the SPCMCA ensures that DAF-CJIC, OSI, and SF/S2I

are sent copies of the charge sheet within three duty days of the accused being informed of the

charges.

11.10.2. After recording receipt of charges under OSTC authority, the charge sheet shall be

returned to the OSTC District Office.

108 DAFI51-201 24 JANUARY 2024

Chapter 12

ARTICLE 32, UCMJ, PRELIMINARY HEARINGS (R.C.M. 405)

12.1. Applicable Rules. Conduct preliminary hearings in accordance with the guidance and

procedures prescribed in R.C.M. 405, this chapter, and the Preliminary Hearing Officer’s (PHO)

Guide. In the recommendation required by R.C.M. 405(m)(2)(J), the PHO must include a

discussion of the referral standard under R.C.M. 601(d)(2) and relevant factors in Appendix 2.1 to

the MCM (The Secretary of Defense’s Disposition Guidance). (T-0)

12.2. Preliminary Hearing Personnel.

12.2.1. PHO.

12.2.1.1. The convening authority directing a preliminary hearing will appoint an impartial

judge advocate as the PHO. (T-0) For offenses under OSTC authority, an STC will

determine whether a preliminary hearing is required and will contact the servicing legal

office to request the convening authority appoint a PHO.

12.2.1.2. The accuser may not serve as the PHO.

12.2.1.3. The PHO will be equal to or senior in grade to military counsel detailed to

represent the accused and the government at the preliminary hearing unless the SJA

expressly determines this to be impracticable. (T-0)

12.2.1.4. The PHO will be certified under Article 27(b), UCMJ. If precluded by military

necessity or other compelling circumstances, the PHO may be a judge advocate who is not

certified under Article 27(b), UCMJ.

12.2.1.5. The PHO may be a military judge. Requests for a military judge to serve as a

PHO are coordinated with AF/JAT. No judge who has served on a pre-referral proceeding

pursuant to Article 30a, UCMJ, may be detailed to an Article 32, UCMJ, preliminary

hearing in the same case.

12.2.1.6. An ARC judge advocate may be detailed to serve as a PHO while on active duty

or performing IDT. Article 136(b), UCMJ, authorizes AFR judge advocates to administer

oaths while on active duty or performing inactive duty training. ANG judge advocates

must be on Title 10 orders. (T-0) Note: Recommend all installations verify the

certification status of a AFR or ANG judge advocate before appointment. Certification

status of all judge advocates may be verified via the AF/JAX Knowledge Management

page utilizing the annually published JAG Order 1 and JAG Order 2.

12.2.2. Counsel.

12.2.2.1. Counsel for the Government. A judge advocate, who is not the accuser, serves

as counsel to represent the United States. The judge advocate serving as the counsel for

the government need not be certified under Article 27(b), UCMJ. For offenses under

OSTC authority, an STC, in coordination with the servicing SJA, will detail counsel for

the government. The determination by an STC to prefer or refer charges does not act to

disqualify that STC as counsel for the government.

12.2.2.2. Counsel for the Accused. The accused has the right to be represented by military

defense counsel certified under Article 27(b), UCMJ, and sworn under Article 42(a),

DAFI51-201 24 JANUARY 2024 109

UCMJ. The accused may also be represented by civilian defense counsel at no expense to

the government. Article 38, UCMJ. Civilian defense counsel must take an oath to perform

their duties faithfully when representing an accused. The PHO administers this oath. Upon

request of the accused, the accused is entitled to a reasonable time to obtain civilian counsel

and have civilian counsel available for the preliminary hearing. However, the preliminary

hearing shall not be unduly delayed for the accused to obtain and have present civilian

counsel. (T-0) See R.C.M. 405(e)(3). The accused may represent him or herself, but this

right is not absolute. See United States v. Bramel, 29 M.J. 958 (A.C.M.R. 1990), aff’d, 32

M.J. 3 (C.M.A. 1990).

12.2.3. Court Reporter. A court reporter is not normally detailed to a preliminary hearing. A

court reporter may be detailed by AF/JAT. See DAFMAN 51-203.

12.2.4. Interpreter. An interpreter may be requested and detailed by the appropriate convening

authority.

12.3. Pre-Hearing Matters.

12.3.1. Appointment of PHO (R.C.M. 405(c)). A convening authority directs an Article 32,

UCMJ, preliminary hearing by appointing the PHO in writing. If an STC requests a

preliminary hearing, the convening authority will appoint a PHO who will conduct a

preliminary hearing. A template is available on the VMJD and AF/JAJM Teams page.

12.3.2. Delays and Resulting Speedy Trial Issues. The convening authority may approve a

delay of the Article 32, UCMJ, preliminary hearing. The period of time of such approved

delays are excluded when determining whether the period in R.C.M. 707(a) has run. The

convening authority may delegate the authority to grant a delay to a PHO. The convening

authority may also grant the PHO the authority to exclude time under R.C.M. 707(c). The

PHO has no independent authority to exclude time under R.C.M. 707(c).

12.3.3. Disclosures Prior to Preliminary Hearing.

12.3.3.1. R.C.M. 405(d) Disclosures. As soon as practicable, but no later than five days

after the convening authority directs the preliminary hearing, counsel for the government

must provide the defense copies of the matters listed in R.C.M. 405(d). (T-0) If provision

of copies is impracticable, counsel for the government must permit the defense to inspect

the matters listed in R.C.M. 405(d). (T-0)

12.3.3.2. Should government counsel fail to comply with the provisions of R.C.M. 405(d),

the PHO shall note the issue in the preliminary hearing report. Further, if the convening

authority has given the PHO the authority to grant delays, the PHO may grant a reasonable

delay to allow government counsel to comply with the above disclosure requirements.

12.4. Victims’ Rights Regarding the Preliminary Hearing. See R.C.M. 405(h), DAFI 51-207,

and the PHO Guide on the VMJD and AF/JAJM Teams page for further guidance on specific

victims’ rights.

12.5. VC Access to Hearing. VCs are entitled to attend all open sessions (i.e., open to the public)

and all closed sessions (i.e., not open to the public) involving their clients. (T-0)

12.6. Production of Witnesses. Follow the rules and procedures in R.C.M. 405(i) for the

production of witnesses. See DAFI 51-207 for additional guidance.

110 DAFI51-201 24 JANUARY 2024

12.7. Production of Evidence. Follow the rules and procedures in R.C.M. 405(i) for the

production of evidence.

12.8. Recording the Preliminary Hearing.

12.8.1. Video and Audio Recording of the Preliminary Hearing. Government counsel will

ensure the preliminary hearing is recorded by a suitable government recording device.

Government counsel will also use a secondary suitable recording device to create a back-up

recording. (T-0)

12.8.2. Transcribing the Preliminary Hearing. The SJA may authorize the completion of a

verbatim transcript following the hearing, though a verbatim transcript is not required.

12.8.3. Providing Preliminary Hearing Recording to the Victim(s). Upon written request from

a victim or VC of a victim named in one of the specifications, government counsel shall

provide the victim or VC with access to, or a copy of, the recording. (T-0) Do not provide

any portions of the recording ordered sealed by the PHO to the victim or VC. (T-0) Trial

counsel is not normally required to redact the recording except as indicated below. However,

to maintain compliance with the Privacy Act, the government should release the recording in

the following manner:

12.8.3.1. If the victim is represented by a VC, the unredacted recording should be provided

to the victim’s VC as an official use disclosure under the Privacy Act. See DoD 5400.11-

R, paragraph C4.2. The VC must maintain the recording in accordance with the Privacy

Act. (T-0)

12.8.3.2. If the victim is represented by a civilian VC, the recording should be provided to

the VC in accordance with paragraph 8.5.4. See DoD 5400.11-R, paragraph C4.2. The

civilian VC must maintain the recording in accordance with the Privacy Act. (T-0)

12.8.3.3. An unredacted recording may be provided directly to the victim only if the victim

is not represented by counsel. The recording is provided to an unrepresented victim as a

routine use disclosure under the Privacy Act SORN for Air Force courts-martial records.

See SORN, DoD 0006.

12.8.3.4. The Government may, in its discretion, provide a transcript to the victim or VC

instead of a recording. See R.C.M. 405(k)(5). Personally identifiable information should

be redacted from transcripts provided directly to victims.

12.8.4. Providing Preliminary Hearing Recording to the Accused. Government counsel will

ensure the accused and counsel receives a copy of the preliminary hearing report, which

includes a copy of the recording. (T-0) The accused or counsel will not receive any portions

of the recording ordered sealed by the PHO. (T-0)

12.9. Conducting the Preliminary Hearing. Conduct the preliminary hearing in accordance

with R.C.M. 405(k) and the PHO Guide on the VMJD and AF/JAJM Teams page.

12.9.1. Public Access. Ordinarily, preliminary hearings are open to the public, including

access by news media, whenever possible. See R.C.M. 405 and the PHO Guide on the VMJD

and AF/JAJM Teams page for further guidance.

12.9.2. Potential Witnesses. Although potential witnesses are normally excluded from

watching the proceedings, the PHO has the authority to permit some potential witnesses (e.g.,

DAFI51-201 24 JANUARY 2024 111

experts) to be present if the PHO considers their presence helpful to the proceedings. Victims

have an Article 6b, UCMJ, right to be present at the preliminary hearing regardless of whether

they testify.

12.9.3. Uncharged Offenses.

12.9.3.1. Authority to Examine Other Offenses. The PHO may consider uncharged

offenses as outlined in R.C.M. 405(f)(2).

12.9.3.2. Uncharged Covered Offenses. If the evidence indicates the accused committed

any uncharged covered offense and the preliminary hearing was not requested by an STC,

the PHO shall provide immediate notice to the servicing legal office, the convening

authority, and the servicing OSTC District Office. A copy of the preliminary report shall

be provided to the OSTC District Office. See R.C.M. 405(f)(3).

12.9.3.3. Later Preferral of Uncharged Offenses Examined at Preliminary Hearing. If an

uncharged offense examined by the PHO in the preliminary hearing is later preferred, the

GCMCA or STC, as applicable, may refer the offense to court-martial without convening

an additional preliminary hearing, provided the SJA’s Article 34, UCMJ pretrial advice or

STC’s written determination, as applicable, addresses the offense. See R.C.M. 406 and

601(d)(2).

12.9.4. R.C.M. 601(d)(2) and the Secretary of Defense Disposition Guidance at Appendix 2.1

of the Manual for Courts-Martial provide disposition guidance. In making a disposition

recommendation, the PHO must address the R.C.M. 601(d)(2) referral standard and all relevant

factors in Appendix 2.1.

12.10. Supplementary Information. No later than 24 hours after the preliminary hearing closes,

counsel for the government, defense counsel, and any victim may submit supplemental matters in

accordance with R.C.M. 405(l). (T-0) The parties and the victim(s) must follow the procedures

in R.C.M. 405(l) when submitting supplemental information to the PHO. (T-0) The PHO must

follow the procedures in R.C.M. 405(l) for the handling, sealing and examination of supplementary

information. (T-0)

12.11. Assembly of the PHO Report. The PHO shall assemble the preliminary hearing report in

accordance with R.C.M. 405(m). (T-0) In addition to those items listed in the rule, the preliminary

hearing report will contain: DD Form 457, Preliminary Hearing Officer Report, and any

attachments; DD Form 458, Charge Sheet, and any attachments; and the PHO appointment letter.

Additionally, the PHO must include a copy of the preliminary hearing recording as an attachment

to the report. (T-0)

12.12. Distributing the PHO Report. The PHO will deliver the PHO Report to the appropriate

SJA within eight calendar days after the closure of the preliminary hearing or timely receipt of

supplementary information under R.C.M. 405(l), whichever is later. (T-3) For hearings requested

by a STC, the PHO will also deliver the PHO Report to the servicing OSTC District Office. (T-0)

The SJA, in turn, delivers the report to the convening authority who directed the preliminary

hearing. The convening authority must cause the PHO Report and a copy of the recording to be

served on the accused and defense counsel. (T-0) Government counsel must obtain a receipt from

the accused upon service of the PHO Report and recording. VC requests for copies of the PHO

Report shall be processed as a For Official Use disclosure under the Privacy Act. (T-0) See

Section 8B; DoD 5400.11-R. The VC must maintain the recording in accordance with the Privacy

112 DAFI51-201 24 JANUARY 2024

Act. Likewise, civilian victim’s counsel requests should be processed in accordance with

paragraph 8.5.4.

12.13. Objecting to the PHO Report. The parties must submit any objections to the PHO Report

in accordance with R.C.M. 405(m)(5) within five calendar days of receipt. (T-0) The day the

accused receives the report is not counted in calculating the five-day window in which the accused

may raise objections. The convening authority may refer the charge(s) or take other action within

this five-day period. R.C.M. 405(m)(5).

12.14. Forwarding the PHO Report to a Superior Convening Authority.

12.14.1. For offenses under command authority, if the convening authority who directed the

preliminary hearing decides to forward the PHO report to a superior convening authority for

disposition, the convening authority who directed the hearing must prepare a forwarding letter

providing a recommendation for disposition of the charge(s). The forwarding letter will

include the following attachments: the charge sheet, the commander’s indorsement to the

charge sheet, and the PHO Report, with the attachments appended to the report. This letter is

forwarded to the superior convening authority through the superior convening authority’s SJA.

12.14.2. If the subordinate convening authority recommends disposition by court-martial, then

the subordinate convening authority’s SJA should provide a list of court member nominees

and member data to the superior convening authority in the event the superior convening

authority decides to refer the case.

12.15. Reviewing Sealed Materials in or Attached to a PHO Report. Refer to R.C.M. 1113

for authority, limitations, and procedures relevant to review of sealed materials in or attached to a

PHO Report.

DAFI51-201 24 JANUARY 2024 113

Chapter 13

FORWARDING AND DISPOSITION OF CHARGES

Section 13A—Pretrial Advice, Forwarding, and Review of Offenses Under Command

Authority

13.1. Pretrial Advice in General Courts-Martial. The convening authority’s SJA must prepare

written pretrial advice for GCMs in accordance with R.C.M. 406. (T-0) A person other than the

SJA may prepare the pretrial advice, but the SJA is, unless disqualified, responsible for and must

personally sign the pretrial advice. The DSJA or other assistant staff judge advocate performing

the duties of the SJA, in the absence of, or because of the disqualification of the SJA, signs “Acting

as the Staff Judge Advocate.”

13.1.1. Required Contents. The required contents for pretrial advice are prescribed in R.C.M.

406(a). A finding that there is not probable cause to believe the accused committed the offense

charged in a specification prohibits that convening authority from referring that specification.

SJAs should make such a finding only when advising the convening authority that the

specification cannot be referred to trial. See Article 34(a)(1)(B), UCMJ, and United States v.

Murray, 25 M.J. 445 (C.M.A. 1988). Additionally, SJAs must state that they have considered

whether the admissible evidence will probably be sufficient to obtain and sustain a conviction.

See R.C.M. 601(d)(2).

13.1.2. Format and Length. Pretrial advice need not contain any underlying analysis or

rationale for the conclusions contained in it. In addition, lengthy summaries of evidence,

detailed explanations of elements of offenses, and extensive discussions of possible defenses

are not required. A sample format for pretrial advice is available on the VMJD and AF/JAJM

Teams page.

13.1.3. Distribution. The government shall provide a copy of the pretrial advice to the defense

for service upon the accused if charges are referred to a GCM. (T-0)

13.2. Pretrial Advice in Special Courts-Martial (Article 34, UCMJ; R.C.M. 406). Before

referral of charges to a SPCM, to include a SPCM by a military judge alone, the convening

authority shall consult a judge advocate on relevant legal issues. (T-0) Pretrial advice by a judge

advocate in a SPCM does not need to be in writing and does not need to come directly from the

SJA. However, any pretrial advice reduced to writing must be provided to defense counsel if

charges are referred.

13.3. Pretrial Advice in Summary Courts-Martial. Pretrial advice is optional for SCMs.

13.4. Disposition Guidance. In addition to the pretrial advice and the referral standard under

R.C.M. 601(d)(2), the Secretary of Defense Disposition Guidance at Appendix 2.1 of the Manual

for Courts-Martial provides guidance referral authorities should consider before referring charges.

The Disposition Guidance must be discussed either in the pretrial advice or directly with the

convening authority.

13.5. Forwarding of Pretrial Advice in General Courts-Martial. The charge sheet, the

commander’s indorsement, forwarding letters or other indorsements, and, if applicable, the PHO’s

appointment letter with attachments (including the Article 32, UCMJ, preliminary hearing report,

receipts of report, and any objections) should be forwarded with the pretrial advice to the GCMCA.

114  DAFI51-201  24 JANUARY 2024 
If the preliminary hearing is waived, forward the accused’s waiver along with the documentary 
evidence that the SJA relied upon when drafting the pretrial advice, such as investigative reports, 
witness statements, and other documents containing relevant information.  If the GCMCA must 
detail members to a court-martial to try the forwarded case, appropriate documentation should be 
forwarded for court-member selection.  See Section 14A. 
13.6.  GCMCA  Decision  Not  to  Refer  Certain  Sex  Offense  Charges  Under  Command 
Authority. 
13.6.1.  In cases where the GCMCA does not refer any applicable sex-related specifications 
for a particular victim, the GCMCA forwards the decision to a superior convening authority 
for review as described below.  (T-0)  If at least one covered specification is referred as to each 
victim, then the review is not required.  This requirement is victim-specific.  See paragraph 
10.1 for the list of covered sex offenses.  See also FY 2014 NDAA, Section 1744(d). 
13.6.2.  Superior GCMCA Review of Non-Referral Decision.  In any case where the SJA’s 
pretrial advice recommends against referring an applicable sex-related charge or specification 
to  a  court-martial  and  the  GCMCA  concurs,  then  the  GCMCA  forwards  the  non-referral 
decision and the corresponding case file, as defined at paragraph 13.6.4.1, to the next superior 
GCMCA for review.  Template notifications and responses are on the VMJD and AF/JAJM 
Teams page. 
13.6.3.  SecAF Review of Non-Referral Decision.  In any case where the  GCMCA SJA’s 
pretrial advice recommends referring an applicable sex-related charge or specification to a 
court-martial and the GCMCA non-concurs, such that the effect of that non-concurrence is that 
no covered offense as to that victim would be referred to trial, then the GCMCA forwards the 
non-referral decision and the corresponding case file, as defined in paragraph 13.6.4.1, to 
SecAF for review.  The case file is transmitted to AF/JAJI through functional channels.  A 
template for SecAF’s response is located on the VMJD and AF/JAJM Teams page. 
13.6.4.  Request for SecAF Review of Non-Referral Decision.  In addition to the circumstances 
mandating SecAF review described in paragraph 13.6.3, the Chief, AF/JAJG, may request 
SecAF  review  in  any  case  where  the  GCMCA  decides  not  to  refer  the  charge  and  any 
specification described in paragraph 10.1.1.1. 
13.6.4.1.  Case  File  Required  Contents.    The  case  file  that  is  forwarded  to  SecAF  or 
GCMCA under paragraph 13.6.3 shall include: (T-0) 
13.6.4.1.1.  All charges and specifications preferred; 
13.6.4.1.2.  All reports of investigations, including but not limited to the Article 32, 
UCMJ, PHO report, the OSI report of investigation, and any report of investigation by 
a military or civilian criminal investigative organization; 
13.6.4.1.3.  A  certification  that  the  victim  of  any  alleged  offense  described  in 
paragraph  10.1.1.1  was  notified  of  the  opportunity  to  express  a  preference  as  to 
disposition of the alleged offense for consideration by the convening authority.  See 
paragraph 10.1.1.1. A template is located on the VMJD and AF/JAJM Teams page. 
13.6.4.1.4.  All statements from the victim provided to OSI and to the victim’s chain 
of command relating to any alleged offense described in paragraph 10.1.1.1.; 

DAFI51-201 24 JANUARY 2024 115

13.6.4.1.5. Any statement provided by the victim to the convening authority

expressing the victim’s view on the preferred disposition of the pertinent alleged

offense(s);

13.6.4.1.6. The SJA’s pretrial advice pursuant to Article 34, UCMJ;

13.6.4.1.7. A written statement from the GCMCA explaining the reasons for the

decision not to refer charges or specifications for trial by court-martial; and

13.6.4.1.8. A certification that the victim of any alleged offense described in

paragraph 10.1.1.1 was informed of the GCMCA’s decision to forward the case for

review under paragraph 13.6.3.

13.6.4.2. Additional Matters. Additional matters may be included in the case file.

13.6.4.3. Applicable templates for the contents of the case file can be found at the VMJD

and AF/JAJM Teams page.

13.6.5. Victim Notification of Results of Superior Review. The SJA ensures the victim of any

offense described in paragraph 10.1.1.1 is notified of the forwarding of the case for superior

GCMCA or SecAF review. The victim must be notified of the results of the review conducted

by superior GCMCA or SecAF. Templates for these documents can be found on the VMJD

and AF/JAJM Teams page.

Section 13B—STC Determination and Disposition of Offenses Under OSTC Authority

(R.C.M. 306A, 401A, 406)

13.7. Disposition of Offenses Under OSTC Authority. Only an STC may dispose of offenses

under OSTC authority. These include covered, known, and related offenses, as outlined in

Chapter 4. See also Article 1(17), UCMJ, and R.C.M. 303A. Within OSTC, disposition authority

is offense-specific and withheld to certain duty positions. Installation legal offices will work with

the assigned STC and servicing OSTC District Office to coordinate disposition of offenses under

OSTC authority. For each preferred offense under OSTC authority, an STC will either refer,

dismiss, or defer the offense to command. Deferred offenses will be promptly returned to

command via the installation legal office. Upon request from command, an STC may reconsider

a disposition decision at any time.

13.7.1. Referral. Preferred offenses under OSTC authority may be referred by an STC to a

general or special court-martial. STC must consider the referral standard in R.C.M. 601(d)

prior to referring offenses to trial by court-martial.

13.7.2. Dismissal. Preferred offenses under OSTC authority may be dismissed by an STC. A

dismissal may be accompanied by a deferral.

13.7.3. Deferral. Preferred offenses under OSTC authority that will not be referred may be

deferred by an STC. After referral, an offense must be withdrawn before it can be deferred.

Deferred offenses will be forwarded, through the installation legal office, to command for

further disposition. A convening authority may not refer a charge alleging a deferred covered

offense to a SPCM or GCM but may request STC reconsideration (such as when a deferred

offense results in an NJP turndown).

116 DAFI51-201 24 JANUARY 2024

13.8. STC Written Determination. For offenses under OSTC authority, referral to a SPCM or

GCM may be made only by an STC. This decision must be accompanied by the STC’s written

determination.

13.8.1. Required Contents. The required contents for the STC written determination are

prescribed in R.C.M. 406(b). In addition to these requirements, in the absence of a standing

panel, the written determination will direct the convening authority to convene either a general

or special court-martial.

13.8.2. Distribution. A copy of the STC written determination shall be provided to the defense

if charges are referred to trial by general or special court-martial.

Section 13C—Dismissal of Charges

13.9. Annotating the Charge Sheet for Charges Dismissed Prior to Referral.

13.9.1. If the referral authority determines some or all of the charges or specifications will be

dismissed instead of referred to court-martial, the dismissed charges or specifications should

be “Z-ed” out on the charge sheet and annotated with the dismissal date and the initials of the

person who lined through the charges (e.g., “Dismissed with(out) prejudice on 15 Sep 18,

[initials]”).

13.9.2. For offenses under command authority, this may be accomplished by the convening

authority, a judge advocate authorized to sign referrals on the convening authority’s behalf, or

the trial counsel at the direction of the convening authority. Such delegation does not have to

be in writing.

13.9.3. For offenses under OSTC authority, dismissal must be accomplished by an STC or

trial counsel at the direction of an STC.

13.9.4. Following dismissal, the remaining charges, if any, are renumbered as necessary.

Note: Charges or specifications dismissed by a military judge are not ordinarily lined out on

the charge sheet. See the VMJD and AF/JAJM Teams page for guidance on how to complete

post-trial paperwork to reflect such dismissals.

Section 13D—Referral of Charges (R.C.M. 601)

13.10. Referral of Charges to Court-Martial.

13.10.1. For offenses under command authority, the convening authority must sign either the

referral section on the DD Form 458, Charge Sheet, or another document reflecting the

intention to refer charges to trial by court-martial. Such other documents may include

concurrence with an SJA’s pretrial advice and recommendation to refer the case to trial by a

specified court-martial.

13.10.2. For offenses under OSTC Authority, an STC must sign the referral section on the DD

Form 458, Charge Sheet. A court-martial must be convened prior to STC signature in the

referral section.

13.10.3. Completing the Referral Block on Charge Sheet. The designation of the convening

authority on the charge sheet should be the same as on the convening order. The date in block

14c. should be the date the referral authority referred the charges. The next section of the

DAFI51-201 24 JANUARY 2024 117

referral block details the type of court-martial and the special order convening the court, and

should include the date on the convening order.

13.10.3.1. For offenses under command authority, if the convening authority personally

signs the referral, the language of “By... Command or Order … of...,” should be stricken

and the convening authority’s signature block should be included. If the convening

authority delegated authority to sign the referral block on the charge sheet to a judge

advocate, the judge advocate signs the referral “FOR THE COMMANDER.”

13.10.3.2. For offenses under OSTC authority, the designated STC with referral authority

will sign the referral. Installation legal offices will work with the servicing OSTC District

Office to coordinate referral of offenses under OSTC authority.

13.10.3.3. Special instructions should be included in the referral block when appropriate.

See R.C.M. 601(e). For example, when additional charges are referred, the following

language should be included: “To be tried with the original (charge) (charges), dated [date

of preferral of original charge(s)].” When a case is referred as a capital case, the following

language should be included: “To be tried as a capital case.”

13.10.3.4. When a case is referred to a SPCM by military judge alone under Article

16(c)(2)(A), UCMJ, the following language should be included: “To be tried by a special

court-martial consisting of a military judge alone pursuant to Article 16(c)(2)(A), UCMJ.”

13.10.3.5. The SJA to the SPCMCA ensures the accused’s records are examined to

ascertain the accused’s nationality no later than twenty-four hours after referral, even if a

claim of foreign nationality has not been made. See Section 34C.

13.10.3.6. A copy of the referred charge sheet must be served upon the accused in

accordance with R.C.M. 602.

13.10.3.7. The SJA to the SPCMCA ensures that DAF-CJIC, OSI, and SF/S2I are sent

copies of referred charge sheets within 24 hours of service on the accused.

13.10.4. Disqualification of Convening Authority (R.C.M. 601(c)).

13.10.4.1. Convening authorities may not refer charges to a GCM or SPCM if they are

also the accuser of those charges. (T-0) Further, a convening authority with “an interest

other than an official interest in the prosecution of the accused” is disqualified from

referring that case to court-martial. (T-0) Article 1(9), UCMJ.

13.10.4.2. If the SPCMCA is disqualified, the case is forwarded to the GCMCA. If the

GCMCA is disqualified, the GCMCA’s superior convening authority determines who shall

act as the convening authority. If there is not an appropriate GCMCA within the command,

the MAJCOM or FLDCOM SJA requests assistance from AF/JAJM in the designation of

a commander to serve as the GCMCA.

13.10.4.3. STC are not convening authorities and are not disqualified by reason of

preferral. STC may refer charges they prefer.

13.10.5. Jurisdiction for Certain Sex Offenses (R.C.M. 201(f)(1)(D)) . Only a GCM has

jurisdiction over the following offenses if committed on or after 24 June 2014:

13.10.5.1. Rape or sexual assault, in violation of Article 120(a) and (b), UCMJ;

118 DAFI51-201 24 JANUARY 2024

13.10.5.2. Rape of a child or sexual assault of a child, in violation of Art 120b(a) and (b),

UCMJ; and

13.10.5.3. Attempts to commit the above offenses, in violation of Article 80, UCMJ.

13.11. “Re-referral” of Charges. After charges are referred to trial by court-martial, it may

become necessary to withdraw and re-refer them on the same charge sheet. The following

procedures are used for re-referring charges in rehearings and other cases, including withdrawn

charges:

13.11.1. Withdrawal of Previous Charges. Prior to “re-referral,” the SJA, STC, or trial

counsel, as directed, annotate the withdrawal on the DD Form 458. See paragraph 16.2.4.

13.11.2. New Referral. After withdrawal of the previous charges, the new referral is

documented in the same format as that on page two of the charge sheet, following the rules in

paragraph 13.8.1. The new referral is accomplished by using the referral section from page

two of a blank DD Form 458, to include service on the accused. When completed, the new

referral section should be cut out and attached to the charge sheet by stapling it immediately

above the original referral section. A prior referral should never be removed or destroyed. If

a third or subsequent referral is necessary, it should be attached in the same way as the second.

Any new referral must include service on the accused.

13.11.3. Special Instructions for Rehearings. When a case is referred for a rehearing (whether

in full, for a limited purpose, or for a new trial), the appropriate instructions should be

incorporated in the referral section. R.C.M. 810. For example, in a rehearing on sentence

only, the following special instruction should be included: “For a rehearing on sentence only,

as ordered by General Court-Martial Order No. 17, Headquarters, 18 AF, dated 18 January

2019, as to the charge(s) and specification(s) affirmed by the AFCCA, dated 10 February

2019,” or a similar instruction. Consult AF/JAJM for assistance.

Section 13E—Reporting Referral of Additional Charges in Cases Pending Appellate or Post-

Trial Review

13.12. Notification of Referral of Later Charges in Pending Cases.

13.12.1. Notification to AF/JAJM. If charges are referred to trial against a person who is the

accused in a case under review under Articles 66, 67, 67a, or 69, UCMJ, the legal office for

the convening authority must notify AF/JAJM immediately. The case currently under review

is identified by the accused’s full name, rank, and SSN/DoD ID number and the case’s Army

Court-Martial number (ACM), if available. The following information should also be

provided: the nature of the new charges, the date referred, type of court-martial, anticipated

date of trial, a brief statement of facts of the case, and any other information that might affect

disposition of the current review concerning the case.

13.12.2. Follow-Up Messages. Follow-up messages should be sent to AF/JAJM to advise

when trial is completed (including the result), if the charges are withdrawn or dismissed, or if

there are other significant developments which may affect disposition of the case currently

under review.

DAFI51-201 24 JANUARY 2024 119

Section 13F—Referral to Special Court-Martial by Military Judge Alone (Article 16(c)(2)(A),

UCMJ)

13.13. General Provision. A special court-martial by military judge alone is a type of special

court-martial that has a statutory sentence cap of six months of confinement and no ability to

adjudge a punitive discharge. In this limited special court-martial, a military judge is the finder of

fact and sentencing entity; the accused may not request trial by members. No specification may

be tried by a special court-martial consisting of a military judge alone if, before arraignment, the

accused objects on the grounds provided in R.C.M. 201(f)(2)(E)(i)(I-II) and the military judge

determines that either of the grounds are met. The referral authority may only refer a case to this

forum if all of the charged offenses occurred on or after 1 January 2019.

13.14. Required Language on Charge Sheet. See paragraph 13.10.3.4.

13.15. Notice to Accused. Inclusion of the special language in paragraph 13.10.3.4 serves as

notice to the accused that the charges are being referred to a limited special court-martial.

13.16. Objection by Accused for Offenses Carrying More Than Two Years Maximum

Confinement. If the specifications preferred include violations of offenses for which the

maximum authorized confinement at a GCM exceeds two years, excluding wrongful use or

possession of a controlled substance under Article 112a(b), UCMJ, the accused may object to the

forum choice at any point prior to arraignment. R.C.M. 201(f)(2)(E)(I). Though the accused may

raise an objection at any time prior to arraignment in any manner, if the objection is raised at the

arraignment proceedings, the objection must be articulated on the record.

13.17. Objection by Accused for Offenses Requiring Sex Offender Notification. If the

specification preferred would result in notification as a sex offender, the accused may object at

any point prior to arraignment. R.C.M. 201(f)(2)(E)(II). Though the accused may raise an

objection at any time prior to arraignment in any manner, if the objection is raised at the

arraignment proceedings, the objection must be articulated on the record.

Section 13G—Transferring Charges

13.18. Transferring Charges to Parallel Convening Authority (R.C.M. 601(g)). If it is

impractical for the original convening authority to continue exercising authority over the charges,

the convening authority may cause the charges, even if already referred, to be transmitted to a

parallel convening authority (defined as a convening authority of the same level, such as transfer

from one SPCMCA to another SPCMCA). This transmittal must be in writing. The original

convening authority’s SJA coordinates with AF/JAJM and the gaining convening authority’s SJA

to transfer the case. For offenses under OSTC authority, the transfer of charges must be

coordinated with the OSTC District Office.

120 DAFI51-201 24 JANUARY 2024

Chapter 14

CONVENING COURTS-MARTIAL

Section 14A—Detailing Members (R.C.M. 501, 502, 503, 911, 912A; Articles 25, 29, UCMJ).

14.1. General Provision. Convening authorities detail the best qualified persons for courts-

martial in accordance with the criteria in Article 25(e)(2), UCMJ, and R.C.M. 502(a)(1).

Convening authorities may detail members under their command or others made available by the

appropriate commander. When detailing court members, convening authorities may consider

nominees submitted by subordinate commanders. All members of the DAF are treated as being in

the same armed force for purposes of detailing court members.

14.1.1. Advice to the Convening Authority. The SJA must guard against unlawful command

influence in the court member selection process, which includes ensuring no involvement by

trial counsel or assistant trial counsel in the identification of prospective court members. When

advising the convening authority on court member detailing, the SJA reiterates the Article

25(e)(2), UCMJ, criteria. The SJA may prepare a list of proposed nominees. If such a list is

used, the SJA also informs the convening authority that persons on the nomination list as well

as any other eligible persons subject to their command or others made available by their

commanders may be considered. The SJA maintains all documents submitted to the convening

authority in the course of detailing members to a court-martial.

14.1.2. Commanders are prohibited from considering race and gender in court member

selection, regardless of the race or gender of the accused. See United States v. Jeter, __ M.J.

__, No. 22-0065, slip. op. at 9 (C.A.A.F. 25 Sep. 2023). Accordingly, legal offices should not

include race, ethnicity, or gender on court-member data sheets.

14.2. Standing Courts-Martial Panels. To facilitate randomization and assembly of the court-

martial panel under R.C.M. 911, convening authorities will detail members to, and convene,

standing courts-martial.

14.2.1. Convening authorities will convene courts-martial and detail court members in

accordance with the provisions of this chapter.

14.2.2. At least once per fiscal year, GCMCAs will convene and detail at least one GCM for

each subordinate SPCMCA location, with a standing panel of at least 60 officer and at least 40

enlisted members. The GCMCA determines the duration of any convened standing panel. At

least once per fiscal year, SPCMCAs will convene and detail at least one standing panel of at

least 30 officer and at least 20 enlisted members. The SPCMCA determines the duration of

any convened standing panel. If a convening authority does not have sufficient personnel

assigned to their command to meet panel size requirements, they may detail members from

other commands or tenant units with the concurrence of the commander concerned.

14.2.3. After docketing, the legal office will provide the applicable general or special court-

martial convening order to the detailed military judge for randomization in accordance with

R.C.M. 911. Prior to assembly of the court-martial, at an open session of the court-martial, the

military judge will assign random numbers to the members detailed by the convening authority.

In accordance with procedures prescribed by AF/JAT, the military judge will inform the legal

office how many members must be present for the initial session at which members are

DAFI51-201 24 JANUARY 2024 121

required. Proceeding in order of the random numbers assigned to the panel members by the

military judge, the legal office will notify the members who are required to be present for the

initial session of the court-martial. If necessary, the convening authority or designee may

temporarily excuse members from the standing panel and the convening authority may replace

members as permitted by R.C.M. 505.

14.3. Impaneling Alternate Members. The convening authority must state, in writing, whether

alternate members are authorized. If the convening authority authorizes impanelment of alternate

members, the convening authority must either specify a number of alternate members or authorize

the military judge to impanel alternates only if excess members remain after exercise of challenges.

(T-0). See R.C.M. 912A. Templates are located on the VMJD and AF/JAJM Teams page.

14.3.1. If the convening authority designates a specified number, the military judge must

impanel that number of alternates in addition to the primary members on the fixed panel.

Therefore, if after challenges there is an insufficient number of alternate members, the

convening authority must detail additional members to the panel until the specified number of

alternates are seated on the panel.

14.3.2. If the convening authority states that alternates may be impaneled only if excess

members remain, the military judge shall impanel remaining members as alternates, but no

more than three. If no excess members remain after challenges, then the convening authority

is not required to detail additional members to serve as alternates.

14.4. Replacing or Excusing Detailed Members (R.C.M. 505). Before the court-martial is

assembled, the convening authority may excuse or replace detailed members of a court-martial

without showing cause. The convening authority may delegate to the servicing SJA or other

principal assistant the authority to excuse detailed members of a court-martial before a court is

assembled. Any such delegation must be in writing. However, the SJA or other principal assistant

may excuse no more than one-third of the detailed members. Only the convening authority may

detail new members to a court-martial panel. See R.C.M. 505(c).

Section 14B—Preparing the Convening Order

14.5. Special Order Convening Courts-Martial. Convening orders are prepared in accordance

with R.C.M. 504, 1302, and this chapter and shall designate the type of court-martial and detail

the members, if any, in accordance with R.C.M. 503(a). A convening order may designate where

the court-martial will meet based as determined by the convening authority. Sample convening

orders are provided on the VMJD and AF/JAJM Teams page.

14.5.1. Authority Cited in Convening Order. The current Department of the Air Force Special

Order or Designation Memorandum (i.e., the “Worldwide Convening Order” or “Worldwide

Convening Authority Designation Memorandum), or other document authorizing the

commander to convene courts is cited as authority for convening the court-martial.

14.5.2. Numbering Convening Orders. Orders convening courts-martial are special orders

that are numbered consecutively on a fiscal year basis, starting with number 1. The first order

for each series should state the last order number from the previous fiscal year, or state that no

orders from that series were published in the previous fiscal year. A sample convening order

with this language is located on the VMJD and AF/JAJM Teams page. The number follows

an A-series letter prefix. Use an A letter prefix for general courts-martial, an AB letter prefix

122 DAFI51-201 24 JANUARY 2024

for special courts-martial, an AC letter prefix for summary courts-martial, and an AD letter

prefix for special courts-martial by military judge alone under Article 16(c)(2), UCMJ. The

convening order must be memorialized in the convening order log as noted in Section 28A.

14.5.3. Identification of Members. Special orders convening a court-martial must contain the

name, rank and unit of all persons detailed. Do not include personal information (e.g., SSN).

If a detailed member is not under the command of the convening authority, ensure the special

order clearly indicates that the member was detailed with the concurrence of the member’s

commander.

14.5.4. If the convening authority directs the military judge to appoint alternates, it must be so

annotated on the convening order. A sample convening order including the authorization to

impanel alternates is located on the VMJD and AF/JAJM Teams page.

14.5.5. If the convening authority refers a case to a special court-martial by military judge

alone, the convening authority must convene such a court pursuant to Article 16(a)(2), UCMJ.

A sample convening order is located on the VMJD and AF/JAJM Teams page.

14.5.6. Amendments. Convening orders may be amended. A sample amended convening

order is provided on the VMJD and AF/JAJM Teams page. The original order should be

amended to reflect changes in court members, except when members are excused without

replacement. If excusal of a member without replacement is not reduced to writing, the

military judge or trial counsel announces the excusal on the record. No more than two

amendments to the original order may be issued. If it is necessary to further amend the

convening order, a new order should be published with a savings clause that transfers all cases

in which the court has not yet been assembled to the new order. A sample order with a savings

clause is included on the VMJD and AF/JAJM Teams page. All amendments to a convening

order and all convening orders with a savings clause should cite all prior orders. Copies of all

convening orders and amendments to convening orders must be provided to the military judge

and included in all copies of the ROT.

14.5.7. Correcting Convening Orders. The header, order number, and date of a convening

order can be corrected without an amendment in a corrected order. The phrase “corrected copy

– destroy all others” must be included in the header in bold and all caps (CORRECTED

COPY – DESTROY ALL OTHERS). Strike through the information and underline the

correct information.

14.6. Docketing. AF/JAT is responsible for docketing procedures, which are described in the

Uniform Rules of Practice Before Department of the Air Force Courts-Martial.

DAFI51-201 24 JANUARY 2024 123

Chapter 15

COURT-MARTIAL COMPOSITION AND COURT REPORTERS

Section 15A—Military Judges (R.C.M. 503(b))

15.1. Detailing Military Judges. The Chief Trial Judge, TJAG’s designee for detailing military

judges, details military judges to SPCMs and GCMs. The Chief Trial Judge may delegate this

authority to any person assigned as a DAF military judge. A military judge with the authority to

detail military judges may detail himself or herself to a court-martial. Orders detailing military

judges may be oral or written. Any written orders are included in the ROT. The authority who

detailed the military judge is announced on the record.

15.1.1. A military judge from another U.S. armed force may be detailed to a DAF court-

martial according to the other armed force’s regulations applicable to military judges and with

the approval of TJAG.

15.1.2. TJAG has authority to make DAF military judges available for detail to trials convened

by another U.S. armed force.

15.1.3. No judge may be detailed to a court-martial if that judge served as a PHO at the

preliminary hearing in the same case. Military judges are requested and detailed to the pre-

referral proceedings described in this chapter in accordance with the Uniform Rules of Practice

Before Department of the Air Force Courts-Martial.

Section 15B—Counsel (R.C.M. 503(c))

15.2. Detailing Defense Counsel.

15.2.1. The Chief, AF/JAJD, has the authority to detail the Deputy Chief, a CDDC, SDC, or

ADC to any court-martial, and may delegate such authority.

15.2.1.1. A SDC may detail an ADC within that district to a court-martial outside of that

district, with the concurrence of the Chief, AF/JAJD, or a CDDC.

15.2.1.2. Military defense counsel will announce on the record by whom they were

detailed.

15.3. Detailing Trial Counsel.

15.3.1. For offenses under command authority, an SJA, or the Director of Operations (or

Chief), AF/JAJG may detail trial counsel or assistant trial counsel to a court-martial. The order

detailing trial counsel may be oral or written. Announce orders detailing counsel orally on the

record at trial. Attach written or message orders, if any, to the ROT.

15.3.2. For offenses under OSTC authority, STC shall be detailed as trial counsel. STC may

detail other trial counsel who are judge advocates. For installation legal office personnel,

detailing decisions will be with the concurrence of the SJA. Detailing of District Trial Counsel

requires concurrence of the Director of Operations (or Chief), AF/JAJG.

15.3.3. R.C.M. 503(c)(3) and other armed forces’ regulations govern detailing counsel from

other armed forces to DAF courts-martial. The Chief, AF/JAJM, is TJAG’s designee with

authority to make Air Force counsel, with the exception of those assigned to AF/JAJD,

124 DAFI51-201 24 JANUARY 2024

available for detail to trials convened by another armed force. AF/JAJD exercises this

authority over defense counsel.

15.4. Qualifications of Counsel.

15.4.1. General Courts-Martial. Only attorneys certified according to Article 27(b), UCMJ,

may be detailed as trial counsel, defense counsel, or assistant defense counsel for a GCM. Any

person detailed as assistant trial counsel must be designated as a judge advocate in accordance

with DAFI 51-101.

15.4.2. Special Courts-Martial. Only attorneys certified according to Article 27(b), UCMJ,

and DAFI 51-101 may be detailed as defense counsel or assistant defense counsel for a special

court-martial. Any person detailed as trial counsel or assistant trial counsel for a SPCM must

be designated as a judge advocate under DAFI 51-101 in order to be competent for purposes

of Article 27(c)(2), UCMJ.

15.4.3. Capital Cases. Where possible, in capital cases at least one defense counsel should

have knowledge and/or experience in capital litigation. See Article 27(d), UCMJ. The Chief,

AF/JAJD will continue to identify capital litigation training opportunities for defense counsel.

15.4.4. Special Trial Counsel. A judge advocate qualified, certified, and assigned as an STC

will be detailed to general and special courts-martial for offenses under OSTC authority. See

R.CM. 502(d)(1), Article 24a, UCMJ. The presence of an STC is required unless an STC

determines otherwise and another trial counsel, certified according to Article 27(b), UCMJ, is

present. See R.C.M. 804(d).

15.4.5. ARC Members. See Chapter 3 for ARC-specific requirements.

15.4.6. Civilian Counsel (R.C.M. 502(d)(2)(b)). When a civilian counsel represents an

accused at a court-martial, the counsel’s qualifications to serve as defense counsel, including

information about the counsel’s bar membership and standing, should be included in the

record. Ordinarily, the military judge will have the civilian counsel announce their

qualifications on the record during court-martial proceedings.

15.5. Disqualifications (Articles 26(d) and 27(a)(2), UCMJ; R.C.M. 502(d)(3)).

15.5.1. A PHO who conducted an Article 32, UCMJ, preliminary hearing may not serve as a

member of the prosecution or as military judge in the same case.

15.5.2. No person who, with respect to a case, has served as a PHO, court member, military

judge, military magistrate, or appellate judge, may later serve as trial counsel, assistant trial

counsel, or, unless expressly requested by the accused, as defense counsel or assistant or

associate defense counsel in the same case. No person who has acted for the prosecution may

act later in the same case for the defense, nor may any person who has acted for the defense

act later in the same case for the prosecution.

15.6. Request for IMDC (R.C.M. 502(d)(2)(B) and 506(b)). An accused may request

representation by IMDC for any administrative discharge board proceeding, court of inquiry,

Article 32, UCMJ, preliminary hearing, and/or at a court-martial. The accused does not have to

wait until official notice of the proceeding to make this request, and the approval authority is not

barred from processing and fulfilling this request prior to the official notice of the proceeding.

This request may be made and fulfilled anytime the approval authority reasonably believes the

DAFI51-201 24 JANUARY 2024 125

member will be facing one of the covered proceedings. The requested counsel represents the

accused, if reasonably available.

15.6.1. Format of IMDC Requests. An IMDC request must be in writing and signed by the

accused or detailed counsel. The request shall include the following, as applicable:

15.6.1.1. The date of the discharge board, Article 32, UCMJ preliminary hearing or trial.

For issues where the member has not been served official notice, it will include the reason

the member believes their matter will result in one of the covered processes;

15.6.1.2. Any special qualifications of the requested counsel relevant to the case;

15.6.1.3. Whether the accused is represented by other counsel (not the requested counsel)

and, if so, the name of that counsel;

15.6.1.4. Whether the accused has entered into an attorney-client relationship with the

requested counsel concerning the charges being investigated or tried (including any

statement required by paragraph 15.6.4.);

15.6.1.5. In the case of a requested counsel presently unavailable, whether the counsel is

expected to be available before the discharge board, Article 32, UCMJ, preliminary

hearing, or trial; and,

15.6.1.6. A statement acknowledging the accused’s understanding that, if the IMDC

request is granted, detailed defense counsel may be excused from further participation in

the case at the sole discretion of the detailing authority.

15.6.2. Non-Availability of Certain Counsel. In addition to those persons listed in R.C.M.

506(b)(1), the following persons are not ordinarily reasonably available to serve as IMDC

because of the nature of their duties, positions, or geographic locations:

15.6.2.1. Attorneys in the National Capital Region assigned to AF/JAJ, AF/JAC, AF/JAO,

or subordinate divisions, excluding any individual detailed to perform duties as a District

Defense Counsel or Area Defense Counsel;

15.6.2.2. Attorneys attending an Air Force Institute of Technology sponsored program

such as a Master of Laws program;

15.6.2.3. Attorneys assigned or attached to the OSI;

15.6.2.4. Attorneys detailed to perform duties as a DTC, detailed trial counsel, and

assistant trial counsel in the same or an allied case;

15.6.2.5. SJAs, and for legal offices responsible for advising commands having a

GCMCA, DSJAs; and

15.6.2.6. Attorneys assigned to OSTC.

15.6.2.7. ARC Attorneys not readily available to be placed on extended Title 10 active

duty tours. Requests for an ANG Defense Counsel will route through the Chief, ANG

Defense Services and the State SJA of the State Defense Counsel for a determination of

availability. In the event of a dispute, the matter should be resolved by the ANG Assistant

to DJAG. Special consideration should be given to a member from the ARC making an

IMDC request for otherwise qualified counsel from their particular Component. See

Chapter 3 for additional guidance.

126 DAFI51-201 24 JANUARY 2024

15.6.3. Reasonably Available. A counsel is “reasonably available” if not considered

unavailable by the terms of the MCM or this instruction, and the appropriate approval authority

determines if the requested counsel can perform the duties of an IMDC without unreasonable

expense or detriment to the United States and without unreasonable delay in the proceedings.

In determining the reasonable availability of a counsel, the approval authority may consider

the following:

15.6.3.1. The duties, workload, and assignment status of the requested counsel;

15.6.3.2. The experience level, duties, and workload of the military counsel already

detailed to represent the accused;

15.6.3.3. The nature and complexity of the charges and legal issues involved in the case;

15.6.3.4. Whether a certified assistant defense counsel is detailed to the case;

15.6.3.5. The workload of the office to which the requested counsel is assigned, and the

availability of personnel to meet those demands;

15.6.3.6. The distance from the expected site of the proceedings; and

15.6.3.7. Whether requested counsel is likely to be a necessary witness at trial or is

otherwise conflicted from representing the accused under the DAF Rules of Professional

Conduct or DAF Standards for Criminal Justice.

15.6.4. Exception to Non-Availability: Existing Attorney-Client Relationship. An IMDC

request is not required in circumstances where an attorney-client relationship already exists.

In these cases, this previous relationship creates an exception to the non-availability based

upon assignment to a position identified in R.C.M. 506(b)(1) and paragraph 15.6.2. An

attorney-client relationship exists when the accused and the requested attorney had a bilateral

understanding as to the nature of services to be provided in the case, and the requested attorney

was actively engaged in the preparation and pretrial strategy of the case. United States v.

Spriggs, 52 M.J. 235 (C.A.A.F. 2000). Whether a continuing attorney-client relationship exists

will be dependent upon the facts and circumstances of a given case.

15.6.5. Processing IMDC Requests for ADC, SDC, and CDDC.

15.6.5.1. IMDC requests for ADC and SDC are forwarded through defense channels to

the appropriate approval authority as follows:

15.6.5.2. The Chief, AF/JAJD, has the authority to act on any IMDC request for any

CDDC, SDC, or ADC, and may delegate such authority.

15.6.5.3. If the Chief, AF/JAJD chooses to delegate such authority, an accused may appeal

the disapproval of an IMDC request to the Chief, AF/JAJD, whose decision is final. There

is no appeal from an IMDC request disapproved by the Chief, AF/JAJD.

15.6.6. Processing IMDC Requests for Other Counsel. IMDC requests for all other counsel

(not addressed in paragraph 15.6.4 and paragraph 15.6.5) are forwarded to the convening

authority through the trial counsel, if any. The convening authority will process the request in

accordance with R.C.M. 506(b)(2). Because AF/JAJD is responsible for defense services

throughout the Air Force and Space Force, it is incumbent upon those IMDC who are not

assigned to AF/JAJD to notify the Chief, AF/JAJD, of their association with a case as soon as

practicable. These IMDC should also keep CDDC informed about the progress of the case.

DAFI51-201 24 JANUARY 2024 127

Additionally, the IMDC must coordinate in advance any anticipated expenditure of AF/JAJD

funds for travel or other reasons.

15.6.6.1. Disposition When Counsel is Not Reasonably Available. If the requested

counsel is not reasonably available for a reason identified in R.C.M. 506(b)(1) or

paragraph 15.6.2, and the accused does not assert an attorney-client relationship, the

convening authority will deny the request and notify the accused.

15.6.6.2. Disposition When Counsel May Be Available. If the requested counsel appears

to be reasonably available (i.e., not apparently unavailable in accordance with R.C.M.

506(b)(1) or paragraph 15.6.2), the convening authority forwards the request to the

appropriate approving authority identified below. The approving authority evaluates

availability (see paragraph 15.6.3), decides whether to grant the request, and informs the

forwarding convening authority of the decision and the reasons for the decision. The

convening authority notifies the accused of the decision.

15.6.6.2.1. Attorneys Assigned to Headquarters Department of the Air Force. Send

requests for attorneys assigned to AF/JAC, AF/JAJ, AF/JAO, AF/JAS, The Judge

Advocate General’s School (AFJAGS), or HAF Directorates to the respective Director.

Requests for ADC and SDC shall be forwarded per paragraph 15.6.5.

15.6.6.2.2. Master of Laws Students. Send requests for attorneys in a Master of Laws

program to JAX.

15.6.6.2.3. SJAs. Send requests for SJAs to the SJA’s commander.

15.6.6.2.4. USAFA professors/instructors. Send requests to the USAFA Staff Judge

Advocate and Head, USAFA Department of Law (USAFA/DFL).

15.6.6.2.5. All Others. Send requests for all other attorneys to the requested counsel’s

SJA, supervising officer, or commander.

15.6.7. Appeals. The accused may request review of a disapproved IMDC request (other than

those covered by paragraph 15.6.5) by the next higher level of supervision of the officer who

denied the request. Appeals are forwarded to the convening authority through the trial counsel.

15.6.7.1. If the convening authority originally denied the request, and declines to grant the

request on appeal, the appeal is forwarded to the convening authority’s superior officer for

review and decision. The final decision is returned to the convening authority, who notifies

the accused. There is no appeal from an IMDC request initially disapproved by a

MAJCOM or FLDCOM commander or higher authority.

15.6.7.2. With the exception of attorneys assigned to AF/JAJD, if an approval authority

originally denied the request, the appeal is forwarded by the convening authority to that

approval authority. If the approval authority declines to grant the request on appeal, the

appeal is forwarded to the approval authority’s superior officer for review and decision.

DJAG reviews denials by Headquarters DAF Directorates. There is no further review of

denials by DJAG. The final decision is returned to the convening authority, who notifies

the accused of the decision.

15.6.7.3. Prior to referral, a military judge may review an accused’s IMDC request in

accordance with R.C.M. 309(b)(8). A military judge may, for good cause, determine that

128 DAFI51-201 24 JANUARY 2024

a particular IMDC is reasonably available, notwithstanding any provision of this

instruction.

Section 15C—Oaths (Article 136, UCMJ; R.C.M. 807)

15.7. One-Time Oath. The following personnel take a one-time oath: military judges certified

according to Article 26(b), UCMJ; military counsel certified according to Article 27(b), UCMJ;

and court reporters.

15.7.1. Any person authorized by Article 136, UCMJ, may administer the one-time oath. The

person administering the oath completes a certificate indicating the place and date the oath was

administered. The oath contains the typed name, signature, and qualifications of the person

administering the oath. Give a copy to the person taking the oath.

15.7.2. For military judges, send the original and one copy to JAX. Use the following oath:

“I (name of military judge), do (swear) (affirm) that I will faithfully and impartially perform

the duties of military judge in any proceeding under the UCMJ to which I am detailed to

perform such duties, (so help me God).”

15.7.3. For military counsel, the SJA or designee should ensure the original and one copy is

sent to JAX. The following oath is used: “I [name of military counsel], do (swear) (affirm)

that I will faithfully perform the duties of counsel in any proceeding under the UCMJ to which

I am detailed to perform such duties or in any court-martial in which I am to perform duties of

individual defense counsel, (so help me God).”

15.7.4. For court reporters, the military judge or designee should give the original to the

reporter and file one copy with the court reporter administrator directly supervising the

individual. Use the following oath: “I (name of reporter), do (swear) (affirm) that I will

faithfully perform the duties of (reporter) in any proceeding under the UCMJ to which I am

detailed, (so help me God).”

15.8. Uncertified Military Counsel and Civilian Defense Counsel. Military counsel not

certified according to Article 27(b), UCMJ, and civilian defense counsel are sworn for each court-

martial. In a GCM or SPCM, the military judge administers the oath. In other proceedings, a

person authorized by Article 136, UCMJ, administers the oath. The SJA or trial counsel ensures

the oath is documented in the record of the proceeding.

15.9. Court Members. Court members are sworn for each court-martial to which they are

detailed. The trial counsel administers the oath. See R.C.M. 807.

15.10. Interpreters. In a GCM or special court-martial, the trial counsel or military judge

administers an oath to the interpreter. In other proceedings, a person authorized by Article 136,

UCMJ, administers the oath. The SJA or trial counsel ensures the oath is documented in the record

of the proceeding. An interpreter is properly sworn after an affirmative response to the following

oath: “Do you, [name of interpreter], (swear) (affirm) that you will faithfully perform the duties of

interpreter in this proceeding, (so help you God)?”

Section 15D—Court Reporters

15.11. Court Reporter Duties. Court reporters are detailed in accordance with AF/JAT guidance

to all GCMs and SPCMs.

DAFI51-201 24 JANUARY 2024 129

15.12. Transcription Requirements. See DAFMAN 51-203 for transcription requirements for

Article 30(a), UCMJ, proceedings, other pretrial R.C.M. 309 hearings, and courts-martial.

130 DAFI51-201 24 JANUARY 2024

Chapter 16

PRE-TRIAL MATTERS

Section 16A—Changes to and Withdrawal of Charges and/or Specifications

16.1. Changes to Charges or Specifications. Changes may be made to charges or specifications

after referral as authorized and explained in R.C.M. 603. Changes should be made by lining

through the charges or specifications in whole or in part, or writing in additional language while

ensuring the form remains legible. All changes and modifications should be dated and initialed by

the trial counsel. Do not use white-out tape or liquid for any changes to the charge sheet.

16.1.1. Minor Changes. Minor changes may be accomplished without having the charge

sworn anew by the accuser. Trial counsel shall provide the accused and defense counsel with

copies of the charge sheet with the changes. After arraignment, only a military judge may

authorize minor changes to the charge sheet. R.C.M. 603(a) and its accompanying Discussion

provides a definition of a “minor change.”

16.1.2. Major Changes. Major changes or amendments to a referred charge or specification

may not be made over the objection of the accused. If such changes need to be made the

charge(s) and specification(s) must be withdrawn and referred anew. If a charge is withdrawn

and amended, follow the re-referral procedures outlined in paragraph 13.11.

16.1.2.1. In the case of a GCM, a new Article 32, UCMJ, preliminary hearing may be

required if the charge(s) or specification(s), as changed, were not considered in the prior

preliminary hearing. See R.C.M. 603(d).

16.1.2.2. New preferral and referral may avoid a jurisdictional issue as to whether the

accused was improperly tried for a charge never referred to trial by the convening authority

in an actual order or functional equivalent. United States v. Wilkins, 29 M.J. 421 (C.M.A.

1990).

16.1.3. Authority.

16.1.3.1. For offenses under command authority, major changes are made only with the

permission of the convening authority.

16.1.3.2. For offenses under OSTC authority, major and minor changes are made only

with the permission of an STC.

16.2. Withdrawal of Charges or Specifications (R.C.M. 604).

16.2.1. For offenses under command authority, the convening authority may withdraw any

charge or specification before findings are announced. An officer authorized to receipt for

referral or trial counsel may withdraw charges or specifications at the direction of the

convening authority.

16.2.2. For offenses under OSTC authority, an STC may withdraw any charge or specification

before findings are announced. Trial counsel may withdraw charges or specifications at the

direction of an STC.

16.2.3. Withdrawal of charges or specifications extinguishes the jurisdiction of a court-martial

over them, unlike a dismissal that extinguishes the charges themselves. Charges or

DAFI51-201 24 JANUARY 2024 131

specifications may be withdrawn from a court-martial at any time before findings are

announced. Withdrawn charges or specifications must be disposed of (e.g., dismissed, re-

referred to another court-martial, deferred, or forwarded to another convening authority for

disposition). Note: If a /discharge, resignation, or retirement in lieu of court-martial is

approved, any pending charges must be withdrawn and dismissed.

16.2.4. Complete Withdrawal. To withdraw all charges and specifications from a court-

martial, trial counsel should “Z-out” the referral section (Part V) of the charge sheet, specify

the disposition and the date, and initial the action taken (e.g., “Withdrawn on 28 Aug 20,

[initials]”). If the convening authority or a superior competent authority directs both

withdrawal and dismissal of all charges and specifications, reflect accordingly (e.g.,

“Withdrawn and Dismissed with(out) prejudice on 28 Aug 20, [initials]”).

16.2.5. Partial Withdrawal. To withdraw a specific charge or specification from a court-

martial, while allowing the other offense(s) to proceed to trial, trial counsel should “Z” out the

charge and specification and annotate the dismissal date and the initials of the person who lined

through the affected charge or specification. Specify the disposition and the date, and initial

the action taken. (e.g., “Withdrawn on 18 Jan 20, [initials]”). If the convening authority directs

both withdrawal and dismissal of a particular charge and/or specification, both actions should

be reflected accordingly (e.g., “Withdrawn and Dismissed on 18 Jan 20, [initials]”). The trial

counsel determines whether any remaining charges and/or specifications should be

renumbered (and if renumbered, initials the renumbering). The following rules apply to

renumbering charges and/or specifications:

16.2.5.1. When charges or specifications are withdrawn before arraignment, trial counsel

ensures the remaining charges or specifications are renumbered and the new numbers

reflected on the charge sheet and throughout the ROT.

16.2.5.2. When charges or specifications are withdrawn after arraignment but before the

court members are aware of the charges, the military judge directs whether the remaining

charges or specifications are renumbered.

16.2.5.2.1. If the military judge directs renumbering, the new numbers should be

reflected on the charge sheet and referred to throughout the ROT from the point of

renumbering. Withdrawn charges or specifications should not be brought to the

attention of the members.

16.2.5.2.2. If the military judge does not direct renumbering, the remaining charges or

specifications should not be renumbered and the military judge instructs the members

that they should not draw any inference from the numbering of the charges and/or

specifications.

16.2.5.3. When charges or specifications are withdrawn after arraignment and after they

have come to the attention of court members (or the military judge sitting alone), the

remaining charges or specifications ordinarily are not renumbered. The military judge

instructs the members that the withdrawn charges or specifications should not be

considered for any reason.

16.2.6. Notification to the Accused. If charges are withdrawn and dismissed, the trial counsel

must notify the accused, through the accused’s counsel, of such withdrawal and dismissal.

132 DAFI51-201 24 JANUARY 2024

16.2.7. Notification to indexing officials. If charges are withdrawn and dismissed, the SJA to

the SPCMCA must provide a copy of the charge sheet reflecting the withdrawn and dismissed

charges to DAF-CJIC, OSI, and SF/S2I within 24 hours of service on the accused.

Section 16B—Evidentiary Matters

16.3. Warrants of Attachment. A warrant of attachment directs law enforcement personnel to

seize a person or property, without consent, and deliver the person or property to the military judge

or court-martial.

16.3.1. Requirements for a Warrant of Attachment. A Warrant of Attachment may be issued

only if in compliance with the provisions set out in R.C.M. 703.

16.3.2. Processing a Warrant of Attachment.

16.3.2.1. In most cases, a Warrant of Attachment should be executed by the United States

Marshals Service. Otherwise, anyone 18 years or older may execute a Warrant of

Attachment. Military law enforcement may execute a Warrant of Attachment; however,

military law enforcement should only be considered a last resort.

16.3.2.2. Provide the United States Marshals Service with the following:

16.3.2.2.1. A copy of the Warrant of Attachment;

16.3.2.2.2. A copy of the subpoena;

16.3.2.2.3. A copy of the certificate of service or receipt;

16.3.2.2.4. An affidavit indicating that appropriate fees and mileage were tendered to

the witness where applicable, or that the witness was provided a means for

reimbursement for fees and mileage, and the dollar amount;

16.3.2.2.5. The reasons that witness is material and why it is believed the witness

refuses or willfully neglects to appear; and

16.3.2.2.6. A Military Interdepartmental Purchase Request number. Legal office

personnel should consult with their local finance office to obtain this information.

16.3.2.3. The General Counsel’s Office for the United States Marshals Service will review

the Warrant of Attachment and determine the appropriate executing office. As this process

can take some time, trial counsel or the Government representative may consider

requesting relief pursuant to R.C.M. 707(c) if applicable.

16.3.2.4. If the United States Marshals Service is executing the Warrant of Attachment, it

will make travel, lodging, and housing arrangements for the escorts and witness as

appropriate. If the United States Marshals Service is not executing the Warrant of

Attachment, the Government is responsible for making travel, lodging and housing

arrangements for the escorts and witness. See DAFI 51-207 for further guidance regarding

witness escorts, funding, and housing.

16.3.2.5. Only such non-deadly force as is necessary to bring the witness to the proceeding

is authorized.

16.3.2.6. A convening authority may only issue a Warrant of Attachment to compel

compliance with an investigative subpoena issued prior to referral. R.C.M. 703(g)(3)(H)(i)

DAFI51-201 24 JANUARY 2024 133

and Discussion. Military judges may also issue Warrants of Attachment as appropriate

including when detailed under Article 30a, UCMJ.

16.4. Depositions.

16.4.1. Requesting and Ordering a Deposition. If it is in the interest of justice that the

testimony of a prospective witness be taken and preserved for use at trial, government or

defense counsel may request the convening authority or the military judge order a deposition

pursuant to R.C.M 702(a).

16.4.1.1. For offenses under OSTC authority, only a military judge may order a deposition.

See R.C.M. 702(b).

16.4.1.2. For offenses under command authority, before referral, a convening authority

may order a deposition. After referral, the convning authority or the military judge may

order a deposition. See R.C.M. 702(b).

16.4.1.3. The convening authority or military judge determines whether the requesting

party has demonstrated that, because of exceptional circumstances and in the interest of

justice, the testimony must be taken and preserved for use at trial. See R.C.M. 702(a). A

victim’s declination to testify at a preliminary hearing pursuant to Article 32(d)(3), UCMJ,

or declination to submit to pretrial interviews shall not, by itself, be considered exceptional

circumstances. See R.C.M. 702(a)(3).

16.4.1.4. When a request for deposition is approved, the convening authority details a

deposition officer with the qualifications set forth in R.C.M. 702(d)(3)(A). A sample

appointment memorandum is provided on the VMJD and AF/JAJM Teams page. The

duties of the deposition officer are described in R.C.M. 702(e).

16.4.1.5. If the deposition is taken by agreement of both trial and defense counsel, the

convening authority is not required to produce an order but must still detail a deposition

officer.

16.4.2. Counsel for Depositions. The rules governing qualification of counsel who may

perform duties before courts-martial apply to counsel representing the parties at a deposition.

The deposition should affirmatively indicate the qualifications of counsel.

16.4.3. Recording and Authentication of Depositions.

16.4.3.1. Written Depositions. Depositions taken on written interrogatories are recorded

and authenticated using a DD Form 456, Interrogatories and Depositions. DD Form 456

is not used for oral depositions.

16.4.3.2. Oral Depositions. Oral depositions are conducted in accordance with the

procedures in R.C.M 702(g)(1) and DAFMAN 51-203. Formats for conducting,

transcribing, and certifying oral depositions may be found in DAFMAN 51-203. The

deposition officer is the custodian for the record of deposition.

16.5. Subpoena Limitations.

16.5.1. A civilian witness may not be subpoenaed to testify at a court-martial outside the

United States or at a pre-referral proceeding (Article 30a, UCMJ or Article 32, UCMJ

hearings).

134 DAFI51-201 24 JANUARY 2024

16.5.2. Subpoenas to the Media. DAF policy requires the exercise of due care when issuing

subpoenas to media organizations to avoid unnecessary imposition on the news gathering

process and thereby protect the media’s First Amendment role.

16.5.2.1. Prior to issuing a subpoena to a member of the news media, trial counsel will

consult with the base-level SJA. The SJA forwards a request to the GCMCA’s SJA

addressing the following:

16.5.2.1.1. That all reasonable attempts were made to obtain the information sought

from alternative sources;

16.5.2.1.2. That all reasonable alternative investigative steps were taken to obtain the

information sought;

16.5.2.1.3. The results of negotiations with the media. Negotiations should make clear

the government’s needs in the particular case and its willingness to respond to particular

concerns of the media;

16.5.2.1.4. That reasonable grounds exist to conclude, based on information obtained

from other sources, that a crime has occurred and the information sought is essential to

the case; and

16.5.2.1.5. That to the extent possible, the subpoena is directed at material information

regarding a limited subject matter, will cover a reasonably limited period of time, and

will avoid requiring production of a large volume of unpublished material.

16.5.2.2. The GCMCA’s SJA approves or disapproves the issuance of the subpoena. The

base-level SJA immediately files a SIR in accordance with Chapter 31 of this instruction.

16.5.2.3. In the event exigent circumstances prevent prior consultation with the GCMCA’s

SJA, a trial counsel may issue a subpoena with the base-level SJA’s approval. In that case,

the base-level SJA immediately informs the GCMCA’s SJA, MAJCOM SJA, and

AF/JAJM by email of the issuance of the subpoena and the exigent circumstances that

precluded prior consultation.

16.5.2.4. The principles set forth in this guidance are not intended to create or recognize

any legally enforceable right in any person.

Section 16C—Child Sexual Assault Material in Evidence and Exhibits

16.6. Distinction between Evidence and Exhibits. Evidence is retained by law enforcement.

Exhibits are retained by the court. Child sexual abuse material seized and maintained by OSI as

evidence of the crime is retained by OSI or other responsible law enforcement. Child sexual abuse

material admitted as an exhibit at trial is separate and distinct from evidence seized and retained

by law enforcement; such exhibits often consist of a forensic copy of the original evidence seized

and retained by law enforcement. Child sexual abuse material admitted as exhibits in a court-

martial are the property and responsibility of the court-martial (i.e., the court reporter and/or

servicing legal office, depending on who is tasked with maintaining admitted exhibits while the

ROT is being prepared and ultimately maintained in accordance with the Air Force Records

Disposition Schedule located in AFRIMS). See 18 U.S.C. § 3509. Absent a written, advance

agreement between the legal office and servicing OSI detachment, admitted exhibits shall not be

transferred back to OSI for “safekeeping.”

DAFI51-201 24 JANUARY 2024 135

Section 16D—Defense Investigative Support

16.7. Defense Investigative Capability.

16.7.1. The Defense Investigative Capability provides direct investigative and litigation

support to detailed defense counsel in a wide range of potential adverse actions. When detailed

to the defense team, a defense investigator (DI) is a “lawyer’s representative” within the

meaning of M.R.E. 502 and works at the direction of the detailed military defense counsel on

behalf of the client.

16.7.2. The Chief, AF/JAJD, is responsible for providing defense investigatory capabilities to

DAF defense counsel.

16.7.3. Chief District Defense Counsel (CDDC) are responsible for detailing DIs to individual

cases. The CDDC may delegate detailing authority to a supervising defense investigator. The

detailing decision is protected work product insofar as it is based on privileged input from

defense counsel regarding each case’s likely disposition, status of discovery, potential

conflicts, investigative needs, potential case theories and strategies, etc. There is no appeal of

a CDDC’s decision whether or not to detail a DI to a particular case; nor is the decision subject

to review by a military judge. The CDDC’s decision to detail, or not detail, a DI to a particular

case does not impede a detailed military defense counsel from requesting additional/alternative

investigative support from the convening authority per paragraph 16.8.

16.7.4. Once detailed, the investigative activities of a DI will be in support of the military

defense counsel detailed to the case. As a member of the defense team, the DI must abide by

the attorney-client and work product privileges. The efforts of the DI are work-product. See

M.R.E. 502 and R.C.M. 701(f).

16.8. Defense Requests for Investigative Support from OSI.

16.8.1. If a DC representing a DAF member requests investigative support from outside

AF/JAJD, such requests are made in writing to the servicing SJA, who forwards the request

along with a recommendation to the convening authority. The SJA may consider whether DC

has made a sufficient case as to why investigative support is needed as well as whether DC has

first requested support from AF/JAJD in making the recommendation to the convening

authority. If the convening authority grants the request and investigative resources are

available within the convening authority’s command that would satisfy the needs of the

defense, other than OSI investigators, the convening authority appoints an investigator.

16.8.2. If the convening authority determines that other investigative resources are not

available and appointment of an OSI special agent is necessary under the circumstances, the

convening authority informs the local OSI detachment commander. The OSI detachment

commander forwards the request through command channels for a determination of whether

to support the defense request. If the commander, OSI (OSI/CC) agrees that appointment of a

special agent is appropriate and an agent is available, OSI/CC appoints a special agent. OSI/CC

is the decision authority for appointment of OSI agents as defense investigators, except in the

extraordinary case where a trial judge specifically mandates the appointment of an OSI special

agent. In all cases, the convening authority provides the requisite funding. See also United

States v. Pomarleau, 57 M.J. 351 (C.A.A.F. 2002).

136 DAFI51-201 24 JANUARY 2024

16.8.3. Contact OSI/JA with any questions regarding this policy or its application, including

provisions that apply to permissible activities, access to law enforcement resources, and level

of assistance which may be provided by special agents who are assigned to provide defense

investigative support.

DAFI51-201 24 JANUARY 2024 137

Chapter 17

PLEA AGREEMENTS AND CONDITIONAL GUILTY PLEAS

Section 17A—Conditional Guilty Plea

17.1. Conditional Guilty Plea. When approving a guilty plea conditioned on preserving review

of an adverse determination of a pretrial motion, the military judge should make the following

findings on the record: (1) the offer is in writing and clearly details the motion that the accused

wishes to preserve on appeal; (2) the government’s consent is in writing and signed by an official

authorized to consent; (3) the particular motion was fully litigated before the military judge; and

(4) the motion is case dispositive as to one or more charge or specification. See R.C.M. 910(a)(2);

United States v. Monroe, 50 M.J. 550 (AFCCA 1999); and United States v. Phillips, 32 M.J. 955

(A.F.C.M.R. 1991). The SJA, person “Acting as the Staff Judge Advocate” to the convening

authority, the trial counsel at the direction of the SJA, or the STC is authorized to consent for the

government to the accused entering a conditional guilty plea.

Section 17B—Plea Agreements (Article 53a, UCMJ, R.C.M. 705, and R.C.M. 910)

17.2. Applicability. Plea agreements may only be used in cases where all offenses occurred on

or after 1 January 2019 or if the accused opts into the Military Justice Act of 2016 (MJA16)

sentencing framework. If all offenses occurred prior to 1 January 2019, a pre-trial agreement

(PTA) must be used. For cases where at least one offense occurred prior to 1 January 2019 and at

least one offense occurred on or after 1 January 2019, either: (1) apply the pre-MJA16 sentencing

rules to the entire case and use a PTA; (2) separate the case into two proceedings, one for pre-1

January 2019 offenses (with a PTA) and one for on or after 1 January 2019 offenses (with a plea

agreement); or (3) the Accused may opt into the MJA16 sentencing rules and use a plea agreement.

17.3. Policy Considerations for Plea Agreements. SJAs and STC have an obligation to preserve

a military justice system that promotes good order and discipline and is fair, timely, and transparent

to the military community and the public at large. The authority entering into a plea agreement

should consider the benefits to the government and the accused as well as the costs to the military

justice system of entering an agreement in order to properly balance the considerations. Plea

agreements should not be used to mask case-processing inefficiencies. Prior to entering into a plea

agreement, disposition authorities should consider the Disposition Guidance found in Appendix

2.1 of the MCM.

17.3.1. The use of a plea agreement may be advisable in the following situations:

17.3.1.1. Cases where the victim has indicated support for the plea agreement, though a

victim’s preference is not binding.

17.3.1.2. Cases where sensational information involving persons other than the accused

can be avoided through a negotiated plea.

17.3.1.3. Cases where several accused are involved, and the testimony of one is required

in the trial of one or more of the others. In this case, a plea agreement may be more

desirable than a grant of immunity.

138 DAFI51-201 24 JANUARY 2024

17.3.1.4. Cases where essential witnesses are located at exceptional distances, are not

amenable to process or are not otherwise available. Current operations, in some

circumstances, may make critical witnesses unavailable.

17.3.1.5. Cases involving national security where harm to the government of a fully

litigated trial should be avoided. In these cases, plea agreements can be used so that

evidence involving exposure of national security information can be protected.

17.3.2. Cost, expediency, collateral consequences, forum selection, and litigation risk are all

factors the disposition authority should consider in determining whether a plea agreement is

warranted. However, individually they are not ordinarily factors that outweigh possible

detrimental aspects of plea agreements.

17.3.3. Plea agreements that would include a provision for waiver of mandatory forfeitures

should be carefully scrutinized to ensure the accused’s expectations will be met. For example,

when an accused enters a no-pay status upon the expiration of their term of service (or

expiration of his/her Title 10 federal active-duty orders, in the case of ARC members), there

will be no pay available to forfeit, and therefore, no amount to waive for the benefit of

dependents. See paragraph 20.31.2.5. An agreement predicated upon terms including a

waiver that is thwarted due to no pay entitlement may render pleas by an accused improvident

and result in reversal of a conviction. United States v. Mitchell, 58 M.J. 251 (C.A.A.F. 2003);

United States v. Perron, 58 M.J. 78 (C.A.A.F. 2003).

17.3.4. Defense Offer. Although discussions about plea agreements or alternate disposition

agreements may occur at any time in the trial process and may be initiated by trial counsel or

defense counsel, ordinarily, the initial written offer will be provided by the defense. The SJA,

STC, or trial counsel, as applicable, and counsel for the accused may clarify the terms of a

defense offer to obtain sufficient information to enable the disposition authority to decide

whether to accept or reject the offer.

17.4. Plea Agreements in National Security and Related Cases.

17.4.1. The SJA must obtain permission from the Chief, AF/JAJM to enter into plea agreement

discussions in cases involving an offense (including attempt, conspiracy, and solicitation to

commit such an offense) of espionage, subversion, aiding the enemy, sabotage, spying, or

violation of punitive rules or regulations and criminal statutes concerning classified

information or the foreign relations of the United States. AF/JAJM ensures coordination with

the Department of Justice according to DoDI 5525.07, Implementation of the Memorandum of

Understanding Between the Departments of Justice and Defense Relating to the Investigation

and Prosecution of Certain Crimes. For national security offenses under OSTC authority as a

known or related offense, OSTC will coordinate with the Chief, AF/JAJM prior to entering a

plea agreement. AF/JAJM permission is not required for the disposition authority to reject a

plea agreement offer.

17.4.2. Request for Permission to Negotiate. For offenses under command authority, the

GCMCA personally or through the SJA requests by the most expeditious means available

permission from AF/JAJM to negotiate a plea agreement. The following information should

be included in the request:

17.4.2.1. Background information on the accused including name, rank, and organization;

DAFI51-201 24 JANUARY 2024 139

17.4.2.2. The offenses charged;

17.4.2.3. A summary of evidence against the accused;

17.4.2.4. Terms of the accused’s plea agreement offer; and,

17.4.2.5. Factors warranting a plea agreement.

17.4.3. Permission to Proceed. A grant of permission to enter into plea agreement discussions

does not amount to approval of the terms or conditions of any plea agreement, which may

result from the negotiations.

17.5. Authority to Approve a Plea Agreement.

17.5.1. For offenses under command authority, the decision to accept or reject a plea

agreement offer submitted by an accused is within the sole discretion of the convening

authority who referred the case to trial or the successor convening authority. United States v.

Caruth, 6 M.J. 184 (C.M.A. 1979). The accused is entitled to have the convening authority

personally act upon the offer before trial. United States v. Upchurch, 23 M.J. 501 (A.F.C.M.R.

1986). A convening authority, through the servicing SJA, must make the best effort to provide

the victim(s) an opportunity to submit views, and the convening authority shall consider these

views before accepting the plea agreement offer. (T-0) See R.C.M. 705(e)(3)(B) and DAFI

51-207.

17.5.2. For offenses under OSTC authority, the decision to accept or reject a plea agreement

is within the sole discretion of OSTC. Any such agreement may bind convening authorities

and other commanders. STC must make the best effort to provide the victim(s) with an

opportunity to submit views, and STC shall consider these views before accepting the plea

agreement.

17.6. Plea Agreement Terms (R.C.M. 705(b)-(d)).

17.6.1. Accused Opt-in to MJA16 Sentencing Rules. In cases where at least one offense

occurred prior to 1 January 2019 and at least one offense occurred on or after 1 January 2019,

the accused can agree to opt in to MJA16 sentencing rules as a term of the plea agreement.

17.6.2. Sentencing Agreements. The parties can agree to a limit on the maximum and

minimum amount of punishment, and a plea agreement may contain a specified sentence or

portion of a sentence that shall be imposed by the court-martial. See R.C.M. 705(d)(1). Note:

R.C.M. 705 prohibits disclosure of the existence of a plea agreement to the members unless

one of the enumerated exceptions applies. In the event of sentencing by members, the military

judge provides appropriate instruction on any sentencing limitations that exist in a case.

17.6.3. Segmented Sentencing by Military Judge. A plea agreement that requires sentencing

by a military judge and includes sentencing limitations must specify any agreed upon

limitations regarding confinement and fines, if any, for each enumerated offense. See

paragraph 17.6.2 and R.C.M. 1002(d)(2). The plea agreement may also specify whether any

terms of confinement are to be served concurrently or consecutively. See R.C.M.

1002(d)(2)(B) (2019 MCM).

17.6.4. Unitary Sentencing by Members and Summary Court Officers. Any plea agreement

that permits sentencing by members (for offenses before 28 December 2023) or a summary

court officer and includes sentencing limitations must specify a single maximum, minimum,

140 DAFI51-201 24 JANUARY 2024

or maximum and minimum punishment for the offenses for which the accused is pleading

guilty. See R.C.M. 1002(d)(1) (2019 MCM).

17.6.5. Plea Agreement Format.

17.6.5.1. Plea agreements must be in writing and signed by the accused and counsel.

When a disposition authority accepts a plea agreement, the convening authority or STC, as

applicable, personally signs the agreement. For offenses under OSTC authority, the

convening authority will not sign the plea agreement. For offenses under command

authority, the convening authority may authorize, in writing, another individual such as the

SJA or trial counsel to sign. If the SJA or trial counsel sign a plea agreement on behalf of

the convening authority, an authority line such as “FOR THE COMMANDER” must

accompany the signature.

17.6.5.2. Oral plea agreements are prohibited, as are promises to intervene on the

accused’s behalf in any manner in exchange for a guilty plea. (T-0) The SJA or designee

ensures all documentation pertaining to a plea agreement is included in the ROT.

17.6.6. Changes to Plea Agreements. If at any point after the plea agreement is signed by the

accused and convening authority or STC, as applicable, further negotiation results in an

agreement for different relief or different terms than that included in the original offer, an

updated plea agreement must be drafted and signed anew.

17.6.7. Stipulations of Fact. A plea agreement may require the accused and counsel to enter

into stipulations of fact or expected testimony. See R.C.M. 705(c)(2)(A).

17.6.8. Withdrawal from Plea Agreements. Either party may withdraw from a plea agreement

as provided in R.C.M. 705(e)(4).

17.6.8.1. Withdrawals by the convening authority or STC should be in writing and signed

by the convening authority or STC, as applicable. The SJA or designee gives a copy of

any withdrawal to the accused and defense counsel.

17.6.8.2. Withdrawals by the accused should be in writing and given to the SJA, trial

counsel, or STC, as applicable.

17.6.8.3. The SJA or designee ensures the plea agreement and the withdrawal, by either

side, is included in the ROT or, if not in writing, is discussed on the record. See DAFMAN

51-203.

17.6.9. Accused’s Failure to Satisfy Plea Agreement Condition. If the accused does not fulfill

a promise to satisfy certain conditions before action or during any period of suspension of the

sentence as agreed to in the plea agreement, the convening authority may be relieved of the

obligation to fulfill the agreement, provided that the accused’s promise was included in the

agreement and the hearing requirements in R.C.M. 1108 have been satisfied. See R.C.M.

705(c)(2); United States v. Smith, 46 M.J. 263 (C.A.A.F. 1997); United States v. Hunter, 65

M.J. 399 (C.A.A.F. 2008); United States v. Shook, 70 M.J. 578 (AFCCA 2011).

17.6.10. Convening Authority’s Failure to Satisfy Plea Agreement Condition. Plea

agreements that would include a provision for waiver of mandatory forfeitures should be

carefully scrutinized to ensure the accused’s expectations will be met (e.g., to ensure that there

are forfeitures to waive, in the event the accused is an ARC member or the accused’s ETS is

DAFI51-201 24 JANUARY 2024 141

going to run during the period of possible confinement). See paragraph 17.3.3., paragraph

20.12, and Section 20F.

17.6.11. In-Court Inquiry. Trial counsel should notify the military judge or summary court

officer of a plea agreement before arraignment, or as soon as practicable thereafter. The

military judge or summary court officer must question the accused prior to accepting the plea

to determine whether the accused understands and agrees to the meaning and effect of each

plea agreement condition and the agreed upon sentence limitations.

17.6.11.1. Where there is a plea agreement, the sentence limitations should be inquired

into by the military judge or summary court officer and included within the plea agreement.

R.C.M. 910(f)(3).

17.6.11.2. Plea agreements that are subject to in-court inquiry, whether or not accepted by

the military judge or summary court officer, are appellate exhibits in the ROT if a ROT is

required. See DAFMAN 51-203.

142 DAFI51-201 24 JANUARY 2024

Chapter 18

RESIGNATION AND RETIREMENT IN LIEU OF COURT-MARTIAL

Section 18A—Officer Resignation in Lieu of Trial by Court Martial (RILO)

18.1. General. Officers (including USAFA cadets) may submit a RILO request with the

understanding that SecAF may direct a discharge under other than honorable conditions when their

conduct makes them subject to trial by court-martial. A RILO is a type of resignation for the good

of the service. A template is located on the VMJD and AF/JAJM Teams page.

18.2. Considerations. Commanders should not recommend SecAF accept a RILO for

expediency when the alleged offense(s) would be more appropriately resolved at trial. Before

making any recommendation, reviewing commanders at all levels should consider the best

interests of the DAF and the effect a resignation would have on good order and discipline.

Reviewing commanders should consider the Disposition Guidance found in Appendix 2.1 of the

MCM. The time and expense of a court-martial is rarely the deciding factor.

18.3. Timing.

18.3.1. Pre-Referral RILOs. To permit the full development of the facts of the case and

appropriate consideration of dispositions other than trial, officers are encouraged not to submit

RILO requests before charges are referred to trial by court-martial. Any reviewing commander

may deny a RILO request submitted prior to the referral of charges. If denied, the officer may

resubmit the request after referral of charges. Pre-referral RILO requests supported by all

reviewing authorities are forwarded expeditiously to AF/JAJI through functional channels.

18.3.2. Post-Referral RILOs. If a request is submitted after referral and prior to arraignment,

the request may only be acted upon by SecAF. RILO requests are forwarded expeditiously to

AF/JAJI through functional channels. A RILO request may not be submitted post-arraignment.

18.3.3. For offenses under OSTC authority, the installation legal office shall notify the

assigned STC of a submitted RILO request immediately. AF/JAJI will coordinate with the

servicing OSTC District Office and Headquarters OSTC for LSTC input.

18.4. Defense Counsel. Before submitting a RILO request, officers may consult with counsel

and are provided military defense counsel unless they expressly decline one.

18.4.1. If an officer refuses military counsel, the officer should so state in the request.

18.4.2. The DAF does not pay for or reimburse members for the costs of retaining civilian

defense counsel.

18.5. Recoupment. Officers should understand that if SecAF accepts their resignation, they may

be required to reimburse a portion of advanced education assistance, special pay, or bonuses

received if they leave active duty before completing the period of active duty they agreed to serve.

See DAFI 36-3211, Military Separations. Officers who are subject to recoupment of education

assistance, special pay, or bonuses must sign a Recoupment Statement and attach it to their request.

This includes USAFA cadets with an active-duty service commitment or who are found to have

committed serious misconduct. A template is located on the VMJD and AF/JAJM Teams page.

DAFI51-201 24 JANUARY 2024 143

18.6. Resignation in Lieu of Trial by Court-Martial Request and Additional

Documents. The RILO package includes all of the documents and recommendations listed in the

Comprehensive RILO Checklist on the VMJD and AF/JAJM Teams page. This includes the views

of any victims on the alternate disposition. See DAFI 51-207.

18.7. Review and Recommendation. The wing commander or equivalent authority reviews and

makes a recommendation and forwards the package to the GCMCA (or to the SPCMCA if the

wing commander or equivalent authority does not exercise special court-martial convening

authority). For offenses under OSTC authority, the District Chief aligned with the GCMCA must

also coordinate on the recommendation. A template is located on the VMJD and AF/JAJM Teams

page.

18.7.1. The GCMCA and aligned District Chief, for offenses under OSTC authority, review

and make a recommendation and forwards the package to the requesting officer’s MAJCOM

or FLDCOM commander, if applicable.

18.7.2. The MAJCOM or FLDCOM commander (or deputy commander, if delegated), if

applicable, reviews and makes a recommendation and forwards the package to AF/JAJI with

an information copy of the officer’s request to HQ AFPC’s Military Transition Operations

Branch (Retirements and Separations) (HQ AFPC/DPMSSR) (HQ ARPC or NGB as

appropriate for ARC members).

18.7.3. The wing or equivalent commander or any superior reviewing commander may return

to an officer, without action, a request that is conditioned on the characterization of discharge

SecAF may direct or on a specific date of separation.

18.8. Legal Review. The required legal review is done by the servicing legal office supporting

the initial reviewing commander and should address the views of any victims on whether the

resignation in lieu of trial by court-martial should be approved. Written legal reviews by legal

offices at intermediate levels of command and District Chiefs, for offenses under OSTC authority,

are not required unless the intermediate legal office or reviewing authority non-concurs with the

required legal review or recommendation of a subordinate reviewing commander. Written

coordination indicating concurrence is required.

18.8.1. AF/JAJI reviews the entire package, writes a comprehensive legal review, and

processes the RILO package for Headquarters DAF review, including LSTC review for

offenses under OSTC authority, and action by SecAF or designee.

18.8.2. Headquarters AFPC/DP2SSR schedules the officer’s date of separation as soon as

possible upon receiving notification from AF/JAJI that a RILO request has been approved.

18.8.3. The processing of a court-martial and court-martial charges should not be delayed

solely because a RILO request may be or has been submitted, subject to paragraph 18.9.

18.9. Permission to Proceed to Trial Pending Action on a RILO Request. For offenses

committed after 24 June 2014, Article 60, UCMJ, prevents a convening authority from setting

aside the findings of court-martial even if the Secretary later accepts a RILO. In re Vance, 78 M.J.

631 (ACCA 2018).

18.9.1. For offenses under command authority, prior permission from AF/JAJI is required

before a case proceeds to trial if the officer accused has submitted a RILO on which action is

pending. For purposes of this paragraph, the start of trial is defined as the acceptance of pleas

144 DAFI51-201 24 JANUARY 2024

at or after arraignment. SJAs should consider requesting permission to proceed prior to

arraignment. The SJA for the SPCMCA decides whether to request permission to proceed. A

request for permission to proceed should include a justification for why the trial should proceed

while the RILO request is pending action, such as witness availability for the scheduled trial

date.

18.9.1.1. Permission to proceed is not required to conduct preliminary sessions pursuant

to Article 39(a)(1), (2) and (4), UCMJ, including evidentiary hearings, and other motion

practice that may expedite case processing in the interest of judicial economy, if such

sessions occur prior to acceptance of pleas.

18.9.1.2. Thirty-Day Rule. AF/JAJI will normally approve requests for permission to

proceed to trial while a RILO request is pending if the officer submitted the request more

than 30 calendar days after service of charges under R.C.M. 602. In such cases, it is

sufficient to justify the request for permission to proceed by citing the untimely submission

of the RILO request. However, additional justification should be submitted if such

justification exists.

18.9.1.2.1. AF/JAJI will normally disapprove requests for permission to proceed to

trial while a RILO request is pending if the officer submitted the request within 30

calendar days of service of charges under R.C.M. 602, unless circumstances warrant

trial while the RILO request is pending.

18.9.1.2.2. A RILO request will be processed and not stopped, delayed, returned or

rejected solely because it was submitted more than 30 calendar days after service of

charges unless submitted after arraignment.

18.9.2. For offenses under OSTC authority, STC determine whether to proceed to trial, and

the servicing OSTC District Office will coordinate this decision with AF/JAJI.

18.9.3. RILO requests pending action upon findings.

18.9.3.1. A resignation cannot be substituted for a finding of guilt. Instead, the RILO will

automatically convert to a request for sentence relief under Article 74, UCMJ.

18.9.3.2. If an officer is fully acquitted prior to action on the RILO, the RILO becomes

moot and SecAF or designee shall not act on the RILO.

18.10. Subsequent Resignation in Lieu of Trial by Court-Martial Requests. The wing

commander (or equivalent), or any superior reviewing commander, may return to an officer a

subsequent RILO request that is based on the same grounds, supported by the same evidence, or

is similarly insufficient as a previously disapproved resignation in lieu of trial by court-martial

request, with the following exceptions:

18.10.1. An officer whose RILO request has been disapproved prior to referral of charges may

resubmit the request after charges are referred to trial. A resubmitted request should be

processed expeditiously to the command level that disapproved the original request.

Additional indorsements or recommendations should not be attached unless different from

those accompanying the original request or required by changed circumstances.

18.10.2. The Show Cause Authority (as defined in DAFI 36-3211) may determine that

circumstances warrant processing the subsequent RILO request.

DAFI51-201 24 JANUARY 2024 145

18.11. Withdrawing RILO Requests. If an officer who submitted a RILO request subsequently

submits a request to withdraw it, the wing-level or equivalent SJA or designee must notify AF/JAJI

and intermediate legal offices of the request to withdraw as soon as practicable.

18.11.1. If the withdrawal notification is made to AF/JAJI prior to AF/JAJI forwarding the

RILO request for review and action by SecAF or designee, AF/JAJI will not forward the RILO

request for review. If the RILO request has not yet been submitted to AF/JAJI, the office in

possession of the RILO request suspends further processing of the RILO request.

18.11.2. If the withdrawal notification is made to AF/JAJI after AF/JAJI forwarded the RILO

request for review and action by SecAF or designee, AF/JAJI must notify reviewing agencies

that a request to withdraw has been made and to suspend further processing of the RILO

request. The request to withdraw is processed in the same manner as the RILO request and

forwarded to AF/JAJI through functional channels. See the RILO Withdrawal Checklist on

the VMJD and AF/JAJM Teams page for minimum package requirements and detailed

processing instructions. AF/JAJI will forward the withdrawal request as soon as it is received.

18.12. RILO Processing Time Management. Expeditious processing of RILOs is essential to

preventing judicial inefficiency, unnecessary trial delay, wasted resources, disruptions for victims

and witnesses, prolonged uncertainty and anxiety for the accused, and impairment of mission

accomplishment. The following measures are established for RILO processing:

18.12.1. Process a RILO request within 60 calendar days from the date the officer submits the

request to the date the officer is notified of final action on the request. The 60 days are allotted

as follows (all timelines are calendar days as opposed to duty days):

18.12.1.1. Wing-level (or equivalent) legal office processes and forwards the RILO

package to AF/JAJI with electronic copies for review and processing by legal offices at

intermediate levels of command within ten days from the date the officer submits the RILO

request.

18.12.1.2. NAF/FLDCOM-level or GCMCA (or equivalent) legal office processes and

forwards the GCMCA’s recommendation within seven days, in accordance with the RILO

Checklist on the VMJD and AF/JAJM Teams page, after the wing-level legal office

provides the electronic copy. For offenses under OSTC authority, the District Chief

aligned with the GCMCA provides a recommendation. See paragraph 18.8.

18.12.1.3. GCMCA legal office processes and forwards the MAJCOM or FLDCOM

commander’s recommendation, in accordance with the RILO Checklist on the VMJD and

AF/JAJM Teams page, within seven days after the NAF-level or equivalent legal office (if

applicable) provides an electronic copy of the GCMCA’s recommendation.

18.12.1.4. AF/JAJI and AF/JAJ process and forward the RILO package to AF/JA within

seven days after receipt of the complete package, including required recommendations by

reviewing commanders and legal reviews. For offenses under OSTC authority, AF/JAJI

will coordinate with Headquarters OSTC for LSTC input.

18.12.1.5. AF/JA processes and forwards the RILO package for Headquarters DAF

coordination within five days after receipt of the package from AF/JAJ.

18.12.1.6. This leaves 24 days for Headquarters DAF coordination, SAF/MRBP

recommendation, and SAF/MRB action or recommendation followed by SecAF action.

146 DAFI51-201 24 JANUARY 2024

18.12.2. Failure to meet these time measures at any stage of resignation in lieu of trial by

court-martial processing does not confer any rights or benefits on the accused.

18.13. Withdrawal and Dismissal of Charges. If a RILO request is pending action and the

disposition authority withdraws and dismisses all charges, the legal office must notify AF/JAJI.

The RILO request becomes void on the date the charges are dismissed. If charges are later

preferred anew and the officer submits another resignation in lieu of trial by court-martial request,

the process also begins anew.

18.14. Retirement in Lieu of Trial by Court-Martial (RetILO). If an officer or enlisted

member submits a RetILO request, the wing/garrison-level (or equivalent) SJA or designee

immediately contacts AF/JAJI for further guidance in cases involving officers, and AFPC/JA in

cases involving enlisted members.

18.14.1. In order to be eligible to request a RetILO, the member must be otherwise eligible to

retire. This includes either meeting 20 years of TAFMS (and ten years of TAFMS to retire as

an officer if requesting to retire as an officer) or equivalent ARC requirements for retirement

as of the date the member submits the RetILO. DAFI 36-3203. The member must request,

and use the process for, the type of retirement he/she is eligible for: active-duty retirement or

transfer to the Retired Reserve for reserve retired pay. Note: That the requesting member is

pending trial by court-martial and trial has not yet begun is a retirement restriction that may be

waived by SecAF or delegee in the best interest of the DAF. The RetILO request is considered

both a request to RetILO and a request for waiver of the retirement restriction of a pending

trial by court-martial.

18.14.2. If the member is not retirement eligible, the RetILO may be denied at the local level.

If the member is retirement eligible, generally, a RetILO request is processed in the same

manner as a RILO request. See RetILO Checklist on the VMJD and AF/JAJM Teams page

for package and processing requirements.

DAFI51-201 24 JANUARY 2024 147

Chapter 19

TRIAL MATTERS

Section 19A—Rules of Court-Martial Practice (R.C.M. 108)

19.1. Authority to Prescribe Rules of Court-Martial Practice. TJAG designates the Chief

Trial Judge as the official responsible for making and disseminating rules for the conduct of DAF

court-martial proceedings, including rules pertaining to courtroom security. AF/JAT publishes the

Uniform Rules of Practice Before Department of the Air Force Courts-Martial.

Section 19B—Arraignment and Pleas

19.2. Arraignment and Pleas (Article 39(a), UCMJ). When an Article 39(a), UCMJ, session is

conducted by the military judge, the arraignment may be held and the plea of the accused may be

accepted at that time by the military judge. In addition, the military judge may enter findings of

guilty on an accepted plea of guilty at that time.

Section 19C—Trial by Members

19.3. Randomization and Assembly. For referral occurring on or after 27 December 2023,

follow the procedures described in paragraph 14.2.3.

19.4. Impanelment. There is a fixed-panel requirement for all cases. Capital GCMs require

impanelment of 12 members and any alternates required by the convening authority; non-capital

GCMs require impanelment of eight members and any alternates required by the convening

authority; and SPCMs require impanelment of four members and any alternates required by the

convening authority. The composition of a non-capital GCM can be reduced to no fewer than six

members after impanelment as a result of challenges or excusals. See R.C.M. 501. Under the

impanelment process prescribed in R.C.M. 912 and 912A, it is possible that a panel for an enlisted

accused will be comprised entirely of enlisted members.

Section 19D—Trial by Military Judge Alone at the Request of the Accused

19.5. Requesting Trial by Military Judge Alone (R.C.M. 903). In the absence of a plea

agreement term that the accused be tried by military judge alone, to request a trial by military judge

alone, the accused should use the DD Form 1722, Request for Trial Before Military Judge Alone.

If the DD Form 1722 is used, the military judge admits it as an appellate exhibit. See DAFMAN

51-203.

Section 19E—Audiovisual and Teleconferencing Technology

19.6. Use of Audiovisual and Teleconferencing Technology. The use of audiovisual and

teleconferencing technology is authorized by the SecAF to the extent and under the conditions

allowed for in R.C.M. 804, 914A, and 914B.

148 DAFI51-201 24 JANUARY 2024

Section 19F—Classified, Confidential and Privileged Matters

19.7. General Provision. See M.R.E. 501-514 for a general discussion of evidentiary privileges

that apply in the military justice system. This section is intended only to clarify application of

certain rules and discuss privileges or confidential matters not included in the rules of evidence.

See Section 8C for additional discussion of confidential matters outside of trial proceedings.

19.8. Classified or Controlled Information (M.R.E. 505). Special procedures and requirements

apply in cases where classified information may be used as evidence. In all such cases, AF/JAJM

should be contacted as soon as possible for guidance on how to proceed.

19.8.1. Declassification. At the earliest stage practicable, government counsel should

coordinate with the original classification authority to request declassification of potential

evidence as permitted by law, policy, or regulation. Requests should be narrowly tailored and

limit declassification as to the minimum amount necessary to permit any military justice

function.

19.8.2. Asserting the M.R.E. 505 Privilege. Only SecAF, the Chairman of the Joint Chiefs of

Staff or the Chairman’s delegee, or the head of a non-DAF government agency for documents

owned by agencies outside the DAF, may claim the privilege from disclosure of classified

information. See M.R.E. 505(h)(1)(A). A person who may claim the privilege may authorize

a witness or trial counsel to claim the privilege on the person’s behalf. Requests for assertion

of the privilege are forwarded through command channels to AF/JAJI.

19.8.3. Classified Material in the Record. When a ROT contains classified material, the SJA

or designee takes appropriate steps to declassify the material when proper. If it is impossible

to declassify the material, the record must be classified. In determining whether a particular

ROT must be classified because of its content, consideration should be given to DoDM

5200.01V1_AFMAN16-1404V1, Information Security Program: Overview, Classification,

and Declassification and DoDM 5200.01V2_AFMAN16-1404V2, DoD Information Security

Program: Marking of Information. DAFMAN 51-203 provides additional guidance.

19.8.4. Controlled Material in the Record. When a ROT contains controlled material (e.g.,

promotion testing materials, professional military education test materials, and career

development course exams), the materials should be safeguarded to prevent further disclosure

or unauthorized access. DAFMAN 51-203 provides additional guidance.

19.9. Government Information Other than Classified Information (M.R.E. 506).

19.9.1. Asserting the M.R.E. 506 Privilege. Only SecAF, the Chairman of the Joint Chiefs of

Staff or the Chairman’s delegee, or the head of a government agency in the case of

documents/information owned by agencies outside the DAF, may claim the privilege from

disclosure of government information other than classified information. The privilege for

records and information of The Inspector General (IG) may be claimed by the immediate

superior of the inspector general officer responsible for creation of the records or information,

The Inspector General, or any other superior authority. See M.R.E. 506(d). A person who

may claim the privilege may authorize a witness or trial counsel to claim the privilege on their

behalf. Requests for assertion of the privilege are forwarded through command channels to

AF/JAJI.

DAFI51-201 24 JANUARY 2024 149

19.9.2. Requests for assertion of the safety privilege should be forwarded through command

channels and the Air Force Safety Center Office of the SJA (AFSC/JA) to AF/JAJI.

19.10. Lawyer-Client Privilege with the Air Force or Space Force as the Client. If waiver of

any privilege on behalf of the Air Force or Space Force is contemplated, contact AF/JAJI.

19.11. Psychotherapist-Patient Privilege (M.R.E. 513).

19.11.1. The M.R.E. 513 privilege applies to confidential communications between a military

member and a psychotherapist. Diagnoses and treatments contained within medical records

are not themselves uniformly privileged under M.R.E. 513. See United States v. Mellette, 82

M.J. 374 (C.A.A.F. 2022).

19.11.2. The M.R.E. 513 privilege does not apply if access to the confidential communications

between a military member and a psychotherapist is sought for a non-UCMJ-related purpose

except for any proceeding as required under equivalent or otherwise applicable state or federal

law. In these situations, confidential communications should be disclosed to persons or

agencies with a proper and legitimate need for the information and authorized by law or

regulation to receive them. When UCMJ proceedings are pending against the member whose

confidential communications are being sought for a non-UCMJ-related purpose, no privilege

applies for the non-UCMJ-related purpose.

19.11.3. Disputes between a requestor and a psychotherapist or patient may arise over the

disclosure of confidential communications. In such circumstances, release of mental health

records, like all protected health information, is made in accordance with DoDM 6025.18,

Implementation of the Health Insurance Portability and Accountability Act (HIPAA) Privacy

Rule in DOD Health Care Programs, AFI 41-200, Health Insurance Portability and

Accountability Act (HIPAA), and other applicable law. The SJA in possession of any crime

victim’s mental health records related to a UCMJ case guards against improper disclosure of

inadmissible evidence to investigators and trial counsel that may disqualify them from

participating in a case.

19.11.4. See paragraph 8.10 for guidance on the Limited Privilege Suicide Prevention

Program, if applicable.

Section 19G—Pre-sentencing Matters (R.C.M. 1001)

19.12. Personnel Records of the Accused. “Personnel records of the accused,” as referenced in

R.C.M. 1001, includes those records made or maintained in accordance with DAF directives that

reflect the past military efficiency, conduct, performance, and history of the accused, as well as

any evidence of disciplinary actions, including punishment under Article 15, UCMJ, and previous

court-martial convictions.

19.12.1. NJP. Records of NJP under Article 15, UCMJ, from any file in which the record is

properly maintained by regulation, may be admitted.

19.12.2. Performance Reports. Trial counsel offers all enlisted and/or officer performance

reports maintained according to departmental directives, as evidence of the character of the

accused’s prior service. See R.C.M. 1001(b)(2); United States v. Wingart, 27 M.J. 128

(C.M.A. 1988).

150 DAFI51-201 24 JANUARY 2024

19.12.2.1. USAFA cadets do not have official performance reports. Counsel should

consult with a USAFA cadet’s chain of command to obtain equivalent USAFA-specific

training records that record a USAFA cadet’s performance.

19.12.3. Previous Convictions. The DD Form 493, Extract of Military Records of Previous

Convictions, may be used to introduce evidence of an accused’s previous conviction.

Punishment at a SCM after review has been completed pursuant to Article 64(a), UCMJ, is

admissible as personal data of the accused, not as a prior conviction, under R.C.M. 1001(b)(2).

19.13.

Intentional Selection of a Victim. Trial counsel may present evidence in aggravation that

the accused intentionally selected a victim or any property as the object of the offense because of

the actual or perceived race, color, religion, national origin, ethnicity, sex (including pregnancy),

gender (including gender identity), disability or sexual orientation of any person. See R.C.M.

1001(b)(4).

19.14. Appeals by the United States from an Adverse Ruling by a Military Judge (R.C.M.

908).

19.14.1. For offenses under command authority, trial counsel may file a notice of appeal by

the United States under Article 62, UCMJ, and R.C.M. 908, only after consultation with

AF/JAJG. The SJA decides whether to file such notice of appeal with the convening

authority’s concurrence.

19.14.2. For offenses under OSTC authority, trial counsel may file a notice of appeal only

after consultation with AF/JAJG and with the concurrence of the detailed STC.

19.14.3. After filing a notice of appeal conforming to the requirements of R.C.M. 908(b) with

the military judge, trial counsel sends notice to AF/JAJG within 20 days, requesting that office

file the appeal with AFCCA. In the request, trial counsel will identify the ruling or order to be

appealed and include the following:

19.14.3.1. A copy of the charges and specifications;

19.14.3.2. An original and two copies of the certified verbatim record of the applicable

proceedings, or, if not available, a summary of the evidence and facts;

19.14.3.3. Trial counsel’s certification that the appeal is not taken to delay the case;

19.14.3.4. Trial counsel’s certification that, if the order or ruling excludes evidence, the

excluded evidence is substantial proof of a fact material in the proceeding; and

19.14.3.5. A memorandum opinion on the law applicable to the issues appealed, including

an explanation why the issues appealed are significant enough to require appeal by the

United States.

19.14.4. For offenses under command authority, AF/JAJG decides whether to file the appeal

with AFCCA, and notifies the trial counsel, SJA, and AF/JAJM Appellate Records Branch.

19.14.5. For offenses under OSTC authority, the LSTC makes the decision to file the appeal

with AFCCA. The LSTC, or designee, will coordinate this decision with AF/JAJG. If an

appeal is filed, AF/JAJG will litigate those appeals on behalf of the United States and will be

responsible for the substance and content of submissions to the appellate courts.

DAFI51-201 24 JANUARY 2024 151

19.15. Extraordinary Writs by TC or VC. A petition for extraordinary relief by the prosecution

or VC in a court-martial is a rare course of action. In the event a servicing legal office receives or

intends to file an extraordinary writ, contact AF/JAJG for guidance.

Section 19H—Sentencing

19.16. Applicable Sentencing Rules. Only one sentencing system applies in a court-martial. If

convicted of any offense committed on or before 27 December 2023, the accused shall be

sentenced in accordance with the R.C.M. in effect prior to 28 December 2023. If any referred

offenses occurred prior to 1 January 2019, the military judge shall inquire into the accused’s

election of sentencing rules after the announcement of findings. (T-0) If convicted of only

offenses committed after 27 December 2023, the accused shall be sentenced in accordance with

R.C.M. 1002(a)(2). (T-0)

19.17. Plea Agreements and Sentencing Rules. If any offense was committed prior to 1 January

2019, the accused can opt-in to MJA16 sentencing rules for all offenses. This includes opting into

the MJA16 plea agreement rules to cover all of the offenses. In such cases, if the accused does not

opt in to MJA16 sentencing rules in a straddling case, then the parties may not enter into a plea

agreement under Article 53a, UCMJ. Note: If all offenses occurred before 1 January 2019, then

the accused may not opt-in to the MJA16 plea agreement framework regardless of when the case

is referred. See Section 17B for additional sentencing considerations related to pretrial agreements

and plea agreements.

19.18. Sentencing by Members. Any sentence by military members will be a single, unitary

sentence for all offenses of which the accused was found guilty in that court-martial. (T-0)

19.19. Sentencing by Military Judge Alone.

19.19.1. Segmented Sentencing. Military judges assign a separate term of confinement, if

any, and fine, if any, for each specification of which the accused is found guilty. If multiple

terms of confinement exist, the military judge determines if the terms run concurrently or

consecutively. See R.C.M. 1002(b)(1).

19.19.2. Default Military Judge Sentencing. For cases applying MJA16 sentencing rules, if

an accused elects members for findings but does not affirmatively elect members for

sentencing, the military judge will sentence by default. See Article 53(b)(1)(B), UCMJ.

19.20. Announcement of the Sentence. The sentence, whether determined by military judge or

members, is announced by the military judge.

19.21. Completion of the AF Form 304, Request for Appellate Defense Counsel. In all GCMs

or SPCMs in which there was a finding of guilty, the accused must complete an AF Form 304. If

not accomplished as part of the court-martial proceeding, an AF Form 304 must be completed as

part of the immediate post-trial paperwork. See paragraph 24.1. If the member declines appellate

representation, see paragraph 24.3.

19.22. Recommendation for Suspension of Sentence. A military judge may make a

recommendation that all or part of a sentence be suspended. R.C.M. 1109(f). The recommendation

must be included, along with a statement explaining the recommendation and a specified time

period for the recommended suspension, on the STR. If the military judge makes this

recommendation, there is no requirement that it be announced on the record.

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Section 19I—Waiver of Appellate Review

19.23. Waiver of Appellate Review (Article 61, UCMJ; R.C.M. 1115).

19.23.1. If an accused wishes to waive Article 66, UCMJ, appellate review, including the right

to a direct appeal under Article 66(b)(1)(A), follow the procedures outlined in R.C.M. 1115.

The request to waive must be filed after the EoJ. The waiver should be accomplished on a DD

Form 2330, Waiver/Withdrawal of Appellate Rights in General and Special Courts-Martial

Subject to Review by a Court of Criminal Appeals. Note: Ensure use of the correct version of

DD Form 2330, which is dictated by referral date. See Appendix 13, MCM.

19.23.2. A valid waiver of appellate review bars review by AFCCA. See Article 61(d),

UCMJ. It does not prevent later submission of an Article 69(d), UCMJ application.

19.23.3. In the event of waiver, the servicing legal office must forward the original ROT and

attachments to the GCMCA SJA for an Article 65(d), UCMJ, review conducted in accordance

with R.C.M. 1201. See paragraph 24.3 and paragraph 24.16.

Section 19J—Contempt Proceedings

19.24. General Overview of Contempt Proceedings. Any person who uses any menacing word,

sign or gesture in the presence of the judicial officer during the proceeding; disturbs the proceeding

by any riot or disorder; or willfully disobeys a lawful writ, process, order, rule, decree, or command

issued with respect to the proceeding may be punished for contempt. See Article 48(a), UCMJ.

19.25. Punishment Authority. The following judicial officers have the authority to punish a

person for contempt: an appellate judge of the CAAF or AFCCA, military trial judges detailed to

a court-martial or any other proceeding under the UCMJ, or the president of a court of inquiry.

See Article 48(a)(2), UCMJ.

19.26. Contempt Punishment. The maximum punishment for contempt is confinement for 30

days, a fine of $1,000 or both. Article 48(b), UCMJ. A sentence to confinement begins when

announced by the judicial officer unless the person held in contempt notifies the judicial officer of

an intent to file an appeal, and the judicial officer, in the exercise of discretion, defers the sentence

pending the decision of the reviewing authority. See R.C.M. 809(d) and 809(e)(4).

19.27. Process. The process for imposition of punishment for contempt varies based on whether

it was directly witnessed by the judicial officer authorized to impose punishment. See R.C.M.

809(b)-(c). To punish the alleged offender, the contempt must be proven beyond a reasonable

doubt. (T-0) See R.C.M. 809(b)(2).

19.28. Record. A record of the contempt proceedings must be included as part of the record.

(T-0) If the offender was held in contempt, a separate record of the contempt proceedings must

be prepared and forwarded for review. Contact AF/JAJM for guidance with any record of

contempt proceedings.

DAFI51-201 24 JANUARY 2024 153

Chapter 20

STR THROUGH EOJ (POST-TRIAL PROCESS)

Section 20A—General Post-Trial Overview

20.1. Applicability. This chapter applies only to GCMs and SPCMs in which charges were

referred on or after 1 January 2019. For SCMs, see Chapter 23. For cases referred before 1

January 2019, contact AF/JAJM for assistance.

20.2. Definition of “Victim” for Post-Trial. Practitioners should be cognizant of the changing

definition of victim throughout the post-trial process. In certain circumstances, “victim” refers to

any victim named in a specification, regardless of whether the specification resulted in a

conviction. In other circumstances, “victim” refers only to named victims whose specifications

resulted in a conviction.

20.2.1. Any victim, regardless of whether that victim’s allegation resulted in a conviction,

receives the STR and the EoJ. R.C.M. 1101(d), 1111(f).

20.2.2. Any victim who has suffered direct physical, emotional or pecuniary harm as a result

of the commission of an offense for which the accused was found guilty receives an

opportunity to submit matters to the convening authority under R.C.M. 1106A(b)(2).

20.2.3. A victim named in a specification who testified during the proceeding automatically

receives a copy of the certified ROT, regardless of the findings. A victim named in a

specification who did not testify, regardless of whether their allegation resulted in a conviction,

may request a copy of the certified ROT. R.C.M. 1112(e).

Section 20B—STR

20.3. Requirement for a STR and Exceptions to Requirement. Following final adjournment

in a GCM or SPCM, the military judge must ensure an STR is prepared and signed by the military

judge. (T-0) However, in cases where the accused was arraigned and the trial resulted in a full

acquittal, mistrial, dismissal of charges, or is otherwise terminated without findings, there is no

requirement for a STR. In such cases, complete and distribute an EoJ as outlined in Section 20I.

Do not complete a STR in SCMs. See Chapter 23 for further guidance in SCMs.

20.4. Mandatory Contents of STR. The STR must contain the content required under R.C.M.

1101. (T-0) Note: In cases where an expurgated STR is required, both an expurgated and

unexpurgated STR must be prepared and signed by the military judge. See paragraph 20.8 for

discussion of expurgated and unexpurgated Statements of Trial Results. Trial counsel and military

judges must follow the format and checklists provided on the VMJD and AF/JAJM Teams page.

20.5. Military Judge Recommendation for Suspension of Sentence. See paragraph 19.22 for

guidance.

20.6. Requirement for First Indorsement to STR. Prior to distribution, the SJA must sign and

attach to the STR a first indorsement, indicating whether the following criteria are met: DNA

processing is required; the accused has been convicted of a crime of domestic violence under 18

U.S.C. 922(g)(9); criminal record history indexing is required in accordance with DoDI 5505.11,

Fingerprint Reporting Requirements; firearm prohibitions are triggered; and/or sex offender

154 DAFI51-201 24 JANUARY 2024

notification is required. See Chapter 29 and AFMAN 71-102 for further information. Templates

are available on the VMJD and AF/JAJM Teams page. The first indorsement is distributed with

the STR. Note: This requirement is not delegable. Only the SJA or other judge advocate acting as

the SJA may sign the first indorsement. In the latter case, the person signing the first indorsement

indicates “Acting as the Staff Judge Advocate” in the signature block.

20.7. Distributing the STR. The SJA distributes the STR and first indorsement to those

recipients identified in the STR/EoJ distribution list on the VMJD and AF/JAJM Teams page.

20.8. Unexpurgated and Expurgated Statements of Trial Results.

20.8.1. An expurgated copy of the STR is required in every case that otherwise requires a STR

when the contents of a STR includes classified or other matters implicating privacy interests,

as annotated in the paragraphs below. In such cases, legal offices must prepare both an

expurgated and unexpurgated copy. The version with the content replaced is called the

expurgated STR. Only certain parties receive the unexpurgated version. See paragraph

20.8.2. When making expurgated copies, the initials should match the way the name is written

on the charge sheet (e.g., “Jane Doe” becomes “J.D.” and “Jane B. Doe” or “Jane Belinda Doe”

becomes “J.B.D.”) Make the following substitutions in the expurgated STR:

20.8.1.1. Names of individuals who were children under 16 years of age at the time of the

offense are replaced with initials, regardless of the final outcome of the case (in both the

expurgated and unexpurgated STR). Note: If offenses only contain names of victims listed

in this paragraph, only an expurgated copy of the STR is required;

20.8.1.2. Names of victims who were under 18 years of age at the time of the offense are

replaced with initials when the charged offense is a child pornography offense, regardless

of the final outcome of the case (in both the expurgated and unexpurgated STR);

20.8.1.3. Names of sex offense victims are replaced with initials, regardless of the final

outcome of the case. Note: For purposes of expurgation, a “sex offense” is any offense

which requires sex offender notification in accordance with DoDI 1325.07, Administration

of Military Correctional Facilities and Clemency and Parole Authority.

20.8.1.4. Names of victims listed in paragraphs 20.8.1.1-20.8.1.3 when listed in other

offenses on the charge sheet should be replaced with initials, regardless of the final

outcome of the case (e.g., if the same victim is listed as the victim of an Article 128, UCMJ,

offense and an Article 120, UCMJ, offense, the victim’s name should be expurgated in

both offenses such that the name cannot be ascertained from the Article 128, UCMJ,

charge); and

20.8.1.5. Classified information is replaced with asterisks.

20.8.2. Distribution.

20.8.2.1. Unexpurgated Statements of Trial Results—Classified Cases. If an

unexpurgated STR contains classified information, ensure the STR is properly marked with

classified markings in accordance with the classification guide; then do not distribute it to

any party. Provide the unexpurgated classified STR to AF/JAJM as part of the original

ROT and maintain an unexpurgated classified copy in the legal office’s copy of the ROT

in a container authorized to store classified information. For more information on the

storage and transfer of classified information, see DAFMAN 51-203.

DAFI51-201 24 JANUARY 2024 155

20.8.2.2. Unexpurgated STR—Unclassified Cases. For cases not involving classified

information, distribute the unexpurgated STR to only the following parties within three

duty days of completion of the STR:

20.8.2.2.1. AF/JAJM, (send as part of the original ROT, need not be within three duty

days);

20.8.2.2.2. The confinement officer, noncommissioned officer, or commanding officer

responsible for the confinement facility where the accused is held;

20.8.2.2.3. DAF-CJIC;

20.8.2.2.4. AFSFC/FC; and

20.8.2.2.5. AFSFC/FCV.

20.8.2.3. Expurgated STR. All other individuals or organizations required to receive a

STR are provided expurgated copies within five duty days of completion of the STR.

20.8.2.4. The full distribution list should be used on both versions of the STR. To avoid

confusion between the recipients, on both versions mark those parties who are to receive

the unexpurgated copies with asterisks, and below the distribution list, add “*Recipients of

unexpurgated STR.”

20.8.2.5. Refer to the STR/EOJ Distribution Checklist on the VMJD and the AF/JAJM

Teams page for the most current guidance on distribution.

Section 20C—Accused’s Submission of Matters

20.9. General Requirement. The accused may submit written post-sentencing matters for the

convening authority’s consideration in accordance with R.C.M. 1106. Submissions may not

include matters that relate to the character of a victim unless such matters were admitted as

evidence at trial. (T-0) See R.C.M. 1106.

20.9.1. Matters should be submitted to the SJA, who causes those matters to be served on the

convening authority.

20.9.2. If a victim submits post-sentencing matters under R.C.M. 1106A and Section 20D,

trial counsel shall serve those matters on the accused and provide a copy to defense counsel.

(T-0) The copy shall be provided within two duty days to allow the accused an opportunity to

provide a written rebuttal. A template notification to the accused of the opportunity to rebut

the victim’s submission of matters is available on VMJD and the AF/JAJM Teams page.

20.10. Time Periods for Submissions.

20.10.1. In a GCM or SPCM, the accused may submit matters within ten calendar days after

the sentence is announced.

20.10.2. If a victim submits post-sentencing matters under R.C.M. 1106A, the accused has

five calendar days from receipt of those matters to submit matters in rebuttal. See R.C.M.

1106(d)(3). A sample notice to the accused of the opportunity to submit rebuttal matters is

located on the VMJD and AF/JAJM Teams page. The day on which the accused is served

victim’s matters does not count against the five-day time period.

156 DAFI51-201 24 JANUARY 2024

20.10.3. The convening authority may extend the time periods for submission up to an

additional 20 calendar days if the accused shows good cause for the extension. Extension

requests must be submitted by the accused or defense counsel, in writing, to the trial counsel

who will then provide it to the convening authority.

20.10.4. Notification to Accused. Immediately following the announcement of the sentence,

the SJA or trial counsel notifies the accused of the right to submit matters under R.C.M. 1106.

A template letter is provided on the VMJD and AF/JAJM Teams page. At a minimum, the

notification letter must advise the accused:

20.10.4.1. The process for submitting matters to the convening authority;

20.10.4.2. That the convening authority will consider timely written matters submitted by

the accused before deciding whether to grant the accused post-sentencing relief;

20.10.4.3. That the convening authority may not consider character evidence related to the

victim unless such evidence was admitted at trial;

20.10.4.4. The date by which matters must be submitted, and the process for requesting

additional time from the convening authority;

20.10.4.5. That any matters submitted by the victim under R.C.M. 1106A and Section 20D

will be provided to the accused for rebuttal;

20.10.4.6. That a failure to submit matters by the prescribed time constitutes a waiver;

20.10.4.7. That submission of any matters under R.C.M. 1106 shall be deemed a waiver

of the right to submit additional matters unless the right to submit additional matters within

the prescribed time limit is expressly reserved in writing;

20.10.4.8. That if the accused waives the opportunity to submit matters, the waiver may

not be revoked; and

20.10.4.9. That the accused is entitled to request a copy of the recording and copy of, or

access to, the exhibits to assist in the preparation of their matters. Note: There is no audio

recording in a summary court-martial.

20.11. Access to Court-Martial Recordings and Evidence. To facilitate preparation of matters,

the defense counsel or accused may request a copy of the court-martial recording and copies of, or

access to, the exhibits. When preparing these records for release, the government should be

cognizant that delays in providing the requested information may serve as grounds for the defense

to request a delay in the submission of matters.

20.11.1. The government shall not release the recording under R.C.M. 1106 unless the

government receives a written request from the defense. Upon receiving such a request, trial

counsel is only authorized to release the recording of open court-martial sessions. Trial counsel

must not release recordings of closed sessions, classified material, or any other matters ordered

sealed unless otherwise authorized by a military judge, to any person or party (including

defense counsel or VC). (T-0) Trial counsel is not required to further redact the recordings

(e.g., for personally identifying information), but shall not provide such recordings directly to

the accused, only to defense counsel. Defense counsel must maintain the recording to prevent

the unauthorized release of third-party personal information to any other party, including to

the accused.

DAFI51-201 24 JANUARY 2024 157

20.11.2. The government must provide access to exhibits upon written request from the

defense but should not normally provide copies of exhibits. Note: See paragraph 20.11.1 for

discussion on sealed exhibits.

20.11.3. In the event an accused is not represented by either military or civilian defense

counsel, contact AF/JAJM for guidance.

20.12. Application to Defer Sentence and Waive Required Forfeitures. Before the convening

authority makes a decision as to whether to grant relief in a case, an accused may submit an

application to the convening authority, through the servicing SJA, to defer any adjudged or

mandatory forfeiture of pay or allowances, reduction in grade, or service of a sentence to

confinement. See Articles 57(b) and 58b(a)(1), UCMJ. If an accused has dependents, an

application may also be submitted to the convening authority, through the servicing SJA, to waive

any mandatory forfeiture of pay and allowances under Article 58b(b), UCMJ, for the benefit of

the accused’s dependents. Applications for deferral or waiver may be submitted through the

servicing SJA at the same time the accused submits post-sentencing matters, or any time after the

sentence is announced and before the convening authority’s decision on action. The convening

authority's decision on an accused’s application for deferral should be in writing and explain the

reasons for any denial. The convening authority may not defer any portion of a sentence without

a request from the accused, except for a sentence to confinement. See Article 57(b), UCMJ, and

R.C.M. 1103. The convening authority may waive automatic forfeitures of pay and allowances

without a request from the accused. Note: Automatic and adjudged forfeitures go into effect

automatically 14 days after the announcement of the sentence. See Section 20F for additional

guidance on deferring and waiving forfeitures of pay and allowances.

20.13. Return to Duty. The return to duty system may offer selected enlisted personnel with

exceptional potential the opportunity for relief concerning the characterization of their discharges

and possible return to duty. See DAFMAN 31-115, Vol 1, and Attachment 18 of that instruction

for additional guidance on applications and requirements for applications for return to duty.

Section 20D—Victim’s Submission of Matters

20.14. Generally. In any case resulting in a guilty finding for an offense that involved a victim

who has suffered direct physical, emotional or pecuniary harm, the SJA must ensure the victim is

provided an opportunity to submit written matters for consideration by the convening authority

before the convening authority considers taking action. (T-0) See R.C.M. 1106A.

20.14.1. Submissions may not include matters that relate to the character of the accused unless

such matters were admitted as evidence at trial. (T-0)

20.14.2. Matters should be submitted to the SJA, who causes those matters to be served on the

convening authority and the accused. The accused has an opportunity to rebut statements made

by the victim in accordance with R.C.M. 1106(d)(3).

20.15. Time Periods for Submissions.

20.15.1. In a GCM or SPCM, the victim must submit any matters within ten calendar days

after the sentence is announced. (T-0)

20.15.2. The convening authority may extend the time period for submissions up to an

additional 20 calendar days, if the victim shows good cause for the extension. Extension

158 DAFI51-201 24 JANUARY 2024

requests must be in writing and submitted by the victim or VC to the trial counsel, who will

provide it to the convening authority.

20.16. Notification. Immediately following trial, the SJA or trial counsel must provide a letter to

eligible victims as defined in paragraph 20.14, if any, notifying them of their right to submit

matters under R.C.M. 1106A. A template letter notifying a victim of the right to submit a Victim

Impact Statement is provided on the VMJD and AF/JAJM Teams page. At a minimum, the

notification letter must advise the victim:

20.16.1. That the convening authority will consider any timely written matters submitted by

the victim before deciding whether to grant the accused post-sentencing relief;

20.16.2. That the convening authority may not consider character evidence related to the

accused unless such evidence was admitted at trial;

20.16.3. That the convening authority may not consider character evidence related to the crime

victim unless such evidence was admitted at trial;

20.16.4. That the convening authority may not consider evidence of offenses of which the

accused was not convicted at trial;

20.16.5. The process for submitting matters to the convening authority;

20.16.6. That any matters submitted by the victim will be provided to the accused and defense

counsel for rebuttal by the accused;

20.16.7. The date by which matters must be submitted, and the process for requesting

additional time from the convening authority;

20.16.8. That the victim is entitled to only one opportunity to submit matters, and that a failure

to submit matters by the prescribed time constitutes a waiver;

20.16.9. That if the victim waives the opportunity to submit matters the waiver may not be

revoked; and

20.16.10. That the victim is entitled to request a copy of the recording and copies of, or access

to, the exhibits to assist in the preparation of matters.

20.17. Access to Court-Martial Recordings and Evidence. To facilitate preparation of matters,

the VC or victim may request a copy of the court-martial recording and copies of, or access to, the

exhibits.

20.17.1. The government may release the recording under R.C.M. 1106A only upon receiving

a written request from the eligible victim or VC. Upon receiving such a request, trial counsel

is only authorized to release the recordings of open court-martial sessions. Trial counsel may

not release recordings of closed sessions, classified material, or any other matters ordered

sealed unless otherwise authorized by a military judge, to any other party or person (including

defense counsel or VC). Trial counsel is not normally required to further redact the recording

(e.g., for personally identifying information) except as indicated below. However, to ensure

compliance with the Privacy Act, the government should release the recording in the following

manner:

20.17.1.1. If the victim is represented by a VC, trial counsel should provide the recording

to the victim’s VC as an official use disclosure under the Privacy Act. See DoD 5400.11-

DAFI51-201 24 JANUARY 2024 159

R, Department of Defense Privacy Program. The VC must maintain the recording in

accordance with the Privacy Act. (T-0) If the victim is represented by a civilian VC, trial

counsel may provide the recording in accordance with the Privacy Act. See paragraph

8.5.5.

20.17.1.2. An unredacted recording (e.g., a recording of all open sessions that has not been

redacted for PII) may be provided directly to the victim only if the victim is not represented

by counsel. Note: Such recording may not include any closed, sealed or classified sessions

absent an order from the military judge. See paragraph 20.17.1. The recording may be

provided to an unrepresented victim as a routine use under the Privacy Act system of

records notice for Air Force courts-martial records. See SORN DoD 0006.

20.17.2. The government must provide access to exhibits upon written request from the VC,

if the victim is represented, or to the victim if the victim is unrepresented, but should not

normally provide copies of exhibits. If the government chooses to provide copies of exhibits,

third-party personal information must first be redacted. Note: Victims should not be given

access to or copies of sealed exhibits.

Section 20E—Convening Authority Decision on Action

20.18. Applicable Version of Article 60, UCMJ. The convening authority may grant clemency

on a case depending on what version of Article 60, UCMJ, applies. To determine the applicable

version of Article 60, UCMJ, look at the date the earliest offense resulting in a conviction was

committed. The version of Article 60, UCMJ, in effect on that date applies to the entire case.

20.18.1. In any court-martial where an accused is found guilty of at least one specification

involving an offense that was committed before 1 January 2019, a convening authority errs if

he or she fails to take one of the following post-trial actions: approve, disapprove, commute,

or suspend the sentence of the court-martial in whole or in part.

20.19. Convening Authority Discretion. The convening authority may grant post-sentencing

relief on the findings and/or sentence of a court-martial in accordance with the applicable versions

of Articles 60, 60a, and 60b, UCMJ, and their associated R.C.M.s.

20.19.1. When deciding whether to grant relief under these rules, the convening authority has

two options: act on the findings and/or sentence or not act on the findings and/or sentence. A

decision to act, or take action, is tantamount to granting relief, whereas a decision not to act,

or to take no action, is tantamount to granting no relief. Granting post-sentencing relief (i.e.,

a decision to act) is a matter of command prerogative entirely within the discretion of the

convening authority, as limited by the applicable version of Article 60, UCMJ. See paragraph

20.18.

20.19.1.1. The process of documenting the convening authority’s decision on whether or

not to grant relief in general and special courts-martial is reflected in the convening

authority’s decision on action memorandum (CADAM). For summary courts-martial,

refer to paragraph 23.22. A template for the CADAM is located on the VMJD and

AF/JAJM Teams page. The template includes language to address a potentially ambiguous

development in Article 60, UCMJ with respect to the word, “action.” Prior to MJA16, a

convening authority was required to take post-trial “action” in one of the following ways:

approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in

160 DAFI51-201 24 JANUARY 2024

part. Following MJA16, new Articles 60a and 60b, UCMJ, use the words, “act” and

“action” differently. These terms mean granting any form of relief.

20.19.1.2. Where an accused is found guilty of at least one specification involving an

offense that was committed before 1 January 2019, the convening authority must take

action in one of the following ways: approve, disapprove, commute, or suspend the

sentence of the court-martial in whole or in part. For cases where an accused is found

guilty only of offenses committed after 1 January 2019, the convening authority may

choose to take no action—in which case no relief will be granted—or the convening

authority may choose to act—in which case some relief will be granted in the form that the

convening authority determines. See paragraph 20.25 and United States v. Brubaker-

Escobar, 81 M.J. 471 (C.A.A.F. 2021).

20.19.1.3. Drafting a reprimand that was announced as part of the sentence does not

constitute action. Thus, even in a case where the convening authority does not take action

(i.e., does not grant relief), the convening authority must still provide the language for the

reprimand. Similarly, stating a requirement for the accused to be placed on excess leave is

not action, but will be included in the CADAM. Finally, making a decision on deferment

or waiver does not constitute action, but will be included in the CADAM.

20.19.2. Convening authorities may not substitute an administrative discharge for an adjudged

punitive discharge. However, in cases involving relatively minor offenses, an accused with an

outstanding combat record, or other exceptional circumstances, and where restoration to duty

is inappropriate, convening and reviewing authorities may recommend administrative, rather

than punitive, discharge to SecAF under Article 74(b), UCMJ. If a convening authority is

considering making such a recommendation, the convening authority’s SJA should contact

AF/JAJI for assistance and coordination.

20.20. Military Judge Suspension Recommendation. In all cases, regardless of the date of the

offenses, the convening authority may suspend a sentence in accordance with a military judge’s

recommendation as annotated on the STR. See Article 60a(c), UCMJ. However, the convening

authority may not suspend a mandatory minimum sentence or exceed the suspension

recommendation of the military judge. (T-0) Further, the duration of the suspension may not be

less than that recommended by the military judge. (T-0) Note: Separation which terminates status

as a person subject to the UCMJ will result in remission of the suspended portion of the sentence.

See R.C.M. 1107(e).

20.21. Required Considerations. Before making a decision to take action or to take no action,

the convening authority must:

20.21.1. Consult with a SJA or legal advisor (T-0); and

20.21.2. Consider matters timely submitted by the accused under R.C.M. 1106 and the

victim(s), if any, under R.C.M. 1106A. (T-0)

20.22. Consultation with Staff Judge Advocate. For cases referred on or after 1 January 2019,

legal advice should generally not be provided in writing, as it is not required. However, if written

legal advice is prepared, then the SJA must serve it on the accused and accused’s counsel, as well

as on any victim(s) and VC. Likewise, if any subsequent legal reviews are prepared in writing and

raise new matters to which the accused has not had an opportunity to provide rebuttal matters, such

legal reviews must also be served on the accused and accused’s counsel and on any victim(s).

DAFI51-201 24 JANUARY 2024 161

20.23. Matters Adverse to the Accused. If the convening authority wishes to consider any

matters adverse to the accused that were not admitted at trial, then the convening authority must

first cause those matters to be served on the accused with an opportunity to rebut. (T-0)

20.23.1. The SJA shall serve any such matters on the accused and the accused’s counsel, and

shall notify the accused, in writing:

20.23.1.1. That the convening authority may consider information adverse to the accused

not previously admitted at trial;

20.23.1.2. That the accused has a right to rebut the information; and

20.23.1.3. The date on which the accused’s rebuttal matters are due to the SJA, which

should be no less than five calendar days from the date on which the accused is notified.

20.23.2. This notification memo will be attached to the record of trial, behind the memo

documenting the convening authority’s decision to take action or to take no action. See

paragraph 20.25.

20.23.3. Upon receiving rebuttal matters, if any, from the accused, the SJA provides those to

the convening authority. The SJA does not have to prepare a corresponding written legal

review or memo.

20.23.4. The convening authority indicates, in writing, whether such matters were considered

and, if so, whether the accused submitted matters in rebuttal. This may be incorporated into

the same CADAM the convening authority uses to document the decision to take action or to

take no action. See paragraph 20.21 and paragraph 20.25. Templates are available on the

VMJD and AF/JAJM Teams page.

20.24. Timing of Convening Authority Decision to Take Action/No Action. The convening

authority must generally act before the EoJ. However, the convening authority may grant relief

upon recommendation of trial counsel for substantial assistance by the accused after the EoJ by

accomplishing a new memorandum. See R.C.M. 1109(e)(3)(B) and (e)(7); see also R.C.M.

1110(c)(2). If trial counsel’s recommendation is made more than one year after the EoJ, the

convening authority who convened the court-martial or that convening authority’s successor in

command may reduce the sentence only if the criteria in R.C.M. 1109(e)(5)(B) are met.

20.25. Documenting Convening Authority Action/No Action in a GCM or SPCM.

20.25.1. For cases where all offenses resulting in a conviction occurred after 1 January 2019,

the convening authority may either take action to reduce the findings or sentence, in accordance

with Article 60, UCMJ, or take no action. The date of the earliest offense for which an accused

is found guilty controls which version of Article 60, UCMJ, applies, and thus what a convening

authority must do. See paragraph 20.19.

20.25.2. In any case where an accused is found guilty of at least one specification where the

offense was committed before 1 January 2019, a convening authority errs if he or she fails to

take one of the following mandated post-trial actions in a case: approve, disapprove, commute,

or suspend the sentence of the court-martial in whole or in part. See paragraph 20.19.

20.25.3. If all offenses for which the accused is found guilty occurred after 1 January 2019,

the convening authority does not need to take action to approve the findings or sentence. See

paragraph 20.19.

162 DAFI51-201 24 JANUARY 2024

20.25.4. The convening authority’s decision must be in writing. If the convening authority

decides to take no action in a GCM or SPCM, no rationale is required. If the convening

authority decides to take action in a GCM or SPCM, the convening authority’s decision must

include a paragraph explaining the reasons for the action. This includes if any part of the

sentence is disapproved, reduced, commuted, or suspended. The action shall clearly state

which part or parts are disapproved, reduced, commuted, or suspended. (T-0)

20.25.5. The convening authority’s written decision to take action or no action in a GCM or

SPCM must be attached to the ROT. Templates, checklists, and sample action language are

located on the VMJD and AF/JAJM Teams page. At a minimum, the convening authority’s

written decision on action must:

20.25.5.1. Indicate the action taken, if any, on the findings or the sentence and the rationale

(to include whether the action was taken as a result of a trial counsel substantial assistance

recommendation);

20.25.5.2. Express the convening authority’s decision on a military judge suspension

recommendation, if any;

20.25.5.3. Annotate whether the convening authority intends to grant or previously

granted any deferments or waivers of forfeitures, the effective/expiration dates for any such

deferments or waivers, and the dependent who will receive waived forfeitures. If the

convening authority denies a deferral request in the CADAM, the reason for denial must

be articulated;

20.25.5.4. Direct the member to be placed on excess leave pending appellate review if

required under Section 20M; and

20.25.5.5. State whether the convening authority consulted with the SJA and considered

any matters submitted by the accused and/or victim, as applicable.

20.25.6. The CADAM must include any reprimand language in cases in which a reprimand

was adjudged by the court, provided the convening authority does not disapprove the

reprimand. See paragraph 20.19.

20.26. Service of the CADAM in a GCM/SPCM. The SJA must serve the CADAM on the

military judge, court reporter, counsel for the accused, counsel for the victim, and detailed STC, if

applicable. (T-0) In the event the accused or victim is not represented by counsel, the CADAM

must be served on the accused or victim, as applicable. If the SJA serves the action decision on

the accused’s or victim’s counsel, counsel must provide a copy to their client. (T-0)

20.27. Documenting and Serving Convening Authority Action in an SCM. See Chapter 23.

20.28. Disqualification of a Convening Authority. A convening authority may not conduct the

post-trial review of a case if the attendant facts and circumstances would lead a reasonable person

to impute a personal interest in the outcome of the case or a personal bias towards the accused.

See United States v. Gudmundson, 57 M.J. 493 (C.A.A.F. 2002); United States v. Voorhees, 50

M.J. 494 (C.A.A.F. 1999); United States v. Crossley, 10 M.J. 376 (C.M.A. 1981); United States

v. Gordon, 2 C.M.R. 161 (C.M.A. 1952).

DAFI51-201 24 JANUARY 2024 163

Section 20F—Forfeitures of Pay, Deferment and Waiver (Articles 57(b) and 58b, UCMJ;

R.C.M. 1103)

20.29. Adjudged Versus Automatic Forfeitures. The ability of a convening authority to defer

or waive forfeitures of pay and allowances hinges on whether the forfeitures are adjudged or

automatic (the latter of which is also known as “mandatory forfeitures”).

20.29.1. Adjudged forfeitures are those forfeitures imposed as part of a court-martial sentence.

See Article 57(a), UCMJ, and R.C.M. 1103. Adjudged forfeitures take effect 14 calendar days

after the sentence is announced.

20.29.2. Automatic forfeitures are forfeitures that take effect by operation of law. See Article

58b, UCMJ. An accused must forfeit pay and allowances if sentenced to confinement for more

than six months or if sentenced to a punitive discharge or dismissal and any length of

confinement.

20.29.2.1. Automatic forfeitures take effect 14 calendar days after the sentence is

announced.

20.29.2.2. The amount of automatic forfeitures in a GCM is all pay and allowances

otherwise due to the accused. The amount of automatic forfeitures in an SPCM is two-

thirds pay otherwise due to the accused. Allowances otherwise due are not subject to

mandatory forfeitures in an SPCM.

20.29.2.3. Automatic forfeitures only take effect if the following three conditions exist:

20.29.2.3.1. The adjudged sentence includes confinement for more than six months or

death, or confinement for six months or less and a punitive discharge;

20.29.2.3.2. The accused is in confinement or on parole; and

20.29.2.3.3. The accused is otherwise entitled to pay and allowances that are subject

to automatic forfeitures. If the adjudged sentence includes forfeitures, the accused is

not entitled to the adjudged forfeited amount unless they are deferred or otherwise made

available to the member.

20.29.2.4. Automatic forfeitures do not apply to summary courts-martial. See R.C.M.

1003(b)(2), Discussion.

20.30. Required Adjustment of Forfeitures. If the convening authority takes action on a

sentence that then creates an illegal punishment (e.g., no confinement but a forfeiture exceeding

2/3 pay per month) or an accused is otherwise released from confinement while forfeitures

exceeding 2/3 pay per month are still in effect (e.g. due to pretrial confinement credit), legal offices

should ensure that, prior to EoJ, the convening authority takes action to reduce the forfeitures to

no more than 2/3 pay per month for the period the accused is not confined. See R.C.M. 1003(b)(2);

R.C.M. 1102(b)(1)(B).

20.31. Deferment Versus Waiver. Deferment and waiver of forfeitures are distinct concepts that

operate differently depending on whether the forfeitures are adjudged or automatic.

20.31.1. Deferment (Article 57(b), UCMJ). Deferment is a postponement of the running of a

sentence. Upon written application of the accused, the convening authority may defer

adjudged and automatic forfeitures until the EoJ or, in the case of a SCM, until a convening

164 DAFI51-201 24 JANUARY 2024

authority acts on the sentence. Deferred forfeitures are paid directly to the accused. The

accused may apply for deferment regardless of whether the accused has dependents. The

convening authority may rescind a deferment at any time.

20.31.1.1. The factors an accused must establish in a deferment request, and the factors a

convening authority must consider, are provided in R.C.M. 1103(d)(2).

20.31.1.2. The convening authority’s action on the deferment request must be in writing

and must include the basis for any denial. (T-0) Annotate whether the accused requested

deferment of confinement, forfeitures or, reduction in grade. If the accused requested more

than one deferment, address each. Specify the nature of the request, the convening

authority’s decision, the reason for the convening authority’s decision if denied (see,

R.C.M. 1103(d)(2)), the effective date if approved, and the expiration date. A copy of the

convening authority’s action on the deferment request must be included in the record of

trial and provided to the military judge, accused, and detailed STC, if applicable. (T-0)

Inclusion of the convening authority’s action on deferment in the CADAM satisfies this

requirement.

20.31.1.3. If the convening authority grants deferment, the deferment continues until EoJ

unless the convening authority mitigates, suspends or disapproves the adjudged forfeitures

prior to EoJ, in which case the deferment or adjudged forfeitures ends at the time at which

the convening authority acts, and are thereafter mitigated, suspended or disapproved.

20.31.2. Waiver (Article 58b, UCMJ). The convening authority may waive automatic

forfeitures for no more than six months for the benefit of the accused’s dependents. Waived

forfeitures are paid directly to the accused’s dependents. Dependent is defined by 37 U.S.C. §

401, Definitions. See paragraph 20.33.

20.31.2.1. The convening authority may not waive adjudged forfeitures. (T-0) However,

the convening authority may take action under Articles 60, 60a or 60b, UCMJ, to defer,

suspend, mitigate, or disapprove all or part of adjudged forfeitures, and then waive any

resulting automatic forfeitures. See United States v. Emminizer, 56 M.J. 441 (C.A.A.F.

2002). Sample language the convening authority may use to defer, suspend, mitigate or

disapprove all or part of adjudged forfeitures can be found on the VMJD and AF/JAJM

Teams page.

20.31.2.2. The factors a convening authority may consider before granting a waiver are

provided in R.C.M. 1103(h)(2).

20.31.2.3. The convening authority may waive automatic forfeitures for the purpose of

providing support to the accused’s dependents even if the accused does not apply for a

waiver.

20.31.2.4. The convening authority may waive automatic forfeitures at any point before

the EoJ. The waiver can be retroactive, designated to begin on a date no earlier than 14

days after the sentence is adjudged.

20.31.2.5. Waived forfeitures cannot be applied beyond a member’s expiration of term of

service because the pay entitlement ceases at that point. Practitioners shall always verify

the accused is entitled to pay before recommending the convening authority waive

forfeitures as a part of the plea agreement.

DAFI51-201 24 JANUARY 2024 165

20.31.2.6. If the convening authority grants waiver of any portion of automatic forfeitures,

the convening authority should specify the date on which the waiver is effective. The

waiver may begin no later than the EoJ.

20.31.3. A request for a combination of deferral and waiver can maximize the pay and

allowances going to the accused and the accused’s family members. For example, the accused

may request that the convening authority defer automatic and adjudged forfeitures until the

EoJ and then disapprove adjudged forfeitures and waive automatic forfeitures starting on the

EoJ for a period not to exceed six months. However, a convening authority who waives

automatic forfeitures starting at EoJ must first consider disapproving, commuting or

suspending some or all of the adjudged forfeitures for the same period as the waiver. U.S. v.

Emminizer, 56 M.J. 441 (C.A.A.F. 2002). Transitional compensation is a separate and distinct

application process from deferral and waiver; nevertheless, it is also an opportunity to assist

victims and it begins when the EoJ is signed. See DAFI 51-207 and DAFI 36-3012, Military

Entitlements, Chapter 8.

20.32. Mechanics of Deferring and Waiving Forfeiture of Pay. Table 20.1 explains the

relationship between adjudged and mandatory forfeitures from the date the sentence is adjudged

until the end of the forfeiture period.

20.32.1. Accused’s Deferment Request. If an accused requests deferment of a reduction in

grade, a forfeiture of pay and allowances, or sentence to confinement until EoJ, the convening

authority may approve the request, in full or in part, or may disapprove the request. See

paragraph 20.31.1.2.

20.32.1.1. The accused’s deferment request as to forfeitures should specify whether it is

for adjudged forfeitures, mandatory forfeitures, or both. If it is unclear, the convening

authority may treat it as a request for deferment of both.

20.32.1.2. The convening authority’s decision on the request should be reflected in a

signed and dated document. This includes the basis for any denial. See paragraph

20.31.1.2.

20.32.1.3. The terms of approved deferment requests are reported in a 14-day/24-hour

memorandum and the CADAM signed by the convening authority. Templates for both

documents can be found on the VMJD and AF/JAJM Teams page. See paragraph

20.31.1.2.

20.32.1.4. A deferment of forfeitures may be for adjudged forfeitures, automatic

forfeitures or both, and for all pay and allowances to which the accused is entitled or a

lesser sum. However, deferment does not extend beyond the time at which the EoJ is

completed in a GCM or SPCM or beyond action in a SCM. R.C.M. 1103(f).

20.32.2. Waiver of Automatic Forfeitures. In cases where automatic forfeitures are waived,

whether prior to or as part of the convening authority’s action, the approved waiver should

state the amount approved in whole dollar amounts per month, unless the waiver is for total

pay and allowances in a GCM. If waiver of forfeiture of two-thirds pay is approved in a special

court-martial, the total should be reflected in whole dollar amounts.

20.32.2.1. The convening authority must identify the dependents who will receive the

waived forfeitures. If payments are made to an ex-spouse, or multiple ex-spouses, or other

166 DAFI51-201 24 JANUARY 2024

person on behalf of minor dependents, the SJA or designee obtains confirmation that the

designated payee is the appointed guardian or custodian of a minor dependent and that the

accused does not have access to the account. Legal offices should provide information

described in AFMAN 65-116V1, Defense Joint Military Pay System Active Component

(DJMS-AC) FSO Procedures, to the local finance office when processing waiver requests.

This information includes a copy of the waiver request (if submitted), copy of the approved

waiver request with amount approved, full name of payees, proof of dependency of payees

or certification that the payees are dependents of the member, payment account

information, and a statement signed by payee and member agreeing to notify legal and

finance if the payee ceases being a dependent during the period payments are made.

20.32.2.2. If automatic forfeitures are waived before the decision on action, the convening

authority must reflect approval in a signed and dated document at the time forfeitures are

waived. Such a waiver of automatic forfeitures is also reported in the 14-day/24-hour

memorandum and in the CADAM.

20.32.2.3. The local accounting and finance office should be consulted to determine the

accused’s entitlements and the actual amount of pay and allowances the accused and/or the

accused’s dependents may be entitled to receive. Note: These considerations could affect

the enforceability of a plea agreement or pretrial agreement. A number of factors can

impact the following entitlements:

20.32.2.3.1. Basic Allowance for Subsistence. The accused loses Basic Allowance for

Subsistence upon entry into confinement, thus the convening authority cannot give the

accused’s family any portion of the accused’s Basic Allowance for Subsistence.

20.32.2.3.2. Taxes. Federal and state taxes are withheld from any payments of

deferred or waived forfeitures. Therefore, if the convening authority wants the

accused’s family to receive a certain amount of money, the amount of taxes should be

factored into the calculation.

20.32.2.3.3. Grade Reduction. A reduction in grade may significantly lower the

amount of the accused’s pay that is eligible for waiver. Therefore, if the convening

authority wants the accused’s family to receive a certain amount of money, the effect

of a reduction in grade should be taken into consideration. To the extent that it is

allowed by law under Article 58a, UCMJ, a grade reduction can be deferred but cannot

be waived.

20.32.2.3.4. Active-Duty Spouse. A spouse who is also a Regular DAF member may

receive only waived forfeiture of pay, not pay and allowances. (T-0)

20.32.2.3.5. ETS. There are no forfeitures to waive on any date after the accused’s

ETS. Any plea agreement to approve a waiver of any amount of forfeitures when the

accused is near or beyond their ETS may render pleas improvident because the accused

may not receive the benefit of the bargain. The convening authority will only approve

plea agreements containing a waiver provision if it clearly states that any waiver is only

applicable to pay and allowances that the accused is otherwise entitled to receive. (T-0)

See United States v. Perron, 58 M.J. 78 (C.A.A.F. 2003).

20.32.2.3.6. Foreign Accounts. The Defense Finance and Accounting Service (DFAS)

has experienced difficulties making deposits into certain foreign bank accounts. Plea

DAFI51-201 24 JANUARY 2024 167

agreement and pretrial agreement terms requiring deposits of pay into foreign account

may be impractical to accomplish.

20.32.2.3.7. Title 10 Status. As with ETS, if a member’s Title 10 status expires (e.g.,

members recalled to Title 10 active duty in order to be tried by court-martial), there are

no forfeitures to waive after the status expires. See Chapter 3 for further guidance.

20.33. Dependency Determinations for Waivers under Article 58b, UCMJ.

20.33.1. Dependent is defined by 37 U.S.C. § 401.

20.33.2. Evidence of Dependency. Sufficient evidence of dependency is required to support

an Article 58b, UCMJ, waiver. The nature of this evidence will depend on the status of the

dependent.

20.33.2.1. Dependency status for a spouse or child may be established by their enrollment

in the Defense Enrollment Eligibility Reporting System or by other competent evidence,

such as, a marriage certificate, a birth certificate, or a court order establishing paternity or

child support obligations for a child.

20.33.2.2. Dependency determinations for a child over 21 years of age, parents or a ward

are more complex because they only qualify as a dependent if the military sponsor provides

more than one-half of their support. A precondition for waiving forfeitures for the benefit

of one of these dependents should be an approval letter of dependency from DFAS. The

accused, or other party requesting the waiver, should provide a copy of the DFAS approval

letter with any request to waive mandatory forfeitures. If an accused is unable to qualify

one of these persons as a dependent with DFAS, then there will normally be insufficient

evidence of dependency to support an Article 58b, UCMJ, waiver of mandatory forfeitures.

20.34. Deferment and Waiver in Cases with Offenses Committed Prior to 1 April 1996. See

the VMJD and AF/JAJM Teams page for information on forfeitures related to offenses committed

prior to 1 April 1996. Contact AF/JAJM for assistance.

Table 20.1. Relationship between Adjudged and Automatic Forfeitures.

FORFEITURE PERIOD

ADJUDGED FORFEITURES

AUTOMATIC

FORFEITURES (See Note 1)

DATE SENTENCE

ADJUDGED TO 14

DAYS AFTER

SENTENCE ADJUDGED

(w/o action)

Not in effect. Accused

continues to be paid unless post

expiration of term of service.

Not in effect. Accused

continues to be paid unless post

expiration of term of service.

168 DAFI51-201 24 JANUARY 2024

FORFEITURE PERIOD

ADJUDGED FORFEITURES

AUTOMATIC

FORFEITURES (See Note 1)

14 DAYS AFTER THE

DATE ON WHICH THE

SENTENCE IS

ADJUDGED UNTIL EOJ

In effect, except for any portion

the convening authority defers.

(See Note 2)

In effect, except for any portion

the convening authority defers

(See Note 2), and/or waives and

directs payment to the accused’s

qualifying dependents (in the

case of a waiver).

(See Notes 3 & 4)

EOJ

In effect unless the convening

authority approves, disapproves,

commutes or suspends the

adjudged forfeitures in whole or

in part.

In effect, except any portion the

convening authority has

waived. Waiver period may not

exceed six months.

(See Notes 4 & 5)

Notes:

1. Automatic forfeitures only apply when the three conditions listed in paragraph 20.29.2.3

exist.

2. If the accused applies for deferment, the convening authority may defer all or a portion of the

adjudged forfeitures and/or automatic forfeitures 14 days after the date on which the sentence was

adjudged until the EoJ. The accused should specify whether the deferment requested is for

adjudged forfeitures, automatic forfeitures, or both (a request for deferment of forfeitures in

general is considered a request for both). If a deferment is approved, the accused is paid a sum

equal to entitled pay and allowances, minus any amounts not deferred. The convening authority

may rescind a deferment (adjudged forfeitures and/or mandatory forfeitures) at any time.

3. The convening authority may waive available automatic forfeitures with or without a request

from the accused. The convening authority may waive automatic forfeitures to the extent that the

accused is entitled to pay and allowances (see Note 1 above).

4. Automatic forfeitures may be waived until the earlier of: (1) a period not to exceed six

months; (2) the accused’s release from confinement; or (3) the last day the accused is otherwise

entitled to pay and allowances (See Note 1 above).

5. The convening authority may waive all or a portion of the available automatic forfeitures for

the benefit of the accused’s dependents. The convening authority may disapprove, commute or

suspend all or a portion of the adjudged forfeitures to enable the convening authority to waive

any amount of automatic forfeitures. See U.S. v. Emminizer, 56 M.J. 441 (C.A.A.F. 2002).

20.35. Service of Legal Review on the Accused. There is no requirement to prepare written legal

advice to a convening authority pertaining to a request for deferment or waiver. However, if

written legal advice is prepared the legal office must understand the distinction between advice

that must be served on the accused and advice where service is not required. Written legal advice

DAFI51-201 24 JANUARY 2024 169

pertaining to deferment requests need not be served on the accused. Written legal advice pertaining

to waiver requests must be served on the accused. (T-0)

20.35.1. Article 57(b), UCMJ, Deferral of Forfeiture Requests. In United States v. Key, 55

M.J. 537 (AFCCA 2001), the Court held that an SJA review of a request for deferral of

forfeitures does not need to be served on the defense for comment prior to submission to the

convening authority, where the SJA’s review does not contain a “new matter.” The Court

compared such a request to a request for deferral of confinement, for which no SJA

recommendation is required and, when prepared, historically, is not served on the accused.

The SJA or designee ensures that any decision by the convening authority on the request is

included in the ROT.

20.35.2. Article 58b, UCMJ, Waiver of Forfeiture Requests. In United States v. Spears, 48

M.J. 768 (AFCCA 1998), the Court considered whether a legal review of a request for a waiver

of forfeitures must be served on the defense prior to submission to the convening authority.

The Court noted that SJAs are not required to prepare legal reviews of requests for waiver of

automatic forfeitures. The Court treated the request for waiver of forfeitures as a clemency

request and declared that practitioners must exercise care when addressing the request for

waiver of forfeitures before the record is completed. The SJA or designee is required to serve

any written legal review on the accused and defense counsel before submission to the

convening authority and must include it as an attachment to the completed ROT.

Section 20G—Contingent Confinement

20.36. Contingent Confinement. Contingent confinement is confinement authorized by a court-

martial in the form of a fine-enforcement provision. See R.C.M. 1003(b)(3). A fine-enforcement

provision may be ordered executed in accordance with the procedures below.

20.36.1. Authority to Execute Contingent Confinement. A fine does not become effective,

and the accused is not required to pay, until EoJ. See Article 57(a), UCMJ. The convening

authority may not order an accused to serve contingent confinement until the EoJ is complete

and the requirements of paragraph 20.37 are met. If the accused fails to demonstrate good

faith efforts to pay the fine, the convening authority may order the sentence of confinement by

following the procedures outlined in paragraph 20.37.

20.36.2. Enforcement. Once court-martial jurisdiction attaches, an accused remains subject to

the UCMJ through the execution and enforcement of a sentence. Article 2(a)(1), UCMJ,

confers jurisdiction over members of a regular component of the armed forces, including those

awaiting discharge after the expiration of terms of enlistment. Jurisdiction continues for the

purpose of enforcing an adjudged sentence for individuals discharged as the result of a court-

martial conviction. Carter v. McClaughry, 183 U.S. 365 (1902); Peebles v. Froehlke, 46

C.M.R. 266 (C.M.A. 1973).

20.37. Procedures for Executing Contingent Confinement. Contingent confinement may be

executed in accordance with the following procedures:

20.37.1. When the fine is ordered executed, the convening authority notifies the accused in

writing the fine is due and payable. A specific due date must be included in the notification.

If the accused is in confinement, the due date should normally be a reasonable period before

170 DAFI51-201 24 JANUARY 2024

the accused is scheduled for release from confinement to allow adequate time for a contingent

confinement hearing and convening authority action.

20.37.2. After the fine is considered due, the SJA for the base where the accused was tried

ascertains whether the accused has paid the fine. If it appears the fine has not been paid, the

SJA notifies the convening authority. If the convening authority finds probable cause to

believe a fine is unpaid, the convening authority may order a post-trial contingent confinement

hearing. The convening authority for this hearing is the officer who convened the court-

martial, a successor in command, or the officer exercising GCMCA over the command to

which the accused is assigned. If the accused is no longer on active duty and is not a member

of the ARC, AFDW/CC is the convening authority. The purpose of the hearing is to determine

whether the fine is delinquent, whether the delinquency, if any, resulted from the accused’s

indigence and whether the contingent confinement should be executed. For offenses under

OSTC authority, the servicing OSTC District Office shall be notified of an order for a post-

trial contingent confinement hearing.

20.37.3. A military judge is detailed as hearing officer to conduct the contingent confinement

hearing. This detailing is accomplished in the same manner as detailing a military judge to a

court-martial.

20.37.4. The SJA or designee provides the accused written notice of the time and place of the

hearing. The convening authority provides the accused with temporary duty orders or

invitational travel orders if the accused is not in confinement and the hearing is beyond

reasonable commuting distance from the accused’s residence. See DAFMAN 65-605V1,

Budget Guidance and Technical Procedures, for appropriate funding authority. The notice

informs the accused of the following:

20.37.4.1. The accused’s alleged failure to pay the fine;

20.37.4.2. The purpose of the hearing to determine whether the fine is delinquent and

whether the delinquency, if any, is the result of the accused’s indigence;

20.37.4.3. The accused’s right to present witnesses and documentary evidence;

20.37.4.4. The accused’s right to representation by military defense counsel; and

20.37.4.5. The evidence which was relied upon in issuing the notice of hearing and the

options available to the convening authority.

20.37.5. Unless the hearing is otherwise waived, the hearing officer makes findings on

whether payment of a fine is delinquent and whether any delinquency resulted from the

accused’s indigence. Payment of a fine is delinquent if not made within the period specified

in the approved sentence or, if no period is specified, within a reasonable time. An accused’s

failure to pay a fine is not due to indigence if the failure to pay the fine resulted from a willful

refusal to pay the fine or a failure to make sufficient good faith efforts to pay it. The

Government bears the burden of proof, by a preponderance of the evidence, of showing that

payment of the fine is delinquent. The accused bears the burden of proof, by a preponderance

of the evidence, of showing that any delinquency resulted from indigence.

20.37.6. Hearing Procedures.

DAFI51-201 24 JANUARY 2024 171

20.37.6.1. The hearing officer determines the facts from the best evidence available.

Rulings on evidentiary and procedural matters are final. Strict evidentiary rules do not

apply and hearsay statements are admissible.

20.37.6.2. The accused may testify and present witnesses and documentary evidence.

Witness testimony may be presented through sworn or unsworn statements, affidavits,

depositions, prior testimony, stipulations of expected testimony, or telephone conference.

The accused may not compel the production of a witness at government expense unless the

request is made to the hearing officer, in writing, before the hearing and the hearing officer

determines:

20.37.6.2.1. The physical presence of the witness is critical to a fair determination of

a material issue in dispute;

20.37.6.2.2. The witness is available to testify; and

20.37.6.2.3. There is no substitute for the live testimony of the prospective witness

(e.g., written statements, affidavits, stipulations, or telephone conference).

20.37.6.3. The accused has a right to confront and cross-examine those witnesses

testifying at the hearing.

20.37.6.4. The accused may be represented at the hearing by a civilian attorney or civilian

representative of the accused’s choice at no cost to the government. The accused is also

entitled to representation by either an ADC or military counsel of the accused’s selection,

if reasonably available. See paragraph 15.6. The accused is not entitled to representation

by more than one military counsel.

20.37.6.5. A court reporter records the hearing and prepares a summarized record of the

proceeding. The record includes a summary of the evidence presented and any objections

or requests considered by the hearing officer.

20.37.6.6. The hearing officer submits a written report to the convening authority through

the SJA, including a statement of the evidence relied upon to support the findings. If the

hearing officer chooses to make the findings and statement of evidence on the record,

transcribe them verbatim. The hearing officer forwards the report and/or record to the

convening authority.

20.37.6.7. The convening authority takes final action on the hearing officer’s findings and

determinations. The convening authority may adopt, modify, or reject the hearing officer’s

findings and determinations. If the hearing officer’s findings and determinations are not

adopted, the convening authority specifies the evidence relied upon and the reasons for the

decision.

20.37.6.8. If the convening authority determines payment of the fine is delinquent and the

failure to pay is not due to indigence, the convening authority may order the sentence of

contingent confinement executed. A sample memorandum executing contingent

confinement is provided on the VMJD and AF/JAJM Teams page. If the convening

authority determines the accused has made good faith efforts to pay the fine, but cannot

because of indigency, the sentence of confinement may not be executed. If electing not to

execute confinement, the convening authority signs a supplemental order remitting

contingent confinement. This supplemental order is attached to the ROT.

172 DAFI51-201 24 JANUARY 2024

20.37.6.9. The convening authority’s contingent confinement order should be forwarded

through the SJA to the military judge for completion of a new EoJ, which must be attached

to the ROT.

20.37.6.10. Forward to AF/JAJM a copy of the summarized record of the contingent

confinement hearing, any order, and modified EOJ for each copy of the ROT required by

DAFMAN 51-203.

Section 20H—Notification of Adjudged Sentence, EoJ

20.38. 14-Day Memorandum and 24-Hour Memorandum. In all courts-martial with

automatic forfeitures under Article 58b, UCMJ, adjudged forfeitures, or reduction in grade, a 24-

Hour Memorandum (paragraph 20.38.2) is required. In such cases, if the EoJ is not complete

within 14 days, both a 14-Day Memorandum (paragraph 20.38.1), and a 24-Hour Memorandum

(paragraph 20.38.2) must be accomplished and distributed. However, if the EoJ is completed

within 14 days, a 14-Day Memorandum is not required.

20.38.1. 14-Day Memorandum. The SJA of the office that prosecuted the case must send a

memorandum 14 days after the sentence is announced or within 24 hours of the EoJ, whichever

is earlier, via email to the recipients listed on the template memorandum located on the VMJD

and AF/JAJM Teams page. If any portion of the punishment is deferred, suspended, set aside,

waived, or disapproved, the memorandum must include the terms. A template memorandum

can be found on the VMJD and AF/JAJM Teams page.

20.38.2. 24-Hour Memorandum. If the EoJ is published more than 14 days after the sentence

is announced, the SJA of the office that prosecuted the case must send a memorandum within

24 hours after the EoJ via email to the recipients listed on the template memorandum located

on the VMJD and AF/JAJM Teams page. If any portion of the punishment is deferred,

suspended, set aside, waived, or disapproved, the memorandum must include the terms. A

template memorandum can be found on the VMJD and AF/JAJM Teams page.

Section 20I—EoJ (R.C.M. 1111; Article 60c, UCMJ)

20.39. General Provision. The EoJ reflects the results of the court-martial after all post-trial

actions, rulings, or orders, and serves to terminate trial proceedings and initiate appellate

proceedings. The EoJ must be completed in all GCMs and SPCMs in which an accused was

arraigned, regardless of the final outcome of the case. For post-trial processing in an SCM, see

Section 23F. In any case in which an accused was arraigned and the court-martial ended in a full

acquittal, mistrial, dismissal of all charges, or is otherwise terminated without findings (to include

discharge in lieu of court-martial), an EoJ must be completed (to include the first indorsement)

when the court terminates. For cases resulting in a finding of not guilty by reason of lack of mental

responsibility, the EoJ must be completed after the subsequent hearing required by R.C.M.

1111(e)(1) and R.C.M. 1105.

20.40. Preparing the EoJ.

20.40.1. Minimum Contents. Following receipt of the CADAM and issuance of any other

post-trial rulings or orders, the military judge must ensure an EoJ is prepared. (T-0) Military

judges should wait five days after receipt of the CADAM to sign the EoJ. This ensures parties

have five days to motion the military judge to correct an error in the CADAM in accordance

DAFI51-201 24 JANUARY 2024 173

with R.C.M. 1104(b)(2)(B). The EoJ must include the contents listed in R.C.M. 1111(b), and

the STR must be included as an attachment. (T-0) Practitioners must use the format and

checklists for the EoJ that is posted on the VMJD and AF/JAJM Teams page.

20.40.2. Expurgated and Unexpurgated Copies of the EoJ. In cases with both an expurgated

and unexpurgated Statement of Trial Results, both an expurgated an unexpurgated EoJ must

be prepared and signed by the military judge. In arraigned cases in which the court-martial

ended in a full acquittal, mistrial, dismissal of all charges, or is otherwise terminated without

findings, refer to paragraph 20.8 to determine whether an expurgated EoJ is required and the

distribution requirements for expurgated and unexpurgated copies.

20.41. First Indorsement to the EoJ. After the EoJ is signed by the military judge and returned

to the servicing legal office, the SJA signs and attaches to the EoJ a first indorsement, indicating

whether the following criteria are met: DNA processing is required; the accused has been

convicted of a crime of domestic violence under 18 U.S.C. § 922(g)(9); criminal history record

indexing is required under DoDI 5505.11; firearm prohibitions are triggered; and/or sex offender

notification is required. See Chapter 29 for further information on this requirement. Templates

are located on the VMJD and AF/JAJM Teams page. The first indorsement is distributed with the

EoJ. Note: This requirement is not delegable. Only the SJA or other judge advocate acting as the

SJA may sign the first indorsement. In the latter case, the person signing the first indorsement

indicates “Acting as the Staff Judge Advocate” in the signature block.

20.42. Distributing the EoJ. The EoJ and first indorsement must be distributed in accordance

with the STR/EoJ Distribution List on the VMJD and AF/JAJM Teams page within five duty days

of completion.

Section 20J—Post-Trial Confinement

20.43. Entry into Post-Trial Confinement. Sentences to confinement run from the date

adjudged, except when suspended or deferred by the convening authority. Unless limited by a

commander in the accused’s chain of command, the authority to order post-trial confinement is

delegated to the trial counsel or assistant trial counsel. See R.C.M. 1102(b)(2). The DD Form

2707, Confinement Order, with original signatures goes with the accused and is used to enter an

accused into post-trial confinement.

20.44. Processing the DD Form 2707.

20.44.1. When a court-martial sentence includes confinement, the legal office should prepare

the top portion of the DD Form 2707. Only list the offenses of which the accused was found

guilty. The person directing confinement, typically the trial counsel, fills out block 7. The

SJA fills out block 8 as the officer conducting a legal review and approval. The same person

cannot sign both block 7 and block 8. Before signing the legal review, the SJA should ensure

the form is properly completed and the individual directing confinement actually has authority

to direct confinement.

20.44.2. Security Forces personnel receipt for the prisoner by completing and signing item 11

of the DD Form 2707. Security Forces personnel ensure medical personnel complete items 9

and 10. A completed copy of the DD Form 2707 is returned to the legal office, and the legal

office includes the copy in the ROT. Security Forces retains the original DD Form 2707 for

inclusion in the prisoner’s Correctional Treatment File.

174 DAFI51-201 24 JANUARY 2024

20.44.3. If an accused is in pretrial confinement, confinement facilities require an updated DD

Form 2707 for post-trial confinement.

20.44.4. Failure to comply with these procedural processes does not invalidate or prevent post-

trial confinement or the receipt of prisoners. See Articles 11 and 13, UCMJ.

20.45. Effect of Pretrial Confinement. Under certain circumstances, an accused receives day-

for-day credit for any pretrial confinement served in military, civilian (at the request of the

military), or foreign confinement facilities, for which the accused has not received credit against

any other sentence. United States v. Allen, 17 M.J. 126 (C.M.A. 1984); United States v. Murray,

43 M.J. 507 (AFCCA 1995); and United States v. Pinson, 54 M.J. 692 (AFCCA 2001). An accused

may also be awarded judicially ordered credit for restriction tantamount to confinement, prior NJP

for the same offense, violations of R.C.M. 305, or violations of Articles 12 or 13, UCMJ. See e.g.,

United States v. Pierce, 27 M.J. 367 (C.M.A. 1989).

20.45.1. When a military judge directs credit for illegal pretrial confinement (violations of

Articles 12 or 13, UCMJ, or R.C.M. 305), the military judge should ensure credit is listed on

the STR and EoJ.

20.45.2. Any credit for pretrial confinement should be clearly reflected on the STR, EoJ and

DD Form 2707, along with the source of each portion of credit and total days of credit awarded.

20.45.3. Templates, instructions, and checklists are located on the VMJD and AF/JAJM

Teams page.

20.46. Confinement Facility (R.C.M. 1101, 1102(b)(2)(F)).

20.46.1. AFSFC/FC, which oversees Air Force correctional facilities worldwide, selects the

corrections facility for post-trial confinement and rehabilitation. Refer to DAFMAN 31-115,

Vol 1, for confinement rules and practices.

20.46.2. Correctional facilities other than those in the Air Force Corrections System may be

used to confine inmates. AFSFC/FC sends detailed instructions covering selection of inmates

for these assignments, details of transfer, and other administrative matters. The GCMCA of

an inmate transferred to such a facility exercises the same responsibilities as those assigned in

this chapter to AFDW/CC, for inmates in the Air Force Corrections System.

20.46.3. If a military confinement facility is not reasonably available, then the installation

commander may authorize confinees to be placed in civilian correctional facilities in

accordance with guidelines prescribed in DAFMAN 31-115, Vol 1.

Section 20K—Preparing and Certifying the ROT (R.C.M. 1104)

20.47. Transcription Requirements. Transcription occurs simultaneous to the other post-trial

phases (i.e., STR, CADAM, and EoJ). The transcript is not required before EoJ. Once the

transcript is certified, it is attached to the ROT. For additional guidance, see DAFMAN 51-203.

20.47.1. Verbatim Transcripts. A certified verbatim transcript is required in all general and

special courts-martial in which there is a finding of guilty.

20.47.2. Abbreviated Transcripts. For cases resulting in a full acquittal, mistrial, dismissal of

all charges, or cases otherwise terminated without findings, an abbreviated transcript may be

completed. See DAFMAN 51-203 for further details.

DAFI51-201 24 JANUARY 2024 175

20.47.3. Certification. Prior to certification of the transcript by the court reporter, the court

reporter must forward the transcript to the trial counsel, who examines it for accuracy and signs

a memorandum verifying the examination was accomplished. (T-1) A sample memorandum

is located in DAFMAN 51-203. The SJA must generally permit the defense counsel the

reasonable opportunity to examine the transcript before certification. The transcript must be

certified by the court reporter(s) who were detailed to the proceeding and included in the ROT

prior to forwarding for appellate review. (T-0) For certification requirements, refer to

DAFMAN 51-203.

20.47.4. Following certification of the transcript, the court reporter shall notify trial counsel

and the case paralegal that the transcript is ready for inclusion in the ROT. The court reporter

must ensure, and the case paralegal must verify, that sealed exhibits, classified information,

and closed sessions are properly sealed in accordance with R.C.M. 1112(e)(3) and DAFMAN

51-203. If the court reporter is appearing virtually, the case paralegal must properly seal

exhibits to be verified visually by the court reporter. (T-0)

20.48. Preparing and Certifying the ROT in GCMs and SPCMs. The court reporter certifies

the ROT after the military judge completes the EoJ and enters it into the record. The case paralegal

or trial counsel must promptly send a copy of the EoJ to the court reporter. (T-0) See R.C.M.

1112(c). Failure to promptly provide the EoJ to the court reporter will delay post-sentencing

processing and the certification of the ROT. See DAFMAN 51-203. Certification of the ROT

begins the 45-day timeline for compliance with Article 140a, UCMJ. See paragraph 34.14. For

SCMs, see Chapter 23, DAFMAN 51-203, and R.C.M. 1305.

Section 20L—Service and Forwarding of the ROT (R.C.M. 1104; 1112(e))

20.49. Service of the ROT Generally.

20.49.1. Upon certification of the transcript and the ROT, the SJA shall cause a copy of the

certified ROT to be served on the accused and any eligible victim(s) in accordance with the

below guidance and R.C.M. 1112(e) and obtains proof of service or substitute service in

accordance with DAFMAN 51-203. (T-0) Provide only the ROT items listed in R.C.M.

1112(b). Do not provide the ROT attachments listed in R.C.M. 1112(f) with the exception of

the transcript, as noted in paragraph 20.49.2.

20.49.2. Mandatory Substitution of Transcript for Recording. Do not provide the accused or

victim(s) with a copy of the audio recording of open proceedings. Instead, replace the audio

recording with a redacted copy of the certified transcript.

20.49.3. Where this section calls for redactions, those redactions shall be made to copies of

the ROT provided to the accused and victim(s) only. Legal offices shall not redact an original

ROT or any copies provided for appellate review.

20.50. Serving the ROT on the Accused.

20.50.1. The SJA must ensure that all third-party personally identifiable information is

redacted from the copy of the ROT served on the accused. The accused’s own personal

information does not have to be redacted from the accused’s copy.

20.50.2. The SJA must obtain proof of ROT service on the accused, or substitute service, and

include it as an attachment to the ROT. (T-0) See R.C.M. 1112(e)(2) and DAFMAN 51-203.

176 DAFI51-201 24 JANUARY 2024

20.50.3. Members Confined at the United States Disciplinary Barracks (USDB) at Fort

Leavenworth. Forward a copy of the certified ROT to the USDB. If the ROT is not certified

at the time of inmate transfer, contact the USDB’s DAF Liaison at DSN: 585-3626, or COMM:

(913) 758-3626. Once the ROT is certified, mail the ROT, via certified mail, to the USDB,

ATTN: USAF Liaison, 1301 N. Warehouse Rd, Fort Leavenworth, KS 66027-2304. Notify

the liaison upon shipment and provide them certified mail number.

20.51. Serving the ROT on Eligible Victim(s).

20.51.1. The following victim(s) are entitled to a copy of the ROT upon certification:

20.51.1.1. The victim of an offense of which the accused was charged if the victim testified

during the proceedings, without regard to the verdict, automatically receives a copy of the

ROT.

20.51.1.2. A victim named in a specification who did not testify at trial receives a copy of

the ROT upon request, regardless of the verdict.

20.51.2. The SJA must ensure that all third-party personally identifiable information is

redacted from the copy of the ROT served on the victim(s). The victim’s own personal

information does not have to be redacted from the victim’s copy. However, the personal

information of other witnesses and victims must be redacted. Additionally, information about

the accused that would normally be protected by the Privacy Act must also be redacted. (T-0)

20.51.3. The SJA must ensure that eligible victims are notified of the opportunity to receive a

copy of the ROT. (T-0) A template notification is located on the VMJD and AF/JAJM Teams

page. If the victim waives receipt of the ROT, the SJA must document that waiver in writing

and attach it to the ROT. The SJA must obtain proof of ROT service on the victim, or substitute

service, and include it as an attachment to the ROT. See R.C.M. 1112(e)(2) and DAFMAN

51-203.

20.52. Forwarding the ROT. After the ROT is complete, the servicing SJA or convening

authority’s SJA forwards the original ROT and required copies for post-trial review. See

DAFMAN 51-203 for in-depth instructions on forwarded ROTs.

20.52.1. SCMs requiring Article 64, UCMJ, review and GCM or SPCMs requiring Article

65(d), UCMJ, review are forwarded to the GCMCA’s SJA using the most cost-effective

method that provides for means of tracking. See Section 24Cand paragraph 24.16.

20.52.2. All other cases are forwarded to AF/JAJM; this includes cases resulting in an

acquittal or terminated without findings (e.g., mistrial or dismissal of all charges).

20.52.3. Incomplete ROTs (e.g., ROTs that are missing required documents) or ROTs missing

the required attachments should not be forwarded to AF/JAJM. Incomplete ROTs, to include

missing attachments, may be returned to the responsible legal office and will not be considered

transferred to AF/JAJM for purposes of metrics and milestones.

Section 20M—Excess Leave

20.53. Involuntary (Required) and Excess Leave.

20.53.1. The convening authority will place an accused who either had no confinement

adjudged or already completed the period of confinement on involuntary excess leave while

DAFI51-201 24 JANUARY 2024 177

awaiting appellate review of an unsuspended punitive discharge. (T-0) See Article 76a,

UCMJ. For ARC-specific guidance, see Chapter 3.

20.53.2. Members with an adjudged sentence that includes a punitive discharge may volunteer

to be placed on excess leave pending the convening authority’s review. If the convening

authority does not reduce, commute or suspend the punitive discharge, the accused’s voluntary

excess leave status is terminated and the accused is placed on involuntary excess leave. If the

convening authority reduces, commutes or suspends the punitive discharge, the accused is

returned to duty; however, if the member faces involuntary separation, consult 10 U.S.C. §

1149.

20.53.3. When an approved sentence includes unsuspended confinement, the convening

authority may not place the accused on either voluntary or involuntary excess leave unless the

confinement has been served, remitted, or deferred.

20.53.4. An accused who has accrued leave when required to take excess leave may elect to

either (1) receive pay and allowances during the period of accrued leave and then continue on

unpaid excess leave, or (2) receive payment for the accrued leave as of the day excess leave

begins and serve the entire period on unpaid excess leave.

20.53.5. If the accused’s sentence to a punitive discharge is set aside or disapproved upon

appellate review, the accused is entitled to pay and allowances for the period of required excess

leave unless a rehearing or new trial is ordered and a punitive discharge results from the

rehearing. The amount of pay and allowances is reduced by the amount of income,

unemployment compensation, and public assistance benefits received by the accused from any

government agency during the period of excess leave.

20.53.6. The convening authority must cause the member’s status to be changed to excess

leave upon completion of a sentence to confinement where the member’s unsuspended punitive

discharge is still pending appellate review. The procedures for doing so can be found in

paragraph 20.56. Such involuntary excess leave may continue until the date the discharge is

executed, unless terminated at any earlier date. A template notification to the member is

located on the VMJD and AF/JAJM Teams page.

20.53.6.1. USAFA cadets may request voluntary excess leave (“administrative turnback”)

pending investigation or military justice action. In the event that a cadet is already on

voluntary excess leave following a court-martial, a subsequent notification of involuntary

excess leave is not required. However, if a USAFA cadet requests to return from voluntary

excess leave while pending appeal (following adjudication of punitive discharge),

involuntary excess leave paperwork must be processed in accordance with this chapter. In

addition, if the USAFA cadet was suspended and placed on involuntary excess leave in

accordance with 10 U.S.C. § 702 prior to the court-martial, the USAFA cadet will return

to involuntary excess leave status following a court-martial conviction.

20.54. Excess Leave for Accused Assigned Outside the Continental United States. When a

convening authority directs excess leave for an accused serving in an overseas area at the time

excess leave is directed, the convening authority will direct reassignment to the force support

squadron at the base nearest the appellate leave address provided by the accused. The convening

authority may issue this direction through the SJA if appellate leave is provided for in the

CADAM.

178 DAFI51-201 24 JANUARY 2024

20.54.1. An accused may go directly to a designated leave address without reporting into the

gaining unit. Before departing the overseas location, the accused determines whether to

physically report into the gaining unit.

20.54.2. The losing commander, consistent with the accused’s election, directs the accused to

travel from the overseas location to either the appellate leave address or the gaining unit as

soon as possible after completion of out-processing. After arrival, the accused commences

taking accrued leave, if so elected, and any required excess leave.

20.54.3. The accused will be considered assigned to the force support squadron at the gaining

base on the date the member physically reports to the unit or, in cases where the accused does

not physically report to the gaining unit, the date determined by the local force support

squadron’s personnel relocations element based upon the accused’s departure date and travel

time.

20.54.4. Overseas members may provide an ordinary or voluntary leave address in an

OCONUS state or territory of the United States (e.g., Alaska, Hawaii, Guam) and HQ AFPC

may assign the member to the force support squadron nearest such leave address. Overseas

members assigned to units in foreign countries when placed on involuntary excess leave must

provide an appellate leave address in a state or territory of the United States and will be

reassigned to a force support squadron at the base nearest the appellate leave address. Overseas

members in foreign countries at the time they are placed on involuntary excess leave will be

required to depart the foreign country.

20.55. Excess Leave Procedures.

20.55.1. When the convening authority orders an accused to take excess leave, the convening

authority (or the SJA, if the convening authority so directs in the CADAM) sends the accused

a letter, directing the excess leave and informing the accused of entitlements, status and

responsibilities while on excess leave. The SJA for the convening authority directing excess

leave ensures a signed copy of this letter, with the accused’s receipt and any subsequent address

changes, is sent to the servicing force support squadron. A copy of all excess leave letters must

be sent to AFJAJM and AF/JAJA. In cases of an accused being reassigned from overseas, a

copy of the letter must also be sent to the SJAs of the SPCMCA and GCMCA of the gaining

unit and the gaining, or excess leave, FSS/CC. The format for the letter is available on the

VMJD and AF/JAJM Teams page.

20.55.2. Action to place the accused on voluntary or involuntary excess leave must comply

with Joint Travel Regulations; DAFI 36-3003, Military Leave Program; DAFI 36-2110;

DAFMAN 36-2102, Base-Level Relocation Procedures; and DAFMAN 31-115, Vol 1.

Ensure DCMS-AMJAMS is updated to reflect the accused’s appellate leave address and the

base nearest the address when the accused was reassigned.

20.56. Travel of Personnel Awaiting Completion of Appellate Review. An accused

involuntarily placed on excess leave while awaiting completion of appellate review of a court-

martial sentence to a punitive discharge or dismissal may be provided travel or transportation in

kind, according to the Joint Travel Regulations. Ensure a special travel order is published in the

“A” series if the court-martial convening authority directs involuntary appellate (excess) leave

according to DAFI 36-3003 and this instruction. If the accused’s court-martial findings or sentence

is disapproved or set aside, and the member is restored to duty, the member is authorized travel or

DAFI51-201 24 JANUARY 2024 179

transportation in kind, according to the Joint Travel Regulations. In such cases, publish an “A”

Series Travel Order in accordance with the publishing directive.

Section 20N—Post-EoJ Action by the Convening Authority

20.57. General Provision. In accordance with R.C.M. 1109, the convening authority may take

action on the sentence in certain cases after the EoJ is complete.

20.58. Requirement for Subsequent CADAM. In any case where the convening authority takes

action on the sentence subject to this section, the convening authority must issue a new CADAM.

(T-0) See also R.C.M. 1109(g)(2).

20.59. Procedures. Once the subsequent CADAM is complete, the convening authority submits

it to the servicing legal office who shall forward the CADAM to the Chief Judge, AF/JAT. (T-0)

20.60. Service on Accused and Any Victims. In accordance with R.C.M. 1109(h), the additional

CADAM must be served on counsel for the accused, if represented, and counsel for the victim(s),

if represented. If either the accused or victim(s) are not represented by counsel, the additional

CADAM will be served directly on the accused and victim(s).

20.61. Requirement for Additional EoJ. The Chief, AF/JAT, or designated military judge must

execute an additional EoJ after receipt of the CADAM. (T-0) See R.C.M. 1109(g)(2) and (h). The

EoJ will then be forwarded to the servicing SJA for execution of a new first indorsement and

distribution in accordance with the STR/EoJ Distribution List on the VMJD and AF/JAJM Teams

page. The servicing SJA will ensure the subsequent CADAM, additional EOJ, and new first

indorsement are sent to AF/JAJM for inclusion in the original ROT.

180 DAFI51-201 24 JANUARY 2024

Chapter 21

CORRECTING OR MODIFYING POST-TRIAL PAPERWORK AND THE RECORD

OF TRIAL

Section 21A—Correcting the STR and First Indorsement

21.1. Contents of the STR. The prescribed STR form contains data required by R.C.M. 1101

and additional information required by policy. This additional information includes SSNs, rank,

and other administrative data that is used to identify the member and carry out various personnel

and administrative functions.

21.2. Administrative Errors. Errors to administrative data listed on the STR but not required

under R.C.M. 1101 (e.g., the member’s SSN, rank, date, etc.) may be corrected on the STR in the

manner prescribed in Section 21E at any time.

21.3. First Indorsement. The SJA may make corrections to the first indorsement at any time.

Corrections require redistribution of the STR and first indorsement in accordance with Section

21D.

21.4. Errors Identified Prior to EoJ. Errors on the STR identified prior to the EoJ are corrected

in accordance with R.C.M. 1101(e). (T-0)

Section 21B—Correcting the Convening Authority’s Decision on Action.

21.5. Contents of the Convening Authority’s Decision on Action Memorandum. The

prescribed CADAM includes the convening authority’s action (or decision to take no action) as

well as other administrative matters. Such administrative matters include ordering the member on

appellate leave. These matters are included in the memorandum in order to provide the accused

notice of any administrative requirements (e.g., appellate leave) executed by the convening

authority.

21.5.1. Errors in the Memorandum. Errors in the CADAM that do not relate to or affect the

convening authority’s action and thus do not affect the EoJ on the findings or sentence will be

corrected in the manner described in Section 21D after the EoJ has been signed. An example

of such an error is misstating that a victim submitted matters under R.C.M. 1106A when there

was no victim in the case.

21.6. Errors in the Action Language. Errors in the convening authority’s action may be

corrected prior to the EoJ in accordance with R.C.M. 1104(b). If corrections must be made after

the EoJ, follow the procedures in Section 21C.

21.6.1. Any corrections made by the convening authority must be memorialized in a

subsequent CADAM and attached to the original CADAM. In the event corrections are made

by the military judge in accordance with R.C.M. 1104(b)(2)(B), the military judge

memorializes those corrections on the EoJ.

21.6.2. Subsequent CADAM. If an error is identified in the original memorandum a

subsequent CADAM must be accomplished in accordance with Section 20E. Subsequent

memorandums must be distributed in accordance with paragraph 20.26, and both the original

and subsequent memorandums must be included in the ROT.

DAFI51-201 24 JANUARY 2024 181

Section 21C—Correcting the EoJ

21.7. Contents of the EoJ. The template EoJ form contains data required by R.C.M. 1111(b) and

additional information required by policy. This additional information includes SSNs, rank, and

other administrative data that is used to identify the member and carry out various personnel and

administrative functions.

21.8. Errors Identified in the EoJ. Errors identified in the EoJ may only be corrected in

accordance with R.C.M. 1111(c) and 1112(d). (T-0) If such errors are not corrected or are outside

the scope of R.C.M. 1111(c), the errors may render the ROT defective.

21.8.1. The military judge who entered a judgment may issue a modified EoJ to correct any

errors prior to certification of the record under R.C.M. 1112 in accordance with R.C.M.

1111(c).

21.9. After Certification of the Record.

21.9.1. The detailed military judge may make modifications to the EoJ consistent with the

purposes of the remand.

21.9.2. TJAG, the Chief Trial Judge, the AFCCA, and the CAAF may also modify a judgment

in the performance of their duties and responsibilities in accordance with R.C.M. 1111(c)(2).

21.10. First Indorsement. The SJA may make corrections to the first indorsement at any time.

Corrections require redistribution of the EOJ and first indorsement in accordance with Section

21D.

Section 21D—Method for Making Corrections

21.11. General Provision. If corrections are made to the first indorsement, STR, CADAM (as

described in paragraph 21.5.1), or EoJ, the corrected copy must be inserted in place of the original

document and included in the original, AF/JAJM copies 1 and 2, and office copies of the ROT.

See the GCM/SPCM ROT Assembly Checklist on the VMJD and AF/JAJM Teams page. The

original erroneous document and any prior corrected copies should be included in the ROT behind

the corrected copies, before the audio recording. Corrected copies must be redistributed in

accordance with the STR/EoJ Distribution list on the VMJD and AF/JAJM Teams page. If

corrections are made to the first indorsement only, the STR, EoJ, and the first indorsement, must

be redistributed in accordance with the STR/EoJ Distribution list on the VMJD and AF/JAJM

Teams page.

21.12. Header. If changes are made to the first indorsement, STR, CADAM (as described in

paragraph 21.5.1), or EoJ form, the phrase “corrected copy – destroy all others” must be included

in the header in bold and all caps (CORRECTED COPY – DESTROY ALL OTHERS). If

changes are only made to the first indorsement, the phrase “corrected copy – destroy all others”

must be included in the header in bold and all caps (CORRECTED COPY – DESTROY ALL

OTHERS) only on the first indorsement. If multiple corrected copies are required, the corrected

copies must be numbered (e.g., SECOND CORRECTED COPY, THIRD CORRECTED

COPY, FOURTH CORRECTED COPY, etc.)

21.13. Making Corrections on the first indorsement, STR, CADAM (as described in

paragraph 21.5.1), and EoJ. Incorrect information should remain on the form but be struck

182 DAFI51-201 24 JANUARY 2024

through. The correct information should follow and be underlined. For example, if the accused’s

SSN was incorrectly listed on the STR, it should be corrected as follows: 111-22-4444 111-22-

3333. Note: The date listed in the “Date” block on the STR and EoJ must be updated for each

corrected copy. The date does not need to be struck through or underlined when updated. The

paragraph immediately preceding the military judge’s signature should reflect the date judgmenet

was originally entered. The date of the first indorsement should be updated to reflect the date the

corrected first indorsement is signed. Corrected copies must be distributed in accordance with the

STR/EoJ Distribution list on the VMJD and AF/JAJM Teams page.

21.14. Signatures. Corrected copies of the STR and EoJ must be signed by the same military

judge or by the military judge directed by the Chief, Trial Judiciary and must indicate the date the

judgment was initially entered into the record. Corrected copies of the first indorsement must be

signed by the SJA or person Acting as the SJA.

Section 21E—Correcting the ROT

21.15. Defective or Incomplete ROT. A defective or incomplete ROT is corrected in accordance

with R.C.M. 1112(d). A Certificate of Correction is prepared and certified by the military judge

detailed to the case. After certification, provide a copy of the certificate to the trial counsel, defense

counsel, and the accused. See DAFMAN 51-203, paragraph 3.9.2.

21.15.1. Defective or incomplete ROTs may be forwarded by the superior competent authority

to the Chief Trial Judge for correction. The Chief Trial Judge may detail a subordinate trial

judge to correct the ROT in accordance with R.C.M. 1112(d)(2).

21.15.2. TJAG has designated the Chief, AF/JAJM, a superior competent authority for

purposes of declaring records of trial defective or incomplete and ordering corrections under

R.C.M. 1112(d)(2). In the absence of the Chief, AF/JAJM, the Associate Chief, AF/JAJM,

may exercise this authority.

21.15.3. Additionally, prior to the certification of a ROT and its submission to the Appellate

Records section, SJAs for the convening authority who convened the court are superior

competent authorities for purposes of declaring records of trial defective or incomplete and

ordering corrections under R.C.M. 1112(d)(2).

DAFI51-201 24 JANUARY 2024 183

Chapter 22

COURTS OF INQUIRY (ARTICLE 135, UCMJ; MCM, PART I, PARAGRAPH 2(B)(3))

22.1. General. A court of inquiry is one of several investigative methods available to ascertain

the facts of a matter of importance to the DAF. Only a GCMCA may convene a court of inquiry.

A sample convening order is located on the VMJD and AF/JAJM Teams page. A court of inquiry

should not be used when statute or regulation otherwise provides specific investigative procedures

for a matter. A court of inquiry should not be used in place of an Article 32, UCMJ, preliminary

hearing unless deemed necessary to produce evidence not otherwise reasonably available. If,

however, a court of inquiry previously investigated the subject matter of an offense and the

requirements of R.C.M. 405(a) are met, an Article 32, UCMJ, preliminary hearing may not be

necessary prior to referring charges related to the previously investigated offense(s).

22.2. Personnel.

22.2.1. Members of the Court of Inquiry. A court of inquiry consists of three or more

commissioned officers. The senior member is the president. All members should be senior to

any person whose conduct is the subject of the inquiry.

22.2.2. Counsel for the Court of Inquiry. The convening authority appoints a judge advocate

certified under Article 27(b), UCMJ, as legal advisor for the court of inquiry. The counsel

assists the court of inquiry in matters of law, presenting evidence, and keeping the record.

22.2.3. Party to the Court of Inquiry. The convening authority may designate any person

subject to the UCMJ whose conduct is subject to inquiry as a party to the court of inquiry. Any

person subject to the UCMJ or employed by the DoD may also be designated a party if they

have a direct interest in the inquiry and request the convening authority or the Court designate

them as a party. Any person designated as a party is given due notice and has the right to be

present, to be represented by counsel, to cross-examine witnesses, and to introduce evidence.

22.2.4. Counsel for Parties. Military members who are party to the court of inquiry are entitled

to representation by a defense counsel certified under Article 27(b), UCMJ. A party may

request IMDC, subject to the rules of reasonable availability applicable to trials by court-

martial. Any party may retain a civilian counsel at no expense to the government. See Article

135(c)(3), UCMJ; M.R.E. 305(d); R.C.M. 502(d).

22.2.5. Reporter. A qualified court reporter, requested through AF/JAT, records the

proceedings and testimony, and prepares a record of the proceedings for authentication by the

president.

22.3. Procedures.

22.3.1. Convening Order. Use the sample format on the VMJD and AF/JAJM Teams page to

convene a court of inquiry. The order appoints the members and counsel for the court of

inquiry, states the subject of inquiry, designates known parties, and directs a report of findings

of facts on the issues involved. If the convening authority desires conclusions and

recommendations, include this in the order. The convening order should set the time and place

of the court of inquiry. The convening order is provided to the parties and counsel.

22.3.2. Challenges. Members of a court of inquiry may be challenged by a party, but only for

cause stated to the court. The president of the court, with advice from the legal advisor, rules

184 DAFI51-201 24 JANUARY 2024

on challenges. In the event the president of the court is challenged, the challenge must be

forwarded to the convening authority for a determination.

22.3.3. Oaths. The members, counsel, reporter, and interpreter take an oath or affirmation to

faithfully perform their duties. Article 135(e), UCMJ. The president or counsel for the court

of inquiry may administer oaths. Article 136, UCMJ.

22.3.4. Procedures and Rules of Evidence. The procedures and rules of evidence that apply

to an Article 32, UCMJ, preliminary hearing apply to a court of inquiry.

22.3.5. Witnesses. The president of the court may issue subpoenas for civilian witnesses.

R.C.M. 703(g)(3)(D). All witnesses testifying before a court of inquiry do so under oath or

affirmation. Members of the court of inquiry, the counsel to the court of inquiry, the counsel

to a party, or a party unrepresented by counsel may examine all witnesses. A party cannot be

compelled to testify but may testify under oath subject to cross-examination or make an

unsworn statement.

22.3.6. Written Report by the Court of Inquiry. The court of inquiry makes findings of fact,

but may not make conclusions of law and recommendations, unless required to do so by the

convening authority. Dissenting views are authorized.

22.3.7. Record of the Court of Inquiry. Each court keeps a record of its proceedings. The

record is authenticated in accordance with Article 135(h), UCMJ. The president forwards the

authenticated record to the convening authority, who obtains a legal review from the servicing

SJA. The SJA’s legal review includes a summary of the proceedings, a determination of the

legal sufficiency of the proceedings, and a recommended action. If the record of the

proceedings is to be used as a substitute for an Article 32, UCMJ, preliminary hearing, it must

comply with the requirements of R.C.M. 405(k).

22.3.8. Revision. The convening authority may reconvene the court of inquiry and direct it to

take additional action as the convening authority deems necessary.

DAFI51-201 24 JANUARY 2024 185

Chapter 23

SUMMARY COURTS-MARTIAL

Section 23A—General Guidance for SCMs

23.1. Summary Court-Martial Guide. For additional guidance on processing summary courts-

martial, refer to Appendix 8 of the MCM.

23.2. Non-Criminal Forum. SCMs are not criminal forums. SCMs may be used to adjudicate

minor offenses. See MCM, Part V.1(e). Convictions at SCMs do not constitute criminal

convictions. Note: However, a finding of guilty at an SCM still has criminal indexing implications

if it is for a qualifying offense under federal law or Air Force policy. See paragraph 29.35.5.

AFMAN 71-102; 18 U.S.C. § 922; and 27 C.F.R. § 478.11, Meaning of terms.

23.3. Former Jeopardy Considerations. An SCM triggers former jeopardy under Article 44,

UCMJ in the same manner as an SPCM or GCM.

23.4. Lack of Jurisdiction of SCM. SCMs do not have jurisdiction over officers. Only enlisted

members may be tried by SCM. SCMs do not have jurisdiction over capital offenses. SCMs do

not have jurisdiction over any offense with a mandatory minimum sentence, to include penetrative

sexual assault offenses or attempts or conspiracy to commit such offenses.

23.5. Right to Object to Trial by SCM. Before arraignment, an accused may object to being

tried by an SCM even if they previously refused punishment under Article 15, UCMJ, and

demanded trial by court-martial. If an accused objects to trial by SCM, the charges may be dealt

with by any means listed in R.C.M. 401. See R.C.M. 1303.

23.6. Punishment Limitations. The maximum penalty that can be adjudged in a summary court-

martial is confinement for 30 days, forfeiture of two-thirds pay per month for one month, and

reduction to the lowest pay grade. In the case of enlisted members above the fourth enlisted pay

grade, summary courts-martial may not adjudge confinement, hard labor without confinement, or

reduction except to the next pay grade. R.C.M. 1301(d)(1) & (2).

23.7. Victims’ Rights. “Victim” is defined as any person who has suffered a direct, physical,

emotional, or pecuniary harm as a result of the commission of a UCMJ offense. For discussion of

applicable rights at an SCM, see Article 6b, UCMJ, and AFMAN 71-102.

Section 23B—Composition of an SCM

23.8. Summary Court-Martial Officer (SCMO). An impartial, RegAF or Space Force

commissioned officer presides over an SCM as the SCMO. A Reserve commissioned officer on

active duty or an ANG commissioned officer on active duty in federal service may serve as an

SCMO. The SCMO must be impartial. Before appointing an officer to serve as an SCMO, the

convening authority should consider the appointment in the context of the officer’s normally

assigned duties and assess whether the SCMO’s impartiality could be questioned based on the

SCMO’s relationship with the case, the parties, and the base legal office.

23.8.1. If the SCMO is not a certified judge advocate, an impartial legal advisor must be made

available to the SCMO. This may be done telephonically. Whether a legal advisor is impartial

should be considered in the context of the officer’s normally assigned duties and relationship

186 DAFI51-201 24 JANUARY 2024

with the case, the parties, and the base legal office. A SCMO may seek advice from a judge

advocate or legal officer on questions of law, but may not seek advice from any person on

factual conclusions that should be drawn from evidence or the sentence that should be imposed.

The SCMO has the independent duty to make these determinations.

23.9. Defense Counsel. The member has a right to consult a lawyer before making any decisions,

and a lawyer may assist the member throughout the proceedings. Civilian counsel, qualified under

R.C.M. 502(d)(2, may represent the accused at the accused’s own expense if it will not cause

unreasonable delay.

23.10. Government Counsel. A properly designated judge advocate may be detailed to represent

the government. Paralegals and other non-judge advocates, e.g., legal interns, may serve as

assistant government representatives. However, if a paralegal or non-judge advocate serve as

assistant government representative, a judge advocate who is qualified and certified under Articles

27(b) and 42(a), UCMJ, must serve as the primary government representative and is responsible

for supervising the non-judge advocate and their work.

Section 23C—Convening an SCM

23.11. Convening Authority.

23.11.1. A GCMCA or SPCMCA may convene an SCM. The commander of a detached

squadron or other detachment may convene an SCM, but only with the express authorization

of the superior DAF GCMCA. See R.C.M. 504(b)(2)(B).

23.11.2. Convening Authority as Accuser. If the convening authority is the accuser, the

convening authority may forward the charge(s) to a superior authority with a recommendation

to convene an SCM. This is not mandatory and jurisdiction is not affected if the case is not

forwarded. See R.C.M. 1302(b). The convening authority may not, however, sit as the SCMO

unless there are no other commissioned officers in the command or detachment. See R.C.M.

1301(a) and R.C.M. 1302(b).

23.11.3. SCMO as Accuser. An accuser is not impartial and should not be detailed as the

SCMO. If, however, the accuser is the only commissioned officer in the command or

detachment, the accuser may be detailed as the SCMO. See R.C.M. 1302(b).

23.12. Detailing Summary Courts-Martial. An SCM is detailed by a convening order. The

convening order is a special order prepared in accordance with R.C.M. 504(d) signed by the

convening authority. For composition of an SCM, refer to R.C.M. 1301(a). See the sample

summary courts-martial convening order on the VMJD and AF/JAJM Teams page.

23.12.1. All SCMs are constituted by special orders that are numbered consecutively on a

fiscal year basis, starting with the number 1, and using an AC series letter prefix. See

paragraph 14.5.2.

23.12.2. When generating the convening order, the following single paragraph is a model to

be used for the convening authority’s signature in an appropriately formatted AC series special

order: “Pursuant to authority contained in Special Order G-20-001, Department of the Air

Force, dated 5 December 2019, a summary court-martial is hereby convened. I reviewed the

charge sheet and evidence in the case of United States v. A1C John H. Doe. It may proceed at

DAFI51-201 24 JANUARY 2024 187

Beale AFB, California, to try such persons as may be properly brought before it. Lt Col Will

I. Judge, 30 SW/DO, is detailed as the Summary Court-Martial Officer.”

23.12.3. The convening authority signs the convening order. The SJA may sign the DD Form

458 on the convening authority’s behalf, if the convening order is signed by the convening

authority; otherwise, the convening authority signs the referral section on the DD Form 458.

Section 23D—Preparing the DD Form 2329, Record of Trial by Summary Court-Martial

23.13. DD Form 2329. The DD Form 2329, Record of Trial by Summary Court-Martial, is the

key component to the record of trial (ROT) in a SCM. The SCMO must use the DD Form 2329

throughout the proceedings and must sign it immediately after trial.

23.14. Completing the DD Form 2329. The legal office should prepare Blocks 1-3c and Block

8 through the “Charge(s)” section prior to the court. The SCMO will complete all of the remaining

blocks, except for Block 13 (convening authority action). The legal office must ensure the entirety

of the DD Form 2329 is correct and accurately reflects the specifications from the charge sheet,

pleas and findings for both the charge(s) and the specification(s), and sentence (as announced at

the court-martial) prior to the SCMO’s certification. A sample DD Form 2329 is on the VMJD

and AF/JAJM Teams page.

23.14.1. Block 1. Accused Information. List name of accused, current rank,

current unit/organization, and DOD ID No.

23.14.2. Block 2. Convening Authority’s name, rank, “position” should be “commander,”

and organization (unit, base, and state).

23.14.3. Block 3. SCMO’s name, rank, and unit/organization (unit, base, and state). Below

the personal information of the SCMO, enter the UCMJ Articles the accused is being charged

with. The accused must circle whether or not they refuse the SCM and must sign and date this

portion.

23.14.4. Block 4. Add the date the SCMO held any preliminary proceedings at which the

SCMO provided the charge sheet to the accused. If there were no preliminary proceedings,

then add the date of the court and immediately provide a copy of the charge sheet to the

accused. The SCMO will complete the block by marking in the “Yes” or “No” block.

23.14.5. Block 5. The SCMO will complete these blocks by marking in the “Yes” or “No”

block.

23.14.6. Block 6. Add the date the court-martial proceeding (or preliminary proceeding)

began. The SCMO must indicate whether or not the accused objected to trial by SCM and must

have the accused initial the designated box.

23.14.7. Block 7. In Block 7a, the SCMO will add whether or not the accused was represented

by counsel. If represented, the SCMO will add the name and rank of the defense counsel and

their qualifications in Blocks 7b-d.

23.14.8. Block 8.

23.14.8.1. In the “Charges and Specifications” column, include the charge and article

number, skip a line and then add the specification. The text of the specification can be

copied directly from the charge sheet, or you may omit personal data (e.g., name, rank,

188 DAFI51-201 24 JANUARY 2024

unit, etc.) but the rest of the specification should match the charge sheet. For example:

“Did, at or near Dover AFB, DE, on or about 1 January 2019, wrongfully use

phencyclidine, a Schedule II controlled substance.” If more room is needed for Charges

and Specifications, use a continuation sheet.

23.14.8.2. In the “Pleas” column the SCMO indicates how the accused pled to each charge

and specification. In the “Findings” column the SCMO indicates the findings of the SCMO

as to each charge and specification. [guilty (“G”); not guilty (“NG”); not guilty, but guilty

of a lesser included offense (“NG, but guilty of the LIO of Art. X”); guilty by exceptions

(“G, except the word(s) “_____,” of the excepted word(s), NG”); or guilty by exceptions

and substitutions (“G, except the word(s) “_____” and substituting therefor the word(s)

“_____,” of the excepted word(s), NG, of the substituted word(s), G”)]

23.14.8.2.1. There must be a plea and finding annotated for each charge and

specification.

23.14.9. Block 9. The SCMO annotates the sentence as adjudged.

23.14.9.1. Any forfeitures must be announced and annotated in a whole dollar amount.

23.14.9.2. Annotate any pretrial confinement credit and/or illegal pretrial confinement

credit in this block.

23.14.10. Blocks 10-11. The SCMO must mark “Yes” or “No.”

23.14.11. Block 12. The SCMO must sign and date this block. Before certifying, the SCMO

must coordinate with the base legal office to ensure the DD Form 2329 is prepared correctly

and that all exhibits are accounted for.

Section 23E—Conducting the SCM (R.C.M. 1304)

23.15. Procedures. See R.C.M. 1304 and the SCM Guide for detailed procedures to be followed

when conducting an SCM. The SCM Guide, found in Appendix 8 of the MCM, also includes the

script to be used for such a proceeding.

Section 23F—Post-Trial Procedure (R.C.M. 1306)

23.16. Required SJA first indorsement to DD Form 2329. After trial, upon certification of the

DD Form 2329, the SJA must complete the first indorsement to the DD Form 2329. A sample is

located on the VMJD and AF/JAJM Teams page. The purpose of the indorsement is to identify

any criminal indexing requirements as a result of the offenses and notify the appropriate agencies.

23.17. Distribution of the DD Form 2329 following trial. Immediately following trial, provide

a copy of the SCMO certified DD Form 2329 to the accused and obtain a receipt. Provide a

redacted copy to any victim upon request. Additionally, distribute the DD Form 2329 and first

indorsement, regardless of verdict, in accordance with the SCM Distribution List on the VMJD

and AF/JAJM Teams page.

23.18. 14-Day Memorandum and 24-Hour Memorandum. In all SCMs with adjudged

forfeitures or reduction in grade, a 24-Hour Memorandum is required. See paragraph 20.38.2.

In such cases, if the convening authority’s action is not complete within 14 days, both a 14-Day

Memorandum and a 24-Hour Memorandum (paragraph 20.38.1) must be accomplished and

DAFI51-201 24 JANUARY 2024 189

distributed. However, if the convening authority’s action is completed within 14 days, a 14-Day

Memorandum is not required.

23.19. Matters Submitted by the Accused. The accused may submit clemency matters to the

convening authority within seven days after the sentence is announced. The convening authority

may grant an extension of up to 20 additional days for good cause. Any matters submitted by a

victim must be served on the accused, and the accused has five additional days to rebut those

matters. See R.C.M. 1106(d). Templates are located on the VMJD and AF/JAJM Teams page.

23.20. Matters Submitted by the Victim(s). Any victim, as defined in this chapter, whose

allegation resulted in a conviction may submit matters for the convening authority’s consideration

within seven days after the sentence is announced. The convening authority may grant an

extension of up to 20 additional days for good cause. The legal office must immediately serve the

victim’s matters on the accused. The SCMO shall inform eligible victims of their right to submit

matters. See R.C.M. 1106A. A template notification letter is located on the VMJD and AF/JAJM

Teams page.

23.21. Rehearing. The convening authority may order a rehearing as to some or all offenses of

which findings of guilty were entered and the sentence, or as to sentence only. See R.C.M. 1306(c)

for further guidance.

23.22. Convening Authority Action. After the periods for submission of matters by the accused

and victim expire (or are waived), the convening authority shall take action in accordance with

R.C.M. 1306(b). Action by the convening authority will be annotated on Block 13 of DD Form

2329. The convening authority shall consider matters submitted by the accused and victim.

23.22.1. The convening authority may take action on the findings, but it is not required. See

Article 60b(a), UCMJ, and R.C.M. 1306.

23.22.2. The convening authority shall approve the sentence or take other action detailed in

Article 60b(a)(1), UCMJ. The action must state whether the adjudged sentence is approved.

If only part of the sentence is approved, the action must state which parts are approved. See

R.C.M. 1306(d). Sample SCM action language is located on the VMJD and AF/JAJM Teams

page.

23.22.3. If the SCMO expresses forfeitures as a fraction, the convening authority may correct

this error by expressing forfeitures in whole dollar amounts in the convening authority action.

23.22.4. There is no requirement for the SJA to provide written legal advice to the convening

authority prior to action. Any written legal advice on action must be served on the accused

and defense counsel.

23.23. Annotating Convening Authority Action. Annotate the convening authority’s action in

Block 13 of the DD Form 2329. The convening authority, not a party acting on behalf of the

convening authority, must sign Block 13. If the entirety of the action will not fit into the block,

then mark “See attached” in Block 13, and do not complete the rest of the block. Instead, put the

entire action on a separate document, signed and dated by the convening authority. Electronic

signatures are authorized on both the DD Form 2329 and separate document annotating the

convening authority action. A sample is provided on the VMJD and AF/JAJM Teams page.

23.23.1. SJA Second Indorsement to the DD Form 2329. Upon the convening authority’s

action, the SJA must complete a Second Indorsement to the DD Form 2329.

190 DAFI51-201 24 JANUARY 2024

23.24. Distribution of the DD Form 2329 after Action. Immediately following the convening

authority’s action, distribute DD Form 2329, any separate page action, first, and second

indorsements in accordance with the SCM Distribution List on the VMJD and AF/JAJM Teams

page.

23.25. Serving Convening Authority Action on the Accused and Victim. The SJA must serve

the convening authority’s action on the accused and victim. (T-0) If the SJA serves the action

decision on the accused’s or victim’s counsel, counsel must provide a copy to their client. (T-0)

Service of the record of trial on the accused (which includes the action) will satisfy this

requirement. If any subsequent action is required, it, along with the court-martial order, must be

served on the accused and the victim.

23.26. Correcting Convening Authority Action. If errors are subsequently identified in the

action after the convening authority completes Block 13, then correct the error by withdrawing the

original action and substituting a new one. The convening authority (including successors)

completes the new action on a separate page using the following language: “the action taken by

me (or my predecessor) on (date) is withdrawn, and the following is substituted therefor: (insert

new action).” After the convening authority signs the new action, the SJA must sign and publish

a court-martial order, and distribute the order to the same individuals who received the DD Form

2329. Samples are provided on the VMJD and AF/JAJM Teams page.

Section 23G—Preparing and Serving the ROT and Post-Trial Review

23.27. See DAFMAN 51-203.

DAFI51-201 24 JANUARY 2024 191

Chapter 24

APPEALS, REVIEWS, AND PETITIONS FOR NEW TRIAL

Section 24A—Appellate Defense Counsel

24.1. Accused’s Request for Appellate Defense Counsel (Article 70, UCMJ).

24.1.1. Include an AF Form 304, Request for Appellate Defense Counsel, signed by the

accused in every ROT forwarded to AFCCA, to include cases referred by TJAG.

24.1.2. The accused’s trial defense counsel assists the accused in filling out the form, obtains

the accused’s signature, and submits it to the trial counsel or appropriate SJA as soon as

practicable after sentence announcement.

24.1.3. The AF Form 304 provides the accused’s preferred contact information (appellate

leave address, etc.) for all appellate review correspondence when the accused is not in a

confinement facility. An adequate mailing address must be included even if the accused

waives appellate review or does not request appellate defense counsel. Adequate phone and

e-mail contact information facilitates contact with appellate defense counsel. The accused

must not use addresses for the ADC or civilian defense counsel office(s), base organization, or

on-base residence. If they do, contact the accused’s ADC to re-accomplish the form. Adequate

contact information is where the accused can be directly contacted.

24.1.4. If an accused’s death sentence has been approved by the President pursuant to Article

57, UCMJ, and the accused seeks to file a post-conviction habeas corpus petition in federal

civilian court, the accused may request a military defense counsel from TJAG. Upon receipt

of the accused’s request, TJAG details military counsel under Article 70(f), UCMJ, to represent

the accused in such proceedings and any appeals.

24.2. Withdrawal of Request for or Declination of Appellate Defense Counsel.

24.2.1. The accused may decline appellate representation by checking the appropriate box on

the AF Form 304.

24.2.2. If the accused initially declines appellate representation after sentence is announced,

the accused must be given another opportunity to elect or decline appellate representation after

the convening authority’s decision on action is served upon the accused. (T-0) See United

States v. Xu, 70 M.J. 140 (C.A.A.F. 2011) (Summary Disposition).

24.2.2.1. If the accused again declines appellate representation after receiving the action,

include both versions of the AF Form 304 in the ROT (the one served on the accused

immediately after trial and the other served on the accused after action).

24.2.2.2. In those instances where an accused’s initial AF Form 304 indicates a declination

of appellate counsel, but a second AF Form 304 is not part of the ROT, the record will be

returned to the servicing SJA for execution of this requirement.

24.3. Waiver/Withdrawal of Appellate Review (Article 61, UCMJ; R.C.M. 1115).

24.3.1. If an accused wishes to waive or withdraw from Article 66, UCMJ, appellate review,

follow the procedures outlined in R.C.M. 1115. An accused may waive appellate review

before the case is docketed at AFCCA. After a case is docketed at AFCCA, an accused may

192 DAFI51-201 24 JANUARY 2024

withdraw from appellate review. The request to waive or withdraw must be filed after the EoJ.

The waiver or withdrawal should be accomplished on a DD Form 2330, Waiver/Withdrawal

of Appellate Rights in General and Special Courts-Martial Subject to Review by a Court of

Criminal Appeals. Note: Ensure use of the correct version of DD Form 2330, which is dictated

by referral date.

24.3.2. Once properly submitted, a waiver or withdrawal may not be revoked. A valid waiver

or withdrawal of appellate review bars review by AFCCA. See Article 61(d), UCMJ. It does

not prevent later submission of an Article 69(d), UCMJ application.

24.3.3. In the event of waiver, the servicing legal office must forward the original ROT and

attachments to the GCMCA SJA for an Article 65(d), UCMJ, review conducted in accordance

with R.C.M. 1201. See paragraph 24.16.

24.3.4. In the event of withdrawal, appellate defense counsel must file a motion with the

appropriate appellate court. Upon granting of the motion, the GCMCA SJA will be notified

by AF/JAJM to complete an Article 65(d), UCMJ, review conducted in accordance with

R.C.M. 1201 and a Certification of Final Review (CFR) will need to be completed. See

paragraph 24.16 and Chapter 27.

Section 24B—Appeals of Sentence by the United States (Art 56, UCMJ; R.C.M. 1117)

24.4. General Provision. With the approval of TJAG, the Government may appeal a sentence to

AFCCA on the grounds that the sentence violates the law, is a result of an incorrect application of

sentencing parameters or criteria established under Article 56(c), or is plainly unreasonable. See

Article 56(d), UCMJ, and R.C.M. 1117. The government may only file such an appeal if all

specifications of which the accused was convicted allege offenses that were committed on or after

1 January 2019.

24.4.1. A Government appeal of the sentence must be filed within 60 days after the EoJ is

complete. (T-0) Prior to filing a notice of appeal, the Government must receive convening

authority concurrence, consult with AF/JAJG and the servicing OSTC District Office, if

applicable, and receive TJAG approval through their functional chain. (T-0) The Government

must reserve adequate time after coordination to allow AF/JAJG to prepare the required

appellate briefs within the 60-day window. (T-0)

24.4.2. To seek TJAG approval, the requesting legal office must submit to AF/JAJG:

24.4.2.1. A statement of reasons that meets the requirements of R.C.M. 1117(c)(1)-(4)

(Note: The statement of reasons may not include facts outside the record established at the

time the sentence was announced.);

24.4.2.2. The EoJ;

24.4.2.3. The transcript of the proceedings or, if the transcript is not available at the time

of the request, a summary of the evidence and facts established at the time the sentence

was announced;

24.4.2.4. Convening authority concurrence, which may be established in the statement of

reasons;

DAFI51-201 24 JANUARY 2024 193

24.4.2.5. A block for AF/JAJG coordination, which may be established in the statement

of reasons;

24.4.2.6. A block for STC coordination, if applicable, which may be established in the

statement of reasons; and

24.4.2.7. Documentation showing concurrence and coordination with the functional chain

of command. This coordination may also be established in the statement of reasons.

24.4.3. Prior to acting, TJAG forwards the request to the military judge who presided over the

proceedings for the purpose of allowing the military judge, the parties, and the victim(s) to

make a submission addressing the statement of reasons in the Government’s request. See

R.C.M. 1117(c)(4).

24.4.3.1. The military judge shall establish the time for the parties and crime victims to

provide such a submission to the military judge, and for the military judge to forward all

submissions to TJAG. The military judge shall ensure that the parties have not less than

seven days to prepare, review, and transmit such submissions.

24.4.3.2. Submissions under this paragraph shall not include facts beyond the record

established at the time the sentence was announced under R.C.M. 1007.

24.4.4. Upon receiving TJAG approval, trial counsel may file a notice of appeal with the

military judge consistent with R.C.M. 908(b).

24.4.5. After filing a notice of appeal, trial counsel requests AF/JAJG file the appeal with

AFCCA. In the request, trial counsel will identify the sentence to be appealed and include the

following:

24.4.5.1. The statement of approval from TJAG; (T-0)

24.4.5.2. The Government’s request and statement of reasons; (T-0)

24.4.5.3. Any submissions made by the military judge, the defense, or the victim(s); (T-0)

24.4.5.4. Any other documentation required by AF/JAJG.

24.4.6. AF/JAJG decides whether to file the appeal with AFCCA, and notifies the requesting

party AF/JAJM, and the OSTC District Office, if applicable.

Section 24C—Judge Advocate Review of Summary Courts-Martial (Article 64, UCMJ; R.C.M.

1307)

24.5. Article 64, UCMJ, Overview. Every SCM resulting in a guilty finding receives an Article

64, UCMJ, review by the GCMCA legal office. See R.C.M. 1307.

24.6. Article 64, UCMJ, Review Requirements. An Article 64, UCMJ, review by a judge

advocate is required in each SCM where there is a finding of guilty. (T-0) No review is required

if the accused is found not guilty of all offenses, the convening authority disapproved all findings

of guilty, or the accused is found not guilty for all offenses only because of lack of mental

responsibility.

24.6.1. The GCMCA SJA over the accused at the time of trial appoints a judge advocate who

conducts the review.

194 DAFI51-201 24 JANUARY 2024

24.7. Disqualification.

24.7.1. A judge advocate who has acted in the same case as an accuser, PHO, SCMO, counsel,

or who has otherwise acted on behalf of the prosecution or defense may not conduct the Article

64, UCMJ, review. (T-0)

24.7.2. If the GCMCA acted as the convening authority for the SCM, then the GCMCA may

take action subject to the limitations. See R.C.M. 1307(c).

24.7.3. If all judge advocates on the GCMCA’s staff are disqualified from conducting the

Article 64, UCMJ, review, or the GCMCA is disqualified from taking any required action on

the case, the MAJCOM or FLDCOM SJA will select another GCMCA and SJA to perform the

review and take any required action. If there is not an eligible convening authority in the

command, or in the discretion of the MAJCOM or FLDCOM SJA, a judge advocate assigned

to the MAJCOM or FLDCOM legal office may conduct the review. If the MAJCOM or

FLDCOM is disqualified from conducting the review, then the MAJCOM or FLDCOM SJA

may request another MAJCOM or FLDCOM to act. If agreement cannot be reached between

MAJCOMs or FLDCOMs, contact AF/JAJM for assistance in identifying a GCMCA to act on

the case.

24.8. Form and Content of Article 64, UCMJ, Reviews.

24.8.1. Article 64, UCMJ, reviews should contain only those matters required in R.C.M.

1307(d). If no errors are alleged, the review will consist of a stamped or typed entry on the

DD Form 490, cover of volume one of the original ROT, and on each copy of the DD Form

2329, or separate page action. The entry shall be entitled, “Article 64, UCMJ, Review,” and

shall consist of the conclusions required in Article 64, UCMJ, and R.C.M. 1307(d), the

command unit designation of the reviewer, the date, signature of the reviewer, and the

reviewer’s signature block.

24.8.2. Corrective Action Not Required. If errors are alleged, the judge advocate conducting

the review must respond, in writing, to each written allegation of error made by the accused

even if the case does not require corrective action. (T-0) See R.C.M. 1307(d)(2). The review

is prepared, dated and signed by the reviewer, covers the matters required by Article 64, UCMJ,

and includes a statement that the findings and sentence are correct in law and fact. The review

is attached to the ROT. The DD Form 490 and the DD Form 2329 are annotated with a typed

or stamped notation consisting of the items required in paragraph 24.8.1.

24.8.3. Corrective Action Required.

24.8.3.1. If the judge advocate concludes that corrective action is required as a matter of

law, the judge advocate’s review will be in writing, dated and signed by the reviewer, and

will address the matters required in R.C.M. 1307(d), and include the options of the

GCMCA can take under R.C.M. 1307(f).

24.8.3.2. The judge advocate will prepare a supplemental order for the GCMCA to sign to

enact the GCMCA’s action on the review.

24.8.3.3. The GCMCA takes further action in accordance with R.C.M. 1307€ and Article

64(c), UCMJ, and the review and action are included in the ROT. There will be no

additional notation on the DD Form 490 and no additional notation on the DD Form 2329.

DAFI51-201 24 JANUARY 2024 195

The judge advocate's written review serves as the notation required by Article 64, UCMJ,

and R.C.M. 1307(d).

24.8.3.4. If the judge advocate concludes that corrective action is required as a matter of

law, and the GCMCA does not take action that is at least as favorable to the accused as that

recommended by the judge advocate, the ROT, Article 64, UCMJ, review, and convening

authority action are forwarded to AF/JAJM. AF/JAJM will forward the record to AF/JAJI

for review under Article 69(a), UCMJ. See Article 64(c)(3), UCMJ, and R.C.M. 1307(g).

(T-0) Note: In all other cases, the accused may petition TJAG for an Article 69, UCMJ,

review after the Article 64, UCMJ, review is complete.

24.8.3.5. If the GCMCA taking action under Article 64, UCMJ, orders a rehearing, the

ROT, Article 64, UCMJ, review, and Article 64, UCMJ, action, if applicable, will be sent

to the officer who convened the court-martial who determines whether a rehearing is

practicable. See Section 26A. If a rehearing is to be held and the accused has been

transferred to another command, the officer who convened the court-martial will

coordinate with the officer presently exercising special court-martial jurisdiction over the

accused. If the rehearing is found to be impracticable, the convening authority shall

dismiss the charges. (T-0)

24.9. Finality of SCM. Except for cases requiring Article 69, UCMJ, review under R.C.M.

1307(g), SCMs are final under Article 76, UCMJ, upon completion of the judge advocate’s Article

64 review and any required action by the GCMCA. However, even after the SCM is final, the

accused may petition TJAG to conduct a review under Article 69, UCMJ, to modify or set aside

the findings of a sentence in whole or in part. In order to qualify for such a review, the accused

must submit an application to TJAG, through AF/JAJM, no later than one year after the completion

of the Article 64, UCMJ, review. See R.C.M. 1201(h). (T-0) AF/JAJI conducts the review

following the procedures in Section 24E.

24.10. Article 64, UCMJ, Review Distribution. After completing the Article 64 review and,

when applicable, any action by the GCMCA, forward the original ROT and any supplementary

orders to AF/JAJM.

24.10.1. The GCMCA SJA will provide a copy of the Article 64, UCMJ, review and any

action taken by the GCMCA to the accused in person or via certified mail. (T-0) See R.C.M.

1307(f). If the GCMCA acted upon the case, also provide a copy of the supplemental order to

the accused in person or via certified mail. See R.C.M. 1307(f). If provided in person, obtain

a receipt from the accused. If sent via certified mail, include a receipt and request the accused

sign and return the receipt.

24.10.1.1. Attach the receipt or proof of mailing to the ROT.

24.10.2. The GCMCA SJA will provide one copy each of the DD Form 2329 indicating

compliance with Article 64(a), UCMJ, to the same parties listed on the SCM Distribution List,

available on the VMJD and AF/JAJM Teams page. Distribute any supplemental order(s) to

the same parties listed on the SCM Distribution List, available on the VMJD and AF/JAJM

Teams page.

196 DAFI51-201 24 JANUARY 2024

Section 24D—Review by AFCCA, CAAF, or the Supreme Court of the United States

24.11. AFCCA Review (Article 66, UCMJ; R.C.M. 1203).

24.11.1. AFCCA reviews cases under Article 66, UCMJ, in the following scenarios:

24.11.1.1. Cases resulting in automatic review under Article 66(b)(3), UCMJ, (e.g., cases

with a sentence which includes confinement for two years or more or a punitive discharge,

or death).

24.11.1.2. Direct Appeals. Timely appeals submitted by an accused under Article

66(b)(1)(A), UCMJ. See Article 66(c)(1), UCMJ, for the timeliness requirements.

24.11.1.2.1. Installation/GCMCA Procedures for Direct Appeal Eligible Cases.

24.11.1.2.1.1. After the ROT is complete, the original and one additional copy of

the ROT must immediately be forwarded to the GCMCA legal office.

24.11.1.2.1.2. The GCMCA legal office will send a notice to the accused pursuant

to Article 65(c)(1), UCMJ, informing the accused of the right to file a direct appeal

under Article 66(b)(1)(A), UCMJ and request a receipt of the notification from the

accused. A copy of the notice to the accused and the proof of mailing or if in-

person service, a copy of the receipt, must be added to the top of the first volume

of the ROT. The GCMCA legal office will forward the copy of the ROT to

AF/JAJM within seven days of the mailed notice to the accused and hold the

original record of trial for 90 days.

24.11.1.2.1.3. No Article 65(d), UCMJ, review should be completed by the

GCMCA legal office before forwarding the ROT in these cases. The GCMCA legal

office will conduct the Article 65(d), UCMJ, review if the accused affirmatively

waives appellate review or does not file a timely Article 66, UCMJ, appeal. See

paragraph 24.14.

24.11.1.2.2. AF/JAJM Procedure.

24.11.1.2.2.1. After receiving the copy of the ROT, AF/JAJM will provide it to

AF/JAJA.

24.11.1.2.2.2. If an appeal is filed, AF/JAJM will notify the GCMCA legal office

of the appeal and request the original ROT and one additional copy of the ROT.

Upon receipt, AF/JAJM will distribute the original ROT to AFCCA and a copy of

the ROT to AF/JAJG. AFCCA will review the appeal and submit a notice of

docketing to the parties.

24.11.1.3. Cases referred to it by TJAG under R.C.M. 1201(k)(1)(A) following an Article

69, UCMJ, review.

24.11.1.4. Timely appeals by an accused under Article 66(b)(1)(D), UCMJ, in a case

where an accused files for review under Article 69(d)(1)(B), UCMJ, and the application is

granted by the appellate court.

24.11.2. AFCCA reviews government appeals under Articles 56(d) and 62(a), UCMJ.

DAFI51-201 24 JANUARY 2024 197

24.11.3. Any petition the accused or government wishes to file with the AFCCA must be filed

in accordance with their rules of practice.

24.11.4. Notification of AFCCA Decision. Upon return of the record of trial from AFCCA,

AF/JAJM will prepare a notification memo transmitting AFCCA’s decision to the accused via

certified mail. The notification will inform the accused about the right to petition CAAF for

further review, the timeliness and procedural requirements for any such petition under R.C.M.

1203(f)(2) and the contact information for AF/JAJA. (T-0) AF/JAJM will request a receipt

of the notification from the accused. See R.C.M. 1203(f)(3).

24.11.4.1. AF/JAJM will provide a Notification of Mailing to AF/JAJA.

24.12. CAAF Review (Article 67, UCMJ; R.C.M. 1204). In accordance with The Rules of

Practice and Procedure, United States Court of Appeals for the Armed Forces, CAAF reviews the

record in the following situations:

24.12.1. Decisions by AFCCA appealed by the accused in which CAAF has granted a review.

24.12.2. Cases referred to the court by TJAG.

24.12.2.1. This includes appeals by the government under Article 62, UCMJ.

24.12.2.2. If TJAG refers a case to CAAF, AF/JAJM will cause a copy of the order

forwarding the case to be served on the accused and on appellate counsel. (T-0)

24.12.3. Cases in which the death penalty was adjudged, approved, and affirmed by AFCCA;

24.12.4. Decisions by AFCCA on petitions for extraordinary relief in which writ-petitions

have been filed and CAAF has granted a review.

24.12.5. Any petition the accused wishes to file with CAAF must be filed directly with the

Court in accordance with their rules of practice.

24.12.6. A copy of any filings made with CAAF will be promptly sent to

[email protected] for inclusion in the ROT.

24.13. Petition by Writ of Certiorari for Supreme Court Review (Article 67a, UCMJ). The

accused or the United States may file petitions for Supreme Court review by writ of certiorari in

those cases specified in Article 67a(a), UCMJ, and R.C.M. 1205(a). Such petitions are filed

according to the rules of the Supreme Court of the United States.

24.13.1. Military appellate defense counsel may assist the accused in preparing a petition for

writ of certiorari and provide representation before the Supreme Court when requested by the

accused.

24.13.2. When requested to do so by the Attorney General of the United States, TJAG will

appoint appellate government counsel to represent the United States.

24.13.3. A copy of any filings made with Supreme Court will be promptly sent to

[email protected] for inclusion in the ROT.

198 DAFI51-201 24 JANUARY 2024

Section 24E—Review by TJAG of GCMs and SPCMs Not Appealed to the AFCCA (Article 65,

UCMJ)

24.14. Overview. An Article 65(d), UCMJ, review is required for any GCM or SPCM when the

accused failed to timely file, waived, or withdrew an Article 66, UCMJ, appeal to AFCCA.

24.15. Article 65(d), UCMJ, Review Requirements. Article 65(d), UCMJ, reviews are

conducted by attorneys as designated in this chapter by TJAG.

24.15.1. Judge advocates assigned to the GCMCA legal office are designated to conduct

Article 65(d), UCMJ, reviews unless all of the judge advocates within that office are

disqualified. See R.C.M. 1201(a)-(g). Although not assigned to the GCMCA legal office,

qualified personnel attached to USAFA/DFL may conduct Article 65(d) reviews for cases at

USAFA since they are subject to the command of the same GCMCA.

24.15.2. If all judge advocates on the GCMCA’s staff are disqualified from conducting the

Article 65(d), UCMJ, review, or the GCMCA is disqualified from taking any required action

on the case, the MAJCOM or FLDCOM SJA will select another GCMCA and SJA to perform

the review and take any required action. If there is not an eligible convening authority in the

command, or in the discretion of the MAJCOM or FLDCOM SJA, a judge advocate assigned

to the MAJCOM or FLDCOM legal office may conduct the review. If the MAJCOM or

FLDCOM is disqualified from conducting the review, then the MAJCOM or FLDCOM SJA

may request another MAJCOM or FLDCOM to conduct the review. If agreement cannot be

reached between MAJCOMs or FLDCOMs, contact AF/JAJM for assistance.

24.15.3. A judge advocate who has acted in the same case as an accuser, PHO, member of the

court-martial, military judge, counsel, or has otherwise acted on behalf of the prosecution or

defense may not conduct the Article 65(d), UCMJ, review.

24.16. Form, Content, and Distribution of Article 65(d), UCMJ, Judge Advocate Reviews.

24.16.1. Article 65(d) reviews will contain only those matters required by R.C.M. 1201(d) &

(e). In those cases in which no corrective action is required by TJAG, the review will consist

of a stamped or typed entry on the original DD Form 490, ROT cover of volume one of the

original ROT, and on all copies of the EoJ for non-punitive discharge SPCMs and GCMs. The

entry shall be entitled “Article 65(d), UCMJ, Review,” and shall consist of the conclusions

required in Article 65(d)(2), UCMJ, the unit designation of the reviewer, the date, signature of

the reviewer, and the reviewer’s signature block.

24.16.2. For cases in which appellate review has been waived or withdrawn, the Article 65(d),

UCMJ, review will contain only those matt€ required by R.C.M. 1201(e) and will be annotated

according to 24.15.1 except it will consist of the conclusions required in Article 65(d)(3),

UCMJ. A CFR is required except in officer/cadet cases where a dismissal has been adjudged,

the ROT and Article 65(d), UCMJ, review must be forwarded to AF/JAJM, who will route the

record and review to AF/JAJI for Secretarial action on the dismissal.

24.16.3. Corrective Action Not Required. If errors are alleged, the judge advocate conducting

the review must respond, in writing, to each written allegation of error made by the accused

even if the case does not require corrective action. (T-0) The review is prepared, dated and

signed by the reviewer, covers the matters required by Article 65(d)(2), UCMJ, and includes a

DAFI51-201 24 JANUARY 2024 199

statement that the findings are correct in law and fact. The review is attached to the ROT. The

Article 65(d), UCMJ, review will be annotated as required by paragraph 24.15.1.

24.16.4. Corrective Action Required. When the review indicates that corrective action may

be required, the GCMCA SJA forwards the review, the ROT and attachments to AF/JAJM for

docketing. AF/JAJM will forward the ROT to AF/JAJI for action by TJAG, in accordance

with Article 65(e), UCMJ, and R.C.M. 1201(f). Any action taken by TJAG in accordance with

Article 65(e), UCMJ, must be included in the ROT and memorialized in the CFR.

24.17. Distribution of Judge Advocate Reviews Performed at the GCMCA Legal Office.

24.17.1. After completing the Article 65(d), UCMJ, review, forward the original ROT, to

include four copies of the Article 65(d), UCMJ, stamped EoJ to AF/JAJM.

24.17.2. The GCMCA SJA will provide a copy of the Article 65(d), UCMJ, review and any

action taken by TJAG to the accused. (T-0) Notification must be accomplished via certified

mail to the address provided by the accused and request a receipt of the notification from the

accused. (T-0) Proof of service must be attached to the ROT. (T-0) See R.C.M. 1201(g).

24.17.3. The GCMCA SJA will provide a copy of the Article 65(d), UCMJ, stamped EoJ to

the same parties listed on the EoJ Distribution Checklist, available on the VMJD and AF/JAJM

Teams page.

24.18. Finality of SPCM or GCM under Article 65, UCMJ. For cases that do not require

corrective action, SPCMs and GCMs reviewed under Article 65, UCMJ, are final under Article

76, UCMJ, upon completion of the judge advocate’s review. For cases that are otherwise eligible

for Article 66, UCMJ, review but where that review is waived or withdrawn, those case are final

upon completion of the CFR. For cases that require corrective action, those cases are final upon

action of TJAG and completion of the CFR.

Section 24F—Review by The Judge Advocate General (Article 69, UCMJ)

24.19. Scope of Article 69, UCMJ, Review (R.C.M. 1201(h) & (k)). The Judge Advocate

General may review a case under Article 69, UCMJ, in the following scenarios:

24.19.1. Following completion of an Article 64 or Article 65(d), UCMJ, review, the accused

may submit an application to TJAG for relief under Article 69, UCMJ. The accused must

submit any application for Article 69, UCMJ, review within the deadlines established by

R.C.M. 1201(h)(2) & (3). (T-0)

24.19.2. If a judge advocate conducting an Article 64, UCMJ, review of an SCM states that

corrective action is required as a matter of law, and the GCMCA does not take such action, the

matter shall be forwarded to TJAG to conduct an Article 69, UCMJ, review. (T-0) See R.C.M.

1307(g), R.C.M. 1201(j), and paragraph 24.8.3.4.

24.19.3. The Judge Advocate General does not exercise Article 69, UCMJ, authority over

cases reviewed by AFCCA.

24.20. Prerequisite of Finality of Review. An application may not be filed and will not be

reviewed under Article 69, UCMJ, unless a judge advocate completed a review and any other

action required by Article 64 or Article 65(d), UCMJ. (T-0)

200 DAFI51-201 24 JANUARY 2024

24.21. Contents of Article 69(a), UCMJ, Application. In all cases, the application is written

and signed by the accused or the applicant’s legal representative under oath or affirmation. See

the VMJD and the AF/JAJM Teams page for a sample format for applications or contact AF/JAJM.

Defense counsel will not receive a copy of TJAG’s action unless counsel’s name is on the

application. The application must contain the following:

24.21.1. The accused’s name, SSN, and present mailing address;

24.21.2. The date and place of trial and type of court-martial;

24.21.3. The sentence of the court as approved and any subsequent reduction by clemency or

otherwise;

24.21.4. A succinct statement of the specific relief requested and the specific grounds for the

relief (a concise brief of the applicable law with appropriate citations is encouraged); and

24.21.5. Any documentary or other evidence pertinent to the facts asserted under the specific

grounds alleged, including copies of the court-martial order, if available.

24.22. Article 69(a), UCMJ, Application Procedures. The accused or the defense counsel must

submit a hardcopy application to AF/JAJM by certified mail (AF/JAJM, Appellate Records, 1500

West Perimeter Rd Ste 1130, JB Andrews, MD 20762) or a completed electronic copy to

AF/JAJM, Appellate Records section ([email protected]). For timing

purposes articulated in Article 69(b), UCMJ, the application shall be considered to have been

submitted to TJAG on the date the application is received by AF/JAJM. AF/JAJM forwards the

application and the ROT to AF/JAJI for further processing.

24.23. Review of Sealed Records when Considering Article 69(d), UCMJ, Review. In any

case where an appellant considers further review under Article 69(d), UCMJ and no notice of intent

to appeal has been filed, if the appellant or their attorney request access to matters in the record

that are sealed, TJAG authorizes the senior military attorney of the reviewing and appellate

authority to review an appellate counsel request for examination of sealed materials in accordance

with R.C.M. 1113(b)(3)(B). If the senior military attorney finds that the appellate counsel meets

the criteria in R.C.M. 1113(b)(3)(B), appellate counsel may examine the sealed materials in

accordance with the rule.

24.24. Notification of Article 69, UCMJ, Review Results.

24.24.1. If TJAG does not direct a rehearing or a review by AFCCA, AF/JAJI will prepare a

memorandum to notify the accused, via certified mail, of TJAG’s action and attach a copy of

the action. If the defense counsel’s name and address is included on the Article 69, UCMJ,

application, AF/JAJI also mails a copy via certified mail to the defense counsel.

24.24.1.1. AF/JAJI will provide to AF/JAJM a copy of the notification, certified mail

receipt, TJAG’s action, the accused’s Article 69, UCMJ, application and will return the

ROT to AF/JAJM.

24.24.2. If TJAG orders a rehearing, the procedures in Section 26A apply. AF/JAJI will

prepare a memorandum to notify the accused of TJAG’s action and attach a copy of the action,

via certified mail. If the defense counsel’s name and address is included on the Article 69,

UCMJ, application, AF/JAJI also mails a copy, via certified mail, to the defense counsel.

AF/JAJI will provide a copy to the GCMCA SJA.

DAFI51-201 24 JANUARY 2024 201

24.24.2.1. AF/JAJI will provide to AF/JAJM a copy of the notification, certified mail

receipt, TJAG’s action, the accused’s Art 69, UCMJ, application and will return the ROT

to AF/JAJM.

24.24.2.2. AF/JAJM will mail the ROT, to include documents listed in paragraph

24.24.2.1, via certified mail, to the GCMCA/SJA office for rehearing.

24.24.3. If TJAG forwards the case for review by AFCCA, AF/JAJI will prepare a

memorandum to notify the accused, via certified mail, of TJAG’s action and attach a copy of

the action. If the defense counsel’s name and address is included on the Article 69, UCMJ,

application, AF/JAJI also mails a copy, via certified mail, to the defense counsel. AF/JAJI

will provide a courtesy copy to the GCMCA SJA.

24.24.3.1. AF/JAJI will provide to AF/JAJM a copy of the notification, certified mail

receipt, TJAG’s action, the accused’s Art 69, UCMJ, application and will return the ROT

to AF/JAJM.

24.24.3.2. AF/JAJM will provide the ROT, to include the documents listed in 24.24.3.1,

to AFCCA The documents listed in paragraph 24.24.3.1 will be provided to appellate

counsel in AF/JAJG and AF/JAJA.

Section 24G—Petition for New Trial (Article 73, UCMJ; R.C.M. 1210)

24.25. Petition for New Trial. Petitions for a new trial are prepared and processed under R.C.M.

1210 and are filed with AF/JAJM on behalf of TJAG. A petition for new trial may be submitted

because of newly discovered evidence or fraud on the court, in any kind of court-martial, within

three years after the EoJ.

24.25.1. The petition must be in writing and contain matters required by R.C.M. 1210(c).

When practicable, the petition should be typewritten and double-spaced. The petition is signed

under oath or affirmation by the petitioner, a person possessing the power of attorney of the

petitioner for that purpose, or a person with the authorization of an appropriate court of law to

sign the petition as the petitioner’s representative. The petitioner forwards the original and

two copies of the petition and supporting documentation directly to AF/JAJM by certified mail

(Appellate Records, 1500 West Perimeter Rd Ste 1130, JB Andrews, MD 20762) or by

electronic copy to AF/JAJM, Appellate Records section

([email protected]). An accused may submit only one petition for

new trial for the same reason within the three-year limitation period.

24.25.2. Forwarding the Petition.

24.25.2.1. If the petitioner’s case is pending before AFCCA, AF/JAJM forwards the

following documents to the Court: the signed petition and supporting documents, and the

original ROT. AF/JAJM also forwards a copy of the petition and supporting documents to

appellate defense and ap€late government counsel. R.C.M 1210(e).

24.25.2.2. If the petitioner’s case is pending before CAAF, AF/JAJM forwards the

following documents to the Court: the original petition and supporting documents plus

seven copies. AF/JAJM also forwards a copy of the petition and all documents to both

appellate defense and appellate government counsel. R.C.M 1210(e).

202 DAFI51-201 24 JANUARY 2024

24.25.2.3. If the petitioner’s case is not pending before an appellate court, AF/JAJM

forwards the petition to TJAG, through AF/JAJI. See paragraph 24.26.

24.25.2.4. For offenses under OSTC authority, the servicing OSTC District Office must

be notified of a petition for a new trial.

24.26. TJAG Review of the Petition. If the petitioner’s case is not pending before a court,

AF/JAJI, on behalf of TJAG or an officer designated by TJAG, shall review the petition. If counsel

was not previously appointed, upon request by the designated officer(s), TJAG shall appoint

appellate defense counsel and appellate government counsel to act in the case. AF/JAJM forwards

one copy of the petition and supporting documents to each appointed appellate counsel. The

designated officer(s) may direct appellate defense and government counsel to provide briefs in the

case and upon written request or, if the designated officer(s) deem(s) it appropriate, may order oral

arguments to be presented before the officer(s).

24.26.1. Filing Briefs Requiring TJAG Review.

24.26.1.1. Form and Number of Briefs. Briefs are to be typewritten and double-spaced.

Counsel shall be limited to filing one brief per side unless TJAG or the designated officer(s)

reviewing the petition otherwise permit(s).

24.26.1.2. Time for Filing. The brief on behalf of the petitioner shall be filed with AF/JAJI

within 20 days after appellate defense counsel has been appointed by TJAG and a copy of

the petition and supporting documents have been provided to counsel. Appellate

government counsel may file a brief within twenty days after petitioner’s brief has been

filed. If counsel for the petitioner has filed no brief, appellate government counsel will file

a brief within twenty days after expiration of the time allowed for the filing of a brief on

behalf of the petitioner. Upon written request, the time for filing briefs by either counsel

may be extended at the discretion of TJAG or the designated officer(s) reviewing the

petition.

24.26.2. Oral Arguments. If ordered by the designated officer(s) or granted upon the request

of counsel, oral arguments shall be heard after written briefs are filed.

24.26.2.1. Notice. The designated officer(s) shall give appellate counsel at least ten days’

notice of the time and place of oral arguments.

24.26.2.2. Time Limits. No more than 30 minutes on each side shall be allowed for oral

arguments unless the time is extended by the designated officer(s).

24.26.2.3. Number of Counsel; Opening and Closing. The designated officer(s) may limit

the number of counsel making an oral argument. The counsel for the petitioner has the

right to make opening and closing arguments.

24.26.2.4. Failure to Appear. Appellate counsel’s failure to appear at the time and place

set for oral argument may be regarded as a waiver thereof and the designated officer(s)

may proceed on the case as submitted without argument or may continue the case for

argument at a later date, giving due notice thereof.

24.26.2.5. Presence of Petitioner. The petitioner does not have a right to be present at the

time of oral arguments before the designated officer(s).

DAFI51-201 24 JANUARY 2024 203

24.26.2.6. Opinion and Action. A memorandum opinion and an action shall be prepared

by the designated officer(s) for TJAG’s consideration. After the action has been signed by

TJAG, AF/JAJI shall cause a copy of the action to be served on petitioner and shall take

such action as may be necessary to carry out the orders of TJAG as contained in the action.

AF/JAJI shall also forward a copy to AF/JAJM for inclusion in the ROT.

24.27. Action on Petition.

24.27.1. AFCCA and CAAF. The courts shall act on the petition in accordance with their

respective rules.

24.27.2. If TJAG believes meritorious grounds for relief under Article 73, UCMJ, have been

established, and that a new trial is appropriate, TJAG may order a new trial under Article 73,

UCMJ.

24.27.3. If TJAG believes meritorious grounds for relief under Article 73, UCMJ, have been

established but that a new trial is not appropriate, TJAG may act under Article 74, UCMJ, or

transmit the petition and related papers to the SecAF with a recommendation. TJAG may also,

in cases which have been finally reviewed but have not been reviewed by a Court of Criminal

Appeals, act under Article 69, UCMJ.

24.28. Miscellaneous Writs and Petitions. For all other writs or petitions filed, whether pro se

or through counsel, AF/JAJM shall receive said writs or petitions and forward to the appropriate

office for action.

204 DAFI51-201 24 JANUARY 2024

Chapter 25

REMISSION AND SUSPENSION (ARTICLE 74, UCMJ)

25.1. General Information. After the EoJ, SecAF has the authority to remit or suspend any part

or amount of the unexecuted part of any sentence, except one approved by the President. If SecAF

delegated such authority in accordance with Article 74, UCMJ, then the delegee is bound to the

same limitation. See DAFPD 51-2 for delegations under Article 74, UCMJ.

25.2. Authority Over Confinees. If the accused is transferred to a Level II Regional

Confinement Facility or a long-term corrections facility, as defined in DAFMAN 31-115, Vol 1,

or to the Federal Bureau of Prisons, and the accused has been assigned to AFSFC/FC, Article 74,

UCMJ, authority delegated to commanders in DAFPD 51-2 is exercised by AFDW/CC or by the

officer exercising GCMCA over DAF personnel in those institutions.

25.3. Authority Reserved to the SecAF. Only the SecAF may remit or suspend, any part or

amount of the unexecuted part of the sentences listed below. This limitation does not apply to the

convening authority’s powers under R.C.M. 1109-10; Article 60, UCMJ.

25.3.1. Any sentence of a person convicted by a military tribunal, under SecAF’s jurisdiction,

resulting from the President’s commutation of a sentence of death to a lesser punishment;

25.3.2. Any sentence SecAF approved and ordered into execution;

25.3.3. A dismissal, dishonorable discharge, or bad conduct discharge that is imposed for the

conviction of an offense when a sentence to death is authorized by the Manual for Courts-

Martial;

25.3.4. Those cases referred to SecAF for action by commanders authorized to exercise Article

74, UCMJ, authority. Commanders are encouraged to forward cases involving issues most

appropriate for resolution at the DAF policy level to AF/JAJI for SecAF decision.

25.4. Authority of The Judge Advocate General. TJAG may exercise SecAF authority under

Article 74(a), UCMJ, and remit or suspend in whole or in part any unexecuted part of a sentence,

with the exception of those cases specified in paragraph 25.3. When delegated, the Director,

AF/JAJ, may act for TJAG to remit or suspend up to 90 days of an approved sentence to

confinement.

25.5. Authority of the Accused’s Commander. Except in cases listed in paragraph 25.3, and

where TJAG has not acted, the commander of the accused who has the authority to convene a

court-martial of the kind which adjudged the sentence may suspend or remit any part or amount of

the unexecuted part of an accused’s sentence adjudged by a summary court-martial or a special

court-martial, except for a bad conduct discharge, regardless of whether the person acting has

previously approved the sentence. Document any post-EOJ action on the sentence in a subsequent

CADAM as provided in paragraph 20.58.

25.5.1. A commander exercising only SPCMCA over the command to which the accused is

assigned may not remit a bad conduct discharge but may suspend a bad conduct discharge only

in the initial action.

DAFI51-201 24 JANUARY 2024 205

25.5.2. A commander exercising GCMCA over the command to which the accused is assigned

may remit or suspend any part or amount of the unexecuted part of any sentence except in

cases listed in paragraphs 25.3.1-25.3.4.

25.5.3. If the accused is transferred to a Level II Regional Confinement Facility or a long-term

corrections facility, as defined in DAFMAN 31-115, Vol 1, or to the Federal Bureau of Prisons,

and the accused has been assigned to AFSFC/FC, this authority is exercised only by

AFDW/CC or the officer exercising GCMCA over DAF personnel in those institutions.

25.6. Publication of SecAF Actions under Article 74, UCMJ. Promulgate actions taken by

SecAF in cases specified in paragraph 25.3 in the CFR, which is prepared by AF/JAJI and

distributed to the member and all other entities required in accordance with the STR/EoJ

Distribution List on the VMJD and AF/JAJM Teams page. The Director, Air Force Personnel

Council and TJAG are authorized to announce the action taken by the SecAF in all other cases.

206 DAFI51-201 24 JANUARY 2024

Chapter 26

REHEARINGS, NEW TRIALS, OTHER TRIALS, AND REMANDS (ARTICLES 63

AND 66(F), UCMJ)

26.1. Terminology.

26.1.1. Rehearings. Proceedings ordered or authorized by an appellate or reviewing authority

on the findings and the sentence or on the sentence only.

26.1.2. New Trials. Proceedings ordered pursuant to Article 73, UCMJ, because of newly

discovered evidence or fraud committed on the court.

26.1.3. Other Trials. Proceedings ordered to consider new charges and specifications when

the original proceedings are declared invalid because of a lack of jurisdiction or failure of a

charge to state an offense.

26.1.4. Remands. Proceedings ordered during appellate review to determine issues raised on

appeal which require additional inquiry. R.C.M. 810(f) reflects this practice also known as

DuBay hearings. See United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967).

26.2. Notification of the Accused and Counsel. When an appellate court, post-trial review or

action directs or authorizes further proceedings the responsible court-martial convening authority’s

SJA must make reasonable efforts to locate and provide both the accused and trial defense counsel

with a copy of documents requiring additional action. Ensure receipts are accomplished. Further

proceedings in such a case need not be delayed solely to permit an accused to petition for a grant

of review or otherwise appeal the matter.

26.2.1. Appellate Leave. Pursuant to Article 76a, UCMJ, an accused may only be placed on

involuntary appellate leave when the approved sentence includes a punitive discharge. When

an appellate court takes an action that has the effect of setting aside a punitive discharge, the

responsible court-martial convening authority’s SJA must notify the accused of the options

available to ensure proper duty status is maintained. A template notification can be found on

the VMJD and AF/JAJM Teams page.

26.3. Notification of the Victim(s). When an appellate court, post-trial review or action directs

or authorizes further proceedings and the case involved a victim who has suffered direct physical,

emotional or pecuniary harm as a result of the commission of an offense under the UCMJ, the

responsible court-martial convening authority’s SJA must make reasonable efforts to locate and

provide any victim and counsel (if applicable) with a copy of the document requiring additional

action. See Article 6b(a)(2), UCMJ. Ensure receipts are accomplished. For additional information

on required notifications, and other victims’ issues on appeal, see DAFI 51-207.

26.4. Notification to OSTC. For offenses under OSTC authority, the responsible court-martial

convening authority’s SJA must notify the servicing OSTC District Office and provide a copy of

document(s) requiring additional action.

26.5. Procedures Generally. AF/JAJM will return the ROT along with the opinion directing or

authorizing the further proceedings to the responsible convening authority’s legal office via

certified mail. AF/JAJM sends a transmittal letter, and a copy of the pertinent decision, mandate,

or order to the responsible convening authority’s SJA. If the accused is no longer within the

command of the original convening authority, a courtesy copy is forwarded to the convening

DAFI51-201 24 JANUARY 2024 207

authority within the accused’s current chain of command who would normally convene the type

of court-martial involved. See R.C.M. 810(f). Any special instructions deemed necessary to carry

out the mandate of the court are to be transmitted by AF/JAJM with the remanded ROT.

26.5.1. The original convening authority, or his or her successor in command, who made a

decision whether or not to act on the accused’s sentence or their predecessor is the responsible

convening authority if the accused is still within that chain of command.

26.5.2. If the original court-martial convening authority no longer exists, the person exercising

authority over the accused to convene the type of courts-martial involved is the responsible

court-martial convening authority.

26.5.3. If the accused is no longer within the chain of command of the original court-martial

convening authority, the original convening authority decides whether to remain the

responsible court-martial convening authority or to transfer responsibility for the case to the

convening authority in the accused’s chain of command who would normally convene the type

of court-martial involved.

26.5.3.1. If the original court-martial convening authority remains the responsible court-

martial convening authority and determines that a rehearing should be held, the original

court-martial convening authority requests that the accused be returned for the purpose of

rehearing or reaches an understanding as to situs with the convening authority in the

accused’s current chain of command who would normally convene the type of court-

martial involved.

26.5.3.2. For offenses under OSTC authority, STC determines whether a rehearing is

impracticable. The servicing OSTC District Office should be consulted immediately.

26.6. Convening Authority Post-Trial Action Memorandum. The responsible convening

authority should ensure action is taken consistent with the post-trial directions from the reviewing

or appellate authority. The responsible convening authority publishes a post-trial action

memorandum reflecting post-trial action in the case, which could include:

26.6.1. That a rehearing is ordered before another court-martial to be designated. See

paragraph 13.11.3 for sample language for rehearing on sentence; or

26.6.1.1. If a rehearing on sentence is impracticable, that the sentence as to the affected

charges and specifications has been set-aside and (1) a new sentence is approved based

only on the unaffected charges and specifications if segmented sentencing was employed

at the original trial, or (2) a sentence of no punishment is approved; or

26.6.1.2. If a rehearing on findings is impracticable, that the findings of guilt and the

sentence as to the affected charges and specifications have been set aside and the effected

charges and specifications are dismissed. Note: The convening authority may not dismiss

charges or specifications previously affirmed by an appellate court.

26.7. Composition of the Proceedings.

26.7.1. Election of the Accused. The accused has the same right to make an election as to

enlisted members, all-officer panel, or military judge alone, that the accused had at the original

trial.

208 DAFI51-201 24 JANUARY 2024

26.7.2. Military Judge. The military judge at a rehearing may be the same judge who presided

over the previous trial.

26.7.3. Members. Members who previously heard the case may not sit as part of the court-

martial.

26.7.4. Examination of Record of Former Proceedings. Examination of the prior record

requires permission of the military judge after such matters have been received in evidence.

R.C.M. 810(c).

26.8. Sentence Limitations. See R.C.M. 810(d) for guidance.

Section 26A—Rehearings (Article 63, UCMJ; R.C.M. 810)

26.9. Receipt of Decision and Speedy Trial Clock.

26.9.1. For offenses under command authority, the speedy trial clock begins on the date that

the responsible convening authority receives the ROT and the opinion authorizing or directing

a rehearing.

26.9.2. For offenses under OSTC authority, the speedy trial clock begins on the date that an

STC receives the ROT and the opinion authorizing or directing a rehearing.

26.9.3. An accused is “brought to trial” at the time of arraignment. In a sentence-only

rehearing, an accused is “brought to trial” at the first Article 39(a), UCMJ, session. United

States v. Becker, 53 M.J. 229 (C.A.A.F. 2000); R.C.M. 707(b)(3)(D).

26.10. Rehearings in Full. The procedures applied shall be the same as in the original trial.

(T-0) See R.C.M. 810.

26.11. Rehearings on Sentence Only. The procedures applied shall be the same as in the original

trial, except that the portion of the procedure which ordinarily occurs after challenges and through

findings is omitted. (T-0) See R.C.M. 810.

26.11.1. The contents of the record of the original trial, consisting of evidence properly

admitted on the merits relating to each offense of which the accused stands convicted but not

sentenced, may be established by any party whether or not testimony so read is otherwise

admissible under M.R.E. 804(b)(1) and whether or not it was given through an interpreter. See

R.C.M. 810(a)(2)(A).

26.11.2. The accused at a rehearing on sentence only may not withdraw any plea of guilty

upon which approved findings of guilt have been based. (T-0) See R.C.M. 810(a)(2)(B).

26.12. Combined Rehearings. A rehearing on sentence may be combined with trial on the merits

of specifications referred to the court-martial. For additional guidance, see R.C.M. 810(a)(3). The

presentencing procedure shall be the same as in the original trial. (T-0)

26.12.1. Additional Charges. Additional charges may be referred for trial together with

charges as to which a rehearing has been directed. See RC.M. 810(a)(4).

26.13. Rehearings Ordered. If a rehearing is ordered, a military judge shall be detailed and the

matter will be forwarded to the military judge. (T-0)

DAFI51-201 24 JANUARY 2024 209

Section 26B—Other Trials.

26.14. Ordering Other Trials. An authority ordering an “other trial” must state in the action the

basis for declaring the proceedings invalid (i.e., lack of jurisdiction, failure of a charge to state an

offense). (T-0) See R.C.M. 810.

26.15. Procedures in Other Trials. The procedures applied shall be the same as in the original

trial. See R.C.M. 810.

Section 26C—New Trials

26.16. Procedures in New Trials. The procedures applied shall be the same as in the original

trial. (T-0) See R.C.M. 810.

Section 26D—Remand

26.17. Overview. A Court of Criminal Appeals may order a remand for additional fact finding,

or for other reasons, in order to address a substantial issue on appeal. See R.C.M. 810(f)(1) for

additional information and limitations of remand.

26.18. Remand Order. An order for remand shall be directed by the Court of Criminal Appeals

to the Chief, AF/JAT. (T-0)

26.18.1. Remand Impracticable. If the designated GCMCA or STC, as applicable, determines

that the remand is impracticable due to military exigencies or other reasons, a Government

appellate attorney must notify the ordering court. (T-0)

26.19. Detailing of Military Judge. When the court orders a remand, the Chief Trial Judge shall

detail an appropriate military judge and notify the SJA to the GCMCA for the accused of the

remand, who notifies the GCMCA of the detailing.

Section 26E—ROT and Post-Remand Concerns.

26.20. Maintaining the ROT. The original ROT and any copies must remain intact, except for

documents needed for reintroduction at rehearing, such as the charge sheet and exhibits, if

required.

26.20.1. Any documents withdrawn from the original ROT and used at the rehearing should

be substituted in the original record with a copy of the document and an MFR explaining the

reason for the removal, and the new location of the original document.

26.20.2. The charge sheet must be annotated to reflect the case is being sent for a rehearing.

See paragraph 13.11.3.

26.20.3. At the conclusion of the rehearing, a new STR and EoJ must be completed. If the

accused served confinement resulting from the original trial, the new STR and EoJ must reflect

that the accused will be credited for the time served.

26.20.4. The record of the rehearing is a separate ROT from the original ROT. Place the

rehearing ROT on top of the original ROT. The original ROT volumes are renumbered as

appropriate.

210 DAFI51-201 24 JANUARY 2024

26.20.5. A verbatim transcript is required for a rehearing proceeding.

26.20.6. Forward the original and two copies of the rehearing ROT, along with the original

ROT volumes, to AF/JAJM. Do not make two copies of the original ROT volumes.

26.20.7. In cases under Section 26D, create a volume of the remand proceeding to include the

audio recording, court reporter chronology, certification, index, verbatim transcript, and

exhibits. The remand volume(s) are independent of the original ROT and should be placed on

top of the original.

26.20.7.1. Forward the original and two copies of the remand ROT, along with the original

ROT volumes, to AF/JAJM. Do not make two copies of the original ROT volumes.

DAFI51-201 24 JANUARY 2024 211

Chapter 27

CERTIFICATION OF FINAL REVIEW

27.1. General Provision. When appellate review is complete, AF/JAJM notifies the SJA of the

responsible GCMCA. The SJA for the responsible GCMCA completes the CFR in accordance

with the checklist on the VMJD and AF/JAJM Teams page. If the accused is no longer within the

command of the original convening authority, a courtesy copy of the notification is forwarded to

the accused’s previous convening authority.

27.1.1. In all courts-martial in which a member was sentenced to 6 months or more

confinement and gained by the AFSFC, AFDW/JA is responsible for accomplishing the CFR.

27.1.2. In all courts-martial in which any portion of the sentence is subject to approval by

SecAF or the President of the United States, AF/JAJI is responsible for accomplishing the

CFR.

27.2. Requirement for CFR. A CFR is required in all cases when appellate review is complete,

when the member has waived or withdrawn from appellate review, or TJAG takes corrective action

in a case, except:

27.2.1. Cases receiving an Article 65(d), UCMJ, review, unless that review is completed

because the member waived or withdrew from appellate review.

27.2.2. SCMs.

27.2.3. Cases resulting in a full acquittal, not guilty only by reason of lack of mental

responsibility, mistrial, dismissal of all charges, or otherwise terminated without findings.

27.3. Completion of CFR. A template and checklist for the CFR is located on the VMJD and

AF/JAJM Teams page. The GCMCA/SJA or judge advocate acting as the GCMCA SJA signs the

CFR.

27.3.1. In all courts-martial in which any portion of the sentence subject to approval by SecAF

or the President of the United States, once secretarial or presidential action is taken, the CFR

is signed by DJAG. The action is attached to the CFR.

27.4. Distribution of the CFR. The CFR must be completed within 14 days of receipt of

notification of completion of appellate review from AF/JAJM, unless an extension has been

granted by AF/JAJM. Distribute to the accused and the recipients listed on the EOJ within 7 days

of CFR being signed.

212 DAFI51-201 24 JANUARY 2024

Chapter 28

MILITARY JUSTICE ORDER LOGS

Section 28A—Convening Order Logs

28.1. Separate Logs Required. Have a separate convening order log for each type of court-

martial and each convening authority. For example, a single-base GCMCA will have one log each

for GCMs, SPCMs, SPCMs by military judge alone, and SCMs. Each SPCMCA will have a

separate log for SPCMs, SPCMs by military judge alone, and SCMs. Each log must also be kept

separately from the log for supplemental and final court-martial orders.

28.2. Content of Log. The log must reflect the convening order number assigned to a particular

case. Copies of the original convening orders must be stored with the convening order log. Digital

copies are permitted. See Section 14B and Section 23C for instruction on preparing convening

orders.

Section 28B—Courts-Martial/Supplemental Order Logs

28.3. Separate Logs Required. Have a separate courts-martial/supplemental order log for each

type of court-martial and each convening authority. For example, a single-base GCMCA will have

one log each for GCMs, SPCMs, SPCMs by military judge alone, and SCMs. Each SPCMCA will

have a separate log for SPCMs, SPCMs by military judge alone, and SCMs. Each log must also

be kept separately from the log for convening orders.

28.4. Content of Log. The log must reflect the courts-martial/supplemental order number

assigned to a particular case. Copies of the original courts-martial/supplemental orders must be

stored with the supplemental order log. Digital copies are permitted.

DAFI51-201 24 JANUARY 2024 213

Chapter 29

SEX OFFENDER NOTIFICATION, CRIMINAL INDEXING AND DNA COLLECTION

Section 29A—Sex Offender Notification

29.1. General Provision. If the member has been convicted of certain “qualifying offenses” that

may require sex offender registration the DAF must notify federal, state, and local officials. (T-0)

As noted in the STR/EoJ Distribution List on the VMJD and AF/JAJM Teams page, a copy of the

STR and EoJ, to include attachments and the first indorsements, including any placement of the

accused on excess or appellate leave status, must be distributed to the AFSFC,

[email protected], AFSFC/FCV, [email protected], and DAF-CJIC,

[email protected].

29.2. Qualifying Offenses. See DoDI 1325.07 for a list of offenses which require DAF

notification to federal, state, and local officials.

29.2.1. Federal, state and local governments may require an individual to register as a sex

offender for offenses that are not included on this list; therefore, this list identifies offenses for

which notification is required by the DAF but is not inclusive of all offenses that trigger sex

offender registration.

29.2.2. When a question arises whether a conviction triggers notification requirements, SJAs

should seek guidance from a superior command level legal office. Questions about whether

an offense triggers notification requirements may be directed to the DAF-CJIC Legal Advisor

(HQ OSI/JA)

29.3. Notification Requirement. The DAF must notify federal, state, and local officials when a

DAF member is convicted of a qualifying offense at GCM or SPCM. (T-0). This requirement

applies regardless of whether or not the individual is sentenced to confinement. See DoDI 1325.07,

and DAFMAN 31-115, Vol 1. The DAF executes this requirement via AF confinement

officer/NCO/liaison officer notification to the relevant jurisdictions using the DD Form 2791,

Notice of Release/Acknowledgement of Convicted Sex Offender Registration Requirements. See

AFMAN 71-102, Chapter 3.

29.4. Timing of Notification.

29.4.1. In cases where the member is sentenced to and must serve post-trial confinement, the

notification must be made prior to release from confinement. (T-0) Note: The member may

not be held beyond the scheduled release date for purposes of making the required

notifications. This notification is accomplished by the security forces confinement officer, or

designee responsible for custody of the inmate, in accordance with the requirements detailed

in DAFMAN 31-115, Vol 1; AFMAN 71-102; and DoDI 5525.20, Registered Sex Offender

(RSO) Management in Department of Defense. (T-0)

29.4.2. In cases where the member will not serve post-trial confinement either because (1) no

confinement was adjudged, or (2) confinement credit exceeds adjudged confinement, the SJA

must notify the servicing confinement NCO/officer or SFS/CC in writing within 24 hours of

conviction. Once informed by the SJA that the member was convicted of a qualifying offense,

the confinement officer or SFS/CC ensures the notifications are made in accordance with

AFMAN 71-102, DAFMAN 31-115, Vol 1, and DoDI 5525.20.

214 DAFI51-201 24 JANUARY 2024

29.5. Legal Office Responsibilities. SJAs are not responsible for directly notifying federal, state

and local law enforcement of qualifying convictions. However, SJAs must ensure their support

responsibilities are accomplished as required by federal law and DoD policy. SJAs facilitate the

notification requirement in two ways: (1) completion and distribution of post-trial paperwork in

accordance with this instruction and the STR/EoJ Distribution List on the VMJD and AF/JAJM

Teams page; and (2) notification of the installation confinement officer/NCO in cases where the

offender is convicted but not required to serve post-trial confinement, in accordance with this

instruction. See paragraph 29.6 and paragraph 29.7 and AFMAN 71-102, Chapter 3.

29.6. STR and EoJ. If a member is convicted of a qualifying offense referred to trial by GCM

or SPCM on or after 1 January 2019, the appropriate box must be initialed on the first indorsement

of the STRs and the EoJ by the SJA. The first indorsement format, and guidance for completion

are located on the VMJD and AF/JAJM Teams page.

29.7. Notification to the Installation Confinement Officer/NCO. In cases where the member

was convicted of a qualifying offense at a GCM or SPCM but no post-trial confinement will be

served, the SJA must notify, in writing, the confinement officer (or SFS/CC if no confinement

officer/NCO is at that installation) of the conviction and sentence within 24 hours of announcement

of the verdict. The corrections officer, or the SFS/CC, as appropriate, ensures that the notifications

required in DAFMAN 31-115, Vol 1 and AFMAN 71-102 are made.

29.8. Convictions by a Host Country. Service members, military dependents, DoD contractors,

and DoD civilians can be convicted of a sex offense outside normal DoD channels by the host

nation while assigned overseas. When compliance with Section 29A is required in these cases,

the SJA notifies the confinement officer or SFS/CC, as required. It is the SJA’s responsibility to

ensure the offender completes their portion of the DD Form 2791, or equivalent document, upon

release from the host nation. The DD Form 2791 and copies of the ROT must be provided to the

appropriate federal, state, and local law enforcement in accordance with paragraph 29.3 and

paragraph 29.4, and DoDI 1325.07.

Section 29B—Criminal History Record Information (CHRI) and Fingerprint Collection and

Submission (28 U.S.C. § 534, Acquisition, preservation, and exchange of identification

records and information; appointment of officials; 28 C.F.R. § 20.30, et seq., Federal Systems

and Exchange of Criminal History Record Information; DoDI 5505.11)

29.9. General Provision. The DAF, through OSI and Security Forces, submits offender CHRI

and fingerprints to the FBI when there is probable cause to believe an identified individual

committed a qualifying offense. (T-0) See AFMAN 71-102; DoDI 5505.11; 28 C.F.R. § 20.30,

et seq.; and 28 U.S.C. § 534. Such data is submitted to and maintained in the Interstate

Identification Index (III), maintained as part of the FBI’s NCIC.

29.10. Criminal History Record Information. CHRI reported in accordance with DoDI

5505.11 and AFMAN 71-102 consists of identifiable descriptions of individuals; initial notations

of arrests, detentions, indictments, and information or other formal criminal charges; and any

disposition arising from any such entry (e.g., acquittal, sentencing, NJP; administrative action; or

administrative discharge).

DAFI51-201 24 JANUARY 2024 215

29.11. Identified Individuals.

29.11.1. The DAF submits CHRI and fingerprints on any military member or civilian

investigated by a DAF law enforcement agency (OSI or Security Forces) when a probable

cause determination has been made that the member committed a qualifying offense.

29.11.2. The DAF submits criminal history data for military service members, military

dependents, DoD employees, and contractors investigated by foreign law enforcement

organizations for offenses equivalent to those described as qualifying offenses in AFMAN 71-

102 and DoDI 5505.11 when a probable cause determination has been made that the member,

dependent, employee or contractor committed an equivalent offense.

29.12. Disposition Data. The DAF, through DAF-CJIC, OSI and Security Forces, is responsible

for updating disposition data for any qualifying offense for which there was probable cause. This

disposition data merely states what the ultimate disposition of any action (or no action) taken was

regarding each qualifying offense. The disposition includes no action, acquittals, convictions,

sentencing, NJP, certain administrative actions, and certain types of discharge. Failure to comply

with this section will result in inaccurate disposition data, which can have adverse impacts on

individuals lawfully indexed in III.

29.13. Qualifying Offenses. Qualifying offenses for fingerprinting requirements constitute

either (1) serious offenses; or (2) non-serious offenses accompanied by a serious offense. See 28

C.F.R 20.32, Includable offenses. A list of offenses that, unless accompanied by a serious offense,

do not require submission of data to III is located in AFMAN 71-102, Attachment 5.

29.14. Military Protective Orders. Issuance of an MPO also triggers a requirement for indexing

in NCIC. See paragraph 29.39 and AFMAN 71-102; 10 U.S.C. § 1567a, Mandatory notification

of issuance of military protective order to civilian law enforcement.

29.15. Qualifying Offenses Investigated by Commander Directed Investigation (CDI). If any

qualifying offense was investigated via CDI or inquiry and is subsequently preferred to trial by

SPCM or GCM, then CHRI and fingerprints must be submitted to III in accordance with AFMAN

71-102 and DoDI 5505.11. SJAs must ensure they advise commanders as to the requirement to

consult with SFS and OSI to obtain and forward CHRI and fingerprints in accordance with that

mandate. Note: If charges are not preferred, then CHRI and fingerprints are not submitted to III;

however, if charges are preferred and later withdrawn, CHRI and fingerprints must be submitted.

(T-0)

29.16. Probable Cause Requirement. Fingerprints and criminal history data will only be

submitted where there is probable cause to believe that a qualifying offense has been committed

and that the person identified as the offender committed it. See AFMAN 71-102; DoDI 5505.11.

The collection of fingerprints under this paragraph is administrative in nature and does not require

a search authorization or consent of the person whose fingerprints are being collected.

29.17. SJA Coordination Requirement. The law enforcement agency (e.g., OSI or Security

Forces) coordinates with the SJA or government counsel to determine whether the probable cause

requirement is met for a qualifying offense. The SJA or government counsel must ensure they

understand the applicable indexing requirements in order to advise OSI or Security Forces for

purposes of criminal history indexing.

216  DAFI51-201  24 JANUARY 2024 
29.18.  Process  for  Submission  of  Criminal  History  Data.  After  the  probable  cause 
determination is made, the investigating agency (e.g., OSI or Security Forces) submits the required 
data in accordance with AFMAN 71-102 and DoDI 5505.11. 
29.19.  Legal Office Final Disposition Requirement. 
29.19.1.  The  final  disposition  (e.g.,  conviction  at  GCM  or  SPCM,  acquittal, dismissal  of 
charges, conviction of a LIO, sentence data, NJP, no action) is submitted by OSI or Security 
Forces for each qualifying offense reported in III or NCIC.  OSI or Security Forces, whichever 
is applicable, obtains the final disposition data from the legal office responsible for advising 
on disposition of the case (generally the servicing base legal office).  See AFMAN 71-102, 
Table 1.1 for Disposition Documentation Requirements.  If an accused was arraigned at a 
court-martial, the final disposition is memorialized on the STR and EoJ.  A first indorsement 
signed by the SJA must accompany the STR and EoJ. 
29.19.2.  The required format for the first indorsement is located on the VMJD and AF/JAJM 
Teams page. 
29.19.3.  The  servicing  legal  office  will  provide  disposition  documentation  to  the  local 
Security Forces, OSI, and DAF-CJIC within three duty days of completion of the documents 
discussed in paragraphs 29.19.4-29.19.7. 
29.19.4.  Because the EoJ may differ from the adjudged findings and sentence, both the STR 
and EoJ must be distributed to the local DAF investigative agency that was responsible for the 
case (e.g., OSI or Security Forces) and DAF-CJIC within three duty days of completion of the 
EoJ. 
29.19.5.  In cases where a CFR is created after completion of appellate review, the CFR must 
be distributed to the local responsible DAF investigative agency and DAF-CJIC within three 
duty days of completion.  See Chapter 27. 
29.19.6.  For information regarding final disposition where the final disposition consists of 
NJP, see DAFI 51-202. 
29.19.7.  In cases where the allegations involve offenses listed in paragraphs 10.5.1.1-10.5.1.3, 
and the convening authority decides not to go forward to trial, the GCMCA review must be 
forwarded to the local OSI detachment and DAF-CJIC in accordance with paragraph 10.6.2.  
Note:  Do not forward the sexual assault legal review, only the convening authority notification 
memorandum. 
29.19.8.  For all other final dispositions which must be submitted in accordance with Section 
29E, AFMAN 71-102, and DoDI 5505.11, the SJA must ensure disposition data is provided to 
ensure timely and accurate inclusion of final disposition data.  See Section 29E for further 
distribution guidance. 
29.20.  Expungement of Criminal History Data and Fingerprints.  Expungement requests are 
processed in accordance with guidance promulgated in AFMAN 71-102.  Expungement requests 
must be routed through the requestor’s servicing SJA. 
Section 29C—DNA Collection (10 U.S.C. § 
1565; DoDI 5505.14, DNA Collection and Submission Requirements for Law Enforcement) 

DAFI51-201 24 JANUARY 2024 217

29.21. General Provision. The DAF, through OSI and Security Forces, collects and submits

DNA for analysis and inclusion in the Combined Deoxyribonucleic Acid Index System (CODIS),

through the U.S. Army Criminal Investigations Laboratory (USACIL), when fingerprints are

collected pursuant to DoDI 5505.11. (T-0) See DoDI 5505.14; 10 U.S.C. 1565; 34 U.S.C. § 40702,

Collection and use of DNA identification information from certain federal offenders; 28 C.F.R. §

28.12, Collection of DNA samples; AFMAN 71-102.

29.22. Qualifying Offenses. DNA collection and submission is required when fingerprints are

collected pursuant to DoDI 5505.11. DNA is not collected or submitted for the non-serious

offenses enumerated in AFMAN 71-102, Attachment 5 unless they are accompanied by a serious

offense requiring fingerprint collection in accordance with DoDI 5505.11.

29.23. Probable Cause Requirement. DNA collection occurs only where there is probable

cause to believe that a qualifying offense has been committed and that the person identified

committed it. The collection of DNA under this paragraph is administrative in nature and does not

require a search authorization or consent of the person whose DNA is being collected.

29.24. SJA Coordination Requirement. The law enforcement agency (e.g., OSI or Security

Forces) coordinates with the SJA or government counsel prior to submission of DNA for inclusion

in CODIS in accordance with AFMAN 71-102. The SJA or government counsel must ensure they

understand the applicable indexing requirements in order to advise OSI or Security Forces for

purposes of criminal history indexing. (T-0)

29.25. Timing of Collection and Forwarding. OSI, Security Forces and Commanders (through

collection by Security Forces) collect and expeditiously forward DNA in accordance with the

procedures in DoDI 5505.14 and AFMAN 71-102. If not previously submitted to USACIL, the

appropriate DAF law enforcement agency (i.e., OSI or Security Forces) will collect and submit

DNA samples from service members: against whom court-martial charges are preferred in

accordance with R.C.M. 307 of the MCM; ordered into pretrial confinement after the completion

of the commander’s 72-hour memorandum required by R.C.M. 305(i)(2)(C) of the MCM; and

convicted by general or special court-martial.

29.26. STR and EoJ. In cases where specifications alleging qualifying offenses were referred to

trial on or after 1 January 2019 and the accused is found guilty of one or more qualifying offenses,

the appropriate box must be completed on the first indorsement of the STR and EoJ by the SJA.

29.27. Final Disposition Requirement. As DNA may be forwarded to USACIL at various times

during the investigation or prosecution of a case, final disposition of court-martial charges must

be forwarded to OSI and Security Forces to ensure DNA is appropriately handled.

29.27.1. The final disposition is memorialized on the following forms: STR, EoJ, and/or CFR,

whichever is applicable. A first indorsement signed by the SJA must accompany the STR and

EoJ.

29.27.2. Formats for the STR, EoJ, and first indorsement are located on the VMJD and

AF/JAJM Teams page.

29.27.3. In cases where the allegations involve offenses listed in paragraphs 10.5.1.1-10.5.1.3,

and the convening authority decides not to go forward to trial, the GCMCA review must be

forwarded to OSI in accordance with paragraph 29.19.7.

218 DAFI51-201 24 JANUARY 2024

29.27.4. For all other dispositions, the SJA must ensure disposition data for qualifying

offenses is provided to ensure timely and accurate inclusion of final disposition data.

Disposition documentation must be distributed to the local OSI detachment, Security Forces

and DAF-CJIC within three duty days of completion of the final disposition. See Section 29E

for further distribution guidance.

29.28. Expungement of DNA. DoD expungement requests are processed in accordance with

guidelines promulgated in AFMAN 71-102 and DoDI 5505.14.

Section 29D—Possession or Purchase of Firearms Prohibited (18 U.S.C. §§

921-922, Definitions; Unlawful acts; 27 C.F.R. § 478.11)

29.29. General Provision. The National Instant Criminal Background Check System (NICS) is

a nationwide database of persons who are prohibited from shipping, transporting, receiving, and

possessing firearms, ammunition, and explosives, in or affecting interstate or foreign commerce,

under 18 U.S.C. §922(g) and (n).

29.29.1. 18 U.S.C. §925(a)(1), Exceptions: Relief from Disabilities, allows persons prohibited

under 18 U.S.C. §§922(g) and (n), except for those convicted of misdemeanor crimes of

domestic violence who are subject to the prohibition of 18 U.S.C. §922(g)(9), to transport,

ship, receive, and possess government-owned firearms, ammunition, and explosives for

official government business.

29.29.2. In accordance with DoDI 6400.06, Domestic Abuse Involving DoD Military and

Certain Affiliated Personnel, Section 9, persons convicted of felony crimes of domestic

violence (i.e., those crimes punishable by more than one year confinement, tried by a general

or special court-martial, which otherwise meet the definition of a misdemeanor crime of

domestic violence), are also prohibited from transporting, shipping, receiving, and possessing

government-owned firearms, ammunition, and explosives for official government business.

29.29.3. In accordance with DoDI 6400.06, Section 9, personnel with a qualifying conviction

for a crime of misdemeanor or felony domestic violence are not prohibited from working with:

(1) major military weapons systems; or (2) crew-served military weapons and ammunition

(e.g., tanks, missiles, and aircraft).

29.30. Categories of Prohibition. 18 U.S.C. §§922(g) and (n) detail ten categories that prohibit

persons from shipping, transporting, receiving, or possessing firearms, ammunition, and

explosives, in or affecting interstate or foreign commerce. See 18 U.S.C. §§922(g) and (n), 27

C.F.R. §478.11, and AFMAN 71-102, Chapter 4. The categories and their criteria are set forth

below.

29.30.1. Persons convicted of a crime punishable by imprisonment for a term exceeding one

year. See 18 U.S.C. §922(g)(1).

29.30.1.1. If a service member is convicted at a GCM of a crime for which the maximum

punishment exceeds a period of one year, this prohibition is triggered regardless of the term

of confinement adjudged or approved. Note: This category of prohibition would not apply

to convictions in a special court-martial because confinement for more than one year cannot

be adjudged in that forum.

DAFI51-201 24 JANUARY 2024 219

29.30.1.2. If a conviction is set aside, disapproved or overturned on appeal, the prohibition

under this section is not triggered because the conviction no longer exists. 18 U.S.C. §

922(g)(1).

29.30.2. Fugitives from justice. 18 U.S.C. § 922(g)(2).

29.30.3. Unlawful users or persons addicted to any controlled substance as defined in 21

U.S.C. § 802, Definitions. See 18 U.S.C. § 922(g)(3) and 27 C.F.R. 478.11.

29.30.3.1. This prohibition is triggered where a person who uses a controlled substance

has lost the power of self-control with reference to the use of a controlled substance or

where a person is a current user of a controlled substance in a manner other than as

prescribed by a licensed physician. Such use is not limited to the use of drugs on a

particular day, or within a matter of days or weeks before, but rather that the unlawful use

has occurred recently enough to indicate that the individual is actively engaged in such

conduct. See 27 C.F.R. 478.11.

29.30.3.2. An inference of current use may be drawn from evidence of a recent use or

possession of a controlled substance or a pattern of use or possession that reasonably covers

the present time, e.g., a conviction for use or possession of a controlled substance within

the past year; multiple arrests for such offenses within the past five years if the most recent

arrest occurred within the past year; or persons found through a drug test to use a controlled

substance unlawfully, provided that the test was administered within the past year. 27

C.F.R. 478.11.

29.30.3.3. For a current or former member of the armed forces, an inference of current use

may be drawn from recent disciplinary or other administrative action based on confirmed

drug use, e.g., court-martial conviction, NJP, or an administrative discharge based on drug

use or drug rehabilitation failure. 27 C.F.R. 478.11.

29.30.3.4. Qualifying Prohibitors. See AFMAN 71-102, Chapter 4, for additional

information on drug offenses and admissions that qualify for prohibition under 18 U.S.C.

§ 922(g)(3).

29.30.4. Any person adjudicated as a mental defective or who has been committed to a mental

institution.

29.30.4.1. If a service member is found incompetent to stand trial or not guilty by reason

of lack of mental responsibility pursuant to Articles 50a or 76b, UCMJ, this prohibition

may be triggered. 18 U.S.C. § 922(g)(4).

29.30.4.2. SJAs should ensure commanders are aware of the requirement to notify DAF-

CJIC when a service member is declared mentally incompetent for pay matters by an

appointed military medical board. See AFMAN 71-102, Chapter 4.

29.30.4.3. SJAs should ensure commanders are aware of the requirement to notify

installation law enforcement in the event any of their personnel, military or civilian, are

committed to a mental health institution through the formal commitment process. For

further information, see AFMAN 71-102; 18 U.S.C. § 922; 27 C.F.R. 478.11.

29.30.5. Persons who have been discharged from the armed forces under dishonorable

conditions. 18 U.S.C. § 922(g)(6). This condition is memorialized on the STR and EoJ, which

must be distributed in accordance with the STR/EoJ Distribution List on the VMJD and

220 DAFI51-201 24 JANUARY 2024

AF/JAJM Teams page. Note: This prohibition does not take effect until after the discharge is

executed, but no additional notification must be made to the individual at that time. See

paragraph 29.33.2. The original notification via AF Form 177, Notification of Qualification

for Prohibition of Firearms, Ammunition, and Explosives, and subsequent service of the CFR

or Final Order, as applicable, operate as notice to the individual.

29.30.6. Persons who have renounced their United States citizenship. 18 U.S.C. § 922(g)(7).

29.30.7. Persons convicted of a crime of misdemeanor domestic violence (the “Lautenberg

Amendment”) at a GCM or SPCM. See 18 U.S.C. § 922(g)(9). Note: Persons convicted of

felony crimes of domestic violence at a GCM or SPCM are covered under 18 U.S.C. §

922(g)(1).

29.30.7.1. A “misdemeanor crime of domestic violence” for purposes of indexing under

this section is defined as follows: an offense that— (i) is a misdemeanor under Federal,

State, or Tribal law; and (ii) has, as an element, the use or attempted use of physical force,

or the threatened use of a deadly weapon, committed by a current or former spouse, parent,

or guardian of the victim, by a person with whom the victim shares a child in common, by

a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or

guardian, by a person similarly situated to a spouse, parent, or guardian of the victim, or

by a person who has a current or recent former dating relationship with the victim. Note:

Exceptions to this definition can be located at 18 U.S.C. § 921(a)(33). See also 27 C.F.R.

478.11.

29.30.7.2. SJAs should look at the underlying elements of each conviction to determine

whether it triggers a prohibition under 18 U.S.C. § 922(g)(9). If a conviction is set aside,

disapproved or overturned on appeal, the prohibition under this section is not triggered

because the conviction no longer exists. The term “qualifying conviction” does not include

summary courts-martial or the imposition of NJP under Article 15, UCMJ.

29.30.7.3. Government counsel and law enforcement must look at this prohibition on a

case-by-case basis to ensure that the charged offense (e.g., violations of Articles 120, 120b,

128, 128b, 130, UCMJ, etc.) meets the statutory criteria for a “misdemeanor crime of

domestic violence.” See 10 U.S.C. § 1562, Database on domestic violence incidents; DoDI

6400.07, Standards for Victim Assistance Services in the Military Community.

29.30.8. Persons accused of any offense punishable by imprisonment for a term exceeding one

year, which has been referred to a GCM. 18 U.S.C. § 922(n).

29.30.9. Persons who are aliens admitted under a nonimmigrant visa or who are unlawfully in

the United States. 18 U.S.C. § 922(g)(5).

29.30.10. Persons subject to a protective order issued by a court, provided the criteria in 18

U.S.C. § 922(g)(8) are met. This prohibition is triggered only by a court order issued by a

judge. A military protective order does not trigger this prohibition; but does trigger indexing

under Section 29B.

29.31. Notification to the Accused of Firearms Prohibition. When a service member becomes

ineligible to possess, purchase, or receive a firearm under 18 U.S.C. § 922, the DAF provides

notification to that service member of the prohibition. See AFMAN 71-102, Chapter 4.

DAFI51-201 24 JANUARY 2024 221

29.31.1. Form of Notice. A service member is notified of the applicability of 18 U.S.C. § 922

via AF Form 177.

29.31.2. SJA Responsibility to Notify. In all cases investigated by DAF involving an offense

which implicates a firearms prohibition, the SJA should be aware of the nature of the

prohibition and the entity responsible for making the notification. See AFMAN 71-102, Table

4.1 and Chapter 4, generally. However, in the following cases, the SJA is directly responsible

for ensuring the notification to the accused is made:

29.31.2.1. Conviction at a GCM of any offense punishable by imprisonment for a term

exceeding one year. In such cases, the AF Form 177 must be provided to the accused for

completion as part of the post-trial paperwork. Note: If this is a dual basis notification,

the paperwork need only be served once, though both applicable prohibitions should be

noted on the AF Form 177.

29.31.2.2. Conviction at a GCM, SPCM, or SCM for use or possession of a controlled

substance. In such cases, the AF Form 177 must be provided to the accused for completion

as part of the post-trial paperwork. Note: If this is a dual basis notification, the paperwork

need only be served once, though both applicable prohibitions should be noted on the AF

Form 177.

29.31.2.3. Completion of NJP for any person found guilty of wrongful use or possession

of a controlled substance. In such cases, the AF Form 177 must be provided to the accused

for signature on or before completion of the supervisory SJA legal review.

29.31.2.4. After the accused is adjudicated as not guilty by reason of insanity or not

competent to stand trial. In such cases, the AF Form 177 must be provided to the accused

for completion as part of the post-trial paperwork.

29.31.2.5. Conviction resulting in a sentence including a dishonorable discharge. In such

cases, the AF Form 177 must be provided to the accused for completion as part of the post-

trial paperwork. Note: If this is a dual basis notification, the paperwork need only be

served once, though both applicable prohibitions should be noted on the AF Form 177.

29.31.2.6. Conviction at a GCM or SPCM for a crime of domestic violence, when the

maximum punishment which may be adjudged for the offense in that forum is one year or

less. Note: If this is a dual basis notification, the paperwork need only be served once,

though both applicable prohibitions should be noted on the AF Form 177.

29.31.2.7. Referral of charges to a GCM where any offense carries a possible sentence to

confinement in excess of one year. In such cases, the AF Form 177 must be provided to

the accused for completion as part of the referral paperwork.

29.31.3. In cases where the investigating law enforcement agency is a non-DAF agency, these

requirements may not apply. Contact DAF-CJIC for further guidance. See AFMAN 71-102.

29.31.4. Any notification made to the accused may be made through the accused’s counsel in

order to secure the accused’s signature on required documentation.

29.31.5. If the accused declines to sign, this should be annotated on the form.

29.31.6. After completion of the form, the SJA must provide the completed AF Form 177 to

DAF-CJIC within 24 hours of completion, in accordance with the provisions of AFMAN 71-

222 DAFI51-201 24 JANUARY 2024

102. SJA will also provide a digital copy to the member’s commander and investigating DAF

law enforcement.

29.32. STR and EoJ. In cases where specifications allege offenses which trigger a prohibition

under 18 U.S.C. § 922 and the accused is found guilty of one or more such offenses, the appropriate

box must be completed on the first indorsements to the STR and EoJ by the SJA. Note: If the

accused is convicted of a crime of domestic violence as defined in paragraph 29.30.7.1 and 18.

U.S.C. § 922, both the “Firearms Prohibition” and “Domestic Violence Conviction” blocks should

be marked “yes.”

29.33. Final Disposition Requirement. As the findings of a case may change after close of a

court-martial, final disposition of court-martial charges must be forwarded to the local OSI

detachment, Security Forces, and DAF-CJIC to ensure reporting pursuant to 18 U.S.C. §922 is

appropriately handled.

29.33.1. Because the EoJ may differ from the adjudged findings and sentence, both the STR

and EoJ, with accompanying first indorsements, must be distributed to the local responsible

DAF investigative agency and DAF-CJIC within three duty days of completion of the EoJ.

The SJA must ensure disposition data requested by the local OSI detachment and Security

Forces unit is provided to ensure timely and accurate inclusion of final disposition data. See

Section 29E for further distribution guidance.

29.33.2. In cases where a CFR is created after completion of appellate review, the CFR must

be distributed to the local responsible DAF investigative agency and DAF-CJIC within three

duty days of completion. See Chapter 27.

29.34. SJA Coordination with Commanders. The SJA or designee must inform commanders

of the impact of a conviction on the accused’s ability to handle firearms or ammunition as part of

their official duties in accordance with 18 U.S.C. §925(a)(1) and DoDI 6400.06, Section 9; brief

commanders on retrieving all Government-issued firearms and ammunition and suspending the

member’s authority to possess Government-issued firearms and ammunition in the event a member

is convicted of a felony or misdemeanor crime of domestic violence in accordance with 18 U.S.C.

§922(g)(1) and (g)(9) (violations of the Lautenberg Amendment); and brief commanders on their

limitations and abilities to advise members of their commands to lawfully dispose of their privately

owned firearms and ammunition.

Section 29E—Distribution of Court-Martial Data for Indexing Purposes

29.35. General Provision. In order to ensure that indexing requirements pursuant to this chapter

are met, SJAs must ensure the following documents are distributed to the applicable local DAF

law enforcement agency and DAF-CJIC:

29.35.1. Charge sheets in all cases where charges are preferred;

29.35.2. Charge sheets in all cases referred to court-martial;

29.35.3. STR, regardless of verdict or sentence, where any charged offense qualifies for any

type of indexing discussed in this chapter;

29.35.4. EoJ and first indorsement, regardless of verdict or sentence, where any charged

offense qualifies for any type of indexing discussed in this chapter;

DAFI51-201 24 JANUARY 2024 223

29.35.5. In all SCMs, the final completed DD Form 2329 and first indorsement;

29.35.6. CFR in any case where any offense qualifies for any type of indexing discussed in

this chapter;

29.35.7. Notification of outcome of any cases as to qualifying offenses litigated before or

disposed of via military magistrate;

29.35.8. Order pursuant to Article 73, UCMJ, for a new trial, where any charged offense

qualifies for any type of indexing discussed in this chapter;

29.35.9. Order for a rehearing on the findings or sentence of a case, pursuant to Article 63,

UCMJ and

29.35.10. Other final disposition documentation in cases not referred to trial where the offense

investigated is a qualifying offense under Sections 29B-D of this chapter (e.g., decision not to

refer certain sexual assault offenses to trial in accordance with paragraph 10.2.; NJP records

in accordance with DAFI 51-202; notification of administrative discharge where the basis is a

qualifying offense; approval of a request for discharge, resignation, or retirement in lieu of trial

by court-martial, administrative paperwork for drug use or possession).

29.36. Additional Notification Requirements. SJAs should be aware of other notification

requirements as discussed in AFMAN 71-102 and support commander notification requirements,

as needed. SJAs should consider partnering with local DAF law enforcement to conduct necessary

commander training on notification requirements, particularly as it relates to firearms prohibitors

and indexing concerns implicated by CDIs.

29.37. General Courts-Martial Continuances, Delays and Abatements. Any continuance,

delay or abatement that results in the announcement of a sentence or acquittal in a GCM occurring

more than six months after referral may require modification of disposition information in NICS.

Government counsel must notify the investigating agency (e.g., local OSI detachment or Security

Forces) and DAF-CJIC in the event a continuance or delay is granted or abatement ordered in a

GCM.

29.38. Electronic Submission Preferred. These complete and unredacted documents should be

submitted to the DAF-CJIC electronically to ensure prompt processing. Documents should be

submitted to [email protected] and may be submitted as attachments or via other secure

electronic method.

Section 29F—Protective Order Submissions

29.39. National Crime Information Center (NCIC) Submission. When a commander issues

an MPO, the commander must forward the MPO to their installation’s primary law enforcement

control center (BDOC or equivalent) within 24 hours of each issuance, extension, modification, or

termination of an MPO. See Section 4C. (T-0) The installation’s primary law enforcement control

center will notify AFOSI Watch within 24 hours for entry of MPO information into the NCIC. See

AFMAN 71-102, para. 2.5.7. The commander also notifies installation law enforcement when any

terms are modified or the MPO is terminated. (T-0) SJAs must be cognizant of these requirements

and appropriately advise commanders of their responsibilities and the collateral effects of issuing,

modifying or terminating MPOs.

224 DAFI51-201 24 JANUARY 2024

Chapter 30

METRICS AND MILESTONES

Section 30A—Case Processing Overview

30.1. Case Processing Time.

30.1.1. The DAF must account for resource investments, system and program effectiveness,

and personnel impacts of military justice in an enterprise environment. An increase in

processing time stands in contrast to the decrease in number of cases tried in recent years. Our

separate system of military justice provides different or diminished constitutional rights to

account for military requirements, including efficiency and effectiveness of the military justice

system. It follows that an even greater emphasis on diligence and timeliness should be pursued

under the UCMJ than in the civilian system. United States v. Moreno, 63 M.J. 129 (C.A.A.F.

2006). This is not to say that fairness, due process, or accused or victim considerations are

forfeited in the name of promptness, but it does recognize that diligence and timeliness are

entirely consistent with good order and discipline and necessary for fairness and justice.

30.1.2. Coordination with Investigators. Consistent with CIP and IPST constructs discussed

in Chapter 4, SJAs must work with local OSI detachment commander and Security Forces

Investigations to coordinate with agents and detectives as early as possible in the investigative

stage of a case.

30.1.3. Time Management. SJAs and chiefs and NCOs in charge of military justice, at all

levels of command, should regularly analyze available DCMS-AMJAMS data relating to each

stage of court processing over which they have significant control to determine specific areas

for improvement to maximize effectiveness and efficiency. The expeditious processing of

courts-martial is essential to minimize disruptions in the DAF mission, the lives of victims,

witnesses, and accused members, and to minimize DAF costs. Metrics and milestones provide

a framework by which we can maintain healthy military justice processes while also remaining

faithful to legal requirements of diligence and timeliness. Decisions on how to address

disciplinary matters should not be made solely to produce seemingly quick results, but

decision-makers and practitioners must be cognizant of the negative impacts generated by

unnecessary delays. Metrics and milestones are offered to help calibrate military justice

processes; the goals are derived from historical data and from legal requirements. They are

intended to maintain fidelity with Moreno and United States v. Livak, 80 M.J. 631 (AFCCA

2020). Members are cautioned against dismissing military justice goals as a career field-driven

interest item; good order and discipline, and the health of the processes and protections that

accompany it, are a common pursuit for all who swear to support and defend the Constitution.

Section 30B—Metrics

30.2. General Provision. Metrics are standards of measurement by which certain requirements

can be assessed. Metrics for courts-martial assess compliance with time-based, legal requirements.

Compliance with the legal requirement is presented as a percentage of times actions were in

compliance with the targeted measurement standard. The law and practicality recognize there can

be valid exceptions to compliance; therefore, explanations for such exceptions must be captured

DAFI51-201 24 JANUARY 2024 225

and documented to demonstrate applicability of an exception. The below metrics ensure focus is

appropriately dedicated to time requirements established by law.

30.2.1. Speedy Trial. Bring an accused to trial within 120 days of preferral, imposition of

pretrial restraint, or entry onto active duty. R.C.M. 707. Arraignment will toll the speedy trial

clock. United States v. Doty, 51 M.J. 464 (C.A.A.F. 1999). Practitioners who seek to stop the

speedy trial clock through arraignment should first attempt to meet all relevant discovery

obligations and charge sheet modifications. Note: Separate from the metric, practitioners

should also consider speedy trial considerations under the 6th Amendment and Article 10,

UCMJ, whenever pretrial restraint is imposed, as these standards are different from R.C.M.

707.

30.2.2. ROT Completion Defined. For DCMS-AMJAMS and computation of metrics, ROT

completion is defined as the completion and compilation of the ROT, including all attachments

and allied papers as prescribed by R.C.M. 1112(f), DAFMAN 51-203, and the ROT Assembly

Checklist on the VMJD and AF/JAJM Teams page.

30.2.3. ROT Completion to ROT Forwarding. A complete and accurate ROT, as defined in

paragraph 30.2.2, must be sent to the appropriate office for processing appellate review within

14 days of the completion of the ROT and all attachments. For cases wherein the accused is

entitled to Article 66, UCMJ, review, the ROT must be docketed with the AFCCA within 150

days of announcement of the sentence. See United States v. Livak, 80 M.J. 631 (AFCCA 2020)

30.2.4. Processing Cases for Appeal. The appropriate office for processing cases wherein the

accused has an opportunity for Article 66, UCMJ, review is AF/JAJM. The appropriate

processing office for cases wherein the accused has an opportunity for Article 64, UCMJ,

review or Article 65(d), UCMJ review is the GCMCA SJA. While not an enumerated metric,

healthy military justice processes should ensure a complete and accurate ROT in all cases

subject to Article 65(d), UCMJ, review is sent to AF/JAJM within seven days of completion

of the review.

Section 30C—Milestones

30.3. Milestones Generally. Milestones are time-based goals to assist in expediting the

administration of justice. The goals are displayed as benchmarks for certain stages of the trial

process and the process in its entirety. The goals are established through an analysis of past case

processing times and they reflect analysis of the historical median of the number of calendar days

it has previously taken to complete phases of the court-martial process. Milestones provide a

destination marker and a piece of an entire collective processing effort.

30.3.1. Using Milestones. Milestones provide practitioners with the ability to manage near-

term and long-term processing issues and to orient them to lessons-learned, positive and

negative, in their military justice program, thereby maintaining a healthy military justice

program that balances protections, effectiveness, and efficiencies. The intent is to encourage

legal offices to focus on strengths, weaknesses, and improvements to their entire process;

milestones offer a way to better understand each part of the whole process.

30.4. GCM Milestones.

30.4.1. SJAs are expected to enable expeditious processing of all cases by closely monitoring

activities and providing legal guidance to investigative agencies from the date of discovery of

226 DAFI51-201 24 JANUARY 2024

the offense through preferral. Early and regular judge advocate assistance to investigative

agencies is essential in helping to foster efficient processes while ensuring sufficient

investigative results and Reports of Investigation (ROIs).

30.4.2. Prefer charge(s) within 40 days of the date the OSI, Security Forces or Commander-

Directed Investigation ROI is published.

30.4.3. Charge(s) may always be preferred prior to publication of the report of investigation.

If charge(s) are preferred prior to the publication of the ROI, DCMS-AMJAMS will reflect “0”

days between publication of the ROI and preferral.

30.4.4. Complete the Article 32, UCMJ, hearing and report within 36 days of the date of

preferral of charge(s).

30.4.5. Refer charge(s) within 21 days of the date of the completion of the Article 32, UCMJ,

hearing and report.

30.4.6. Complete the trial (sentence/acquittal) within 75 days of the date of referral.

30.4.7. Sentence/Acquittal to ROT Completion. Compile the ROT, including all attachments

and allied papers as defined in paragraph 30.2.2, within 64 days of announcement of the

sentence or acquittal.

30.4.8. Forward the ROT to the appropriate office for post-trial review within 250 days of the

date the OSI, Security Forces or Commander-Directed Investigation ROI is published.

30.5. Special Court Martial Milestones.

30.5.1. SJAs are expected to enable expeditious processing of all cases by closely monitoring

activities and providing legal guidance to investigative agencies from the date of discovery of

the offense through preferral. Early and regular judge advocate assistance to investigative

agencies is essential in helping to foster efficient processes while ensuring sufficient

investigative results and report of investigations.

30.5.2. Prefer charge(s) within 24 days of the date the OSI, Security Forces or Commander-

Directed Investigation (CDI) ROI is published.

30.5.3. Charge(s) may always be preferred prior to publication of the report of investigation.

If charge(s) are preferred prior to the report of investigation, DCMS-AMJAMS will reflect “0”

days between publication of the report of investigation and preferral.

30.5.4. Refer charge(s) within four days of the date of preferral of charge(s).

30.5.5. Complete the trial (sentence/acquittal) within 40 days of the date of referral.

30.5.6. Sentence/Acquittal to ROT Complete. Compile the ROT, including all attachments

and allied papers as defined in paragraph 30.2.2, within 38 days of announcement of the

sentence or acquittal.

30.6. Transcription Milestones. Every effort should be made to complete the court-martial

transcript prior to completion of the EoJ. However, in no case should transcription exceed the

following milestones:

30.6.1. In a GCM, complete transcription within 64 days following the completion of trial.

Any delays and reasons for such delays must be annotated in DCMS-AMJAMS.

DAFI51-201 24 JANUARY 2024 227

30.6.2. In a SPCM, complete transcription within 38 days following the completion of trial.

Any delays and reasons for such delays must be annotated in DCMS-AMJAMS.

Section 30D—Summary Court-Martial Measures

30.7. Summary Court-Martial Processing. SJAs are expected to enable expeditious processing

of all cases by closely monitoring activities and providing legal guidance to investigative agencies

from the date of discovery of the offense through preferral. Early and regular judge advocate

investigative assistance to agencies is essential in helping to foster efficient processes while

ensuring sufficient investigative results.

30.7.1. Prefer charge(s) within 40 days of the date of discovery.

30.7.2. Complete action within 21 days of preferral of charge(s).

30.7.3. Forward a complete and accurate ROT to the appropriate office for processing post-

trial review within 14 days of action.

Section 30E—Milestones Common to All Courts-Martial

30.8. Date of Discovery. The date of discovery of the offense is defined as the date when the

legal office first becomes aware of an allegation and a subject has been identified. Allegations

may be made initially to an investigative agency (e.g., OSI, Security Forces, Inspector General),

commander, supervisor, or first sergeant, and legal offices are strongly encouraged to maintain

close relationships with all of these entities to ensure minimal delay between the initial report and

legal office notification. In all cases where additional allegations against an identified subject are

discovered, use the earliest date of discovery of all offenses (e.g., allegation one is reported to the

legal office on 1 January and allegation two is reported to the legal office on 1 March, the date of

discovery is 1 January).

228 DAFI51-201 24 JANUARY 2024

Chapter 31

DISCIPLINARY CASE MANAGEMENT SYSTEM (DCMS) – AUTOMATED

MILITARY JUSTICE ANALYSIS AND MANAGEMENT SYSTEM (AMJAMS)

MODULE

Section 31A—General Information

31.1. Purpose. The purpose of DCMS-AMJAMS is to collect data pertaining to investigations,

NJP imposed pursuant to Article 15, UCMJ, trials by court-martial, and related military justice

activity. Use of DCMS-AMJAMS is required for legal offices to manage their cases. The use of

any other case management system (e.g., excel spreadsheets, digital whiteboards) is not authorized.

As the DAF eventually transitions to DCMS as a successor to AMJAMS, this chapter, and all its

paragraphs, will apply equally to DCMS. The information collected is required for the following

reasons:

31.1.1. To conduct statistical studies that measure disciplinary rates and trends and evaluate

military justice involvement as it affects the quality of the force and the personnel needs of the

service;

31.1.2. To provide various management reports to judge advocate personnel at all levels;

31.1.3. To provide statistical data to the DoD concerning military justice;

31.1.4. To provide raw data to Defense Incident-Based Reporting System (DIBRS); and

31.1.5. To reply to inquiries concerning military justice.

31.2. Uses. Based on user inputs, DCMS-AMJAMS contains detailed information on offenses

and processing timelines as well as demographic information on subjects and victims. The

information in DCMS-AMJAMS provides effective management tools for use by Headquarters,

MAJCOMs/FLDCOMs, general and special court-martial jurisdictions, the judiciary, and the

appellate divisions. When used properly, the information will assist in eliminating or highlighting

excessive processing delays and in monitoring the current status of military justice actions from

the investigation stage through completion of the appellate process. DCMS-AMJAMS data is

controlled unclassified information and may only be accessed by personnel for an official purpose

while scrupulously recognizing the need for confidentiality and attorney work product.

31.3. Release. While transparency and access to military justice records offer the public an

opportunity to maintain confidence in the fairness of the military justice system, the release of

certain information must be balanced by key limitations. In particular, practitioners must maintain

an awareness that access to certain data found within AF/JA’s legal management systems—

including records of legal assistance visits, civil litigation, and UCMJ action (including victim-

centric information)—is not just subject to the Privacy Act. Access is also limited by both case

law and Executive Order. Such limitations protect the United States and its service members’

interests by shielding delicate information from an unauthorized release. The shield exists so long

as it is not waived (explicitly or through practice); as such, the data is scrupulously managed. The

shield is referred to as the attorney work product privilege, which was established by the Supreme

Court of the United States in Hickman v. Taylor, 329 U.S. 495 (1947). The privilege was

subsequently written into the Federal Rules of Civil Procedure, Rule 26(b)(3). The protection was

explicitly extended to the work product—case preparation and thought processes—of military

DAFI51-201 24 JANUARY 2024 229

justice practitioners in United States v. Romano, 46 M.J. 269 (C.A.A.F. 1997). In United States v.

Bowser, 73 M.J. 889 (AFCCA 2014), AFCCA noted the work product privilege encompasses an

attorney’s thought processes and is specifically addressed by EO 13825, 2018 Amendments to the

Manual for Courts-Martial, United States, in R.C.M. 701(f). The case law and EO complement

each other to ensure Air Force legal practitioners comply with both their own licensing

requirements and ABA Model Rule 1.6, Confidentiality of Information, in representing their

clients.

31.3.1. AF/JA is the release authority for data collected and stored in DCMS-AMJAMS and

the products they may generate.

31.3.2. Requests for release of DCMS-AMJAMS data and products will be considered in light

of applicable limitations.

31.3.3. AF/JA is the release authority when a request for derogatory data on an individual is

presented to the installation legal office. AF/JA delegates the release authority to the

installation SJA consistent with the limitations established under the Privacy Act, DAFI 51-

201, and other applicable policy. The delegation does not include the release of reports that

are generated by or from DCMS-AMJAMS. Any release must shield attorney work product

to the maximum extent possible.

31.3.4. Installation legal offices are sometimes asked to use DCMS-AMJAMS to determine

whether or not derogatory data exists for a particular individual (e.g., to vet candidates for

professional opportunities). SJAs should remind the requestor AF/JAJM frequently vets those

same candidates on collective lists to meet headquarters requirements. More importantly, SJAs

should limit the release of any derogatory data to matters that fall within the JA portfolio as

the OPR. The SJA can confirm, in response to an official request, if an individual was court-

martialed because AF/JAJM is the custodian of court-martial records. SJAs should not confirm

if a candidate received non-judicial punishment or was investigated because the JA community

is not OPR for those records and it does not comprehensively track corrections or

expungements to such records. SJAs should refer requestors to AFPC for release of non-court-

martial records.

31.4. Policy. DCMS-AMJAMS inputs must be timely, complete, and accurate. Timely

collecting, reporting, and processing of military justice information is essential to SJAs at all

levels. Timely inputs keep senior leadership apprised of and prepared to answer questions about

developing investigations that may generate high-level attention. Inputs are ordinarily completed

within one duty day of a military justice “event” in a case, beginning with the Investigation module.

“Events” include but are not limited to stages common to all courts such as investigation, preferral,

referral, but also include any significant changes to the facts or processing of a case. If the data

field is applicable to a case, an input must be made as soon as the data is available and updated as

the need arises.

31.5. Responsibilities.

31.5.1. SPCMCA and GCMCA legal office personnel have primary responsibility for DCMS-

AMJAMS data entry except appellate information. DCMS-AMJAMS data should be

complete, accurate, and timely.

31.5.2. GCMCA legal office personnel have primary responsibility for reviewing DCMS-

AMJAMS inputs with regard to cases in the command. The GCMCA legal office must validate

230 DAFI51-201 24 JANUARY 2024

all court-martial verdicts and sentences within seven calendar days of completion of the STR

and must complete the Article 64 and 65 folders.

31.5.3. AF/JAJM, AF/JAJG, AF/JAJA, AFCCA, and AF/JAJI have primary responsibility for

DCMS-AMJAMS data entry of appellate and other TJAG review information.

31.5.4. Legal Information Services (AF/JAS) has primary responsibility for granting legal

practitioners access to DCMS-AMJAMS.

Section 31B—Case Processing

31.6. Investigation. New cases must be opened in DCMS-AMJAMS as investigations within one

duty day of any personnel in the legal office becoming aware of a potential Article 15, UCMJ,

court-martial, or circumstances reportable as a special interest case. See Section 31D. When data

entry would potentially compromise an investigation, delayed data entry is authorized. In those

cases, report circumstances of the investigation via email to AF/JAJM and document the rationale

for the delayed entry in DCMS-AMJAMS case notes.

31.7. DCMS-AMJAMS Data Completion. DCMS-AMJAMS data must be filled out in

accordance with guidance promulgated by AF/JAJM. DCMS-AMJAMS guidance is found within

this regulation and on the VMJD and AF/JAJM Teams page.

Section 31C—Reports and Queries

31.8. Reports. Reports generated by DCMS-AMJAMS can be accessed through the

Management System itself, or from FLITE. Legal offices at all levels of command should review

their DCMS-AMJAMS reports on a weekly basis for accuracy.

31.8.1. In DCMS-AMJAMS, go to the “Reports” menu and select the desired report. DCMS-

AMJAMS reports are located under the “REPORTS” tab.

31.8.2. In FLITE, go to the “Reports” drop-down menu and select “Automated Military

Justice Analysis and Management System.”

31.9. Queries. Generate queries via AMJAMS by going to the “Reports” drop-down menu and

selecting “Reports” or “Query.” Then select the type of query and its parameters.

Section 31D—SIRs

31.10. Reporting Special Interest Cases. Certain cases involving DAF members generate

interest within Headquarters DAF because of the nature of the offense, the subject’s grade, or some

other reason. SJAs must be sensitive to SIR requirements.

31.11. Responsibilities. Reporting special interest cases in DCMS is a base-level responsibility.

Reports must be prepared and forwarded to AF/JAJM within one duty day of learning of the

incident by the base legal office responsible for the case or supporting the subject’s unit of

assignment. If a base legal office learns of a SIR case but another office is responsible for it, the

base legal office with knowledge of the case should inform the responsible legal office. Legal

office reporting responsibilities do not preclude or pre-empt and should not precede commanders’

reporting responsibilities or command authorities. The SJA should coordinate SIR reporting,

especially initial reports, with the wing commander or equivalent authority.

DAFI51-201 24 JANUARY 2024 231

31.12. Requirements. SIRs must be created in the following circumstances:

31.12.1. Officer, E-8 and E-9 Subjects. Regardless of offense, report all allegations resulting

in an investigation involving officers, and enlisted personnel in the grades of E-8 and E-9.

31.12.2. Serious Crimes. Regardless of the subject’s grade, report all cases involving the

following crimes, including attempts, conspiracies, and solicitations to commit these crimes:

31.12.2.1. Offenses resulting in death, including violations of Articles 118 (Murder), 119

(Manslaughter); 119a (Death or injury of an unborn child), and 134 (Negligent Homicide),

UCMJ;

31.12.2.2. For offenses occurring prior to 1 January 2019, violations of Articles 120, 120a,

120b, 120c, 125 (Forcible Sodomy), or 134 (Child Pornography or Indecent Conduct),

UCMJ, and attempts thereof;

31.12.2.3. For offenses occurring on or after 1 January 2019, violations of Articles 117a,

120, 120b, 120c, 130, or 134 (Child Pornography or Indecent Conduct), UCMJ, and

attempts thereof;

31.12.2.4. Domestic violence allegations involving substantial or grievous bodily harm,

committed by a current or former spouse, parent or guardian of the victim; by a person with

whom the victim shares a child in common; by a person who is cohabitating with or has

cohabitated with the victim as a spouse, parent, guardian, or other directly related family

member; or by a person similarly situated to a spouse, parent or guardian of the victim.

31.12.2.5. Retaliation, in violation of Article 132, UCMJ, and attempts thereof;

31.12.2.6. Espionage, subversion, aiding the enemy, sabotage, spying, or violations of

punitive regulations or statutes regarding the handling of classified information or the

foreign relations of the United States;

31.12.2.7. Environmental crimes, including civilian felony prosecution;

31.12.2.8. Prohibited activities with military recruit or trainee by person in position of

special trust in violation of Article 93a, UCMJ;

31.12.2.9. Other circumstances if required by the relevant NAF, MAJCOM or FLDCOM.

31.12.3. Cases Involving Command or Media Interest.

31.12.3.1. Any case where the chain of command is required or likely to report the case

via Operational Event/Incident Report (OPREP3) per AFMAN 10-206, Operational

Reporting (OPREP).

31.12.3.2. Any case with potential or actual community or local concerns or potential or

actual media interest.

31.13. What to Report. Use DCMS-AMJAMS to generate the SIR, which must include case

details, including a description of the alleged offenses, dates and locations, UCMJ articles and

specifications, media interest, investigating agency, next steps, and any unusual or significant

features of the case. Identify missing information and follow up as soon as possible.

31.13.1. If at the time of an incident, the alleged perpetrator is unidentified, report the case to

AF/JAJM via email.

232 DAFI51-201 24 JANUARY 2024

31.13.2. Ensure law enforcement sensitive investigative information is not included in the SIR

without concurrence of the OSI Detachment Commander/Special Agent-in-Charge or

investigating agency.

31.13.3. For matters investigated by CDI, IG, or Military Equal Opportunity (MEO),

summarize the allegations and, when the investigation is done, identify substantiated and not-

substantiated findings.

31.13.4. For cases disposed of by NJP or administrative action, identify the wrongdoing or

offenses alleged (e.g., “On (date), Subject received NJP/letter of reprimand (LOR) for…”).

31.13.5. For cases handled by civilian authorities, include information that identifies the

investigative and prosecutorial authorities, court, jurisdiction, and a summary of the charges,

pleas, findings and sentence.

31.13.6. If a case was closed without action, explain why.

31.14. When to Submit a SIR.

31.14.1. Initial SIR. Within one duty day of learning of an incident that requires a SIR. If an

initial report does not provide sufficient information to determine whether a SIR is required,

the installation legal office should work with investigators to gather additional information and

submit a SIR within one duty day of receiving sufficient information to determine a SIR is

required. If DCMS-AMJAMS cannot be accessed within one duty day, submit case

information using the most expeditious means possible (likely email), and input the case into

DCMS-AMJAMS as soon as possible. SIR reporting responsibilities do not preclude or pre-

empt and should not precede commanders’ reporting responsibilities or command authorities.

The SJA should coordinate SIR reporting, especially initial reports, with the wing commander

or equivalent authority.

31.14.2. Final SIR. Submit a final SIR upon completion of the court-martial, NJP or

administrative action, including the decision whether to file NJP action in an Officer Selection

Record or Senior Noncommissioned Officer Selection Record, or as directed upon case

closure.

31.15. How to Report.

31.15.1. Use DCMS-AMJAMS to generate the SIR. Complete the SIR and Special Identifier

tabs in DCMS-AMJAMS.

31.15.2. Transmitting SIRs to AF/JAJM. Generate a PDF copy of the SIR in DCMS-

AMJAMS and send it via encrypted email to [email protected]. Further

instructions are available on the VMJD and AF/JAJM Teams page.

31.15.3. Initial. When submitting an initial SIR, use the following subject line/title:

Controlled Unclassified Information (CUI) NEW SIR: CASE ID # - RANK SURNAME –

BASE.

31.15.4. Final. When submitting a final SIR, use the following subject line/title: Controlled

Unclassified Information (CUI) FINAL SIR: CASE ID # - RANK SURNAME – BASE.

DAFI51-201 24 JANUARY 2024 233

Section 31E—Requesting Access to DCMS-AMJAMS

31.16. Overview. DCMS-AMJAMS access is not automatic and all users must be approved for

access by the office where they will be performing military justice actions. To ensure that DCMS-

AMJAMS is being used for official purposes, all requests must be submitted, via email, to JAS.

DCMS-AMJAMS access is requested by a Leadership User via the ‘Add Office Access’ link under

the User Management Module. DCMS-AMJAMS access is approved by AF/JAJM.

31.16.1. Office of Assignment. Before a person can be given DCMS-AMJAMS access, the

individual must be assigned to the requesting office in Roster. Only offices with a military

justice mission (i.e., the mission includes prosecuting courts-martial or the legal office supports

a convening authority empowered to convene courts-martial) are authorized access to DCMS-

AMJAMS.

31.16.2. Contents of the Request. All requests must be submitted via email to

[email protected]. The email must originate from one of the following personnel

within the office: SJA, DSJA, Law Office Superintendent (or Legal Office noncommissioned

officer in charge (NCOIC)), Chief of Military Justice, or NCOIC of Military Justice. The email

must include the name/rank of the person being granted access, but should not include SSNs.

31.16.3. Temporary Access to DCMS-AMJAMS. When a member is deployed or TDY to an

office and needs DCMS-AMJAMS access, the same requirements for requesting an account

shall apply. Additionally, the individual will need to create a temporary role in Roster and that

temporary role will need to be gained into the requesting office before the request can be

processed. Temporarily assigned individuals will have their DCMS-AMJAMS access

removed automatically at the end of the temporary tour.

234 DAFI51-201 24 JANUARY 2024

Chapter 32

ARTICLE 137, UCMJ, REQUIRED COMMANDER BRIEFINGS, AND STATUS OF

DISCIPLINE

Section 32A—Article 137, UCMJ, Briefings for Enlisted Personnel and Officers

32.1. Responsibilities.

32.1.1. The FSS/CC identifies enlisted and officer personnel on the installation required to

complete an Article 137, UCMJ, briefing.

32.1.2. The SJA, in coordination with the FSS/CC, must ensure base personnel are briefed on

the UCMJ as required by Article 137, UCMJ, and this chapter. (T-0)

32.2. Content. The Article 137, UCMJ, briefings for enlisted personnel and officers must cover,

at a minimum, the following topics:

32.2.1. Articles 2, 3, 7–15, 25, 27, 31, 37, 38, 55, 77–134, and 137–139, UCMJ; (T-0)

32.2.2. Types of punitive and administrative discharges;

32.2.3. Bases for characterizing service;

32.2.4. The benefits, disadvantages, and possible future effects of each type of service

characterization;

32.2.5. The denial of certain benefits to most persons who fail to complete at least two years

of an original enlistment (38 U.S.C. § 5303A, Minimum active-duty service requirement); and

32.2.6. A detailed explanation of the applicable laws and regulations governing sexual

conduct by members of the armed forces.

32.3. Article 137, UCMJ, Delivery Methods. The following delivery methods apply to Article

137 briefings.

32.3.1. Online. The preferred method for accomplishing Article 137, UCMJ, briefings is

online. The myLearning online training meets the content requirements in paragraph 32.2

for the enlisted and officer briefings. Note: Commanders must accomplish the additional

required Article 137, UCMJ, briefings discussed in Section 32B.

32.3.2. In-person. Article 137, UCMJ, briefings may also be conducted in-person by a judge

advocate, a DAF civilian attorney, a 5-level or higher paralegal, or a 3-level paralegal under

the supervision of a qualified briefer, to personnel within the command who require training.

For the purposes of this provision, a “5-level or higher paralegal” includes a civilian paralegal

who:

32.3.2.1. Carries a 5-level paralegal certification as a Reservist, or

32.3.2.2. Prior to entering civilian service, served as a Regular Air Force or Space Force

paralegal with a 5-level or higher paralegal certification.

32.3.3. If it is not practicable for a member to receive the briefing through myLearning or in-

person, the member may be briefed by a qualified briefer via telephone, video teleconference

or other remote means.

DAFI51-201 24 JANUARY 2024 235

32.3.4. Documenting the training.

32.3.4.1. The servicing legal office will coordinate with the FSS to ensure all personnel

have completed the myLearning training as required in this instruction.

32.3.4.2. If the legal office conducts an in-person myLearning briefing, the legal office

must record all in-person attendance for enlisted, officers, and commanders through

documentation provided to the member (e.g., memorandum, sign-in sheets, or other means)

to allow for verification by the member’s UTM that the specific individual received the

mandatory training.

32.3.4.3. For all other methods of completion ensure documentation of the member’s

completion.

32.3.5. Frequency, Content and Duration. The SJA determines the frequency, content, and

duration of training sessions, provided they meet the requirements of this chapter.

32.4. Enlisted Completion Requirements.

32.4.1. Complete the initial explanation within 14 calendar days of the entry of enlisted

personnel on active duty; (T-0)

32.4.2. Complete the six-month explanation for enlisted personnel within 30 calendar days of

the last day of the month in which the individual completed six months of active duty; (T-0)

and

32.4.3. Complete the reenlistment explanation within 30 calendar days of an individual’s

reenlistment.

32.4.4. Enlisted members of the Reserve or Air National Guard receive the initial explanation

within 14 calendar days of initial entrance on a duty status with an air reserve component,

again after completing basic training, and at the time of reenlistment.

32.5. Officer Completion Requirements.

32.5.1. Complete officer training within six months of commissioning, regardless of whether

initial commissioning is in a reserve component or RegAF or Space Force. (T-0)

32.5.2. The SJA for the Holm Center, Maxwell Air Force Base, ensures trainees in Officer

Training School receive the required briefing prior to graduation.

32.5.3. The SJA at each Training Wing (or Space Force equivalent) ensures officers who

commission through the Reserve Officers’ Training Corps (ROTC) receive the required

briefing during training.

32.5.4. The SJA for USAFA ensures cadets receive the required briefing from instructors at

USAFA within 14 calendar days of entry on active duty.

Section 32B—Required Commander Training

32.6. Overview. In addition to the training in Section 32A, commanders must accomplish two

additional trainings: training on the role of a commander in all stages of military justice in

connection with sexual assault and military justice-specific training covering, at a minimum,

search authorizations, no contact and protective orders; and commander-specific indexing and

firearm prohibition requirements.

236 DAFI51-201 24 JANUARY 2024

32.6.1. Timing. Installation SJAs ensure commanders receive all three trainings (Article 137,

UCMJ, and the two additional required commander trainings) prior to conducting the legal

sufficiency reviews of their G-series orders, when practicable. (T-0) In the event an officer is

not able to complete all the required trainings prior to being placed on G-series orders, the

trainings must be accomplished within 30 days of appointment to or assumption of command.

This includes commanders placed on temporary orders periodically, for whom training is good

for 365 days. Even if an officer has previously served as a commander, repeat training is

required within 30 days of appointment to or assumption of a subsequent command.

32.6.2. Content.

32.6.2.1. The VMJD and AF/JAJM Teams page contain templates for the additional

commander-specific trainings.

32.6.2.2. Part two of the training consist of training required by FY 2020 NDAA, Section

540B.

32.6.2.2.1. At a minimum, this training must cover the following topics: (T-0)

32.6.2.2.1.1. The role of commanders in each stage of the military justice process

in connection with allegations of sexual assault committed by a service member;

32.6.2.2.1.2. The role of commanders in assuring victims of sexual assault are

informed of, and have the opportunity to obtain, assistance available for victims;

32.6.2.2.1.3. The role of commanders in assuring victims of sexual assault are

afforded the rights and protections available for victims;

32.6.2.2.1.4. The role of commanders in preventing retaliation against victims,

their family members, witnesses, first responders, and bystanders for their

complaints, statements, testimony, and status in connection with allegations sexual

assault, including the role of commanders in ensuring subordinates in the command

are aware of their responsibilities in preventing such retaliation;

32.6.2.2.1.5. The role of commanders in establishing and maintaining a healthy

command climate in connection with reporting on sexual assault, and in the

response of the commander, subordinates in the command, and other personnel in

the command to such sexual assault, such reporting, and the military justice process

in connection with such sexual assault; and

32.6.2.2.1.6. Any other matter on the role of commanders in connection with

sexual assault that the Secretary of Defense deems appropriate.

32.6.2.2.2. The SJA is responsible for ensuring commanders receive this training in

accordance with paragraph 32.6.1. A template for the required training is located on

the VMJD and AF/JAJM Teams page.

32.6.2.3. Part three of the training is intended to provide education and training on

remaining matters within the military justice system that involve a command responsibility

but may not be covered in part two. This training ensures that commanders throughout the

Air Force and Space Force are best equipped to handle instances that may arise in their

units which impact good order and discipline.

DAFI51-201 24 JANUARY 2024 237

32.6.2.3.1. This training covers, at a minimum, search authorization under M.R.E. 315;

“no-contact” orders, MPOs, and CPOs; and commander-specific indexing and firearm

prohibition requirements. Additional topics may be covered at the discretion of the

SJA and installation commander.

32.6.2.3.2. The SJA is responsible for ensuring commanders receive this training in

accordance with paragraph 32.6.1.

Section 32C—Status of Discipline Briefings

32.7. Overview. A Status of Discipline (SOD) briefing will be conducted by the legal office on

behalf of the installation commander or equivalent installation authority on at least a quarterly

basis. The intent of the briefing is to facilitate discussion across the installation regarding trends

in military justice and discipline, as well as identifying areas of concern among the base’s

population.

32.7.1. The SJA supporting the installation commander facilitates the SOD briefing.

Installation commanders and their servicing SJAs are encouraged to invite host and tenant

commanders and first sergeants. Pursuant to the direction of the installation commander, the

SJA may invite additional personnel to all or specific SOD briefings. For example, vice and

deputy commanders, superintendents, and OSI and Security Forces senior investigators may

be invited to all SOD briefings while the SARC, VC, or ADC may be invited to participate in

a portion of a specific SOD briefing.

32.7.2. The content of the SOD briefing may vary based on the installation. The SJA and

legal office staff will create the briefing materials and coordinate as necessary and appropriate.

DCMS-AMJAMS and Web-Based Administrative Separation Program (WASP) (and any

future replacement systems) are used to generate the briefing slides. For briefings involving

Air Force personnel, data will include the squadron (where required in Table 32.1) wing, NAF,

MAJCOM, and Air Force numbers, as applicable. For briefings involving Space Force

personnel, data will include the data for all equivalent organizations (e.g., garrison, delta,

FLDCOM, and Space Force).

32.8. Minimum Requirements. The information in Table 32.1 will be provided to SOD

attendees either before or during the SOD briefing. SJAs may provide the information beforehand

to facilitate discussion during the SOD briefing.

Table 32.1. SOD Minimum Requirements.

FREQUENCY

JUSTICE PROCESS

INFORMATION REQUIRED

APPLICABLE TIME

PERIOD

Quarterly (every

SOD).

Courts-Martial.

Results of trial for closed cases at

the wing or garrison. See Note 1.

Within the quarter.

Processing times for courts-martial

completed through Record of Trial

forwarding at the wing or garrison.

Within the quarter.

Processing times for courts-martial

completed through Record of Trial

forwarding at the wing or garrison,

NAF or delta,

MAJCOM/FLDCOM, and DAF.

See paragraph 32.7.2.

Year-to-date.

238 DAFI51-201 24 JANUARY 2024

FREQUENCY

JUSTICE PROCESS

INFORMATION REQUIRED

APPLICABLE TIME

PERIOD

Nonjudicial punishment

(NJP).

Information on NJP completed

through SJA review, including

supplemental actions (suspension,

mitigation, remission, set aside).

See Note 2.

Within the quarter.

NJP processing times for NJP

actions completed through SJA

review by squadron or equivalent,

wing or garrison, NAF or delta,

MAJCOM/FLDCOM, and DAF.

See paragraph 32.7.2.

Year-to-date.

Involuntary discharge.

Information on involuntary

discharge cases completed through

discharge or retention. See Notes 2,

3, 4.

Within the quarter.

Discharge processing times for

enlisted notification and board cases

for discharge cases completed

through discharge by squadron or

equivalent, wing or garrison, NAF

or delta, MAJCOM/FLDCOM, and

DAF. See paragraph 32.7.2.

Year-to-date.

Once per calendar

year.

Rates per thousand.

Rates per thousand for courts-

martial and NJP listed by the

applicable levels of command

described in paragraph 32.7.2 for:

overall and by officer/enlisted,

gender, and race. See Note 5.

Notes:

1. This requirement does not apply to traditional reserve units; however, traditional reserve units will discuss closed

cases where recall was initiated, and a judicial proceeding resulted.

2. SJA are encouraged to have the responsible commanders brief their squadron’s NJP actions and involuntary

discharge cases.

3. Involuntary discharge cases include board waivers and cases involving Probation and Rehabilitation (P&R) and

the status of those P&R cases.

4. Briefing of individual discharge cases is not required for entry-level status discharges.

5. The requirement for discussion of courts-martial does not apply to traditional reserve units.

32.8.1. SOD provides a venue to discuss special interest items identified by the wing or

garrison commander, or the SJA, such as alcohol-related incidents, drug offenses, and unlawful

command influence. Examples of topics are available on the VMJD and AF/JAJM Teams page.

32.8.2. Legal offices should use SOD as an opportunity to conduct training specific to the

installation military justice issues. Templates and topic ideas are available on the VMJD and

AF/JAJM Teams page.

Section 32D—Publish the Nature and Results of all Sexual Misconduct Disciplinary Actions

32.9. Overview. In accordance with Recommendation 3.8 from the report of the Independent

Review Commission on Sexual Assault in the Military, in order to promote greater transparency

and accountability, commanders at the installation level are responsible for publishing the nature

and results of all disciplinary actions taken against military members related to sexual harassment

DAFI51-201 24 JANUARY 2024 239

and sexual assault without identifying the accused, victim, or unit. Installation commanders will

work with their servicing SJA to accomplish publication.

32.9.1. Disciplinary actions taken for the following offenses must be reported: sexual assault

(including violations of Article 120 and 120b, UCMJ) and sexual harassment.

32.9.2. The information will be published in a narrative format and must include:

32.9.2.1. A brief summary of the nature of the allegation(s);

32.9.2.2. The investigative findings; and

32.9.2.3. The judicial, nonjudicial, and/or administrative actions taken against the

accused(s).

32.9.3. The results of the disciplinary actions must be published on the installation's public

facing website. A template publication is located on the VMJD and AF/JAJM Teams page.

32.9.4. The results of the disciplinary actions must be published bimonthly, no later than the

first day of the following months: December, February, April, June, August, and October.

32.9.4.1. For judicial actions, publish the results of the action after the military judge signs

the EOJ.

32.9.4.2. For NJP, publish the results of the action after SJA legal review.

32.9.4.3. For administrative actions, publish the results of the action after the issuing

authority’s decision on the final disposition of the action in accordance with DAFI 36-

2907.

32.9.4.4. For involuntary discharges for which the underlying misconduct involves sexual

assault or sexual harassment, publish the results of the action after the separation authority

takes final action in accordance with DAFI 36-3211.

32.9.5. Application to ARC.

32.9.5.1. This requirement applies to disciplinary actions taken against AFRC members

for sexual assault or sexual harassment that occurred while the AFRC member was in

active-duty status. This requirement also applies to disciplinary actions taken against ANG

members for sexual assault or sexual harassment that occurred while the ANG member

was in Title 10 status. There is no requirement to publish the results of disciplinary actions

taken for sexual assault or sexual harassment committed by an ARC member in civilian

status.

32.9.5.2. ARC units located on a RegAF installation should work with their host

installation SJA to accomplish publication. ARC units on a standalone installation should

work with the SJA of the RegAF installation legal office who handles their military justice

functions.

240 DAFI51-201 24 JANUARY 2024

Chapter 33

STAFF JUDGE ADVOCATE SUPPORT TO EXTERNAL PROGRAMS

Section 33A—Staff Judge Advocate’s Responsibilities to Defense Counsel

33.1. The ADC Program. The ADC Program is one of the great strengths of the military justice

system and will continue to be so as long as the defense function is, and is perceived to be,

independent. A critical responsibility of the SJA is to foster that independence in words and

actions and to treat the ADC as equal with the prosecution function at the bar of justice.

33.2. Staff Judge Advocate Responsibilities.

33.2.1. It is a primary role of a SJA to ensure the military justice system is administered in a

fair and impartial manner in perception and in reality. To accomplish this objective, effective

leadership within the military justice arena demands SJAs protect and promote all facets of the

military justice process, including the ADC function. SJAs are charged with providing

commanders candid and objective advice on all legal matters, especially in regard to military

justice. An SJA is responsible for ensuring the government is well represented and its

personnel are properly trained to execute their various military justice responsibilities. In

executing their duties, SJAs are expected to execute multiple roles and responsibilities in

safeguarding the justice process and in enhancing good order and discipline, to include

properly preparing counsel and effectively providing command with an unbiased perspective

and legal advice on the full range of military justice options, which take into account the needs

of all the parties involved, the mission, and the DAF.

33.2.2. The SJA’s position and seniority demands that they set the tone for how military justice

is viewed across the installation by maintaining open lines of communication with defense

counsel, promoting civility in practice, and maintaining a productive relationship within the

legal community. The SJA must never make denigrating, demeaning, or hostile comments

about the ADC nor condone such comments by others. Instead, when the SJA considers it

necessary to question or criticize the actions of the ADC, the SJA will raise such matters

through the ADC’s supervisory and command chain. At all times, the SJA must remember

that professionalism requires civility, a continuous, cordial relationship with the defense bar,

vigorous promotion of defense independence, and appropriate recognition of the ADC’s

achievements.

33.2.3. The quality of the ADC’s facility and equipment must be equal to or better than that

of the base legal office. Clients and others who visit ADC offices will not perceive the system

is operating on a level playing field unless defense facilities and equipment achieve this

standard. SJAs are responsible for assisting ADCs in obtaining and maintaining suitable

facilities and equipment.

Section 33B—Staff Judge Advocate’s Responsibilities to Victims’ Counsel

33.3. The Victims’ Counsel Program. The VC Program is one of the great strengths of the

military justice system and will continue to be so as long as the VC function is, and is perceived

to be, independent. A critical responsibility of the SJA is to foster that independence in words and

actions.

DAFI51-201 24 JANUARY 2024 241

33.4. Staff Judge Advocate Responsibilities.

33.4.1. It is a primary role of a SJA to ensure the military justice system is administered in a

fair and impartial manner in perception and in reality. To accomplish this objective, effective

leadership within the military justice arena demands SJAs protect and promote all facets of the

military justice process, including the VC Program.

33.4.2. The SJA’s position and seniority demands that they set the tone for how military justice

is viewed across the installation by maintaining open lines of communication with the VC,

promoting civility in practice, and maintaining a productive relationship within the legal

community. If the SJA considers it necessary to question or criticize the actions of the VC,

the SJA will raise such matters through the VC’s supervisory and command chain. At all

times, the SJA must remember that professionalism requires civility, a continuous, cordial

relationship with the members of the VC program, vigorous promotion of the VC Program’s

independence, and appropriate recognition of the VC’s achievements.

33.4.3. The quality of the VC’s facility and equipment must be equal to or better than that of

the base legal office. Clients and others who visit VC offices will not perceive the system is

operating on a level playing field unless the facilities and equipment achieve this standard.

SJAs are responsible for assisting VCs in obtaining and maintaining suitable facilities and

equipment.

33.4.4. The VC program is separate and distinct from VWAP. The SJA must ensure legal

office personnel understand the distinction between the two programs. VWAP responsibilities

are not abrogated by a victim’s representation by counsel.

Section 33C—Support of Defense Sexual Assault Incident Database (DSAID)

33.5. Defense Sexual Assault Incident Database. The DSAID is a centralized, case-level DoD

database for the uniform collection of data regarding sexual assaults involving persons covered by

DoDD 6495.01, Sexual Assault Prevention and Response (SAPR) Program, and DoDI 6495.02,

Volume 1, Sexual Assault Prevention and Response: Program Procedures. The DSAID captures

available information, not limited by restricted reporting or otherwise prohibited by law, about the

nature of the assault, the victim, the offender, and the disposition of reports associated with the

assault. The DSAID is used to implement annual Congressional reporting requirements. The

DSAID is maintained at base level by the installation SARC and requires information, as

necessary, from appropriate base agencies to complete designated data fields.

33.5.1. The installation SJA ensures the legal office provides the SARC with disposition data

on DSAID cases resulting from unrestricted reports of sexual assault and independent

investigations (see paragraph 8.7) with servicemember subjects by assisting the SARC in

completing a DD Form 3114, Department of Defense Uniform Command Disposition Report.

In accordance with DoDI 6495.02, Volume 1, Enclosure 12, the data called for on the DD

Form 3114 is submitted to the DoD SAPR Office and, in turn, to Congress.

33.5.2. The SARC initiates the DD Form 3114 once a case has been disposed of by command

action (e.g., court-martial, NJP, administrative discharge, etc.) or a decision not to take action.

The legal office will complete the remainder of the form, to the extent the information called

for is known or can be reasonably ascertained. Legal offices are responsible for drafting a case

synopsis for inclusion on the DD Form 3114. This synopsis is a brief summary of the case and

242 DAFI51-201 24 JANUARY 2024

its disposition and is to be drafted in accordance with guidance published in the AF/JAJM

DSAID Guide on VMJD and the AF/JAJM Teams page.

33.5.3. The SJA will ensure the information provided on the DD Form 3114 is accurate and

complete and returned to the SARC as soon as possible. The SARC will then input the data

from the DD Form 3114 into DSAID and forward the DD Form 3114 to AF/JAJM.

33.5.4. If the legal office does not have access to the requested information—such as when

command action was taken at another installation—the SJA will ensure the legal office assists

the SARC in contacting the legal office which does maintain the information.

DAFI51-201 24 JANUARY 2024 243

Chapter 34

REQUESTS FOR AND RELEASE OF INFORMATION

Section 34A—Extrajudicial Statements and Release of Information

34.1. General Provision. Information may not be disseminated if it could reasonably be expected

to interfere with law enforcement proceedings or deprive a person of a right to a fair trial or an

impartial adjudication in a criminal proceeding. The determination of whether a release of

information is permissible includes an assessment of the type and details of information to be

released and its source, the type of proceeding, and the stage of the proceeding. The release of

information relating to a criminal proceeding is subject to the Air Force Rules of Professional

Conduct, the Air Force Standards for Criminal Justice, implementing directives, security

requirements, judicial orders protecting information, and applicable laws such as the Privacy Act,

FOIA, and the Victim and Witness Protection Act. Paragraph 34.2.1 discusses FOIA’s required

balancing test concerning the privacy rights of an accused. Paragraph 31.3 discusses the release

of DCMS-AMJAMS information.

34.1.1. DAF representatives must not encourage or assist news media in photographing or

televising an accused being held or transported in custody.

34.1.2. This section does not apply to the release of information by military or civilian defense

counsel. However, defense counsel, both military and civilian, must comply with the Air Force

Rules of Professional Conduct and the Air Force Standards for Criminal Justice, portions of

which address trial publicity by defense counsel. Military defense counsel must comply with

the requirements and restrictions of FOIA and the Privacy Act with respect to the release of

DAF records. (T-0)

34.2. Extrajudicial Statements. Extrajudicial statements are oral or written statements made

outside of a criminal proceeding that a reasonable person would expect to be disseminated by

means of public communication. There are valid reasons for making certain information available

to the public in the form of extrajudicial statements when such release otherwise complies with

applicable rules and regulations as described in paragraph 34.1. However, extrajudicial

statements should not be used for the purpose of influencing the course of a criminal proceeding.

Usually, extrajudicial statements should include only factual matters and should not offer

subjective observations or opinions. The question of whether a statement is extrajudicial will

depend upon the circumstances.

34.2.1. Under the Privacy Act, information from a system of records, such as a court-martial

file maintained in a judge advocate office about an individual, may not be released to the public

without the individual’s consent unless release is required by FOIA. (T-0) FOIA requires

release except when specified circumstances exist, one of which is when release would

constitute an unwarranted invasion of an individual’s personal privacy. See 5 U.S.C. § 552a(b)

and 5 U.S.C. §§ 552(b)(6) and 552(b)(7)(C).

34.2.1.1. An unwarranted invasion of personal privacy exists when an individual’s privacy

interests outweigh the public’s interest in disclosure of the information. See Chang v.

Dep’t of the Navy, 314 F. Supp. 2d 35 (D.D.C. 2004). The public’s interest is defined by

the degree to which disclosure sheds light on the performance of an agency’s statutory

function. Dep’t of Justice v. Reporters Comm., 489 U.S. 749 (1989). This can include

244 DAFI51-201 24 JANUARY 2024

information about how the government holds its employees accountable. See Schmidt v.

Dep’t of the Air Force, 2007 U.S. Dist. LEXIS 69584 (C.D. Ill. 2007).

34.2.1.2. Whether disclosure of data regarding the accused and the alleged offenses

constitutes an unwarranted invasion of privacy depends upon the assessment of whether

the accused has a reasonable expectation of privacy as measured by various factors,

including, but not limited to, the accused’s rank, duties, alleged offense(s), existing

publicity about the allegation(s), and stage of the proceedings. Considering the fact that

anyone subject to the UCMJ can act as an accuser under the UCMJ, the accused normally

retains a reasonable expectation of privacy upon preferral of charges. When the convening

authority directs the charges toward a public forum, such as an Article 32, UCMJ, hearing

or referral to trial, the accused’s reasonable expectation of privacy begins to decline.

34.2.2. Extrajudicial Statements After Disposition. Employing the FOIA balancing test

described above, the information release authority may normally release the following

information after the convening authority has disposed of preferred charges by directing an

Article 32, UCMJ, preliminary hearing or has referred the charges to a court-martial:

34.2.2.1. The accused’s name, unit and assignment;

34.2.2.2. The substance or text of charges and specifications, provided there is a statement

included explaining that the charges are merely accusations and that the accused is

presumed innocent until and unless proven guilty. As necessary, redact all Victim and

Witness Protection Act and Privacy Act protected data from the charges and specifications

(such as the names of all victims, signature of the accuser, and SSN of the accused).

34.2.2.3. The scheduling or result of any stage in the judicial process;

34.2.2.4. Date and place of trial and other proceedings, or anticipated dates, if known;

34.2.2.5. Identity and qualifications of appointed counsel;

34.2.2.6. Identities of convening and reviewing authorities; and

34.2.2.7. A statement, without comment, that the accused has no prior criminal or

disciplinary record or that the accused denies the charges.

34.2.3. Generally, do not release the names of victims of sex offenses, the names of children,

or the identity of any victim when release would be contrary to the desire of the victim or

harmful to the victim. Otherwise, the identity of the victim may be disclosed where the release

of that information is not otherwise prohibited by law.

34.2.4. Exceptional cases may warrant earlier release of information but, prior to any earlier

release, the relevant authority should apply a public interest balancing test, assess the

reasonable expectation of privacy factors, and exercise due caution. Coordination with

AF/JAJM is required regarding the release of any such information.

34.2.5. Disclosing the Identities of Court Members and the Military Judge. Do not volunteer

the identities of the court members or the military judge in material prepared for publication.

This information may normally be released, if requested, after the court members or the

military judge have been identified in the court-martial proceeding, and the SJA to the

convening authority determines release would not prejudice the accused’s rights or violate the

members’ or the military judge’s privacy interests.

DAFI51-201 24 JANUARY 2024 245

34.2.6. A written or oral request for information from the media or public is not required prior

to release, nor does a media request indicate that information is automatically releasable.

34.2.7. Extrajudicial Statements That May Be Made Under Some Circumstances Regardless

of the Stage of the Proceedings. The following extrajudicial statements may be made when

deemed necessary regardless of the stage of the proceeding:

34.2.7.1. General information to educate or inform the public concerning military law and

the military justice system;

34.2.7.2. If the accused is a fugitive, information necessary to aid in apprehending the

accused or to warn the public of possible dangers;

34.2.7.3. Requests for assistance in obtaining evidence and information necessary to

obtain evidence;

34.2.7.4. Facts and circumstances of an accused’s apprehension, including the time and

place of apprehension, if requested or otherwise in the best interest of the DAF and after

applying FOIA exemption principles, as appropriate;

34.2.7.5. The identities of investigating and apprehending agencies, and the length of the

investigation, only if release of this information will not impede an ongoing or future

investigation, and the release is coordinated with the affected agencies;

34.2.7.6. Information contained in a public record, without further comment; and

34.2.7.7. Information that protects the military justice system from matters that have a

substantial likelihood of materially prejudicing the proceedings. Information in the form

of extrajudicial statements shall be subject to paragraph 34.2 and limited to that which is

necessary to correct misinformation or to mitigate the substantial undue prejudicial effect

of information or publicity already available to the public. This can include, but is not

limited to, information that would have been available to a spectator at an open Article 32,

UCMJ preliminary hearing or an open session of a court-martial.

34.2.7.7.1. Unless TJAG has withheld the authority to coordinate on command release

of this information for individual cases or types of cases, the MAJCOM or FLDCOM

SJA (or equivalent) coordinates on release of this information by the appropriate

command authority.

34.2.7.7.2. If TJAG has withheld the authority to coordinate on release of extrajudicial

statements, requests for TJAG coordination must be forwarded through the MAJCOM

or FLDCOM SJA to AF/JAJM by the most expeditious means appropriate to the

sensitivity of the information.

34.2.8. Impermissible Extrajudicial Statements. Extrajudicial statements relating to the

following matters ordinarily have a substantial likelihood of prejudicing a criminal proceeding

and should not be made:

34.2.8.1. The existence or contents of any confession, admission or statement by the

accused or the accused’s refusal or failure to make a statement;

34.2.8.2. Observations about the accused’s character and reputation;

34.2.8.3. Opinions regarding the accused’s guilt or innocence;

246 DAFI51-201 24 JANUARY 2024

34.2.8.4. Opinions regarding the merits of the case or the merits of the evidence;

34.2.8.5. References to the performance of any examinations, tests or investigative

procedures (e.g., fingerprints, polygraph examinations, and ballistics or laboratory tests),

the accused’s failure to submit to an examination or test, or the identity or nature of physical

evidence expected to be presented;

34.2.8.6. Statements concerning the identity, expected testimony, disciplinary or criminal

records, or credibility of prospective witnesses;

34.2.8.7. The possibility of a guilty plea or other disposition of the case other than

procedural information concerning such processes;

34.2.8.8. Information that trial counsel knows or has reason to know would be

inadmissible as evidence in a trial; and

34.2.8.9. Before sentencing, facts regarding the accused’s disciplinary or criminal record,

including NJPs, prior court-martial convictions, and other arrests, indictments, convictions,

or charges. Generally, do not release information or statements about NJPs or

administrative actions, or related documents even after sentencing unless admitted into

evidence. This rule does not prohibit, however, a statement that the accused has no prior

criminal or disciplinary record.

34.2.9. Responsibility for Extrajudicial Statements. The release of extrajudicial statements is

a command responsibility. The convening authority responsible for the criminal proceeding

makes the ultimate decision about release of extrajudicial statements relating to that criminal

proceeding, though coordination with MAJCOM or FLDCOM SJAs is encouraged.

MAJCOM or FLDCOM (or equivalent) commanders may withhold release authority from

subordinate commanders.

34.2.9.1. The installation SJA and the installation Public Affairs officer must work closely

together to provide informed advice to the commander. SJAs should consult with their

MAJCOM or FLDCOM SJAs when there is a question about the nature of a statement

proposed for release. If the extrajudicial statement is based on information contained in

agency records, the office of primary responsibility for the record should also coordinate

on the extrajudicial statement prior to release. In high interest cases, the SJA and the public

affairs officer should consult with their MAJCOM or FLDCOM representatives, and

AF/JAJM as necessary.

34.2.9.2. The SJA, trial counsel and defense counsel ensure investigators, law enforcement

personnel, employees and other persons assisting or associated with the respective counsel

do not make extrajudicial statements that counsel are prohibited from making.

34.3. Release of Information from Records of Trial or Related Records. Once a completed

ROT is forwarded to AF/JAJM, AF/JAJM is the disclosure authority for all records and associated

documents. This subsection is not intended to delay compliance with Article 140a, UCMJ. See

Section 34D. This subsection does not apply to documents or records that originate outside the

military justice system of records (e.g., OSI reports). The disclosure authority for such documents

and records is the office of primary responsibility (OPR) for those records under the provisions of

AFI 33-332, Air Force Privacy and Civil Liberties Program, and/or DoDM 5400.7_AFMAN 33-

302, Freedom of Information Act Program.

DAFI51-201 24 JANUARY 2024 247

34.3.1. Release of Record of Trial. R.C.M. 1112(b) defines a court-martial ROT. A ROT is

subject to release determination under FOIA and the Privacy Act. Information marked as

classified, controlled, or sealed by judicial order should not be released unless authorized by

proper authority (e.g., military judge). When releasing ROTs under this paragraph, redact

Privacy Act protected data and other sensitive information, to include the names of victims of

sex offenses, the names of children (under the age of 18), and the identity of victims who could

be harmed by disclosure of their identity. (T-0)

34.3.2. Attachments to the ROT. R.C.M. 1112(f) and DAFMAN 51-203 list the attachments

to a ROT (e.g., transcript). Attachments are not considered part of the ROT, so they would not

be included in a release seeking the “record of trial.” However, if the attachments are

specifically requested for release, then they are subject to a release determination under FOIA

and the Privacy Act, as described in the previous paragraph. A transcript of oral proceedings

is not a record until certification.

34.3.3. Release of Other Military Justice Documents or Records. All other documents or

records that are not made part of the ROT or attached to the ROT are also subject to release

determination under the Privacy Act and FOIA. However, due regard will be given to the

potentially heightened privacy interests of an accused where a case has not been fully

adjudicated as well as to whether any exemption, such as those included to protect ongoing

deliberative processes or investigative processes should be invoked. (T-0) Information

marked as classified, controlled, or sealed by judicial order should not be released absent an

authoritative determination of releasability. When releasing military justice documents or

records under this paragraph, redact all Privacy Act protected data, to include the names of

victims of sex offenses, the names of children, and the identity of victims who could be harmed

by disclosure of their identity. (T-0)

34.3.4. Cases Disposed of by Acquittal or Action Other Than Court-Martial. When the charges

against an accused were disposed of by an action other than court-martial, or when a court-

martial results in an acquittal, due consideration must be given to the likelihood that the

accused may have increased privacy interests in the protection of information contained in

military justice documents or records. See ACLU v. Dep’t of Justice, 750 F.3d 927 (D.C. Cir.

2014). Less serious misconduct, which is handled administratively rather than judicially, is

usually not considered of sufficient public interest to outweigh the privacy interest of the

individual.

34.3.5. Requests for Information from Law Enforcement Agencies. Disclose data about the

accused, the charges, and the evidence in accordance with Blanket Routine Uses and SORN

Routine Uses concerning military justice records. See

http://dpclo.defense.gov/privacy/Privacy/DODComponentArticleList/tabid/6799/Catego

ry/277/department-of-the-ari-force.aspx.

Section 34B—Direct Communications and Reports

34.4. AF/JAJM and AF/JAJI Requests for Information.

34.4.1. AF/JAJM and AF/JAJI routinely receive inquiries concerning military justice cases

and rely on information from installation-level legal offices to answer the inquiries. Complete,

accurate and timely responses to requests for information are critical. To that end, AF/JAJM

248 DAFI51-201 24 JANUARY 2024

and AF/JAJI may communicate directly with any legal office at any level of command. It is

incumbent on the contacted SJA or designee to coordinate with intermediate levels of

command. Contact or requests from AF/JAJM or AF/JAJI to a legal office should not be

construed as criticism of case handling or as a mandate for any particular action in a case.

34.4.2. Responses. Generally, the SJA or designee should respond to AF/JAJM or AF/JAJI

via e-mail directly to the requestor or to [email protected]il or

[email protected] as appropriate. All responses should include:

34.4.2.1. Detailed answers to any specific questions asked;

34.4.2.2. Case information, including details about the subject or accused and any relevant

incidents and allegations;

34.4.2.3. Case background and any unique or significant aspects of the case; and

34.4.2.4. As necessary and appropriate, mark and protect information as Privacy Act-

protected or CUI.

34.4.3. Responses Involving Courts-Martial. In addition to the information described in

paragraph 34.4.2, include the following information for courts-martial to the extent that such

information is not otherwise captured in DCMS-AMJAMS:

34.4.3.1. Dates and nature of pretrial restraint or confinement and associated proceedings;

34.4.3.2. Type of court-martial and summary of charges and specifications;

34.4.3.3. Dates of preferral, referral and trial;

34.4.3.4. Information about the Article 32, UCMJ, preliminary hearing, including who

directed it, identity of accused’s counsel and victim’s counsel, if any, names of government

and defense witnesses, summary of witness testimony and evidence presented, and the

PHO’s findings and recommendations;

34.4.3.5. Summary of witness testimony and evidence;

34.4.3.6. Pleas, findings, sentence, and court composition;

34.4.3.7. Any history of misconduct of the accused;

34.4.3.8. Date and action of the convening authority;

34.4.3.9. Date and outcome of Article 64, UCMJ, review, if a SCM;

34.4.3.10. Date ROT forwarded to AF/JAJM; and

34.4.3.11. Information concerning post-trial confinement, excess leave, and other post-

trial matters.

34.4.4. Responses Involving NJP. In addition to the information described in paragraph

34.4.2, include the following information for NJP: names, dates, and elections for the NJP

action; summary of charged misconduct; imposing commander’s findings; imposed NJP;

appeal outcome; and information on related matters, such as Unfavorable Information File

(UIF), Officer Selection Record (OSR), and discharge.

34.4.5. Responses Involving Civilian Jurisdiction. In addition to the information described in

paragraph 34.4.2, include the following information for cases involving civilian jurisdiction:

DAFI51-201 24 JANUARY 2024 249

34.4.5.1. Jurisdiction involved and status of waiver request;

34.4.5.2. Charges;

34.4.5.3. Detention or confinement;

34.4.5.4. Place and dates of civilian proceedings;

34.4.5.5. Name of defense counsel, if any;

34.4.5.6. Summary of the evidence;

34.4.5.7. Maximum authorized punishment;

34.4.5.8. Pleas, findings, and sentence;

34.4.5.9. Appeal;

34.4.5.10. Administrative or disciplinary action taken or contemplated by military

authorities.

34.5. Field Response to High-Level Inquiry. When a legal office receives and responds directly

to a high-level inquiry, such as a congressional inquiry, concerning a military justice case or matter,

retain a copy of the inquiry and response. DAFI 90-401, Air Force Relations with Congress,

Chapter 3, provides additional guidance.

Section 34C—Reporting Cases Involving Foreign National DAF Members

34.6. Foreign National DAF Member Defined. A DAF member who is a national of a foreign

country and who is not a citizen or national of the United States. For purposes of this section, any

DAF member who claims to be a foreign national shall be considered so.

34.7. When to Report. Notify AF/JAO when a foreign national DAF member is:

34.7.1. Apprehended under circumstances likely to result in confinement or trial by court-

martial, and states that they are a foreign national;

34.7.2. Ordered into arrest or confinement;

34.7.3. Held for trial with or without any form of restraint; or

34.7.4. Pending court-martial charges that have been referred for trial.

34.8. What to Report. Include in the notification the following:

34.8.1. The name, grade, SSN, organization and station of the member;

34.8.2. Any evidence, including information from the member’s military record, that is

inconsistent with a claim of foreign nationality;

34.8.3. A thorough description of the offenses, including dates, UCMJ articles allegedly

violated, the number of specifications under each offense, sufficient detail to provide clear

understanding of the facts and circumstances involved, and any other unusual or significant

features of the case;

34.8.4. The name of defense counsel, if any; and

250 DAFI51-201 24 JANUARY 2024

34.8.5. The exact and current location of the member (e.g., Joint Base Andrews confinement

facility).

34.9. Examination of Member’s Records. Whenever charges against a foreign national DAF

member are referred for trial, the SPCMCA’s SJA has the member’s military records examined to

ascertain the member’s nationality, even if the member has not entered a claim of foreign

nationality.

34.10. Notification Not Required. Notification is not required:

34.10.1. For issues resulting in NJP or administrative action, or

34.10.2. If the foreign national DAF member is apprehended or confined in anticipation that

only NJP or administrative action is contemplated.

34.10.3. When a foreign national is charged with a crime, arrested, confined or detained in

custody by the civil authorities of the United States, or any political subdivision, possession or

territory thereof, or by the authorities of any foreign government.

Section 34D—Article 140a, UCMJ, Guidance

34.11. General Provision. In accordance with Article 140a, UCMJ, the DAF must post certain

court-martial filings, pleadings and records on a public facing website. Such postings must be in

compliance with the Privacy Act. All redactions should be completed in black. This applies to all

redactions required by this Instruction, including but not limited to discovery, releases, and Article

140a, UCMJ, postings.

34.12. Applicability. This requirement applies only to GCMs and SPCMs in which charges were

preferred on or after 23 December 2020. It applies to such records at both the trial and appellate

level. Court records and filings in cases disposed of by full acquittal or action other than court-

martial are generally not made publicly accessible, unless released by AF/JAJM.

34.13. AF/JAJM Article 140a, UCMJ, Redaction Guide. Practitioners shall comply with the

requirements of the AF/JAJM Article 140a, UCMJ, Redaction Guide, which provides standards,

references, and training for individuals responsible for redacting and reviewing these documents

to ensure compliance with the Privacy Act. (T-0) The Article 140a, UCMJ, Redaction Guide is

located on the VMJD and AF/JAJM Teams page.

34.14. Timing and Process. No later than 45 calendar days after certification of the record of

trial in cases resulting in a guilty finding for at least one charge and specification, post court-

martial filings and records to the designated public-facing website in accordance with the

AF/JAJM Article 140a, UCMJ, Redaction Guide.

34.15. Compliance Review. MAJCOM/FLDCOM Legal offices will review their compliance

with Article 140a, UCMJ, every 6 months using the checklist provided on the VMJD and AF/JAJM

Teams page. Results of the compliance review will reported to AF/JAJM no later than 1 January

and 1 July of each calendar year.

34.16. The Judge Advocate General’s Corps DAF Court-Martial Docket. The DAF Court-

Martial Docket is the designated public facing website through which the public may view the

dates of upcoming courts-martial, the results of past courts-martial, and access redacted filings and

court records posted pursuant to Article 140a, UCMJ.

DAFI51-201 24 JANUARY 2024 251

34.16.1. In order to facilitate public access to the docket, all installation legal offices are

required to coordinate with their servicing Public Affairs office to ensure the hyperlink to the

DAF Court-Martial Docket is posted on each installation-specific, publicly accessible website.

The link to the docket should be displayed in the footer of the installation website along with

other required links such as IG, SARC, and FOIA.

34.16.2. The hyperlink to the Department of the Air Force Court-Martial Docket is:

https://legalassistance.law.af.mil/AMJAMS/PublicDocket/docket.html

CHARLES L. PLUMMER

Lieutenant General, USAF

The Judge Advocate General

252 DAFI51-201 24 JANUARY 2024

Attachment 1

GLOSSARY OF REFERENCES AND SUPPORTING INFORMATION

References

Uniform Code of Military Justice (10 U.S.C. § 801, et seq)

Manual for Courts-Martial, United States, 2019 Edition (2019 MCM)

Manual for Courts-Martial, United States, 2023 Edition

Privacy Act (5 U.S.C. § 552a)

10 U.S.C. § 9013, Secretary of the Air Force

10 U.S.C. § 1044, Legal assistance

10 U.S.C. § 1044e, Special Victims’ Counsel for victims of sex-related offenses

10 U.S.C. § 1562, Database on domestic violence incidents

10 U.S.C. § 1565, DNA identification information: collection from certain offenders; use

10 U.S.C. § 1567a, Mandatory notification of issuance of military protective order to civilian

law enforcement

10 U.S.C. § 2005, Advanced education assistance: active duty agreement; reimbursement

requirement

10 U.S.C. § 12301, Reserve components generally

10 U.S.C. § 12302, Ready Reserve

10 U.S.C. § 12304, Selected Reserve and certain Individual Ready Reserve members; order to

active duty other than during war or national emergency

10 U.S.C. § 12310, Reserves: for organizing administering, etc., reserve components

10 U.S.C. Chapter 61, Retirement or Separation for Physical Disability

12 U.S.C. § 3401, et seq, Right to Financial Privacy Act

12 U.S.C. § 3409, Delayed Notice

18 U.S.C. § 921, Definitions

18 U.S.C. § 922, Unlawful acts

18 U.S.C. § 2258A, Reporting requirements of providers

18 U.S.C. § 2510, Definitions

18 U.S.C. § 2523, Executive agreements on access to data by foreign governments

18 U.S.C. § 2701, et seq, Unlawful access to stored communications

18 U.S.C. § 2703, Required disclosure of customer communications of records

18 U.S.C. § 2705, Delayed notice

18 U.S.C. § 2711, Definitions for chapter

DAFI51-201 24 JANUARY 2024 253

18 U.S.C. § 2713, Required preservation and disclosure of communications and records

18 U.S.C. § 3056, Powers, authorities, and duties of United States Secret Service

18 U.S.C. § 3261, et seq, Criminal offenses committed by certain members of the Armed Forces

and by persons employed by or accompanying the Armed Forces outside the United States

(Military Extraterritorial Jurisdiction Act of 2000)

18 U.S.C. § 3509, Child victims’ and child witnesses’ rights

18 U.S.C. § 6004, Certain administrative proceedings

21 U.S.C. § 802, Definitions

28 U.S.C. § 534, Acquisition, preservation, and exchange of identification records and

information; appointment of officials

32 U.S.C. § 325(a), Relief from National Guard duty when ordered to active duty

34 U.S.C. § 20911, et seq, Relevant definitions, including Amie Zyla expansion of sex offender

definition and expanded inclusion of child predators

34 U.S.C. § 40702, Collection and use of DNA identification information from certain Federal

offenders

37 U.S.C. § 303a, Special Pay: general provisions

37 U.S.C. § 401, Definitions

38 U.S.C. § 5303A, Minimum active-duty service requirement

42 U.S.C. § 290dd-2, Confidentiality of records

Pub. L. 116-92, Section 548, Legal counsel for victims of alleged domestic violence offenses

22 C.F.R. § 92.49 - § 92.71, Depositions and Letters Rogatory

27 C.F.R. § 478.11, Meaning of terms

28 C.F.R. §§ 20.30, et seq., Federal Systems and Exchange of Criminal History Record

Information

28 C.F.R. § 28.12, Collection of DNA samples

42 C.F.R. § 2.1, Statutory authority for confidentiality of substance use disorder patient records

EO 14103, 2023 Amendments to the Manual for Courts-Martial, United States, 28 July 2023

Joint Travel Regulations, 1 September 2023

DoDD 6495.01, Sexual Assault Prevention and Response (SAPR) Program, 23 January 2012

DoDI 1215.06, Uniform Reserve, Training, and Retirement Categories for the Reserve

Components, 11 March 2014, Incorporating Change 2, 12 July 2022

DoDI 1332.18, Disability Evaluation System, 10 November 2022

DoDI 1325.07, Administration of Military Correctional Facilities and Clemency and Parole

Authority, 11 March 2013

254 DAFI51-201 24 JANUARY 2024

DoDI 5505.09, Interception of Wire, Electronic and Oral Communications for Law Enforcement,

22 August 2023

DoDI 5505.11, Fingerprint Card and Final Disposition Report Submission Requirements, 31

October 2019

DoDI 5505.14, Deoxyribonucleic Acid (DNA) Collection Requirement for Criminal

Investigations, Law Enforcement, Corrections, and Commanders, 5 April 2022

DoDI 5505.18, Investigation of Adult Sexual Assault in the Department of Defense, 22 March

2017

DoDI 5505.19, Establishment of Special Victim Investigation and Prosecution (SVIP) Capability

within the Military Criminal Investigative Organizations (MCIOs)

DoDI 5525.07, Implementation of the Memorandum of Understanding Between the Departments

of Justice and Defense Relating to the Investigation and Prosecution of Certain Crimes, 5 March

2020

DoDI 5525.20, Registered Sex Offender (RSO) Management in DoD, 14 November 2016,

Incorporating Change 2, 30 October 2020

DoDI 6400.06, DoD Coordinated Community Response to Domestic Abuse Involving DoD

Military and Certain Affiliated Personnel, 15 December 2021, Incorporating Change 1, 10 May

2022

DoDI 6400.07, Standards for Victim Assistance Services in the Military Community, 25

November 2023, Incorporating Change 2, 6 July 2018

DoDI 6495.02, Volume 1, Sexual Assault Prevention and Response (SAPR): Program

Procedures, 28 March 2013, Incorporating Change 6, November 10, 2021

DoDI 6495.02, Volume 2, Sexual Assault Prevention and Response (SAPR): Education and

Training, 9 April 2021

DoDI 8560.01, Communications Security (COMSEC) Monitoring, 22 August 2018

DoD 4525.6-M, Department of Defense Postal Manual, 31 August 2018

DoD 5400.11-R, Department of Defense Privacy Program, 14 May 2007

DoDM 6025.18, Implementation of the Health Insurance Portability and Accountability Act

(HIPPA) Privacy Rule in DOD Health Care Programs, 13 March 2019

DoDM 5200.01V1_AFMAN16-1404V1, Information Security Program: Overview,

Classification, and Declassification, 11 January 2021.

DoDM 5200.01V2_AFMAN16-1404V2, DoD Information Security Program: Marking of

Information, 7 January 2021.

DoD Policy Memorandum, Placing Military Protective Orders in the National Crime

Information Center Protective Order File, 26 June 2014

DoDM 5400.7_AFMAN 33-302, Freedom of Information Act Program, 27 April 2018

AFI 25-201, Intra-Service, Intra-Agency, and Inter-Agency Support Agreements Procedures, 18

October 2013

DAFI51-201 24 JANUARY 2024 255

DAFPD 51-2, Military Justice, Individual Military Counsel, and Other Criminal Proceedings,

16 January 2024

AFPD 51-5, Administrative Law, Gifts, and Command Relationships, 31 August 2018

DAFI 36-2110, Total Force Assignments, 16 November 2022

DAFI 36-2907, Adverse Administrative Actions, 14 October 2022

DAFI 36-3003_DAFGM2023-04, Military Leave Program, 31 August 2023

DAFI 36-3203, Service Retirements, 29 January 2021

DAFI 36-3012, Military Entitlements, 6 April 2023

DAFI 36-3211, Military Separations, 24 June 2022

DAFI 40-301, Family Advocacy Program, 13 November 2020

DAFI 51-101, The Air Force Judge Advocate General’s (AFJAG) Corps Operations, Accessions,

and Professional Development, 20 June 2023

DAFI 51-202_DAFGM2023-01, Nonjudicial Punishment, 21 August 2023

DAFI 51-205, Delivery of Personnel to United States Civilian Authorities for Trial and Criminal

Jurisdiction over Civilians and Dependents Overseas, 19 January 2023

DAFI 51-207_DAFGM2023-01 Victim and Witness Rights and Procedures, 1 February 2023

AFI 10-701, Operations Security (OPSEC), 24 July 2019

AFI 25-201, Intra-service, Intra-agency, and Inter-agency Support Agreements Procedures, 18

October 2013

AFI 33-322, Records Management and Information Governance Program, 23 March 2020

AFI 33-332, Air Force Privacy and Civil Liberties Program, 10 March 2020

AFI 36-2606, Reenlistment and Extension of Enlistment in the United States Air Force, 20

September 2019

AFI 36-2909, Air Force Professional Relationships and Conduct, 14 November 2019

AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation, 15 July 2019

AFI 38-101_AFGM2023-01, Manpower and Organization, 19 July 2023

AFI 41-200, Health Insurance Portability and Accountability Act (HIPPA), 25 July 2017

AFI 44-172, Mental Health, 13 November 2015

AFI 51-402, International Law, 6 August 2018

AFI 90-401, Air Force Relations with Congress, 15 September 2020

AFI 90-1001, Total Force Associations (TFAs), 22 June 2020

AFI 90-6001_DAFGM2023-01, Sexual Assault Prevention and Response (SAPR) Program, 29

September 2023

AFMAN 10-206, Operational Reporting, 18 June 2018, Incorporating Change 1, 1 September

2020

256 DAFI51-201 24 JANUARY 2024

DAFMAN 31-115, Volume 1, Air Force Corrections System, 11 April 2023

DAFMAN 32-1084_DAFGM2023-01, Standard Facility Requirements, 28 November 2023

DAFMAN 36-2102, Base-Level Relocation Procedures, 21 October 2022

AFMAN 36-2136, Reserve Personnel Participation, 6 September 2019

DAFMAN 44-197, Military Drug Demand Reduction Program, 5 September 2023

DAFMAN 51-203, Records of Trial, 21 April 2021

AFMAN 65-605V1, Budget Guidance & Technical Procedures, 31 March 2021

AFMAN 65-116V1_DAFGM2023-01, Defense Joint Military Pay System Active Component

(DJMS-AC) FSO Procedures, 24 February 2023

AFMAN 71-102, Air Force Criminal Indexing, 21 July 2020

DAFMAN 90-161, Publishing Processes and Procedures, 18 October 2023

AFI 10-402_ANGSUP, Mobilization Planning, 13 February 2017

DA PAM 27-9, Military Judge’s Benchbook

Systems of Records Notice DoD 0006, Military Justice and Civilian Criminal Case Records, 25

May 2021

Systems of Records Notice F051 AFJA I, Military Justice and Magistrate Court Records, 22 July

2010

The Military Commander and the Law

Prescribed Forms

AF Form 304, Request for Appellate Defense Counsel

AF Form 1176, Authority to Search and Seize

Adopted Forms

DD Form 453, Subpoena

DD Form 456, Interrogatories and Depositions

DD Form 457, Preliminary Hearing Officer’s Report

DD Form 458, Charge Sheet

DD Form 493, Extract of Military Records of Previous Convictions

DD Form 1722, Request for Trial Before Military Judge Alone

DD Form 2329, Record of Trial by Summary Court-Martial

DD Form 2330, Waiver/Withdrawal of Appellate Rights in General and Special Courts- Martial

Subject to Review by a Court of Military Review

DD Form 2707, Confinement Order

DAFI51-201 24 JANUARY 2024 257

DD Form 2791, Notice of Release/Acknowledgement of Convicted Sex Offender Registration

Requirements

DD Form 2873, Military Protective Order

DD Form 2910, Victim Reporting Preference Statement

DD Form 3056, Search and Seizure Warrant Pursuant to 18 U.S.C. § 2703

DD Form 3057, Application for Search and Seizure Warrant Pursuant to 18 U.S.C. § 2703

DD Form 3114, Department of Defense Uniform Command Disposition Report

AF Form 177, Notification of Qualification for Prohibition of Firearms, Ammunition, and

Explosives

DAF Form 847, Recommendation for Change of Publication

Abbreviations and Acronyms

ADC—Area Defense Counsel

ADT—Active Duty for Training

ADOT—Active Duty Other than Training

AFCCA—Air Force Court of Criminal Appeals

AFI—Air Force Instruction

AFMAN—Air Force Manual

AFJAGS—Air Force Judge Advocate General’s School

AFPC—Air Force Personnel Center

AFPD—Air Force Policy Directive

AFSFC—Air Force Security Forces Center

AFRC—Air Force Reserve Command

AMJAMS—Automated Military Justice Analysis Management System

ANG—Air National Guard

ARC—Air Reserve Component

CAAF—United States Court of Appeals for the Armed Forces

CADAM—Convening Authority’s Decision on Action Memorandum

CDDC—Chief District Defense Counsel

CDVC—Chief District Victims’ Counsel

CDI—Commander Directed Investigation

CFR—Certification of Final Review

C.F.R.—Code of Federal Regulations

CHRI—Criminal History Record Information

258 DAFI51-201 24 JANUARY 2024

CODIS—Combined DNA Index System

CSA—Competent Search Authority

CSLI—Cell Site Location Information

CUI—Controlled Unclassified Information

DAF—Department of the Air Force

DAFI—Department of the Air Force Instruction

DAFMAN—Department of the Air Force Manual

DAFPD—Department of the Air Force Policy Directive

DCMS—Disciplinary Case Management System

DFAS—Defense Finance & Accounting Services

DIBRS—Defense Incident-Based Reporting System

DJAG—Deputy Judge Advocate General

DNA—Deoxyribonucleic Acid

DTC—District Trial Counsel

DoD—Department of Defense

DoDD—Department of Defense Directive

DoDI—Department of Defense Instruction

DP—Defense Paralegal

DPM—Defense Paralegal Manager

DSAID—Defense Sexual Assault Incident Database

DSJA—Deputy Staff Judge Advocate

DTC—District Trial Counsel

EoJ—Entry of Judgment

ETS—Expiration of Term of Service

FAP—Family Advocacy Program

FLDCOM—Field Command

FOIA—Freedom of Information Act

FLITE—Federal Legal Information Through Electronics

FY—Fiscal Year

GCM—General Court-Martial

GCMCA—General Court-Martial Convening Authority

GPS—Global Positioning Satellite

IDA—Initial Disposition Authority

DAFI51-201 24 JANUARY 2024 259

IG—Inspector General

IPST—Investigation Prosecution Support Team

IMDC—Individual Military Defense Counsel

LIO—Lesser Included Offense

LOC—Letter of Counseling

LOR—Letter of Reprimand

LRO—Local Responsible Official

LSTC—Lead Special Trial Counsel

MAJCOM—Major Command

MCIO—Military Criminal Investigative Organization

MCM—Manual for Courts-Martial

MEJA—Military Extraterritorial Jurisdiction Act

MEO—Military Equal Opportunity

MPO—Military Protective Order

M.R.E.—Military Rule of Evidence

NAF—Numbered Air Force

NCIC—National Crime Information Center

NCO—Non-commissioned Officer

NDAA—National Defense Authorization Act

NICS—National Instant Background Check System

NJP—Nonjudicial Punishment

OPREP—Operational Event/Incident Report

OSI—Office of Special Investigations

OSR—Officer Selection Record

OSTC—Office of Special Trial Counsel

PCRO—Pretrial Confinement Review Officer

PHO—Preliminary Hearing Officer

PII—Personally Identifiable Information

R.C.M.—Rules for Courts-Martial

RILO—Resignation in Lieu of Trial by Court-Martial

ROI—Report of Investigation

ROT—Record of Trial

260 DAFI51-201 24 JANUARY 2024

ROTC—Reserve Officers’ Training Corps

SAPR—Sexual Assault Prevention and Response

SARC—Sexual Assault Response Coordinator

SCM—Summary Court-Martial

SIR—Special Interest Report

SJA—Staff Judge Advocate

SOD—Status of Discipline

SORN—System of Records Notice

SPCM—Special Court-Martial

SPCMCA—Special Court-Martial Convening Authority

SSN—Social Security Number

STC—Special Trial Counsel

STR—Statement of Trial Results

TAG—Adjutant General

TJAG—The Judge Advocate General

UCMJ—Uniform Code of Military Justice

UIF—Unfavorable Information File

USAFA—United States Air Force Academy

USACIL—United States Army Criminal Investigations Laboratory

U.S.C.—United States Code

VA—Victim Advocate

VC—Victims’ Counsel

VMJD—Virtual Military Justice Deskbook

VWAP—Victim and Witness Assistance Program

WASP—Web-Based Administrative Separation Program

Office Symbols

201 MSS/CC—Commander, 201st Mission Support Squadron

22 AF/CC—Commander, 22nd Air Force

AF/A1M—Directorate of Manpower, Organization & Resources

AF/JAC—Civil Law and Litigation Directorate

AF/JAH—United States Air Force Court of Criminal Appeals

AF/JAJ—Military Justice and Discipline Directorate Judiciary Directorate

DAFI51-201 24 JANUARY 2024 261

AF/JAJA—Appellate Defense Division

AF/JAJD—Trial Defense Division

AF/JAJG—Government Trial and Appellate Operations Division

AF/JAJI—Investigations, Inquiries & Relief Division

AF/JAJM—Military Justice Division

AF/JAJO—Office of Disability Counsel

AF/JAJS—Victims’ Counsel Division

AF/JAO—Operations and International Law Domain

AF/JAS—Legal Information Services

AF/JAT—Air Force Trial Judiciary

AF/JA—The Office of the Judge Advocate General

AFDW/CC—Commander, Air Force District of Washington

AFPC/DPMSSR—Air Force Personnel Center Military Transition Operations Branch

(Retirements and Separations)

AFRC/CC—Commander, Air Force Reserve Command

AFRC/JA—Air Force Reserve Command Judge Advocate

ARPC/JA—Air Reserve Personnel Center Judge Advocate

FSS/CC—Force Support Squadron Commander

SAF/IGQ—Secretary of the Air Force, Complaints Resolution Directorate

SAF/IGS—Secretary of the Air Force, Senior Officials Inquiries

SpOC/CC—Commander, Space Operations Command

Terms

Adjudged Forfeitures—Forfeitures of pay and/or allowances announced as part of a sentence in

a court-martial. See Article 57, UCMJ.

Collateral Misconduct—Misconduct that is punishable under the UCMJ and is directly related to

the incident that was the basis of the sexual assault allegation. Additionally, the collateral

misconduct must have been discovered as a direct result of the investigation into the sexual assault.

Examples include, but are not limited to: underage drinking, fraternization, adultery, illegal drug

use or possession, etc.

Court-Martial Convening Authority—A commander or equivalent person that exercises court-

martial convening authority powers as set out in the UCMJ and MCM. In this regulation, the term

Court-Martial Convening Authority may be used to refer to an individual authorized to convene

courts-martial or to the authority to convene courts-martial.

Crime of Domestic Violence—An offense that has as its factual basis one of the following: (1)

the use or attempted use of physical force, or (2) the threatened use of a deadly weapon. The

262 DAFI51-201 24 JANUARY 2024

alleged offender must be: (1) a current or former spouse; (2) parent or guardian of the victim; (3)

a person with whom the victim shares a child in common; (4) a person who is cohabitating with

or has cohabitated with the victim as a spouse, parent, or guardian; (5) a person similarly situated

to a spouse, parent or guardian of the victim,; or (6) a person who has a current or recent former

dating relationship with the victim. 18 U.S.C. § 921(a)(33).

Child Victim—The definition of child victim varies based on the offense. Practitioners must

consult the MCM to determine which definition of child victim applies.

Contingent Confinement—Confinement authorized by a court-martial in the form of a fine-

enforcement provision.

Dating Relationship—A relationship between individuals who have or have recently had a

continuing serious relationship of a romantic or intimate nature, based on the length of the

relationship, the nature of the relationship, and the frequency and type of interaction between the

individuals involved in the relationship. 18 U.S.C. § 921(a)(37).

Defense Sexual Assault Incident Database—The DSAID is a centralized, case-level DoD

database for the uniform collection of data regarding sexual assaults involving persons covered by

DoDD 6495.01 and DoDI 6495.02.

Deferment of Forfeitures—Delaying the effective date of the beginning of forfeitures of pay

and/or allowances. See Article 57, UCMJ.

Department of the Air Force—Service component of the Department of Defense which consists

of the United States Air Force and United States Space Force, overseen by the SecAF.

Dependent—Generally, the spouse, unmarried child, or parent of the member, or person in the

member’s legal custody, if those persons meet certain criteria. For further information, see 37

U.S.C. § 401.

DuBay Hearing—A post-trial hearing ordered by an appellate court or convening authority for

the limited purpose of obtaining further evidence on a matter under consideration by the court.

United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967).

Entry of Judgment—Document which reflects the results of the court-martial after all post-trial

actions, rulings or orders. See R.C.M. 1111 and Article 60c, UCMJ.

Expurgated—A document that has been redacted of certain information.

Extrajudicial statement—Extrajudicial statements are oral or written statements made outside of

a criminal proceeding that a reasonable person would expect to be disseminated by means of public

communication.

General Court-Martial Convening Authority—Convening authority authorized to convene

general courts-martial. See Article 22, UCMJ.

Local Responsible Official—The individual responsible for identifying victims and witnesses of

crimes and providing the services required by VWAP. Each installation commander or SPCMCA,

as appropriate, is the LRO.

Mandatory Forfeitures—Forfeitures that apply under operation of law. See Article 58b, UCMJ.

DAFI51-201 24 JANUARY 2024 263

Mandatory Minimum Sentence—A portion of a sentence (e.g., confinement, punitive discharge)

which is prescribed by law as the lowest possible sentence that can be adjudged if an individual is

found guilty of an offense. See FY 2014 NDAA § 1702(b)(4)(B).

Metrics—Standards of measurement by which certain requirements can be assessed.

Milestone—Time-based goals to assist in expediting the administration of justice.

Military Protective Order—Formal protective orders issued by commanders on DD Form 2873.

Such orders are used to limit communications; prohibit a subject from being within a certain

physical distance of a protected person or protected person’s household, residence and workplace;

mandate counseling; require disposal of firearms located on the installation; and take other such

measures necessary to ensure adequate protection of the protected person.

No-Contact Order—Order given by a military member to have no-contact with another person

for a period of time.

Offense—Crime punishable under the UCMJ that is committed by a person subject to the UCMJ.

Original Court-Martial Convening Authority—Court-martial convening authority that

convened the court-martial at issue.

Probable Cause—A determination that there are reasonable grounds to believe that an offense

has been committed and that the person to be identified as the offender committed it.

Remand—Return a case to a lower court for reconsideration.

Special Court-Martial Convening Authority—Convening authority authorized to convene

special courts-martial. See Article 23, UCMJ.

Special Interest Report—AMJAMS reports submitted by base legal offices in certain cases that

generate interest within Headquarters Air Force.

Special Victim Investigation and Prosecution Capability—Team of specially trained

prosecutors, paralegals, and victim witness assistance personnel who work with specially trained

investigators, often from investigative agencies such as OSI, to provide advice, guidance, and

support during the investigative and military justice process.

Statement of Trial Results—Document which is prepared after the announcement of sentence or

acquittal and is inserted into the Record of Trial. See R.C.M. 1101 for further information.

Straddling Cases—Refers to a single court-martial that alleges offenses occurring both before 1

January 2019 and on or after 1 January 2019.

Unexpurgated—A document which has not been redacted.

Verbatim Transcript—A transcript of a proceeding which includes word-for-word reduction of

audio to writing. See DAFMAN 51-203 for additional information.

Victim—The definition of victim varies throughout the military justice process. The definition

governs what rights are afforded the victims, as defined. Practitioners must consult the MCM to

determine which definition of victim applies at each stage to determine which definition applies.