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(a)
No charge or specification may be referred to a general court-martial
for trial until a through and impartial investigation of all the matters
set forth therein has been made. This investigation shall include
inquiry as to the truth of the matter set forth in the charges,
consideration of the form of charges, and recommendation as to the
disposition which should be made of the case in the interest of justice
and discipline.
(b)
The accused shall be advised of the charges against him and of his right
to be represented at that investigation as provided in section 838 of
this title article 38 and in regulations prescribed under that section.
At that investigation full opportunity shall be given to the accused to
cross-examine witnesses against him if they are available and to present
anything he may desire in his own behalf, either in defense or
mitigation, and the investigation officer shall examine available
witnesses requested by the accused. If the charges are forwarded after
the investigation, they shall be accompanied by a statement of the
substance of the testimony taken on both sides and a copy thereof shall
be given to the accused.
(c) If an investigation of the subject matter of an offense has been
conducted before the accused is charged with the offense, and if the
accused was present at the investigation and afforded the opportunities
for representation, cross-examination, and presentation prescribed in
subsection (b), no further investigation of that charge is necessary
under this article unless it is demanded by the accused after he is
informed of the charge. A demand for further investigation entitles the
accused to recall witnesses for further cross-examination and to offer
any new evidence in his own behalf.
(d)
The requirements of this article are binding on all persons
administering this chapter but failure to follow them does not
constitute judicial error. |
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