West Virginia Code 15-1E-34 – Advice of judge advocate and reference for trial
(a) Before directing the trial of any charge by general court-martial, the convening authority shall refer it to a judge advocate for consideration and advice. The convening authority may not refer a specification under a charge to a general court-martial for trial unless the convening authority has been advised in writing by a judge advocate that:
Terms Used In West Virginia Code 15-1E-34
- convening authority: includes , in addition to the person who convened the court, a commissioned officer commanding for the time being or a successor in command to the convening authority. See West Virginia Code 15-1E-1
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- in writing: includes any representation of words, letters, or figures, whether by printing, engraving, writing, or otherwise. See West Virginia Code 2-2-10
- judge advocate: means a commissioned officer of the organized state military forces who is an attorney licensed to practice in this state or is a member in good standing of the bar of the highest court of another state, who is admitted pro hac vice to practice in this state, and is any of the following: Certified or designated as a judge advocate in the Judge Advocate General'. See West Virginia Code 15-1E-1
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Offense: includes every act or omission for which a fine, forfeiture, or punishment is imposed by law. See West Virginia Code 2-2-10
- officer: means a commissioned or warrant officer. See West Virginia Code 15-1E-1
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
(1) The specification alleges an offense under this article;
(2) The specification is warranted by the evidence indicated in the report of investigation under section thirty-two of this article, if there is such a report; and
(3) A court-martial would have jurisdiction over the accused and the offense.
(b) The advice of the judge advocate under subsection (a) with respect to a specification under a charge shall include a written and signed statement by the judge advocate:
(1) Expressing conclusions with respect to each matter set forth in subsection (a); and
(2) Recommending action that the convening authority take regarding the specification.
If the specification is referred for trial, the recommendation of the judge advocate shall accompany the specification.
(c) If the charges or specifications are not correct formally or do not conform to the substance of the evidence contained in the report of the investigating officer, formal corrections, and such changes in the charges and specifications as are needed to make them conform to the evidence, may be made.