According to Article 32(a), UCMJ, “No charge or specification may be referred to a general court martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made.” There are two exceptions.
First, under R.C.M. 405(b), an Article 32 investigation is not necessary if there has already been an investigation into the subject matter of the charges; note, this adequate substitute must afford the accused the same rights as those afforded an Article 32 hearing (including the rights to counsel and to present evidence).
Second, under R.C.M. 405(k), a case may be referred to a general court-martial without a pretrial investigation if the accused waives that right.
United States v. Seldes, ACM 37265, 2009 WL 4110770 (A.F. Ct. Crim. App. Oct. 27, 2009) (per curiam) (unpublished), review denied, 69 M.J. 159 (C.A.A.F. 2010) deals with Article 32 defects. The accused was convicted, inter alia, of raping a civilian Red Cross employee who lived was unacceptable. I just don’t have any respect for a man who would put a little girl through that.”
The accused and the victim had a social relationship that had included consensual kissing and oral sex. The victim claimed the accused knew she had taken Ambien and had intercourse with her while she was unconscious.
On appeal, the defense argued that the Article 32 was deficient, asserting that the investigating officer (IO) had improper ex parte communications with witnesses and that the defense counsel was unable to cross-examine the victim. The AFCCA rejected this arguments.