After briefly comparing Article 32s with civilian charging by information or grand jury indictment, Puckett argues that the military system is easy to "manipulate and abuse."
The Art 32 investigation protection against proceeding to trial on baseless charges could be improved by a change to the Manual for Court-Martial (a Presidential Executive Order). The change should require that investigating officer be JAGs except where impracticable and by making the investigating officer’s recommendations binding on the commander in cases where that officer recommends dismissing charges.
He's batting .500. A requirement that where practicable the IO be a judge advocate would improve the system for everyone. But I would not support making the IO's recommendation to dismiss binding on the CA. Why would we trust the judgment of this judge advocate more than that of a general court-martial convening authority acting with the advice of a staff judge advocate? Puckett is concerned about cowardly or politically correct CGs who refer charges for appearance sake. We previously examined here a similar recommendation advanced by Bryan Hayes' article, Strengthening Article 32 to Prevent Politically Motivated Prosecution: Moving Military Justice Back to the Cutting Edge, 19 Regent U.L. Rev. 173 (2006/2007). Hayes would require a military judge to find that an offense is supported by probable cause before it is referred to a general court-martial.
Assuming that there is actually a problem in the current referral process (a question about which I have insufficient information to have an informed opinion), perhaps a better solution would be to amend R.C.M. 907 to authorize the accused post-referral to challenge whether a specification is supported by probable cause. The trial counsel would then have to present sufficient evidence for a prima facie case to the military judge. If the military judge found that the government did not meet its burden, the military judge would dismiss the affected specification or charge without prejudice.