United States v. Kruse, __ M.J. ___ (N-M. Ct. Crim. App. 2026

In Kruse, (a Government appeal) NMCCA finds that a convening authority may refer non-covered offenses to court-martial after the Office of Special Trial Counsel (OSTC) has determined that the same underlying misconduct constituted a covered offense and later deferred disposition.

The OSTC initially exercised authority over alleged domestic violence under Article 128b, UCMJ, a covered offense. After concluding the evidence did not meet its charging standard, the OSTC formally deferred all covered offenses and related misconduct back to the command. The convening authority then referred charges to a general court-martial for assault and aggravated assault under Article 128, UCMJ—offenses that arise from the same conduct but are not defined as covered offenses under Article 1(17).

The military judge dismissed the Article 128 specifications, reasoning that once the OSTC classified the conduct as a covered offense, neither the convening authority nor any other government actor could later charge that conduct under a different article.

The court held that the statutory and regulatory scheme draws a clear distinction between covered offenses and underlying misconduct. Once the OSTC defers a case, the convening authority regains full disposition authority except for the power to refer a covered offense to a special or general court-martial. Nothing in Article 24a, Article 1(17), or the Rules for Courts-Martial prohibits a convening authority from referring non-covered offenses, even if they rely on the same factual predicate as a deferred covered offense.

The NMCCA emphasized that the law restricts charging authority by offense classification, not by conduct. The OSTC’s determination that a reported offense qualifies as a covered offense does not permanently transform the underlying conduct into something that only the OSTC may prosecute. Because Article 128 offenses are not covered offenses, the convening authority acted within statutory authority when referring them after deferral.

NMCCA concluded that the military judge erred as a matter of law and reinstated the dismissed assault specifications.

Any questions?

1. Why did OSTC defer? Because “the available evidence does not meet the [OSTC’s] charging standard . . . .”

2. What is the charging standard applied by both OSTC and the CA? To start, Para. 2.1, Appendix 2.1, (non-binding) Disposition Guidance, MCM (2024 ed.) has several relevant considerations that might apply.

2.1 Interests of Justice and Good Order and Discipline.

a. Whether admissible evidence will probably be sufficient to obtain and sustain a finding of guilty in a trial by court-martial when viewed objectively by an unbiased factfinder;

c. The nature, seriousness, and circumstances of the alleged offense and the accused’s culpability in connection with the alleged offense[.]

2.3. Referral.
a. Probable cause must exist for each charge and specification referred to a court-martial (see R.C.M. 601(d)(1)). In addition to the consideration required by when making a referral decision, the referral authority should also consider the matters described in paragraph 2.1 of this appendix.
b. A special trial counsel should not refer, and a staff judge advocate or other judge advocate involved in the disposition process should not recommend that a convening authority refer, a charge to a court-martial unless the special trial counsel, staff judge advocate, or other judge advocate believes that the Service member’s conduct constitutes an offense under the UCMJ and that the admissible evidence will probably be sufficient to obtain and sustain a finding of guilty when viewed objectively by an unbiased factfinder.

c. A convening authority should not refer a charge to a court-martial unless the admissible evidence will probably be sufficient to obtain and sustain a finding of guilty when viewed objectively by an unbiased factfinder. In assessing whether there is sufficient admissible evidence, a convening authority should consider the advice of a staff judge advocate or other judge advocate authorized to provide pretrial advice.

Let's see what JAGINST 5800.7G, Change 2, 1 December 2023 (The JAGMAN), has to say. Not much. 0122(a)(4) simply notes the Exclusive STC Authority. There is no JAG Notice on the subject. There do not seem to be publicly available operating instructions or guidance for the Navy OSTC that would help the public understand how the NOSTC interprets and applies Appendix 2.1.

So, OSTC doesn't think it can get a conviction for DV, where there is proof BRD of the qualifying relationship under 128b? So is the issue whether there was an assault at all? There was a compelling affirmative defense? The victim won't cooperate? If OSTC and a GCMCA are operating under the same rules and principles, what other evidence does the GCMCA have that the OSTC doesn't have that leads to a belief that there is a reasonable case for proof BRD for A&B?

While NMCCA's legal reasoning makes sense, what about the inconsistency between OSTC and a GCMCA?