What United States v. Kruse Means for Navy and Marine Corps OSTC Cases

General information, not legal advice. This article discusses a developing issue in Navy and Marine Corps military justice. It cannot determine how Article 24a, a particular OSTC notice, a charge sheet, or a deferral applies to an individual case. Service members should obtain confidential advice from a Navy Defense Service Office (DSO) promptly.

The Office of Special Trial Counsel (OSTC) changed who makes charging decisions in many serious Navy and Marine Corps cases. But one important question remains unsettled: after Navy OSTC reviews a covered offense and defers it to the command, may a convening authority refer a non-covered UCMJ offense to court-martial when it is based on the same incident?

The Navy-Marine Corps Court of Criminal Appeals (NMCCA) answered yes in United States v. Kruse. The Court of Appeals for the Armed Forces (CAAF) has granted review of that decision, so the rule may change. For Sailors and Marines, Kruse is not an abstract OSTC debate: it concerns the authority to bring Navy and Marine Corps cases to trial after OSTC declines to charge a covered offense and defers the matter.

The short answer

In Kruse, Navy OSTC initially exercised authority over alleged Article 128b domestic violence, a covered offense. OSTC later deferred the covered and related allegations to the command. The Commanding General, 3rd Marine Aircraft Wing, then referred Article 128 assault and aggravated-assault specifications based on the same incident. The NMCCA held that Article 24a allowed that referral because Article 128 is not among the UCMJ’s defined covered offenses—even though the factual conduct overlapped with the deferred domestic-violence allegation. Read the published NMCCA opinion.

CAAF granted review on whether the NMCCA’s interpretation of the Special Trial Counsel’s exclusive Article 24a authority conflicts with the statute’s plain meaning, Congress’s intent, and produces an absurd result. Read CAAF’s grant order. As of the editorial review date, CAAF’s new-grants and summary-dispositions page continues to list the case; update this article when CAAF issues its decision.

Why this is specifically a Navy and Marine Corps issue

Kruse arose in the Navy-Marine Corps system. The accused was a Marine, the case was appealed to the NMCCA, and the referral at issue came from the Commanding General, 3rd Marine Aircraft Wing. The opinion therefore directly concerns the Department of the Navy’s implementation of the OSTC framework, even though Article 24a itself applies across the armed forces.

The Navy JAG Corps operates its own OSTC structure, directs commands to report covered offenses promptly, and administers its own military-justice and defense-service systems. Navy and Marine Corps general and special courts-martial are served by the Navy-Marine Corps Trial Judiciary, and published NMCCA decisions are the directly relevant service-court authority until superseded by CAAF or later controlling law.

What happened in Kruse?

According to the NMCCA’s published decision, civilian or military law enforcement responded to a reported domestic disturbance involving a Marine and his spouse in September 2024. The allegations included strangulation and an assault involving stairs. Navy OSTC notified the Marine’s command that it was exercising authority over alleged Article 128b domestic violence, a covered offense. Kruse opinion, background section.

OSTC later issued a notice stating that the available evidence did not meet its charging standard and deferred the covered allegations and “all other known and/or related offenses” to the command. The command initiated the Article 32 process and forwarded charges. The convening authority ultimately referred, among other allegations, Article 128 aggravated-assault and assault specifications based on the underlying incident. The defense challenged the referral authority, and the military judge dismissed the Article 128 specifications. Read the NMCCA’s description of the referral and trial ruling.

The government appealed under Article 62, UCMJ. The NMCCA reversed the dismissal and returned the case for further proceedings.

What did the NMCCA hold?

The NMCCA focused on the words Congress used in Article 24a. The statute gives a Special Trial Counsel exclusive authority to determine whether a reported offense is a covered offense and to exercise authority over that offense. It also permits the Special Trial Counsel to exercise authority over related offenses and other offenses alleged against the same accused. Read Article 24a, UCMJ.

When the Special Trial Counsel elects not to prefer or refer charges and defers the matter, Article 24a(c)(5) generally restores a commander’s or convening authority’s usual UCMJ disposition authority. The statute contains a significant exception: the commander or convening authority may not refer charges and specifications for a covered offense to a special or general court-martial.

The NMCCA held that the exception is tied to the statutory classification of the charged offense, not simply to the factual conduct behind it. Article 128b domestic violence is a covered offense; Article 128 assault and aggravated assault are not. In the court’s view, once OSTC deferred the matter, the convening authority could refer the Article 128 offenses even though they arose from the same alleged conduct. Read the NMCCA’s statutory analysis.

What is CAAF reviewing?

CAAF granted review of this question:

Whether the lower court’s ruling on the exclusive authority granted to the Special Trial Counsel under Article 24a, UCMJ, runs counter to the statute’s plain meaning, the will of Congress, and creates an absurd result.

CAAF’s April 20, 2026 grant order identifies the granted issue. CAAF scheduled oral argument in Kruse for May 19, 2026. See the CAAF hearing calendar and case summary.

The appellate question is not whether an accused is guilty. It is a question of statutory authority: after OSTC deferral, does Article 24a permit a convening authority to refer a non-covered offense based on the same underlying event, or does OSTC’s exclusive authority prevent that result in some circumstances?

How does Galvin fit in?

A later Air Force case, United States v. Galvin, illustrates why the issue is not merely semantic. In Galvin, the Air Force Court of Criminal Appeals concluded that a convening authority could not refer an Article 92 dereliction specification that, as drafted and processed in that case, was substantively a deferred covered offense of sexual harassment. The court viewed the Article 92 wording as charging sexual harassment under a different label. Read United States v. Galvin.

Galvin is an unpublished Air Force decision, not NMCCA precedent, and its facts differ materially from Kruse. It should not be presented as controlling Navy law. Its value is narrower: it shows the competing concern that a command should not be able to avoid Article 24a’s restriction by merely changing the label of a covered offense.

Until CAAF decides Kruse, readers should not assume that every overlapping charge is always permitted or always prohibited. The specific offense, the elements and wording of the specification, OSTC’s determination, the deferral notice, and the procedural history can matter.

How Navy OSTC processing differs from ordinary command disposition

Navy guidance directs commands to promptly report covered offenses to OSTC. Depending on the allegation, a report to NCIS may satisfy the reporting obligation, while other matters are reported directly to OSTC. See Navy OSTC command-incident-reporting guidance.

For matters within OSTC authority, the Special Trial Counsel decides whether to proceed under the statutory and regulatory framework. For matters outside OSTC’s exclusive authority, Navy regional legal-service offices continue to provide prosecution and command legal support. For example, the RLSO Western Pacific Trial Department identifies non-OSTC offenses such as theft, drug offenses, fraternization, DUI, orders violations, unauthorized absence, and assault among the cases it prosecutes for commands.

That division of responsibility helps explain why Kruse matters. The same incident can create an alleged covered offense, a potentially non-covered punitive offense, an alleged orders violation, and administrative issues. The legal authority to make each disposition decision may depend on what OSTC exercised authority over and whether OSTC later deferred it.

What Sailors and Marines should do with this information

A developing appellate issue is not a do-it-yourself defense strategy. A member facing investigation, charges, nonjudicial punishment, or adverse administrative action should preserve notices and paperwork and get confidential advice promptly.
The importance of specialized defense transcends jurisdictions; for example, Marcelo Meriño Aravena offers a highly focused practice dedicated exclusively to defending sexual offense cases.

Useful documents for counsel may include:

• Any OSTC notice stating that it exercised authority, declined action, or deferred allegations
• The charge sheet and referral documents
• Article 32 hearing paperwork or notices
• Military protective orders, no-contact orders, or conditions on liberty
• Administrative-separation paperwork or nonjudicial-punishment documents
• A preserved timeline and relevant communications, without deleting or altering material

Navy DSOs provide defense advice and representation to eligible service members in courts-martial, administrative-separation boards, boards of inquiry, and defense-related matters including nonjudicial punishment. Find a Navy DSO.

Following a Navy or Marine Corps case

The Navy JAG Corps publishes a Navy-Marine Corps Trial Docket for courts-martial referred on or after December 23, 2020. The docket is generally updated weekly and expressly states that docket information does not support an adverse inference against an accused, who is presumed innocent.

The Navy also maintains court filings and records for many Navy and Marine Corps courts-martial. Public docket information is not a substitute for legal advice, and availability of a docket entry does not reveal all facts, evidence, or litigation issues in a case.

Bottom line

For now, Kruse is the leading published Navy-Marine Corps decision on whether a convening authority may refer non-covered charges after OSTC defers related covered allegations. The NMCCA said yes when the referred charge is not itself a statutorily defined covered offense. CAAF’s forthcoming decision may affirm, narrow, or reject that interpretation.

References and update note

• Article 24a, UCMJ — Special Trial Counsel (10 U.S.C. § 824a)
• United States v. Kruse, No. 202500370 (N-M. Ct. Crim. App. Jan. 21, 2026)
• CAAF grant order in United States v. Kruse, No. 26-0156/MC
• CAAF hearing calendar for May 19, 2026
• United States v. Galvin, Misc. Dkt. No. 2026-01 (A.F. Ct. Crim. App. June 5, 2026)
• Navy OSTC command incident reporting
• Navy Defense Service Office
• Navy-Marine Corps Trial Docket