United States Code/Title 10/Subtitle A/Part II/Chapter 47/Subchapter V

Section 822. Art. 22. Who May Convene General Courts-Martial
(a) General courts-martial may be convened by -
 * (1) the President of the United States;
 * (2) the Secretary of Defense;
 * (3) the commanding officer of a unified or specified combatant     command;
 * (4) the Secretary concerned;
 * (5) the commanding officer of a Territorial Department, an Army     Group, an Army, an Army Corps, a division, a separate brigade, or      a corresponding unit of the Army or Marine Corps;
 * (6) the commander in chief of a fleet; the commanding officer     of a naval station or larger shore activity of the Navy beyond      the United States;
 * (7) the commanding officer of an air command, an air force, an     air division, or a separate wing of the Air Force or Marine      Corps;
 * (8) any other commanding officer designated by the Secretary     concerned; or
 * (9) any other commanding officer in any of the armed forces     when empowered by the President.

(b) If any such commanding officer is an accuser, the court shall   be convened by superior competent authority, and may in any case be    convened by such authority if considered desirable by him.

Section 823. Art. 23. Who May Convene Special Courts-Martial

 * (a) Special courts-martial may be convened by -
 * (1) any person who may convene a general court-martial;
 * (2) the commanding officer of a district, garrison, fort, camp, station, Air Force base, auxiliary air field, or other place where members of the Army or the Air Force are on duty;
 * (3) the commanding officer of a brigade, regiment, detached battalion, or corresponding unit of the Army;
 * (4) the commanding officer of a wing, group, or separate squadron of the Air Force;
 * (5) the commanding officer of any naval or Coast Guard vessel, shipyard, base, or station; the commanding officer of any Marine brigade, regiment, detached battalion, or corresponding unit; the commanding officer of any Marine barracks, wing, group, separate squadron, station, base, auxiliary air field, or other place where members of the Marine Corps are on duty;
 * (6) the commanding officer of any separate or detached command or group of detached units of any of the armed forces placed under a single commander for this purpose; or
 * (7) the commanding officer or officer in charge of any other command when empowered by the Secretary concerned.
 * (b) If any such officer is an accuser, the court shall be convened by superior competent authority, and may in any case be convened by such authority if considered advisable by him.

Section 824. Art. 24. Who May Convene Summary Courts-Martial]]
(a) Summary courts-martial may be convened by -
 * (1) any person who may convene a general or special     court-martial;
 * (2) the commanding officer of a detached company, or other     detachment of the Army;
 * (3) the commanding officer of a detached squadron or other     detachment of the Air Force; or
 * (4) the commanding officer or officer in charge of any other     command when empowered by the Secretary concerned.

(b) When only one commissioned officer is present with a command   or detachment he shall be the summary court-martial of that command    or detachment and shall hear and determine all summary    court-martial cases brought before him. Summary courts-martial   may, however, be convened in any case by superior competent    authority when considered desirable by him.

Section 825. Art. 25. Who May Serve On Courts-Martial
(a) Any commissioned officer on active duty is eligible to serve   on all courts-martial for the trial of any person who may lawfully be brought before such courts for trial.

(b) Any warrant officer on active duty is eligible to serve on   general and special courts-martial for the trial of any person, other than a commissioned officer, who may lawfully be brought   before such courts for trial.

(c)
 * (1) Any enlisted member of an armed force on active duty who   is not a member of the same unit as the accused is eligible to    serve on general and special courts-martial for the trial of any    enlisted member of an armed force who may lawfully be brought    before such courts for trial, but he shall serve as a member of a    court only if, before the conclusion of a session called by the    military judge under section 839(a) of this title (article 39(a))    prior to trial or, in the absence of such a session, before the    court is assembled for the trial of the accused, the accused    personally has requested orally on the record or in writing that    enlisted members serve on it.  After such a request, the accused    may not be tried by a general or special court-martial the    membership of which does not include enlisted members in a number    comprising at least, one-third of the total membership of the    court, unless eligible enlisted members cannot be obtained on    account of physical conditions or military exigencies.  If such    members cannot be obtained, the court may be assembled and the    trial held without them, but the convening authority shall make a    detailed written statement, to be appended to the record, stating    why they could not be obtained.
 * (2) In this article, unit means any regularly organized body   as defined by the Secretary concerned, but in no case may it be a    body larger than a company, squadron, ship's crew, or body    corresponding to one of them.

(d)
 * (1) When it can be avoided, no member of an armed force may be   tried by a court-martial any member of which is junior to him in    rank or grade.
 * (2) When convening a court-martial, the convening authority shall   detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age,    education, training, experience, length of service, and judicial temperament.  No member of an armed force is eligible to serve as a    member of a general or special court-martial when he is the accuser    or a witness for the prosecution or has acted as investigating    officer or as counsel in the same case.

(e) Before a court-martial is assembled for the trial of a case,   the convening authority may excuse a member of the court from    participating in the case. Under such regulations as the Secretary   concerned may prescribe, the convening authority may delegate his authority under this subsection to his staff judge advocate or   legal officer or to any other principal assistant.

Section 825a. Art. 25a. Number Of Members In Capital Cases
In a case in which the accused may be sentenced to a penalty of   death, the number of members shall be not less than 12, unless 12    members are not reasonably available because of physical conditions    or military exigencies, in which case the convening authority shall    specify a lesser number of members not less than five, and the    court may be assembled and the trial held with not less than the    number of members so specified. In such a case, the convening   authority shall make a detailed written statement, to be appended    to the record, stating why a greater number of members were not    reasonably available.

Section 826. Art. 26. Military Judge Of A General Or Special Court-Martial
(a) A military judge shall be detailed to each general   court-martial. Subject to regulations of the Secretary concerned,   a military judge may be detailed to any special court-martial. The   Secretary concerned shall prescribe regulations providing for the    manner in which military judges are detailed for such    courts-martial and for the persons who are authorized to detail    military judges for such courts-martial. The military judge shall   preside over each open session of the court-martial to which he has    been detailed.

(b) A military judge shall be a commissioned officer of the armed   forces who is a member of the bar of a Federal court or a member of    the bar of the highest court of a State and who is certified to be    qualified for duty as a military judge by the Judge Advocate    General of the armed force of which such military judge is a    member.

(c) The military judge of a general court-martial shall be   designated by the Judge Advocate General, or his designee, of the    armed force of which the military judge is a member for detail in    accordance with regulations prescribed under subsection (a). Unless   the court-martial was convened by the President or the Secretary    concerned, neither the convening authority nor any member of his    staff shall prepare or review any report concerning the    effectiveness, fitness, or efficiency of the military judge so    detailed, which relates to his performance of duty as a military    judge. A commissioned officer who is certified to be qualified for   duty as a military judge of a general court-martial may perform    such duties only when he is assigned and directly responsible to    the Judge Advocate General, or his designee, of the armed force of    which the military judge is a member and may perform duties of a    judicial or nonjudicial nature other than those relating to his    primary duty as a military judge of a general court-martial when    such duties are assigned to him by or with the approval of that    Judge Advocate General or his designee.

(d) No person is eligible to act as military judge in a case if   he is the accuser or a witness for the prosecution or has acted as    investigating officer or a counsel in the same case.

(e) The military judge of a court-martial may not consult with   the members of the court except in the presence of the accused,    trial counsel, and defense counsel, nor may he vote with the    members of the court.

Section 827. Art. 27. Detail Of Trial Counsel And Defense Counsel
(a)
 * (1) Trial counsel and defense counsel shall be detailed for   each general and special court-martial.  Assistant trial counsel    and assistant and associate defense counsel may be detailed for    each general and special court-martial.  The Secretary concerned    shall prescribe regulations providing for the manner in which    counsel are detailed for such courts-martial and for the persons    who are authorized to detail counsel for such courts-martial.
 * (2) No person who has acted as investigating officer, military   judge, or court member in any case may act later as trial counsel,    assistant trial counsel, or, unless expressly requested by the    accused, as defense counsel or assistant or associate defense    counsel in the same case.  No person who has acted for the    prosecution may act later in the same case for the defense, nor may    any person who has acted for the defense act later in the same case    for the prosecution.

(b) Trial counsel or defense counsel detailed for a general   court-martial -
 * (1) must be a judge advocate who is a graduate of an accredited     law school or is a member of the bar of a Federal court or of the      highest court of a State; or must be a member of the bar of a      Federal court or of the highest court of a State; and
 * (2) must be certified as competent to perform such duties by     the Judge Advocate General of the armed force of which he is a      member.

(c) In the case of a special court-martial -
 * (1) the accused shall be afforded the opportunity to be     represented at the trial by counsel having the qualifications      prescribed under section 827(b) of this title (article 27(b))      unless counsel having such qualifications cannot be obtained on      account of physical conditions or military exigencies.  If      counsel having such qualifications cannot be obtained, the court      may be convened and the trial held but the convening authority      shall make a detailed written statement, to be appended to the      record, stating why counsel with such qualifications could not be      obtained;
 * (2) if the trial counsel is qualified to act as counsel before     a general court-martial, the defense counsel detailed by the      convening authority must be a person similarly qualified; and
 * (3) if the trial counsel is a judge advocate or a member of the     bar of a Federal court or the highest court of a State, the      defense counsel detailed by the convening authority must be one      of the foregoing.

Section 828. Art. 28. Detail Or Employment Of Reporters And Interpreters
Under such regulations as the Secretary concerned may prescribe,   the convening authority of a court-martial, military commission, or    court of inquiry shall detail or employ qualified court reporters,    who shall record the proceedings of and testimony taken before that    court or commission. Under like regulations the convening   authority of a court-martial, military commission, or court of    inquiry may detail or employ interpreters who shall interpret for    the court or commission.

Section 829. Art. 29. Absent And Additional Members
(a) No member of a general or special court-martial may be absent   or excused after the court has been assembled for the trial of the    accused unless excused as a result of a challenge, excused by the    military judge for physical disability or other good cause, or    excused by order of the convening authority for good cause.

(b)
 * (1) Whenever a general court-martial, other than a general   court-martial composed of a military judge only, is reduced below    the applicable minimum number of members, the trial may not proceed    unless the convening authority details new members sufficient in    number to provide not less than the applicable minimum number of    members.  The trial may proceed with the new members present after    the recorded evidence previously introduced before the members of    the court has been read to the court in the presence of the    military judge, the accused, and counsel for both sides.
 * (2) In this section, the term applicable minimum number of   members means five members or, in a case in which the death    penalty may be adjudged, the number of members determined under    section 825a of this title (article 25a).

(c) Whenever a special court-martial, other than a special   court-martial composed of a military judge only, is reduced below    three members, the trial may not proceed unless the convening    authority details new members sufficient in number to provide not    less than three members. The trial shall proceed with the new   members present as if no evidence had previously been introduced at    the trial, unless a verbatim record of the evidence previously    introduced before the members of the court or a stipulation thereof    is read to the court in the presence of the military judge, if any,    the accused and counsel for both sides.

(d) If the military judge of a court-martial composed of a   military judge only is unable to proceed with the trial because of    physical disability, as a result of a challenge, or for other good    cause, the trial shall proceed, subject to any applicable    conditions of section 816(1)(B) or (2)(C) of this title (article    16(1)(B) or (2)(C)), after the detail of a new military judge as if    no evidence had previously been introduced, unless a verbatim    record of the evidence previously introduced or a stipulation    thereof is read in court in the presence of the new military judge,    the accused, and counsel for both sides.