822. 22. Who may convene general courts-martial.
823. 23. Who may convene special courts-martial.
824. 24. Who may convene summary courts-martial.
825. 25. Who may serve on courts-martial.
826. 26. Military judge of a general or special court-martial.
827. 27. Detail of trial counsel and defense counsel.
828. 28. Detail or employment of reporters and interpreters.
829. 29. Absent and additional members.
�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 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.
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.
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 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.
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 courts-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 member 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.
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 in 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 of 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.
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 curt-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.
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.
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 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) Whenever a general court-martial, other than a general court-martial
composed of a military judge only, is reduced below five members, the trial
may not proceed unless the convening authority details new member
sufficient in number to provide not less than five 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.
(c) Whenever a special court-martial, other than a special court-marital
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 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.
