SUBCHAPTER V—COMPOSITION OF COURTS-MARTIAL
| Sec. | Art. | |
|---|
| 822. |
22. |
Who may convene general courts-martial. |
| 823. |
23. |
Who may convene special courts-martial. |
| 824. |
24. |
Who may convene summary courts-martial. |
| 824a. |
24a. |
Special trial counsel. |
| 825. |
25. |
Who may serve on courts-martial. |
| 825a. |
25a. |
Number of court-martial members in capital cases. |
| 826. |
26. |
Military judge of a general or special court-martial. |
| 826a. |
26a. |
Military magistrates. |
| 827. |
27. |
Detail of trial counsel and defense counsel. |
| 828. |
28. |
Detail or employment of reporters and interpreters. |
| 829. |
29. |
Assembly and impaneling of members; detail of new members and military judges. |
Editorial Notes
Amendments
2021—Pub. L. 117–81, div. A, title V, §531(b), Dec. 27, 2021, 135 Stat. 1693, added item 824a.
2017—Pub. L. 115–91, div. A, title X, §1081(d)(19)(A), (B), Dec. 12, 2017, 131 Stat. 1601, amended Pub. L. 114–328, §5541(2). See 2016 Amendment note below.
2016—Pub. L. 114–328, div. E, title LXIII, §5541(2), Dec. 23, 2016, 130 Stat. 2965, as amended by Pub. L. 115–91, div. A, title X, §1081(d)(19)(A), (B), Dec. 12, 2017, 131 Stat. 1601, added items 825a, 826a, and 829 and struck out former items 825a "Art. 25a. Number of members in capital cases" and 829 "Art. 29. Absent and additional members".
2001—Pub. L. 107–107, div. A, title V, §582(b)(2), Dec. 28, 2001, 115 Stat. 1124, added item 825a.
1968—Pub. L. 90–632, §2(8), Oct. 24, 1968, 82 Stat. 1336, substituted "Military judge of a general or special court-martial" for "Law officer of a general court-martial" in item 826.
§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 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 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, or the commanding officer of a corresponding unit of the Space Force;
(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)(1) 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.
(2) A commanding officer shall not be considered an accuser solely due to the role of the commanding officer in convening a general court-martial to which charges and specifications were referred by a special trial counsel in accordance with this chapter.
(Aug. 10, 1956, ch. 1041, 70A Stat. 44; Pub. L. 99–433, title II, §211(b), Oct. 1, 1986, 100 Stat. 1017; Pub. L. 109–163, div. A, title X, §1057(a)(2), Jan. 6, 2006, 119 Stat. 3440; Pub. L. 114–328, div. E, title LV, §5181, Dec. 23, 2016, 130 Stat. 2899; Pub. L. 116–283, div. A, title IX, §924(b)(21)(A), Jan. 1, 2021, 134 Stat. 3824; Pub. L. 117–81, div. A, title V, §534(a), Dec. 27, 2021, 135 Stat. 1696.)
Subsection (a)(2) is substituted for the words "the Secretary of a Department".
In subsection (a)(4), the words "continental limits of the" are omitted, since section 101(1) of this title defines the United States to include the States and the District of Columbia.
In subsection (a)(6), the words "any other commanding officer" are substituted for the words "such other commanding officers as may be".
In subsection (b), the word "If" is substituted for the word "When". The words "if considered" are substituted for the words "when deemed".
Editorial Notes
Amendments
2021—Subsec. (a)(7). Pub. L. 116–283 substituted "Marine Corps, or the commanding officer of a corresponding unit of the Space Force" for "Marine Corps".
Subsec. (b). Pub. L. 117–81 designated existing provisions as par. (1) and added par. (2).
2016—Subsec. (a)(6). Pub. L. 114–328 struck out "in chief" after "the commander".
2006—Subsec. (a)(5). Pub. L. 109–163 struck out "a Territorial Department," before "an Army Group".
1986—Subsec. (a)(2) to (9). Pub. L. 99–433 added pars. (2) and (3) and redesignated existing pars. (2) to (7) as (4) to (9), respectively.
Statutory Notes and Related Subsidiaries
Effective Date of 2021 Amendment
Amendment by Pub. L. 117–81 effective on the date that is two years after Dec. 27, 2021, and applicable with respect to offenses that occur after that date, with provisions for delayed effect and applicability if regulations are not prescribed by the President before the date that is two years after Dec. 27, 2021, see section 539C of Pub. L. 117–81, set out as a note under section 801 of this title.
Effective Date of 2016 Amendment
Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.
Training for Sexual Assault Initial Disposition Authorities on Exercise of Disposition Authority for Sexual Assault and Collateral Offenses
Pub. L. 116–92, div. A, title V, §540A, Dec. 20, 2019, 133 Stat. 1365, provided that:
"(a) In General.—The training for sexual assault initial disposition authorities on the exercise of disposition authority under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), shall include comprehensive training on the exercise of disposition authority with respect to cases for which disposition authority is withheld to such authorities pursuant to the memorandum described in subsection (b) for the purpose of promoting confidence and trust in the military justice process with respect to such cases.
"(b) Memorandum Described.—The memorandum described in this subsection is the memorandum of the Secretary of Defense titled 'Withholding Initial Disposition Authority Under the Uniform Code of Military Justice in Certain Sexual Assault Cases' and dated April 20, 2012, or any successor memorandum."
§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 or Space Force military installation, auxiliary air field, or other place where members of the Army, the Air Force, or the Space 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 or a corresponding unit of the Space 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)(1) 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.
(2) A commanding officer shall not be considered an accuser solely due to the role of the commanding officer in convening a special court-martial to which charges and specifications were referred by a special trial counsel in accordance with this chapter.
(Aug. 10, 1956, ch. 1041, 70A Stat. 44; Pub. L. 116–283, div. A, title IX, §924(b)(21)(B), Jan. 1, 2021, 134 Stat. 3824; Pub. L. 117–81, div. A, title V, §534(b), title X, §1081(a)(13), Dec. 27, 2021, 135 Stat. 1696, 1920.)
In subsection (a)(7), the words "Secretary concerned" are substituted for the words "Secretary of a Department".
In subsection (b), the word "If" is substituted for the word "When". The words "if considered" are substituted for the words "when deemed".
Editorial Notes
Amendments
2021—Subsec. (a)(2). Pub. L. 117–81, §1081(a)(13), inserted comma after "Army".
Pub. L. 116–283, §924(b)(21)(B)(i), substituted "Air Force or Space Force military installation" for "Air Force base" and "the Air Force, or the Space Force" for "or the Air Force".
Subsec. (a)(4). Pub. L. 116–283, §924(b)(21)(B)(ii), inserted "or a corresponding unit of the Space Force" after "Air Force".
Subsec. (b). Pub. L. 117–81, §534(b), designated existing provisions as par. (1) and added par. (2).
Statutory Notes and Related Subsidiaries
Effective Date of 2021 Amendment
Amendment by section 534(b) of Pub. L. 117–81 effective on the date that is two years after Dec. 27, 2021, and applicable with respect to offenses that occur after that date, with provisions for delayed effect and applicability if regulations are not prescribed by the President before the date that is two years after Dec. 27, 2021, see section 539C of Pub. L. 117–81, set out as a note under section 801 of this title.
Transfer of Functions
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
§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 a corresponding unit of the Space 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.
(Aug. 10, 1956, ch. 1041, 70A Stat. 45; Pub. L. 116–283, div. A, title IX, §924(b)(21)(C), Jan. 1, 2021, 134 Stat. 3824.)
In subsection (a)(4), the words "Secretary concerned" are substituted for the words "Secretary of a Department".
In subsection (b), the words "only one commissioned" are substituted for the words "but one" for clarity. The word "considered" is substituted for the word "deemed".
Editorial Notes
Amendments
2021—Subsec. (a)(3). Pub. L. 116–283 inserted "or a corresponding unit of the Space Force" after "Air Force".
§824a. Art. 24a. Special trial counsel
(a) Detail of Special Trial Counsel.—Each Secretary concerned shall promulgate regulations for the detail of commissioned officers to serve as special trial counsel.
(b) Qualifications.—A special trial counsel shall be a commissioned officer who—
(1)(A) is a member of the bar of a Federal court or a member of the bar of the highest court of a State; and
(B) is certified to be qualified, by reason of education, training, experience, and temperament, for duty as a special trial counsel by—
(i) the Judge Advocate General of the armed force of which the officer is a member; or
(ii) in the case of the Marine Corps, the Staff Judge Advocate to the Commandant of the Marine Corps; and
(2) in the case of a lead special trial counsel appointed pursuant to section 1044f(a)(2) of this title, is in a grade no lower than O–7.
(c) Duties and Authorities.—
(1) In general.—Special trial counsel shall carry out the duties described in this chapter and any other duties prescribed by the Secretary concerned, by regulation.
(2) Determination of covered offense; related charges.—
(A) Authority.—A special trial counsel shall have exclusive authority to determine if a reported offense is a covered offense and shall exercise authority over any such offense in accordance with this chapter. Any determination to prefer or refer charges shall not act to disqualify the special trial counsel as an accuser.
(B) Known and related offenses.—If a special trial counsel determines that a reported offense is a covered offense, the special trial counsel may also exercise authority over any offense that the special trial counsel determines to be related to the covered offense and any other offense alleged to have been committed by a person alleged to have committed the covered offense.
(3) Dismissal; referral; plea bargains.—Subject to paragraph (5), with respect to charges and specifications alleging any offense over which a special trial counsel exercises authority, a special trial counsel shall have exclusive authority to, in accordance with this chapter—
(A) on behalf of the Government, withdraw or dismiss the charges and specifications or make a motion to withdraw or dismiss the charges and specifications;
(B) refer the charges and specifications for trial by a special or general court-martial;
(C) enter into a plea agreement; and
(D) determine if an authorized rehearing is impracticable.
(4) Binding determination.—The determination of a special trial counsel to refer charges and specifications to a court-martial for trial shall be binding on any applicable convening authority for the referral of such charges and specifications.
(5) Deferral to commander or convening authority.—If a special trial counsel exercises authority over an offense and elects not to prefer charges and specifications for such offense or, with respect to charges and specifications for such offense preferred by a person other than a special trial counsel, elects not to refer such charges and specifications, a commander or convening authority may exercise any of the authorities of such commander or convening authority under this chapter with respect to such offense, except that such commander or convening authority may not refer charges and specifications for a covered offense for trial by special or general court-martial.
(d) Special Trial Counsel Authority Over Certain Other Offenses.—
(1) Offenses occurring before effective date.—A special trial counsel may, at the sole and exclusive discretion of the special trial counsel, exercise authority over the following offenses:
(A) An offense under section 917a (article 117a), 918 (article 118), section 919 (article 119), section 920 (article 120), section 920b (article 120b), section 920c (article 120c), section 928b (article 128b), or the standalone offense of child pornography punishable under section 934 (article 134) of this title that occurred on or before December 27, 2023.
(B) An offense under section 925 (article 125), section 930 (article 130), or section 932 (article 132) of this title that occurred on or after January 1, 2019, and before December 28, 2023.
(C) An offense under section 920a (article 120a) of this title, an offense under section 925 (article 125) of this title alleging an act of nonconsensual sodomy, or the standalone offense of kidnapping punishable under section 934 (article 134) of this title that occurred before January 1, 2019.
(D) A conspiracy to commit an offense specified in subparagraph (A), (B), or (C) as punishable under section 881 of this title (article 81).
(E) A solicitation to commit an offense specified in subparagraph (A), (B), or (C) as punishable under section 882 of this title (article 82).
(F) An attempt to commit an offense specified in subparagraph (A), (B), (C), (D), or (E) as punishable under section 880 of this title (article 80).
(2) Effect of exercise of authority.—
(A) Treatment as covered offense.—If a special trial counsel exercises authority over an offense pursuant to paragraph (1), the offense over which the special trial counsel exercises authority shall be considered a covered offense for purposes of this chapter.
(B) Known or related offenses.—If a special trial counsel exercises authority over an offense pursuant to paragraph (1), the special trial counsel may exercise the authority of the special trial counsel under subparagraph (B) of subsection (c)(2) with respect to other offenses described in that subparagraph without regard to the date on which the other offenses occur.
(Added Pub. L. 117–81, div. A, title V, §531(a), Dec. 27, 2021, 135 Stat. 1692; amended Pub. L. 117–263, div. A, title V, §542(a), Dec. 23, 2022, 136 Stat. 2581; Pub. L. 118–31, div. A, title V, §531(c)(1), Dec. 22, 2023, 137 Stat. 258.)
Editorial Notes
Amendments
2023—Subsec. (d). Pub. L. 118–31 added subsec. (d).
2022—Subsec. (c)(3). Pub. L. 117–263, §542(a)(1), substituted "Subject to paragraph (5)" for "Subject to paragraph (4)" in introductory provisions.
Subsec. (c)(3)(D). Pub. L. 117–263, §542(a)(2), substituted "an authorized rehearing" for "an ordered rehearing".
Statutory Notes and Related Subsidiaries
Effective Date of 2023 Amendment
Amendment by Pub. L. 118–31 effective immediately after amendment by part 1 of subtitle D of title V of Pub. L. 117–81, see section 531(e) of Pub. L. 118–31, set out as a note under section 816 of this title.
Effective Date of 2022 Amendment
Pub. L. 117–263, div. A, title V, §542(b), Dec. 23, 2022, 136 Stat. 2581, provided that: "The amendments made by subsection (a) [amending this section] shall take effect immediately after the coming into effect of the amendments made by section 531 of the National Defense Authorization Act for Fiscal Year 2022 (Public Law 117–81; 135 Stat. 1692) [enacting this section] as provided in section 539C of that Act (10 U.S.C. 801 note)."
Effective Date
Section effective on the date that is two years after Dec. 27, 2021, and applicable with respect to offenses that occur after that date, with provisions for delayed effect and applicability if regulations are not prescribed by the President before the date that is two years after Dec. 27, 2021, see section 539C of Pub. L. 117–81, set out as an Effective Date of 2021 Amendment note under section 801 of this title.
Residual Prosecutorial Duties and Other Judicial Functions of Convening Authorities in Covered Cases
Pub. L. 117–263, div. A, title V, §541(c), Dec. 23, 2022, 136 Stat. 2580, provided that: "The President shall prescribe regulations to ensure that residual prosecutorial duties and other judicial functions of convening authorities, including granting immunity, ordering depositions, and hiring experts, with respect to charges and specifications over which a special trial counsel exercises authority pursuant to section 824a of title 10, United States Code (article 24a of the Uniform Code of Military Justice) (as added by section 531 of the National Defense Authorization Act for Fiscal Year 2022 (Public Law 117–81; 135 Stat. 1692)), are transferred to the military judge, the special trial counsel, or other authority as appropriate in such cases by no later than the effective date established in section 539C of the National Defense Authorization Act for Fiscal Year 2022 (Public Law 117–81; 10 U.S.C. 801 note), in consideration of due process for all parties involved in such a case."
§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 on active duty is eligible to serve on a general or special court-martial for the trial of any other enlisted member.
(2) Before a court-martial with a military judge and members is assembled for trial, an enlisted member who is an accused may personally request, orally on the record or in writing, that—
(A) the membership of the court-martial be comprised entirely of officers; or
(B) enlisted members comprise at least one-third of the membership of the court-martial, regardless of whether enlisted members have been detailed to the court-martial.
(3) Except as provided in paragraph (4), after such a request, the accused may not be tried by a general or special court-martial if the membership of the court-martial is inconsistent with the request.
(4) If, because of physical conditions or military exigencies, a sufficient number of eligible officers or enlisted members, as the case may be, is not available to carry out paragraph (2), the trial may nevertheless be held. In that event, the convening authority shall make a detailed written statement of the reasons for nonavailability. The statement shall be appended to the record.
(d)(1) Except as provided in paragraph (2) for capital offenses, the accused in a court-martial with a military judge and members shall be sentenced by the military judge.
(2) In a capital case, if the accused is convicted of an offense for which the court-martial may sentence the accused to death, the accused shall be sentenced in accordance with section 853(c) of this title (article 53(c)).
(3) In a capital case, if the accused is convicted of a non-capital offense, the accused shall be sentenced for such non-capital offense in accordance with section 853(b) of this title (article 53(b)), regardless of whether the accused is convicted of an offense for which the court-martial may sentence the accused to death.
(e)(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 the member being tried 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 the opinion of the convening authority, 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 the member is the accuser or a witness for the prosecution or has acted as preliminary hearing officer or as counsel in the same case.
(3) The convening authority shall detail not less than the number of members necessary to impanel the court-martial under section 829 of this title (article 29).
(f) 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 the authority of the convening authority under this subsection to the staff judge advocate or legal officer of the convening authority or to any other principal assistant.
(Aug. 10, 1956, ch. 1041, 70A Stat. 45; Pub. L. 90–632, §2(7), Oct. 24, 1968, 82 Stat. 1336; Pub. L. 98–209, §§3(b), 13(c), Dec. 6, 1983, 97 Stat. 1394, 1408; Pub. L. 99–661, div. A, title VIII, §803(a), Nov. 14, 1986, 100 Stat. 3906; Pub. L. 114–328, div. E, title LV, §5182, title LVI, §5203(e)(2), Dec. 23, 2016, 130 Stat. 2899, 2906; Pub. L. 117–263, div. A, title V, §543(a), Dec. 23, 2022, 136 Stat. 2582; Pub. L. 118–31, div. A, title V, §531(b)(2), Dec. 22, 2023, 137 Stat. 258.)
Amendment of Subsection (e)
Pub. L. 117–263, div. A, title V, §543(a), (b), Dec. 23, 2022, 136 Stat. 2582, provided that, effective on the date that is two years after Dec. 23, 2022, and applicable with respect to courts-martial convened on or after that date, subsection (e) of this section is amended by adding at the end the following new paragraph:
(4) When convening a court-martial, the convening authority shall detail as members thereof members of the armed forces under such regulations as the President may prescribe for the randomized selection of qualified personnel, to the maximum extent practicable.
See 2022 Amendment note below.
In subsection (a), the word "commissioned" is inserted before the word "officer" for clarity. The word "is" is substituted for the words "shall be".
In subsections (a), (b), and (c)(1), the words "with the armed forces" are omitted as surplusage.
In subsection (b), the word "is" is substituted for the words "shall be". The words "a commissioned" are substituted for the word "an" for clarity.
In subsection (c), the words "member" and "members", respectively are substituted for the words "person" and "persons". The words "of an armed force" are inserted for clarity.
In subsection (c)(1), the word "is" is substituted for the words "shall be". The word "before" is substituted for the words "prior to". The words "the accused may not" are substituted for the words "no enlisted person shall", for clarity. The word "If" is substituted for the word "Where".
In subsection (c)(2), the word "means" is substituted for the words "shall mean". The words "Secretary concerned" are substituted for the words "Secretary of the Department". The word "may" is substituted for the word "shall". The word "than", before the words "a body", is omitted as surplusage.
In subsection (d)(1), the word "may" is substituted for the word "shall". The word "member" is substituted for the word "person".
In subsection (d)(2), the word "is" is substituted for the words "shall be". The word "detail" is substituted for the word "appoint", since the filling of the position involved is not appointment to an office in the constitutional sense. The words "member of an armed force" and "members of the armed forces", respectively, are substituted for the words "person" and "persons".
Editorial Notes
Amendments
2023—Subsec. (d)(1). Pub. L. 118–31, §531(b)(2)(A)(i), substituted "shall be sentenced by the military judge" for "may, after the findings are announced and before any matter is presented in the sentencing phase, request, orally on the record or in writing, sentencing by members".
Subsec. (d)(2). Pub. L. 118–31, §531(b)(2)(A)(ii), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "In a capital case, the accused shall be sentenced by the members for all offenses for which the court-martial may sentence the accused to death in accordance with section 853(c) of this title (article 53(c))."
Subsec. (e)(1). Pub. L. 118–31, §531(b)(2)(B)(i), substituted "the member being tried" for "him".
Subsec. (e)(2). Pub. L. 118–31, §531(b)(2)(B)(ii), substituted "the opinion of the convening authority" for "his opinion" and "the member" for "he".
Subsec. (f). Pub. L. 118–31, §531(b)(2)(C), substituted "the authority of the convening authority" for "his authority" and "the staff judge advocate or legal officer of the convening authority" for "his staff judge advocate or legal officer".
2022—Subsec. (e)(4). Pub. L. 117–263 added par. (4).
2016—Subsec. (c). Pub. L. 114–328, §5182(a), amended subsec. (c) generally. Prior to amendment, subsec. (c) related to service on general and special courts-martial by enlisted members.
Subsec. (d). Pub. L. 114–328, §5182(b)(2), added subsec. (d). Former subsec. (d) redesignated (e).
Subsec. (e). Pub. L. 114–328, §5182(b)(1), redesignated subsec. (d) as (e). Former subsec. (e) redesignated (f).
Subsec. (e)(2). Pub. L. 114–328, §5203(e)(2), which directed amendment of this section by substituting "preliminary hearing officer" for "investigating officer" in subsec. (d)(2), was executed by making the substitution in subsec. (e)(2) to reflect the probable intent of Congress and the redesignation of subsec. (d) as (e) by Pub. L. 114–328, §5182(b)(1).
Subsec. (e)(3). Pub. L. 114–328, §5182(c), added par. (3).
Subsec. (f). Pub. L. 114–328, §5182(b)(1), redesignated subsec. (e) as (f).
1986—Subsec. (c)(1). Pub. L. 99–661 substituted "has requested orally on the record or in writing" for "has requested in writing".
1983—Subsec. (c)(2). Pub. L. 98–209, §13(c), struck out "the word" before " 'unit' ".
Subsec. (e). Pub. L. 98–209, §3(b), added subsec. (e).
1968—Subsec. (c)(1). Pub. L. 90–632 inserted requirement that an accused's request for inclusion of enlisted members on his court-martial be made before conclusion of a pre-trial session called by the military judge under section 839(a) or before the court is assembled for his trial and substituted "assembled" for "convened" to describe the calling together of the court for the trial in provision allowing such calling together without requested enlisted members if such members cannot be obtained.
Statutory Notes and Related Subsidiaries
Effective Date of 2023 Amendment
Amendment by Pub. L. 118–31 effective immediately after amendment by part 1 of subtitle D of title V of Pub. L. 117–81, see section 531(e) of Pub. L. 118–31, set out as a note under section 816 of this title.
Effective Date of 2022 Amendment
Pub. L. 117–263, div. A, title V, §543(b), Dec. 23, 2022, 136 Stat. 2582, provided that: "The amendment made by subsection (a) [amending this section] shall take effect on the date that is two years after the date of the enactment of this Act [Dec. 23, 2022] and shall apply with respect to courts-martial convened on or after that effective date."
Effective Date of 2016 Amendment
Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.
Effective Date of 1986 Amendment
Pub. L. 99–661, div. A, title VIII, §803(b), Nov. 14, 1986, 100 Stat. 3906, provided that: "The amendment made by subsection (a) [amending this section] shall apply only to a case in which arraignment is completed on or after the effective date of this title."
Title VIII of Pub. L. 99–661 effective the earlier of (1) the last day of the 120-day period beginning on Nov. 14, 1986; or (2) the date specified in an Executive order for such amendment to take effect, see section 808 of Pub. L. 99–661, set out as a note under section 802 of this title.
Effective Date of 1983 Amendment
Amendment by section 13(c) of Pub. L. 98–209 effective Dec. 6, 1983, and amendment by section 3(b) of Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, see section 12(a)(1) of Pub. L. 98–209, set out as a note under section 801 of this title.
Effective Date of 1968 Amendment
Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.
Regulations
Pub. L. 117–263, div. A, title V, §543(c), Dec. 23, 2022, 136 Stat. 2582, provided that: "Not later than the effective date specified in subsection (b) [see Effective Date of 2022 Amendment note above], the President shall prescribe regulations implementing the requirement under paragraph (4) of section 825(e) of title 10, United States Code (article 25(e) of the Uniform Code of Military Justice), as added by subsection (a) of this section."
§825a. Art. 25a. Number of court-martial members in capital cases
(a) In General.—In a case in which the accused may be sentenced to death, the number of members shall be 12.
(b) Case No Longer Capital.—Subject to section 829 of this title (article 29)—
(1) if a case is referred for trial as a capital case and, before the members are impaneled, the accused may no longer be sentenced to death, the number of members shall be eight; and
(2) if a case is referred for trial as a capital case and, after the members are impaneled, the accused may no longer be sentenced to death, the number of members shall remain 12.
(Added Pub. L. 107–107, div. A, title V, §582(b)(1), Dec. 28, 2001, 115 Stat. 1124; amended Pub. L. 114–328, div. E, title LV, §5183, Dec. 23, 2016, 130 Stat. 2900.)
Editorial Notes
Amendments
2016—Pub. L. 114–328 amended section generally. Prior to amendment, text read as follows: "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."
Statutory Notes and Related Subsidiaries
Effective Date of 2016 Amendment
Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.
Effective Date
Section applicable with respect to offenses committed after Dec. 31, 2002, see section 582(d) of Pub. L. 107–107, set out as an Effective Date of 2001 Amendment note under section 816 of this title.
§826. Art. 26. Military judge of a general or special court-martial
(a) A military judge shall be detailed to each general and 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, by reason of education, training, experience, and judicial temperament, for duty as a military judge by the Judge Advocate General of the armed force of which such military judge is a member.
(c)(1) In accordance with regulations prescribed under subsection (a), a military judge of a general or special court-martial shall be designated for detail by the Judge Advocate General of the armed force of which the military judge is a member.
(2) Neither the convening authority nor any member of the staff of the convening authority shall prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to the military judge's performance of duty as a military judge.
(3) A commissioned officer who is certified to be qualified for duty as a military judge of a general court-martial—
(A) may perform such duties only when the officer is assigned and directly responsible to the Judge Advocate General of the armed force of which the military judge is a member; and
(B) may perform duties of a judicial or nonjudicial nature other than those relating to the officer's primary duty as a military judge of a general court-martial when such duties are assigned to the officer by or with the approval of that Judge Advocate General.
(4) In accordance with regulations prescribed by the President, assignments of military judges under this section (article) shall be for appropriate minimum periods, subject to such exceptions as may be authorized in the regulations.
(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 preliminary hearing 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.
(f) A military judge may be detailed under subsection (a) to a court-martial or a proceeding under section 830a of this title (article 30a) that is convened in a different armed force, when so permitted by the Judge Advocate General of the armed force of which the military judge is a member.
(g) In accordance with regulations prescribed by the President, each Judge Advocate General shall designate a chief trial judge from among the members of the applicable trial judiciary.
(Aug. 10, 1956, ch. 1041, 70A Stat. 46; Pub. L. 90–632, §2(9), Oct. 24, 1968, 82 Stat. 1336; Pub. L. 98–209, §3(c)(1), Dec. 6, 1983, 97 Stat. 1394; Pub. L. 114–328, div. E, title LV, §5184, title LVI, §5203(e)(3), Dec. 23, 2016, 130 Stat. 2901, 2906.)
In subsection (a), the words "a commissioned" are substituted for the word "an" for clarity. The words "of the United States" are omitted as surplusage. The word "is" is substituted for the words "shall be". The word "if" is substituted for the word "when". The word "detail" is substituted for the word "appoint", since the filling of the position involved is not appointment to an office in the constitutional sense.
In subsection (b), the word "may" is substituted for the word "shall".
Editorial Notes
Amendments
2016—Subsec. (a). Pub. L. 114–328, §5184(a), inserted "and special" after "each general" and struck out "Subject to regulations of the Secretary concerned, a military judge may be detailed to any special court-martial." before "The military judge".
Subsec. (b). Pub. L. 114–328, §5184(b), substituted "qualified, by reason of education, training, experience, and judicial temperament, for duty" for "qualified for duty".
Subsec. (c). Pub. L. 114–328, §5184(c), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: "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."
Subsec. (d). Pub. L. 114–328, §5203(e)(3), substituted "preliminary hearing officer" for "investigating officer".
Subsec. (f). Pub. L. 114–328, §5184(d), added subsec. (f).
Subsec. (g). Pub. L. 114–328, §5184(e), added subsec. (g).
1983—Subsec. (a). Pub. L. 98–209, §3(c)(1)(A), amended subsec. (a) generally, inserting provision requiring the Secretary concerned to prescribe regulations providing for the manner in which military judges are detailed for courts-martial and for the persons who are authorized to detail military judges for such courts-martial.
Subsec. (c). Pub. L. 98–209, §3(c)(1)(B), substituted "in accordance with regulations prescribed under subsection (a). Unless" for "by the convening authority, and, unless".
1968—Pub. L. 90–632 substituted "military judge" for "law officer" and inserted reference to special court-martial.
Subsec. (a). Pub. L. 90–632 substituted reference to military judge for references to law officer and such law officer's requisite qualifications, inserted reference to special court-martial and regulations of the Secretary concerned governing the convening of a special court-martial, inserted provisions directing the military judge to preside over the open sessions of the court-martial to which he was assigned, and struck out provisions making law officers ineligible in a case in which he was the accuser or a witness for the prosecution or acted as investigating officer or as counsel.
Subsecs. (b) to (d). Pub. L. 90–632 added subsecs. (b) to (d). Former subsec. (b) redesignated as subsec. (e) and amended.
Subsec. (e). Pub. L. 90–632 redesignated former subsec. (b) as (e) and substituted "military judge" for "law officer" and struck out provision allowing consultation with members of the court on the form of the findings as provided in section 839 of this title (article 39).
Statutory Notes and Related Subsidiaries
Effective Date of 2016 Amendment
Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.
Effective Date of 1983 Amendment
Amendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, but not to affect the designation or detail of a military judge or military counsel to a court-martial before that date, see section 12(a)(1), (2) of Pub. L. 98–209, set out as a note under section 801 of this title.
Effective Date of 1968 Amendment
Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.
Statutory References to Law Officer Deemed References to Military Judge
Pub. L. 90–632, §3(a), Oct. 24, 1968, 82 Stat. 1343, provided that: "Whenever the term law officer is used, with reference to any officer detailed to a court-martial pursuant to section 826(a) (article 26(a)) of title 10, United States Code [subsec. (a) of this section], in any provision of Federal law (other than provisions amended by this Act [see Short Title of 1968 Amendment note set out under section 801 of this title] or in any regulation, document, or record of the United States, such term shall be deemed to mean military judge."
§826a. Art. 26a. Military magistrates
(a) Qualifications.—A military magistrate shall be a commissioned officer of the armed forces who—
(1) is a member of the bar of a Federal court or a member of the bar of the highest court of a State; and
(2) is certified to be qualified, by reason of education, training, experience, and judicial temperament, for duty as a military magistrate by the Judge Advocate General of the armed force of which the officer is a member.
(b) Duties.—In accordance with regulations prescribed by the Secretary concerned, in addition to duties when designated under section 819 or 830a of this title (article 19 or 30a), a military magistrate may be assigned to perform other duties of a nonjudicial nature.
(Added Pub. L. 114–328, div. E, title LV, §5185, Dec. 23, 2016, 130 Stat. 2901.)
Statutory Notes and Related Subsidiaries
Effective Date
Section effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. 13825, set out as notes under section 801 of this title.
§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, with respect to a case, has served as a preliminary hearing officer, court member, military judge, military magistrate, or appellate judge, may later serve 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, defense counsel, or assistant 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)(1) Defense counsel and assistant defense counsel detailed for a special court-martial shall have the qualifications set forth in subsection (b).
(2) Trial counsel and assistant trial counsel detailed for a special court-martial and assistant trial counsel detailed for a general court-martial must be determined to be competent to perform such duties by the Judge Advocate General, under such rules as the President may prescribe.
(d) To the greatest extent practicable, in any capital case, at least one defense counsel shall, as determined by the Judge Advocate General, be learned in the law applicable to such cases. If necessary, this counsel may be a civilian and, if so, may be compensated in accordance with regulations prescribed by the Secretary of Defense.
(e) For each general and special court-martial for which charges and specifications were referred by a special trial counsel—
(1) a special trial counsel shall be detailed as trial counsel; and
(2) a special trial counsel may detail other trial counsel as necessary who are judge advocates.
(Aug. 10, 1956, ch. 1041, 70A Stat. 46; Pub. L. 90–179, §1(5), Dec. 8, 1967, 81 Stat. 546; Pub. L. 90–632, §2(10), Oct. 24, 1968, 82 Stat. 1337; Pub. L. 98–209, §§2(d), 3(c)(2), Dec. 6, 1983, 97 Stat. 1393, 1394; Pub. L. 114–328, div. E, title LV, §5186, Dec. 23, 2016, 130 Stat. 2902; Pub. L. 117–81, div. A, title V, §535, Dec. 27, 2021, 135 Stat. 1696.)
The words, "detail" and "detailed" are substituted for the words "appoint" and "appointed" throughout the revised section, since the filling of the position involved is not appointment to an office in the constitutional sense.
In subsection (a), the word "and" is substituted for the words "together with". The word "considers" is substituted for the word "deems". The words "necessary or" are omitted as surplusage, since what is necessary is also appropriate. The word "may" is substituted for the word "shall". The word "later" is substituted for the word "subsequently".
In subsections (b) and (c), the word "must" is substituted for the word "shall", since the clauses prescribe conditions and not commands.
In subsection (b), the word "for" is substituted for the words "in the case of". The words "person * * * a person who is" are omitted as surplusage.
Editorial Notes
Amendments
2021—Subsec. (e). Pub. L. 117–81 added subsec. (e).
2016—Subsec. (a)(2). Pub. L. 114–328, §5186(1), substituted "No person who, with respect to a case, has served as a preliminary hearing officer, court member, military judge, military magistrate, or appellate judge, may later serve as trial counsel," for "No person who has acted as investigating officer, military judge, or court member in any case may act later as trial counsel,".
Subsec. (b). Pub. L. 114–328, §5186(2), substituted "Trial counsel, defense counsel, or assistant defense counsel" for "Trial counsel or defense counsel" in introductory provisions.
Subsecs. (c), (d). Pub. L. 114–328, §5186(3), added subsecs. (c) and (d) and struck out former subsec. (c) which read as follows: "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."
1983—Subsec. (a)(1). Pub. L. 98–209, §3(c)(2)(A), designated first sentence of existing provisions as par. (1), substituted provisions requiring that trial counsel and defense counsel be detailed for each general and special court-martial, and permitting the detailing of assistant trial counsel and assistant and associate defense counsel for each general and special court-martial for provisions requiring that for each general and special court-martial the authority convening the court had to detail trial counsel and defense counsel and such assistants as he considered appropriate, and inserted provision requiring the Secretary concerned to 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.
Subsec. (a)(2). Pub. L. 98–209, §3(c)(2)(B), designated existing provision, less first sentence, as par. (2) and substituted "assistant or associate defense counsel" for "assistant defense counsel".
Subsec. (b)(1). Pub. L. 98–209, §2(d)(1), substituted "judge advocate" for "judge advocate of the Army, Navy, Air Force, or Marine Corps or a law specialist of the Coast Guard,".
Subsec. (c)(3). Pub. L. 98–209, §2(d)(2), struck out ", or a law specialist," after "is a judge advocate".
1968—Subsec. (a). Pub. L. 90–632, §2(10)(A), substituted "military judge" for "law officer".
Subsec. (c). Pub. L. 90–632, §2(10)(B), redesignated former pars. (1) and (2) as pars. (2) and (3), respectively, and added par. (1).
1967—Subsec. (b)(1). Pub. L. 90–179 inserted reference to judge advocate of the Marine Corps and substituted reference to judge advocate of the Navy for reference to law specialist of the Navy.
Statutory Notes and Related Subsidiaries
Effective Date of 2021 Amendment
Amendment by Pub. L. 117–81 effective on the date that is two years after Dec. 27, 2021, and applicable with respect to offenses that occur after that date, with provisions for delayed effect and applicability if regulations are not prescribed by the President before the date that is two years after Dec. 27, 2021, see section 539C of Pub. L. 117–81, set out as a note under section 801 of this title.
Effective Date of 2016 Amendment
Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.
Effective Date of 1983 Amendment
Amendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, but amendment by section 3(c)(2) of Pub. L. 98–209 not to affect the designation or detail of a military judge or military counsel to a court-martial before that date, see section 12(a)(1), (2) of Pub. L. 98–209, set out as a note under section 801 of this title.
Effective Date of 1968 Amendment
Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.
Military Defense Counsel
Pub. L. 117–81, div. A, title V, §549D, Dec. 27, 2021, 135 Stat. 1726, provided that: "Each Secretary of a military department shall—
"(1) ensure that military defense counsel have timely and reliable access to and funding for defense investigators, expert witnesses, trial support, pre-trial and post-trial support, paralegal support, counsel travel, and other necessary resources;
"(2) ensure that military defense counsel detailed to represent a member of the Armed Forces accused of a covered offense (as defined in section 801(17) of title 10, United States Code (article 1(17) of the Uniform Code of Military Justice), as added by section 533 of this Act) are well-trained and experienced, highly skilled, and competent in the defense of cases involving covered offenses; and
"(3) take or direct such other actions regarding military defense counsel as may be warranted in the interest of the fair administration of justice."
Effective Prosecution and Defense in Courts-Martial and Pilot Programs on Professional Military Justice Development for Judge Advocates
Pub. L. 114–328, div. A, title V, §542, Dec. 23, 2016, 130 Stat. 2126, as amended by Pub. L. 115–91, div. A, title V, §532, Dec. 12, 2017, 131 Stat. 1388, provided that:
"(a) Program for Effective Prosecution and Defense.—The Secretary concerned shall carry out a program to ensure that—
"(1) trial counsel and defense counsel detailed to prosecute or defend a court-martial have sufficient experience and knowledge to effectively prosecute or defend the case or there is adequate supervision and oversight of trial counsel and defense counsel so detailed to ensure effective prosecution and defense in the court-martial; and
"(2) a deliberate professional developmental process is in place to ensure effective prosecution and defense in all courts-martial.
"(b) Military Justice Experience Designators or Skill Identifiers.—The Secretary concerned shall establish and use a system of military justice experience designators or skill identifiers for purposes of identifying judge advocates with skill and experience in military justice proceedings in order to ensure that judge advocates with experience and skills identified through such experience designators or skill identifiers are assigned to develop less experienced judge advocates in the prosecution and defense in courts-martial under a program carried out pursuant to subsection (a).
"(c) Use of Civilian Employees to Advise Less Experienced Judge Advocates in Prosecution and Defense.—The Secretary concerned may use highly qualified experts and other civilian employees who are under the jurisdiction of the Secretary concerned, are available, and are experienced in the prosecution or defense of complex criminal cases to provide assistance to, and consult with, less experienced judge advocates throughout the court-martial process.
"(d) Pilot Programs on Professional Developmental Process for Judge Advocates.—
"(1) Purpose.—The Secretary concerned shall carry out a pilot program to assess the feasibility and advisability of a military justice career track for judge advocates under the jurisdiction of the Secretary.
"(2) Additional matters.—A pilot program may also assess such other matters related to professional military justice development for judge advocates as the Secretary concerned considers appropriate.
"(3) Duration.—Each pilot program shall be for a period of five years.
"(4) Elements.—Each pilot program shall include the following:
"(A) A military justice career track for judge advocates that leads to judge advocates with military justice expertise in the grade of colonel, or in the grade of captain in the case of judge advocates of the Navy.
"(B) The use of skill identifiers to identify judge advocates for participation in the pilot program from among judge advocates having appropriate skill and experience in military justice matters.
"(C) Guidance for promotion boards considering the selection for promotion of officers participating in the pilot program in order to ensure that judge advocates who are participating in the pilot program have the same opportunity for promotion as all other judge advocate officers being considered for promotion by such boards.
"(D) Such other matters as the Secretary concerned considers appropriate.
"(5) Report.—Not later than four years after the date of the enactment of this Act [Dec. 23, 2016], the Secretary concerned shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report on the pilot programs conducted under this section. The report shall include the following:
"(A) A description and assessment of each pilot program.
"(B) Such recommendations as the Secretary considers appropriate in light of the pilot programs, including whether any pilot program should be extended or made permanent.
"(e) Secretary Concerned Defined.—In this section, the term 'Secretary concerned' has the meaning given that term in section 101(a)(9) of title 10, United States Code."
§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. This section does not apply to a military commission established under chapter 47A of this title.
(Aug. 10, 1956, ch. 1041, 70A Stat. 47; Pub. L. 109–366, §4(a)(2), Oct. 17, 2006, 120 Stat. 2631.)
The words "Secretary concerned" are substituted for the words "Secretary of the Department". The words, "detail or employ" are substituted for the word "appoint", since the filling of the position involved is not appointment to an office in the constitutional sense.
Editorial Notes
Amendments
2006—Pub. L. 109–366 inserted last sentence.
§829. Art. 29. Assembly and impaneling of members; detail of new members and military judges
(a) Assembly.—The military judge shall announce the assembly of a general or special court-martial with members. After such a court-martial is assembled, no member may be absent, unless the member is excused—
(1) as a result of a challenge;
(2) under subsection (b)(1)(B); or
(3) by order of the military judge or the convening authority for disability or other good cause.
(b) Impaneling.—(1) Under rules prescribed by the President, the military judge of a general or special court-martial with members shall—
(A) after determination of challenges, impanel the court-martial; and
(B) excuse the members who, having been assembled, are not impaneled.
(2) In a general court-martial, the military judge shall impanel—
(A) 12 members in a capital case; and
(B) eight members in a noncapital case.
(3) In a special court-martial, the military judge shall impanel four members.
(c) Alternate Members.—In addition to members under subsection (b), the military judge shall impanel alternate members, if the convening authority authorizes alternate members.
(d) Detail of New Members.—(1) If, after members are impaneled, the membership of the court-martial is reduced to—
(A) fewer than 12 members with respect to a general court-martial in a capital case;
(B) fewer than six members with respect to a general court-martial in a noncapital case; or
(C) fewer than four members with respect to a special court-martial;
the trial may not proceed unless the convening authority details new members and, from among the members so detailed, the military judge impanels new members sufficient in number to provide the membership specified in paragraph (2).
(2) The membership referred to in paragraph (1) is as follows:
(A) 12 members with respect to a general court-martial in a capital case.
(B) At least six but not more than eight members with respect to a general court-martial in a noncapital case.
(C) Four members with respect to a special court-martial.
(e) Detail of New Military Judge.—If the military judge is unable to proceed with the trial because of disability or otherwise, a new military judge shall be detailed to the court-martial.
(f) Evidence.—(1) In the case of new members under subsection (d), the trial may proceed with the new members present after the evidence previously introduced is read or, in the case of audiotape, videotape, or similar recording, is played, in the presence of the new members, the military judge, the accused, and counsel for both sides.
(2) In the case of a new military judge under subsection (e), the trial shall proceed as if no evidence had been introduced, unless the evidence previously introduced is read or, in the case of audiotape, videotape, or similar recording, is played, in the presence of the new military judge, the accused, and counsel for both sides.
(Aug. 10, 1956, ch. 1041, 70A Stat. 47; Pub. L. 90–632, §2(11), Oct. 24, 1968, 82 Stat. 1337; Pub. L. 98–209, §3(d), Dec. 6, 1983, 97 Stat. 1394; Pub. L. 107–107, div. A, title V, §582(c), Dec. 28, 2001, 115 Stat. 1124; Pub. L. 114–328, div. E, title LV, §5187, Dec. 23, 2016, 130 Stat. 2902.)
In subsections (a), (b), and (c), the word "may" is substituted for the word "shall".
In subsections (b) and (c), the word "details" is substituted for the word "appoints", since the filling of the position involved is not appointment to an office in the constitutional sense.
Editorial Notes
Amendments
2016—Pub. L. 114–328 amended section generally. Prior to amendment, section related to absent and additional members of a general or special court-martial.
2001—Subsec. (b). Pub. L. 107–107 designated existing provisions as par. (1), substituted "the applicable minimum number of members" for "five members" in two places, and added par. (2).
1983—Subsec. (a). Pub. L. 98–209 substituted "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" for "except for physical disability or as a result of a challenge or by order of the convening authority for good cause".
1968—Subsec. (a). Pub. L. 90–632, §2(11)(A), substituted "court has been assembled for the trial of the accused" for "accused has been arraigned".
Subsec. (b). Pub. L. 90–632, §2(11)(B), inserted reference to court-martial composed of a military judge alone, struck out reference to oath of members, and inserted provisions requiring that only the evidence which has been introduced before members of the court be read to the court and that all evidence, not merely testimony, be included.
Subsec. (c). Pub. L. 90–632, §2(11)(C), inserted reference to court-martial composed of a military judge alone, struck out reference to oath of members, and substituted evidence previously introduced for testimony of previously examined witnesses as the body of evidence which the verbatim record must cover.
Subsec. (d) Pub. L. 90–632, §2(11)(D), added subsec. (d).
Statutory Notes and Related Subsidiaries
Effective Date of 2016 Amendment
Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.
Effective Date of 2001 Amendment
Amendment by Pub. L. 107–107 applicable with respect to offenses committed after Dec. 31, 2002, see section 582(d) of Pub. L. 107–107, set out as a note under section 816 of this title.
Effective Date of 1983 Amendment
Amendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, see section 12(a)(1) of Pub. L. 98–209, set out as a note under section 801 of this title.
Effective Date of 1968 Amendment
Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.