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. |
| 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. |
Amendments
2017—
2016—
2001—
1968—
§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;
(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.
(Aug. 10, 1956, ch. 1041,
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 822(a) 822(b) |
50:586(a). 50:586(b). |
May 5, 1950, ch. 169, §1 (Art. 22), |
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
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".
Amendments
2016—Subsec. (a)(6).
2006—Subsec. (a)(5).
1986—Subsec. (a)(2) to (9).
Effective Date of 2016 Amendment
Amendment by
Training for Sexual Assault Initial Disposition Authorities on Exercise of Disposition Authority for Sexual Assault and Collateral Offenses
"(a)
"(b)
§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.
(Aug. 10, 1956, ch. 1041,
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 823(a) 823(b) |
50:587(a). 50:587(b). |
May 5, 1950, ch. 169, §1 (Art. 23), |
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".
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
§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.
(Aug. 10, 1956, ch. 1041,
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 824(a) 824(b) |
50:588(a). 50:588(b). |
May 5, 1950, ch. 169, §1 (Art. 24), |
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".
§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 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.
(2) 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
(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
(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 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 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
(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 his authority under this subsection to his staff judge advocate or legal officer or to any other principal assistant.
(Aug. 10, 1956, ch. 1041,
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 825(a) 825(b) |
50:589(a). 50:589(b). |
May 5, 1950, ch. 169, §1 (Art. 25), |
| 825(c) | 50:589(c). | |
| 825(d) | 50:589(d). |
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".
Amendments
2016—Subsec. (c).
Subsec. (d).
Subsec. (e).
Subsec. (e)(2).
Subsec. (e)(3).
Subsec. (f).
1986—Subsec. (c)(1).
1983—Subsec. (c)(2).
Subsec. (e).
1968—Subsec. (c)(1).
Effective Date of 2016 Amendment
Amendment by
Effective Date of 1986 Amendment
Title VIII of
Effective Date of 1983 Amendment
Amendment by section 13(c) of
Effective Date of 1968 Amendment
Amendment by
§825a. Art. 25a. Number of court-martial members in capital cases
(a)
(b)
(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
Amendments
2016—
Effective Date of 2016 Amendment
Amendment by
Effective Date
Section applicable with respect to offenses committed after Dec. 31, 2002, see section 582(d) of
§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 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
(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,
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 826(a) 826(b) |
50:590(a). 50:590(b). |
May 5, 1950, ch. 169, §1 (Art. 26), |
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".
Amendments
2016—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (f).
Subsec. (g).
1983—Subsec. (a).
Subsec. (c).
1968—
Subsec. (a).
Subsecs. (b) to (d).
Subsec. (e).
Effective Date of 2016 Amendment
Amendment by
Effective Date of 1983 Amendment
Amendment by
Effective Date of 1968 Amendment
Amendment by
Statutory References to Law Officer Deemed References to Military Judge
§826a. Art. 26a. Military magistrates
(a)
(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)
(Added
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
§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.
(Aug. 10, 1956, ch. 1041,
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 827(a) 827(b) |
50:591(a). 50:591(b). |
May 5, 1950, ch. 169, §1 (Art. 27), |
| 827(c) | 50:591(c). |
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.
Amendments
Subsec. (a)(2).
Subsec. (b).
Subsecs. (c), (d).
"(1) the accused shall be afforded the opportunity to be represented at the trial by counsel having the qualifications prescribed under
"(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).
Subsec. (a)(2).
Subsec. (b)(1).
Subsec. (c)(3).
1968—Subsec. (a).
Subsec. (c).
1967—Subsec. (b)(1).
Effective Date of 2016 Amendment
Amendment by
Effective Date of 1983 Amendment
Amendment by
Effective Date of 1968 Amendment
Amendment by
Effective Prosecution and Defense in Courts-Martial and Pilot Programs on Professional Military Justice Development for Judge Advocates
"(a)
"(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)
"(c)
"(d)
"(1)
"(2)
"(3)
"(4)
"(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)
"(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)
§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
(Aug. 10, 1956, ch. 1041,
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 828 | 50:592. | May 5, 1950, ch. 169, §1 (Art. 28), |
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.
Amendments
2006—
§829. Art 29. Assembly and impaneling of members; detail of new members and military judges
(a)
(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)
(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)
(d)
(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)
(f)
(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,
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 829(a) 829(b) |
50:593(a). 50:593(b). |
May 5, 1950, ch. 169, §1 (Art. 29), |
| 829(c) | 50:593(c). |
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.
Amendments
2016—
2001—Subsec. (b).
1983—Subsec. (a).
1968—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d)
Effective Date of 2016 Amendment
Amendment by
Effective Date of 2001 Amendment
Amendment by
Effective Date of 1983 Amendment
Amendment by
Effective Date of 1968 Amendment
Amendment by