2008 edition - Fort Sam Houston - U.S. Army

eviewing authority with respect to such authority’s
judicial acts.
(3) Exceptions.
(A) Instructions. Subsections (a)(1) and (2) of
the rule do not prohibit general instructional or inf
o r m a t i o n a l c o u r s e s i n m i l i t a r y j u s t i c e i f s u c h
courses are designed solely for the purpose of instructing
personnel of a command in the substantive
and procedural aspects of courts-martial.
( B ) C o u r t - m a r t i a l s t a t e m e n t s . S u b s e c t i o n s
(a)(1) and (2) of this rule do not prohibit statements
and instructions given in open session by the military
judge or counsel.
( C ) P r o f e s s i o n a l s u p e r v i s i o n . S u b s e c t i o n s
(a)(1) and (2) of this rule do not prohibit action by
t h e J u d g e A d v o c a t e G e n e r a l c o n c e r n e d u n d e r
R.C.M. 109.
(D) Offense. Subsection (a)(1) and (2) of this
rule do not prohibit appropriate action against a person
for an offense committed while detailed as a
military judge, counsel, or member of a court-martial,
or while serving as individual counsel.
(b) Prohibitions concerning evaluations.
(1) Evaluation of member or defense counsel. In
the preparation of an effectiveness, fitness, or efficiency
report or any other report or document used
in whole or in part for the purpose of determining
whether a member of the armed forces is qualified
to be advanced in grade, or in determining the ass
i g n m e n t o r t r a n s f e r o f a m e m b e r o f t h e a r m e d
forces, or in determining whether a member of the
armed forces should be retained on active duty, no
person subject to the code may:
(A) Consider or evaluate the performance of
duty of any such person as a member of a courtmartial;
or
(B) Give a less favorable rating or evaluation
of any defense counsel because of the zeal with
which such counsel represented any accused.
(2) Evaluation of military judge.
(A) General courts-martial. Unless the general
court-martial was convened by the President or the
Secretary concerned, neither the convening authority
nor any member of the convening authority’s staff
may prepare or review any report concerning the
effectiveness, fitness, or efficiency of the military
judge detailed to a general court-martial, which relates
to the performance of duty as a military judge.
R.C.M. 106
(B) Special courts-martial. The convening authority
may not prepare or review any report concerning
the effectiveness, fitness, or efficiency of a
m i l i t a r y j u d g e d e t a i l e d t o a s p e c i a l c o u r t - m a r t i a l
which relates to the performance of duty as a milit
a r y j u d g e . W h e n t h e m i l i t a r y j u d g e i s n o r m a l l y
rated or the military judge’s report is reviewed by
the convening authority, the manner in which such
military judge will be rated or evaluated upon the
performance of duty as a military judge may be as
prescribed in regulations of the Secretary concerned
which shall ensure the absence of any command
influence in the rating or evaluation of the military
judge’s judicial performance.
Discussion
See paragraph 22 of Part IV concerning prosecuting violations of
Article 37 under Article 98.
Rule 105. Direct communications:
convening authorities and staff judge
advocates; among staff judge advocates
(a) Convening authorities and staff judge advocates.
Convening authorities shall at all times communicate
directly with their staff judge advocates in matters
relating to the administration of military justice.
(b) Among staff judge advocates and with the Judge
Advocate General. The staff judge advocate of any
command is entitled to communicate directly with
the staff judge advocate of a superior or subordinate
command, or with the Judge Advocate General.
Discussion
See R.C.M. 103(17) for a definition of staff judge advocate.
Rule 106. Delivery of military offenders to
civilian authorities
Under such regulations as the Secretary concerned
may prescribe, a member of the armed forces accused
of an offense against civilian authority may be
delivered, upon request, to the civilian authority for
trial. A member may be placed in restraint by military
authorities for this purpose only upon receipt of
a duly issued warrant for the apprehension of the
member or upon receipt of information establishing
probable cause that the member committed an offense,
and upon reasonable belief that such restraint
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