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

App. 21, R.C.M. 502(a) APPENDIX 21
has both commissioned and warrant officers. 42 § 204 (Supp.
1981).
Subsection (2) and the discussion are based on paragraph 41 a
and b and the last paragraph of paragraph 53d of MCM, 1969
(Rev.). The admonition of MCM, 1969 (Rev.) that misconduct by
members may constitute an offense and that members should be
attentive and dignified has been deleted as unnecessary.
(b) President. Subsection (1) is based on paragraph 40 a of
MCM, 1969 (Rev.). Subsections (2)(A) and (B) are based on
paragraphs 40 b(1)(c) and (d) of MCM, 1969 (Rev.). Paragraphs
40 b(1) (a) and (b) are deleted. Paragraph 40 b(1)(a) conflicts
with the authority of the military judge under R.C.M. 801(a)(1).
Paragraph 40 b(1)(b) is unnecessary. Subsection (2)(c) is based on
paragraph 40 b(2) of MCM, 1969 (Rev.). The general description
of the duties of a president of a special court-martial without a
military judge in paragraph 40b(2) is deleted here. Such a summarized
description is an inadequate substitute for familiarity
with the rules themselves.
(c) Qualifications of military judge. This subsection and the discussion
are based on Article 26(b) and (c) and paragraph 4 e of
MCM, 1969 (Rev.). Reasons for disqualification are described in
R.C.M. 902.
1999 Amendment: R.C.M. 502(c) was amended to delete the
requirement that military judges be “on active duty” to enable
Reserve Component judges to conduct trials during periods of
inactive duty for training (IDT) and inactive duty training travel
(IATT). The active duty requirement does not appear in Article
26, UCMJ which prescribes the qualifications for military judges.
It appears to be a vestigial requirement from paragraph 4 e of the
1951 and 1969 MCM. Neither the current MCM nor its predecessors
provide an explanation for this additional requirement. It was
deleted to enhance efficiency in the military justice system.
(d) Counsel. Subsection (1) is based on Article 27(b) and paragraph
6 of MCM, 1969 (Rev.). The possibility of detailing associate
counsel has been added based on the amendment of Article
27(a) and 42(a). See Military Justice Act of 1983, Pub.L. No.
98–209, § 3(c), (f), 97 Stat. 1393 (1983). As the discussion indicates,
“associate counsel” ordinarily refers to detailed counsel
when the accused has military or civilian counsel. See Article
38(b)(6). An associate defense counsel must be qualified to act as
defense counsel. An assistant defense counsel need not be. One
o t h e r s u b s t a n t i v e c h a n g e f r o m M C M , 1 9 6 9 ( R e v . ) . h a s b e e n
made. Detailed defense counsel in special courts-martial must be
certified by the Judge Advocate General concerned although this
is not required by Article 27(c). Article 27(c) permits representation
of an accused by a counsel not qualified and certified under
Article 27(b) if the accused does not request qualified counsel,
having been given the opportunity to do so, or when such counsel
cannot be obtained on account of physical conditions or military
exigencies. In the latter event, no bad-conduct discharge may be
adjudged. Article 19. Currently, certified counsel is routinely provided
in all special courts-martial, so the modification of the rule
will not change existing practice. Moreover, the enforcement of
waiver provisions in these rules and the Military Rules of Evidence
necessitate, both for fairness and the orderly administration
of justice, that the accused be represented by qualified counsel.
See also United States v. Rivas, 3 M.J. 282 (C.M.A. 1977).
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Because of this rule, the rule of equivalency in Article 27(c) and
(3) is not necessary.
Subsection (2) is based on the fifth sentence of the first paragraph
of paragraph 6 c of MCM, 1969 (Rev.).
Subsection (3) is based on the first sentence of the second
p a r a g r a p h o f p a r a g r a p h 4 8 a o f M C M , 1 9 6 9 ( R e v . ) a n d o n
Soriano v. Hosken, 9 M.J. 221 (C.M.A. 1980); United States v.
Kraskouskas, 9 U.S.C.M.A. 607, 26 C.M.R. 387 (1958). The
discussion is taken from Soriano v. Hosken, supra.
Subsection (4) is based on Article 27(a) and on the fourth and
fifth sentences of paragraph 6 a of MCM, 1969 (Rev.). See also
United States v. Catt, 1 M.J. 41 (C.M.A. 1975). The accuser has
been added to the list of disqualifications. See ABA Standards,
The Prosecution Function , §§ 3–1(c); 3–3.9(c)(1979).
Subsection (5) is based on paragraph 44 d and 45 a of MCM,
1969 (Rev.) and on Article 38(d). The forum-based distinction as
to the powers of an assistant trial counsel has been deleted. The
trial counsel is responsible for the prosecution of the case. R.C.M.
805(c) requires the presence of a qualified trial counsel at general
courts-martial. The discussion is based on paragraphs 44 e, f, g,
and h of MCM, 1969 (Rev.). Some of the specific duties are now
covered in other rules, e.g., R.C.M. 701; 812, 813; 914; 919.
Some examples and explanations have been deleted as unnecessary.
The first sentence of subsections (6) is new. Cf. paragraphs 46
d and 48 c of MCM, 1969 (Rev.). The second sentence of subsection
(6) is based on Article 38(e). The rule does not require that
defense counsel in the court-martial represent the accused in administrative
or civil actions arising out of the same offenses. The
discussion is based on paragraphs 46 d, 47, and 48 c, d, e, f, g, h,
j, and k of MCM, 1969 (Rev.). The matters covered in paragraph
48 k(2) and (3) of MCM, 1969 (Rev.) are modified in the discussion
based on the amendment of Articles 38(c) and 61. See
Military Justice Act of 1983, Pub.L. No. 98–209, §§ 3(e)(3),
5(b)(1), 97 Stat. 1393 (1983). See R.C.M. 1105; 1110. As to
associate counsel, see the Analysis subsection (d)(1) of this rule.
See also United States v. Breese, 11 M.J. 17, 22 n. 13 (C.M.A.
1981); United States v. Rivas, supra; United States v. Palenius, 2
M.J. 86 (C.M.A. 1977); United States v. Goode, 1 M.J. 3 (C.M.A.
1975).
(e) Interpreters, reporters, escorts, bailiffs, clerks, and guards.
This subsection is based on paragraphs 7, 49, 50, and 51 of
MCM, 1969 (Rev.). The list of disqualifications, except for the
accuser, is new and is intended to prevent circumstances which
may detract from the integrity of the court-martial.
(f) Action upon discovery of disqualification or lack of qualification.
This subsection is based on paragraphs 41 c, 44 b, 46 b of
MCM, 1969 (Rev.).
Rule 503 Detailing members, military judge, and
counsel
(a) Members. Subsection (1) is based on Article 25. Because of
the amendment of Articles 26 and 27, the convening authority is
no longer required to detail personally the military judge and
counsel. Military Justice Act of 1983, Pub.L. No. 98–209, § 3(c),
97 Stat. 1393 (1983). The last sentence of paragraph 4 b of
MCM, 1969 (Rev.) is deleted as unnecessary. The second paragraph
in the discussion serves the same purpose as the third
paragraph of paragraph 4 b of MCM, 1969 (Rev.): to alert the