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

efore assembly, request orally on the record or in
writing that enlisted persons serve as members of
the general or special court-martial to which that
accused’s case has been or will be referred. If such a
request is made, an enlisted accused may not be
tried by a court-martial the membership of which
does not include enlisted members in a number comp
r i s i n g a t l e a s t o n e - t h i r d o f t h e t o t a l n u m b e r o f
members unless eligible enlisted members cannot be
obtained because of physical conditions or military
e x i g e n c i e s . I f t h e a p p r o p r i a t e n u m b e r o f e n l i s t e d
members cannot be obtained, the court-martial may
be assembled, and the trial may proceed without
them, but the convening authority shall make a det
a i l e d w r i t t e n e x p l a n a t i o n w h y e n l i s t e d m e m b e r s
could not be obtained which must be appended to
the record of trial.
Discussion
When such a request is made, the convening authority should:
(1) Detail an appropriate number of enlisted members to the
court-martial and, if appropriate, relieve an appropriate number of
commissioned or warrant officers previously detailed;
(2) Withdraw the charges from the court-martial to which
they were originally referred and refer them to a court-martial
which includes the proper proportion of enlisted members; or
(3) Advise the court-martial before which the charges are
then pending to proceed in the absence of enlisted members if
eligible enlisted members cannot be detailed because of physical
conditions or military exigencies.
See also R.C.M. 1103(b)(2)(D)(iii).
( 3 ) M e m b e r s f r o m a n o t h e r c o m m a n d o r a r m e d
force. A convening authority may detail as members
of general and special courts-martial persons under
that convening authority’s command or made available
by their commander, even if those persons are
members of an armed force different from that of
the convening authority or accused.
Discussion
Concurrence of the proper commander may be oral and need not
be shown by the record of trial.
Members should ordinarily be of the same armed force as
the accused. When a court-martial composed of members of different
armed forces is selected, at least a majority of the members
should be of the same armed force as the accused unless exigent
circumstances make it impractical to do so without manifest injury
to the service.
(b) Military judge.
R.C.M. 503(c)(3)
(1) By whom detailed. The military judge shall be
detailed, in accordance with regulations of the Secretary
concerned, by a person assigned as a military
judge and directly responsible to the Judge Advocate
General or the Judge Advocate General’s designee.
The authority to detail military judges may be delegated
to persons assigned as military judges. If authority
to detail military judges has been delegated
to a military judge, that military judge may detail
himself or herself as military judge for a court-martial.
(2) Record of detail. The order detailing a military
judge shall be reduced to writing and included
in the record of trial or announced orally on the
record at the court-martial. The writing or announcement
shall indicate by whom the military judge was
detailed. The Secretary concerned may require that
the order be reduced to writing.
(3) Military judge from a different armed force.
A military judge from one armed force may be det
a i l e d t o a c o u r t - m a r t i a l c o n v e n e d i n a d i f f e r e n t
armed force, a combatant command or joint command
when permitted by the Judge Advocate General
of the armed force of which the military judge
is a member. The Judge Advocate General may delegate
authority to make military judges available for
this purpose.
(c) Counsel.
(1) By whom detailed. Trial and defense counsel,
assistant trial and defense counsel, and associate defense
counsel shall be detailed in accordance with
regulations of the Secretary concerned. If authority
to detail counsel has been delegated to a person, that
person may detail himself or herself as counsel for a
court-martial.
(2) Record of detail. The order detailing a counsel
shall be reduced to writing and included in the
record of trial or announced orally on the record at
the court-martial. The writing or announcement shall
indicate by whom the counsel was detailed. The
Secretary concerned may require that the order be
reduced to writing.
(3) Counsel from a different armed force. A person
from one armed force may be detailed to serve
as counsel in a court-martial in a different armed
f o r c e , a c o m b a t a n t c o m m a n d o r j o i n t c o m m a n d
when permitted by the Judge Advocate General of
the armed force of which the counsel is a member.
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