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(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 of an armed force on active duty who is not a
member of the same unit as the accused is eligible to serve on general
and special courts-martial for the trial of any enlisted member of
an armed force who may lawfully be brought before such courts for
trial, but he shall serve as a member of a court only if, before
the conclusion of a session called by the military judge under section
839(a) of this title (article
39(a)) prior to trial or, in the absence
of such a session, before the court is assembled for the trial of
the accused, the accused personally has requested orally on the record
or in writing that enlisted members serve on it. After such a request,
the accused may not be tried by a general or special courts-martial
the membership of which does not include enlisted members in a number
comprising at least one-third of the total membership of the court,
unless eligible enlisted members cannot be obtained on account of
physical conditions or military exigencies. If such members cannot
be obtained, the court may be assembled and the trial held without
them, but the convening authority shall make a detailed written statement,
to be appended to the record, stating why they could not be obtained.
(2)
In this article, "unit" means any regularly organized body as defined
by the Secretary concerned, but in no case may it be a body larger
than a company, squadron, ship's crew, or body corresponding to one
of them.
(d)
(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 member 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 investigating officer or as counsel in
the same case.
(e)
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.
Next Article > ART.
26. MILITARY JUDGE OF A GENERAL OR SPECIAL COURT-MARTIAL
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