38-2-1025. Eligibility to serve on courts-martial.

For purposes of this Code section, the term ‘‘unit’’ means any regularly organized body of the organized militia not larger than a company, a squadron, a division of the naval militia, or a body corresponding to one of them.#

Any commissioned officer of the organized militia shall be eligible to serve on all courts-martial for the trial of any person who is subject to this article.#

Any warrant officer of the organized militia shall be eligible to serve on general and special courts-martial for the trial of any person who is subject to this article, other than a commissioned officer.#

Any enlisted member of the organized militia who is not a member of the same unit as the accused shall be eligible to serve on general and special courts-martial for the trial of any enlisted member who is subject to this article, but such enlisted member shall serve as a member of a court only if, before the conclusion of a session called by the military judge under Code Section 38-2-1039 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 shall not be tried by a general or special court-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 shall be assembled and the trial held without such enlisted members, but the convening authority shall make a detailed written statement, to be appended to the record, stating why such number of enlisted members could not be obtained.#

No person who is subject to this article shall be tried by a court-martial any member of which is junior to the accused in rank or grade.#

When convening a court-martial, the convening authority shall detail as members thereof such members of the organized militia as, in the convening authority’s opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No member of the organized militia shall be eligible to serve as a member of a general or special court-martial when that member is the accuser, a witness, or has acted as investigating officer or as counsel in the same case.#

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. The convening authority may delegate the authority under this subsection to a judge advocate or to any other principal assistant.#