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Enlisted members—An enlisted accused has a
right to be tried by a court consisting of at least
one-third enlisted members. The accused desiring en-
listed membership submits a personally signed re-
quest before the conclusion of any Article 39(a),
UCMJ, session (pretrial hearing), or before the assem-
bly of the court at trial, or makes the request orally on
the record. Only enlisted persons who are not of the
same unit as the accused can lawfully be assigned to
the court. Unit means company, squadron, battery,
ship, or similar sized element,
If, when requested, enlisted members cannot be
detailed to the court, the CA may direct the original
court to proceed with the trial. Such actions should
only be taken when enlisted service members cannot
be assigned because of extraordinary circumstances.
In such a case, the CA sends to the TC for attachment
to the record of trial, a detailed explanation of the
extraordinary circumstances and why the trial must
proceed without enlisted members.
QUALIFICATIONS OF THE
MILITARY JUDGE
The military judge of an SPCM must be a com-
missioned officer, a member of the bar of the highest
court of any state or the bar of a federal court, and
certified by the Judge Advocate General as qualified
to be a military judge. A military judge qualified to act
on GCM cases can also act on SPCM cases.
QUALIFICATIONS OF COUNSEL
Articles 19 and 38, UCMJ, describe the accused’s
right to counsel at SPCMs. Article 27, UCMJ, sets
forth the qualifications for counsel.
Trial Counsel
The TC in military criminal law serves as the
prosecutor. For an SPCM, the TC need only be a
commissioned officer.
Defense Counsel
There are various types of defense counsel (DC)
in military practice. The detailed DC is the DC in-
itially assigned to the case. Individual counsel is a
counsel requested by the accused and can be a civilian
or military lawyer.
DETAILED DEFENSE COUNSEL.— Article
27(c), UCMJ, describes the qualifications for detailed
DCs at SPCMs. An Article 27(b) DC is detailed at no
cost to the accused unless, due to military exigencies
or physical conditions, one cannot be obtained.
The protection given to an accused by Article
27(c) is expanded in that it requires Article 27(b)
counsel to be detailed as detailed DCs in SPCMs.
INDIVIDUAL COUNSEL.— The term individ-
ual counsel is used to refer to a counsel specifically
requested by an accused. Such counsel may be mili-
tary or civilian.
CIVILIAN COUNSEL.— At any SPCM, the ac-
cused has the right to be represented by civilian coun-
sel provided by him or her at his or her own expense.
When the accused retains such counsel, the detailed
DC remains to assist the individual counsel unless
expressly excused by the accused. The accused is
entitled to a reasonable delay before trial for the pur-
pose of obtaining and consulting with civilian indi-
vidual counsel.
INDIVIDUAL MILITARY COUNSEL.— At
an SPCM, the accused has the right to be represented
by a military counsel of his or her own choice at no
cost to the accused if such counsel is reasonably avail-
able.
No Defense Counsel
An accused has the right to represent himself
herself at an SPCM without assistance of counsel.
REFERRAL OF CHARGES
or
The process of referring a given case to trial by
SPCM is essentially the same as that for referral to an
SCM. Thus, the principles that apply to the prelimi-
nary inquiry, preferral of charges, informing the ac-
cused, and receipt of sworn charges also apply to the
SPCM. As far as the referral process is concerned, the
only essential difference between the referral of an
SCM and an SPCM is the information contained in
block 14 on page 2 of the charge sheet.
Referral to Trial
If, after reviewing the applicable evidence, the
CA determines that trial by SPCM is warranted, he or
she executes Part V of the charge sheet in the proper
manner. In addition to the command data entered on
the appropriate lines of block 14, the CA indicates the
type of court-martial to which the case is being
referred, the particular SPCM to which the case is
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