§ 130.25 — Who may serve on courts-martial

New York § 130.25

• Jurisdiction: New York
• Law MIL: Military
• Part 5: Appointment and Composition of Courts-martial
• Art. 7: Code of Military Justice

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§ 130.25. Who may serve on courts-martial. (a) Any officer of or on\nduty with the organized militia shall be eligible to serve on all\ncourts-martial for the trial of any person who may lawfully be brought\nbefore such courts for trial.\n (b) Any warrant officer of or on duty with the organized militia shall\nbe eligible to serve on general and special courts-martial for the trial\nof any person, other than an officer, who may lawfully be brought before\nsuch courts for trial.\n (c) (1) Any enlisted person of the organized militia who is not a\nmember of the same unit as the accused shall be eligible to serve on\ngeneral and special courts-martial for the trial of any enlisted person\nwho may lawfully be brought before such courts for trial, but he shall\nserve as a member of a court only if, before the conclusion of a session\ncalled by the military judge under subdivision (a) of section 130.39 of\nthis chapter prior to trial or, in the absence of such a session, before\nthe court is assembled for the trial of the accused, the accused\npersonally has requested in writing that enlisted persons serve on it.\nAfter such a request, no enlisted person shall be tried by a general or\nspecial court-martial the membership of which does not include enlisted\npersons in a number comprising at least one-third of the total\nmembership of the court, unless eligible enlisted persons cannot be\nobtained on account of physical conditions or military exigencies. Where\nsuch persons cannot be obtained, the court may be convened and the trial\nheld without them, but the convening authority shall make a detailed\nwritten statement, to be appended to the record, stating why they could\nnot be obtained.\n (2) For the purposes of this section, the word "unit" shall mean a\nduly organized body of the organized militia not larger than a company,\na squadron, a division of the naval militia, or a body corresponding to\none of them.\n (d) (1) When it can be avoided, no person subject to this code shall\nbe tried by a court-martial any member of which is junior to him in rank\nor grade.\n (2) When convening a court-martial, the convening authority shall\nappoint as members thereof such persons as, in his opinion, are best\nqualified for the duty by reason of age, education, training,\nexperience, length of service, and judicial temperament. No person shall\nbe eligible to sit as a member of a general or special court-martial\nwhen he is the accuser or a witness for the prosecution or has acted as\ninvestigating officer or as counsel in the same case. If within the\ncommand of the convening authority there is present and not otherwise\ndisqualified an officer who is a member of the bar of this state and of\nappropriate rank, the convening authority shall appoint such officer as\npresident of a special court-martial; provided, however that although\nthis requirement shall be binding on the convening authority, failure to\nfollow it in any case shall not divest a military court of jurisdiction.\n