§ 39A-5-208 — Individuals who may serve on a military court.

(1) A commissioned officer off or on duty with the National Guard may serve on a military court for the trial of any individual brought before the court for trial.
(2) A warrant officer off or on duty with the National Guard may serve on a military court for the trial of any individual, other than a superior commissioned officer, who is brought before the court for trial.
(3) (3)(a) An enlisted member of the National Guard who is not a member of the same unit as the accused may serve on a military court for the trial of any enlisted member brought before the court for trial.
(3)(b) However, an enlisted member may serve as a member of a court only if before the conclusion of a session called by the court under Section 39A-5-216, or in the absence of the session, before the court is assembled for the trial of the accused, the accused personally has requested in writing that enlisted members serve on the court.
(3)(c) If the request is made under Subsection (3)(b), the accused may not be tried by the military court when enlisted members comprise less than 1/2 of the total membership of the court, unless eligible members cannot be obtained on account of physical conditions or military exigencies.
(3)(d) If eligible members cannot be obtained, the court may be assembled and trial held without them, but the convening authority shall make a detailed written explanation of why eligible members could not be obtained. This statement shall be appended to the court record.
(4) (4)(a) An individual subject to this chapter may be tried by a military court, but no member of the court may be junior to the individual in rank or grade.
(4)(b) When a military court is convened, the convening authority shall detail as members of the court individuals who are best qualified for the duty by age, education, training, experience, length of service, and judicial temperament.
(4)(c) A member is not eligible to serve as a member of a military court if the member:
(4)(c)(i) is the accuser in the case;
(4)(c)(ii) is a witness in the case;
(4)(c)(iii) has acted as investigating officer in the case; or
(4)(c)(iv) has acted as counsel in the case.
(5) An action or proceeding may not be prosecuted or maintained against a convening authority, member of a military court, or individual acting under the court's authority or reviewing the court's proceedings because of:

(5)(a) the imposition, approval, or execution of any sentence;
(5)(b) the imposition or collection of a fine or penalty; or
(5)(c) the execution of any warrant, writ, execution, process, or mandate of a military court.

Legislative History

Renumbered and Amended by Chapter 373, 2022 General Session