SELECTING COURT-MARTIAL MEMBERS

In the military justice system, the Convening Authority is responsible for personally selecting Members to serve on a
court-martial panel. Article 25 of the UCMJ directs the Convening Authority to select those who, in his or her opinion,
“are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial
temperament.”
Convening Authorities are accorded broad discretion when a court-martial panel is selected in accordance with the rules
below. These rules ensure an accused is provided “both (1) a fair panel and (2) the appearance of a fair panel.”

RULES FOR SELECTING COURT-MARTIAL MEMBERS

The Convening Authority MUST:

 Consider all unit personnel equal to (by date of rank) or senior in grade to the accused when selecting a panel.
A Convening Authority may ultimately select a panel consisting of only senior personnel, but only after considering
all members of the unit equal to (by date of rank) or senior in grade to the accused and applying the Article 25 criteria.
 Personally select all Members.
 Select Members best qualified for the duty by age, education, training, experience, length of service, and judicial
temperament (Article 25 criteria).
 When requested by the accused, ensure 1/3 enlisted representation on the panel.

The Convening Authority MAY:

 Consider race and gender of Members for the purpose of inclusivity (e.g. detailing a Member so that:
o the court-martial panel is representative of the accused’s race or gender and/or
o the court-martial panel is representative of the military population).
 Request commanders of external and subordinate units nominate personnel for consideration (e.g. the accused is an
E-8 and the unit has a limited number of personnel senior to the accused).

The Convening Authority MAY NOT:

 Exclude any potential Members (all unit personnel equal to (by date of rank) or senior in grade to the accused) from
consideration based solely on rank (e.g. “I only want to consider questionnaires from field grade officers and E-9s”).
 Delegate the authority to select Members.
 Select Members to achieve a specific result (e.g. “stacking” a panel with one gender in a sexual assault case).
 Select a Member based on the individual being a “volunteer.”
 Select a Member who personally nominated another Member detailed to the case (e.g. a Squadron Commanding
Officer personally identifies and nominates Senior Chief X from his or her unit for consideration by the Convening
Authority. Either, but not both, may be detailed).
 Select a Member who is a government witness; counsel in the case; the Article 32 Preliminary Hearing Officer, or
accuser (the individual who preferred a charge or directed someone else to prefer a charge, or any person who has an
interest other than an official interest in the case).

Encl: (1) Guide for Legal Officers

(2) Case law summaries for Commander & SJA discussions
O

Prepared by: Navy OJAG (Code 20-Criminal Law), Marine Corps Judge Advocate Division, and Coast
Guard Office of Military Justice (CG-LMJ), October 2020
 GUIDE FOR LEGAL OFFICERS

Member Questionnaires. Uniformed members should complete a Member questionnaire when they check in. Questionnaires should
be maintained by the administrative or legal department for the duration of a member’s tour. Special care must be taken to protect the
sensitive information contained in the questionnaires. Requiring every new member to complete a questionnaire ensures an informed
and robust pool from which a Convening Authority may choose court-martial Members.

Selecting Members. Convening Authorities should:

 Pull a roster utilizing FLTMPS of all personnel equal to (by date of rank) or senior in grade to the accused in the unit with the
following information:

Name; Paygrade; Date of Birth; Armed Forces Active Duty Base Date; MOS; and Education Level.

 When necessary, task subordinate units to nominate personnel and submit completed Members questionnaires for consideration
by the Convening Authority OR request additional Member nominations and questionnaires from outside the command IAW
RCM 503(a)(3) [see sample request and response below].

Typically, tasking to subordinate units should result in five nominated members per paygrade senior to the accused. But
BEWARE of “volunteerism.” Ensure that the subordinate or outside command does not nominate Members who specifically
volunteered for court-martial service. Instead, Members should be nominated based solely on the Article 25, UCMJ, criteria.

In cases in which the operational General Court-Martial Convening Authority (GCMCA) has declined a case under
JAGMAN 0128, the Regional Commander may request the operational GCMCA nominate Members to the Regional
Commander should he or she decide to refer the case to court-martial.

 Prepare a memorandum documenting the Member selection process [see sample memorandum below].

The memorandum should include a roster of all unit personnel eligible to serve as a member; a list of nominees considered by
the Convening Authority; and all Member questionnaires considered by the Convening Authority.

 Detail enough members to increase the likelihood of meeting membership requirements.

General courts-martial (GCM) consist of eight Members; special courts-martial (SPCM) consist of four Members; and either
forum must have at least 1/3 enlisted Member representation when requested by an enlisted accused. The best practice is to
detail as many as double the number of Members as required; so, for example, the CA should consider appointing as many as
sixteen Members to a GCM.

 At the beginning of each new calendar year, the Convening Authority should prepare a standing court-martial convening order.

All new cases arising during the calendar year are referred to this standing order. The standing order will ordinarily be
modified for specific courts-martial to reflect forum elections by the accused and current command membership. For
example, when an accused elects to be tried by Members (vice a Military Judge), the standing order will be modified (or
amended) to account for the unavailability of previously detailed Members and to ensure enlisted representation when
requested by an enlisted accused.

The modified (or amended) court-martial convening order should clearly (1) remove personnel from the initial court-martial
order who will not participate in the court-martial; (2) add new personnel to the court-martial panel; and (3) recap the final
panel (both existing and new Members) who will actually participate in the court-martial.

Be careful to ensure that the convening order correctly sites its source of authority: JAGMAN Sec. 0120a for GCM and Sec.
0120b for SPCM.

[See sample convening order and amending order below.]

NOTE: All correspondence, including emails, that relate to the selection of Members may be provided to defense counsel and
reviewed by the Military Judge to ensure a fair and impartial selection process.

Encl (1)
Sample Memorandum to Solicit Nominees from Subordinate Commands

Sample Memorandum to Solicit Nominees from Subordinate / Outside Commands

From: Commander, Navy Region Mid-Atlantic

To: Commander, Carrier Strike Group TWO
Commanding Officer, USS GEORGE H.W. BUSH (CVN 77)
Commanding Officer, Naval Station Norfolk

Subj: NOMINATIONS FOR COURT-MARTIAL SERVICE

Ref: (a) Article 25, UCMJ (2019 edition)

Encl: (1) Member Questionnaire

1. A court-martial is scheduled for [DATE]. I request you nominate personnel for consideration as court-martial
Members, in accordance with the guidance below.

2. Commanders and Commanding Officers must personally nominate only those personnel who are best qualified for
court-martial membership "by reason of age, education, training, experience, length of service, and judicial temperament."
[Art. 25, UCMJ].

3. I request you nominate personnel as follows:

a. CSG-2: (1) O-4; (2) O-3; (3) O-2 or O-1; (1) E-8; (1) E-7; (2) E-6; (3) E-4; (2) E-3

b. USS BUSH: (1) O-4; (1) O-3; (1) O-2 or O-1; (3) E-7; (2) E-5; and (3) E-3 equal to or senior by date of rank.

c. NS Norfolk: (1) O-4; (2) O-3; (1) E-9; (1) E-8; (3) E-6; (2) E-5; (2) E-4

4. Only the Commander or Commanding Officer may determine that an individual is not available for consideration.
Under no circumstances may the command ask personnel whether they would like to be selected for the duty, and may
neither solicit nor accept volunteers. Should a nominated Service member be detailed to the court-martial but later receive
PCS, TAD, or other official orders affecting availability to serve, the command should nominate at least three additional
nominees and forward completed Member Questionnaires to the Region Mid-Atlantic Staff Judge Advocate.

5. Commands are requested to submit a list of nominees and completed copies of the enclosed Member Questionnaire to
the Region Mid-Atlantic Staff Judge Advocate by [DATE].

N-1
By direction

Encl (1)
Memorandum to Solicit Nominees from Subordinate Commands

Sample Response Memorandum from Subordinate / Outside Commands

From: Commander, Carrier Strike Group TWO

To: Commander, Navy Region Mid-Atlantic

Subj: NOMINATIONS FOR COURT-MARTIAL SERVICE

Ref: (a) Your memo of XXXX

(b) Article 25, UCMJ (2019 edition)

Encl: (1) Member Questionnaire

1. In accordance with reference (a), I nominate the following personnel for consideration as court-martial
Members:

a. LCDR X. X. XXX, USN, [contact info];

b. LT X. X. XXX, USN, [contact info]
c. LT X. X. XXX, USN, [contact info]
d. LTJG X. X. XXX, USN, [contact info]
e. LTJG X. X. XXX, USN, [contact info]
f. ENS X. X. XXX, USN, [contact info];
g. YNCS X. X. XXX, USN, [contact info];
h. DCC X. X. XXX, USN, [contact info];
i. BM1 X. X. XXX, USN, [contact info];
j. EM1 X. X. XXX, USN, [contact info];
k. CTI3 X. X. XXX, USN, [contact info];
l. EN3 X. X. XXX, USN, [contact info];
m. FC3 X. X. XXX, USN, [contact info];
n. FN X. X. XXX, USN, [contact info]; and
o. LS X. X. XXX, USN, [contact info].

2. Pursuant to reference (b), I have nominated only those personnel who are best qualified for court-martial
membership "by reason of age, education, training, experience, length of service, and judicial temperament."

3. My point of contact for this matter is the Legal Officer, [contact info].

Rear Admiral, U.S. Navy

Encl (1)
 Sample Memorandum on Members Selection

From: Legal Officer (or Staff Judge Advocate)

To: (Convening Authority Title)

Subj: MODIFICATION OF COURT-MARTIAL CONVENING ORDER 1-20 FOR THE SPECIAL/GENERAL

COURT-MARTIAL OF PO2 SAILOR, USN

Ref: (a) Article 25, UCMJ (2019 edition)

Encl: (1) Roster of Unit Personnel Eligible to Serve as Court-Martial Members

(2) List of Nominees
(3) Members Questionnaires for Consideration

1. AD2 Sailor has elected to be tried by Members with enlisted representation. Therefore, you are required to modify
your standing court-martial convening order. Additionally, LCDR XXX, an officer detailed to your standing court-martial
panel, has changed duty stations and should be replaced.

2. Pursuant to reference (a), you are required to personally select Members who, in your opinion, are “best qualified” by
reason of “age, education, training, experience, length of service and judicial temperament.”

3. In making your decision, you must consider all unit personnel equal to (by date of rank) senior in grade to the accused.
You may not select Members to achieve a specific result in the case. Additionally, personnel who volunteer to serve as a
Member may not be selected.

4. Enclosure (1) is a roster of all rank-eligible personnel in your command. Enclosure (2) is a list of personnel nominated
by subordinate and/or alternate units for your consideration. I have reviewed the questionnaires in enclosure (3) and note no
obvious conflicts. You may select from enclosure (1), enclosure (2), or direct additional questionnaires be provided for
your consideration.

5. [**For a general court-martial in which enlisted representation has been requested, there must be eight (8) Members
remaining after challenges, at least three (3) of whom are enlisted. Therefore, I recommend you select at least sixteen (16)
Members, eight (8) of whom are enlisted.] Please indicate your selections on enclosure (2) by either initialing next to the
names or by writing-in the names of other personnel in the blank spaces at the bottom of the page.

6. I recommend you authorize me to excuse up to 1/3 of the Members, should they become unavailable before the court-
martial begins. Additionally, I recommend you authorize the military judge to impanel up to three (3) alternates.

[**For a special court-martial to proceed, there must be four (4) Members remaining after challenges. To ensure the
court-martial proceeds as scheduled, I recommend you select eight (8) Members.]

[**For a special court-martial in which enlisted representation has been requested, there must be four (4) Members
remaining after challenges, at least two (2) of whom are enlisted. Therefore, I recommend you select at least ten (10)
Members, five (5) of whom are enlisted.]

[**For a general court-martial to proceed, there must be eight (8) Members remaining after challenges. To ensure the
court-martial proceeds as scheduled, I recommend you select sixteen (16) Members.]

Encl (1)
Memorandum to Solicit Nominees from Subordinate Commands

Sample General Court-Martial Convening Order

GENERAL COURT-MARTIAL CONVENING ORDER 1-20

Pursuant to authority contained in Article 22, UCMJ, and paragraph 0120a, Judge Advocate
General of the Navy Instruction 5800.7F, CH-1, of 1 Jan 2019, a general court-martial consisting of a
military judge and members is convened with the following members:

Commander Scott X. XXX, USN;

Commander Jean X. XXX, USN;
Lieutenant Commander Henry X. XXX, USN;
Lieutenant Commander Trevor X. XXX, USN;
Lieutenant Bruce X. XXX, USN;
Lieutenant Junior Grade Natasha X. XXX, USN;
Ensign Steven X. XXX, USN;
Ensign Peter X. XXX, USN;
Master Chief Petty Officer Anthony X. XXX, USN;
Senior Chief Petty Officer Margaret X. XXX, USN;
Senior Chief Petty Officer Scott X. XXX, USN;
Chief Petty Officer Thor X. XXX, USN;
Chief Petty Officer Peter X. XXX, USN;
Chief Petty Officer James X. XXX, USN;
Petty Officer First Class Joan X. XXX, USN; and
Petty Officer First Class Kyle X. XXX, USN.

Three alternate members are authorized if excess members remain upon completion of the voir dire
process.

Rear Admiral, U.S. Navy

Commander, Navy Region Mid-Atlantic

Encl (1)
Memorandum to Solicit Nominees from Subordinate Commands

Sample Special Court-Martial Convening Order

SPECIAL COURT-MARTIAL CONVENING ORDER 1-20

Pursuant to authority contained in Article 23, UCMJ, and paragraph 0120b(3), Judge Advocate
General of the Navy Instruction 5800.7F, CH-1, of 1 Jan 2019, a special court-martial is convened with
the following members:

Lieutenant Commander Henry X. XXX, USN;

Lieutenant Commander Trevor X. XXX, USN;;
Lieutenant Bruce X. XXX, USN;
Ensign Steven X. XXX, USN;
Master Chief Petty Officer Anthony X. XXX, USN;
Senior Chief Petty Officer Margaret X. XXX, USN;
Chief Petty Officer Thor X. XXX, USN; and
Chief Petty Officer Peter X. XXX, USN;

One alternate member is authorized if sufficient members remain available upon the completion of the
voir dire process.

Rear Admiral, U.S. Navy

Commander, Navy Region Mid-Atlantic

Encl (1)
Memorandum to Solicit Nominees from Subordinate Commands

Sample Court-Martial Amending Order

GENERAL COURT-MARTIAL AMENDING ORDER 1A-20

The following members are detailed to the General Court-Martial convened by General Court-Martial
Convening Order 1-20, dated DD MMM YYYY, for the trial of U.S. v. PO2 Sailor, USN.

Lieutenant Commander X. X. XXX, USN;

Ensign X. X. XXX, USN;
Chief Petty Officer X. X. XXX, USN;
Chief Petty Officer X. X. XXX, USN; and
Petty Officer First Class X. X. XXX, USN.

The following members previously detailed to the General Court-Martial convened by Order 1-20, dated
DD MMM YYYY, have been relieved for the trial of U.S. v. PO2 Sailor, USN.

Lieutenant Commander Trevor X. XXX, USN;

Lieutenant Bruce X. XXX, USN;
Chief Petty Officer Thor X. XXX, USN;
Chief Petty Officer James X. XXX, USN; and
Petty Officer First Class Joan X. XXX, USN.

The court-martial as amended and relieved is comprised of:

Commander Scott X. XXX, USN;

Commander Jean X. XXX, USN;
Lieutenant Commander X. X. XXX, USN;
Lieutenant Commander Trevor X. XXX, USN;
Lieutenant Junior Grade Natasha X. XXX, USN;
Ensign X. X. XXX, USN;
Ensign Steven X. XXX, USN;
Ensign Peter X. XXX, USN;
Master Chief Petty Officer Anthony X. XXX, USN;
Senior Chief Petty Officer Margaret X. XXX, USN;
Senior Chief Petty Officer Scott X. XXX, USN;
Chief Petty Officer X. X. XXX, USN;
Chief Petty Officer X. X. XXX, USN;
Chief Petty Officer Peter X. XXX, USN;
Petty Officer First Class X. X. XXX, USN; and
Petty Officer First Class Kyle X. XXX, USN.

Three alternate members are authorized if excess members remain upon completion of the voir dire
process.

Rear Admiral, U.S. Navy

Commander, Navy Region Mid-Atlantic

Encl (1)
 CASE LAW SUMMARIES FOR COMMANDER & SJA DISCUSSIONS

Rank. Rank may not be used a criteria to systematically include or exclude potential Members.

United States v. Bartee, 76 M.J. 141 (C.A.A.F. 2016) The systemic exclusion of otherwise qualified Members
based on an impermissible variable such as rank is improper. The convening authority was able to correct a taint
in the first Members selection process (that systemically excluded E-4s and E-5s) by expressly considering the
Article 25, UCMJ, criteria; personally selecting the new panel only on the basis of that criteria; and confirming he
was cognizant of the roster of other service members from which he could have drawn Members. The staff judge
advocate can assist the convening authority in selecting Members as long as this help does not improperly exclude
any potential Members.

United States v. Sullivan, 74 M.J. 448 (C.A.A.F. 2014) In a general court-martial of an O-6 accused for wrongful
use of cocaine, although the convening authority’s categorical exclusion of flag officers from the member pool
violated Article 25, UCMJ, there was no appearance of an unfair panel, where (1) the accused was provided with
a venire of fellow senior captains who were fully qualified to sit on a court-martial panel, (2) there was no basis to
conclude that the convening authority selected the Members on any factors other than their age, education,
training, experience, length of service, and judicial temperament, and (3) the convening authority’s motivation in
excluding flag officers from this case was not to stack the panel against the accused, but rather the convening
authority relied on his experience in concluding that the flag officers would not be available to actually sit on the
panel and hear the case

United States v. Upshaw, 49 M.J. 111 (C.A.A.F. 1998) Although finding no prejudice to the accused for an
administrative error in the nomination of Members, the court opined, “[w]hile it is permissible to look first at the
senior grades for qualified Members, the lower eligible grades may not be systematically excluded.” Id.

United States v. Nixon, 33 M.J. 433 (C.M.A. 1991) The accused at trial raised the issue that Members below E-8
had been impermissibly excluded from court-martial participation. The convening authority testified at trial
affirming his use of Article 25 criteria. In affirming the accused’s conviction, the court cautioned, however, that
“a convening authority and his staff judge advocate must make sure that they neither consciously nor
subconsciously use military grade as a test for court membership (with the sole exception of assuring that court
members outrank the accused.)” Id. at 435.

United States v. Daigle, 1 M.J. 139 (C.M.A. 1975) The court held it was improper to obtain nominees from
subordinate commanders solely on the basis of their rank and without consideration of the Article 25(d)(2), UCMJ
criteria. Id. The court reversed the lower court's decision upholding the findings of guilty and the sentence and
authorized a rehearing.

United States v. Kirkland, 53 M.J. 22 (C.A.A.F. 2000) The accused pleaded guilty to wrongful possession, use,
and distribution of LSD and marijuana and was sentenced by Members to a bad-conduct discharge, confinement
for 1 year, total forfeitures, and reduction to E-1. The court affirmed the findings, but reversed the sentence
finding the exclusion of potentially qualified Members below E-7 was improper. Id. at 25.

Race and Gender. A convening authority may consider race or gender when seeking in good faith to make the panel
more representative and inclusive of the accused’s race or gender or of the military population.

United States v. Riesbeck, 77 M.J. 154 (C.A.A.F. 2017) The accused was convicted of rape and sentenced to
three months confinement, a reduction to E-2, and a bad-conduct discharge. The accused was male. Id. at 159.
Seven of the ten Members detailed to his court-martial were women. Id. The Members came from a larger pool
which reflected an officer pool consisting of 20 percent women and an enlisted pool consisting of 13 percent
women. Id. The court dismissed the case with prejudice rejecting the argument that the convening authority
sought to be more inclusive in its panel selection because the selection was not reflective of the accused gender
and the venire consisting of 70 percent women was not reflective of the military community. Id. at 162. (See also
United States v. McClain, 22 M.J. 124 (C.M.A. 1986)).

Encl (2)
 CASE LAW SUMMARIES FOR COMMANDER & SJA DISCUSSIONS (cont’d)

United States v. Smith, 27 M.J. 242 (C.M.A. 1988) The accused was found guilty of conduct unbecoming an
officer and a gentleman for forcing a female officer to touch his penis. Id. at 243. He was sentenced to
confinement for 2 years, total forfeitures and a dismissal. The convening authority suspended all confinement in
excess of 3 months pending appellate review. Id. As was his custom, the convening authority sought women to
serve as court-martial Members specifically for sexual assault cases. The court concluded the convening
authority’s purpose in choosing women for sexual assault cases was because women would have “a unique ability
to understand the testimony of the victim.” Id. at 250. In setting aside the findings and sentence, the court found
the convening authority’s intentional selection of women to be improper because it was done to achieve a
particular result. Id.

United States v. Crawford, 35 C.M.R. 3 (C.M.A. 1964) The convening authority deliberately selected an African
American Service member to serve as a potential Member in the accused’s trial. Id. at 12. The accused was also
African American. The court found that seeking to be inclusive of the accused’s race was proper and held, “[i]f
deliberately to include qualified persons is discrimination, it is discrimination in favor of, not against an accused.
Equal protection of the law is not denied, but assured.” Id. at 13.

Volunteers and Targeted Volunteers. Considering volunteers or soliciting volunteers is contrary to Article 25 factors.

United States v. Ward, 74 M.J. 225 (C.A.A.F. 2014) A command instruction erroneously restricted the personnel
that could be nominated as Members. However, this did not result in error, in part, because the instruction was
only to supplement the pool of potential Members from the convening authority’s staff; the convening authority
had all personnel on his staff complete a Members questionnaire when they checked-in; and the instruction was
not used with an improper motive.

United States v. Dowty, 60 M.J. 163 (C.A.A.F. 2004) Soliciting Members for court-martial service through an
advertisement in the Plan of the Week is inappropriate. Id. at 172. Although ultimately affirming the accused’s
conviction, the court found error in nominating Members based on an irrelevant variable, such as whether the
Member volunteered for the duty. Id.

Any factor to achieve a desired result. Having the motive of selecting a panel more disposed to adjudge harsh
sentences, or trying to select Members with unique experiences – like being uniformed victim advocates – in order to have
a panel more sympathetic to a victim, are both prohibited.

United States v. Lewis, 46 M.J. 338 (C.A.A.F. 1997) In finding the large number of women detailed to the
accused’s court-martial to be an anomaly and failing to find any improper motive by the government, the court
affirmed the findings and sentence. Id. at 342. The court, however, made clear that convening authorities are
prohibited from assigning Members or excluding Members in order to achieve a particular result in the case (court
packing). Id. at 341.

United States v. Hilow, 32 M.J. 439 (C.M.A. 1991) The accused pleaded guilty to wrongful use of marijuana
and was sentenced by Members to a bad-conduct discharge, confinement for four months, total forfeitures, and
reduction of pay grade. The court set aside the accused’s sentence finding the convening authority’s subordinates
solicited only nominees who were commanders and supporters of a command policy of harsh discipline, even
when the convening authority was unaware of stacking.

Encl (2)