Convening courts-martial

(a) In general. A court-martial is created by a convening order of the convening authority. (b) Who may convene courts-martial. (1) General courts-martial. Unless otherwise limited by superior competent authority, general courts- martial may be convened by persons occupying positions designated in Article 22(a) and by any commander designated by the Secretary concerned or empowered by the President. (2) Special courts-martial. Unless otherwise limited by superior competent authority, special courts-martial may be convened by persons occupying positions designated in Article 23(a) and by commanders designated by the Secretary concerned. (4) Military magistrate. If authorized under regulations of the Secretary concerned, a detailed military judge may designate a military magistrate to perform pre-referral duties under R.C.M. 309, and, (A) Definition. For purposes of Articles 23 and 24, a command or unit is “separate or detached” when isolated or removed from the immediate disciplinary control of a superior in such manner as to make its II-33 commander the person held by superior commanders primarily responsible for discipline. “Separate or detached” is used in a disciplinary sense and not tactical or physical sense. A necessarily subordinate joint command or joint task force is ordinarily considered to be “separate or detached.” in a (B) Determination. If a commander is in doubt whether the command is separate or detached, the matter shall be determined: (i) In the Army or the Air Force, by the officer exercising general court-martial jurisdiction over the command; or (ii) In the Naval Service or Coast Guard, by the flag or general officer in command or the senior officer present who designated the detachment; or (iii) In a combatant command or joint command, the officer exercising general court-martial by jurisdiction over the command. (3) Summary courts-martial. See R.C.M. 1302(a). (4) Delegation prohibited. The power to convene courts-martial may not be delegated. (c) Disqualification. (1) Accuser. An accuser may not convene a general or special court-martial for the trial of the person accused. (2) Other. A convening authority junior in rank to an accuser may not convene a general or special court- martial for the trial of the accused unless that convening authority is superior in command to the accuser. A convening authority junior in command to an accuser may not convene a general or special court- martial for the trial of the accused. (3) Action when disqualified. When a commander who would otherwise convene a general or special court-martial is disqualified in a case, the charges shall be forwarded to a superior competent authority for disposition. That authority may personally dispose of the charges or forward the charges to another convening authority who is superior in rank to the accuser, or, if in the same chain of command, who is superior in command to the accuser. (d) Convening orders. (B) A convening order may designate where the court-martial will meet. (C) If the convening authority has been designated by the Secretary concerned, the convening order shall so state. (2) Summary courts-martial. A convening order for a summary court-martial shall designate that it is a summary court-martial and detail the summary court- martial, and may designate where the court-martial will meet. If the convening authority has been designated by the Secretary concerned, the convening order shall so state. (3) Additional matters. Additional matters to be included in convening orders may be prescribed by the Secretary concerned. (e) Place. The convening authority shall ensure that an appropriate location and facilities for courts-martial are provided.