Disqualification of military judge

(a) In general. Except as provided in subsection (e) of this rule, a military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned. (b) Specific grounds. A military judge shall also the following disqualify himself or herself circumstances: in (1) Where the military judge has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding. (2) Where the military judge has acted as counsel, preliminary hearing officer, investigating officer, legal officer, staff judge advocate, or convening authority as to any offense charged or in the same case generally. (3) Where the military judge has been or will be a witness in the same case, is the accuser, has forwarded charges in the case with a personal recommendation as to disposition, or, except in the performance of duties II-63 as military judge in a previous trial of the same or a related case, has expressed an opinion concerning the guilt or innocence of the accused. (4) Where the military judge is not eligible to act because the military judge is not qualified under R.C.M. 502(c) or not detailed under R.C.M. 503(b). (5) Where the military judge, the military judge’s spouse, or a person within the third degree of relationship to either of them or a spouse of such person: (A) Is a party to the proceeding; (B) Is known by the military judge to have an that could be the financial or otherwise, the outcome of interest, substantially affected by proceeding; or (C) Is to the military judge’s knowledge likely to be a material witness in the proceeding. (c) Definitions. For the purposes of this rule the following words or phrases shall have the meaning indicated— (1) “Proceeding” includes pretrial (to include pre- referral), trial, post-trial, appellate review, or other stages of litigation. (2) The “degree of relationship” is calculated according to the civil law system. (d) Procedure. (1) The military judge shall, upon motion of any party or sua sponte, decide whether the military judge is disqualified. (2) Each party shall be permitted to question the military judge and to present evidence regarding a possible ground for disqualification before the military judge decides the matter. (3) Except as provided under subsection (e) of this rule, if the military judge rules that the military judge is disqualified, the military judge shall recuse himself or herself. (e) Waiver. No military judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b) of this rule. Where the ground for disqualification arises only under subsection (a) of this rule, waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification. II-64 Rule 902A. Application of sentencing rules (a) Generally. Only one sentencing system applies in a court-martial. The accused at a single court-martial with specifications alleging offenses committed before 1 January 2019 and on or after 1 January 2019 will not be sentenced under separate sets of rules. Accordingly, if an accused is facing court-martial for several specifications alleging offenses, at least one of which was committed before 1 January 2019 and at least one of which was committed on or after 1 January 2019, the convening authority may refer these offenses to either— (1) a single court-martial where the applicable sentencing rules are the sentencing rules in effect prior to 1 January 2019 and these apply to all offenses regardless of the date of the alleged offense, unless the accused makes an election under subsection (b); or, If (2) separate courts-martial for the offenses alleged to have been committed before 1 January 2019 and the offenses alleged to have been committed on or after 1 January 2019. (b) Election of sentencing rules applicable at a single trial. referred the convening authority has specifications alleging offenses committed before 1 January 2019 and on or after 1 January 2019 to a single court-martial pursuant to paragraph (a)(1), before the accused is arraigned, the military judge shall ascertain, as applicable, whether the accused elects to be sentenced under the sentencing rules in effect on 1 January 2019, which shall apply to all offenses regardless of the date of the alleged offense. (c) Form of election. The accused’s election under subsection (b) shall be in writing and signed by the accused or shall be made orally on the record. The military judge shall ascertain whether the accused has consulted with defense counsel and has been informed of the right to make the election of the applicable sentencing rules under subsection (b). (d) Irrevocable Election. Unless the military judge allows the accused to withdraw the election for good cause shown, the accused’s election of the applicable sentencing rules under subsection (b) is irrevocable once made on the record and accepted by the military judge.