[§124A-44]  Who may serve on courts-martial. (a)  Any commissioned officer of or on duty with the state military forces iseligible to serve on all courts-martial for the trial of any person who maylawfully be brought before such courts for trial.

(b)  Any warrant officer of or on duty with thestate military forces is eligible to serve on general or special courts-martialfor the trial of any person, other than a commissioned officer, who maylawfully be brought before such courts for trial.

(c)  Any enlisted member of the state militaryforces who is not a member of the same unit as the accused is eligible to serveon general and special courts-martial for the trial of any enlisted member whomay lawfully be brought before such courts for trial, but the enlisted membershall serve as a member of a court only if, before the convening of the court,the accused personally has requested in writing that enlisted members serve onit.  After such a request, the accused may not be tried by a general or specialcourt-martial the membership of which does not include enlisted members in anumber comprising at least one-third of the total membership of the court,unless eligible members cannot be obtained on account of physical conditions ormilitary exigencies.  If such members cannot be obtained, the court may beconvened and the trial held without them, but the convening authority shallmake a detailed written statement, to be appended to the record, stating whythey could not be obtained.

(d)  In this section, the word "unit"means any regularly organized body of the state military forces not larger thana company, a squadron, a division of the naval militia, or a body correspondingto one of them.

(e)  When it can be avoided, no person subjectto this chapter may be tried by a court-martial any member of which is juniorto the person in rank or grade.

(f)  When convening a court-martial, theconvening authority shall detail as members thereof such members as, in theconvening authority's opinion, are best qualified for the duty by reason ofage, education, training, experience, length of service, and judicialtemperament.  No member is eligible to serve as a member of a general orspecial court-martial when the member is the accuser or a witness for the prosecutionor has acted as investigating officer or as counsel in the same case.  Ifwithin the command of the convening authority there is present and nototherwise disqualified a commissioned officer who is a member of the bar of thehighest court of the State and of appropriate rank and grade, the conveningauthority shall appoint the commissioned officer as president of a specialcourt-martial.  Although this requirement is binding on the conveningauthority, failure to meet it in any case does not divest a military court ofjurisdiction. [L 1982, c 171, pt of §2; gen ch 1985]