Title 10 — Armed ForcesRelease 119-73
§839 Art. 39. Sessions
Title 10 › Subtitle Subtitle A— - General Military Law › Part PART II— - PERSONNEL › Chapter CHAPTER 47— - UNIFORM CODE OF MILITARY JUSTICE › Subchapter SUBCHAPTER VII— - TRIAL PROCEDURE › § 839
Summary
A military judge may call a court-martial into session without the panel members after charges are sent for trial. The judge can hear and decide motions that don’t need a full trial on not-guilty issues, rule on matters the judge is allowed to decide, take the arraignment and pleas, carry out sentencing when rules allow, and handle other procedural tasks that do not need the members present. Those proceedings must include the accused, the defense lawyer, and the prosecutor and must be recorded. They can proceed regardless of how many panel members there are. If the service secretary’s rules allow it, and at least one defense lawyer is physically with the accused, the accused’s presence can be by video. When the members deliberate or vote, only the members may be present. Any other consultations or proceedings must be on the record and held with the accused, defense lawyer, prosecutor, and judge present. Decisions from military commissions under chapter 47A cannot be used in a court-martial.
Full Legal Text
Title 10, §839
Armed Forces — Source: USLM XML via OLRC
(a)At any time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject to section 835 of this title (article 35), call the court into session without the presence of the members for the purpose of—
(1)hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty;
(2)hearing and ruling upon any matter which may be ruled upon by the military judge under this chapter, whether or not the matter is appropriate for later consideration or decision by the members of the court;
(3)holding the arraignment and receiving the pleas of the accused;
(4)conducting a sentencing proceeding and sentencing the accused under section 853(b)(1) of this title (article 53(b)(1)); and
(5)performing any other procedural function which may be performed by the military judge under this chapter or under rules prescribed pursuant to section 836 of this title (article 36) and which does not require the presence of the members of the court.
(b)Proceedings under subsection (a) shall be conducted in the presence of the accused, the defense counsel, and the trial counsel and shall be made a part of the record. These proceedings may be conducted notwithstanding the number of members of the court and without regard to section 829 of this title (article 29). If authorized by regulations of the Secretary concerned, and if at least one defense counsel is physically in the presence of the accused, the presence required by this subsection may otherwise be established by audiovisual technology (such as videoteleconferencing technology).
(c)When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any other consultation of the members of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and the military judge.
(d)The findings, holdings, interpretations, and other precedents of military commissions under chapter 47A of this title—
(1)may not be introduced or considered in any hearing, trial, or other proceeding of a court-martial under this chapter; and
(2)may not form the basis of any holding, decision, or other determination of a court-martial.
Legislative History
Notes & Related Subsidiaries
Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large) 83950:614.May 5, 1950, ch. 169, § 1 (Art. 39), 64 Stat. 121. The word “When” is substituted for the word “Whenever”. The words “deliberates or votes” are substituted for the words “is to deliberate or vote”. The word “may” is substituted for the word “shall”. The word “shall” is inserted before the words “be in the presence” for clarity.
Editorial Notes
Amendments
2017—Subsec. (a)(4). Pub. L. 115–91 substituted “under section 853(b)(1) of this title (article 53(b)(1))” for “in non-capital cases unless the accused requests sentencing by members under section 825 of this title (article 25)”. 2016—Subsec. (a)(3). Pub. L. 114–328, § 5222(1)(A), struck out “if permitted by
Regulations
of the Secretary concerned,” before “holding” and “and” after “accused;”. Subsec. (a)(4), (5). Pub. L. 114–328, § 5222(1)(B), (C), added par. (4) and redesignated former par. (4) as (5). Subsec. (c). Pub. L. 114–328, § 5222(2), struck out “, in cases in which a military judge has been detailed to the court,” after “the trial counsel, and”. 2009—Subsec. (d). Pub. L. 111–84 added subsec. (d). 2006—Pub. L. 109–163 redesignated concluding provisions of subsec. (a) as subsec. (b), substituted “Proceedings under subsection (a) shall be conducted” for “These proceedings shall be conducted”, inserted at end “If authorized by
Regulations
of the Secretary concerned, and if at least one defense counsel is physically in the presence of the accused, the presence required by this subsection may otherwise be established by audiovisual technology (such as videoteleconferencing technology).”, and redesignated former subsec. (b) as (c). 1990—Subsec. (a). Pub. L. 101–510 inserted at end “These proceedings may be conducted notwithstanding the number of members of the court and without regard to section 829 of this title (article 29).” 1968—Pub. L. 90–632 added subsec. (a), designated existing provisions as subsec. (b), substituted “military judge” for “law officer”, and struck out provisions authorizing the court after voting on the findings in a general court-martial to request the law officer and the reporter to appear before the court to put the findings in proper form.
Statutory Notes and Related Subsidiaries
Effective Date
of 2017 AmendmentAmendment by Pub. L. 115–91 effective immediately after the
Amendments
made by div. E (§§ 5001–5542) of Pub. L. 114–328 take effect as provided for in section 5542 of that Act (10 U.S.C. 801 note), see section 1081(c)(4) of Pub. L. 115–91, set out as a note under section 801 of this title.
Effective Date
of 2016 AmendmentAmendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing
Regulations
and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.
Effective Date
of 1990 Amendment Pub. L. 101–510, div. A, title V, § 541(e), Nov. 5, 1990, 104 Stat. 1565, provided that: “The
Amendments
made by subsections (a) through (d) [amending this section and section 841 of this title] shall apply only to a court-martial convened on or after the date of the enactment of this Act [Nov. 5, 1990].”
Effective Date
of 1968 AmendmentAmendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.
Reference
Citations & Metadata
Citation
10 U.S.C. § 839
Title 10 — Armed Forces
Last Updated
Apr 6, 2026
Release point: 119-73