26-1025. Service on courts-martial

A. Any commissioned officer in the national guard is eligible to serve on all courts-martial for the trial of any person who is brought before such courts for trial.

B. Any warrant officer in the national guard is eligible to serve on general and special courts-martial for the trial of any person, other than a commissioned officer, who is brought before such courts for trial.

C. Any enlisted member of the national guard who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial for the trial of any enlisted member of the national guard who is brought before such courts for trial but shall serve as a member of a court only if, before the conclusion of a session called by the military judge under section 26-1039, subsection A, before trial or, in the absence of such a session, before the court is assembled for the trial of the accused, the accused personally has requested in writing that enlisted members serve on it. After such a request, the accused shall not be tried by a general or special court-martial which does not include enlisted members of at least one-third of the total membership of the court, unless eligible enlisted members cannot be obtained on account of physical conditions or military exigencies. If such members cannot be obtained, the court may be assembled and the trial held without them, but the convening authority shall make a detailed written statement and append it to the record stating why they could not be obtained. In this subsection, " unit" means any regularly organized body of the national guard not larger than a company or battery or a body corresponding to a company or battery.

D. If it can be avoided, a member of the national guard shall not be tried by a court-martial with any member who is junior to him in rank or grade. If convening a court-martial, the convening authority shall choose members of the national guard who, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service and judicial temperament. A member of the national guard is not eligible to serve as a member of a general or special court-martial if he is the accuser or a witness for the prosecution or has acted as an investigating officer or counsel in the case.

E. Before a court-martial is assembled for the trial of a case, the convening authority may excuse a member of the court from participating in the case. Under such rules as the adjutant general prescribes, the convening authority may delegate his authority under this subsection to his staff judge advocate or legal officer or to any other principal assistant.