US Code

Public Law 119-73 (01/23/2026)

10 U.S.C. § 839

Art. 39. Sessions

(a)
section 835 of this title 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 (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)
section 853(b)(1) of this title conducting a sentencing proceeding and sentencing the accused under (article 53(b)(1)); and
(5)
section 836 of this title performing any other procedural function which may be performed by the military judge under this chapter or under rules prescribed pursuant to (article 36) and which does not require the presence of the members of the court.
(b)
section 829 of this title 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 (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.

Aug. 10, 1956, ch. 104170A Stat. 51Pub. L. 90–632, § 2(15)82 Stat. 1338Pub. L. 101–510, div. A, title V, § 541(a)104 Stat. 1565Pub. L. 109–163, div. A, title V, § 556119 Stat. 3266Pub. L. 111–84, div. A, title XVIII, § 1803(a)(2)123 Stat. 2612Pub. L. 114–328, div. E, title LVII, § 5222130 Stat. 2909Pub. L. 115–91, div. A, title X, § 1081(c)(1)(D)131 Stat. 1598(, ; , , ; , , ; , , ; , , ; , , ; , , .)

Historical and Revision Notes

Revised section

Source (U.S. Code)

Source (Statutes at Large)

839

50:614.

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

Pub. L. 115–91section 853(b)(1) of this titlesection 825 of this title2017—Subsec. (a)(4). substituted “under (article 53(b)(1))” for “in non-capital cases unless the accused requests sentencing by members under (article 25)”.

Pub. L. 114–328, § 5222(1)(A)2016—Subsec. (a)(3). , struck out “if permitted by regulations of the Secretary concerned,” before “holding” and “and” after “accused;”.

Pub. L. 114–328, § 5222(1)(B)Subsec. (a)(4), (5). , (C), added par. (4) and redesignated former par. (4) as (5).

Pub. L. 114–328, § 5222(2)Subsec. (c). , struck out “, in cases in which a military judge has been detailed to the court,” after “the trial counsel, and”.

Pub. L. 111–842009—Subsec. (d). added subsec. (d).

Pub. L. 109–1632006— 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).

Pub. L. 101–510section 829 of this title1990—Subsec. (a). inserted at end “These proceedings may be conducted notwithstanding the number of members of the court and without regard to (article 29).”

Pub. L. 90–6321968— 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 Amendment

Pub. L. 115–91Pub. L. 114–32810 U.S.C. 801section 1081(c)(4) of Pub. L. 115–91section 801 of this titleAmendment by effective immediately after the amendments made by div. E (§§ 5001–5542) of take effect as provided for in section 5542 of that Act ( note), see , set out as a note under .

Effective Date of 2016 Amendment

Pub. L. 114–328section 5542 of Pub. L. 114–328section 801 of this titleAmendment by effective on , as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see and Ex. Ord. No. 13825, set out as notes under .

Effective Date of 1990 Amendment

Pub. L. 101–510, div. A, title V, § 541(e)104 Stat. 1565

section 841 of this title“The amendments made by subsections (a) through (d) [amending this section and ] shall apply only to a court-martial convened on or after the date of the enactment of this Act [].”
, , , provided that:

Effective Date of 1968 Amendment

Pub. L. 90–632section 4 of Pub. L. 90–632section 801 of this titleAmendment by effective first day of tenth month following October 1968, see , set out as a note under .