10 U.S.C. § 839

Art. 39. Sessions

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(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.(Aug. 10, 1956, ch. 1041, 70A Stat. 51; Pub. L. 90–632, § 2(15), Oct. 24, 1968, 82 Stat. 1338; Pub. L. 101–510, div. A, title V, § 541(a), Nov. 5, 1990, 104 Stat. 1565; Pub. L. 109–163, div. A, title V, § 556, Jan. 6, 2006, 119 Stat. 3266; Pub. L. 111–84, div. A, title XVIII, § 1803(a)(2), Oct. 28, 2009, 123 Stat. 2612; Pub. L. 114–328, div. E, title LVII, § 5222, Dec. 23, 2016, 130 Stat. 2909; Pub. L. 115–91, div. A, title X, § 1081(c)(1)(D), Dec. 12, 2017, 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 NotesAmendments

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 SubsidiariesEffective Date of 2017 Amendment

Amendment 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 Amendment

Amendment 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 Amendment

Amendment 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.

Notes of Decisions

Cited in 1,170 cases (162 in the last 5 years), 1957–2026 · leading case: Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

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Hamdan v. Rumsfeld, 548 U.S. 557 (2006). · cites it 4× “” 10 U. S. C. § 839 (c) (2000 ed., Supp. V).”

United States v. Hornback, 73 M.J. 155 (C.A.A.F. 2014). · cites it 5× “13-0442/MC Military Justice (UCMJ), 10 U.S.C. § 839 (a) (2012), sessions in which he instructed trial counsel as to what was and was not admissible.”

United States v. Reed, 54 M.J. 37 (C.A.A.F. 2000). · cites it 4× “On February 3, 1997, a post-trial session under Article 39(a), UCMJ, 10 USC § 839 (a), was held. The convening authority approved the sentence, and the Court of Criminal Appeals affirmed the findings and sentence.”

United States v. Pope, 69 M.J. 328 (C.A.A.F. 2011). · cites it 4× “Immediately before Sweeney’s testimony, trial counsel requested an Article 39(a), UCMJ, 10 U.S.C. § 839 (a) (2006), session. The Government sought to introduce a representative example of a green detoxification drink -- purchased by a Government investigator -- as a prop or…”

United States v. Sewell, 76 M.J. 14 (C.A.A.F. 2017). · cites it 2× “” (ii) After the military judge told trial counsel in an Article 39(a), Uniform Code of Military Justice, 10 U.S.C. § 839 (2012), session that he couldn’t introduce the results of Appellant’s sanity board without first laying the proper foundation, trial counsel failed to lay…”

United States v. New, 55 M.J. 95 (C.A.A.F. 2001). · cites it 5× “Ornelas, 2 USCMA 96, 99-101 , 6 CMR 96 , 99-101 (1952) and Article 39(a)(1) and (2), UCMJ, 10 USC § 839 (a)(1) & (2); see generally C.”

United States v. Quintanilla, 56 M.J. 37 (C.A.A.F. 2001). · cites it 3× “The judge has broad discretion in carrying out this responsibility, including the authority to call and question witnesses, hold sessions outside the presence of members, govern the order and manner of testimony and argument, control voir dire, rule on the admissibility of…”

United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994). · cites it 3× “At the initial session of the court-martial under Article 39(a), UCMJ, 10 USC § 839 (a), on January 31.1989, defense counsel conducted an extensive voir dire of the military judge and then elected not to challenge him for cause at that time.”

United States v. Humpherys, 57 M.J. 83 (C.A.A.F. 2002). · cites it 2× “Upon inquiry by the military judge during a pretrial session under Article 39(a), UCMJ, 10 USC § 839 (a), CPT S stated that, with respect to the prior representation, she remembered “vaguely something with respect to child support .”

United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012). · cites it 2× “At the close of the Article 39(a), 10 U.S.C. § 839 (a) (2006), session, the parties agreed to a slightly modified charge sheet, admitted as the “flyer,” which still did not allege the terminal element for the Article 134, UCMJ, specifications.”

United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012). · cites it 2× “” 3 10 U.S.C. § 839 (a) (2006). 4 Rule for Courts-Martial (R.”

United States v. Jones, 69 M.J. 294 (C.A.A.F. 2011). · cites it 4× “802 conference had been placed on the record at the next Article 39(a), UCMJ, 10 U.S.C. § 839 (a) (2006), session. 6 United States v.”

Show all 1,170 citing cases →

— 10 U.S.C. § 839(a) — 6 cases

United States v. Eatmon, 47 M.J. 534 (A.F.C.C.A. 1997).

United States v. Breen, 11 M.J. 559 (1981).

United States v. Wallace, 28 M.J. 640 (1989).

United States v. Matti (C.A.A.F. 2026).

United States v. Washington (C.A.A.F. 2026).

— 10 U.S.C. § 839(b) — 1 case

United States v. Rembert, 43 M.J. 837 (A.C.C.A. 1996).

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