What Is the Right to Counsel in Military Court-Martial Proceedings?
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At a general or special court-martial, and at an Article 32 preliminary hearing, the accused may be represented by detailed military defense counsel at no cost, by military counsel of the accused’s own selection if “reasonably available”, and by civilian counsel the accused provides (Article 38(b)). These options do not all combine: if the accused gets military counsel of choice, detailed counsel is excused, and “The accused is not entitled to be represented by more than one military counsel”, though the detailing authority may add counsel at its discretion (Article 38(b)(5)-(6)). Detailed counsel are assigned without any showing of financial need. At a summary court-martial, the accused now has a waivable right to military defense counsel under R.C.M. 1301(e) as amended in 2024. On appeal, appellate defense counsel are provided by the Judge Advocate General (Article 70).
The three kinds of trial counsel for the accused
| Kind | What the statute says | Cost |
|---|---|---|
| Detailed military counsel | Defense counsel "shall be detailed for each general and special court-martial" (Art. 27(a)(1)); the accused may be represented by military counsel detailed under Article 27 (Art. 38(b)(3)(A)) | None to the accused |
| Military counsel of the accused's selection (individual military counsel) | "military counsel of his own selection if that counsel is reasonably available", as defined by Secretarial regulation (Art. 38(b)(3)(B), (7)) | None to the accused |
| Civilian counsel | "The accused may be represented by civilian counsel if provided by him" (Art. 38(b)(2)) | Paid by the accused |
How the options interact
- Civilian plus military. If the accused has civilian counsel, detailed or selected military counsel “shall act as associate counsel unless excused at the request of the accused” (Article 38(b)(4)). Choosing and working with civilian counsel is discussed in how to choose and work with a military defense attorney.
- Selected military counsel replaces detailed counsel. If the accused is represented by military counsel of choice, detailed military counsel “shall be excused”, unless the detailing authority approves a request that detailed counsel stay on as associate defense counsel (Article 38(b)(5), (6)(B)).
- One military counsel as of right. The detailing authority, “in his sole discretion”, may detail additional military counsel as assistant defense counsel (Article 38(b)(6)(A)).
- Selection across services. Secretarial regulations defining “reasonably available” “may not prescribe any limitation … solely on the grounds that the counsel selected by the accused is from an armed force other than the armed force of which the accused is a member” (Article 38(b)(7)).
Qualifications
Defense counsel detailed for a general court-martial must be a judge advocate qualified under Article 6(a)(1), which requires an active license and standing before the highest court of a state, territory, commonwealth, or the District of Columbia, and must be certified as competent by the Judge Advocate General (Article 27(b)). Defense counsel at a special court-martial must have the same qualifications (Article 27(c)). The FY2026 National Defense Authorization Act (Pub. L. 119-60, December 18, 2025) rewrote Article 27(b)(1) into its current form. Capital cases. “To the greatest extent practicable,” at least one defense counsel in a capital case must be learned in the law applicable to capital cases, as determined by the Judge Advocate General, and may be a compensated civilian if necessary (Article 27(d)).
Before charges and before trial
The rights to counsel during interrogation come from Article 31 and M.R.E. 305, described in the Article 31 warning and how it differs from Miranda. A person in pretrial confinement must be provided military counsel, if requested, before the 7-day review or within 72 hours of the request, whichever comes first (R.C.M. 305(g)); see pretrial confinement and restraint. At an Article 32 preliminary hearing, the accused “has the right to be represented … as provided in section 838” (Article 32(d)(1)).
Summary courts-martial
In Middendorf v. Henry, 425 U.S. 25 (1976), the Supreme Court held that the summary court-martial at issue was not a “criminal prosecution” for Sixth Amendment purposes and that due process did not require counsel. Executive Order 14130 (December 20, 2024) then rewrote R.C.M. 1301(e): “The accused at a summary court-martial has a right to military defense counsel”, which the accused may expressly waive if the officer finds the waiver knowing and voluntary. The accused can also refuse trial by summary court-martial before arraignment (Article 20(a)). Details are in what a summary court-martial is.
After trial
- Post-trial. Defense counsel may forward a brief for attachment to the record and “may assist the accused in the submission of any matter under section 860, 860a, or 860b” (Article 38(c)). The convening authority’s limits on acting on findings and sentence come from Articles 60a and 60b and apply whether or not a special trial counsel referred the case.
- Appeal. The Judge Advocate General details appellate defense counsel qualified under Article 27(b)(1), who represent the accused before the Court of Criminal Appeals, the Court of Appeals for the Armed Forces, or the Supreme Court when the accused requests, when the United States is represented, or when the Judge Advocate General has sent the case to CAAF. The accused may also be represented by civilian counsel the accused provides (Article 70(a), (c), (d)).
Cases referred by a special trial counsel
For a general or special court-martial to which a special trial counsel referred charges, a special trial counsel is detailed as trial counsel (Article 27(e)). The defense entitlements in Article 38 do not change.
Sources
- 10 U.S.C. § 838, Article 38, Duties of trial counsel and defense counsel (Cornell LII)
- 10 U.S.C. § 827, Article 27, Detail of trial counsel and defense counsel, with 2025 amendment note (Cornell LII)
- 10 U.S.C. § 806, Article 6 (Cornell LII)
- 10 U.S.C. § 870, Article 70, Appellate counsel (Cornell LII)
- 10 U.S.C. § 832, Article 32 (Cornell LII)
- Middendorf v. Henry, 425 U.S. 25 (1976) (Library of Congress, U.S. Reports)
- Manual for Courts-Martial, United States (2024 ed.), R.C.M. 305(g), 1301(e)
- Executive Order 14130, 2024 Amendments to the Manual for Courts-Martial, United States (December 20, 2024), 89 Fed. Reg. 105343 (govinfo), Annex amendment to R.C.M. 1301(e)
This article is general information about military law, not legal advice for any individual case.