§ 838. Art. 38. Duties of trial counsel and defense counsel

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1956

   Aug. 10, 1956, ch. 1041, 70A Stat. 50 · 70A Stat. 50

   Enacted · 10 U.S.C. § 838

   Aug. 10, 1956, ch. 1041, 70A Stat. 50

   Source evidence

   Code source credit
   Aug. 10, 1956, ch. 1041, 70A Stat. 50

2. 1968

   Military Justice Act of 1968

   Pub. L. 90–632 § 2(14) · 82 Stat. 1335

   Substituted · 10 U.S.C. § 838(b)

   Pub. L. 90–632 substituted “military judge or by the president of a court-martial without a military judge” for “president of the court”

   Source evidence

   Code amendment note
   Subsec. (b). Pub. L. 90–632 substituted “military judge or by the president of a court-martial without a military judge” for “president of the court”.

   Enacted provision · exact public law section
   (14) Section 838(b) (article 38(b)) is amended by striking out the words “president of the court” in the last sentence and inserting the words “military judge or by the president of a court-martial without a military judge” in place thereof.

3. 1981

   Pub. L. 97–81 § 4(b) · 95 Stat. 1085

   Inserted · 10 U.S.C. § 838(b)

   Pub. L. 97–81 revised subsec. (b) by dividing its provisions into seven numbered paragraphs and inserted provisions relating to the right to counsel at an investigation under section 832 of this title (article 32), authorizing the promulgation of regulations relating to the “reasonable availability” of military counsel, and authorizing the detailing of additional military counsel for the accused under specified circumstances

   Source evidence

   Code amendment note
   Subsec. (b). Pub. L. 97–81 revised subsec. (b) by dividing its provisions into seven numbered paragraphs and inserted provisions relating to the right to counsel at an investigation under section 832 of this title (article 32), authorizing the promulgation of regulations relating to the “reasonable availability” of military counsel, and authorizing the detailing of additional military counsel for the accused under specified circumstances.

   Enacted provision · exact public law section
   (b) 10 USC 838. Subsection (b) of section 838 (article 38(b)) is amended to read as follows: “(b) (1) The accused has the right to be represented in his defense before a general or special court-martial or at an investigation under section 832 of this title (article 32) as provided in this subsection. “(2) The accused may be represented by civilian counsel if provided by him. “(3) The accused may be represented— “(A) by military counsel detailed under section 827 of this title (article 27); or “(B) by military counsel of his own selection if that counsel is reasonably available (as determined under regulations prescribed under paragraph (7)). “(4) If the accused is represented by civilian counsel, military counsel detailed or selected under paragraph (3) shall act as associate counsel unless excused at the request of the accused. “(5) Except as provided under paragraph (6), if the accused is represented by military counsel of his own selection under paragraph (3)(B), any military counsel detailed under paragraph (3)(A) shall be excused. “(6) The accused is not entitled to be represented by more than one military counsel. However, a convening authority, in his sole discretion— “(A) may detail additional military counsel as assistant defense counsel; and “(B) if the accused is represented by military counsel of his own selection under paragraph (3)(B), may approve a request from the accused that military counsel detailed under paragraph (3)(A) act as associate defense counsel. “(7) Reasonably available. The Secretary concerned shall, by regulation, define ‘reasonably available’ for the purpose of paragraph (3)(B) and establish procedures for determining whether the military counsel selected by an accused under that paragraph is reasonably available. To the maximum extent practicable, such regulations shall establish uniform policies among the armed forces while recognizing the differences in the circumstances and needs of the various armed forces. The Secretary concerned shall submit copies of regulations prescribed under this paragraph to the Committees on Armed Services of the Senate and House of Representatives.”.

4. 1983

   Military Justice Act of 1983

   Pub. L. 98–209 § 3(e)(1) · 97 Stat. 1393

   Substituted · 10 U.S.C. § 838(b)(6)

   Pub. L. 98–209, § 3(e)(1), substituted “the person authorized under regulations prescribed under section 827 of this title (article 27) to detail counsel” for “a convening authority”

   Source evidence

   Code amendment note
   Subsec. (b)(6). Pub. L. 98–209, § 3(e)(1), substituted “the person authorized under regulations prescribed under section 827 of this title (article 27) to detail counsel” for “a convening authority”.

   Enacted provision · exact public law section
   (1) Section 838(b)(6) (article 38(b)(6)) is amended by striking out “a convening authority” and inserting in lieu thereof “the person authorized under regulations prescribed under section 827 of this title (article 27) to detail counsel”.

5. 1983

   Military Justice Act of 1983

   Pub. L. 98–209 § 3(e)(2) · 97 Stat. 1393

   Inserted · 10 U.S.C. § 838(b)(7)

   Pub. L. 98–209, § 3(e)(2), inserted provision that such regulations may not prescribe any limitation based on the reasonable availability of counsel 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

   Source evidence

   Code amendment note
   Subsec. (b)(7). Pub. L. 98–209, § 3(e)(2), inserted provision that such regulations may not prescribe any limitation based on the reasonable availability of counsel 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.

   Enacted provision · exact public law section
   (2) Paragraph (7) of section 838(b) (article 38(b)(7)) is amended by inserting after the first sentence the following new sentence: “Such regulations may not prescribe any limitation based on the reasonable availability of counsel 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.”.

6. 1983

   Military Justice Act of 1983

   Pub. L. 98–209 § 3(e)(3) · 97 Stat. 1393

   1. Amended · 10 U.S.C. § 838(c)

      Pub. L. 98–209, § 3(e)(3), designated existing provisions as par. (1), made minor changes in phraseology and punctuation

   2. Added · 10 U.S.C. § 838(c)

      Pub. L. 98–209, § 3(e)(3), added pars. (2) and (3)

   Source evidence

   Code amendment note
   Subsec. (c). Pub. L. 98–209, § 3(e)(3), designated existing provisions as par. (1), made minor changes in phraseology and punctuation, and added pars. (2) and (3).

   Enacted provision · exact public law section
   (3) Section 838(c) (article 38(c)) is amended to read as 10 USC 838. follows: “(c) In any court-martial proceeding resulting in a conviction, the defense counsel— “(1) may forward for attachment to the record of proceedings a brief of such matters as he determines should be considered in behalf of the accused on review (including any objection to the contents of the record which he considers appropriate); “(2) may assist the accused in the submission of any matter under section 860 of this title (article 60); and Infra. “(3) may take other action authorized by this chapter.”.

7. 1996

   National Defense Authorization Act for Fiscal Year 1996

   Pub. L. 104–106 div. A title XV § 1502(a)(1) · 110 Stat. 186

   Substituted · 10 U.S.C. § 838(b)(7)

   Pub. L. 104–106 substituted “Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives” for “Committees on Armed Services of the Senate and House of Representatives”

   Source evidence

   Code amendment note
   Subsec. (b)(7). Pub. L. 104–106 substituted “Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives” for “Committees on Armed Services of the Senate and House of Representatives”.

   Enacted provision · exact public law section
   (1) Sections 503(b)(5), 520a(d), 526(d)(1), 619a(h)(2), 806a(b), 838(b)(7), 946(c)(1)(A), 1098(b)(2), 2313(b)(4), 2361(c)(1), 2371(h), 2391(c), 2430(b), 2432(b)(3)(B), 2432(c)(2), 2432(h)(l), 2667(dX3), 2672a(b), 2687(b)(1), 4342(g), 7307(b)(1)(A), and 9342(g) are amended by striking out “Committees on Armed Services of the Senate and House of Representatives” and inserting in lieu thereof “Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives”.

8. 1999

   Pub. L. 106–65 div. A title X § 1067(1) · 113 Stat. 512

   Substituted · 10 U.S.C. § 838(b)(7)

   Pub. L. 106–65 substituted “and the Committee on Armed Services” for “and the Committee on National Security”

   Source evidence

   Code amendment note
   Subsec. (b)(7). Pub. L. 106–65 substituted “and the Committee on Armed Services” for “and the Committee on National Security”.

   Enacted provision · exact public law section
   (1) Title 10, United States Code.

9. 2013

   National Defense Authorization Act for Fiscal Year 2014

   Pub. L. 113–66 div. A title XVII § 1702(c)(3)(C) · 127 Stat. 672

   Substituted · 10 U.S.C. § 838(b)(1)

   Pub. L. 113–66 substituted “a preliminary hearing under section 832” for “an investigation under section 832”

   Source evidence

   Code amendment note
   Subsec. (b)(1). Pub. L. 113–66 substituted “a preliminary hearing under section 832” for “an investigation under section 832”.

   Enacted provision · exact public law section
   (C) Section 838(b)(1) of such title (article 38(b)(1) of the Uniform Code of Military Justice) is amended by striking “an investigation under section 832” and inserting “a preliminary hearing under section 832”.

10. 2016

    Military Justice Act of 2016

    Pub. L. 114–328 div. E title LVII § 5221 · 130 Stat. 2000

    Struck · 10 U.S.C. § 838(e)

    Pub. L. 114–328 struck out “, under the direction of the defense counsel or when he is qualified to be the defense counsel as required by section 827 of this title (article 27),” after “court-martial may”

    Source evidence

    Code amendment note
    Subsec. (e). Pub. L. 114–328 struck out “, under the direction of the defense counsel or when he is qualified to be the defense counsel as required by section 827 of this title (article 27),” after “court-martial may”.

    Enacted provision · exact public law section
    SEC. 5221. DUTIES OF ASSISTANT DEFENSE COUNSEL.   Section 838(e) of title 10, United States Code (article 38(e) of the Uniform Code of Military Justice), is amended by striking “, under the direction” and all that follows through “(article 27),”.

    Effective date note
    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 531(p) of Pub. L. 115–91, set out as a note under section 801 of this title.

11. 2017

    National Defense Authorization Act for Fiscal Year 2018

    Pub. L. 115–91 div. A title V § 531(c) · 131 Stat. 1283

    Substituted · 10 U.S.C. § 838(c)(2)

    Pub. L. 115–91 substituted “section 860, 860a, or 860b of this title (article 60, 60a, or 60b)” for “section 860 of this title (article 60)”

    Source evidence

    Code amendment note
    Subsec. (c)(2). Pub. L. 115–91 substituted “section 860, 860a, or 860b of this title (article 60, 60a, or 60b)” for “section 860 of this title (article 60)”.

    Enacted provision · exact public law section
    (c) Defense Counsel Assistance in Post-trial Matters for Accused Convicted by Court-martial.— Section 838(c)(2) of title 10, United States Code (article 38(c)(2) of the Uniform Code of Military Justice), is amended by striking “section 860 of this title (article 60)” and inserting “section 860, 860a, or 860b of this title (article 60, 60a, or 60b)”.

    Effective date note
    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 531(p) of Pub. L. 115–91, set out as a note under section 801 of this title.

11 of 12 references resolved to an enrolled provision · 1 partial