1338 In Ira
PUBLIC LAW 90-632-OCT. 24, 1968
required to participate by himself or counsel in a session called by the military judge under section 839(a) of this title (article 3 9 (a)), in a general court-martial case within a period of five days after the service of charges upon him, or in a special court-martial case within a period of three days after the service of charges upon him." (13) Section 837 (article 37) is amended— (A) by inserting " (a) " ' at the beginning of the first sentence thereof; (B) by striking out "law officer" in the first sentence and inserting in lieu thereof "military judge"; (C) by adding at the end thereof the following new sentence: "The foregoing provisions of the subsection shall not apply with respect to (1) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command m the substantive and procedural aspects of courts-martial, or (2) to statements and instructions given in open court by the military judge, president of a special court-martial, or counsel."; (D) by adding after subsection (a) (as designated by paragraph (1) hereof) a new subsection as follows: "(b) In the preparation of an effectiveness, fitness, or efficiency report, or any other report or document used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to be advanced, in grade, or in determining the assignment or transfer of a member of the armed forces or in determining whether a member of the armed forces should be retained on active duty, no person subject to this chapter may, in preparing any such report (1) consider or evaluate the performance of duty of any such member as a member of a court-martial, or (2) give a less favorable rating or evaluation of any member of the armed forces because of the zeal with which such member, as counsel, represented any accused before a court-martial.", (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. (15) Section 839 (article 39) is amended to read as follows: "§ 839. Art. 39. Sessions " (a) At any time after the service of charges which have l:)een 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) if permitted by regulations of the Secretary concerned, holding the arraignment and receiving the pleas of the accused; and "(4) performing any other procedural function which may be performed by the military judge under this chapter or vmder rules prescribed pursuant to section 836 of this title (article 36) and which does not require the presence of the members of the court.