The Right to a Military Defense Lawyer: Detailed, Individual, and Civilian Counsel

The Uniform Code of Military Justice does not make a defense lawyer something an accused applies for. Article 27 requires counsel to be detailed, and Article 38 sets out the three ways an accused may be represented. Neither article mentions the accused’s ability to pay.

This page takes the two articles in turn: what Article 27 requires and of whom, and what Article 38(b) permits an accused to do with that entitlement. The three avenues in the title are the three subsections of one statutory scheme, and they combine rather than compete.

It does not tell you which arrangement suits any particular case. That is a decision for the accused with the advice of counsel.

Article 27: counsel is detailed, not requested

The requirement is stated as an obligation on the government rather than as a right the accused must claim:

“(a)(1) Trial counsel and defense counsel shall be detailed for each general and special court-martial.”

Source: 10 U.S.C. 827 (Article 27), subsection (a)(1).

Two things are fixed by that sentence. The duty attaches to each general and special court-martial, which means summary courts-martial sit outside it. And prosecution and defense counsel are detailed together, in the same clause, as two halves of one requirement.

The same article then states who may not be detailed:

“(2) No person who, with respect to a case, has served as a preliminary hearing officer, court member, military judge, military magistrate, or appellate judge, may later serve as trial counsel, assistant trial counsel, or, unless expressly requested by the accused, as defense counsel or assistant or associate defense counsel in the same case. No person who has acted for the prosecution may act later in the same case for the defense, nor may any person who has acted for the defense act later in the same case for the prosecution.”

Source: 10 U.S.C. 827 (Article 27), subsection (a)(2).

Two separate bars, and only one of them bends. The first sentence lists five prior roles and blocks them from the prosecution side outright, and from the defense side “unless expressly requested by the accused.” That clause is the article’s only waiver. The second sentence bars a person from switching between prosecution and defense in the same case, in either direction, and provides no waiver at all.

The qualification standard, and who certifies it

Article 27(b) sets out what a detailed defense counsel in a general court-martial must be, and the certification does not come from the command:

“Trial counsel, defense counsel, or assistant defense counsel detailed for a general court-martial— (1) must be a judge advocate who is qualified under section 806(a)(1) of this title (article 6(a)(1)); and (2) must be certified as competent to perform such duties by the Judge Advocate General of the armed force of which he is a member.”

Source: 10 U.S.C. 827 (Article 27), subsection (b). Paragraph (1) was amended generally by Pub. L. 119–60, Dec. 18, 2025.

Paragraph (1) was rewritten in December 2025. The earlier text offered alternative routes: a judge advocate who was a law-school graduate, or bar membership in a Federal court or a State’s highest court. The current text replaces that formulation with a single cross-reference to Article 6(a)(1), which makes continuing licensure conditions explicit on the face of the statute:

“(1) A member of the armed forces may only serve as a judge advocate if such member— (A) is admitted to the practice of law before the highest court of a State, territory, commonwealth, or the District of Columbia; (B) maintains a license status that provides current eligibility to actively practice law before such court; (C) is subject to the disciplinary review process of the jurisdiction in which such member maintains such a license status; and (D) is in compliance with any other requirements of such jurisdiction to remain eligible to practice law in such jurisdiction.”

Source: 10 U.S.C. 806 (Article 6), subsection (a)(1), as amended by Pub. L. 119–60, Dec. 18, 2025.

The next paragraph makes that standard enforceable, which matters for a page about the right to counsel: Article 6(a)(2) provides that a Judge Advocate General “may suspend the authority of a judge advocate … to perform legal duties” where the person becomes non-compliant with paragraph (1), and that a member “who is suspended or disbarred from the practice of law within a jurisdiction may not perform legal duties.” The second sentence operates without any service decision.

Four conditions joined by and, and two of them are continuing rather than historical: the licence must provide “current eligibility to actively practice law”, and the person must remain “subject to the disciplinary review process” of that jurisdiction. Admission once, long ago, no longer answers the question.

Certification by the Judge Advocate General is the second requirement and the structural point. The officer who certifies a defense counsel as competent sits in the legal chain rather than in the chain prosecuting the case.

Article 38(b): the three avenues, in the statute’s order

Article 38(b) is where the title’s three words come from, and the order in the statute is not the order people expect.

“(1) The accused has the right to be represented in his defense before a general or special court-martial or at a preliminary hearing 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)).”

Source: 10 U.S.C. 838 (Article 38), subsection (b)(1) through (b)(3).

Note the reach: the right runs to representation at an Article 32 preliminary hearing as well as at trial, so it attaches before the case has been referred anywhere.

Three phrases carry the whole scheme. Civilian counsel is available if provided by him, which allocates the cost and nothing else. Military counsel of the accused’s own selection is available if that counsel is reasonably available, a term the statute does not define itself. Detailed counsel is the one Article 27 already required.

How the three combine

The statute does not rank the avenues; it says what happens when they overlap, and the default runs toward keeping the military lawyer.

“(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.”

Source: 10 U.S.C. 838 (Article 38), subsection (b)(4).

Read the direction of that rule. Retaining a civilian lawyer does not remove the military one; the military counsel continues as associate counsel unless the accused asks to excuse them. Doing nothing leaves both in place.

Selecting individual military counsel works the opposite way. Under (b)(5), where the accused is represented by military counsel of his own selection, “any military counsel detailed under paragraph (3)(A) shall be excused”, except as (b)(6) allows. And (b)(6) states the ceiling directly: “The accused is not entitled to be represented by more than one military counsel.” The same paragraph lets the authority who details counsel, in sole discretion, detail additional counsel as assistant defense counsel, or approve a request that the originally detailed counsel act as associate defense counsel.

So the arithmetic is: one military counsel as of right, more only by someone else’s discretion, and a civilian in addition at the accused’s own expense.

What “reasonably available” means in one service

Article 38(b)(3)(B) makes the individual military counsel right conditional on the requested officer being “reasonably available (as determined under regulations prescribed under paragraph (7))”. The Code sets no content for that phrase; a service regulation does. The Army’s is open, so this page can show one worked example rather than leaving the term empty.

Army Regulation 27-10, Military Justice, effective 8 January 2025 with an administrative revision of 8 May 2025, superseding the version of 20 March 2024, sets the default in the accused’s favour:

“All JAs certified pursuant to UCMJ, Article 27(b) are considered reasonably available to act as IMC unless excluded by UCMJ, Article 38b; RCM 506(b); or this regulation.”

Source: AR 27-10, paragraph 5-9b. The regulation prints 8 January 2025 on its cover and records an administrative revision dated 8 May 2025 in its summary of change; that revision updates a base name throughout and does not touch this paragraph.

Read the direction of that rule. Availability is the starting position and unavailability is the exception, which is the opposite of how the phrase sounds. The work is then done by the exclusions, and the regulation adds its own to the ones already in R.C.M. 506(b)(1): judge advocates “whose primary duties involve the law enforcement and prosecuting functions”, naming chiefs of military justice, criminal law sections, and personnel serving as special trial counsel and other judge advocates assigned to the Office of Special Trial Counsel. Defense counsel assigned to the head office of the Army’s trial defense service are also excluded.

So the exclusions are about role conflict, not about workload or convenience. A prosecutor cannot be requested as individual defense counsel because of the function they hold.

The regulation also ties the request to timing: requests “should be handled expeditiously”, and the convening authority or military judge may treat the processing time as excludable delay under R.C.M. 707(c).

The same statutory phrase, a different structure

The Navy and Marine Corps rule was also opened, and putting the two side by side shows why “reasonably available” cannot be answered in the abstract.

“(4) Reasonably available. All counsel serving on active duty in the Navy or Marine Corps, certified in accordance with Article 27(b), UCMJ, and not excluded by JAGMAN, 0131b(4)(a) through 0131b(4)(c) below, may be determined to be “reasonably available” by the determining authority. In making this decision, the determining authority will assess the effect on the counsel’s unit should the requested counsel be made available.”

Source: Manual of the Judge Advocate General, JAGINST 5800.7G CH-2, 1 December 2023, section 0131b(4).

Read the verb against the Army’s. AR 27-10 says certified judge advocates “are considered reasonably available” unless excluded: a default, with exceptions. The JAGMAN says they “may be determined to be” available by the determining authority: a decision, with criteria. Same statutory phrase, and the burden of the analysis sits in a different place.

The JAGMAN then enumerates what that decision weighs. The determining authority “may consider, among others”: the anticipated duties and workload of the requested counsel, including authorised leave; the estimated duration of the absence, including travel, preparation and participation; any unique or special qualifications relevant to the proceeding; the ability of other counsel to assume the requested counsel’s duties; the nature and complexity of the charges or legal issues; the experience level and qualifications of the detailed defense counsel already on the case; and the comments of the accused and of the convening authority.

Two of those are worth pausing on. The detailed counsel’s own experience is a factor, so the strength of the representation already in place bears on whether an additional request succeeds. And the accused’s comments are a listed input, so the request is not decided on the command’s view alone.

The JAGMAN also names counsel who are not reasonably available at all: flag or general officers, and counsel performing duties as trial counsel, victims’ legal counsel, trial or appellate military judge, or appellate defense or government counsel. That list overlaps the Army’s in substance, and both are built on the same idea: role conflict, not convenience.

Two services, not four. The Coast Guard’s rules and the Department of the Air Force instruction were not opened for this page, and nothing above describes them.

When counsel is claimed to have failed

The right to counsel is a right to representation, not a guarantee of an outcome, and the standard the military appellate court applies comes from civilian constitutional law.

An appellant must show two things: that “Counsel’s performance was deficient”, and that “this deficiency resulted in prejudice”.

Source: Court of Appeals for the Armed Forces digest, Effective/Ineffective Assistance of Counsel, applying Strickland v. Washington, 466 U.S. 668 (1984). The two phrases are quoted separately because the digest states them as separate prongs, and they are the digest’s words rather than the opinion’s; the opinion was not opened.

Both prongs are required, and the first is weighted against the claim: courts “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Prejudice is then defined as “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”, and a reasonable probability is “a probability sufficient to undermine confidence in the outcome.”

That formulation is doing something specific: it sets the bar below “would certainly have changed the result” and above “might conceivably have”. Neither disagreement with a tactical choice nor an unfavourable verdict meets it on its own.

The forum people assume has no lawyer

A summary court-martial is a non-criminal forum by statute, and that leads to an inference the rules do not support. Since 20 December 2024 the rule is explicit.

“(e) Counsel. The accused at a summary court-martial has a right to military defense counsel. The accused may expressly waive the right to be represented by defense counsel and may thereafter conduct the defense personally. Such waiver shall be accepted by the summary court-martial officer only upon finding that the accused is competent to understand the disadvantages of self-representation and that the waiver is voluntary and understanding.”

Source: Executive Order 14130, 20 December 2024, Annex, amending the Manual for Courts-Martial.

The right exists, and waiving it is not a formality. The officer must find three things before accepting a waiver: that the accused is competent to understand the disadvantages of self-representation, that the waiver is voluntary, and that it is understanding. A signature is not a finding.

So “non-criminal forum” describes what a summary court-martial conviction is not, and says nothing about whether counsel is available in it. The two questions are separate and which offenses a court-martial can try sets out the first.

What the right does not include

It does not extend to summary courts-martial. Article 27(a)(1) attaches the detailing requirement to general and special courts-martial only, and the summary court-martial is a different forum with a different composition, described in the rules for courts-martial.

It does not guarantee a particular lawyer. Individual military counsel is conditioned on reasonable availability, and Article 38(b)(7) assigns the definition to the Secretary concerned by regulation. The statute does place one limit on those regulations: they “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.” A request across services cannot be refused for that reason alone.

It does not pay for a civilian. Article 38(b)(2) says civilian counsel may represent the accused “if provided by him”, and no provision shifts that cost.

It does not, by itself, settle what counsel must do. The obligations of a defense counsel come from professional responsibility rules and from case law on effective assistance, neither of which is in the statute.

What follows from the entitlement

A lawyer exists before referral. Because Article 38(b)(1) reaches an Article 32 hearing, representation is available at the stage where the government’s case is first tested, which is set out in what happens before a court-martial.

The lawyer is certified outside the prosecuting chain. Article 27(b)(2) puts certification with the Judge Advocate General.

Cost is not a filter. Nothing in Articles 27 or 38 conditions detailed counsel on means.

Choice has limits, and they are named. Reasonable availability for individual military counsel, and self-funding for civilian counsel, are the two limits the statute states.

What this page does not decide

Whether a particular requested officer is reasonably available. The Army’s default and its exclusions are set out above; the determination in a case is made under the regulation of the accused’s own service, applied to facts this page does not have.

Whether representation in a particular case was adequate. That is a question about performance, decided on a record, under standards this page has not opened.

What an accused should choose. The three avenues have different consequences, and weighing them is a conversation with counsel about specific facts.

Where to go from here

The independence of the defense function, and how each service organises it, is in how military defense counsel works in a court-martial. The counsel on the other side of the courtroom, and the limits on that office, are in the military prosecutor.

Sources

• 10 U.S.C. 827 · Article 27, Detail of trial counsel and defense counsel · the detailing duty, the disqualifications, and the qualification standard
• 10 U.S.C. 838 · Article 38, Duties of trial counsel and defense counsel · the three avenues and the associate-counsel provision
• 10 U.S.C. chapter 47 · the Code in full · Article 32, referred to in Article 38(b)(1)

• AR 27-10, Military Justice, 8 January 2025 · paragraph 5-9 on individual military counsel, quoted above
• Court of Appeals for the Armed Forces digest, Effective/Ineffective Assistance of Counsel · the two-prong standard and the definition of prejudice

• <a href="https://www.jag.navy.mil/documents/8962/EnclJAGINST5800.7GCH-2Under_Revision.pdf”>Manual of the Judge Advocate General, JAGINST 5800.7G CH-2 · section 0131b(4), the Navy and Marine Corps availability standard quoted above

What this page did not open. The Army regulation and the JAGMAN were opened; the Department of the Air Force instruction and the Coast Guard’s rules were not, so two services’ availability rules appear above and two do not. The JAGMAN copy obtained is Change Transmittal 2 of 1 December 2023, carrying revised Chapter I pages rather than the whole instruction, and the file is posted under a name indicating it is under revision; section 0131 falls inside those revised pages, but a reader relying on another chapter needs the current full instruction. Strickland v. Washington was not opened and is quoted as the military appellate court’s own digest states it. The Manual for Courts-Martial was not opened, so R.C.M. 506 and R.C.M. 707, both referred to above by number, are not described. No court decision on effective assistance of counsel was opened.

Checked on 19 September 2026, and checked for currency as well as for accuracy. Every statutory provision cited on this page was traced to the current United States Code: where a provision has not been amended since the 2023 edition, that edition’s text is the current text and its amendment record was read to confirm it; where a provision was amended by Pub. L. 118–159 (23 December 2024) or Pub. L. 119–60 (18 December 2025), the current text is quoted above and the amending Act is named beside it. The two Acts’ own texts were read to establish the complete list of provisions in this chapter that they changed. This was done through the Cornell mirror of the Code and through the Acts as published by the Government Publishing Office; the House preliminary Code could not be reached from here, so no third source confirms it. No independent expert review has taken place yet, and this page says so rather than implying one.*