Except in a special court-martial consisting of a military judge alone under Article 16(c)(2)(A), before the end of the initial Article 39(a) session or, in the absence of such a session, before assembly, the military judge shall ascertain, as applicable:

In the case of an enlisted accused, whether the accused elects to be tried by a court-martial composed of—

at least one-third enlisted members; or

all officer members.

In all noncapital cases, whether the accused requests trial by military judge alone.

The accused may defer requesting trial by military judge alone until any time before assembly.

Only an enlisted accused may request that enlisted members be detailed to a court-martial. Trial by military judge alone is not permitted in capital cases ( see R.C.M. 201(f)(1)(C)). If an accused makes no forum selection, the accused will be tried by a court-martial composed of a military judge and members, as specified in the convening order. When presenting the accused’s forum options, the military judge should inform the accused of the effect of not making an election.

The accused’s election or request, if any, under subsection (a), shall be in writing and signed by the accused or shall be made orally on the record.

If an enlisted accused makes a timely election under subparagraph (a)(1)(A), the convening authority, unless a sufficient number of members have already been detailed, shall detail a sufficient number of additional members to the court-martial in accordance with R.C.M. 503 or prepare a detailed written statement explaining why physical conditions or military exigencies prevented such detail. Proceedings that require the presence of members shall not proceed until either there is a sufficient number of additional members or the convening authority has prepared a written statement.

Upon receipt of a timely request for trial by military judge alone the military judge shall:

Ascertain whether the accused has consulted with defense counsel and has been informed of the identity of the military judge and of the right to trial by members; and

Ordinarily the military judge should inquire personally of the accused to ensure that the accused’s waiver of the right to trial by members is knowing and understanding. The military judge should ensure the accused understands that the approval of a request for trial before military judge alone under Article 16(b)(3) or (c)(2)(B) means that the military judge will determine the findings and, if the accused is found guilty of any charge and specification, the sentence. See R.C.M. 1002. Failure to do so is not error, however, where such knowledge and understanding otherwise appear on the record. DD Form 1722 (Request for Trial Before Military Judge Alone (Article 16, UCMJ)) should normally be used for the purpose of requesting trial by military judge alone under this rule, if a written request is used.

Approve or disapprove the request, in the military judge’s discretion.

A timely request for trial by military judge alone should be granted unless there is substantial reason why, in the interest of justice, the military judge should not sit as factfinder. The military judge may hear arguments from counsel before acting on the request. The basis for denial of a request must be made a matter of record.

Trial shall be by a court-martial composed of the members in accordance with the convening order, unless the case is referred for trial by military judge alone under Article 16(c)(2)(A), the military judge grants a request for trial by judge alone, or there is a request for a specific panel composition under subparagraph (a)(1)(A).

An election by an enlisted accused under subparagraph (a)(1)(A) may be withdrawn by the accused as a matter of right any time before the end of the initial Article 39(a) session, or, in the absence of such a session, before assembly.

A request for trial by military judge alone may be withdrawn by the accused as a matter of right any time before it is approved, or even after approval, if there is a change of the military judge

Withdrawal of a request for enlisted members, all officer members, or trial by military judge alone should be shown in the record. The effect of such withdrawal is that the accused will be tried by a court-martial composed of members as specified by the convening order. See R.C.M. 505(c) concerning changing members prior to assembly.

Failure to request, or failure to withdraw a request for a specific panel composition or trial by military judge alone in a timely manner shall waive the right to submit or to withdraw such a request. However, the military judge may, until the beginning of the introduction of evidence on the merits, as a matter of discretion, approve an untimely request or withdrawal of a request.

In exercising discretion whether to approve an untimely request or withdrawal of a request, the military judge should balance the reason for the request (for example, whether it is a mere change of tactics or results from a substantial change of circumstances) against any expense, delay, or inconvenience which would result from granting the request