Collapse to view only § 859. Art. 59. Error of law; lesser included offense
- § 859. Art. 59. Error of law; lesser included offense
- § 860. Art. 60. Post-trial processing in general and special courts-martial
- § 860a. Art. 60a. Limited authority to act on sentence in specified post-trial circumstances
- § 860b. Art. 60b. Post-trial actions in summary courts-martial and certain general and special courts-martial
- § 860c. Art. 60c. Entry of judgment
- § 861. Art. 61. Waiver of right to appeal; withdrawal of appeal
- § 862. Art. 62. Appeal by the United States
- § 863. Art. 63. Rehearings
- § 864. Art. 64. Judge advocate review of finding of guilty in summary court-martial
- § 865. Art. 65. Transmittal and review of records
- § 866. Art. 66. Courts of Criminal Appeals
- § 867. Art. 67. Review by the Court of Appeals for the Armed Forces
- § 867a. Art. 67a. Review by the Supreme Court
- § 868. Art. 68. Branch offices
- § 869. Art. 69. Review by Judge Advocate General
- § 870. Art. 70. Appellate counsel
- [§ 871. Repealed.
- § 872. Art. 72. Vacation of suspension
- § 873. Art. 73. Petition for a new trial
- § 874. Art. 74. Remission and suspension
- § 875. Art. 75. Restoration
- § 876. Art. 76. Finality of proceedings, findings, and sentences
- § 876a. Art. 76a. Leave required to be taken pending review of certain court-martial convictions
- § 876b. Art. 76b. Lack of mental capacity or mental responsibility: commitment of accused for examination and treatment
§ 859. Art. 59. Error of law; lesser included offense
(a) A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.
(b) Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense.
(Aug. 10, 1956, ch. 1041, 70A Stat. 57.)
§ 860. Art. 60. Post-trial processing in general and special courts-martial
(a)Statement of Trial Results.—
(1) The military judge of a general or special court-martial shall enter into the record of trial a document entitled “Statement of Trial Results”, which shall set forth—
(A) each plea and finding;
(B) the sentence, if any; and
(C) such other information as the President may prescribe by regulation.
(2) Copies of the Statement of Trial Results shall be provided promptly to the convening authority, the accused, and any victim of the offense.
(b)Post-trial Motions.—In accordance with regulations prescribed by the President, the military judge in a general or special court-martial shall address all post-trial motions and other post-trial matters that—
(1) may affect a plea, a finding, the sentence, the Statement of Trial Results, the record of trial, or any post-trial action by the convening authority; and
(2) are subject to resolution by the military judge before entry of judgment.
(Aug. 10, 1956, ch. 1041, 70A Stat. 57; Pub. L. 98–209, § 5(a)(1), Dec. 6, 1983, 97 Stat. 1395; Pub. L. 99–661, div. A, title VIII, § 806(a)–(c), Nov. 14, 1986, 100 Stat. 3908, 3909; Pub. L. 104–106, div. A, title XI, § 1132, Feb. 10, 1996, 110 Stat. 464; Pub. L. 113–66, div. A, title XVII, §§ 1702(b), (c)(1), 1706, Dec. 26, 2013, 127 Stat. 955–957, 960; Pub. L. 113–291, div. A, title V, § 531(a)(1)–(3), (5), Dec. 19, 2014, 128 Stat. 3362, 3363; Pub. L. 114–328, div. E, title LIX, § 5321, Dec. 23, 2016, 130 Stat. 2924.)
§ 860a. Art. 60a. Limited authority to act on sentence in specified post-trial circumstances
(a)In General.—
(1) The convening authority of a general or special court-martial described in paragraph (2)—
(A) may act on the sentence of the court-martial only as provided in subsection (b), (c), or (d); and
(B) may not act on the findings of the court-martial.
(2) The courts-martial referred to in paragraph (1) are the following:
(A) A general or special court-martial in which the maximum sentence of confinement established under subsection (a) of section 856 of this title (article 56) for any offense of which the accused is found guilty is more than two years.
(B) A general or special court-martial in which the total of the sentences of confinement imposed, running consecutively, is more than six months.
(C) A general or special court-martial in which the sentence imposed includes a dismissal, dishonorable discharge, or bad-conduct discharge.
(D) A general or special court-martial in which the accused is found guilty of a violation of subsection (a) or (b) of section 920 of this title (article 120), section 920b of this title (article 120b), or such other offense as the Secretary of Defense may specify by regulation.
(3) Except as provided in subsection (d), the convening authority may act under this section only before entry of judgment.
(4) Under regulations prescribed by the Secretary concerned, a commissioned officer commanding for the time being, a successor in command, or any person exercising general court-martial jurisdiction may act under this section in place of the convening authority.
(b)Reduction, Commutation, and Suspension of Sentences Generally.—
(1) Except as provided in subsection (c) or (d), the convening authority may not reduce, commute, or suspend any of the following sentences:
(A) A sentence of confinement, if the total period of confinement imposed for all offenses involved, running consecutively, is greater than six months.
(B) A sentence of dismissal, dishonorable discharge, or bad-conduct discharge.
(C) A sentence of death.
(2) The convening authority may reduce, commute, or suspend any sentence not specified in paragraph (1).
(c)Suspension of Certain Sentences Upon Recommendation of Military Judge.—
(1) Upon recommendation of the military judge, as included in the Statement of Trial Results, together with an explanation of the facts supporting the recommendation, the convening authority may suspend—
(A) a sentence of confinement, in whole or in part; or
(B) a sentence of dismissal, dishonorable discharge, or bad-conduct discharge.
(2) The convening authority may not, under paragraph (1)—
(A) suspend a mandatory minimum sentence; or
(B) suspend a sentence to an extent in excess of the suspension recommended by the military judge.
(d)Reduction of Sentence for Substantial Assistance by Accused.—
(1) Upon a recommendation by the trial counsel, if the accused, after sentencing and before entry of judgment, provides substantial assistance in the investigation or prosecution of another person, the convening authority may reduce, commute, or suspend a sentence, in whole or in part, including any mandatory minimum sentence.
(2) Upon a recommendation by a trial counsel, designated in accordance with rules prescribed by the President, if the accused, after entry of judgment, provides substantial assistance in the investigation or prosecution of another person, a convening authority, designated under such regulations, may reduce, commute, or suspend a sentence, in whole or in part, including any mandatory minimum sentence.
(3) In evaluating whether the accused has provided substantial assistance under this subsection, the convening authority may consider the presentence assistance of the accused.
(e)Submissions by Accused and Victim.—
(1) In accordance with rules prescribed by the President, in determining whether to act under this section, the convening authority shall consider matters submitted in writing by the accused or any victim of an offense. Such rules shall include—
(A) procedures for notice of the opportunity to make such submissions;
(B) the deadlines for such submissions; and
(C) procedures for providing the accused and any victim of an offense with a copy of the recording of any open sessions of the court-martial and copies of, or access to, any admitted, unsealed exhibits.
(2) The convening authority shall not consider under this section any submitted matters that relate to the character of a victim unless such matters were presented as evidence at trial and not excluded at trial.
(f)Decision of Convening Authority.—
(1) The decision of the convening authority under this section shall be forwarded to the military judge, with copies provided to the accused and to any victim of the offense.
(2) If, under this section, the convening authority reduces, commutes, or suspends the sentence, the decision of the convening authority shall include a written explanation of the reasons for such action.
(3) If, under subsection (d)(2), the convening authority reduces, commutes, or suspends the sentence, the decision of the convening authority shall be forwarded to the chief trial judge for appropriate modification of the entry of judgment, which shall be transmitted to the Judge Advocate General for appropriate action.
(Added Pub. L. 114–328, div. E, title LIX, § 5322, Dec. 23, 2016, 130 Stat. 2924.)
§ 860b. Art. 60b. Post-trial actions in summary courts-martial and certain general and special courts-martial
(a)In General.—
(1) In a court-martial not specified in section 860a(a)(2) of this title (article 60a(a)(2)), the convening authority may—
(A) dismiss any charge or specification by setting aside the finding of guilty;
(B) change a finding of guilty to a charge or specification to a finding of guilty to a lesser included offense;
(C) disapprove the findings and the sentence and dismiss the charges and specifications;
(D) disapprove the findings and the sentence and order a rehearing as to the findings and the sentence;
(E) disapprove, commute, or suspend the sentence, in whole or in part; or
(F) disapprove the sentence and order a rehearing as to the sentence.
(2) In a summary court-martial, the convening authority shall approve the sentence or take other action on the sentence under paragraph (1).
(3) Except as provided in paragraph (4), the convening authority may act under this section only before entry of judgment.
(4) The convening authority may act under this section after entry of judgment in a general or special court-martial in the same manner as the convening authority may act under section 860a(d)(2) of this title (article 60a(d)(2)). Such action shall be forwarded to the chief trial judge, who shall ensure appropriate modification to the entry of judgment and shall transmit the entry of judgment to the Judge Advocate General for appropriate action.
(5) Under regulations prescribed by the Secretary concerned, a commissioned officer commanding for the time being, a successor in command, or any person exercising general court-martial jurisdiction may act under this section in place of the convening authority.
(b)Limitations on Rehearings.—The convening authority may not order a rehearing under this section—
(1) as to the findings, if there is insufficient evidence in the record to support the findings;
(2) to reconsider a finding of not guilty of any specification or a ruling which amounts to a finding of not guilty; or
(3) to reconsider a finding of not guilty of any charge, unless there has been a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation of some article of this chapter.
(c)Submissions by Accused and Victim.—In accordance with rules prescribed by the President, in determining whether to act under this section, the convening authority shall consider matters submitted in writing by the accused or any victim of the offense. Such rules shall include the matter required by section 860a(e) of this title (article 60a(e)).
(d)Decision of Convening Authority.—
(1) In a general or special court-martial, the decision of the convening authority under this section shall be forwarded to the military judge, with copies provided to the accused and to any victim of the offense.
(2) If the convening authority acts on the findings or the sentence under subsection (a)(1), the decision of the convening authority shall include a written explanation of the reasons for such action.
(Added Pub. L. 114–328, div. E, title LIX, § 5323, Dec. 23, 2016, 130 Stat. 2926.)
§ 860c. Art. 60c. Entry of judgment
(a)Entry of Judgment of General or Special Court-martial.—
(1) In accordance with rules prescribed by the President, in a general or special court-martial, the military judge shall enter into the record of trial the judgment of the court. The judgment of the court shall consist of the following:
(A) The Statement of Trial Results under section 860 of this title (article 60).
(B) Any modifications of, or supplements to, the Statement of Trial Results by reason of—
(i) any post-trial action by the convening authority; or
(ii) any ruling, order, or other determination of the military judge that affects a plea, a finding, or the sentence.
(2) Under rules prescribed by the President, the judgment under paragraph (1) shall be—
(A) provided to the accused and to any victim of the offense; and
(B) made available to the public.
(b)Summary Court-martial Judgment.—The findings and sentence of a summary court-martial, as modified by any post-trial action by the convening authority under section 860b of this title (article 60b), constitutes the judgment of the court-martial and shall be recorded and distributed under rules prescribed by the President.
(Added Pub. L. 114–328, div. E, title LIX, § 5324, Dec. 23, 2016, 130 Stat. 2927.)
§ 861. Art. 61. Waiver of right to appeal; withdrawal of appeal
(a)Waiver of Right to Appeal.—After entry of judgment in a general or special court-martial, under procedures prescribed by the Secretary concerned, the accused may waive the right to appellate review in each case subject to such review under section 866 of this title (article 66). Such a waiver shall be—
(1) signed by the accused and by defense counsel; and
(2) attached to the record of trial.
(b)Withdrawal of Appeal.—In a general or special court-martial, the accused may withdraw an appeal at any time.
(c)Death Penalty Case Exception.—Notwithstanding subsections (a) and (b), an accused may not waive the right to appeal or withdraw an appeal with respect to a judgment that includes a sentence of death.
(d)Waiver or Withdrawal as Bar.—Except as provided by section 869(c)(2) of this title (article 69(c)(2)), a waiver or withdrawal under this section bars review under section 866 of this title (article 66).
(Aug. 10, 1956, ch. 1041, 70A Stat. 58; Pub. L. 98–209, § 5(b)(1), Dec. 6, 1983, 97 Stat. 1397; Pub. L. 114–328, div. E, title LIX, § 5325, Dec. 23, 2016, 130 Stat. 2928; Pub. L. 117–263, div. A, title V, § 544(a), Dec. 23, 2022, 136 Stat. 2582.)
§ 862. Art. 62. Appeal by the United States
(a)
(1) In a trial by general or special court-martial, or in a pretrial proceeding under section 830a of this title (article 30a), the United States may appeal the following:
(A) An order or ruling of the military judge which terminates the proceedings with respect to a charge or specification.
(B) An order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.
(C) An order or ruling which directs the disclosure of classified information.
(D) An order or ruling which imposes sanctions for nondisclosure of classified information.
(E) A refusal of the military judge to issue a protective order sought by the United States to prevent the disclosure of classified information.
(F) A refusal by the military judge to enforce an order described in subparagraph (E) that has previously been issued by appropriate authority.
(G) An order or ruling of the military judge entering a finding of not guilty with respect to a charge or specification following the return of a finding of guilty by the members.
(2)
(A) An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within 72 hours of the order or ruling. Such notice shall include a certification by the trial counsel that the appeal is not taken for the purpose of delay and (if the order or ruling appealed is one which excludes evidence) that the evidence excluded is substantial proof of a fact material in the proceeding.
(B) An appeal of an order or ruling may not be taken when prohibited by section 844 of this title (article 44).
(3) An appeal under this section shall be diligently prosecuted by appellate Government counsel.
(b) An appeal under this section shall be forwarded by a means prescribed under regulations of the President directly to the Court of Criminal Appeals and shall, whenever practicable, have priority over all other proceedings before that court. In ruling on an appeal under this section, the Court of Criminal Appeals may act only with respect to matters of law.
(c) Any period of delay resulting from an appeal under this section shall be excluded in deciding any issue regarding denial of a speedy trial unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit.
(d) The United States may appeal a ruling or order of a military magistrate in the same manner as had the ruling or order been made by a military judge, except that the issue shall first be presented to the military judge who designated the military magistrate or to a military judge detailed to hear the issue.
(e) The provisions of this section shall be liberally construed to effect its purposes.
(Aug. 10, 1956, ch. 1041, 70A Stat. 58; Pub. L. 98–209, § 5(c)(1), Dec. 6, 1983, 97 Stat. 1398; Pub. L. 103–337, div. A, title IX, § 924(c)(2), Oct. 5, 1994, 108 Stat. 2831; Pub. L. 104–106, div. A, title XI, § 1141(a), Feb. 10, 1996, 110 Stat. 466; Pub. L. 114–328, div. E, title LIX, § 5326, Dec. 23, 2016, 130 Stat. 2928; Pub. L. 115–91, div. A, title V, § 531(h), Dec. 12, 2017, 131 Stat. 1385.)
§ 863. Art. 63. Rehearings
(a) Each rehearing under this chapter shall take place before a court-martial composed of members not members of the court-martial which first heard the case. Upon a rehearing the accused may not be tried for any offense of which he was found not guilty by the first court-martial, and no sentence in excess of or more severe than the original sentence may be adjudged, unless the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings, or unless the sentence prescribed for the offense is mandatory.
(b) If the sentence adjudged by the first court-martial was in accordance with a plea agreement under section 853a of this title (article 53a) and the accused at the rehearing does not comply with the agreement, or if a plea of guilty was entered for an offense at the first court-martial and a plea of not guilty was entered at the rehearing, the sentence as to those charges or specifications may include any punishment not in excess of that which could have been adjudged at the first court-martial, subject to such limitations as the President may prescribe by regulation. could have been adjudged at the first court-martial, subject to such limitations as the President may prescribe by regulation.
(c) If, after appeal by the Government under section 856(d) of this title (article 56(d)), the sentence adjudged is set aside and a rehearing on sentence is ordered by the Court of Criminal Appeals or Court of Appeals for the Armed Forces, the court-martial may impose any sentence that is in accordance with the order or ruling setting aside the adjudged sentence, subject to such limitations as the President may prescribe by regulation.
(Aug. 10, 1956, ch. 1041, 70A Stat. 58; Pub. L. 98–209, § 5(d), Dec. 6, 1983, 97 Stat. 1398; Pub. L. 102–484, div. A, title X, § 1065, Oct. 23, 1992, 106 Stat. 2506; Pub. L. 114–328, div. E, title LIX, § 5327, Dec. 23, 2016, 130 Stat. 2929; Pub. L. 115–91, div. A, title V, § 531(i), Dec. 12, 2017, 131 Stat. 1385.)
§ 864. Art. 64. Judge advocate review of finding of guilty in summary court-martial
(a)In General.—Under regulations prescribed by the Secretary concerned, each summary court-martial in which there is a finding of guilty shall be reviewed by a judge advocate. A judge advocate may not review a case under this subsection if the judge advocate has acted in the same case as an accuser, preliminary hearing officer, member of the court, military judge, or counsel or has otherwise acted on behalf of the prosecution or defense. The judge advocate’s review shall be in writing and shall contain the following:
(1) Conclusions as to whether—
(A) the court had jurisdiction over the accused and the offense;
(B) the charge and specification stated an offense; and
(C) the sentence was within the limits prescribed as a matter of law.
(2) A response to each allegation of error made in writing by the accused.
(3) If the case is sent for action under subsection (b), a recommendation as to the appropriate action to be taken and an opinion as to whether corrective action is required as a matter of law.
(b)Record.—The record of trial and related documents in each case reviewed under subsection (a) shall be sent for action to the person exercising general court-martial jurisdiction over the accused at the time the court was convened (or to that person’s successor in command) if—
(1) the judge advocate who reviewed the case recommends corrective action; or
(2) such action is otherwise required by regulations of the Secretary concerned.
(c)
(1) The person to whom the record of trial and related documents are sent under subsection (b) may—
(A) disapprove or approve the findings or sentence, in whole or in part;
(B) remit, commute, or suspend the sentence in whole or in part;
(C) except where the evidence was insufficient at the trial to support the findings, order a rehearing on the findings, on the sentence, or on both; or
(D) dismiss the charges.
(2) If a rehearing is ordered but the convening authority finds a rehearing impracticable, he shall dismiss the charges.
(3) If the opinion of the judge advocate in the judge advocate’s review under subsection (a) is that corrective action is required as a matter of law and if the person required to take action under subsection (b) does not take action that is at least as favorable to the accused as that recommended by the judge advocate, the record of trial and action thereon shall be sent to the Judge Advocate General for review under section 869 of this title (article 69).
(Aug. 10, 1956, ch. 1041, 70A Stat. 58; Pub. L. 98–209, § 7(a)(1), Dec. 6, 1983, 97 Stat. 1401; Pub. L. 114–328, div. E, title LIX, § 5328, Dec. 23, 2016, 130 Stat. 2929; Pub. L. 115–91, div. A, title X, § 1081(c)(1)(I), Dec. 12, 2017, 131 Stat. 1598.)
§ 865. Art. 65. Transmittal and review of records
(a)Transmittal of Records.—
(1)Finding of guilty in general or special court-martial.—If the judgment of a general or special court-martial entered under section 860c of this title (article 60c) includes a finding of guilty, the record shall be transmitted to the Judge Advocate General.
(2)Other cases.—In all other cases, records of trial by court-martial and related documents shall be transmitted and disposed of as the Secretary concerned may prescribe by regulation.
(b)Cases for Direct Appeal.—
(1)Automatic review.—If the judgment includes a sentence of death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable discharge or bad-conduct discharge, or confinement for 2 years or more, the Judge Advocate General shall forward the record of trial to the Court of Criminal Appeals for review under section 866(b)(3) of this title (article 66(b)(3)).
(2)Cases eligible for direct appeal review.—
(A)In general.—If the case is eligible for direct review under section 866(b)(1) of this title (article 66(b)(1)), the Judge Advocate General shall—
(i) forward a copy of the record of trial to an appellate defense counsel who shall be detailed to review the case and, upon request of the accused, to represent the accused before the Court of Criminal Appeals; and
(ii) upon written request of the accused, forward a copy of the record of trial to civilian counsel provided by the accused.
(B)Inapplicability.—Subparagraph (A) shall not apply if the accused—
(i) waives the right to appeal under section 861 of this title (article 61); or
(ii) declines in writing the detailing of appellate defense counsel under subparagraph (A)(i).
(c)Notice of Right to Appeal.—
(1)In general.—The Judge Advocate General shall provide notice to the accused of the right to file an appeal under section 866(b)(1) of this title (article 66(b)(1)) by means of depositing in the United States mails for delivery by first class certified mail to the accused at an address provided by the accused or, if no such address has been provided by the accused, at the latest address listed for the accused in the official service record of the accused.
(2)Inapplicability upon waiver of appeal.—Paragraph (1) shall not apply if the accused waives the right to appeal under section 861 of this title (article 61).
(d)Review by Judge Advocate General.—
(1)By whom.—A review conducted under this subsection may be conducted by an attorney within the Office of the Judge Advocate General or another attorney designated under regulations prescribed by the Secretary concerned.
(2)Review of cases not eligible for direct appeal.—
(A)In general.—A review under subparagraph (B) shall be completed in each general and special court-martial that is not eligible for direct appeal under paragraph (1) or (3) of section 866(b) of this title (article 66(b)).
(B)Scope of review.—A review referred to in subparagraph (A) shall include a written decision providing each of the following:
(i) A conclusion as to whether the court had jurisdiction over the accused and the offense.
(ii) A conclusion as to whether the charge and specification stated an offense.
(iii) A conclusion as to whether the sentence was within the limits prescribed as a matter of law.
(iv) A response to each allegation of error made in writing by the accused.
(3)Review when direct appeal is waived, withdrawn, or not filed.—
(A)In general.—A review under subparagraph (B) shall be completed in each general and special court-martial if—
(i) the accused waives the right to appeal or withdraws appeal under section 861 of this title (article 61); or
(ii) the accused does not file a timely appeal in a case eligible for direct appeal under subparagraph (A), (B), or (C) of section 866(b)(1) of this title (article 66(b)(1)).
(B)Scope of review.—A review referred to in subparagraph (A) shall include a written decision limited to providing conclusions on the matters specified in clauses (i), (ii), and (iii) of paragraph (2)(B).
(e)Remedy.—
(1)In general.—If after a review of a record under subsection (d), the attorney conducting the review believes corrective action may be required, the record shall be forwarded to the Judge Advocate General, who may set aside the findings or sentence, in whole or in part.
(2)Rehearing.—In setting aside findings or sentence, the Judge Advocate General may order a rehearing, except that a rehearing may not be ordered in violation of section 844 of this title (article 44).
(3)Remedy without rehearing.—
(A)Dismissal when no rehearing ordered.—If the Judge Advocate General sets aside findings and sentence and does not order a rehearing, the Judge Advocate General shall dismiss the charges.
(B)Dismissal when rehearing impracticable.—
(i)In general.—Subject to clause (ii), if the Judge Advocate General sets aside findings and orders a rehearing and the convening authority determines that a rehearing would be impractical, the convening authority shall dismiss the charges.
(ii)Cases referred by special trial counsel.—If a case was referred to trial by a special trial counsel, a special trial counsel shall determine if a rehearing is impracticable and shall dismiss the charges if the special trial counsel so determines.
(Aug. 10, 1956, ch. 1041, 70A Stat. 59; Pub. L. 90–179, § 1(6), Dec. 8, 1967, 81 Stat. 546; Pub. L. 90–632, § 2(26), Oct. 24, 1968, 82 Stat. 1341; Pub. L. 96–513, title V, § 511(25), Dec. 12, 1980, 94 Stat. 2922; Pub. L. 98–209, § 6(d)(1), Dec. 6, 1983, 97 Stat. 1401; Pub. L. 114–328, div. E, title LIX, § 5329, Dec. 23, 2016, 130 Stat. 2930; Pub. L. 115–91, div. A, title X, § 1081(c)(1)(J), Dec. 12, 2017, 131 Stat. 1598; Pub. L. 117–81, div. A, title V, § 539A(a), Dec. 27, 2021, 135 Stat. 1698.)
§ 866. Art. 66. Courts of Criminal Appeals
(a)Courts of Criminal Appeals.—
(1)In general.—Each Judge Advocate General shall establish a Court of Criminal Appeals which shall be composed of one or more panels, and each such panel shall be composed of not less than three appellate military judges. For the purpose of reviewing court-martial cases, the court may sit in panels or as a whole in accordance with rules prescribed under subsection (h). Any decision of a panel may be reconsidered by the court sitting as a whole in accordance with such rules. Appellate military judges who are assigned to a Court of Criminal Appeals may be commissioned officers or civilians, each of whom must be a member of a bar of a Federal court or of the highest court of a State and must be certified by the Judge Advocate General as qualified, by reason of education, training, experience, and judicial temperament, for duty as an appellate military judge. The Judge Advocate General shall designate as chief judge one of the appellate military judges of the Court of Criminal Appeals established by him. The chief judge shall determine on which panels of the court the appellate judges assigned to the court will serve and which military judge assigned to the court will act as the senior judge on each panel. In accordance with regulations prescribed by the President, assignments of appellate military judges under this section (article) shall be for appropriate minimum periods, subject to such exceptions as may be authorized in the regulations.
(2)Additional qualifications.—In addition to any other qualifications specified in paragraph (1), any commissioned officer or civilian assigned as an appellate military judge to a Court of Criminal Appeals shall have not fewer than 12 years of experience in the practice of law before such assignment.
(b)Review.—
(1)Appeals by accused.—A Court of Criminal Appeals shall have jurisdiction over—
(A) a timely appeal from the judgment of a court-martial, entered into the record under section 860c(a) of this title (article 60c(a)), that includes a finding of guilty; and
(B) a summary court-martial case in which the accused filed an application for review with the Court under section 869(d)(1) of this title (article 69(d)(1)) and for which the application has been granted by the Court.
(2)Review of certain sentences.—A Court of Criminal Appeals shall have jurisdiction over all cases that the Judge Advocate General orders sent to the Court for review under section 856(d) of this title (article 56(d)).
(3)Automatic review.—A Court of Criminal Appeals shall have jurisdiction over a court-martial in which the judgment entered into the record under section 860c of this title (article 60c) includes a sentence of death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable discharge or bad-conduct discharge, or confinement for 2 years or more.
(c)Timeliness.—An appeal under subsection (b)(1) is timely if—
(1) in the case of an appeal under subparagraph (A) of such subsection, it is filed before the later of—
(A) the end of the 90-day period beginning on the date the accused is provided notice of appellate rights under section 865(c) of this title (article 65(c)); or
(B) the date set by the Court of Criminal Appeals by rule or order; and
(2) in the case of an appeal under subparagraph (B) of such subsection, an application for review with the Court is filed not later than the earlier of the dates established under section 869(d)(2)(B) of this title (article 69(d)(2)(B)).
(d)Duties.—
(1)Cases appealed by accused.—
(A)In general.—In any case before the Court of Criminal Appeals under subsection (b), the Court may act only with respect to the findings and sentence as entered into the record under section 860c of this title (article 60c). The Court may affirm only such findings of guilty as the Court finds correct in law, and in fact in accordance with subparagraph (B).
(B)Factual sufficiency review.—
(i) In an appeal of a finding of guilty under subsection (b), the Court may consider whether the finding is correct in fact upon request of the accused if the accused makes a specific showing of a deficiency in proof.
(ii) After an accused has made such a showing, the Court may weigh the evidence and determine controverted questions of fact subject to—(I) appropriate deference to the fact that the trial court saw and heard the witnesses and other evidence; and(II) appropriate deference to findings of fact entered into the record by the military judge.
(iii) If, as a result of the review conducted under clause (ii), the Court is clearly convinced that the finding of guilty was against the weight of the evidence, the Court may dismiss, set aside, or modify the finding, or affirm a lesser finding.
(2)Error or excessive delay.—In any case before the Court of Criminal Appeals under subsection (b), the Court may provide appropriate relief if the accused demonstrates error or excessive delay in the processing of the court-martial after the judgment was entered into the record under section 860c of this title (article 60c).
(e)Consideration of Sentence.—
(1)In general.—In considering a sentence on appeal, other than as provided in section 856(d) of this title (article 56(d)), the Court of Criminal Appeals may consider—
(A) whether the sentence violates the law;
(B) whether the sentence is inappropriately severe—
(i) if the sentence is for an offense for which the President has not established a sentencing parameter pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022; or
(ii) in the case of an offense for which the President has established a sentencing parameter pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022, if the sentence is above the upper range of such sentencing parameter;
(C) in the case of a sentence for an offense for which the President has established a sentencing parameter pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022, whether the sentence is a result of an incorrect application of the parameter;
(D) whether the sentence is plainly unreasonable; and
(E) in review of a sentence to death or to life in prison without eligibility for parole determined by the members in a capital case under section 853(c) of this title (article 53(c)), whether the sentence is otherwise appropriate, under rules prescribed by the President.
(2)Record on appeal.—In an appeal under this subsection or section 856(d) of this title (article 56(d)), other than review under subsection (b)(2) of this section, the record on appeal shall consist of—
(A) any portion of the record in the case that is designated as pertinent by any party;
(B) the information submitted during the sentencing proceeding; and
(C) any information required by rule or order of the Court of Criminal Appeals.
(f)Limits of Authority.—
(1)Set aside of findings.—
(A)In general.—If the Court of Criminal Appeals sets aside the findings, the Court—
(i) may affirm any lesser included offense; and
(ii) may, except when prohibited by section 844 of this title (article 44), order a rehearing.
(B)Dismissal when no rehearing ordered.—If the Court of Criminal Appeals sets aside the findings and does not order a rehearing, the Court shall order that the charges be dismissed.
(C)Dismissal when rehearing Impracticable.—
(i)In general.—Subject to clause (ii), if the Court of Criminal Appeals orders a rehearing on a charge and the convening authority finds a rehearing impracticable, the convening authority may dismiss the charge.
(ii)Cases referred by special trial counsel.—If a case was referred to trial by a special trial counsel, a special trial counsel shall determine if a rehearing is impracticable and shall dismiss the charges if the special trial counsel so determines.
(2)Set aside of sentence.—If the Court of Criminal Appeals sets aside the sentence, the Court may—
(A) modify the sentence to a lesser sentence; or
(B) order a rehearing.
(3)Additional proceedings.—If the Court of Criminal Appeals determines that additional proceedings are warranted, the Court may order a hearing as may be necessary to address a substantial issue, subject to such limitations as the Court may direct and under such regulations as the President may prescribe. If the Court of Appeals for the Armed Forces determines that additional proceedings are warranted, the Court of Criminal Appeals shall order a hearing or other proceeding in accordance with the direction of the Court of Appeals for the Armed Forces.
(g)Action in Accordance With Decisions of Courts.—The Judge Advocate General shall, unless there is to be further action by the President, the Secretary concerned, the Court of Appeals for the Armed Forces, or the Supreme Court, instruct the appropriate authority to take action in accordance with the decision of the Court of Criminal Appeals.
(h)Rules of Procedure.—The Judge Advocates General shall prescribe uniform rules of procedure for Courts of Criminal Appeals and shall meet periodically to formulate policies and procedure in regard to review of court-martial cases in the offices of the Judge Advocates General and by Courts of Criminal Appeals.
(i)Prohibition on Evaluation of Other Members of Courts.—No member of a Court of Criminal Appeals shall be required, or on his own initiative be permitted, to prepare, approve, disapprove, review, or submit, with respect to any other member of the same or another Court of Criminal Appeals, 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.
(j)Ineligibility of Members of Courts To Review Records of Cases Involving Certain Prior Member Service.—No member of a Court of Criminal Appeals shall be eligible to review the record of any trial if such member served as investigating officer in the case or served as a member of the court-martial before which such trial was conducted, or served as military judge, trial or defense counsel, or reviewing officer of such trial.
(Aug. 10, 1956, ch. 1041, 70A Stat. 59; Pub. L. 90–632, § 2(27), Oct. 24, 1968, 82 Stat. 1341; Pub. L. 98–209, §§ 7(b), (c), 10(c)(1), Dec. 6, 1983, 97 Stat. 1402, 1406; Pub. L. 103–337, div. A, title IX, § 924(b)(2), (c)(1), (4)(A), Oct. 5, 1994, 108 Stat. 2831, 2832; Pub. L. 104–106, div. A, title XI, § 1153, Feb. 10, 1996, 110 Stat. 468; Pub. L. 114–328, div. E, title LIX, § 5330, Dec. 23, 2016, 130 Stat. 2932; Pub. L. 115–91, div. A, title V, § 531(j), title X, § 1081(c)(1)(K), Dec. 12, 2017, 131 Stat. 1385, 1598; Pub. L. 116–283, div. A, title V, § 542(a), (b), Jan. 1, 2021, 134 Stat. 3611; Pub. L. 117–81, div. A, title V, §§ 539A(b), 539E(d), Dec. 27, 2021, 135 Stat. 1698, 1703; Pub. L. 117–263, div. A, title V, § 544(b), Dec. 23, 2022, 136 Stat. 2582.)
§ 867. Art. 67. Review by the Court of Appeals for the Armed Forces
(a) The Court of Appeals for the Armed Forces shall review the record in—
(1) all cases in which the sentence, as affirmed by a Court of Criminal Appeals, extends to death;
(2) all cases reviewed by a Court of Criminal Appeals which the Judge Advocate General, after appropriate notification to the other Judge Advocates General and the Staff Judge Advocate to the Commandant of the Marine Corps, orders sent to the Court of Appeals for the Armed Forces for review; and
(3) all cases reviewed by a Court of Criminal Appeals in which, upon petition of the accused and on good cause shown, the Court of Appeals for the Armed Forces has granted a review.
(b) The accused may petition the Court of Appeals for the Armed Forces for review of a decision of a Court of Criminal Appeals within 60 days from the earlier of—
(1) the date on which the accused is notified of the decision of the Court of Criminal Appeals; or
(2) the date on which a copy of the decision of the Court of Criminal Appeals, after being served on appellate counsel of record for the accused (if any), is deposited in the United States mails for delivery by first-class certified mail to the accused at an address provided by the accused or, if no such address has been provided by the accused, at the latest address listed for the accused in his official service record.
The Court of Appeals for the Armed Forces shall act upon such a petition promptly in accordance with the rules of the court.
(c)
(1) In any case reviewed by it, the Court of Appeals for the Armed Forces may act only with respect to—
(A) the findings and sentence set forth in the entry of judgment, as affirmed or set aside as incorrect in law by the Court of Criminal Appeals;
(B) a decision, judgment, or order by a military judge, as affirmed or set aside as incorrect in law by the Court of Criminal Appeals; or
(C) the findings set forth in the entry of judgment, as affirmed, dismissed, set aside, or modfied by the Court of Criminal Appeals as incorrect in fact under section 866(d)(1)(B) of this title (article 66(d)(1)(B)).
(2) In a case which the Judge Advocate General orders sent to the Court of Appeals for the Armed Forces, that action need be taken only with respect to the issues raised by him.
(3) In a case reviewed upon petition of the accused, that action need be taken only with respect to issues specified in the grant of review.
(4) The Court of Appeals for the Armed Forces shall take action only with respect to matters of law.
(d) If the Court of Appeals for the Armed Forces sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If it sets aside the findings and sentence and does not order a rehearing, it shall order that the charges be dismissed.
(e) After it has acted on a case, the Court of Appeals for the Armed Forces may direct the Judge Advocate General to return the record to the Court of Criminal Appeals for further review in accordance with the decision of the court. Otherwise, unless there is to be further action by the President or the Secretary concerned, the Judge Advocate General shall instruct the convening authority to take action in accordance with that decision. If the court has ordered a rehearing, but the convening authority finds a rehearing impracticable, he may dismiss the charges. Notwithstanding the preceding sentence, if a case was referred to trial by a special trial counsel, a special trial counsel shall determine if a rehearing is impracticable and shall dismiss the charges if the special trial counsel so determines.
(Aug. 10, 1956, ch. 1041, 70A Stat. 60; Pub. L. 88–426, title IV, § 403(j), Aug. 14, 1964, 78 Stat. 434; Pub. L. 90–340, § 1, June 15, 1968, 82 Stat. 178; Pub. L. 90–632, § 2(28), Oct. 24, 1968, 82 Stat. 1342; Pub. L. 96–579, § 12(a), Dec. 23, 1980, 94 Stat. 3369; Pub. L. 97–81, § 5, Nov. 20, 1981, 95 Stat. 1088; Pub. L. 97–295, § 1(12), Oct. 12, 1982, 96 Stat. 1289; Pub. L. 98–209, §§ 7(d), 9(a), 10(c)(2), 13(d), Dec. 6, 1983, 97 Stat. 1402, 1404, 1406, 1408; Pub. L. 100–26, § 7(a)(2), Apr. 21, 1987, 101 Stat. 275; Pub. L. 100–456, div. A, title VII, § 722(a), (c), Sept. 29, 1988, 102 Stat. 2002, 2003; Pub. L. 101–189, div. A, title XIII, § 1301(a), Nov. 29, 1989, 103 Stat. 1569; Pub. L. 103–337, div. A, title IX, § 924(c)(1), (2), (4)(B), Oct. 5, 1994, 108 Stat. 2831, 2832; Pub. L. 114–328, div. E, title LIX, § 5331, Dec. 23, 2016, 130 Stat. 2934; Pub. L. 116–283, div. A, title V, § 542(c), Jan. 1, 2021, 134 Stat. 3612; Pub. L. 117–81, div. A, title V, § 539A(c), Dec. 27, 2021, 135 Stat. 1699.)
§ 867a. Art. 67a. Review by the Supreme Court
(a) Decisions of the United States Court of Appeals for the Armed Forces are subject to review by the Supreme Court by writ of certiorari as provided in section 1259 of title 28. The Supreme Court may not review by a writ of certiorari under this section any action of the United States Court of Appeals for the Armed Forces in refusing to grant a petition for review.
(b) The accused may petition the Supreme Court for a writ of certiorari without prepayment of fees and costs or security therefor and without filing the affidavit required by section 1915(a) of title 28.
(Added Pub. L. 101–189, div. A, title XIII, § 1301(b), Nov. 29, 1989, 103 Stat. 1569; amended Pub. L. 103–337, div. A, title IX, § 924(c)(1), Oct. 5, 1994, 108 Stat. 2831; Pub. L. 114–328, div. E, title LIX, § 5332, Dec. 23, 2016, 130 Stat. 2935; Pub. L. 118–31, div. A, title V, § 533(a)(2)(A), Dec. 22, 2023, 137 Stat. 261.)
§ 868. Art. 68. Branch offices
The Secretary concerned may direct the Judge Advocate General to establish a branch office with any command. The branch office shall be under an Assistant Judge Advocate General who, with the consent of the Judge Advocate General, may establish a Court of Criminal Appeals with one or more panels. That Assistant Judge Advocate General and any Court of Criminal Appeals established by him may perform for that command under the general supervision of the Judge Advocate General, the respective duties which the Judge Advocate General and a Court of Criminal Appeals established by the Judge Advocate General would otherwise be required to perform as to all cases involving sentences not requiring approval by the President.
(Aug. 10, 1956, ch. 1041, 70A Stat. 61; Pub. L. 90–632, § 2(29), Oct. 24, 1968, 82 Stat. 1342; Pub. L. 103–337, div. A, title IX, § 924(c)(2), Oct. 5, 1994, 108 Stat. 2831.)
§ 869. Art. 69. Review by Judge Advocate General
(a)In General.—Upon application by the accused or receipt of the record pursuant to section 864(c)(3) of this title (article 64(c)(3)) and subject to subsections (b), (c), and (d), the Judge Advocate General may—
(1) with respect to a summary court-martial, modify or set aside, in whole or in part, the findings and sentence; or
(2) with respect to a general or special court-martial, order such court-martial to be reviewed under section 866 of this title (article 66).
(b)Timing.—
(1) To qualify for consideration, an application under subsection (a) must be submitted to the Judge Advocate General not later than—
(A) for a summary court-martial, one year after the date of completion of review under section 864 of this title (article 64); or
(B) for a general or special court-martial, one year after the end of the 90-day period beginning on the date the accused is provided notice of appellate rights under section 865(c) of this title (article 65(c)), unless the accused submitted a waiver or withdrawal of appellate review under section 861 of this title (article 61) before being provided notice of appellate rights, in which case the application must be submitted to the Judge Advocate General not later than one year after the entry of judgment under section 860c of this title (article 60c).
(2) The Judge Advocate General may, for good cause shown, extend the period for submission of an application, except that—
(A) in the case of an application for review of a summary court martial, the Judge Advocate may not consider an application submitted more than three years after the completion date referred to in paragraph (1)(A); and
(B) in case of an application for review of a general or special court-martial, the Judge Advocate may not consider an application submitted more than three years after the end of the applicable period under paragraph (1)(B).
(c)Scope.—
(1)
(A) In a case reviewed under section 864 of this title (article 64), the Judge Advocate General may set aside the findings or sentence, in whole or in part, on the grounds of newly discovered evidence, fraud on the court, lack of jurisdiction over the accused or the offense, error prejudicial to the substantial rights of the accused, or the appropriateness of the sentence.
(B) In setting aside findings or sentence, the Judge Advocate General may order a rehearing, except that a rehearing may not be ordered in violation of section 844 of this title (article 44).
(C) If the Judge Advocate General sets aside findings and sentence and does not order a rehearing, the Judge Advocate General shall dismiss the charges.
(D)
(i) Subject to clause (ii), if the Judge Advocate General sets aside findings and orders a rehearing and the convening authority determines that a rehearing would be impracticable, the convening authority shall dismiss the charges.
(ii) If a case was referred to trial by a special trial counsel, a special trial counsel shall determine if a rehearing is impracticable and shall dismiss the charges if the special trial counsel so determines.
(2) In a case reviewed under section 865(b) of this title (article 65(b)), review under this section is limited to the issue of whether the waiver or withdrawal of an appeal was invalid under the law. If the Judge Advocate General determines that the waiver or withdrawal of an appeal was invalid, the Judge Advocate General shall send the case to the Court of Criminal Appeals.
(d)Court of Criminal Appeals.—
(1) A Court of Criminal Appeals may review the action taken by the Judge Advocate General under subsection (c)(1) in a case submitted to the Court of Criminal Appeals by the accused in an application for review.
(2) The Court of Criminal Appeals may grant an application under paragraph (1) only if—
(A) the application demonstrates a substantial basis for concluding that the action on review under subsection (c) constituted prejudicial error; and
(B) the application is filed not later than the earlier of—
(i) 60 days after the date on which the accused is notified of the decision of the Judge Advocate General; or
(ii) 60 days after the date on which a copy of the decision of the Judge Advocate General is deposited in the United States mails for delivery by first-class certified mail to the accused at an address provided by the accused or, if no such address has been provided by the accused, at the latest address listed for the accused in his official service record.
(3) The submission of an application for review under this subsection does not constitute a proceeding before the Court of Criminal Appeals for purposes of section 870(c)(1) of this title (article 70(c)(1)).
(e)Action Only on Matters of Law.—Notwithstanding section 866 of this title (article 66), in any case reviewed by a Court of Criminal Appeals under subsection (d), the Court may take action only with respect to matters of law.
(Aug. 10, 1956, ch. 1041, 70A Stat. 61; Pub. L. 90–632, § 2(30), Oct. 24, 1968, 82 Stat. 1342; Pub. L. 97–81, § 6, Nov. 20, 1981, 95 Stat. 1089; Pub. L. 98–209, § 7(e)(1), Dec. 6, 1983, 97 Stat. 1402; Pub. L. 101–189, div. A, title XIII, §§ 1302(a), 1304(b)(1), Nov. 29, 1989, 103 Stat. 1576, 1577; Pub. L. 103–337, div. A, title IX, § 924(c)(2), Oct. 5, 1994, 108 Stat. 2831; Pub. L. 114–328, div. E, title LIX, § 5333, Dec. 23, 2016, 130 Stat. 2935; Pub. L. 115–91, div. A, title X, § 1081(c)(1)(L), Dec. 12, 2017, 131 Stat. 1598; Pub. L. 117–81, div. A, title V, § 539A(d), Dec. 27, 2021, 135 Stat. 1699; Pub. L. 117–263, div. A, title V, § 544(c), Dec. 23, 2022, 136 Stat. 2582.)
§ 870. Art. 70. Appellate counsel
(a) The Judge Advocate General shall detail in his office one or more commissioned officers as appellate Government counsel, and one or more commissioned officers as appellate defense counsel, who are qualified under section 827(b)(1) of this title (article 27(b)(1)).
(b) Appellate Government counsel shall represent the United States before the Court of Criminal Appeals or the Court of Appeals for the Armed Forces when directed to do so by the Judge Advocate General. Appellate Government counsel may represent the United States before the Supreme Court in cases arising under this chapter when requested to do so by the Attorney General.
(c) Appellate defense counsel shall represent the accused before the Court of Criminal Appeals, the Court of Appeals for the Armed Forces, or the Supreme Court—
(1) when requested by the accused;
(2) when the United States is represented by counsel; or
(3) when the Judge Advocate General has sent the case to the Court of Appeals for the Armed Forces.
(d) The accused has the right to be represented before the Court of Criminal Appeals, the Court of Appeals for the Armed Forces, or the Supreme Court by civilian counsel if provided by him.
(e) Military appellate counsel shall also perform such other functions in connection with the review of court martial cases as the Judge Advocate General directs.
(f) To the greatest extent practicable, in any capital case, at least one defense counsel under subsection (c) shall, as determined by the Judge Advocate General, be learned in the law applicable to such cases. If necessary, this counsel may be a civilian and, if so, may be compensated in accordance with regulations prescribed by the Secretary of Defense.
(Aug. 10, 1956, ch. 1041, 70A Stat. 62; Pub. L. 90–632, § 2(31), Oct. 24, 1968, 82 Stat. 1342; Pub. L. 98–209, § 10(c)(3), Dec. 6, 1983, 97 Stat. 1406; Pub. L. 103–337, div. A, title IX, § 924(c)(1), (2), Oct. 5, 1994, 108 Stat. 2831; Pub. L. 114–328, div. E, title LIX, § 5334, Dec. 23, 2016, 130 Stat. 2936.)
[§ 871. Repealed. Pub. L. 114–328, div. E, title LVIII, § 5302(b)(2), Dec. 23, 2016, 130 Stat. 2923]
§ 872. Art. 72. Vacation of suspension
(a) Before the vacation of the suspension of a special court-martial sentence which as approved includes a bad-conduct discharge, or of any general court-martial sentence, the officer having special court-martial jurisdiction over the probationer shall hold a hearing on the alleged violation of probation. The special court-martial convening authority may detail a judge advocate, who is certified under section 827(b) of this title (article 27(b)), to conduct the hearing. The probationer shall be represented at the hearing by counsel if the probationer so desires.
(b) The record of the hearing and the recommendation of the officer having special court-martial jurisdiction shall be sent for action to the officer exercising general court-martial jurisdiction over the probationer. If the officer exercising general court-martial jurisdiction vacates the suspension, any unexecuted part of the sentence, except a dismissal, shall be executed, subject to applicable restrictions in section 857 of this title (article 57). The vacation of the suspension of a dismissal is not effective until approved by the Secretary concerned.
(c) The suspension of any other sentence may be vacated by any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence.
(Aug. 10, 1956, ch. 1041, 70A Stat. 63; Pub. L. 114–328, div. E, title LIX, § 5335, Dec. 23, 2016, 130 Stat. 2936.)
§ 873. Art. 73. Petition for a new trial
At any time within three years after the date of the entry of judgment under section 860c of this title (article 60c), the accused may petition the Judge Advocate General for a new trial on the grounds of newly discovered evidence or fraud on the court. If the accused’s case is pending before a Court of Criminal Appeals or before the Court of Appeals for the Armed Forces, the Judge Advocate General shall refer the petition to the appropriate court for action. Otherwise the Judge Advocate General shall act upon the petition.
(Aug. 10, 1956, ch. 1041, 70A Stat. 63; Pub. L. 90–632, § 2(33), Oct. 24, 1968, 82 Stat. 1342; Pub. L. 103–337, div. A, title IX, § 924(c)(1), (2), Oct. 5, 1994, 108 Stat. 2831; Pub. L. 114–328, div. E, title LIX, § 5336, Dec. 23, 2016, 130 Stat. 2937.)
§ 874. Art. 74. Remission and suspension
(a) The Secretary concerned and, when designated by him, any Under Secretary, Assistant Secretary, Judge Advocate General, or commanding officer may remit or suspend any part or amount of the unexecuted part of any sentence, including all uncollected forfeitures other than a sentence approved by the President. However, in the case of a sentence of confinement for life without eligibility for parole that is adjudged for an offense committed after October 29, 2000, after the sentence is ordered executed, the authority of the Secretary concerned under the preceding sentence (1) may not be delegated, and (2) may be exercised only after the service of a period of confinement of not less than 20 years.
(b) The Secretary concerned may, for good cause, substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial.
(Aug. 10, 1956, ch. 1041, 70A Stat. 63; Pub. L. 106–398, § 1 [[div. A], title V, § 553(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–125; Pub. L. 107–107, div. A, title X, § 1048(a)(8), Dec. 28, 2001, 115 Stat. 1223.)
§ 875. Art. 75. Restoration
(a) Under such regulations as the President may prescribe, all rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved, except an executed dismissal or discharge, shall be restored unless a new trial or rehearing is ordered and such executed part is included in a sentence imposed upon the new trial or rehearing.
(b) If a previously executed sentence of dishonorable or bad-conduct discharge is not imposed on a new trial, the Secretary concerned shall substitute therefor a form of discharge authorized for administrative issuance unless the accused is to serve out the remainder of his enlistment.
(c) If a previously executed sentence of dismissal is not imposed on a new trial, the Secretary concerned shall substitute therefor a form of discharge authorized for administrative issue, and the commissioned officer dismissed by that sentence may be reappointed by the President alone to such commissioned grade and with such rank as in the opinion of the President that former officer would have attained had he not been dismissed. The reappointment of such a former officer shall be without regard to the existence of a vacancy and shall affect the promotion status of other officers only insofar as the President may direct. All time between the dismissal and the reappointment shall be considered as actual service for all purposes, including the right to pay and allowances.
(d) The President shall prescribe regulations, with such limitations as the President considers appropriate, governing eligibility for pay and allowances for the period after the date on which an executed part of a court-martial sentence is set aside.
(Aug. 10, 1956, ch. 1041, 70A Stat. 63; Pub. L. 114–328, div. E, title LIX, § 5337, Dec. 23, 2016, 130 Stat. 2937.)
§ 876. Art. 76. Finality of proceedings, findings, and sentences
The appellate review of records of trial provided by this chapter, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this chapter, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this chapter, are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States, subject only to action upon a petition for a new trial as provided in section 873 of this title (article 73) and to action by the Secretary concerned as provided in section 874 of this title (article 74) and the authority of the President.
(Aug. 10, 1956, ch. 1041, 70A Stat. 64.)
§ 876a. Art. 76a. Leave required to be taken pending review of certain court-martial convictions
Under regulations prescribed by the Secretary concerned, an accused who has been sentenced by a court-martial may be required to take leave pending completion of action under this subchapter if the sentence includes an unsuspended dismissal or an unsuspended dishonorable or bad-conduct discharge. The accused may be required to begin such leave on the date of the entry of judgment under section 860c of this title (article 60c) or at any time after such date, and such leave may be continued until the date on which action under this subchapter is completed or may be terminated at any earlier time.
(Added Pub. L. 97–81, § 2(c)(1), Nov. 20, 1981, 95 Stat. 1087; amended Pub. L. 98–209, § 5(g), Dec. 6, 1983, 97 Stat. 1400; Pub. L. 114–328, div. E, title LIX, § 5338, Dec. 23, 2016, 130 Stat. 2937.)
§ 876b. Art. 76b. Lack of mental capacity or mental responsibility: commitment of accused for examination and treatment
(a)Persons Incompetent To Stand Trial.—
(1) In the case of a person determined under this chapter to be presently suffering from a mental disease or defect rendering the person mentally incompetent to the extent that the person is unable to understand the nature of the proceedings against that person or to conduct or cooperate intelligently in the defense of the case, the general court-martial convening authority for that person shall commit the person to the custody of the Attorney General.
(2) The Attorney General shall take action in accordance with section 4241(d) of title 18.
(3) If at the end of the period for hospitalization provided for in section 4241(d) of title 18, it is determined that the committed person’s mental condition has not so improved as to permit the trial to proceed, action shall be taken in accordance with section 4246 of such title.
(4)
(A) When the director of a facility in which a person is hospitalized pursuant to paragraph (2) determines that the person has recovered to such an extent that the person is able to understand the nature of the proceedings against the person and to conduct or cooperate intelligently in the defense of the case, the director shall promptly transmit a notification of that determination to the Attorney General and to the general court-martial convening authority for the person. The director shall send a copy of the notification to the person’s counsel.
(B) Upon receipt of a notification, the general court-martial convening authority shall promptly take custody of the person unless the person covered by the notification is no longer subject to this chapter. If the person is no longer subject to this chapter, the Attorney General shall take any action within the authority of the Attorney General that the Attorney General considers appropriate regarding the person.
(C) The director of the facility may retain custody of the person for not more than 30 days after transmitting the notifications required by subparagraph (A).
(5) In the application of section 4246 of title 18 to a case under this subsection, references to the court that ordered the commitment of a person, and to the clerk of such court, shall be deemed to refer to the general court-martial convening authority for that person. However, if the person is no longer subject to this chapter at a time relevant to the application of such section to the person, the United States district court for the district where the person is hospitalized or otherwise may be found shall be considered as the court that ordered the commitment of the person.
(b)Persons Found Not Guilty by Reason of Lack of Mental Responsibility.—
(1) If a person is found by a court-martial not guilty only by reason of lack of mental responsibility, the person shall be committed to a suitable facility until the person is eligible for release in accordance with this section.
(2) The court-martial shall conduct a hearing on the mental condition in accordance with subsection (c) of section 4243 of title 18. Subsections (b) and (d) of that section shall apply with respect to the hearing.
(3) A report of the results of the hearing shall be made to the general court-martial convening authority for the person.
(4) If the court-martial fails to find by the standard specified in subsection (d) of section 4243 of title 18 that the person’s release would not create a substantial risk of bodily injury to another person or serious damage of property of another due to a present mental disease or defect—
(A) the general court-martial convening authority may commit the person to the custody of the Attorney General; and
(B) the Attorney General shall take action in accordance with subsection (e) of section 4243 of title 18.
(5) Subsections (f), (g), and (h) of section 4243 of title 18 shall apply in the case of a person hospitalized pursuant to paragraph (4)(B), except that the United States district court for the district where the person is hospitalized shall be considered as the court that ordered the person’s commitment.
(c)General Provisions.—
(1) Except as otherwise provided in this subsection and subsection (d)(1), the provisions of section 4247 of title 18 apply in the administration of this section.
(2) In the application of section 4247(d) of title 18 to hearings conducted by a court-martial under this section or by (or by order of) a general court-martial convening authority under this section, the reference in that section to section 3006A of such title does not apply.
(d)Applicability.—
(1) The provisions of chapter 313 of title 18 referred to in this section apply according to the provisions of this section notwithstanding section 4247(j) of title 18.
(2) If the status of a person as described in section 802 of this title (article 2) terminates while the person is, pursuant to this section, in the custody of the Attorney General, hospitalized, or on conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment, the provisions of this section establishing requirements and procedures regarding a person no longer subject to this chapter shall continue to apply to that person notwithstanding the change of status.
(Added Pub. L. 104–106, div. A, title XI, § 1133(a)(1), Feb. 10, 1996, 110 Stat. 464.)