Collapse to view only § 855. Art. 55. Cruel and unusual punishments prohibited
- § 855. Art. 55. Cruel and unusual punishments prohibited
- § 856. Art. 56. Sentencing
- [§ 856a. Repealed.
- § 857. Art. 57. Effective date of sentences
- [§ 857a. Repealed.
- § 858. Art. 58. Execution of confinement
- § 858a. Art. 58a. Sentences: reduction in enlisted grade
- § 858b. Art. 58b. Sentences: forfeiture of pay and allowances during confinement
§ 855. Art. 55. Cruel and unusual punishments prohibited
Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by any court-martial or inflicted upon any person subject to this chapter. The use of irons, single or double, except for the purpose of safe custody, is prohibited.
(Aug. 10, 1956, ch. 1041, 70A Stat. 56.)
§ 856. Art. 56. Sentencing
(a)Sentence Maximums.—The punishment which a court-martial may direct for an offense may not exceed such limits as the President may prescribe for that offense.
(b)Sentence Minimums for Certain Offenses.—
(1) Except as provided in subsection (c) 1
1 See References in Text note below.
of section 853a of this title (article 53a), punishment for any offense specified in paragraph (2) shall include dismissal or dishonorable discharge, as applicable.(2) The offenses referred to in paragraph (1) are as follows:
(A) Rape under subsection (a) of section 920 of this title (article 120).
(B) Sexual assault under subsection (b) of such section (article).
(C) Rape of a child under subsection (a) of section 920b of this title (article 120b).
(D) Sexual assault of a child under subsection (b) of such section (article).
(E) An attempt to commit an offense specified in subparagraph (A), (B), (C), or (D) that is punishable under section 880 of this title (article 80).
(F) Conspiracy to commit an offense specified in subparagraph (A), (B), (C), or (D) that is punishable under section 881 of this title (article 81).
(c)Imposition of Sentence.—
(1)In general.—In sentencing an accused under section 853 of this title (article 53), a court-martial shall impose punishment that is sufficient, but not greater than necessary, to promote justice and to maintain good order and discipline in the armed forces, taking into consideration—
(A) the nature and circumstances of the offense and the history and characteristics of the accused;
(B) the impact of the offense on—
(i) the financial, social, psychological, or medical well-being of any victim of the offense; and
(ii) the mission, discipline, or efficiency of the command of the accused and any victim of the offense;
(C) the need for the sentence—
(i) to reflect the seriousness of the offense;
(ii) to promote respect for the law;
(iii) to provide just punishment for the offense;
(iv) to promote adequate deterrence of misconduct;
(v) to protect others from further crimes by the accused;
(vi) to rehabilitate the accused; and
(vii) to provide, in appropriate cases, the opportunity for retraining and return to duty to meet the needs of the service;
(D) the sentences available under this chapter; and
(E) the applicable sentencing parameters or sentencing criteria set forth in regulations prescribed by the President pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022.
(2)Application of sentencing parameters in general and special courts-martial.—
(A)Requirement to sentence within parameters.—Except as provided in subparagraph (B), in a general or special court-martial in which the accused is convicted 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, the military judge shall sentence the accused for that offense within the applicable parameter.
(B)Exception.—The military judge may impose a sentence outside a sentencing parameter upon finding specific facts that warrant such a sentence. If the military judge imposes a sentence outside a sentencing parameter under this subparagraph, the military judge shall include in the record a written statement of the factual basis for the sentence.
(3)Use of sentencing criteria in general and special courts-martial.—In a general or special court-martial in which the accused is convicted of an offense for which the President has established sentencing criteria pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022, the military judge shall consider the applicable sentencing criteria in determining the sentence for that offense.
(4)Offense-based sentencing in general and special courts-martial.—In announcing the sentence under section 853 of this title (article 53) in a general or special court-martial, the military judge shall, with respect to each offense of which the accused is found guilty, specify the term of confinement, if any, and the amount of the fine, if any. If the accused is sentenced to confinement for more than one offense, the military judge shall specify whether the terms of confinement are to run consecutively or concurrently.
(5)Inapplicability to death penalty.—Sentencing parameters and sentencing criteria shall not apply to a determination of whether an offense should be punished by death.
(6)Sentence of confinement for life without eligibility for parole.—
(A)In general.—If an offense is subject to a sentence of confinement for life, a court-martial may impose a sentence of confinement for life without eligibility for parole.
(B)Term of confinement.—An accused who is sentenced to confinement for life without eligibility for parole shall be confined for the remainder of the accused’s life unless—
(i) the sentence is set aside or otherwise modified as a result of—(I) action taken by the convening authority or the Secretary concerned; or(II) any other action taken during post-trial procedure or review under any other provision of subchapter IX of this chapter;
(ii) the sentence is set aside or otherwise modified as a result of action taken by a court of competent jurisdiction; or
(iii) the accused receives a pardon or another form of Executive clemency.
(d)Appeal of Sentence by the United States.—
(1) With the approval of the Judge Advocate General concerned, and consistent with standards and procedures set forth in regulations prescribed by the President, the Government may appeal a sentence to the Court of Criminal Appeals, on the grounds that—
(A) the sentence violates the law;
(B) 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, the sentence is a result of an incorrect application of the parameter; or
(C) the sentence is plainly unreasonable.
(2) An appeal under this subsection must be filed within 60 days after the date on which the judgment of a court-martial is entered into the record under section 860c of this title (article 60c).
(Aug. 10, 1956, ch. 1041, 70A Stat. 56; Pub. L. 113–66, div. A, title XVII, § 1702(a)(1), (2)(A), Dec. 26, 2013, 127 Stat. 959; Pub. L. 114–328, div. E, title LVIII, § 5301(a), Dec. 23, 2016, 130 Stat. 2919; Pub. L. 115–91, div. A, title V, § 531(e), Dec. 12, 2017, 131 Stat. 1385; Pub. L. 117–81, div. A, title V, § 539E(c), title X, § 1081(a)(14), Dec. 27, 2021, 135 Stat. 1701, 1920.)
[§ 856a. Repealed. Pub. L. 114–328, div. E, title LVIII, § 5301(b), Dec. 23, 2016, 130 Stat. 2920]
§ 857. Art. 57. Effective date of sentences
(a)Execution of Sentences.—A court-martial sentence shall be executed and take effect as follows:
(1)Forfeiture and reduction.—A forfeiture of pay or allowances shall be applicable to pay and allowances accruing on and after the date on which the sentence takes effect. Any forfeiture of pay or allowances or reduction in grade that is included in a sentence of a court-martial takes effect on the earlier of—
(A) the date that is 14 days after the date on which the sentence is adjudged; or
(B) in the case of a summary court-martial, the date on which the sentence is approved by the convening authority.
(2)Confinement.—Any period of confinement included in a sentence of a court-martial begins to run from the date the sentence is adjudged by the court-martial, but periods during which the sentence to confinement is suspended or deferred shall be excluded in computing the service of the term of confinement.
(3)Approval of sentence of death.—If the sentence of the court-martial extends to death, that part of the sentence providing for death may not be executed until approved by the President. In such a case, the President may commute, remit, or suspend the sentence, or any part thereof, as the President sees fit. That part of the sentence providing for death may not be suspended.
(4)Approval of dismissal.—If in the case of a commissioned officer, cadet, or midshipman, the sentence of a court-martial extends to dismissal, that part of the sentence providing for dismissal may not be executed until approved by the Secretary concerned or such Under Secretary or Assistant Secretary as may be designated by the Secretary concerned. In such a case, the Secretary, Under Secretary, or Assistant Secretary, as the case may be, may commute, remit, or suspend the sentence, or any part of the sentence, as the Secretary sees fit. In time of war or national emergency he may commute a sentence of dismissal to reduction to any enlisted grade. A person so reduced may be required to serve for the duration of the war or emergency and six months thereafter.
(5)Completion of appellate review.—If a sentence extends to death, dismissal, or a dishonorable or bad-conduct discharge, that part of the sentence extending to death, dismissal, or a dishonorable or bad-conduct discharge may be executed, in accordance with service regulations, after completion of appellate review (and, with respect to death or dismissal, approval under paragraph (3) or (4), as appropriate).
(6)Other sentences.—Except as otherwise provided in this subsection, a general or special court-martial sentence is effective upon entry of judgment and a summary court-martial sentence is effective when the convening authority acts on the sentence.
(b)Deferral of Sentences.—
(1)In general.—On application by an accused, the convening authority or, if the accused is no longer under his or her jurisdiction, the officer exercising general court-martial jurisdiction over the command to which the accused is currently assigned, may, in his or her sole discretion, defer the effective date of a sentence of confinement, reduction, or forfeiture. The deferment shall terminate upon entry of judgment or, in the case of a summary court-martial, when the convening authority acts on the sentence. The deferment may be rescinded at any time by the officer who granted it or, if the accused is no longer under his jurisdiction, by the officer exercising general court-martial jurisdiction over the command to which the accused is currently assigned.
(2)Deferral of certain persons sentenced to confinement.—In any case in which a court-martial sentences a person referred to in paragraph (3) to confinement, the convening authority may defer the service of the sentence to confinement, without the consent of that person, until after the person has been permanently released to the armed forces by a State or foreign country referred to in that paragraph.
(3)Covered persons.—Paragraph (2) applies to a person subject to this chapter who—
(A) while in the custody of a State or foreign country is temporarily returned by that State or foreign country to the armed forces for trial by court-martial; and
(B) after the court-martial, is returned to that State or foreign country under the authority of a mutual agreement or treaty, as the case may be.
(4)State defined.—In this subsection, the term “State” includes the District of Columbia and any Commonwealth, territory, or possession of the United States.
(5)Deferral while review pending.—In any case in which a court-martial sentences a person to confinement, but in which review of the case under section 867(a)(2) of this title (article 67(a)(2)) is pending, the Secretary concerned may defer further service of the sentence to confinement while that review is pending.
(c)Appellate Review.—
(1)Completion of appellate review.—Appellate review is complete under this section when—
(A) a review under section 865 of this title (article 65) is completed; or
(B) a review under section 866 of this title (article 66) is completed by a Court of Criminal Appeals and—
(i) the time for the accused to file a petition for review by the Court of Appeals for the Armed Forces has expired and the accused has not filed a timely petition for such review and the case is not otherwise under review by that Court;
(ii) such a petition is rejected by the Court of Appeals for the Armed Forces; or
(iii) review is completed in accordance with the judgment of the Court of Appeals for the Armed Forces and—(I) a petition for a writ of certiorari is not filed within the time limits prescribed by the Supreme Court;(II) such a petition is rejected by the Supreme Court; or(III) review is otherwise completed in accordance with the judgment of the Supreme Court.
(2)Completion as final judgment of legality of proceedings.—The completion of appellate review shall constitute a final judgment as to the legality of the proceedings.
(Aug. 10, 1956, ch. 1041, 70A Stat. 56; Pub. L. 90–632, § 2(24), Oct. 24, 1968, 82 Stat. 1341; Pub. L. 98–209, § 5(f), Dec. 6, 1983, 97 Stat. 1400; Pub. L. 102–484, div. A, title X, § 1064
[§ 857a. Repealed. Pub. L. 114–328, div. E, title LVIII, § 5302(b)(1), Dec. 23, 2016, 130 Stat. 2923]
§ 858. Art. 58. Execution of confinement
(a) Under such instructions as the Secretary concerned may prescribe, a sentence of confinement adjudged by a court-martial or other military tribunal, whether or not the sentence includes discharge or dismissal, and whether or not the discharge or dismissal has been executed, may be carried into execution by confinement in any place of confinement under the control of any of the armed forces or in any penal or correctional institution under the control of the United States, or which the United States may be allowed to use. Persons so confined in a penal or correctional institution not under the control of one of the armed forces are subject to the same discipline and treatment as persons confined or committed by the courts of the United States or of the State, District of Columbia, or place in which the institution is situated.
(b) The omission of the words “hard labor” from any sentence of a court-martial adjudging confinement does not deprive the authority executing that sentence of the power to require hard labor as a part of the punishment.
(Aug. 10, 1956, ch. 1041, 70A Stat. 57; Pub. L. 109–163, div. A, title X, § 1057(a)(3), Jan. 6, 2006, 119 Stat. 3440.)
§ 858a. Art. 58a. Sentences: reduction in enlisted grade
(a) A court-martial sentence of an enlisted member in a pay grade above E–1, as set forth in the judgment of the court-martial entered into the record under section 860c of this title (article 60c), that includes—
(1) a dishonorable or bad-conduct discharge;
(2) confinement; or
(3) hard labor without confinement;
reduces that member to pay grade E–1, if such a reduction is authorized by regulation prescribed by the President. The reduction in pay grade shall take effect on the date on which the judgment is so entered.
(b) If the sentence of a member who is reduced in pay grade under subsection (a) is set aside or reduced, or, as finally affirmed, does not include any punishment named in subsection (a)(1), (2), or (3), the rights and privileges of which he was deprived because of that reduction shall be restored to him and he is entitled to the pay and allowances to which he would have been entitled, for the period the reduction was in effect, had he not been so reduced.
(Added Pub. L. 86–633, § 1(1), July 12, 1960, 74 Stat. 468; amended Pub. L. 114–328, div. E, title LVIII, § 5303, Dec. 23, 2016, 130 Stat. 2923; Pub. L. 115–91, div. A, title V, § 531(f)(1), (2), Dec. 12, 2017, 131 Stat. 1385.)
§ 858b. Art. 58b. Sentences: forfeiture of pay and allowances during confinement
(a)
(1) A court-martial sentence described in paragraph (2) shall result in the forfeiture of pay, or of pay and allowances, due that member during any period of confinement or parole. The forfeiture pursuant to this section shall take effect on the date determined under section 857 of this title (article 57) and may be deferred as provided in that section. The pay and allowances forfeited, in the case of a general court-martial, shall be all pay and allowances due that member during such period and, in the case of a special court-martial, shall be two-thirds of all pay due that member during such period.
(2) A sentence covered by this section is any sentence that includes—
(A) confinement for more than six months or death; or
(B) confinement for six months or less and a dishonorable or bad-conduct discharge or dismissal.
(b) In a case involving an accused who has dependents, the convening authority or other person acting under section 860a or 860b of this title (article 60a or 60b) may waive any or all of the forfeitures of pay and allowances required by subsection (a) for a period not to exceed six months. Any amount of pay or allowances that, except for a waiver under this subsection, would be forfeited shall be paid, as the convening authority or other person taking action directs, to the dependents of the accused.
(c) If the sentence of a member who forfeits pay and allowances under subsection (a) is set aside or disapproved or, as finally approved, does not provide for a punishment referred to in subsection (a)(2), the member shall be paid the pay and allowances which the member would have been paid, except for the forfeiture, for the period during which the forfeiture was in effect.
(Added Pub. L. 104–106, div. A, title XI, § 1122(a)(1), Feb. 10, 1996, 110 Stat. 463; amended Pub. L. 104–201, div. A, title X, § 1068(a)(1), Sept. 23, 1996, 110 Stat. 2655; Pub. L. 105–85, div. A, title X, § 1073(a)(9), Nov. 18, 1997, 111 Stat. 1900; Pub. L. 114–328, div. E, title LVIII, § 5302(b)(3), Dec. 23, 2016, 130 Stat. 2923; Pub. L. 115–91, div. A, title V, § 531(g), Dec. 12, 2017, 131 Stat. 1385.)