Page 425 TITLE 10—ARMED FORCES § 777a tration of the limitation under that section for Navy, vice admiral or admiral, and an officer that fiscal year. serving in the grade of lieutenant general or vice admiral who has been selected for appoint- (Added Pub. L. 104–106, div. A, title V, § 503(a)(1), ment to the grade of general or admiral, may be Feb. 10, 1996, 110 Stat. 294; amended Pub. L. authorized, under regulations and policies of the 105–85, div. A, title V, § 505, Nov. 18, 1997, 111 Department of Defense and subject to subsection Stat. 1726; Pub. L. 106–65, div. A, title V, § 502, (b), to wear the insignia for that higher grade Oct. 5, 1999, 113 Stat. 590; Pub. L. 108–136, div. A, for a period of up to 14 days before assuming the title V, § 509(a), Nov. 24, 2003, 117 Stat. 1458; Pub. duties of a position for which the higher grade is L. 108–375, div. A, title V, § 503, Oct. 28, 2004, 118 authorized. An officer who is so authorized to Stat. 1875; Pub. L. 109–163, div. A, title V, wear the insignia of a higher grade is said to be §§ 503(c), 504, Jan. 6, 2006, 119 Stat. 3226; Pub. L. ‘‘frocked’’ to that grade. 111–383, div. A, title V, § 505(b), Jan. 7, 2011, 124 (b) RESTRICTIONS.—An officer may not be au- Stat. 4210.) thorized to wear the insignia for a grade as de- AMENDMENTS scribed in subsection (a) unless— 2011—Subsec. (b)(3)(B). Pub. L. 111–383 struck out (1) the Senate has given its advice and con- ‘‘and a period of 30 days has elapsed after the date of sent to the appointment of the officer to that the notification’’ after ‘‘grade’’. grade; 2006—Subsec. (a). Pub. L. 109–163, § 503(c), inserted ‘‘in (2) the officer has received orders to serve in a grade below the grade of major general or, in the case a position outside the military department of of the Navy, rear admiral,’’ after ‘‘An officer’’ in first that officer for which that grade is authorized; sentence. (3) the Secretary of Defense (or a civilian of- Subsec. (d)(1). Pub. L. 109–163, § 504(1), substituted ficer within the Office of the Secretary of De- ‘‘colonels, Navy captains, brigadier generals, and rear admirals (lower half)’’ for ‘‘brigadier generals and Navy fense whose appointment was made with the rear admirals (lower half)’’ and ‘‘the next higher grade advice and consent of the Senate and to whom may not exceed 85’’ for ‘‘the grade of major general or the Secretary delegates such approval author- rear admiral, as the case may be, may not exceed 30’’. ity) has given approval for the officer to wear Subsec. (d)(2), (3). Pub. L. 109–163, § 504(2), (3), redesig- the insignia for that grade before assuming nated par. (3) as (2) and struck out former par. (2) which the duties of a position for which that grade is read as follows: ‘‘The total number of colonels and authorized; and Navy captains on the active-duty list who are author- (4) the Secretary of Defense has submitted ized as described in subsection (a) to wear the insignia for the grade of brigadier general or rear admiral to Congress a written notification of the in- (lower half), as the case may be, may not exceed 55.’’ tent to authorize the officer to wear the insig- 2004—Subsec. (d). Pub. L. 108–375 added par. (1) and re- nia for that grade. designated former pars. (1) and (2) as (2) and (3), respec- (c) BENEFITS NOT TO BE CONSTRUED AS ACCRU- tively. 2003—Subsec. (b)(3). Pub. L. 108–136 added par. (3). ING.—(1) Authority provided to an officer as de- 1999—Subsec. (d)(1). Pub. L. 106–65 substituted ‘‘55.’’ scribed in subsection (a) to wear the insignia of for ‘‘the following:’’ and struck out subpars. (A) to (C) a higher grade may not be construed as confer- which read as follows: ring authority for that officer to— ‘‘(A) During fiscal years 1996 and 1997, 75. (A) be paid the rate of pay provided for an ‘‘(B) During fiscal year 1998, 55. officer in that grade having the same number ‘‘(C) After fiscal year 1998, 35.’’ of years of service as that officer; or 1997—Subsec. (d)(2). Pub. L. 105–85 inserted ‘‘, or, for (B) assume any legal authority associated the grades of colonel and Navy captain, 2 percent,’’ with that grade. after ‘‘1 percent’’. (2) The period for which an officer wears the EFFECTIVE DATE OF 2003 AMENDMENT insignia of a higher grade under such authority Pub. L. 108–136, div. A, title V, § 509(b), Nov. 24, 2003, may not be taken into account for any of the 117 Stat. 1459, provided that: ‘‘Paragraph (3) of sub- following purposes: section (b) of section 777 of title 10, United States Code, (A) Seniority in that grade. as added by subsection (a), shall not apply with respect (B) Time of service in that grade. to the wearing by an officer of insignia for a grade that was authorized under that section before the date of (d) LIMITATION ON NUMBER OF OFFICERS the enactment of this Act [Nov. 24, 2003].’’ FROCKED.—The total number of officers who are TEMPORARY VARIATION OF LIMITATIONS ON NUMBERS authorized to wear the insignia for a higher OF FROCKED OFFICERS grade under this section shall count against the limitation in section 777(d) of this title on the Pub. L. 104–106, div. A, title V, § 503(b), Feb. 10, 1996, 110 Stat. 294, provided that in the administration of total number of officers authorized to wear the former subsec. (d)(2) of this section, the percent limita- insignia of a higher grade. tion applied under that section for fiscal year 1996 (Added Pub. L. 111–383, div. A, title V, § 505(a)(1), would be 2 percent, rather than 1 percent. Jan. 7, 2011, 124 Stat. 4208.) § 777a. Wearing of insignia of higher grade before CHAPTER 47—UNIFORM CODE OF MILITARY appointment to a grade above major general JUSTICE or rear admiral (frocking): authority; restric- Subchapter Sec. Art. tions I. General Provisions ...... 801 1 II. Apprehension and Restraint ...... 807 7 (a) AUTHORITY.—An officer serving in a grade III. Non-Judicial Punishment ...... 815 15 below the grade of lieutenant general or, in the IV. Court-Martial Jurisdiction ...... 816 16 case of the Navy, vice admiral, who has been se- V. Composition of Courts-Martial .. 822 22 lected for appointment to the grade of lieuten- VI. Pre-Trial Procedure ...... 830 30 ant general or general, or, in the case of the VII. Trial Procedure ...... 836 36 § 801 TITLE 10—ARMED FORCES Page 426

Subchapter Sec. Art. and any other midshipman on active duty in VIII. Sentences ...... 855 55 the naval service. IX. Post-Trial Procedure and Re- (8) The term ‘‘military’’ refers to any or all view of Courts-Martial ...... 859 59 of the armed forces. X. Punitive Articles ...... 877 77 (9) The term ‘‘accuser’’ means a person who XI. Miscellaneous Provisions ...... 935 135 signs and swears to charges, any person who XII. United States Court of Appeals directs that charges nominally be signed and for the Armed Forces ...... 941 141 sworn to by another, and any other person who AMENDMENTS has an interest other than an official interest 1994—Pub. L. 103–337, div. A, title IX, § 924(c)(3)(B), in the prosecution of the accused. Oct. 5, 1994, 108 Stat. 2832, substituted ‘‘United States (10) The term ‘‘military judge’’ means an of- Court of Appeals for the Armed Forces’’ for ‘‘Court of ficial of a general or special court-martial de- Military Appeals’’ in item for subchapter XII. tailed in accordance with section 826 of this 1989—Pub. L. 101–189, div. A, title XIII, § 1304(a)(1), title (article 26). Nov. 29, 1989, 103 Stat. 1576, added item for subchapter [(11) Repealed. Pub. L. 109–241, title II, XII. § 218(a)(1), July 11, 2006, 120 Stat. 526.] 1983—Pub. L. 98–209, § 5(h)(1), Dec. 6, 1983, 97 Stat. 1400, (12) The term ‘‘legal officer’’ means any substituted ‘‘IX. Post-Trial Procedure and Review of commissioned officer of the Navy, Marine Courts-Martial’’ for ‘‘IX. Review of Courts-Martial’’. 1958—Pub. L. 85–861, § 33(a)(6), Sept. 2, 1958, 72 Stat. Corps, or Coast Guard designated to perform 1564, substituted 801, 807, 815, 816, 822, 830, 836, 855, 859, legal duties for a command. 877 and 935 for 1901, 1913, 1929, 1931, 1943, 1959, 1971, 2009, (13) The term ‘‘judge advocate’’ means— 2017, 2053 and 2169, respectively. (A) an officer of the Judge Advocate Gen- eral’s Corps of the Army or the Navy; SUBCHAPTER I—GENERAL PROVISIONS (B) an officer of the Air Force or the Ma- rine Corps who is designated as a judge advo- Sec. Art. cate; or 801. 1. Definitions. (C) a commissioned officer of the Coast 802. 2. Persons subject to this chapter. Guard designated for special duty (law). 803. 3. Jurisdiction to try certain personnel. 804. 4. Dismissed officer’s right to trial by court- (14) The term ‘‘record’’, when used in connec- martial. tion with the proceedings of a court-martial, 805. 5. Territorial applicability of this chapter. means— 806. 6. Judge advocates and legal officers. (A) an official written transcript, written 806a. 6a. Investigation and disposition of matters summary, or other writing relating to the pertaining to the fitness of military judges. proceedings; or 806b. 6b. Rights of the victim of an offense under (B) an official audiotape, videotape, or this chapter. similar material from which sound, or sound and visual images, depicting the proceedings AMENDMENTS may be reproduced. 2013—Pub. L. 113–66, div. A, title XVII, § 1701(a)(2), Dec. 26, 2013, 127 Stat. 953, added item 806b. (15) The term ‘‘classified information’’ 1989—Pub. L. 101–189, div. A, title XIII, § 1304(a)(2), means (A) any information or material that Nov. 29, 1989, 103 Stat. 1576, added item 806a. has been determined by an official of the United States pursuant to law, an Executive § 801. Article 1. Definitions order, or regulation to require protection In this chapter: against unauthorized disclosure for reasons of (1) The term ‘‘Judge Advocate General’’ national security, and (B) any restricted data, means, severally, the Judge Advocates Gen- as defined in section 11(y) of the Atomic En- eral of the Army, Navy, and Air Force and, ex- ergy Act of 1954 (42 U.S.C. 2014(y)). cept when the Coast Guard is operating as a (16) The term ‘‘national security’’ means the service in the Navy, an official designated to national defense and foreign relations of the serve as Judge Advocate General of the Coast United States. Guard by the Secretary of Homeland Security. (Aug. 10, 1956, ch. 1041, 70A Stat. 36; Pub. L. (2) The Navy, the Marine Corps, and the 89–670, § 10(g), Oct. 15, 1966, 80 Stat. 948; Pub. L. Coast Guard when it is operating as a service 90–179, § 1(1), (2), Dec. 8, 1967, 81 Stat. 545; Pub. L. in the Navy, shall be considered as one armed 90–632, § 2(1), Oct. 24, 1968, 82 Stat. 1335; Pub. L. force. 98–209, §§ 2(a), 6(a), Dec. 6, 1983, 97 Stat. 1393, 1400; (3) The term ‘‘commanding officer’’ includes Pub. L. 100–180, div. A, title XII, § 1231(17), Dec. 4, only commissioned officers. 1987, 101 Stat. 1161; Pub. L. 100–456, div. A, title (4) The term ‘‘officer in charge’’ means a XII, § 1233(f)(1), Sept. 29, 1988, 102 Stat. 2057; Pub. member of the Navy, the Marine Corps, or the L. 104–106, div. A, title XI, § 1141(b), Feb. 10, 1996, Coast Guard designated as such by appropriate 110 Stat. 467; Pub. L. 107–296, title XVII, authority. § 1704(b)(2), Nov. 25, 2002, 116 Stat. 2314; Pub. L. (5) The term ‘‘superior commissioned offi- 109–241, title II, § 218(a), July 11, 2006, 120 Stat. cer’’ means a commissioned officer superior in 526.) rank or command. (6) The term ‘‘cadet’’ means a cadet of the HISTORICAL AND REVISION NOTES United States Military Academy, the United Revised Source (U.S. Code) Source (Statutes at Large) States Air Force Academy, or the United section States Coast Guard Academy. 801 ...... 50:551 (less (9)). May 5, 1950, ch. 169, § 1 (7) The term ‘‘midshipman’’ means a mid- (Art. 1 (less (9))), 64 shipman of the United States Naval Academy Stat. 108. Page 427 TITLE 10—ARMED FORCES § 801

The words ‘‘In this chapter’’ are substituted for the ‘‘(1) The amendments made by this Act [see Short introductory clause. Title of 1983 Amendment note below] shall take effect In the introductory clause and throughout the re- on the first day of the eighth calendar month that be- vised chapter the word ‘‘chapter’’ is substituted for the gins after the date of enactment of this Act [Dec. 6, word ‘‘code’’. 1983], except that the amendments made by sections 9, Clauses (1), (2), and (5) of 50:551 are omitted as respec- 11 and 13 [amending sections 802, 815, 825, 867, 1552, and tively covered by the definitions in clauses (4), (6), and 1553 of this title and enacting provisions set out as a (14) of section 101 of this title. The words ‘‘commis- note under section 867 of this title] shall be effective on sioned officer’’ are substituted for the word ‘‘officer’’ the date of the enactment of this Act. The amendments for clarity throughout this chapter, since the latter made by section 11 [amending sections 1552 and 1553 of term was defined in the limited sense of commissioned this title] shall only apply with respect to cases filed officer in clause (5) of 50:551, and is now covered by sec- after the date of enactment of this Act with the boards tion 101(14) of this title. established under sections 1552 and 1553 of title 10, In clauses (1), (4)–(7), and (9)–(12) of the revised sec- United States Code. tion, the word ‘‘means’’ is substituted for the words ‘‘(2) The amendments made by section 3(c) and 3(e) ‘‘shall be construed to refer to’’ and ‘‘shall be construed [amending sections 826, 827, and 838 of this title] do not to refer * * * to’’. affect the designation or detail of a military judge or In clause (1), the words ‘‘service in’’ are substituted military counsel to a court-martial before the effective for the words ‘‘part of’’ to conform to section 1 of title date of such amendments. 14. The words ‘‘Department of the Treasury’’ are sub- ‘‘(3) The amendments made by section 4 [amending stituted for the words ‘‘Treasury Department’’. section 834 of this title] shall not apply to any case in Clauses (3) and (4) are inserted for clarity. which charges were referred to trial before the effective In clause (6), the words ‘‘the United States Air Force date of such amendments, and proceedings in any such Academy’’ are inserted to reflect its establishment by case shall be held in the same manner and with the the Air Force Academy Act (63 Stat. 47). same effect as if such amendments had not been en- In clause (8), the word ‘‘refers’’ is substituted for the acted. words ‘‘shall be construed to refer’’. ‘‘(4) The amendments made by sections 5, 6, and 7 In clause (12), the words ‘‘Marine Corps’’ are inserted [amending this section and sections 849, 854, 857, 860 to to make explicit that the clause applies to the Marine 867, 869, 871, and 876a of this title and enacting provi- Corps. The word ‘‘commissioned’’ is inserted for clar- sions set out as a note under section 869 of this title] ity. shall not apply to any case in which the findings and AMENDMENTS sentence were adjudged by a court-martial before the effective date of such amendments. The proceedings in 2006—Cl. (11). Pub. L. 109–241, § 218(a)(1), struck out cl. any such case shall be held in the same manner and (11) which read as follows: ‘‘The term ‘law specialist’ with the same effect as if such amendments had not means a commissioned officer of the Coast Guard des- been enacted. ignated for special duty (law).’’ ‘‘(5) The amendments made by section 8 [enacting Cl. (13)(C). Pub. L. 109–241, § 218(a)(2), added subpar. section 912a of this title] shall not apply to any offense (C) and struck out former subpar. (C) which read as fol- committed before the effective date of such amend- lows: ‘‘an officer of the Coast Guard who is designated ments. Nothing in this provision shall be construed to as a law specialist.’’ invalidate the prosecution of any offense committed 2002—Cl. (1). Pub. L. 107–296 substituted ‘‘an official before the effective date of such amendments.’’ designated to serve as Judge Advocate General of the Coast Guard by the Secretary of Homeland Security’’ EFFECTIVE DATE OF 1968 AMENDMENT for ‘‘the General Counsel of the Department of Trans- Pub. L. 90–632, § 4, Oct. 24, 1968, 82 Stat. 1343, provided portation’’. that: 1996—Cls. (15), (16). Pub. L. 104–106 added cls. (15) and ‘‘(a) Except for the amendments made by paragraphs (16). (30) and (33) of section 2, this Act [see Short Title of 1988—Cl. (1). Pub. L. 100–456 substituted ‘‘term 1968 Amendment note below] shall become effective on ‘Judge’’ for ‘‘term ‘judge’’. the first day of the tenth month following the month in 1987—Cls. (1), (3) to (14). Pub. L. 100–180 inserted ‘‘The which it is enacted [October 1968]. term’’ after each clause designation and revised first ‘‘(b) The amendment made by paragraph (30) of sec- word in quotes in each clause to make initial letter of tion 2 [amending section 869 of this title] shall become such word lowercase. 1983—Cl. (13). Pub. L. 98–209, § 2(a), added officers of effective upon the date of enactment of this Act [Oct. the Coast Guard who are designated as law specialists 24, 1968]. to definition of ‘‘Judge Advocate’’. ‘‘(c) The amendment made by paragraph (33) [amend- Cl. (14). Pub. L. 98–209, § 6(a), added cl. (14). ing section 873 of this title] shall apply in the case of 1968—Cl. (10). Pub. L. 90–632 substituted ‘‘military all court-martial sentences approved by the convening judge’’ for ‘‘law officer’’ as term being defined and in- authority on or after, or not more than two years be- serted reference to special court-martial in the defini- fore, the date of its enactment [Oct. 24, 1968].’’ tion thereof. EFFECTIVE DATE OF 1966 AMENDMENT 1967—Cl. (11). Pub. L. 90–179, § 1(1), struck out ‘‘Navy or’’ before ‘‘Coast Guard’’. Amendment by Pub. L. 89–670 effective Apr. 1, 1967, as Cl. (13). Pub. L. 90–179, § 1(2), added cl. (13). prescribed by the President and published in the Fed- 1966—Pub. L. 89–670 substituted the General Counsel eral Register, see section 16(a), formerly § 15(a), of Pub. of the Department of Transportation for the General L. 89–670, and Ex. Ord. No. 11340, Mar. 30, 1967, 32 F.R. Counsel of the Department of the Treasury in defini- 5453. tion of ‘‘Judge Advocate General’’ applicable to the EFFECTIVE DATE Coast Guard when operating as a service in the Navy. Act Aug. 10, 1956, ch. 1041, § 51, 70A Stat. 640, provided EFFECTIVE DATE OF 2002 AMENDMENT that: ‘‘Chapter 47 of title 10, United States Code, en- Amendment by Pub. L. 107–296 effective on the date of acted by section 1 of this Act, takes effect January 1, transfer of the Coast Guard to the Department of 1957.’’ Homeland Security, see section 1704(g) of Pub. L. SHORT TITLE OF 1996 AMENDMENT 107–296, set out as a note under section 101 of this title. Pub. L. 104–106, div. A, title XI, § 1101, Feb. 10, 1996, 110 EFFECTIVE DATE OF 1983 AMENDMENT Stat. 461, provided that: ‘‘This title [enacting sections Pub. L. 98–209, § 12(a), Dec. 6, 1983, 97 Stat. 1407, pro- 857a, 858b, and 876b of this title, amending this section vided that: and sections 802, 832, 847, 857, 860, 862, 866, 895, 920, and § 801 TITLE 10—ARMED FORCES Page 428

937 of this title, repealing section 804 of Title 37, Pay ganization Plan of November 25, 2002, as modified, set and Allowances of the Uniformed Services, enacting out as a note under section 542 of Title 6. provisions set out as notes under sections 802, 857, 858b, TRANSFERS TO FOREIGN COUNTRIES OF INDIVIDUALS DE- and 876b of this title, and amending provisions set out TAINED AT UNITED STATES NAVAL STATION, GUANTA- as a note under section 942 of this title] may be cited NAMO BAY, CUBA as the ‘Military Justice Amendments of 1995’.’’ Pub. L. 113–66, div. A, title X, § 1035(a)–(e), Dec. 26, SHORT TITLE OF 1986 AMENDMENT 2013, 127 Stat. 851–853, provided that: ‘‘(a) AUTHORITY TO TRANSFER UNDER CERTAIN CIRCUM- Pub. L. 99–661, div. A, title VIII, § 801(a), Nov. 14, 1986, STANCES.—The Secretary of Defense is authorized to 100 Stat. 3905, provided that: ‘‘This title [enacting sec- transfer or release any individual detained at Guanta- tion 850a of this title, amending sections 802, 803, 806, namo to the individual’s country of origin, or any other 825, 843, 860, 936, and 937 of this title, and enacting pro- foreign country, if— visions set out as notes under sections 802, 806, 825, 843, ‘‘(1) the Secretary determines, following a review 850a, and 860 of this title] may be cited as the ‘Military conducted in accordance with the requirements of Justice Amendments of 1986’.’’ section 1023 of the National Defense Authorization Act for Fiscal Year 2012 [Pub. L. 112–81] (10 U.S.C. 801 SHORT TITLE OF 1983 AMENDMENT note) and Executive Order No. 13567 [set out below], Pub. L. 98–209, § 1(a), Dec. 6, 1983, 97 Stat. 1393, pro- that the individual is no longer a threat to the na- vided that: ‘‘This Act [enacting sections 912a of this tional security of the United States; or title and section 1259 of Title 28, Judiciary and Judicial ‘‘(2) such transfer or release outside the United Procedure, amending this section, sections 802, 806, 815, States is to effectuate an order affecting disposition 816, 825, 826, 827, 829, 834, 838, 842, 849, 854, 857, 860 to 867, of the individual by a court or competent tribunal of 869, 870, 871, 876a, 936, 1552, and 1553 of this title, and the United States having jurisdiction. section 2101 of Title 28, and enacting provisions set out ‘‘(b) DETERMINATION REQUIRED PRIOR TO TRANSFER.— as notes under sections 801, 867, and 869 of this title and Except as provided in subsection (a), the Secretary of amending provisions set out as a note under section 706 Defense may transfer an individual detained at Guanta- of this title] may be cited as the ‘Military Justice Act namo to the custody or control of the individual’s of 1983’.’’ country origin, or any other foreign country, only if the Secretary determines that— ‘‘(1) actions that have been or are planned to be SHORT TITLE OF 1981 AMENDMENT taken will substantially mitigate the risk of such in- Pub. L. 97–81, § 1(a), Nov. 20, 1981, 95 Stat. 1085, pro- dividual engaging or reengaging in any terrorist or vided that: ‘‘This Act [enacting sections 706, 707, and other hostile activity that threatens the United 876a of this title, amending sections 701, 813, 832, 838, States or United States persons or interests; and 867, and 869 of this title, and enacting provisions set out ‘‘(2) the transfer is in the national security interest as a note under section 706 of this title] may be cited of the United States. as the ‘Military Justice Amendments of 1981’.’’ ‘‘(c) FACTORS TO BE CONSIDERED IN MAKING DETER- MINATION.—In making the determination specified in SHORT TITLE OF 1968 AMENDMENT subsection (b), the Secretary of Defense shall specifi- cally evaluate and take into consideration the follow- Pub. L. 90–632, § 1, Oct. 24, 1968, 82 Stat. 1335, provided: ing factors: ‘‘That this Act [amending this section and sections 806, ‘‘(1) The recommendations of the Guantanamo De- 816, 818, 819, 820, 825, 826, 827, 829, 835, 837, 838, 839, 840, tainee Review Task Force established pursuant to 841, 842, 845, 849, 851, 852, 854, 857, 865, 866, 867, 868, 869, Executive Order No. 13492 [set out below] and the rec- 870, 871, 873, and 936 of this title and enacting provisions ommendations of the Periodic Review Boards estab- set out as notes under this section and sections 826 and lished pursuant to No. Executive Order [sic] 13567, as 866 of this title] may be cited as the ‘Military Justice applicable. Act of 1968’.’’ ‘‘(2) The security situation in the foreign country to which the individual is to be transferred, including REDESIGNATION OF NAVY LAW SPECIALISTS AS JUDGE whether or not the country is a state sponsor of ter- ADVOCATES rorism, the presence of foreign terrorist groups, and Navy law specialists redesignated judge advocates, the threat posed by such groups to the United States. see section 8 of Pub. L. 90–179, set out as a note under ‘‘(3) Any confirmed case in which an individual section 5148 of this title. transferred to the foreign country to which the indi- vidual is to be transferred subsequently engaged in SAVINGS PROVISION terrorist or other hostile activity that threatened the United States or United States persons or interests. Rights, duties, and proceedings not affected by Pub. ‘‘(4) Any actions taken by the United States or the L. 90–179 establishing Judge Advocate General’s Corps foreign country to which the individual is to be in Navy, see section 10 of Pub. L. 90–179, set out as a transferred, or change in circumstances in such coun- note under section 5148 of this title. try, that reduce the risk of reengagement of the type described in paragraph (3). LEGISLATIVE CONSTRUCTION ‘‘(5) Any assurances provided by the government of Act Aug. 10, 1956, ch. 1041, § 49(e), 70A Stat. 640, pro- the foreign country to which the individual is to be vided that: ‘‘In chapter 47 of title 10, United States transferred, including that— Code [this chapter], enacted by section 1 of this Act, no ‘‘(A) such government maintains control over any inference of a legislative construction is to be drawn facility at which the individual is to be detained if from the part in which any article is placed nor from the individual is to be housed in a government-con- the catchlines of the part or the article as set out in trolled facility; and ‘‘(B) such government has taken or agreed to take that chapter.’’ actions to substantially mitigate the risk of the in- dividual engaging or reengaging in any terrorist or TRANSFER OF FUNCTIONS other hostile activity that threatens the United For transfer of authorities, functions, personnel, and States or United States persons or interests. assets of the Coast Guard, including the authorities ‘‘(6) An assessment of the capacity, willingness, and and functions of the Secretary of Transportation relat- past practices (if applicable) of the foreign country ing thereto, to the Department of Homeland Security, described in paragraph (5) in meeting any assurances and for treatment of related references, see sections it has provided, including assurances under paragraph 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- (5) regarding its capacity and willingness to mitigate rity, and the Department of Homeland Security Reor- the risk of reengagement. Page 429 TITLE 10—ARMED FORCES § 801

‘‘(7) Any record of cooperation by the individual to ual’s detention, the Secretary shall also submit to such be transferred with United States intelligence and Committees notice of the transfer or release.’’ law enforcement authorities, pursuant to a pre-trial agreement, while in the custody of or under the effec- NOTICE REQUIRED PRIOR TO TRANSFER OF CERTAIN IN- tive control of the Department of Defense, and any DIVIDUALS DETAINED AT THE DETENTION FACILITY AT agreements and effective mechanisms that may be in PARWAN, AFGHANISTAN place, to the extent relevant and necessary, to pro- Pub. L. 112–239, div. A, title X, § 1025, Jan. 2, 2013, 126 vide continued cooperation with United States intel- Stat. 1913, provided that: ligence and law enforcement authorities. ‘‘(a) NOTICE REQUIRED.—The Secretary of Defense ‘‘(8) In the case of an individual who has been tried shall submit to the appropriate congressional commit- in a court or competent tribunal of the United States tees notice in writing of the proposed transfer of any having jurisdiction on charges based on the same con- individual detained pursuant to the Authorization for duct that serves as a basis for the determination that Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 the individual is an enemy combatant, whether or note) who is a national of a country other than the not the individual has been acquitted of such charges United States or Afghanistan from detention at the De- or has been convicted and has completed serving the tention Facility at Parwan, Afghanistan, to the cus- sentence pursuant to the conviction. tody of the Government of Afghanistan or of any other ‘‘(d) NOTIFICATION.—The Secretary of Defense shall country. Such notice shall be provided not later than 10 notify the appropriate committees of Congress of a de- days before such a transfer may take place. termination of the Secretary under subsection (a) or (b) ‘‘(b) ASSESSMENTS REQUIRED.—Prior to any transfer not later than 30 days before the transfer or release of referred to under subsection (a), the Secretary shall en- the individual under such subsection. Each notification sure that an assessment is conducted as follows: shall include, at a minimum, the following: ‘‘(1) In the case of the proposed transfer of such an individual by reason of the individual being released, ‘‘(1) A detailed statement of the basis for the trans- an assessment of the threat posed by the individual fer or release. and the security environment of the country to which ‘‘(2) An explanation of why the transfer or release the individual is to be transferred. is in the national security interests of the United ‘‘(2) In the case of the proposed transfer of such an States. individual to a country other than Afghanistan for ‘‘(3) A description of any actions taken to mitigate the purpose of the prosecution of the individual, an the risks of reengagement by the individual to be assessment regarding the capacity, willingness, and transferred or released, including any actions taken historical track record of the country with respect to to address factors relevant to a prior case of re- prosecuting similar cases, including a review of the engagement described in subsection (c)(3). primary evidence against the individual to be trans- ‘‘(4) A copy of any Periodic Review Board findings ferred and any significant admissibility issues re- relating to the individual. garding such evidence that are expected to arise in ‘‘(5) A description of the evaluation conducted pur- connection with the prosecution of the individual. suant to subsection (c), including a summary of the ‘‘(3) In the case of the proposed transfer of such an assessment required by paragraph (6) of such sub- individual for reintegration or rehabilitation in a section. country other than Afghanistan, an assessment re- garding the capacity, willingness, and historical ‘‘(e) DEFINITIONS.—In this section: track records of the country for reintegrating or re- ‘‘(1) The term ‘appropriate committees of Congress’ habilitating similar individuals. means— ‘‘(4) In the case of the proposed transfer of such an ‘‘(A) the Committee on Armed Services, the Com- individual to the custody of the Government of Af- mittee on Foreign Relations, the Committee on Ap- ghanistan for prosecution or detention, an assess- propriations, and the Select Committee on Intel- ment regarding the capacity, willingness, and histori- ligence of the Senate; and cal track record of Afghanistan to prosecute or de- ‘‘(B) the Committee on Armed Services, the Com- tain long-term such individuals. mittee on Appropriations, the Committee on For- ‘‘(c) APPROPRIATE CONGRESSIONAL COMMITTEES DE- eign Affairs, and the Permanent Select Committee FINED.—In this section, the term ‘appropriate congres- on Intelligence of the House of Representatives. sional committees’ means the Committee on Armed ‘‘(2) The term ‘individual detained at Guantanamo’ Services and the Committee on Foreign Affairs of the means any individual located at United States Naval House of Representatives and the Committee on Armed Station, Guantanamo Bay, Cuba, as of October 1, 2009, Services and the Committee on Foreign Relations of who— the Senate.’’ ‘‘(A) is not a citizen of the United States or a REQUIREMENTS FOR CERTIFICATIONS RELATING TO THE member of the Armed Forces of the United States; TRANSFER OF DETAINEES AT UNITED STATES NAVAL and STATION, GUANTANAMO BAY, CUBA, TO FOREIGN ‘‘(B) is— COUNTRIES AND OTHER FOREIGN ENTITIES ‘‘(i) in the custody or under the control of the Pub. L. 112–239, div. A, title X, § 1028, Jan. 2, 2013, 126 Department of Defense; or Stat. 1914, related to requirements for certifications re- ‘‘(ii) otherwise under detention at United States lating to the transfer of detainees at United States Naval Station, Guantanamo Bay, Cuba.’’ Naval Station, Guantanamo Bay, Cuba, to foreign countries and other foreign entities, prior to repeal by Pub. L. 113–66, div. A, title X, § 1035(f)(2), Dec. 26, 2013, NOTICE TO CONGRESS ON USE OF NAVAL VESSELS FOR 127 Stat. 853. DETENTION OF INDIVIDUALS RIGHTS UNAFFECTED Pub. L. 112–239, div. A, title X, § 1024(a), Jan. 2, 2013, 126 Stat 1912, provided that: ‘‘Not later than 30 days Pub. L. 112–239, div. A, title X, § 1029, Jan. 2, 2013, 126 after first detaining an individual pursuant to the Au- Stat. 1917, provided that: ‘‘Nothing in the Authoriza- thorization for Use of Military Force (Public Law tion for Use of Military Force (Public Law 107–40; 50 107–40; 50 U.S.C. 1541 note) on a naval vessel outside the U.S.C. 1541 note) or the National Defense Authorization United States, the Secretary of Defense shall submit to Act for Fiscal Year 2012 (Public Law 112–81 [see Tables the Committees on Armed Services of the Senate and for classification]) shall be construed to deny the avail- House of Representatives notice of the detention. In ability of the writ of habeas corpus or to deny any Con- the case of such an individual who is transferred or re- stitutional rights in a court ordained or established by leased before the submittal of the notice of the individ- or under Article III of the Constitution to any person § 801 TITLE 10—ARMED FORCES Page 430 inside the United States who would be entitled to the supported such hostilities in aid of such enemy availability of such writ or to such rights in the ab- forces. sence of such laws.’’ ‘‘(c) DISPOSITION UNDER LAW OF WAR.—The disposi- tion of a person under the law of war as described in NOTIFICATION OF TRANSFER OF A DETAINEE HELD AT subsection (a) may include the following: UNITED STATES NAVAL STATION, GUANTANAMO BAY, ‘‘(1) Detention under the law of war without trial CUBA until the end of the hostilities authorized by the Au- Pub. L. 112–87, title III, § 308, Jan. 3, 2012, 125 Stat. thorization for Use of Military Force. 1883, provided that: ‘‘(2) Trial under chapter 47A of title 10, United ‘‘(a) REQUIREMENT FOR NOTIFICATION.—The President States Code (as amended by the Military Commis- shall submit to Congress, in classified form, at least 30 sions Act of 2009 (title XVIII of Public Law 111–84)). days prior to the transfer or release of an individual de- ‘‘(3) Transfer for trial by an alternative court or tained at Naval Station, Guantanamo Bay, Cuba, as of competent tribunal having lawful jurisdiction. ‘‘(4) Transfer to the custody or control of the per- June 24, 2009, to the country of such individual’s na- son’s country of origin, any other foreign country, or tionality or last habitual residence or to any other for- any other foreign entity. eign country or to a freely associated State the follow- ‘‘(d) CONSTRUCTION.—Nothing in this section is in- ing information: tended to limit or expand the authority of the Presi- ‘‘(1) The name of the individual to be transferred or dent or the scope of the Authorization for Use of Mili- released. tary Force. ‘‘(2) The country or the freely associated State to ‘‘(e) AUTHORITIES.—Nothing in this section shall be which such individual is to be transferred or released. construed to affect existing law or authorities relating ‘‘(3) The terms of any agreement with the country to the detention of United States citizens, lawful resi- or the freely associated State for the acceptance of dent aliens of the United States, or any other persons such individual, including the amount of any finan- who are captured or arrested in the United States. cial assistance related to such agreement. ‘‘(f) REQUIREMENT FOR BRIEFINGS OF CONGRESS.—The ‘‘(4) The agencies or departments of the United Secretary of Defense shall regularly brief Congress re- States responsible for ensuring that the agreement garding the application of the authority described in described in paragraph (3) is carried out. this section, including the organizations, entities, and ‘‘(b) DEFINITION.—In this section, the term ‘freely as- individuals considered to be ‘covered persons’ for pur- sociated States’ means the Federated States of Micro- poses of subsection (b)(2). nesia, the Republic of the Marshall Islands, and the Re- ‘‘SEC. 1022. MILITARY CUSTODY FOR FOREIGN AL- public of Palau. QAEDA TERRORISTS. ‘‘(c) CONSTRUCTION WITH OTHER REQUIREMENTS.— Nothing in this section shall be construed to supersede ‘‘(a) CUSTODY PENDING DISPOSITION UNDER LAW OF or otherwise affect the following provisions of law: WAR.— ‘‘(1) IN GENERAL.—Except as provided in paragraph ‘‘(1) Section 1028 of the National Defense Authoriza- (4), the Armed Forces of the United States shall hold tion Act for Fiscal Year 2012 [Pub. L. 112–81, formerly a person described in paragraph (2) who is captured in set out below]. the course of hostilities authorized by the Authoriza- ‘‘(2) Section 8120 of the Department of Defense Ap- tion for Use of Military Force (Public Law 107–40) in propriations Act, 2012 [div. A of Pub. L. 112–74, 125 military custody pending disposition under the law of Stat. 833].’’ war. [Memorandum of President of the United States, Jan. ‘‘(2) COVERED PERSONS.—The requirement in para- 27, 2012, 77 F.R. 11371, delegated to the Secretary of graph (1) shall apply to any person whose detention is State, in consultation with the Secretary of Defense, authorized under section 1021 who is determined— the function to provide to Congress the information ‘‘(A) to be a member of, or part of, al-Qaeda or an specified in section 308(a) of Pub. L. 112–87, set out associated force that acts in coordination with or above.] pursuant to the direction of al-Qaeda; and DETENTION AUTHORITY AND PROCEDURES, TRANSFER ‘‘(B) to have participated in the course of plan- CERTIFICATIONS AND PROSECUTION CONSULTATION RE- ning or carrying out an attack or attempted attack QUIREMENT against the United States or its coalition partners. ‘‘(3) DISPOSITION UNDER LAW OF WAR.—For purposes Pub. L. 112–81, div. A, title X, §§ 1021–1025, 1028, 1029, of this subsection, the disposition of a person under Dec. 31, 2011, 125 Stat. 1562–1565, 1567, 1569, as amended the law of war has the meaning given in section by Pub. L. 113–66, div. A, title X, § 1035(f)(1), Dec. 26, 1021(c), except that no transfer otherwise described in 2013, 127 Stat. 853, provided that: paragraph (4) of that section shall be made unless ‘‘SEC. 1021. AFFIRMATION OF AUTHORITY OF THE consistent with the requirements of section 1028. ARMED FORCES OF THE UNITED STATES TO ‘‘(4) WAIVER FOR NATIONAL SECURITY.—The Presi- DETAIN COVERED PERSONS PURSUANT TO dent may waive the requirement of paragraph (1) if THE AUTHORIZATION FOR USE OF MILITARY the President submits to Congress a certification in FORCE. writing that such a waiver is in the national security interests of the United States. ‘‘(a) IN GENERAL.—Congress affirms that the author- ‘‘(b) APPLICABILITY TO UNITED STATES CITIZENS AND ity of the President to use all necessary and appro- LAWFUL RESIDENT ALIENS.— priate force pursuant to the Authorization for Use of ‘‘(1) UNITED STATES CITIZENS.—The requirement to Military Force (Public Law 107–40; 50 U.S.C. 1541 note) detain a person in military custody under this sec- includes the authority for the Armed Forces of the tion does not extend to citizens of the United States. United States to detain covered persons (as defined in ‘‘(2) LAWFUL RESIDENT ALIENS.—The requirement to subsection (b)) pending disposition under the law of detain a person in military custody under this sec- war. tion does not extend to a lawful resident alien of the ‘‘(b) COVERED PERSONS.—A covered person under this United States on the basis of conduct taking place section is any person as follows: within the United States, except to the extent per- ‘‘(1) A person who planned, authorized, committed, mitted by the Constitution of the United States. or aided the terrorist attacks that occurred on Sep- ‘‘(c) IMPLEMENTATION PROCEDURES.— tember 11, 2001, or harbored those responsible for ‘‘(1) IN GENERAL.—Not later than 60 days after the those attacks. date of the enactment of this Act [Dec. 31, 2011], the ‘‘(2) A person who was a part of or substantially President shall issue, and submit to Congress, proce- supported al-Qaeda, the Taliban, or associated forces dures for implementing this section. that are engaged in hostilities against the United ‘‘(2) ELEMENTS.—The procedures for implementing States or its coalition partners, including any person this section shall include, but not be limited to, pro- who has committed a belligerent act or has directly cedures as follows: Page 431 TITLE 10—ARMED FORCES § 801

‘‘(A) Procedures designating the persons author- ‘‘(A) the likelihood the detainee will resume ter- ized to make determinations under subsection (a)(2) rorist activity if transferred or released; and the process by which such determinations are ‘‘(B) the likelihood the detainee will reestablish to be made. ties with al-Qaeda, the Taliban, or associated forces ‘‘(B) Procedures providing that the requirement that are engaged in hostilities against the United for military custody under subsection (a)(1) does States or its coalition partners if transferred or re- not require the interruption of ongoing surveillance leased; or intelligence gathering with regard to persons not ‘‘(C) the likelihood of family, tribal, or govern- already in the custody or control of the United ment rehabilitation or support for the detainee if States. transferred or released; ‘‘(C) Procedures providing that a determination ‘‘(D) the likelihood the detainee may be subject under subsection (a)(2) is not required to be imple- to trial by military commission; and mented until after the conclusion of an interroga- ‘‘(E) any law enforcement interest in the de- tion which is ongoing at the time the determina- tainee. ‘‘(c) APPROPRIATE COMMITTEES OF CONGRESS DE- tion is made and does not require the interruption FINED.—In this section, the term ‘appropriate commit- of any such ongoing interrogation. ‘‘(D) Procedures providing that the requirement tees of Congress’ means— ‘‘(1) the Committee on Armed Services and the Se- for military custody under subsection (a)(1) does lect Committee on Intelligence of the Senate; and not apply when intelligence, law enforcement, or ‘‘(2) the Committee on Armed Services and the Per- other Government officials of the United States are manent Select Committee on Intelligence of the granted access to an individual who remains in the House of Representatives. custody of a third country. ‘‘(E) Procedures providing that a certification of ‘‘SEC. 1024. PROCEDURES FOR STATUS DETER- national security interests under subsection (a)(4) MINATIONS. may be granted for the purpose of transferring a ‘‘(a) IN GENERAL.—Not later than 90 days after the covered person from a third country if such a trans- date of the enactment of this Act [Dec. 31, 2011], the fer is in the interest of the United States and could Secretary of Defense shall submit to the appropriate not otherwise be accomplished. committees of Congress a report setting forth the pro- ‘‘(d) AUTHORITIES.—Nothing in this section shall be cedures for determining the status of persons detained construed to affect the existing criminal enforcement pursuant to the Authorization for Use of Military and national security authorities of the Federal Bureau Force (Public Law 107–40; 50 U.S.C. 1541 note) for pur- of Investigation or any other domestic law enforcement poses of section 1021. agency with regard to a covered person, regardless ‘‘(b) ELEMENTS OF PROCEDURES.—The procedures re- whether such covered person is held in military cus- quired by this section shall provide for the following in tody. the case of any unprivileged enemy belligerent who will ‘‘(e) EFFECTIVE DATE.—This section shall take effect be held in long-term detention under the law of war on the date that is 60 days after the date of the enact- pursuant to the Authorization for Use of Military ment of this Act, and shall apply with respect to per- Force: sons described in subsection (a)(2) who are taken into ‘‘(1) A military judge shall preside at proceedings the custody or brought under the control of the United for the determination of status of an unprivileged States on or after that effective date. enemy belligerent. ‘‘(2) An unprivileged enemy belligerent may, at the ‘‘SEC. 1023. PROCEDURES FOR PERIODIC DETEN- election of the belligerent, be represented by military TION REVIEW OF INDIVIDUALS DETAINED AT counsel at proceedings for the determination of UNITED STATES NAVAL STATION, GUANTA- status of the belligerent. NAMO BAY, CUBA. ‘‘(c) APPLICABILITY.—The Secretary of Defense is not ‘‘(a) PROCEDURES REQUIRED.—Not later than 180 days required to apply the procedures required by this sec- after the date of the enactment of this Act [Dec. 31, tion in the case of a person for whom habeas corpus re- 2011], the Secretary of Defense shall submit to the ap- view is available in a Federal court. propriate committees of Congress a report setting forth ‘‘(d) REPORT ON MODIFICATION OF PROCEDURES.—The procedures for implementing the periodic review proc- Secretary of Defense shall submit to the appropriate ess required by Executive Order No. 13567 [set out committees of Congress a report on any modification of below] for individuals detained at United States Naval the procedures submitted under this section. The re- Station, Guantanamo Bay, Cuba, pursuant to the Au- port on any such modification shall be so submitted thorization for Use of Military Force (Public Law not later than 60 days before the date on which such 107–40; 50 U.S.C. 1541 note). modification goes into effect. ‘‘(b) COVERED MATTERS.—The procedures submitted ‘‘(e) APPROPRIATE COMMITTEES OF CONGRESS DE- under subsection (a) shall, at a minimum— FINED.—In this section, the term ‘appropriate commit- ‘‘(1) clarify that the purpose of the periodic review tees of Congress’ means— process is not to determine the legality of any detain- ‘‘(1) the Committee on Armed Services and the Se- ee’s law of war detention, but to make discretionary lect Committee on Intelligence of the Senate; and determinations whether or not a detainee represents ‘‘(2) the Committee on Armed Services and the Per- a continuing threat to the security of the United manent Select Committee on Intelligence of the States; House of Representatives. ‘‘(2) clarify that the Secretary of Defense is respon- ‘‘SEC. 1025. REQUIREMENT FOR NATIONAL SECU- sible for any final decision to release or transfer an RITY PROTOCOLS GOVERNING DETAINEE COM- individual detained in military custody at United MUNICATIONS. States Naval Station, Guantanamo Bay, Cuba, pursu- ‘‘(a) IN GENERAL.—Not later than 180 days after the ant to the Executive Order referred to in subsection date of the enactment of this Act [Dec. 31, 2011], the (a), and that in making such a final decision, the Sec- Secretary of Defense shall develop and submit to the retary shall consider the recommendation of a peri- congressional defense committees [Committees on odic review board or review committee established Armed Services and Appropriations of the Senate and pursuant to such Executive Order, but shall not be the House of Representatives] a national security pro- bound by any such recommendation; tocol governing communications to and from individ- ‘‘(3) clarify that the periodic review process applies uals detained at United States Naval Station, Guanta- to any individual who is detained as an unprivileged namo Bay, Cuba, pursuant to the Authorization for Use enemy belligerent at United States Naval Station, of Military Force (Public Law 107–40; 50 U.S.C. 1541 Guantanamo Bay, Cuba, at any time; and note), and related issues. ‘‘(4) ensure that appropriate consideration is given ‘‘(b) CONTENTS.—The protocol developed pursuant to to factors addressing the need for continued deten- subsection (a) shall include Department of Defense tion of the detainee, including— policies and procedures regarding each of the following: § 801 TITLE 10—ARMED FORCES Page 432

‘‘(1) Detainee access to military or civilian legal preters, report writers, information technology techni- representation, or both, including any limitations on cians, and other employees filling ancillary positions, such access and the manner in which any applicable including as trainers of and advisors to interrogators, legal privileges will be balanced with national secu- in interrogations of persons as described in subsection rity considerations. (a) if— ‘‘(2) Detainee communications with persons other ‘‘(1) such personnel are subject to the same rules, than Federal Government personnel and members of procedures, policies, and laws pertaining to detainee the Armed Forces, including meetings, mail, phone operations and interrogations as apply to government calls, and video teleconferences, including— personnel in such positions in such interrogations; ‘‘(A) any limitations on categories of information and that may be discussed or materials that may be ‘‘(2) appropriately qualified and trained military or shared; and civilian personnel of the Department of Defense are available to oversee the contractor’s performance and ‘‘(B) the process by which such communications to ensure that contractor personnel do not perform or materials are to be monitored or reviewed. activities that are prohibited under this section. ‘‘(3) The extent to which detainees may receive vis- ‘‘(c) DISCHARGE BY GOVERNMENT PERSONNEL.—The its by persons other than military or civilian rep- Secretary of Defense shall take appropriate actions to resentatives. ensure that, by not later than one year after the date ‘‘(4) The measures planned to be taken to imple- of the enactment of this Act, the Department of De- ment and enforce the provisions of the protocol. fense has the resources needed to ensure that interro- ‘‘(c) UPDATES.—The Secretary of Defense shall notify gations described in subsection (a) are conducted by ap- the congressional defense committees of any signifi- propriately qualified government personnel. cant change to the policies and procedures described in ‘‘(d) WAIVER.— the protocol submitted pursuant to subsection (a) not ‘‘(1) WAIVERS AUTHORIZED.—The Secretary of De- later than 30 days after such change is made. fense may waive the prohibition under subsection (a) ‘‘(d) FORM OF PROTOCOL.—The protocol submitted for a period of 60 days if the Secretary determines pursuant to subsection (a) may be submitted in classi- such a waiver is vital to the national security inter- fied form. ests of the United States. The Secretary may renew a waiver issued pursuant to this paragraph for an ad- ‘‘[SEC. 1028. Repealed. Pub. L. 113–66, div. A, title X, ditional 30-day period, if the Secretary determines § 1035(f)(1), Dec. 26, 2013, 127 Stat. 853.] that such a renewal is vital to the national security ‘‘SEC. 1029. REQUIREMENT FOR CONSULTATION RE- interests of the United States. GARDING PROSECUTION OF TERRORISTS. ‘‘(2) LIMITATION ON DELEGATION.— ‘‘(A) IN GENERAL.—The waiver authority under ‘‘(a) IN GENERAL.—Before seeking an indictment of, paragraph (1) may not be delegated to any official or otherwise charging, an individual described in sub- below the level of the Deputy Secretary of Defense, section (b) in a Federal court, the Attorney General except in the case of a waiver for an individual in- shall consult with the Director of National Intelligence terrogation that is based on military exigencies, in and the Secretary of Defense about— which case the delegation of the waiver authority ‘‘(1) whether the more appropriate forum for pros- shall be done pursuant to regulations that the Sec- ecution would be a Federal court or a military com- retary of Defense shall prescribe but in no instance mission; and may the latter delegation be below the level of ‘‘(2) whether the individual should be held in civil- combatant commander of the theater in which the ian custody or military custody pending prosecution. individual is in the custody or under the effective ‘‘(b) APPLICABILITY.—The consultation requirement control of the Department of Defense or otherwise in subsection (a) applies to— under detention in a Department of Defense facility ‘‘(1) a person who is subject to the requirements of within that theater. section 1022, in accordance with a determination ‘‘(B) DEADLINE FOR REGULATIONS.—The Secretary made pursuant to subsection (a)(2) of such section; of Defense shall prescribe the regulations referred and to in subparagraph (A) by not later than 30 days ‘‘(2) any other person who is held in military deten- after the date of the enactment of this Act. tion outside of the United States pursuant to the au- ‘‘(3) CONGRESSIONAL NOTIFICATION.—Not later than thority affirmed by section 1021.’’ five days after the Secretary issues a waiver pursuant [Memorandum of President of the United States, Feb. to paragraph (1), the Secretary shall submit to Con- 28, 2012, 77 F.R. 12435, delegated the waiver authority gress written notification of the waiver.’’ conferred upon the President by section 1022(a)(4) of Pub. L. 112–81, set out above, to the Attorney General, NO MIRANDA WARNINGS FOR AL QAEDA TERRORISTS in consultation with other senior national security offi- Pub. L. 111–84, div. A, title X, § 1040, Oct. 28, 2009, 123 cials, including the Secretaries of State, Defense, and Stat. 2454, provided that: Homeland Security, Director of National Intelligence, ‘‘(a) NO MIRANDA WARNINGS.— Chairman of the Joint Chiefs of Staff, Director of the ‘‘(1) IN GENERAL.—Absent a court order requiring Central Intelligence Agency, and Director of the Fed- the reading of such statements, no member of the eral Bureau of Investigation, as well as any other offi- Armed Forces and no official or employee of the De- cials the President may designate.] partment of Defense or a component of the intel- ligence community (other than the Department of PROHIBITION ON INTERROGATION OF DETAINEES BY Justice) may read to a foreign national who is cap- CONTRACTOR PERSONNEL tured or detained outside the United States as an enemy belligerent and is in the custody or under the Pub. L. 111–84, div. A, title X, § 1038, Oct. 28, 2009, 123 effective control of the Department of Defense or Stat. 2451, provided that: otherwise under detention in a Department of De- ‘‘(a) PROHIBITION.—Except as provided in subsection fense facility the statement required by Miranda v. (b), effective one year after the date of the enactment Arizona (384 U.S. 436 (1966)), or otherwise inform such of this Act [Oct. 28, 2009], no enemy prisoner of war, ci- an individual of any rights that the individual may or vilian internee, retained personnel, other detainee, or may not have to counsel or to remain silent consist- any other individual who is in the custody or under the ent with Miranda v. Arizona (384 U.S. 436 (1966)). effective control of the Department of Defense or ‘‘(2) NONAPPLICABILITY TO DEPARTMENT OF JUSTICE.— otherwise under detention in a Department of Defense This subsection shall not apply to the Department of facility in connection with hostilities may be interro- Justice. gated by contractor personnel. ‘‘(3) DEFINITIONS.—In this subsection: ‘‘(b) AUTHORIZED FUNCTIONS OF CONTRACTOR PERSON- ‘‘(A) The term ‘foreign national’ means an indi- NEL.—Contractor personnel with proper training and vidual who is not a citizen or national of the United security clearances may be used as linguists, inter- States. Page 433 TITLE 10—ARMED FORCES § 801

‘‘(B) The term ‘enemy belligerent’ includes a priv- ‘‘(e) WAIVER.— ileged belligerent against the United States and an ‘‘(1) WAIVERS AUTHORIZED.—The Secretary of De- unprivileged enemy belligerent, as those terms are fense may, as an exceptional measure, as part of a defined in section 948a of title 10, United States specific interrogation plan for a specific person de- Code, as amended by section 1802 of this Act. scribed in subsection (a), waive the requirement in ‘‘(b) REPORT REQUIRED ON NOTIFICATION OF DETAINEES that subsection on a case-by-case basis for a period OF RIGHTS UNDER MIRANDA v. ARIZONA.—Not later than not to exceed 30 days, if the Secretary— 90 days after the date of the enactment of this Act [Oct. ‘‘(A) makes a determination in writing that such 28, 2009], the Secretary of Defense shall submit to the a waiver is necessary to the national security inter- congressional defense committees [Committees on ests of the United States; and Armed Services and Appropriations of the Senate and ‘‘(B) by not later than five days after the date on the House of Representatives] a report on how the read- which such a determination is made, submits to the ing of rights under Miranda v. Arizona (384 U.S. 436 Committees on Armed Services of the Senate and (1966)) to individuals detained by the United States in House of Representatives, the House Permanent Se- Afghanistan may affect— lect Committee on Intelligence, and the Senate Se- ‘‘(1) the tactical questioning of detainees at the lect Committee on Intelligence notice of that deter- point of capture by United States Armed Forces de- mination, including a justification for that deter- ployed in support of Operation Enduring Freedom; mination. ‘‘(2) post-capture theater-level interrogations and ‘‘(2) SUSPENSIONS AUTHORIZED.—The Secretary may intelligence-gathering activities conducted as part of temporarily suspend the requirement under sub- Operation Enduring Freedom; section (a) at a specific theater-level detention facil- ‘‘(3) the overall counterinsurgency strategy and ob- ity for a period not to exceed 30 days, if the Sec- jectives of the United States for Operation Enduring retary— Freedom; ‘‘(A) makes a determination in writing that such ‘‘(4) United States military operations and objec- a suspension is vital to the national security inter- tives in Afghanistan; and ests of the United States; and ‘‘(5) potential risks to members of the Armed ‘‘(B) by not later than five days after the date on Forces operating in Afghanistan.’’ which such a determination is made, submits to the Committees on Armed Services of the Senate and REQUIREMENT FOR VIDEOTAPING OR OTHERWISE ELEC- House of Representatives, the House Permanent Se- TRONICALLY RECORDING STRATEGIC INTELLIGENCE IN- lect Committee on Intelligence, and the Senate Se- TERROGATIONS OF PERSONS IN THE CUSTODY OF OR lect Committee on Intelligence notice of that deter- UNDER THE EFFECTIVE CONTROL OF THE DEPARTMENT mination, including a justification for that deter- OF DEFENSE mination. Pub. L. 111–84, div. A, title X, § 1080, Oct. 28, 2009, 123 ‘‘(3) LIMITATION ON DELEGATION OF AUTHORITY.—This Stat. 2479, as amended by Pub. L. 111–383, div. A, title authority of the Secretary under this subsection may X, § 1075(d)(15), Jan. 7, 2011, 124 Stat. 4373, provided that: only be delegated as follows: ‘‘(a) VIDEOTAPING OR OTHER ELECTRONIC RECORDING ‘‘(A) In the case of the authority under paragraph REQUIRED.—In accordance with the Army Field Manual (1), such authority may not be delegated below the on Human Intelligence Collector Operations (FM 2–22.3, level of the combatant commander of the theater in September 2006), or any successor thereto, and the which the detention facility holding the person is guidelines developed pursuant to subsection (f), the located. Secretary of Defense shall ensure that each strategic ‘‘(B) In the case of the authority under paragraph intelligence interrogation of any person who is in the (2), such authority may not be delegated below the custody or under the effective control of the Depart- level of the Deputy Secretary of Defense. ‘‘(4) EXTENSIONS.—The Secretary may extend a ment of Defense or under detention in a Department of waiver under paragraph (1) for one additional 30-day Defense facility is videotaped or otherwise electroni- period, or a suspension under paragraph (2) for one cally recorded. additional 30-day period, if— ‘‘(b) CLASSIFICATION OF INFORMATION.—To protect ‘‘(A) the Secretary— United States national security, the safety of the indi- ‘‘(i) in the case of such a waiver, makes a deter- viduals conducting or assisting in the conduct of a stra- mination in writing that such an extension is tegic intelligence interrogation, and the privacy of per- necessary to the national security interests of the sons described in subsection (a), the Secretary of De- United State [sic]; or fense shall provide for the appropriate classification of ‘‘(ii) in the case of such a suspension, makes a videotapes or other electronic recordings made pursu- determination in writing that such an extension ant to subsection (a). The use of such classified video- is vital to the national security interests of the tapes or other electronic recordings in proceedings con- United States; and ducted under the Detainee Treatment Act of 2005 (title ‘‘(B) by not later than five days after the date on XIV of Public Law 109–163 and title X of Public Law which such a determination is made, the Secretary 109–148), chapter 47A of title 10, United States Code, as submits to the Committees on Armed Services of amended by section 1802 of this Act, or at any other ju- the Senate and House of Representatives, the House dicial or administrative forum under any other provi- Permanent Select Committee on Intelligence, and sion of law shall be governed by applicable rules, regu- the Senate Select Committee on Intelligence notice lations, and laws that protect classified information. of that determination, including a justification for ‘‘(c) STRATEGIC INTELLIGENCE INTERROGATION DE- that determination. FINED.—For purposes of this section, the term ‘strate- ‘‘(f) GUIDELINES.— gic intelligence interrogation’ means an interrogation ‘‘(1) DEVELOPMENT OF GUIDELINES.—The Secretary of a person described in subsection (a) conducted at a of Defense, acting through the Judge Advocates Gen- theater-level detention facility. eral (as defined in section 801(1) of title 10, United ‘‘(d) EXCLUSION.—Nothing in this section shall be con- States Code, (Article 1 of the Uniform Code of Mili- strued as requiring— tary Justice)), shall develop and adopt uniform guide- ‘‘(1) any member of the Armed Forces engaged in lines for videotaping or otherwise electronically re- direct combat operations to videotape or otherwise cording strategic intelligence interrogations as re- electronically record an interrogation of a person de- quired under subsection (a). Such guidelines shall, at scribed in subsection (a); or a minimum— ‘‘(2) the videotaping of or otherwise electronically ‘‘(A) promote full compliance with the laws of the recording of tactical questioning, as such term is de- United States; fined in the Army Field Manual on Human Intel- ‘‘(B) promote the exploitation of intelligence; ligence Collector Operations (FM 2–22.3, September ‘‘(C) address the retention, maintenance, and dis- 2006), or any successor thereto. position of videotapes or other electronic record- § 801 TITLE 10—ARMED FORCES Page 434

ings, consistent with subparagraphs (A) and (B) and after release or transfer from Naval Station Guanta- with the interests of justice; and namo Bay. ‘‘(D) ensure the safety of all participants in the ‘‘(3) An assessment of lessons learned from previous interrogations. releases and transfers of individuals who returned to ‘‘(2) SUBMITTAL TO CONGRESS.—Not later than 30 terrorist activities for reducing the risk that detain- days after the date of the enactment of this section ees released or transferred from Naval Station Guan- [Oct. 28, 2009], the Secretary of Defense shall submit tanamo Bay will return to terrorist activities after to the Committees on Armed Services of the Senate their release or transfer.’’ and House of Representatives a report containing the [Memorandum of President of the United States, July guidelines developed under paragraph (1). Such report 17, 2009, 74 F.R. 35765, provided that the reporting func- shall be in an unclassified form but may include a tion conferred upon the President by section 319(a), classified annex.’’ (c)(1) to (3) of Pub. L. 111–32, set out above, is assigned to the Attorney General, and the reporting function REPORTS ON GUANTANAMO BAY PRISONER POPULATION specified in section 319(a), (c)(4), (5), (d) of Pub. L. 111–32 Pub. L. 111–32, title III, § 319, June 24, 2009, 123 Stat. is assigned to the Director of National Intelligence, in 1874, provided that: consultation with the Secretary of Defense.] ‘‘(a) REPORTS REQUIRED.—Not later than 60 days after the date of the enactment of this Act [June 24, 2009] and POLICY ON ROLE OF MILITARY MEDICAL AND BEHAV- every 90 days thereafter, the President shall submit to IORAL SCIENCE PERSONNEL IN INTERROGATION OF DE- the members and committees of Congress specified in TAINEES subsection (b) a report on the prisoner population at Pub. L. 109–163, div. A, title VII, § 750, Jan. 6, 2006, 119 the detention facility at Naval Station Guantanamo Stat. 3364, provided that: Bay, Cuba. ‘‘(a) POLICY REQUIRED.—The Secretary of Defense ‘‘(b) SPECIFIED MEMBERS AND COMMITTEES OF CON- shall establish the policy of the Department of Defense GRESS.—The members and committees of Congress on the role of military medical and behavioral science specified in this subsection are the following: personnel in the interrogation of persons detained by ‘‘(1) The majority leader and minority leader of the the Armed Forces. The policy shall apply uniformly Senate. throughout the Armed Forces. ‘‘(2) The Chairman and Ranking Member on the ‘‘(b) REPORT.—Not later than March 1, 2006, the Sec- Committee on Armed Services of the Senate. retary shall submit to the congressional defense com- ‘‘(3) The Chairman and Vice Chairman of the Select mittees [Committees on Armed Services and Appro- Committee on Intelligence of the Senate. priations of the Senate and the House of Representa- ‘‘(4) The Chairman and Vice Chairman of the Com- tives] a report on the policy established under sub- mittee on Appropriations of the Senate. section (a). The report shall set forth the policy, and ‘‘(5) The Speaker of the House of Representatives. shall include such additional matters on the policy as ‘‘(6) The minority leader of the House of Represent- the Secretary considers appropriate.’’ atives. ‘‘(7) The Chairman and Ranking Member on the DETAINEE INTERROGATION, STATUS REVIEW, AND Committee on Armed Services of the House of Rep- TREATMENT resentatives. ‘‘(8) The Chairman and Vice Chairman of the Per- Pub. L. 109–163, div. A, title XIV, §§ 1402, 1405, 1406, manent Select Committee on Intelligence of the Jan. 6, 2006, 119 Stat. 3475, 3476, 3479, as amended by House of Representatives. Pub. L. 111–84, div. A, title XVIII, § 1803(b)(2), as added ‘‘(9) The Chairman and Ranking Member of the Pub. L. 111–383, div. A, title X, § 1075(d)(21), Jan. 7, 2011, Committee on Appropriations of the House of Rep- 124 Stat. 4374, provided that: resentatives. ‘‘SEC. 1402. UNIFORM STANDARDS FOR THE INTER- ‘‘(c) MATTERS TO BE INCLUDED.—Each report submit- ROGATION OF PERSONS UNDER THE DETEN- ted under subsection (a) shall include the following: TION OF THE DEPARTMENT OF DEFENSE. ‘‘(1) The name and country of origin of each de- ‘‘(a) IN GENERAL.—No person in the custody or under tainee at the detention facility at Naval Station the effective control of the Department of Defense or Guantanamo Bay, Cuba, as of the date of such report. under detention in a Department of Defense facility ‘‘(2) A current summary of the evidence, intel- shall be subject to any treatment or technique of inter- ligence, and information used to justify the detention rogation not authorized by and listed in the United of each detainee listed under paragraph (1) at Naval States Army Field Manual on Intelligence Interroga- Station Guantanamo Bay. tion. ‘‘(3) A current accounting of all the measures taken ‘‘(b) APPLICABILITY.—Subsection (a) shall not apply to transfer each detainee listed under paragraph (1) with respect to any person in the custody or under the to the individual’s country of citizenship or another effective control of the Department of Defense pursu- country. ant to a criminal law or immigration law of the United ‘‘(4) A current description of the number of individ- States. uals released or transferred from detention at Naval ‘‘(c) CONSTRUCTION.—Nothing in this section shall be Station Guantanamo Bay who are confirmed or sus- construed to affect the rights under the United States pected of returning to terrorist activities after re- Constitution of any person in the custody or under the lease or transfer from Naval Station Guantanamo physical jurisdiction of the United States. Bay. ‘‘(5) An assessment of any efforts by al Qaeda to re- ‘‘SEC. 1405. PROCEDURES FOR STATUS REVIEW OF cruit detainees released from detention at Naval Sta- DETAINEES OUTSIDE THE UNITED STATES. tion Guantanamo Bay. ‘‘(a) SUBMITTAL OF PROCEDURES FOR STATUS REVIEW ‘‘(d) ADDITIONAL MATTERS TO BE INCLUDED IN INITIAL OF DETAINEES AT GUANTANAMO BAY, CUBA, AND IN AF- REPORT.—The first report submitted under subsection GHANISTAN AND IRAQ.— (a) shall also include the following: ‘‘(1) IN GENERAL.—Not later than 180 days after the ‘‘(1) A description of the process that was pre- date of the enactment of this Act [Jan. 6, 2006], the viously used for screening the detainees described by Secretary of Defense shall submit to the Committee subsection (c)(4) prior to their release or transfer on Armed Services and the Committee on the Judici- from detention at Naval Station Guantanamo Bay, ary of the Senate and the Committee on Armed Serv- Cuba. ices and the Committee on the Judiciary of the House ‘‘(2) An assessment of the adequacy of that screen- of Representatives a report setting forth— ing process for reducing the risk that detainees pre- ‘‘(A) the procedures of the Combatant Status Re- viously released or transferred from Naval Station view Tribunals and the Administrative Review Guantanamo Bay would return to terrorist activities Boards established by direction of the Secretary of Page 435 TITLE 10—ARMED FORCES § 801

Defense that are in operation at Guantanamo Bay, ‘‘(B) LIMITATION ON CLAIMS.—The jurisdiction of Cuba, for determining the status of the detainees the United States Court of Appeals for the District held at Guantanamo Bay or to provide an annual of Columbia Circuit under this paragraph shall be review to determine the need to continue to detain limited to claims brought by or on behalf of an an alien who is a detainee; and alien— ‘‘(B) the procedures in operation in Afghanistan ‘‘(i) who is, at the time a request for review by and Iraq for a determination of the status of aliens such court is filed, detained by the Department of detained in the custody or under the physical con- Defense at Guantanamo Bay, Cuba; and trol of the Department of Defense in those coun- ‘‘(ii) for whom a Combatant Status Review Tri- tries. bunal has been conducted, pursuant to applicable ‘‘(2) DESIGNATED CIVILIAN OFFICIAL.—The procedures procedures specified by the Secretary of Defense. submitted to Congress pursuant to paragraph (1)(A) ‘‘(C) SCOPE OF REVIEW.—The jurisdiction of the shall ensure that the official of the Department of United States Court of Appeals for the District of Defense who is designated by the President or Sec- Columbia Circuit on any claims with respect to an retary of Defense to be the final review authority alien under this paragraph shall be limited to the within the Department of Defense with respect to de- consideration of— cisions of any such tribunal or board (referred to as ‘‘(i) whether the status determination of the the ‘Designated Civilian Official’) shall be a civilian Combatant Status Review Tribunal with regard officer of the Department of Defense holding an office to such alien was consistent with the standards to which appointments are required by law to be and procedures specified by the Secretary of De- made by the President, by and with the advice and fense for Combatant Status Review Tribunals (in- consent of the Senate. cluding the requirement that the conclusion of ‘‘(3) CONSIDERATION OF NEW EVIDENCE.—The proce- the Tribunal be supported by a preponderance of dures submitted under paragraph (1)(A) shall provide the evidence and allowing a rebuttable presump- for periodic review of any new evidence that may be- tion in favor the Government’s evidence); and come available relating to the enemy combatant ‘‘(ii) to the extent the Constitution and laws of status of a detainee. the United States are applicable, whether the use ‘‘(b) CONSIDERATION OF STATEMENTS DERIVED WITH CO- of such standards and procedures to make the de- ERCION.— termination is consistent with the Constitution ‘‘(1) ASSESSMENT.—The procedures submitted to and laws of the United States. Congress pursuant to subsection (a)(1)(A) shall ensure ‘‘(D) TERMINATION ON RELEASE FROM CUSTODY.— that a Combatant Status Review Tribunal or Admin- The jurisdiction of the United States Court of Ap- istrative Review Board, or any similar or successor peals for the District of Columbia Circuit with re- administrative tribunal or board, in making a deter- spect to the claims of an alien under this paragraph mination of status or disposition of any detainee shall cease upon the release of such alien from the under such procedures, shall, to the extent prac- custody of the Department of Defense. ticable, assess— ‘‘[(3) Repealed. Pub. L. 111–84, div. A, title XVIII, ‘‘(A) whether any statement derived from or re- § 1803(b)(2), as added Pub. L. 111–383, div. A, title X, lating to such detainee was obtained as a result of § 1075(d)(21), Jan. 7, 2011, 124 Stat. 4374.] coercion; and ‘‘(4) RESPONDENT.—The Secretary of Defense shall ‘‘(B) the probative value, if any, of any such be the named respondent in any appeal to the United statement. States Court of Appeals for the District of Columbia ‘‘(2) APPLICABILITY.—Paragraph (1) applies with re- Circuit under this subsection. spect to any proceeding beginning on or after the ‘‘(f) CONSTRUCTION.—Nothing in this section shall be date of the enactment of this Act [Jan. 6, 2006]. construed to confer any constitutional right on an ‘‘(c) REPORT ON MODIFICATION OF PROCEDURES.—The alien detained as an enemy combatant outside the Secretary of Defense shall submit to the committees United States. specified in subsection (a)(1) a report on any modifica- ‘‘(g) UNITED STATES DEFINED.—For purposes of this tion of the procedures submitted under subsection (a). section, the term ‘United States’, when used in a geo- Any such report shall be submitted not later than 60 graphic sense, is as defined in section 101(a)(38) of the days before the date on which such modification goes Immigration and Nationality Act [8 U.S.C. 1101(a)(38)] into effect. and, in particular, does not include the United States ‘‘(d) ANNUAL REPORT.— Naval Station, Guantanamo Bay, Cuba. ‘‘(1) REPORT REQUIRED.—The Secretary of Defense ‘‘(h) EFFECTIVE DATE.— shall submit to Congress an annual report on the an- ‘‘(1) IN GENERAL.—This section shall take effect on nual review process for aliens in the custody of the the date of the enactment of this Act [Jan. 6, 2006]. ‘‘(2) REVIEW OF COMBATANT STATUS TRIBUNAL AND Department of Defense outside the United States. MILITARY COMMISSION DECISIONS.—Paragraphs (2) and Each such report shall be submitted in unclassified (3) of subsection (e) shall apply with respect to any form, with a classified annex, if necessary. The report claim whose review is governed by one of such para- shall be submitted not later than December 31 each graphs and that is pending on or after the date of the year. enactment of this Act. ‘‘(2) ELEMENTS OF REPORT.—Each such report shall include the following with respect to the year covered ‘‘SEC. 1406. TRAINING OF IRAQI SECURITY FORCES by the report: REGARDING TREATMENT OF DETAINEES. ‘‘(A) The number of detainees whose status was ‘‘(a) REQUIRED POLICIES.— reviewed. ‘‘(1) IN GENERAL.—The Secretary of Defense shall ‘‘(B) The procedures used at each location. prescribe policies designed to ensure that all military ‘‘(e) JUDICIAL REVIEW OF DETENTION OF ENEMY COM- and civilian Department of Defense personnel or con- BATANTS.— tractor personnel of the Department of Defense re- ‘‘(1) IN GENERAL.—[Amended section 2241 of Title 28, sponsible for the training of any unit of the Iraqi Se- Judiciary and Judicial Procedure.] curity Forces provide training to such units regard- ‘‘(2) REVIEW OF DECISIONS OF COMBATANT STATUS RE- ing the international obligations and laws applicable VIEW TRIBUNALS OF PROPRIETY OF DETENTION.— to the humane treatment of detainees, including pro- ‘‘(A) IN GENERAL.—Subject to subparagraphs (B), tections afforded under the Geneva Conventions and (C), and (D), the United States Court of Appeals for the Convention Against Torture. the District of Columbia Circuit shall have exclu- ‘‘(2) ACKNOWLEDGMENT OF TRAINING.—The Secretary sive jurisdiction to determine the validity of any shall ensure that, for all personnel of the Iraqi Secu- final decision of a Combatant Status Review Tribu- rity Forces who are provided training referred to in nal that an alien is properly detained as an enemy paragraph (1), there is documented acknowledgment combatant. that such training has been provided. § 801 TITLE 10—ARMED FORCES Page 436

‘‘(3) DEADLINE FOR POLICIES TO BE PRESCRIBED.—The Defense that are in operation at Guantanamo Bay, policies required by paragraph (1) shall be prescribed Cuba, for determining the status of the detainees not later than 180 days after the date of the enact- held at Guantanamo Bay or to provide an annual ment of this Act [Jan. 6, 2006]. review to determine the need to continue to detain ‘‘(b) ARMY FIELD MANUAL.— an alien who is a detainee; and ‘‘(1) TRANSLATION.—The Secretary of Defense shall ‘‘(B) the procedures in operation in Afghanistan provide for the unclassified portions of the United and Iraq for a determination of the status of aliens States Army Field Manual on Intelligence Interroga- detained in the custody or under the physical con- tion to be translated into Arabic and any other lan- trol of the Department of Defense in those coun- guage the Secretary determines appropriate for use tries. by members of the Iraqi security forces. ‘‘(2) DESIGNATED CIVILIAN OFFICIAL.—The procedures ‘‘(2) DISTRIBUTION.—The Secretary of Defense shall submitted to Congress pursuant to paragraph (1)(A) provide for such manual, as translated, to be distrib- shall ensure that the official of the Department of uted to all appropriate officials of the Iraqi Govern- Defense who is designated by the President or Sec- ment, including, but not limited to, the Iraqi Min- retary of Defense to be the final review authority ister of Defense, the Iraqi Minister of Interior, senior within the Department of Defense with respect to de- Iraqi military personnel, and appropriate members of cisions of any such tribunal or board (referred to as the Iraqi Security Forces with a recommendation the ‘Designated Civilian Official’) shall be a civilian that the principles that underlay the manual be officer of the Department of Defense holding an office adopted by the Iraqis as the basis for their policies on to which appointments are required by law to be interrogation of detainees. made by the President, by and with the advice and ‘‘(c) TRANSMITTAL TO CONGRESSIONAL COMMITTEES.— consent of the Senate. Not less than 30 days after the date on which policies ‘‘(3) CONSIDERATION OF NEW EVIDENCE.—The proce- are first prescribed under subsection (a), the Secretary dures submitted under paragraph (1)(A) shall provide of Defense shall submit to the Committee on Armed for periodic review of any new evidence that may be- Services of the Senate and the Committee on Armed come available relating to the enemy combatant Services of the House of Representatives copies of such status of a detainee. regulations, policies, or orders, together with a report ‘‘(b) CONSIDERATION OF STATEMENTS DERIVED WITH CO- on steps taken to the date of the report to implement ERCION.— this section. ‘‘(1) ASSESSMENT.—The procedures submitted to ‘‘(d) ANNUAL REPORT.—Not less than one year after Congress pursuant to subsection (a)(1)(A) shall ensure the date of the enactment of this Act [Jan. 6, 2006], and that a Combatant Status Review Tribunal or Admin- annually thereafter, the Secretary of Defense shall sub- istrative Review Board, or any similar or successor mit to the Committee on Armed Services of the Senate administrative tribunal or board, in making a deter- and the Committee on Armed Services of the House of mination of status or disposition of any detainee Representatives a report on the implementation of this under such procedures, shall, to the extent prac- section.’’ ticable, assess— Pub. L. 109–148, div. A, title X, §§ 1002, 1005, 1006, Dec. ‘‘(A) whether any statement derived from or re- 30, 2005, 119 Stat. 2739, 2740, 2744, as amended by Pub. L. lating to such detainee was obtained as a result of 109–366, §§ 9, 10, Oct. 17, 2006, 120 Stat. 2636, 2637; Pub. L. coercion; and 110–181, div. A, title X, § 1063(d)(2), Jan. 28, 2008, 122 Stat. ‘‘(B) the probative value (if any) of any such 323; Pub. L. 111–84, div. A, title XVIII, § 1803(b)(1), for- statement. merly § 1803(b), Oct. 28, 2009, 123 Stat. 2612, as renum- ‘‘(2) APPLICABILITY.—Paragraph (1) applies with re- bered § 1803(b)(1) by Pub. L. 111–383, div. A, title X, spect to any proceeding beginning on or after the § 1075(d)(21), Jan. 7, 2011, 124 Stat. 4374, provided that: date of the enactment of this Act [Dec. 30, 2005]. ‘‘SEC. 1002. UNIFORM STANDARDS FOR THE INTER- ‘‘(c) REPORT ON MODIFICATION OF PROCEDURES.—The ROGATION OF PERSONS UNDER THE DETEN- Secretary of Defense shall submit to the committees TION OF THE DEPARTMENT OF DEFENSE. specified in subsection (a)(1) a report on any modifica- tion of the procedures submitted under subsection (a). ‘‘(a) IN GENERAL.—No person in the custody or under Any such report shall be submitted not later than 60 the effective control of the Department of Defense or days before the date on which such modification goes under detention in a Department of Defense facility into effect. shall be subject to any treatment or technique of inter- ‘‘(d) ANNUAL REPORT.— rogation not authorized by and listed in the United ‘‘(1) REPORT REQUIRED.—The Secretary of Defense States Army Field Manual on Intelligence Interroga- shall submit to Congress an annual report on the an- tion. nual review process for aliens in the custody of the ‘‘(b) APPLICABILITY.—Subsection (a) shall not apply Department of Defense outside the United States. with respect to any person in the custody or under the Each such report shall be submitted in unclassified effective control of the Department of Defense pursu- form, with a classified annex, if necessary. The report ant to a criminal law or immigration law of the United shall be submitted not later than December 31 each States. year. ‘‘(c) CONSTRUCTION.—Nothing in this section shall be ‘‘(2) ELEMENTS OF REPORT.—Each such report shall construed to affect the rights under the United States include the following with respect to the year covered Constitution of any person in the custody or under the by the report: physical jurisdiction of the United States. ‘‘(A) The number of detainees whose status was ‘‘SEC. 1005. PROCEDURES FOR STATUS REVIEW OF reviewed. DETAINEES OUTSIDE THE UNITED STATES. ‘‘(B) The procedures used at each location. ‘‘(a) SUBMITTAL OF PROCEDURES FOR STATUS REVIEW ‘‘(e) JUDICIAL REVIEW OF DETENTION OF ENEMY COM- OF DETAINEES AT GUANTANAMO BAY, CUBA, AND IN AF- BATANTS.— GHANISTAN AND IRAQ.— ‘‘(1) IN GENERAL.—[Amended section 2241 of Title 28, ‘‘(1) IN GENERAL.—Not later than 180 days after the Judiciary and Judicial Procedure.] date of the enactment of this Act [Dec. 30, 2005], the ‘‘(2) REVIEW OF DECISIONS OF COMBATANT STATUS RE- Secretary of Defense shall submit to the Committee VIEW TRIBUNALS OF PROPRIETY OF DETENTION.— on Armed Services and the Committee on the Judici- ‘‘(A) IN GENERAL.—Subject to subparagraphs (B), ary of the Senate and the Committee on Armed Serv- (C), and (D), the United States Court of Appeals for ices and the Committee on the Judiciary of the House the District of Columbia Circuit shall have exclu- of Representatives a report setting forth— sive jurisdiction to determine the validity of any ‘‘(A) the procedures of the Combatant Status Re- final decision of a Combatant Status Review Tribu- view Tribunals and the Administrative Review nal that an alien is properly detained as an enemy Boards established by direction of the Secretary of combatant. Page 437 TITLE 10—ARMED FORCES § 801

‘‘(B) LIMITATION ON CLAIMS.—The jurisdiction of protections afforded under the Geneva Conventions the United States Court of Appeals for the District and the Convention Against Torture. of Columbia Circuit under this paragraph shall be ‘‘(2) ACKNOWLEDGMENT OF TRAINING.—The Secretary limited to claims brought by or on behalf of an shall ensure that, for all personnel of the Iraqi Secu- alien— rity Forces who are provided training referred to in ‘‘(i) who is, at the time a request for review by paragraph (1), there is documented acknowledgment such court is filed, detained by the United States; of such training having been provided. and ‘‘(3) DEADLINE FOR POLICIES TO BE PRESCRIBED.—The ‘‘(ii) for whom a Combatant Status Review Tri- policies required by paragraph (1) shall be prescribed bunal has been conducted, pursuant to applicable not later than 180 days after the date of the enact- procedures specified by the Secretary of Defense. ment of this Act [Dec. 30, 2005]. ‘‘(C) SCOPE OF REVIEW.—The jurisdiction of the ‘‘(b) ARMY FIELD MANUAL.— United States Court of Appeals for the District of ‘‘(1) TRANSLATION.—The Secretary of Defense shall Columbia Circuit on any claims with respect to an provide for the United States Army Field Manual on alien under this paragraph shall be limited to the Intelligence Interrogation to be translated into ara- consideration of— bic [sic] and any other language the Secretary deter- ‘‘(i) whether the status determination of the mines appropriate for use by members of the Iraqi Combatant Status Review Tribunal with regard military forces. to such alien was consistent with the standards ‘‘(2) DISTRIBUTION.—The Secretary of Defense shall and procedures specified by the Secretary of De- provide for such manual, as translated, to be provided fense for Combatant Status Review Tribunals (in- to each unit of the Iraqi military forces trained by cluding the requirement that the conclusion of Department of Defense personnel or contractor per- the Tribunal be supported by a preponderance of sonnel of the Department of Defense. the evidence and allowing a rebuttable presump- ‘‘(c) TRANSMITTAL OF REGULATIONS.—Not less than 30 tion in favor of the Government’s evidence); and days after the date on which regulations, policies, and ‘‘(ii) to the extent the Constitution and laws of orders are first prescribed under subsection (a), the the United States are applicable, whether the use Secretary of Defense shall submit to the Committee on of such standards and procedures to make the de- Armed Services of the Senate and the Committee on termination is consistent with the Constitution Armed Services of the House of Representatives copies and laws of the United States. of such regulations, policies, or orders, together with a ‘‘(D) TERMINATION ON RELEASE FROM CUSTODY.— report on steps taken to the date of the report to im- The jurisdiction of the United States Court of Ap- plement this section. peals for the District of Columbia Circuit with re- ‘‘(d) ANNUAL REPORT.—Not less than one year after spect to the claims of an alien under this paragraph the date of the enactment of this Act [Dec. 30, 2005], shall cease upon the release of such alien from the and annually thereafter, the Secretary of Defense shall custody of the Department of Defense. submit to the Committee on Armed Services of the ‘‘[(3) Repealed. Pub. L. 111–84, div. A, title XVIII, Senate and the Committee on Armed Services of the § 1803(b)(1), formerly § 1803(b), Oct. 28, 2009, 123 Stat. House of Representatives a report on the implementa- 2612, as renumbered § 1803(b)(1) by Pub. L. 111–383, div. tion of this section.’’ A, title X, § 1075(d)(21), Jan. 7, 2011, 124 Stat. 4374.] SENSE OF CONGRESS CONCERNING DETAINEES; ACTIONS ‘‘(4) RESPONDENT.—The Secretary of Defense shall TO PREVENT ABUSE be the named respondent in any appeal to the United States Court of Appeals for the District of Columbia Pub. L. 108–375, div. A, title X, §§ 1091, 1092, Oct. 28, Circuit under this subsection. 2004, 118 Stat. 2068, 2069, provided that: ‘‘(f) CONSTRUCTION.—Nothing in this section shall be ‘‘SEC. 1091. SENSE OF CONGRESS AND POLICY CON- construed to confer any constitutional right on an CERNING PERSONS DETAINED BY THE UNITED alien detained as an enemy combatant outside the STATES. United States. ‘‘(a) SENSE OF CONGRESS.—It is the sense of Congress ‘‘(g) UNITED STATES DEFINED.—For purposes of this that— section, the term ‘United States’, when used in a geo- ‘‘(1) the abuses inflicted upon detainees at the Abu graphic sense, is as defined in section 101(a)(38) of the Ghraib prison in Baghdad, Iraq, are inconsistent with Immigration and Nationality Act [8 U.S.C. 1101(a)(38)] the professionalism, dedication, standards, and train- and, in particular, does not include the United States ing required of individuals who serve in the United Naval Station, Guantanamo Bay, Cuba. States Armed Forces; ‘‘(h) EFFECTIVE DATE.— ‘‘(2) the vast majority of members of the Armed ‘‘(1) IN GENERAL.—This section shall take effect on Forces have upheld the highest possible standards of the date of the enactment of this Act [Dec. 30, 2005]. professionalism and morality in the face of illegal ‘‘(2) REVIEW OF COMBATANT STATUS TRIBUNAL AND tactics and terrorist attacks and attempts on their MILITARY COMMISSION DECISIONS.—Paragraphs (2) and lives; (3) of subsection (e) shall apply with respect to any ‘‘(3) the abuse of persons in United States custody claim whose review is governed by one of such para- in Iraq is appropriately condemned and deplored by graphs and that is pending on or after the date of the the American people; enactment of this Act. ‘‘(4) the Armed Forces are moving swiftly and deci- ‘‘SEC. 1006. TRAINING OF IRAQI FORCES REGARD- sively to identify, try, and, if found guilty, punish ING TREATMENT OF DETAINEES. persons who perpetrated such abuse; ‘‘(a) REQUIRED POLICIES.— ‘‘(5) the Department of Defense and appropriate ‘‘(1) IN GENERAL.—The Secretary of Defense shall military authorities must continue to undertake cor- ensure that policies are prescribed regarding proce- rective action, as appropriate, to address chain-of- dures for military and civilian personnel of the De- command deficiencies and the systemic deficiencies partment of Defense and contractor personnel of the identified in the incidents in question; Department of Defense in Iraq that are intended to ‘‘(6) the Constitution, laws, and treaties of the ensure that members of the Armed Forces, and all United States and the applicable guidance and regu- persons acting on behalf of the Armed Forces or with- lations of the United States Government prohibit the in facilities of the Armed Forces, ensure that all per- torture or cruel, inhuman, or degrading treatment of sonnel of Iraqi military forces who are trained by De- foreign prisoners held in custody by the United partment of Defense personnel and contractor person- States; nel of the Department of Defense receive training re- ‘‘(7) the alleged crimes of a handful of individuals garding the international obligations and laws appli- should not detract from the commendable sacrifices cable to the humane detention of detainees, including of over 300,000 members of the Armed Forces who § 801 TITLE 10—ARMED FORCES Page 438

have served, or who are serving, in Operation Iraqi ‘‘(5) Ensuring that, to the maximum extent prac- Freedom; and ticable, detainees and detention facility personnel of ‘‘(8) no detainee shall be subject to torture or cruel, a different gender are not alone together. inhuman, or degrading treatment or punishment that ‘‘(c) SECRETARY OF DEFENSE CERTIFICATION.—The Sec- is prohibited by the Constitution, laws, or treaties of retary of Defense shall certify that all Federal employ- United States. ees and civilian contractors engaged in the handling or ‘‘(b) POLICY.—It is the policy of the United States interrogation of individuals detained by the Depart- to— ment of Defense on behalf of the United States Govern- ‘‘(1) ensure that no detainee shall be subject to tor- ment have fulfilled an annual training requirement on ture or cruel, inhuman, or degrading treatment or the law of war, the Geneva Conventions, and the obliga- punishment that is prohibited by the Constitution, tions of the United States under international law.’’ laws, or treaties of the United States; ‘‘(2) investigate and prosecute, as appropriate, all DETENTION, TREATMENT, AND TRIAL OF CERTAIN NON- alleged instances of unlawful treatment of detainees CITIZENS IN THE WAR AGAINST TERRORISM in a manner consistent with the international obliga- Military Order of President of the United States, tions, laws, or policies of the United States; dated Nov. 13, 2001, 66 F.R. 57833, provided: ‘‘(3) ensure that all personnel of the United States By the authority vested in me as President and as Government understand their obligations in both Commander in Chief of the Armed Forces of the United wartime and peacetime to comply with the legal pro- States by the Constitution and the laws of the United hibitions against torture, cruel, inhuman, or degrad- States of America, including the Authorization for Use ing treatment of detainees in the custody of the of Military Force Joint Resolution (Public Law 107–40, United States; 115 Stat. 224) [50 U.S.C. 1541 note] and sections 821 and ‘‘(4) ensure that, in a case in which there is doubt 836 of title 10, United States Code, it is hereby ordered as to whether a detainee is entitled to prisoner of war as follows: status under the Geneva Conventions, such detainee SECTION 1. Findings. receives the protections accorded to prisoners of war (a) International terrorists, including members of al until the detainee’s status is determined by a com- Qaida, have carried out attacks on United States diplo- petent tribunal; and matic and military personnel and facilities abroad and ‘‘(5) expeditiously process and, if appropriate, pros- on citizens and property within the United States on a ecute detainees in the custody of the United States, scale that has created a state of armed conflict that re- including those in the custody of the United States quires the use of the United States Armed Forces. Armed Forces at Guantanamo Bay, Cuba. (b) In light of grave acts of terrorism and threats of ‘‘(c) DETAINEES.—For purposes of this section, the terrorism, including the terrorist attacks on Septem- term ‘detainee’ means a person in the custody or under ber 11, 2001, on the headquarters of the United States the physical control of the United States as a result of Department of Defense in the national capital region, armed conflict. on the World Trade Center in New York, and on civilian ‘‘SEC. 1092. ACTIONS TO PREVENT THE ABUSE OF aircraft such as in Pennsylvania, I proclaimed a na- DETAINEES. tional emergency on September 14, 2001 (Proc. 7463, ‘‘(a) POLICIES REQUIRED.—The Secretary of Defense Declaration of National Emergency by Reason of Cer- shall ensure that policies are prescribed not later than tain Terrorist Attacks [50 U.S.C. 1621 note]). 150 days after the date of the enactment of this Act (c) Individuals acting alone and in concert involved [Oct. 28, 2004] regarding procedures for Department of in international terrorism possess both the capability Defense personnel and contractor personnel of the De- and the intention to undertake further terrorist at- partment of Defense intended to ensure that members tacks against the United States that, if not detected of the Armed Forces, and all persons acting on behalf and prevented, will cause mass deaths, mass injuries, of the Armed Forces or within facilities of the Armed and massive destruction of property, and may place at Forces, treat persons detained by the United States risk the continuity of the operations of the United Government in a humane manner consistent with the States Government. international obligations and laws of the United States (d) The ability of the United States to protect the and the policies set forth in section 1091(b). United States and its citizens, and to help its allies and ‘‘(b) MATTERS TO BE INCLUDED.—In order to achieve other cooperating nations protect their nations and the objective stated in subsection (a), the policies their citizens, from such further terrorist attacks de- under that subsection shall specify, at a minimum, pro- pends in significant part upon using the United States cedures for the following: Armed Forces to identify terrorists and those who sup- ‘‘(1) Ensuring that each commander of a Depart- port them, to disrupt their activities, and to eliminate ment of Defense detention facility or interrogation their ability to conduct or support such attacks. facility— (e) To protect the United States and its citizens, and ‘‘(A) provides all assigned personnel with train- for the effective conduct of military operations and ing, and documented acknowledgment of receiving prevention of terrorist attacks, it is necessary for indi- training, regarding the law of war, including the viduals subject to this order pursuant to section 2 here- Geneva Conventions; and of to be detained, and, when tried, to be tried for viola- ‘‘(B) establishes standard operating procedures tions of the laws of war and other applicable laws by for the treatment of detainees. military tribunals. ‘‘(2) Ensuring that each Department of Defense con- (f) Given the danger to the safety of the United tract in which contract personnel in the course of States and the nature of international terrorism, and their duties interact with individuals detained by the to the extent provided by and under this order, I find Department of Defense on behalf of the United States consistent with section 836 of title 10, United States Government include a requirement that such con- Code, that it is not practicable to apply in military tract personnel have received training, and docu- commissions under this order the principles of law and mented acknowledgment of receiving training, re- the rules of evidence generally recognized in the trial garding the international obligations and laws of the of criminal cases in the United States district courts. United States applicable to the detention of person- (g) Having fully considered the magnitude of the po- nel. tential deaths, injuries, and property destruction that ‘‘(3) Providing all detainees with information, in would result from potential acts of terrorism against their own language, of the applicable protections af- the United States, and the probability that such acts forded under the Geneva Conventions. will occur, I have determined that an extraordinary ‘‘(4) Conducting periodic unannounced and an- emergency exists for national defense purposes, that nounced inspections of detention facilities in order to this emergency constitutes an urgent and compelling provide continued oversight of interrogation and de- government interest, and that issuance of this order is tention operations. necessary to meet the emergency. Page 439 TITLE 10—ARMED FORCES § 801

SEC. 2. Definition and Policy. detain or try any person who is not an individual sub- (a) The term ‘‘individual subject to this order’’ shall ject to this order. mean any individual who is not a United States citizen (b) With respect to any individual subject to this with respect to whom I determine from time to time in order— writing that: (1) military tribunals shall have exclusive jurisdic- (1) there is reason to believe that such individual, tion with respect to offenses by the individual; and at the relevant times, (2) the individual shall not be privileged to seek any (i) is or was a member of the organization known remedy or maintain any proceeding, directly or indi- as al Qaida; rectly, or to have any such remedy or proceeding (ii) has engaged in, aided or abetted, or conspired sought on the individual’s behalf, in (i) any court of to commit, acts of international terrorism, or acts the United States, or any State thereof, (ii) any court in preparation therefor, that have caused, threaten of any foreign nation, or (iii) any international tribu- to cause, or have as their aim to cause, injury to or nal. adverse effects on the United States, its citizens, (c) This order is not intended to and does not create national security, foreign policy, or economy; or any right, benefit, or privilege, substantive or proce- (iii) has knowingly harbored one or more individ- dural, enforceable at law or equity by any party, uals described in subparagraphs (i) or (ii) of sub- against the United States, its departments, agencies, or section 2(a)(1) of this order; and other entities, its officers or employees, or any other (2) it is in the interest of the United States that person. such individual be subject to this order. (d) For purposes of this order, the term ‘‘State’’ in- (b) It is the policy of the United States that the Sec- cludes any State, district, territory, or possession of retary of Defense shall take all necessary measures to the United States. ensure that any individual subject to this order is de- (e) I reserve the authority to direct the Secretary of tained in accordance with section 3, and, if the individ- Defense, at any time hereafter, to transfer to a govern- ual is to be tried, that such individual is tried only in mental authority control of any individual subject to accordance with section 4. this order. Nothing in this order shall be construed to (c) It is further the policy of the United States that limit the authority of any such governmental author- any individual subject to this order who is not already ity to prosecute any individual for whom control is under the control of the Secretary of Defense but who transferred. is under the control of any other officer or agent of the SEC. 8. Publication. United States or any State shall, upon delivery of a This order shall be published in the Federal Register. copy of such written determination to such officer or GEORGE W. BUSH. agent, forthwith be placed under the control of the Sec- [For supersedure of provisions of Military Order of retary of Defense. President of the United States, dated Nov. 13, 2001, set SEC. 3. Detention Authority of the Secretary of Defense. out above, related to trial by military commission, see Any individual subject to this order shall be— Ex. Ord. No. 13425, Feb. 14, 2007, 72 F.R. 7737, set out as (a) detained at an appropriate location designated by a note under section 948b of this title.] the Secretary of Defense outside or within the United States; EX. ORD. NO. 13492. REVIEW AND DISPOSITION OF INDIVID- (b) treated humanely, without any adverse distinc- UALS DETAINED AT THE GUANTANAMO BAY NAVAL BASE tion based on race, color, religion, gender, birth, AND CLOSURE OF DETENTION FACILITIES wealth, or any similar criteria; (c) afforded adequate food, drinking water, shelter, Ex. Ord. No. 13492, Jan. 22, 2009, 74 F.R. 4897, provided: clothing, and medical treatment; By the authority vested in me as President by the (d) allowed the free exercise of religion consistent Constitution and the laws of the United States of with the requirements of such detention; and America, in order to effect the appropriate disposition (e) detained in accordance with such other conditions of individuals currently detained by the Department of as the Secretary of Defense may prescribe. Defense at the Guantanamo Bay Naval Base (Guanta- SEC. 4. Authority of the Secretary of Defense Regarding namo) and promptly to close detention facilities at Trials of Individuals Subject to this Order. [Superseded by Guantanamo, consistent with the national security and Ex. Ord. No. 13425, set out as a note under section 948b foreign policy interests of the United States and the in- of this title.] terests of justice, I hereby order as follows: SEC. 5. Obligation of Other Agencies to Assist the Sec- SECTION 1. Definitions. As used in this order: retary of Defense. (a) ‘‘Common Article 3’’ means Article 3 of each of Departments, agencies, entities, and officers of the the Geneva Conventions. United States shall, to the maximum extent permitted (b) ‘‘Geneva Conventions’’ means: by law, provide to the Secretary of Defense such assist- (i) the Convention for the Amelioration of the Con- ance as he may request to implement this order. dition of the Wounded and Sick in Armed Forces in SEC. 6. Additional Authorities of the Secretary of De- the Field, August 12, 1949 (6 UST 3114); fense. (ii) the Convention for the Amelioration of the Con- (a) As a military function and in light of the findings dition of Wounded, Sick and Shipwrecked Members of in section 1, the Secretary of Defense shall issue such Armed Forces at Sea, August 12, 1949 (6 UST 3217); orders and regulations as may be necessary to carry (iii) the Convention Relative to the Treatment of out any of the provisions of this order. Prisoners of War, August 12, 1949 (6 UST 3316); and (b) The Secretary of Defense may perform any of his (iv) the Convention Relative to the Protection of functions or duties, and may exercise any of the powers Civilian Persons in Time of War, August 12, 1949 (6 provided to him under this order (other than under sec- UST 3516). tion 4(c)(8) hereof) in accordance with section 113(d) of (c) ‘‘Individuals currently detained at Guantanamo’’ title 10, United States Code. and ‘‘individuals covered by this order’’ mean individ- SEC. 7. Relationship to Other Law and Forums. uals currently detained by the Department of Defense (a) Nothing in this order shall be construed to— in facilities at the Guantanamo Bay Naval Base whom (1) authorize the disclosure of state secrets to any the Department of Defense has ever determined to be, person not otherwise authorized to have access to or treated as, enemy combatants. them; SEC. 2. Findings. (2) limit the authority of the President as Com- (a) Over the past 7 years, approximately 800 individ- mander in Chief of the Armed Forces or the power of uals whom the Department of Defense has ever deter- the President to grant reprieves and pardons; or mined to be, or treated as, enemy combatants have (3) limit the lawful authority of the Secretary of been detained at Guantanamo. The Federal Govern- Defense, any military commander, or any other offi- ment has moved more than 500 such detainees from cer or agent of the United States or of any State to Guantanamo, either by returning them to their home § 801 TITLE 10—ARMED FORCES Page 440 country or by releasing or transferring them to a third and legal expertise, as determined by the Attorney country. The Department of Defense has determined General, with the concurrence of the head of the de- that a number of the individuals currently detained at partment or agency concerned. Guantanamo are eligible for such transfer or release. (c) Operation of Review. The duties of the Review par- (b) Some individuals currently detained at Guanta- ticipants shall include the following: namo have been there for more than 6 years, and most (1) Consolidation of Detainee Information. The Attor- have been detained for at least 4 years. In view of the ney General shall, to the extent reasonably prac- significant concerns raised by these detentions, both ticable, and in coordination with the other Review within the United States and internationally, prompt participants, assemble all information in the posses- and appropriate disposition of the individuals currently sion of the Federal Government that pertains to any detained at Guantanamo and closure of the facilities in individual currently detained at Guantanamo and which they are detained would further the national se- that is relevant to determining the proper disposition curity and foreign policy interests of the United States of any such individual. All executive branch depart- and the interests of justice. Merely closing the facili- ments and agencies shall promptly comply with any ties without promptly determining the appropriate dis- request of the Attorney General to provide informa- position of the individuals detained would not ade- tion in their possession or control pertaining to any quately serve those interests. To the extent prac- such individual. The Attorney General may seek fur- ticable, the prompt and appropriate disposition of the ther information relevant to the Review from any individuals detained at Guantanamo should precede the source. closure of the detention facilities at Guantanamo. (2) Determination of Transfer. The Review shall de- (c) The individuals currently detained at Guanta- termine, on a rolling basis and as promptly as pos- namo have the constitutional privilege of the writ of sible with respect to the individuals currently de- habeas corpus. Most of those individuals have filed pe- tained at Guantanamo, whether it is possible to titions for a writ of habeas corpus in Federal court transfer or release the individuals consistent with the challenging the lawfulness of their detention. national security and foreign policy interests of the (d) It is in the interests of the United States that the United States and, if so, whether and how the Sec- executive branch undertake a prompt and thorough re- retary of Defense may effect their transfer or release. view of the factual and legal bases for the continued de- The Secretary of Defense, the Secretary of State, tention of all individuals currently held at Guanta- and, as appropriate, other Review participants shall namo, and of whether their continued detention is in work to effect promptly the release or transfer of all the national security and foreign policy interests of the individuals for whom release or transfer is possible. United States and in the interests of justice. The un- (3) Determination of Prosecution. In accordance with usual circumstances associated with detentions at United States law, the cases of individuals detained Guantanamo require a comprehensive interagency re- at Guantanamo not approved for release or transfer view. shall be evaluated to determine whether the Federal (e) New diplomatic efforts may result in an appro- Government should seek to prosecute the detained in- priate disposition of a substantial number of individ- dividuals for any offenses they may have committed, uals currently detained at Guantanamo. including whether it is feasible to prosecute such in- (f) Some individuals currently detained at Guanta- dividuals before a court established pursuant to Arti- namo may have committed offenses for which they cle III of the United States Constitution, and the Re- should be prosecuted. It is in the interests of the view participants shall in turn take the necessary United States to review whether and how any such in- and appropriate steps based on such determinations. dividuals can and should be prosecuted. (4) Determination of Other Disposition. With respect (g) It is in the interests of the United States that the to any individuals currently detained at Guantanamo executive branch conduct a prompt and thorough re- whose disposition is not achieved under paragraphs view of the circumstances of the individuals currently (2) or (3) of this subsection, the Review shall select detained at Guantanamo who have been charged with lawful means, consistent with the national security offenses before military commissions pursuant to the and foreign policy interests of the United States and Military Commissions Act of 2006, Public Law 109–366, the interests of justice, for the disposition of such in- as well as of the military commission process more dividuals. The appropriate authorities shall promptly generally. implement such dispositions. SEC. 3. Closure of Detention Facilities at Guantanamo. (5) Consideration of Issues Relating to Transfer to the The detention facilities at Guantanamo for individuals United States. The Review shall identify and consider covered by this order shall be closed as soon as prac- legal, logistical, and security issues relating to the ticable, and no later than 1 year from the date of this potential transfer of individuals currently detained order. If any individuals covered by this order remain at Guantanamo to facilities within the United States, in detention at Guantanamo at the time of closure of and the Review participants shall work with the Con- those detention facilities, they shall be returned to gress on any legislation that may be appropriate. their home country, released, transferred to a third SEC. 5. Diplomatic Efforts. The Secretary of State shall country, or transferred to another United States deten- expeditiously pursue and direct such negotiations and tion facility in a manner consistent with law and the diplomatic efforts with foreign governments as are nec- national security and foreign policy interests of the essary and appropriate to implement this order. United States. SEC. 6. Humane Standards of Confinement. No individ- SEC. 4. Immediate Review of All Guantanamo Detentions. ual currently detained at Guantanamo shall be held in (a) Scope and Timing of Review. A review of the status the custody or under the effective control of any offi- of each individual currently detained at Guantanamo cer, employee, or other agent of the United States Gov- (Review) shall commence immediately. ernment, or at a facility owned, operated, or controlled (b) Review Participants. The Review shall be conducted by a department or agency of the United States, except with the full cooperation and participation of the fol- in conformity with all applicable laws governing the lowing officials: conditions of such confinement, including Common Ar- (1) the Attorney General, who shall coordinate the ticle 3 of the Geneva Conventions. The Secretary of De- Review; fense shall immediately undertake a review of the con- (2) the Secretary of Defense; ditions of detention at Guantanamo to ensure full com- (3) the Secretary of State; pliance with this directive. Such review shall be com- (4) the Secretary of Homeland Security; pleted within 30 days and any necessary corrections (5) the Director of National Intelligence; shall be implemented immediately thereafter. (6) the Chairman of the Joint Chiefs of Staff; and SEC. 7. Military Commissions. The Secretary of Defense (7) other officers or full-time or permanent part- shall immediately take steps sufficient to ensure that time employees of the United States, including em- during the pendency of the Review described in section ployees with intelligence, counterterrorism, military, 4 of this order, no charges are sworn, or referred to a Page 441 TITLE 10—ARMED FORCES § 801 military commission under the Military Commissions (1) Each detainee shall be provided, in writing and in Act of 2006 and the Rules for Military Commissions, a language the detainee understands, with advance no- and that all proceedings of such military commissions tice of the PRB review and an unclassified summary of to which charges have been referred but in which no the factors and information the PRB will consider in judgment has been rendered, and all proceedings pend- evaluating whether the detainee meets the standard set ing in the United States Court of Military Commission forth in section 2 of this order. The written summary Review, are halted. shall be sufficiently comprehensive to provide adequate SEC. 8. General Provisions. notice to the detainee of the reasons for continued de- (a) Nothing in this order shall prejudice the authority tention. of the Secretary of Defense to determine the disposi- (2) The detainee shall be assisted in proceedings be- tion of any detainees not covered by this order. fore the PRB by a Government-provided personal rep- (b) This order shall be implemented consistent with resentative (representative) who possesses the security applicable law and subject to the availability of appro- clearances necessary for access to the information de- priations. scribed in subsection (a)(4) of this section. The rep- (c) This order is not intended to, and does not, create resentative shall advocate on behalf of the detainee be- any right or benefit, substantive or procedural, enforce- fore the PRB and shall be responsible for challenging able at law or in equity by any party against the the Government’s information and introducing infor- United States, its departments, agencies, or entities, mation on behalf of the detainee. In addition to the its officers, employees, or agents, or any other person. representative, the detainee may be assisted in pro- BARACK OBAMA. ceedings before the PRB by private counsel, at no ex- pense to the Government. EX. ORD. NO. 13567. PERIODIC REVIEW OF INDIVIDUALS DE- (3) The detainee shall be permitted to (i) present to ´ TAINED AT GUANTANAMO BAY NAVAL STATION PURSU- the PRB a written or oral statement; (ii) introduce rel- ANT TO THE AUTHORIZATION FOR USE OF MILITARY evant information, including written declarations; (iii) FORCE answer any questions posed by the PRB; and (iv) call Ex. Ord. No. 13567, Mar. 7, 2011, 76 F.R. 13277, provided: witnesses who are reasonably available and willing to By the authority vested in me as President by the provide information that is relevant and material to Constitution and the laws of the United States of the standard set forth in section 2 of this order. America, including the Authorization for Use of Mili- (4) The Secretary of Defense, in coordination with tary Force of September 2001 (AUMF), Public Law other relevant Government agencies, shall compile and 107–40, and in order to ensure that military detention of provide to the PRB all information in the detainee dis- individuals now held at the U.S. Naval Station, position recommendations produced by the Task Force Guanta´ namo Bay, Cuba (Guanta´ namo), who were sub- established under Executive Order 13492 that is relevant ject to the interagency review under section 4 of Execu- to the determination whether the standard in section 2 tive Order 13492 of January 22, 2009, continues to be of this order has been met and on which the Govern- carefully evaluated and justified, consistent with the ment seeks to rely for that determination. In addition, national security and foreign policy interests of the the Secretary of Defense, in coordination with other United States and the interests of justice, I hereby relevant Government agencies, shall compile any addi- order as follows: tional information relevant to that determination, and SECTION 1. Scope and Purpose. (a) The periodic review on which the Government seeks to rely for that deter- described in section 3 of this order applies only to those mination, that has become available since the conclu- detainees held at Guanta´ namo on the date of this sion of the Executive Order 13492 review. All mitigating order, whom the interagency review established by Ex- information relevant to that determination must be ecutive Order 13492 has (i) designated for continued law provided to the PRB. of war detention; or (ii) referred for prosecution, except (5) The information provided in subsection (a)(4) of for those detainees against whom charges are pending this section shall be provided to the detainee’s rep- or a judgment of conviction has been entered. resentative. In exceptional circumstances where it is (b) This order is intended solely to establish, as a dis- necessary to protect national security, including intel- cretionary matter, a process to review on a periodic ligence sources and methods, the PRB may determine basis the executive branch’s continued, discretionary that the representative must receive a sufficient sub- exercise of existing detention authority in individual stitute or summary, rather than the underlying infor- cases. It does not create any additional or separate mation. If the detainee is represented by private coun- source of detention authority, and it does not affect the sel, the information provided in subsection (a)(4) of this scope of detention authority under existing law. De- section shall be provided to such counsel unless the tainees at Guanta´ namo have the constitutional privi- Government determines that the need to protect na- lege of the writ of habeas corpus, and nothing in this tional security, including intelligence sources and order is intended to affect the jurisdiction of Federal methods, or law enforcement or privilege concerns, re- courts to determine the legality of their detention. quires the Government to provide counsel with a suffi- (c) In the event detainees covered by this order are cient substitute or summary of the information. A suf- transferred from Guanta´ namo to another U.S. deten- ficient substitute or summary must provide a meaning- tion facility where they remain in law of war deten- ful opportunity to assist the detainee during the review tion, this order shall continue to apply to them. process. SEC. 2. Standard for Continued Detention. Continued (6) The PRB shall conduct a hearing to consider the law of war detention is warranted for a detainee subject information described in subsection (a)(4) of this sec- to the periodic review in section 3 of this order if it is tion, and other relevant information provided by the necessary to protect against a significant threat to the detainee or the detainee’s representative or counsel, to security of the United States. determine whether the standard in section 2 of this SEC. 3. Periodic Review. The Secretary of Defense shall order is met. The PRB shall consider the reliability of coordinate a process of periodic review of continued any information provided to it in making its deter- law of war detention for each detainee described in sec- mination. tion 1(a) of this order. In consultation with the Attor- (7) The PRB shall make a prompt determination, by ney General, the Secretary of Defense shall issue im- consensus and in writing, as to whether the detainee’s plementing guidelines governing the process, consist- continued detention is warranted under the standard in ent with the following requirements: section 2 of this order. If the PRB determines that the (a) Initial Review. For each detainee, an initial review standard is not met, the PRB shall also recommend any shall commence as soon as possible but no later than 1 conditions that relate to the detainee’s transfer. The year from the date of this order. The initial review will PRB shall provide a written summary of any final de- consist of a hearing before a Periodic Review Board termination in unclassified form to the detainee, in a (PRB). The review and hearing shall follow a process language the detainee understands, within 30 days of that includes the following requirements: the determination when practicable. § 802 TITLE 10—ARMED FORCES Page 442

(8) The Secretary of Defense shall establish a sec- ommendation to the President regarding whether con- retariat to administer the PRB review and hearing tinuation of any such suspension is warranted. process. The Director of National Intelligence shall as- (b) After completion of the initial reviews under sec- sist in preparing the unclassified notice and the sub- tion 3(a) of this order, and at least once every 4 years stitutes or summaries described above. Other executive thereafter, the Committee shall review whether a con- departments and agencies shall assist in the process of tinued law of war detention policy remains consistent providing the PRB with information required for the with the interests of the United States, including na- review processes detailed in this order. tional security interests. (b) Subsequent Full Review. The continued detention of SEC. 6. Continuing Obligation of the Departments of Jus- each detainee shall be subject to subsequent full re- tice and Defense to Assess Feasibility of Prosecution. As to views and hearings by the PRB on a triennial basis. each detainee whom the interagency review established Each subsequent review shall employ the procedures by Executive Order 13492 has designated for continued set forth in section 3(a) of this order. law of war detention, the Attorney General and the (c) File Reviews. The continued detention of each de- Secretary of Defense shall continue to assess whether tainee shall also be subject to a file review every 6 prosecution of the detainee is feasible and in the na- months in the intervening years between full reviews. tional security interests of the United States, and shall This file review will be conducted by the PRB and shall refer detainees for prosecution, as appropriate. consist of a review of any relevant new information re- SEC. 7. Obligation of Other Departments and Agencies to lated to the detainee compiled by the Secretary of De- Assist the Secretary of Defense. All departments, agen- fense, in coordination with other relevant agencies, cies, entities, and officers of the United States, to the since the last review and, as appropriate, information maximum extent permitted by law, shall provide the considered during any prior PRB review. The detainee Secretary of Defense such assistance as may be re- shall be permitted to make a written submission in quested to implement this order. connection with each file review. If, during the file re- SEC. 8. Legality of Detention. The process established view, a significant question is raised as to whether the under this order does not address the legality of any de- detainee’s continued detention is warranted under the tainee’s law of war detention. If, at any time during the standard in section 2 of this order, the PRB will periodic review process established in this order, mate- promptly convene a full review pursuant to the stand- rial information calls into question the legality of de- ards in section 3(a) of this order. tention, the matter will be referred immediately to the (d) Review of PRB Determinations. The Review Com- Secretary of Defense and the Attorney General for ap- mittee (Committee), as defined in section 9(d) of this propriate action. order, shall conduct a review if (i) a member of the SEC. 9. Definitions. (a) ‘‘Law of War Detention’’ Committee seeks review of a PRB determination with- means: detention authorized by the Congress under the in 30 days of that determination; or (ii) consensus with- AUMF, as informed by the laws of war. in the PRB cannot be reached. (b) ‘‘Periodic Review Board’’ means: a board com- SEC. 4. Effect of Determination to Transfer. (a) If a final posed of senior officials tasked with fulfilling the func- determination is made that a detainee does not meet tions described in section 3 of this order, one appointed the standard in section 2 of this order, the Secretaries by each of the following departments and offices: the of State and Defense shall be responsible for ensuring Departments of State, Defense, Justice, and Homeland that vigorous efforts are undertaken to identify a suit- Security, as well as the Offices of the Director of Na- able transfer location for any such detainee, outside of tional Intelligence and the Chairman of the Joint the United States, consistent with the national secu- Chiefs of Staff. rity and foreign policy interests of the United States (c) ‘‘Conditional Detention’’ means: the status of and the commitment set forth in section 2242(a) of the those detainees designated by the Executive Order 13492 Foreign Affairs Reform and Restructuring Act of 1998 review as eligible for transfer if one of the following (Public Law 105–277). conditions is satisfied: (1) the security situation im- (b) The Secretary of State, in consultation with the proves in Yemen; (2) an appropriate rehabilitation pro- Secretary of Defense, shall be responsible for obtaining gram becomes available; or (3) an appropriate third- appropriate security and humane treatment assurances country resettlement option becomes available. regarding any detainee to be transferred to another (d) ‘‘Review Committee’’ means: a committee com- country, and for determining, after consultation with posed of the Secretary of State, the Secretary of De- members of the Committee, that it is appropriate to fense, the Attorney General, the Secretary of Home- proceed with the transfer. land Security, the Director of National Intelligence, (c) The Secretary of State shall evaluate humane and the Chairman of the Joint Chiefs of Staff. treatment assurances in all cases, consistent with the SEC. 10. General Provisions. (a) Nothing in this order recommendations of the Special Task Force on Interro- shall prejudice the authority of the Secretary of De- gation and Transfer Policies established by Executive fense or any other official to determine the disposition Order 13491 of January 22, 2009. of any detainee not covered by this order. SEC. 5. Annual Committee Review. (a) The Committee (b) This order shall be implemented subject to the shall conduct an annual review of sufficiency and effi- availability of necessary appropriations and consistent cacy of transfer efforts, including: with applicable law including: the Convention Against (1) the status of transfer efforts for any detainee who Torture; Common Article 3 of the Geneva Conventions; has been subject to the periodic review under section 3 the Detainee Treatment Act of 2005; and other laws re- of this order, whose continued detention has been de- lating to the transfer, treatment, and interrogation of termined not to be warranted, and who has not been individuals detained in an armed conflict. transferred more than 6 months after the date of such (c) This order is not intended to, and does not, create determination; any right or benefit, substantive or procedural, enforce- (2) the status of transfer efforts for any detainee able at law or in equity by any party against the whose petition for a writ of habeas corpus has been United States, its departments, agencies, or entities, granted by a U.S. Federal court with no pending appeal its officers, employees, or agents, or any other person. and who has not been transferred; (d) Nothing in this order, and no determination made (3) the status of transfer efforts for any detainee who under this order, shall be construed as grounds for re- has been designated for transfer or conditional deten- lease of detainees covered by this order into the United tion by the Executive Order 13492 review and who has States. not been transferred; and BARACK OBAMA. (4) the security and other conditions in the countries to which detainees might be transferred, including a re- § 802. Art. 2. Persons subject to this chapter view of any suspension of transfers to a particular country, in order to determine whether further steps to (a) The following persons are subject to this facilitate transfers are appropriate or to provide a rec- chapter: Page 443 TITLE 10—ARMED FORCES § 802

(1) Members of a regular component of the (3) received military pay or allowances; and armed forces, including those awaiting dis- (4) performed military duties; charge after expiration of their terms of en- listment; volunteers from the time of their is subject to this chapter until such person’s ac- muster or acceptance into the armed forces; tive service has been terminated in accordance inductees from the time of their actual induc- with law or regulations promulgated by the Sec- tion into the armed forces; and other persons retary concerned. lawfully called or ordered into, or to duty in (d)(1) A member of a reserve component who is or for training in, the armed forces, from the not on active duty and who is made the subject dates when they are required by the terms of of proceedings under section 815 (article 15) or the call or order to obey it. section 830 (article 30) with respect to an offense (2) Cadets, aviation cadets, and midshipmen. against this chapter may be ordered to active (3) Members of a reserve component while on duty involuntarily for the purpose of— inactive-duty training, but in the case of (A) a preliminary hearing under section 832 members of the Army National Guard of the of this title (article 32); United States or the Air National Guard of the United States only when in Federal service. (B) trial by court-martial; or (4) Retired members of a regular component (C) nonjudicial punishment under section 815 of the armed forces who are entitled to pay. of this title (article 15). (5) Retired members of a reserve component who are receiving hospitalization from an (2) A member of a reserve component may not armed force. be ordered to active duty under paragraph (1) ex- (6) Members of the Fleet Reserve and Fleet cept with respect to an offense committed while Marine Corps Reserve. the member was— (7) Persons in custody of the armed forces (A) on active duty; or serving a sentence imposed by a court-martial. (B) on inactive-duty training, but in the case (8) Members of the National Oceanic and At- of members of the Army National Guard of the mospheric Administration, Public Health United States or the Air National Guard of the Service, and other organizations, when as- United States only when in Federal service. signed to and serving with the armed forces. (9) Prisoners of war in custody of the armed (3) Authority to order a member to active duty forces. under paragraph (1) shall be exercised under reg- (10) In time of declared war or a contingency ulations prescribed by the President. operation, persons serving with or accompany- (4) A member may be ordered to active duty ing an armed force in the field. under paragraph (1) only by a person empowered (11) Subject to any treaty or agreement to to convene general courts-martial in a regular which the United States is or may be a party component of the armed forces. or to any accepted rule of international law, (5) A member ordered to active duty under persons serving with, employed by, or accom- paragraph (1), unless the order to active duty panying the armed forces outside the United was approved by the Secretary concerned, may States and outside the Commonwealth of not— Puerto Rico, Guam, and the Virgin Islands. (12) Subject to any treaty or agreement to (A) be sentenced to confinement; or which the United States is or may be a party (B) be required to serve a punishment con- or to any accepted rule of international law, sisting of any restriction on liberty during a persons within an area leased by or otherwise period other than a period of inactive-duty reserved or acquired for the use of the United training or active duty (other than active duty States which is under the control of the Sec- ordered under paragraph (1)). retary concerned and which is outside the (e) The provisions of this section are subject United States and outside the Commonwealth to section 876b(d)(2) of this title (article of Puerto Rico, Guam, and the Virgin Islands. (13) Individuals belonging to one of the eight 76b(d)(2)). categories enumerated in Article 4 of the Con- (Aug. 10, 1956, ch. 1041, 70A Stat. 37; Pub. L. vention Relative to the Treatment of Pris- 86–70, § 6(b), June 25, 1959, 73 Stat. 142; Pub. L. oners of War, done at Geneva August 12, 1949 (6 86–624, § 4(b), July 12, 1960, 74 Stat. 411; Pub. L. UST 3316), who violate the law of war. 87–651, title I, § 104, Sept. 7, 1962, 76 Stat. 508; (b) The voluntary enlistment of any person Pub. L. 89–718, § 8(a), Nov. 2, 1966, 80 Stat. 1117; who has the capacity to understand the signifi- Pub. L. 96–107, title VIII, § 801(a), Nov. 9, 1979, 93 cance of enlisting in the armed forces shall be Stat. 810; Pub. L. 96–513, title V, § 511(24), Dec. 12, valid for purposes of jurisdiction under sub- 1980, 94 Stat. 2922; Pub. L. 98–209, § 13(a), Dec. 6, section (a) and a change of status from civilian 1983, 97 Stat. 1408; Pub. L. 99–661, div. A, title to member of the armed forces shall be effective VIII, § 804(a), Nov. 14, 1986, 100 Stat. 3906; Pub. L. upon the taking of the oath of enlistment. 100–456, div. A, title XII, § 1234(a)(1), Sept. 29, (c) Notwithstanding any other provision of 1988, 102 Stat. 2059; Pub. L. 104–106, div. A, title law, a person serving with an armed force who— XI, § 1133(b), Feb. 10, 1996, 110 Stat. 466; Pub. L. (1) submitted voluntarily to military au- 109–364, div. A, title V, § 552, Oct. 17, 2006, 120 thority; Stat. 2217; Pub. L. 109–366, § 4(a)(1), Oct. 17, 2006, (2) met the mental competency and mini- 120 Stat. 2631; Pub. L. 111–84, div. A, title XVIII, mum age qualifications of sections 504 and 505 § 1803(a)(1), Oct. 28, 2009, 123 Stat. 2612; Pub. L. of this title at the time of voluntary submis- 113–66, div. A, title XVII, § 1702(c)(3)(A), Dec. 26, sion to military authority; 2013, 127 Stat. 957.) § 802 TITLE 10—ARMED FORCES Page 444

HISTORICAL AND REVISION NOTES following: the Canal Zone’’ and inserted ‘‘the Common- 1956 ACT wealth of’’ before ‘‘Puerto Rico’’. Subsec. (b). Pub. L. 98–209, § 13(a)(2), struck out ‘‘of Revised Source (U.S. Code) Source (Statutes at Large) this section’’ after ‘‘subsection (a)’’. section 1980—Subsec. (a)(8). Pub. L. 96–513 substituted ‘‘Na- 802 ...... 50:552. May 5, 1950, ch. 169, § 1 tional Oceanic and Atmospheric Administration’’ for (Art. 2), 64 Stat. 109. ‘‘Environmental Science Services Administration’’. 1979—Pub. L. 96–107 designated existing provisions as In clause (1), the words ‘‘Members of’’ are substituted subsec. (a) and added subsecs. (b) and (c). for the words ‘‘All persons belonging to’’. The words 1966—Pub. L. 89–718 substituted ‘‘Environmental ‘‘all’’ and ‘‘the same’’ are omitted as surplusage. The Science Services Administration’’ for ‘‘Coast and Geo- word ‘‘when’’ is inserted after the word ‘‘dates’’. detic Survey’’ in cl. (8). In clauses (1) and (8), the words ‘‘of the United 1962—Pub. L. 87–651 inserted ‘‘Guam,’’ after ‘‘Puerto States’’ are omitted as surplusage. Rico,’’ in cls. (11) and (12). In clause (3), the words ‘‘Members of a reserve compo- 1960—Pub. L. 86–624 struck out ‘‘the main group of the nent’’ are substituted for the words ‘‘Reserve person- Hawaiian Islands,’’ before ‘‘Puerto Rico’’ in cls. (11) and nel’’. The word ‘‘orders’’ in the last clause is omitted as (12). surplusage. 1959—Pub. L. 86–70 struck out ‘‘that part of Alaska In clause (4), the word ‘‘receive’’ is omitted as sur- east of longitude 172 degrees west,’’ before ‘‘the Canal plusage. Zone’’ in cls. (11) and (12). In clauses (4) and (5), the word ‘‘members’’ is sub- stituted for the word ‘‘personnel’’. EFFECTIVE DATE OF 2013 AMENDMENT In clause (8), the word ‘‘members’’ is substituted for the word ‘‘personnel’’. Pub. L. 113–66, div. A, title XVII, § 1702(d)(1), Dec. 26, In clauses (11) and (12), the word ‘‘outside’’ is sub- 2013, 127 Stat. 958, as amended by Pub. L. 113–291, div. stituted for the word ‘‘without’’ wherever it occurs. A, title V, § 531(g)(1), Dec. 19, 2014, 128 Stat. 3365, pro- The words ‘‘the continental limits of’’ are omitted, vided that: ‘‘The amendments made by subsections (a) since section 101(1) of this title defines the United and (c)(3) [amending this section and sections 832, 834, States to include the States and the District of Colum- 838, 847, and 948b of this title] shall take effect on the bia. The words ‘‘the provision of’’, ‘‘all’’, and ‘‘terri- later of December 26, 2014, or the date of the enactment tories’’ are omitted as surplusage. of the Carl Levin and Howard P. ‘Buck’ McKeon Na- In clause (12), the words ‘‘Secretary concerned’’ are tional Defense Authorization Act for Fiscal Year 2015 substituted for the words ‘‘Secretary of a Department’’. [Dec. 19, 2014] and shall apply with respect to prelimi- nary hearings conducted on or after that effective 1962 ACT date.’’ [Pub. L. 113–291, div. A, title V, § 531(g)(1), Dec. 19, Revised 2014, 128 Stat. 3365, provided that the amendment by section Source (U.S. Code) Source (Statutes at Large) section 531(g)(1) to section 1702(d)(1) of Pub. L. 113–66, 802(11), 50:552(11) and (12). Aug. 1, 1956, ch. 852, § 23, set out above, is effective as of Dec. 26, 2013, and as if (12). 70 Stat. 911. included in section 1702(d)(1) of Pub. L. 113–66, as en- acted.]’’ The Act of August 1, 1956, was enacted during the pendency of the codification bill. EFFECTIVE DATE OF 1986 AMENDMENT

CONSTITUTIONALITY Pub. L. 99–661, div. A, title VIII, § 804(e), Nov. 14, 1986, 100 Stat. 3908, provided that: ‘‘The amendments made For information regarding constitutionality of cer- by subsections (a) and (b) [amending this section and tain provisions of section 1 (Art. 2) of act May 5, 1950, section 803 of this title] shall apply only to an offense ch. 169, cited as the source of this section, see Congres- committed on or after the effective date of this title sional Research Service, The Constitution of the [see section 808 of Pub. L. 99–661, set out below].’’ United States of America: Analysis and Interpretation, Pub. L. 99–661, div. A, title VIII, § 808, Nov. 14, 1986, 100 Appendix 1, Acts of Congress Held Unconstitutional in Stat. 3909, provided that: ‘‘Except as provided in sec- Whole or in Part by the Supreme Court of the United tions 802(b), 805(c), and 807(b) [set out as notes under States. sections 850a, 843, and 806, respectively, of this title], AMENDMENTS this title and the amendments made by this title [en- acting section 850a of this title, amending this section 2013—Subsec. (d)(1)(A). Pub. L. 113–66 substituted ‘‘a and sections 803, 806, 825, 843, 860, 936, and 937 of this preliminary hearing under section 832’’ for ‘‘investiga- title, and enacting provisions set out as notes under tion under section 832’’. this section and sections 801, 806, 825, 843, 850a, and 860 2009—Subsec. (a)(13). Pub. L. 111–84 amended par. (13) of this title] shall take effect on the earlier of— generally. Prior to amendment, par. (13) read as fol- ‘‘(1) the last day of the 120-day period beginning on lows: ‘‘Lawful enemy combatants (as that term is de- the date of the enactment of this Act [Nov. 14, 1986]; fined in section 948a(2) of this title) who violate the law or of war.’’ ‘‘(2) the date specified in an Executive order for 2006—Subsec. (a)(10). Pub. L. 109–364 substituted ‘‘de- such amendments to take effect.’’ clared war or a contingency operation’’ for ‘‘war’’. Subsec. (a)(13). Pub. L. 109–366 added par. (13). EFFECTIVE DATE OF 1983 AMENDMENT 1996—Subsec. (e). Pub. L. 104–106 added subsec. (e). 1988—Subsec. (a)(11), (12). Pub. L. 100–456 struck out Amendment by Pub. L. 98–209 effective Dec. 6, 1983, ‘‘the Canal Zone,’’ before ‘‘the Commonwealth’’. see section 12(a)(1) of Pub. L. 98–209, set out as a note 1986—Subsec. (a)(3). Pub. L. 99–661, § 804(a)(1), sub- under section 801 of this title. stituted ‘‘on inactive-duty training, but in the case of EFFECTIVE DATE OF 1980 AMENDMENT members of the Army National Guard of the United States or the Air National Guard of the United States Amendment by Pub. L. 96–513 effective Dec. 12, 1980, only when in Federal service’’ for ‘‘they are on inactive see section 701(b)(3) of Pub. L. 96–513, set out as a note duty training authorized by written orders which are under section 101 of this title. voluntarily accepted by them and which specify that REPEALS they are subject to this chapter’’. Subsec. (d). Pub. L. 99–661, § 804(a)(2), added subsec. The directory language of, but not the amendment (d). made by, Pub. L. 89–718, § 8(a), Nov. 2, 1966, 80 Stat. 1117, 1983—Subsec. (a)(11), (12). Pub. L. 98–209, § 13(a)(1), cited as a credit to this section, was repealed by Pub. substituted ‘‘outside the Canal Zone’’ for ‘‘outside the L. 97–295, § 6(b), Oct. 12, 1982, 96 Stat. 1314. Page 445 TITLE 10—ARMED FORCES § 803

TRANSFER OF FUNCTIONS and to disseminate and make the said Code known to all members of the armed forces of the United States. All functions of Public Health Service, of the Surgeon General of the Public Health Service, and of all other CODE OF CONDUCT FOR MEMBERS OF THE UNITED STATES officers and employees of the Public Health Service, ARMED FORCES and all functions of all agencies of or in the Public Health Service transferred to Secretary of Health, Edu- I cation, and Welfare by 1966 Reorg. Plan No. 3, 31 F.R. I am an American, fighting in the forces which guard 8855, 80 Stat. 1610, effective June 25, 1966, set out in the my country and our way of life. I am prepared to give Appendix to Title 5, Government Organization and Em- my life in their defense. ployees. The Secretary of Health, Education, and Welfare was II redesignated the Secretary of Health and Human Serv- ices by section 3508(b) of Title 20, Education. I will never surrender of my own free will. If in com- mand, I will never surrender the members of my com- APPLICABILITY OF UNIFORM CODE OF MILITARY JUSTICE mand while they still have the means to resist. TO MEMBERS OF THE ARMED FORCES ORDERED TO DUTY OVERSEAS IN INACTIVE DUTY FOR TRAINING III STATUS If I am captured I will continue to resist by all means Pub. L. 109–364, div. A, title V, § 551, Oct. 17, 2006, 120 available. I will make every effort to escape and aid Stat. 2217, provided that: ‘‘Not later than March 1, 2007, others to escape. I will accept neither parole nor spe- the Secretaries of the military departments shall pre- cial favors from the enemy. scribe regulations, or amend current regulations, in order to provide that members of the Armed Forces IV who are ordered to duty at locations overseas in an in- If I become a prisoner of war, I will keep faith with active duty for training status are subject to the juris- my fellow prisoners. I will give no information or take diction of the Uniform Code of Military Justice, pursu- part in any action which might be harmful to my com- ant to the provisions of section 802(a)(3) of title 10, rades. If I am senior, I will take command. If not, I will United States Code (article 2(a)(3) of the Uniform Code obey the lawful orders of those appointed over me and of Military Justice), continuously from the commence- will back them up in every way. ment of execution of such orders to the conclusion of such orders.’’ V

ADVISORY COMMITTEE ON CRIMINAL LAW JURISDICTION When questioned, should I become a prisoner of war, OVER CIVILIANS ACCOMPANYING ARMED FORCES IN I am required to give name, rank, service number and TIME OF ARMED CONFLICT date of birth. I will evade answering further questions to the utmost of my ability. I will make no oral or Pub. L. 104–106, div. A, title XI, § 1151, Feb. 10, 1996, 110 written statements disloyal to my country and its al- Stat. 467, directed the Secretary of Defense and the At- lies or harmful to their cause. torney General, not later than 45 days after Feb. 10, 1996, to jointly appoint an advisory committee to re- VI view and make recommendations concerning the appro- priate forum for criminal jurisdiction over civilians ac- I will never forget that I am an American, fighting companying the Armed Forces outside the United for freedom, responsible for my actions, and dedicated States in time of armed conflict, directed the commit- to the principles which made my country free. I will tee to transmit to the Secretary of Defense and the At- trust in my God and in the United States of America. torney General a report setting forth its findings and recommendations not later than Dec. 15, 1996, directed § 803. Art. 3. Jurisdiction to try certain personnel the Secretary of Defense and the Attorney General to (a) Subject to section 843 of this title (article jointly transmit the report of the committee to Con- gress not later than Jan. 15, 1997, and provided that the 43), a person who is in a status in which the per- committee would terminate 30 days after the date on son is subject to this chapter and who commit- which the report had been submitted to Congress. ted an offense against this chapter while for- merly in a status in which the person was sub- EX. ORD. NO. 10631. CODE OF CONDUCT FOR MEMBERS OF ject to this chapter is not relieved from amena- THE ARMED FORCES bility to the jurisdiction of this chapter for that Ex. Ord. No. 10631, Aug. 17, 1955, 20 F.R. 6057, as offense by reason of a termination of that per- amended by Ex. Ord. No. 11382, Nov. 28, 1967, 32 F.R. son’s former status. 16247; Ex. Ord. No. 12017, Nov. 3, 1977, 42 F.R. 57941; Ex. (b) Each person discharged from the armed Ord. No. 12633, Mar. 28, 1988, 53 F.R. 10355; Ex. Ord. No. 13286, § 76, Feb. 28, 2003, 68 F.R. 106231, provided: forces who is later charged with having fraudu- By virtue of the authority vested in me as President lently obtained his discharge is, subject to sec- of the United States, and as Commander in Chief of the tion 843 of this title (article 43), subject to trial armed forces of the United States, I hereby prescribe by court-martial on that charge and is after ap- the Code of Conduct for Members of the Armed Forces prehension subject to this chapter while in the of the United States which is attached to this order and custody of the armed forces for that trial. Upon hereby made a part thereof. conviction of that charge he is subject to trial All members of the Armed Forces of the United States are expected to measure up to the standards em- by court-martial for all offenses under this bodied in this Code of Conduct while in combat or in chapter committed before the fraudulent dis- captivity. To ensure achievement of these standards, charge. members of the armed forces liable to capture shall be (c) No person who has deserted from the armed provided with specific training and instruction de- forces may be relieved from amenability to the signed to better equip them to counter and withstand jurisdiction of this chapter by virtue of a sepa- all enemy efforts against them, and shall be fully in- ration from any later period of service. structed as to the behavior and obligations expected of (d) A member of a reserve component who is them during combat or captivity. The Secretary of Defense (and the Secretary of Home- subject to this chapter is not, by virtue of the land Security with respect to the Coast Guard except termination of a period of active duty or inac- when it is serving as part of the Navy) shall take such tive-duty training, relieved from amenability to action as is deemed necessary to implement this order the jurisdiction of this chapter for an offense § 804 TITLE 10—ARMED FORCES Page 446 against this chapter committed during such pe- missed. A court-martial so convened has juris- riod of active duty or inactive-duty training. diction to try the dismissed officer on those charges, and he shall be considered to have (Aug. 10, 1956, ch. 1041, 70A Stat. 38; Pub. L. waived the right to plead any statute of limita- 99–661, div. A, title VIII, § 804(b), Nov. 14, 1986, 100 tions applicable to any offense with which he is Stat. 3907; Pub. L. 102–484, div. A, title X, § 1063, charged. The court-martial may, as part of its Oct. 23, 1992, 106 Stat. 2505.) sentence, adjudge the affirmance of the dismis- HISTORICAL AND REVISION NOTES sal, but if the court-martial acquits the accused or if the sentence adjudged, as finally approved Revised section Source (U.S. Code) Source (Statutes at Large) or affirmed, does not include dismissal or death, the Secretary concerned shall substitute for the 803(a) ...... 50:553(a). May 5, 1950, ch. 169, § 1 dismissal ordered by the President a form of dis- 803(b) ...... 50:553(b). (Art. 3), 64 Stat. 109. 803(c) ...... 50:553(c). charge authorized for administrative issue. (b) If the President fails to convene a general In subsection (a), the words ‘‘the provisions of’’ are court-martial within six months from the pres- omitted as surplusage. The words ‘‘no * * * may’’ are entation of an application for trial under this substituted for the words ‘‘any * * * shall not’’. The article, the Secretary concerned shall substitute word ‘‘for’’ is substituted for the word ‘‘of’’ before the for the dismissal ordered by the President a words ‘‘five years’’. The words ‘‘of a State, a Territory, form of discharge authorized for administrative or’’ are substituted for the words ‘‘any State or Terri- tory thereof or of’’. The word ‘‘court-martial’’ is sub- issue. stituted for the word ‘‘courts-martial’’. (c) If a discharge is substituted for a dismissal In subsection (b), the words ‘‘Each person’’ are sub- under this article, the President alone may re- stituted for the words ‘‘All persons’’. The words ‘‘who appoint the officer to such commissioned grade is later’’ are substituted for the word ‘‘subsequently’’. and with such rank as, in the opinion of the The words ‘‘his discharge is’’ are substituted for the President, that former officer would have at- words ‘‘said discharge shall * * * be’’. The words ‘‘the tained had he not been dismissed. The re- provisions of’’ are omitted as surplusage. The word ‘‘is’’ appointment of such a former officer shall be is substituted for the words ‘‘shall * * * be’’. The words without regard to the existence of a vacancy and ‘‘he is’’ are substituted for the words ‘‘they shall be’’. The word ‘‘before’’ is substituted for the words ‘‘prior shall affect the promotion status of other offi- to’’. cers only insofar as the President may direct. In subsection (c), the words ‘‘No * * * may’’ are sub- All time between the dismissal and the re- stituted for the words ‘‘Any * * * shall not’’. The word appointment shall be considered as actual serv- ‘‘later’’ is substituted for the word ‘‘subsequent’’. ice for all purposes, including the right to pay AMENDMENTS and allowances. (d) If an officer is discharged from any armed 1992—Subsec. (a). Pub. L. 102–484 amended subsec. (a) force by administrative action or is dropped generally. Prior to amendment, subsec. (a) read as fol- from the rolls by order of the President, he has lows: ‘‘Subject to section 843 of this title (article 43), no person charged with having committed, while in a no right to trial under this article. status in which he was subject to this chapter, an of- (Aug. 10, 1956, ch. 1041, 70A Stat. 38.) fense against this chapter, punishable by confinement for five years or more and for which the person cannot HISTORICAL AND REVISION NOTES be tried in the courts of the United States or of a State, Revised a Territory, or the District of Columbia, may be re- section Source (U.S. Code) Source (Statutes at Large) lieved from amenability to trial by court-martial by reason of the termination of that status.’’ 804(a) ...... 50:554(a). May 5, 1950, ch. 169, § 1 1986—Subsec. (d). Pub. L. 99–661 added subsec. (d). 804(b) ...... 50:554(b). (Art. 4), 64 Stat. 110. 804(c) ...... 50:554(c). 804(d) ...... 50:554(d). EFFECTIVE DATE OF 1992 AMENDMENT Pub. L. 102–484, div. A, title X, § 1067, Oct. 23, 1992, 106 In subsection (a), the word ‘‘If’’ is substituted for the Stat. 2506, provided that: ‘‘The amendments made by word ‘‘When’’. The word ‘‘commissioned’’ is inserted be- sections 1063, 1064, 1065, and 1066 [amending this section fore the word ‘‘officer’’. The word ‘‘considered’’ is sub- and sections 857, 863, 911, 918, and 920 of this title] shall stituted for the word ‘‘held’’. take effect on the date of the enactment of this Act In subsections (a) and (b), the words ‘‘Secretary con- [Oct. 23, 1992] and shall apply with respect to offenses cerned’’ are substituted for the words ‘‘Secretary of the committed on or after that date.’’ Department’’. In subsection (c), the word ‘‘If’’ is substituted for the EFFECTIVE DATE OF 1986 AMENDMENT word ‘‘Where’’. The words ‘‘the authority of’’ are omit- Amendment by Pub. L. 99–661 applicable to offenses ted as surplusage. The words ‘‘grade and with such committed on or after the earlier of (1) the last day of rank’’ are substituted for the words ‘‘rank and prece- the 120-day period beginning on Nov. 14, 1986; or (2) the dence’’, since a person is appointed to a grade, not to date specified in an Executive order, see sections 804(e) a position of precedence, and the word ‘‘rank’’ is the ac- and 808 of Pub. L. 99–661, set out as notes under section cepted military word denoting the general idea of prec- 802 of this title. edence. The words ‘‘the existence of a’’ are substituted for the word ‘‘position’’ for clarity. The word ‘‘receive’’ § 804. Art. 4. Dismissed officer’s right to trial by is omitted as surplusage. court-martial In subsection (d), the word ‘‘If’’ is substituted for the word ‘‘When’’. The words ‘‘he has no’’ are substituted (a) If any commissioned officer, dismissed by for the words ‘‘there shall not be a’’. order of the President, makes a written applica- DELEGATION OF FUNCTIONS tion for trial by court-martial, setting forth, For delegation to Secretary of Homeland Security of under oath, that he has been wrongfully dis- certain authority vested in President by this section, missed, the President, as soon as practicable, see section 2 of Ex. Ord. No. 10637, Sept. 16, 1955, 20 F.R. shall convene a general court-martial to try 7025, as amended, set out as a note under section 301 of that officer on the charges on which he was dis- Title 3, The President. Page 447 TITLE 10—ARMED FORCES § 806a

§ 805. Art. 5. Territorial applicability of this chap- HISTORICAL AND REVISION NOTES ter Revised section Source (U.S. Code) Source (Statutes at Large) This chapter applies in all places. 806(a) ...... 50:556(a). May 5, 1950, ch. 169, § 1 806(b) ...... 50:556(b). (Art. 6), 64 Stat. 110. (Aug. 10, 1956, ch. 1041, 70A Stat. 39.) 806(c) ...... 50:556(c). HISTORICAL AND REVISION NOTES In subsection (b), the word ‘‘entitled’’ is substituted Revised for the word ‘‘authorized’’. section Source (U.S. Code) Source (Statutes at Large) In subsection (c), the words ‘‘may later’’ are sub- stituted for the words ‘‘shall subsequently’’. 805 ...... 50:555. May 5, 1950, ch. 169, § 1 (Art. 5), 64 Stat. 110. AMENDMENTS 2013—Subsec. (a). Pub. L. 112–239 substituted ‘‘The The word ‘‘applies’’ is substituted for the words Judge Advocates General, and within the Marine Corps ‘‘shall be applicable’’. the Staff Judge Advocate to the Commandant of the Marine Corps, or senior members of their staffs, shall’’ § 806. Art. 6. Judge advocates and legal officers for ‘‘The Judge Advocate General or senior members of his staff shall’’. 2002—Subsec. (d)(2). Pub. L. 107–296 substituted ‘‘of (a) The assignment for duty of judge advocates Homeland Security’’ for ‘‘of Transportation’’. of the Army, Navy, Air Force, and Coast Guard 1986—Subsec. (d). Pub. L. 99–661 added subsec. (d). shall be made upon the recommendation of the 1983—Subsec. (a). Pub. L. 98–209 substituted ‘‘Air Judge Advocate General of the armed force of Force, and’’ for ‘‘and Air Force and law specialists of which they are members. The assignment for the’’. duty of judge advocates of the Marine Corps 1968—Subsec. (c). Pub. L. 90–632 substituted ‘‘military shall be made by direction of the Commandant judge’’ for ‘‘law officer’’. 1967—Subsec. (a). Pub. L. 90–179 substituted reference of the Marine Corps. The Judge Advocates Gen- to judge advocates of the Navy for reference to law spe- eral, and within the Marine Corps the Staff cialists of the Navy and provided for the assignment of Judge Advocate to the Commandant of the Ma- judge advocates of the Marine Corps. rine Corps, or senior members of their staffs, EFFECTIVE DATE OF 2002 AMENDMENT shall make frequent inspections in the field in supervision of the administration of military Amendment by Pub. L. 107–296 effective on the date of justice. transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. (b) Convening authorities shall at all times 107–296, set out as a note under section 101 of this title. communicate directly with their staff judge ad- vocates or legal officers in matters relating to EFFECTIVE DATE OF 1986 AMENDMENT the administration of military justice; and the Pub. L. 99–661, div. A, title VIII, § 807(b), Nov. 14, 1986, staff judge advocate or legal officer of any com- 100 Stat. 3909, provided that: ‘‘The amendment made by mand is entitled to communicate directly with subsection (a) [amending this section]— ‘‘(1) shall take effect on the date of the enactment the staff judge advocate or legal officer of a su- of this Act [Nov. 14, 1986]; and perior or subordinate command, or with the ‘‘(2) may not be construed to invalidate an action Judge Advocate General. taken by a judge advocate, pursuant to an assign- (c) No person who has acted as member, mili- ment or detail under section 973(b)(2)(B) of title 10, tary judge, trial counsel, assistant trial counsel, United States Code, before the date of the enactment of this Act.’’ defense counsel, assistant defense counsel, or in- vestigating officer in any case may later act as EFFECTIVE DATE OF 1983 AMENDMENT a staff judge advocate or legal officer to any re- Amendment by Pub. L. 98–209 effective first day of viewing authority upon the same case. eighth calendar month beginning after Dec. 6, 1983, see (d)(1) A judge advocate who is assigned or de- section 12(a)(1) of Pub. L. 98–209, set out as a note under tailed to perform the functions of a civil office section 801 of this title. in the Government of the United States under EFFECTIVE DATE OF 1968 AMENDMENT section 973(b)(2)(B) of this title may perform Amendment by Pub. L. 90–632 effective first day of such duties as may be requested by the agency tenth month following October 1968, see section 4 of concerned, including representation of the Pub. L. 90–632, set out as a note under section 801 of United States in civil and criminal cases. this title. (2) The Secretary of Defense, and the Sec- § 806a. Art. 6a. Investigation and disposition of retary of Homeland Security with respect to the matters pertaining to the fitness of military Coast Guard when it is not operating as a serv- judges ice in the Navy, shall prescribe regulations pro- viding that reimbursement may be a condition (a) The President shall prescribe procedures of assistance by judge advocates assigned or de- for the investigation and disposition of charges, tailed under section 973(b)(2)(B) of this title. allegations, or information pertaining to the fit- ness of a military judge or military appellate (Aug. 10, 1956, ch. 1041, 70A Stat. 39; Pub. L. judge to perform the duties of the judge’s posi- 90–179, § 1(3), Dec. 8, 1967, 81 Stat. 545; Pub. L. tion. To the extent practicable, the procedures 90–632, § 2(2), Oct. 24, 1968, 82 Stat. 1335; Pub. L. shall be uniform for all armed forces. 98–209, § 2(b), Dec. 6, 1983, 97 Stat. 1393; Pub. L. (b) The President shall transmit a copy of the 99–661, div. A, title VIII, § 807(a), Nov. 14, 1986, 100 procedures prescribed pursuant to this section Stat. 3909; Pub. L. 107–296, title XVII, § 1704(b)(1), to the Committee on Armed Services of the Sen- Nov. 25, 2002, 116 Stat. 2314; Pub. L. 112–239, div. ate and the Committee on Armed Services of the A, title V, § 531(d)(1), Jan. 2, 2013, 126 Stat. 1726.) House of Representatives. § 806b TITLE 10—ARMED FORCES Page 448

(Added Pub. L. 101–189, div. A, title XIII, § 1303, ual who has suffered direct physical, emotional, Nov. 29, 1989, 103 Stat. 1576; amended Pub. L. or pecuniary harm as a result of the commission 104–106, div. A, title XV, § 1502(a)(1), Feb. 10, 1996, of an offense under this chapter (the Uniform 110 Stat. 502; Pub. L. 106–65, div. A, title X, Code of Military Justice). § 1067(1), Oct. 5, 1999, 113 Stat. 774.) (c) APPOINTMENT OF INDIVIDUALS TO ASSUME RIGHTS FOR CERTAIN VICTIMS.—In the case of a AMENDMENTS victim of an offense under this chapter who is 1999—Subsec. (b). Pub. L. 106–65 substituted ‘‘and the under 18 years of age (but who is not a member Committee on Armed Services’’ for ‘‘and the Commit- of the armed forces), incompetent, incapaci- tee on National Security’’. tated, or deceased, the military judge shall des- 1996—Subsec. (b). Pub. L. 104–106 substituted ‘‘Com- mittee on Armed Services of the Senate and the Com- ignate a representative of the estate of the vic- mittee on National Security of the House of Represent- tim, a family member, or another suitable indi- atives’’ for ‘‘Committees on Armed Services of the Sen- vidual to assume the victim’s rights under this ate and House of Representatives’’. section. However, in no event may the individ- ual so designated be the accused. § 806b. Art. 6b. Rights of the victim of an offense (d) RULE OF CONSTRUCTION.—Nothing in this under this chapter section (article) shall be construed— (a) RIGHTS OF A VICTIM OF AN OFFENSE UNDER (1) to authorize a cause of action for dam- THIS CHAPTER.—A victim of an offense under ages; or this chapter has the following rights: (2) to create, to enlarge, or to imply any (1) The right to be reasonably protected duty or obligation to any victim of an offense from the accused. under this chapter or other person for the (2) The right to reasonable, accurate, and breach of which the United States or any of its timely notice of any of the following: officers or employees could be held liable in (A) A public hearing concerning the con- damages. tinuation of confinement prior to trial of the (e) ENFORCEMENT BY COURT OF CRIMINAL AP- accused. PEALS.—(1) If the victim of an offense under this (B) A preliminary hearing under section chapter believes that a court-martial ruling vio- 832 of this title (article 32) relating to the of- lates the victim’s rights afforded by a Military fense. Rule of Evidence specified in paragraph (2), the (C) A court-martial relating to the offense. victim may petition the Court of Criminal Ap- (D) A public proceeding of the service peals for a writ of mandamus to require the clemency and parole board relating to the court-martial to comply with the Military Rule offense. of Evidence. (E) The release or escape of the accused, (2) Paragraph (1) applies with respect to the unless such notice may endanger the safety protections afforded by the following: of any person. (A) Military Rule of Evidence 513, relating to (3) The right not to be excluded from any the psychotherapist-patient privilege. public hearing or proceeding described in para- (B) Military Rule of Evidence 412, relating to graph (2) unless the military judge or inves- the admission of evidence regarding a victim’s tigating officer, as applicable, after receiving sexual background. clear and convincing evidence, determines (Added Pub. L. 113–66, div. A, title XVII, that testimony by the victim of an offense § 1701(a)(1), Dec. 26, 2013, 127 Stat. 952; amended under this chapter would be materially altered Pub. L. 113–291, div. A, title V, §§ 531(f), 535, Dec. if the victim heard other testimony at that 19, 2014, 128 Stat. 3364, 3368.) hearing or proceeding. AMENDMENTS (4) The right to be reasonably heard at any of the following: 2014—Subsec. (b). Pub. L. 113–291, § 531(f)(1), sub- (A) A public hearing concerning the con- stituted ‘‘an individual’’ for ‘‘a person’’. Subsec. (c). Pub. L. 113–291, § 531(f)(2), in heading, sub- tinuation of confinement prior to trial of the stituted ‘‘APPOINTMENT OF INDIVIDUALS TO ASSUME accused. RIGHTS’’ for ‘‘LEGAL GUARDIAN’’ and, in text, inserted (B) A sentencing hearing relating to the ‘‘(but who is not a member of the armed forces)’’ after offense. ‘‘under 18 years of age’’ and substituted ‘‘designate a (C) A public proceeding of the service representative’’ for ‘‘designate a legal guardian from clemency and parole board relating to the among the representatives’’, ‘‘another suitable individ- offense. ual’’ for ‘‘other suitable person’’, and ‘‘the individual’’ for ‘‘the person’’. (5) The reasonable right to confer with the Subsec. (e). Pub. L. 113–291, § 535, added subsec. (e). counsel representing the Government at any IMPLEMENTATION proceeding described in paragraph (2). (6) The right to receive restitution as pro- Pub. L. 113–66, div. A, title XVII, § 1701(b), Dec. 26, vided in law. 2013, 127 Stat. 953, provided that: ‘‘(1) ISSUANCE.—Not later than one year after the date (7) The right to proceedings free from unrea- of the enactment of this Act [Dec. 26, 2013]— sonable delay. ‘‘(A) the Secretary of Defense shall recommend to (8) The right to be treated with fairness and the President changes to the Manual for Courts-Mar- with respect for the dignity and privacy of the tial to implement section 806b of title 10, United victim of an offense under this chapter. States Code (article 6b of the Uniform Code of Mili- tary Justice), as added by subsection (a); and (b) VICTIM OF AN OFFENSE UNDER THIS CHAPTER ‘‘(B) the Secretary of Defense and Secretary of DEFINED.—In this section, the term ‘‘victim of Homeland Security (with respect to the Coast Guard an offense under this chapter’’ means an individ- when it is not operating as a service in the Navy) Page 449 TITLE 10—ARMED FORCES § 809

shall prescribe such regulations as each such Sec- States or of a State, Commonwealth, possession, retary considers appropriate to implement such sec- or the District of Columbia may summarily ap- tion. prehend a deserter from the armed forces and ‘‘(2) MECHANISMS FOR AFFORDING RIGHTS.—The recom- mendations and regulations required by paragraph (1) deliver him into the custody of those forces. shall include the following: (Aug. 10, 1956, ch. 1041, 70A Stat. 40; Pub. L. ‘‘(A) Mechanisms for ensuring that victims are no- tified of, and accorded, the rights specified in section 109–163, div. A, title X, § 1057(a)(4), Jan. 6, 2006, 806b of title 10, United States Code (article 6b of the 119 Stat. 3440.) Uniform Code of Military Justice), as added by sub- HISTORICAL AND REVISION NOTES section (a). ‘‘(B) Mechanisms for ensuring that members of the Revised Armed Forces and civilian personnel of the Depart- section Source (U.S. Code) Source (Statutes at Large) ment of Defense and the Coast Guard make their best efforts to ensure that victims are notified of, and ac- 808 ...... 50:562. May 5, 1950, ch. 169, § 1 corded, the rights specified in such section. (Art. 8), 64 Stat. 111. ‘‘(C) Mechanisms for the enforcement of such rights, including mechanisms for application for such The word ‘‘may’’ is substituted for the words ‘‘It shall rights and for consideration and disposition of appli- be lawful for * * * to’’. The words ‘‘a State, Territory, cations for such rights. Commonwealth, or possession, or the District of Co- ‘‘(D) The designation of an authority within each lumbia’’ are substituted for the words ‘‘any State, Dis- Armed Force to receive and investigate complaints trict, Territory, or possession of the United States’’. relating to the provision or violation of such rights. The words ‘‘of the United States’’, before the words ‘‘(E) Disciplinary sanctions for members of the ‘‘and deliver’’, are omitted as surplusage. The words Armed Forces and other personnel of the Department ‘‘those forces’’ are substituted for the words ‘‘the of Defense and Coast Guard who willfully or wantonly armed forces of the United States’’, after the words fail to comply with requirements relating to such ‘‘custody of’’. rights.’’ AMENDMENTS SUBCHAPTER II—APPREHENSION AND 2006—Pub. L. 109–163 substituted ‘‘Commonwealth, RESTRAINT possession,’’ for ‘‘Territory, Commonwealth, or posses- sion,’’. Sec. Art. 807. 7. Apprehension. § 809. Art. 9. Imposition of restraint 808. 8. Apprehension of deserters. 809. 9. Imposition of restraint. (a) Arrest is the restraint of a person by an 810. 10. Restraint of persons charged with of- order, not imposed as a punishment for an of- fenses. fense, directing him to remain within certain 811. 11. Reports and receiving of prisoners. specified limits. Confinement is the physical re- 812. 12. Confinement with enemy prisoners pro- straint of a person. hibited. (b) An enlisted member may be ordered into 813. 13. Punishment prohibited before trial. 814. 14. Delivery of offenders to civil authorities. arrest or confinement by any commissioned offi- cer by an order, oral or written, delivered in per- § 807. Art. 7. Apprehension son or through other persons subject to this (a) Apprehension is the taking of a person into chapter. A commanding officer may authorize custody. warrant officers, petty officers, or noncommis- (b) Any person authorized under regulations sioned officers to order enlisted members of his governing the armed forces to apprehend per- command or subject to his authority into arrest sons subject to this chapter or to trial there- or confinement. under may do so upon reasonable belief that an (c) A commissioned officer, a warrant officer, offense has been committed and that the person or a civilian subject to this chapter or to trial apprehended committed it. thereunder may be ordered into arrest or con- (c) Commissioned officers, warrant officers, finement only by a commanding officer to whose petty officers, and noncommissioned officers authority he is subject, by an order, oral or have authority to quell quarrels, frays, and dis- written, delivered in person or by another com- orders among persons subject to this chapter missioned officer. The authority to order such and to apprehend persons subject to this chapter persons into arrest or confinement may not be who take part therein. delegated. (Aug. 10, 1956, ch. 1041, 70A Stat. 39.) (d) No person may be ordered into arrest or confinement except for probable cause. HISTORICAL AND REVISION NOTES (e) Nothing in this article limits the authority of persons authorized to apprehend offenders to Revised section Source (U.S. Code) Source (Statutes at Large) secure the custody of an alleged offender until proper authority may be notified. 807(a) ...... 50:561(a). May 5, 1950, ch. 169, § 1 807(b) ...... 50:561(b). (Art. 7), 64 Stat. 111. (Aug. 10, 1956, ch. 1041, 70A Stat. 40.) 807(c) ...... 50:561(c). HISTORICAL AND REVISION NOTES In subsection (a), the words ‘‘into custody’’ and ‘‘of a person’’ are transposed. Revised In subsection (c), the words ‘‘All’’ and ‘‘shall’’ are section Source (U.S. Code) Source (Statutes at Large) omitted as surplusage. The word ‘‘Commissioned’’ is in- 809(a) ...... 50:563(a). May 5, 1950, ch. 169, § 1 serted before the word ‘‘officers’’ for clarity. The word 809(b) ...... 50:563(b). (Art. 9), 64 Stat. 111. ‘‘therein’’ is substituted for the words ‘‘in the same’’. 809(c) ...... 50:563(c). 809(d) ...... 50:563(d). § 808. Art. 8. Apprehension of deserters 809(e) ...... 50:563(e). Any civil officer having authority to appre- In subsection (b), the word ‘‘commissioned’’ is in- hend offenders under the laws of the United serted before the word ‘‘officer’’ for clarity. The words § 810 TITLE 10—ARMED FORCES Page 450

‘‘member’’ and ‘‘members’’, respectively, are sub- HISTORICAL AND REVISION NOTES stituted for the words ‘‘person’’ and ‘‘persons’’. In subsection (c), the words ‘‘A commissioned’’ are Revised Source (U.S. Code) Source (Statutes at Large) substituted for the word ‘‘An’’ for clarity. The word section ‘‘commissioned’’ is inserted after the word ‘‘another’’ 812 ...... 50:566. May 5, 1950, ch. 169, § 1 for clarity. (Art. 12), 64 Stat. 112. In subsection (d), the word ‘‘may’’ is substituted for the word ‘‘shall’’. The words ‘‘of the United States’’ are omitted as sur- In subsection (e), the word ‘‘limits’’ is substituted for plusage. The word ‘‘may’’ is substituted for the word the words ‘‘shall be construed to limit’’. ‘‘shall’’. § 810. Art. 10. Restraint of persons charged with § 813. Art. 13. Punishment prohibited before trial offenses No person, while being held for trial, may be Any person subject to this chapter charged subjected to punishment or penalty other than with an offense under this chapter shall be or- arrest or confinement upon the charges pending dered into arrest or confinement, as circum- against him, nor shall the arrest or confinement stances may require; but when charged only imposed upon him be any more rigorous than with an offense normally tried by a summary the circumstances require to insure his pres- court-martial, he shall not ordinarily be placed ence, but he may be subjected to minor punish- in confinement. When any person subject to this ment during that period for infractions of dis- chapter is placed in arrest or confinement prior cipline. to trial, immediate steps shall be taken to in- (Aug. 10, 1956, ch. 1041, 70A Stat. 41; Pub. L. form him of the specific wrong of which he is ac- 97–81, § 3, Nov. 20, 1981, 95 Stat. 1087.) cused and to try him or to dismiss the charges and release him. HISTORICAL AND REVISION NOTES (Aug. 10, 1956, ch. 1041, 70A Stat. 40.) Revised section Source (U.S. Code) Source (Statutes at Large)

HISTORICAL AND REVISION NOTES 813 ...... 50:567. May 5, 1950, ch. 169, § 1 (Art. 13), 64 Stat. 112. Revised Source (U.S. Code) Source (Statutes at Large) section The words ‘‘the provisions of’’ are omitted as surplus- 810 ...... 50:564. May 5, 1950, ch. 169, § 1 age. The word ‘‘results’’ is changed to the singular. The (Art. 10), 64 Stat. 111. word ‘‘may’’ is substituted for the word ‘‘shall’’.

The word ‘‘he’’ is substituted for the words ‘‘such per- AMENDMENTS son’’. 1981—Pub. L. 97–81 substituted ‘‘No person, while being held for trial, may be subjected’’ for ‘‘Subject to § 811. Art. 11. Reports and receiving of prisoners section 857 of this title (article 57), no person, while (a) No provost marshal, commander of a being held for trial or the result of trial, may be sub- guard, or master at arms may refuse to receive jected’’. or keep any prisoner committed to his charge by EFFECTIVE DATE OF 1981 AMENDMENT a commissioned officer of the armed forces, Amendment by Pub. L. 97–81 to take effect at the end when the committing officer furnishes a state- of the 60-day period beginning on Nov. 20, 1981, and to ment, signed by him, of the offense charged apply to each person held as the result of a court-mar- against the prisoner. tial sentence announced on or after that date, see sec- (b) Every commander of a guard or master at tion 7(a) and (b)(2) of Pub. L. 97–81, set out as an Effec- arms to whose charge a prisoner is committed tive Date note under section 706 of this title. shall, within twenty-four hours after that com- § 814. Art. 14. Delivery of offenders to civil au- mitment or as soon as he is relieved from guard, thorities report to the commanding officer the name of the prisoner, the offense charged against him, (a) Under such regulations as the Secretary and the name of the person who ordered or au- concerned may prescribe, a member of the thorized the commitment. armed forces accused of an offense against civil authority may be delivered, upon request, to the (Aug. 10, 1956, ch. 1041, 70A Stat. 40.) civil authority for trial. HISTORICAL AND REVISION NOTES (b) When delivery under this article is made to any civil authority of a person undergoing sen- Revised Source (U.S. Code) Source (Statutes at Large) tence of a court-martial, the delivery, if fol- section lowed by conviction in a civil tribunal, inter- 811(a) ...... 50:565(a). May 5, 1950, ch. 169, § 1 rupts the execution of the sentence of the court- 811(b) ...... 50:565(b). (Art. 11), 64 Stat. 112. martial, and the offender after having answered In subsection (a), the word ‘‘may’’ is substituted for to the civil authorities for his offense shall, the word ‘‘shall’’. The words ‘‘a commissioned’’ are sub- upon the request of competent military author- stituted for the word ‘‘an’’ for clarity. ity, be returned to military custody for the com- pletion of his sentence. § 812. Art. 12. Confinement with enemy prisoners prohibited (Aug. 10, 1956, ch. 1041, 70A Stat. 41.) No member of the armed forces may be placed HISTORICAL AND REVISION NOTES in confinement in immediate association with Revised enemy prisoners or other foreign nationals not section Source (U.S. Code) Source (Statutes at Large) members of the armed forces. 814(a) ...... 50:568(a). May 5, 1950, ch. 169, § 1 (Aug. 10, 1956, ch. 1041, 70A Stat. 41.) 814(b) ...... 50:568(b). (Art. 14), 64 Stat. 112. Page 451 TITLE 10—ARMED FORCES § 815

In subsection (a), the words ‘‘Secretary concerned’’ (iii) restriction to certain specified lim- are substituted for the words ‘‘Secretary of the Depart- its, with or without suspension from duty, ment’’. for not more than 60 consecutive days; In subsection (b), the word ‘‘interrupts’’ is sub- stituted for the words ‘‘shall be held to interrupt’’. The (iv) detention of not more than one-half word ‘‘his’’ is substituted for the words ‘‘the said court- of one month’s pay per month for three martial’’. months;

REGULATIONS FOR DELIVERY OF MILITARY PERSONNEL (2) upon other personnel of his command— TO CIVIL AUTHORITIES WHEN CHARGED WITH CERTAIN (A) if imposed upon a person attached to or OFFENSES embarked in a vessel, confinement on bread Pub. L. 100–456, div. A, title VII, § 721, Sept. 29, 1988, and water or diminished rations for not 102 Stat. 2001, directed the Secretary of Defense to en- more than three consecutive days; sure that the Secretaries of the military departments (B) correctional custody for not more than had issued uniform regulations pursuant to this section seven consecutive days; not later than 90 days after Sept. 29, 1988, and to trans- (C) forfeiture of not more than seven days’ mit to committees of Congress a copy of such regula- pay; tions and any recommendations for additional legisla- (D) reduction to the next inferior pay tion not later than 120 days after Sept. 29, 1988. grade, if the grade from which demoted is SUBCHAPTER III—NON-JUDICIAL within the promotion authority of the offi- PUNISHMENT cer imposing the reduction or any officer subordinate to the one who imposes the re- Sec. Art. duction; 815. 15. Commanding officer’s non-judicial punish- (E) extra duties, including fatigue or other ment. duties, for not more than 14 consecutive § 815. Art. 15. Commanding officer’s non-judicial days; punishment (F) restriction to certain specified limits, with or without suspension from duty, for (a) Under such regulations as the President not more than 14 consecutive days; may prescribe, and under such additional regu- (G) detention of not more than 14 days’ lations as may be prescribed by the Secretary pay; concerned, limitations may be placed on the (H) if imposed by an officer of the grade of powers granted by this article with respect to major or lieutenant commander, or above— the kind and amount of punishment authorized, (i) the punishment authorized under the categories of commanding officers and war- clause (A); rant officers exercising command authorized to (ii) correctional custody for not more exercise those powers, the applicability of this than 30 consecutive days; article to an accused who demands trial by (iii) forfeiture of not more than one-half court-martial, and the kinds of courts-martial of one month’s pay per month for two to which the case may be referred upon such a months; demand. However, except in the case of a mem- (iv) reduction to the lowest or any inter- ber attached to or embarked in a vessel, punish- mediate pay grade, if the grade from which ment may not be imposed upon any member of demoted is within the promotion authority the armed forces under this article if the mem- of the officer imposing the reduction or ber has, before the imposition of such punish- any officer subordinate to the one who im- ment, demanded trial by court-martial in lieu of poses the reduction, but an enlisted mem- such punishment. Under similar regulations, ber in a pay grade above E–4 may not be rules may be prescribed with respect to the sus- reduced more than two pay grades; pension of punishments authorized hereunder. If (v) extra duties, including fatigue or authorized by regulations of the Secretary con- other duties, for not more than 45 consecu- cerned, a commanding officer exercising general tive days; court-martial jurisdiction or an officer of gen- (vi) restrictions to certain specified lim- eral or flag rank in command may delegate his its, with or without suspension from duty, powers under this article to a principal assist- for not more than 60 consecutive days; ant. (vii) detention of not more than one-half (b) Subject to subsection (a), any commanding of one month’s pay per month for three officer may, in addition to or in lieu of admoni- months. tion or reprimand, impose one or more of the following disciplinary punishments for minor of- Detention of pay shall be for a stated period of fenses without the intervention of a court-mar- not more than one year but if the offender’s tial— term of service expires earlier, the detention (1) upon officers of his command— shall terminate upon that expiration. No two or (A) restriction to certain specified limits, more of the punishments of arrest in quarters, with or without suspension from duty, for confinement on bread and water or diminished not more than 30 consecutive days; rations, correctional custody, extra duties, and (B) if imposed by an officer exercising gen- restriction may be combined to run consecu- eral court-martial jurisdiction or an officer tively in the maximum amount imposable for of general or flag rank in command— each. Whenever any of those punishments are (i) arrest in quarters for not more than combined to run consecutively, there must be an 30 consecutive days; apportionment. In addition, forfeiture of pay (ii) forfeiture of not more than one-half may not be combined with detention of pay of one month’s pay per month for two without an apportionment. For the purposes of months; this subsection, ‘‘correctional custody’’ is the § 815 TITLE 10—ARMED FORCES Page 452 physical restraint of a person during duty or the Department of Homeland Security for con- nonduty hours and may include extra duties, fa- sideration and advice, and may so refer the case tigue duties, or hard labor. If practicable, cor- upon appeal from any punishment imposed rectional custody will not be served in imme- under subsection (b). diate association with persons awaiting trial or (f) The imposition and enforcement of discipli- held in confinement pursuant to trial by court- nary punishment under this article for any act martial. or omission is not a bar to trial by court-martial (c) An officer in charge may impose upon en- for a serious crime or offense growing out of the listed members assigned to the unit of which he same act or omission, and not properly punish- is in charge such of the punishments authorized able under this article; but the fact that a dis- under subsection (b)(2)(A)–(G) as the Secretary ciplinary punishment has been enforced may be concerned may specifically prescribe by regula- shown by the accused upon trial, and when so tion. shown shall be considered in determining the (d) The officer who imposes the punishment measure of punishment to be adjudged in the authorized in subsection (b), or his successor in event of a finding of guilty. command, may, at any time, suspend probation- (g) The Secretary concerned may, by regula- ally any part or amount of the unexecuted pun- tion, prescribe the form of records to be kept of ishment imposed and may suspend probationally proceedings under this article and may also pre- a reduction in grade or a forfeiture imposed scribe that certain categories of those proceed- under subsection (b), whether or not executed. ings shall be in writing. In addition, he may, at any time, remit or miti- (Aug. 10, 1956, ch. 1041, 70A Stat. 41; Pub. L. gate any part or amount of the unexecuted pun- 87–648, § 1, Sept. 7, 1962, 76 Stat. 447; Pub. L. ishment imposed and may set aside in whole or 90–179, § 1(4), Dec. 8, 1967, 81 Stat. 545; Pub. L. in part the punishment, whether executed or un- 90–623, § 2(4), Oct. 22, 1968, 82 Stat. 1314; Pub. L. executed, and restore all rights, privileges, and 98–209, §§ 2(c), 13(b), Dec. 6, 1983, 97 Stat. 1393, property affected. He may also mitigate reduc- 1408; Pub. L. 107–296, title XVII, § 1704(b)(1), Nov. tion in grade to forfeiture or detention of pay. 25, 2002, 116 Stat. 2314.) When mitigating— (1) arrest in quarters to restriction; HISTORICAL AND REVISION NOTES (2) confinement on bread and water or di- Revised minished rations to correctional custody; section Source (U.S. Code) Source (Statutes at Large) (3) correctional custody or confinement on 815(a) ...... 50:571(a). May 5, 1950, ch. 169, § 1 bread and water or diminished rations to extra 815(b) ...... 50:571(b). (Art. 15), 64 Stat. 112. duties or restriction, or both; or 815(c) ...... 50:571(c). 815(d) ...... 50:571(d). (4) extra duties to restriction; 815(e) ...... 50:571(e). the mitigated punishment shall not be for a greater period than the punishment mitigated. In subsection (a), the words ‘‘not more than’’ are sub- When mitigating forfeiture of pay to detention stituted for the words ‘‘a period not to exceed’’, ‘‘not to exceed’’, and ‘‘a period not exceeding’’. of pay, the amount of the detention shall not be In subsection (a)(1), the words ‘‘and warrant officers’’ greater than the amount of the forfeiture. When are omitted, since the word ‘‘officer’’, as defined in sec- mitigating reduction in grade to forfeiture or tion 101(14) of this title, includes warrant officers. detention of pay, the amount of the forfeiture or In clause (1)(C), the words ‘‘one month’s pay’’ are sub- detention shall not be greater than the amount stituted for the words ‘‘his pay per month for a period that could have been imposed initially under not exceeding one month’’. this article by the officer who imposed the pun- In subsection (b), the words ‘‘Secretary concerned’’ are substituted for the words ‘‘Secretary of a Depart- ishment mitigated. ment’’. (e) A person punished under this article who In subsection (c), the word ‘‘subsections’’ is sub- considers his punishment unjust or dispropor- stituted for the word ‘‘subdivisions’’. The words ‘‘en- tionate to the offense may, through the proper listed members’’ are substituted for the words ‘‘enlisted channel, appeal to the next superior authority. persons’’. The appeal shall be promptly forwarded and de- In subsections (d) and (e), the words ‘‘authority of’’ cided, but the person punished may in the mean- are omitted as surplusage. time be required to undergo the punishment ad- In subsection (d), the word ‘‘considers’’ is substituted for the word ‘‘deems’’. The word ‘‘may’’ is substituted judged. The superior authority may exercise the for the words ‘‘shall have power to * * * to’’. same powers with respect to the punishment im- In subsection (e), the words ‘‘is not’’ are substituted posed as may be exercised under subsection (d) for the words ‘‘shall not be’’. by the officer who imposed the punishment. Be- AMENDMENTS fore acting on an appeal from a punishment of— (1) arrest in quarters for more than seven 2002—Subsec. (e). Pub. L. 107–296 substituted ‘‘of days; Homeland Security’’ for ‘‘of Transportation’’ in con- (2) correctional custody for more than seven cluding provisions. 1983—Pub. L. 98–209, § 13(b)(1), substituted ‘‘non-judi- days; cial’’ for ‘‘nonjudicial’’ in section catchline. (3) forfeiture of more than seven days’ pay; Subsec. (b). Pub. L. 98–209, § 13(b)(2)(A), struck out ‘‘of (4) reduction of one or more pay grades from this section’’ after ‘‘subsection (a)’’ in provisions pre- the fourth or a higher pay grade; ceding par. (1). (5) extra duties for more than 14 days; Subsec. (b)(2)(H)(i). Pub. L. 98–209, § 13(b)(2)(B), sub- (6) restriction for more than 14 days; or stituted ‘‘clause (A)’’ for ‘‘subsection (b)(2)(A)’’. (7) detention of more than 14 days’ pay; Subsec. (e). Pub. L. 98–209, § 2(c), substituted ‘‘or a lawyer of the’’ for ‘‘of the Army, Navy, Air Force, or the authority who is to act on the appeal shall Marine Corps, or a law specialist or lawyer of the Coast refer the case to a judge advocate or a lawyer of Guard or’’. Page 453 TITLE 10—ARMED FORCES § 816

1968—Subsec. (e). Pub. L. 90–623 substituted ‘‘or a law provisions which permitted withholding of privileges of specialist or lawyer of the Coast Guard or Department officers and other personnel for not more than two con- of Transportation’’ for ‘‘or a law specialist or lawyer of secutive weeks and which authorized confinement for the Marine Corps, Coast Guard, or Treasury Depart- not more than seven consecutive days if imposed upon ment’’. a person attached to or embarked in a vessel. Former 1967—Subsec. (e). Pub. L. 90–179 inserted reference to subsec. (b) redesignated (a). judge advocate of the Marine Corps and substituted ref- Subsec. (c). Pub. L. 87–648 substituted ‘‘under sub- erence to judge advocate of the Navy for reference to section (b)(2)(A)–(G) as the Secretary concerned may law specialist of the Navy. specifically prescribe by regulation’’ for ‘‘to be imposed 1962—Subsec. (a). Pub. L. 87–648 redesignated former by commanding officers as the Secretary concerned subsec. (b) as (a), inserted references to such regula- may by regulation specifically prescribe, as provided in tions as the President may prescribe, permitted limita- subsections (a) and (b),’’ and deleted ‘‘for minor of- tions to be placed on the categories of warrant officers fenses’’ after ‘‘an officer in charge may’’. exercising command authorized to exercise powers Subsecs. (d), (e). Pub. L. 87–648 added subsec. (d), re- under this article, and on the kinds of courts-martial designated former subsec. (d) as (e), inserted provisions to which a case may be referred upon demand therefor, requiring the authority who is to act on an appeal from promulgation of regulations prescribing rules with re- any of the seven enumerated punishments to refer the spect to the suspension of punishment authorized by case to a judge advocate of the Army or Air Force, a this article, and the delegation of powers to a principal law specialist of the Navy, or a law specialist or lawyer assistant by a commanding officer exercising general of the Marine Corps, Coast Guard, or Treasury Depart- court-martial jurisdiction or an officer of general or ment for advice, and authorizing such referral of any flag rank in command, if so authorized by the Sec- case on appeal from punishments under subsec. (b) of retary’s regulations, and prohibited, except for mem- this section, and substituted ‘‘The superior authority bers attached to or embarked in a vessel, imposition of may exercise the same powers with respect to the pun- punishment under this article on any member of the ishment imposed as may be exercised under subsection armed forces who, before imposition of such punish- (d) by the officer who imposed the punishment’’ for ment, demands trial by court-martial. Former subsec. ‘‘The officer who imposes the punishment, his successor (a) redesignated (b). in command, and superior authority may suspend, set Subsec. (b). Pub. L. 87–648 redesignated former subsec. aside, or remit any part or amount of the punishment, (a) as (b), enlarged authority of commanding officers to and restore all rights, privileges, and property af- impose punishment upon officers by increasing the fected.’’ Former subsec. (e) redesignated (f). number of days restriction from not more than 14 to Subsecs. (f), (g). Pub. L. 87–648 redesignated former not more than 30 days, and the number of months one- subsec. (e) as (f) and added subsec. (g). half of one month’s pay may be ordered forfeited by an officer exercising general court-martial jurisdiction EFFECTIVE DATE OF 2002 AMENDMENT from one to two months, empowering officers exercis- Amendment by Pub. L. 107–296 effective on the date of ing general court-martial jurisdiction and officers of transfer of the Coast Guard to the Department of general or flag rank in command to impose arrest in Homeland Security, see section 1704(g) of Pub. L. quarters for not more than 30 consecutive days, restric- 107–296, set out as a note under section 101 of this title. tion, with or without suspension from duty, for not more than 60 consecutive days, and detention of not EFFECTIVE DATE OF 1983 AMENDMENT more than one-half of one month’s pay per month for Amendment by section 13(b) of Pub. L. 98–209 effec- three months, and officers of general or flag rank in tive Dec. 6, 1983, and amendment by section 2(c) of Pub. command to order forfeiture of not more than one-half L. 98–209 effective first day of eighth calendar month of one month’s pay per month for two months, and the beginning after Dec. 6, 1983, see section 12(a)(1) of Pub. authority of commanding officers to impose punish- L. 98–209, set out as a note under section 801 of this ment upon other personnel of his command to permit title. correctional custody for not more than seven consecu- tive days, forfeiture of not more than seven days’ pay, EFFECTIVE DATE OF 1968 AMENDMENT and detention of not more than 14 days’ pay, empow- Amendment by Pub. L. 90–623 intended to restate ered officers of the grade of major or lieutenant com- without substantive change the law in effect on Oct. 22, mander, or above, to impose the punishments pre- 1968, see section 6 of Pub. L. 90–623, set out as a note scribed in clauses (i) to (vii) of subpar. (2) (H) upon per- under section 5334 of Title 5, Government Organization sonnel of his command other than officers, changed and Employees. provisions which permitted reduction to next inferior grade, if the grade from which demoted was established EFFECTIVE DATE OF 1962 AMENDMENT by the command or an equivalent or lower command to Pub. L. 87–648, § 2, Sept. 7, 1962, 76 Stat. 450, provided permit reduction to the next inferior pay grade, if the that: ‘‘This Act [amending this section] becomes effec- grade from which demoted is within the promotion au- tive on the first day of the fifth month following the thority of the officer imposing the reduction or any of- month in which it is enacted [September 1962].’’ ficer subordinate to the one who imposes the reduction, and provisions which permitted extra duties for not SUBCHAPTER IV—COURT-MARTIAL more than two consecutive weeks, and not more than JURISDICTION two hours per day, holidays included, to authorize extra duties, including fatigue or other duties, for not Sec. Art. more than 14 consecutive days, inserted provisions lim- 816. 16. Courts-martial classified. iting detention of pay for a stated period of not more 817. 17. Jurisdiction of courts-martial in general. than one year, prohibiting two or more of the punish- 818. 18. Jurisdiction of general courts-martial. ments of arrest in quarters, confinement on bread and 819. 19. Jurisdiction of special courts-martial. water or diminished rations, correctional custody, 820. 20. Jurisdiction of summary courts-martial. extra duties, and restriction to be combined to run con- 821. 21. Jurisdiction of courts-martial not exclu- secutively in the maximum amount imposable for each, sive. combining of forfeiture of pay with detention without an apportionment, and service of correctional custody, § 816. Art. 16. Courts-martial classified if practicable, in immediate association with persons awaiting trial or held in confinement pursuant to The three kinds of courts-martial in each of court-martial, requiring apportionment of punishments the armed forces are— combined to run consecutively, and in those cases (1) general courts-martial, consisting of— where forfeiture of pay is combined with detention of (A) a military judge and not less than five pay, defining ‘‘correctional custody’’, and struck out members or, in a case in which the accused § 817 TITLE 10—ARMED FORCES Page 454

may be sentenced to a penalty of death, the EFFECTIVE DATE OF 1968 AMENDMENT number of members determined under sec- Amendment by Pub. L. 90–632 effective first day of tion 825a of this title (article 25a); or tenth month following October 1968, see section 4 of (B) only a military judge, if before the Pub. L. 90–632, set out as a note under section 801 of court is assembled the accused, knowing the this title. identity of the military judge and after con- sultation with defense counsel, requests orally on the record or in writing a court § 817. Art. 17. Jurisdiction of courts-martial in composed only of a military judge and the general military judge approves; (a) Each armed force has court-martial juris- (2) special courts-martial, consisting of— diction over all persons subject to this chapter. (A) not less than three members; or The exercise of jurisdiction by one armed force (B) a military judge and not less than over personnel of another armed force shall be three members; or in accordance with regulations prescribed by the (C) only a military judge, if one has been President. detailed to the court, and the accused under (b) In all cases, departmental review after that the same conditions as those prescribed in by the officer with authority to convene a gen- clause (1)(B) so requests; and eral court-martial for the command which held (3) summary courts-martial, consisting of the trial, where that review is required under one commissioned officer. this chapter, shall be carried out by the depart- ment that includes the armed force of which the (Aug. 10, 1956, ch. 1041, 70A Stat. 42; Pub. L. accused is a member. 90–632, § 2(3), Oct. 24, 1968, 82 Stat. 1335; Pub. L. 98–209, § 3(a), Dec. 6, 1983, 97 Stat. 1394; Pub. L. (Aug. 10, 1956, ch. 1041, 70A Stat. 43.) 107–107, div. A, title V, § 582(a), Dec. 28, 2001, 115 HISTORICAL AND REVISION NOTES Stat. 1124.) Revised HISTORICAL AND REVISION NOTES section Source (U.S. Code) Source (Statutes at Large)

Revised 817(a) ...... 50:577(a). May 5, 1950, ch. 169, § 1 section Source (U.S. Code) Source (Statutes at Large) 817(b) ...... 50:577(b). (Art. 17), 64 Stat. 114.

816 ...... 50:576. May 5, 1950, ch. 169, § 1 (Art. 16), 64 Stat. 113. In subsection (a), the word ‘‘has’’ is substituted for the words ‘‘shall have’’. The word ‘‘The’’ is substituted for the words ‘‘There In subsection (b), the word ‘‘after’’ is substituted for shall be’’. The word ‘‘are’’ is substituted for the word the words ‘‘subsequent to’’. The words ‘‘the provisions ‘‘namely’’. The words ‘‘not less than five members’’ are of’’ are omitted as surplusage. The words ‘‘department substituted for the words ‘‘any number of members not that includes the’’ are inserted before the words less than five’’. The words ‘‘not less than three mem- ‘‘armed force’’, since the review is carried out by the bers’’ are substituted for the words ‘‘any number of department and not by the armed force. members not less than three’’. The word ‘‘commis- sioned’’ is inserted before the word ‘‘officer’’ in clause (3) for clarity. § 818. Art. 18. Jurisdiction of general courts-mar- tial AMENDMENTS (a) Subject to section 817 of this title (article 2001—Par. (1)(A). Pub. L. 107–107 inserted ‘‘or, in a 17), general courts-martial have jurisdiction to case in which the accused may be sentenced to a pen- alty of death, the number of members determined try persons subject to this chapter for any of- under section 825a of this title (article 25a)’’ after ‘‘five fense made punishable by this chapter and may, members’’. under such limitations as the President may 1983—Par. (1)(B). Pub. L. 98–209 substituted ‘‘orally on prescribe, adjudge any punishment not forbidden the record or in writing’’ for ‘‘in writing’’. by this chapter, including the penalty of death 1968—Pub. L. 90–632 provided that a general or special when specifically authorized by this chapter. court-martial shall consist of only a military judge if General courts-martial also have jurisdiction to the accused, before the court is assembled, so requests try any person who by the law of war is subject in writing and the military judge approves, with the added requirements that the accused know the identity to trial by a military tribunal and may adjudge of the military judge and have the advice of counsel, any punishment permitted by the law of war. and that the election be available in the case of a spe- (b) A general court-martial of the kind speci- cial court-martial only if a military judge has been de- fied in section 816(1)(B) of this title (article tailed to the court. 16(1)(B)) shall not have jurisdiction to try any person for any offense for which the death pen- EFFECTIVE DATE OF 2001 AMENDMENT alty may be adjudged unless the case has been Pub. L. 107–107, div. A, title V, § 582(d), Dec. 28, 2001, previously referred to trial as a noncapital case. 115 Stat. 1125, provided that: ‘‘The amendments made by this section [enacting section 825a of this title and (c) Consistent with sections 819, 820, and 856(b) amending this section and section 829 of this title] shall of this title (articles 19, 20, and 56(b)), only gen- apply with respect to offenses committed after Decem- eral courts-martial have jurisdiction over an of- ber 31, 2002.’’ fense specified in section 856(b)(2) of this title (article 56(b)(2)). EFFECTIVE DATE OF 1983 AMENDMENT Amendment by Pub. L. 98–209 effective first day of (Aug. 10, 1956, ch. 1041, 70A Stat. 43; Pub. L. eighth calendar month beginning after Dec. 6, 1983, see 90–632, § 2(4), Oct. 24, 1968, 82 Stat. 1335; Pub. L. section 12(a)(1) of Pub. L. 98–209, set out as a note under 113–66, div. A, title XVII, § 1705(b), Dec. 26, 2013, section 801 of this title. 127 Stat. 959.) Page 455 TITLE 10—ARMED FORCES § 820

HISTORICAL AND REVISION NOTES Stat. 625; Pub. L. 107–107, div. A, title X, § 1048(g)(4), Dec. 28, 2001, 115 Stat. 1228.) Revised section Source (U.S. Code) Source (Statutes at Large) HISTORICAL AND REVISION NOTES 818 ...... 50:578. May 5, 1950, ch. 169, § 1 (Art. 18), 64 Stat. 114. Revised section Source (U.S. Code) Source (Statutes at Large)

The word ‘‘shall’’ is omitted as surplusage wherever 819 ...... 50:579. May 5, 1950, ch. 169, § 1 it occurs. (Art. 19), 64 Stat. 114.

AMENDMENTS The word ‘‘shall’’ in the first sentence is omitted as 2013—Pub. L. 113–66 designated the first two sentences surplusage. The words ‘‘for more than’’ are substituted as subsec. (a), designated third sentence as subsec. (b) for the words ‘‘in excess of’’. The words ‘‘more than’’ and substituted ‘‘A general court-martial’’ for ‘‘How- are substituted for the words ‘‘a period exceeding’’. The ever, a general court-martial’’, and added subsec. (c). word ‘‘may’’ is substituted for the word ‘‘shall’’ in the 1968—Pub. L. 90–632 provided that a general court- last sentence. martial consisting of only a military judge has no ju- risdiction in cases in which the death penalty may be AMENDMENTS adjudged unless the case has been previously referred 2001—Pub. L. 107–107, § 1048(g)(4), amended directory to trial as a noncapital case. language of Pub. L. 106–65, § 577(a)(2). See 1999 Amend- ment note below. EFFECTIVE DATE OF 2013 AMENDMENT 1999—Pub. L. 106–65, § 577(a)(2), as amended by Pub. L. Pub. L. 113–66, div. A, title XVII, § 1705(c), Dec. 26, 107–107, § 1048(g)(4), inserted ‘‘, confinement for more 2013, 127 Stat. 960, provided that: ‘‘The amendments than six months, or forfeiture of pay for more than six made by this section [amending this section and sec- months’’ after ‘‘A bad-conduct discharge’’ in third sen- tion 856 of this title] shall take effect 180 days after the tence. date of the enactment of this Act [Dec. 26, 2013], and Pub. L. 106–65, § 577(a)(1), substituted ‘‘one year’’ for apply to offenses specified in section 856(b)(2) of title 10, ‘‘six months’’ in two places in second sentence. United States Code (article 56(b)(2) of the Uniform Code 1968—Pub. L. 90–632 provided that before a bad-con- of Military Justice), as added by subsection (a)(1), com- duct discharge may be adjudged by a special court-mar- mitted on or after that date.’’ tial the accused must be detailed counsel who is legally qualified under the Code and a military judge must be EFFECTIVE DATE OF 1968 AMENDMENT detailed to the trial, with a detailed written statement Amendment by Pub. L. 90–632 effective first day of appended to the record if a military judge was not de- tenth month following October 1968, see section 4 of tailed to the trial, because of physical conditions and Pub. L. 90–632, set out as a note under section 801 of military exigencies, stating the reasons that a military this title. judge could not be so detailed.

§ 819. Art. 19. Jurisdiction of special courts-mar- EFFECTIVE DATE OF 2001 AMENDMENT tial Pub. L. 107–107, div. A, title X, § 1048(g), Dec. 28, 2001, Subject to section 817 of this title (article 17), 115 Stat. 1228, provided that the amendment made by section 1048(g)(4) is effective as of Oct. 5, 1999, and as if special courts-martial have jurisdiction to try included in Pub. L. 106–65 as enacted. persons subject to this chapter for any non- capital offense made punishable by this chapter EFFECTIVE DATE OF 1999 AMENDMENT and, under such regulations as the President Pub. L. 106–65, div. A, title V, § 577(b), Oct. 5, 1999, 113 may prescribe, for capital offenses. Special Stat. 625, provided that: ‘‘The amendments made by courts-martial may, under such limitations as subsection (a) [amending this section] shall take effect the President may prescribe, adjudge any pun- on the first day of the sixth month beginning after the ishment not forbidden by this chapter except date of the enactment of this Act [Oct. 5, 1999] and shall death, dishonorable discharge, dismissal, con- apply with respect to charges referred on or after that finement for more than one year, hard labor effective date to trial by special courts-martial.’’ without confinement for more than three EFFECTIVE DATE OF 1968 AMENDMENT months, forfeiture of pay exceeding two-thirds Amendment by Pub. L. 90–632 effective first day of pay per month, or forfeiture of pay for more tenth month following October 1968, see section 4 of than one year. A bad-conduct discharge, confine- Pub. L. 90–632, set out as a note under section 801 of ment for more than six months, or forfeiture of this title. pay for more than six months may not be ad- judged unless a complete record of the proceed- § 820. Art. 20. Jurisdiction of summary courts- ings and testimony has been made, counsel hav- martial ing the qualifications prescribed under section Subject to section 817 of this title (article 17), 827(b) of this title (article 27(b)) was detailed to summary courts-martial have jurisdiction to try represent the accused, and a military judge was persons subject to this chapter, except officers, detailed to the trial, except in any case in which cadets, aviation cadets, and midshipmen, for a military judge could not be detailed to the any noncapital offense made punishable by this trial because of physical conditions or military chapter. No person with respect to whom sum- exigencies. In any such case in which a military mary courts-martial have jurisdiction may be judge was not detailed to the trial, the conven- brought to trial before a summary court-martial ing authority shall make a detailed written if he objects thereto. If objection to trial by statement, to be appended to the record, stating summary court-martial is made by an accused, the reason or reasons a military judge could not trial may be ordered by special or general court- be detailed. martial as may be appropriate. Summary (Aug. 10, 1956, ch. 1041, 70A Stat. 43; Pub. L. courts-martial may, under such limitations as 90–632, § 2(5), Oct. 24, 1968, 82 Stat. 1335; Pub. L. the President may prescribe, adjudge any pun- 106–65, div. A, title V, § 577(a), Oct. 5, 1999, 113 ishment not forbidden by this chapter except § 821 TITLE 10—ARMED FORCES Page 456 death, dismissal, dishonorable or bad-conduct Sec. Art. discharge, confinement for more than one 825. 25. Who may serve on courts-martial. month, hard-labor without confinement for 825a. 25a. Number of members in capital cases. more than 45 days, restriction to specified limits 826. 26. Military judge of a general or special for more than two months, or forfeiture of more court-martial. 827. 27. Detail of trial counsel and defense coun- than two-thirds of one month’s pay. sel. (Aug. 10, 1956, ch. 1041, 70A Stat. 43; Pub. L. 828. 28. Detail or employment of reporters and in- 90–632, § 2(6), Oct. 24, 1968, 82 Stat. 1336.) terpreters. 829. 29. Absent and additional members. HISTORICAL AND REVISION NOTES AMENDMENTS Revised section Source (U.S. Code) Source (Statutes at Large) 2001—Pub. L. 107–107, div. A, title V, § 582(b)(2), Dec. 28, 2001, 115 Stat. 1124, added item 825a. 820 ...... 50:580. May 5, 1950, ch. 169, § 1 (Art. 20), 64 Stat. 114. 1968—Pub. L. 90–632, § 2(8), Oct. 24, 1968, 82 Stat. 1336, substituted ‘‘Military judge of a general or special The word ‘‘shall’’ in the first sentence is omitted as court-martial’’ for ‘‘Law officer of a general court-mar- surplusage. The word ‘‘may’’ is substituted for the word tial’’ in item 826. ‘‘shall’’ in the second sentence. The words ‘‘the provi- sions of’’ are omitted as surplusage. The word ‘‘If’’ is § 822. Art. 22. Who may convene general courts- substituted for the word ‘‘Where’’. The words ‘‘for more martial than’’ are substituted for the words ‘‘in excess of’’. The words ‘‘more than’’ are substituted for the words ‘‘pay (a) General courts-martial may be convened in excess of’’. by— (1) the President of the United States; AMENDMENTS (2) the Secretary of Defense; 1968—Pub. L. 90–632 substituted provisions prohibiting (3) the commanding officer of a unified or trial by summary court-martial in all cases if the per- specified combatant command; son objects thereto for provisions allowing such trial (4) the Secretary concerned; over the person’s objection if he has previously been of- fered and has refused article 15 punishment. (5) the commanding officer of an Army Group, an Army, an Army Corps, a division, a EFFECTIVE DATE OF 1968 AMENDMENT separate brigade, or a corresponding unit of Amendment by Pub. L. 90–632 effective first day of the Army or Marine Corps; tenth month following October 1968, see section 4 of (6) the commander in chief of a fleet; the Pub. L. 90–632, set out as a note under section 801 of commanding officer of a naval station or larg- this title. er shore activity of the Navy beyond the § 821. Art. 21. Jurisdiction of courts-martial not United States; exclusive (7) the commanding officer of an air com- mand, an air force, an air division, or a sepa- The provisions of this chapter conferring juris- rate wing of the Air Force or Marine Corps; diction upon courts-martial do not deprive mili- (8) any other commanding officer designated tary commissions, provost courts, or other mili- by the Secretary concerned; or tary tribunals of concurrent jurisdiction with (9) any other commanding officer in any of respect to offenders or offenses that by statute the armed forces when empowered by the or by the law of war may be tried by military President. commissions, provost courts, or other military (b) If any such commanding officer is an ac- tribunals. This section does not apply to a mili- cuser, the court shall be convened by superior tary commission established under chapter 47A competent authority, and may in any case be of this title. convened by such authority if considered desir- (Aug. 10, 1956, ch. 1041, 70A Stat. 44; Pub. L. able by him. 109–366, § 4(a)(2), Oct. 17, 2006, 120 Stat. 2631.) (Aug. 10, 1956, ch. 1041, 70A Stat. 44; Pub. L. HISTORICAL AND REVISION NOTES 99–433, title II, § 211(b), Oct. 1, 1986, 100 Stat. 1017; Pub. L. 109–163, div. A, title X, § 1057(a)(2), Jan. 6, Revised section Source (U.S. Code) Source (Statutes at Large) 2006, 119 Stat. 3440.)

821 ...... 50:581. May 5, 1950, ch. 169, § 1 HISTORICAL AND REVISION NOTES (Art. 21), 64 Stat. 115. Revised Source (U.S. Code) Source (Statutes at Large) The words ‘‘do not deprive’’ are substituted for the section words ‘‘shall not be construed as depriving’’. The words 822(a) ...... 50:586(a). May 5, 1950, ch. 169, § 1 ‘‘with respect to’’ are substituted for the words ‘‘in re- 822(b) ...... 50:586(b). (Art. 22), 64 Stat. 115. spect of’’. Subsection (a)(2) is substituted for the words ‘‘the AMENDMENTS Secretary of a Department’’. 2006—Pub. L. 109–366 inserted last sentence. In subsection (a)(4), the words ‘‘continental limits of the’’ are omitted, since section 101(1) of this title de- SUBCHAPTER V—COMPOSITION OF fines the United States to include the States and the COURTS-MARTIAL District of Columbia. In subsection (a)(6), the words ‘‘any other command- Sec. Art. ing officer’’ are substituted for the words ‘‘such other 822. 22. Who may convene general courts-martial. commanding officers as may be’’. 823. 23. Who may convene special courts-martial. In subsection (b), the word ‘‘If’’ is substituted for the 824. 24. Who may convene summary courts-mar- word ‘‘When’’. The words ‘‘if considered’’ are sub- tial. stituted for the words ‘‘when deemed’’. Page 457 TITLE 10—ARMED FORCES § 825

AMENDMENTS (1) any person who may convene a general or 2006—Subsec. (a)(5). Pub. L. 109–163 struck out ‘‘a Ter- special court-martial; ritorial Department,’’ before ‘‘an Army Group’’. (2) the commanding officer of a detached 1986—Subsec. (a)(2) to (9). Pub. L. 99–433 added pars. company, or other detachment of the Army; (2) and (3) and redesignated existing pars. (2) to (7) as (3) the commanding officer of a detached (4) to (9), respectively. squadron or other detachment of the Air Force; or § 823. Art. 23. Who may convene special courts- (4) the commanding officer or officer in martial charge of any other command when empow- (a) Special courts-martial may be convened ered by the Secretary concerned. by— (b) When only one commissioned officer is (1) any person who may convene a general present with a command or detachment he shall court-martial; be the summary court-martial of that command (2) the commanding officer of a district, gar- or detachment and shall hear and determine all rison, fort, camp, station, Air Force base, aux- summary court-martial cases brought before iliary air field, or other place where members him. Summary courts-martial may, however, be of the Army or the Air Force are on duty; convened in any case by superior competent au- (3) the commanding officer of a brigade, regi- thority when considered desirable by him. ment, detached battalion, or corresponding unit of the Army; (Aug. 10, 1956, ch. 1041, 70A Stat. 45.) (4) the commanding officer of a wing, group, HISTORICAL AND REVISION NOTES or separate squadron of the Air Force; (5) the commanding officer of any naval or Revised Source (U.S. Code) Source (Statutes at Large) Coast Guard vessel, shipyard, base, or station; section the commanding officer of any Marine brigade, 824(a) ...... 50:588(a). May 5, 1950, ch. 169, § 1 regiment, detached battalion, or correspond- 824(b) ...... 50:588(b). (Art. 24), 64 Stat. 116. ing unit; the commanding officer of any Ma- In subsection (a)(4), the words ‘‘Secretary concerned’’ rine barracks, wing, group, separate squadron, are substituted for the words ‘‘Secretary of a Depart- station, base, auxiliary air field, or other place ment’’. where members of the Marine Corps are on In subsection (b), the words ‘‘only one commissioned’’ duty; are substituted for the words ‘‘but one’’ for clarity. The (6) the commanding officer of any separate word ‘‘considered’’ is substituted for the word or detached command or group of detached ‘‘deemed’’. units of any of the armed forces placed under § 825. Art. 25. Who may serve on courts-martial a single commander for this purpose; or (7) the commanding officer or officer in (a) Any commissioned officer on active duty is charge of any other command when empow- eligible to serve on all courts-martial for the ered by the Secretary concerned. trial of any person who may lawfully be brought before such courts for trial. (b) If any such officer is an accuser, the court (b) Any warrant officer on active duty is eligi- shall be convened by superior competent author- ble to serve on general and special courts-mar- ity, and may in any case be convened by such tial for the trial of any person, other than a authority if considered advisable by him. commissioned officer, who may lawfully be (Aug. 10, 1956, ch. 1041, 70A Stat. 44.) brought before such courts for trial. (c)(1) Any enlisted member of an armed force HISTORICAL AND REVISION NOTES on active duty who is not a member of the same Revised unit as the accused is eligible to serve on gen- section Source (U.S. Code) Source (Statutes at Large) eral and special courts-martial for the trial of 823(a) ...... 50:587(a). May 5, 1950, ch. 169, § 1 any enlisted member of an armed force who may 823(b) ...... 50:587(b). (Art. 23), 64 Stat. 115. lawfully be brought before such courts for trial, but he shall serve as a member of a court only In subsection (a)(7), the words ‘‘Secretary concerned’’ if, before the conclusion of a session called by are substituted for the words ‘‘Secretary of a Depart- ment’’. the military judge under section 839(a) of this In subsection (b), the word ‘‘If’’ is substituted for the title (article 39(a)) prior to trial or, in the ab- word ‘‘When’’. The words ‘‘if considered’’ are sub- sence of such a session, before the court is as- stituted for the words ‘‘when deemed’’. sembled for the trial of the accused, the accused personally has requested orally on the record or TRANSFER OF FUNCTIONS in writing that enlisted members serve on it. For transfer of authorities, functions, personnel, and After such a request, the accused may not be assets of the Coast Guard, including the authorities tried by a general or special court-martial the and functions of the Secretary of Transportation relat- membership of which does not include enlisted ing thereto, to the Department of Homeland Security, and for treatment of related references, see sections members in a number comprising at least, one- 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- third of the total membership of the court, un- rity, and the Department of Homeland Security Reor- less eligible enlisted members cannot be ob- ganization Plan of November 25, 2002, as modified, set tained on account of physical conditions or mili- out as a note under section 542 of Title 6. tary exigencies. If such members cannot be ob- tained, the court may be assembled and the trial § 824. Art. 24. Who may convene summary courts- held without them, but the convening authority martial shall make a detailed written statement, to be (a) Summary courts-martial may be convened appended to the record, stating why they could by— not be obtained. § 825a TITLE 10—ARMED FORCES Page 458

(2) In this article, ‘‘unit’’ means any regularly tively, are substituted for the words ‘‘person’’ and ‘‘per- organized body as defined by the Secretary con- sons’’. cerned, but in no case may it be a body larger AMENDMENTS than a company, squadron, ship’s crew, or body 1986—Subsec. (c)(1). Pub. L. 99–661 substituted ‘‘has corresponding to one of them. requested orally on the record or in writing’’ for ‘‘has (d)(1) When it can be avoided, no member of an requested in writing’’. armed force may be tried by a court-martial any 1983—Subsec. (c)(2). Pub. L. 98–209, § 13(c), struck out member of which is junior to him in rank or ‘‘the word’’ before ‘‘ ‘unit’ ’’. grade. Subsec. (e). Pub. L. 98–209, § 3(b), added subsec. (e). (2) When convening a court-martial, the con- 1968—Subsec. (c)(1). Pub. L. 90–632 inserted require- vening authority shall detail as members there- ment that an accused’s request for inclusion of enlisted members on his court-martial be made before conclu- of such members of the armed forces as, in his sion of a pre-trial session called by the military judge opinion, are best qualified for the duty by rea- under section 839(a) or before the court is assembled for son of age, education, training, experience, his trial and substituted ‘‘assembled’’ for ‘‘convened’’ length of service, and judicial temperament. No to describe the calling together of the court for the member of an armed force is eligible to serve as trial in provision allowing such calling together with- a member of a general or special court-martial out requested enlisted members if such members can- when he is the accuser or a witness for the pros- not be obtained. ecution or has acted as investigating officer or EFFECTIVE DATE OF 1986 AMENDMENT as counsel in the same case. Pub. L. 99–661, div. A, title VIII, § 803(b), Nov. 14, 1986, (e) Before a court-martial is assembled for the 100 Stat. 3906, provided that: ‘‘The amendment made by trial of a case, the convening authority may ex- subsection (a) [amending this section] shall apply only cuse a member of the court from participating to a case in which arraignment is completed on or after in the case. Under such regulations as the Sec- the effective date of this title.’’ retary concerned may prescribe, the convening Title VIII of Pub. L. 99–661 effective the earlier of (1) authority may delegate his authority under this the last day of the 120-day period beginning on Nov. 14, subsection to his staff judge advocate or legal 1986; or (2) the date specified in an Executive order for such amendment to take effect, see section 808 of Pub. officer or to any other principal assistant. L. 99–661, set out as a note under section 802 of this (Aug. 10, 1956, ch. 1041, 70A Stat. 45; Pub. L. title. 90–632, § 2(7), Oct. 24, 1968, 82 Stat. 1336; Pub. L. EFFECTIVE DATE OF 1983 AMENDMENT 98–209, §§ 3(b), 13(c), Dec. 6, 1983, 97 Stat. 1394, Amendment by section 13(c) of Pub. L. 98–209 effective 1408; Pub. L. 99–661, div. A, title VIII, § 803(a), Dec. 6, 1983, and amendment by section 3(b) of Pub. L. Nov. 14, 1986, 100 Stat. 3906.) 98–209 effective first day of eighth calendar month be- ginning after Dec. 6, 1983, see section 12(a)(1) of Pub. L. HISTORICAL AND REVISION NOTES 98–209, set out as a note under section 801 of this title.

Revised EFFECTIVE DATE OF 1968 AMENDMENT section Source (U.S. Code) Source (Statutes at Large) Amendment by Pub. L. 90–632 effective first day of 825(a) ...... 50:589(a). May 5, 1950, ch. 169, § 1 825(b) ...... 50:589(b). (Art. 25), 64 Stat. 116. tenth month following October 1968, see section 4 of 825(c) ...... 50:589(c). Pub. L. 90–632, set out as a note under section 801 of 825(d) ...... 50:589(d). this title. In subsection (a), the word ‘‘commissioned’’ is in- § 825a. Art. 25a. Number of members in capital serted before the word ‘‘officer’’ for clarity. The word cases ‘‘is’’ is substituted for the words ‘‘shall be’’. In subsections (a), (b), and (c)(1), the words ‘‘with the In a case in which the accused may be sen- armed forces’’ are omitted as surplusage. tenced to a penalty of death, the number of In subsection (b), the word ‘‘is’’ is substituted for the members shall be not less than 12, unless 12 words ‘‘shall be’’. The words ‘‘a commissioned’’ are sub- members are not reasonably available because of stituted for the word ‘‘an’’ for clarity. physical conditions or military exigencies, in In subsection (c), the words ‘‘member’’ and ‘‘mem- which case the convening authority shall specify bers’’, respectively are substituted for the words ‘‘per- son’’ and ‘‘persons’’. The words ‘‘of an armed force’’ are a lesser number of members not less than five, inserted for clarity. and the court may be assembled and the trial In subsection (c)(1), the word ‘‘is’’ is substituted for held with not less than the number of members the words ‘‘shall be’’. The word ‘‘before’’ is substituted so specified. In such a case, the convening au- for the words ‘‘prior to’’. The words ‘‘the accused may thority shall make a detailed written state- not’’ are substituted for the words ‘‘no enlisted person ment, to be appended to the record, stating why shall’’, for clarity. The word ‘‘If’’ is substituted for the a greater number of members were not reason- word ‘‘Where’’. In subsection (c)(2), the word ‘‘means’’ is substituted ably available. for the words ‘‘shall mean’’. The words ‘‘Secretary con- (Added Pub. L. 107–107, div. A, title V, § 582(b)(1), cerned’’ are substituted for the words ‘‘Secretary of the Dec. 28, 2001, 115 Stat. 1124.) Department’’. The word ‘‘may’’ is substituted for the word ‘‘shall’’. The word ‘‘than’’, before the words ‘‘a EFFECTIVE DATE body’’, is omitted as surplusage. Section applicable with respect to offenses commit- In subsection (d)(1), the word ‘‘may’’ is substituted ted after Dec. 31, 2002, see section 582(d) of Pub. L. for the word ‘‘shall’’. The word ‘‘member’’ is sub- 107–107, set out as an Effective Date of 2001 Amendment stituted for the word ‘‘person’’. note under section 816 of this title. In subsection (d)(2), the word ‘‘is’’ is substituted for the words ‘‘shall be’’. The word ‘‘detail’’ is substituted § 826. Art. 26. Military judge of a general or spe- for the word ‘‘appoint’’, since the filling of the position cial court-martial involved is not appointment to an office in the con- stitutional sense. The words ‘‘member of an armed (a) A military judge shall be detailed to each force’’ and ‘‘members of the armed forces’’, respec- general court-martial. Subject to regulations of Page 459 TITLE 10—ARMED FORCES § 827 the Secretary concerned, a military judge may AMENDMENTS be detailed to any special court-martial. The 1983—Subsec. (a). Pub. L. 98–209, § 3(c)(1)(A), amended Secretary concerned shall prescribe regulations subsec. (a) generally, inserting provision requiring the providing for the manner in which military Secretary concerned to prescribe regulations providing judges are detailed for such courts-martial and for the manner in which military judges are detailed for the persons who are authorized to detail for courts-martial and for the persons who are author- military judges for such courts-martial. The ized to detail military judges for such courts-martial. military judge shall preside over each open ses- Subsec. (c). Pub. L. 98–209, § 3(c)(1)(B), substituted ‘‘in accordance with regulations prescribed under sub- sion of the court-martial to which he has been section (a). Unless’’ for ‘‘by the convening authority, detailed. and, unless’’. (b) A military judge shall be a commissioned 1968—Pub. L. 90–632 substituted ‘‘military judge’’ for officer of the armed forces who is a member of ‘‘law officer’’ and inserted reference to special court- the bar of a Federal court or a member of the martial. bar of the highest court of a State and who is Subsec. (a). Pub. L. 90–632 substituted reference to certified to be qualified for duty as a military military judge for references to law officer and such judge by the Judge Advocate General of the law officer’s requisite qualifications, inserted reference armed force of which such military judge is a to special court-martial and regulations of the Sec- retary concerned governing the convening of a special member. court-martial, inserted provisions directing the mili- (c) The military judge of a general court-mar- tary judge to preside over the open sessions of the tial shall be designated by the Judge Advocate court-martial to which he was assigned, and struck out General, or his designee, of the armed force of provisions making law officers ineligible in a case in which the military judge is a member for detail which he was the accuser or a witness for the prosecu- in accordance with regulations prescribed under tion or acted as investigating officer or as counsel. subsection (a). Unless the court-martial was Subsecs. (b) to (d). Pub. L. 90–632 added subsecs. (b) to convened by the President or the Secretary con- (d). Former subsec. (b) redesignated as subsec. (e) and amended. cerned, neither the convening authority nor any Subsec. (e). Pub. L. 90–632 redesignated former subsec. member of his staff shall prepare or review any (b) as (e) and substituted ‘‘military judge’’ for ‘‘law of- report concerning the effectiveness, fitness, or ficer’’ and struck out provision allowing consultation efficiency of the military judge so detailed, with members of the court on the form of the findings which relates to his performance of duty as a as provided in section 839 of this title (article 39). military judge. A commissioned officer who is EFFECTIVE DATE OF 1983 AMENDMENT certified to be qualified for duty as a military judge of a general court-martial may perform Amendment by Pub. L. 98–209 effective first day of such duties only when he is assigned and di- eighth calendar month beginning after Dec. 6, 1983, but rectly responsible to the Judge Advocate Gen- not to affect the designation or detail of a military judge or military counsel to a court-martial before eral, or his designee, of the armed force of which that date, see section 12(a)(1), (2) of Pub. L. 98–209, set the military judge is a member and may perform out as a note under section 801 of this title. duties of a judicial or nonjudicial nature other than those relating to his primary duty as a EFFECTIVE DATE OF 1968 AMENDMENT military judge of a general court-martial when Amendment by Pub. L. 90–632 effective first day of such duties are assigned to him by or with the tenth month following October 1968, see section 4 of approval of that Judge Advocate General or his Pub. L. 90–632, set out as a note under section 801 of designee. this title. (d) No person is eligible to act as military STATUTORY REFERENCES TO LAW OFFICER DEEMED judge in a case if he is the accuser or a witness REFERENCES TO MILITARY JUDGE for the prosecution or has acted as investigating Pub. L. 90–632, § 3(a), Oct. 24, 1968, 82 Stat. 1343, pro- officer or a counsel in the same case. vided that: ‘‘Whenever the term law officer is used, (e) The military judge of a court-martial may with reference to any officer detailed to a court-mar- not consult with the members of the court ex- tial pursuant to section 826(a) (article 26(a)) of title 10, cept in the presence of the accused, trial coun- United States Code [subsec. (a) of this section], in any sel, and defense counsel, nor may he vote with provision of Federal law (other than provisions amend- the members of the court. ed by this Act [see Short Title of 1968 Amendment note set out under section 801 of this title] or in any regula- (Aug. 10, 1956, ch. 1041, 70A Stat. 46; Pub. L. tion, document, or record of the United States, such 90–632, § 2(9), Oct. 24, 1968, 82 Stat. 1336; Pub. L. term shall be deemed to mean military judge.’’ 98–209, § 3(c)(1), Dec. 6, 1983, 97 Stat. 1394.) § 827. Art. 27. Detail of trial counsel and defense HISTORICAL AND REVISION NOTES counsel Revised section Source (U.S. Code) Source (Statutes at Large) (a)(1) Trial counsel and defense counsel shall be detailed for each general and special court- 826(a) ...... 50:590(a). May 5, 1950, ch. 169, § 1 826(b) ...... 50:590(b). (Art. 26), 64 Stat. 117. martial. Assistant trial counsel and assistant and associate defense counsel may be detailed In subsection (a), the words ‘‘a commissioned’’ are for each general and special court-martial. The substituted for the word ‘‘an’’ for clarity. The words Secretary concerned shall prescribe regulations ‘‘of the United States’’ are omitted as surplusage. The providing for the manner in which counsel are word ‘‘is’’ is substituted for the words ‘‘shall be’’. The detailed for such courts-martial and for the per- word ‘‘if’’ is substituted for the word ‘‘when’’. The word sons who are authorized to detail counsel for ‘‘detail’’ is substituted for the word ‘‘appoint’’, since the filling of the position involved is not appointment such courts-martial. to an office in the constitutional sense. (2) No person who has acted as investigating In subsection (b), the word ‘‘may’’ is substituted for officer, military judge, or court member in any the word ‘‘shall’’. case may act later as trial counsel, assistant § 828 TITLE 10—ARMED FORCES Page 460 trial counsel, or, unless expressly requested by AMENDMENTS the accused, as defense counsel or assistant or 1983—Subsec. (a)(1). Pub. L. 98–209, § 3(c)(2)(A), des- associate defense counsel in the same case. No ignated first sentence of existing provisions as par. (1), person who has acted for the prosecution may substituted provisions requiring that trial counsel and act later in the same case for the defense, nor defense counsel be detailed for each general and special may any person who has acted for the defense court-martial, and permitting the detailing of assistant act later in the same case for the prosecution. trial counsel and assistant and associate defense coun- (b) Trial counsel or defense counsel detailed sel for each general and special court-martial for provi- for a general court-martial— sions requiring that for each general and special court- (1) must be a judge advocate who is a grad- martial the authority convening the court had to detail uate of an accredited law school or is a mem- trial counsel and defense counsel and such assistants as he considered appropriate, and inserted provision re- ber of the bar of a Federal court or of the high- quiring the Secretary concerned to prescribe regula- est court of a State; or must be a member of tions providing for the manner in which counsel are de- the bar of a Federal court or of the highest tailed for such courts-martial and for the persons who court of a State; and are authorized to detail counsel for such courts-mar- (2) must be certified as competent to per- tial. form such duties by the Judge Advocate Gen- Subsec. (a)(2). Pub. L. 98–209, § 3(c)(2)(B), designated eral of the armed force of which he is a mem- existing provision, less first sentence, as par. (2) and ber. substituted ‘‘assistant or associate defense counsel’’ for ‘‘assistant defense counsel’’. (c) In the case of a special court-martial— Subsec. (b)(1). Pub. L. 98–209, § 2(d)(1), substituted (1) the accused shall be afforded the oppor- ‘‘judge advocate’’ for ‘‘judge advocate of the Army, tunity to be represented at the trial by coun- Navy, Air Force, or Marine Corps or a law specialist of sel having the qualifications prescribed under the Coast Guard,’’. section 827(b) of this title (article 27(b)) unless Subsec. (c)(3). Pub. L. 98–209, § 2(d)(2), struck out ‘‘, or counsel having such qualifications cannot be a law specialist,’’ after ‘‘is a judge advocate’’. 1968—Subsec. (a). Pub. L. 90–632, § 2(10)(A), substituted obtained on account of physical conditions or ‘‘military judge’’ for ‘‘law officer’’. military exigencies. If counsel having such Subsec. (c). Pub. L. 90–632, § 2(10)(B), redesignated qualifications cannot be obtained, the court former pars. (1) and (2) as pars. (2) and (3), respectively, may be convened and the trial held but the and added par. (1). convening authority shall make a detailed 1967—Subsec. (b)(1). Pub. L. 90–179 inserted reference written statement, to be appended to the to judge advocate of the Marine Corps and substituted record, stating why counsel with such quali- reference to judge advocate of the Navy for reference to fications could not be obtained; law specialist of the Navy. (2) if the trial counsel is qualified to act as EFFECTIVE DATE OF 1983 AMENDMENT counsel before a general court-martial, the de- Amendment by Pub. L. 98–209 effective first day of fense counsel detailed by the convening au- eighth calendar month beginning after Dec. 6, 1983, but thority must be a person similarly qualified; amendment by section 3(c)(2) of Pub. L. 98–209 not to af- and fect the designation or detail of a military judge or (3) if the trial counsel is a judge advocate or military counsel to a court-martial before that date, a member of the bar of a Federal court or the see section 12(a)(1), (2) of Pub. L. 98–209, set out as a highest court of a State, the defense counsel note under section 801 of this title. detailed by the convening authority must be EFFECTIVE DATE OF 1968 AMENDMENT one of the foregoing. Amendment by Pub. L. 90–632 effective first day of (Aug. 10, 1956, ch. 1041, 70A Stat. 46; Pub. L. tenth month following October 1968, see section 4 of 90–179, § 1(5), Dec. 8, 1967, 81 Stat. 546; Pub. L. Pub. L. 90–632, set out as a note under section 801 of 90–632, § 2(10), Oct. 24, 1968, 82 Stat. 1337; Pub. L. this title. 98–209, §§ 2(d), 3(c)(2), Dec. 6, 1983, 97 Stat. 1393, 1394.) § 828. Art. 28. Detail or employment of reporters and interpreters HISTORICAL AND REVISION NOTES Under such regulations as the Secretary con- Revised Source (U.S. Code) Source (Statutes at Large) cerned may prescribe, the convening authority section of a court-martial, military commission, or 827(a) ...... 50:591(a). May 5, 1950, ch. 169, § 1 court of inquiry shall detail or employ qualified 827(b) ...... 50:591(b). (Art. 27), 64 Stat. 117. 827(c) ...... 50:591(c). court reporters, who shall record the proceed- ings of and testimony taken before that court or The words, ‘‘detail’’ and ‘‘detailed’’ are substituted commission. Under like regulations the conven- for the words ‘‘appoint’’ and ‘‘appointed’’ throughout ing authority of a court-martial, military com- the revised section, since the filling of the position in- mission, or court of inquiry may detail or em- volved is not appointment to an office in the constitu- ploy interpreters who shall interpret for the tional sense. In subsection (a), the word ‘‘and’’ is substituted for court or commission. This section does not the words ‘‘together with’’. The word ‘‘considers’’ is apply to a military commission established substituted for the word ‘‘deems’’. The words ‘‘nec- under chapter 47A of this title. essary or’’ are omitted as surplusage, since what is nec- essary is also appropriate. The word ‘‘may’’ is sub- (Aug. 10, 1956, ch. 1041, 70A Stat. 47; Pub. L. stituted for the word ‘‘shall’’. The word ‘‘later’’ is sub- 109–366, § 4(a)(2), Oct. 17, 2006, 120 Stat. 2631.) stituted for the word ‘‘subsequently’’. HISTORICAL AND REVISION NOTES In subsections (b) and (c), the word ‘‘must’’ is sub- stituted for the word ‘‘shall’’, since the clauses pre- Revised scribe conditions and not commands. section Source (U.S. Code) Source (Statutes at Large) In subsection (b), the word ‘‘for’’ is substituted for the words ‘‘in the case of’’. The words ‘‘person * * * a 828 ...... 50:592. May 5, 1950, ch. 169, § 1 person who is’’ are omitted as surplusage. (Art. 28), 64 Stat. 117. Page 461 TITLE 10—ARMED FORCES § 829

The words ‘‘Secretary concerned’’ are substituted for HISTORICAL AND REVISION NOTES the words ‘‘Secretary of the Department’’. The words, ‘‘detail or employ’’ are substituted for the word ‘‘ap- Revised section Source (U.S. Code) Source (Statutes at Large) point’’, since the filling of the position involved is not appointment to an office in the constitutional sense. 829(a) ...... 50:593(a). May 5, 1950, ch. 169, § 1 829(b) ...... 50:593(b). (Art. 29), 64 Stat. 117. 829(c) ...... 50:593(c). AMENDMENTS In subsections (a), (b), and (c), the word ‘‘may’’ is sub- 2006—Pub. L. 109–366 inserted last sentence. stituted for the word ‘‘shall’’. In subsections (b) and (c), the word ‘‘details’’ is sub- stituted for the word ‘‘appoints’’, since the filling of § 829. Art. 29. Absent and additional members the position involved is not appointment to an office in the constitutional sense. (a) No member of a general or special court- martial may be absent or excused after the AMENDMENTS court has been assembled for the trial of the ac- 2001—Subsec. (b). Pub. L. 107–107 designated existing cused unless excused as a result of a challenge, provisions as par. (1), substituted ‘‘the applicable mini- excused by the military judge for physical dis- mum number of members’’ for ‘‘five members’’ in two ability or other good cause, or excused by order places, and added par. (2). of the convening authority for good cause. 1983—Subsec. (a). Pub. L. 98–209 substituted ‘‘unless excused as a result of a challenge, excused by the mili- (b)(1) Whenever a general court-martial, other tary judge for physical disability or other good cause, than a general court-martial composed of a mili- or excused by order of the convening authority for good tary judge only, is reduced below the applicable cause’’ for ‘‘except for physical disability or as a result minimum number of members, the trial may not of a challenge or by order of the convening authority proceed unless the convening authority details for good cause’’. new members sufficient in number to provide 1968—Subsec. (a). Pub. L. 90–632, § 2(11)(A), substituted not less than the applicable minimum number of ‘‘court has been assembled for the trial of the accused’’ for ‘‘accused has been arraigned’’. members. The trial may proceed with the new Subsec. (b). Pub. L. 90–632, § 2(11)(B), inserted ref- members present after the recorded evidence erence to court-martial composed of a military judge previously introduced before the members of the alone, struck out reference to oath of members, and in- court has been read to the court in the presence serted provisions requiring that only the evidence of the military judge, the accused, and counsel which has been introduced before members of the court for both sides. be read to the court and that all evidence, not merely testimony, be included. (2) In this section, the term ‘‘applicable mini- Subsec. (c). Pub. L. 90–632, § 2(11)(C), inserted ref- mum number of members’’ means five members erence to court-martial composed of a military judge or, in a case in which the death penalty may be alone, struck out reference to oath of members, and adjudged, the number of members determined substituted evidence previously introduced for testi- under section 825a of this title (article 25a). mony of previously examined witnesses as the body of evidence which the verbatim record must cover. (c) Whenever a special court-martial, other Subsec. (d) Pub. L. 90–632, § 2(11)(D), added subsec. (d). than a special court-martial composed of a mili- tary judge only, is reduced below three mem- EFFECTIVE DATE OF 2001 AMENDMENT bers, the trial may not proceed unless the con- Amendment by Pub. L. 107–107 applicable with re- vening authority details new members sufficient spect to offenses committed after Dec. 31, 2002, see sec- in number to provide not less than three mem- tion 582(d) of Pub. L. 107–107, set out as a note under bers. The trial shall proceed with the new mem- section 816 of this title. bers present as if no evidence had previously EFFECTIVE DATE OF 1983 AMENDMENT been introduced at the trial, unless a verbatim record of the evidence previously introduced be- Amendment by Pub. L. 98–209 effective first day of fore the members of the court or a stipulation eighth calendar month beginning after Dec. 6, 1983, see section 12(a)(1) of Pub. L. 98–209, set out as a note under thereof is read to the court in the presence of section 801 of this title. the military judge, if any, the accused and coun- sel for both sides. EFFECTIVE DATE OF 1968 AMENDMENT (d) If the military judge of a court-martial Amendment by Pub. L. 90–632 effective first day of composed of a military judge only is unable to tenth month following October 1968, see section 4 of proceed with the trial because of physical dis- Pub. L. 90–632, set out as a note under section 801 of ability, as a result of a challenge, or for other this title. good cause, the trial shall proceed, subject to SUBCHAPTER VI—PRE-TRIAL PROCEDURE any applicable conditions of section 816(1)(B) or (2)(C) of this title (article 16(1)(B) or (2)(C)), Sec. Art. after the detail of a new military judge as if no 830. 30. Charges and specifications. evidence had previously been introduced, unless 831. 31. Compulsory self-incrimination prohib- a verbatim record of the evidence previously in- ited. 832. 32. Preliminary hearing. troduced or a stipulation thereof is read in court 833. 33. Forwarding of charges. in the presence of the new military judge, the 834. 34. Advice of staff judge advocate and ref- accused, and counsel for both sides. erence for trial. 835. 35. Service of charges. (Aug. 10, 1956, ch. 1041, 70A Stat. 47; Pub. L. 90–632, § 2(11), Oct. 24, 1968, 82 Stat. 1337; Pub. L. AMENDMENTS 98–209, § 3(d), Dec. 6, 1983, 97 Stat. 1394; Pub. L. 2013—Pub. L. 113–66, div. A, title XVII, § 1702(a)(2), 107–107, div. A, title V, § 582(c), Dec. 28, 2001, 115 Dec. 26, 2013, 127 Stat. 955, substituted ‘‘Preliminary Stat. 1124.) hearing’’ for ‘‘Investigation’’ in item 832. § 830 TITLE 10—ARMED FORCES Page 462

§ 830. Art. 30. Charges and specifications eral court-martial for trial until completion of a preliminary hearing, unless such hearing is (a) Charges and specifications shall be signed waived by the accused. by a person subject to this chapter under oath (2) The purpose of the preliminary hearing before a commissioned officer of the armed shall be limited to the following: forces authorized to administer oaths and shall (A) Determining whether there is probable state— cause to believe an offense has been commit- (1) that the signer has personal knowledge of ted and the accused committed the offense. or has investigated, the matters set forth (B) Determining whether the convening au- therein; and thority has court-martial jurisdiction over the (2) that they are true in fact to the best of offense and the accused. his knowledge and belief. (C) Considering the form of charges. (b) Upon the preferring of charges, the proper (D) Recommending the disposition that authority shall take immediate steps to deter- should be made of the case. mine what disposition should be made thereof in (b) HEARING OFFICER.—(1) A preliminary hear- the interest of justice and discipline, and the ing under subsection (a) shall be conducted by person accused shall be informed of the charges an impartial judge advocate certified under sec- against him as soon as practicable. tion 827(b) of this title (article 27(b)) whenever (Aug. 10, 1956, ch. 1041, 70A Stat. 47.) practicable or, in exceptional circumstances in which the interests of justice warrant, by an im- HISTORICAL AND REVISION NOTES partial hearing officer who is not a judge advo- cate. If the hearing officer is not a judge advo- Revised section Source (U.S. Code) Source (Statutes at Large) cate, a judge advocate certified under section 827(b) of this title (article 27(b)) shall be avail- 830(a) ...... 50:601(a). May 5, 1950, ch. 169, § 1 830(b) ...... 50:601(b). (Art. 30), 64 Stat. 118. able to provide legal advice to the hearing offi- cer. In subsection (a), the word ‘‘they’’ is substituted for (2) Whenever practicable, when the judge advo- the words ‘‘the same’’. The word ‘‘commissioned’’ is in- cate or other hearing officer is detailed to con- serted for clarity. duct the preliminary hearing, the officer shall be equal to or senior in grade to military coun- § 831. Art. 31. Compulsory self-incrimination pro- sel detailed to represent the accused or the Gov- hibited ernment at the preliminary hearing. (a) No person subject to this chapter may com- (c) REPORT OF RESULTS.—After conducting a pel any person to incriminate himself or to an- preliminary hearing under subsection (a), the swer any question the answer to which may tend judge advocate or other officer conducting the to incriminate him. preliminary hearing shall prepare a report that (b) No person subject to this chapter may in- addresses the matters specified in subsections terrogate, or request any statement from, an ac- (a)(2) and (f). cused or a person suspected of an offense with- (d) RIGHTS OF ACCUSED AND VICTIM.—(1) The out first informing him of the nature of the ac- accused shall be advised of the charges against cusation and advising him that he does not have the accused and of the accused’s right to be rep- to make any statement regarding the offense of resented by counsel at the preliminary hearing which he is accused or suspected and that any under subsection (a). The accused has the right statement made by him may be used as evidence to be represented at the preliminary hearing as against him in a trial by court-martial. provided in section 838 of this title (article 38) (c) No person subject to this chapter may com- and in regulations prescribed under that section. pel any person to make a statement or produce (2) The accused may cross-examine witnesses evidence before any military tribunal if the who testify at the preliminary hearing and statement or evidence is not material to the present additional evidence in defense and miti- issue and may tend to degrade him. gation, relevant to the limited purposes of the (d) No statement obtained from any person in hearing, as provided for in paragraph (4) and violation of this article, or through the use of subsection (a)(2). coercion, unlawful influence, or unlawful in- (3) A victim may not be required to testify at ducement may be received in evidence against the preliminary hearing. A victim who declines him in a trial by court-martial. to testify shall be deemed to be not available for purposes of the preliminary hearing. (Aug. 10, 1956, ch. 1041, 70A Stat. 48.) (4) The presentation of evidence and examina-

HISTORICAL AND REVISION NOTES tion (including cross-examination) of witnesses at a preliminary hearing shall be limited to the Revised Source (U.S. Code) Source (Statutes at Large) matters relevant to the limited purposes of the section hearing, as provided in subsection (a)(2). 831(a) ...... 50:602(a). May 5, 1950, ch. 169, § 1 (e) RECORDING OF PRELIMINARY HEARING.—A 831(b) ...... 50:602(b). (Art 31), 64 Stat. 118. 831(c) ...... 50:602(c). preliminary hearing under subsection (a) shall 831(d) ...... 50:602(d). be recorded by a suitable recording device. The victim may request the recording and shall have The word ‘‘may’’ is substituted for the word ‘‘shall’’ access to the recording as prescribed by the throughout the revised section. Manual for Courts-Martial. § 832. Art. 32. Preliminary hearing (f) EFFECT OF EVIDENCE OF UNCHARGED OF- FENSE.—If evidence adduced in a preliminary (a) PRELIMINARY HEARING REQUIRED.—(1) No hearing under subsection (a) indicates that the charge or specification may be referred to a gen- accused committed an uncharged offense, the Page 463 TITLE 10—ARMED FORCES § 834 hearing officer may consider the subject matter EFFECTIVE DATE OF 2013 AMENDMENT of that offense without the accused having first Amendment by Pub. L. 113–66 effective on the later of been charged with the offense if the accused— Dec. 26, 2014, or the date of the enactment of the Carl (1) is present at the preliminary hearing; Levin and Howard P. ‘‘Buck’’ McKeon National Defense (2) is informed of the nature of each un- Authorization Act for Fiscal Year 2015 (Dec. 19, 2014) charged offense considered; and and applicable with respect to preliminary hearings (3) is afforded the opportunities for represen- conducted on or after that effective date, see section tation, cross-examination, and presentation 1702(d)(1) of Pub. L. 113–66, set out as a note under sec- tion 802 of this title. consistent with subsection (d). EFFECTIVE DATE OF 1981 AMENDMENT (g) EFFECT OF VIOLATION.—The requirements of this section are binding on all persons admin- Amendment by Pub. L. 97–81 to take effect at end of istering this chapter, but failure to follow the 60-day period beginning on Nov. 20, 1981, and to apply with respect to investigations under this section that requirements does not constitute jurisdictional begin on or after that date, see section 7(a) and (b)(3) error. of Pub. L. 97–81, set out as an Effective Date note under (h) VICTIM DEFINED.—In this section, the term section 706 of this title. ‘‘victim’’ means a person who— (1) is alleged to have suffered a direct phys- § 833. Art. 33. Forwarding of charges ical, emotional, or pecuniary harm as a result When a person is held for trial by general of the matters set forth in a charge or speci- court-martial the commanding officer shall, fication being considered; and within eight days after the accused is ordered (2) is named in one of the specifications. into arrest or confinement, if practicable, for- (Aug. 10, 1956, ch. 1041, 70A Stat. 48; Pub. L. ward the charges, together with the investiga- 97–81, § 4(a), Nov. 20, 1981, 95 Stat. 1088; Pub. L. tion and allied papers, to the officer exercising 104–106, div. A, title XI, § 1131, Feb. 10, 1996, 110 general court-martial jurisdiction. If that is not Stat. 464; Pub. L. 113–66, div. A, title XVII, practicable, he shall report in writing to that of- § 1702(a)(1), Dec. 26, 2013, 127 Stat. 954; Pub. L. ficer the reasons for delay. 113–291, div. A, title V, § 531(a)(4)(A), Dec. 19, 2014, (Aug. 10, 1956, ch. 1041, 70A Stat. 49.) 128 Stat. 3363.) HISTORICAL AND REVISION NOTES HISTORICAL AND REVISION NOTES Revised Source (U.S. Code) Source (Statutes at Large) Revised section section Source (U.S. Code) Source (Statutes at Large) 833 ...... 50:604. May 5, 1950, ch. 169, § 1 832(a) ...... 50:603(a). May 5, 1950, ch. 169, § 1 (Art. 33), 64 Stat. 119. 832(b) ...... 50:603(b). (Art. 32), 64 Stat. 118. 832(c) ...... 50:603(c). 832(d) ...... 50:603(d). § 834. Art. 34. Advice of staff judge advocate and reference for trial In subsection (a), the word ‘‘may’’ is substituted for the word ‘‘shall’’. The words ‘‘consideration of the’’ and (a) Before directing the trial of any charge by ‘‘a recommendation as to’’ are inserted in the interest general court-martial, the convening authority of accuracy and precision of statement. shall refer it to his staff judge advocate for con- In subsection (b), the word ‘‘detailed’’ is substituted sideration and advice. The convening authority for the word ‘‘appointed’’, since the filling of the posi- may not refer a specification under a charge to tion involved is not appointment to an office in the a general court-martial for trial unless he has constitutional sense. In subsection (c), the word ‘‘before’’ is substituted for been advised in writing by the staff judge advo- the words ‘‘prior to the time’’. The words ‘‘of this sec- cate that— tion’’ are omitted as surplusage. (1) the specification alleges an offense under In subsection (d), the word ‘‘are’’ is substituted for this chapter; the words ‘‘shall be.’’ The word ‘‘does’’ is substituted (2) the specification is warranted by the evi- for the words ‘‘in any case shall’’. dence indicated in the report of a preliminary hearing under section 832 of this title (article AMENDMENTS 32) (if there is such a report); and 2014—Subsec. (a)(1). Pub. L. 113–291 inserted ‘‘, unless (3) a court-martial would have jurisdiction such hearing is waived by the accused’’ after ‘‘prelimi- over the accused and the offense. nary hearing’’. 2013—Pub. L. 113–66 substituted ‘‘Preliminary hear- (b) The advice of the staff judge advocate ing’’ for ‘‘Investigation’’ in section catchline and under subsection (a) with respect to a specifica- amended text generally. Prior to amendment, section tion under a charge shall include a written and provided that no charge or specification may be re- signed statement by the staff judge advocate— ferred to general court-martial for trial until thorough (1) expressing his conclusions with respect to and impartial investigation of all the matters had been each matter set forth in subsection (a); and made. (2) recommending action that the convening 1996—Subsecs. (d), (e). Pub. L. 104–106 added subsec. authority take regarding the specification. (d) and redesignated former subsec. (d) as (e). 1981—Subsec. (b). Pub. L. 97–81 substituted ‘‘The ac- If the specification is referred for trial, the rec- cused has the right to be represented at that investiga- ommendation of the staff judge advocate shall tion as provided in section 838 of this title (article 38) accompany the specification. and in regulations prescribed under that section’’ for (c) If the charges or specifications are not for- ‘‘Upon his own request he shall be represented by civil- ian counsel if provided by him, or military counsel of mally correct or do not conform to the sub- his own selection if such counsel is reasonably avail- stance of the evidence contained in the report of able, or by counsel detailed by the officer exercising the investigating officer, formal corrections, general court-martial jurisdiction over the command’’. and such changes in the charges and specifica- § 834 TITLE 10—ARMED FORCES Page 464 tions as are needed to make them conform to ‘‘(A) consideration be given to the victim’s state- the evidence, may be made. ment provided during the course of the criminal in- vestigation regarding the alleged sex-related of- (Aug. 10, 1956, ch. 1041, 70A Stat. 49; Pub. L. fense perpetrated against the victim; and 98–209, § 4, Dec. 6, 1983, 97 Stat. 1395; Pub. L. ‘‘(B) a determination be made whether the vic- 113–66, div. A, title XVII, § 1702(c)(3)(B), Dec. 26, tim’s statement and views concerning disposition of 2013, 127 Stat. 957; Pub. L. 113–291, div. A, title V, the alleged sex-related offense were considered by § 531(a)(4)(B), Dec. 19, 2014, 128 Stat. 3363.) the convening authority in making the referral de- cision. HISTORICAL AND REVISION NOTES ‘‘(b) SEX-RELATED OFFENSE DEFINED.—In this section, the term ‘sex-related offense’ means any of the follow- Revised Source (U.S. Code) Source (Statutes at Large) ing: section ‘‘(1) Rape or sexual assault under subsection (a) or 834(a) ...... 50:605(a). May 5, 1950, ch. 169, § 1 (b) of section 920 of title 10, United States Code (arti- 834(b) ...... 50:605(b). (Art. 34), 64 Stat. 119. cle 120 of the Uniform Code of Military Justice). ‘‘(2) Forcible sodomy under section 925 of such title In subsection (a), the word ‘‘may’’ is substituted for (article 125 of the Uniform Code of Military Justice). the word ‘‘shall’’. ‘‘(3) An attempt to commit an offense specified in paragraph (1) or (2) as punishable under section 880 of AMENDMENTS such title (article 80 of the Uniform Code of Military 2014—Subsec. (a)(2). Pub. L. 113–291 inserted ‘‘(if there Justice). is such a report)’’ after ‘‘(article 32)’’. ‘‘(c) REVIEW OF CERTAIN CASES NOT REFERRED TO 2013—Subsec. (a)(2). Pub. L. 113–66 substituted ‘‘a pre- COURT-MARTIAL.— liminary hearing under section 832 of this title (article ‘‘(1) CASES NOT REFERRED FOLLOWING STAFF JUDGE 32)’’ for ‘‘investigation under section 832 of this title ADVOCATE RECOMMENDATION FOR REFERRAL FOR (article 32) (if there is such a report)’’. TRIAL.—In any case where a staff judge advocate, pur- 1983—Subsec. (a). Pub. L. 98–209, § 4(a), substituted suant to section 834 of title 10, United States Code ‘‘judge advocate’’ for ‘‘judge advocate or legal officer’’, (article 34 of the Uniform Code of Military Justice), and provisions that the convening authority may not recommends that charges of a sex-related offense be refer a specification under a charge to a general court- referred for trial by court-martial and the convening martial for trial unless he has been advised in writing authority decides not to refer any charges to a court- by the staff judge advocate that the specification al- martial, the convening authority shall forward the leges an offense under this chapter, the specification is case file to the Secretary of the military department warranted by the evidence indicated in the report of in- concerned for review as a superior authorized to exer- vestigation under section 832 of this title (article 32) (if cise general court-martial convening authority. there is such a report), and a court-martial would have ‘‘(2) CASES NOT REFERRED BY CONVENING AUTHORITY jurisdiction over the accused and the offense, for provi- UPON REQUEST FOR REVIEW BY CHIEF PROSECUTOR.— sion that the convening authority could not refer a ‘‘(A) IN GENERAL.—In any case where a convening charge to a general court-martial for trial unless he authority decides not to refer a charge of a sex-re- found that the charge alleged an offense under this lated offense to trial by court-martial, the Sec- chapter and was warranted by evidence indicated in the retary of the military department concerned shall report of investigation. review the decision as a superior authority author- Subsecs. (b), (c). Pub. L. 98–209, § 4(b), added subsec. ized to exercise general court-martial convening (b) and redesignated former subsec. (b) as (c). authority if the chief prosecutor of the Armed EFFECTIVE DATE OF 2013 AMENDMENT Force concerned, in response to a request by the de- Amendment by Pub. L. 113–66 effective on the later of tailed counsel for the Government, requests review Dec. 26, 2014, or the date of the enactment of the Carl of the decision by the Secretary. Levin and Howard P. ‘‘Buck’’ McKeon National Defense ‘‘(B) CHIEF PROSECUTOR DEFINED.—In this para- Authorization Act for Fiscal Year 2015 (Dec. 19, 2014) graph, the term ‘chief prosecutor’ means the chief and applicable with respect to preliminary hearings prosecutor or equivalent position of an Armed conducted on or after that effective date, see section Force, or, if an Armed Force does not have a chief 1702(d)(1) of Pub. L. 113–66, set out as a note under sec- prosecutor or equivalent position, such other trial tion 802 of this title. counsel as shall be designated by the Judge Advo- cate General of that Armed Force, or in the case of EFFECTIVE DATE OF 1983 AMENDMENT the Marine Corps, the Staff Judge Advocate to the Amendment by Pub. L. 98–209 effective first day of Commandant of the Marine Corps. eighth calendar month beginning after Dec. 6, 1983, but ‘‘(d) REVIEW OF CASES NOT REFERRED TO COURT-MAR- not to apply to any case in which charges were referred TIAL FOLLOWING STAFF JUDGE ADVOCATE RECOMMENDA- to trial before that date, and proceedings in any such TION NOT TO REFER FOR TRIAL.—In any case where a case to be held in the same manner and with the same staff judge advocate, pursuant to section 834 of title 10, effect as if such amendments had not been enacted, see United States Code (article 34 of the Uniform Code of section 12(a)(1), (3) of Pub. L. 98–209, set out as a note Military Justice), recommends that charges of a sex-re- under section 801 of this title. lated offense should not be referred for trial by court- martial and the convening authority decides not to REVIEW OF DECISIONS NOT TO REFER CHARGES OF CER- refer any charges to a court-martial, the convening au- TAIN SEX-RELATED OFFENSES FOR TRIAL BY COURT- thority shall forward the case file for review to the MARTIAL next superior commander authorized to exercise gen- Pub. L. 113–66, div. A, title XVII, § 1744, Dec. 26, 2013, eral court-martial convening authority. 127 Stat. 980, as amended by Pub. L. 113–291, div. A, title ‘‘(e) ELEMENTS OF CASE FILE.—A case file forwarded V, § 541, Dec. 19, 2014, 128 Stat. 3371, provided that: to higher authority for review pursuant to subsection ‘‘(a) REVIEW REQUIRED.— (c) or (d) shall include the following: ‘‘(1) IN GENERAL.—The Secretary of Defense shall re- ‘‘(1) All charges and specifications preferred under quire the Secretaries of the military departments to section 830 of title 10, United States Code (article 30 provide for review of decisions not to refer charges of the Uniform Code of Military Justice). for trial by court-martial in cases where a sex-related ‘‘(2) All reports of investigations of such charges, offense has been alleged by a victim of the alleged of- including the military criminal investigative organi- fense. zation investigation report and the report prepared ‘‘(2) SPECIFIC REVIEW REQUIREMENTS.—As part of a under section 832 of title 10, United States Code (arti- review conducted pursuant to paragraph (1), the Sec- cle 32 of the Uniform Code of Military Justice), as retary of a military department shall require that— amended by section 1702. Page 465 TITLE 10—ARMED FORCES § 836

‘‘(3) A certification that the victim of the alleged SUBCHAPTER VII—TRIAL PROCEDURE sex-related offense was notified of the opportunity to express views on the victim’s preferred disposition of Sec. Art. the alleged offense for consideration by the conven- 836. 36. President may prescribe rules. ing authority. 837. 37. Unlawfully influencing action of court. ‘‘(4) All statements of the victim provided to the 838. 38. Duties of trial counsel and defense coun- military criminal investigative organization and to sel. the victim’s chain of command relating to the alleged 839. 39. Sessions. sex-related offense and any statement provided by 840. 40. Continuances. the victim to the convening authority expressing the 841. 41. Challenges. victim’s view on the victim’s preferred disposition of 842. 42. Oaths. the alleged offense. 843. 43. Statute of limitations. ‘‘(5) The written advice of the staff judge advocate 844. 44. Former jeopardy. to the convening authority pursuant to section 834 of 845. 45. Pleas of the accused. title 10, United States Code (article 34 of the Uniform 846. 46. Opportunity to obtain witnesses and Code of Military Justice). other evidence. ‘‘(6) A written statement explaining the reasons for 847. 47. Refusal to appear or testify. the convening authority’s decision not to refer any 848. 48. Contempts. charges for trial by court-martial. 849. 49. Depositions. ‘‘(7) A certification that the victim of the alleged 850. 50. Admissibility of records of courts of in- sex-related offense was informed of the convening quiry. authority’s decision to forward the case as provided 850a. 50a. Defense of lack of mental responsibility. in subsection (c) or (d). 851. 51. Voting and rulings. ‘‘(f) NOTICE ON RESULTS OR REVIEW.—The victim of 852. 52. Number of votes required. the alleged sex-related offense shall be notified of the 853. 53. Court to announce action. results of the review conducted under subsection (c) or 854. 54. Record of trial. (d) in the manner prescribed by the victims and witness assistance program of the Armed Force concerned. AMENDMENTS ‘‘(g) VICTIM ALLEGATION OF SEX-RELATED OFFENSE.— The Secretary of Defense shall require the Secretaries 1986—Pub. L. 99–661, div. A, title VIII, § 802(a)(2), Nov. of the military departments to develop a system to en- 14, 1986, 100 Stat. 3906, added item 850a. sure that a victim of a possible sex-related offense § 836. Art. 36. President may prescribe rules under the Uniform Code of Military Justice is given the opportunity to state, either at the time of making an (a) Pretrial, trial, and post-trial procedures, unrestricted report of the allegation or during the including modes of proof, for cases arising under criminal investigation of the allegation, whether or not this chapter triable in courts-martial, military the victim believes that the offense alleged is a sex-re- lated offense subject to the requirements of this sec- commissions and other military tribunals, and tion.’’ procedures for courts of inquiry, may be pre- scribed by the President by regulations which § 835. Art. 35. Service of charges shall, so far as he considers practicable, apply The trial counsel to whom court-martial the principles of law and the rules of evidence charges are referred for trial shall cause to be generally recognized in the trial of criminal served upon the accused a copy of the charges cases in the United States district courts, but upon which trial is to be had. In time of peace which may not, except as provided in chapter no person may, against his objection, be brought 47A of this title, be contrary to or inconsistent to trial, or be required to participate by himself with this chapter. or counsel in a session called by the military (b) All rules and regulations made under this judge under section 839(a) of this title (article article shall be uniform insofar as practicable, 39(a)), in a general court-martial case within a except insofar as applicable to military commis- period of five days after the service of charges sions established under chapter 47A of this title. upon him, or in a special court-martial case (Aug. 10, 1956, ch. 1041, 70A Stat. 50; Pub. L. within a period of three days after the service of 96–107, title VIII, § 801(b), Nov. 9, 1979, 93 Stat. charges upon him. 811; Pub. L. 101–510, div. A, title XIII, § 1301(4), (Aug. 10, 1956, ch. 1041, 70A Stat. 49; Pub. L. Nov. 5, 1990, 104 Stat. 1668; Pub. L. 109–366, 90–632, § 2(12), Oct. 24, 1968, 82 Stat. 1337.) § 4(a)(3), Oct. 17, 2006, 120 Stat. 2631.)

HISTORICAL AND REVISION NOTES HISTORICAL AND REVISION NOTES

Revised Revised Source (U.S. Code) Source (Statutes at Large) section Source (U.S. Code) Source (Statutes at Large) section

835 ...... 50:606. May 5, 1950, ch. 169, § 1 836(a) ...... 50:611(a). May 5, 1950, ch. 169, § 1 (Art. 35), 64 Stat. 119. 836(b) ...... 50:611(b). (Art. 36), 64 Stat. 120.

The word ‘‘may’’ is substituted for the word ‘‘shall’’. In subsection (a), the word ‘‘considers’’ is substituted The word ‘‘after’’ is substituted for the words ‘‘subse- for the word ‘‘deems’’. The word ‘‘may’’ is substituted quent to’’. for the word ‘‘shall’’. In subsection (b), the word ‘‘under’’ is substituted for AMENDMENTS the words ‘‘in pursuance of’’. 1968—Pub. L. 90–632 inserted reference to a session AMENDMENTS called by the military judge under section 839(a) of this title (article 39(a)). 2006—Subsec. (a). Pub. L. 109–366, § 4(a)(3)(A), inserted ‘‘, except as provided in chapter 47A of this title,’’ after EFFECTIVE DATE OF 1968 AMENDMENT ‘‘but which may not’’. Amendment by Pub. L. 90–632 effective first day of Subsec. (b). Pub. L. 109–366, § 4(a)(3)(B), inserted be- tenth month following October 1968, see section 4 of fore period at end ‘‘, except insofar as applicable to Pub. L. 90–632, set out as a note under section 801 of military commissions established under chapter 47A of this title. this title’’. § 837 TITLE 10—ARMED FORCES Page 466

1990—Subsec. (b). Pub. L. 101–510 struck out ‘‘and EFFECTIVE DATE OF 1968 AMENDMENT shall be reported to Congress’’ after ‘‘as practicable’’. 1979—Subsec. (a). Pub. L. 96–107 substituted provi- Amendment by Pub. L. 90–632 effective first day of sions authorizing pretrial, trial, and post-trial proce- tenth month following October 1968, see section 4 of dures for cases under this chapter triable in courts- Pub. L. 90–632, set out as a note under section 801 of martial, military commissions and other military tri- this title. bunals, for provisions authorizing procedure in cases § 838. Art. 38. Duties of trial counsel and defense before courts-martial, military commissions, and other military tribunals. counsel (a) The trial counsel of a general or special § 837. Art. 37. Unlawfully influencing action of court-martial shall prosecute in the name of the court United States, and shall, under the direction of (a) No authority convening a general, special, the court, prepare the record of the proceedings. or summary court-martial, nor any other com- (b)(1) The accused has the right to be rep- manding officer, may censure, reprimand, or ad- resented in his defense before a general or spe- monish the court or any member, military cial court-martial or at a preliminary hearing judge, or counsel thereof, with respect to the under section 832 of this title (article 32) as pro- findings or sentence adjudged by the court, or vided in this subsection. with respect to any other exercise of its or his (2) The accused may be represented by civilian functions in the conduct of the proceeding. No counsel if provided by him. person subject to this chapter may attempt to (3) The accused may be represented— coerce or, by any unauthorized means, influence (A) by military counsel detailed under sec- the action of a court-martial or any other mili- tion 827 of this title (article 27); or tary tribunal or any member thereof, in reach- (B) by military counsel of his own selection ing the findings or sentence in any case, or the if that counsel is reasonably available (as de- action of any convening, approving, or reviewing termined under regulations prescribed under authority with respect to his judicial acts. The paragraph (7)). foregoing provisions of the subsection shall not (4) If the accused is represented by civilian apply with respect to (1) general instructional or counsel, military counsel detailed or selected informational courses in military justice if such under paragraph (3) shall act as associate coun- courses are designed solely for the purpose of in- sel unless excused at the request of the accused. structing members of a command in the sub- (5) Except as provided under paragraph (6), if stantive and procedural aspects of courts-mar- the accused is represented by military counsel tial, or (2) to statements and instructions given of his own selection under paragraph (3)(B), any in open court by the military judge, president of military counsel detailed under paragraph (3)(A) a special court-martial, or counsel. shall be excused. (b) In the preparation of an effectiveness, fit- (6) The accused is not entitled to be rep- ness, or efficiency report, or any other report or resented by more than one military counsel. document used in whole or in part for the pur- However, the person authorized under regula- pose of determining whether a member of the tions prescribed under section 827 of this title armed forces is qualified to be advanced, in (article 27) to detail counsel, in his sole discre- grade, or in determining the assignment or tion— transfer of a member of the armed forces or in (A) may detail additional military counsel determining whether a member of the armed as assistant defense counsel; and forces should be retained on active duty, no per- (B) if the accused is represented by military son subject to this chapter may, in preparing counsel of his own selection under paragraph any such report (1) consider or evaluate the per- (3)(B), may approve a request from the accused formance of duty of any such member as a mem- that military counsel detailed under para- ber of a court-martial, or (2) give a less favor- graph (3)(A) act as associate defense counsel. able rating or evaluation of any member of the armed forces because of the zeal with which (7) The Secretary concerned shall, by regula- such member, as counsel, represented any ac- tion, define ‘‘reasonably available’’ for the pur- cused before a court-martial. pose of paragraph (3)(B) and establish procedures for determining whether the military counsel (Aug. 10, 1956, ch. 1041, 70A Stat. 50; Pub. L. selected by an accused under that paragraph is 90–632, § 2(13), Oct. 24, 1968, 82 Stat. 1338.) reasonably available. Such regulations may not HISTORICAL AND REVISION NOTES prescribe any limitation based on the reasonable availability of counsel solely on the grounds Revised section Source (U.S. Code) Source (Statutes at Large) that the counsel selected by the accused is from an armed force other than the armed force of 837 ...... 50:612. May 5, 1950, ch. 169, § 1 which the accused is a member. To the maxi- (Art. 37), 64 Stat. 120. mum extent practicable, such regulations shall The word ‘‘may’’ is substituted for the word ‘‘shall’’. establish uniform policies among the armed forces while recognizing the differences in the AMENDMENTS circumstances and needs of the various armed 1968—Pub. L. 90–632 designated existing provisions as forces. The Secretary concerned shall submit subsec. (a), substituted ‘‘military judge’’ for ‘‘law offi- copies of regulations prescribed under this para- cer’’, inserted provisions specifically exempting in- structional or general informational lectures on mili- graph to the Committee on Armed Services of tary justice and statements and instructions given in the Senate and the Committee on Armed Serv- open court by the military judge, president of a special ices of the House of Representatives. court-martial, or counsel from prohibitions of subsec. (c) In any court-martial proceeding resulting (a), and added subsec. (b). in a conviction, the defense counsel— Page 467 TITLE 10—ARMED FORCES § 839

(1) may forward for attachment to the record tation based on the reasonable availability of counsel of proceedings a brief of such matters as he de- solely on the grounds that the counsel selected by the termines should be considered in behalf of the accused is from an armed force other than the armed accused on review (including any objection to force of which the accused is a member. Subsec. (c). Pub. L. 98–209, § 3(e)(3), designated exist- the contents of the record which he considers ing provisions as par. (1), made minor changes in appropriate); phraseology and punctuation, and added pars. (2) and (2) may assist the accused in the submission (3). of any matter under section 860 of this title 1981—Subsec. (b). Pub. L. 97–81 revised subsec. (b) by (article 60); and dividing its provisions into seven numbered paragraphs (3) may take other action authorized by this and inserted provisions relating to the right to counsel chapter. at an investigation under section 832 of this title (arti- cle 32), authorizing the promulgation of regulations re- (d) An assistant trial counsel of a general lating to the ‘‘reasonable availability’’ of military court-martial may, under the direction of the counsel, and authorizing the detailing of additional trial counsel or when he is qualified to be a trial military counsel for the accused under specified cir- counsel as required by section 827 of this title cumstances. (article 27), perform any duty imposed by law, 1968—Subsec. (b). Pub. L. 90–632 substituted ‘‘military regulation, or the custom of the service upon judge or by the president of a court-martial without a the trial counsel of the court. An assistant trial military judge’’ for ‘‘president of the court’’. counsel of a special court-martial may perform EFFECTIVE DATE OF 2013 AMENDMENT any duty of the trial counsel. Amendment by Pub. L. 113–66 effective on the later of (e) An assistant defense counsel of a general or Dec. 26, 2014, or the date of the enactment of the Carl special court-martial may, under the direction Levin and Howard P. ‘‘Buck’’ McKeon National Defense of the defense counsel or when he is qualified to Authorization Act for Fiscal Year 2015 (Dec. 19, 2014) be the defense counsel as required by section 827 and applicable with respect to preliminary hearings of this title (article 27), perform any duty im- conducted on or after that effective date, see section posed by law, regulation, or the custom of the 1702(d)(1) of Pub. L. 113–66, set out as a note under sec- service upon counsel for the accused. tion 802 of this title. (Aug. 10, 1956, ch. 1041, 70A Stat. 50; Pub. L. EFFECTIVE DATE OF 1983 AMENDMENT 90–632, § 2(14), Oct. 24, 1968, 82 Stat. 1338; Pub. L. Amendment by Pub. L. 98–209 effective first day of 97–81, § 4(b), Nov. 20, 1981, 95 Stat. 1088; Pub. L. eighth calendar month after Dec. 6, 1983, but not to af- 98–209, § 3(e), Dec. 6, 1983, 97 Stat. 1394; Pub. L. fect the designation or detail of a military judge or 104–106, div. A, title XV, § 1502(a)(1), Feb. 10, 1996, military counsel to a court-martial before that date, see section 12(a)(1), (2) of Pub. L. 98–209, set out as a 110 Stat. 502; Pub. L. 106–65, div. A, title X, note under section 801 of this title. § 1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 113–66, div. A, title XVII, § 1702(c)(3)(C), Dec. 26, 2013, 127 EFFECTIVE DATE OF 1981 AMENDMENT Stat. 957.) Amendment by Pub. L. 97–81 to take effect at end of 60-day period beginning on Nov. 20, 1981, and to apply to HISTORICAL AND REVISION NOTES trials by courts-martial in which all charges are re- ferred to trial on or after that date, see section 7(a) and Revised section Source (U.S. Code) Source (Statutes at Large) (b)(4) of Pub. L. 97–81, set out as an Effective Date note under section 706 of this title. 838(a) ...... 50:613(a). May 5, 1950, ch. 169, § 1 838(b) ...... 50:613(b). (Art. 38), 64 Stat. 120. EFFECTIVE DATE OF 1968 AMENDMENT 838(c) ...... 50:613(c). 838(d) ...... 50:613(d). Amendment by Pub. L. 90–632 effective on first day of 838(e) ...... 50:613(e). tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of In subsection (b), the word ‘‘has’’ is substituted for this title. the words ‘‘shall have’’. The word ‘‘under’’ is sub- stituted for the words ‘‘pursuant to’’. The word ‘‘duly’’ § 839. Art. 39. Sessions is omitted as surplusage. The words ‘‘detailed’’ and ‘‘who were detailed’’ are substituted for the word ‘‘ap- (a) At any time after the service of charges pointed’’, since the filling of the position involved is which have been referred for trial to a court- not appointment to an office in the constitutional martial composed of a military judge and mem- sense. bers, the military judge may, subject to section In subsection (c), the word ‘‘considers’’ is substituted for the words ‘‘may deem’’. 835 of this title (article 35), call the court into session without the presence of the members for AMENDMENTS the purpose of— 2013—Subsec. (b)(1). Pub. L. 113–66 substituted ‘‘a pre- (1) hearing and determining motions raising liminary hearing under section 832’’ for ‘‘an investiga- defenses or objections which are capable of de- tion under section 832’’. termination without trial of the issues raised 1999—Subsec. (b)(7). Pub. L. 106–65 substituted ‘‘and by a plea of not guilty; the Committee on Armed Services’’ for ‘‘and the Com- mittee on National Security’’. (2) hearing and ruling upon any matter 1996—Subsec. (b)(7). Pub. L. 104–106 substituted ‘‘Com- which may be ruled upon by the military mittee on Armed Services of the Senate and the Com- judge under this chapter, whether or not the mittee on National Security of the House of Represent- matter is appropriate for later consideration atives’’ for ‘‘Committees on Armed Services of the Sen- or decision by the members of the court; ate and House of Representatives’’. (3) if permitted by regulations of the Sec- 1983—Subsec. (b)(6). Pub. L. 98–209, § 3(e)(1), sub- retary concerned, holding the arraignment stituted ‘‘the person authorized under regulations pre- scribed under section 827 of this title (article 27) to de- and receiving the pleas of the accused; and tail counsel’’ for ‘‘a convening authority’’. (4) performing any other procedural function Subsec. (b)(7). Pub. L. 98–209, § 3(e)(2), inserted provi- which may be performed by the military judge sion that such regulations may not prescribe any limi- under this chapter or under rules prescribed § 840 TITLE 10—ARMED FORCES Page 468

pursuant to section 836 of this title (article 36) judge’’ for ‘‘law officer’’, and struck out provisions au- and which does not require the presence of the thorizing the court after voting on the findings in a members of the court. general court-martial to request the law officer and the reporter to appear before the court to put the findings (b) Proceedings under subsection (a) shall be in proper form. conducted in the presence of the accused, the de- fense counsel, and the trial counsel and shall be EFFECTIVE DATE OF 1990 AMENDMENT made a part of the record. These proceedings Pub. L. 101–510, div. A, title V, § 541(e), Nov. 5, 1990, 104 may be conducted notwithstanding the number Stat. 1565, provided that: ‘‘The amendments made by of members of the court and without regard to subsections (a) through (d) [amending this section and section 829 of this title (article 29). If authorized section 841 of this title] shall apply only to a court- by regulations of the Secretary concerned, and martial convened on or after the date of the enactment of this Act [Nov. 5, 1990].’’ if at least one defense counsel is physically in the presence of the accused, the presence re- EFFECTIVE DATE OF 1968 AMENDMENT quired by this subsection may otherwise be es- Amendment by Pub. L. 90–632 effective first day of tablished by audiovisual technology (such as tenth month following October 1968, see section 4 of videoteleconferencing technology). Pub. L. 90–632, set out as a note under section 801 of (c) When the members of a court-martial de- this title. liberate or vote, only the members may be present. All other proceedings, including any § 840. Art. 40. Continuances other consultation of the members of the court The military judge or a court-martial without with counsel or the military judge, shall be a military judge may, for reasonable cause, made a part of the record and shall be in the grant a continuance to any party for such time, presence of the accused, the defense counsel, the and as often, as may appear to be just. trial counsel, and, in cases in which a military judge has been detailed to the court, the mili- (Aug. 10, 1956, ch. 1041, 70A Stat. 51; Pub. L. tary judge. 90–632, § 2(16), Oct. 24, 1968, 82 Stat. 1339.) (d) The findings, holdings, interpretations, and HISTORICAL AND REVISION NOTES other precedents of military commissions under chapter 47A of this title— Revised (1) may not be introduced or considered in section Source (U.S. Code) Source (Statutes at Large) any hearing, trial, or other proceeding of a 840 ...... 50:615. May 5, 1950, ch. 169, § 1 court-martial under this chapter; and (Art. 40), 64 Stat. 121. (2) may not form the basis of any holding, decision, or other determination of a court- AMENDMENTS martial. 1968—Pub. L. 90–632 inserted reference to military (Aug. 10, 1956, ch. 1041, 70A Stat. 51; Pub. L. judge. 90–632, § 2(15), Oct. 24, 1968, 82 Stat. 1338; Pub. L. EFFECTIVE DATE OF 1968 AMENDMENT 101–510, div. A, title V, § 541(a), Nov. 5, 1990, 104 Stat. 1565; Pub. L. 109–163, div. A, title V, § 556, Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Jan. 6, 2006, 119 Stat. 3266; Pub. L. 111–84, div. A, Pub. L. 90–632, set out as a note under section 801 of title XVIII, § 1803(a)(2), Oct. 28, 2009, 123 Stat. this title. 2612.) § 841. Art. 41. Challenges HISTORICAL AND REVISION NOTES (a)(1) The military judge and members of a Revised section Source (U.S. Code) Source (Statutes at Large) general or special court-martial may be chal- lenged by the accused or the trial counsel for 839 ...... 50:614. May 5, 1950, ch. 169, § 1 (Art. 39), 64 Stat. 121. cause stated to the court. The military judge, or, if none, the court, shall determine the rel- The word ‘‘When’’ is substituted for the word ‘‘When- evancy and validity of challenges for cause, and ever’’. The words ‘‘deliberates or votes’’ are substituted may not receive a challenge to more than one for the words ‘‘is to deliberate or vote’’. The word person at a time. Challenges by the trial counsel ‘‘may’’ is substituted for the word ‘‘shall’’. The word shall ordinarily be presented and decided before ‘‘shall’’ is inserted before the words ‘‘be in the pres- those by the accused are offered. ence’’ for clarity. (2) If exercise of a challenge for cause reduces AMENDMENTS the court below the minimum number of mem- 2009—Subsec. (d). Pub. L. 111–84 added subsec. (d). bers required by section 816 of this title (article 2006—Pub. L. 109–163 redesignated concluding provi- 16), all parties shall (notwithstanding section 829 sions of subsec. (a) as subsec. (b), substituted ‘‘Proceed- of this title (article 29)) either exercise or waive ings under subsection (a) shall be conducted’’ for any challenge for cause then apparent against ‘‘These proceedings shall be conducted’’, inserted at end ‘‘If authorized by regulations of the Secretary con- the remaining members of the court before addi- cerned, and if at least one defense counsel is physically tional members are detailed to the court. How- in the presence of the accused, the presence required by ever, peremptory challenges shall not be exer- this subsection may otherwise be established by audio- cised at that time. visual technology (such as videoteleconferencing tech- (b)(1) Each accused and the trial counsel are nology).’’, and redesignated former subsec. (b) as (c). entitled initially to one peremptory challenge of 1990—Subsec. (a). Pub. L. 101–510 inserted at end members of the court. The military judge may ‘‘These proceedings may be conducted notwithstanding not be challenged except for cause. the number of members of the court and without regard to section 829 of this title (article 29).’’ (2) If exercise of a peremptory challenge re- 1968—Pub. L. 90–632 added subsec. (a), designated ex- duces the court below the minimum number of isting provisions as subsec. (b), substituted ‘‘military members required by section 816 of this title (ar- Page 469 TITLE 10—ARMED FORCES § 843 ticle 16), the parties shall (notwithstanding sec- cerned. These regulations may provide that an tion 829 of this title (article 29)) either exercise oath to perform faithfully duties as a military or waive any remaining peremptory challenge judge, trial counsel, assistant trial counsel, de- (not previously waived) against the remaining fense counsel, or assistant or associate defense members of the court before additional members counsel may be taken at any time by any judge are detailed to the court. advocate or other person certified to be qualified (c) Whenever additional members are detailed or competent for the duty, and if such an oath to the court, and after any challenges for cause is taken it need not again be taken at the time against such additional members are presented the judge advocate or other person is detailed to and decided, each accused and the trial counsel that duty. are entitled to one peremptory challenge (b) Each witness before a court-martial shall against members not previously subject to pe- be examined on oath. remptory challenge. (Aug. 10, 1956, ch. 1041, 70A Stat. 51; Pub. L. (Aug. 10, 1956, ch. 1041, 70A Stat. 51; Pub. L. 90–632, § 2(18), Oct. 24, 1968, 82 Stat. 1339; Pub. L. 90–632, § 2(17), Oct. 24, 1968, 82 Stat. 1339; Pub. L. 98–209, §§ 2(e), 3(f), Dec. 6, 1983, 97 Stat. 1393, 1395.) 101–510, div. A, title V, § 541(b)–(d), Nov. 5, 1990, HISTORICAL AND REVISION NOTES 104 Stat. 1565; Pub. L. 111–383, div. A, title X, § 1075(b)(13), Jan. 7, 2011, 124 Stat. 4369.) Revised section Source (U.S. Code) Source (Statutes at Large) HISTORICAL AND REVISION NOTES 842(a) ...... 50:617(a). May 5, 1950, ch. 169, § 1 842(b) ...... 50:617(b). (Art. 42), 64 Stat. 121. Revised section Source (U.S. Code) Source (Statutes at Large) In subsection (a), the word ‘‘all’’ and the word ‘‘the’’ 841(a) ...... 50:616(a). May 5, 1950, ch. 169, § 1 before the words ‘‘members’’, ‘‘trial’’, ‘‘defense’’, and 841(b) ...... 50:616(b). (Art. 41), 64 Stat. 121. ‘‘reporter’’ are omitted as surplusage. In subsections (a) and (b), the words ‘‘or affirmation’’ In subsection (a), the word ‘‘may’’ is substituted for are omitted as covered by the definition of the word the word ‘‘shall’’ before the words ‘‘not receive’’. ‘‘oath’’ in section 1 of Title 1. In subsection (b), the word ‘‘the’’ is inserted before In subsection (b), the words ‘‘Each witness’’ are sub- the word ‘‘trial’’. The word ‘‘is’’ is substituted for the stituted for the words ‘‘All witnesses’’. words ‘‘shall be’’. The word ‘‘may’’ is substituted for the word ‘‘shall’’. AMENDMENTS

AMENDMENTS 1983—Subsec. (a). Pub. L. 98–209 struck out ‘‘, law spe- cialist,’’ after ‘‘judge advocate’’ in two places, sub- 2011—Subsec. (c). Pub. L. 111–383 substituted ‘‘trial stituted ‘‘assistant or associate defense counsel’’ for counsel’’ for ‘‘trail counsel’’. ‘‘assistant defense counsel’’. 1990—Subsec. (a). Pub. L. 101–510, § 541(b), designated 1968—Subsec. (a). Pub. L. 90–632 struck out require- existing provision as par. (1) and added par. (2). ment that the oath given to court-martial personnel be Subsec. (b). Pub. L. 101–510, § 541(c), amended subsec. taken in the presence of the accused and provided that (b) generally. Prior to amendment, subsec. (b) read as the form of the oath, the time and place of its taking, follows: ‘‘Each accused and the trial counsel is entitled the manner of recording thereof, and whether the oath to one peremptory challenge, but the military judge shall be taken for all cases or for a particular case shall may not be challenged except for cause.’’ be as prescribed by regulations of the Secretary con- Subsec. (c). Pub. L. 101–510, § 541(d), added subsec. (c). cerned and contemplated secretarial regulations allow- 1968—Subsec. (a). Pub. L. 90–632, § 2(17)(A), (B), in- ing the administration of an oath to certified legal per- serted reference to the military judge and struck out sonnel on a one-time basis. references to the law officer of a general court-martial. Subsec. (b). Pub. L. 90–632, § 2(17)(C), substituted EFFECTIVE DATE OF 1983 AMENDMENT ‘‘military judge’’ for ‘‘law officer’’. Amendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, see EFFECTIVE DATE OF 1990 AMENDMENT section 12(a)(1) of Pub. L. 98–209, set out as a note under Amendment by Pub. L. 101–510 applicable only to section 801 of this title. court-martial convened on or after Nov. 5, 1990, see sec- EFFECTIVE DATE OF 1968 AMENDMENT tion 541(e) of Pub. L. 101–510, set out as a note under section 839 of this title. Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of EFFECTIVE DATE OF 1968 AMENDMENT Pub. L. 90–632, set out as a note under section 801 of Amendment by Pub. L. 90–632 effective first day of this title. tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of § 843. Art. 43. Statute of limitations this title. (a) A person charged with absence without § 842. Art. 42. Oaths leave or missing movement in time of war, with murder, rape or sexual assault, or rape or sexual (a) Before performing their respective duties, assault of a child, or with any other offense pun- military judges, members of general and special ishable by death, may be tried and punished at courts-martial, trial counsel, assistant trial any time without limitation. counsel, defense counsel, assistant or associate (b)(1) Except as otherwise provided in this sec- defense counsel, reporters, and interpreters shall tion (article), a person charged with an offense take an oath to perform their duties faithfully. is not liable to be tried by court-martial if the The form of the oath, the time and place of the offense was committed more than five years be- taking thereof, the manner of recording the fore the receipt of sworn charges and specifica- same, and whether the oath shall be taken for tions by an officer exercising summary court- all cases in which these duties are to be per- martial jurisdiction over the command. formed or for a particular case, shall be as pre- (2)(A) A person charged with having commit- scribed in regulations of the Secretary con- ted a child abuse offense against a child is liable § 843 TITLE 10—ARMED FORCES Page 470 to be tried by court-martial if the sworn charges connected with or related to the prosecution and specifications are received during the life of of the war, or with any disposition of termi- the child or within five years after the date on nation inventory by any war contractor or which the offense was committed, whichever Government agency; provides a longer period, by an officer exercising is suspended until three years after the termi- summary court-martial jurisdiction with re- nation of hostilities as proclaimed by the Presi- spect to that person. dent or by a joint resolution of Congress. (B) In subparagraph (A), the term ‘‘child abuse (g)(1) If charges or specifications are dismissed offense’’ means an act that involves abuse of a as defective or insufficient for any cause and the person who has not attained the age of 16 years period prescribed by the applicable statute of and constitutes any of the following offenses: limitations— (i) Any offense in violation of section 920, (A) has expired; or 920a, 920b, or 920c of this title (article 120, 120a, (B) will expire within 180 days after the date 120b, or 120c), unless the offense is covered by of dismissal of the charges and specifications, subsection (a). (ii) Maiming in violation of section 924 of trial and punishment under new charges and this title (article 124). specifications are not barred by the statute of (iii) Forcible sodomy in violation of section limitations if the conditions specified in para- 925 of this title (article 125). graph (2) are met. (iv) Aggravated assault or assault con- (2) The conditions referred to in paragraph (1) summated by a battery in violation of section are that the new charges and specifications 928 of this title (article 128). must— (v) Kidnaping, assault with intent to commit (A) be received by an officer exercising sum- murder, voluntary manslaughter, rape, or mary court-martial jurisdiction over the com- forcible sodomy, or indecent acts in violation mand within 180 days after the dismissal of the of section 934 of this title (article 134). charges or specifications; and (B) allege the same acts or omissions that (C) In subparagraph (A), the term ‘‘child abuse were alleged in the dismissed charges or speci- offense’’ includes an act that involves abuse of a fications (or allege acts or omissions that were person who has not attained the age of 18 years included in the dismissed charges or specifica- and would constitute an offense under chapter tions). 110 or 117 of title 18 or under section 1591 of that title. (Aug. 10, 1956, ch. 1041, 70A Stat. 51; Pub. L. (3) A person charged with an offense is not lia- 99–661, div. A, title VIII, § 805(a), (b), Nov. 14, ble to be punished under section 815 of this title 1986, 100 Stat. 3908; Pub. L. 108–136, div. A, title (article 15) if the offense was committed more V, § 551, Nov. 24, 2003, 117 Stat. 1481; Pub. L. than two years before the imposition of punish- 109–163, div. A, title V, §§ 552(e), 553, Jan. 6, 2006, ment. 119 Stat. 3263, 3264; Pub. L. 109–364, div. A, title (c) Periods in which the accused is absent X, § 1071(a)(4), Oct. 17, 2006, 120 Stat. 2398; Pub. L. without authority or fleeing from justice shall 111–383, div. A, title X, § 1075(b)(14), Jan. 7, 2011, be excluded in computing the period of limita- 124 Stat. 4369; Pub. L. 112–81, div. A, title V, tion prescribed in this section (article). § 541(d)(1), Dec. 31, 2011, 125 Stat. 1410; Pub. L. (d) Periods in which the accused was absent 112–239, div. A, title X, § 1076(f)(8), Jan. 2, 2013, 126 from territory in which the United States has Stat. 1952; Pub. L. 113–66, div. A, title XVII, the authority to apprehend him, or in the cus- § 1703(a), (b), Dec. 26, 2013, 127 Stat. 958; Pub. L. tody of civil authorities, or in the hands of the 113–291, div. A, title V, § 531(d)(2)(A), Dec. 19, 2014, enemy, shall be excluded in computing the pe- 128 Stat. 3364.) riod of limitation prescribed in this article. HISTORICAL AND REVISION NOTES (e) For an offense the trial of which in time of Revised war is certified to the President by the Sec- Source (U.S. Code) Source (Statutes at Large) retary concerned to be detrimental to the pros- section ecution of the war or inimical to the national 843(a) ...... 50:618(a). May 5, 1950, ch. 169, § 1 843(b) ...... 50:618(b). (Art. 43), 64 Stat. 121. security, the period of limitation prescribed in 843(c) ...... 50:618(c). this article is extended to six months after the 843(d) ...... 50:618(d). 843(e) ...... 50:618(e). termination of hostilities as proclaimed by the 843(f) ...... 50:618(f). President or by a joint resolution of Congress. (f) When the United States is at war, the run- In subsection (b), the word ‘‘inclusive’’ is omitted as ning of any statute of limitations applicable to surplusage. any offense under this chapter— In subsections (b) and (c), the words ‘‘is not’’ are sub- (1) involving fraud or attempted fraud stituted for the words ‘‘shall not be’’. In subsection (e), the words ‘‘For an’’ are substituted against the United States or any agency there- for the words ‘‘In the case of any’’. The word ‘‘is’’ is of in any manner, whether by conspiracy or substituted for the words ‘‘shall be’’. The words ‘‘Sec- not; retary concerned’’ are substituted for the words ‘‘Sec- (2) committed in connection with the acqui- retary of the Department’’. sition, care, handling, custody, control, or dis- In subsection (f), the word ‘‘is’’ is substituted for the position of any real or personal property of the words ‘‘shall be’’. United States; or AMENDMENTS (3) committed in connection with the nego- 2014—Subsec. (b)(2)(B)(iii). Pub. L. 113–291, tiation, procurement, award, performance, § 531(d)(2)(A)(i), substituted ‘‘Forcible sodomy’’ for payment, interim financing, cancellation, or ‘‘Sodomy’’. other termination or settlement, of any con- Subsec. (b)(2)(B)(v). Pub. L. 113–291, § 531(d)(2)(A)(ii), tract, subcontract, or purchase order which is substituted ‘‘forcible sodomy’’ for ‘‘sodomy’’. Page 471 TITLE 10—ARMED FORCES § 845

2013—Subsec. (a). Pub. L. 113–66, § 1703(a), substituted Military Justice), that is committed on or after that ‘‘rape or sexual assault, or rape or sexual assault of a date.’’ child’’ for ‘‘rape, or rape of a child’’. Subsec. (b)(2)(B)(i). Pub. L. 113–66, § 1703(b), inserted EFFECTIVE DATE OF 2011 AMENDMENT ‘‘, unless the offense is covered by subsection (a)’’ be- Pub. L. 112–81, div. A, title V, § 541(f), Dec. 31, 2011, 125 fore period at end. Stat. 1411, provided that: ‘‘The amendments made by Subsec. (b)(2)(B)(v). Pub. L. 112–239 substituted ‘‘Kid- this section [enacting sections 920b and 920c of this naping,’’ for ‘‘Kidnaping,,’’. title and amending this section and sections 918 and 920 2011—Subsec. (b)(2)(B)(i). Pub. L. 112–81, § 541(d)(1)(A), of this title] shall take effect 180 days after the date of substituted ‘‘section 920, 920a, 920b, or 920c of this title the enactment of this Act [Dec. 31, 2011] and shall apply (article 120, 120a, 120b, or 120c)’’ for ‘‘section 920 of this with respect to offenses committed on or after such ef- title (article 120)’’. fective date.’’ Subsec. (b)(2)(B)(v). Pub. L. 112–81, § 541(d)(1)(B), struck out ‘‘indecent assault’’ after ‘‘Kidnaping,’’ and EFFECTIVE DATE OF 2006 AMENDMENT ‘‘or liberties with a child’’ after ‘‘indecent acts’’. Pub. L. 109–163, div. A, title V, § 552(f), Jan. 6, 2006, 119 Pub. L. 111–383 substituted ‘‘Kidnaping, indecent as- Stat. 3263, provided that: ‘‘The amendments made by sault,’’ for ‘‘Kidnaping; indecent assault;’’. this section [amending this section and sections 918 and 2006—Subsec. (a). Pub. L. 109–163, § 553(a), substituted 920 of this title and enacting provisions set out as notes ‘‘with murder or rape, or with any other offense punish- under section 920 of this title] shall take effect on Octo- able by death’’ for ‘‘or with any offense punishable by ber 1, 2007.’’ death’’. Pub. L. 109–163, § 552(e), substituted ‘‘, rape, or rape of EFFECTIVE DATE OF 1986 AMENDMENT a child,’’ for ‘‘or rape,’’. Pub. L. 99–661, div. A, title VIII, § 805(c), Nov. 14, 1986, Subsec. (b)(2)(A). Pub. L. 109–163, § 553(b)(1), sub- 100 Stat. 3908, provided that: ‘‘The amendments made stituted ‘‘during the life of the child or within five by this section [amending this section] shall apply to years after the date on which the offense was commit- an offense committed on or after the date of the enact- ted, whichever provides a longer period,’’ for ‘‘before ment of this Act [Nov. 14, 1986].’’ the child attains the age of 25 years’’. Subsec. (b)(2)(B). Pub. L. 109–163, § 553(b)(2)(A), struck § 844. Art. 44. Former jeopardy out ‘‘sexual or physical’’ before ‘‘abuse of a person’’ in introductory provisions. (a) No person may, without his consent, be Subsec. (b)(2)(B)(i). Pub. L. 109–163, § 553(b)(2)(B), sub- tried a second time for the same offense. stituted ‘‘Any offense’’ for ‘‘Rape or carnal knowl- (b) No proceeding in which an accused has edge’’. Subsec. (b)(2)(B)(iii). Pub. L. 109–364, § 1071(a)(4)(A), been found guilty by a court-martial upon any substituted ‘‘125’’ for ‘‘126’’. charge or specification is a trial in the sense of Subsec. (b)(2)(B)(v). Pub. L. 109–163, § 553(b)(2)(C), sub- this article until the finding of guilty has be- stituted ‘‘Kidnaping; indecent assault;’’ for ‘‘Indecent come final after review of the case has been assault,’’. fully completed. Subsec. (b)(2)(C). Pub. L. 109–364, § 1071(a)(4)(B), sub- (c) A proceeding which, after the introduction stituted ‘‘under chapter 110 or 117 of title 18 or under of evidence but before a finding, is dismissed or section 1591 of that title’’ for ‘‘under chapter 110 or 117, terminated by the convening authority or on or under section 1591, of title 18’’. Pub. L. 109–163, § 553(b)(3), added subpar. (C). motion of the prosecution for failure of avail- 2003—Subsec. (b)(2), (3). Pub. L. 108–136 added par. (2) able evidence or witnesses without any fault of and redesignated former par. (2) as (3). the accused is a trial in the sense of this article. 1986—Subsecs. (a) to (c). Pub. L. 99–661, § 805(a), amended subsecs. (a) to (c) generally. Prior to amend- (Aug. 10, 1956, ch. 1041, 70A Stat. 52.) ment, subsecs. (a) to (c) read as follows: HISTORICAL AND REVISION NOTES ‘‘(a) A person charged with desertion or absence with- out leave in time of war, or with aiding the enemy, mu- Revised tiny, or murder, may be tried and punished at any time section Source (U.S. Code) Source (Statutes at Large) without limitation. 844(a) ...... 50:619(a). May 5, 1950, ch. 169, § 1 ‘‘(b) Except as otherwise provided in this article, a 844(b) ...... 50:619(b). (Art. 44), 64 Stat. 122. person charged with desertion in time of peace or any 844(c) ...... 50:619(c). of the offenses punishable under sections 919–932 of this title (articles 119–132) is not liable to be tried by court- In subsection (a), the word ‘‘may’’ is substituted for martial if the offense was committed more than three the word ‘‘shall’’. years before the receipt of sworn charges and specifica- In subsection (b), the word ‘‘is’’ is substituted for the tions by an officer exercising summary court-martial words ‘‘shall be held to be’’. jurisdiction over the command. In subsection (c), the word ‘‘after’’ is substituted for ‘‘(c) Except as otherwise provided in this article, a the words ‘‘subsequent to’’. The word ‘‘before’’ is sub- person charged with any offense is not liable to be tried stituted for the words ‘‘prior to’’. The word ‘‘is’’ is sub- by court-martial or punished under section 815 of this stituted for the words ‘‘shall be’’. title (article 15) if the offense was committed more than two years before the receipt of sworn charges and § 845. Art. 45. Pleas of the accused specifications by an officer exercising summary court- martial jurisdiction over the command or before the (a) If an accused after arraignment makes an imposition of punishment under section 815 of this title irregular pleading, or after a plea of guilty sets (article 15).’’ up matter inconsistent with the plea, or if it ap- Subsec. (g). Pub. L. 99–661, § 805(b), added subsec. (g). pears that he has entered the plea of guilty im- providently or through lack of understanding of EFFECTIVE DATE OF 2013 AMENDMENT its meaning and effect, or if he fails or refuses to Pub. L. 113–66, div. A, title XVII, § 1703(c), Dec. 26, plead, a plea of not guilty shall be entered in the 2013, 127 Stat. 958, provided that: ‘‘The amendments record, and the court shall proceed as though he made by this section [amending this section] shall take effect on the date of the enactment of this Act [Dec. 26, had pleaded not guilty. 2013], and shall apply with respect to an offense covered (b) A plea of guilty by the accused may not be by section 920(b) or 920b(b) of title 10, United States received to any charge or specification alleging Code (article 120(b) or 120b(b) of the Uniform Code of an offense for which the death penalty may be § 846 TITLE 10—ARMED FORCES Page 472 adjudged. With respect to any other charge or (B) an attempt to commit an offense speci- specification to which a plea of guilty has been fied in a paragraph (1) as punishable under sec- made by the accused and accepted by the mili- tion 880 of this title (article 80). tary judge or by a court-martial without a mili- (c) PROCESS.—Process issued in court-martial tary judge, a finding of guilty of the charge or cases to compel witnesses to appear and testify specification may, if permitted by regulations of and to compel the production of other evidence the Secretary concerned, be entered imme- diately without vote. This finding shall con- shall be similar to that which courts of the stitute the finding of the court unless the plea United States having criminal jurisdiction may of guilty is withdrawn prior to announcement of lawfully issue and shall run to any part of the the sentence, in which event the proceedings United States, or the Commonwealths and pos- shall continue as though the accused had plead- sessions. ed not guilty. (Aug. 10, 1956, ch. 1041, 70A Stat. 53; Pub. L. (Aug. 10, 1956, ch. 1041, 70A Stat. 52; Pub. L. 109–163, div. A, title X, § 1057(a)(6), Jan. 6, 2006, 90–632, § 2(19), Oct. 24, 1968, 82 Stat. 1339.) 119 Stat. 3441; Pub. L. 113–66, div. A, title XVII, § 1704, Dec. 26, 2013, 127 Stat. 958; Pub. L. 113–291, HISTORICAL AND REVISION NOTES div. A, title V, § 531(b), Dec. 19, 2014, 128 Stat. Revised 3363.) section Source (U.S. Code) Source (Statutes at Large) HISTORICAL AND REVISION NOTES 845(a) ...... 50:620(a). May 5, 1950, ch. 169, § 1 845(b) ...... 50:620(b). (Art. 45), 64 Stat. 122. Revised section Source (U.S. Code) Source (Statutes at Large) In subsection (b), the word ‘‘may’’ is substituted for 846 ...... 50:621. May 5, 1950, ch. 169, § 1 the word ‘‘shall’’. (Art. 46), 64 Stat. 122. AMENDMENTS The word ‘‘Commonwealths’’ is inserted to reflect the 1968—Subsec. (a). Pub. L. 90–632, § 2(19)(A), substituted present status of Puerto Rico. ‘‘after arraignment’’ for ‘‘arraigned before a court-mar- tial’’. AMENDMENTS Subsec. (b). Pub. L. 90–632, § 2(19)(B), inserted provi- 2014—Subsec. (a). Pub. L. 113–291, § 531(b)(2), (3)(B), sions covering the making and accepting of a guilty plea to charges or specifications other than charges and substituted ‘‘counsel for the Government’’ for ‘‘trial specifications alleging an offense for which the death counsel’’ and ‘‘counsel for the accused’’ for ‘‘defense penalty may be adjudged. counsel’’. Subsec. (b). Pub. L. 113–291, § 531(b)(3)(A), which di- EFFECTIVE DATE OF 1968 AMENDMENT rected substitution of ‘‘COUNSEL FOR ACCUSED’’ for ‘‘DE- Amendment by Pub. L. 90–632 effective first day of FENSE COUNSEL’’ in heading of section, was executed by tenth month following October 1968, see section 4 of making the substitution in the heading of subsec. (b) to Pub. L. 90–632, set out as a note under section 801 of reflect the probable intent of Congress. this title. Pub. L. 113–291, § 531(b)(2), (3)(B), substituted ‘‘counsel for the Government’’ for ‘‘trial counsel’’ and ‘‘counsel § 846. Art. 46. Opportunity to obtain witnesses for the accused’’ for ‘‘defense counsel’’ wherever ap- and other evidence pearing. Subsec. (b)(1). Pub. L. 113–291, § 531(b)(1), substituted (a) OPPORTUNITY TO OBTAIN WITNESSES AND ‘‘through the Special Victims’ Counsel or other counsel OTHER EVIDENCE.—The counsel for the Govern- for the victim, if applicable’’ for ‘‘through trial coun- ment, the counsel for the accused, and the sel’’. court-martial shall have equal opportunity to 2013—Pub. L. 113–66 designated first sentence as sub- obtain witnesses and other evidence in accord- sec. (a) and second sentence as subsec. (c), inserted ance with such regulations as the President may headings, and added subsec. (b). prescribe. 2006—Pub. L. 109–163 substituted ‘‘Commonwealths and possessions’’ for ‘‘Territories, Commonwealths, and (b) COUNSEL FOR ACCUSED INTERVIEW OF VICTIM possessions’’. OF ALLEGED SEX-RELATED OFFENSE.—(1) Upon notice by counsel for the Government to counsel § 847. Art. 47. Refusal to appear or testify for the accused of the name of an alleged victim of an alleged sex-related offense who counsel for (a) Any person not subject to this chapter the Government intends to call to testify at a who— preliminary hearing under section 832 of this (1) has been duly subpoenaed to appear as a title (article 32) or a court-martial under this witness before a court-martial, military com- chapter, counsel for the accused shall make any mission, court of inquiry, or any other mili- request to interview the victim through the Spe- tary court or board, or before any military or cial Victims’ Counsel or other counsel for the civil officer designated to take a deposition to victim, if applicable. be read in evidence before such a court, com- (2) If requested by an alleged victim of an al- mission, or board, or has been duly issued a leged sex-related offense who is subject to a re- subpoena duces tecum for a preliminary hear- quest for interview under paragraph (1), any ing pursuant to section 832 of this title (article interview of the victim by counsel for the ac- 32); cused shall take place only in the presence of (2) has been provided a means for reimburse- counsel for the Government, a counsel for the ment from the Government for fees and mile- victim, or a Sexual Assault Victim Advocate. age at the rates allowed to witnesses attend- (3) In this subsection, the term ‘‘alleged sex- ing the courts of the United States or, in the related offense’’ means any allegation of— case of extraordinary hardship, is advanced (A) a violation of section 920, 920a, 920b, 920c, such fees and mileage; and or 925 of this title (article 120, 120a, 120b, 120c, (3) willfully neglects or refuses to appear, or or 125); or refuses to qualify as a witness or to testify or Page 473 TITLE 10—ARMED FORCES § 848

to produce any evidence which that person 1996—Subsec. (b). Pub. L. 104–106 inserted ‘‘indictment may have been legally subpoenaed to produce; or’’ after ‘‘shall be tried on’’ and substituted ‘‘shall be fined or imprisoned, or both, at the court’s discretion’’ is guilty of an offense against the United States. for ‘‘shall be punished by a fine of not more than $500, (b) Any person who commits an offense named or imprisonment for not more than six months, or in subsection (a) shall be tried on indictment or both’’. information in a United States district court or EFFECTIVE DATE OF 2013 AMENDMENT in a court of original criminal jurisdiction in any of the Commonwealths or possessions of the Amendment by Pub. L. 113–66 effective on the later of United States, and jurisdiction is conferred upon Dec. 26, 2014, or the date of the enactment of the Carl Levin and Howard P. ‘‘Buck’’ McKeon National Defense those courts for that purpose. Upon conviction, Authorization Act for Fiscal Year 2015 (Dec. 19, 2014) such a person shall be fined or imprisoned, or and applicable with respect to preliminary hearings both, at the court’s discretion. conducted on or after that effective date, see section (c) The United States attorney or the officer 1702(d)(1) of Pub. L. 113–66, set out as a note under sec- prosecuting for the United States in any such tion 802 of this title. court of original criminal jurisdiction shall, EFFECTIVE DATE OF 2011 AMENDMENT upon the certification of the facts to him by the military court, commission, court of inquiry, Pub. L. 112–81, div. A, title V, § 542(c), Dec. 31, 2011, 125 Stat. 1411, provided that: ‘‘The amendments made by board, or convening authority, file an informa- subsection (a) [amending this section] shall apply with tion against and prosecute any person violating respect to subpoenas issued after the date of the enact- this article. ment of this Act [Dec. 31, 2011].’’ (d) The fees and mileage of witnesses shall be advanced or paid out of the appropriations for § 848. Art. 48. Contempts the compensation of witnesses. (a) AUTHORITY TO PUNISH CONTEMPT.—A judge (Aug. 10, 1956, ch. 1041. 70A Stat. 53; Pub. L. detailed to a court-martial, a court of inquiry, 104–106, div. A, title XI, § 1111, Feb. 10, 1996, 110 the United States Court of Appeals for the Stat. 461; Pub. L. 109–163, div. A, title X, Armed Forces, a military Court of Criminal Ap- § 1057(a)(5), Jan. 6, 2006, 119 Stat. 3440; Pub. L. peals, a provost court, or a military commission 112–81, div. A, title V, § 542(a), (b), Dec. 31, 2011, may punish for contempt any person who— 125 Stat. 1411; Pub. L. 113–66, div. A, title XVII, (1) uses any menacing word, sign, or gesture § 1702(c)(3)(D), Dec. 26, 2013, 127 Stat. 958.) in the presence of the judge during the pro- ceedings of the court-martial, court, or mili- HISTORICAL AND REVISION NOTES tary commission; Revised (2) disturbs the proceedings of the court- section Source (U.S. Code) Source (Statutes at Large) martial, court, or military commission by any 847(a) ...... 50:622(a). May 5, 1950, ch. 169, § 1 riot or disorder; or 847(b) ...... 50:622(b). (Art. 47), 64 Stat. 123. (3) willfully disobeys the lawful writ, proc- 847(c) ...... 50:622(c). ess, order, rule, decree, or command of the 847(d) ...... 50:622(d). court-martial, court, or military commission. In subsection (a), the word ‘‘Any’’ is substituted for (b) PUNISHMENT.—The punishment for con- the word ‘‘Every’’. The word ‘‘is’’ is substituted for the tempt under subsection (a) may not exceed con- words ‘‘shall be deemed’’. In subsection (b), the words ‘‘named in subsection finement for 30 days, a fine of $1,000, or both. (a)’’ are substituted for the words ‘‘denounced by this (c) INAPPLICABILITY TO MILITARY COMMISSIONS article’’. The words ‘‘Territories, Commonwealths, or’’ UNDER CHAPTER 47A.—This section does not are substituted for the word ‘‘Territorial’’. The words apply to a military commission established ‘‘not more than’’ are substituted for the words ‘‘a pe- under chapter 47A of this title. riod not exceeding’’. In subsection (c), the words ‘‘It shall be the duty of (Aug. 10, 1956, ch. 1041, 70A Stat. 53; Pub. L. * * * to’’ are omitted as surplusage. The words ‘‘United 109–366, § 4(a)(2), Oct. 17, 2006, 120 Stat. 2631; Pub. States Attorney’’ are substituted for the words ‘‘United L. 111–383, div. A, title V, § 542(a), Jan. 7, 2011, 124 States district attorney’’, to conform to the terminol- Stat. 4218.) ogy of section 501 of title 28. The word ‘‘shall’’ is in- serted after the word ‘‘jurisdiction’’. HISTORICAL AND REVISION NOTES

AMENDMENTS Revised section Source (U.S. Code) Source (Statutes at Large) 2013—Subsec. (a)(1). Pub. L. 113–66 substituted ‘‘a pre- liminary hearing pursuant to section 832 of this title 848 ...... 50:623. May 5, 1950, ch. 169, § 1 (article 32)’’ for ‘‘an investigation pursuant to section (Art. 48), 64 Stat. 123. 832(b) of this title (article 32(b))’’. 2011—Subsec. (a). Pub. L. 112–81, § 542(b), substituted The word ‘‘may’’ is substituted for the word ‘‘shall’’. ‘‘subpoenaed’’ for ‘‘subpenaed’’ in two places. AMENDMENTS Subsec. (a)(1). Pub. L. 112–81, § 542(a)(1)(A), sub- stituted ‘‘board, or has been duly issued a subpoena 2011—Pub. L. 111–383 amended section generally. Prior duces tecum for an investigation pursuant to section to amendment, text read as follows: ‘‘A court-martial, 832(b) of this title (article 32(b));’’ for ‘‘board;’’. provost court, or military commission may punish for Subsec. (a)(2). Pub. L. 112–81, § 542(a)(1)(B), substituted contempt any person who uses any menacing word, ‘‘provided a means for reimbursement from the Govern- sign, or gesture in its presence, or who disturbs its pro- ment for fees and mileage’’ for ‘‘duly paid or tendered ceedings by any riot or disorder. The punishment may the fees and mileage of a witness’’ and inserted ‘‘or, in not exceed confinement for 30 days or a fine of $100, or the case of extraordinary hardship, is advanced such both. This section does not apply to a military commis- fees and mileage’’ before semicolon. sion established under chapter 47A of this title.’’ Subsec. (c). Pub. L. 112–81, § 542(a)(2), substituted 2006—Pub. L. 109–366 inserted last sentence. ‘‘board, or convening authority’’ for ‘‘or board’’. 2006—Subsec. (b). Pub. L. 109–163 substituted ‘‘Com- EFFECTIVE DATE OF 2011 AMENDMENT monwealths or possessions’’ for ‘‘Territories, Common- Pub. L. 111–383, div. A, title V, § 542(b), Jan. 7, 2011, 124 wealths, or possessions’’. Stat. 4218, provided that: ‘‘Section 848 of title 10, United § 849 TITLE 10—ARMED FORCES Page 474

States Code (article 48 of the Uniform Code of Military the convening authority directs that the case be Justice), as amended by subsection (a), shall apply with treated as not capital, and in such a case a sen- respect to acts of contempt committed after the date of tence of death may not be adjudged by the the enactment of this Act [Jan. 7, 2011].’’ court-martial. § 849. Art. 49. Depositions (Aug. 10, 1956, ch. 1041, 70A Stat. 53; Pub. L. (a)(1) At any time after charges have been 90–632, § 2(20), Oct. 24, 1968, 82 Stat. 1340; Pub. L. signed as provided in section 830 of this title (ar- 98–209, § 6(b), Dec. 6, 1983, 97 Stat. 1400; Pub. L. ticle 30), oral or written depositions may be or- 109–163, div. A, title X, § 1057(a)(3), Jan. 6, 2006, dered as follows: 119 Stat. 3440; Pub. L. 113–291, div. A, title V, (A) Before referral of such charges for trial, § 532, Dec. 19, 2014, 128 Stat. 3366.) by the convening authority who has such HISTORICAL AND REVISION NOTES charges for disposition. (B) After referral of such charges for trial, Revised Source (U.S. Code) Source (Statutes at Large) by the convening authority or the military section judge hearing the case. 849(a) ...... 50:624(a). May 5, 1950, ch. 169, § 1 849(b) ...... 50:624(b). (Art. 49), 64 Stat. 123. (2) An authority authorized to order a deposi- 849(c) ...... 50:624(c). 849(d) ...... 50:624(d). tion under paragraph (1) may order the deposi- 849(e) ...... 50:624(e). tion at the request of any party, but only if the 849(f) ...... 50:624(f). party demonstrates that, due to exceptional cir- cumstances, it is in the interest of justice that In subsection (a), the word ‘‘commissioned’’ is in- serted for clarity. the testimony of the prospective witness be In subsection (d), the word ‘‘Commonwealth’’ is in- taken and preserved for use at a preliminary serted to reflect the present status of Puerto Rico. The hearing under section 832 of this title (article 32) words ‘‘of Columbia’’ are inserted after the word ‘‘Dis- or a court-martial. trict’’ for clarity. The words ‘‘the distance of’’ are (3) If a deposition is to be taken before charges omitted as surplusage. are referred for trial, the authority under para- In subsections (e) and (f), the words ‘‘the require- graph (1)(A) may designate commissioned offi- ments of’’ and the words ‘‘of this article’’ are omitted cers as counsel for the Government and counsel as surplusage. The word ‘‘presented’’ is substituted for the word ‘‘adduced’’ in subsection (e). for the accused, and may authorize those offi- In subsection (f), the word ‘‘directs’’ is substituted for cers to take the deposition of any witness. the words ‘‘shall have directed’’. The words ‘‘by law’’ (b) The party at whose instance a deposition is are omitted as surplusage. to be taken shall give to every other party rea- sonable written notice of the time and place for AMENDMENTS taking the deposition. 2014—Subsec. (a). Pub. L. 113–291 amended subsec. (a) (c) Depositions may be taken before and au- generally. Prior to amendment, subsec. (a) read as fol- thenticated by any military or civil officer au- lows: ‘‘At any time after charges have been signed as thorized by the laws of the United States or by provided in section 830 of this title (article 30), any the laws of the place where the deposition is party may take oral or written depositions unless the taken to administer oaths. military judge or court-martial without a military judge hearing the case or, if the case is not being heard, (d) A duly authenticated deposition taken an authority competent to convene a court-martial for upon reasonable notice to the other parties, so the trial of those charges forbids it for good cause. If a far as otherwise admissible under the rules of deposition is to be taken before charges are referred for evidence, may be read in evidence or, in the case trial, such an authority may designate commissioned of audiotape, videotape, or similar material, officers to represent the prosecution and the defense may be played in evidence before any military and may authorize those officers to take the deposition court or commission in any case not capital, or of any witness.’’ in any proceeding before a court of inquiry or 2006—Subsec. (d)(1). Pub. L. 109–163 struck out ‘‘Terri- tory,’’ after ‘‘State,’’. military board, if it appears— 1983—Subsecs. (d), (f). Pub. L. 98–209 inserted ‘‘or, in (1) that the witness resides or is beyond the the case of audiotape, videotape, or similar material, State, Commonwealth, or District of Columbia may be played in evidence’’ after ‘‘read in evidence’’. in which the court, commission, or board is or- 1968—Subsec. (a). Pub. L. 90–632 inserted reference to dered to sit, or beyond 100 miles from the the taking of depositions being forbidden by the mili- place of trial or hearing; tary judge or the court-martial without a military (2) that the witness by reason of death, age, judge if the case is being heard. sickness, bodily infirmity, imprisonment, EFFECTIVE DATE OF 1983 AMENDMENT military necessity, nonamenability to process, or other reasonable cause, is unable or refuses Amendment by Pub. L. 98–209 effective on first day of to appear and testify in person at the place of eighth calendar month beginning after Dec. 6, 1983, but not to apply to any case in which the findings and sen- trial or hearing; or tence were adjudged by a court-martial before that (3) that the present whereabouts of the wit- date, and the proceedings in any such case to be held ness is unknown. in the same manner and with the same effect as if such (e) Subject to subsection (d), testimony by amendments had not been enacted, see section 12(a)(1), (4) of Pub. L. 98–209, set out as a note under section 801 deposition may be presented by the defense in of this title. capital cases. (f) Subject to subsection (d), a deposition may EFFECTIVE DATE OF 1968 AMENDMENT be read in evidence or, in the case of audiotape, Amendment by Pub. L. 90–632 effective first day of videotape, or similar material, may be played in tenth month following October 1968, see section 4 of evidence in any case in which the death penalty Pub. L. 90–632, set out as a note under section 801 of is authorized but is not mandatory, whenever this title. Page 475 TITLE 10—ARMED FORCES § 851

§ 850. Art. 50. Admissibility of records of courts of fense is properly at issue, the military judge inquiry shall find the accused— (1) guilty; (a) In any case not capital and not extending (2) not guilty; or to the dismissal of a commissioned officer, the (3) not guilty only by reason of lack of men- sworn testimony, contained in the duly authen- tal responsibility. ticated record of proceedings of a court of in- quiry, of a person whose oral testimony cannot (e) Notwithstanding the provisions of section be obtained, may, if otherwise admissible under 852 of this title (article 52), the accused shall be the rules of evidence, be read in evidence by any found not guilty only by reason of lack of men- party before a court-martial or military com- tal responsibility if— mission if the accused was a party before the (1) a majority of the members of the court- court of inquiry and if the same issue was in- martial present at the time the vote is taken volved or if the accused consents to the intro- determines that the defense of lack of mental duction of such evidence. This section does not responsibility has been established; or apply to a military commission established (2) in the case of a court-martial composed under chapter 47A of this title. of a military judge only, the military judge (b) Such testimony may be read in evidence determines that the defense of lack of mental only by the defense in capital cases or cases ex- responsibility has been established. tending to the dismissal of a commissioned offi- (Added Pub. L. 99–661, div. A, title VIII, cer. § 802(a)(1), Nov. 14, 1986, 100 Stat. 3905.) (c) Such testimony may also be read in evi- dence before a court of inquiry or a military EFFECTIVE DATE board. Pub. L. 99–661, div. A, title VIII, § 802(b), Nov. 14, 1986, (Aug. 10, 1956, ch. 1041, 70A Stat. 54; Pub. L. 100 Stat. 3906, provided that: ‘‘Section 850a of title 10, United States Code, as added by subsection (a)(1), shall 109–366, § 4(a)(2), Oct. 17, 2006, 120 Stat. 2631.) apply only to offenses committed on or after the date HISTORICAL AND REVISION NOTES of the enactment of this Act [Nov. 14, 1986].’’

Revised § 851. Art. 51. Voting and rulings section Source (U.S. Code) Source (Statutes at Large) (a) Voting by members of a general or special 850(a) ...... 50:625(a). May 5, 1950, ch. 169, § 1 850(b) ...... 50:625(b). (Art. 50), 64 Stat. 124. court-martial on the findings and on the sen- 850(c) ...... 50:625(c). tence, and by members of a court-martial with- out a military judge upon questions of chal- In subsections (a) and (b), the word ‘‘commissioned’’ lenge, shall be by secret written ballot. The jun- is inserted for clarity. ior member of the court shall count the votes. AMENDMENTS The count shall be checked by the president, 2006—Subsec. (a). Pub. L. 109–366 inserted last sen- who shall forthwith announce the result of the tence. ballot to the members of the court. (b) The military judge and, except for ques- § 850a. Art. 50a. Defense of lack of mental respon- tions of challenge, the president of a court-mar- sibility tial without a military judge shall rule upon all questions of law and all interlocutory questions (a) It is an affirmative defense in a trial by arising during the proceedings. Any such ruling court-martial that, at the time of the commis- made by the military judge upon any question of sion of the acts constituting the offense, the ac- law or any interlocutory question other than cused, as a result of a severe mental disease or the factual issue of mental responsibility of the defect, was unable to appreciate the nature and accused, or by the president of a court-martial quality or the wrongfulness of the acts. Mental without a military judge upon any question of disease or defect does not otherwise constitute a law other than a motion for a finding of not defense. guilty, is final and constitutes the ruling of the (b) The accused has the burden of proving the court. However, the military judge or the presi- defense of lack of mental responsibility by clear dent of a court-martial without a military judge and convincing evidence. may change his ruling at any time during trial. (c) Whenever lack of mental responsibility of Unless the ruling is final, if any member objects the accused with respect to an offense is prop- thereto, the court shall be cleared and closed erly at issue, the military judge, or the presi- and the question decided by a voice vote as pro- dent of a court-martial without a military vided in section 852 of this title (article 52), be- judge, shall instruct the members of the court ginning with the junior in rank. as to the defense of lack of mental responsibility (c) Before a vote is taken on the findings, the under this section and charge them to find the military judge or the president of a court-mar- accused— tial without a military judge shall, in the pres- (1) guilty; ence of the accused and counsel, instruct the (2) not guilty; or members of the court as to the elements of the (3) not guilty only by reason of lack of men- offense and charge them— tal responsibility. (1) that the accused must be presumed to be (d) Subsection (c) does not apply to a court- innocent until his guilt is established by legal martial composed of a military judge only. In and competent evidence beyond reasonable the case of a court-martial composed of a mili- doubt; tary judge only, whenever lack of mental re- (2) that in the case being considered, if there sponsibility of the accused with respect to an of- is a reasonable doubt as to the guilt of the ac- § 852 TITLE 10—ARMED FORCES Page 476

cused, the doubt must be resolved in favor of (2) No person may be convicted of any other the accused and he must be acquitted; offense, except as provided in section 845(b) of (3) that, if there is a reasonable doubt as to this title (article 45(b)) or by the concurrence of the degree of guilt, the finding must be in a two-thirds of the members present at the time lower degree as to which there is no reason- the vote is taken. able doubt; and (b)(1) No person may be sentenced to suffer (4) that the burden of proof to establish the death, except by the concurrence of all the guilt of the accused beyond reasonable doubt members of the court-martial present at the is upon the United States. time the vote is taken and for an offense in this chapter expressly made punishable by death. (d) Subsections (a), (b), and (c) do not apply to (2) No person may be sentenced to life impris- a court-martial composed of a military judge onment or to confinement for more than ten only. The military judge of such a court-martial years, except by the concurrence of three- shall determine all questions of law and fact fourths of the members present at the time the arising during the proceedings and, if the ac- vote is taken. cused is convicted, adjudge an appropriate sen- (3) All other sentences shall be determined by tence. The military judge of such a court-mar- the concurrence of two-thirds of the members tial shall make a general finding and shall in ad- present at the time the vote is taken. dition on request find the facts specially. If an (c) All other questions to be decided by the opinion or memorandum of decision is filed, it members of a general or special court-martial will be sufficient if the findings of fact appear shall be determined by a majority vote, but a therein. determination to reconsider a finding of guilty (Aug. 10, 1956, ch. 1041, 70A Stat. 54; Pub. L. or to reconsider a sentence, with a view toward 90–632, § 2(21), Oct. 24, 1968, 82 Stat. 1340.) decreasing it, may be made by any lesser vote which indicates that the reconsideration is not HISTORICAL AND REVISION NOTES opposed by the number of votes required for that Revised finding or sentence. A tie vote on a challenge section Source (U.S. Code) Source (Statutes at Large) disqualifies the member challenged. A tie vote 851(a) ...... 50:626(a). May 5, 1950, ch. 169, § 1 on a motion for a finding of not guilty or on a 851(b) ...... 50:626(b). (Art. 51), 64 Stat. 124. motion relating to the question of the accused’s 851(c) ...... 50:626(c). sanity is a determination against the accused. A In subsection (a), the words ‘‘in each case’’ are omit- tie vote on any other question is a determina- ted as surplusage. tion in favor of the accused. In subsection (b), the word ‘‘is’’ is substituted for the (Aug. 10, 1956, ch. 1041, 70A Stat. 55; Pub. L. words ‘‘shall be’’ in the second sentence. The word 90–632, § 2(22), Oct. 24, 1968, 82 Stat. 1340.) ‘‘constitutes’’ is substituted for the words ‘‘shall con- stitute’’. The word ‘‘However,’’ is substituted for the HISTORICAL AND REVISION NOTES word ‘‘but’’. The word ‘‘his’’ is substituted for the Revised words ‘‘any such’’. The words ‘‘the ruling is’’ are sub- Source (U.S. Code) Source (Statutes at Large) stituted for the words ‘‘such ruling be’’. The words section ‘‘voice vote’’ are substituted for the words ‘‘vote * * * 852(a) ...... 50:627(a). May 5, 1950, ch. 169, § 1 viva voce’’. 852(b) ...... 50:627(b) (Art. 52), 64 Stat. 125. In subsection (c), the word ‘‘must’’ is substituted for 852(c) ...... 50:627(c). the word ‘‘shall’’ in clause (2), since a condition is pre- scribed, not a command. The words ‘‘United States’’ In subsections (a) and (b), the word ‘‘may’’ is sub- are substituted for the word ‘‘Government’’. stituted for the word ‘‘shall’’. In subsection (b)(2), the words ‘‘for more than’’ are AMENDMENTS substituted for the words ‘‘in excess of’’. In subsection (c), the word ‘‘disqualifies’’ is sub- 1968—Subsec. (a). Pub. L. 90–632, § 2(21)(A), limited the stituted for the words ‘‘shall disqualify’’. The word ‘‘is’’ balloting on the question of challenges to courts-mar- is substituted for the words ‘‘shall be’’ in the last two tial without military judges. sentences. Subsec. (b). Pub. L. 90–632, § 2(21)(B), substituted ‘‘military judge’’ for ‘‘law officer’’ and inserted ref- AMENDMENTS erence to the military judge’s ruling upon challenges 1968—Subsec. (a)(2). Pub. L. 90–632, § 2(22)(A), inserted for cause when a military judge is part of a court-mar- reference to the exception provided in section 845(b) of tial and reference to questions of law. this title (article 45(b)). Subsec. (c). Pub. L. 90–632, § 2(21)(C), substituted Subsec. (c). Pub. L. 90–632, § 2(22)(B), provided that a ‘‘military judge’’ for ‘‘law officer’’ and made minor determination to reconsider a finding of guilty or to re- changes in phraseology eliminating the division be- consider a sentence, with a view toward decreasing it, tween general and special court-martials. may be made by a vote of less than a majority vote Subsec. (d). Pub. L. 90–632, § 2(21)(D), added subsec. (d). which indicates that the reconsideration is not opposed EFFECTIVE DATE OF 1968 AMENDMENT by the number of votes required for that finding or sen- tence. Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of EFFECTIVE DATE OF 1968 AMENDMENT Pub. L. 90–632, set out as a note under section 801 of Amendment by Pub. L. 90–632 effective first day of this title. tenth month following October 1968, see section 4 of § 852. Art. 52. Number of votes required Pub. L. 90–632, set out as a note under section 801 of this title. (a)(1) No person may be convicted of an offense § 853. Art. 53. Court to announce action for which the death penalty is made mandatory by law, except by the concurrence of all the A court-martial shall announce its findings members of the court-martial present at the and sentence to the parties as soon as deter- time the vote is taken. mined. Page 477 TITLE 10—ARMED FORCES § 854

(Aug. 10, 1956, ch. 1041, 70A Stat. 56.) HISTORICAL AND REVISION NOTES

HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) Revised section Source (U.S. Code) Source (Statutes at Large) 854(a) ...... 50:629(a). May 5, 1950, ch. 169, § 1 854(b) ...... 50:629(b). (Art. 54), 64 Stat. 125. 854(c) ...... 50:629(c). 853 ...... 50:628. May 5, 1950, ch. 169, § 1 (Art. 53), 64 Stat. 125. In subsection (a), the word ‘‘If’’ is substituted for the The word ‘‘A’’ is substituted for the word ‘‘Every’’. words ‘‘In case’’. The words ‘‘any of those’’ are sub- stituted for the word ‘‘such’’ in the last sentence. In subsection (b), the words ‘‘and the’’ are substituted § 854. Art. 54. Record of trial for the word ‘‘which’’ before the word ‘‘record’’. The words ‘‘the matter and shall be authenticated in the (a) Each general court-martial shall keep a manner required by such regulations as’’ are sub- separate record of the proceedings in each case stituted for the words ‘‘such matter and be authenti- brought before it, and the record shall be au- cated in such manner as may be required by regula- thenticated by the signature of the military tions which’’. judge. If the record cannot be authenticated by In subsection (c), the words ‘‘it is’’ are inserted before the military judge by reason of his death, dis- the word ‘‘authenticated’’. ability, or absence, it shall be authenticated by AMENDMENTS the signature of the trial counsel or by that of 2011—Subsec. (e). Pub. L. 112–81 added subsec. (e). a member if the trial counsel is unable to au- 2000—Subsec. (c)(1)(B). Pub. L. 106–398 inserted thenticate it by reason of his death, disability, ‘‘, confinement for more than six months, or forfeiture or absence. In a court-martial consisting of only of pay for more than six months’’ after ‘‘bad-conduct a military judge the record shall be authenti- discharge’’. cated by the court reporter under the same con- 1983—Subsec. (a). Pub. L. 98–209, § 6(c)(1), struck out ditions which would impose such a duty on a provision that if the proceedings had resulted in an ac- member under this subsection. quittal of all charges and specifications or, if not af- fecting a general or flag officer, in a sentence not in- (b) Each special and summary court-martial cluding discharge and not in excess of that which could shall keep a separate record of the proceedings otherwise be adjudged by a special court-martial, the in each case, and the record shall be authenti- record had to contain such matters as might be pre- cated in the manner required by such regula- scribed by regulations of the President. tions as the President may prescribe. Subsec. (b). Pub. L. 98–209, § 6(c)(2), substituted ‘‘the (c)(1) A complete record of the proceedings and record’’ for ‘‘the record shall contain the matter and’’. testimony shall be prepared— Subsecs. (c), (d). Pub. L. 98–209, § 6(c)(3), (4), added (A) in each general court-martial case in subsec. (c) and redesignated former subsec. (c) as (d). 1968—Subsec. (a). Pub. L. 90–632 provided for authen- which the sentence adjudged includes death, a tication of a record of trial by general court-martial by dismissal, a discharge, or (if the sentence ad- the signature of the military judge, for alternate meth- judged does not include a discharge) any other ods of authentication if the military judge for specified punishment which exceeds that which may reasons is unable to authenticate it, for authentication otherwise be adjudged by a special court-mar- when a court-martial consists only of a military judge, tial; and and for summarized records of trial in specified cases. (B) in each special court-martial case in EFFECTIVE DATE OF 2000 AMENDMENT which the sentence adjudged includes a bad- conduct discharge, confinement for more than Pub. L. 106–398, § 1 [[div. A], title V, § 555(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–127, provided that: ‘‘The six months, or forfeiture of pay for more than amendment made by subsection (a) [amending this sec- six months. tion] shall take effect as of April 1, 2000, and shall apply (2) In all other court-martial cases, the record with respect to charges referred on or after that date to shall contain such matters as may be prescribed trial by special court-martial.’’ by regulations of the President. EFFECTIVE DATE OF 1983 AMENDMENT (d) A copy of the record of the proceedings of Amendment by Pub. L. 98–209 effective first day of each general and special court-martial shall be eighth calendar month beginning after Dec. 6, 1983, but given to the accused as soon as it is authenti- not to apply to any case in which the findings and sen- cated. tence were adjudged by a court-martial before that (e) In the case of a general or special court- date, and the proceedings in any such case to be held martial involving a sexual assault or other of- in the same manner and with the same effect as if such fense covered by section 920 of this title (article amendments had not been enacted, see section 12(a)(1), (4) of Pub. L. 98–209, set out as a note under section 801 120), a copy of all prepared records of the pro- of this title. ceedings of the court-martial shall be given to the victim of the offense if the victim testified EFFECTIVE DATE OF 1968 AMENDMENT during the proceedings. The records of the pro- Amendment by Pub. L. 90–632 effective first day of ceedings shall be provided without charge and as tenth month following October 1968, see section 4 of soon as the records are authenticated. The vic- Pub. L. 90–632, set out as a note under section 801 of tim shall be notified of the opportunity to re- this title. ceive the records of the proceedings. SUBCHAPTER VIII—SENTENCES (Aug. 10, 1956, ch. 1041, 70A Stat. 56; Pub. L. 90–632, § 2(23), Oct. 24, 1968, 82 Stat. 1340; Pub. L. Sec. Art. 855. 55. Cruel and unusual punishments prohib- 98–209, § 6(c), Dec. 6, 1983, 97 Stat. 1400; Pub. L. ited. 106–398, § 1 [[div. A], title V, § 555(a)], Oct. 30, 2000, 856. 56. Maximum and minimum limits. 114 Stat. 1654, 1654A–127; Pub. L. 112–81, div. A, 856a. 56a. Sentence of confinement for life without title V, § 586(e), Dec. 31, 2011, 125 Stat. 1435.) eligibility for parole. § 855 TITLE 10—ARMED FORCES Page 478

Sec. Art. HISTORICAL AND REVISION NOTES 857. 57. Effective date of sentences. Revised 857a. 57a. Deferment of sentences. section Source (U.S. Code) Source (Statutes at Large) 858. 58. Execution of confinement. 858a. 58a. Sentences: reduction in enlisted grade 856 ...... 50:637. May 5, 1950, ch. 169, § 1 upon approval. (Art. 56), 64 Stat. 126. 858b. 58b. Sentences: forfeiture of pay and allow- ances during confinement. The word ‘‘may’’ is substituted for the word ‘‘shall’’. AMENDMENTS AMENDMENTS 2013—Pub. L. 113–66 substituted ‘‘Maximum and mini- 2013—Pub. L. 113–66, div. A, title XVII, § 1705(a)(2)(B), mum limits’’ for ‘‘Maximum limits’’ in section catch- Dec. 26, 2013, 127 Stat. 959, substituted ‘‘Maximum and line, designated existing provisions as subsec. (a), and minimum limits’’ for ‘‘Maximum limits’’ in item 856. added subsec. (b). 1997—Pub. L. 105–85, div. A, title V, § 581(a)(2), Nov. 18, EFFECTIVE DATE OF 2013 AMENDMENT 1997, 111 Stat. 1760, added item 856a. 1996—Pub. L. 104–106, div. A, title XI, §§ 1122(a)(2), Amendment by Pub. L. 113–66 effective 180 days after 1123(b), Feb. 10, 1996, 110 Stat. 463, 464, added items 857a Dec. 26, 2013, and applicable to offenses specified in sub- and 858b. sec. (b)(2) of this section committed on or after that 1960—Pub. L. 86–633, § 1(2), July 12, 1960, 74 Stat. 468, date, see section 1705(c) of Pub. L. 113–66, set out as a added item 858a. note under section 818 of this title. § 856a. Art. 56a. Sentence of confinement for life § 855. Art. 55. Cruel and unusual punishments without eligibility for parole prohibited (a) For any offense for which a sentence of Punishment by flogging, or by branding, confinement for life may be adjudged, a court- marking, or tattooing on the body, or any other martial may adjudge a sentence of confinement cruel or unusual punishment, may not be ad- for life without eligibility for parole. judged by any court-martial or inflicted upon (b) An accused who is sentenced to confine- any person subject to this chapter. The use of ment for life without eligibility for parole shall irons, single or double, except for the purpose of be confined for the remainder of the accused’s safe custody, is prohibited. life unless— (1) the sentence is set aside or otherwise (Aug. 10, 1956, ch. 1041, 70A Stat. 56.) modified as a result of— HISTORICAL AND REVISION NOTES (A) action taken by the convening author- ity, the Secretary concerned, or another per- Revised section Source (U.S. Code) Source (Statutes at Large) son authorized to act under section 860 of this title (article 60); or 855 ...... 50:636. May 5, 1950, ch. 169, § 1 (Art. 55), 64 Stat. 126. (B) any other action taken during post- trial procedure and review under any other The word ‘‘may’’ is substituted for the word ‘‘shall’’. provision of subchapter IX; (2) the sentence is set aside or otherwise § 856. Art. 56. Maximum and minimum limits modified as a result of action taken by a Court of Criminal Appeals, the Court of Appeals for (a) The punishment which a court-martial the Armed Forces, or the Supreme Court; or may direct for an offense may not exceed such (3) the accused is pardoned. limits as the President may prescribe for that offense. (Added Pub. L. 105–85, div. A, title V, § 581(a)(1), (b)(1) While a person subject to this chapter Nov. 18, 1997, 111 Stat. 1759.) who is found guilty of an offense specified in EFFECTIVE DATE paragraph (2) shall be punished as a general Pub. L. 105–85, div. A, title V, § 581(b), Nov. 18, 1997, 111 court-martial may direct, such punishment Stat. 1760, provided that: ‘‘Section 856a of title 10, must include, at a minimum, dismissal or dis- United States Code (article 56a of the Uniform Code of honorable discharge, except as provided for in Military Justice), as added by subsection (a), shall be section 860 of this title (article 60). applicable only with respect to an offense committed (2) Paragraph (1) applies to the following of- after the date of the enactment of this Act [Nov. 18, fenses: 1997].’’ (A) An offense in violation of subsection (a) § 857. Art. 57. Effective date of sentences or (b) of section 920 of this title (article 120(a) or (b)). (a)(1) Any forfeiture of pay or allowances or (B) Rape and sexual assault of a child under reduction in grade that is included in a sentence subsection (a) or (b) of section 920b of this title of a court-martial takes effect on the earlier (article 120b). of— (C) Forcible sodomy under section 925 of this (A) the date that is 14 days after the date on title (article 125). which the sentence is adjudged; or (D) An attempt to commit an offense speci- (B) the date on which the sentence is ap- fied in subparagraph (A), (B), or (C) that is proved by the convening authority. punishable under section 880 of this title (arti- (2) On application by an accused, the conven- cle 80). ing authority may defer a forfeiture of pay or al- (Aug. 10, 1956, ch. 1041, 70A Stat. 56; Pub. L. lowances or reduction in grade that would other- 113–66, div. A, title XVII, § 1702(a)(1), (2)(A), Dec. wise become effective under paragraph (1)(A) 26, 2013, 127 Stat. 959.) until the date on which the sentence is approved Page 479 TITLE 10—ARMED FORCES § 857a by the convening authority. Such a deferment subsection (a) [amending this section] shall apply to a may be rescinded at any time by the convening case in which a sentence is adjudged by a court-martial authority. on or after the first day of the first month that begins (3) A forfeiture of pay or allowances shall be at least 30 days after the date of the enactment of this Act [Feb. 10, 1996].’’ applicable to pay and allowances accruing on and after the date on which the sentence takes EFFECTIVE DATE OF 1992 AMENDMENT effect. Amendment by Pub. L. 102–484 effective Oct. 23, 1992, (4) In this subsection, the term ‘‘convening au- and applicable with respect to offenses committed on thority’’, with respect to a sentence of a court- or after that date, see section 1067 of Pub. L. 102–484, set martial, means any person authorized to act on out as a note under section 803 of this title. the sentence under section 860 of this title (arti- EFFECTIVE DATE OF 1983 AMENDMENT cle 60). (b) Any period of confinement included in a Amendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, but sentence of a court-martial begins to run from not to apply to any case in which the findings and sen- the date the sentence is adjudged by the court- tence were adjudged by a court-martial before that martial, but periods during which the sentence date, and the proceedings in any such case to be held to confinement is suspended or deferred shall be in the same manner and with the same effect as if such excluded in computing the service of the term of amendments had not been enacted, see section 12(a)(1), confinement. (4) of Pub. L. 98–209, set out as a note under section 801 (c) All other sentences of courts-martial are of this title. effective on the date ordered executed. EFFECTIVE DATE OF 1968 AMENDMENT (Aug. 10, 1956, ch. 1041, 70A Stat. 56; Pub. L. Amendment by Pub. L. 90–632 effective first day of 90–632, § 2(24), Oct. 24, 1968, 82 Stat. 1341; Pub. L. tenth month following October 1968, see section 4 of 98–209, § 5(f), Dec. 6, 1983, 97 Stat. 1400; Pub. L. Pub. L. 90–632, set out as a note under section 801 of 102–484, div. A, title X, § 1064, Oct. 23, 1992, 106 this title. Stat. 2505; Pub. L. 104–106, div. A, title XI, § 857a. Art. 57a. Deferment of sentences §§ 1121(a), 1123(a)(1), (2), Feb. 10, 1996, 110 Stat. 462–464.) (a) On application by an accused who is under sentence to confinement that has not been or- HISTORICAL AND REVISION NOTES dered executed, the convening authority or, if the accused is no longer under his jurisdiction, Revised section Source (U.S. Code) Source (Statutes at Large) the officer exercising general court-martial ju- risdiction over the command to which the ac- 857(a) ...... 50:638(a). May 5, 1950, ch. 169, § 1 857(b) ...... 50:638(b). (Art. 57), 64 Stat. 126. cused is currently assigned, may in his sole dis- 857(c) ...... 50:638(c). cretion defer service of the sentence to confine- ment. The deferment shall terminate when the In subsection (a), the word ‘‘may’’ is substituted for the word ‘‘shall’’. sentence is ordered executed. The deferment In subsection (b), the word ‘‘begins’’ is substituted for may be rescinded at any time by the officer who the words ‘‘shall begin’’. granted it or, if the accused is no longer under In subsection (c), the word ‘‘are’’ is substituted for his jurisdiction, by the officer exercising general the words ‘‘shall become’’. court-martial jurisdiction over the command to AMENDMENTS which the accused is currently assigned. (b)(1) In any case in which a court-martial sen- 1996—Subsec. (a). Pub. L. 104–106, § 1121(a), amended tences a person referred to in paragraph (2) to subsec. (a) generally. Prior to amendment, subsec. (a) confinement, the convening authority may defer read as follows: ‘‘No forfeiture may extend to any pay or allowances accrued before the date on which the sen- the service of the sentence to confinement, tence is approved by the person acting under section without the consent of that person, until after 860(c) of this title (article 60(c)).’’ the person has been permanently released to the Subsecs. (d), (e). Pub. L. 104–106, § 1123(a)(1), (2), redes- armed forces by a State or foreign country re- ignated subsecs. (d) and (e) as section 857a(a) and (b), ferred to in that paragraph. respectively, of this title. (2) Paragraph (1) applies to a person subject to 1992—Subsec. (e). Pub. L. 102–484 added subsec. (e). this chapter who— 1983—Subsec. (a). Pub. L. 98–209 substituted provision (A) while in the custody of a State or foreign that no forfeiture may extend to any pay or allowances accrued before the date on which the sentence is ap- country is temporarily returned by that State proved by the person acting under section 860(c) of this or foreign country to the armed forces for title, for provision that whenever a sentence of a court- trial by court-martial; and martial as lawfully adjudged and approved included a (B) after the court-martial, is returned to forfeiture of pay or allowances in addition to confine- that State or foreign country under the au- ment not suspended or deferred, the forfeiture could thority of a mutual agreement or treaty, as apply to pay or allowances becoming due on or after the case may be. the date the sentence was approved by the convening authority, and that no forfeiture could extend to any (3) In this subsection, the term ‘‘State’’ in- pay or allowances accrued before that date. cludes the District of Columbia and any com- 1968—Subsec. (a). Pub. L. 90–632 inserted reference to monwealth, territory, or possession of the deferral of sentence of confinement. United States. Subsec. (b). Pub. L. 90–632 inserted reference to defer- (c) In any case in which a court-martial sen- ral of sentence of confinement. Subsec. (d). Pub. L. 90–632 added subsec. (d). tences a person to confinement and the sentence to confinement has been ordered executed, but EFFECTIVE DATE OF 1996 AMENDMENT in which review of the case under section Pub. L. 104–106, div. A, title XI, § 1121(b), Feb. 10, 1996, 867(a)(2) of this title (article 67(a)(2)) is pending, 110 Stat. 462, provided that: ‘‘The amendment made by the Secretary concerned may defer further serv- § 858 TITLE 10—ARMED FORCES Page 480 ice of the sentence to confinement while that re- § 858a. Art. 58a. Sentences: reduction in enlisted view is pending. grade upon approval (Added Pub. L. 90–632, § 2(24), Oct. 24, 1968, 82 (a) Unless otherwise provided in regulations to Stat. 1341, § 857(d); amended Pub. L. 102–484, div. be prescribed by the Secretary concerned, a A, title X, § 1064, Oct. 23, 1992, 106 Stat. 2505; re- court-martial sentence of an enlisted member in numbered § 857a and amended Pub. L. 104–106, a pay grade above E–1, as approved by the con- div. A, title XI, § 1123(a), Feb. 10, 1996, 110 Stat. vening authority, that includes— 463.) (1) a dishonorable or bad-conduct discharge; (2) confinement; or AMENDMENTS (3) hard labor without confinement; 1996—Pub. L. 104–106 redesignated subsecs. (d) and (e) of section 857 of this title as subsecs. (a) and (b), respec- reduces that member to pay grade E–1, effective tively, of this section, added section catchline, in sub- on the date of that approval. sec. (b)(1), substituted ‘‘defer’’ for ‘‘postpone’’, and (b) If the sentence of a member who is reduced added subsec. (c). in pay grade under subsection (a) is set aside or 1992—Subsec. (b), formerly § 857(e). Pub. L. 102–484 disapproved, or, as finally approved, does not in- added subsec. (e). See 1996 Amendment note above. clude any punishment named in subsection EFFECTIVE DATE OF 1992 AMENDMENT (a)(1), (2), or (3), the rights and privileges of which he was deprived because of that reduction Amendment by Pub. L. 102–484 effective Oct. 23, 1992, shall be restored to him and he is entitled to the and applicable with respect to offenses committed on or after that date, see section 1067 of Pub. L. 102–484, set pay and allowances to which he would have been out as a note under section 803 of this title. entitled, for the period the reduction was in ef- fect, had he not been so reduced. § 858. Art. 58. Execution of confinement (Added Pub. L. 86–633, § 1(1), July 12, 1960, 74 (a) Under such instructions as the Secretary Stat. 468.) concerned may prescribe, a sentence of confine- § 858b. Art. 58b. Sentences: forfeiture of pay and ment adjudged by a court-martial or other mili- allowances during confinement tary tribunal, whether or not the sentence in- cludes discharge or dismissal, and whether or (a)(1) A court-martial sentence described in not the discharge or dismissal has been exe- paragraph (2) shall result in the forfeiture of cuted, may be carried into execution by confine- pay, or of pay and allowances, due that member ment in any place of confinement under the con- during any period of confinement or parole. The trol of any of the armed forces or in any penal forfeiture pursuant to this section shall take ef- or correctional institution under the control of fect on the date determined under section 857(a) the United States, or which the United States of this title (article 57(a)) and may be deferred may be allowed to use. Persons so confined in a as provided in that section. The pay and allow- penal or correctional institution not under the ances forfeited, in the case of a general court- control of one of the armed forces are subject to martial, shall be all pay and allowances due that the same discipline and treatment as persons member during such period and, in the case of a confined or committed by the courts of the special court-martial, shall be two-thirds of all United States or of the State, District of Colum- pay due that member during such period. bia, or place in which the institution is situated. (2) A sentence covered by this section is any (b) The omission of the words ‘‘hard labor’’ sentence that includes— from any sentence of a court-martial adjudging (A) confinement for more than six months or confinement does not deprive the authority exe- death; or cuting that sentence of the power to require (B) confinement for six months or less and a hard labor as a part of the punishment. dishonorable or bad-conduct discharge or dis- (Aug. 10, 1956, ch. 1041, 70A Stat. 57; Pub. L. missal. 109–163, div. A, title X, § 1057(a)(3), Jan. 6, 2006, (b) In a case involving an accused who has de- 119 Stat. 3440.) pendents, the convening authority or other per- son acting under section 860 of this title (article HISTORICAL AND REVISION NOTES 60) may waive any or all of the forfeitures of pay and allowances required by subsection (a) for a Revised Source (U.S. Code) Source (Statutes at Large) section period not to exceed six months. Any amount of 858(a) ...... 50:639(a). May 5, 1950, ch. 169, § 1 pay or allowances that, except for a waiver 858(b) ...... 50:639(b). (Art. 58), 64 Stat. 126. under this subsection, would be forfeited shall be paid, as the convening authority or other per- In subsection (a), the words ‘‘Secretary concerned’’ son taking action directs, to the dependents of are substituted for the words ‘‘Department concerned’’, since the ‘‘Department’’ as an entity, cannot issue in- the accused. structions. The word ‘‘are’’ is substituted for the words (c) If the sentence of a member who forfeits ‘‘shall be’’. The words ‘‘of Columbia’’ are inserted after pay and allowances under subsection (a) is set ‘‘District’’ for clarity. aside or disapproved or, as finally approved, does In subsection (b), the word ‘‘from’’ is substituted for not provide for a punishment referred to in sub- the word ‘‘in’’. The words ‘‘does not deprive’’ are sub- section (a)(2), the member shall be paid the pay stituted for the words ‘‘shall not be construed as de- and allowances which the member would have priving’’. been paid, except for the forfeiture, for the pe- AMENDMENTS riod during which the forfeiture was in effect. 2006—Subsec. (a). Pub. L. 109–163 struck out ‘‘Terri- (Added Pub. L. 104–106, div. A, title XI, tory,’’ after ‘‘State,’’. § 1122(a)(1), Feb. 10, 1996, 110 Stat. 463; amended Page 481 TITLE 10—ARMED FORCES § 860

Pub. L. 104–201, div. A, title X, § 1068(a)(1), Sept. 1990—Pub. L. 101–510, div. A, title XIV, § 1484(i)(1), 23, 1996, 110 Stat. 2655; Pub. L. 105–85, div. A, title Nov. 5, 1990, 104 Stat. 1718, added item 867a. X, § 1073(a)(9), Nov. 18, 1997, 111 Stat. 1900.) 1983—Pub. L. 98–209, §§ 5(a)(2), (b)(2), (c)(2), (h)(2), 6(d)(2), 7(a)(2), Dec. 6, 1983, 97 Stat. 1397, 1398, 1400–1402, AMENDMENTS substituted ‘‘Post-trial Procedure and Review of Courts-Martial’’ for ‘‘Review of Courts-Martial’’ as sub- 1997—Subsec. (a)(1). Pub. L. 105–85 substituted ‘‘for- chapter heading, ‘‘Action by the convening authority’’ feiture of pay, or of pay and allowances, due that mem- for ‘‘Initial action on the record’’ in item 860, ‘‘Waiver ber’’ for ‘‘forfeiture of pay and (if adjudged by a general or withdrawal of appeal’’ for ‘‘Same—General court- court-martial) allowances due that member’’ in first martial records’’ in item 861, ‘‘Appeal by the United sentence. States’’ for ‘‘Reconsideration and revision’’ in item 862, 1996—Subsec. (a)(1). Pub. L. 104–201, § 1068(a)(1)(B), ‘‘Review by a judge advocate’’ for ‘‘Approval by the substituted ‘‘two-thirds of all pay’’ for ‘‘two-thirds of convening authority’’ in item 864, and ‘‘Disposition of all pay and allowances’’ in third sentence. records’’ for ‘‘Disposition of records after review by the Pub. L. 104–201, § 1068(a)(1)(A), which directed amend- convening authority’’ in item 865. ment of first sentence by inserting ‘‘(if adjudged by a 1981—Pub. L. 97–81, § 2(c)(2), Nov. 20, 1981, 95 Stat. 1087, general court-martial)’’ after ‘‘all pay and’’, was exe- added item 876a. cuted by making the insertion after ‘‘of pay and’’ in 1968—Pub. L. 90–632, § 2(25), Oct. 24, 1968, 82 Stat. 1341, first sentence to reflect the probable intent of Con- substituted ‘‘Court of Military Review’’ for ‘‘board of gress. review’’ in item 866 (article 66). EFFECTIVE DATE OF 1996 AMENDMENT § 859. Art. 59. Error of law; lesser included of- Pub. L. 104–201, div. A, title X, § 1068(a)(2), Sept. 23, fense 1996, 110 Stat. 2655, provided that: ‘‘The amendments made by paragraph (1) [amending this section] shall (a) A finding or sentence of a court-martial take effect as of April 1, 1996, and shall apply to any may not be held incorrect on the ground of an case in which a sentence is adjudged by a court-martial error of law unless the error materially preju- on or after that date.’’ dices the substantial rights of the accused. EFFECTIVE DATE (b) Any reviewing authority with the power to approve or affirm a finding of guilty may ap- Pub. L. 104–106, div. A, title XI, § 1122(b), Feb. 10, 1996, 110 Stat. 463, provided that: ‘‘The section (article) prove or affirm, instead, so much of the finding added by the amendment made by subsection (a)(1) as includes a lesser included offense. [this section] shall apply to a case in which a sentence (Aug. 10, 1956, ch. 1041, 70A Stat. 57.) is adjudged by a court-martial on or after the first day of the first month that begins at least 30 days after the HISTORICAL AND REVISION NOTES date of the enactment of this Act [Feb. 10, 1996].’’ Revised Source (U.S. Code) Source (Statutes at Large) SUBCHAPTER IX—POST-TRIAL PROCEDURE section AND REVIEW OF COURTS-MARTIAL 859(a) ...... 50:646(a). May 5, 1950, ch. 169, § 1 859(b) ...... 50:646(b). (Art. 59), 64 Stat. 127. Sec. Art. 859. 59. Error of law; lesser included offense. The word ‘‘may’’ is substituted for the word ‘‘shall’’. 860. 60. Action by the convening authority. 861. 61. Waiver or withdrawal of appeal. § 860. Art. 60. Action by the convening authority 862. 62. Appeal by the United States. (a) The findings and sentence of a court-mar- 863. 63. Rehearings. 864. 64. Review by a judge advocate. tial shall be reported promptly to the convening 865. 65. Disposition of records. authority after the announcement of the sen- 866. 66. Review by Court of Criminal Appeals. tence. 867. 67. Review by the Court of Appeals for the (b)(1) The accused may submit to the conven- Armed Forces. ing authority matters for consideration by the 867a. 67a. Review by the Supreme Court. convening authority with respect to the findings 868. 68. Branch offices. and the sentence. Any such submission shall be 869. 69. Review in the office of the Judge Advo- in writing. Except in a summary court-martial cate General. case, such a submission shall be made within 10 870. 70. Appellate counsel. 871. 71. Execution of sentence; suspension of sen- days after the accused has been given an authen- tence. ticated record of trial and, if applicable, the rec- 872. 72. Vacation of suspension. ommendation of the staff judge advocate or 873. 73. Petition for a new trial. legal officer under subsection (e). In a summary 874. 74. Remission and suspension. court-martial case, such a submission shall be 875. 75. Restoration. made within seven days after the sentence is an- 876. 76. Finality of proceedings, findings, and sen- nounced. tences. (2) If the accused shows that additional time is 876a. 76a. Leave required to be taken pending re- view of certain court-martial convic- required for the accused to submit such matters, tions. the convening authority or another person au- 876b. 76b. Lack of mental capacity or mental re- thorized to act under this section, for good sponsibility: commitment of accused cause, may extend the applicable period under for examination and treatment. paragraph (1) for not more than an additional 20 AMENDMENTS days. (3) In a summary court-martial case, the ac- 1996—Pub. L. 104–106, div. A, title XI, § 1133(a)(2), Feb. cused shall be promptly provided a copy of the 10, 1996, 110 Stat. 466, added item 876b. record of trial for use in preparing a submission 1994—Pub. L. 103–337, div. A, title IX, § 924(c)(4)(C), Oct. 5, 1994, 108 Stat. 2832, substituted ‘‘Court of Crimi- authorized by paragraph (1). nal Appeals’’ for ‘‘Court of Military Review’’ in item (4) The accused may waive his right to make 866 and ‘‘Court of Appeals for the Armed Forces’’ for a submission to the convening authority under ‘‘Court of Military Appeals’’ in item 867. paragraph (1). Such a waiver must be made in § 860 TITLE 10—ARMED FORCES Page 482 writing and may not be revoked. For the pur- excluded pursuant to clause (ii), an offense poses of subsection (c)(2), the time within which under this chapter for which— the accused may make a submission under this (I) the maximum sentence of confinement subsection shall be deemed to have expired upon that may be adjudged does not exceed two the submission of such a waiver to the conven- years; and ing authority. (II) the sentence adjudged does not include (5) The convening authority or other person dismissal, a dishonorable or bad-conduct dis- taking action under this section shall not con- charge, or confinement for more than six sider under this section any submitted matters months. that relate to the character of a victim unless (ii) Such term does not include any of the fol- such matters were presented as evidence at trial lowing: and not excluded at trial. (c)(1) Under regulations of the Secretary con- (I) An offense under subsection (a) or (b) of cerned, a commissioned officer commanding for section 920 of this title (article 120). (II) An offense under section 920b or 925 of the time being, a successor in command, or any person exercising general court-martial jurisdic- this title (articles 120b and 125). (III) Such other offenses as the Secretary of tion may act under this section in place of the Defense may specify by regulation. convening authority. (2)(A) Action on the sentence of a court-mar- (4)(A) Except as provided in subparagraph (B) tial shall be taken by the convening authority or (C), the convening authority or another per- or by another person authorized to act under son authorized to act under this section may not this section. Subject to regulations of the Sec- disapprove, commute, or suspend in whole or in retary concerned, such action may be taken part an adjudged sentence of confinement for only after consideration of any matters submit- more than six months or a sentence of dismissal, ted by the accused under subsection (b) or after dishonorable discharge, or bad conduct dis- the time for submitting such matters expires, charge. whichever is earlier. (B) Upon the recommendation of the trial (B) Except as provided in paragraph (4), the counsel, in recognition of the substantial assist- convening authority or another person author- ance by the accused in the investigation or pros- ized to act under this section may approve, dis- ecution of another person who has committed an approve, commute, or suspend the sentence of offense, the convening authority or another per- the court-martial in whole or in part. son authorized to act under this section shall (C) If the convening authority or another per- have the authority to disapprove, commute, or son authorized to act under this section acts to suspend the adjudged sentence in whole or in disapprove, commute, or suspend, in whole or in part, even with respect to an offense for which a part, the sentence of the court-martial for an of- mandatory minimum sentence exists. fense (other than a qualifying offense), the con- (C) If a pre-trial agreement has been entered vening authority or other person shall provide, into by the convening authority and the ac- at that same time, a written explanation of the cused, as authorized by Rule for Courts–Martial reasons for such action. The written explanation 705, the convening authority or another person shall be made a part of the record of the trial authorized to act under this section shall have and action thereon. the authority to approve, disapprove, commute, (3)(A) Action on the findings of a court-mar- or suspend a sentence in whole or in part pursu- tial by the convening authority or by another ant to the terms of the pre-trial agreement, sub- person authorized to act under this section is ject to the following limitations for convictions not required and may be taken only with respect of offenses that involve a mandatory minimum to a qualifying offense. (B) If the convening authority or another per- sentence: (i) If a mandatory minimum sentence of a son authorized to act under this section acts on dishonorable discharge applies to an offense the findings of a court-martial, the convening authority or other person— for which the accused has been convicted, the (i) may not dismiss any charge or specifica- convening authority or another person author- tion by setting aside a finding of guilty there- ized to act under this section may commute to, but may take such action with respect to the dishonorable discharge to a bad conduct a qualifying offense; or discharge pursuant to the terms of the pre- (ii) may not change a finding of guilty to a trial agreement. charge or specification to a finding of guilty (ii) Except as provided in clause (i), if a man- to an offense that is a lesser included offense datory minimum sentence applies pursuant to of the offense stated in the charge or specifica- section 856(b) of this title (article 56(b)) to an tion, but may take such action with respect to offense for which the accused has been con- a qualifying offense. victed, the convening authority or another person authorized to act under this section (C) If the convening authority or another per- may not disapprove, otherwise commute, or son authorized to act under this section acts on suspend the mandatory minimum sentence in the findings to dismiss or change any charge or whole or in part, unless authorized to do so specification for an offense, the convening au- under subparagraph (B). thority or other person shall provide, at that same time, a written explanation of the reasons (d)(1) In any case in which findings and sen- for such action. The written explanation shall tence have been adjudged for an offense that in- be made a part of the record of the trial and ac- volved a victim, the victim shall be provided an tion thereon. opportunity to submit matters for consideration (D)(i) In this subsection, the term ‘‘qualifying by the convening authority or by another person offense’’ means, except in the case of an offense authorized to act under this section before the Page 483 TITLE 10—ARMED FORCES § 860 convening authority or such other person takes rights of the accused. In no case, however, may action under this section. a proceeding in revision— (2)(A) Except as provided in subparagraph (B), (A) reconsider a finding of not guilty of any the submission of matters under paragraph (1) specification or a ruling which amounts to a shall be made within 10 days after the later of— finding of not guilty; (i) the date on which the victim has been (B) reconsider a finding of not guilty of any given an authenticated record of trial in ac- charge, unless there has been a finding of cordance with section 854(e) of this title (arti- guilty under a specification laid under that cle 54(e)), if applicable; and charge, which sufficiently alleges a violation (ii) the date on which the victim has been of some article of this chapter; or given the recommendation of the staff judge (C) increase the severity of the sentence un- advocate or legal officer under subsection (e). less the sentence prescribed for the offense is (B) In the case of a summary court-martial, mandatory. the submission of matters under paragraph (1) (3) A rehearing may be ordered by the conven- shall be made within seven days after the date ing authority or another person authorized to on which the sentence is announced. act under this section if he disapproves the find- (3) If a victim shows that additional time is re- ings and sentence and states the reasons for dis- quired for submission of matters under para- approval of the findings. If such person dis- graph (1), the convening authority or other per- approves the findings and sentence and does not son taking action under this section, for good order a rehearing, he shall dismiss the charges. cause, may extend the submission period under A rehearing as to the findings may not be or- paragraph (2) for not more than an additional 20 dered where there is a lack of sufficient evidence days. in the record to support the findings. A rehear- (4) A victim may waive the right under this ing as to the sentence may be ordered if the con- subsection to make a submission to the conven- vening authority or other person taking action ing authority or other person taking action under this subsection disapproves the sentence. under this section. Such a waiver shall be made in writing and may not be revoked. For the pur- (Aug. 10, 1956, ch. 1041, 70A Stat. 57; Pub. L. poses of subsection (c)(2), the time within which 98–209, § 5(a)(1), Dec. 6, 1983, 97 Stat. 1395; Pub. L. a victim may make a submission under this sub- 99–661, div. A, title VIII, § 806(a)–(c), Nov. 14, 1986, section shall be deemed to have expired upon the 100 Stat. 3908, 3909; Pub. L. 104–106, div. A, title submission of such waiver to the convening au- XI, § 1132, Feb. 10, 1996, 110 Stat. 464; Pub. L. thority or such other person. 113–66, div. A, title XVII, §§ 1702(b), (c)(1), 1706, (5) In this section, the term ‘‘victim’’ means a Dec. 26, 2013, 127 Stat. 955–957, 960; Pub. L. person who has suffered a direct physical, emo- 113–291, div. A, title V, § 531(a)(1)–(3), (5), Dec. 19, tional, or pecuniary harm as a result of a com- 2014, 128 Stat. 3362, 3363.) mission of an offense under this chapter (the HISTORICAL AND REVISION NOTES Uniform Code of Military Justice) and on which the convening authority or other person author- Revised Source (U.S. Code) Source (Statutes at Large) ized to take action under this section is taking section action under this section. 860 ...... 50:647. May 5, 1950, ch. 169, § 1 (e) Before acting under this section on any (Art. 60), 64 Stat. 127. general court-martial case or any special court- The word ‘‘a’’ is substituted for the word ‘‘every’’. martial case that includes a bad-conduct dis- The word ‘‘by’’ before the words ‘‘any officer’’ is omit- charge, the convening authority or another per- ted as surplusage. The word ‘‘person’’ is substituted for son authorized to act under this section shall the word ‘‘officer’’ before the words ‘‘who convened’’, obtain and consider the written recommenda- since, under sections 823 and 824 of this title (articles 23 tion of his staff judge advocate or legal officer. and 24), noncommissioned officers who are ‘‘officers in The convening authority or other person taking charge’’ may convene special and summary courts-mar- action under this section shall refer the record tial. of trial to his staff judge advocate or legal offi- AMENDMENTS cer, and the staff judge advocate or legal officer 2014—Subsec. (c)(3)(A). Pub. L. 113–291, § 531(a)(1)(A), shall use such record in the preparation of his inserted ‘‘and may be taken only with respect to a recommendation. The recommendation of the qualifying offense’’ after ‘‘is not required’’. staff judge advocate or legal officer shall include Subsec. (c)(3)(B)(i). Pub. L. 113–291, § 531(a)(1)(B), such matters as the President may prescribe by struck out ‘‘, other than a charge or specification for a regulation and shall be served on the accused, qualifying offense,’’ after ‘‘specification’’ and inserted who may submit any matter in response under ‘‘, but may take such action with respect to a qualify- ing offense’’ before semicolon. subsection (b). Failure to object in the response Subsec. (c)(3)(B)(ii). Pub. L. 113–291, § 531(a)(1)(C), to the recommendation or to any matter at- struck out ‘‘, other than a charge or specification for a tached to the recommendation waives the right qualifying offense,’’ after ‘‘to a charge or specification’’ to object thereto. and inserted ‘‘, but may take such action with respect (f)(1) The convening authority or another per- to a qualifying offense’’ before period. son authorized to act under this section may Subsec. (c)(3)(C). Pub. L. 113–291, § 531(a)(2), struck out order a proceeding in revision or a rehearing. ‘‘(other than a qualifying offense)’’ after ‘‘offense’’. (2) A proceeding in revision may be ordered if Subsec. (c)(4)(C)(ii). Pub. L. 113–291, § 531(a)(5), in- there is an apparent error or omission in the serted ‘‘pursuant to section 856(b) of this title (article 56(b))’’ after ‘‘applies’’. record or if the record shows improper or incon- Subsec. (d)(2)(A)(i). Pub. L. 113–291, § 531(a)(3)(A)(i), in- sistent action by a court-martial with respect to serted ‘‘, if applicable’’ before semicolon. the findings or sentence that can be rectified Subsec. (d)(2)(A)(ii). Pub. L. 113–291, § 531(a)(3)(A)(ii), without material prejudice to the substantial struck out ‘‘if applicable,’’ before ‘‘the date’’. § 861 TITLE 10—ARMED FORCES Page 484

Subsec. (d)(5). Pub. L. 113–291, § 531(a)(3)(B), sub- 1983—Pub. L. 98–209 amended section generally, sub- stituted ‘‘harm’’ for ‘‘loss’’. stituting ‘‘Action by the convening authority’’ for ‘‘Ini- 2013—Subsec. (b)(1). Pub. L. 113–66, § 1706(c), sub- tial action on the record’’ as section catchline, and, in stituted ‘‘subsection (e)’’ for ‘‘subsection (d)’’. text, substituting new provision for provision that Subsec. (b)(2). Pub. L. 113–66, § 1702(c)(1)(A), sub- after a trial by court-martial the record had to be for- stituted ‘‘or another person authorized to act under warded to the convening authority, and action thereon this section’’ for ‘‘or other person taking action under could be taken by the person who convened the court, this section’’. a commissioned officer commanding for the time being, Subsec. (b)(5). Pub. L. 113–66, § 1706(b), added par. (5). a successor in command, or any officer exercising gen- Subsec. (c). Pub. L. 113–66, § 1702(b), amended subsec. eral court-martial jurisdiction. (c) generally. Prior to amendment, text related to the command prerogative of the convening authority to EFFECTIVE DATE OF 2013 AMENDMENT modify the findings and sentence of a court-martial. Pub. L. 113–66, div. A, title XVII, § 1702(d)(2), Dec. 26, Subsec. (d). Pub. L. 113–66, § 1706(a)(2), added subsec. 2013, 127 Stat. 958, as amended by Pub. L. 113–291, div. (d). Former subsec. (d) redesignated (e). Pub. L. 113–66, § 1702(c)(1)(B), substituted ‘‘or another A, title V, § 531(g)(2)(A), Dec. 19, 2014, 128 Stat. 3365, pro- person authorized to act under this section’’ for ‘‘or vided that: other person taking action under this section’’ in first ‘‘(A) Except as provided in subparagraph (B), the sentence. amendments made by subsection (b) and paragraphs (1) Subsec. (e). Pub. L. 113–66, § 1706(a)(1), redesignated and (2) of subsection (c) [amending this section and sec- subsec. (d) as (e). Former subsec. (e) redesignated (f). tion 871 of this title] shall take effect 180 days after the Subsec. (e)(1). Pub. L. 113–66, § 1702(c)(1)(C), sub- date of the enactment of this Act [Dec. 26, 2013] and stituted ‘‘or another person authorized to act under shall apply with respect to offenses committed under this section’’ for ‘‘or other person taking action under chapter 47 of title 10, United States Code (the Uniform this section, in his sole discretion,’’. Code of Military Justice), on or after that effective Subsec. (e)(3). Pub. L. 113–66, § 1702(c)(1)(D), sub- date. stituted ‘‘or another person authorized to act under ‘‘(B) With respect to the findings and sentence of a this section’’ for ‘‘or other person taking action under court-martial that includes both a conviction for an of- this section’’. fense committed before the effective date specified in Subsec. (f). Pub. L. 113–66, § 1706(a)(1), redesignated subparagraph (A) and a conviction for an offense com- subsec. (e) as (f). mitted on or after that effective date, the convening 1996—Subsec. (b)(1). Pub. L. 104–106 inserted after first authority shall have the same authority to take action sentence ‘‘Any such submission shall be in writing.’’ on such findings and sentence as was in effect on the 1986—Subsec. (b)(1). Pub. L. 99–661, § 806(a)(3), amend- day before such effective date, except with respect to a ed par. (1) generally. Prior to amendment, par. (1) read mandatory minimum sentence under section 856(b) of as follows: ‘‘Within 30 days after the sentence of a gen- title 10, United States Code (article 56(b) of the Uni- eral court-martial or of a special court-martial which form Code of Military Justice).’’ has adjudged a bad-conduct discharge has been an- [Pub. L. 113–291, div. A, title V, § 531(g)(2)(B), Dec. 19, nounced, the accused may submit to the convening au- 2014, 128 Stat. 3366, provided that: ‘‘The amendments thority matters for consideration by the convening au- made by subparagraph (A) [amending section 1702(d)(2) thority with respect to the findings and the sentence. of Pub. L. 113–66, set out above] shall not apply to the In the case of all other special courts-martial, the ac- findings and sentence of a court-martial with respect to cused may make such a submission to the convening which the convening authority has taken action before authority within 20 days after the sentence is an- the date that is 30 days after the date of the enactment nounced. In the case of all summary courts-martial the of this Act [Dec. 19, 2014].’’] accused may make such a submission to the convening authority within seven days after the sentence is an- EFFECTIVE DATE OF 1986 AMENDMENT nounced. If the accused shows that additional time is Pub. L. 99–661, div. A, title VIII, § 806(c) [(d)], Nov. 14, required for the accused to submit such matters, the 1986, 100 Stat. 3909, provided that: ‘‘The amendments convening authority or other person taking action made by this section [amending this section] shall under this section, for good cause, may extend the pe- apply in cases in which the sentence is adjudged on or riod— after the effective date of this title.’’ ‘‘(A) in the case of a general court-martial or a spe- Title VIII of Pub. L. 99–661 effective the earlier of (1) cial court-martial which has adjudged a bad-conduct the last day of the 120-day period beginning on Nov. 14, discharge, for not more than an additional 20 days; 1986; or (2) the date specified in an Executive order for and such amendment to take effect, see section 808 of Pub. ‘‘(B) in the case of all other courts-martial, for not L. 99–661, set out as a note under section 802 of this more than an additional 10 days.’’ title. Subsec. (b)(2). Pub. L. 99–661, § 806(a)(2), (3), added par. (2). Former par. (2) redesignated (3). EFFECTIVE DATE OF 1983 AMENDMENT Subsec. (b)(3). Pub. L. 99–661, § 806(a)(1), (2), redesig- Amendment by Pub. L. 98–209 effective first day of nated par. (2) as (3), inserted a comma after ‘‘case’’, and eighth calendar month beginning after Dec. 6, 1983, but struck out former par. (3) which read as follows: ‘‘In no not to apply to any case in which the findings and sen- event shall the accused in any general or special court- tence were adjudged by a court-martial before that martial case have less than a seven-day period after the date, and the proceedings in any such case to be held day on which a copy of the authenticated record of in the same manner and with the same effect as if such trial has been given to him within which to make a amendments had not been enacted, see section 12(a)(1), submission under paragraph (1). The convening author- (4) of Pub. L. 98–209, set out as a note under section 801 ity or other person taking action on the case, for good of this title. cause, may extend this period for up to an additional 10 days.’’ § 861. Art. 61. Waiver or withdrawal of appeal Subsec. (c)(2). Pub. L. 99–661, § 806(b), struck out ‘‘and, if applicable, under subsection (d),’’ after ‘‘under sub- (a) In each case subject to appellate review section (b)’’. under section 866 or 869(a) of this title (article 66 Subsec. (d). Pub. L. 99–661, § 806(c), substituted ‘‘who or 69(a)), except a case in which the sentence as may submit any matter in response under subsection approved under section 860(c) of this title (arti- (b)’’ for ‘‘who shall have five days from the date of re- ceipt in which to submit any matter in response. The cle 60(c)) includes death, the accused may file convening authority or other person taking action with the convening authority a statement ex- under this section, for good cause, may extend that pe- pressly waiving the right of the accused to such riod for up to an additional 20 days.’’ review. Such a waiver shall be signed by both Page 485 TITLE 10—ARMED FORCES § 862 the accused and by defense counsel and must be (2) An appeal of an order or ruling may not be filed within 10 days after the action under sec- taken unless the trial counsel provides the mili- tion 860(c) of this title (article 60(c)) is served on tary judge with written notice of appeal from the accused or on defense counsel. The conven- the order or ruling within 72 hours of the order ing authority or other person taking such ac- or ruling. Such notice shall include a certifi- tion, for good cause, may extend the period for cation by the trial counsel that the appeal is not such filing by not more than 30 days. taken for the purpose of delay and (if the order (b) Except in a case in which the sentence as or ruling appealed is one which excludes evi- approved under section 860(c) of this title (arti- dence) that the evidence excluded is substantial cle 60(c)) includes death, the accused may with- proof of a fact material in the proceeding. draw an appeal at any time. (3) An appeal under this section shall be dili- (c) A waiver of the right to appellate review or gently prosecuted by appellate Government the withdrawal of an appeal under this section counsel. bars review under section 866 or 869(a) of this (b) An appeal under this section shall be for- title (article 66 or 69(a)). warded by a means prescribed under regulations (Aug. 10, 1956, ch. 1041, 70A Stat. 58; Pub. L. of the President directly to the Court of Crimi- 98–209, § 5(b)(1), Dec. 6, 1983, 97 Stat. 1397.) nal Appeals and shall, whenever practicable, have priority over all other proceedings before HISTORICAL AND REVISION NOTES that court. In ruling on an appeal under this sec- tion, the Court of Criminal Appeals may act Revised section Source (U.S. Code) Source (Statutes at Large) only with respect to matters of law, notwith- standing section 866(c) of this title (article 861 ...... 50:648. May 5, 1950, ch. 169, § 1 (Art. 61), 64 Stat. 127. 66(c)). (c) Any period of delay resulting from an ap- The word ‘‘each’’ is substituted for the word ‘‘every’’. peal under this section shall be excluded in de- AMENDMENTS ciding any issue regarding denial of a speedy trial unless an appropriate authority determines 1983—Pub. L. 98–209 amended section generally, sub- that the appeal was filed solely for the purpose stituting ‘‘Waiver or withdrawal of appeal’’ for ‘‘Same—General court-martial records’’ as section of delay with the knowledge that it was totally catchline, and, in text, substituting provisions relating frivolous and without merit. to waiver or withdrawal of appeal for provisions relat- (Aug. 10, 1956, ch. 1041, 70A Stat. 58; Pub. L. ing to initial action by the convening authority on gen- 98–209, § 5(c)(1), Dec. 6, 1983, 97 Stat. 1398; Pub. L. eral court-martial records. 103–337, div. A, title IX, § 924(c)(2), Oct. 5, 1994, 108 EFFECTIVE DATE OF 1983 AMENDMENT Stat. 2831; Pub. L. 104–106, div. A, title XI, Amendment by Pub. L. 98–209 effective first day of § 1141(a), Feb. 10, 1996, 110 Stat. 466.) eighth calendar month beginning after Dec. 6, 1983, but not to apply to any case in which the findings and sen- HISTORICAL AND REVISION NOTES tence were adjudged by a court-martial before that Revised date, and the proceedings in any such case to be held section Source (U.S. Code) Source (Statutes at Large) in the same manner and with the same effect as if such amendments had not been enacted, see section 12(a)(1), 862(a) ...... 50:649(a). May 5, 1950, ch. 169, § 1 862(b) ...... 50:649(b). (Art. 62), 64 Stat. 127. (4) of Pub. L. 98–209, set out as a note under section 801 of this title. AMENDMENTS § 862. Art. 62. Appeal by the United States 1996—Subsec. (a)(1). Pub. L. 104–106 amended par. (1) (a)(1) In a trial by court-martial in which a generally. Prior to amendment, par. (1) read as follows: military judge presides and in which a punitive ‘‘In a trial by court-martial in which a military judge presides and in which a punitive discharge may be ad- discharge may be adjudged, the United States judged, the United States may appeal an order or rul- may appeal the following (other than an order ing of the military judge which terminates the proceed- or ruling that is, or that amounts to, a finding ings with respect to a charge or specification or which of not guilty with respect to the charge or speci- excludes evidence that is substantial proof of a fact fication): material in the proceeding. However, the United States (A) An order or ruling of the military judge may not appeal an order or ruling that is, or that which terminates the proceedings with respect amounts to, a finding of not guilty with respect to the to a charge or specification. charge or specification.’’ (B) An order or ruling which excludes evi- 1994—Subsec. (b). Pub. L. 103–337 substituted ‘‘Court of Criminal Appeals’’ for ‘‘Court of Military Review’’ in dence that is substantial proof of a fact mate- two places. rial in the proceeding. 1983—Pub. L. 98–209 amended section generally, sub- (C) An order or ruling which directs the dis- stituting ‘‘Appeal by the United States’’ for ‘‘Reconsid- closure of classified information. eration and revision’’ as section catchline, and, in text, (D) An order or ruling which imposes sanc- substituting provisions relating to appeals by the tions for nondisclosure of classified informa- United States for provisions relating to the convening tion. authority returning the record to the court for recon- (E) A refusal of the military judge to issue a sideration and appropriate action. protective order sought by the United States EFFECTIVE DATE OF 1983 AMENDMENT to prevent the disclosure of classified informa- tion. Amendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, but (F) A refusal by the military judge to en- not to apply to any case in which the findings and sen- force an order described in subparagraph (E) tence were adjudged by a court-martial before that that has previously been issued by appropriate date, and the proceedings in any such case to be held authority. in the same manner and with the same effect as if such § 863 TITLE 10—ARMED FORCES Page 486 amendments had not been enacted, see section 12(a)(1), EFFECTIVE DATE OF 1983 AMENDMENT (4) of Pub. L. 98–209, set out as a note under section 801 Amendment by Pub. L. 98–209 effective first day of of this title. eighth calendar month beginning after Dec. 6, 1983, but not to apply to any case in which the findings and sen- § 863. Art. 63. Rehearings tence were adjudged by a court-martial before that date, and the proceedings in any such case to be held Each rehearing under this chapter shall take in the same manner and with the same effect as if such place before a court-martial composed of mem- amendments had not been enacted, see section 12(a)(1), bers not members of the court-martial which (4) of Pub. L. 98–209, set out as a note under section 801 first heard the case. Upon a rehearing the ac- of this title. cused may not be tried for any offense of which he was found not guilty by the first court-mar- § 864. Art. 64. Review by a judge advocate tial, and no sentence in excess of or more severe (a) Each case in which there has been a finding than the original sentence may be approved, un- of guilty that is not reviewed under section 866 less the sentence is based upon a finding of or 869(a) of this title (article 66 or 69(a)) shall be guilty of an offense not considered upon the reviewed by a judge advocate under regulations merits in the original proceedings, or unless the of the Secretary concerned. A judge advocate sentence prescribed for the offense is manda- may not review a case under this subsection if tory. If the sentence approved after the first he has acted in the same case as an accuser, in- court-martial was in accordance with a pretrial vestigating officer, member of the court, mili- agreement and the accused at the rehearing tary judge, or counsel or has otherwise acted on changes his plea with respect to the charges or behalf of the prosecution or defense. The judge specifications upon which the pretrial agree- advocate’s review shall be in writing and shall ment was based, or otherwise does not comply contain the following: with the pretrial agreement, the approved sen- (1) Conclusions as to whether— tence as to those charges or specifications may (A) the court had jurisdiction over the ac- include any punishment not in excess of that cused and the offense; lawfully adjudged at the first court-martial. (B) the charge and specification stated an (Aug. 10, 1956, ch. 1041, 70A Stat. 58; Pub. L. offense; and (C) the sentence was within the limits pre- 98–209, § 5(d), Dec. 6, 1983, 97 Stat. 1398; Pub. L. scribed as a matter of law. 102–484, div. A, title X, § 1065, Oct. 23, 1992, 106 Stat. 2506.) (2) A response to each allegation of error made in writing by the accused. HISTORICAL AND REVISION NOTES (3) If the case is sent for action under sub- Revised section (b), a recommendation as to the appro- section Source (U.S. Code) Source (Statutes at Large) priate action to be taken and an opinion as to 863(a) ...... 50:650(a). May 5, 1950, ch. 169, § 1 whether corrective action is required as a 863(b) ...... 50:650(b). (Art. 63), 64 Stat. 127. matter of law.

In subsection (a), the words ‘‘In such a’’ are sub- (b) The record of trial and related documents stituted for the words ‘‘in which’’. in each case reviewed under subsection (a) shall In subsection (b), the word ‘‘Each’’ is substituted for be sent for action to the person exercising gen- the word ‘‘Every’’. The word ‘‘may’’ is substituted for eral court-martial jurisdiction over the accused the word ‘‘shall’’ in the second sentence. at the time the court was convened (or to that person’s successor in command) if— AMENDMENTS (1) the judge advocate who reviewed the case 1992—Pub. L. 102–484 substituted ‘‘approved’’ for ‘‘im- recommends corrective action; posed’’ in second sentence and inserted ‘‘approved’’ be- (2) the sentence approved under section fore last reference to ‘‘sentence’’ in third sentence. 860(c) of this title (article 60(c)) extends to dis- 1983—Pub. L. 98–209 struck out subsec. (a) which pro- missal, a bad-conduct or dishonorable dis- vided that if the convening authority disapproved the charge, or confinement for more than six findings and sentence of a court-martial he could, ex- months; or cept where there was lack of sufficient evidence in the record to support the findings, order a rehearing, stat- (3) such action is otherwise required by regu- ing the reasons for disapproval, and that if he dis- lations of the Secretary concerned. approved the findings without reordering a rehearing, (c)(1) The person to whom the record of trial he had to dismiss the charges, and redesignated former and related documents are sent under subsection subsec. (b) as entire section, and, as so redesignated, in- serted ‘‘under this chapter’’ after ‘‘Each rehearing’’, (b) may— and inserted provision that if the sentence approved (A) disapprove or approve the findings or after the first court-martial was in accordance with a sentence, in whole or in part; pretrial agreement and the accused at the rehearing (B) remit, commute, or suspend the sentence changes his plea with respect to the charges or speci- in whole or in part; fications upon which the pretrial agreement was based, (C) except where the evidence was insuffi- or otherwise does not comply with the pretrial agree- cient at the trial to support the findings, order ment, the sentence as to those charges or specifications a rehearing on the findings, on the sentence, may include any punishment not in excess of that law- or on both; or fully adjudged at the first court-martial. (D) dismiss the charges. EFFECTIVE DATE OF 1992 AMENDMENT (2) If a rehearing is ordered but the convening Amendment by Pub. L. 102–484 effective Oct. 23, 1992, authority finds a rehearing impracticable, he and applicable with respect to offenses committed on shall dismiss the charges. or after that date, see section 1067 of Pub. L. 102–484, set (3) If the opinion of the judge advocate in the out as a note under section 803 of this title. judge advocate’s review under subsection (a) is Page 487 TITLE 10—ARMED FORCES § 866 that corrective action is required as a matter of In subsection (b), the word ‘‘If’’ is substituted for the law and if the person required to take action word ‘‘Where’’. under subsection (b) does not take action that is In subsections (a) and (b), the words ‘‘send’’ and at least as favorable to the accused as that rec- ‘‘sent’’ are substituted for the words ‘‘forward’’ and ‘‘forwarded’’, respectively. ommended by the judge advocate, the record of In subsection (c), the words ‘‘Secretary concerned’’ trial and action thereon shall be sent to the are substituted for the words ‘‘Secretary of the Depart- Judge Advocate General for review under sec- ment’’. tion 869(b) of this title (article 69(b)). AMENDMENTS (Aug. 10, 1956, ch. 1041, 70A Stat. 58; Pub. L. 98–209, § 7(a)(1), Dec. 6, 1983, 97 Stat. 1401.) 1983—Pub. L. 98–209 amended section generally, sub- stituting ‘‘Disposition of records’’ for ‘‘Disposition of HISTORICAL AND REVISION NOTES records after review by the convening authority’’ in section catchline, and, in text, substituting provisions relating to disposition of records for prior provisions Revised Source (U.S. Code) Source (Statutes at Large) section relating to disposition of records that required when 864 ...... 50:651. May 5, 1950, ch. 169, § 1 the convening authority had taken final action in a (Art. 64), 64 Stat. 128. general court-martial case, he had to send the entire record, including his action thereon and the opinion or The word ‘‘may’’ is substituted for the word ‘‘shall’’. opinions of the staff judge advocate or legal officer, to The word ‘‘is’’ is substituted for the words ‘‘shall con- the appropriate Judge Advocate General, required that stitute’’. where sentences of special courts-martial included a bad-conduct discharge, the record had to be sent for re- AMENDMENTS view either to the officer exercising general court-mar- 1983—Pub. L. 98–209 amended section generally, sub- tial jurisdiction over the command to be reviewed or stituting ‘‘Review by a judge advocate’’ for ‘‘Approval directly to the appropriate Judge Advocate General to by the convening authority’’ in section catchline, and, be reviewed by a Court of Military Review, and re- in text, substituting provisions relating to review by a quired that all other special and summary court-mar- judge advocate for provision that in acting on the find- tial records had to be reviewed by a judge advocate of ings and sentence of a court-martial, the convening au- the Army, Navy, Air Force, or Marine Corps, or a law thority could approve only such findings of guilty, and specialist or lawyer of the Coast Guard or Department the sentence or such part or amount of the sentence, as of Transportation, and had to be transmitted and dis- he found correct in law and fact and as he in his discre- posed of as the Secretary concerned might prescribe by tion determined should be approved, and that unless he regulation. indicated otherwise, approval of the sentence was ap- 1980—Subsec. (c). Pub. L. 96–513 substituted ‘‘Depart- proval of the findings and sentence. ment of Transportation’’ for ‘‘Department of the Treas- ury’’. EFFECTIVE DATE OF 1983 AMENDMENT 1968—Subsec. (b). Pub. L. 90–632 substituted ‘‘Court of Amendment by Pub. L. 98–209 effective first day of Military Review’’ for ‘‘board of review’’ wherever ap- eighth calendar month beginning after Dec. 6, 1983, but pearing. not to apply to any case in which the findings and sen- 1967—Subsec. (c). Pub. L. 90–179 inserted reference to tence were adjudged by a court-martial before that judge advocate of the Marine Corps and substituted ref- date, and the proceedings in any such case to be held erence to judge advocate of the Navy for reference to in the same manner and with the same effect as if such law specialist of the Navy. amendments had not been enacted, see section 12(a)(1), (4) of Pub. L. 98–209, set out as a note under section 801 EFFECTIVE DATE OF 1983 AMENDMENT of this title. Amendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, but § 865. Art. 65. Disposition of records not to apply to any case in which the findings and sen- (a) In a case subject to appellate review under tence were adjudged by a court-martial before that date, and the proceedings in any such case to be held section 866 or 869(a) of this title (article 66 or in the same manner and with the same effect as if such 69(a)) in which the right to such review is not amendments had not been enacted, see section 12(a)(1), waived, or an appeal is not withdrawn, under (4) of Pub. L. 98–209, set out as a note under section 801 section 861 of this title (article 61), the record of of this title. trial and action thereon shall be transmitted to the Judge Advocate General for appropriate ac- EFFECTIVE DATE OF 1980 AMENDMENT tion. Amendment by Pub. L. 96–513 effective Dec. 12, 1980, (b) Except as otherwise required by this chap- see section 701(b)(3) of Pub. L. 96–513, set out as a note ter, all other records of trial and related docu- under section 101 of this title. ments shall be transmitted and disposed of as EFFECTIVE DATE OF 1968 AMENDMENT the Secretary concerned may prescribe by regu- Amendment by Pub. L. 90–632 effective first day of lation. tenth month following October 1968, see section 4 of (Aug. 10, 1956, ch. 1041, 70A Stat. 59; Pub. L. Pub. L. 90–632, set out as a note under section 801 of 90–179, § 1(6), Dec. 8, 1967, 81 Stat. 546; Pub. L. this title. 90–632, § 2(26), Oct. 24, 1968, 82 Stat. 1341; Pub. L. § 866. Art. 66. Review by Court of Criminal Ap- 96–513, title V, § 511(25), Dec. 12, 1980, 94 Stat. peals 2922; Pub. L. 98–209, § 6(d)(1), Dec. 6, 1983, 97 Stat. 1401.) (a) Each Judge Advocate General shall estab- lish a Court of Criminal Appeals which shall be HISTORICAL AND REVISION NOTES composed of one or more panels, and each such panel shall be composed of not less than three Revised Source (U.S. Code) Source (Statutes at Large) section appellate military judges. For the purpose of re- 865(a) ...... 50:652(a). May 5, 1950, ch. 169, § 1 viewing court-martial cases, the court may sit 865(b) ...... 50:652(b). (Art. 65), 64 Stat. 128. in panels or as a whole in accordance with rules 865(c) ...... 50:652(c). prescribed under subsection (f). Any decision of § 866 TITLE 10—ARMED FORCES Page 488 a panel may be reconsidered by the court sitting member of the armed forces is qualified to be as a whole in accordance with such rules. Appel- advanced in grade, or in determining the assign- late military judges who are assigned to a Court ment or transfer of a member of the armed of Criminal Appeals may be commissioned offi- forces, or in determining whether a member of cers or civilians, each of whom must be a mem- the armed forces should be retained on active ber of a bar of a Federal court or of the highest duty. court of a State. The Judge Advocate General (h) No member of a Court of Criminal Appeals shall designate as chief judge one of the appel- shall be eligible to review the record of any trial late military judges of the Court of Criminal Ap- if such member served as investigating officer in peals established by him. The chief judge shall the case or served as a member of the court- determine on which panels of the court the ap- martial before which such trial was conducted, pellate judges assigned to the court will serve or served as military judge, trial or defense and which military judge assigned to the court counsel, or reviewing officer of such trial. will act as the senior judge on each panel. (b) The Judge Advocate General shall refer to (Aug. 10, 1956, ch. 1041, 70A Stat. 59; Pub. L. a Court of Criminal Appeals the record in each 90–632, § 2(27), Oct. 24, 1968, 82 Stat. 1341; Pub. L. case of trial by court-martial— 98–209, §§ 7(b), (c), 10(c)(1), Dec. 6, 1983, 97 Stat. (1) in which the sentence, as approved, ex- 1402, 1406; Pub. L. 103–337, div. A, title IX, tends to death, dismissal of a commissioned § 924(b)(2), (c)(1), (4)(A), Oct. 5, 1994, 108 Stat. 2831, officer, cadet, or midshipman, dishonorable or 2832; Pub. L. 104–106, div. A, title XI, § 1153, Feb. bad-conduct discharge, or confinement for one 10, 1996, 110 Stat. 468.) year or more; and HISTORICAL AND REVISION NOTES (2) except in the case of a sentence extending to death, the right to appellate review has not Revised Source (U.S. Code) Source (Statutes at Large) been waived or an appeal has not been with- section drawn under section 861 of this title (article 866(a) ...... 50:653(a). May 5, 1950, ch. 169, § 1 866(b) ...... 50:653(b). (Art. 66), 64 Stat. 128. 61). 866(c) ...... 50:653(c). 866(d) ...... 50:653(d). (c) In a case referred to it, the Court of Crimi- 866(e) ...... 50:653(e). nal Appeals may act only with respect to the 866(f) ...... 50:653(f). findings and sentence as approved by the con- vening authority. It may affirm only such find- In subsection (a), the word ‘‘Each’’ is substituted for ings of guilty, and the sentence or such part or the words ‘‘The * * * of each of the armed forces’’. The word ‘‘must’’ is substituted for the word ‘‘shall’’ after amount of the sentence, as it finds correct in the word ‘‘whom’’, since a condition is prescribed, not law and fact and determines, on the basis of the a command. The words ‘‘of the United States’’ are entire record, should be approved. In considering omitted as surplusage. the record, it may weigh the evidence, judge the In subsections (a) and (b), the word ‘‘commissioned’’ credibility of witnesses, and determine con- is inserted before the word ‘‘officer’’. troverted questions of fact, recognizing that the In subsection (c), the word ‘‘may’’ is substituted for trial court saw and heard the witnesses. the word ‘‘shall’’ and for the words ‘‘shall have author- (d) If the Court of Criminal Appeals sets aside ity to’’. the findings and sentence, it may, except where In subsection (e), the words ‘‘Secretary concerned’’ are substituted for the words ‘‘Secretary of the Depart- the setting aside is based on lack of sufficient ment’’. evidence in the record to support the findings, In subsection (f), the words ‘‘of the armed forces’’ and order a rehearing. If it sets aside the findings ‘‘proceedings in and before’’ are omitted as surplusage. and sentence and does not order a rehearing, it AMENDMENTS shall order that the charges be dismissed. (e) The Judge Advocate General shall, unless 1996—Subsec. (f). Pub. L. 104–106 substituted ‘‘Courts there is to be further action by the President, of Criminal Appeals’’ for ‘‘Courts of Military Review’’ the Secretary concerned, the Court of Appeals in two places. 1994—Pub. L. 103–337, § 924(c)(4)(A), substituted ‘‘Court for the Armed Forces, or the Supreme Court, in- of Criminal Appeals’’ for ‘‘Court of Military Review’’ in struct the convening authority to take action in section catchline. accordance with the decision of the Court of Pub. L. 103–337, § 924(b)(2), substituted ‘‘Court of Criminal Appeals. If the Court of Criminal Ap- Criminal Appeals’’ for ‘‘Court of Military Review’’ peals has ordered a rehearing but the convening wherever appearing. authority finds a rehearing impracticable, he Pub. L. 103–337, § 924(c)(1), substituted ‘‘Court of Ap- may dismiss the charges. peals for the Armed Forces’’ for ‘‘Court of Military Ap- (f) The Judge Advocates General shall pre- peals’’ in subsec. (e). scribe uniform rules of procedure for Courts of 1983—Subsec. (a). Pub. L. 98–209, § 7(b), inserted provi- sion that any decision of a panel may be reconsidered Criminal Appeals and shall meet periodically to by the court sitting as a whole in accordance with the formulate policies and procedure in regard to re- rules. view of court-martial cases in the offices of the Subsec. (b). Pub. L. 98–209, § 7(c), amended subsec. (b) Judge Advocates General and by Courts of generally, designating existing provisions as par. (1), Criminal Appeals. struck out provision extending applicability of provi- (g) No member of a Court of Criminal Appeals sions to sentences affecting a general or flag officer, shall be required, or on his own initiative be per- and added par. (2). mitted, to prepare, approve, disapprove, review, Subsec. (e). Pub. L. 98–209, § 10(c)(1), substituted ‘‘the or submit, with respect to any other member of Court of Military Appeals, or the Supreme Court’’ for ‘‘or the Court of Military Appeals’’. the same or another Court of Criminal Appeals, 1968—Subsec. (a). Pub. L. 90–632, § 2(27)(A), (B), sub- an effectiveness, fitness, or efficiency report, or stituted ‘‘Court of Military Review’’ for ‘‘board of re- any other report or document used in whole or view’’ in section catchline and, in subsec. (a), sub- in part for the purpose of determining whether a stituted ‘‘Court of Military Review’’ for ‘‘board of re- Page 489 TITLE 10—ARMED FORCES § 867 view’’ as name of reviewing body established by each accused (if any), is deposited in the United Judge Advocate General, and inserted provisions set- States mails for delivery by first-class cer- ting out procedures for such Courts of Military Review, tified mail to the accused at an address pro- their composition and functions. vided by the accused or, if no such address has Subsecs. (b) to (e). Pub. L. 90–632, § 2(27)(C), sub- stituted ‘‘Court of Military Review’’ for ‘‘board of re- been provided by the accused, at the latest ad- view’’ wherever appearing. dress listed for the accused in his official serv- Subsec. (f). Pub. L. 90–632, § 2(27)(D), substituted ice record. ‘‘Courts of Military Review’’ for ‘‘boards of review’’ in The Court of Appeals for the Armed Forces shall two places. act upon such a petition promptly in accordance Subsecs. (g), (h). Pub. L. 90–632, § 2(27)(E), added sub- secs. (g) and (h). with the rules of the court. (c) In any case reviewed by it, the Court of Ap- CHANGE OF NAME peals for the Armed Forces may act only with Pub. L. 103–337, div. A, title IX, § 924(b)(1), Oct. 5, 1994, respect to the findings and sentence as approved 108 Stat. 2831, provided that: ‘‘Each Court of Military by the convening authority and as affirmed or Review shall hereafter be known and designated as a set aside as incorrect in law by the Court of Court of Criminal Appeals.’’ Criminal Appeals. In a case which the Judge Ad- vocate General orders sent to the Court of Ap- EFFECTIVE DATE OF 1983 AMENDMENT peals for the Armed Forces, that action need be Amendment by Pub. L. 98–209 effective first day of taken only with respect to the issues raised by eighth calendar month beginning after Dec. 6, 1983, but him. In a case reviewed upon petition of the ac- amendments by section 7(b), (c) of Pub. L. 98–209 not to cused, that action need be taken only with re- apply to any case in which the findings and sentence were adjudged by a court-martial before that date, and spect to issues specified in the grant of review. the proceedings in any such case to be held in the same The Court of Appeals for the Armed Forces shall manner and with the same effect as if such amend- take action only with respect to matters of law. ments had not been enacted, see section 12(a)(1), (4) of (d) If the Court of Appeals for the Armed Pub. L. 98–209, set out as a note under section 801 of Forces sets aside the findings and sentence, it this title. may, except where the setting aside is based on lack of sufficient evidence in the record to sup- EFFECTIVE DATE OF 1968 AMENDMENT port the findings, order a rehearing. If it sets Amendment by Pub. L. 90–632 effective first day of aside the findings and sentence and does not tenth month following October 1968, see section 4 of order a rehearing, it shall order that the charges Pub. L. 90–632, set out as a note under section 801 of this title. be dismissed. (e) After it has acted on a case, the Court of STATUTORY REFERENCES TO BOARD OF REVIEW DEEMED Appeals for the Armed Forces may direct the REFERENCES TO COURT OF MILITARY REVIEW Judge Advocate General to return the record to Pub. L. 90–632, § 3(b), Oct. 24, 1968, 82 Stat. 1343, pro- the Court of Criminal Appeals for further review vided that: ‘‘Whenever the term board of review is used, in accordance with the decision of the court. with reference to or in connection with the appellate Otherwise, unless there is to be further action review of courts-martial cases, in any provision of Fed- by the President or the Secretary concerned, the eral law (other than provisions amended by this Act) Judge Advocate General shall instruct the con- [see Short Title of 1968 Amendment note under section vening authority to take action in accordance 801 of this title] or in any regulation, document, or with that decision. If the court has ordered a re- record of the United States, such term shall be deemed to mean Court of Military Review [now Court of Crimi- hearing, but the convening authority finds a re- nal Appeals].’’ hearing impracticable, he may dismiss the charges. § 867. Art. 67. Review by the Court of Appeals for (Aug. 10, 1956, ch. 1041, 70A Stat. 60; Pub. L. the Armed Forces 88–426, title IV, § 403(j), Aug. 14, 1964, 78 Stat. 434; (a) The Court of Appeals for the Armed Forces Pub. L. 90–340, § 1, June 15, 1968, 82 Stat. 178; Pub. shall review the record in— L. 90–632, § 2(28), Oct. 24, 1968, 82 Stat. 1342; Pub. (1) all cases in which the sentence, as af- L. 96–579, § 12(a), Dec. 23, 1980, 94 Stat. 3369; Pub. firmed by a Court of Criminal Appeals, ex- L. 97–81, § 5, Nov. 20, 1981, 95 Stat. 1088; Pub. L. tends to death; 97–295, § 1(12), Oct. 12, 1982, 96 Stat. 1289; Pub. L. (2) all cases reviewed by a Court of Criminal 98–209, §§ 7(d), 9(a), 10(c)(2), 13(d), Dec. 6, 1983, 97 Appeals which the Judge Advocate General or- Stat. 1402, 1404, 1406, 1408; Pub. L. 100–26, § 7(a)(2), ders sent to the Court of Appeals for the Apr. 21, 1987, 101 Stat. 275; Pub. L. 100–456, div. A, Armed Forces for review; and title VII, § 722(a), (c), Sept. 29, 1988, 102 Stat. 2002, (3) all cases reviewed by a Court of Criminal 2003; Pub. L. 101–189, div. A, title XIII, § 1301(a), Appeals in which, upon petition of the accused Nov. 29, 1989, 103 Stat. 1569; Pub. L. 103–337, div. and on good cause shown, the Court of Appeals A, title IX, § 924(c)(1), (2), (4)(B), Oct. 5, 1994, 108 for the Armed Forces has granted a review. Stat. 2831, 2832.) (b) The accused may petition the Court of Ap- HISTORICAL AND REVISION NOTES peals for the Armed Forces for review of a deci- 1956 ACT sion of a Court of Criminal Appeals within 60 Revised days from the earlier of— section Source (U.S. Code) Source (Statutes at Large) (1) the date on which the accused is notified 867(a) ...... 50:654(a). May 5, 1950, ch. 169, § 1 of the decision of the Court of Criminal Ap- 867(b) ...... 50:654(b). (Art. 67), 64 Stat. 129; peals; or 867(c) ...... 50:654(c). Mar. 2, 1955, ch. 9, § 1(i), 867(d) ...... 50:654(d). 69 Stat. 10. (2) the date on which a copy of the decision 867(e) ...... 50:654(e). of the Court of Criminal Appeals, after being 867(f) ...... 50:654(f). served on appellate counsel of record for the 867(g) ...... 50:654(g). § 867 TITLE 10—ARMED FORCES Page 490

In subsection (a)(1), the word ‘‘is’’ is substituted for Military Appeals by the Supreme Court, and struck out the words ‘‘is hereby established’’. The words ‘‘all’’ and subsec. (i) which related to annuities for judges and ‘‘which shall be’’ are omitted as surplusage. The word former or retired judges, and survivors and former ‘‘consists’’ is substituted for the words ‘‘shall consist’’. spouses of judges and former judges. The word ‘‘civil’’ is substituted for the word ‘‘civilian’’. 1988—Subsec. (a)(4). Pub. L. 100–456, § 722(c), inserted The word ‘‘may’’ is substituted for the word ‘‘shall’’ be- ‘‘or an annuity under subsection (i) or subchapter III of fore the words ‘‘be appointed’’. The word ‘‘is’’ is sub- chapter 83 or chapter 84 of title 5’’ after ‘‘retired pay’’ stituted for the word ‘‘shall’’ before the words ‘‘any in two places. person’’. The words ‘‘is entitled to’’ are substituted for Subsec. (i). Pub. L. 100–456, § 722(a), added subsec. (i). the words ‘‘shall receive’’. The word ‘‘is’’ is substituted 1987—Subsec. (g)(1). Pub. L. 100–26 substituted ‘‘the for the words ‘‘shall be’’ in the fourth sentence. The Staff Judge Advocate to the Commandant of the Ma- word ‘‘may’’ is substituted for the words ‘‘shall have rine Corps’’ for ‘‘the Director, Judge Advocate Division, power to * * * to’’. The word ‘‘does’’ is substituted for Headquarters, United States Marine Corps’’. the word ‘‘shall’’ in the next to the last sentence. In the 1983—Subsec. (a)(3). Pub. L. 98–209, § 13(d), inserted last sentence, the words ‘‘is entitled * * * to’’ are sub- ‘‘Circuit’’ after ‘‘District of Columbia’’. stituted for the word ‘‘shall’’. The word ‘‘outside’’ is Subsec. (b)(1). Pub. L. 98–209, § 7(d), struck out ‘‘af- substituted for the words ‘‘at a place other than his of- fects a general or flag officer or’’ before ‘‘extends to ficial station. The official station of such judges for death’’. such purpose shall be’’. The words ‘‘also’’ and ‘‘actu- Subsec. (g). Pub. L. 98–209, § 9(a), designated existing ally’’ are omitted as surplusage. provisions as par. (1), substituted ‘‘A committee con- In subsection (a)(2), the words ‘‘February 28, 1951,’’ sisting of the judges of the Court of Military Appeals, are substituted for the words ‘‘the effective date of this the Judge Advocates General of the Army, Navy, and subdivision’’. The word ‘‘shall’’ in the first sentence, Air Force, the Chief Counsel of the Coast Guard, the and the word ‘‘shall’’ before the word ‘‘expire’’ in the Director, Judge Advocate Division, Headquarters, second sentence, are omitted as surplusage. The word United States Marine Corps, and two members of the ‘‘before’’ is substituted for the words ‘‘prior to’’. The public appointed by the Secretary of Defense shall word ‘‘may’’ is substituted for the word ‘‘shall’’ before meet at least annually. The committee shall make an the words ‘‘be appointed’’. annual comprehensive survey of the operation of this In subsection (a)(3), the word ‘‘for’’ is substituted for chapter. After each such survey, the committee shall the words ‘‘upon the ground of’’. report’’ for ‘‘The Court of Military Appeals and the In subsection (b), the words ‘‘the following cases’’ are Judge Advocates General shall meet annually to make omitted as surplusage. a comprehensive survey of the operation of this chapter In subsections (b) and (d), the word ‘‘sent’’ is sub- and report’’, and added pars. (2) and (3). stituted for the word ‘‘forwarded’’. Subsec. (h). Pub. L. 98–209, § 10(c)(2), added subsec. (h). In subsection (c), the word ‘‘when’’ is inserted after 1982—Subsec. (d). Pub. L. 97–295, § 1(12)(A), substituted the word ‘‘time’’. The words ‘‘a grant of’’ are omitted ‘‘Court of Military Review’’ for ‘‘board of review’’ after as surplusage. ‘‘incorrect in law by the’’. Subsec. (g). Pub. L. 97–295, § 1(12)(B), substituted In subsection (d), the word ‘‘may’’ is substituted for ‘‘Secretary of Transportation’’ for ‘‘Secretary of the the word ‘‘shall’’ in the first sentence. Treasury’’ after ‘‘military departments, and the’’. In subsection (f), the words ‘‘Secretary concerned’’ 1981—Subsec. (c). Pub. L. 97–81 substituted provisions are substituted for the words ‘‘Secretary of the Depart- authorizing the accused to petition the Court of Mili- ment’’. tary Appeals for review of a decision of a Court of Mili- In subsection (g), the words ‘‘of the armed forces’’ are tary Review within 60 days from the earlier of (1) the omitted as surplusage. The words ‘‘policies as to sen- date on which the accused is notified of the decision of tences’’ are substituted for the words ‘‘sentence poli- the Court of Military Review, or (2) the date on which cies’’. The word ‘‘considered’’ is substituted for the a copy of the decision of the Court of Military Review, word ‘‘deemed’’. The words ‘‘Secretaries of the military after being served on appellate counsel of record for the departments, and the Secretary of the Treasury’’ are accused (if any), is deposited in the United States mails substituted for the words ‘‘Secretaries of the Depart- for delivery by first-class certified mail to the accused ments’’. at an address provided by the accused or, if no such ad- 1982 ACT dress has been provided by the accused, at the latest address listed for the accused in his official service In subsection (d), the words ‘‘Court of Military Re- record, and directing the Court of Military Appeals to view’’ are substituted for ‘‘board of review’’ because of act upon such a petition promptly in accordance with section 3(b) of the Military Justice Act of 1968 (Pub. L. the rules of the court for provision which had given the 90–632, Oct. 24, 1968, 82 Stat. 1343). accused 30 days from the time when he was notified of The change in subsection (g) reflects the transfer of the decision of a board of review to petition the Court functions from the Secretary of the Treasury to the of Military Appeals for review and which had directed Secretary of Transportation under 49:1655(b). the court to act upon such a petition within 30 days of the receipt thereof. AMENDMENTS 1980—Subsec. (a)(1). Pub. L. 96–579 struck out third 1994—Pub. L. 103–337, § 924(c)(4)(B), substituted ‘‘Court sentence prescribing expiration of terms of office of all of Appeals for the Armed Forces’’ for ‘‘Court of Mili- successors of judges of the Court of Military Appeals tary Appeals’’ in section catchline. serving on June 15, 1968, fifteen years after expiration Pub. L. 103–337, § 924(c)(2), substituted ‘‘Court of of term of their predecessors subject to requirement Criminal Appeals’’ for ‘‘Court of Military Review’’ that any judge appointed to fill a vacancy occurring wherever appearing in subsecs. (a) to (c) and (e). prior to the expiration of the term for which his prede- Pub. L. 103–337, § 924(c)(1), substituted ‘‘Court of Ap- cessor was appointed should be appointed only for the peals for the Armed Forces’’ for ‘‘Court of Military Ap- unexpired term of the predecessor. peals’’ wherever appearing. 1968—Subsec. (a)(1). Pub. L. 90–340 changed the name 1989—Pub. L. 101–189 redesignated subsecs. (b) to (f) as of the Court of Military Appeals to the United States (a) to (e), respectively, struck out former subsec. (a) Court of Military Appeals, and established it under Ar- which related to establishment of the United States ticle I of the United States Constitution, provided that Court of Military Appeals, and appointment, removal, the terms of office of all successors of the judges serv- allowances and compensation, etc., of judges of such ing on June 15, 1968, shall expire 15 years after the expi- court, struck out subsec. (g) which related to a com- ration of the terms for which their predecessors were mittee required to make annual comprehensive surveys appointed but that any judge appointed to fill a va- of the operation of this chapter, struck out subsec. (h) cancy occurring prior to the expiration of the term of which related to review of decisions of the Court of his predecessor shall be appointed only for the un- Page 491 TITLE 10—ARMED FORCES § 867a expired term of his predecessor, substituted provisions EFFECTIVE DATE OF 1964 AMENDMENT that each judge is entitled to the same salary and trav- For effective date of amendment by Pub. L. 88–426, el allowances as are judges of the United States Court see section 501 of Pub. L. 88–426. of Appeals for provisions that entitled each judge to a salary of $33,000 a year and a travel and maintenance COMMISSION TO STUDY AND MAKE RECOMMENDATIONS allowance, for expenses incurred while attending court CONCERNING SENTENCING AUTHORITY, JURISDICTION, or transacting official business outside the District of TENURE, AND RETIREMENT OF MILITARY JUDGES; ES- Columbia, not to exceed $15 a day, and provided for the TABLISHMENT; COMPOSITION; REPORT TO CONGRES- precedence of the chief judge, and of the other judges SIONAL COMMITTEES based on their seniority. Pub. L. 98–209, § 9(b), Dec. 6, 1983, 97 Stat. 1404, as Subsec. (a)(2). Pub. L. 90–340 redesignated former par. amended by Pub. L. 98–525, title XV, § 1521, Oct. 19, 1984, (3) as (2) and changed the name of the Court of Military 98 Stat. 2628, directed Secretary of Defense to establish Appeals to the United States Court of Military Appeals. a commission to study the sentencing authority, juris- Provisions of former par. (2) pertaining to the terms of diction, tenure, and retirement system of military office of judges were placed in par. (1). Provisions of judges, and to report, not later than Dec. 15, 1984, its former par. (2) pertaining to the terms of office of the findings and recommendations to committees of Con- three judges first taking office after February 28, 1951, gress and to the committee established under former and expiring, as designated by the President at the section 867(g) of this title. time of nomination, one on May 1, 1956, one on May 1, 1961, and one on May 1, 1966, were struck out. TERMS OF OFFICE OF JUDGES OF UNITED STATES COURT Subsec. (a)(3). Pub. L. 90–340 redesignated former par. OF MILITARY APPEALS (4) as (3) and changed the name of the Court of Military Pub. L. 96–579, § 12(b), Dec. 23, 1980, 94 Stat. 3369, pro- Appeals to the United States Court of Military Appeals, vided that the term of office of a judge of United States and provided that a judge appointed to fill a temporary Court of Military Appeals serving on such court on Dec. vacancy due to illness or disability may only be a judge 23, 1980, expire (1) on the date the term of such judge of the Court of Appeals for the District of Columbia. would have expired under the law in effect on the day Former par. (3) redesignated (2). before Dec. 23, 1980, or (2) ten years after the date on Subsec. (a)(4). Pub. L. 90–340 added par. (4). Former which such judge took office as a judge of the United par. (4) redesignated (3). States Court of Military Appeals, whichever is later. Subsecs. (b), (f). Pub. L. 90–632 substituted ‘‘Court of Military Review’’ for ‘‘board of review’’ wherever ap- CONTINUATION OF POWERS AND JURISDICTION OF COURT pearing. OF MILITARY APPEALS; STATUS OF JUDGES 1964—Subsec. (a)(1). Pub. L. 88–426 increased salary of Pub. L. 90–340, § 2, June 15, 1968, 82 Stat. 178, provided judges from $25,500 to $33,000. that: ‘‘The United States Court of Military Appeals [now United States Court of Appeals for the Armed Forces] established under this Act [which amended sub- EFFECTIVE DATE OF 1988 AMENDMENT sec. (a) of this section] is a continuation of the Court Pub. L. 100–456, div. A, title VII, § 722(d), Sept. 29, 1988, of Military Appeals as it existed prior to the effective 102 Stat. 2003, provided that: ‘‘Subsection (i) of section date of this Act [June 15, 1968], and no loss of rights or 867 of title 10, United States Code, as added by sub- powers, interruption of jurisdiction, or prejudice to section (a), shall apply with respect to judges of the matters pending in the Court of Military Appeals be- United States Court of Military Appeals [now United fore the effective date of this Act shall result. A judge States Court of Appeals for the Armed Forces] whose of the Court of Military Appeals so serving on the day term of service on such court ends on or after the date before the effective date of this Act shall, for all pur- of the enactment of this Act [Sept. 29, 1988] and to the poses, be a judge of the United States Court of Military survivors of such judges.’’ Appeals under this Act.’’ SALARY INCREASES FFECTIVE DATE OF 1983 AMENDMENT E 1987—Salaries of judges increased to $95,000 per Amendment by sections 9(a) and 13(d) Pub. L. 98–209 annum, on recommendation of President, see note set effective Dec. 6, 1983, and amendment by sections 7(d) out under section 358 of Title 2, The Congress. and 10(c)(2) of Pub. L. 98–209 effective first day of eighth 1977—Salaries of judges increased to $57,500 per calendar month beginning after Dec. 6, 1983, but amend- annum, on recommendation of President, see note set ment by section 7(d) of Pub. L. 98–209 not to apply to out under section 358 of Title 2. any case in which the findings and sentence were ad- 1969—Salaries of judges increased from $33,000 to judged by a court-martial before that date, and the pro- $42,500 per annum, commencing first day of pay period ceedings in any such case to be held in the same man- which begins after Feb. 14, 1969, on recommendation of ner and with the same effect as if such amendments President, see note set out under section 358 of Title 2. had not been enacted, see section 12(a)(1), (4) of Pub. L. EXECUTIVE ORDER NO. 12063 98–209, set out as a note under section 801 of this title. Ex. Ord. No. 12063, June 5, 1978, 43 F.R. 24659, which related to the United States Court of Military Appeals EFFECTIVE DATE OF 1981 AMENDMENT Nominating Commission, was revoked by Ex. Ord. No. Amendment by Pub. L. 97–81 to take effect at end of 12258, Dec. 31, 1980, 46 F.R. 1251, formerly set out as a 60-day period beginning on Nov. 20, 1981, and to apply to note under section 14 of the Appendix to Title 5, Gov- any accused with respect to a Court of Military Review ernment Organization and Employees. [now Court of Criminal Appeals] decision that is dated on or after that date, see section 7(a), (b)(5) of Pub. L. § 867a. Art. 67a. Review by the Supreme Court 97–81, set out as an Effective Date note under section (a) Decisions of the United States Court of Ap- 706 of this title. peals for the Armed Forces are subject to review by the Supreme Court by writ of certiorari as EFFECTIVE DATE OF 1968 AMENDMENT provided in section 1259 of title 28. The Supreme Amendment by Pub. L. 90–632 effective first day of Court may not review by a writ of certiorari tenth month following October 1968, see section 4 of under this section any action of the Court of Ap- Pub. L. 90–632, set out as a note under section 801 of peals for the Armed Forces in refusing to grant this title. a petition for review. § 868 TITLE 10—ARMED FORCES Page 492

(b) The accused may petition the Supreme amined in the office of the Judge Advocate Gen- Court for a writ of certiorari without prepay- eral if there is a finding of guilty and the ac- ment of fees and costs or security therefor and cused does not waive or withdraw his right to without filing the affidavit required by section appellate review under section 861 of this title 1915(a) of title 28. (article 61). If any part of the findings or sen- tence is found to be unsupported in law or if re- (Added Pub. L. 101–189, div. A, title XIII, assessment of the sentence is appropriate, the § 1301(b), Nov. 29, 1989, 103 Stat. 1569; amended Judge Advocate General may modify or set aside Pub. L. 103–337, div. A, title IX, § 924(c)(1), Oct. 5, the findings or sentence or both. 1994, 108 Stat. 2831.) (b) The findings or sentence, or both, in a AMENDMENTS court-martial case not reviewed under sub- 1994—Subsec. (a). Pub. L. 103–337 substituted ‘‘Court section (a) or under section 866 of this title (arti- of Appeals for the Armed Forces’’ for ‘‘Court of Mili- cle 66) may be modified or set aside, in whole or tary Appeals’’ in two places. in part, by the Judge Advocate General on the ground of newly discovered evidence, fraud on § 868. Art. 68. Branch offices the court, lack of jurisdiction over the accused The Secretary concerned may direct the Judge or the offense, error prejudicial to the substan- Advocate General to establish a branch office tial rights of the accused, or the appropriateness with any command. The branch office shall be of the sentence. If such a case is considered upon under an Assistant Judge Advocate General application of the accused, the application must who, with the consent of the Judge Advocate be filed in the office of the Judge Advocate Gen- General, may establish a Court of Criminal Ap- eral by the accused on or before the last day of peals with one or more panels. That Assistant the two-year period beginning on the date the Judge Advocate General and any Court of Crimi- sentence is approved under section 860(c) of this nal Appeals established by him may perform for title (article 60(c)), unless the accused estab- that command under the general supervision of lishes good cause for failure to file within that the Judge Advocate General, the respective du- time. ties which the Judge Advocate General and a (c) If the Judge Advocate General sets aside Court of Criminal Appeals established by the the findings or sentence, he may, except when Judge Advocate General would otherwise be re- the setting aside is based on lack of sufficient quired to perform as to all cases involving sen- evidence in the record to support the findings, tences not requiring approval by the President. order a rehearing. If he sets aside the findings and sentence and does not order a rehearing, he (Aug. 10, 1956, ch. 1041, 70A Stat. 61; Pub. L. shall order that the charges be dismissed. If the 90–632, § 2(29), Oct. 24, 1968, 82 Stat. 1342; Pub. L. Judge Advocate General orders a rehearing but 103–337, div. A, title IX, § 924(c)(2), Oct. 5, 1994, 108 the convening authority finds a rehearing im- Stat. 2831.) practical, the convening authority shall dismiss HISTORICAL AND REVISION NOTES the charges. (d) A Court of Criminal Appeals may review, Revised under section 866 of this title (article 66)— section Source (U.S. Code) Source (Statutes at Large) (1) any court-martial case which (A) is sub- 868 ...... 50:655. May 5, 1950, ch. 169, § 1 ject to action by the Judge Advocate General (Art. 68), 64 Stat. 130. under this section, and (B) is sent to the Court The word ‘‘considers’’ is substituted for the word of Criminal Appeals by order of the Judge Ad- ‘‘deems’’. The word ‘‘may’’ is substituted for the words vocate General; and ‘‘shall be empowered to’’. The word ‘‘respective’’ is in- (2) any action taken by the Judge Advocate serted for clarity. General under this section in such case. AMENDMENTS (e) Notwithstanding section 866 of this title 1994—Pub. L. 103–337 substituted ‘‘Court of Criminal (article 66), in any case reviewed by a Court of Appeals’’ for ‘‘Court of Military Review’’ wherever ap- Criminal Appeals under this section, the Court pearing. may take action only with respect to matters of 1968—Pub. L. 90–632 substituted the Secretary con- law. cerned for the President as the individual authorized to direct the Judge Advocate General to establish a (Aug. 10, 1956, ch. 1041, 70A Stat. 61; Pub. L. branch office under an Assistant Judge Advocate Gen- 90–632, § 2(30), Oct. 24, 1968, 82 Stat. 1342; Pub. L. eral with any command and substituted ‘‘Court of Mili- 97–81, § 6, Nov. 20, 1981, 95 Stat. 1089; Pub. L. tary Review’’ for ‘‘board of review’’ as the name of the 98–209, § 7(e)(1), Dec. 6, 1983, 97 Stat. 1402; Pub. L. body established by the Assistant Judge Advocate Gen- 101–189, div. A, title XIII, §§ 1302(a), 1304(b)(1), eral in charge of the branch office. Nov. 29, 1989, 103 Stat. 1576, 1577; Pub. L. 103–337, EFFECTIVE DATE OF 1968 AMENDMENT div. A, title IX, § 924(c)(2), Oct. 5, 1994, 108 Stat. 2831.) Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of HISTORICAL AND REVISION NOTES Pub. L. 90–632, set out as a note under section 801 of this title. Revised section Source (U.S. Code) Source (Statutes at Large)

§ 869. Art. 69. Review in the office of the Judge 869 ...... 50:656. May 5, 1950, ch. 169, § 1 Advocate General (Art. 69), 64 Stat. 130.

(a) The record of trial in each general court- The word ‘‘may’’ is substituted for the word ‘‘will’’. martial that is not otherwise reviewed under The word ‘‘under’’ is substituted for the words ‘‘pursu- section 866 of this title (article 66) shall be ex- ant to the provisions of’’. Page 493 TITLE 10—ARMED FORCES § 870

AMENDMENTS court-martial after the date of the enactment of this Act [Nov. 29, 1989].’’ 1994—Subsecs. (d), (e). Pub. L. 103–337 substituted ‘‘Court of Criminal Appeals’’ for ‘‘Court of Military Re- EFFECTIVE DATE OF 1983 AMENDMENT view’’ wherever appearing. Amendment by Pub. L. 98–209 effective first day of 1989—Subsec. (a). Pub. L. 101–189, § 1304(b)(1), which di- eighth calendar month beginning after Dec. 6, 1983, but rected amendment of subsec. (a) by striking ‘‘section not to apply to any case in which the findings and sen- 867(b)(2) of this title (article 67(b)(2))’’ in the third sen- tence were adjudged by a court-martial before that tence and inserting in lieu thereof ‘‘section 867(a)(2) of date, and the proceedings in any such case to be held this title (article 67(a)(2))’’, could not be executed be- in the same manner and with the same effect as if such cause of the intervening amendment by Pub. L. 101–189, amendments had not been enacted, see section 12(a)(1), § 1302(a)(1), which struck out the third sentence, see (4) of Pub. L. 98–209, set out as a note under section 801 below. Pub. L. 101–189, § 1302(a)(1), struck out the third sen- of this title. tence, which read as follows: ‘‘If the Judge Advocate EFFECTIVE DATE OF 1981 AMENDMENT General so directs, the record shall be reviewed by a Amendment by Pub. L. 97–81 effective at end of 60-day Court of Military Review under section 866 of this title period beginning on Nov. 20, 1981, see section 7(a) of (article 66), but in that event there may be no further Pub. L. 97–81, set out as an Effective Date note under review by the Court of Military Appeals except under section 706 of this title. section 867(b)(2) of this title (article 67(b)(2)).’’ Subsecs. (d), (e). Pub. L. 101–189, § 1302(a)(2), added EFFECTIVE DATE OF 1968 AMENDMENT subsecs. (d) and (e). 1983—Pub. L. 98–209 amended section generally. Prior Amendment by Pub. L. 90–632 effective Oct. 24, 1968, to amendment section provided that every record of see section 4(b) of Pub. L. 90–632, set out as a note under trial by general court-martial, in which there had been section 801 of this title. a finding of guilty and a sentence, the appellate review TWO-YEAR PERIOD FOR APPLICATIONS FOR MODIFICA- of which was not otherwise provided for by section 866 TION OR SET-ASIDE INAPPLICABLE TO APPLICATIONS of this title, was to be examined in the office of the FILED ON OR BEFORE OCTOBER 1, 1983 Judge Advocate General; that if any part of the find- ings or sentence was found unsupported in law, or if the Pub. L. 98–209, § 7(e)(2), Dec. 6, 1983, 97 Stat. 1403, pro- Judge Advocate General so directed, the record was to vided that the two-year period specified under the sec- be reviewed by a board of review in accordance with ond sentence of subsec. (b) of this section did not apply section 866 of this title, but in that event there could to any application filed in the office of the appropriate be no further review by the Court of Military Appeals Judge Advocate General on or before Oct. 1, 1983, and except under section 867(b)(2) of this title, that not- that the application in such a case would be considered withstanding section 876 of this title, the findings or in the same manner and with the same effect as if such sentence, or both, in a court-martial case which had two-year period had not been enacted. been finally reviewed, but had not been reviewed by a § 870. Art. 70. Appellate counsel Court of Military Review could be vacated or modified, in whole or in part, by the Judge Advocate General on (a) The Judge Advocate General shall detail in the ground of newly discovered evidence, fraud on the his office one or more commissioned officers as court, lack of jurisdiction over the accused or the of- appellate Government counsel, and one or more fense, or error prejudicial to the substantial rights of commissioned officers as appellate defense coun- the accused; and that when such a case was considered upon application of the accused, the application had to sel, who are qualified under section 827(b)(1) of be filed in the Office of the Judge Advocate General by this title (article 27(b)(1)). the accused before: (1) October 1, 1983, or (2) the last (b) Appellate Government counsel shall rep- day of the two-year period beginning on the date the resent the United States before the Court of sentence was approved by the convening authority or, Criminal Appeals or the Court of Appeals for the in a special court-martial case which required action Armed Forces when directed to do so by the under section 865(b) of this title, the officer exercising Judge Advocate General. Appellate Government general court-martial jurisdiction, whichever was counsel may represent the United States before later, unless the accused established good cause for the Supreme Court in cases arising under this failure to file within that time. 1981—Pub. L. 97–81 inserted provision that, when a chapter when requested to do so by the Attorney case is considered upon application of the accused, the General. application must be filed in the Office of the Judge Ad- (c) Appellate defense counsel shall represent vocate General by the accused before (1) October 1, 1983, the accused before the Court of Criminal Ap- or (2) the last day of the two-year period beginning on peals, the Court of Appeals for the Armed the date the sentence is approved by the convening au- Forces, or the Supreme Court— thority or, in a special court-martial case which re- (1) when requested by the accused; quires action under section 865(b) of this title (article (2) when the United States is represented by 65(b)), the officer exercising general court-martial ju- counsel; or risdiction, whichever is later, unless the accused estab- lishes good cause for failure to file within that time. (3) when the Judge Advocate General has 1968—Pub. L. 90–632 authorized the Judge Advocate sent the case to the Court of Appeals for the General to either vacate or modify the findings or sen- Armed Forces. tence, or both, in whole or in part, in any court-martial (d) The accused has the right to be represented case which has been finally reviewed, but which has not before the Court of Criminal Appeals, the Court been reviewed by a Court of Military Review, because of newly discovered evidence, fraud on the court, lack of Appeals for the Armed Forces, or the Su- of jurisdiction over the accused or the offense, or error preme Court by civilian counsel if provided by prejudicial to the substantial rights of the accused. him. (e) Military appellate counsel shall also per- EFFECTIVE DATE OF 1989 AMENDMENT form such other functions in connection with Pub. L. 101–189, div. A, title XIII, § 1302(b), Nov. 29, the review of court martial cases as the Judge 1989, 103 Stat. 1576, provided that: ‘‘Subsection (e) of Advocate General directs. section 869 of title 10, United States Code, as added by subsection (a), shall apply with respect to cases in (Aug. 10, 1956, ch. 1041, 70A Stat. 62; Pub. L. which a finding of guilty is adjudged by a general 90–632, § 2(31), Oct. 24, 1968, 82 Stat. 1342; Pub. L. § 871 TITLE 10—ARMED FORCES Page 494

98–209, § 10(c)(3), Dec. 6, 1983, 97 Stat. 1406; Pub. L. retary, or Assistant Secretary, as the case may 103–337, div. A, title IX, § 924(c)(1), (2), Oct. 5, be, may commute, remit, or suspend the sen- 1994, 108 Stat. 2831.) tence, or any part of the sentence, as he sees fit. In time of war or national emergency he may HISTORICAL AND REVISION NOTES commute a sentence of dismissal to reduction to any enlisted grade. A person so reduced may be Revised Source (U.S. Code) Source (Statutes at Large) section required to serve for the duration of the war or 870(a) ...... 50:657(a). May 5, 1950, ch. 169, § 1 emergency and six months thereafter. 870(b) ...... 50:657(b). (Art. 70), 64 Stat. 130. (c)(1) If a sentence extends to death, dismissal, 870(c) ...... 50:657(c). 870(d) ...... 50:657(d). or a dishonorable or bad conduct discharge and 870(e) ...... 50:657(e). if the right of the accused to appellate review is not waived, and an appeal is not withdrawn, In subsection (a), the word ‘‘detail’’ is substituted for under section 861 of this title (article 61), that the word ‘‘appoint’’, since the filling of the position in- part of the sentence extending to death, dismis- volved is not appointment to an office in the constitu- tional sense. The word ‘‘commissioned’’ is inserted for sal, or a dishonorable or bad-conduct discharge clarity. The word ‘‘are’’ is substituted for the words may not be executed until there is a final judg- ‘‘shall be’’. The words ‘‘the provisions of’’ are omitted ment as to the legality of the proceedings (and as surplusage. with respect to death or dismissal, approval In subsections (b) and (c), the word ‘‘shall’’ is sub- under subsection (a) or (b), as appropriate). A stituted for the words ‘‘It shall be the duty of * * * to’’. judgment as to legality of the proceedings is In subsection (c)(3), the word ‘‘sent’’ is substituted final in such cases when review is completed by for the word ‘‘transmitted’’. a Court of Criminal Appeals and— In subsection (d), the word ‘‘has’’ is substituted for the words ‘‘shall have’’. (A) the time for the accused to file a petition In subsection (e), the word ‘‘directs’’ is substituted for review by the Court of Appeals for the for the words ‘‘shall direct’’. Armed Forces has expired and the accused has not filed a timely petition for such review and AMENDMENTS the case is not otherwise under review by that 1994—Subsecs. (b) to (d). Pub. L. 103–337 substituted Court; ‘‘Court of Criminal Appeals’’ for ‘‘Court of Military Re- (B) such a petition is rejected by the Court view’’ and ‘‘Court of Appeals for the Armed Forces’’ for of Appeals for the Armed Forces; or ‘‘Court of Military Appeals’’ wherever appearing. (C) review is completed in accordance with 1983—Subsec. (b). Pub. L. 98–209, § 10(c)(3)(A), inserted the judgment of the Court of Appeals for the provision that Appellate Government counsel may rep- resent the United States before the Supreme Court in Armed Forces and— cases arising under this chapter when requested to do (i) a petition for a writ of certiorari is not so by the Attorney General. filed within the time limits prescribed by Subsecs. (c), (d). Pub. L. 98–209, § 10(c)(3)(B), amended the Supreme Court; subsecs. (c) and (d) generally, inserting references to (ii) such a petition is rejected by the Su- the Supreme Court. preme Court; or 1968—Subsecs. (b) to (d). Pub. L. 90–632 substituted (iii) review is otherwise completed in ac- ‘‘Court of Military Review’’ for ‘‘board of review’’ wher- cordance with the judgment of the Supreme ever appearing. Court. EFFECTIVE DATE OF 1983 AMENDMENT (2) If a sentence extends to dismissal or a dis- Amendment by Pub. L. 98–209 effective first day of honorable or bad conduct discharge and if the eighth calendar month beginning after Dec. 6, 1983, see right of the accused to appellate review is section 12(a)(1) of Pub. L. 98–209, set out as a note under waived, or an appeal is withdrawn, under section section 801 of this title. 861 of this title (article 61), that part of the sen- EFFECTIVE DATE OF 1968 AMENDMENT tence extending to dismissal or a bad-conduct or dishonorable discharge may not be executed Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of until review of the case by a judge advocate (and Pub. L. 90–632, set out as a note under section 801 of any action on that review) under section 864 of this title. this title (article 64) is completed. Any other part of a court-martial sentence may be ordered § 871. Art. 71. Execution of sentence; suspension executed by the convening authority or other of sentence person acting on the case under section 860 of (a) If the sentence of the court-martial ex- this title (article 60) when approved by him tends to death, that part of the sentence provid- under that section. ing for death may not be executed until ap- (d) The convening authority or other person proved by the President. In such a case, the acting on the case under section 860 of this title President may commute, remit, or suspend the (article 60) may suspend the execution of any sentence, or any part thereof, as he sees fit. sentence or part thereof, except a death sen- That part of the sentence providing for death tence. Paragraphs (2) and (4) of subsection (c) of may not be suspended. section 860 of this title (article 60) shall apply to (b) If in the case of a commissioned officer, any decision by the convening authority or an- cadet, or midshipman, the sentence of a court- other person authorized to act under this sec- martial extends to dismissal, that part of the tion to suspend the execution of any sentence or sentence providing for dismissal may not be exe- part thereof under this subsection. cuted until approved by the Secretary concerned (Aug. 10, 1956, ch. 1041, 70A Stat. 62; Pub. L. or such Under Secretary or Assistant Secretary 90–632, § 2(32), Oct. 24, 1968, 82 Stat. 1342; Pub. L. as may be designated by the Secretary con- 98–209, § 5(e), Dec. 6, 1983, 97 Stat. 1399; Pub. L. cerned. In such a case, the Secretary, Under Sec- 103–337, div. A, title IX, § 924(c)(1), (2), Oct. 5, Page 495 TITLE 10—ARMED FORCES § 872

1994, 108 Stat. 2831; Pub. L. 113–66, div. A, title EFFECTIVE DATE OF 2013 AMENDMENT XVII, § 1702(c)(2), Dec. 26, 2013, 127 Stat. 957.) Amendment by Pub. L. 113–66 effective 180 days after Dec. 26, 2013, and applicable with respect to offenses HISTORICAL AND REVISION NOTES committed under this chapter on or after that effective Revised date, with provision with respect to the findings and section Source (U.S. Code) Source (Statutes at Large) sentence of a court-martial that includes both a con- viction for an offense committed before the effective 871(a) ...... 50:658(a). May 5, 1950, ch. 169, § 1 date and a conviction for an offense committed on or 871(b) ...... 50:658(b). (Art. 71), 64 Stat. 131. 871(c) ...... 50:658(c). after that effective date, see section 1702(d)(2) of Pub. 871(d) ...... 50:658(d). L. 113–66, set out as a note under section 860 of this title. In subsection (a), the word ‘‘may’’ is substituted for the word ‘‘shall’’. EFFECTIVE DATE OF 1983 AMENDMENT In subsection (b), the word ‘‘commissioned’’ is in- Amendment by Pub. L. 98–209 effective first day of serted for clarity. The word ‘‘may’’ is substituted for eighth calendar month beginning after Dec. 6, 1983, but the word ‘‘shall’’ in the first sentence. The words ‘‘Sec- not to apply to any case in which the findings and sen- retary concerned’’ are substituted for the words ‘‘Sec- tence were adjudged by a court-martial before that retary of the Department’’. The words ‘‘who is’’ are date, and the proceedings in any such case to be held omitted as surplusage. in the same manner and with the same effect as if such In subsection (c), the word ‘‘may’’ is substituted for amendments had not been enacted, see section 12(a)(1), the word ‘‘shall’’. (4) of Pub. L. 98–209, set out as a note under section 801 of this title.

AMENDMENTS EFFECTIVE DATE OF 1968 AMENDMENT 2013—Subsec. (d). Pub. L. 113–66 inserted at end Amendments by Pub. L. 90–632 effective first day of ‘‘Paragraphs (2) and (4) of subsection (c) of section 860 tenth month following October 1968, see section 4 of of this title (article 60) shall apply to any decision by Pub. L. 90–632, set out as a note under section 801 of the convening authority or another person authorized this title. to act under this section to suspend the execution of any sentence or part thereof under this subsection.’’ § 872. Art. 72. Vacation of suspension 1994—Subsec. (c)(1). Pub. L. 103–337 substituted (a) Before the vacation of the suspension of a ‘‘Court of Criminal Appeals’’ for ‘‘Court of Military Re- view’’ and ‘‘Court of Appeals for the Armed Forces’’ for special court-martial sentence which as ap- ‘‘Court of Military Appeals’’ wherever appearing. proved includes a bad-conduct discharge, or of 1983—Subsec. (a). Pub. L. 98–209, § 5(e)(1), amended any general court-martial sentence, the officer subsec. (a) generally, substituting provision that part having special court-martial jurisdiction over of the court-martial sentence extending to death may the probationer shall hold a hearing on the al- not be executed without Presidential approval, and leged violation of probation. The probationer granting the President authority to commute, remit, shall be represented at the hearing by counsel if or suspend the sentence, except that a death sentence he so desires. may not be suspended, for provision that no sentence extending to death or involving a general or flag officer (b) The record of the hearing and the recom- could be executed without Presidential approval, and mendation of the officer having special court- authorizing the President to approve the sentence or martial jurisdiction shall be sent for action to any part, amount, or commuted form thereof, and sus- the officer exercising general court-martial ju- pend the execution of the sentence or any part thereof, risdiction over the probationer. If he vacates the except a death sentence. suspension, any unexecuted part of the sentence, Subsec. (b). Pub. L. 98–209, § 5(e)(2), substituted provi- except a dismissal, shall be executed, subject to sion that where a court-martial sentence extends to applicable restrictions in section 871 (c) of this dismissal of a commissioned officer, cadet, or mid- shipman, the dismissal may not be executed without title (article 71(c)). The vacation of the suspen- approval by the Secretary concerned, or Under Sec- sion of a dismissal is not effective until ap- retary or Assistant Secretary designated by him, and proved by the Secretary concerned. authorizing such official to commute, remit, or suspend (c) The suspension of any other sentence may the sentence, or any part thereof, for provision that no be vacated by any authority competent to con- dismissal of a commissioned officer (other than a gen- vene, for the command in which the accused is eral or flag officer), cadet or midshipman may be exe- serving or assigned, a court of the kind that im- cuted without such approval, and that such official posed the sentence. could approve the sentence or such part, amount, or commuted form the sentence as he saw fit, and could (Aug. 10, 1956, ch. 1041, 70A Stat. 63.) suspend the execution of any part of the sentence. Subsec. (c). Pub. L. 98–209, § 5(e)(3), amended subsec. HISTORICAL AND REVISION NOTES (c) generally. Prior to amendment subsec. (c) read as Revised follows: ‘‘No sentence which includes, unsuspended, a section Source (U.S. Code) Source (Statutes at Large) dishonorable or bad-conduct discharge, or confinement for one year or more, may be executed until affirmed 872(a) ...... 50:659(a). May 5, 1950, ch. 169, § 1 872(b) ...... 50:659(b). (Art. 72), 64 Stat. 131. by a Court of Military Review and, in cases reviewed by 872(c) ...... 50:659(c). it, the Court of Military Appeals.’’ Subsec. (d). Pub. L. 98–209, § 5(e)(3), amended subsec. In subsection (a), the word ‘‘Before’’ is substituted for (d) generally. Prior to amendment subsec. (d) read as the words ‘‘Prior to’’. follows: ‘‘All other court-martial sentences, unless sus- In subsection (b), the words ‘‘be effective * * * to’’ are pended or deferred, may be ordered executed by the omitted as surplusage. convening authority when approved by him. The con- The second sentence is restated to make it clear that vening authority may suspend the execution of any the execution of the rest of the court-martial sentence sentence, except a death sentence.’’ is not automatic. The word ‘‘is’’ is substituted for the 1968—Subsec. (c). Pub. L. 90–632, § 2(32)(A), substituted words ‘‘shall * * * be’’ in the last sentence. The word ‘‘Court of Military Review’’ for ‘‘board of review’’. ‘‘sent’’ is substituted for the word ‘‘forwarded’’. The Subsec. (d). Pub. L. 90–632, § 2(32)(B), inserted ref- words ‘‘Secretary concerned’’ are substituted for the erence to deferred court-martial sentences. words ‘‘Secretary of the Department’’. § 873 TITLE 10—ARMED FORCES Page 496

§ 873. Art. 73. Petition for a new trial HISTORICAL AND REVISION NOTES

At any time within two years after approval Revised Source (U.S. Code) Source (Statutes at Large) by the convening authority of a court-martial section sentence, the accused may petition the Judge 874(a) ...... 50:661(a). May 5, 1950, ch. 169, § 1 Advocate General for a new trial on the grounds 874(b) ...... 50:661(b). (Art. 74), 64 Stat. 132. of newly discovered evidence or fraud on the In subsections (a) and (b), the words ‘‘Secretary con- court. If the accused’s case is pending before a cerned’’ are substituted for the words ‘‘Secretary of the Court of Criminal Appeals or before the Court of Department’’. Appeals for the Armed Forces, the Judge Advo- AMENDMENTS cate General shall refer the petition to the ap- propriate court for action. Otherwise the Judge 2001—Subsec. (a). Pub. L. 107–107 inserted ‘‘that is ad- Advocate General shall act upon the petition. judged for an offense committed after October 29, 2000’’ after ‘‘a sentence of confinement for life without eligi- (Aug. 10, 1956, ch. 1041, 70A Stat. 63; Pub. L. bility for parole’’. 90–632, § 2(33), Oct. 24, 1968, 82 Stat. 1342; Pub. L. 2000—Subsec. (a). Pub. L. 106–398 inserted at end 103–337, div. A, title IX, § 924(c)(1), (2), Oct. 5, ‘‘However, in the case of a sentence of confinement for 1994, 108 Stat. 2831.) life without eligibility for parole, after the sentence is ordered executed, the authority of the Secretary con- HISTORICAL AND REVISION NOTES cerned under the preceding sentence (1) may not be del- egated, and (2) may be exercised only after the service Revised of a period of confinement of not less than 20 years.’’ section Source (U.S. Code) Source (Statutes at Large) EFFECTIVE DATE OF 2000 AMENDMENT 873 ...... 50:660. May 5, 1950, ch. 169, § 1 (Art. 73), 64 Stat. 132. Pub. L. 106–398, § 1 [[div. A], title V, § 553(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–125, provided that: ‘‘The The words ‘‘the ground’’ are substituted for the word amendment made by subsection (a) [amending this sec- ‘‘grounds’’. The words ‘‘as the case may be’’ are sub- tion] shall not apply with respect to a sentence of con- stituted for the word ‘‘respectively’’, since the pre- finement for life without eligibility for parole that is scribed action is alternative, not distributive. adjudged for an offense committed before the date of the enactment of this Act [Oct. 30, 2000].’’ AMENDMENTS 1994—Pub. L. 103–337 substituted ‘‘Court of Criminal § 875. Art. 75. Restoration Appeals’’ for ‘‘Court of Military Review’’ and ‘‘Court of (a) Under such regulations as the President Appeals for the Armed Forces’’ for ‘‘Court of Military may prescribe, all rights, privileges, and prop- Appeals’’. erty affected by an executed part of a court- 1968—Pub. L. 90–632 extended time during which ac- cused may petition Judge Advocate General for a new martial sentence which has been set aside or dis- trial from 1 to 2 years and struck out provisions which approved, except an executed dismissal or dis- limited right to petition for a new trial to cases of charge, shall be restored unless a new trial or death, dismissal, a punitive discharge, or a year or rehearing is ordered and such executed part is more in confinement. included in a sentence imposed upon the new trial or rehearing. EFFECTIVE DATE OF 1968 AMENDMENT (b) If a previously executed sentence of dishon- Amendment by Pub. L. 90–632 to apply in the case of orable or bad-conduct discharge is not imposed all court-martial sentences approved by the convening on a new trial, the Secretary concerned shall authority on or after, or not more than two years be- substitute therefor a form of discharge author- fore Oct. 24, 1968, see section 4(c) of Pub. L. 90–632, set ized for administrative issuance unless the ac- out as a note under section 801 of this title. cused is to serve out the remainder of his enlist- § 874. Art. 74. Remission and suspension ment. (c) If a previously executed sentence of dismis- (a) The Secretary concerned and, when des- sal is not imposed on a new trial, the Secretary ignated by him, any Under Secretary, Assistant concerned shall substitute therefor a form of Secretary, Judge Advocate General, or com- discharge authorized for administrative issue, manding officer may remit or suspend any part and the commissioned officer dismissed by that or amount of the unexecuted part of any sen- sentence may be reappointed by the President tence, including all uncollected forfeitures other alone to such commissioned grade and with such than a sentence approved by the President. How- rank as in the opinion of the President that ever, in the case of a sentence of confinement former officer would have attained had he not for life without eligibility for parole that is ad- been dismissed. The reappointment of such a judged for an offense committed after October former officer shall be without regard to the ex- 29, 2000, after the sentence is ordered executed, istence of a vacancy and shall affect the pro- the authority of the Secretary concerned under motion status of other officers only insofar as the preceding sentence (1) may not be delegated, the President may direct. All time between the and (2) may be exercised only after the service of dismissal and the reappointment shall be consid- a period of confinement of not less than 20 years. ered as actual service for all purposes, including (b) The Secretary concerned may, for good the right to pay and allowances. cause, substitute an administrative form of dis- (Aug. 10, 1956, ch. 1041, 70A Stat. 63.) charge for a discharge or dismissal executed in accordance with the sentence of a court-martial. HISTORICAL AND REVISION NOTES

(Aug. 10, 1956, ch. 1041, 70A Stat. 63; Pub. L. Revised 106–398, § 1 [[div. A], title V, § 553(a)], Oct. 30, 2000, section Source (U.S. Code) Source (Statutes at Large) 114 Stat. 1654, 1654A–125; Pub. L. 107–107, div. A, 875(a) ...... 50:662(a). May 5, 1950, ch. 169, § 1 title X, § 1048(a)(8), Dec. 28, 2001, 115 Stat. 1223.) 875(b) ...... 50:662(b). (Art. 75), 64 Stat. 132. Page 497 TITLE 10—ARMED FORCES § 876b

HISTORICAL AND REVISION NOTES—CONTINUED the date on which the sentence is approved under section 860 of this title (article 60) or at Revised section Source (U.S. Code) Source (Statutes at Large) any time after such date, and such leave may be continued until the date on which action under 875(c) ...... 50:662(c). this subchapter is completed or may be termi- In subsections (b) and (c), the word ‘‘If’’ is substituted nated at any earlier time. for the word ‘‘Where’’. The word ‘‘imposed’’ is sub- (Added Pub. L. 97–81, § 2(c)(1), Nov. 20, 1981, 95 stituted for the word ‘‘sustained’’. The words ‘‘Sec- Stat. 1087; amended Pub. L. 98–209, § 5(g), Dec. 6, retary concerned’’ are substituted for the words ‘‘Sec- retary of the Department’’. 1983, 97 Stat. 1400.) In subsection (c), the word ‘‘issue’’ is substituted for AMENDMENTS the word ‘‘issuance’’. The word ‘‘commissioned’’ is in- serted for clarity. The words ‘‘grade and with such 1983—Pub. L. 98–209 substituted ‘‘under section 860 of rank’’ are substituted for the words ‘‘rank and prece- this title (article 60)’’ for ‘‘under section 864 or 865 of dence’’, since a person is appointed to a grade, not a po- this title (article 64 or 65) by the officer exercising gen- sition of precedence, and the word ‘‘rank’’ is the ac- eral court-martial jurisdiction’’ and ‘‘by the officer ex- cepted military word denoting the general idea of prec- ercising general court-martial jurisdiction’’, respec- edence. The words ‘‘the existence of a’’ are substituted tively. for the word ‘‘position’’. The word ‘‘receive’’ is omitted EFFECTIVE DATE OF 1983 AMENDMENT as surplusage. Amendment by Pub. L. 98–209 effective first day of DELEGATION OF FUNCTIONS eighth calendar month beginning after Dec. 6, 1983, but For delegation to Secretary of Homeland Security of not to apply to any case in which the findings and sen- certain authority vested in President by this section, tence were adjudged by a court-martial before that see section 2(b) of Ex. Ord. No. 10637, Sept. 16, 1955, 20 date, and the proceedings in any such case to be held F.R. 7025, as amended, set out as a note under section in the same manner and with the same effect as if such 301 of Title 3, The President. amendments had not been enacted, see section 12(a)(1), (4) of Pub. L. 98–209, set out as a note under section 801 § 876. Art. 76. Finality of proceedings, findings, of this title. and sentences EFFECTIVE DATE The appellate review of records of trial pro- Section to take effect at end of 60-day period begin- vided by this chapter, the proceedings, findings, ning on Nov. 20, 1981, to apply to each member whose and sentences of courts-martial as approved, re- sentence by court-martial is approved on or after Jan. viewed, or affirmed as required by this chapter, 20, 1982, under section 864 or 865 of this title by the offi- and all dismissals and discharges carried into cer exercising general court-martial jurisdiction under the provisions of such section as it existed on the day execution under sentences by courts-martial fol- before the effective date of the Military Justice Act of lowing approval, review, or affirmation as re- 1983 (Pub. L. 98–209), or under section 860 of this title by quired by this chapter, are final and conclusive. the officer empowered to act on the sentence on or Orders publishing the proceedings of courts-mar- after that effective date, see section 7(a), (b)(1) of Pub. tial and all action taken pursuant to those pro- L. 97–81, set out as a note under section 706 of this title. ceedings are binding upon all departments, courts, agencies, and officers of the United § 876b. Art. 76b. Lack of mental capacity or men- States, subject only to action upon a petition tal responsibility: commitment of accused for for a new trial as provided in section 873 of this examination and treatment title (article 73) and to action by the Secretary (a) PERSONS INCOMPETENT TO STAND TRIAL.— concerned as provided in section 874 of this title (1) In the case of a person determined under this (article 74) and the authority of the President. chapter to be presently suffering from a mental (Aug. 10, 1956, ch. 1041, 70A Stat. 64.) disease or defect rendering the person mentally incompetent to the extent that the person is un- HISTORICAL AND REVISION NOTES able to understand the nature of the proceedings against that person or to conduct or cooperate Revised section Source (U.S. Code) Source (Statutes at Large) intelligently in the defense of the case, the gen- eral court-martial convening authority for that 876 ...... 50:663. May 5, 1950, ch. 169, § 1 (Art. 76), 64 Stat. 132. person shall commit the person to the custody of the Attorney General. The word ‘‘under’’ is substituted for the words ‘‘pur- (2) The Attorney General shall take action in suant to’’. The word ‘‘are’’ is substituted for the words accordance with section 4241(d) of title 18. ‘‘shall be’’. The words ‘‘Secretary concerned’’ are sub- (3) If at the end of the period for hospitaliza- stituted for the words ‘‘Secretary of a Department’’. tion provided for in section 4241(d) of title 18, it § 876a. Art. 76a. Leave required to be taken pend- is determined that the committed person’s men- ing review of certain court-martial convic- tal condition has not so improved as to permit tions the trial to proceed, action shall be taken in ac- cordance with section 4246 of such title. Under regulations prescribed by the Secretary (4)(A) When the director of a facility in which concerned, an accused who has been sentenced a person is hospitalized pursuant to paragraph by a court-martial may be required to take (2) determines that the person has recovered to leave pending completion of action under this such an extent that the person is able to under- subchapter if the sentence, as approved under stand the nature of the proceedings against the section 860 of this title (article 60), includes an person and to conduct or cooperate intelligently unsuspended dismissal or an unsuspended dis- in the defense of the case, the director shall honorable or bad-conduct discharge. The ac- promptly transmit a notification of that deter- cused may be required to begin such leave on mination to the Attorney General and to the § 876b TITLE 10—ARMED FORCES Page 498 general court-martial convening authority for eral court-martial convening authority under the person. The director shall send a copy of the this section, the reference in that section to sec- notification to the person’s counsel. tion 3006A of such title does not apply. (B) Upon receipt of a notification, the general (d) APPLICABILITY.—(1) The provisions of chap- court-martial convening authority shall ter 313 of title 18 referred to in this section promptly take custody of the person unless the apply according to the provisions of this section person covered by the notification is no longer notwithstanding section 4247(j) of title 18. subject to this chapter. If the person is no longer (2) If the status of a person as described in sec- subject to this chapter, the Attorney General tion 802 of this title (article 2) terminates while shall take any action within the authority of the person is, pursuant to this section, in the the Attorney General that the Attorney General custody of the Attorney General, hospitalized, considers appropriate regarding the person. or on conditional release under a prescribed reg- (C) The director of the facility may retain cus- imen of medical, psychiatric, or psychological tody of the person for not more than 30 days care or treatment, the provisions of this section after transmitting the notifications required by establishing requirements and procedures re- subparagraph (A). garding a person no longer subject to this chap- (5) In the application of section 4246 of title 18 ter shall continue to apply to that person not- to a case under this subsection, references to the withstanding the change of status. court that ordered the commitment of a person, (Added Pub. L. 104–106, div. A, title XI, and to the clerk of such court, shall be deemed § 1133(a)(1), Feb. 10, 1996, 110 Stat. 464.) to refer to the general court-martial convening authority for that person. However, if the person EFFECTIVE DATE is no longer subject to this chapter at a time Pub. L. 104–106, div. A, title XI, § 1133(c), Feb. 10, 1996, relevant to the application of such section to 110 Stat. 466, provided that: ‘‘Section 876b of title 10, the person, the United States district court for United States Code (article 76b of the Uniform Code of the district where the person is hospitalized or Military Justice), as added by subsection (a), shall take otherwise may be found shall be considered as effect at the end of the six-month period beginning on the date of the enactment of this Act [Feb. 10, 1996] and the court that ordered the commitment of the shall apply with respect to charges referred to courts- person. martial after the end of that period.’’ (b) PERSONS FOUND NOT GUILTY BY REASON OF LACK OF MENTAL RESPONSIBILITY.—(1) If a person SUBCHAPTER X—PUNITIVE ARTICLES is found by a court-martial not guilty only by reason of lack of mental responsibility, the per- Sec. Art. son shall be committed to a suitable facility 877. 77. Principals. 878. 78. Accessory after the fact. until the person is eligible for release in accord- 879. 79. Conviction of lesser included offense. ance with this section. 880. 80. Attempts. (2) The court-martial shall conduct a hearing 881. 81. Conspiracy. on the mental condition in accordance with sub- 882. 82. Solicitation. section (c) of section 4243 of title 18. Subsections 883. 83. Fraudulent enlistment, appointment, or (b) and (d) of that section shall apply with re- separation. spect to the hearing. 884. 84. Unlawful enlistment, appointment, or (3) A report of the results of the hearing shall separation. be made to the general court-martial convening 885. 85. Desertion. 886. 86. Absence without leave. authority for the person. 887. 87. Missing movement. (4) If the court-martial fails to find by the 888. 88. Contempt toward officials. standard specified in subsection (d) of section 889. 89. Disrespect toward superior commissioned 4243 of title 18 that the person’s release would officer. not create a substantial risk of bodily injury to 890. 90. Assaulting or willfully disobeying supe- another person or serious damage of property of rior commissioned officer. another due to a present mental disease or de- 891. 91. Insubordinate conduct toward warrant of- fect— ficer, noncommissioned officer, or petty (A) the general court-martial convening au- officer. 892. 92. Failure to obey order or regulation. thority may commit the person to the custody 893. 93. Cruelty and maltreatment. of the Attorney General; and 894. 94. Mutiny or sedition. (B) the Attorney General shall take action 895. 95. Resistance, flight, breach of arrest, and in accordance with subsection (e) of section escape. 4243 of title 18. 896. 96. Releasing prisoner without proper au- (5) Subsections (f), (g), and (h) of section 4243 thority. 897. 97. Unlawful detention. of title 18 shall apply in the case of a person hos- 898. 98. Noncompliance with procedural rules. pitalized pursuant to paragraph (4)(B), except 899. 99. Misbehavior before the enemy. that the United States district court for the dis- 900. 100. Subordinate compelling surrender. trict where the person is hospitalized shall be 901. 101. Improper use of countersign. considered as the court that ordered the person’s 902. 102. Forcing a safeguard. commitment. 903. 103. Captured or abandoned property. (c) GENERAL PROVISIONS.—(1) Except as other- 904. 104. Aiding the enemy. wise provided in this subsection and subsection 905. 105. Misconduct as prisoner. 906. 106. Spies. (d)(1), the provisions of section 4247 of title 18 906a. 106a. Espionage. apply in the administration of this section. 907. 107. False official statements. (2) In the application of section 4247(d) of title 908. 108. Military property of United States—Loss, 18 to hearings conducted by a court-martial damage, destruction, or wrongful dis- under this section or by (or by order of) a gen- position. Page 499 TITLE 10—ARMED FORCES § 880

Sec. Art. (2) causes an act to be done which if directly 909. 109. Property other than military property of performed by him would be punishable by this United States—Waste, spoilage, or de- chapter; struction. 910. 110. Improper hazarding of vessel. is a principal. 911. 111. Drunken or reckless operation of a vehi- (Aug. 10, 1956, ch. 1041, 70A Stat. 65.) cle, aircraft, or vessel. 912. 112. Drunk on duty. HISTORICAL AND REVISION NOTES 912a. 112a. Wrongful use, possession, etc., of con- trolled substances. Revised Source (U.S. Code) Source (Statutes at Large) 913. 113. Misbehavior of sentinel. section 914. 114. Dueling. 877 ...... 50:671. May 5, 1950, ch. 169, § 1 915. 115. Malingering. (Art. 77), 64 Stat. 134. 916. 116. Riot or breach of peace. 917. 117. Provoking speeches or gestures. 918. 118. Murder. § 878. Art. 78. Accessory after the fact 919. 119. Manslaughter. Any person subject to this chapter who, know- 919a. 119a. Death or injury of an unborn child. ing that an offense punishable by this chapter 920. 120. Rape and sexual assault generally. 920a. 120a. Stalking. has been committed, receives, comforts, or as- 920b. 120b. Rape and sexual assault of a child. sists the offender in order to hinder or prevent 920c. 120c. Other sexual misconduct. his apprehension, trial, or punishment shall be 921. 121. Larceny and wrongful appropriation. punished as a court-martial may direct. 922. 122. Robbery. 923. 123. Forgery. (Aug. 10, 1956, ch. 1041, 70A Stat. 65.) 923a. 123a. Making, drawing, or uttering check, HISTORICAL AND REVISION NOTES draft, or order without sufficient funds. 924. 124. Maiming. Revised Source (U.S. Code) Source (Statutes at Large) 925. 125. Forcible sodomy; bestiality. section 926. 126. Arson. 878 ...... 50:672. May 5, 1950, ch. 169, § 1 927. 127. Extortion. (Art. 78), 64 Stat. 134. 928. 128. Assault. 929. 129. Burglary. 930. 130. Housebreaking. § 879. Art. 79. Conviction of lesser included of- 931. 131. Perjury. fense 932. 132. Frauds against the United States. 933. 133. Conduct unbecoming an officer and a gen- An accused may be found guilty of an offense tleman. necessarily included in the offense charged or of 934. 134. General article. an attempt to commit either the offense charged or an offense necessarily included therein. AMENDMENTS 2013—Pub. L. 113–66, div. A, title XVII, § 1707(b), Dec. (Aug. 10, 1956, ch. 1041, 70A Stat. 65.) 26, 2013, 127 Stat. 961, substituted ‘‘Forcible sodomy; HISTORICAL AND REVISION NOTES bestiality’’ for ‘‘Sodomy’’ in item 925. 2011—Pub. L. 112–81, div. A, title V, § 541(e), Dec. 31, Revised 2011, 125 Stat. 1410, substituted ‘‘Rape and sexual as- section Source (U.S. Code) Source (Statutes at Large) sault generally’’ for ‘‘Rape, sexual assault, and other 879 ...... 50:673. May 5, 1950, ch. 169, § 1 sexual misconduct’’ in item 920 and added items 920b (Art. 79), 64 Stat. 134. and 920c. 2006—Pub. L. 109–163, div. A, title V, § 552(a)(2), Jan. 6, 2006, 119 Stat. 3262, substituted ‘‘Rape, sexual assault, § 880. Art. 80. Attempts and other sexual misconduct’’ for ‘‘Rape and carnal knowledge’’ in item 920. (a) An act, done with specific intent to com- Pub. L. 109–163, div. A, title V, § 551(a)(2), Jan. 6, 2006, mit an offense under this chapter, amounting to 119 Stat. 3256, added item 920a. more than mere preparation and tending, even 2004—Pub. L. 108–212, § 3(b), Apr. 1, 2004, 118 Stat. 570, though failing, to effect its commission, is an added item 919a. attempt to commit that offense. 1997—Pub. L. 105–85, div. A, title X, § 1073(a)(10), Nov. (b) Any person subject to this chapter who at- 18, 1997, 111 Stat. 1900, struck out ‘‘Art.’’ before ‘‘95’’ in item 895. tempts to commit any offense punishable by 1996—Pub. L. 104–106, div. A, title XI, § 1112(b), Feb. 10, this chapter shall be punished as a court-martial 1996, 110 Stat. 461, inserted ‘‘flight,’’ after ‘‘Resistance,’’ may direct, unless otherwise specifically pre- in item 895. scribed. 1992—Pub. L. 102–484, div. A, title X, § 1066(a)(2), Oct. (c) Any person subject to this chapter may be 23, 1992, 106 Stat. 2506, substituted ‘‘operation of a vehi- convicted of an attempt to commit an offense cle, aircraft, or vessel’’ for ‘‘driving’’ in item 911. 1985—Pub. L. 99–145, title V, § 534(b), Nov. 8, 1985, 99 although it appears on the trial that the offense Stat. 635, added item 906a. was consummated. 1983—Pub. L. 98–209, § 8(b), Dec. 6, 1983, 97 Stat. 1404, (Aug. 10, 1956, ch. 1041, 70A Stat. 65.) added item 912a. 1961—Pub. L. 87–385, § 1(2), Oct. 4, 1961, 75 Stat. 814, HISTORICAL AND REVISION NOTES added item 923a. Revised § 877. Art. 77. Principals section Source (U.S. Code) Source (Statutes at Large) Any person punishable under this chapter 880(a) ...... 50:674(a). May 5, 1950, ch. 169, § 1 880(b) ...... 50:674(b). (Art. 80), 64 Stat. 134. who— 880(c) ...... 50:674(c). (1) commits an offense punishable by this chapter, or aids, abets, counsels, commands, In subsection (a), the words ‘‘even though’’ are sub- or procures its commission; or stituted for the word ‘‘but’’ for clarity. § 881 TITLE 10—ARMED FORCES Page 500

§ 881. Art. 81. Conspiracy representation or deliberate concealment as to his qualifications for that enlistment or ap- (a) Any person subject to this chapter who pointment and receives pay or allowances conspires with any other person to commit an thereunder; or offense under this chapter shall, if one or more (2) procures his own separation from the of the conspirators does an act to effect the ob- armed forces by knowingly false representa- ject of the conspiracy, be punished as a court- tion or deliberate concealment as to his eligi- martial may direct. bility for that separation; (b) Any person subject to this chapter who conspires with any other person to commit an shall be punished as a court-martial may direct. offense under the law of war, and who knowingly (Aug. 10, 1956, ch. 1041, 70A Stat. 66.) does an overt act to effect the object of the con- spiracy, shall be punished, if death results to HISTORICAL AND REVISION NOTES one or more of the victims, by death or such Revised other punishment as a court-martial or military section Source (U.S. Code) Source (Statutes at Large) commission may direct, and, if death does not 883 ...... 50:677. May 5, 1950, ch. 169, § 1 result to any of the victims, by such punish- (Art. 83), 64 Stat. 134. ment, other than death, as a court-martial or military commission may direct. In clauses (1) and (2), the words ‘‘means of’’ are omit- (Aug. 10, 1956, ch. 1041, 70A Stat. 66; Pub. L. ted as surplusage. 109–366, § 4(b), Oct. 17, 2006, 120 Stat. 2631.) § 884. Art. 84. Unlawful enlistment, appointment, HISTORICAL AND REVISION NOTES or separation

Revised Any person subject to this chapter who effects section Source (U.S. Code) Source (Statutes at Large) an enlistment or appointment in or a separation from the armed forces of any person who is 881 ...... 50:675. May 5, 1950, ch. 169, § 1 (Art. 81), 64 Stat. 134. known to him to be ineligible for that enlist- ment, appointment, or separation because it is The words ‘‘or persons’’ are omitted as surplusage, prohibited by law, regulation, or order shall be since under section 1 of title 1 words importing the sin- punished as a court-martial may direct. gular may apply to several persons. (Aug. 10, 1956, ch. 1041, 70A Stat. 66.) AMENDMENTS 2006—Pub. L. 109–366 designated existing provisions as HISTORICAL AND REVISION NOTES subsec. (a) and added subsec. (b). Revised Source (U.S. Code) Source (Statutes at Large) § 882. Art. 82. Solicitation section 884 ...... 50:678. May 5, 1950, ch. 169, § 1 (a) Any person subject to this chapter who so- (Art. 84), 64 Stat. 135. licits or advises another or others to desert in violation of section 885 of this title (article 85) § 885. Art. 85. Desertion or mutiny in violation of section 894 of this title (article 94) shall, if the offense solicited or ad- (a) Any member of the armed forces who— vised is attempted or committed, be punished (1) without authority goes or remains absent with the punishment provided for the commis- from his unit, organization, or place of duty sion of the offense, but, if the offense solicited with intent to remain away therefrom perma- or advised is not committed or attempted, he nently; shall be punished as a court-martial may direct. (2) quits his unit, organization, or place of (b) Any person subject to this chapter who so- duty with intent to avoid hazardous duty or to licits or advises another or others to commit an shirk important service; or act of misbehavior before the enemy in violation (3) without being regularly separated from of section 899 of this title (article 99) or sedition one of the armed forces enlists or accepts an in violation of section 894 of this title (article appointment in the same or another one of the 94) shall, if the offense solicited or advised is armed forces without fully disclosing the fact committed, be punished with the punishment that he has not been regularly separated, or provided for the commission of the offense, but, enters any foreign armed service except when if the offense solicited or advised is not commit- authorized by the United States; ted, he shall be punished as a court-martial may is guilty of desertion. direct. (b) Any commissioned officer of the armed (Aug. 10, 1956, ch. 1041, 70A Stat. 66.) forces who, after tender of his resignation and before notice of its acceptance, quits his post or HISTORICAL AND REVISION NOTES proper duties without leave and with intent to Revised remain away therefrom permanently is guilty of section Source (U.S. Code) Source (Statutes at Large) desertion. 882(a) ...... 50:676(a). May 5, 1950, ch. 169, § 1, (c) Any person found guilty of desertion or at- 882(b) ...... 50:676(b). (Art. 82), 64 Stat. 134. tempt to desert shall be punished, if the offense is committed in time of war, by death or such § 883. Art. 83. Fraudulent enlistment, appoint- other punishment as a court-martial may direct, ment, or separation but if the desertion or attempt to desert occurs at any other time, by such punishment, other Any person who— (1) procures his own enlistment or appoint- than death, as a court-martial may direct. ment in the armed forces by knowingly false (Aug. 10, 1956, ch. 1041, 70A Stat. 67.) Page 501 TITLE 10—ARMED FORCES § 890

HISTORICAL AND REVISION NOTES HISTORICAL AND REVISION NOTES

Revised Revised section Source (U.S. Code) Source (Statutes at Large) section Source (U.S. Code) Source (Statutes at Large)

885(a) ...... 50:679(a). May 5, 1950, ch. 169, § 1 888 ...... 50:682. May 5, 1950, ch. 169, § 1 885(b) ...... 50:679(b). (Art. 85), 64 Stat. 135. (Art. 88), 64 Stat. 135. 885(c) ...... 50:679(c). The word ‘‘commissioned’’ is inserted for clarity. The In subsection (a), the word ‘‘unit’’ is substituted for words ‘‘the Vice President, Congress, the Secretary of the words ‘‘place of service’’ to conform to clause (2) of Defense, the Secretary of a military department, the this section and section 886(3) of this title. The word Secretary of the Treasury, or the Governor or legisla- ‘‘proper’’ is omitted as surplusage. ture of any State, Territory, Commonwealth, or posses- In subsection (b), the word ‘‘commissioned’’ is in- sion’’ are substituted for the words ‘‘Vice President, serted for clarity. The word ‘‘before’’ is substituted for Congress, Secretary of Defense, or a Secretary of a De- the words ‘‘prior to’’. The words ‘‘its acceptance’’ are partment, a Governor or a legislature of any State, substituted for the words ‘‘the acceptance of the Territory, or other possession of the United States’’. same’’. The words ‘‘after tender of’’ are substituted for the words ‘‘having tendered’’ for clarity. The word AMENDMENTS ‘‘due’’ is omitted as surplusage. 2006—Pub. L. 109–163 struck out ‘‘Territory,’’ after In subsection (c), the words ‘‘attempt to desert’’ are ‘‘State,’’. substituted for the words ‘‘attempted desertion’’. 2002—Pub. L. 107–296 substituted ‘‘Secretary of Home- land Security’’ for ‘‘Secretary of Transportation’’. § 886. Art. 86. Absence without leave 1980—Pub. L. 96–513 substituted ‘‘Secretary of Trans- Any member of the armed forces who, without portation’’ for ‘‘Secretary of the Treasury’’. authority— EFFECTIVE DATE OF 2002 AMENDMENT (1) fails to go to his appointed place of duty Amendment by Pub. L. 107–296 effective on the date of at the time prescribed; transfer of the Coast Guard to the Department of (2) goes from that place; or Homeland Security, see section 1704(g) of Pub. L. (3) absents himself or remains absent from 107–296, set out as a note under section 101 of this title. his unit, organization, or place of duty at which he is required to be at the time pre- EFFECTIVE DATE OF 1980 AMENDMENT scribed; Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note shall be punished as a court-martial may direct. under section 101 of this title. (Aug. 10, 1956, ch. 1041, 70A Stat. 67.) § 889. Art. 89. Disrespect toward superior com- HISTORICAL AND REVISION NOTES missioned officer

Revised Any person subject to this chapter who be- section Source (U.S. Code) Source (Statutes at Large) haves with disrespect toward his superior com- 886 ...... 50:680. May 5, 1950, ch. 169, § 1 missioned officer shall be punished as a court- (Art. 86), 64 Stat. 135. martial may direct.

The words ‘‘proper’’ and ‘‘other’’ are omitted as sur- (Aug. 10, 1956, ch. 1041, 70A Stat. 67.) plusage. HISTORICAL AND REVISION NOTES

§ 887. Art. 87. Missing movement Revised Source (U.S. Code) Source (Statutes at Large) Any person subject to this chapter who section through neglect or design misses the movement 889 ...... 50:683. May 5, 1950, ch. 169, § 1 of a ship, aircraft, or unit with which he is re- (Art. 89), 64 Stat. 135. quired in the course of duty to move shall be The word ‘‘commissioned’’ is inserted for clarity. punished as a court-martial may direct. § 890. Art. 90. Assaulting or willfully disobeying (Aug. 10, 1956, ch. 1041, 70A Stat. 67.) superior commissioned officer HISTORICAL AND REVISION NOTES Any person subject to this chapter who— Revised (1) strikes his superior commissioned officer section Source (U.S. Code) Source (Statutes at Large) or draws or lifts up any weapon or offers any 887 ...... 50:681. May 5, 1950, ch. 169, § 1 violence against him while he is in the execu- (Art. 87), 64 Stat. 135. tion of his office; or (2) willfully disobeys a lawful command of § 888. Art. 88. Contempt toward officials his superior commissioned officer; Any commissioned officer who uses contemp- shall be punished, if the offense is committed in tuous words against the President, the Vice time of war, by death or such other punishment President, Congress, the Secretary of Defense, as a court-martial may direct, and if the offense the Secretary of a military department, the Sec- is committed at any other time, by such punish- retary of Homeland Security, or the Governor or ment, other than death, as a court-martial may legislature of any State, Commonwealth, or pos- direct. session in which he is on duty or present shall be (Aug. 10, 1956, ch. 1041, 70A Stat. 68.) punished as a court-martial may direct. HISTORICAL AND REVISION NOTES (Aug. 10, 1956, ch. 1041, 70A Stat. 67; Pub. L. 96–513, title V, § 511(25), Dec. 12, 1980, 94 Stat. Revised Source (U.S. Code) Source (Statutes at Large) 2922; Pub. L. 107–296, title XVII, § 1704(b)(1), Nov. section 25, 2002, 116 Stat. 2314; Pub. L. 109–163, div. A, 890 ...... 50:684. May 5, 1950, ch. 169, § 1 title X, § 1057(a)(3), Jan. 6, 2006, 119 Stat. 3440.) (Art. 90), 64 Stat. 135. § 891 TITLE 10—ARMED FORCES Page 502

The word ‘‘commissioned’’ is inserted for clarity. do his duty or creates any violence or disturb- ance is guilty of mutiny; § 891. Art. 91. Insubordinate conduct toward war- (2) with intent to cause the overthrow or de- rant officer, noncommissioned officer, or struction of lawful civil authority, creates, in petty officer concert with any other person, revolt, vio- Any warrant officer or enlisted member who— lence, or other disturbance against that au- (1) strikes or assaults a warrant officer, non- thority is guilty of sedition; commissioned officer, or petty officer, while (3) fails to do his utmost to prevent and sup- that officer is in the execution of his office; press a mutiny or sedition being committed in (2) willfully disobeys the lawful order of a his presence, or fails to take all reasonable warrant officer, noncommissioned officer, or means to inform his superior commissioned of- petty officer; or ficer or commanding officer of a mutiny or se- (3) treats with contempt or is disrespectful dition which he knows or has reason to believe in language or deportment toward a warrant is taking place, is guilty of a failure to sup- officer, noncommissioned officer, or petty offi- press or report a mutiny or sedition. cer, while that officer is in the execution of (b) A person who is found guilty of attempted his office; mutiny, mutiny, sedition, or failure to suppress shall be punished as a court-martial may direct. or report a mutiny or sedition shall be punished by death or such other punishment as a court- (Aug. 10, 1956, ch. 1041, 70A Stat. 68.) martial may direct. HISTORICAL AND REVISION NOTES (Aug. 10, 1956, ch. 1041, 70A Stat. 68.)

Revised HISTORICAL AND REVISION NOTES section Source (U.S. Code) Source (Statutes at Large) Revised 891 ...... 50:685. May 5, 1950, ch. 169, § 1 section Source (U.S. Code) Source (Statutes at Large) (Art. 91), 64 Stat. 136. 894(a) ...... 50:688(a). May 5, 1950, ch. 169, § 1 The word ‘‘member’’ is substituted for the word ‘‘per- 894(b) ...... 50:688(b). (Art. 94), 64 Stat. 136. son’’. In subsection (a)(1) and (2), the words ‘‘or persons’’ § 892. Art. 92. Failure to obey order or regulation are omitted, since, under section 1 of title 1, words im- porting the singular may apply to several persons. Any person subject to this chapter who— In subsection (a)(3), the word ‘‘a’’ is substituted for (1) violates or fails to obey any lawful gen- the words ‘‘an offense of’’. The words ‘‘commissioned eral order or regulation; officer’’ are inserted after the word ‘‘superior’’, for clar- (2) having knowledge of any other lawful ity. order issued by a member of the armed forces, § 895. Art. 95. Resistance, flight, breach of arrest, which it is his duty to obey, fails to obey the and escape order; or (3) is derelict in the performance of his du- Any person subject to this chapter who— ties; (1) resists apprehension; (2) flees from apprehension; shall be punished as a court-martial may direct. (3) breaks arrest; or (Aug. 10, 1956, ch. 1041, 70A Stat. 68.) (4) escapes from custody or confinement; shall be punished as a court-martial may direct. HISTORICAL AND REVISION NOTES (Aug. 10, 1956, ch. 1041, 70A Stat. 69; Pub. L. Revised 104–106, div. A, title XI, § 1112(a), Feb. 10, 1996, 110 section Source (U.S. Code) Source (Statutes at Large) Stat. 461.) 892 ...... 50:686. May 5, 1950, ch. 169, § 1 (Art. 92), 64 Stat. 136. HISTORICAL AND REVISION NOTES

The word ‘‘order’’ is substituted for the word ‘‘same’’. Revised section Source (U.S. Code) Source (Statutes at Large)

§ 893. Art. 93. Cruelty and maltreatment 895 ...... 50:689. May 5, 1950, ch. 169, § 1 (Art. 95), 64 Stat. 136. Any person subject to this chapter who is guilty of cruelty toward, or oppression or mal- AMENDMENTS treatment of, any person subject to his orders 1996—Pub. L. 104–106 inserted ‘‘flight,’’ after ‘‘Resist- shall be punished as a court-martial may direct. ance,’’ in section catchline and amended text generally. (Aug. 10, 1956, ch. 1041, 70A Stat. 68.) Prior to amendment, text read as follows: ‘‘Any person subject to this chapter who resists apprehension or HISTORICAL AND REVISION NOTES breaks arrest or who escapes from custody or confine- ment shall be punished as a court-martial may direct.’’ Revised Source (U.S. Code) Source (Statutes at Large) section § 896. Art. 96. Releasing prisoner without proper 893 ...... 50:687. May 5, 1950, ch. 169, § 1 authority (Art. 93), 64 Stat. 136. Any person subject to this chapter who, with- § 894. Art. 94. Mutiny or sedition out proper authority, releases any prisoner com- mitted to his charge, or who through neglect or (a) Any person subject to this chapter who— design suffers any such prisoner to escape, shall (1) with intent to usurp or override lawful be punished as a court-martial may direct, military authority, refuses, in concert with whether or not the prisoner was committed in any other person, to obey orders or otherwise strict compliance with law. Page 503 TITLE 10—ARMED FORCES § 903

(Aug. 10, 1956, ch. 1041, 70A Stat. 69.) (9) does not afford all practicable relief and assistance to any troops, combatants, vessels, HISTORICAL AND REVISION NOTES or aircraft of the armed forces belonging to the United States or their allies when engaged Revised Source (U.S. Code) Source (Statutes at Large) section in battle; 896 ...... 50:690. May 5, 1950, ch. 169, § 1 shall be punished by death or such other punish- (Art. 96), 64 Stat. 136. ment as a court-martial may direct. The words ‘‘whether or not the prisoner was commit- (Aug. 10, 1956, ch. 1041, 70A Stat. 69.) ted in strict compliance with law’’ are substituted for the word ‘‘duly’’, to reflect the long standing construc- HISTORICAL AND REVISION NOTES tion expressed in the Manual for Courts-Martial, United States, 1951, par. 175a. Revised section Source (U.S. Code) Source (Statutes at Large)

§ 897. Art. 97. Unlawful detention 899 ...... 50:693. May 5, 1950, ch. 169, § 1 (Art. 99), 64 Stat. 137. Any person subject to this chapter who, except as provided by law, apprehends, arrests, or con- fines any person shall be punished as a court- § 900. Art. 100. Subordinate compelling surrender martial may direct. Any person subject to this chapter who com- (Aug. 10, 1956, ch. 1041, 70A Stat. 69.) pels or attempts to compel the commander of any place, vessel, aircraft, or other military HISTORICAL AND REVISION NOTES property, or of any body of members of the armed forces, to give it up to an enemy or to Revised section Source (U.S. Code) Source (Statutes at Large) abandon it, or who strikes the colors or flag to an enemy without proper authority, shall be 897 ...... 50:691. May 5, 1950, ch. 169, § 1 (Art. 97), 64 Stat. 137. punished by death or such other punishment as a court-martial may direct. § 898. Art. 98. Noncompliance with procedural (Aug. 10, 1956, ch. 1041, 70A Stat. 70.) rules HISTORICAL AND REVISION NOTES Any person subject to this chapter who— (1) is responsible for unnecessary delay in Revised Source (U.S. Code) Source (Statutes at Large) the disposition of any case of a person accused section of an offense under this chapter; or 900 ...... 50:694. May 5, 1950, ch. 169, § 1 (2) knowingly and intentionally fails to en- (Art. 100), 64 Stat. 137. force or comply with any provision of this chapter regulating the proceedings before, § 901. Art. 101. Improper use of countersign during, or after trial of an accused; Any person subject to this chapter who in shall be punished as a court-martial may direct. time of war discloses the parole or countersign to any person not entitled to receive it or who (Aug. 10, 1956, ch. 1041, 70A Stat. 69.) gives to another who is entitled to receive and HISTORICAL AND REVISION NOTES use the parole or countersign a different parole or countersign from that which, to his knowl- Revised edge, he was authorized and required to give, section Source (U.S. Code) Source (Statutes at Large) shall be punished by death or such other punish- 898 ...... 50:692. May 5, 1950, ch. 169, § 1 ment as a court-martial may direct. (Art. 98), 64 Stat. 137. (Aug. 10, 1956, ch. 1041, 70A Stat. 70.) § 899. Art. 99. Misbehavior before the enemy HISTORICAL AND REVISION NOTES Any member of the armed forces who before or Revised in the presence of the enemy— section Source (U.S. Code) Source (Statutes at Large) (1) runs away; 901 ...... 50:695. May 5, 1950, ch. 169, § 1 (2) shamefully abandons, surrenders, or de- (Art. 101), 64 Stat. 137. livers up any command, unit, place, or mili- tary property which it is his duty to defend; § 902. Art. 102. Forcing a safeguard (3) through disobedience, neglect, or inten- tional misconduct endangers the safety of any Any person subject to this chapter who forces such command, unit, place, or military prop- a safeguard shall suffer death or such other pun- erty; ishment as a court-martial may direct. (4) casts away his arms or ammunition; (Aug. 10, 1956, ch. 1041, 70A Stat. 70.) (5) is guilty of cowardly conduct; (6) quits his place of duty to plunder or pil- HISTORICAL AND REVISION NOTES lage; Revised (7) causes false alarms in any command, section Source (U.S. Code) Source (Statutes at Large) unit, or place under control of the armed 902 ...... 50:696. May 5, 1950, ch. 169, § 1 forces; (Art. 102), 64 Stat. 137. (8) willfully fails to do his utmost to encoun- ter, engage, capture, or destroy any enemy § 903. Art. 103. Captured or abandoned property troops, combatants, vessels, aircraft, or any other thing, which it is his duty so to encoun- (a) All persons subject to this chapter shall se- ter, engage, capture, or destroy; or cure all public property taken from the enemy § 904 TITLE 10—ARMED FORCES Page 504 for the service of the United States, and shall HISTORICAL AND REVISION NOTES give notice and turn over to the proper author- Revised ity without delay all captured or abandoned section Source (U.S. Code) Source (Statutes at Large) property in their possession, custody, or control. 905 ...... 50:699. May 5, 1950, ch. 169, § 1 (b) Any person subject to this chapter who— (Art. 105), 64 Stat. 138. (1) fails to carry out the duties prescribed in subsection (a); § 906. Art. 106. Spies (2) buys, sells, trades, or in any way deals in or disposes of captured or abandoned property, Any person who in time of war is found lurk- whereby he receives or expects any profit, ben- ing as a spy or acting as a spy in or about any efit, or advantage to himself or another di- place, vessel, or aircraft, within the control or rectly or indirectly connected with himself; or jurisdiction of any of the armed forces, or in or (3) engages in looting or pillaging; about any shipyard, any manufacturing or in- dustrial plant, or any other place or institution shall be punished as a court-martial may direct. engaged in work in aid of the prosecution of the (Aug. 10, 1956, ch. 1041, 70A Stat. 70.) war by the United States, or elsewhere, shall be tried by a general court-martial or by a military HISTORICAL AND REVISION NOTES commission and on conviction shall be punished Revised by death. This section does not apply to a mili- section Source (U.S. Code) Source (Statutes at Large) tary commission established under chapter 47A 903(a) ...... 50:697(a). May 5, 1950, ch. 169, § 1 of this title. 903(b) ...... 50:697(b). (Art. 103), 64 Stat. 138. (Aug. 10, 1956, ch. 1041, 70A Stat. 71; Pub. L. In subsection (b)(1), the words ‘‘of this section’’ are 109–366, § 4(a)(2), Oct. 17, 2006, 120 Stat. 2631.) omitted as surplusage. HISTORICAL AND REVISION NOTES

§ 904. Art. 104. Aiding the enemy Revised section Source (U.S. Code) Source (Statutes at Large) Any person who— 906 ...... 50:700. May 5, 1950, ch. 169, § 1 (1) aids, or attempts to aid, the enemy with (Art. 106), 64 Stat. 138. arms, ammunition, supplies, money, or other things; or The words ‘‘of the United States’’ are omitted as sur- (2) without proper authority, knowingly har- plusage. bors or protects or gives intelligence to, or AMENDMENTS communicates or corresponds with or holds 2006—Pub. L. 109–366 inserted last sentence. any intercourse with the enemy, either di- rectly or indirectly; PROCLAMATION NO. 2561. ENEMIES DENIED ACCESS TO UNITED STATES COURTS shall suffer death or such other punishment as a Proc. No. 2561, July 2, 1942, 7 F.R. 5101, 56 Stat. 1964, court-martial or military commission may di- provided: rect. This section does not apply to a military Whereas the safety of the United States demands commission established under chapter 47A of that all enemies who have entered upon the territory of this title. the United States as part of an invasion or predatory incursion, or who have entered in order to commit sab- (Aug. 10, 1956, ch. 1041, 70A Stat. 70; Pub. L. otage, espionage or other hostile or warlike acts, 109–366, § 4(a)(2), Oct. 17, 2006, 120 Stat. 2631.) should be promptly tried in accordance with the law of war; HISTORICAL AND REVISION NOTES Now, therefore, I, Franklin D. Roosevelt, President of Revised the United States of America and Commander in Chief section Source (U.S. Code) Source (Statutes at Large) of the Army and Navy of the United States, by virtue of the authority vested in me by the Constitution and 904 ...... 50:698. May 5, 1950, ch. 169, § 1 (Art. 104), 64 Stat. 138. the statutes of the United States, do hereby proclaim that all persons who are subjects, citizens or residents of any nation at war with the United States or who AMENDMENTS give obedience to or act under the direction of any such 2006—Pub. L. 109–366 inserted last sentence in con- nation, and who during time of war enter or attempt to cluding provisions. enter the United States or any territory or possession thereof, through coastal or boundary defenses, and are charged with committing or attempting or preparing to § 905. Art. 105. Misconduct as prisoner commit sabotage, espionage, hostile or warlike acts, or Any person subject to this chapter who, while violations of the law of war, shall be subject to the law in the hands of the enemy in time of war— of war and to the jurisdiction of military tribunals; and (1) for the purpose of securing favorable that such persons shall not be privileged to seek any remedy or maintain any proceeding directly or indi- treatment by his captors acts without proper rectly, or to have any such remedy or proceeding authority in a manner contrary to law, cus- sought on their behalf, in the courts of the United tom, or regulation, to the detriment of others States, or of its States, territories, and possessions, ex- of whatever nationality held by the enemy as cept under such regulations as the Attorney General, civilian or military prisoners; or with the approval of the Secretary of War, may from (2) while in a position of authority over such time to time prescribe. persons maltreats them without justifiable § 906a. Art. 106a. Espionage cause; (a)(1) Any person subject to this chapter who, shall be punished as a court-martial may direct. with intent or reason to believe that it is to be (Aug. 10, 1956, ch. 1041, 70A Stat. 71.) used to the injury of the United States or to the Page 505 TITLE 10—ARMED FORCES § 910 advantage of a foreign nation, communicates, (Added Pub. L. 99–145, title V, § 534(a), Nov. 8, delivers, or transmits, or attempts to commu- 1985, 99 Stat. 634.) nicate, deliver, or transmit, to any entity de- scribed in paragraph (2), either directly or indi- § 907. Art. 107. False official statements rectly, anything described in paragraph (3) shall Any person subject to this chapter who, with be punished as a court-martial may direct, ex- intent to deceive, signs any false record, return, cept that if the accused is found guilty of an of- regulation, order, or other official document, fense that directly concerns (A) nuclear weap- knowing it to be false, or makes any other false onry, military spacecraft or satellites, early official statement knowing it to be false, shall warning systems, or other means of defense or be punished as a court-martial may direct. retaliation against large scale attack, (B) war (Aug. 10, 1956, ch. 1041, 70A Stat. 71.) plans, (C) communications intelligence or cryp- tographic information, or (D) any other major HISTORICAL AND REVISION NOTES weapons system or major element of defense Revised strategy, the accused shall be punished by death section Source (U.S. Code) Source (Statutes at Large) or such other punishment as a court-martial 907 ...... 50:701. May 5, 1950, ch. 169, § 1 may direct. (Art. 107), 64 Stat. 138. (2) An entity referred to in paragraph (1) is— (A) a foreign government; The word ‘‘it’’ is substituted for the words ‘‘the (B) a faction or party or military or naval same’’. force within a foreign country, whether recog- nized or unrecognized by the United States; or § 908. Art. 108. Military property of United (C) a representative, officer, agent, em- States—Loss, damage, destruction, or wrong- ployee, subject, or citizen of such a govern- ful disposition ment, faction, party, or force. Any person subject to this chapter who, with- (3) A thing referred to in paragraph (1) is a out proper authority— document, writing, code book, signal book, (1) sells or otherwise disposes of; sketch, photograph, photographic negative, (2) willfully or through neglect damages, de- blueprint, plan, map, model, note, instrument, stroys, or loses; or (3) willfully or through neglect suffers to be appliance, or information relating to the na- lost, damaged, destroyed, sold, or wrongfully tional defense. disposed of; (b)(1) No person may be sentenced by court- martial to suffer death for an offense under this any military property of the United States, section (article) unless— shall be punished as a court-martial may direct. (A) the members of the court-martial unani- (Aug. 10, 1956, ch. 1041, 70A Stat. 71.) mously find at least one of the aggravating factors set out in subsection (c); and HISTORICAL AND REVISION NOTES (B) the members unanimously determine Revised that any extenuating or mitigating circum- section Source (U.S. Code) Source (Statutes at Large) stances are substantially outweighed by any 908 ...... 50:702. May 5, 1950, ch. 169, § 1 aggravating circumstances, including the ag- (Art. 108), 64 Stat. 138. gravating factors set out in subsection (c). (2) Findings under this subsection may be § 909. Art. 109. Property other than military based on— property of United States—Waste, spoilage, (A) evidence introduced on the issue of guilt or destruction or innocence; Any person subject to this chapter who will- (B) evidence introduced during the sentenc- fully or recklessly wastes, spoils, or otherwise ing proceeding; or willfully and wrongfully destroys or damages (C) all such evidence. any property other than military property of (3) The accused shall be given broad latitude the United States shall be punished as a court- to present matters in extenuation and mitiga- martial may direct. tion. (Aug. 10, 1956, ch. 1041, 70A Stat. 71.) (c) A sentence of death may be adjudged by a court-martial for an offense under this section HISTORICAL AND REVISION NOTES (article) only if the members unanimously find, Revised beyond a reasonable doubt, one or more of the section Source (U.S. Code) Source (Statutes at Large) following aggravating factors: 909 ...... 50:703. May 5, 1950, ch. 169, § 1 (1) The accused has been convicted of an- (Art. 109), 64 Stat. 139. other offense involving espionage or treason for which either a sentence of death or impris- § 910. Art. 110. Improper hazarding of vessel onment for life was authorized by statute. (2) In the commission of the offense, the ac- (a) Any person subject to this chapter who cused knowingly created a grave risk of sub- willfully and wrongfully hazards or suffers to be stantial damage to the national security. hazarded any vessel of the armed forces shall (3) In the commission of the offense, the ac- suffer death or such other punishment as a cused knowingly created a grave risk of death court-martial may direct. to another person. (b) Any person subject to this chapter who (4) Any other factor that may be prescribed negligently hazards or suffers to be hazarded by the President by regulations under section any vessel of the armed forces shall be punished 836 of this title (article 36). as a court-martial may direct. § 911 TITLE 10—ARMED FORCES Page 506

(Aug. 10, 1956, ch. 1041, 70A Stat. 71.) § 1066(a)(1), Oct. 23, 1992, 106 Stat. 2506; Pub. L. 103–160, div. A, title V, § 576(a), Nov. 30, 1993, 107 HISTORICAL AND REVISION NOTES Stat. 1677; Pub. L. 107–107, div. A, title V, § 581, Dec. 28, 2001, 115 Stat. 1123; Pub. L. 108–136, div. Revised Source (U.S. Code) Source (Statutes at Large) section A, title V, § 552, Nov. 24, 2003, 117 Stat. 1481.) 910(a) ...... 50:704(a). May 5, 1950, ch. 169, § 1 910(b) ...... 50:704(b). (Art. 110), 64 Stat. 139. HISTORICAL AND REVISION NOTES Revised § 911. Art. 111. Drunken or reckless operation of section Source (U.S. Code) Source (Statutes at Large) a vehicle, aircraft, or vessel 911 ...... 50:705. May 5, 1950, ch. 169, § 1 (Art. 111), 64 Stat. 139. (a) Any person subject to this chapter who— (1) operates or physically controls any vehi- AMENDMENTS cle, aircraft, or vessel in a reckless or wanton manner or while impaired by a substance de- 2003—Subsec. (a)(2). Pub. L. 108–136, § 552(1), sub- scribed in section 912a(b) of this title (article stituted ‘‘is equal to or exceeds’’ for ‘‘is in excess of’’. 112a(b)), or Subsec. (b)(1)(A). Pub. L. 108–136, § 552(2)(A), amended subpar. (A) generally. Prior to amendment, subpar. (A) (2) operates or is in actual physical control read as follows: ‘‘In the case of the operation or control of any vehicle, aircraft, or vessel while drunk of a vehicle, aircraft, or vessel in the United States, or when the alcohol concentration in the per- such limit is the blood alcohol content limit under the son’s blood or breath is equal to or exceeds the law of the State in which the conduct occurred, except applicable limit under subsection (b), as may be provided under paragraph (2) for conduct on a military installation that is in more than one State shall be punished as a court-martial may direct. and subject to the maximum blood alcohol content (b)(1) For purposes of subsection (a), the appli- limit specified in paragraph (3).’’ cable limit on the alcohol concentration in a Subsec. (b)(1)(B), (3). Pub. L. 108–136, § 552(2)(B), person’s blood or breath is as follows: struck out ‘‘maximum’’ before ‘‘blood alcohol content (A) In the case of the operation or control of specified’’ in par. (1)(B) and before ‘‘blood alcohol con- a vehicle, aircraft, or vessel in the United tent’’ in par. (3). States, such limit is the lesser of— Subsec. (b)(4)(A). Pub. L. 108–136, § 552(2)(C), sub- (i) the blood alcohol content limit under stituted ‘‘amount of alcohol concentration in a person’s the law of the State in which the conduct oc- blood or breath at which operation or control of a vehi- cle, aircraft, or vessel is prohibited.’’ for ‘‘maximum curred, except as may be provided under permissible alcohol concentration in a person’s blood paragraph (2) for conduct on a military in- or breath for purposes of operation or control of a vehi- stallation that is in more than one State; or cle, aircraft, or vessel.’’ (ii) the blood alcohol content limit speci- 2001—Pub. L. 107–107 designated existing provisions as fied in paragraph (3). subsec. (a), substituted ‘‘in excess of the applicable limit under subsection (b)’’ for ‘‘0.10 grams or more of (B) In the case of the operation or control of alcohol per 100 milliliters of blood or 0.10 grams or a vehicle, aircraft, or vessel outside the United more of alcohol per 210 liters of breath, as shown by States, the applicable blood alcohol content chemical analysis’’ in par. (2), and added subsec. (b). limit is the blood alcohol content limit speci- 1993—Par. (2). Pub. L. 103–160 inserted ‘‘or more’’ after fied in paragraph (3) or such lower limit as the ‘‘0.10 grams’’ in two places. Secretary of Defense may by regulation pre- 1992—Pub. L. 102–484 substituted ‘‘operation of a vehi- scribe. cle, aircraft, or vessel’’ for ‘‘driving’’ in section catch- line and amended text generally. Prior to amendment, (2) In the case of a military installation that text read as follows: ‘‘Any person subject to this chap- is in more than one State, if those States have ter who operates any vehicle while drunk, or in a reck- different blood alcohol content limits under less or wanton manner, or while impaired by a sub- their respective State laws, the Secretary may stance described in section 912a(b) of this title (article select one such blood alcohol content limit to 112a(b)), shall be punished as a court-martial may di- rect.’’ apply uniformly on that installation. 1986—Pub. L. 99–570 inserted ‘‘or while impaired by a (3) For purposes of paragraph (1), the blood al- substance described in section 912a(b) of this title (arti- cohol content limit with respect to alcohol con- cle 112a(b)),’’. centration in a person’s blood is 0.10 grams of al- cohol per 100 milliliters of blood and with re- EFFECTIVE DATE OF 1993 AMENDMENT spect to alcohol concentration in a person’s Pub. L. 103–160, div. A, title V, § 576(b), Nov. 30, 1993, breath is 0.10 grams of alcohol per 210 liters of 107 Stat. 1677, provided that: ‘‘The amendments made breath, as shown by chemical analysis. by subsection (a) [amending this section] shall take ef- (4) In this subsection: fect as if included in the amendment to section 911 of (A) The term ‘‘blood alcohol content limit’’ title 10, United States Code, made by section 1066(a)(1) means the amount of alcohol concentration in of Public Law 102–484 on October 23, 1992.’’ a person’s blood or breath at which operation EFFECTIVE DATE OF 1992 AMENDMENT or control of a vehicle, aircraft, or vessel is Amendment by Pub. L. 102–484 effective Oct. 23, 1992, prohibited. and applicable with respect to offenses committed on (B) The term ‘‘United States’’ includes the or after that date, see section 1067 of Pub. L. 102–484, set District of Columbia, the Commonwealth of out as a note under section 803 of this title. Puerto Rico, the Virgin Islands, Guam, and American Samoa and the term ‘‘State’’ in- § 912. Art. 112. Drunk on duty cludes each of those jurisdictions. Any person subject to this chapter other than (Aug. 10, 1956, ch. 1041, 70A Stat. 72; Pub. L. a sentinel or look-out, who is found drunk on 99–570, title III, § 3055, Oct. 27, 1986, 100 Stat. duty, shall be punished as a court-martial may 3207–76; Pub. L. 102–484, div. A, title X, direct. Page 507 TITLE 10—ARMED FORCES § 915

(Aug. 10, 1956, ch. 1041, 70A Stat. 72.) by the most expeditious means necessary to carry out the requirement in subsection (a)(1). HISTORICAL AND REVISION NOTES ‘‘(c) TESTS FOR USE OF LSD.—Procedures established under subsection (a) shall ensure that whenever the Revised section Source (U.S. Code) Source (Statutes at Large) controlled substance with respect to which a physio- logical specimen is to be examined is lysergic acid di- 912 ...... 50:706. May 5, 1950, ch. 169, § 1 ethylamide (LSD), the specimen is submitted to a fo- (Art. 112), 64 Stat. 139. rensic laboratory that is capable of determining with a reasonable degree of scientific certainty, on the basis § 912a. Art. 112a. Wrongful use, possession, etc., of the examination of that specimen, whether the per- of controlled substances son providing the specimen has used lysergic acid di- ethylamide (LSD). (a) Any person subject to this chapter who ‘‘(d) RULE OF CONSTRUCTION.—Nothing in this section wrongfully uses, possesses, manufactures, dis- shall be construed as providing a basis, that is not tributes, imports into the customs territory of otherwise available in law, for a defense to a charge or the United States, exports from the United a motion for exclusion of evidence or other appropriate States, or introduces into an installation, ves- relief in any criminal or administrative proceeding. sel, vehicle, or aircraft used by or under the con- ‘‘(e) CONTROLLED SUBSTANCES COVERED.—For purposes trol of the armed forces a substance described in of this section, a controlled substance is a substance subsection (b) shall be punished as a court-mar- described in section 912a(b) of title 10, United States Code. tial may direct. ‘‘(f) REPORT.—Not later than March 1, 1988, the Sec- (b) The substances referred to in subsection (a) retary of Defense shall submit to the Committees on are the following: Armed Services of the Senate and the House of Rep- (1) Opium, heroin, cocaine, amphetamine, ly- resentatives, a report describing the procedures estab- sergic acid diethylamide, methamphetamine, lished under this section.’’ phencyclidine, barbituric acid, and marijuana and any compound or derivative of any such substance. § 913. Art. 113. Misbehavior of sentinel (2) Any substance not specified in clause (1) Any sentinel or look-out who is found drunk that is listed on a schedule of controlled sub- or sleeping upon his post, or leaves it before he stances prescribed by the President for the is regularly relieved, shall be punished, if the of- purposes of this article. fense is committed in time of war, by death or (3) Any other substance not specified in such other punishment as a court-martial may clause (1) or contained on a list prescribed by direct, but if the offense is committed at any the President under clause (2) that is listed in other time, by such punishment other than schedules I through V of section 202 of the death as a court-martial may direct. Controlled Substances Act (21 U.S.C. 812). (Aug. 10, 1956, ch. 1041, 70A Stat. 72.) (Added Pub. L. 98–209, § 8(a), Dec. 6, 1983, 97 Stat. 1403.) HISTORICAL AND REVISION NOTES

EFFECTIVE DATE Revised section Source (U.S. Code) Source (Statutes at Large) Section effective first day of eighth calendar month beginning after Dec. 6, 1983, but not applicable to any 913 ...... 50:707. May 5, 1950, ch. 169, § 1 offense committed before that date and not to be con- (Art. 113), 64 Stat. 139. strued to invalidate the prosecution of any offense committed before that date, see section 12(a)(1), (5) of Pub. L. 98–209, set out as an Effective Date of 1983 § 914. Art. 114. Dueling Amendment note under section 801 of this title. Any person subject to this chapter who fights PROCEDURES FOR FORENSIC EXAMINATION OF CERTAIN or promotes, or is concerned in or connives at PHYSIOLOGICAL EVIDENCE fighting a duel, or who, having knowledge of a Pub. L. 100–180, div. A, title XII, § 1248, Dec. 4, 1987, 101 challenge sent or about to be sent, fails to re- Stat. 1166, provided that: port the facts promptly to the proper authority, ‘‘(a) ESTABLISHMENT OF PROCEDURES.—The Secretary shall be punished as a court-martial may direct. of Defense shall establish procedures to ensure that whenever, in connection with a criminal investigation (Aug. 10, 1956, ch. 1041, 70A Stat. 72.) conducted by or for a military department, a physio- logical specimen is obtained from a person for the pur- HISTORICAL AND REVISION NOTES pose of determining whether that person has used a Revised controlled substance— section Source (U.S. Code) Source (Statutes at Large) ‘‘(1) the specimen is in a condition that is suitable for forensic examination when delivered to a forensic 914 ...... 50:708. May 5, 1950, ch. 169, § 1 laboratory; and (Art. 114), 64 Stat. 139. ‘‘(2) the investigative agency that submits the spec- imen to the laboratory receives a written statement of the results of the forensic examination from the § 915. Art. 115. Malingering laboratory within such period as is necessary to use such results in a court-martial or other criminal pro- Any person subject to this chapter who for the ceeding resulting from the investigation. purpose of avoiding work, duty, or service— ‘‘(b) TRANSPORTATION OF SPECIMENS.—The procedures (1) feigns illness, physical disablement, men- prescribed under subsection (a)— tal lapse or derangement; or ‘‘(1) shall ensure that physiological specimens are (2) intentionally inflicts self-injury; preserved and transported in accordance with valid medical and forensic practices; and shall be punished as a court-martial may direct. ‘‘(2) insofar as practicable, shall require transpor- tation of the specimen to an appropriate laboratory (Aug. 10, 1956, ch. 1041, 70A Stat. 72.) § 916 TITLE 10—ARMED FORCES Page 508

HISTORICAL AND REVISION NOTES AMENDMENTS

Revised 2014—Par. (4). Pub. L. 113–291 substituted ‘‘forcible section Source (U.S. Code) Source (Statutes at Large) sodomy’’ for ‘‘sodomy’’. 2011—Par. (4). Pub. L. 112–81 substituted ‘‘sexual as- 915 ...... 50:709. May 5, 1950, ch. 169, § 1 (Art. 115), 64 Stat. 139. sault, sexual assault of a child, aggravated sexual con- tact, sexual abuse of a child,’’ for ‘‘aggravated sexual assault, aggravated sexual assault of a child, aggra- § 916. Art. 116. Riot or breach of peace vated sexual contact, aggravated sexual abuse of a Any person subject to this chapter who causes child, aggravated sexual contact with a child,’’. or participates in any riot or breach of the peace 2006—Par. (4). Pub. L. 109–163 substituted ‘‘rape, rape of a child, aggravated sexual assault, aggravated sexual shall be punished as a court-martial may direct. assault of a child, aggravated sexual contact, aggra- (Aug. 10, 1956, ch. 1041, 70A Stat. 72.) vated sexual abuse of a child, aggravated sexual con- tact with a child,’’ for ‘‘rape,’’. HISTORICAL AND REVISION NOTES 1992—Par. (3). Pub. L. 102–484 substituted ‘‘another’’ for ‘‘others’’. Revised Source (U.S. Code) Source (Statutes at Large) section EFFECTIVE DATE OF 2011 AMENDMENT 916 ...... 50:710. May 5, 1950, ch. 169, § 1 Amendment by Pub. L. 112–81 effective 180 days after (Art. 116), 64 Stat. 139. Dec. 31, 2011, and applicable with respect to offenses committed on or after such effective date, see section § 917. Art. 117. Provoking speeches or gestures 541(f) of Pub. L. 112–81, set out as a note under section 843 of this title. Any person subject to this chapter who uses provoking or reproachful words or gestures to- EFFECTIVE DATE OF 2006 AMENDMENT wards any other person subject to this chapter Amendment by Pub. L. 109–163 effective on Oct. 1, shall be punished as a court-martial may direct. 2007, see section 552(f) of Pub. L. 109–163, set out as a (Aug. 10, 1956, ch. 1041, 70A Stat. 72.) note under section 843 of this title. EFFECTIVE DATE OF 1992 AMENDMENT HISTORICAL AND REVISION NOTES Amendment by Pub. L. 102–484 effective Oct. 23, 1992, Revised Source (U.S. Code) Source (Statutes at Large) and applicable with respect to offenses committed on section or after that date, see section 1067 of Pub. L. 102–484, set 917 ...... 50:711. May 5, 1950, ch. 169, § 1 out as a note under section 803 of this title. (Art. 117), 64 Stat. 139. § 919. Art. 119. Manslaughter § 918. Art. 118. Murder (a) Any person subject to this chapter who, Any person subject to this chapter who, with- with an intent to kill or inflict great bodily out justification or excuse, unlawfully kills a harm, unlawfully kills a human being in the human being, when he— heat of sudden passion caused by adequate prov- (1) has a premeditated design to kill; ocation is guilty of voluntary manslaughter and (2) intends to kill or inflict great bodily shall be punished as a court-martial may direct. harm; (b) Any person subject to this chapter who, (3) is engaged in an act which is inherently without an intent to kill or inflict great bodily dangerous to another and evinces a wanton harm, unlawfully kills a human being— disregard of human life; or (1) by culpable negligence; or (4) is engaged in the perpetration or at- (2) while perpetrating or attempting to per- tempted perpetration of burglary, forcible sod- petrate an offense, other than those named in omy, rape, rape of a child, sexual assault, sex- clause (4) of section 918 of this title (article ual assault of a child, aggravated sexual con- 118), directly affecting the person; tact, sexual abuse of a child, robbery, or ag- is guilty of involuntary manslaughter and shall gravated arson; be punished as a court-martial may direct. is guilty of murder, and shall suffer such punish- (Aug. 10, 1956, ch. 1041, 70A Stat. 73.) ment as a court-martial may direct, except that if found guilty under clause (1) or (4), he shall HISTORICAL AND REVISION NOTES suffer death or imprisonment for life as a court- Revised martial may direct. section Source (U.S. Code) Source (Statutes at Large)

(Aug. 10, 1956, ch. 1041, 70A Stat. 72; Pub. L. 919(a) ...... 50:713(a). May 5, 1950, ch. 169, § 1 102–484, div. A, title X, § 1066(b), Oct. 23, 1992, 106 919(b) ...... 50:713(b). (Art. 119), 64 Stat. 140. Stat. 2506; Pub. L. 109–163, div. A, title V, § 552(d), Jan. 6, 2006, 119 Stat. 3263; Pub. L. 112–81, div. A, The word ‘‘named’’ is substituted for the word ‘‘speci- fied’’. title V, § 541(d)(2), Dec. 31, 2011, 125 Stat. 1410; Pub. L. 113–291, div. A, title V, § 531(d)(2)(B), Dec. § 919a. Art. 119a. Death or injury of an unborn 19, 2014, 128 Stat. 3364.) child

HISTORICAL AND REVISION NOTES (a)(1) Any person subject to this chapter who engages in conduct that violates any of the pro- Revised section Source (U.S. Code) Source (Statutes at Large) visions of law listed in subsection (b) and there- by causes the death of, or bodily injury (as de- 918 ...... 50:712. May 5, 1950, ch. 169, § 1 (Art. 118), 64 Stat. 140. fined in section 1365 of title 18) to, a child, who is in utero at the time the conduct takes place, The words ‘‘of this section’’ are omitted as surplus- is guilty of a separate offense under this section age. and shall, upon conviction, be punished by such Page 509 TITLE 10—ARMED FORCES § 920 punishment, other than death, as a court-mar- (1) commits a sexual act upon another per- tial may direct, which shall be consistent with son by— the punishments prescribed by the President for (A) threatening or placing that other per- that conduct had that injury or death occurred son in fear; to the unborn child’s mother. (B) causing bodily harm to that other per- (2) An offense under this section does not re- son; quire proof that— (C) making a fraudulent representation (i) the person engaging in the conduct had that the sexual act serves a professional pur- knowledge or should have had knowledge that pose; or the victim of the underlying offense was preg- (D) inducing a belief by any artifice, pre- nant; or tense, or concealment that the person is an- (ii) the accused intended to cause the death other person; of, or bodily injury to, the unborn child. (2) commits a sexual act upon another per- (3) If the person engaging in the conduct son when the person knows or reasonably thereby intentionally kills or attempts to kill should know that the other person is asleep, the unborn child, that person shall, instead of unconscious, or otherwise unaware that the being punished under paragraph (1), be punished sexual act is occurring; or as provided under sections 880, 918, and 919(a) of (3) commits a sexual act upon another per- this title (articles 80, 118, and 119(a)) for inten- son when the other person is incapable of con- tionally killing or attempting to kill a human senting to the sexual act due to— being. (A) impairment by any drug, intoxicant, or (4) Notwithstanding any other provision of other similar substance, and that condition law, the death penalty shall not be imposed for is known or reasonably should be known by an offense under this section. the person; or (b) The provisions referred to in subsection (a) (B) a mental disease or defect, or physical are sections 918, 919(a), 919(b)(2), 920(a), 922, 924, disability, and that condition is known or 926, and 928 of this title (articles 118, 119(a), reasonably should be known by the person; 119(b)(2), 120(a), 122, 124, 126, and 128). is guilty of sexual assault and shall be punished (c) Nothing in this section shall be construed as a court-martial may direct. to permit the prosecution— (c) AGGRAVATED SEXUAL CONTACT.—Any person (1) of any person for conduct relating to an subject to this chapter who commits or causes abortion for which the consent of the pregnant sexual contact upon or by another person, if to woman, or a person authorized by law to act do so would violate subsection (a) (rape) had the on her behalf, has been obtained or for which sexual contact been a sexual act, is guilty of ag- such consent is implied by law; gravated sexual contact and shall be punished as (2) of any person for any medical treatment a court-martial may direct. of the pregnant woman or her unborn child; or (d) ABUSIVE SEXUAL CONTACT.—Any person (3) of any woman with respect to her unborn subject to this chapter who commits or causes child. sexual contact upon or by another person, if to (d) In this section, the term ‘‘unborn child’’ do so would violate subsection (b) (sexual as- means a child in utero, and the term ‘‘child in sault) had the sexual contact been a sexual act, utero’’ or ‘‘child, who is in utero’’ means a mem- is guilty of abusive sexual contact and shall be ber of the species homo sapiens, at any stage of punished as a court-martial may direct. development, who is carried in the womb. (e) PROOF OF THREAT.—In a prosecution under this section, in proving that a person made a (Added Pub. L. 108–212, § 3(a), Apr. 1, 2004, 118 threat, it need not be proven that the person ac- Stat. 569.) tually intended to carry out the threat or had § 920. Art. 120. Rape and sexual assault generally the ability to carry out the threat. (f) DEFENSES.—An accused may raise any ap- (a) RAPE.—Any person subject to this chapter plicable defenses available under this chapter or who commits a sexual act upon another person the Rules for Court-Martial. Marriage is not a by— defense for any conduct in issue in any prosecu- (1) using unlawful force against that other tion under this section. person; (g) DEFINITIONS.—In this section: (2) using force causing or likely to cause (1) SEXUAL ACT.—The term ‘‘sexual act’’ death or grievous bodily harm to any person; means— (3) threatening or placing that other person (A) contact between the penis and the in fear that any person will be subjected to vulva or anus or mouth, and for purposes of death, grievous bodily harm, or kidnapping; this subparagraph contact involving the (4) first rendering that other person uncon- penis occurs upon penetration, however scious; or slight; or (5) administering to that other person by (B) the penetration, however slight, of the force or threat of force, or without the knowl- vulva or anus or mouth, of another by any edge or consent of that person, a drug, intoxi- part of the body or by any object, with an in- cant, or other similar substance and thereby tent to abuse, humiliate, harass, or degrade substantially impairing the ability of that any person or to arouse or gratify the sexual other person to appraise or control conduct; desire of any person. is guilty of rape and shall be punished as a (2) SEXUAL CONTACT.—The term ‘‘sexual con- court-martial may direct. tact’’ means— (b) SEXUAL ASSAULT.—Any person subject to (A) touching, or causing another person to this chapter who— touch, either directly or through the cloth- § 920 TITLE 10—ARMED FORCES Page 510

ing, the genitalia, anus, groin, breast, inner (Aug. 10, 1956, ch. 1041, 70A Stat. 73; Pub. L. thigh, or buttocks of any person, with an in- 102–484, div. A, title X, § 1066(c), Oct. 23, 1992, 106 tent to abuse, humiliate, or degrade any per- Stat. 2506; Pub. L. 104–106, div. A, title XI, § 1113, son; or Feb. 10, 1996, 110 Stat. 462; Pub. L. 109–163, div. A, (B) any touching, or causing another per- title V, § 552(a)(1), Jan. 6, 2006, 119 Stat. 3256; son to touch, either directly or through the Pub. L. 112–81, div. A, title V, § 541(a), Dec. 31, clothing, any body part of any person, if 2011, 125 Stat. 1404; Pub. L. 112–239, div. A, title done with an intent to arouse or gratify the X, § 1076(f)(9), Jan. 2, 2013, 126 Stat. 1952.) sexual desire of any person. HISTORICAL AND REVISION NOTES Touching may be accomplished by any part of the body. Revised section Source (U.S. Code) Source (Statutes at Large) (3) BODILY HARM.—The term ‘‘bodily harm’’ means any offensive touching of another, how- 920(a) ...... 50:714(a). May 5, 1950, ch. 169, § 1 920(b) ...... 50:714(b). (Art. 120), 64 Stat. 140. ever slight, including any nonconsensual sex- 920(c) ...... 50:714(c). ual act or nonconsensual sexual contact. (4) GRIEVOUS BODILY HARM.—The term In subsection (c), the words ‘‘either of’’ are inserted ‘‘grievous bodily harm’’ means serious bodily for clarity. injury. It includes fractured or dislocated AMENDMENTS bones, deep cuts, torn members of the body, serious damage to internal organs, and other 2013—Subsec. (g)(7). Pub. L. 112–239 struck out second period at end. severe bodily injuries. It does not include 2011—Pub. L. 112–81, § 541(a)(11), substituted ‘‘Art. 120. minor injuries such as a black eye or a bloody Rape and sexual assault generally’’ for ‘‘Art. 120. Rape, nose. sexual assault, and other sexual misconduct’’ in section (5) FORCE.—The term ‘‘force’’ means— catchline. (A) the use of a weapon; Subsec. (a). Pub. L. 112–81, § 541(a)(1), amended subsec. (B) the use of such physical strength or (a) generally. Prior to amendment, subsec. (a) related violence as is sufficient to overcome, re- to rape. Subsec. (b). Pub. L. 112–81, § 541(a)(3), redesignated strain, or injure a person; or subsec. (c) as (b) and amended it generally. Pub. L. (C) inflicting physical harm sufficient to 112–81, § 541(a)(2), struck out subsec. (b) which related to coerce or compel submission by the victim. rape of a child. (6) UNLAWFUL FORCE.—The term ‘‘unlawful Subsec. (c). Pub. L. 112–81, § 541(a)(4), redesignated force’’ means an act of force done without subsec. (e) as (c) and substituted ‘‘commits’’ for ‘‘en- gages in’’ and ‘‘upon’’ for ‘‘with’’. Former subsec. (c) re- legal justification or excuse. designated (b). (7) THREATENING OR PLACING THAT OTHER PER- Subsec. (d). Pub. L. 112–81, § 541(a)(5), redesignated SON IN FEAR.—The term ‘‘threatening or plac- subsec. (h) as (d) and substituted ‘‘commits’’ for ‘‘en- ing that other person in fear’’ means a com- gages in’’, ‘‘upon’’ for ‘‘with’’, and ‘‘subsection (b) (sex- munication or action that is of sufficient con- ual assault)’’ for ‘‘subsection (c) (aggravated sexual as- sequence to cause a reasonable fear that non- sault)’’. compliance will result in the victim or an- Pub. L. 112–81, § 541(a)(2), struck out subsec. (d) which related to aggravated sexual assault of a child. other person being subjected to the wrongful Subsec. (e). Pub. L. 112–81, § 541(a)(7), redesignated action contemplated by the communication or subsec. (p) as (e) and substituted ‘‘a person made’’ for action. ‘‘the accused made’’ and ‘‘the person actually’’ for ‘‘the (8) CONSENT.— accused actually’’ and inserted ‘‘or had the ability to (A) The term ‘‘consent’’ means a freely carry out the threat’’ before period at end. Former sub- given agreement to the conduct at issue by sec. (e) redesignated (c). a competent person. An expression of lack of Subsec. (f). Pub. L. 112–81, § 541(a)(8), redesignated subsec. (q) as (f) and amended it generally. consent through words or conduct means Pub. L. 112–81, § 541(a)(2), struck out subsec. (f) which there is no consent. Lack of verbal or phys- related to aggravated sexual abuse of a child. ical resistance or submission resulting from Subsec. (g). Pub. L. 112–81, § 541(a)(2), (10), redesig- the use of force, threat of force, or placing nated subsec. (t) as (g) and struck out former subsec. another person in fear does not constitute (g) which related to aggravated sexual contact with a consent. A current or previous dating or so- child. cial or sexual relationship by itself or the Subsec. (g)(1)(A). Pub. L. 112–81, § 541(a)(10)(A)(i), in- serted ‘‘or anus or mouth’’ after ‘‘vulva’’. manner of dress of the person involved with Subsec. (g)(1)(B). Pub. L. 112–81, § 541(a)(10)(A)(ii), sub- the accused in the conduct at issue shall not stituted ‘‘vulva or anus or mouth,’’ for ‘‘genital open- constitute consent. ing’’ and ‘‘any part of the body’’ for ‘‘a hand or finger’’. (B) A sleeping, unconscious, or incom- Subsec. (g)(2). Pub. L. 112–81, § 541(a)(10)(B), amended petent person cannot consent. A person can- par. (2) generally. Prior to amendment, par. (2) defined not consent to force causing or likely to ‘‘sexual contact’’. Subsec. (g)(3). Pub. L. 112–81, § 541(a)(10)(D), redesig- cause death or grievous bodily harm or to nated par. (8) as (3) and inserted ‘‘, including any non- being rendered unconscious. A person cannot consensual sexual act or nonconsensual sexual con- consent while under threat or in fear or tact’’ before period at end. Former par. (3) redesignated under the circumstances described in sub- (4). paragraph (C) or (D) of subsection (b)(1). Subsec. (g)(4). Pub. L. 112–81, § 541(a)(10)(E), struck (C) Lack of consent may be inferred based out at end ‘‘It does not include minor injuries such as on the circumstances of the offense. All the a black eye or a bloody nose. It is the same level of in- surrounding circumstances are to be consid- jury as in section 928 (article 128) of this chapter, and a lesser degree of injury than in section 2246(4) of title ered in determining whether a person gave 18.’’ consent, or whether a person did not resist Pub. L. 112–81, § 541(a)(10)(C), redesignated par. (3) as or ceased to resist only because of another (4) and struck out former par. (4) which defined ‘‘dan- person’s actions. gerous weapon or object’’. Page 511 TITLE 10—ARMED FORCES § 920a

Subsec. (g)(5). Pub. L. 112–81, § 541(a)(10)(F), (H), added 541(f) of Pub. L. 112–81, set out as a note under section par. (5) and struck out former par. (5) which defined 843 of this title. ‘‘force’’. Subsec. (g)(6). Pub. L. 112–81, § 541(a)(10)(H), added par. EFFECTIVE DATE OF 2006 AMENDMENT (6). Former par. (6) redesignated (7). Pub. L. 109–163, div. A, title V, § 552(c), Jan. 6, 2006, 119 Subsec. (g)(7). Pub. L. 112–81, § 541(a)(10)(G), (I), redes- Stat. 3263, provided that: ‘‘Section 920 of title 10, United ignated par. (6) as (7), struck out ‘‘under paragraph (3) States Code (article 120 of the Uniform Code of Military of subsection (a) (rape), or under subsection (e) (aggra- Justice), as amended by subsection (a), shall apply with vated sexual contact),’’ after ‘‘person in fear’ ’’, and respect to offenses committed on or after the effective substituted ‘‘the wrongful action contemplated by the date specified in subsection (f) [see note below].’’ communication or action.’’ for ‘‘death, grievous bodily Amendment by Pub. L. 109–163 effective on Oct. 1, harm, or kidnapping’’. 2007, see section 552(f) of Pub. L. 109–163, set out as a Pub. L. 112–81, § 541(a)(10)(F), struck out par. (7) which note under section 843 of this title. defined ‘‘threatening or placing that other person in EFFECTIVE DATE OF 1992 AMENDMENT fear’’. Subsec. (g)(8). Pub. L. 112–81, § 541(a)(10)(K), redesig- Amendment by Pub. L. 102–484 effective Oct. 23, 1992, nated par. (14) as (8), designated introductory provi- and applicable with respect to offenses committed on sions as subpar. (A), in first sentence, struck out or after that date, see section 1067 of Pub. L. 102–484, set ‘‘words or overt acts indicating’’ before ‘‘a freely out as a note under section 803 of this title. given’’ and ‘‘sexual’’ before ‘‘conduct’’, in third sen- INTERIM MAXIMUM PUNISHMENTS tence, struck out ‘‘accused’s’’ before ‘‘use of force’’, in fourth sentence, inserted ‘‘or social or sexual’’ before Pub. L. 109–163, div. A, title V, § 552(b), Jan. 6, 2006, 119 ‘‘relationship’’ and struck out ‘‘sexual’’ before ‘‘con- Stat. 3263, provided that: ‘‘Until the President other- duct’’ and last sentence, including subpars. (A) and (B), wise provides pursuant to section 856 of title 10, United which related to a person who cannot consent to sexual States Code (article 56 of the Uniform Code of Military activity, and added subpars. (B) and (C). Former par. (8) Justice), the punishment which a court-martial may di- redesignated (3). rect for an offense under section 920 of such title (arti- Subsec. (g)(9) to (13). Pub. L. 112–81, § 541(a)(10)(J), cle 120 of the Uniform Code of Military Justice), as struck out pars. (9) to (13) which defined ‘‘child’’, ‘‘lewd amended by subsection (a), may not exceed the follow- act’’, ‘‘indecent liberty’’, ‘‘indecent conduct’’, and ‘‘act ing limits: of prostitution’’, respectively. ‘‘(1) SUBSECTIONS (a) AND (b).—For an offense under Subsec. (g)(14). Pub. L. 112–81, § 541(a)(10)(K), redesig- subsection (a) (rape) or subsection (b) (rape of a nated par. (14) as (8). child), death or such other punishment as a court- Subsec. (g)(15), (16). Pub. L. 112–81, § 541(a)(10)(L), martial may direct. struck out pars. (15) and (16) which defined ‘‘mistake of ‘‘(2) SUBSECTION (c).—For an offense under sub- fact as to consent’’ and ‘‘affirmative defense’’, respec- section (c) (aggravated sexual assault), dishonorable tively. discharge, forfeiture of all pay and allowances, and Subsec. (h). Pub. L. 112–81, § 541(a)(5), redesignated confinement for 30 years. subsec. (h) as (d). ‘‘(3) SUBSECTIONS (d) AND (e).—For an offense under Subsecs. (i), (j). Pub. L. 112–81, § 541(a)(2), struck out subsection (d) (aggravated sexual assault of a child) subsecs. (i) and (j) which related to abusive sexual con- or subsection (e) (aggravated sexual contact), dishon- tact with a child and indecent liberty with a child, re- orable discharge, forfeiture of all pay and allowances, spectively. and confinement for 20 years. Subsecs. (k) to (n). Pub. L. 112–81, § 541(a)(6), struck ‘‘(4) SUBSECTIONS (f) AND (g).—For an offense under out subsecs. (k) to (n) which related to indecent act, subsection (f) (aggravated sexual abuse of a child) or forcible pandering, wrongful sexual contact, and inde- subsection (g) (aggravated sexual contact with a cent exposure, respectively. child), dishonorable discharge, forfeiture of all pay Subsec. (o). Pub. L. 112–81, § 541(a)(2), struck out sub- and allowances, and confinement for 15 years. sec. (o) which related to age of child. ‘‘(5) SUBSECTIONS (h) THROUGH (j).—For an offense Subsec. (p). Pub. L. 112–81, § 541(a)(7), redesignated under subsection (h) (abusive sexual contact), sub- subsec. (p) as (e). section (i) (abusive sexual contact with a child), or Subsec. (q). Pub. L. 112–81, § 541(a)(8), redesignated subsection (j) (indecent liberty with a child), dishon- subsec. (q) as (f). orable discharge, forfeiture of all pay and allowances, Subsecs. (r), (s). Pub. L. 112–81, § 541(a)(9), struck out and confinement for 7 years. subsecs. (r) and (s) which related to consent and mis- ‘‘(6) SUBSECTIONS (k) AND (l).—For an offense under take of fact as to consent and other affirmative de- subsection (k) (indecent act) or subsection (l) (forc- fenses not precluded, respectively. ible pandering), dishonorable discharge, forfeiture of Subsec. (t). Pub. L. 112–81, § 541(a)(10), redesignated all pay and allowances, and confinement for 5 years. subsec. (t) as (g). ‘‘(7) SUBSECTIONS (m) AND (n).—For an offense under 2006—Pub. L. 109–163 amended section generally, sub- subsection (m) (wrongful sexual contact) or sub- stituting subsecs. (a) to (t) relating to rape, sexual as- section (n) (indecent exposure), dishonorable dis- sault, and other sexual misconduct for subsecs. (a) to charge, forfeiture of all pay and allowances, and con- (d) relating to rape and carnal knowledge. finement for one year.’’ 1996—Subsec. (b). Pub. L. 104–106, § 1113(a), amended [See 2011 Amendment notes above for extensive subsec. (b) generally. Prior to amendment, subsec. (b) amendment of section 920 of title 10 by Pub. L. 112–81, read as follows: ‘‘Any person subject to this chapter effective 180 days after Dec. 31, 2011, and applicable who, under circumstances not amounting to rape, com- with respect to offenses committed on or after such ef- mits an act of sexual intercourse with a female not his fective date.] wife who has not attained the age of sixteen years, is § 920a. Art. 120a. Stalking guilty of carnal knowledge and shall be punished as a court-martial may direct.’’ (a) Any person subject to this section— Subsec. (d). Pub. L. 104–106, § 1113(b), added subsec. (d). (1) who wrongfully engages in a course of 1992—Subsec. (a). Pub. L. 102–484 struck out ‘‘with a conduct directed at a specific person that female not his wife’’ after ‘‘intercourse’’ and ‘‘her’’ would cause a reasonable person to fear death after ‘‘without’’. or bodily harm, including sexual assault, to EFFECTIVE DATE OF 2011 AMENDMENT himself or herself or a member of his or her Amendment by Pub. L. 112–81 effective 180 days after immediate family; Dec. 31, 2011, and applicable with respect to offenses (2) who has knowledge, or should have committed on or after such effective date, see section knowledge, that the specific person will be § 920b TITLE 10—ARMED FORCES Page 512

placed in reasonable fear of death or bodily cused knew the age of the other person engag- harm, including sexual assault, to himself or ing in the sexual act or lewd act. It is not a de- herself or a member of his or her immediate fense that the accused reasonably believed family; and that the child had attained the age of 12 years. (3) whose acts induce reasonable fear in the (2) UNDER 16 YEARS.—In a prosecution under specific person of death or bodily harm, in- this section, it need not be proven that the ac- cluding sexual assault, to himself or herself or cused knew that the other person engaging in to a member of his or her immediate family; the sexual act or lewd act had not attained the is guilty of stalking and shall be punished as a age of 16 years, but it is a defense in a prosecu- court-martial may direct. tion under subsection (b) (sexual assault of a (b) In this section: child) or subsection (c) (sexual abuse of a (1) The term ‘‘course of conduct’’ means— child), which the accused must prove by a pre- (A) a repeated maintenance of visual or ponderance of the evidence, that the accused physical proximity to a specific person; or reasonably believed that the child had at- (B) a repeated conveyance of verbal threat, tained the age of 16 years, if the child had in written threats, or threats implied by con- fact attained at least the age of 12 years. duct, or a combination of such threats, di- (e) PROOF OF THREAT.—In a prosecution under rected at or toward a specific person. this section, in proving that a person made a (2) The term ‘‘repeated’’, with respect to threat, it need not be proven that the person ac- conduct, means two or more occasions of such tually intended to carry out the threat or had conduct. the ability to carry out the threat. (3) The term ‘‘immediate family’’, in the (f) MARRIAGE.—In a prosecution under sub- case of a specific person, means a spouse, par- section (b) (sexual assault of a child) or sub- ent, child, or sibling of the person, or any section (c) (sexual abuse of a child), it is a de- other family member, relative, or intimate fense, which the accused must prove by a pre- partner of the person who regularly resides in ponderance of the evidence, that the persons en- the household of the person or who within the gaging in the sexual act or lewd act were at that six months preceding the commencement of time married to each other, except where the ac- the course of conduct regularly resided in the cused commits a sexual act upon the person household of the person. when the accused knows or reasonably should know that the other person is asleep, uncon- (Added Pub. L. 109–163, div. A, title V, § 551(a)(1), scious, or otherwise unaware that the sexual act Jan. 6, 2006, 119 Stat. 3256.) is occurring or when the other person is incapa- EFFECTIVE DATE ble of consenting to the sexual act due to im- pairment by any drug, intoxicant, or other simi- Pub. L. 109–163, div. A, title V, § 551(b), Jan. 6, 2006, 119 Stat. 3256, provided that: ‘‘Section 920a of title 10, lar substance, and that condition was known or United States Code (article 120a of the Uniform Code of reasonably should have been known by the ac- Military Justice), as added by subsection (a), applies to cused. offenses committed after the date that is 180 days after (g) CONSENT.—Lack of consent is not an ele- the date of the enactment of this Act [Jan. 6, 2006].’’ ment and need not be proven in any prosecution under this section. A child not legally married § 920b. Art. 120b. Rape and sexual assault of a to the person committing the sexual act, lewd child act, or use of force cannot consent to any sexual (a) RAPE OF A CHILD.—Any person subject to act, lewd act, or use of force. this chapter who— (h) DEFINITIONS.—In this section: (1) commits a sexual act upon a child who (1) SEXUAL ACT AND SEXUAL CONTACT.—The has not attained the age of 12 years; or terms ‘‘sexual act’’ and ‘‘sexual contact’’ have (2) commits a sexual act upon a child who the meanings given those terms in section has attained the age of 12 years by— 920(g) of this title (article 120(g)). (A) using force against any person; (2) FORCE.—The term ‘‘force’’ means— (B) threatening or placing that child in (A) the use of a weapon; fear; (B) the use of such physical strength or (C) rendering that child unconscious; or violence as is sufficient to overcome, re- (D) administering to that child a drug, in- strain, or injure a child; or toxicant, or other similar substance; (C) inflicting physical harm. is guilty of rape of a child and shall be punished In the case of a parent-child or similar rela- as a court-martial may direct. tionship, the use or abuse of parental or simi- (b) SEXUAL ASSAULT OF A CHILD.—Any person lar authority is sufficient to constitute the subject to this chapter who commits a sexual use of force. act upon a child who has attained the age of 12 (3) THREATENING OR PLACING THAT CHILD IN years is guilty of sexual assault of a child and FEAR.—The term ‘‘threatening or placing that shall be punished as a court-martial may direct. child in fear’’ means a communication or ac- (c) SEXUAL ABUSE OF A CHILD.—Any person tion that is of sufficient consequence to cause subject to this chapter who commits a lewd act the child to fear that non-compliance will re- upon a child is guilty of sexual abuse of a child sult in the child or another person being sub- and shall be punished as a court-martial may di- jected to the action contemplated by the com- rect. munication or action. (d) AGE OF CHILD.— (4) CHILD.—The term ‘‘child’’ means any per- (1) UNDER 12 YEARS.—In a prosecution under son who has not attained the age of 16 years. this section, it need not be proven that the ac- (5) LEWD ACT.—The term ‘‘lewd act’’ means— Page 513 TITLE 10—ARMED FORCES § 921

(A) any sexual contact with a child; engage in an act of prostitution with any person (B) intentionally exposing one’s genitalia, is guilty of forcible pandering and shall be pun- anus, buttocks, or female areola or nipple to ished as a court-martial may direct. a child by any means, including via any (c) INDECENT EXPOSURE.—Any person subject communication technology, with an intent to this chapter who intentionally exposes, in an to abuse, humiliate, or degrade any person, indecent manner, the genitalia, anus, buttocks, or to arouse or gratify the sexual desire of or female areola or nipple is guilty of indecent any person; exposure and shall by punished as a court-mar- (C) intentionally communicating indecent tial may direct. language to a child by any means, including (d) DEFINITIONS.—In this section: via any communication technology, with an (1) ACT OF PROSTITUTION.—The term ‘‘act of intent to abuse, humiliate, or degrade any prostitution’’ means a sexual act or sexual person, or to arouse or gratify the sexual de- contact (as defined in section 920(g) of this sire of any person; or title (article 120(g))) on account of which any- (D) any indecent conduct, intentionally thing of value is given to, or received by, any done with or in the presence of a child, in- person. cluding via any communication technology, (2) PRIVATE AREA.—The term ‘‘private area’’ that amounts to a form of immorality relat- means the naked or underwear-clad genitalia, ing to sexual impurity which is grossly vul- anus, buttocks, or female areola or nipple. gar, obscene, and repugnant to common pro- (3) REASONABLE EXPECTATION OF PRIVACY.— priety, and tends to excite sexual desire or The term ‘‘under circumstances in which that deprave morals with respect to sexual rela- other person has a reasonable expectation of tions. privacy’’ means— (A) circumstances in which a reasonable (Added Pub. L. 112–81, div. A, title V, § 541(b), person would believe that he or she could Dec. 31, 2011, 125 Stat. 1407; amended Pub. L. disrobe in privacy, without being concerned 112–239, div. A, title X, § 1076(a)(3), Jan. 2, 2013, that an image of a private area of the person 126 Stat. 1948.) was being captured; or AMENDMENTS (B) circumstances in which a reasonable person would believe that a private area of 2013—Pub. L. 112–239 made technical amendment to the person would not be visible to the public. directory language of Pub. L. 112–81, which enacted this section. (4) BROADCAST.—The term ‘‘broadcast’’ means to electronically transmit a visual EFFECTIVE DATE OF 2013 AMENDMENT image with the intent that it be viewed by a Pub. L. 112–239, div. A, title X, § 1076(a), Jan. 2, 2013, person or persons. 126 Stat. 1947, provided that the amendment made by (5) DISTRIBUTE.—The term ‘‘distribute’’ section 1076(a)(3) is effective Dec. 31, 2011, and as if in- means delivering to the actual or constructive cluded in Pub. L. 112–81 as enacted. possession of another, including transmission EFFECTIVE DATE by electronic means. Amendment by Pub. L. 112–81 effective 180 days after (6) INDECENT MANNER.—The term ‘‘indecent Dec. 31, 2011, and applicable with respect to offenses manner’’ means conduct that amounts to a committed on or after such effective date, see section form of immorality relating to sexual impu- 541(f) of Pub. L. 112–81, set out as an Effective Date of rity which is grossly vulgar, obscene, and re- 2011 Amendment note under section 843 of this title. pugnant to common propriety, and tends to excite sexual desire or deprave morals with re- § 920c. Art. 120c. Other sexual misconduct spect to sexual relations. (a) INDECENT VIEWING, VISUAL RECORDING, OR (Added Pub. L. 112–81, div. A, title V, § 541(c), BROADCASTING.—Any person subject to this Dec. 31, 2011, 125 Stat. 1409.) chapter who, without legal justification or law- ful authorization— EFFECTIVE DATE (1) knowingly and wrongfully views the pri- Amendment by Pub. L. 112–81 effective 180 days after vate area of another person, without that Dec. 31, 2011, and applicable with respect to offenses other person’s consent and under circum- committed on or after such effective date, see section stances in which that other person has a rea- 541(f) of Pub. L. 112–81, set out as an Effective Date of 2011 Amendment note under section 843 of this title. sonable expectation of privacy; (2) knowingly photographs, videotapes, § 921. Art. 121. Larceny and wrongful appropria- films, or records by any means the private tion area of another person, without that other (a) Any person subject to this chapter who person’s consent and under circumstances in wrongfully takes, obtains, or withholds, by any which that other person has a reasonable ex- means, from the possession of the owner or of pectation of privacy; or any other person any money, personal property, (3) knowingly broadcasts or distributes any or article of value of any kind— such recording that the person knew or rea- (1) with intent permanently to deprive or de- sonably should have known was made under fraud another person of the use and benefit of the circumstances proscribed in paragraphs (1) property or to appropriate it to his own use or and (2); the use of any person other than the owner, is guilty of an offense under this section and steals that property and is guilty of larceny; shall be punished as a court-martial may direct. or (b) FORCIBLE PANDERING.—Any person subject (2) with intent temporarily to deprive or de- to this chapter who compels another person to fraud another person of the use and benefit of § 922 TITLE 10—ARMED FORCES Page 514

property or to appropriate it to his own use or any bank or other depository, knowing at the the use of any person other than the owner, is time that the maker or drawer has not or will guilty of wrongful appropriation. not have sufficient funds in, or credit with, the (b) Any person found guilty of larceny or bank or other depository for the payment of wrongful appropriation shall be punished as a that check, draft, or order in full upon its pre- court-martial may direct. sentment, shall be punished as a court-martial may direct. The making, drawing, uttering, or (Aug. 10, 1956, ch. 1041, 70A Stat. 73.) delivering by a maker or drawer of a check, HISTORICAL AND REVISION NOTES draft, or order, payment of which is refused by the drawee because of insufficient funds of the Revised maker or drawer in the drawee’s possession or section Source (U.S. Code) Source (Statutes at Large) control, is prima facie evidence of his intent to 921(a) ...... 50:715(a). May 5, 1950, ch. 169, § 1 defraud or deceive and of his knowledge of insuf- 921(b) ...... 50:715(b). (Art. 121), 64 Stat. 140. ficient funds in, or credit with, that bank or In subsection (a), the words ‘‘whatever’’ and ‘‘true’’ other depository, unless the maker or drawer are omitted as surplusage. The word ‘‘it’’ is substituted pays the holder the amount due within five days for the words ‘‘the same’’ in clauses (1) and (2). after receiving notice, orally or in writing, that the check, draft, or order was not paid on pre- § 922. Art. 122. Robbery sentment. In this section, the word ‘‘credit’’ Any person subject to this chapter who with means an arrangement or understanding, ex- intent to steal takes anything of value from the press or implied, with the bank or other deposi- person or in the presence of another, against his tory for the payment of that check, draft, or will, by means of force or violence or fear of im- order. mediate or future injury to his person or prop- (Added Pub. L. 87–385, § 1(1), Oct. 4, 1961, 75 Stat. erty or to the person or property of a relative or 814.) member of his family or of anyone in his com- pany at the time of the robbery, is guilty of rob- EFFECTIVE DATE bery and shall be punished as a court-martial Pub. L. 87–385, § 2, Oct. 4, 1961, 75 Stat. 814, provided may direct. that: ‘‘This Act [enacting this section] becomes effec- (Aug. 10, 1956, ch. 1041, 70A Stat. 73.) tive on the first day of the fifth month following the month in which it is enacted [October 1961].’’ HISTORICAL AND REVISION NOTES § 924. Art. 124. Maiming Revised section Source (U.S. Code) Source (Statutes at Large) Any person subject to this chapter who, with intent to injure, disfigure, or disable, inflicts 922 ...... 50:716. May 5, 1950, ch. 169, § 1 (Art. 122), 64 Stat. 140. upon the person of another an injury which— (1) seriously disfigures his person by any mu- § 923. Art. 123. Forgery tilation thereof; (2) destroys or disables any member or organ Any person subject to this chapter who, with of his body; or intent to defraud— (3) seriously diminishes his physical vigor by (1) falsely makes or alters any signature to, the injury of any member or organ; or any part of, any writing which would, if genuine, apparently impose a legal liability on is guilty of maiming and shall be punished as a another or change his legal right or liability court-martial may direct. to his prejudice; or (Aug. 10, 1956, ch. 1041, 70A Stat. 74.) (2) utters, offers, issues, or transfers such a writing, known by him to be so made or al- HISTORICAL AND REVISION NOTES tered; Revised is guilty of forgery and shall be punished as a section Source (U.S. Code) Source (Statutes at Large) court-martial may direct. 924 ...... 50:718. May 5, 1950, ch. 169, § 1 (Aug. 10, 1956, ch. 1041, 70A Stat. 74.) (Art. 124), 64 Stat. 141.

HISTORICAL AND REVISION NOTES § 925. Art 125. Forcible sodomy; bestiality

Revised Source (U.S. Code) Source (Statutes at Large) (a) FORCIBLE SODOMY.—Any person subject to section this chapter who engages in unnatural carnal 923 ...... 50:717. May 5, 1950, ch. 169, § 1 copulation with another person of the same or (Art. 123), 64 Stat. 141. opposite sex by unlawful force or without the consent of the other person is guilty of forcible § 923a. Art. 123a. Making, drawing, or uttering sodomy and shall be punished as a court-martial check, draft, or order without sufficient may direct. funds (b) BESTIALITY.—Any person subject to this Any person subject to this chapter who— chapter who engages in unnatural carnal copula- (1) for the procurement of any article or tion with an animal is guilty of bestiality and thing of value, with intent to defraud; or shall be punished as a court-martial may direct. (2) for the payment of any past due obliga- (c) SCOPE OF OFFENSES.—Penetration, however tion, or for any other purpose, with intent to slight, is sufficient to complete an offense under deceive; subsection (a) or (b). makes, draws, utters, or delivers any check, (Aug. 10, 1956, ch. 1041, 70A Stat. 74; Pub. L. draft, or order for the payment of money upon 113–66, div. A, title XVII, § 1707(a), Dec. 26, 2013, Page 515 TITLE 10—ARMED FORCES § 931

127 Stat. 961; Pub. L. 113–291, div. A, title V, (b) Any person subject to this chapter who— § 531(d)(1), Dec. 19, 2014, 128 Stat. 3364.) (1) commits an assault with a dangerous weapon or other means or force likely to HISTORICAL AND REVISION NOTES produce death or grievous bodily harm; or (2) commits an assault and intentionally in- Revised Source (U.S. Code) Source (Statutes at Large) section flicts grievous bodily harm with or without a 925(a) ...... 50:719(a). May 5, 1950, ch. 169, § 1 weapon; 925(b) ...... 50:719(b). (Art. 125), 64 Stat. 141. is guilty of aggravated assault and shall be pun- AMENDMENTS ished as a court-martial may direct. 2014—Subsec. (a). Pub. L. 113–291 substituted ‘‘unlaw- (Aug. 10, 1956, ch. 1041, 70A Stat. 75.) ful force’’ for ‘‘force’’. 2013—Pub. L. 113–66 amended section catchline and HISTORICAL AND REVISION NOTES text generally. Prior to amendment, text read as fol- Revised lows: section Source (U.S. Code) Source (Statutes at Large) ‘‘(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of 928(a) ...... 50:722(a). May 5, 1950, ch. 169, § 1 the same or opposite sex or with an animal is guilty of 928(b) ...... 50:722(b). (Art. 128), 64 Stat. 141. sodomy. Penetration, however slight, is sufficient to complete the offense. ‘‘(b) Any person found guilty of sodomy shall be pun- § 929. Art. 129. Burglary ished as a court-martial may direct.’’ Any person subject to this chapter who, with § 926. Art. 126. Arson intent to commit an offense punishable under sections 918–928 of this title (articles 118–128), (a) Any person subject to this chapter who breaks and enters, in the nighttime, the dwell- willfully and maliciously burns or sets on fire an ing house of another, is guilty of burglary and inhabited dwelling, or any other structure, mov- shall be punished as a court-martial may direct. able or immovable, wherein to the knowledge of the offender there is at the time a human being, (Aug. 10, 1956, ch. 1041, 70A Stat. 75.) is guilty of aggravated arson and shall be pun- HISTORICAL AND REVISION NOTES ished as a court-martial may direct. (b) Any person subject to this chapter who Revised Source (U.S. Code) Source (Statutes at Large) willfully and maliciously burns or sets fire to section the property of another, except as provided in 929 ...... 50:723. May 5, 1950, ch. 169, § 1 subsection (a), is guilty of simple arson and (Art. 129), 64 Stat. 142. shall be punished as a court-martial may direct. (Aug. 10, 1956, ch. 1041, 70A Stat. 74.) § 930. Art. 130. Housebreaking HISTORICAL AND REVISION NOTES Any person subject to this chapter who unlaw- Revised fully enters the building or structure of another section Source (U.S. Code) Source (Statutes at Large) with intent to commit a criminal offense there- 926(a) ...... 50:720(a). May 5, 1950, ch. 169, § 1 in is guilty of housebreaking and shall be pun- 926(b) ...... 50:720(b). (Art. 126), 64 Stat. 141. ished as a court-martial may direct.

In subsection (b), the words ‘‘of this section’’ are (Aug. 10, 1956, ch. 1041, 70A Stat. 75.) omitted as surplusage. HISTORICAL AND REVISION NOTES § 927. Art. 127. Extortion Revised Source (U.S. Code) Source (Statutes at Large) Any person subject to this chapter who com- section municates threats to another person with the 930 ...... 50:724. May 5, 1950, ch. 169, § 1 intention thereby to obtain anything of value or (Art. 130), 64 Stat. 142. any acquittance, advantage, or immunity is guilty of extortion and shall be punished as a § 931. Art. 131. Perjury court-martial may direct. (Aug. 10, 1956, ch. 1041, 70A Stat. 74.) Any person subject to this chapter who in a ju- dicial proceeding or in a course of justice will- HISTORICAL AND REVISION NOTES fully and corruptly— (1) upon a lawful oath or in any form allowed Revised section Source (U.S. Code) Source (Statutes at Large) by law to be substituted for an oath, gives any false testimony material to the issue or mat- 927 ...... 50:721. May 5, 1950, ch. 169, § 1 (Art. 127), 64 Stat. 141. ter of inquiry; or (2) in any declaration, certificate, verifica- The words ‘‘of any description’’ are omitted as sur- tion, or statement under penalty of perjury as plusage. permitted under section 1746 of title 28, sub- § 928. Art. 128. Assault scribes any false statement material to the issue or matter of inquiry; (a) Any person subject to this chapter who at- is guilty of perjury and shall be punished as a tempts or offers with unlawful force or violence court-martial may direct. to do bodily harm to another person, whether or not the attempt or offer is consummated, is (Aug. 10, 1956, ch. 1041, 70A Stat. 75; Pub. L. guilty of assault and shall be punished as a 94–550, § 3, Oct. 18, 1976, 90 Stat. 2535; Pub. L. court-martial may direct. 97–295, § 1(13), Oct. 12, 1982, 96 Stat. 1289.) § 932 TITLE 10—ARMED FORCES Page 516

HISTORICAL AND REVISION NOTES ing an officer and a gentleman shall be punished as a court-martial may direct. Revised Source (U.S. Code) Source (Statutes at Large) section (Aug. 10, 1956, ch. 1041, 70A Stat. 76.) 931 ...... 50:725. May 5, 1950, ch. 169, § 1 (Art. 131), 64 Stat. 142. HISTORICAL AND REVISION NOTES

The words ‘‘in a’’ are inserted before the words Revised section Source (U.S. Code) Source (Statutes at Large) ‘‘course of justice’’. 933 ...... 50:727. May 5, 1950, ch. 169, § 1 AMENDMENTS (Art. 133), 64 Stat. 142. 1982—Par. (2). Pub. L. 97–295 struck out ‘‘United States Code,’’ after ‘‘title 28,’’. The word ‘‘commissioned’’ is inserted for clarity. 1976—Pub. L. 94–550 divided existing provisions into an introductory phrase, par. (1), and a closing phrase, § 934. Art. 134. General article and added par. (2). Though not specifically mentioned in this § 932. Art. 132. Frauds against the United States chapter, all disorders and neglects to the preju- dice of good order and discipline in the armed Any person subject to this chapter— forces, all conduct of a nature to bring discredit (1) who, knowing it to be false or fraudu- upon the armed forces, and crimes and offenses lent— not capital, of which persons subject to this (A) makes any claim against the United chapter may be guilty, shall be taken cog- States or any officer thereof; or (B) presents to any person in the civil or nizance of by a general, special, or summary military service thereof, for approval or pay- court-martial, according to the nature and de- ment, any claim against the United States gree of the offense, and shall be punished at the or any officer thereof; discretion of that court. (2) who, for the purpose of obtaining the ap- (Aug. 10, 1956, ch. 1041, 70A Stat. 76.) proval, allowance, or payment of any claim HISTORICAL AND REVISION NOTES against the United States or any officer there- of— Revised Source (U.S. Code) Source (Statutes at Large) (A) makes or uses any writing or other section paper knowing it to contain any false or 934 ...... 50:728. May 5, 1950, ch. 169, § 1 fraudulent statements; (Art. 134), 64 Stat. 142. (B) makes any oath to any fact or to any writing or other paper knowing the oath to The words ‘‘shall be’’ are inserted before the word be false; or ‘‘punished’’. (C) forges or counterfeits any signature SUBCHAPTER XI—MISCELLANEOUS upon any writing or other paper, or uses any PROVISIONS such signature knowing it to be forged or counterfeited; Sec. Art. 935. 135. Courts of inquiry. (3) who, having charge, possession, custody 936. 136. Authority to administer oaths and to act or control of any money, or other property of as notary. the United States, furnished or intended for 937. 137. Articles to be explained. the armed forces thereof, knowingly delivers 938. 138. Complaints of wrongs. to any person having authority to receive it, 939. 139. Redress of injuries to property. any amount thereof less than that for which 940. 140. Delegation by the President. he receives a certificate or receipt; or (4) who, being authorized to make or deliver § 935. Art. 135. Courts of inquiry any paper certifying the receipt of any prop- (a) Courts of inquiry to investigate any matter erty of the United States furnished or in- may be convened by any person authorized to tended for the armed forces thereof, makes or convene a general court-martial or by any other delivers to any person such writing without person designated by the Secretary concerned having full knowledge of the truth of the for that purpose, whether or not the persons in- statements therein contained and with intent volved have requested such an inquiry. to defraud the United States; (b) A court of inquiry consists of three or more shall, upon conviction, be punished as a court- commissioned officers. For each court of inquiry martial may direct. the convening authority shall also appoint coun- sel for the court. (Aug. 10, 1956, ch. 1041, 70A Stat. 75.) (c) Any person subject to this chapter whose HISTORICAL AND REVISION NOTES conduct is subject to inquiry shall be designated as a party. Any person subject to this chapter or Revised section Source (U.S. Code) Source (Statutes at Large) employed by the Department of Defense who has a direct interest in the subject of inquiry has 932 ...... 50:726. May 5, 1950, ch. 169, § 1 the right to be designated as a party upon re- (Art. 132), 64 Stat. 142. quest to the court. Any person designated as a The word ‘‘it’’ is substituted for the words ‘‘the party shall be given due notice and has the right same’’ throughout the revised section. to be present, to be represented by counsel, to cross-examine witnesses, and to introduce evi- § 933. Art. 133. Conduct unbecoming an officer dence. and a gentleman (d) Members of a court of inquiry may be chal- Any commissioned officer, cadet, or mid- lenged by a party, but only for cause stated to shipman who is convicted of conduct unbecom- the court. Page 517 TITLE 10—ARMED FORCES § 936

(e) The members, counsel, the reporter, and in- (2) The president and the counsel for the terpreters of courts of inquiry shall take an oath court of any court of inquiry. to faithfully perform their duties. (3) All officers designated to take a deposi- (f) Witnesses may be summoned to appear and tion. testify and be examined before courts of inquiry, (4) All persons detailed to conduct an inves- as provided for courts-martial. tigation. (g) Courts of inquiry shall make findings of (5) All recruiting officers. fact but may not express opinions or make rec- (6) All other persons designated by regula- ommendations unless required to do so by the tions of the armed forces or by statute. convening authority. (c) The judges of the United States Court of (h) Each court of inquiry shall keep a record of Appeals for the Armed Forces may administer its proceedings, which shall be authenticated by the oaths authorized by subsections (a) and (b). the signatures of the president and counsel for (Aug. 10, 1956, ch. 1041, 70A Stat. 77; Pub. L. the court and forwarded to the convening au- 86–589, July 5, 1960, 74 Stat. 329; Pub. L. 90–179, thority. If the record cannot be authenticated § 1(7), Dec. 8, 1967, 81 Stat. 546; Pub. L. 90–632, by the president, it shall be signed by a member § 2(34), Oct. 24, 1968, 82 Stat. 1343; Pub. L. 98–209, in lieu of the president. If the record cannot be § 2(f), Dec. 6, 1983, 97 Stat. 1393; Pub. L. 99–661, authenticated by the counsel for the court, it div. A, title VIII, § 804(c), Nov. 14, 1986, 100 Stat. shall be signed by a member in lieu of the coun- 3907; Pub. L. 100–456, div. A, title XII, § 1234(a)(1), sel. Sept. 29, 1988, 102 Stat. 2059; Pub. L. 101–510, div. (Aug. 10, 1956, ch. 1041, 70A Stat. 76.) A, title V, § 551(b), Nov. 5, 1990, 104 Stat. 1566; Pub. L. 110–181, div. A, title V, § 542, Jan. 28, 2008, HISTORICAL AND REVISION NOTES 122 Stat. 114.) Revised section Source (U.S. Code) Source (Statutes at Large) HISTORICAL AND REVISION NOTES

935(a) ...... 50:731(a). May 5, 1950, ch. 169, § 1 Revised 935(b) ...... 50:731(b). (Art. 135), 64 Stat. 143. section Source (U.S. Code) Source (Statutes at Large) 935(c) ...... 50:731(c). 935(d) ...... 50:731(d). 936(a) ...... 50:732(a). May 5, 1950, ch. 169, § 1 935(e) ...... 50:731(e). 936(b) ...... 50:732(b). (Art. 136), 64 Stat. 143. 935(f) ...... 50:731(f). 936(c) ...... 50:732(c). 935(g) ...... 50:731(g). 936(d) ...... 50:732(d). 935(h) ...... 50:731(h). In subsection (a), the word ‘‘may’’ is substituted for In subsection (a), the words ‘‘Secretary concerned’’ the words ‘‘shall have authority to’’. The word ‘‘shall’’ are substituted for the words ‘‘Secretary of a Depart- before the words ‘‘have the general powers’’ is omitted ment’’. as surplusage. The words ‘‘the continental limits’’ are In subsection (b), the word ‘‘commissioned’’ is in- omitted, since section 101(1) of this title defines the serted for clarity. The word ‘‘consists’’ is substituted United States to include the States and the District of for the words ‘‘shall consist’’. Columbia. In subsection (c), the word ‘‘has’’ is substituted for In subsections (a) and (b), the words ‘‘in the armed the words ‘‘shall have’’. forces’’ are omitted as surplusage. In subsection (e), the words ‘‘or affirmation’’ are In subsection (b), the word ‘‘may’’ is substituted for omitted as covered by the definition of the word ‘‘oath’’ the words ‘‘shall have authority to’’. in section 1 of title 1. In subsection (c), the words ‘‘of any character’’ are In subsection (g), the word ‘‘may’’ is substituted for omitted as surplusage. The word ‘‘may’’ is substituted the word ‘‘shall’’. for the word ‘‘shall’’. In subsection (h), the word ‘‘If’’ is substituted for the In subsection (d), the word ‘‘is’’ is substituted for the words ‘‘In case’’. words ‘‘shall be’’. § 936. Art. 136. Authority to administer oaths and AMENDMENTS to act as notary 2008—Subsec. (c). Pub. L. 110–181 added subsec. (c). 1990—Subsec. (a). Pub. L. 101–510, § 551(b)(1), struck (a) The following persons on active duty or out ‘‘, and have the general powers of a notary public performing inactive-duty training may admin- and of a consul of the United States, in the perform- ister oaths for the purposes of military adminis- ance of all notarial acts to be executed by members of tration, including military justice: any of the armed forces, wherever they may be, by per- (1) All judge advocates. sons serving with, employed by, or accompanying the (2) All summary courts-martial. armed forces outside the United States and outside (3) All adjutants, assistant adjutants, acting Puerto Rico, Guam, and the Virgin Islands, and by adjutants, and personnel adjutants. other persons subject to this chapter outside of the (4) All commanding officers of the Navy, Ma- United States’’ after ‘‘including military justice’’ in in- troductory provisions. rine Corps, and Coast Guard. Subsecs. (c), (d). Pub. L. 101–510, § 551(b)(2), struck out (5) All staff judge advocates and legal offi- subsecs. (c) and (d) which read as follows: cers, and acting or assistant staff judge advo- ‘‘(c) No fee may be paid to or received by any person cates and legal officers. for the performance of any notarial act herein author- (6) All other persons designated by regula- ized. tions of the armed forces or by statute. ‘‘(d) The signature without seal of any such person acting as notary, together with the title of his office, (b) The following persons on active duty or is prima facie evidence of his authority.’’ performing inactive-duty training may admin- 1988—Subsec. (a). Pub. L. 100–456 struck out ‘‘the ister oaths necessary in the performance of their Canal Zone,’’ before ‘‘Puerto Rico,’’. 1986—Subsecs. (a), (b). Pub. L. 99–661 inserted ‘‘or per- duties: forming inactive-duty training’’ after ‘‘active duty’’. (1) The president, military judge, trial coun- 1983—Subsec. (a)(1). Pub. L. 98–209, § 2(f)(1), struck out sel, and assistant trial counsel for all general ‘‘of the Army, Navy, Air Force, and Marine Corps’’ and special courts-martial. after ‘‘All judge advocates’’. § 937 TITLE 10—ARMED FORCES Page 518

Subsec. (a)(2) to (7). Pub. L. 98–209, § 2(f)(2), struck out (Aug. 10, 1956, ch. 1041, 70A Stat. 78; Pub. L. par. (2) which included law specialists among those per- 99–661, div. A, title VIII, § 804(d), Nov. 14, 1986, 100 sons authorized to administer oaths and to act as nota- Stat. 3907; Pub. L. 104–106, div. A, title XI, § 1152, ries under this section, and redesignated pars. (3) to (7) Feb. 10, 1996, 110 Stat. 468.) as (2) to (6), respectively. 1968—Subsec. (b). Pub. L. 90–632 substituted ‘‘military HISTORICAL AND REVISION NOTES judge’’ for ‘‘law officer’’ in par. (1). 1967—Subsec. (a)(1). Pub. L. 90–179 inserted references Revised Source (U.S. Code) Source (Statutes at Large) to judge advocates of the Navy and the Marine Corps. section 1960—Subsec. (a). Pub. L. 86–589 permitted the admin- 937 ...... 50:733. May 5, 1950, ch. 169, § 1 istration of oaths and the performance of notarial acts (Art. 137), 64 Stat. 144. for persons serving, employed by, or accompanying the armed forces outside the United States and outside the The word ‘‘each’’ is substituted for the word ‘‘every’’. Canal Zone, Puerto Rico, Guam, and the Virgin Islands. The word ‘‘member’’ is substituted for the word ‘‘per- EFFECTIVE DATE OF 1986 AMENDMENT son’’. The words ‘‘in [any of] the armed forces of the United States’’ are omitted as surplusage. Amendment by Pub. L. 99–661 effective the earlier of (1) the last day of the 120-day period beginning on Nov. REFERENCES IN TEXT 14, 1986; or (2) the date specified in an Executive order The Uniform Code of Military Justice, referred to in for such amendment to take effect, see section 808 of subsecs. (a)(1) and (b), is classified to this chapter. Pub. L. 99–661, set out as a note under section 802 of this title. AMENDMENTS EFFECTIVE DATE OF 1983 AMENDMENT 1996—Subsec. (a)(1). Pub. L. 104–106 substituted ‘‘with- Amendment by Pub. L. 98–209 effective first day of in fourteen days’’ for ‘‘within six days’’. eighth calendar month beginning after Dec. 6, 1983, see 1986—Pub. L. 99–661 amended section generally, in- section 12(a)(1) of Pub. L. 98–209, set out as a note under serting provisions relating to reserve components. section 801 of this title. EFFECTIVE DATE OF 1986 AMENDMENT EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 99–661 effective the earlier of Amendment by Pub. L. 90–632 effective first day of (1) the last day of the 120-day period beginning on Nov. tenth month following October 1968, see section 4 of 14, 1986; or (2) the date specified in an Executive order Pub. L. 90–632, set out as a note under section 801 of for such amendment to take effect, see section 808 of this title. Pub. L. 99–661, set out as a note under section 802 of this title. TRANSFER OF FUNCTIONS For transfer of authorities, functions, personnel, and § 938. Art. 138. Complaints of wrongs assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relat- Any member of the armed forces who believes ing thereto, to the Department of Homeland Security, himself wronged by his commanding officer, and and for treatment of related references, see sections who, upon due application to that commanding 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- officer, is refused redress, may complain to any rity, and the Department of Homeland Security Reor- superior commissioned officer, who shall for- ganization Plan of November 25, 2002, as modified, set ward the complaint to the officer exercising gen- out as a note under section 542 of Title 6. eral court-martial jurisdiction over the officer § 937. Art. 137. Articles to be explained against whom it is made. The officer exercising general court-martial jurisdiction shall examine (a)(1) The sections of this title (articles of the into the complaint and take proper measures for Uniform Code of Military Justice) specified in redressing the wrong complained of; and he paragraph (3) shall be carefully explained to shall, as soon as possible, send to the Secretary each enlisted member at the time of (or within concerned a true statement of that complaint, fourteen days after)— with the proceedings had thereon. (A) the member’s initial entrance on active duty; or (Aug. 10, 1956, ch. 1041, 70A Stat. 78.) (B) the member’s initial entrance into a HISTORICAL AND REVISION NOTES duty status with a reserve component. Revised (2) Such sections (articles) shall be explained section Source (U.S. Code) Source (Statutes at Large) again— 938 ...... 50:734. May 5, 1950, ch. 169, § 1 (A) after the member has completed six (Art. 138), 64 Stat. 144. months of active duty or, in the case of a member of a reserve component, after the The words ‘‘commanding officer’’ are substituted for member has completed basic or recruit train- the word ‘‘commander’’. The word ‘‘who’’ is inserted ing; and after the word ‘‘and’’. The word ‘‘commissioned’’ is in- (B) at the time when the member reenlists. serted after the word ‘‘superior’’ for clarity. The words ‘‘The officer exercising general court-martial jurisdic- (3) This subsection applies with respect to sec- tion’’ are substituted for the words ‘‘That officer’’ for tions 802, 803, 807–815, 825, 827, 831, 837, 838, 855, clarity. The word ‘‘send’’ is substituted for the word 877–934, and 937–939 of this title (articles 2, 3, ‘‘transmit’’. The word ‘‘Secretary’’ is substituted for 7–15, 25, 27, 31, 37, 38, 55, 77–134, and 137–139). the word ‘‘Department’’ for accuracy, since the ‘‘De- (b) The text of the Uniform Code of Military partment’’, as an entity, could not act upon the com- Justice and of the regulations prescribed by the plaint. President under such Code shall be made avail- § 939. Art. 139. Redress of injuries to property able to a member on active duty or to a member of a reserve component, upon request by the (a) Whenever complaint is made to any com- member, for the member’s personal examina- manding officer that willful damage has been tion. done to the property of any person or that his Page 519 TITLE 10—ARMED FORCES § 942 property has been wrongfully taken by members Sec. Art. of the armed forces, he may, under such regula- 945. 145. Annuities for judges and survivors. tions as the Secretary concerned may prescribe, 946. 146. Code committee. convene a board to investigate the complaint. AMENDMENTS The board shall consist of from one to three commissioned officers and, for the purpose of 1994—Pub. L. 103–337, div. A, title IX, § 924(c)(3)(A), that investigation, it has power to summon wit- Oct. 5, 1994, 108 Stat. 2831, substituted ‘‘UNITED STATES COURT OF APPEALS FOR THE ARMED nesses and examine them upon oath, to receive FORCES’’ for ‘‘COURT OF MILITARY APPEALS’’ as depositions or other documentary evidence, and subchapter heading. to assess the damages sustained against the re- 1990—Pub. L. 101–510, div. A, title XIV, § 1484(i)(2), sponsible parties. The assessment of damages Nov. 5, 1990, 104 Stat. 1718, redesignated subchapter XI made by the board is subject to the approval of as XII. the commanding officer, and in the amount ap- proved by him shall be charged against the pay § 941. Art. 141. Status of the offenders. The order of the commanding There is a court of record known as the United officer directing charges herein authorized is States Court of Appeals for the Armed Forces. conclusive on any disbursing officer for the pay- The court is established under article I of the ment by him to the injured parties of the dam- Constitution. The court is located for adminis- ages so assessed and approved. trative purposes only in the Department of De- (b) If the offenders cannot be ascertained, but fense. the organization or detachment to which they belong is known, charges totaling the amount of (Added Pub. L. 101–189, div. A, title XIII, damages assessed and approved may be made in § 1301(c), Nov. 29, 1989, 103 Stat. 1570; amended such proportion as may be considered just upon Pub. L. 103–337, div. A, title IX, § 924(a)(2), Oct. 5, the individual members thereof who are shown 1994, 108 Stat. 2831.) to have been present at the scene at the time AMENDMENTS the damages complained of were inflicted, as de- termined by the approved findings of the board. 1994—Pub. L. 103–337 substituted ‘‘Court of Appeals for the Armed Forces’’ for ‘‘Court of Military Appeals’’. (Aug. 10, 1956, ch. 1041, 70A Stat. 78.) CHANGE OF NAME HISTORICAL AND REVISION NOTES Pub. L. 103–337, div. A, title IX, § 924(a)(1), Oct. 5, 1994, 108 Stat. 2831, provided that: ‘‘The United States Court Revised section Source (U.S. Code) Source (Statutes at Large) of Military Appeals shall hereafter be known and des- ignated as the United States Court of Appeals for the 939(a) ...... 50:735(a). May 5, 1950, ch. 169, § 1 Armed Forces.’’ 939(b) ...... 50:735(b). (Art. 139), 64 Stat. 144.

In subsection (a), the words ‘‘Secretary concerned’’ § 942. Art. 142. Judges are substituted for the words ‘‘Secretary of the Depart- (a) NUMBER.—The United States Court of Ap- ment’’. The word ‘‘under’’ is substituted for the words peals for the Armed Forces consists of five ‘‘subject to’’. The words ‘‘or affirmation’’ are omitted judges. as covered by the definition of the word ‘‘oath’’ in sec- tion 1 of title 1. The words ‘‘it has’’ are substituted for (b) APPOINTMENT; QUALIFICATION.—(1) Each the words ‘‘shall have’’ in the second sentence. The judge of the court shall be appointed from civil- word ‘‘is’’ is substituted for the words ‘‘shall be’’ before ian life by the President, by and with the advice the words ‘‘subject’’ and ‘‘conclusive’’. The word ‘‘com- and consent of the Senate, for a specified term missioned’’ is inserted for clarity. determined under paragraph (2). A judge may In subsection (b), the word ‘‘If’’ is substituted for the serve as a senior judge as provided in subsection word ‘‘Where’’. The word ‘‘considered’’ is substituted (e). for the word ‘‘deemed’’. (2) The term of a judge shall expire as follows: § 940. Art. 140. Delegation by the President (A) In the case of a judge who is appointed after January 31 and before July 31 of any The President may delegate any authority year, the term shall expire on July 31 of the vested in him under this chapter, and provide year in which the fifteenth anniversary of the for the subdelegation of any such authority. appointment occurs. (Aug. 10, 1956, ch. 1041, 70A Stat. 78.) (B) In the case of a judge who is appointed after July 31 of any year and before February HISTORICAL AND REVISION NOTES 1 of the following year, the term shall expire Revised fifteen years after such July 31. section Source (U.S. Code) Source (Statutes at Large) (3) Not more than three of the judges of the 940 ...... 50:736. May 5, 1950, ch. 169, § 1 court may be appointed from the same political (Art. 140), 64 Stat. 145. party, and no person may be appointed to be a The word ‘‘may’’ is substituted for the words ‘‘is au- judge of the court unless the person is a member thorized to * * * to’’. of the bar of a Federal court or the highest court of a State. SUBCHAPTER XII—UNITED STATES COURT (4) A person may not be appointed as a judge OF APPEALS FOR THE ARMED FORCES of the court within seven years after retirement Sec. Art. from active duty as a commissioned officer of a 941. 141. Status. regular component of an armed force. 942. 142. Judges. (c) REMOVAL.—Judges of the court may be re- 943. 143. Organization and employees. moved from office by the President, upon notice 944. 144. Procedure. and hearing, for— § 942 TITLE 10—ARMED FORCES Page 520

(1) neglect of duty; the Committee on Armed Services of the House (2) misconduct; or of Representatives not later than 15 days after (3) mental or physical disability. the issuance of such rules or amendments, as the A judge may not be removed by the President case may be. for any other cause. (6) For purposes of subchapter III of chapter 83 (d) PAY AND ALLOWANCES.—Each judge of the of title 5 (relating to the Civil Service Retire- court is entitled to the same salary and travel ment and Disability System) and chapter 84 of allowances as are, and from time to time may such title (relating to the Federal Employees’ be, provided for judges of the United States Retirement System) and for purposes of any Courts of Appeals. other Federal Government retirement system (e) SENIOR JUDGES.—(1)(A) A former judge of for employees of the Federal Government— the court who is receiving retired pay or an an- (A) a period during which a senior judge per- nuity under section 945 of this title (article 145) forms duties referred to in paragraph (1) shall or under subchapter III of chapter 83 or chapter not be considered creditable service; (B) no amount shall be withheld from the 84 of title 5 shall be a senior judge. The chief pay of a senior judge as a retirement contribu- judge of the court may call upon an individual tion under section 8334, 8343, 8422, or 8432 of who is a senior judge of the court under this sub- title 5 or under any other such retirement sys- paragraph, with the consent of the senior judge, tem for any period during which the senior to perform judicial duties with the court— (i) during a period a judge of the court is un- judge performs duties referred to in paragraph able to perform his duties because of illness or (1); (C) no contribution shall be made by the other disability; Federal Government to any retirement system (ii) during a period in which a position of with respect to a senior judge for any period judge of the court is vacant; or during which the senior judge performs duties (iii) in any case in which a judge of the court referred to in paragraph (1); and recuses himself. (D) a senior judge shall not be considered to (B) If, at the time the term of a judge expires, be a reemployed annuitant for any period dur- no successor to that judge has been appointed, ing which the senior judge performs duties re- the chief judge of the court may call upon that ferred to in paragraph (1). judge (with that judge’s consent) to continue to (f) SERVICE OF ARTICLE III JUDGES.—(1) The perform judicial duties with the court until the Chief Justice of the United States, upon the re- vacancy is filled. A judge who, upon the expira- quest of the chief judge of the court, may des- tion of the judge’s term, continues to perform ignate a judge of a United States court of ap- judicial duties with the court without a break in peals or of a United States district court to per- service under this subparagraph shall be a senior form the duties of judge of the United States judge while such service continues. Court of Appeals for the Armed Forces— (2) A senior judge shall be paid for each day on (A) during a period a judge of the court is which he performs judicial duties with the court unable to perform his duties because of illness an amount equal to the daily equivalent of the or other disability; annual rate of pay provided for a judge of the (B) in any case in which a judge of the court court. Such pay shall be in lieu of retired pay recuses himself; or and in lieu of an annuity under section 945 of (C) during a period when there is a vacancy this title (article 145), subchapter III of chapter on the court and in the opinion of the chief 83 or subchapter II of chapter 84 of title 5, or any judge of the court such a designation is nec- other retirement system for employees of the essary for the proper dispatch of the business Federal Government. of the court. (3) A senior judge, while performing duties re- ferred to in paragraph (1), shall be provided with (2) The chief judge of the court may not re- such office space and staff assistance as the quest that a designation be made under para- chief judge considers appropriate and shall be graph (1) unless the chief judge has determined entitled to the per diem, travel allowances, and that no person is available to perform judicial other allowances provided for judges of the duties with the court as a senior judge under court. subsection (e). (4) A senior judge shall be considered to be an (3) A designation under paragraph (1) may be officer or employee of the United States with re- made only with the consent of the designated spect to his status as a senior judge, but only judge and the concurrence of the chief judge of during periods the senior judge is performing du- the court of appeals or district court concerned. ties referred to in paragraph (1). For the pur- (4) Per diem, travel allowances, and other al- poses of section 205 of title 18, a senior judge lowances paid to the designated judge in connec- shall be considered to be a special government tion with the performance of duties for the employee during such periods. Any provision of court shall be paid from funds available for the law that prohibits or limits the political or busi- payment of per diem and such allowances for ness activities of an employee of the United judges of the court. States shall apply to a senior judge only during (g) EFFECT OF VACANCY ON COURT.—A vacancy such periods. on the court does not impair the right of the re- (5) The court shall prescribe rules for the use maining judges to exercise the powers of the and conduct of senior judges of the court. The court. chief judge of the court shall transmit such (Added Pub. L. 101–189, div. A, title XIII, rules, and any amendments to such rules, to the § 1301(c), Nov. 29, 1989, 103 Stat. 1570; amended Committee on Armed Services of the Senate and Pub. L. 101–510, div. A, title V, § 541(f), Nov. 5, Page 521 TITLE 10—ARMED FORCES § 942

1990, 104 Stat. 1565; Pub. L. 102–190, div. A, title tion 945 of this title] shall take effect as of November X, § 1061(b)(1)(A), (B), (2), Dec. 5, 1991, 105 Stat. 29, 1989.’’ 1474; Pub. L. 103–337, div. A, title IX, § 924(c)(1), EFFECTIVE DATE FOR REPEAL OF TERMINATION OF AU- Oct. 5, 1994, 108 Stat. 2831; Pub. L. 104–106, div. A, THORITY FOR CHIEF JUSTICE OF UNITED STATES TO title XV, § 1502(a)(2), Feb. 10, 1996, 110 Stat. 502; DESIGNATE ARTICLE III JUDGES FOR TEMPORARY Pub. L. 106–65, div. A, title X, § 1067(1), Oct. 5, SERVICE ON COURT OF APPEALS FOR THE ARMED 1999, 113 Stat. 774; Pub. L. 113–66, div. A, title V, FORCES § 531(a), Dec. 26, 2013, 127 Stat. 759; Pub. L. Pub. L. 104–201, div. A, title X, § 1074(c)(2), Sept. 23, 113–291, div. A, title V, § 540(a), Dec. 19, 2014, 128 1996, 110 Stat. 2660, provided that: ‘‘The authority pro- Stat. 3371.) vided under section 942(f) of title 10, United States Code, shall be effective as if section 1142 of the National Defense Authorization Act for Fiscal Year 1996 (Public AMENDMENTS Law 104–106; 110 Stat. 467) [repealing section 1301(i) of 2014—Subsec. (b)(2)(A). Pub. L. 113–291, § 540(a)(1), sub- Pub. L. 101–189, set out below] had been enacted on Sep- stituted ‘‘January 31’’ for ‘‘March 31’’, ‘‘July 31 of any tember 29, 1995.’’ year’’ for ‘‘October 1 of any year’’, and ‘‘July 31 of the SAVING PROVISION year’’ for ‘‘September 30 of the year’’. Subsec. (b)(2)(B). Pub. L. 113–291, § 540(a)(2), sub- Pub. L. 113–291, div. A, title V, § 540(b), Dec. 19, 2014, stituted ‘‘July 31’’ for ‘‘September 30’’ in two places 128 Stat. 3371, provided that: ‘‘No person who is serving and ‘‘February 1’’ for ‘‘April 1’’. as a judge of the court on the date of the enactment of 2013—Subsec. (b)(4). Pub. L. 113–66 amended par. (4) this Act [Dec. 19, 2014], and no survivor of any such per- generally. Prior to amendment, par. (4) read as follows: son, shall be deprived of any annuity provided by sec- ‘‘For purposes of appointment of judges to the court, a tion 945 of title 10, United States Code, by the oper- person retired from the armed forces after 20 or more ation of the amendments made by subsection (a) years of active service (whether or not such person is [amending this section].’’ on the retired list) shall not be considered to be in ci- TRANSITIONAL PROVISIONS vilian life.’’ 1999—Subsec. (e)(5). Pub. L. 106–65 substituted ‘‘and Pub. L. 101–189, div. A, title XIII, § 1301(d)–(i), Nov. 29, the Committee on Armed Services’’ for ‘‘and the Com- 1989, 103 Stat. 1574–1576, as amended by Pub. L. 104–106, mittee on National Security’’. div. A, title XI, § 1142, Feb. 10, 1996, 110 Stat. 467; Pub. 1996—Subsec. (e)(5). Pub. L. 104–106 substituted ‘‘Com- L. 104–201, div. A, title X, § 1068(c), Sept. 23, 1996, 110 mittee on Armed Services of the Senate and the Com- Stat. 2655, provided that: mittee on National Security of the House of Represent- ‘‘(d) TRANSITION FROM THREE-JUDGE COURT TO FIVE- atives’’ for ‘‘Committees on Armed Services of the Sen- JUDGE COURT.—(1) Effective during the period before ate and the House of Representatives’’. October 1, 1990— 1994—Subsecs. (a), (f)(1). Pub. L. 103–337 substituted ‘‘(A) the number of members of the United States ‘‘Court of Appeals for the Armed Forces’’ for ‘‘Court of Court of Military Appeals [now United States Court Military Appeals’’. of Appeals for the Armed Forces] shall (notwithstand- 1991—Subsec. (e)(1). Pub. L. 102–190, ing subsection (a) of section 942 of title 10, United § 1061(b)(1)(A)(i)–(iv), designated existing provisions as States Code, as enacted by subsection (c)) be three; subpar. (A), struck out ‘‘(2)(A)’’ before ‘‘The chief and judge’’, moved sentence beginning ‘‘The chief judge of ‘‘(B) the maximum number of members of the court the court’’ to end of par. (1)(A), substituted ‘‘an individ- who may be appointed from the same political party ual who is a senior judge of the court under this sub- shall (notwithstanding subsection (b)(3) of section paragraph’’ for ‘‘a senior judge of the court’’, and added 942) be two. subpar. (B). ‘‘(2) In the application of paragraph (2) of section 942(b) of title 10, United States Code (as enacted by sub- Subsec. (e)(2). Pub. L. 102–190, § 1061(b)(1)(A)(ii), (v), section (c)) to the judge who is first appointed to one redesignated par. (2)(B) as (2) and incorporated former of the two new positions of the court created as of Oc- par. (2)(A) into par. (1)(A). tober 1, 1990, as designated by the President at the time Subsec. (e)(3), (4), (6). Pub. L. 102–190, § 1061(b)(1)(B), of appointment, the anniversary referred to in subpara- substituted ‘‘paragraph (1)’’ for ‘‘paragraph (2)’’ wher- graph (A) of that paragraph shall be treated as being ever appearing. the seventh anniversary and the number of years re- Subsec. (f)(1)(C). Pub. L. 102–190, § 1061(b)(2)(A), added ferred to in subparagraph (B) of that paragraph shall be subpar. (C). treated as being seven. Subsec. (f)(2) to (4). Pub. L. 102–190, § 1061(b)(2)(B), (C), ‘‘(e) TRANSITION RULES RELATING TO RETIREMENT OF added par. (2) and redesignated former pars. (2) and (3) NEW JUDGES.—(1) Except as otherwise provided in para- as (3) and (4), respectively. graphs (2) and (3), a judge to whom subsection (d)(2) ap- 1990—Subsec. (b)(1). Pub. L. 101–510, § 541(f)(1), sub- plies shall be eligible for an annuity as provided in sec- stituted ‘‘civilian life’’ for ‘‘civil life’’. tion 945 of title 10, United States Code, as enacted by Subsec. (b)(4). Pub. L. 101–510, § 541(f)(2), added par. subsection (c). (4). ‘‘(2) The annuity of a judge referred to in paragraph (1) is computed under subsection (b) of such section 945 EFFECTIVE DATE OF 2013 AMENDMENT only if the judge— ‘‘(A) completes the term of service for which he is Pub. L. 113–66, div. A, title V, § 531(b), Dec. 26, 2013, 127 first appointed; Stat. 759, provided that: ‘‘The amendment made by sub- ‘‘(B) is reappointed as a judge of the United States section (a) [amending this section] shall take effect on Court of Military Appeals [now United States Court the date of the enactment of this Act [Dec. 26, 2013], of Appeals for the Armed Forces] at any time after and shall apply with respect to appointments to the the completion of such term of service; United States Court of Appeals for the Armed Forces ‘‘(C) is separated from civilian service in the Fed- that occur on or after that date.’’ eral Government after completing a total of 15 years as a judge of such court; and ‘‘(D) elects to receive an annuity under such section EFFECTIVE DATE OF 1991 AMENDMENT in accordance with subsection (a)(2) of such section. Pub. L. 102–190, div. A, title X, § 1061(b)(1)(D), Dec. 5, ‘‘(3) In the case of a judge referred to in paragraph (1) 1991, 105 Stat. 1474, provided that: ‘‘The amendments who is separated from civilian service after completing made by this paragraph [amending this section and sec- the term of service for which he is first appointed as a § 943 TITLE 10—ARMED FORCES Page 522 judge of the United States Court of Military Appeals service or the date of the notification under sub- [now United States Court of Appeals for the Armed paragraph (A)(ii), as the case may be. Forces] and before completing a total of 15 years as a (5) If a chief judge is temporarily unable to judge of such court, the annuity of such judge (if elect- perform his duties as a chief judge, the duties ed in accordance with section 945(a)(2) of title 10, shall be performed by the judge of the court in United States Code) shall be 1⁄15 of the amount com- puted under subsection (b) of such section times the active service who is present, able and qualified number of years (including any fraction thereof) of to act, and is next in precedence. such judge’s service as a judge of the court. (b) PRECEDENCE OF JUDGES.—The chief judge of ‘‘(f) APPLICABILITY OF AMENDED RETIREMENT PROVI- the court shall have precedence and preside at SIONS.—Except as otherwise provided in subsections (c) any session that he attends. The other judges and (d), section 945 of title 10, United States Code, as shall have precedence and preside according to enacted by subsection (c), applies with respect to the seniority of their original commissions. judges of the United States Court of Military Appeals Judges whose commissions bear the same date [now United States Court of Appeals for the Armed shall have precedence according to seniority in Forces] whose terms of service on such court end after age. September 28, 1988, and to the survivors of such judges. (c) STATUS OF CERTAIN POSITIONS.—(1) Attor- ‘‘(g) TERMS OF CURRENT JUDGES.—Section 942(b) of title 10, United States Code, as enacted by subsection ney positions of employment under the Court of (c), shall not apply to the term of office of a judge of Appeals for the Armed Forces are excepted from the United States Court of Military Appeals [now the competitive service. A position of employ- United States Court of Appeals for the Armed Forces] ment under the court that is provided primarily serving on such court on the date of the enactment of for the service of one judge of the court, reports this Act [Nov. 29, 1989]. The term of office of such a directly to the judge, and is a position of a con- judge shall expire on the later of (A) the date the term fidential character is excepted from the com- of such judge would have expired under section 867(a)(1) petitive service. Appointments to positions re- of title 10, United States Code, as in effect on the day ferred to in the preceding sentences shall be before such date of enactment, or (B) September 30 of made by the court, without the concurrence of the year in which the term of such judge would have expired under such section 867(a)(1). any other officer or employee of the executive ‘‘(h) CIVIL SERVICE STATUS OF CURRENT EMPLOYEES.— branch, in the same manner as appointments are Section 943(c) of title 10, United States Code, as enacted made to other executive branch positions of a by subsection (c), shall not be applied to change the confidential or policy-determining character for civil service status of any attorney who is an employee which it is not practicable to examine or to hold of the United States Court of Military Appeals [now a competitive examination. Such positions shall United States Court of Appeals for the Armed Forces] not be counted as positions of that character for on the day before the date of the enactment of this Act purposes of any limitation on the number of po- [Nov. 29, 1989].’’ sitions of that character provided in law. § 943. Art. 143. Organization and employees (2) In making appointments to the positions described in paragraph (1), preference shall be (a) CHIEF JUDGE.—(1) The chief judge of the given, among equally qualified persons, to per- United States Court of Appeals for the Armed sons who are preference eligibles (as defined in Forces shall be the judge of the court in regular section 2108(3) of title 5). active service who is senior in commission (Added Pub. L. 101–189, div. A, title XIII, among the judges of the court who— § 1301(c), Nov. 29, 1989, 103 Stat. 1572; amended (A) have served for one or more years as Pub. L. 102–484, div. A, title X, § 1061(a)(1), Oct. judges of the court; and 23, 1992, 106 Stat. 2503; Pub. L. 103–337, div. A, (B) have not previously served as chief title IX, § 924(c)(1), Oct. 5, 1994, 108 Stat. 2831; judge. Pub. L. 104–201, div. A, title X, § 1068(b), Sept. 23, (2) In any case in which there is no judge of 1996, 110 Stat. 2655; Pub. L. 105–85, div. A, title X, the court in regular active service who has § 1073(a)(11), Nov. 18, 1997, 111 Stat. 1900.) served as a judge of the court for at least one AMENDMENTS year, the judge of the court in regular active 1997—Subsec. (c). Pub. L. 105–85 made technical service who is senior in commission and has not amendment to heading and substituted ‘‘under the served previously as chief judge shall act as the court’’ for ‘‘under the Court’’ in second sentence and chief judge. ‘‘positions referred to in the preceding sentences’’ for (3) Except as provided in paragraph (4), a judge ‘‘such positions’’ in third sentence. of the court shall serve as the chief judge under 1996—Subsec. (c). Pub. L. 104–201 substituted ‘‘Cer- paragraph (1) for a term of five years. If no other tain’’ for ‘‘Attorney’’ in heading and inserted ‘‘A posi- judge is eligible under paragraph (1) to serve as tion of employment under the Court that is provided primarily for the service of one judge of the court, re- chief judge upon the expiration of that term, the ports directly to the judge, and is a position of a con- chief judge shall continue to serve as chief judge fidential character is excepted from the competitive until another judge becomes eligible under that service.’’ after first sentence in par. (1). paragraph to serve as chief judge. 1994—Subsecs. (a)(1), (c). Pub. L. 103–337 substituted (4)(A) The term of a chief judge shall be termi- ‘‘Court of Appeals for the Armed Forces’’ for ‘‘Court of nated before the end of five years if— Military Appeals’’. 1992—Subsec. (a). Pub. L. 102–484 amended subsec. (a) (i) the chief judge leaves regular active serv- generally. Prior to amendment, subsec. (a) read as fol- ice as a judge of the court; or lows: ‘‘CHIEF JUDGE.—The President shall designate (ii) the chief judge notifies the other judges from time to time one of the judges of the United of the court in writing that such judge desires States Court of Military Appeals to be chief judge of to be relieved of his duties as chief judge. the court.’’ (B) The effective date of a termination of the TRANSITION PROVISION term under subparagraph (A) shall be the date Pub. L. 102–484, div. A, title X, § 1061(b), Oct. 23, 1992, on which the chief judge leaves regular active 106 Stat. 2504, provided that: ‘‘For purposes of section Page 523 TITLE 10—ARMED FORCES § 945

943(a) (article 943(a)) of title 10, United States Code, as election under paragraph (2), the Director shall amended by subsection (a)— determine the amount of the person’s lump-sum ‘‘(1) the person serving as the chief judge of the credit under subchapter III of chapter 83 or sub- United States Court of Military Appeals [now United States Court of Appeals for the Armed Forces] on the chapter II of chapter 84 of title 5, as applicable, date of the enactment of this Act [Oct. 23, 1992] shall and shall request the Secretary of the Treasury be deemed to have been designated as the chief judge to transfer such amount from the Civil Service under such section; and Retirement and Disability Fund to the Depart- ‘‘(2) the five-year term provided in paragraph (3) of ment of Defense Military Retirement Fund. The such section shall be deemed to have begun on the Secretary of the Treasury shall make any trans- date on which such judge was originally designated as fer so requested. the chief judge under section 867(a) or 943 of title 10, (C) In determining the amount of a lump-sum United States Code, as the case may be, as that provi- sion of law was in effect on the date of the designa- credit under section 8331(8) of title 5 for purposes tion.’’ of this paragraph— (i) interest shall be computed using the rates INAPPLICABILITY OF SUBSECTION (c) under section 8334(e)(3) of such title; and Subsec. (c) of this section not to be applied to change (ii) the completion of 5 years of civilian serv- civil service status of any attorney who is an employee ice (or longer) shall not be a basis for exclud- of United States Court of Military Appeals [now United ing interest. States Court of Appeals for the Armed Forces] on Nov. 28, 1989, see section 1301(h) of Pub. L. 101–189, set out as (b) AMOUNT OF ANNUITY.—The annuity payable a Transitional Provisions note under section 942 of this under this section to a person who makes an title. election under subsection (a)(2) is 80 percent of the rate of pay for a judge in active service on § 944. Art. 144. Procedure the United States Court of Appeals for the The United States Court of Appeals for the Armed Forces as of the date on which the person Armed Forces may prescribe its rules of proce- is separated from civilian service. dure and may determine the number of judges (c) RELATION TO THRIFT SAVINGS PLAN.—Noth- required to constitute a quorum. ing in this section affects any right of any per- son to participate in the thrift savings plan (Added Pub. L. 101–189, div. A, title XIII, under section 8351 of title 5 or subchapter III of § 1301(c), Nov. 29, 1989, 103 Stat. 1572; amended chapter 84 of such title. Pub. L. 103–337, div. A, title IX, § 924(c)(1), Oct. 5, (d) SURVIVOR ANNUITIES.—The Secretary of De- 1994, 108 Stat. 2831.) fense shall prescribe by regulation a program to AMENDMENTS provide annuities for survivors and former 1994—Pub. L. 103–337 substituted ‘‘Court of Appeals spouses of persons receiving annuities under this for the Armed Forces’’ for ‘‘Court of Military Appeals’’. section by reason of elections made by such per- sons under subsection (a)(2). That program shall, § 945. Art. 145. Annuities for judges and survivors to the maximum extent practicable, provide (a) RETIREMENT ANNUITIES FOR JUDGES.—(1) A benefits and establish terms and conditions that person who has completed a term of service for are similar to those provided under survivor and which he was appointed as a judge of the United former spouse annuity programs under other re- States Court of Appeals for the Armed Forces is tirement systems for civilian employees of the eligible for an annuity under this section upon Federal Government. The program may include separation from civilian service in the Federal provisions for the reduction in the annuity paid Government. A person who continues service the person as a condition for the survivor annu- with the court as a senior judge under section ity. An election by a judge (including a senior 942(e)(1)(B) of this title (article 142(e)(1)(B)) upon judge) or former judge to receive an annuity the expiration of the judge’s term shall be con- under this section terminates any right or inter- sidered to have been separated from civilian est which any other individual may have to a service in the Federal Government only upon survivor annuity under any other retirement the termination of that continuous service. system for civilian employees of the Federal (2) A person who is eligible for an annuity Government based on the service of that judge under this section shall be paid that annuity if, or former judge as a civilian officer or employee at the time he becomes eligible to receive that of the Federal Government (except with respect annuity, he elects to receive that annuity in to an election under subsection (g)(1)(B)). lieu of any other annuity for which he may be (e) COST-OF-LIVING INCREASES.—The Secretary eligible at the time of such election (whether an of Defense shall periodically increase annuities immediate or a deferred annuity) under sub- and survivor annuities paid under this section in chapter III of chapter 83 or subchapter II of order to take account of changes in the cost of chapter 84 of title 5 or any other retirement sys- living. The Secretary shall prescribe by regula- tem for civilian employees of the Federal Gov- tion procedures for increases in annuities under ernment. Such an election may not be revoked. this section. Such system shall, to the maxi- (3)(A) The Secretary of Defense shall notify mum extent appropriate, provide cost-of-living the Director of the Office of Personnel Manage- adjustments that are similar to those that are ment whenever an election under paragraph (2) provided under other retirement systems for ci- is made affecting any right or interest under vilian employees of the Federal Government. subchapter III of chapter 83 or subchapter II of (f) DUAL COMPENSATION.—A person who is re- chapter 84 of title 5 based on service as a judge ceiving an annuity under this section by reason of the United States Court of Appeals for the of service as a judge of the court and who is ap- Armed Forces. pointed to a position in the Federal Government (B) Upon receiving any notification under sub- shall, during the period of such person’s service paragraph (A) in the case of a person making an in such position, be entitled to receive only the § 946 TITLE 10—ARMED FORCES Page 524 annuity under this section or the pay for that AMENDMENTS position, whichever is higher. 1994—Subsecs. (a)(1), (3)(A), (b), (i)(1)(A). Pub. L. (g) ELECTION OF JUDICIAL RETIREMENT BENE- 103–337 substituted ‘‘Court of Appeals for the Armed FITS.—(1) A person who is receiving an annuity Forces’’ for ‘‘Court of Military Appeals’’. under this section by reason of service as a 1992—Subsec. (a)(1). Pub. L. 102–484, § 1052(11), sub- judge of the court and who later is appointed as stituted ‘‘section 942(e)(1)(B) of this title (article a justice or judge of the United States to hold 142(e)(1)(B))’’ for ‘‘section 943(e)(1)(B) of this title (art. 143(e)(1)(B))’’. office during good behavior and who retires from Subsec. (i). Pub. L. 102–484, § 1062(a)(1), added subsec. that office, or from regular active service in (i). that office, shall be paid either (A) the annuity 1991—Subsec. (a)(1). Pub. L. 102–190 inserted at end ‘‘A under this section, or (B) the annuity or salary person who continues service with the court as a senior to which he is entitled by reason of his service judge under section 943(e)(1)(B) of this title (art. as such a justice or judge of the United States, 143(e)(1)(B)) upon the expiration of the judge’s term as determined by an election by that person at shall be considered to have been separated from civil- the time of his retirement from the office, or ian service in the Federal Government only upon the termination of that continuous service.’’ from regular active service in the office, of jus- tice or judge of the United States. Such an elec- EFFECTIVE DATE OF 1992 AMENDMENT tion may not be revoked. Pub. L. 102–484, div. A, title X, § 1062(a)(2), Oct. 23, (2) An election by a person to be paid an annu- 1992, 106 Stat. 2505, provided that: ‘‘The amendment ity or salary pursuant to paragraph (1)(B) termi- made by paragraph (1) [amending this section] shall nates (A) any election previously made by such apply with respect to any appointment which takes ef- person to provide a survivor annuity pursuant to fect on or after the date of the enactment of this Act subsection (d), and (B) any right of any other in- [Oct. 23, 1992].’’ dividual to receive a survivor annuity pursuant EFFECTIVE DATE OF 1991 AMENDMENT to subsection (d) on the basis of the service of Amendment by Pub. L. 102–190 effective Nov. 29, 1989, that person. see section 1061(b)(1)(D) of Pub. L. 102–190, set out as a (h) SOURCE OF PAYMENT OF ANNUITIES.—Annu- note under section 942 of this title. ities and survivor annuities paid under this sec- EFFECTIVE DATE tion shall be paid out of the Department of De- fense Military Retirement Fund. Except as otherwise provided, section applicable with respect to judges of United States Court of Military Ap- (i) ELIGIBILITY TO ELECT BETWEEN RETIREMENT peals [now United States Court of Appeals for the SYSTEMS.—(1) This subsection applies with re- Armed Forces] whose terms of service on such court spect to any person who— end after Sept. 28, 1988, and to survivors of such judges, (A) prior to being appointed as a judge of the see section 1301(f) of Pub. L. 101–189, set out as a Transi- United States Court of Appeals for the Armed tional Provisions note under section 942 of this title. Forces, performed civilian service of a type ADDITIONAL ELECTIONS making such person subject to the Civil Serv- ice Retirement System; and Pub. L. 102–484, div. A, title X, § 1062(b), Oct. 23, 1992, 106 Stat. 2505, provided that: (B) would be eligible to make an election ‘‘(1) Any individual who is a judge in active service on under section 301(a)(2) of the Federal Employ- the United States Court of Military Appeals [now ees’ Retirement System Act of 1986, by virtue United States Court of Appeals for the Armed Forces] of being appointed as such a judge, but for the shall be eligible to make an election under section fact that such person has not had a break in 301(a)(2) of the Federal Employees’ Retirement System service of sufficient duration to be considered Act of 1986 [Pub. L. 99–335, 5 U.S.C. 8331 note] if— someone who is being reemployed by the Fed- ‘‘(A) such individual is such a judge on the date of eral Government. the enactment of this Act [Oct. 23, 1992]; and ‘‘(B) as of the date of the election, such individual (2) Any person with respect to whom this sub- is— section applies shall be eligible to make an elec- ‘‘(i) subject to the Civil Service Retirement Sys- tion under section 301(a)(2) of the Federal Em- tem; or ployees’ Retirement System Act of 1986 to the ‘‘(ii) covered by Social Security but not subject to the Federal Employees’ Retirement System. same extent and in the same manner (including ‘‘(2) An election under this subsection— subject to the condition set forth in section ‘‘(A) shall not be effective unless it is— 301(d) of such Act) as if such person’s appoint- ‘‘(i) made within 30 days after the date of the en- ment constituted reemployment with the Fed- actment of this Act; and eral Government. ‘‘(ii) in compliance with the condition set forth in section 301(d) of the Federal Employees’ Retire- (Added Pub. L. 101–189, div. A, title XIII, ment System Act of 1986 [Pub. L. 99–335, 5 U.S.C. § 1301(c), Nov. 29, 1989, 103 Stat. 1572; amended 8331 note]; and Pub. L. 102–190, div. A, title X, § 1061(b)(1)(C), ‘‘(B) may not be revoked. Dec. 5, 1991, 105 Stat. 1474; Pub. L. 102–484, div. A, ‘‘(3) For the purpose of this subsection, a judge of the title X, §§ 1052(11), 1062(a)(1), Oct. 23, 1992, 106 United States Court of Military Appeals [now United Stat. 2499, 2504; Pub. L. 103–337, div. A, title IX, States Court of Appeals for the Armed Forces] shall be considered to be ‘covered by Social Security’ if such § 924(c)(1), Oct. 5, 1994, 108 Stat. 2831.) judge’s service is employment for the purposes of title II of the Social Security Act [42 U.S.C. 401 et seq.] and REFERENCES IN TEXT chapter 21 of the Internal Revenue Code of 1986 [26 U.S.C. 3101 et seq.].’’ Section 301(a)(2) and (d) of the Federal Employees’ Retirement System Act of 1986, referred to in subsec. § 946. Art. 146. Code committee (i), is section 301(a)(2) and (d) of Pub. L. 99–335, which is set out in a note under section 8331 of Title 5, Gov- (a) ANNUAL SURVEY.—A committee shall meet ernment Organization and Employees. at least annually and shall make an annual Page 525 TITLE 10—ARMED FORCES § 946 comprehensive survey of the operation of this military justice or criminal law. Each such chapter. member shall be appointed for a term of three (b) COMPOSITION OF COMMITTEE.—The commit- years. tee shall consist of— (e) APPLICABILITY OF FEDERAL ADVISORY COM- (1) the judges of the United States Court of MITTEE ACT.—The Federal Advisory Committee Appeals for the Armed Forces; Act (5 U.S.C. App. I) shall not apply to the com- (2) the Judge Advocates General of the mittee. Army, Navy, and Air Force, the Chief Counsel (Added Pub. L. 101–189, div. A, title XIII, of the Coast Guard, and the Staff Judge Advo- § 1301(c), Nov. 29, 1989, 103 Stat. 1574; amended cate to the Commandant of the Marine Corps; Pub. L. 103–337, div. A, title IX, § 924(c)(1), Oct. 5, and (3) two members of the public appointed by 1994, 108 Stat. 2831; Pub. L. 104–106, div. A, title the Secretary of Defense. XV, § 1502(a)(1), Feb. 10, 1996, 110 Stat. 502; Pub. L. 106–65, div. A, title X, § 1067(1), Oct. 5, 1999, 113 (c) REPORTS.—(1) After each such survey, the Stat. 774; Pub. L. 107–296, title XVII, § 1704(b)(1), committee shall submit a report— Nov. 25, 2002, 116 Stat. 2314; Pub. L. 112–239, div. (A) to the Committee on Armed Services of A, title V, § 532, Jan. 2, 2013, 126 Stat. 1726.) the Senate and the Committee on Armed Serv- ices of the House of Representatives; and REFERENCES IN TEXT (B) to the Secretary of Defense, the Sec- The Federal Advisory Committee Act, referred to in retaries of the military departments, and the subsec. (e), is Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 770, as Secretary of Homeland Security. amended, which is set out in the Appendix to Title 5, Government Organization and Employees. (2) Each report under paragraph (1) shall in- clude the following: AMENDMENTS (A) Information on the number and status of 2013—Subsec. (c)(2)(B), (C). Pub. L. 112–239 added sub- pending cases. par. (B) and redesignated former subpar. (B) as (C). (B) Information from the Judge Advocates 2002—Subsec. (c)(1)(B). Pub. L. 107–296 substituted ‘‘of General and the Staff Judge Advocate to the Homeland Security’’ for ‘‘of Transportation’’. Commandant of the Marine Corps on the fol- 1999—Subsec. (c)(1)(A). Pub. L. 106–65 substituted lowing: ‘‘and the Committee on Armed Services’’ for ‘‘and the (i) The appellate review process, includ- Committee on National Security’’. ing— 1996—Subsec. (c)(1)(A). Pub. L. 104–106 substituted ‘‘Committee on Armed Services of the Senate and the (I) information on compliance with proc- Committee on National Security of the House of Rep- essing time goals; resentatives’’ for ‘‘Committees on Armed Services of (II) discussions of the circumstances sur- the Senate and House of Representatives’’. rounding cases in which general court- 1994—Subsec. (b)(1). Pub. L. 103–337 substituted martial or special court-martial convic- ‘‘Court of Appeals for the Armed Forces’’ for ‘‘Court of tions are reversed as a result of command Military Appeals’’. influence or denial of the right to a speedy EFFECTIVE DATE OF 2002 AMENDMENT review or otherwise remitted due to loss of records of trial or other administrative de- Amendment by Pub. L. 107–296 effective on the date of ficiencies; and transfer of the Coast Guard to the Department of (III) discussions of cases in which a pro- Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title. vision of this chapter is held unconstitu- tional. CHAPTER 47A—MILITARY COMMISSIONS (ii) Measures implemented by each armed Subchapter Sec. force to ensure the ability of judge advo- I. General Provisions ...... 948a. cates to competently participate as trial and II. Composition of Military Commissions .. 948h. defense counsel in, and preside as military III. Pre-Trial Procedure ...... 948q. judges over, capital cases, national security IV. Trial Procedure ...... 949a. cases, sexual assault cases, and proceedings V. Classified Information Procedures ...... 949p–1. of military commissions. VI. Sentences ...... 949s. (iii) The independent views of the Judge VII. Post-Trial Procedures and Review of 1 Advocates General and the Staff Judge Ad- Military Commissions ...... 950a. vocate to the Commandant of the Marine VIII. Punitive Matters ...... 950p. Corps on the sufficiency of resources avail- able within their respective armed forces, in- CODIFICATION cluding total workforce, funding, training, This chapter was originally added by Pub. L. 109–366, and officer and enlisted grade structure, to § 3(a)(1), Oct. 17, 2006, 120 Stat. 2600, and amended by capably perform military justice functions. Pub. L. 110–181, Jan. 28, 2008, 122 Stat. 3. This chapter is shown here, however, as having been added by Pub. (C) Any recommendation of the committee L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 relating to— Stat. 2574, without reference to those intervening (i) uniformity of policies as to sentences; amendments because of the general amendment of this (ii) amendments to this chapter; and chapter by Pub. L. 111–84. (iii) any other matter the committee con- siders appropriate. SUBCHAPTER I—GENERAL PROVISIONS

(d) QUALIFICATIONS AND TERMS OF APPOINTED Sec. MEMBERS.—Each member of the committee ap- 948a. Definitions. pointed by the Secretary of Defense under sub- section (b)(3) shall be a recognized authority in 1 So in original. Does not conform to subchapter heading.