UCMJ – United States Code of Military Justice

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941. ARTICLE 141. STATUS

by on Jul.21, 2010, under 12. Court of Military Appeals

There is a court of record known as the United States Court of Military Appeals. The court is established under Article 1 of the Constitution. The court is located for administrative purposes only in the Department of Defense.

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942. ARTICLE 142. JUDGES.

by on Jul.21, 2010, under 12. Court of Military Appeals

(a) NUMBER. The United States Court of Military Appeals consists of five judges.

(b) APPOINTMENT; QUALIFICATION.

(1) Each judge of the court shall be appointed from civil life by the President, by and with the advice and consent of the Senate, for a specified term determined under paragraph (2). A judge may serve as a senior judge as provided in subsection (e).

(2) The term of a judge shall expire as follows:

(A) In the case of a judge who is appointed after March 31 and before October 1 of any year, the term shall expire on September 30 of the year in which the fifteenth anniversary of the appointment occurs.

(B) In the case of a judge who is appointed after September 30 of any year and Before April 1 of the following year, the term shall expire fifteen years after such September 30.

(3) Not more than three of the judges may be appointed from the same political party, and no person may be appointed to be judge of the court unless the person is a member of the bar of a Federal court or the highest court of a State.

(c) REMOVAL. Judges of the court may be removed from office by the President, upon notice and hearing, for–

(1) neglect of duty;

(2) misconduct; or

(3) mental or physical disability.

A judge may not be removed by the President for any other cause.

(d) PAY AND ALLOWANCES. Each judge of the court is entitled to the same salary and travel allowances as are, and from the time may be, provided for judges of the United States Courts of Appeals.

(e) SENIOR JUDGES.

(1) A former judge of the court who is receiving retired pay or annuity under section 945 of this title (article 145) or under subchapter III of chapter 83 or chapter 84 title 5 shall be a senior judge.

(2)

(A) The chief judge of the court may call upon a senior judge of the court, with the consent of the senior judge, to perform judicial duties with the court–

(i) during a period a judge of the court is unable to perform his duties because of illness or other disability;

(ii) during a period in which a position of judge of the court is vacant; or

(iii) in any case in which a judge of the court recuses himself.

(B) A senior judge shall be paid for each day on which he performs judicial duties with the court an amount equal to the daily equivalent of the annual rate of pay provided for a judge of the court. Such pay shall be in lieu of retired pay and in lieu of an annuity under section 945 of this title (Article 145), subchapter III of chapter 83 or subchapter II of chapter 84 of title 5, or any other retirement system for employees of the Federal Government.

(3) A senior judge, while performing duties referred to in paragraph (2), shall be provided with such office space and staff assistance as the chief judge considers appropriate and shall be entitled to the per diem, travel allowances, and other allowances provided for judges of the court.

(4) A senior judge shall be considered to be an officer or employee of the United States with respect to his status as a senior judge, but only during periods the senior judge is performing duties referred to in paragraph (2). For the purposes of section 205 of title 18, a senior judge shall be considered to be a special Government employee during such periods. Any provision of law that prohibits or limits the political or business activities of an employee of the United States shall apply to a senior judge only during such periods.

(5) The court shall prescribe rules for the use and conduct of senior judges of the court. The chief judge of the court shall transmit such rules, and any amendments to such rules, to the Committees on Armed Services of Senate and House of Representatives not later than 15 days after the issuance of such rules or amendments, as the case may be.

(6) For the purposes of subchapter III of chapter 83 of title 5 (relating to the Civil Service Retirement and Disability System) and chapter 84 of such title (relating to the Federal Employees’ Retirement System) and for purposes of any other Federal Government retirement system for employees of the Federal Government–

(A) a period during which a senior judge performs duties referred to in paragraph (2) shall not be considered creditable service.

(B) no amount shall be withheld from the pay of a senior judge as a retirement contribution under section 8334, 8343, 8342, or 8432 of title 5 or under other such retirement system for any period during which the senior judge performs duties refereed to in paragraph (2);

(C) no contribution shall be made by the Federal Government to any retirement system with respect to a senior judge for any period during which the senior judge performs duties referred to in paragraph (2); and

(D) a senior judge shall not be considered to a re employed annuitant for any period during which the senior judge performs duties referred to in paragraph (2).

(f) SERVICE OF ARTICLE III JUDGES.

(1) the Chief Justice of the United States, upon the request of the chief judge of the court, may designate a judge of a United States court of appeals or of a United States district court to perform the duties of judge of the United States Court of Military Appeals–

(A) during a period a judge of the court is unable to perform his duties because of illness or other disability; or

(B) in any case in which a judge of the court recuses himself.

(2) A designation under paragraph (1) may be made only with the consent of the designated judge and the concurrence of the chief judge of the court of appeals or district court concerned.

(3) Per diem, travel allowances, and other allowances paid to the designated judge in connection with the performance of duties for the court shall be paid from funds available for the payment of per diem and such allowances for judges of the court.

(g) EFFECT OF VACANCY ON COURT. A vacancy on the court does not impair the right of the remaining judges to exercise the powers of the court.

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943. ARTICLE 143. ORGANIZATION AND EMPLOYEES

by on Jul.21, 2010, under 12. Court of Military Appeals

(a) CHIEF JUDGE. The President shall designate from time to time one of the judges of the United States Court of Military Appeals to be chief judge of the court.

(b) PRECEDENCE OF JUDGES. The chief judge of the court shall have precedence and preside at any session that he attends. The other judges shall have precedence and preside according to the seniority of their original commissions. Judges whose commissions bear the same date shall have precedence according to seniority in age.

(c) STATUS OF ATTORNEY POSITIONS.

(1) Attorney positions of employment under the Court of Military Appeals are exempted from the competitive service. Appointments to such positions shall be made by the court, without the concurrence of any other officer or employee of the executive branch, as in the same manner as appointments are made to other executive branch positions of a confidential or policy- determining character for which it is not practicable to examine or hold a competitive examination. such positions shall not be counted as positions of that character for purposes of any limitation on the number of positions of that character provided in law.

(2) In making appointments to the positions described in paragraph (1), preference shall be given, among equally qualified persons, to persons who are preference eligibles (as defined in section 2108(3) of title 5).

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944. ARTICLE 144. PROCEDURE

by on Jul.21, 2010, under 12. Court of Military Appeals

The United States Court of Military Appeals may prescribe its rules of procedure and may determine the number of judges required to constitute a quorum.

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945. ARTICLE 145. ANNUITIES FOR JUDGES AND SURVIVORS

by on Jul.21, 2010, under 12. Court of Military Appeals

(a) RETIREMENT ANNUITIES FOR JUDGES.

(1) A person who has completed a term of service for which he was appointed as a judge of the United States Court of Military Appeals is eligible for an annuity under this section upon separation from civilian service in the Federal Government.

(2) A person who is eligible for any annuity under this section shall be paid that annuity if, at the time he becomes eligible to receive that annuity, he elects to receive that annuity in lieu of any other annuity for which he may be eligible at the time of such election (whether an immediate or a deferred annuity) under subchapter III of chapter 83 or subchapter II of chapter 84 of title 5 or any other retirement system for civilian employees of the Federal Government. Such an election may not be revoked.

(3)

(A) The Secretary of Defense shall notify the Director of the Office of Personnel Management whenever an election under paragraph (2) is made affecting any right or interest under subchapter III of chapter 83 or subchapter II of chapter 85 of title 5 based on service as a judge of the United States Court of Military Appeals.

(B) Upon receiving any notification under subparagraph (A) in the case of a person making an election under (2), the Director shall determine the amount of the person’s lump-sum credit under subchapter III of chapter 83 or subchapter II of chapter 84 of title 5, as applicable, and shall request the Secretary of Treasury to transfer such amount from the Civil Service Retirement and Disability Fund to the Department of Defense Military Retirement Fund. The Secretary of the Treasury shall make any transfer so requested.

(C) In determining the amount of a lump-sum credit under section 8331(8) of title 5 for purposes of this paragraph–

(i) interest shall be computed using the rates under section 8334(e)(3) of such title; and

(ii) the completion of 5 years of civilian service (or longer) shall not be a basis for excluding interest.

(b) AMOUNT OF ANNUITY. The annuity payable under this section to a person who makes an election under subsection (a)(2) is 80 percent of the rate of pay for a judge in active service on the United States Court of Military Appeals as of the date on which the person is separated form civilian service.

(c) RELATION TO THRIFT SAVINGS PLAN. Nothing in this section affects any right of any person to participate in the thrift savings plan under section 8351 of title 5 subchapter III of chapter 84 of such title.

(d) SURVIVOR ANNUITIES. The Secretary of Defense shall prescribe by regulation a program to provide annuities for survivors and former spouses of persons receiving annuities under section by reason of elections made by such persons under subsection (a)(2). That program shall, to the maximum extent practicable, provide benefits and establish terms and conditions that are similar to those provided under survivor and former spouse annuity programs under other retirement systems for civilian employees of the Federal Government. The program may include provisions for the reduction in the annuity paid the person as a condition for the survivor annuity. An election by a judge (including a senior judge) or former judge to receive an annuity under this section terminates any right or interest which any other individual may have to a survivor annuity under any other retirement system for civilian employees of the Federal Government based on the service of that judge or former judge as a civilian officer or employee of the Federal Government (except with respect to an election under subsection (g)(1)(B)).

(e) COST-OF-LIVING INCREASES. The Secretary of Defense shall periodically increase annuities and survivor annuities paid under this section in order to take account of changes in the cost of living. The Secretary shall prescribe by regulation procedures for increases in annuities under this section. Such system shall, to the maximum extent appropriate, provide cost-of-living adjustments that are similar to those that are provided under other retirement systems for civilian employees of the Federal Government.

(f) DUAL COMPENSATION. A person who is receiving an annuity under this section by reason of service as a judge of the court and who is appointed to a position in the Federal Government shall, during the period of such person’s service in such position, be entitled to receive only the annuity under this section or the pay for that position, whichever is higher.

(g) ELECTION OF JUDICIAL RETIREMENT BENEFITS.

(1) A person who is receiving an annuity under this section by reason of service as a judge of the court and who later is appointed as a justice or judge of the United States to hold office during good behavior and who retires from that office, or from regular service in that office, shall be paid either–

(A) the annuity under this section, or

(B) the annuity or salary to which he is entitled by reason of his service as such a justice or judge of the United States, as determined by an election by that person at the time of his retirement from the office, or from regular active service in the office, of justice or judge of the United States. Such an election may not be revoked.

(2) An election by a person to be paid an annuity or salary pursuant to paragraph (1)(B) terminates (A) any election previously made by such person to provide a survivor annuity pursuant to subsection (d), and (B) any right of any other individual to receive an survivor annuity pursuant to subsection (d) on the basis of the service of that person.

(h) SOURCE OF PAYMENT OF ANNUITIES. Annuities and survivor annuities paid under this section shall be paid out f the Department of Defense Military Retirement Fund.

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946. ARTICLE 146. CODE COMMITTEE

by on Jul.21, 2010, under 12. Court of Military Appeals

(a) ANNUAL SURVEY. A committee shall beet at least annually and shall make an annual comprehensive survey of the operation of this chapter.

(b) COMPOSITION OF COMMITTEE. the committee shall consist of–

(1) the judges of the United States Court of Military Appeals;

(2) the Judge Advocates General of the Army, Navy, and Air Force, the Chief Counsel of the Coast Guard, and the Staff Judge Advocate to the Commandant of the Marine Corps; and

(3) two members of the public appointed by the Secretary of Defense.

(c) REPORTS.

(1) After each such survey, the committee shall submit a report–

(A) to the Committees on Armed Services of the Senate and House of Representatives; and

(B) Amy recommendation of the committee relating to–

(i) uniformity of policies as to sentences;

(ii) amendments to this chapter; and

(iii) any other matter the committee considers appropriate.

(d) QUALIFICATION AND TERMS OF APPOINTED MEMBERS. Each member of the committee appointed by the Secretary of Defense under subsection (B)(3) shall be a recognized authority in military justice or criminal law. Each such member shall be appointed for a term of three years.

(e) APPLICABILITY OF FEDERAL ADVISORY COMMITTEE ACT. The Federal Advisory Committee Act (5 U.S.C. App I) shall not apply to the committee.

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935. ARTICLE 135. COURTS OF INQUIRY

by on Jul.21, 2010, under 11. Miscellaneous Provisions

(a) Courts of inquiry to investigate any matter may be convened by any person authorized to convene a general court-martial or by any other person designated by the Secretary concerned for that purpose, whether or not the persons involved have requested such an inquiry.

(b) A court of inquiry consists of three or more commissioned officers. For each court of inquiry the convening authority shall also appoint counsel for the court.

(c) Any person subject to this chapter whose conduct is subject to inquiry shall be designated as a party. Any person subject to this chapter or employed by the Department of Defense who has a direct interest in the subject of inquiry has the right to be designated as a party upon request to the court. Any person designated as a party shall be given due notice and has the right to be present, to be represented by counsel, to cross- examine witnesses, and to introduce evidence.

(d) Members of a court of inquiry may be challenged by a party, but only for cause stated to the court.

(e) The members, counsel, the reporter, and interpreters of courts of inquiry shall take an oath to faithfully perform their duties.

(f) Witnesses may be summoned to appear and testify and be examined before courts of inquiry, as provided for courts-martial.

(g) Courts of inquiry shall make findings of fact but may not express opinions or make recommendations unless required to do so by the convening authority.

(h) Each court of inquiry shall keep a record of its proceedings, which shall be authenticated by the signatures of the president and counsel for the court and forwarded to the convening authority. If the record cannot be authenticated by the president, it shall be signed by a member in lieu of the president. If the record cannot be authenticated by the counsel for the court, it shall be signed by a member in lieu of the counsel.

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936. ARTICLE 136. AUTHORITY TO ADMINISTER OATHS AND ACT AS NOTARY

by on Jul.21, 2010, under 10. Punitive Articles

(a) The following persons on active duty or performing inactive-duty training may administer oaths for the purpose of military administration, including military justice, and have the general powers of a notary public and of a consul of the United States, in the performance of all notarial acts to be executed by members of any of the armed forces, wherever they may be, by persons serving with, employed by, or accompanying the armed forces outside the United States and outside the Canal Zone, Puerto Rico, Guam, and the Virgin Islands, and by other persons subject to this chapter outside the United States.

(1) All judge advocates

(2) All summary courts-martial.

(3) All adjutants, assistant adjutants, acting adjutants, and personnel adjutants.

(4) All commanding officers of the Navy, Marine Corps, and Coast Guard.

(5) All staff judge advocates and legal officers, and acting or assistant staff judge advocates and legal officers.

(6) All other persons designated by regulations of the armed forces or by statute.,

(b) The following persons on active duty or performing inactive-duty training may administer oaths necessary in the performance of their duties:

(1) The president, military judge, trial counsel, and assistant trial counsel for all general and special courts-martial.

(2) The president and counsel for the court of any court of inquiry.

(3) All officers designated to take a deposition.

(4) All persons detailed to conduct an investigation.

(5) All recruiting officers.

(6) All other persons designated by regulations of the armed forces or by statute.

(c) No fee may be paid to or received by any person for the performance of any notarial act herein authorized.

(d) The signature without seal of any such person acting as notary, together with the title of his office, is prima facie evidence of his authority.

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937. ARTICLE 137. ARTICLES TO BE EXPLAINED.

by on Jul.21, 2010, under 11. Miscellaneous Provisions

(a) (1) The sections of this title (articles of the Uniform Code of Military Justice) specified in paragraph (3) shall be carefully explained to each enlisted member at the time of (or within six days after)–

(A) the member’s initial entrance on active duty; or

(B) the member’s initial entrance into a duty status with a reserve component.

(2) Such sections (articles) shall be explained again–

(A) after the member has completed six months of active duty or, in the case of a member of a reserve component, after the member has completed basic or recruiting training; and

(B) at the time when the member reenlists.

(3) This subsection applies with respect to sections 802, 803, 807- 815, 825, 827, 831, 837, 838, 855, 877-934, and 937-939 of this title (articles 2, 3, 7-15, 25, 27, 31, 38, 55, 77-134, and 137-139).

(b) The text of the Uniform Code of Military Justice and of the regulations prescribed by the President under such Code shall be made available to a member on active duty or to a member of a reserve component, upon request by the member, for the member’s personal examination.

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938. ARTICLE 138. COMPLAINTS OF WRONGS

by on Jul.21, 2010, under 11. Miscellaneous Provisions

Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall foreword the complaint to the office exercising court- martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings thereon.

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939. ARTICLE 139. REDRESS OF INJURIES TO PROPERTY

by on Jul.21, 2010, under 11. Miscellaneous Provisions

(a) Whenever a complaint is made to any commanding officer hat willful damage has been done to the property of any person or that his property has been wrongfully taken by members of the armed forces, he may, under such regulations as the Secretary concerned may prescribe, convene an board to investigate the complaint. The board shall consist of from one to three commissioned officers and, for the purpose of investigation, it has the power to summon witnesses and examine them upon oath, to receive depositions or other documentary evidence, and to assess the damages sustained against the responsible parties. The assessment of damages made by the board is subject to the approval of the commanding officer, and in the amount approved by him shall be charged against the pay of the offenders. The order of the commanding officer directing charges herein authorized is conclusive on any disbursing officer for the payment by him to the injured parties of the damages as assessed and approved.

(b) If the offenders cannot be ascertained, but organization or detachment to which they belong is known, charges totaling the amount of damages assessed and approved may be made in such proportion as may be considered just upon the individual members thereof who are shown to have been present at the scene at the time the damages complained of were inflicted, as determined by the approved findings of the board.

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940. ARTICLE 140. DELEGATION BY THE PRESIDENT.

by on Jul.21, 2010, under 11. Miscellaneous Provisions

The President may delegate any authority vested in him under this chapter, and provide for sub delegation of any such authority.

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877. ARTICLE 77. PRINCIPALS

by on Jul.21, 2010, under 10. Punitive Articles

Any person punishable under this chapter who–

(1) commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission or

(2) causes an act to be done which if directly performed by him would be punishable by this chapter, is a principal.

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878. ARTICLE 78. ACCESSORY AFTER THE FACT

by on Jul.21, 2010, under 10. Punitive Articles

Any person subject to this chapter who, knowing that an offense punishable by this chapter has been committed, receives, comforts, or assists the offender in order to hinder or prevent his apprehension, trial, or punishment shall be punished as a court-martial may direct.

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879. ARTICLE 79. CONVICTION OF LESSER OFFENSE

by on Jul.21, 2010, under 10. Punitive Articles

An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein.

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880. ARTICLE 80. ATTEMPTS

by on Jul.21, 2010, under 10. Punitive Articles

(a) An act, done with specific intent to commit an offense under this chapter, amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense.

(b) Any person subject to this chapter who attempts to commit any offense punishable by this chapter shall be punished as a court-martial may direct, unless otherwise specifically prescribed.

(c) Any person subject to this chapter may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated.

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881. ARTICLE 81. CONSPIRACY

by on Jul.21, 2010, under 10. Punitive Articles

Any person subject to this chapter who conspires with any other person to commit an offense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.

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882. ARTICLE 82. SOLICITATION

by on Jul.21, 2010, under 10. Punitive Articles

(a) Any person subject to this chapter who solicits or advises another or others to desert in violation of section 885 of this title (article 85) or mutiny in violation of section 894 of this title (article 94) shall, if the offense solicited or advised is attempted or committed, be punished with the punishment provided for the commission of the offense, but, if the offense solicited or advised is not committed or attempted, he shall be punished as a court-martial may direct.

(b) Any person subject to this chapter who solicits or advises another or others to commit an act or misbehavior before the enemy in violation of section 899 of this title (article 99) or sedition in violation of section 894 of this title (article 94) shall, if the offense solicited or advised is committed, be punished with the punishment provided for the commission of the offense, but, if the offense solicited or advised is not committed, he shall be punished as a court-martial may direct.

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883. ARTICLE 83. FRAUDULENT ENLISTMENT, APPOINTMENT, OR SEPARATION

by on Jul.21, 2010, under 10. Punitive Articles

Any person who–

(1) procures his own enlistment or appointment in the armed forces by knowingly false representation or deliberate concealment as to his qualifications for the enlistment or appointment and receives pay or allowances thereunder; or

(2) procures his own separation from the armed forces by knowingly false representation or deliberate concealment as to his eligibility for that separation;

shall be punished as a court-martial may direct.

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884. ARTICLE 84. UNLAWFUL ENLISTMENT, APPOINTMENT, OR SEPARATION

by on Jul.21, 2010, under 10. Punitive Articles

Any person subject to this chapter who effects an enlistment or appointment in or a separation from the armed forces of any person who is known to him to be ineligible for that enlistment, appointment, or separation because it is prohibited by law, regulation, or order shall be punished as a court-martial may direct.

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