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SUBCHAPTER IX. POST-TRIAL PROCEDURE AND REVIEW OF COURTS-MARTIAL
859. 59. Error of
law; lesser included offense.
860. 60. Action by the
convening authority.
861. 61.
Waiver or withdrawal of appeal.
862. 62. Appeal by the United States.
863. 63. Rehearings.
864.
64. Review by a judge advocate.
865. 65.
Disposition of records.
866. 66. Review by
Court of Military Review.
867. 67. Review
by the Court of Military Appeals.
*867a. 67a. Review by the
Supreme Court.
868. 68. Branch
offices.
869.
69. Review in the office of the Judge Advocate General.
870. 70.
Appellate counsel.
871. 71.
Execution of sentence; suspension of sentence.
872. 72.
Vacation of suspension.
873.
73. Petition for a new trial.
874.
74. Remission and suspension.
875. 75.
Restoration.
876. 76.
Finality of proceedings, findings, and sentences.
876a. 76a. Leave required to be taken pending review of certain
court-martial convictions.
(a) A finding or sentence of court-martial may not be held
incorrect on the ground of an error of law unless the error
materially prejudices the substantial rights of the accused.
(b) Any reviewing authority with the power to approve or
affirm a finding of guilty may approve or affirm, instead, so
much of the finding as includes a lesser included offense.
(a) the findings and sentence of a court-martial shall be
reported promptly to the convening authority after the
announcement of the sentence.
(b)
(1) the accused may submit to the convening authority
matters for consideration by the convening authority with
respect to the findings and the sentence. Except in a summary
court- martial case, such a submission shall be made within 10
days after the accused has been given an authenticated record of
trial and, if applicable, the recommendation of the staff judge
advocate or legal officer under subsection (d). In a summary
court-martial case, such submission shall be made within seven
days after the sentence is announced.
(2) If the accused shows that additional time is required for
the accused to submit such matters, the convening authority or
other person taking action under this section, for good cause,
may extend the applicable period under paragraph (1) for not
more than an additional 20 days.
(3) In a summary court-martial case, the accused shall be
promptly provided a copy of the record of trial for use in
preparing a submission authorized by paragraph (1).
(4) The accused may waive his right to make a submission to
the convening authority under paragraph (1). Such a waiver must
be made in writing and may not be revoked. For the purposes of
subsection (c)(2), the time within which the accused may make a
submission under this subsection shall be deemed to have expired
upon the submission of such a waiver to the convening authority.
(c)
(1) The authority under this section to modify the
findings and sentence of a court-martial is a matter of command
prerogative involving the sole discretion of the convening
authority. Under regulations of the Secretary concerned, a
commissioned officer commanding for the time being, a successor
in command, or any person exercising general court-martial
jurisdiction may act under this section in place of the
convening authority.
(2) Action on the sentence of a court-martial shall be taken
by the convening authority or by another person authorized to
act under this section. Subject to regulations of the Secretary
concerned, such action may be taken only after consideration of
any matters submitted by the accused under subsection (b) or
after the time for submitting such matters expires, whichever is
earlier. The convening authority or other person taking such
action, in his sole discretion, may approve, disapprove,
commute, or suspend the sentence in whole or in part.
(3) Action on the findings of a court-martial by the
convening authority or other person acting on the sentence is
not required. However, such person, in his sole discretion,
may--
(A) dismiss any charge or specification by setting aside a
finding of guilty thereto; or
(B) change a finding of guilty to a charge or specification
to a finding of guilty to an offense that is a lesser included
offense of the offense stated in the charge or specification.
(d) Before acting under this section on any general court-
martial case or any special court-martial case that includes a
bad-conduct discharge, the convening authority or other person
taking action under this section shall obtain and consider the
written recommendation of his staff judge advocate or legal
officer. The convening authority or other person taking action
under this section shall refer the record of trial to his staff
judge advocate or legal officer, and the staff judge advocate or
legal officer shall use such record in the preparation of his
recommendation. The recommendation of the staff judge advocate
or legal officer shall include such matters as the President may
prescribe by regulation and shall be served on the accused, who
may submit any matter in response under subsection (b). Failure
to object in the response to the recommendation or to any matter
attached to the recommendation waives the right to object
thereto.
(e)
(1) The convening authority or other person taking action
under this section, in his sole discretion, may order a
proceeding in revision or a rehearing.
(2) A proceeding in revision may be ordered if there is an
apparent error or omission in the record or if the record shows
improper or inconsistent action by a court-martial with respect
to the findings or sentence that can be rectified without
material prejudice to the substantial rights of the accused. In
no case, however, may a proceeding in revision--
(A) reconsider a finding of not guilty of any specification
or a ruling which amounts to a finding of not guilty;
(B) reconsider a finding of not guilty of any charge, unless
there has been a finding of guilty under a specification laid
under that charge, which sufficiently alleges a violation of
some article of this chapter; or
(C) increase the severity of some article of the sentence
unless the sentence prescribed for the offense is mandatory.
(3) A rehearing may be ordered by the convening authority or
other person taking action under this section if he disapproves
the findings and sentence and states the reasons for disapproval
of the findings. If such a person disapproves the findings and
sentence and does not order a rehearing, he shall dismiss the
charges. A rehearing as to the findings may not be ordered where
there is a lack of sufficient evidence in the record to support
the findings. A rehearing as to the sentence may be ordered if
the convening authority or other person taken action under this
subsection disapproves the sentence.
(a) In each case subject to appellate review under section
866 or 869(a) of this title (article 66 or 69(a)), except a case
in which the sentence as approved under section 860(c) of this
title (article 60(c)) includes death, the accused may file with
the convening authority a statement expressly waving the right
of the accuse d to such review. Such a waiver shall be signed by
both the accused and by defense counsel and must be filed within
10 days after the action under sections 860(c) of this title
(article 60(c)) is served on the accused or on defense counsel.
the convening authority or other person taking such action, for
good cause, may extend the period for such filing by not more
than 30 days.
(b) Except in a case in which the sentence as approved under
section 860(c) of this title (article 60(c)) includes death, the
accused may withdraw an appeal at any time.
(c) A waiver of the right to appellate review or the
withdrawal of an appeal under this section bars review under
section 866 or 869(a) of this title (article 66 or 69(a)).
(a) (1) In a trial by court-martial in which a military judge
presides and in which a punitive discharge may be adjudged, the
United States may appeal an order or ruling of the military
judge which terminates the proceedings with respect to a charge
or specifications or which excludes evidence that is substantial
proof of a fact material in the proceeding. However, the United
States may not appeal an order or ruling that is, or amounts to,
a finding of not guilty with respect to the charge or
specification.
(2) An appeal of an order or ruling may not be taken unless
the trial counsel provides the military judge with written
notice of appeal from the order or ruling within 72 hours of the
order or ruling. Such notice shall include a certification by
the
(b) An appeal under this section shall be forwarded by means
prescribed under regulations of the President directly to the
Court of Military Review and shall, whenever practicable, have
priority over all other proceedings before that court. In ruling
on an appeal under this section, the Court of Military review
may act only with respect to matters of law, notwithstanding
section 866(c) of this title (article 66(c)).
(c) Any period of delay resulting from an appeal under this
section shall be excluded in deciding any issue regarding denial
of a speedy trial unless an appropriate authority determines
that the appeal was filed solely for the purpose of delay with
the knowledge that it was totally frivolous and without merit.
Each rehearing under this chapter shall take place before a
court-martial composed of members not members of the court-
martial which first heard the case. Upon a rehearing the accused
may not be tried for any offense of which he was found not
guilty by the first court-martial, and no sentence in excess of
or more than the original sentence may be imposed unless the
sentence is based upon a finding of guilty of an offense not
considered upon the merits in the original proceedings, or
unless the sentence prescribed for the offense is mandatory. If
the sentence approved after the first court-martial was in
accordance with a pretrial agreement and the accused at the
rehearing changes his plea with respect to the charges or
specifications upon which the pretrial agreement was based, or
otherwise does not comply with pretrial agreement, the sentence
as to those charges or specifications may include any punishment
not in excess of that lawfully adjudged at the first
court-martial.
(a) Each case in which there has been a finding of guilty
that is not reviewed under section 866 or 869(a) of this title
(article 66 or 69(a)) shall be reviewed by a judge advocate
under regulations of the Secretary concerned. A judge advocate
may not review a case under this subsection if he has acted in
the same case as an accuser, investigating officer, member of
the court, military judge, or counsel or has otherwise acted on
behalf of the prosecution or defense. The judge advocate's
review shall be in writing and shall contain the following:
(1) Conclusions at to whether--
(A) the court had jurisdiction over the accused and the
offense;
(B) the charge and specification stated an offense; and
(C) the sentence was within the limits prescribed as a matter
of law.
(2) A response to each allegation of error made in writing by
the accused.
(3) If the case is sent for action under subsection (b), a
recommendation as to the appropriate action to be taken and an
opinion as to whether corrective action is required as a matter
of law.
(b) The record of trial and related documents in each case
reviewed under subsection (a) shall be sent for action to the
person exercising general court-martial jurisdiction over the
accused at the time the court was convened (or to that person's
successor in command) if--
(1) the judge advocate who reviewed the case recommends
corrective action;
(2) the sentence approved under section 860(c) of this title
(article 60(c)) extends to dismissal, a bad-conduct or
dishonorable discharge, or confinement for more than six months;
or
(3) such action is otherwise required by regulations of the
Secretary concerned.
(c)
(1) The person to whom the record of trial and related
documents are sent under subsection (b) may--
(A) disapprove or approve the findings or sentence, in whole
or in part;
(B) remit, commute, or suspend the sentence in whole or in
part;
(C) except where the evidence was insufficient at the trial
to support the findings, order a rehearing on the findings, on
the sentence, or on both; or
(D) dismiss the charges.
(2) If a rehearing is ordered by the convening authority
finds a rehearing impracticable, he shall dismiss the charges.
(3) If the opinion of the judge advocate in the judge
advocate's review under subsection (a) is that corrective action
is required as a matter of law and if the person required to
take action under subsection (b) does not take action that is at
least as favorable to the accused as that recommended by the
judge advocate, the record of trial and action thereon shall be
sent to Judge Advocate General for review under section 869(b)
of this title (article 69(b)).
(a) In a case subject to appellate review under section 866
or 869(a) of this title (article 66 or 69(a)) in which the right
to such review is not waived, or an appeal is not withdrawn,
under section 861 of this title (article 61), the record of
trial and action thereon shall be transmitted to the Judge
General for appropriate action.
(b) Except as otherwise required by this chapter, all other
records of trial and related documents shall be transmitted and
disposed of as the Secretary may prescribe by regulation.
(a) Each Judge Advocate General shall establish a Court of
Military Review which shall be composed of one or more panels,
and each such panel shall be composed of not less than three
appellate military judges. For the purpose of reviewing court-
martial cases, the court may sit in panels or as a whole in
accordance with rules prescribed under subsection (f). Any
decision of a panel bay be reconsidered by the court sitting as
a whole in accordance with such rules. Appellate military judges
who are assigned to a Court of Military Review may be
commissioned officers or civilians, each of whom must be a
member of a bar of a Federal court or the highest court of a
State. The Judge Advocate General shall designate as trial
counsel that appeal is not taken for the purpose of delay and
(if the order or ruling appealed is one which excludes evidence)
that the evidence is substantial proof of a fact material in the
proceeding.
(1) An appeal under this section shall be diligently
prosecuted by appellate Government counsel.
(b) An appeal under this section shall be forwarded by a
means prescribed under regulations of the President directly to
the Court of Military Review and shall, whenever practicable,
have priority over all other proceedings before that court. In
ruling on an appeal under this section, the Court of Military
Review may act only with respect to matters of law,
notwithstanding section 666(c) of this title (article 66(c)).
(c) Any period of delay resulting from an appeal under this
section shall be excluded in deciding any issue regarding denial
of a speedy trial unless an appropriate authority determines
that the appeal was filed solely for the purposed of delay with
the knowledge that it was totally frivolous and without merit.
(a) The Court of Military Appeals shall review the record
in--
(1) all cases in which the sentence, as affirmed by a Court
of Military Review, extends to death;
(2) all cases reviewed by a Court of Military Review which
the Judge Advocate General orders sent to the Court of Military
Appeals for review; and
(3) all cases reviewed by a Court of Military Review in
which, upon petition of the accused and on good cause shown, the
Court of Military Appeals has granted review.
(b) the accused may petition the Court of Military Appeals
for review of a decision of a court of Military Review within 60
days from the earlier of --
(1) the date on which the accused is notified of the decision
of the Court of Military Review; or
(2) the date on which a copy of the decision of the Court of
Military Review, after being served on appellate counsel of
record for the accused (if any), is deposited in the United
States mails for delivery by first class mail to the accused at
an address provided by the accused, or, if no such address has
been provided by the accused, at the last address listed for the
accused in his official service record. The Court of Military
Appeals shall act upon such a petition promptly in accordance
with the rules of the court.
(c) In any case reviewed by it, the Court of Military Appeals
may act only with respect to the findings and sentence as
approved by the convening authority and as affirmed or set aside
as incorrect in law by the Court of Military Review. In a case
which the Judge Advocate General orders sent to the Court of
Military Appeals, that action need be taken only with respect to
the issues raised by him. In a case reviewed upon petition of
the accused, that action need be taken only with respect to
issues specified in the grant of review. The Court of Military
Appeals shall take action only with respect to matters of law.
(d) If the Court of Military Appeals sets aside the findings
and sentence, it may, except where the setting aside is based on
lack of sufficient evidence in the record to support the
findings, order a rehearing. If it sets aside the findings and
sentence and does not order a rehearing, it shall order that the
charges be dismissed.
(e) After it has acted on a case, the Court of Military
Appeals may direct the Judge Advocate General to return the
record to the Court of Military Review for further review in
accordance with the decision of the Court. Otherwise, unless
there is to be further action by the President or the Secretary
concerned, the Judge Advocate General shall instruct the
convening authority to take action in accordance with that
decision. If the court has ordered a rehearing, but the
convening authority finds a rehearing impracticable, he may
dismiss the charges.
867a.
ARTICLE 67a. REVIEW BY THE SUPREME COURT
(a) Decisions of the Unites States Court of Military Appeals
are subject to review by the Supreme Court by writ of certiorari
as provided in section 1259 of title 28. The Supreme Court may
not review by a writ of certiorari under this section any action
of the Court of Military Appeals in refusing to grant a petition
for review.
(b) The accused may petition the Supreme Court for a writ of
certiorari without prepayment of fees and costs or security
therefor and without filing the affidavit required by section
1915(a) of title 28.
868. ARTICLE 68. BRANCH
OFFICES
The Secretary concerned may direct the Judge Advocate General
to establish a branch office with any command. The branch office
shall be under an Assistant Judge Advocate General who, with the
consent of the judge Advocate General, may establish a Court of
Military Review with one or more panels. That Assistant Judge
Advocate General and any Court of Military Review established by
him may perform for that command under the general supervision
of the Judge Advocate General, the respective duties which the
Judge Advocate General and a Court of Military Review
established by the Judge Advocate General would otherwise be
required to perform as to all cases involving sentences not
requiring approval by the President.
869.
ARTICLE 69. REVIEW IN THE OFFICE OF THE JUDGE ADVOCATE GENERAL
(a) The record of trial in each general court-martial that
is not otherwise reviewed under section 866 of this title
(article 66) shall be examined in the office of the Judge
Advocate General if there is a finding of guilty and the accused
does not waive or withdraw his right to appellate review under
section 861 of this title (article 61). If any part of the
findings or sentence is found to be unsupported in law or if
reassessment of the sentence is appropriate, the Judge Advocate
General may modify or set aside the findings of sentence or
both.
(b) The findings or sentence, or both, in a court-martial
case not reviewed under subsection (a) or under section 866 of
this title (article 66) may be modified or set aside, in whole
or in part, by the Judge Advocate General on the ground of newly
discovered evidence, fraud on the court, lack of jurisdiction
over the accused or the offense, error prejudicial to the
substantial rights of the accused, or the appropriateness of the
sentence. If such a case is considered upon application of the
accused, the application must be filed in the office of the
Judge Advocate General by the accused on or before the last day
of the two-year period beginning on the date the sentence is
approved under section 860(c) of this title (article 60(c)),
unless the accused establishes good cause for failure to file
within that time.
(c) If the Judge Advocate General sets aside the findings or
sentence, he may, except when the setting aside is based on lace
of sufficient evidence in the record to support the findings,
order a rehearing. If he sets aside the findings and sentence
and does not order a rehearing, he shall order that the charges
be dismissed. If the Judge Advocate General orders a rehearing
by the convening authority finds a rehearing impractical, the
convening authority shall dismiss the charges.
(d) A Court of Military Review may review, under section 866
of this title (article 66)--
(1) any court-martial case which (A) is subject to action by
the Judge Advocate General under this section, and (b) is sent
to the Court of Military Review by order of the Judge Advocate
General; and,
(2) any action taken by the Judge Advocate General under this
section in such case.
(e) Notwithstanding section 866 of this title (article 66),
in any case reviewed by a Court of Military Review under this
section, the Court may take action only with respect to matters
of law.
(a) The Judge Advocate General shall detail in his office one
or more commissioned officers as appellate Government counsel,
and one or more commissioned officers as appellate defense
counsel, who are qualified under section 827(b)(1) of this title
(article 27(b)(1)).
(b) Appellate Government counsel shall represent the United
States before the Court of Military Review or the Court of
Military Appeals when directed to do so by the judge Advocate
General. Appellate Government counsel may represent the United
States before the Supreme Court in cases arising under this
chapter when requested to do so by the Attorney General.
(c) Appellate defense counsel shall represent the accused
before the Court of Military Review, the Court of Military
Appeals, or the Supreme Court--
(1) when requested by the accused;
(2) when the United States is represented by counsel; or
(3) when the Judge Advocate General has sent the case to the
Court of Military Appeals.
(d) The accused has the right to be represented before the
Court of Military Review, the Court of Military Appeals, or the
Supreme court by civilian counsel if provided by him.
(e) Military appellate counsel shall also perform such other
functions in connection with the review of court-martial cases
as the Judge Advocate General directs.
871. ARTICLE 71.
EXECUTION OF SENTENCE; SUSPENSION OF SENTENCE
(a) If the sentence of the court-martial extends to death,
that part of the sentence providing for death may not be
executed until approved by the President. In such a case, the
President may commute, remit, or suspend the sentence, or any
part thereof, as he sees fit. That part of the sentence
providing for the death may not be suspended.
(b) If in the case of a commissioned officer, cadet, or
midshipman, the sentence of a court-martial extends to
dismissal, that part of the sentence providing for dismissal may
not be executed until approved by the Secretary concerned or
such Under Secretary of Assistant Secretary as may be designated
by the Secretary concerned. In such a case, the Secretary, Under
Secretary or Assistant t Secretary, as the case may be, may
commute, remit, or suspend the sentence, or any part of the
sentence, as he sees fit. In time of war or national emergency
he may commute a sentence of dismissal to reduction to any
enlisted grade. A person so reduced may be required to serve for
the duration of the war or emergency and six months thereafter.
(c)
(1) If a sentence extends to death, dismissal, or dishonorable or bad-conduct discharge and if the right of the
accused to appellate review is not waived, and an appeal is not
withdrawn, under section 861 of this title (article 61), that
part of the sentence extending to death, dismissal, or a
dishonorable or bad-conduct discharge may not be executed until
there is a final judgment as to the legality of the proceedings
(and with respect to death or dismissal, approval under
subsection (a) or (b), as appropriate). A judgment as to
legality of the proceedings is final in such cases when review
is completed by a Court of Military Review and--
(A) the time for the accused to file a petition for review by
the Court of Military Appeals has expired and the accused has
not filed a timely petition for such review and the case is not
otherwise under review by that Court;
(B) such a petition is rejected by the Court of Military
Appeals; or
(C) review is completed in accordance with the judgment of
the Court of Military Appeals and--
(i) a petition for a writ of certiorari is not filed within
the time limits prescribed by the Supreme Court;
(ii) such a petition is rejected by the Supreme Court; or
(iii) review is otherwise completed in accordance with the
judgment of the Supreme Court.
(2) If a sentence extends to dismissal or a dishonorable or
bad-conduct discharge and if the right of the accused to
appellate review is waived, or an appeal is withdrawn, under
section 861 of this title (article 61), that part of the
sentence extending to dismissal or a bad-conduct discharge may
not be executed until review of the case by a judge advocate
(and any action of that review) under section 864 of this title
(article 64) is completed. Any other part of a court-martial
sentence may be ordered executed by the convening authority or
other person acting on the case under section 860 of this title
(article 60) when approved by hum under that section.
(d) The convening authority or other person acting on the
case under section 860 of this title (article 60) may suspend
the execution of any sentence or part thereof, except a death
sentence.
(a) Before the vacation of the suspension of a special court-
martial sentence which as approved includes a bad-conduct
discharge, or of any general court-martial sentence, the officer
having special court-martial jurisdiction over the probationer
shall hold a hearing on the alleged violation of probation. The
probationer shall be represented at the hearing by counsel if he
so desires.
(b) The record of the hearing and the recommendation of the
officer having special court-martial jurisdiction shall be sent
for action to the officer exercising general court-martial
jurisdiction over the probationer. If he vacates the suspension,
any unexecuted part of the sentence, except a dismissal, shall
be executed, subject to applicable restrictions in section
871(c) of this title (article 71(c)). The vacation of the
suspension of a dismissal is not effective until approved by the
Secretary concerned.
(c) The suspension of nay other sentence may be vacated by
any authority competent to convene, for the command in which the
accused is serving or assigned, a court of the kind that imposed
the sentence.
At any time within two years after approval by the convening
authority of a court-martial sentence, the accused may petition
the Judge Advocate General for a new trial on the grounds of
newly discovered evidence or fraud on the court. If the
accused's case is pending before a Court of Military Review or
before the Court of Military Appeals, the Judge Advocate General
shall refer the petition to the appropriate court for action.
Otherwise the Judge Advocate General shall act upon the
petition.
(a) The secretary concerned and, when designated by him, any
Under Secretary, Assistant Secretary, Judge Advocate General, or
commanding officer may remit or suspend any part or amount of
the unexecuted part of any sentence, including all uncollected
forfeitures other than a sentence prescribed by the President.
(b) The Secretary concerned may, for good cause, substitute
an administrative form of discharge for a discharge or dismissal
executed in accordance with the sentence of a court-martial.
(a) Under such regulations as the President may prescribe,
all rights, privileges, and property affected by an executed
part of a court-martial sentence which has been set aside or
disapproved, except an executed dismissal or discharge, shall be
restored unless a new trial or rehearing is ordered and such
executed part is included in a sentence imposed upon the new
trial or rehearing.
(b) If a previously executed sentence of dishonorable or bad-
conduct discharge is not imposed on a new trial, the Secretary
concerned shall substitute therefor a form of discharge
authorized for administrative issuance unless the accused is to
serve out the remainder of this enlistment.
(c) If a previously executed sentence of dismissal in not
imposed on a new trial, the Secretary concerned shall substitute
therefor a form of discharge authorized for administrative
issue, and the commissioned officer dismissed by the sentence
may be re- appointed by the President alone to such commissioned
grade and with such rank as in the opinion of the President that
former officer would have attained had he not been dismissed.
The reappointment of such a former officer shall be without
regard to the existence of a vacancy and shall affect the
promotion status of other officers only insofar as the President
may direct. All time between the dismissal and reappointment
shall be considered as actual service for all purposes,
including the right to pay and allowances.
The appellate review of records of trial provided by this
chapter, the proceedings, findings, and sentences of courts-
martial as approved, reviewed, or affirmed as required by this
chapter, and all dismissals and discharges carried into
execution under sentences by courts-martial following approval,
review, or affirmation as required by this chapter, are final
and conclusive. Orders publishing the proceedings of
courts-martials and all action taken pursuant to those
proceedings are binding upon all departments, courts, agencies,
and officers of the United States, subject only to action upon a
petition for a new trial as provided in section 873 of this
title (article 73) and to action by the Secretary concerned as
provided in section 874 of this title (article 74), and the
authority of the President.
Under regulations prescribed by the Secretary concerned, an
accused who has been sentenced by a court-martial may be
required to take leave pending completion of action under this
subchapter if the sentence, as approved under section 860 of
this title (article 60), includes an unsuspended dismissal or an
unsuspended dishonorable or bad-conduct discharge. the accused
may be required to begin such leave on the date on which the
sentence is approved under section 860 of this title (article
60) or at any time after such date, and such leave may be
continued until the date which action under this subchapter is
completed or may be terminated at any earlier time. |
