[USC02] 10 USC Ch. 47: UNIFORM CODE OF MILITARY JUSTICE
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10 USC Ch. 47: UNIFORM CODE OF MILITARY JUSTICE
From Title 10—ARMED FORCESSubtitle A—General Military LawPART II—PERSONNEL

CHAPTER 47—UNIFORM CODE OF MILITARY JUSTICE

 
Subchapter Sec.Art.
I. General Provisions 801 1
II. Apprehension and Restraint 807 7
III. Non-Judicial Punishment 815 15
IV. Court-Martial Jurisdiction 816 16
V. Composition of Courts-Martial 822 22
VI. Pre-Trial Procedure 830 30
VII. Trial Procedure 836 36
VIII. Sentences 855 55
IX. Post-Trial Procedure and Review of Courts-Martial 859 59
X. Punitive Articles 877 77
XI. Miscellaneous Provisions 935 135
XII. United States Court of Appeals for the Armed Forces 941 141

Amendments

1994Pub. L. 103–337, div. A, title IX, §924(c)(3)(B), Oct. 5, 1994, 108 Stat. 2832, substituted "United States Court of Appeals for the Armed Forces" for "Court of Military Appeals" in item for subchapter XII.

1989Pub. L. 101–189, div. A, title XIII, §1304(a)(1), Nov. 29, 1989, 103 Stat. 1576, added item for subchapter XII.

1983Pub. L. 98–209, §5(h)(1), Dec. 6, 1983, 97 Stat. 1400, substituted "IX. Post-Trial Procedure and Review of Courts-Martial" for "IX. Review of Courts-Martial".

1958Pub. L. 85–861, §33(a)(6), Sept. 2, 1958, 72 Stat. 1564, substituted 801, 807, 815, 816, 822, 830, 836, 855, 859, 877 and 935 for 1901, 1913, 1929, 1931, 1943, 1959, 1971, 2009, 2017, 2053 and 2169, respectively.

SUBCHAPTER I—GENERAL PROVISIONS

 
Sec.Art. 
801. 1. Definitions.
802. 2. Persons subject to this chapter.
803. 3. Jurisdiction to try certain personnel.
804. 4. Dismissed officer's right to trial by court-martial.
805. 5. Territorial applicability of this chapter.
806. 6. Judge advocates and legal officers.
806a. 6a. Investigation and disposition of matters pertaining to the fitness of military judges.
806b. 6b. Rights of the victim of an offense under this chapter.

Amendments

2013Pub. L. 113–66, div. A, title XVII, §1701(a)(2), Dec. 26, 2013, 127 Stat. 953, added item 806b.

1989Pub. L. 101–189, div. A, title XIII, §1304(a)(2), Nov. 29, 1989, 103 Stat. 1576, added item 806a.

§801. Article 1. Definitions

In this chapter (the Uniform Code of Military Justice):

(1) The term "Judge Advocate General" means, severally, the Judge Advocates General of the Army, Navy, and Air Force and, except when the Coast Guard is operating as a service in the Navy, an official designated to serve as Judge Advocate General of the Coast Guard by the Secretary of Homeland Security.

(2) The Navy, the Marine Corps, and the Coast Guard when it is operating as a service in the Navy, shall be considered as one armed force.

(3) The term "commanding officer" includes only commissioned officers.

(4) The term "officer in charge" means a member of the Navy, the Marine Corps, or the Coast Guard designated as such by appropriate authority.

(5) The term "superior commissioned officer" means a commissioned officer superior in rank or command.

(6) The term "cadet" means a cadet of the United States Military Academy, the United States Air Force Academy, or the United States Coast Guard Academy.

(7) The term "midshipman" means a midshipman of the United States Naval Academy and any other midshipman on active duty in the naval service.

(8) The term "military" refers to any or all of the armed forces.

(9) The term "accuser" means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than an official interest in the prosecution of the accused.

(10) The term "military judge" means a judge advocate designated under section 826(c) of this title (article 26(c)) who is detailed under section 826(a) or section 830a of this title (article 26(a) or 30a).

[(11) Repealed. Pub. L. 109–241, title II, §218(a)(1), July 11, 2006, 120 Stat. 526.]

(12) The term "legal officer" means any commissioned officer of the Navy, Marine Corps, or Coast Guard designated to perform legal duties for a command.

(13) The term "judge advocate" means—

(A) an officer of the Judge Advocate General's Corps of the Army, the Navy, or the Air Force;

(B) an officer of the Marine Corps who is designated as a judge advocate; or

(C) a commissioned officer of the Coast Guard designated for special duty (law).


(14) The term "record", when used in connection with the proceedings of a court-martial, means—

(A) an official written transcript, written summary, or other writing relating to the proceedings; or

(B) an official audiotape, videotape, or similar material from which sound, or sound and visual images, depicting the proceedings may be reproduced.


(15) The term "classified information" means (A) any information or material that has been determined by an official of the United States pursuant to law, an Executive order, or regulation to require protection against unauthorized disclosure for reasons of national security, and (B) any restricted data, as defined in section 11(y) of the Atomic Energy Act of 1954 (42 U.S.C. 2014(y)).

(16) The term "national security" means the national defense and foreign relations of the United States.

(Aug. 10, 1956, ch. 1041, 70A Stat. 36; Pub. L. 89–670, §10(g), Oct. 15, 1966, 80 Stat. 948; Pub. L. 90–179, §1(1), (2), Dec. 8, 1967, 81 Stat. 545; Pub. L. 90–632, §2(1), Oct. 24, 1968, 82 Stat. 1335; Pub. L. 98–209, §§2(a), 6(a), Dec. 6, 1983, 97 Stat. 1393, 1400; Pub. L. 100–180, div. A, title XII, §1231(17), Dec. 4, 1987, 101 Stat. 1161; Pub. L. 100–456, div. A, title XII, §1233(f)(1), Sept. 29, 1988, 102 Stat. 2057; Pub. L. 104–106, div. A, title XI, §1141(b), Feb. 10, 1996, 110 Stat. 467; Pub. L. 107–296, title XVII, §1704(b)(2), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 109–241, title II, §218(a), July 11, 2006, 120 Stat. 526; Pub. L. 114–328, div. E, title LI, §5101, Dec. 23, 2016, 130 Stat. 2894; Pub. L. 115–91, div. A, title X, §1081(a)(21), (c)(1)(A), Dec. 12, 2017, 131 Stat. 1595, 1597.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
801 50:551 (less (9)). May 5, 1950, ch. 169, §1 (Art. 1 (less (9))), 64 Stat. 108.

The words "In this chapter" are substituted for the introductory clause.

In the introductory clause and throughout the revised chapter the word "chapter" is substituted for the word "code".

Clauses (1), (2), and (5) of 50:551 are omitted as respectively covered by the definitions in clauses (4), (6), and (14) of section 101 of this title. The words "commissioned officer" are substituted for the word "officer" for clarity throughout this chapter, since the latter term was defined in the limited sense of commissioned officer in clause (5) of 50:551, and is now covered by section 101(14) of this title.

In clauses (1), (4)–(7), and (9)–(12) of the revised section, the word "means" is substituted for the words "shall be construed to refer to" and "shall be construed to refer * * * to".

In clause (1), the words "service in" are substituted for the words "part of" to conform to section 1 of title 14. The words "Department of the Treasury" are substituted for the words "Treasury Department".

Clauses (3) and (4) are inserted for clarity.

In clause (6), the words "the United States Air Force Academy" are inserted to reflect its establishment by the Air Force Academy Act (63 Stat. 47).

In clause (8), the word "refers" is substituted for the words "shall be construed to refer".

In clause (12), the words "Marine Corps" are inserted to make explicit that the clause applies to the Marine Corps. The word "commissioned" is inserted for clarity.

Amendments

2017Pub. L. 115–91, §1081(c)(1)(A), which directed insertion of "(the Uniform Code of Military Justice)" after "chapter" in introductory provisions, was not executed in light of the prior amendment by section 1081(a)(21) of Pub. L. 115–91, to reflect the probable intent of Congress. See Amendment note below and section 1081(c)(4) of Pub. L. 115–91, set out as an Effective Date of 2017 Amendment note below.

Pub. L. 115–91, §1081(a)(21), inserted "(the Uniform Code of Military Justice)" after "chapter" in introductory provisions.

2016—Cl. (10). Pub. L. 114–328, §5101(a), amended cl. (10) generally. Prior to amendment, cl. (10) read as follows: "The term 'military judge' means an official of a general or special court-martial detailed in accordance with section 826 of this title (article 26)."

Cl. (13)(A). Pub. L. 114–328, §5101(b)(1), substituted "the Army, the Navy, or the Air Force" for "the Army or the Navy".

Cl. (13)(B). Pub. L. 114–328, §5101(b)(2), struck out "the Air Force or" after "an officer of".

2006—Cl. (11). Pub. L. 109–241, §218(a)(1), struck out cl. (11) which read as follows: "The term 'law specialist' means a commissioned officer of the Coast Guard designated for special duty (law)."

Cl. (13)(C). Pub. L. 109–241, §218(a)(2), added subpar. (C) and struck out former subpar. (C) which read as follows: "an officer of the Coast Guard who is designated as a law specialist."

2002—Cl. (1). Pub. L. 107–296 substituted "an official designated to serve as Judge Advocate General of the Coast Guard by the Secretary of Homeland Security" for "the General Counsel of the Department of Transportation".

1996—Cls. (15), (16). Pub. L. 104–106 added cls. (15) and (16).

1988—Cl. (1). Pub. L. 100–456 substituted "term 'Judge" for "term 'judge".

1987—Cls. (1), (3) to (14). Pub. L. 100–180 inserted "The term" after each clause designation and revised first word in quotes in each clause to make initial letter of such word lowercase.

1983—Cl. (13). Pub. L. 98–209, §2(a), added officers of the Coast Guard who are designated as law specialists to definition of "Judge Advocate".

Cl. (14). Pub. L. 98–209, §6(a), added cl. (14).

1968—Cl. (10). Pub. L. 90–632 substituted "military judge" for "law officer" as term being defined and inserted reference to special court-martial in the definition thereof.

1967—Cl. (11). Pub. L. 90–179, §1(1), struck out "Navy or" before "Coast Guard".

Cl. (13). Pub. L. 90–179, §1(2), added cl. (13).

1966Pub. L. 89–670 substituted the General Counsel of the Department of Transportation for the General Counsel of the Department of the Treasury in definition of "Judge Advocate General" applicable to the Coast Guard when operating as a service in the Navy.

Effective Date of 2017 Amendment

Pub. L. 115–91, div. A, title V, §531(p), Dec. 12, 2017, 131 Stat. 1388, provided that: "The amendments made by this section [amending sections 806b, 830a, 838, 853a, 856, 858a, 858b, 862, 863, 866, 946, 1059, and 1408 of this title and provisions set out as a note below] shall take effect immediately after the amendments made by the Military Justice Act of 2016 (division E [§§5001–5542] of Public Law 114–328 [enacting, amending, and transferring numerous sections throughout this chapter]) take effect as provided for in section 5542 of that Act (130 Stat. 2967) [set out below]."

Pub. L. 115–91, div. A, title X, §1081(c)(4), Dec. 12, 2017, 131 Stat. 1599, provided that: "The amendments made by this subsection [amending this section and sections 673, 674, 806b, 816, 839, 843, 848, 853, 853a, 864, 865, 866, 869, 882, 919a, 920, 928, 932, 937, 1034, and 1044e of this title and section 8312 of Title 5, Government Organization and Employees] shall take effect immediately after the amendments made by the Military Justice Act of 2016 (division E [§§5001–5542] of Public Law 114–328 [enacting, amending, and transferring numerous sections throughout this chapter]) take effect as provided for in section 5542 of that Act (130 Stat. 2967) [set out below]."

Effective Date of 2016 Amendment

Pub. L. 114–328, div. E, title LXIII, §5542, Dec. 23, 2016, 130 Stat. 2967, as amended by Pub. L. 115–91, div. A, title V, §531(n)(1), Dec. 12, 2017, 131 Stat. 1387, provided that:

"(a) In General.—Except as otherwise provided in this division [div. E (§§5001–5542) of Pub. L. 114–328, see Tables for classification], the amendments made by this division [enacting, amending, and transferring numerous sections throughout this chapter] shall take effect on the date designated by the President [Jan. 1, 2019, with certain conditions and exceptions, see Ex. Ord. No. 13825, set out below], which date shall be not later than the first day of the first calendar month that begins two years after the date of the enactment of this Act [Dec. 23, 2016].

"(b) Implementing Regulations.—The President shall prescribe regulations implementing this division and the amendments made by this division by not later than one year after the date of the enactment of this Act, except as otherwise provided in this division.

"(c) Applicability.—

"(1) In general.—Subject to the provisions of this division and the amendments made by this division, the President shall prescribe in regulations whether, and to what extent, the amendments made by this division shall apply to a case in which a specification alleges the commission, before the effective date of such amendments, of one or more offenses or to a case in which one or more actions under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), have been taken before the effective date of such amendments.

"(2) Inapplicability to cases in which charges already referred to trial on effective date.—Except as otherwise provided in this division or the amendments made by this division, the amendments made by this division shall not apply to any case in which charges are referred to trial by court-martial before the effective date of such amendments. Proceedings in any such case shall be held in the same manner and with the same effect as if such amendments had not been enacted.

"(3) Punitive article amendments.—

"(A) In general.—The amendments made by title LX [§§5401–5452 of div. E of Pub. L. 114–328, enacting, amending, and transferring numerous sections within subchapter X of this chapter, see Tables for classification] shall not apply to any offense committed before the effective date of such amendments.

"(B) Construction.—Nothing in subparagraph (A) shall be construed to invalidate the prosecution of any offense committed before the effective date of such amendments.

"(4) Sentencing amendments.—The regulations prescribing the authorized punishments for any offense committed before the effective date of the amendments made by title LVIII [§§5301–5303 of div. E of Pub. L. 114–328, amending sections 856 to 857a, 858a, 858b, and 871 of this title] shall apply to the authorized punishments for the offense, as in effect at the time the offense is committed."

Effective Date of 2002 Amendment

Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.

Effective Date of 1983 Amendment

Pub. L. 98–209, §12(a), Dec. 6, 1983, 97 Stat. 1407, provided that:

"(1) The amendments made by this Act [see Short Title of 1983 Amendment note below] shall take effect on the first day of the eighth calendar month that begins after the date of enactment of this Act [Dec. 6, 1983], except that the amendments made by sections 9, 11 and 13 [amending sections 802, 815, 825, 867, 1552, and 1553 of this title and enacting provisions set out as a note under section 867 of this title] shall be effective on the date of the enactment of this Act. The amendments made by section 11 [amending sections 1552 and 1553 of this title] shall only apply with respect to cases filed after the date of enactment of this Act with the boards established under sections 1552 and 1553 of title 10, United States Code.

"(2) The amendments made by section 3(c) and 3(e) [amending sections 826, 827, and 838 of this title] do not affect the designation or detail of a military judge or military counsel to a court-martial before the effective date of such amendments.

"(3) The amendments made by section 4 [amending section 834 of this title] shall not apply to any case in which charges were referred to trial before the effective date of such amendments, and proceedings in any such case shall be held in the same manner and with the same effect as if such amendments had not been enacted.

"(4) The amendments made by sections 5, 6, and 7 [amending this section and sections 849, 854, 857, 860 to 867, 869, 871, and 876a of this title and enacting provisions set out as a note under section 869 of this title] shall not apply to any case in which the findings and sentence were adjudged by a court-martial before the effective date of such amendments. The proceedings in any such case shall be held in the same manner and with the same effect as if such amendments had not been enacted.

"(5) The amendments made by section 8 [enacting section 912a of this title] shall not apply to any offense committed before the effective date of such amendments. Nothing in this provision shall be construed to invalidate the prosecution of any offense committed before the effective date of such amendments."

Effective Date of 1968 Amendment

Pub. L. 90–632, §4, Oct. 24, 1968, 82 Stat. 1343, provided that:

"(a) Except for the amendments made by paragraphs (30) and (33) of section 2, this Act [see Short Title of 1968 Amendment note below] shall become effective on the first day of the tenth month following the month in which it is enacted [October 1968].

"(b) The amendment made by paragraph (30) of section 2 [amending section 869 of this title] shall become effective upon the date of enactment of this Act [Oct. 24, 1968].

"(c) The amendment made by paragraph (33) [amending section 873 of this title] shall apply in the case of all court-martial sentences approved by the convening authority on or after, or not more than two years before, the date of its enactment [Oct. 24, 1968]."

Effective Date of 1966 Amendment

Amendment by Pub. L. 89–670 effective Apr. 1, 1967, as prescribed by the President and published in the Federal Register, see section 16(a), formerly §15(a), of Pub. L. 89–670, and Ex. Ord. No. 11340, Mar. 30, 1967, 32 F.R. 5453.

Effective Date

Act Aug. 10, 1956, ch. 1041, §51, 70A Stat. 640, provided that: "Chapter 47 of title 10, United States Code, enacted by section 1 of this Act, takes effect January 1, 1957."

Short Title of 1996 Amendment

Pub. L. 104–106, div. A, title XI, §1101, Feb. 10, 1996, 110 Stat. 461, provided that: "This title [enacting sections 857a, 858b, and 876b of this title, amending this section and sections 802, 832, 847, 857, 860, 862, 866, 895, 920, and 937 of this title, repealing section 804 of Title 37, Pay and Allowances of the Uniformed Services, enacting provisions set out as notes under sections 802, 857, 858b, and 876b of this title, and amending provisions set out as a note under section 942 of this title] may be cited as the 'Military Justice Amendments of 1995'."

Short Title of 1986 Amendment

Pub. L. 99–661, div. A, title VIII, §801(a), Nov. 14, 1986, 100 Stat. 3905, provided that: "This title [enacting section 850a of this title, amending sections 802, 803, 806, 825, 843, 860, 936, and 937 of this title, and enacting provisions set out as notes under sections 802, 806, 825, 843, 850a, and 860 of this title] may be cited as the 'Military Justice Amendments of 1986'."

Short Title of 1983 Amendment

Pub. L. 98–209, §1(a), Dec. 6, 1983, 97 Stat. 1393, provided that: "This Act [enacting sections 912a of this title and section 1259 of Title 28, Judiciary and Judicial Procedure, amending this section, sections 802, 806, 815, 816, 825, 826, 827, 829, 834, 838, 842, 849, 854, 857, 860 to 867, 869, 870, 871, 876a, 936, 1552, and 1553 of this title, and section 2101 of Title 28, and enacting provisions set out as notes under sections 801, 867, and 869 of this title and amending provisions set out as a note under section 706 of this title] may be cited as the 'Military Justice Act of 1983'."

Short Title of 1981 Amendment

Pub. L. 97–81, §1(a), Nov. 20, 1981, 95 Stat. 1085, provided that: "This Act [enacting sections 706, 707, and 876a of this title, amending sections 701, 813, 832, 838, 867, and 869 of this title, and enacting provisions set out as a note under section 706 of this title] may be cited as the 'Military Justice Amendments of 1981'."

Short Title of 1968 Amendment

Pub. L. 90–632, §1, Oct. 24, 1968, 82 Stat. 1335, provided: "That this Act [amending this section and sections 806, 816, 818, 819, 820, 825, 826, 827, 829, 835, 837, 838, 839, 840, 841, 842, 845, 849, 851, 852, 854, 857, 865, 866, 867, 868, 869, 870, 871, 873, and 936 of this title and enacting provisions set out as notes under this section and sections 826 and 866 of this title] may be cited as the 'Military Justice Act of 1968'."

Redesignation of Navy Law Specialists as Judge Advocates

Navy law specialists redesignated judge advocates, see section 8 of Pub. L. 90–179, set out as a note under section 5148 of this title.

Savings Provision

Rights, duties, and proceedings not affected by Pub. L. 90–179 establishing Judge Advocate General's Corps in Navy, see section 10 of Pub. L. 90–179, set out as a note under section 5148 of this title.

Legislative Construction

Act Aug. 10, 1956, ch. 1041, §49(e), 70A Stat. 640, provided that: "In chapter 47 of title 10, United States Code [this chapter], enacted by section 1 of this Act, no inference of a legislative construction is to be drawn from the part in which any article is placed nor from the catchlines of the part or the article as set out in that chapter."

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

Sentencing in Certain Transitional Cases

Pub. L. 115–91, div. A, title V, §531(o), Dec. 12, 2017, 131 Stat. 1387, provided that:

"(1) In general.—In any transition-period court-martial, the relevant sentencing sections of chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), shall be applied as follows:

"(A) Except as provided in subparagraph (B), the relevant sentencing sections shall be applied as if the amendments to such sections made by the Military Justice Act of 2016 (division E of Public Law 114–328 [enacting, amending, and transferring numerous sections throughout this chapter]) and this section [see section 531(p) of Pub. L. 115–91, set out as an Effective Date of 2017 Amendment note above] had not been enacted.

"(B) If the accused so requests, the relevant sentencing sections shall be applied as amended by the Military Justice Act of 2016 (division E of Public Law 114–328) and this section.

"(2) Definitions.—In this subsection:

"(A) Transition-period court-martial.—The term 'transition-period court-martial' means a court-martial under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), that consists of both of the following:

"(i) A prosecution of one or more offenses committed before the date designated by the President under section 5542(a) of the Military Justice Act of 2016 (division E of Public Law 114–328; 130 Stat. 2967) [set out above].

"(ii) A prosecution of one or more offenses committed on or after that date.

"(B) Relevant sentencing sections.—The term 'relevant sentencing sections' means section 856 of title 10, United States Code (article 56 of the Uniform Code of Military Justice), and any other sections (articles) of chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), that, by regulation prescribed by the President, are designated as relevant to sentencing for the purposes of paragraph (1)."

Improved Implementation of Changes to Uniform Code of Military Justice

Pub. L. 114–92, div. A, title V, §543, Nov. 25, 2015, 129 Stat. 820, provided that: "The Secretary of Defense shall examine the Department of Defense process for implementing statutory changes to the Uniform Code of Military Justice for the purpose of developing options for streamlining such process. The Secretary shall adopt procedures to ensure that legal guidance is published as soon as practicable whenever statutory changes to the Uniform Code of Military Justice are implemented."

Reenactment and Modification of Certain Prior Requirements for Certifications Relating to Transfer of Detainees at United States Naval Station, Guantanamo Bay, Cuba, to Foreign Countries and Other Foreign Entities

Pub. L. 114–92, div. A, title X, §1034(a)–(f), Nov. 25, 2015, 129 Stat. 969, 970, provided that:

"(a) Certification Required Prior to Transfer.—

"(1) In general.—Except as provided in paragraph (2), the Secretary of Defense may not use any amounts authorized to be appropriated or otherwise available to the Department of Defense to transfer any individual detained at Guantanamo to the custody or control of the individual's country of origin, any other foreign country, or any other foreign entity unless the Secretary submits to the appropriate committees of Congress the certification described in subsection (b) not later than 30 days before the transfer of the individual.

"(2) Exception.—Paragraph (1) shall not apply to any action taken by the Secretary to transfer any individual detained at Guantanamo to effectuate an order affecting the disposition of the individual that is issued by a court or competent tribunal of the United States having lawful jurisdiction (which the Secretary shall notify the appropriate committees of Congress of promptly after issuance).

"(b) Certification.—A certification described in this subsection is a written certification made by the Secretary that—

"(1) the transfer concerned is in the national security interests of the United States;

"(2) the government of the foreign country or the recognized leadership of the foreign entity to which the individual detained at Guantanamo concerned is to be transferred—

"(A) is not a designated state sponsor of terrorism or a designated foreign terrorist organization;

"(B) maintains control over each detention facility in which the individual is to be detained if the individual is to be housed in a detention facility;

"(C) has taken or agreed to take appropriate steps to substantially mitigate any risk the individual could attempt to reengage in terrorist activity or otherwise threaten the United States or its allies or interests; and

"(D) has agreed to share with the United States any information that is related to the individual;

"(3) if the country to which the individual is to be transferred is a country to which the United States transferred an individual who was detained at United States Naval Station, Guantanamo Bay, Cuba, at any time after September 11, 2001, and such transferred individual subsequently engaged in any terrorist activity, the Secretary has—

"(A) considered such circumstances; and

"(B) determined that the actions to be taken as described in paragraph (2)(C) will substantially mitigate the risk of recidivism with regard to the individual to be transferred; and

"(4) includes an intelligence assessment, in classified or unclassified form, of the capacity, willingness, and past practices (if applicable) of the foreign country or foreign entity concerned in relation to the certification of the Secretary under this subsection.

"(c) Coordination With Prohibition on Transfer to Certain Countries.—While the prohibition in section 1033 [of Pub. L. 114–92, 129 Stat. 968] is in effect, no certification may be made under subsection (b) in connection with the transfer of an individual detained at Guantanamo to a country specified in such section.

"(d) Record of Cooperation.—In assessing the risk that an individual detained at Guantanamo will engage in terrorist activity or other actions that could affect the national security of the United States if released for the purpose of making a certification under subsection (b), the Secretary may give favorable consideration to any such individual—

"(1) who has substantially cooperated with United States intelligence and law enforcement authorities, pursuant to a pre-trial agreement, while in the custody of or under the effective control of the Department of Defense; and

"(2) for whom agreements and effective mechanisms are in place, to the extent relevant and necessary, to provide for continued cooperation with United States intelligence and law enforcement authorities.

"(e) Report.—Whenever the Secretary makes a certification under subsection (b) with respect to an individual detained at Guantanamo, the Secretary shall submit to the appropriate committees of Congress, together with such certification, a report that shall include, at a minimum, the following:

"(1) A detailed statement of the basis for the transfer of the individual.

"(2) An explanation why the transfer of the individual is in the national security interests of the United States.

"(3) A description of actions taken to mitigate the risks of reengagement by the individual as described in subsection (b)(2)(C), including any actions taken to address factors relevant to an applicable prior case of reengagement described in subsection (b)(3).

"(4) A copy of any Periodic Review Board findings relating to the individual.

"(5) A copy of the final recommendation by the Guantanamo Detainee Review Task Force established pursuant to Executive Order 13492 [set out below] relating to the individual and, if applicable, updated information related to any change to such recommendation.

"(6) An assessment whether, as of the date of the certification, the country to which the individual is to be transferred is facing a threat that could substantially affect its ability to exercise control over the individual.

"(7) A classified summary of—

"(A) the individual's record of cooperation, if any, while in the custody of or under the effective control of the Department of Defense; and

"(B) any agreements and mechanisms in place to provide for continuing cooperation.

"(f) Definitions.—In this section:

"(1) The term 'appropriate committees of Congress' means—

"(A) the Committee on Armed Services, the Committee on Foreign Relations, the Committee on Appropriations, and the Select Committee on Intelligence of the Senate; and

"(B) the Committee on Armed Services, the Committee on Foreign Affairs, the Committee on Appropriations, and the Permanent Select Committee on Intelligence of the House of Representatives.

"(2) The term 'individual detained at Guantanamo' means any individual located at United States Naval Station, Guantanamo Bay, Cuba, as of October 1, 2009, who—

"(A) is not a citizen of the United States or a member of the Armed Forces of the United States; and

"(B) is—

"(i) in the custody or under the control of the Department of Defense; or

"(ii) otherwise under detention at United States Naval Station, Guantanamo Bay, Cuba.

"(3) The term 'foreign terrorist organization' means any organization so designated by the Secretary of State under section 219 of the Immigration and Nationality Act (8 U.S.C. 1189).

"(4) The term 'state sponsor of terrorism' has the meaning given that term in section 301(13) of the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (22 U.S.C. 8541(13))."

Transfers to Foreign Countries of Individuals Detained at United States Naval Station, Guantanamo Bay, Cuba

Pub. L. 113–66, div. A, title X, §1035(a)–(e), Dec. 26, 2013, 127 Stat. 851–853, which related to authority, determinations, and notification regarding transfers to foreign countries of individuals detained at United States Naval Station, Guantanamo Bay, Cuba, was repealed by Pub. L. 114–92, div. A, title X, §1034(g), Nov. 25, 2015, 129 Stat. 971.

Notice to Congress on Use of Naval Vessels for Detention of Individuals

Pub. L. 112–239, div. A, title X, §1024(a), Jan. 2, 2013, 126 Stat 1912, provided that: "Not later than 30 days after first detaining an individual pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) on a naval vessel outside the United States, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and House of Representatives notice of the detention. In the case of such an individual who is transferred or released before the submittal of the notice of the individual's detention, the Secretary shall also submit to such Committees notice of the transfer or release."

Notice Required Prior To Transfer of Certain Individuals Detained at the Detention Facility at Parwan, Afghanistan

Pub. L. 112–239, div. A, title X, §1025, Jan. 2, 2013, 126 Stat. 1913, provided that:

"(a) Notice Required.—The Secretary of Defense shall submit to the appropriate congressional committees notice in writing of the proposed transfer of any individual detained pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) who is a national of a country other than the United States or Afghanistan from detention at the Detention Facility at Parwan, Afghanistan, to the custody of the Government of Afghanistan or of any other country. Such notice shall be provided not later than 10 days before such a transfer may take place.

"(b) Assessments Required.—Prior to any transfer referred to under subsection (a), the Secretary shall ensure that an assessment is conducted as follows:

"(1) In the case of the proposed transfer of such an individual by reason of the individual being released, an assessment of the threat posed by the individual and the security environment of the country to which the individual is to be transferred.

"(2) In the case of the proposed transfer of such an individual to a country other than Afghanistan for the purpose of the prosecution of the individual, an assessment regarding the capacity, willingness, and historical track record of the country with respect to prosecuting similar cases, including a review of the primary evidence against the individual to be transferred and any significant admissibility issues regarding such evidence that are expected to arise in connection with the prosecution of the individual.

"(3) In the case of the proposed transfer of such an individual for reintegration or rehabilitation in a country other than Afghanistan, an assessment regarding the capacity, willingness, and historical track records of the country for reintegrating or rehabilitating similar individuals.

"(4) In the case of the proposed transfer of such an individual to the custody of the Government of Afghanistan for prosecution or detention, an assessment regarding the capacity, willingness, and historical track record of Afghanistan to prosecute or detain long-term such individuals.

"(c) Appropriate Congressional Committees Defined.—In this section, the term 'appropriate congressional committees' means the Committee on Armed Services and the Committee on Foreign Affairs of the House of Representatives and the Committee on Armed Services and the Committee on Foreign Relations of the Senate."

Requirements for Certifications Relating to the Transfer of Detainees at United States Naval Station, Guantanamo Bay, Cuba, to Foreign Countries and Other Foreign Entities

Pub. L. 112–239, div. A, title X, §1028, Jan. 2, 2013, 126 Stat. 1914, related to requirements for certifications relating to the transfer of detainees at United States 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, 127 Stat. 853.

Rights Unaffected

Pub. L. 112–239, div. A, title X, §1029, Jan. 2, 2013, 126 Stat. 1917, provided that: "Nothing in the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112–81 [see Tables for classification]) shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution to any person inside the United States who would be entitled to the availability of such writ or to such rights in the absence of such laws."

Notification of Transfer of a Detainee Held at United States Naval Station, Guantanamo Bay, Cuba

Pub. L. 112–87, title III, §308, Jan. 3, 2012, 125 Stat. 1883, provided that:

"(a) Requirement for Notification.—The President shall submit to Congress, in classified form, at least 30 days prior to the transfer or release of an individual detained at Naval Station, Guantanamo Bay, Cuba, as of June 24, 2009, to the country of such individual's nationality or last habitual residence or to any other foreign country or to a freely associated State the following information:

"(1) The name of the individual to be transferred or released.

"(2) The country or the freely associated State to which such individual is to be transferred or released.

"(3) The terms of any agreement with the country or the freely associated State for the acceptance of such individual, including the amount of any financial assistance related to such agreement.

"(4) The agencies or departments of the United States responsible for ensuring that the agreement described in paragraph (3) is carried out.

"(b) Definition.—In this section, the term 'freely associated States' means the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau.

"(c) Construction With Other Requirements.—Nothing in this section shall be construed to supersede or otherwise affect the following provisions of law:

"(1) Section 1028 of the National Defense Authorization Act for Fiscal Year 2012 [Pub. L. 112–81, formerly set out below].

"(2) Section 8120 of the Department of Defense Appropriations Act, 2012 [div. A of Pub. L. 112–74, 125 Stat. 833]."

[Memorandum of President of the United States, Jan. 27, 2012, 77 F.R. 11371, delegated to the Secretary of State, in consultation with the Secretary of Defense, the function to provide to Congress the information specified in section 308(a) of Pub. L. 112–87, set out above.]

Detention Authority and Procedures, Transfer Certifications and Prosecution Consultation Requirement

Pub. L. 112–81, div. A, title X, §§1021–1025, 1028, 1029, Dec. 31, 2011, 125 Stat. 1562–1565, 1567, 1569, as amended by Pub. L. 113–66, div. A, title X, §1035(f)(1), Dec. 26, 2013, 127 Stat. 853, provided that:

"SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

"(a) In General.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

"(b) Covered Persons.—A covered person under this section is any person as follows:

"(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

"(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

"(c) Disposition Under Law of War.—The disposition of a person under the law of war as described in subsection (a) may include the following:

"(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

"(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111–84)).

"(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.

"(4) Transfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity.

"(d) Construction.—Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

"(e) Authorities.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

"(f) Requirement for Briefings of Congress.—The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be 'covered persons' for purposes of subsection (b)(2).

"SEC. 1022. MILITARY CUSTODY FOR FOREIGN AL-QAEDA TERRORISTS.

"(a) Custody Pending Disposition Under Law of War.—

"(1) In general.—Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107–40) in military custody pending disposition under the law of war.

"(2) Covered persons.—The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1021 who is determined—

"(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and

"(B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.

"(3) Disposition under law of war.—For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section 1021(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1028.

"(4) Waiver for national security.—The President may waive the requirement of paragraph (1) if the President submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.

"(b) Applicability to United States Citizens and Lawful Resident Aliens.—

"(1) United states citizens.—The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

"(2) Lawful resident aliens.—The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.

"(c) Implementation Procedures.—

"(1) In general.—Not later than 60 days after the date of the enactment of this Act [Dec. 31, 2011], the President shall issue, and submit to Congress, procedures for implementing this section.

"(2) Elements.—The procedures for implementing this section shall include, but not be limited to, procedures as follows:

"(A) Procedures designating the persons authorized to make determinations under subsection (a)(2) and the process by which such determinations are to be made.

"(B) Procedures providing that the requirement for military custody under subsection (a)(1) does not require the interruption of ongoing surveillance or intelligence gathering with regard to persons not already in the custody or control of the United States.

"(C) Procedures providing that a determination under subsection (a)(2) is not required to be implemented until after the conclusion of an interrogation which is ongoing at the time the determination is made and does not require the interruption of any such ongoing interrogation.

"(D) Procedures providing that the requirement for military custody under subsection (a)(1) does not apply when intelligence, law enforcement, or other Government officials of the United States are granted access to an individual who remains in the custody of a third country.

"(E) Procedures providing that a certification of national security interests under subsection (a)(4) may be granted for the purpose of transferring a covered person from a third country if such a transfer is in the interest of the United States and could not otherwise be accomplished.

"(d) Authorities.—Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody.

"(e) Effective Date.—This section shall take effect on the date that is 60 days after the date of the enactment of this Act, and shall apply with respect to persons described in subsection (a)(2) who are taken into the custody or brought under the control of the United States on or after that effective date.

"SEC. 1023. PROCEDURES FOR PERIODIC DETENTION REVIEW OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

"(a) Procedures Required.—Not later than 180 days after the date of the enactment of this Act [Dec. 31, 2011], the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth procedures for implementing the periodic review process required by Executive Order No. 13567 [set out below] for individuals detained at United States Naval Station, Guantanamo Bay, Cuba, pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note).

"(b) Covered Matters.—The procedures submitted under subsection (a) shall, at a minimum—

"(1) clarify that the purpose of the periodic review process is not to determine the legality of any detainee's law of war detention, but to make discretionary determinations whether or not a detainee represents a continuing threat to the security of the United States;

"(2) clarify that the Secretary of Defense is responsible for any final decision to release or transfer an individual detained in military custody at United States Naval Station, Guantanamo Bay, Cuba, pursuant to the Executive Order referred to in subsection (a), and that in making such a final decision, the Secretary shall consider the recommendation of a periodic review board or review committee established pursuant to such Executive Order, but shall not be bound by any such recommendation;

"(3) clarify that the periodic review process applies to any individual who is detained as an unprivileged enemy belligerent at United States Naval Station, Guantanamo Bay, Cuba, at any time; and

"(4) ensure that appropriate consideration is given to factors addressing the need for continued detention of the detainee, including—

"(A) the likelihood the detainee will resume terrorist activity if transferred or released;

"(B) the likelihood the detainee will reestablish ties with al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners if transferred or released;

"(C) the likelihood of family, tribal, or government rehabilitation or support for the detainee if transferred or released;

"(D) the likelihood the detainee may be subject to trial by military commission; and

"(E) any law enforcement interest in the detainee.

"(c) Appropriate Committees of Congress Defined.—In this section, the term 'appropriate committees of Congress' means—

"(1) the Committee on Armed Services and the Select Committee on Intelligence of the Senate; and

"(2) the Committee on Armed Services and the Permanent Select Committee on Intelligence of the House of Representatives.

"SEC. 1024. PROCEDURES FOR STATUS DETERMINATIONS.

"(a) In General.—Not later than 90 days after the date of the enactment of this Act [Dec. 31, 2011], the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth the procedures for determining the status of persons detained pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) for purposes of section 1021.

"(b) Elements of Procedures.—The procedures required by this section shall provide for the following in the case of any unprivileged enemy belligerent who will be held in long-term detention under the law of war pursuant to the Authorization for Use of Military Force:

"(1) A military judge shall preside at proceedings for the determination of status of an unprivileged enemy belligerent.

"(2) An unprivileged enemy belligerent may, at the election of the belligerent, be represented by military counsel at proceedings for the determination of status of the belligerent.

"(c) Applicability.—The Secretary of Defense is not required to apply the procedures required by this section in the case of a person for whom habeas corpus review is available in a Federal court.

"(d) Report on Modification of Procedures.—The Secretary of Defense shall submit to the appropriate committees of Congress a report on any modification of the procedures submitted under this section. The report on any such modification shall be so submitted not later than 60 days before the date on which such modification goes into effect.

"(e) Appropriate Committees of Congress Defined.—In this section, the term 'appropriate committees of Congress' means—

"(1) the Committee on Armed Services and the Select Committee on Intelligence of the Senate; and

"(2) the Committee on Armed Services and the Permanent Select Committee on Intelligence of the House of Representatives.

"SEC. 1025. REQUIREMENT FOR NATIONAL SECURITY PROTOCOLS GOVERNING DETAINEE COMMUNICATIONS.

"(a) In General.—Not later than 180 days after the date of the enactment of this Act [Dec. 31, 2011], the Secretary of Defense shall develop and submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a national security protocol governing communications to and from individuals detained at United States Naval Station, Guantanamo Bay, Cuba, pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note), and related issues.

"(b) Contents.—The protocol developed pursuant to subsection (a) shall include Department of Defense policies and procedures regarding each of the following:

"(1) Detainee access to military or civilian legal representation, or both, including any limitations on such access and the manner in which any applicable legal privileges will be balanced with national security considerations.

"(2) Detainee communications with persons other than Federal Government personnel and members of the Armed Forces, including meetings, mail, phone calls, and video teleconferences, including—

"(A) any limitations on categories of information that may be discussed or materials that may be shared; and

"(B) the process by which such communications or materials are to be monitored or reviewed.

"(3) The extent to which detainees may receive visits by persons other than military or civilian representatives.

"(4) The measures planned to be taken to implement and enforce the provisions of the protocol.

"(c) Updates.—The Secretary of Defense shall notify the congressional defense committees of any significant change to the policies and procedures described in the protocol submitted pursuant to subsection (a) not later than 30 days after such change is made.

"(d) Form of Protocol.—The protocol submitted pursuant to subsection (a) may be submitted in classified form.

"[SEC. 1028. Repealed. Pub. L. 113–66, div. A, title X, §1035(f)(1), Dec. 26, 2013, 127 Stat. 853.]

"SEC. 1029. REQUIREMENT FOR CONSULTATION REGARDING PROSECUTION OF TERRORISTS.

"(a) In General.—Before seeking an indictment of, or otherwise charging, an individual described in subsection (b) in a Federal court, the Attorney General shall consult with the Director of National Intelligence and the Secretary of Defense about—

"(1) whether the more appropriate forum for prosecution would be a Federal court or a military commission; and

"(2) whether the individual should be held in civilian custody or military custody pending prosecution.

"(b) Applicability.—The consultation requirement in subsection (a) applies to—

"(1) a person who is subject to the requirements of section 1022, in accordance with a determination made pursuant to subsection (a)(2) of such section; and

"(2) any other person who is held in military detention outside of the United States pursuant to the authority affirmed by section 1021."

[Memorandum of President of the United States, Feb. 28, 2012, 77 F.R. 12435, delegated the waiver authority conferred upon the President by section 1022(a)(4) of Pub. L. 112–81, set out above, to the Attorney General, in consultation with other senior national security officials, including the Secretaries of State, Defense, and Homeland Security, Director of National Intelligence, Chairman of the Joint Chiefs of Staff, Director of the Central Intelligence Agency, and Director of the Federal Bureau of Investigation, as well as any other officials the President may designate.]

Prohibition on Interrogation of Detainees by Contractor Personnel

Pub. L. 111–84, div. A, title X, §1038, Oct. 28, 2009, 123 Stat. 2451, provided that:

"(a) Prohibition.—Except as provided in subsection (b), effective one year after the date of the enactment of this Act [Oct. 28, 2009], no enemy prisoner of war, civilian internee, retained personnel, other detainee, or any other individual who is in the custody or under the effective control of the Department of Defense or otherwise under detention in a Department of Defense facility in connection with hostilities may be interrogated by contractor personnel.

"(b) Authorized Functions of Contractor Personnel.—Contractor personnel with proper training and security clearances may be used as linguists, interpreters, report writers, information technology technicians, and other employees filling ancillary positions, including as trainers of and advisors to interrogators, in interrogations of persons as described in subsection (a) if—

"(1) such personnel are subject to the same rules, procedures, policies, and laws pertaining to detainee operations and interrogations as apply to government personnel in such positions in such interrogations; and

"(2) appropriately qualified and trained military or civilian personnel of the Department of Defense are available to oversee the contractor's performance and to ensure that contractor personnel do not perform activities that are prohibited under this section.

"(c) Discharge by Government Personnel.—The Secretary of Defense shall take appropriate actions to ensure that, by not later than one year after the date of the enactment of this Act, the Department of Defense has the resources needed to ensure that interrogations described in subsection (a) are conducted by appropriately qualified government personnel.

"(d) Waiver.—

"(1) Waivers authorized.—The Secretary of Defense may waive the prohibition under subsection (a) for a period of 60 days if the Secretary determines such a waiver is vital to the national security interests of the United States. The Secretary may renew a waiver issued pursuant to this paragraph for an additional 30-day period, if the Secretary determines that such a renewal is vital to the national security interests of the United States.

"(2) Limitation on delegation.—

"(A) In general.—The waiver authority under paragraph (1) may not be delegated to any official below the level of the Deputy Secretary of Defense, except in the case of a waiver for an individual interrogation that is based on military exigencies, in which case the delegation of the waiver authority shall be done pursuant to regulations that the Secretary of Defense shall prescribe but in no instance may the latter delegation be below the level of combatant commander of the theater in which the individual is in the custody or under the effective control of the Department of Defense or otherwise under detention in a Department of Defense facility within that theater.

"(B) Deadline for regulations.—The Secretary of Defense shall prescribe the regulations referred to in subparagraph (A) by not later than 30 days after the date of the enactment of this Act.

"(3) Congressional notification.—Not later than five days after the Secretary issues a waiver pursuant to paragraph (1), the Secretary shall submit to Congress written notification of the waiver."

No Miranda Warnings for Al Qaeda Terrorists

Pub. L. 111–84, div. A, title X, §1040, Oct. 28, 2009, 123 Stat. 2454, provided that:

"(a) No Miranda Warnings.—

"(1) In general.—Absent a court order requiring the reading of such statements, no member of the Armed Forces and no official or employee of the Department of Defense or a component of the intelligence community (other than the Department of Justice) may read to a foreign national who is captured or detained outside the United States as an enemy belligerent and is in the custody or under the effective control of the Department of Defense or otherwise under detention in a Department of Defense facility the statement required by Miranda v. Arizona (384 U.S. 436 (1966)), or otherwise inform such an individual of any rights that the individual may or may not have to counsel or to remain silent consistent with Miranda v. Arizona (384 U.S. 436 (1966)).

"(2) Nonapplicability to department of justice.—This subsection shall not apply to the Department of Justice.

"(3) Definitions.—In this subsection:

"(A) The term 'foreign national' means an individual who is not a citizen or national of the United States.

"(B) The term 'enemy belligerent' includes a privileged belligerent against the United States and an unprivileged enemy belligerent, as those terms are defined in section 948a of title 10, United States Code, as amended by section 1802 of this Act.

"(b) Report Required on Notification of Detainees of Rights Under Miranda v. Arizona.—Not later than 90 days after the date of the enactment of this Act [Oct. 28, 2009], the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on how the reading of rights under Miranda v. Arizona (384 U.S. 436 (1966)) to individuals detained by the United States in Afghanistan may affect—

"(1) the tactical questioning of detainees at the point of capture by United States Armed Forces deployed in support of Operation Enduring Freedom;

"(2) post-capture theater-level interrogations and intelligence-gathering activities conducted as part of Operation Enduring Freedom;

"(3) the overall counterinsurgency strategy and objectives of the United States for Operation Enduring Freedom;

"(4) United States military operations and objectives in Afghanistan; and

"(5) potential risks to members of the Armed Forces operating in Afghanistan."

Requirement for Videotaping or Otherwise Electronically Recording Strategic Intelligence Interrogations of Persons in the Custody of or Under the Effective Control of the Department of Defense

Pub. L. 111–84, div. A, title X, §1080, Oct. 28, 2009, 123 Stat. 2479, as amended by Pub. L. 111–383, div. A, title X, §1075(d)(15), Jan. 7, 2011, 124 Stat. 4373, provided that:

"(a) Videotaping or Other Electronic Recording Required.—In accordance with the Army Field Manual on Human Intelligence Collector Operations (FM 2–22.3, September 2006), or any successor thereto, and the guidelines developed pursuant to subsection (f), the Secretary of Defense shall ensure that each strategic intelligence interrogation of any person who is in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility is videotaped or otherwise electronically recorded.

"(b) Classification of Information.—To protect United States national security, the safety of the individuals conducting or assisting in the conduct of a strategic intelligence interrogation, and the privacy of persons described in subsection (a), the Secretary of Defense shall provide for the appropriate classification of videotapes or other electronic recordings made pursuant to subsection (a). The use of such classified videotapes or other electronic recordings in proceedings conducted under the Detainee Treatment Act of 2005 (title XIV of Public Law 109–163 and title X of Public Law 109–148), chapter 47A of title 10, United States Code, as amended by section 1802 of this Act, or at any other judicial or administrative forum under any other provision of law shall be governed by applicable rules, regulations, and laws that protect classified information.

"(c) Strategic Intelligence Interrogation Defined.—For purposes of this section, the term 'strategic intelligence interrogation' means an interrogation of a person described in subsection (a) conducted at a theater-level detention facility.

"(d) Exclusion.—Nothing in this section shall be construed as requiring—

"(1) any member of the Armed Forces engaged in direct combat operations to videotape or otherwise electronically record an interrogation of a person described in subsection (a); or

"(2) the videotaping of or otherwise electronically recording of tactical questioning, as such term is defined in the Army Field Manual on Human Intelligence Collector Operations (FM 2–22.3, September 2006), or any successor thereto.

"(e) Waiver.—

"(1) Waivers authorized.—The Secretary of Defense may, as an exceptional measure, as part of a specific interrogation plan for a specific person described in subsection (a), waive the requirement in that subsection on a case-by-case basis for a period not to exceed 30 days, if the Secretary—

"(A) makes a determination in writing that such a waiver is necessary to the national security interests of the United States; and

"(B) by not later than five days after the date on which such a determination is made, submits to the Committees on Armed Services of the Senate and House of Representatives, the House Permanent Select Committee on Intelligence, and the Senate Select Committee on Intelligence notice of that determination, including a justification for that determination.

"(2) Suspensions authorized.—The Secretary may temporarily suspend the requirement under subsection (a) at a specific theater-level detention facility for a period not to exceed 30 days, if the Secretary—

"(A) makes a determination in writing that such a suspension is vital to the national security interests of the United States; and

"(B) by not later than five days after the date on which such a determination is made, submits to the Committees on Armed Services of the Senate and House of Representatives, the House Permanent Select Committee on Intelligence, and the Senate Select Committee on Intelligence notice of that determination, including a justification for that determination.

"(3) Limitation on delegation of authority.—This authority of the Secretary under this subsection may only be delegated as follows:

"(A) In the case of the authority under paragraph (1), such authority may not be delegated below the level of the combatant commander of the theater in which the detention facility holding the person is located.

"(B) In the case of the authority under paragraph (2), such authority may not be delegated below the level of the Deputy Secretary of Defense.

"(4) Extensions.—The Secretary may extend a waiver under paragraph (1) for one additional 30-day period, or a suspension under paragraph (2) for one additional 30-day period, if—

"(A) the Secretary—

"(i) in the case of such a waiver, makes a determination in writing that such an extension is necessary to the national security interests of the United State [sic]; or

"(ii) in the case of such a suspension, makes a determination in writing that such an extension is vital to the national security interests of the United States; and

"(B) by not later than five days after the date on which such a determination is made, the Secretary submits to the Committees on Armed Services of the Senate and House of Representatives, the House Permanent Select Committee on Intelligence, and the Senate Select Committee on Intelligence notice of that determination, including a justification for that determination.

"(f) Guidelines.—

"(1) Development of guidelines.—The Secretary of Defense, acting through the Judge Advocates General (as defined in section 801(1) of title 10, United States Code, (Article 1 of the Uniform Code of Military Justice)), shall develop and adopt uniform guidelines for videotaping or otherwise electronically recording strategic intelligence interrogations as required under subsection (a). Such guidelines shall, at a minimum—

"(A) promote full compliance with the laws of the United States;

"(B) promote the exploitation of intelligence;

"(C) address the retention, maintenance, and disposition of videotapes or other electronic recordings, consistent with subparagraphs (A) and (B) and with the interests of justice; and

"(D) ensure the safety of all participants in the interrogations.

"(2) Submittal to congress.—Not later than 30 days after the date of the enactment of this section [Oct. 28, 2009], the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and House of Representatives a report containing the guidelines developed under paragraph (1). Such report shall be in an unclassified form but may include a classified annex."

Reports on Guantanamo Bay Prisoner Population

Pub. L. 111–32, title III, §319, June 24, 2009, 123 Stat. 1874, as amended by Pub. L. 114–92, div. A, title X, §§1038(a), 1039, Nov. 25, 2015, 129 Stat. 974, provided that:

"(a) Reports Required.—Not later than 60 days after the date of the enactment of this Act [June 24, 2009] and every 90 days thereafter, the President shall submit to the members and committees of Congress specified in subsection (b) a report on the prisoner population at the detention facility at Naval Station Guantanamo Bay, Cuba.

"(b) Specified Members and Committees of Congress.—The members and committees of Congress specified in this subsection are the following:

"(1) The majority leader and minority leader of the Senate.

"(2) The Chairman and Ranking Member on the Committee on Armed Services of the Senate.

"(3) The Chairman and Vice Chairman of the Select Committee on Intelligence of the Senate.

"(4) The Chairman and Vice Chairman of the Committee on Appropriations of the Senate.

"(5) The Speaker of the House of Representatives.

"(6) The minority leader of the House of Representatives.

"(7) The Chairman and Ranking Member on the Committee on Armed Services of the House of Representatives.

"(8) The Chairman and Vice Chairman of the Permanent Select Committee on Intelligence of the House of Representatives.

"(9) The Chairman and Ranking Member of the Committee on Appropriations of the House of Representatives.

"(c) Matters To Be Included.—Each report submitted under subsection (a) shall include the following:

"(1) The name and country of origin of each detainee at the detention facility at Naval Station Guantanamo Bay, Cuba, as of the date of such report.

"(2) A current summary of the evidence, intelligence, and information used to justify the detention of each detainee listed under paragraph (1) at Naval Station Guantanamo Bay.

"(3) A current accounting of all the measures taken to transfer each detainee listed under paragraph (1) to the individual's country of citizenship or another country.

"(4) A current description of the number of individuals released or transferred from detention at Naval Station Guantanamo Bay who are confirmed or suspected of returning to terrorist activities after release or transfer from Naval Station Guantanamo Bay.

"(5) An assessment of any efforts by al Qaeda to recruit detainees released from detention at Naval Station Guantanamo Bay.

"(6) A summary of all known contact between any individual formerly detained at Naval Station Guantanamo Bay and any individual known or suspected to be associated with a foreign terrorist group, which contact included information or discussion about planning for or conduct of hostilities against the United States or its allies or the organizational, logistical, or resource needs or activities of any terrorist group or activity.

"(7) For each individual described in paragraph (4), the date on which such individual was released or transferred from Naval Station Guantanamo Bay and the date on which it is confirmed that such individual is suspected or confirmed of reengaging in terrorist activities.

"(8) The average period of time described in paragraph (7) for all the individuals described in paragraph (4).

"(d) Additional Matters To Be Included in Initial Report.—The first report submitted under subsection (a) shall also include the following:

"(1) A description of the process that was previously used for screening the detainees described by subsection (c)(4) prior to their release or transfer from detention at Naval Station Guantanamo Bay, Cuba.

"(2) An assessment of the adequacy of that screening process for reducing the risk that detainees previously released or transferred from Naval Station Guantanamo Bay would return to terrorist activities after release or transfer from Naval Station Guantanamo Bay.

"(3) An assessment of lessons learned from previous releases and transfers of individuals who returned to terrorist activities for reducing the risk that detainees released or transferred from Naval Station Guantanamo Bay will return to terrorist activities after their release or transfer."

[Pub. L. 114–92, div. A, title X, §1038(b), Nov. 25, 2015, 129 Stat. 974, provided that: "Nothing in the amendment made by subsection (a) [amending section 319(c) of Pub. L. 111–32, set out above, by adding par. (6)] shall be construed to terminate, alter, modify, override, or otherwise affect any reporting of information required under section 319(c) of the Supplemental Appropriations Act, 2009 [Pub. L. 111–32, set out above] before the date of the enactment of this section [Nov. 25, 2015]."]

[Memorandum of President of the United States, July 17, 2009, 74 F.R. 35765, provided that the reporting function conferred upon the President by section 319(a), (c)(1) to (3) of Pub. L. 111–32, set out above, is assigned to the Attorney General, and the reporting function specified in section 319(a), (c)(4), (5), (d) of Pub. L. 111–32 is assigned to the Director of National Intelligence, in consultation with the Secretary of Defense.]

Policy on Role of Military Medical and Behavioral Science Personnel in Interrogation of Detainees

Pub. L. 109–163, div. A, title VII, §750, Jan. 6, 2006, 119 Stat. 3364, provided that:

"(a) Policy Required.—The Secretary of Defense shall establish the policy of the Department of Defense on the role of military medical and behavioral science personnel in the interrogation of persons detained by the Armed Forces. The policy shall apply uniformly throughout the Armed Forces.

"(b) Report.—Not later than March 1, 2006, the Secretary shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the policy established under subsection (a). The report shall set forth the policy, and shall include such additional matters on the policy as the Secretary considers appropriate."

Detainee Interrogation, Status Review, and Treatment

Pub. L. 109–163, div. A, title XIV, §§1402, 1405, 1406, Jan. 6, 2006, 119 Stat. 3475, 3476, 3479, as amended by Pub. L. 111–84, div. A, title XVIII, §1803(b)(2), as added Pub. L. 111–383, div. A, title X, §1075(d)(21), Jan. 7, 2011, 124 Stat. 4374, provided that:

"SEC. 1402. UNIFORM STANDARDS FOR THE INTERROGATION OF PERSONS UNDER THE DETENTION OF THE DEPARTMENT OF DEFENSE.

"(a) In General.—No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.

"(b) Applicability.—Subsection (a) shall not apply with respect to any person in the custody or under the effective control of the Department of Defense pursuant to a criminal law or immigration law of the United States.

"(c) Construction.—Nothing in this section shall be construed to affect the rights under the United States Constitution of any person in the custody or under the physical jurisdiction of the United States.

"SEC. 1405. PROCEDURES FOR STATUS REVIEW OF DETAINEES OUTSIDE THE UNITED STATES.

"(a) Submittal of Procedures for Status Review of Detainees at Guantanamo Bay, Cuba, and in Afghanistan and Iraq.—

"(1) In general.—Not later than 180 days after the date of the enactment of this Act [Jan. 6, 2006], the Secretary of Defense shall submit to the Committee on Armed Services and the Committee on the Judiciary of the Senate and the Committee on Armed Services and the Committee on the Judiciary of the House of Representatives a report setting forth—

"(A) the procedures of the Combatant Status Review Tribunals and the Administrative Review Boards established by direction of the Secretary of Defense that are in operation at Guantanamo Bay, Cuba, for determining the status of the detainees held at Guantanamo Bay or to provide an annual review to determine the need to continue to detain an alien who is a detainee; and

"(B) the procedures in operation in Afghanistan and Iraq for a determination of the status of aliens detained in the custody or under the physical control of the Department of Defense in those countries.

"(2) Designated civilian official.—The procedures submitted to Congress pursuant to paragraph (1)(A) shall ensure that the official of the Department of Defense who is designated by the President or Secretary of Defense to be the final review authority within the Department of Defense with respect to decisions of any such tribunal or board (referred to as the 'Designated Civilian Official') shall be a civilian officer of the Department of Defense holding an office to which appointments are required by law to be made by the President, by and with the advice and consent of the Senate.

"(3) Consideration of new evidence.—The procedures submitted under paragraph (1)(A) shall provide for periodic review of any new evidence that may become available relating to the enemy combatant status of a detainee.

"(b) Consideration of Statements Derived With Coercion.—

"(1) Assessment.—The procedures submitted to Congress pursuant to subsection (a)(1)(A) shall ensure that a Combatant Status Review Tribunal or Administrative Review Board, or any similar or successor administrative tribunal or board, in making a determination of status or disposition of any detainee under such procedures, shall, to the extent practicable, assess—

"(A) whether any statement derived from or relating to such detainee was obtained as a result of coercion; and

"(B) the probative value, if any, of any such statement.

"(2) Applicability.—Paragraph (1) applies with respect to any proceeding beginning on or after the date of the enactment of this Act [Jan. 6, 2006].

"(c) Report on Modification of Procedures.—The Secretary of Defense shall submit to the committees specified in subsection (a)(1) a report on any modification of the procedures submitted under subsection (a). Any such report shall be submitted not later than 60 days before the date on which such modification goes into effect.

"(d) Annual Report.—

"(1) Report required.—The Secretary of Defense shall submit to Congress an annual report on the annual review process for aliens in the custody of the Department of Defense outside the United States. Each such report shall be submitted in unclassified form, with a classified annex, if necessary. The report shall be submitted not later than December 31 each year.

"(2) Elements of report.—Each such report shall include the following with respect to the year covered by the report:

"(A) The number of detainees whose status was reviewed.

"(B) The procedures used at each location.

"(e) Judicial Review of Detention of Enemy Combatants.—

"(1) In general.—[Amended section 2241 of Title 28, Judiciary and Judicial Procedure.]

"(2) Review of decisions of combatant status review tribunals of propriety of detention.—

"(A) In general.—Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.

"(B) Limitation on claims.—The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to claims brought by or on behalf of an alien—

"(i) who is, at the time a request for review by such court is filed, detained by the Department of Defense at Guantanamo Bay, Cuba; and

"(ii) for whom a Combatant Status Review Tribunal has been conducted, pursuant to applicable procedures specified by the Secretary of Defense.

"(C) Scope of review.—The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of—

"(i) whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor the Government's evidence); and

"(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.

"(D) Termination on release from custody.—The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit with respect to the claims of an alien under this paragraph shall cease upon the release of such alien from the custody of the Department of Defense.

"[(3) Repealed. Pub. L. 111–84, div. A, title XVIII, §1803(b)(2), as added Pub. L. 111–383, div. A, title X, §1075(d)(21), Jan. 7, 2011, 124 Stat. 4374.]

"(4) Respondent.—The Secretary of Defense shall be the named respondent in any appeal to the United States Court of Appeals for the District of Columbia Circuit under this subsection.

"(f) Construction.—Nothing in this section shall be construed to confer any constitutional right on an alien detained as an enemy combatant outside the United States.

"(g) United States Defined.—For purposes of this section, the term 'United States', when used in a geographic sense, is as defined in section 101(a)(38) of the Immigration and Nationality Act [8 U.S.C. 1101(a)(38)] and, in particular, does not include the United States Naval Station, Guantanamo Bay, Cuba.

"(h) Effective Date.—

"(1) In general.—This section shall take effect on the date of the enactment of this Act [Jan. 6, 2006].

"(2) Review of combatant status tribunal and military commission decisions.—Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.

"SEC. 1406. TRAINING OF IRAQI SECURITY FORCES REGARDING TREATMENT OF DETAINEES.

"(a) Required Policies.—

"(1) In general.—The Secretary of Defense shall prescribe policies designed to ensure that all military and civilian Department of Defense personnel or contractor personnel of the Department of Defense responsible for the training of any unit of the Iraqi Security Forces provide training to such units regarding the international obligations and laws applicable to the humane treatment of detainees, including protections afforded under the Geneva Conventions and the Convention Against Torture.

"(2) Acknowledgment of training.—The Secretary shall ensure that, for all personnel of the Iraqi Security Forces who are provided training referred to in paragraph (1), there is documented acknowledgment that such training has been provided.

"(3) Deadline for policies to be prescribed.—The policies required by paragraph (1) shall be prescribed not later than 180 days after the date of the enactment of this Act [Jan. 6, 2006].

"(b) Army Field Manual.—

"(1) Translation.—The Secretary of Defense shall provide for the unclassified portions of the United States Army Field Manual on Intelligence Interrogation to be translated into Arabic and any other language the Secretary determines appropriate for use by members of the Iraqi security forces.

"(2) Distribution.—The Secretary of Defense shall provide for such manual, as translated, to be distributed to all appropriate officials of the Iraqi Government, including, but not limited to, the Iraqi Minister of Defense, the Iraqi Minister of Interior, senior Iraqi military personnel, and appropriate members of the Iraqi Security Forces with a recommendation that the principles that underlay the manual be adopted by the Iraqis as the basis for their policies on interrogation of detainees.

"(c) Transmittal to Congressional Committees.—Not less than 30 days after the date on which policies are first prescribed under subsection (a), the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives copies of such regulations, policies, or orders, together with a report on steps taken to the date of the report to implement this section.

"(d) Annual Report.—Not less than one year after the date of the enactment of this Act [Jan. 6, 2006], and annually thereafter, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report on the implementation of this section."

[For termination, effective Dec. 31, 2021, of annual reporting provisions in section 1405(d) of Pub. L. 109–163, set out above, see section 1061 of Pub. L. 114–328, set out as a note under section 111 of this title.]

Pub. L. 109–148, div. A, title X, §§1002, 1005, 1006, Dec. 30, 2005, 119 Stat. 2739, 2740, 2744, as amended by Pub. L. 109–366, §§9, 10, Oct. 17, 2006, 120 Stat. 2636, 2637; Pub. L. 110–181, div. A, title X, §1063(d)(2), Jan. 28, 2008, 122 Stat. 323; Pub. L. 111–84, div. A, title XVIII, §1803(b)(1), formerly §1803(b), Oct. 28, 2009, 123 Stat. 2612, as renumbered §1803(b)(1) by Pub. L. 111–383, div. A, title X, §1075(d)(21), Jan. 7, 2011, 124 Stat. 4374, provided that:

"SEC. 1002. UNIFORM STANDARDS FOR THE INTERROGATION OF PERSONS UNDER THE DETENTION OF THE DEPARTMENT OF DEFENSE.

"(a) In General.—No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.

"(b) Applicability.—Subsection (a) shall not apply with respect to any person in the custody or under the effective control of the Department of Defense pursuant to a criminal law or immigration law of the United States.

"(c) Construction.—Nothing in this section shall be construed to affect the rights under the United States Constitution of any person in the custody or under the physical jurisdiction of the United States.

"SEC. 1005. PROCEDURES FOR STATUS REVIEW OF DETAINEES OUTSIDE THE UNITED STATES.

"(a) Submittal of Procedures for Status Review of Detainees at Guantanamo Bay, Cuba, and in Afghanistan and Iraq.—

"(1) In general.—Not later than 180 days after the date of the enactment of this Act [Dec. 30, 2005], the Secretary of Defense shall submit to the Committee on Armed Services and the Committee on the Judiciary of the Senate and the Committee on Armed Services and the Committee on the Judiciary of the House of Representatives a report setting forth—

"(A) the procedures of the Combatant Status Review Tribunals and the Administrative Review Boards established by direction of the Secretary of Defense that are in operation at Guantanamo Bay, Cuba, for determining the status of the detainees held at Guantanamo Bay or to provide an annual review to determine the need to continue to detain an alien who is a detainee; and

"(B) the procedures in operation in Afghanistan and Iraq for a determination of the status of aliens detained in the custody or under the physical control of the Department of Defense in those countries.

"(2) Designated civilian official.—The procedures submitted to Congress pursuant to paragraph (1)(A) shall ensure that the official of the Department of Defense who is designated by the President or Secretary of Defense to be the final review authority within the Department of Defense with respect to decisions of any such tribunal or board (referred to as the 'Designated Civilian Official') shall be a civilian officer of the Department of Defense holding an office to which appointments are required by law to be made by the President, by and with the advice and consent of the Senate.

"(3) Consideration of new evidence.—The procedures submitted under paragraph (1)(A) shall provide for periodic review of any new evidence that may become available relating to the enemy combatant status of a detainee.

"(b) Consideration of Statements Derived With Coercion.—

"(1) Assessment.—The procedures submitted to Congress pursuant to subsection (a)(1)(A) shall ensure that a Combatant Status Review Tribunal or Administrative Review Board, or any similar or successor administrative tribunal or board, in making a determination of status or disposition of any detainee under such procedures, shall, to the extent practicable, assess—

"(A) whether any statement derived from or relating to such detainee was obtained as a result of coercion; and

"(B) the probative value (if any) of any such statement.

"(2) Applicability.—Paragraph (1) applies with respect to any proceeding beginning on or after the date of the enactment of this Act [Dec. 30, 2005].

"(c) Report on Modification of Procedures.—The Secretary of Defense shall submit to the committees specified in subsection (a)(1) a report on any modification of the procedures submitted under subsection (a). Any such report shall be submitted not later than 60 days before the date on which such modification goes into effect.

"(d) Annual Report.—

"(1) Report required.—The Secretary of Defense shall submit to Congress an annual report on the annual review process for aliens in the custody of the Department of Defense outside the United States. Each such report shall be submitted in unclassified form, with a classified annex, if necessary. The report shall be submitted not later than December 31 each year.

"(2) Elements of report.—Each such report shall include the following with respect to the year covered by the report:

"(A) The number of detainees whose status was reviewed.

"(B) The procedures used at each location.

"(e) Judicial Review of Detention of Enemy Combatants.—

"(1) In general.—[Amended section 2241 of Title 28, Judiciary and Judicial Procedure.]

"(2) Review of decisions of combatant status review tribunals of propriety of detention.—

"(A) In general.—Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.

"(B) Limitation on claims.—The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to claims brought by or on behalf of an alien—

"(i) who is, at the time a request for review by such court is filed, detained by the United States; and

"(ii) for whom a Combatant Status Review Tribunal has been conducted, pursuant to applicable procedures specified by the Secretary of Defense.

"(C) Scope of review.—The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of—

"(i) whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government's evidence); and

"(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.

"(D) Termination on release from custody.—The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit with respect to the claims of an alien under this paragraph shall cease upon the release of such alien from the custody of the Department of Defense.

"[(3) Repealed. Pub. L. 111–84, div. A, title XVIII, §1803(b)(1), formerly §1803(b), Oct. 28, 2009, 123 Stat. 2612, as renumbered §1803(b)(1) by Pub. L. 111–383, div. A, title X, §1075(d)(21), Jan. 7, 2011, 124 Stat. 4374.]

"(4) Respondent.—The Secretary of Defense shall be the named respondent in any appeal to the United States Court of Appeals for the District of Columbia Circuit under this subsection.

"(f) Construction.—Nothing in this section shall be construed to confer any constitutional right on an alien detained as an enemy combatant outside the United States.

"(g) United States Defined.—For purposes of this section, the term 'United States', when used in a geographic sense, is as defined in section 101(a)(38) of the Immigration and Nationality Act [8 U.S.C. 1101(a)(38)] and, in particular, does not include the United States Naval Station, Guantanamo Bay, Cuba.

"(h) Effective Date.—

"(1) In general.—This section shall take effect on the date of the enactment of this Act [Dec. 30, 2005].

"(2) Review of combatant status tribunal and military commission decisions.—Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.

"SEC. 1006. TRAINING OF IRAQI FORCES REGARDING TREATMENT OF DETAINEES.

"(a) Required Policies.—

"(1) In general.—The Secretary of Defense shall ensure that policies are prescribed regarding procedures for military and civilian personnel of the Department of Defense and contractor personnel of the Department of Defense in Iraq that are intended to ensure that members of the Armed Forces, and all persons acting on behalf of the Armed Forces or within facilities of the Armed Forces, ensure that all personnel of Iraqi military forces who are trained by Department of Defense personnel and contractor personnel of the Department of Defense receive training regarding the international obligations and laws applicable to the humane detention of detainees, including protections afforded under the Geneva Conventions and the Convention Against Torture.

"(2) Acknowledgment of training.—The Secretary shall ensure that, for all personnel of the Iraqi Security Forces who are provided training referred to in paragraph (1), there is documented acknowledgment of such training having been provided.

"(3) Deadline for policies to be prescribed.—The policies required by paragraph (1) shall be prescribed not later than 180 days after the date of the enactment of this Act [Dec. 30, 2005].

"(b) Army Field Manual.—

"(1) Translation.—The Secretary of Defense shall provide for the United States Army Field Manual on Intelligence Interrogation to be translated into arabic [sic] and any other language the Secretary determines appropriate for use by members of the Iraqi military forces.

"(2) Distribution.—The Secretary of Defense shall provide for such manual, as translated, to be provided to each unit of the Iraqi military forces trained by Department of Defense personnel or contractor personnel of the Department of Defense.

"(c) Transmittal of Regulations.—Not less than 30 days after the date on which regulations, policies, and orders are first prescribed under subsection (a), the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives copies of such regulations, policies, or orders, together with a report on steps taken to the date of the report to implement this section.

"(d) Annual Report.—Not less than one year after the date of the enactment of this Act [Dec. 30, 2005], and annually thereafter, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report on the implementation of this section."

Sense of Congress Concerning Detainees; Actions To Prevent Abuse

Pub. L. 108–375, div. A, title X, §§1091, 1092, Oct. 28, 2004, 118 Stat. 2068, 2069, provided that:

"SEC. 1091. SENSE OF CONGRESS AND POLICY CONCERNING PERSONS DETAINED BY THE UNITED STATES.

"(a) Sense of Congress.—It is the sense of Congress that—

"(1) the abuses inflicted upon detainees at the Abu Ghraib prison in Baghdad, Iraq, are inconsistent with the professionalism, dedication, standards, and training required of individuals who serve in the United States Armed Forces;

"(2) the vast majority of members of the Armed Forces have upheld the highest possible standards of professionalism and morality in the face of illegal tactics and terrorist attacks and attempts on their lives;

"(3) the abuse of persons in United States custody in Iraq is appropriately condemned and deplored by the American people;

"(4) the Armed Forces are moving swiftly and decisively to identify, try, and, if found guilty, punish persons who perpetrated such abuse;

"(5) the Department of Defense and appropriate military authorities must continue to undertake corrective action, as appropriate, to address chain-of-command deficiencies and the systemic deficiencies identified in the incidents in question;

"(6) the Constitution, laws, and treaties of the United States and the applicable guidance and regulations of the United States Government prohibit the torture or cruel, inhuman, or degrading treatment of foreign prisoners held in custody by the United States;

"(7) the alleged crimes of a handful of individuals should not detract from the commendable sacrifices of over 300,000 members of the Armed Forces who have served, or who are serving, in Operation Iraqi Freedom; and

"(8) no detainee shall be subject to torture or cruel, inhuman, or degrading treatment or punishment that is prohibited by the Constitution, laws, or treaties of United States.

"(b) Policy.—It is the policy of the United States to—

"(1) ensure that no detainee shall be subject to torture or cruel, inhuman, or degrading treatment or punishment that is prohibited by the Constitution, laws, or treaties of the United States;

"(2) investigate and prosecute, as appropriate, all alleged instances of unlawful treatment of detainees in a manner consistent with the international obligations, laws, or policies of the United States;

"(3) ensure that all personnel of the United States Government understand their obligations in both wartime and peacetime to comply with the legal prohibitions against torture, cruel, inhuman, or degrading treatment of detainees in the custody of the United States;

"(4) ensure that, in a case in which there is doubt as to whether a detainee is entitled to prisoner of war status under the Geneva Conventions, such detainee receives the protections accorded to prisoners of war until the detainee's status is determined by a competent tribunal; and

"(5) expeditiously process and, if appropriate, prosecute detainees in the custody of the United States, including those in the custody of the United States Armed Forces at Guantanamo Bay, Cuba.

"(c) Detainees.—For purposes of this section, the term 'detainee' means a person in the custody or under the physical control of the United States as a result of armed conflict.

"SEC. 1092. ACTIONS TO PREVENT THE ABUSE OF DETAINEES.

"(a) Policies Required.—The Secretary of Defense shall ensure that policies are prescribed not later than 150 days after the date of the enactment of this Act [Oct. 28, 2004] regarding procedures for Department of Defense personnel and contractor personnel of the Department of Defense intended to ensure that members of the Armed Forces, and all persons acting on behalf of the Armed Forces or within facilities of the Armed Forces, treat persons detained by the United States Government in a humane manner consistent with the international obligations and laws of the United States and the policies set forth in section 1091(b).

"(b) Matters to Be Included.—In order to achieve the objective stated in subsection (a), the policies under that subsection shall specify, at a minimum, procedures for the following:

"(1) Ensuring that each commander of a Department of Defense detention facility or interrogation facility—

"(A) provides all assigned personnel with training, and documented acknowledgment of receiving training, regarding the law of war, including the Geneva Conventions; and

"(B) establishes standard operating procedures for the treatment of detainees.

"(2) Ensuring that each Department of Defense contract in which contract personnel in the course of their duties interact with individuals detained by the Department of Defense on behalf of the United States Government include a requirement that such contract personnel have received training, and documented acknowledgment of receiving training, regarding the international obligations and laws of the United States applicable to the detention of personnel.

"(3) Providing all detainees with information, in their own language, of the applicable protections afforded under the Geneva Conventions.

"(4) Conducting periodic unannounced and announced inspections of detention facilities in order to provide continued oversight of interrogation and detention operations.

"(5) Ensuring that, to the maximum extent practicable, detainees and detention facility personnel of a different gender are not alone together.

"(c) Secretary of Defense Certification.—The Secretary of Defense shall certify that all Federal employees and civilian contractors engaged in the handling or interrogation of individuals detained by the Department of Defense on behalf of the United States Government have fulfilled an annual training requirement on the law of war, the Geneva Conventions, and the obligations of the United States under international law."

Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism

Military Order of President of the United States, dated Nov. 13, 2001, 66 F.R. 57833, provided:

By the authority vested in me as President and as Commander in Chief of the Armed Forces of the United States by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force Joint Resolution (Public Law 107–40, 115 Stat. 224) [50 U.S.C. 1541 note] and sections 821 and 836 of title 10, United States Code, it is hereby ordered as follows:

Section 1. Findings.

(a) International terrorists, including members of al Qaida, have carried out attacks on United States diplomatic and military personnel and facilities abroad and on citizens and property within the United States on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces.

(b) In light of grave acts of terrorism and threats of terrorism, including the terrorist attacks on September 11, 2001, on the headquarters of the United States Department of Defense in the national capital region, on the World Trade Center in New York, and on civilian aircraft such as in Pennsylvania, I proclaimed a national emergency on September 14, 2001 (Proc. 7463, Declaration of National Emergency by Reason of Certain Terrorist Attacks [50 U.S.C. 1621 note]).

(c) Individuals acting alone and in concert involved in international terrorism possess both the capability and the intention to undertake further terrorist attacks against the United States that, if not detected and prevented, will cause mass deaths, mass injuries, and massive destruction of property, and may place at risk the continuity of the operations of the United States Government.

(d) The ability of the United States to protect the United States and its citizens, and to help its allies and other cooperating nations protect their nations and their citizens, from such further terrorist attacks depends in significant part upon using the United States Armed Forces to identify terrorists and those who support them, to disrupt their activities, and to eliminate their ability to conduct or support such attacks.

(e) To protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order pursuant to section 2 hereof to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals.

(f) Given the danger to the safety of the United States and the nature of international terrorism, and to the extent provided by and under this order, I find consistent with section 836 of title 10, United States Code, that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.

(g) Having fully considered the magnitude of the potential deaths, injuries, and property destruction that would result from potential acts of terrorism against the United States, and the probability that such acts will occur, I have determined that an extraordinary emergency exists for national defense purposes, that this emergency constitutes an urgent and compelling government interest, and that issuance of this order is necessary to meet the emergency.

Sec. 2. Definition and Policy.

(a) The term "individual subject to this order" shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:

(1) there is reason to believe that such individual, at the relevant times,

(i) is or was a member of the organization known as al Qaida;

(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or

(iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and

(2) it is in the interest of the United States that such individual be subject to this order.

(b) It is the policy of the United States that the Secretary of Defense shall take all necessary measures to ensure that any individual subject to this order is detained in accordance with section 3, and, if the individual is to be tried, that such individual is tried only in accordance with section 4.

(c) It is further the policy of the United States that any individual subject to this order who is not already under the control of the Secretary of Defense but who is under the control of any other officer or agent of the United States or any State shall, upon delivery of a copy of such written determination to such officer or agent, forthwith be placed under the control of the Secretary of Defense.

Sec. 3. Detention Authority of the Secretary of Defense. Any individual subject to this order shall be—

(a) detained at an appropriate location designated by the Secretary of Defense outside or within the United States;

(b) treated humanely, without any adverse distinction based on race, color, religion, gender, birth, wealth, or any similar criteria;

(c) afforded adequate food, drinking water, shelter, clothing, and medical treatment;

(d) allowed the free exercise of religion consistent with the requirements of such detention; and

(e) detained in accordance with such other conditions as the Secretary of Defense may prescribe.

Sec. 4. Authority of the Secretary of Defense Regarding Trials of Individuals Subject to this Order. [Superseded by Ex. Ord. No. 13425, set out as a note under section 948b of this title.]

Sec. 5. Obligation of Other Agencies to Assist the Secretary of Defense.

Departments, agencies, entities, and officers of the United States shall, to the maximum extent permitted by law, provide to the Secretary of Defense such assistance as he may request to implement this order.

Sec. 6. Additional Authorities of the Secretary of Defense.

(a) As a military function and in light of the findings in section 1, the Secretary of Defense shall issue such orders and regulations as may be necessary to carry out any of the provisions of this order.

(b) The Secretary of Defense may perform any of his functions or duties, and may exercise any of the powers provided to him under this order (other than under section 4(c)(8) hereof) in accordance with section 113(d) of title 10, United States Code.

Sec. 7. Relationship to Other Law and Forums.

(a) Nothing in this order shall be construed to—

(1) authorize the disclosure of state secrets to any person not otherwise authorized to have access to them;

(2) limit the authority of the President as Commander in Chief of the Armed Forces or the power of the President to grant reprieves and pardons; or

(3) limit the lawful authority of the Secretary of Defense, any military commander, or any other officer or agent of the United States or of any State to detain or try any person who is not an individual subject to this order.

(b) With respect to any individual subject to this order—

(1) military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and

(2) the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal.

(c) This order is not intended to and does not create any right, benefit, or privilege, substantive or procedural, enforceable at law or equity by any party, against the United States, its departments, agencies, or other entities, its officers or employees, or any other person.

(d) For purposes of this order, the term "State" includes any State, district, territory, or possession of the United States.

(e) I reserve the authority to direct the Secretary of Defense, at any time hereafter, to transfer to a governmental authority control of any individual subject to this order. Nothing in this order shall be construed to limit the authority of any such governmental authority to prosecute any individual for whom control is transferred.

Sec. 8. Publication.

This order shall be published in the Federal Register.

George W. Bush.      

[For supersedure of provisions of Military Order of President of the United States, dated Nov. 13, 2001, set out above, related to trial by military commission, see Ex. Ord. No. 13425, Feb. 14, 2007, 72 F.R. 7737, set out as a note under section 948b of this title.]

Ex. Ord. No. 13492. Review and Disposition of Individuals Detained At the Guantanamo Bay Naval Base and Closure of Detention Facilities

Ex. Ord. No. 13492, Jan. 22, 2009, 74 F.R. 4897, as amended by Ex. Ord. No. 13823, §2(a), Jan. 30, 2018, 83 F.R. 4831, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to effect the appropriate disposition of individuals currently detained by the Department of Defense at the Guantanamo Bay Naval Base (Guantanamo) and promptly to close detention facilities at Guantanamo, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows:

Section 1. Definitions. As used in this order:

(a) "Common Article 3" means Article 3 of each of the Geneva Conventions.

(b) "Geneva Conventions" means:

(i) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949 (6 UST 3114);

(ii) the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949 (6 UST 3217);

(iii) the Convention Relative to the Treatment of Prisoners of War, August 12, 1949 (6 UST 3316); and

(iv) the Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949 (6 UST 3516).

(c) "Individuals currently detained at Guantanamo" and "individuals covered by this order" mean individuals currently detained by the Department of Defense in facilities at the Guantanamo Bay Naval Base whom the Department of Defense has ever determined to be, or treated as, enemy combatants.

Sec. 2. Findings.

(a) Over the past 7 years, approximately 800 individuals whom the Department of Defense has ever determined to be, or treated as, enemy combatants have been detained at Guantanamo. The Federal Government has moved more than 500 such detainees from Guantanamo, either by returning them to their home country or by releasing or transferring them to a third country. The Department of Defense has determined that a number of the individuals currently detained at Guantanamo are eligible for such transfer or release.

(b) Some individuals currently detained at Guantanamo have been there for more than 6 years, and most have been detained for at least 4 years. In view of the significant concerns raised by these detentions, both within the United States and internationally, prompt and appropriate disposition of the individuals currently detained at Guantanamo and closure of the facilities in which they are detained would further the national security and foreign policy interests of the United States and the interests of justice. Merely closing the facilities without promptly determining the appropriate disposition of the individuals detained would not adequately serve those interests. To the extent practicable, the prompt and appropriate disposition of the individuals detained at Guantanamo should precede the closure of the detention facilities at Guantanamo.

(c) The individuals currently detained at Guantanamo have the constitutional privilege of the writ of habeas corpus. Most of those individuals have filed petitions for a writ of habeas corpus in Federal court challenging the lawfulness of their detention.

(d) It is in the interests of the United States that the executive branch undertake a prompt and thorough review of the factual and legal bases for the continued detention of all individuals currently held at Guantanamo, and of whether their continued detention is in the national security and foreign policy interests of the United States and in the interests of justice. The unusual circumstances associated with detentions at Guantanamo require a comprehensive interagency review.

(e) New diplomatic efforts may result in an appropriate disposition of a substantial number of individuals currently detained at Guantanamo.

(f) Some individuals currently detained at Guantanamo may have committed offenses for which they should be prosecuted. It is in the interests of the United States to review whether and how any such individuals can and should be prosecuted.

(g) It is in the interests of the United States that the executive branch conduct a prompt and thorough review of the circumstances of the individuals currently detained at Guantanamo who have been charged with offenses before military commissions pursuant to the Military Commissions Act of 2006, Public Law 109–366, as well as of the military commission process more generally.

Sec. 3. [Revoked by Ex. Ord. No. 13823, §2(a), Jan. 30, 2018, 83 F.R. 4831, set out below.]

Sec. 4. Immediate Review of All Guantanamo Detentions.

(a) Scope and Timing of Review. A review of the status of each individual currently detained at Guantanamo (Review) shall commence immediately.

(b) Review Participants. The Review shall be conducted with the full cooperation and participation of the following officials:

(1) the Attorney General, who shall coordinate the Review;

(2) the Secretary of Defense;

(3) the Secretary of State;

(4) the Secretary of Homeland Security;

(5) the Director of National Intelligence;

(6) the Chairman of the Joint Chiefs of Staff; and

(7) other officers or full-time or permanent part-time employees of the United States, including employees with intelligence, counterterrorism, military, and legal expertise, as determined by the Attorney General, with the concurrence of the head of the department or agency concerned.

(c) Operation of Review. The duties of the Review participants shall include the following:

(1) Consolidation of Detainee Information. The Attorney General shall, to the extent reasonably practicable, and in coordination with the other Review participants, assemble all information in the possession of the Federal Government that pertains to any individual currently detained at Guantanamo and that is relevant to determining the proper disposition of any such individual. All executive branch departments and agencies shall promptly comply with any request of the Attorney General to provide information in their possession or control pertaining to any such individual. The Attorney General may seek further information relevant to the Review from any source.

(2) Determination of Transfer. The Review shall determine, on a rolling basis and as promptly as possible with respect to the individuals currently detained at Guantanamo, whether it is possible to transfer or release the individuals consistent with the national security and foreign policy interests of the United States and, if so, whether and how the Secretary of Defense may effect their transfer or release. The Secretary of Defense, the Secretary of State, and, as appropriate, other Review participants shall work to effect promptly the release or transfer of all individuals for whom release or transfer is possible.

(3) Determination of Prosecution. In accordance with United States law, the cases of individuals detained at Guantanamo not approved for release or transfer shall be evaluated to determine whether the Federal Government should seek to prosecute the detained individuals for any offenses they may have committed, including whether it is feasible to prosecute such individuals before a court established pursuant to Article III of the United States Constitution, and the Review participants shall in turn take the necessary and appropriate steps based on such determinations.

(4) Determination of Other Disposition. With respect to any individuals currently detained at Guantanamo whose disposition is not achieved under paragraphs (2) or (3) of this subsection, the Review shall select lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice, for the disposition of such individuals. The appropriate authorities shall promptly implement such dispositions.

(5) Consideration of Issues Relating to Transfer to the United States. The Review shall identify and consider legal, logistical, and security issues relating to the potential transfer of individuals currently detained at Guantanamo to facilities within the United States, and the Review participants shall work with the Congress on any legislation that may be appropriate.

Sec. 5. Diplomatic Efforts. The Secretary of State shall expeditiously pursue and direct such negotiations and diplomatic efforts with foreign governments as are necessary and appropriate to implement this order.

Sec. 6. Humane Standards of Confinement. No individual currently detained at Guantanamo shall be held in the custody or under the effective control of any officer, employee, or other agent of the United States Government, or at a facility owned, operated, or controlled by a department or agency of the United States, except in conformity with all applicable laws governing the conditions of such confinement, including Common Article 3 of the Geneva Conventions. The Secretary of Defense shall immediately undertake a review of the conditions of detention at Guantanamo to ensure full compliance with this directive. Such review shall be completed within 30 days and any necessary corrections shall be implemented immediately thereafter.

Sec. 7. Military Commissions. The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order, no charges are sworn, or referred to a military commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted.

Sec. 8. General Provisions.

(a) Nothing in this order shall prejudice the authority of the Secretary of Defense to determine the disposition of any detainees not covered by this order.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Ex. Ord. No. 13567. Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pursuant to the Authorization for Use of Military Force

Ex. Ord. No. 13567, Mar. 7, 2011, 76 F.R. 13277, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force of September 2001 (AUMF), Public Law 107–40, and in order to ensure that military detention of individuals now held at the U.S. Naval Station, Guantánamo Bay, Cuba (Guantánamo), who were subject to the interagency review under section 4 of Executive Order 13492 of January 22, 2009, continues to be carefully evaluated and justified, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows:

Section 1. Scope and Purpose. (a) The periodic review described in section 3 of this order applies only to those detainees held at Guantánamo on the date of this order, whom the interagency review established by Executive Order 13492 has (i) designated for continued law of war detention; or (ii) referred for prosecution, except for those detainees against whom charges are pending or a judgment of conviction has been entered.

(b) This order is intended solely to establish, as a discretionary matter, a process to review on a periodic basis the executive branch's continued, discretionary exercise of existing detention authority in individual cases. It does not create any additional or separate source of detention authority, and it does not affect the scope of detention authority under existing law. Detainees at Guantánamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention.

(c) In the event detainees covered by this order are transferred from Guantánamo to another U.S. detention facility where they remain in law of war detention, this order shall continue to apply to them.

Sec. 2. Standard for Continued Detention. Continued law of war detention is warranted for a detainee subject to the periodic review in section 3 of this order if it is necessary to protect against a significant threat to the security of the United States.

Sec. 3. Periodic Review. The Secretary of Defense shall coordinate a process of periodic review of continued law of war detention for each detainee described in section 1(a) of this order. In consultation with the Attorney General, the Secretary of Defense shall issue implementing guidelines governing the process, consistent with the following requirements:

(a) Initial Review. For each detainee, an initial review shall commence as soon as possible but no later than 1 year from the date of this order. The initial review will consist of a hearing before a Periodic Review Board (PRB). The review and hearing shall follow a process that includes the following requirements:

(1) Each detainee shall be provided, in writing and in a language the detainee understands, with advance notice of the PRB review and an unclassified summary of the factors and information the PRB will consider in evaluating whether the detainee meets the standard set forth in section 2 of this order. The written summary shall be sufficiently comprehensive to provide adequate notice to the detainee of the reasons for continued detention.

(2) The detainee shall be assisted in proceedings before the PRB by a Government-provided personal representative (representative) who possesses the security clearances necessary for access to the information described in subsection (a)(4) of this section. The representative shall advocate on behalf of the detainee before the PRB and shall be responsible for challenging the Government's information and introducing information on behalf of the detainee. In addition to the representative, the detainee may be assisted in proceedings before the PRB by private counsel, at no expense to the Government.

(3) The detainee shall be permitted to (i) present to the PRB a written or oral statement; (ii) introduce relevant information, including written declarations; (iii) answer any questions posed by the PRB; and (iv) call witnesses who are reasonably available and willing to provide information that is relevant and material to the standard set forth in section 2 of this order.

(4) The Secretary of Defense, in coordination with other relevant Government agencies, shall compile and provide to the PRB all information in the detainee disposition recommendations produced by the Task Force established under Executive Order 13492 that is relevant to the determination whether the standard in section 2 of this order has been met and on which the Government seeks to rely for that determination. In addition, the Secretary of Defense, in coordination with other relevant Government agencies, shall compile any additional information relevant to that determination, and on which the Government seeks to rely for that determination, that has become available since the conclusion of the Executive Order 13492 review. All mitigating information relevant to that determination must be provided to the PRB.

(5) The information provided in subsection (a)(4) of this section shall be provided to the detainee's representative. In exceptional circumstances where it is necessary to protect national security, including intelligence sources and methods, the PRB may determine that the representative must receive a sufficient substitute or summary, rather than the underlying information. If the detainee is represented by private counsel, the information provided in subsection (a)(4) of this section shall be provided to such counsel unless the Government determines that the need to protect national security, including intelligence sources and methods, or law enforcement or privilege concerns, requires the Government to provide counsel with a sufficient substitute or summary of the information. A sufficient substitute or summary must provide a meaningful opportunity to assist the detainee during the review process.

(6) The PRB shall conduct a hearing to consider the information described in subsection (a)(4) of this section, and other relevant information provided by the detainee or the detainee's representative or counsel, to determine whether the standard in section 2 of this order is met. The PRB shall consider the reliability of any information provided to it in making its determination.

(7) The PRB shall make a prompt determination, by consensus and in writing, as to whether the detainee's continued detention is warranted under the standard in section 2 of this order. If the PRB determines that the standard is not met, the PRB shall also recommend any conditions that relate to the detainee's transfer. The PRB shall provide a written summary of any final determination in unclassified form to the detainee, in a language the detainee understands, within 30 days of the determination when practicable.

(8) The Secretary of Defense shall establish a secretariat to administer the PRB review and hearing process. The Director of National Intelligence shall assist in preparing the unclassified notice and the substitutes or summaries described above. Other executive departments and agencies shall assist in the process of providing the PRB with information required for the review processes detailed in this order.

(b) Subsequent Full Review. The continued detention of each detainee shall be subject to subsequent full reviews and hearings by the PRB on a triennial basis. Each subsequent review shall employ the procedures set forth in section 3(a) of this order.

(c) File Reviews. The continued detention of each detainee shall also be subject to a file review every 6 months in the intervening years between full reviews. This file review will be conducted by the PRB and shall consist of a review of any relevant new information related to the detainee compiled by the Secretary of Defense, in coordination with other relevant agencies, since the last review and, as appropriate, information considered during any prior PRB review. The detainee shall be permitted to make a written submission in connection with each file review. If, during the file review, a significant question is raised as to whether the detainee's continued detention is warranted under the standard in section 2 of this order, the PRB will promptly convene a full review pursuant to the standards in section 3(a) of this order.

(d) Review of PRB Determinations. The Review Committee (Committee), as defined in section 9(d) of this order, shall conduct a review if (i) a member of the Committee seeks review of a PRB determination within 30 days of that determination; or (ii) consensus within the PRB cannot be reached.

Sec. 4. Effect of Determination to Transfer. (a) If a final determination is made that a detainee does not meet the standard in section 2 of this order, the Secretaries of State and Defense shall be responsible for ensuring that vigorous efforts are undertaken to identify a suitable transfer location for any such detainee, outside of the United States, consistent with the national security and foreign policy interests of the United States and the commitment set forth in section 2242(a) of the Foreign Affairs Reform and Restructuring Act of 1998 (Public Law 105–277).

(b) The Secretary of State, in consultation with the Secretary of Defense, shall be responsible for obtaining appropriate security and humane treatment assurances regarding any detainee to be transferred to another country, and for determining, after consultation with members of the Committee, that it is appropriate to proceed with the transfer.

(c) The Secretary of State shall evaluate humane treatment assurances in all cases, consistent with the recommendations of the Special Task Force on Interrogation and Transfer Policies established by Executive Order 13491 of January 22, 2009.

Sec. 5. Annual Committee Review. (a) The Committee shall conduct an annual review of sufficiency and efficacy of transfer efforts, including:

(1) the status of transfer efforts for any detainee who has been subject to the periodic review under section 3 of this order, whose continued detention has been determined not to be warranted, and who has not been transferred more than 6 months after the date of such determination;

(2) the status of transfer efforts for any detainee whose petition for a writ of habeas corpus has been granted by a U.S. Federal court with no pending appeal and who has not been transferred;

(3) the status of transfer efforts for any detainee who has been designated for transfer or conditional detention by the Executive Order 13492 review and who has not been transferred; and

(4) the security and other conditions in the countries to which detainees might be transferred, including a review of any suspension of transfers to a particular country, in order to determine whether further steps to facilitate transfers are appropriate or to provide a recommendation to the President regarding whether continuation of any such suspension is warranted.

(b) After completion of the initial reviews under section 3(a) of this order, and at least once every 4 years thereafter, the Committee shall review whether a continued law of war detention policy remains consistent with the interests of the United States, including national security interests.

Sec. 6. Continuing Obligation of the Departments of Justice and Defense to Assess Feasibility of Prosecution. As to each detainee whom the interagency review established by Executive Order 13492 has designated for continued law of war detention, the Attorney General and the Secretary of Defense shall continue to assess whether prosecution of the detainee is feasible and in the national security interests of the United States, and shall refer detainees for prosecution, as appropriate.

Sec. 7. Obligation of Other Departments and Agencies to Assist the Secretary of Defense. All departments, agencies, entities, and officers of the United States, to the maximum extent permitted by law, shall provide the Secretary of Defense such assistance as may be requested to implement this order.

Sec. 8. Legality of Detention. The process established under this order does not address the legality of any detainee's law of war detention. If, at any time during the periodic review process established in this order, material information calls into question the legality of detention, the matter will be referred immediately to the Secretary of Defense and the Attorney General for appropriate action.

Sec. 9. Definitions. (a) "Law of War Detention" means: detention authorized by the Congress under the AUMF, as informed by the laws of war.

(b) "Periodic Review Board" means: a board composed of senior officials tasked with fulfilling the functions described in section 3 of this order, one appointed by each of the following departments and offices: the Departments of State, Defense, Justice, and Homeland Security, as well as the Offices of the Director of National Intelligence and the Chairman of the Joint Chiefs of Staff.

(c) "Conditional Detention" means: the status of those detainees designated by the Executive Order 13492 review as eligible for transfer if one of the following conditions is satisfied: (1) the security situation improves in Yemen; (2) an appropriate rehabilitation program becomes available; or (3) an appropriate third-country resettlement option becomes available.

(d) "Review Committee" means: a committee composed of the Secretary of State, the Secretary of Defense, the Attorney General, the Secretary of Homeland Security, the Director of National Intelligence, and the Chairman of the Joint Chiefs of Staff.

Sec. 10. General Provisions. (a) Nothing in this order shall prejudice the authority of the Secretary of Defense or any other official to determine the disposition of any detainee not covered by this order.

(b) This order shall be implemented subject to the availability of necessary appropriations and consistent with applicable law including: the Convention Against Torture; Common Article 3 of the Geneva Conventions; the Detainee Treatment Act of 2005; and other laws relating to the transfer, treatment, and interrogation of individuals detained in an armed conflict.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(d) Nothing in this order, and no determination made under this order, shall be construed as grounds for release of detainees covered by this order into the United States.

Barack Obama.      

Ex. Ord. No. 13823. Protecting America Through Lawful Detention of Terrorists

Ex. Ord. No. 13823, Jan. 30, 2018, 83 F.R. 4831, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Findings. (a) Consistent with long-standing law of war principles and applicable law, the United States may detain certain persons captured in connection with an armed conflict for the duration of the conflict.

(b) Following the terrorist attacks of September 11, 2001, the 2001 Authorization for Use of Military Force (AUMF) and other authorities authorized the United States to detain certain persons who were a part of or substantially supported al-Qa'ida, the Taliban, or associated forces engaged in hostilities against the United States or its coalition partners. Today, the United States remains engaged in an armed conflict with al-Qa'ida, the Taliban, and associated forces, including with the Islamic State of Iraq and Syria.

(c) The detention operations at the U.S. Naval Station Guantánamo Bay are legal, safe, humane, and conducted consistent with United States and international law.

(d) Those operations are continuing given that a number of the remaining individuals at the detention facility are being prosecuted in military commissions, while others must be detained to protect against continuing, significant threats to the security of the United States, as determined by periodic reviews.

(e) Given that some of the current detainee population represent the most difficult and dangerous cases from among those historically detained at the facility, there is significant reason for concern regarding their reengagement in hostilities should they have the opportunity.

Sec. 2. Status of Detention Facilities at U.S. Naval Station Guantánamo Bay. (a) Section 3 of Executive Order 13492 of January 22, 2009 (Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities) [formerly set out above], ordering the closure of detention facilities at U.S. Naval Station Guantánamo Bay, is hereby revoked.

(b) Detention operations at U.S. Naval Station Guantánamo Bay shall continue to be conducted consistent with all applicable United States and international law, including the Detainee Treatment Act of 2005 [see Short Title note set out under section 2000dd of Title 42, The Public Health and Welfare].

(c) In addition, the United States may transport additional detainees to U.S. Naval Station Guantánamo Bay when lawful and necessary to protect the Nation.

(d) Within 90 days of the date of this order, the Secretary of Defense shall, in consultation with the Secretary of State, the Attorney General, the Secretary of Homeland Security, the Director of National Intelligence, and the heads of any other appropriate executive departments and agencies as determined by the Secretary of Defense, recommend policies to the President regarding the disposition of individuals captured in connection with an armed conflict, including policies governing transfer of individuals to U.S. Naval Station Guantánamo Bay.

(e) Unless charged in or subject to a judgment of conviction by a military commission, any detainees transferred to U.S. Naval Station Guantánamo Bay after the date of this order shall be subject to the procedures for periodic review established in Executive Order 13567 of March 7, 2011 (Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pursuant to the Authorization for Use of Military Force) [set out above], to determine whether continued law of war detention is necessary to protect against a significant threat to the security of the United States.

Sec. 3. Rules of Construction. (a) Nothing in this order shall prevent the Secretary of Defense from transferring any individual away from the U.S. Naval Station Guantánamo Bay when appropriate, including to effectuate an order affecting the disposition of that individual issued by a court or competent tribunal of the United States having lawful jurisdiction.

(b) Nothing in this order shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful permanent residents of the United States, or any persons who are captured or arrested in the United States.

(c) Nothing in this order shall prevent the Attorney General from, as appropriate, investigating, detaining, and prosecuting a terrorist subject to the criminal laws and jurisdiction of the United States.

Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Donald J. Trump.      

Ex. Ord. No. 13825. 2018 Amendments to the Manual for Courts-Martial, United States

Ex. Ord. No. 13825, Mar. 1, 2018, 83 F.R. 9889, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including chapter 47 of title 10, United States Code (Uniform Code of Military Justice (UCMJ), 10 U.S.C. 801–946), and in order to prescribe amendments to the Manual for Courts-Martial, United States, prescribed by Executive Order 12473 of April 13, 1984, as amended, it is hereby ordered as follows:

Section 1. Part II, Part III, and Part IV of the Manual for Courts-Martial, United States, are amended as described in Annex 1, which is attached to and made a part of this order [not set out in the Code].

Sec. 2. The amendments in Annex 1 shall take effect on the date of this order, subject to the following:

(a) Nothing in Annex 1 shall be construed to make punishable any act done or omitted prior to the date of this order that was not punishable when done or omitted.

(b) Nothing in Annex 1 shall be construed to invalidate the prosecution of any offense committed before the date of this order. The maximum punishment for an offense committed before the date of this order shall not exceed the maximum punishment in effect at the time of the commission of such offense.

(c) Nothing in Annex 1 shall be construed to invalidate any nonjudicial punishment proceeding, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action begun prior to the date of this order, and any such nonjudicial punishment proceeding, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action shall proceed in the same manner and with the same effect as if the amendments in Annex 1 had not been prescribed.

Sec. 3. (a) Pursuant to section 5542 of the Military Justice Act of 2016 (MJA) [Pub. L. 114–328, set out as an Effective Date of 2016 Amendment note above], division E of the National Defense Authorization Act for Fiscal Year 2017, Public Law 114–328, 130 Stat. 2000, 2967 (2016), except as otherwise provided by the MJA or this order, the MJA shall take effect on January 1, 2019.

(b) Nothing in the MJA shall be construed to make punishable any act done or omitted prior to January 1, 2019, that was not punishable when done or omitted.

(c) Nothing in title LX of the MJA shall be construed to invalidate the prosecution of any offense committed before January 1, 2019. The maximum punishment for an offense committed before January 1, 2019, shall not exceed the maximum punishment in effect at the time of the commission of such offense.

(d) Nothing in the MJA shall be construed to invalidate any nonjudicial punishment proceeding, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action begun prior to January 1, 2019. Except as otherwise provided in this order, the MJA shall not apply in any case in which charges are referred to trial by court-martial before January 1, 2019. Except as otherwise provided in this order, proceedings in any such case shall be held in the same manner and with the same effect as if the MJA had not been enacted.

Sec. 4. The Manual for Courts-Martial, United States, as amended by section 1 of this order, is amended as described in Annex 2, which is attached to and made a part of this order [not set out in the Code].

Sec. 5. The amendments in Annex 2, including Appendix 12A, shall take effect on January 1, 2019, subject to the following:

(a) Nothing in Annex 2 shall be construed to make punishable any act done or omitted prior to January 1, 2019, that was not punishable when done or omitted.

(b) Nothing in section 4 of Annex 2 shall be construed to invalidate the prosecution of any offense committed before January 1, 2019. The maximum punishment for an offense committed before January 1, 2019, shall not exceed the maximum punishment in effect at the time of the commission of such offense.

(c) Nothing in Annex 2 shall be construed to invalidate any nonjudicial punishment proceeding, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action begun prior to January 1, 2019. Except as otherwise provided in this order, the amendments in Annex 2 shall not apply in any case in which charges are referred to trial by court-martial before January 1, 2019. Except as otherwise provided in this order, proceedings in any such case shall be held in the same manner and with the same effect as if such amendments had not been prescribed.

Sec. 6. (a) The amendments to Articles 2, 56(d), 58a, and 63 of the UCMJ [10 U.S.C. 802, 856(d), 858a, 863] enacted by sections 5102, 5301, 5303, and 5327 of the MJA apply only to cases in which all specifications allege offenses committed on or after January 1, 2019.

(b) If the accused is found guilty of a specification alleging the commission of one or more offenses before January 1, 2019, Article 60 of the UCMJ [10 U.S.C. 860], as in effect on the date of the earliest offense of which the accused was found guilty, shall apply to the convening authority, in addition to the suspending authority in Article 60a(c) [10 U.S.C. 860a(c)] as enacted by the MJA, to the extent that Article 60:

(1) requires action by the convening authority on the sentence;

(2) permits action by the convening authority on findings;

(3) authorizes the convening authority to modify the findings and sentence of a court-martial, dismiss any charge or specification by setting aside a finding of guilty thereto, or 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;

(4) authorizes the convening authority to order a proceeding in revision or a rehearing; or

(5) authorizes the convening authority to approve, disapprove, commute, or suspend a sentence in whole or in part.

Sec. 7. The amendment to Article 15 of the UCMJ [10 U.S.C. 815] enacted by section 5141 of the MJA shall apply to any nonjudicial punishment imposed on or after January 1, 2019.

Sec. 8. The amendments to Articles 32 and 34 of the UCMJ [10 U.S.C. 832, 834] enacted by sections 5203 and 5205 of the MJA apply with respect to preliminary hearings conducted and advice given on or after January 1, 2019.

Sec. 9. The amendments to Article 79 of the UCMJ [10 U.S.C. 879] enacted by section 5402 of the MJA and the amendments to Appendix 12A to the Manual for Courts-Martial, United States, made by this order apply only to offenses committed on or after January 1, 2019.

Sec. 10. Except as provided by Rule for Courts-Martial 902A, as promulgated by Annex 2, any change to sentencing procedures:

(a) made by Articles 16(c)(2), 19(b), 25(d)(2) and (3), 39(a)(4), 53, 53a, or 56(c) of the UCMJ [10 U.S.C. 816(c)(2), 819(b), 825(d)(2) and (3), 839(a)(4), 853, 853a, 856(c)], as enacted by sections 5161, 5163, 5182, 5222, 5236, 5237, and 5301 of the MJA; or

(b) included in Annex 2 in rules implementing those articles, applies only to cases in which all specifications allege offenses committed on or after January 1, 2019.

Sec. 11. The amendments to Article 146 of the UCMJ [10 U.S.C. 946] enacted by section 5521 of the MJA and the new Article 146a [10 U.S.C. 946a] enacted by section 5522 of the MJA shall take effect on the day after the report for fiscal year 2017 required by Article 146(c) of the UCMJ (as in effect before the MJA's amendments) is submitted in accordance with Article 146(c)(1), but in no event later than December 1, 2018.

Sec. 12. In accordance with Article 33 of the UCMJ [10 U.S.C. 833], as amended by section 5204 of the MJA, the Secretary of Defense, in consultation with the Secretary of Homeland Security, will issue nonbinding guidance regarding factors that commanders, convening authorities, staff judge advocates, and judge advocates should take into account when exercising their duties with respect to the disposition of charges and specifications in the interest of justice and discipline under Articles 30 and 34 of the UCMJ [10 U.S.C. 830, 834]. That guidance will take into account, with appropriate consideration of military requirements, the principles contained in official guidance of the Attorney General to attorneys for the Federal Government with respect to the disposition of Federal criminal cases in accordance with the principle of fair and evenhanded administration of Federal criminal law.

Donald J. Trump.      

§802. Art. 2. Persons subject to this chapter

(a) The following persons are subject to this chapter:

(1) Members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment; volunteers from the time of their muster or acceptance into the armed forces; inductees from the time of their actual induction into the armed forces; and other persons lawfully called or ordered into, or to duty in or for training in, the armed forces, from the dates when they are required by the terms of the call or order to obey it.

(2) Cadets, aviation cadets, and midshipmen.

(3)(A) While on inactive-duty training and during any of the periods specified in subparagraph (B)—

(i) members of a reserve component; and

(ii) members of the Army National Guard of the United States or the Air National Guard of the United States, but only when in Federal service.


(B) The periods referred to in subparagraph (A) are the following:

(i) Travel to and from the inactive-duty training site of the member, pursuant to orders or regulations.

(ii) Intervals between consecutive periods of inactive-duty training on the same day, pursuant to orders or regulations.

(iii) Intervals between inactive-duty training on consecutive days, pursuant to orders or regulations.


(4) Retired members of a regular component of the armed forces who are entitled to pay.

(5) Retired members of a reserve component who are receiving hospitalization from an armed force.

(6) Members of the Fleet Reserve and Fleet Marine Corps Reserve.

(7) Persons in custody of the armed forces serving a sentence imposed by a court-martial.

(8) Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces.

(9) Prisoners of war in custody of the armed forces.

(10) In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.

(11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.

(12) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons within an area leased by or otherwise reserved or acquired for the use of the United States which is under the control of the Secretary concerned and which is outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.

(13) Individuals belonging to one of the eight categories enumerated in Article 4 of the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316), who violate the law of war.


(b) The voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the armed forces shall be valid for purposes of jurisdiction under subsection (a) and a change of status from civilian to member of the armed forces shall be effective upon the taking of the oath of enlistment.

(c) Notwithstanding any other provision of law, a person serving with an armed force who—

(1) submitted voluntarily to military authority;

(2) met the mental competency and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority;

(3) received military pay or allowances; and

(4) performed military duties;


is subject to this chapter until such person's active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned.

(d)(1) A member of a reserve component who is not on active duty and who is made the subject of proceedings under section 815 (article 15) or section 830 (article 30) with respect to an offense against this chapter may be ordered to active duty involuntarily for the purpose of—

(A) a preliminary hearing under section 832 of this title (article 32);

(B) trial by court-martial; or

(C) nonjudicial punishment under section 815 of this title (article 15).


(2) A member of a reserve component may not be ordered to active duty under paragraph (1) except with respect to an offense committed while the member was—

(A) on active duty; or

(B) on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service.


(3) Authority to order a member to active duty under paragraph (1) shall be exercised under regulations prescribed by the President.

(4) A member may be ordered to active duty under paragraph (1) only by a person empowered to convene general courts-martial in a regular component of the armed forces.

(5) A member ordered to active duty under paragraph (1), unless the order to active duty was approved by the Secretary concerned, may not—

(A) be sentenced to confinement; or

(B) be required to serve a punishment consisting of any restriction on liberty during a period other than a period of inactive-duty training or active duty (other than active duty ordered under paragraph (1)).


(e) The provisions of this section are subject to section 876b(d)(2) of this title (article 76b(d)(2)).

(Aug. 10, 1956, ch. 1041, 70A Stat. 37; Pub. L. 86–70, §6(b), June 25, 1959, 73 Stat. 142; Pub. L. 86–624, §4(b), July 12, 1960, 74 Stat. 411; Pub. L. 87–651, title I, §104, Sept. 7, 1962, 76 Stat. 508; Pub. L. 89–718, §8(a), Nov. 2, 1966, 80 Stat. 1117; Pub. L. 96–107, title VIII, §801(a), Nov. 9, 1979, 93 Stat. 810; Pub. L. 96–513, title V, §511(24), Dec. 12, 1980, 94 Stat. 2922; Pub. L. 98–209, §13(a), Dec. 6, 1983, 97 Stat. 1408; Pub. L. 99–661, div. A, title VIII, §804(a), Nov. 14, 1986, 100 Stat. 3906; Pub. L. 100–456, div. A, title XII, §1234(a)(1), Sept. 29, 1988, 102 Stat. 2059; Pub. L. 104–106, div. A, title XI, §1133(b), Feb. 10, 1996, 110 Stat. 466; Pub. L. 109–364, div. A, title V, §552, Oct. 17, 2006, 120 Stat. 2217; Pub. L. 109–366, §4(a)(1), Oct. 17, 2006, 120 Stat. 2631; Pub. L. 111–84, div. A, title XVIII, §1803(a)(1), Oct. 28, 2009, 123 Stat. 2612; Pub. L. 113–66, div. A, title XVII, §1702(c)(3)(A), Dec. 26, 2013, 127 Stat. 957; Pub. L. 114–328, div. E, title LI, §5102, Dec. 23, 2016, 130 Stat. 2894.)

Historical and Revision Notes
1956 Act
Revised sectionSource (U.S. Code)Source (Statutes at Large)
802 50:552. May 5, 1950, ch. 169, §1 (Art. 2), 64 Stat. 109.

In clause (1), the words "Members of" are substituted for the words "All persons belonging to". The words "all" and "the same" are omitted as surplusage. The word "when" is inserted after the word "dates".

In clauses (1) and (8), the words "of the United States" are omitted as surplusage.

In clause (3), the words "Members of a reserve component" are substituted for the words "Reserve personnel". The word "orders" in the last clause is omitted as surplusage.

In clause (4), the word "receive" is omitted as surplusage.

In clauses (4) and (5), the word "members" is substituted for the word "personnel".

In clause (8), the word "members" is substituted for the word "personnel".

In clauses (11) and (12), the word "outside" is substituted for the word "without" wherever it occurs. The words "the continental limits of" are omitted, since section 101(1) of this title defines the United States to include the States and the District of Columbia. The words "the provision of", "all", and "territories" are omitted as surplusage.

In clause (12), the words "Secretary concerned" are substituted for the words "Secretary of a Department".

1962 Act
Revised sectionSource (U.S. Code)Source (Statutes at Large)
802(11), (12) 50:552(11) and (12). Aug. 1, 1956, ch. 852, §23, 70 Stat. 911.

The Act of August 1, 1956, was enacted during the pendency of the codification bill.

Constitutionality

For information regarding constitutionality of certain provisions of section 1 (Art. 2) of act May 5, 1950, ch. 169, cited as the source of this section, see Congressional Research Service, The Constitution of the United States of America: Analysis and Interpretation, Appendix 1, Acts of Congress Held Unconstitutional in Whole or in Part by the Supreme Court of the United States.

Amendments

2016—Subsec. (a)(3). Pub. L. 114–328 amended par. (3) generally. Prior to amendment, par. (3) read as follows: "Members of a reserve component while on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service."

2013—Subsec. (d)(1)(A). Pub. L. 113–66 substituted "a preliminary hearing under section 832" for "investigation under section 832".

2009—Subsec. (a)(13). Pub. L. 111–84 amended par. (13) generally. Prior to amendment, par. (13) read as follows: "Lawful enemy combatants (as that term is defined in section 948a(2) of this title) who violate the law of war."

2006—Subsec. (a)(10). Pub. L. 109–364 substituted "declared war or a contingency operation" for "war".

Subsec. (a)(13). Pub. L. 109–366 added par. (13).

1996—Subsec. (e). Pub. L. 104–106 added subsec. (e).

1988—Subsec. (a)(11), (12). Pub. L. 100–456 struck out "the Canal Zone," before "the Commonwealth".

1986—Subsec. (a)(3). Pub. L. 99–661, §804(a)(1), substituted "on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service" for "they are on inactive duty training authorized by written orders which are voluntarily accepted by them and which specify that they are subject to this chapter".

Subsec. (d). Pub. L. 99–661, §804(a)(2), added subsec. (d).

1983—Subsec. (a)(11), (12). Pub. L. 98–209, §13(a)(1), substituted "outside the Canal Zone" for "outside the following: the Canal Zone" and inserted "the Commonwealth of" before "Puerto Rico".

Subsec. (b). Pub. L. 98–209, §13(a)(2), struck out "of this section" after "subsection (a)".

1980—Subsec. (a)(8). Pub. L. 96–513 substituted "National Oceanic and Atmospheric Administration" for "Environmental Science Services Administration".

1979Pub. L. 96–107 designated existing provisions as subsec. (a) and added subsecs. (b) and (c).

1966Pub. L. 89–718 substituted "Environmental Science Services Administration" for "Coast and Geodetic Survey" in cl. (8).

1962Pub. L. 87–651 inserted "Guam," after "Puerto Rico," in cls. (11) and (12).

1960Pub. L. 86–624 struck out "the main group of the Hawaiian Islands," before "Puerto Rico" in cls. (11) and (12).

1959Pub. L. 86–70 struck out "that part of Alaska east of longitude 172 degrees west," before "the Canal Zone" in cls. (11) and (12).

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 2013 Amendment

Pub. L. 113–66, div. A, title XVII, §1702(d)(1), Dec. 26, 2013, 127 Stat. 958, as amended by Pub. L. 113–291, div. A, title V, §531(g)(1), Dec. 19, 2014, 128 Stat. 3365, provided that: "The amendments made by subsections (a) and (c)(3) [amending this section and sections 832, 834, 838, 847, and 948b of this title] shall take effect on the later of December 26, 2014, or the date of the enactment of the Carl Levin and Howard P. 'Buck' McKeon National Defense Authorization Act for Fiscal Year 2015 [Dec. 19, 2014] and shall apply with respect to preliminary hearings conducted on or after that effective date."

[Pub. L. 113–291, div. A, title V, §531(g)(1), Dec. 19, 2014, 128 Stat. 3365, provided that the amendment by section 531(g)(1) to section 1702(d)(1) of Pub. L. 113–66, set out above, is effective as of Dec. 26, 2013, and as if included in section 1702(d)(1) of Pub. L. 113–66, as enacted.]

Effective Date of 1986 Amendment

Pub. L. 99–661, div. A, title VIII, §804(e), Nov. 14, 1986, 100 Stat. 3908, provided that: "The amendments made by subsections (a) and (b) [amending this section and section 803 of this title] shall apply only to an offense committed on or after the effective date of this title [see section 808 of Pub. L. 99–661, set out below]."

Pub. L. 99–661, div. A, title VIII, §808, Nov. 14, 1986, 100 Stat. 3909, provided that: "Except as provided in sections 802(b), 805(c), and 807(b) [set out as notes under sections 850a, 843, and 806, respectively, of this title], this title and the amendments made by this title [enacting section 850a of this title, amending this section and sections 803, 806, 825, 843, 860, 936, and 937 of this title, and enacting provisions set out as notes under this section and sections 801, 806, 825, 843, 850a, and 860 of this title] shall take effect on the earlier of—

"(1) the last day of the 120-day period beginning on the date of the enactment of this Act [Nov. 14, 1986]; or

"(2) the date specified in an Executive order for such amendments to take effect."

Effective Date of 1983 Amendment

Amendment by Pub. L. 98–209 effective Dec. 6, 1983, see section 12(a)(1) of Pub. L. 98–209, set out as a note under section 801 of this title.

Effective Date of 1980 Amendment

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 under section 101 of this title.

Repeals

The directory language of, but not the amendment made by, Pub. L. 89–718, §8(a), Nov. 2, 1966, 80 Stat. 1117, cited as a credit to this section, was repealed by Pub. L. 97–295, §6(b), Oct. 12, 1982, 96 Stat. 1314.

Transfer of Functions

All functions of Public Health Service, of the Surgeon General of the Public Health Service, and of all other officers and employees of the Public Health Service, and all functions of all agencies of or in the Public Health Service transferred to Secretary of Health, Education, and Welfare by 1966 Reorg. Plan No. 3, 31 F.R. 8855, 80 Stat. 1610, effective June 25, 1966, set out in the Appendix to Title 5, Government Organization and Employees.

The Secretary of Health, Education, and Welfare was redesignated the Secretary of Health and Human Services by section 3508(b) of Title 20, Education.

Applicability of Uniform Code of Military Justice to Members of the Armed Forces Ordered to Duty Overseas in Inactive Duty for Training Status

Pub. L. 109–364, div. A, title V, §551, Oct. 17, 2006, 120 Stat. 2217, provided that: "Not later than March 1, 2007, the Secretaries of the military departments shall prescribe regulations, or amend current regulations, in order to provide that members of the Armed Forces who are ordered to duty at locations overseas in an inactive duty for training status are subject to the jurisdiction of the Uniform Code of Military Justice, pursuant to the provisions of section 802(a)(3) of title 10, United States Code (article 2(a)(3) of the Uniform Code of Military Justice), continuously from the commencement of execution of such orders to the conclusion of such orders."

Advisory Committee on Criminal Law Jurisdiction Over Civilians Accompanying Armed Forces in Time of Armed Conflict

Pub. L. 104–106, div. A, title XI, §1151, Feb. 10, 1996, 110 Stat. 467, directed the Secretary of Defense and the Attorney General, not later than 45 days after Feb. 10, 1996, to jointly appoint an advisory committee to review and make recommendations concerning the appropriate forum for criminal jurisdiction over civilians accompanying the Armed Forces outside the United States in time of armed conflict, directed the committee to transmit to the Secretary of Defense and the Attorney General a report setting forth its findings and recommendations not later than Dec. 15, 1996, directed the Secretary of Defense and the Attorney General to jointly transmit the report of the committee to Congress not later than Jan. 15, 1997, and provided that the committee would terminate 30 days after the date on which the report had been submitted to Congress.

Ex. Ord. No. 10631. Code of Conduct for Members of the Armed Forces

Ex. Ord. No. 10631, Aug. 17, 1955, 20 F.R. 6057, as amended by Ex. Ord. No. 11382, Nov. 28, 1967, 32 F.R. 16247; Ex. Ord. No. 12017, Nov. 3, 1977, 42 F.R. 57941; Ex. Ord. No. 12633, Mar. 28, 1988, 53 F.R. 10355; Ex. Ord. No. 13286, §76, Feb. 28, 2003, 68 F.R. 106231, provided:

By virtue of the authority vested in me as President of the United States, and as Commander in Chief of the armed forces of the United States, I hereby prescribe the Code of Conduct for Members of the Armed Forces of the United States which is attached to this order and hereby made a part thereof.

All members of the Armed Forces of the United States are expected to measure up to the standards embodied in this Code of Conduct while in combat or in captivity. To ensure achievement of these standards, members of the armed forces liable to capture shall be provided with specific training and instruction designed to better equip them to counter and withstand all enemy efforts against them, and shall be fully instructed as to the behavior and obligations expected of them during combat or captivity.

The Secretary of Defense (and the Secretary of Homeland Security with respect to the Coast Guard except when it is serving as part of the Navy) shall take such action as is deemed necessary to implement this order and to disseminate and make the said Code known to all members of the armed forces of the United States.

Code of Conduct for Members of the United States Armed Forces

I

I am an American, fighting in the forces which guard my country and our way of life. I am prepared to give my life in their defense.

II

I will never surrender of my own free will. If in command, I will never surrender the members of my command while they still have the means to resist.

III

If I am captured I will continue to resist by all means available. I will make every effort to escape and aid others to escape. I will accept neither parole nor special favors from the enemy.

IV

If I become a prisoner of war, I will keep faith with my fellow prisoners. I will give no information or take part in any action which might be harmful to my comrades. If I am senior, I will take command. If not, I will obey the lawful orders of those appointed over me and will back them up in every way.

V

When questioned, should I become a prisoner of war, I am required to give name, rank, service number and date of birth. I will evade answering further questions to the utmost of my ability. I will make no oral or written statements disloyal to my country and its allies or harmful to their cause.

VI

I will never forget that I am an American, fighting for freedom, responsible for my actions, and dedicated to the principles which made my country free. I will trust in my God and in the United States of America.

§803. Art. 3. Jurisdiction to try certain personnel

(a) Subject to section 843 of this title (article 43), a person who is in a status in which the person is subject to this chapter and who committed an offense against this chapter while formerly in a status in which the person was subject to this chapter is not relieved from amenability to the jurisdiction of this chapter for that offense by reason of a termination of that person's former status.

(b) Each person discharged from the armed forces who is later charged with having fraudulently obtained his discharge is, subject to section 843 of this title (article 43), subject to trial by court-martial on that charge and is after apprehension subject to this chapter while in the custody of the armed forces for that trial. Upon conviction of that charge he is subject to trial by court-martial for all offenses under this chapter committed before the fraudulent discharge.

(c) No person who has deserted from the armed forces may be relieved from amenability to the jurisdiction of this chapter by virtue of a separation from any later period of service.

(d) A member of a reserve component who is subject to this chapter is not, by virtue of the termination of a period of active duty or inactive-duty training, relieved from amenability to the jurisdiction of this chapter for an offense against this chapter committed during such period of active duty or inactive-duty training.

(Aug. 10, 1956, ch. 1041, 70A Stat. 38; Pub. L. 99–661, div. A, title VIII, §804(b), Nov. 14, 1986, 100 Stat. 3907; Pub. L. 102–484, div. A, title X, §1063, Oct. 23, 1992, 106 Stat. 2505.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
803(a)

803(b)

803(c)

50:553(a).

50:553(b).

50:553(c).

May 5, 1950, ch. 169, §1 (Art. 3), 64 Stat. 109.

In subsection (a), the words "the provisions of" are omitted as surplusage. The words "no * * * may" are substituted for the words "any * * * shall not". The word "for" is substituted for the word "of" before the words "five years". The words "of a State, a Territory, or" are substituted for the words "any State or Territory thereof or of". The word "court-martial" is substituted for the word "courts-martial".

In subsection (b), the words "Each person" are substituted for the words "All persons". The words "who is later" are substituted for the word "subsequently". The words "his discharge is" are substituted for the words "said discharge shall * * * be". The words "the provisions of" are omitted as surplusage. The word "is" is substituted for the words "shall * * * be". The words "he is" are substituted for the words "they shall be". The word "before" is substituted for the words "prior to".

In subsection (c), the words "No * * * may" are substituted for the words "Any * * * shall not". The word "later" is substituted for the word "subsequent".

Amendments

1992—Subsec. (a). Pub. L. 102–484 amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: "Subject to section 843 of this title (article 43), no person charged with having committed, while in a status in which he was subject to this chapter, an offense against this chapter, punishable by confinement for five years or more and for which the person cannot be tried in the courts of the United States or of a State, a Territory, or the District of Columbia, may be relieved from amenability to trial by court-martial by reason of the termination of that status."

1986—Subsec. (d). Pub. L. 99–661 added subsec. (d).

Effective Date of 1992 Amendment

Pub. L. 102–484, div. A, title X, §1067, Oct. 23, 1992, 106 Stat. 2506, provided that: "The amendments made by sections 1063, 1064, 1065, and 1066 [amending this section and sections 857, 863, 911, 918, and 920 of this title] shall take effect on the date of the enactment of this Act [Oct. 23, 1992] and shall apply with respect to offenses committed on or after that date."

Effective Date of 1986 Amendment

Amendment by Pub. L. 99–661 applicable to offenses committed on or after the earlier of (1) the last day of the 120-day period beginning on Nov. 14, 1986; or (2) the date specified in an Executive order, see sections 804(e) and 808 of Pub. L. 99–661, set out as notes under section 802 of this title.

§804. Art. 4. Dismissed officer's right to trial by court-martial

(a) If any commissioned officer, dismissed by order of the President, makes a written application for trial by court-martial, setting forth, under oath, that he has been wrongfully dismissed, the President, as soon as practicable, shall convene a general court-martial to try that officer on the charges on which he was dismissed. A court-martial so convened has jurisdiction to try the dismissed officer on those charges, and he shall be considered to have waived the right to plead any statute of limitations applicable to any offense with which he is charged. The court-martial may, as part of its sentence, adjudge the affirmance of the dismissal, but if the court-martial acquits the accused or if the sentence adjudged, as finally approved or affirmed, does not include dismissal or death, the Secretary concerned shall substitute for the dismissal ordered by the President a form of discharge authorized for administrative issue.

(b) If the President fails to convene a general court-martial within six months from the presentation of an application for trial under this article, the Secretary concerned shall substitute for the dismissal ordered by the President a form of discharge authorized for administrative issue.

(c) If a discharge is substituted for a dismissal under this article, the President alone may reappoint the officer to such commissioned grade and with such rank as, in the opinion of the President, that former officer would have attained had he not been dismissed. The reappointment of such a former officer shall be without regard to the existence of a vacancy and shall affect the promotion status of other officers only insofar as the President may direct. All time between the dismissal and the reappointment shall be considered as actual service for all purposes, including the right to pay and allowances.

(d) If an officer is discharged from any armed force by administrative action or is dropped from the rolls by order of the President, he has no right to trial under this article.

(Aug. 10, 1956, ch. 1041, 70A Stat. 38.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
804(a)

804(b)

50:554(a).

50:554(b).

May 5, 1950, ch. 169, §1 (Art. 4), 64 Stat. 110.
804(c) 50:554(c).
804(d) 50:554(d).

In subsection (a), the word "If" is substituted for the word "When". The word "commissioned" is inserted before the word "officer". The word "considered" is substituted for the word "held".

In subsections (a) and (b), the words "Secretary concerned" are substituted for the words "Secretary of the Department".

In subsection (c), the word "If" is substituted for the word "Where". The words "the authority of" are omitted as surplusage. The words "grade and with such rank" are substituted for the words "rank and precedence", since a person is appointed to a grade, not to a position of precedence, and the word "rank" is the accepted military word denoting the general idea of precedence. The words "the existence of a" are substituted for the word "position" for clarity. The word "receive" is omitted as surplusage.

In subsection (d), the word "If" is substituted for the word "When". The words "he has no" are substituted for the words "there shall not be a".

Delegation of Functions

For delegation to Secretary of Homeland Security of certain authority vested in President by this section, see section 2 of Ex. Ord. No. 10637, Sept. 16, 1955, 20 F.R. 7025, as amended, set out as a note under section 301 of Title 3, The President.

§805. Art. 5. Territorial applicability of this chapter

This chapter applies in all places.

(Aug. 10, 1956, ch. 1041, 70A Stat. 39.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
805 50:555. May 5, 1950, ch. 169, §1 (Art. 5), 64 Stat. 110.

The word "applies" is substituted for the words "shall be applicable".

§806. Art. 6. Judge advocates and legal officers

(a) The assignment for duty of judge advocates of the Army, Navy, Air Force, and Coast Guard shall be made upon the recommendation of the Judge Advocate General of the armed force of which they are members. The assignment for duty of judge advocates of the Marine Corps shall be made by direction of the Commandant of the Marine Corps. The Judge Advocates General, and within the Marine Corps the Staff Judge Advocate to the Commandant of the Marine Corps, or senior members of their staffs, shall make frequent inspections in the field in supervision of the administration of military justice.

(b) Convening authorities shall at all times communicate directly with their staff judge advocates or legal officers in matters relating to the administration of military justice; and the staff judge advocate or legal officer of any command is entitled to communicate directly with the staff judge advocate or legal officer of a superior or subordinate command, or with the Judge Advocate General.

(c)(1) No person who, with respect to a case, serves in a capacity specified in paragraph (2) may later serve as a staff judge advocate or legal officer to any reviewing or convening authority upon the same case.

(2) The capacities referred to in paragraph (1) are, with respect to the case involved, any of the following:

(A) Preliminary hearing officer, court member, military judge, military magistrate, or appellate judge.

(B) Counsel who have acted in the same case or appeared in any proceeding before a military judge, military magistrate, preliminary hearing officer, or appellate court.


(d)(1) A judge advocate who is assigned or detailed to perform the functions of a civil office in the Government of the United States under section 973(b)(2)(B) of this title may perform such duties as may be requested by the agency concerned, including representation of the United States in civil and criminal cases.

(2) The Secretary of Defense, and the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Navy, shall prescribe regulations providing that reimbursement may be a condition of assistance by judge advocates assigned or detailed under section 973(b)(2)(B) of this title.

(Aug. 10, 1956, ch. 1041, 70A Stat. 39; Pub. L. 90–179, §1(3), Dec. 8, 1967, 81 Stat. 545; Pub. L. 90–632, §2(2), Oct. 24, 1968, 82 Stat. 1335; Pub. L. 98–209, §2(b), Dec. 6, 1983, 97 Stat. 1393; Pub. L. 99–661, div. A, title VIII, §807(a), Nov. 14, 1986, 100 Stat. 3909; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 112–239, div. A, title V, §531(d)(1), Jan. 2, 2013, 126 Stat. 1726; Pub. L. 114–328, div. E, title LI, §5103, Dec. 23, 2016, 130 Stat. 2895.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
806(a)

806(b)

50:556(a).

50:556(b).

May 5, 1950, ch. 169, §1 (Art. 6), 64 Stat. 110.
806(c) 50:556(c).

In subsection (b), the word "entitled" is substituted for the word "authorized".

In subsection (c), the words "may later" are substituted for the words "shall subsequently".

Amendments

2016—Subsec. (c). Pub. L. 114–328 amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: "No person who has acted as member, military judge, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or investigating officer in any case may later act as a staff judge advocate or legal officer to any reviewing authority upon the same case."

2013—Subsec. (a). Pub. L. 112–239 substituted "The Judge Advocates General, and within the Marine Corps the Staff Judge Advocate to the Commandant of the Marine Corps, or senior members of their staffs, shall" for "The Judge Advocate General or senior members of his staff shall".

2002—Subsec. (d)(2). Pub. L. 107–296 substituted "of Homeland Security" for "of Transportation".

1986—Subsec. (d). Pub. L. 99–661 added subsec. (d).

1983—Subsec. (a). Pub. L. 98–209 substituted "Air Force, and" for "and Air Force and law specialists of the".

1968—Subsec. (c). Pub. L. 90–632 substituted "military judge" for "law officer".

1967—Subsec. (a). Pub. L. 90–179 substituted reference to judge advocates of the Navy for reference to law specialists of the Navy and provided for the assignment of judge advocates of the Marine Corps.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 2002 Amendment

Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.

Effective Date of 1986 Amendment

Pub. L. 99–661, div. A, title VIII, §807(b), Nov. 14, 1986, 100 Stat. 3909, provided that: "The amendment made by subsection (a) [amending this section]—

"(1) shall take effect on the date of the enactment of this Act [Nov. 14, 1986]; and

"(2) may not be construed to invalidate an action taken by a judge advocate, pursuant to an assignment or detail under section 973(b)(2)(B) of title 10, United States Code, before the date of the enactment of this Act."

Effective Date of 1983 Amendment

Amendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, see section 12(a)(1) of Pub. L. 98–209, set out as a note under section 801 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.

§806a. Art. 6a. Investigation and disposition of matters pertaining to the fitness of military judges

(a) The President shall prescribe procedures for the investigation and disposition of charges, allegations, or information pertaining to the fitness of a military appellate judge, military judge, or military magistrate to perform the duties of the position involved.

(b) The President shall transmit a copy of the procedures prescribed pursuant to this section to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives.

(Added Pub. L. 101–189, div. A, title XIII, §1303, Nov. 29, 1989, 103 Stat. 1576; amended Pub. L. 104–106, div. A, title XV, §1502(a)(1), Feb. 10, 1996, 110 Stat. 502; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 114–328, div. E, title LI, §5104, Dec. 23, 2016, 130 Stat. 2895.)

Amendments

2016—Subsec. (a). Pub. L. 114–328 substituted "military appellate judge, military judge, or military magistrate to perform the duties of the position involved." for "military judge or military appellate judge to perform the duties of the judge's position."

1999—Subsec. (b). Pub. L. 106–65 substituted "and the Committee on Armed Services" for "and the Committee on National Security".

1996—Subsec. (b). Pub. L. 104–106 substituted "Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives" for "Committees on Armed Services of the Senate and House of Representatives".

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

§806b. Art. 6b. Rights of the victim of an offense under this chapter

(a) Rights of a Victim of an Offense Under This Chapter.—A victim of an offense under this chapter has the following rights:

(1) The right to be reasonably protected from the accused.

(2) The right to reasonable, accurate, and timely notice of any of the following:

(A) A public hearing concerning the continuation of confinement prior to trial of the accused.

(B) A preliminary hearing under section 832 of this title (article 32) relating to the offense.

(C) A court-martial relating to the offense.

(D) A public proceeding of the service clemency and parole board relating to the offense.

(E) The release or escape of the accused, unless such notice may endanger the safety of any person.


(3) The right not to be excluded from any public hearing or proceeding described in paragraph (2) unless the military judge or preliminary hearing officer, as applicable, after receiving clear and convincing evidence, determines that testimony by the victim of an offense under this chapter would be materially altered if the victim heard other testimony at that hearing or proceeding.

(4) The right to be reasonably heard at any of the following:

(A) A public hearing concerning the continuation of confinement prior to trial of the accused.

(B) A sentencing hearing relating to the offense.

(C) A public proceeding of the service clemency and parole board relating to the offense.


(5) The reasonable right to confer with the counsel representing the Government at any proceeding described in paragraph (2).

(6) The right to receive restitution as provided in law.

(7) The right to proceedings free from unreasonable delay.

(8) The right to be treated with fairness and with respect for the dignity and privacy of the victim of an offense under this chapter.


(b) Victim of an Offense Under This Chapter Defined.—In this section, the term "victim of an offense under this chapter" means an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under this chapter.

(c) Appointment of Individuals to Assume Rights for Certain Victims.—In the case of a victim of an offense under this chapter who is under 18 years of age (but who is not a member of the armed forces), incompetent, incapacitated, or deceased, the legal guardians of the victim or the representatives of the victim's estate, family members, or any other person designated as suitable by the military judge, may assume the rights of the victim under this section. However, in no event may the individual so designated be the accused.

(d) Rule of Construction.—Nothing in this section (article) shall be construed—

(1) to authorize a cause of action for damages;

(2) to create, to enlarge, or to imply any duty or obligation to any victim of an offense under this chapter or other person for the breach of which the United States or any of its officers or employees could be held liable in damages; or

(3) to impair the exercise of discretion under sections 830 and 834 of this title (articles 30 and 34).


(e) Enforcement by Court of Criminal Appeals.—(1) If the victim of an offense under this chapter believes that a preliminary hearing ruling under section 832 of this title (article 32) or a court-martial ruling violates the rights of the victim afforded by a section (article) or rule specified in paragraph (4), the victim may petition the Court of Criminal Appeals for a writ of mandamus to require the preliminary hearing officer or the court-martial to comply with the section (article) or rule.

(2) If the victim of an offense under this chapter is subject to an order to submit to a deposition, notwithstanding the availability of the victim to testify at the court-martial trying the accused for the offense, the victim may petition the Court of Criminal Appeals for a writ of mandamus to quash such order.

(3)(A) A petition for a writ of mandamus described in this subsection shall be forwarded directly to the Court of Criminal Appeals, by such means as may be prescribed by the President, subject to section 830a of this title (article 30a).

(B) To the extent practicable, a petition for a writ of mandamus described in this subsection shall have priority over all other proceedings before the Court of Criminal Appeals.

(C) Review of any decision of the Court of Criminal Appeals on a petition for a writ of mandamus described in this subsection shall have priority in the Court of Appeals for the Armed Forces, as determined under the rules of the Court of Appeals for the Armed Forces.

(4) Paragraph (1) applies with respect to the protections afforded by the following:

(A) This section (article).

(B) Section 832 (article 32) of this title.

(C) Military Rule of Evidence 412, relating to the admission of evidence regarding a victim's sexual background.

(D) Military Rule of Evidence 513, relating to the psychotherapist-patient privilege.

(E) Military Rule of Evidence 514, relating to the victim advocate-victim privilege.

(F) Military Rule of Evidence 615, relating to the exclusion of witnesses.


(f) Counsel for Accused Interview of Victim of Alleged Offense.—(1) Upon notice by counsel for the Government to counsel for the accused of the name of an alleged victim of an offense under this chapter who counsel for the Government intends to call as a witness at a proceeding under this chapter, counsel for the accused shall make any request to interview the victim through the Special Victims' Counsel or other counsel for the victim, if applicable.

(2) If requested by an alleged victim who is subject to a request for interview under paragraph (1), any interview of the victim by counsel for the accused shall take place only in the presence of the counsel for the Government, a counsel for the victim, or, if applicable, a victim advocate.

(Added Pub. L. 113–66, div. A, title XVII, §1701(a)(1), Dec. 26, 2013, 127 Stat. 952; amended Pub. L. 113–291, div. A, title V, §§531(f), 535, Dec. 19, 2014, 128 Stat. 3364, 3368; Pub. L. 114–92, div. A, title V, §531, Nov. 25, 2015, 129 Stat. 814; Pub. L. 114–328, div. E, title LI, §5105, title LVI, §5203(e)(1), Dec. 23, 2016, 130 Stat. 2895, 2906; Pub. L. 115–91, div. A, title V, §531(a), title X, §1081(a)(22), (c)(1)(B), Dec. 12, 2017, 131 Stat. 1384, 1595, 1597.)

Amendments

2017—Subsec. (b). Pub. L. 115–91, §1081(c)(1)(B), which directed striking out "(the Uniform Code of Military Justice)" after "this chapter", was not executed in light of the prior amendment by section 1081(a)(22) of Pub. L. 115–91, to reflect the probable intent of Congress. See Amendment note below and Effective Date of 2017 Amendment note below.

Pub. L. 115–91, §1081(a)(22), struck out "(the Uniform Code of Military Justice)" after "this chapter".

Subsec. (e)(3). Pub. L. 115–91, §531(a), designated existing provisions as subpar. (A), substituted "prescribed by the President, subject to section 830a of this title (article 30a)" for "prescribed by the President, and, to the extent practicable, shall have priority over all other proceedings before the court", and added subpars. (B) and (C).

2016—Subsec. (a)(3). Pub. L. 114–328, §5203(e)(1), substituted "preliminary hearing officer" for "investigating officer".

Subsec. (c). Pub. L. 114–328, §5105(a), substituted "the legal guardians of the victim or the representatives of the victim's estate, family members, or any other person designated as suitable by the military judge, may assume the rights of the victim under this section." for "the military judge shall designate a representative of the estate of the victim, a family member, or another suitable individual to assume the victim's rights under this section."

Subsec. (d)(3). Pub. L. 114–328, §5105(b), added par. (3).

Subsec. (f). Pub. L. 114–328, §5105(c), added subsec. (f).

2015—Subsec. (e). Pub. L. 114–92 amended subsec. (e) generally. Prior to amendment, text read as follows:

"(1) If the victim of an offense under this chapter believes that a court-martial ruling violates the victim's rights afforded by a Military Rule of Evidence specified in paragraph (2), the victim may petition the Court of Criminal Appeals for a writ of mandamus to require the court-martial to comply with the Military Rule of Evidence.

"(2) Paragraph (1) applies with respect to the protections afforded by the following:

"(A) Military Rule of Evidence 513, relating to the psychotherapist-patient privilege.

"(B) Military Rule of Evidence 412, relating to the admission of evidence regarding a victim's sexual background."

2014—Subsec. (b). Pub. L. 113–291, §531(f)(1), substituted "an individual" for "a person".

Subsec. (c). Pub. L. 113–291, §531(f)(2), in heading, substituted "Appointment of Individuals to Assume Rights" for "Legal Guardian" and, in text, inserted "(but who is not a member of the armed forces)" after "under 18 years of age" and substituted "designate a representative" for "designate a legal guardian from among the representatives", "another suitable individual" for "other suitable person", and "the individual" for "the person".

Subsec. (e). Pub. L. 113–291, §535, added subsec. (e).

Effective Date of 2017 Amendment

Amendment by section 531(a) of Pub. L. 115–91 effective immediately after the amendments made by div. E (§§5001–5542) of Pub. L. 114–328 take effect as provided for in section 5542 of that Act (10 U.S.C. 801 note), see section 531(p) of Pub. L. 115–91, set out as a note under section 801 of this title.

Amendment by section 1081(c)(1)(B) of Pub. L. 115–91 effective immediately after the amendments made by div. E (§§5001–5542) of Pub. L. 114–328 take effect as provided for in section 5542 of that Act (10 U.S.C. 801 note), see section 1081(c)(4) of Pub. L. 115–91, set out as a note under section 801 of this title.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Implementation

Pub. L. 113–66, div. A, title XVII, §1701(b), Dec. 26, 2013, 127 Stat. 953, provided that:

"(1) Issuance.—Not later than one year after the date of the enactment of this Act [Dec. 26, 2013]—

"(A) the Secretary of Defense shall recommend to the President changes to the Manual for Courts-Martial to implement section 806b of title 10, United States Code (article 6b of the Uniform Code of Military Justice), as added by subsection (a); and

"(B) the Secretary of Defense and Secretary of Homeland Security (with respect to the Coast Guard when it is not operating as a service in the Navy) shall prescribe such regulations as each such Secretary considers appropriate to implement such section.

"(2) Mechanisms for affording rights.—The recommendations and regulations required by paragraph (1) shall include the following:

"(A) Mechanisms for ensuring that victims are notified of, and accorded, the rights specified in section 806b of title 10, United States Code (article 6b of the Uniform Code of Military Justice), as added by subsection (a).

"(B) Mechanisms for ensuring that members of the Armed Forces and civilian personnel of the Department of Defense and the Coast Guard make their best efforts to ensure that victims are notified of, and accorded, the rights specified in such section.

"(C) Mechanisms for the enforcement of such rights, including mechanisms for application for such rights and for consideration and disposition of applications for such rights.

"(D) The designation of an authority within each Armed Force to receive and investigate complaints relating to the provision or violation of such rights.

"(E) Disciplinary sanctions for members of the Armed Forces and other personnel of the Department of Defense and Coast Guard who willfully or wantonly fail to comply with requirements relating to such rights."

SUBCHAPTER II—APPREHENSION AND RESTRAINT

 
Sec.Art. 
807. 7. Apprehension.
808. 8. Apprehension of deserters.
809. 9. Imposition of restraint.
810. 10. Restraint of persons charged.
811. 11. Reports and receiving of prisoners.
812. 12. Prohibition of confinement of members of the armed forces with enemy prisoners and certain others.
813. 13. Punishment prohibited before trial.
814. 14. Delivery of offenders to civil authorities.

Amendments

2017Pub. L. 115–91, div. A, title X, §1081(d)(19)(A), Dec. 12, 2017, 131 Stat. 1601, made technical amendment to Pub. L. 114–328, §5541(1). See 2016 Amendment note below.

2016Pub. L. 114–328, div. E, title LXIII, §5541(1), Dec. 23, 2016, 130 Stat. 2965, as amended by Pub. L. 115–91, div. A, title X, §1081(d)(19)(A), Dec. 12, 2017, 131 Stat. 1601, substituted "Restraint of persons charged" for "Restraint of persons charged with offenses" in item 810 and "Prohibition of confinement of members of the armed forces with enemy prisoners and certain others" for "Confinement with enemy prisoners prohibited" in item 812.

§807. Art. 7. Apprehension

(a) Apprehension is the taking of a person into custody.

(b) Any person authorized under regulations governing the armed forces to apprehend persons subject to this chapter or to trial thereunder may do so upon reasonable belief that an offense has been committed and that the person apprehended committed it.

(c) Commissioned officers, warrant officers, petty officers, and noncommissioned officers have authority to quell quarrels, frays, and disorders among persons subject to this chapter and to apprehend persons subject to this chapter who take part therein.

(Aug. 10, 1956, ch. 1041, 70A Stat. 39.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
807(a)

807(b)

50:561(a).

50:561(b).

May 5, 1950, ch. 169, §1 (Art. 7), 64 Stat. 111.
807(c) 50:561(c).

In subsection (a), the words "into custody" and "of a person" are transposed.

In subsection (c), the words "All" and "shall" are omitted as surplusage. The word "Commissioned" is inserted before the word "officers" for clarity. The word "therein" is substituted for the words "in the same".

§808. Art. 8. Apprehension of deserters

Any civil officer having authority to apprehend offenders under the laws of the United States or of a State, Commonwealth, possession, or the District of Columbia may summarily apprehend a deserter from the armed forces and deliver him into the custody of those forces.

(Aug. 10, 1956, ch. 1041, 70A Stat. 40; Pub. L. 109–163, div. A, title X, §1057(a)(4), Jan. 6, 2006, 119 Stat. 3440.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
808 50:562. May 5, 1950, ch. 169, §1 (Art. 8), 64 Stat. 111.

The word "may" is substituted for the words "It shall be lawful for * * * to". The words "a State, Territory, Commonwealth, or possession, or the District of Columbia" are substituted for the words "any State, District, Territory, or possession of the United States". The words "of the United States", before the words "and deliver", are omitted as surplusage. The words "those forces" are substituted for the words "the armed forces of the United States", after the words "custody of".

Amendments

2006Pub. L. 109–163 substituted "Commonwealth, possession," for "Territory, Commonwealth, or possession,".

§809. Art. 9. Imposition of restraint

(a) Arrest is the restraint of a person by an order, not imposed as a punishment for an offense, directing him to remain within certain specified limits. Confinement is the physical restraint of a person.

(b) An enlisted member may be ordered into arrest or confinement by any commissioned officer by an order, oral or written, delivered in person or through other persons subject to this chapter. A commanding officer may authorize warrant officers, petty officers, or noncommissioned officers to order enlisted members of his command or subject to his authority into arrest or confinement.

(c) A commissioned officer, a warrant officer, or a civilian subject to this chapter or to trial thereunder may be ordered into arrest or confinement only by a commanding officer to whose authority he is subject, by an order, oral or written, delivered in person or by another commissioned officer. The authority to order such persons into arrest or confinement may not be delegated.

(d) No person may be ordered into arrest or confinement except for probable cause.

(e) Nothing in this article limits the authority of persons authorized to apprehend offenders to secure the custody of an alleged offender until proper authority may be notified.

(Aug. 10, 1956, ch. 1041, 70A Stat. 40.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
809(a)

809(b)

50:563(a).

50:563(b).

May 5, 1950, ch. 169, §1 (Art. 9), 64 Stat. 111.
809(c) 50:563(c).
809(d) 50:563(d).
809(e) 50:563(e).

In subsection (b), the word "commissioned" is inserted before the word "officer" for clarity. The words "member" and "members", respectively, are substituted for the words "person" and "persons".

In subsection (c), the words "A commissioned" are substituted for the word "An" for clarity. The word "commissioned" is inserted after the word "another" for clarity.

In subsection (d), the word "may" is substituted for the word "shall".

In subsection (e), the word "limits" is substituted for the words "shall be construed to limit".

§810. Art. 10. Restraint of persons charged

(a) In General.—(1) Subject to paragraph (2), any person subject to this chapter who is charged with an offense under this chapter may be ordered into arrest or confinement as the circumstances require.

(2) When a person subject to this chapter is charged only with an offense that is normally tried by summary court-martial, the person ordinarily shall not be ordered into confinement.

(b) Notification to Accused and Related Procedures.—(1) When a person subject to this chapter is ordered into arrest or confinement before trial, immediate steps shall be taken—

(A) to inform the person of the specific offense of which the person is accused; and

(B) to try the person or to dismiss the charges and release the person.


(2) To facilitate compliance with paragraph (1), the President shall prescribe regulations setting forth procedures relating to referral for trial, including procedures for prompt forwarding of the charges and specifications and, if applicable, the preliminary hearing report submitted under section 832 of this title (article 32).

(Aug. 10, 1956, ch. 1041, 70A Stat. 40; Pub. L. 114–328, div. E, title LII, §5121, Dec. 23, 2016, 130 Stat. 2896.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
810 50:564. May 5, 1950, ch. 169, §1 (Art. 10), 64 Stat. 111.

The word "he" is substituted for the words "such person".

Amendments

2016Pub. L. 114–328 amended section generally. Prior to amendment, text read as follows: "Any person subject to this chapter charged with an offense under this chapter shall be ordered into arrest or confinement, as circumstances may require; but when charged only with an offense normally tried by a summary court-martial, he shall not ordinarily be placed in confinement. When any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him."

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

§811. Art. 11. Reports and receiving of prisoners

(a) No provost marshal, commander of a guard, or master at arms may refuse to receive or keep any prisoner committed to his charge by a commissioned officer of the armed forces, when the committing officer furnishes a statement, signed by him, of the offense charged against the prisoner.

(b) Every commander of a guard or master at arms to whose charge a prisoner is committed shall, within twenty-four hours after that commitment or as soon as he is relieved from guard, report to the commanding officer the name of the prisoner, the offense charged against him, and the name of the person who ordered or authorized the commitment.

(Aug. 10, 1956, ch. 1041, 70A Stat. 40.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
811(a)

811(b)

50:565(a).

50:565(b).

May 5, 1950, ch. 169, §1 (Art. 11), 64 Stat. 112.

In subsection (a), the word "may" is substituted for the word "shall". The words "a commissioned" are substituted for the word "an" for clarity.

§812. Art. 12. Prohibition of confinement of members of the armed forces with enemy prisoners and certain others

No member of the armed forces may be placed in confinement in immediate association with—

(1) enemy prisoners; or

(2) other individuals—

(A) who are detained under the law of war and are foreign nationals; and

(B) who are not members of the armed forces.

(Aug. 10, 1956, ch. 1041, 70A Stat. 41; Pub. L. 114–328, div. E, title LII, §5122, Dec. 23, 2016, 130 Stat. 2896.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
812 50:566. May 5, 1950, ch. 169, §1 (Art. 12), 64 Stat. 112.

The words "of the United States" are omitted as surplusage. The word "may" is substituted for the word "shall".

Amendments

2016Pub. L. 114–328 amended section generally. Prior to amendment, text read as follows: "No member of the armed forces may be placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces."

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

§813. Art. 13. Punishment prohibited before trial

No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances require to insure his presence, but he may be subjected to minor punishment during that period for infractions of discipline.

(Aug. 10, 1956, ch. 1041, 70A Stat. 41; Pub. L. 97–81, §3, Nov. 20, 1981, 95 Stat. 1087.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
813 50:567. May 5, 1950, ch. 169, §1 (Art. 13), 64 Stat. 112.

The words "the provisions of" are omitted as surplusage. The word "results" is changed to the singular. The word "may" is substituted for the word "shall".

Amendments

1981Pub. L. 97–81 substituted "No person, while being held for trial, may be subjected" for "Subject to section 857 of this title (article 57), no person, while being held for trial or the result of trial, may be subjected".

Effective Date of 1981 Amendment

Amendment by Pub. L. 97–81 to take effect at the end of the 60-day period beginning on Nov. 20, 1981, and to apply to each person held as the result of a court-martial sentence announced on or after that date, see section 7(a) and (b)(2) of Pub. L. 97–81, set out as an Effective Date note under section 706 of this title.

§814. Art. 14. Delivery of offenders to civil authorities

(a) Under such regulations as the Secretary concerned may prescribe, a member of the armed forces accused of an offense against civil authority may be delivered, upon request, to the civil authority for trial.

(b) When delivery under this article is made to any civil authority of a person undergoing sentence of a court-martial, the delivery, if followed by conviction in a civil tribunal, interrupts the execution of the sentence of the court-martial, and the offender after having answered to the civil authorities for his offense shall, upon the request of competent military authority, be returned to military custody for the completion of his sentence.

(Aug. 10, 1956, ch. 1041, 70A Stat. 41.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
814(a)

814(b)

50:568(a).

50:568(b).

May 5, 1950, ch. 169, §1 (Art. 14), 64 Stat. 112.

In subsection (a), the words "Secretary concerned" are substituted for the words "Secretary of the Department".

In subsection (b), the word "interrupts" is substituted for the words "shall be held to interrupt". The word "his" is substituted for the words "the said court-martial".

Regulations for Delivery of Military Personnel to Civil Authorities When Charged With Certain Offenses

Pub. L. 100–456, div. A, title VII, §721, Sept. 29, 1988, 102 Stat. 2001, directed the Secretary of Defense to ensure that the Secretaries of the military departments had issued uniform regulations pursuant to this section not later than 90 days after Sept. 29, 1988, and to transmit to committees of Congress a copy of such regulations and any recommendations for additional legislation not later than 120 days after Sept. 29, 1988.

SUBCHAPTER III—NON-JUDICIAL PUNISHMENT

 
Sec.Art. 
815. 15. Commanding officer's non-judicial punishment.

§815. Art. 15. Commanding officer's non-judicial punishment

(a) Under such regulations as the President may prescribe, and under such additional regulations as may be prescribed by the Secretary concerned, limitations may be placed on the powers granted by this article with respect to the kind and amount of punishment authorized, the categories of commanding officers and warrant officers exercising command authorized to exercise those powers, the applicability of this article to an accused who demands trial by court-martial, and the kinds of courts-martial to which the case may be referred upon such a demand. However, except in the case of a member attached to or embarked in a vessel, punishment may not be imposed upon any member of the armed forces under this article if the member has, before the imposition of such punishment, demanded trial by court-martial in lieu of such punishment. Under similar regulations, rules may be prescribed with respect to the suspension of punishments authorized hereunder. If authorized by regulations of the Secretary concerned, a commanding officer exercising general court-martial jurisdiction or an officer of general or flag rank in command may delegate his powers under this article to a principal assistant.

(b) Subject to subsection (a), any commanding officer may, in addition to or in lieu of admonition or reprimand, impose one or more of the following disciplinary punishments for minor offenses without the intervention of a court-martial—

(1) upon officers of his command—

(A) restriction to certain specified limits, with or without suspension from duty, for not more than 30 consecutive days;

(B) if imposed by an officer exercising general court-martial jurisdiction or an officer of general or flag rank in command—

(i) arrest in quarters for not more than 30 consecutive days;

(ii) forfeiture of not more than one-half of one month's pay per month for two months;

(iii) restriction to certain specified limits, with or without suspension from duty, for not more than 60 consecutive days;

(iv) detention of not more than one-half of one month's pay per month for three months;


(2) upon other personnel of his command—

(A) if imposed upon a person attached to or embarked in a vessel, confinement for not more than three consecutive days;

(B) correctional custody for not more than seven consecutive days;

(C) forfeiture of not more than seven days' pay;

(D) reduction to the next inferior pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction;

(E) extra duties, including fatigue or other duties, for not more than 14 consecutive days;

(F) restriction to certain specified limits, with or without suspension from duty, for not more than 14 consecutive days;

(G) detention of not more than 14 days' pay;

(H) if imposed by an officer of the grade of major or lieutenant commander, or above—

(i) the punishment authorized under clause (A);

(ii) correctional custody for not more than 30 consecutive days;

(iii) forfeiture of not more than one-half of one month's pay per month for two months;

(iv) reduction to the lowest or any intermediate pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction, but an enlisted member in a pay grade above E–4 may not be reduced more than two pay grades;

(v) extra duties, including fatigue or other duties, for not more than 45 consecutive days;

(vi) restrictions to certain specified limits, with or without suspension from duty, for not more than 60 consecutive days;

(vii) detention of not more than one-half of one month's pay per month for three months.


Detention of pay shall be for a stated period of not more than one year but if the offender's term of service expires earlier, the detention shall terminate upon that expiration. No two or more of the punishments of arrest in quarters, confinement, correctional custody, extra duties, and restriction may be combined to run consecutively in the maximum amount imposable for each. Whenever any of those punishments are combined to run consecutively, there must be an apportionment. In addition, forfeiture of pay may not be combined with detention of pay without an apportionment. For the purposes of this subsection, "correctional custody" is the physical restraint of a person during duty or nonduty hours and may include extra duties, fatigue duties, or hard labor. If practicable, correctional custody will not be served in immediate association with persons awaiting trial or held in confinement pursuant to trial by court-martial.

(c) An officer in charge may impose upon enlisted members assigned to the unit of which he is in charge such of the punishments authorized under subsection (b)(2)(A)–(G) as the Secretary concerned may specifically prescribe by regulation.

(d) The officer who imposes the punishment authorized in subsection (b), or his successor in command, may, at any time, suspend probationally any part or amount of the unexecuted punishment imposed and may suspend probationally a reduction in grade or a forfeiture imposed under subsection (b), whether or not executed. In addition, he may, at any time, remit or mitigate any part or amount of the unexecuted punishment imposed and may set aside in whole or in part the punishment, whether executed or unexecuted, and restore all rights, privileges, and property affected. He may also mitigate reduction in grade to forfeiture or detention of pay. When mitigating—

(1) arrest in quarters to restriction;

(2) confinement to correctional custody;

(3) correctional custody or confinement to extra duties or restriction, or both; or

(4) extra duties to restriction;


the mitigated punishment shall not be for a greater period than the punishment mitigated. When mitigating forfeiture of pay to detention of pay, the amount of the detention shall not be greater than the amount of the forfeiture. When mitigating reduction in grade to forfeiture or detention of pay, the amount of the forfeiture or detention shall not be greater than the amount that could have been imposed initially under this article by the officer who imposed the punishment mitigated.

(e) A person punished under this article who considers his punishment unjust or disproportionate to the offense may, through the proper channel, appeal to the next superior authority. The appeal shall be promptly forwarded and decided, but the person punished may in the meantime be required to undergo the punishment adjudged. The superior authority may exercise the same powers with respect to the punishment imposed as may be exercised under subsection (d) by the officer who imposed the punishment. Before acting on an appeal from a punishment of—

(1) arrest in quarters for more than seven days;

(2) correctional custody for more than seven days;

(3) forfeiture of more than seven days' pay;

(4) reduction of one or more pay grades from the fourth or a higher pay grade;

(5) extra duties for more than 14 days;

(6) restriction for more than 14 days; or

(7) detention of more than 14 days' pay;


the authority who is to act on the appeal shall refer the case to a judge advocate or a lawyer of the Department of Homeland Security for consideration and advice, and may so refer the case upon appeal from any punishment imposed under subsection (b).

(f) The imposition and enforcement of disciplinary punishment under this article for any act or omission is not a bar to trial by court-martial for a serious crime or offense growing out of the same act or omission, and not properly punishable under this article; but the fact that a disciplinary punishment has been enforced may be shown by the accused upon trial, and when so shown shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty.

(g) The Secretary concerned may, by regulation, prescribe the form of records to be kept of proceedings under this article and may also prescribe that certain categories of those proceedings shall be in writing.

(Aug. 10, 1956, ch. 1041, 70A Stat. 41; Pub. L. 87–648, §1, Sept. 7, 1962, 76 Stat. 447; Pub. L. 90–179, §1(4), Dec. 8, 1967, 81 Stat. 545; Pub. L. 90–623, §2(4), Oct. 22, 1968, 82 Stat. 1314; Pub. L. 98–209, §§2(c), 13(b), Dec. 6, 1983, 97 Stat. 1393, 1408; Pub. L. 107–296, title XVII, §1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 114–328, div. E, title LIII, §5141, Dec. 23, 2016, 130 Stat. 2897.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
815(a)

815(b)

50:571(a).

50:571(b).

May 5, 1950, ch. 169, §1 (Art. 15), 64 Stat. 112.
815(c) 50:571(c).
815(d) 50:571(d).
815(e) 50:571(e).

In subsection (a), the words "not more than" are substituted for the words "a period not to exceed", "not to exceed", and "a period not exceeding".

In subsection (a)(1), the words "and warrant officers" are omitted, since the word "officer", as defined in section 101(14) of this title, includes warrant officers.

In clause (1)(C), the words "one month's pay" are substituted for the words "his pay per month for a period not exceeding one month".

In subsection (b), the words "Secretary concerned" are substituted for the words "Secretary of a Department".

In subsection (c), the word "subsections" is substituted for the word "subdivisions". The words "enlisted members" are substituted for the words "enlisted persons".

In subsections (d) and (e), the words "authority of" are omitted as surplusage.

In subsection (d), the word "considers" is substituted for the word "deems". The word "may" is substituted for the words "shall have power to * * * to".

In subsection (e), the words "is not" are substituted for the words "shall not be".

Amendments

2016—Subsec. (b)(2). Pub. L. 114–328, §5141(1)(B), struck out "on bread and water or diminished rations" after "in quarters, confinement" in concluding provisions.

Subsec. (b)(2)(A). Pub. L. 114–328, §5141(1)(A), struck out "on bread and water or diminished rations" after "confinement".

Subsec. (d)(2), (3). Pub. L. 114–328, §5141(2), struck out "on bread and water or diminished rations" after "confinement".

2002—Subsec. (e). Pub. L. 107–296 substituted "of Homeland Security" for "of Transportation" in concluding provisions.

1983Pub. L. 98–209, §13(b)(1), substituted "non-judicial" for "nonjudicial" in section catchline.

Subsec. (b). Pub. L. 98–209, §13(b)(2)(A), struck out "of this section" after "subsection (a)" in provisions preceding par. (1).

Subsec. (b)(2)(H)(i). Pub. L. 98–209, §13(b)(2)(B), substituted "clause (A)" for "subsection (b)(2)(A)".

Subsec. (e). Pub. L. 98–209, §2(c), substituted "or a lawyer of the" for "of the Army, Navy, Air Force, or Marine Corps, or a law specialist or lawyer of the Coast Guard or".

1968—Subsec. (e). Pub. L. 90–623 substituted "or a law specialist or lawyer of the Coast Guard or Department of Transportation" for "or a law specialist or lawyer of the Marine Corps, Coast Guard, or Treasury Department".

1967—Subsec. (e). Pub. L. 90–179 inserted reference to judge advocate of the Marine Corps and substituted reference to judge advocate of the Navy for reference to law specialist of the Navy.

1962—Subsec. (a). Pub. L. 87–648 redesignated former subsec. (b) as (a), inserted references to such regulations as the President may prescribe, permitted limitations to be placed on the categories of warrant officers exercising command authorized to exercise powers under this article, and on the kinds of courts-martial to which a case may be referred upon demand therefor, promulgation of regulations prescribing rules with respect to the suspension of punishment authorized by this article, and the delegation of powers to a principal assistant by a commanding officer exercising general court-martial jurisdiction or an officer of general or flag rank in command, if so authorized by the Secretary's regulations, and prohibited, except for members attached to or embarked in a vessel, imposition of punishment under this article on any member of the armed forces who, before imposition of such punishment, demands trial by court-martial. Former subsec. (a) redesignated (b).

Subsec. (b). Pub. L. 87–648 redesignated former subsec. (a) as (b), enlarged authority of commanding officers to impose punishment upon officers by increasing the number of days restriction from not more than 14 to not more than 30 days, and the number of months one-half of one month's pay may be ordered forfeited by an officer exercising general court-martial jurisdiction from one to two months, empowering officers exercising general court-martial jurisdiction and officers of general or flag rank in command to impose arrest in quarters for not more than 30 consecutive days, restriction, with or without suspension from duty, for not more than 60 consecutive days, and detention of not more than one-half of one month's pay per month for three months, and officers of general or flag rank in command to order forfeiture of not more than one-half of one month's pay per month for two months, and the authority of commanding officers to impose punishment upon other personnel of his command to permit correctional custody for not more than seven consecutive days, forfeiture of not more than seven days' pay, and detention of not more than 14 days' pay, empowered officers of the grade of major or lieutenant commander, or above, to impose the punishments prescribed in clauses (i) to (vii) of subpar. (2) (H) upon personnel of his command other than officers, changed provisions which permitted reduction to next inferior grade, if the grade from which demoted was established by the command or an equivalent or lower command to permit reduction to the next inferior pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction, and provisions which permitted extra duties for not more than two consecutive weeks, and not more than two hours per day, holidays included, to authorize extra duties, including fatigue or other duties, for not more than 14 consecutive days, inserted provisions limiting detention of pay for a stated period of not more than one year, prohibiting two or more of the punishments of arrest in quarters, confinement on bread and water or diminished rations, correctional custody, extra duties, and restriction to be combined to run consecutively in the maximum amount imposable for each, combining of forfeiture of pay with detention without an apportionment, and service of correctional custody, if practicable, in immediate association with persons awaiting trial or held in confinement pursuant to court-martial, requiring apportionment of punishments combined to run consecutively, and in those cases where forfeiture of pay is combined with detention of pay, defining "correctional custody", and struck out provisions which permitted withholding of privileges of officers and other personnel for not more than two consecutive weeks and which authorized confinement for not more than seven consecutive days if imposed upon a person attached to or embarked in a vessel. Former subsec. (b) redesignated (a).

Subsec. (c). Pub. L. 87–648 substituted "under subsection (b)(2)(A)–(G) as the Secretary concerned may specifically prescribe by regulation" for "to be imposed by commanding officers as the Secretary concerned may by regulation specifically prescribe, as provided in subsections (a) and (b)," and deleted "for minor offenses" after "an officer in charge may".

Subsecs. (d), (e). Pub. L. 87–648 added subsec. (d), redesignated former subsec. (d) as (e), inserted provisions requiring the authority who is to act on an appeal from any of the seven enumerated punishments to refer the case to a judge advocate of the Army or Air Force, a law specialist of the Navy, or a law specialist or lawyer of the Marine Corps, Coast Guard, or Treasury Department for advice, and authorizing such referral of any case on appeal from punishments under subsec. (b) of this section, and substituted "The superior authority may exercise the same powers with respect to the punishment imposed as may be exercised under subsection (d) by the officer who imposed the punishment" for "The officer who imposes the punishment, his successor in command, and superior authority may suspend, set aside, or remit any part or amount of the punishment, and restore all rights, privileges, and property affected." Former subsec. (e) redesignated (f).

Subsecs. (f), (g). Pub. L. 87–648 redesignated former subsec. (e) as (f) and added subsec. (g).

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 2002 Amendment

Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.

Effective Date of 1983 Amendment

Amendment by section 13(b) of Pub. L. 98–209 effective Dec. 6, 1983, and amendment by section 2(c) of Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, see section 12(a)(1) of Pub. L. 98–209, set out as a note under section 801 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–623 intended to restate without substantive change the law in effect on Oct. 22, 1968, see section 6 of Pub. L. 90–623, set out as a note under section 5334 of Title 5, Government Organization and Employees.

Effective Date of 1962 Amendment

Pub. L. 87–648, §2, Sept. 7, 1962, 76 Stat. 450, provided that: "This Act [amending this section] becomes effective on the first day of the fifth month following the month in which it is enacted [September 1962]."

SUBCHAPTER IV—COURT-MARTIAL JURISDICTION

 
Sec.Art. 
816. 16. Courts-martial classified.
817. 17. Jurisdiction of courts-martial in general.
818. 18. Jurisdiction of general courts-martial.
819. 19. Jurisdiction of special courts-martial.
820. 20. Jurisdiction of summary courts-martial.
821. 21. Jurisdiction of courts-martial not exclusive.

§816. Art 16. Courts-martial classified

(a) In General.—The three kinds of courts-martial in each of the armed forces are the following:

(1) General courts-martial, as described in subsection (b).

(2) Special courts-martial, as described in subsection (c).

(3) Summary courts-martial, as described in subsection (d).


(b) General Courts-martial.—General courts-martial are of the following three types:

(1) A general court-martial consisting of a military judge and eight members, subject to sections 825(e)(3) and 829 of this title (articles 25(e)(3) and 29).

(2) In a capital case, a general court-martial consisting of a military judge and the number of members determined under section 825a of this title (article 25a), subject to sections 825(e)(3) and 829 of this title (articles 25(e)(3) and 29).

(3) A general court-martial consisting of a military judge alone, if, before the court is assembled, the accused, knowing the identity of the military judge and after consultation with defense counsel, requests, orally on the record or in writing, a court composed of a military judge alone and the military judge approves the request.


(c) Special Courts-martial.—Special courts-martial are of the following two types:

(1) A special court-martial consisting of a military judge and four members, subject to sections 825(e)(3) and 829 of this title (articles 25(e)(3) and 29).

(2) A special court-martial consisting of a military judge alone—

(A) if the case is so referred by the convening authority, subject to section 819 of this title (article 19) and such limitations as the President may prescribe by regulation; or

(B) if the case is referred under paragraph (1) and, before the court is assembled, the accused, knowing the identity of the military judge and after consultation with defense counsel, requests, orally on the record or in writing, a court composed of a military judge alone and the military judge approves the request.


(d) Summary Court-martial.—A summary court-martial consists of one commissioned officer.

(Aug. 10, 1956, ch. 1041, 70A Stat. 42; Pub. L. 90–632, §2(3), Oct. 24, 1968, 82 Stat. 1335; Pub. L. 98–209, §3(a), Dec. 6, 1983, 97 Stat. 1394; Pub. L. 107–107, div. A, title V, §582(a), Dec. 28, 2001, 115 Stat. 1124; Pub. L. 114–328, div. E, title LIV, §5161, Dec. 23, 2016, 130 Stat. 2897; Pub. L. 115–91, div. A, title X, §1081(c)(1)(C), Dec. 12, 2017, 131 Stat. 1597.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
816 50:576. May 5, 1950, ch. 169, §1 (Art. 16), 64 Stat. 113.

The word "The" is substituted for the words "There shall be". The word "are" is substituted for the word "namely". The words "not less than five members" are substituted for the words "any number of members not less than five". The words "not less than three members" are substituted for the words "any number of members not less than three". The word "commissioned" is inserted before the word "officer" in clause (3) for clarity.

Amendments

2017—Subsecs. (b), (c). Pub. L. 115–91 substituted "sections 825(e)(3) and 829 of this title (articles 25(e)(3) and 29)" for "sections 825(d)(3) and 829 of this title (articles 25(d)(3) and 29)" wherever appearing.

2016Pub. L. 114–328 amended section generally. Prior to amendment, section defined the three kinds of courts-martial in each of the armed forces.

2001—Par. (1)(A). Pub. L. 107–107 inserted "or, in a case in which the accused may be sentenced to a penalty of death, the number of members determined under section 825a of this title (article 25a)" after "five members".

1983—Par. (1)(B). Pub. L. 98–209 substituted "orally on the record or in writing" for "in writing".

1968Pub. L. 90–632 provided that a general or special court-martial shall consist of only a military judge if the accused, before the court is assembled, so requests in writing and the military judge approves, with the added requirements that the accused know the identity of the military judge and have the advice of counsel, and that the election be available in the case of a special court-martial only if a military judge has been detailed to the court.

Effective Date of 2017 Amendment

Amendment by Pub. L. 115–91 effective immediately after the amendments made by div. E (§§5001–5542) of Pub. L. 114–328 take effect as provided for in section 5542 of that Act (10 U.S.C. 801 note), see section 1081(c)(4) of Pub. L. 115–91, set out as a note under section 801 of this title.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 2001 Amendment

Pub. L. 107–107, div. A, title V, §582(d), Dec. 28, 2001, 115 Stat. 1125, provided that: "The amendments made by this section [enacting section 825a of this title and amending this section and section 829 of this title] shall apply with respect to offenses committed after December 31, 2002."

Effective Date of 1983 Amendment

Amendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, see section 12(a)(1) of Pub. L. 98–209, set out as a note under section 801 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.

§817. Art. 17. Jurisdiction of courts-martial in general

(a) Each armed force has court-martial jurisdiction over all persons subject to this chapter. The exercise of jurisdiction by one armed force over personnel of another armed force shall be in accordance with regulations prescribed by the President.

(b) In all cases, departmental review after that by the officer with authority to convene a general court-martial for the command which held the trial, where that review is required under this chapter, shall be carried out by the department that includes the armed force of which the accused is a member.

(Aug. 10, 1956, ch. 1041, 70A Stat. 43.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
817(a)

817(b)

50:577(a).

50:577(b).

May 5, 1950, ch. 169, §1 (Art. 17), 64 Stat. 114.

In subsection (a), the word "has" is substituted for the words "shall have".

In subsection (b), the word "after" is substituted for the words "subsequent to". The words "the provisions of" are omitted as surplusage. The words "department that includes the" are inserted before the words "armed force", since the review is carried out by the department and not by the armed force.

§818. Art. 18. Jurisdiction of general courts-martial

(a) Subject to section 817 of this title (article 17), general courts-martial have jurisdiction to try persons subject to this chapter for any offense made punishable by this chapter and may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when specifically authorized by this chapter. General courts-martial also have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war.

(b) A general court-martial of the kind specified in section 816(b)(3) of this title (article 16(b)(3)) shall not have jurisdiction to try any person for any offense for which the death penalty may be adjudged unless the case has been previously referred to trial as a noncapital case.

(c) Consistent with sections 819 and 820 of this title (articles 19 and 20), only general courts-martial have jurisdiction over the following offenses:

(1) A violation of subsection (a) or (b) of section 920 of this title (article 120).

(2) A violation of subsection (a) or (b) of section 920b of this title (article 120b).

(3) An attempt to commit an offense specified in paragraph (1) or (2) that is punishable under section 880 of this title (article 80).

(Aug. 10, 1956, ch. 1041, 70A Stat. 43; Pub. L. 90–632, §2(4), Oct. 24, 1968, 82 Stat. 1335; Pub. L. 113–66, div. A, title XVII, §1705(b), Dec. 26, 2013, 127 Stat. 959; Pub. L. 114–328, div. E, title LIV, §5162, Dec. 23, 2016, 130 Stat. 2898.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
818 50:578. May 5, 1950, ch. 169, §1 (Art. 18), 64 Stat. 114.

The word "shall" is omitted as surplusage wherever it occurs.

Amendments

2016—Subsec. (b). Pub. L. 114–328, §5162(1), substituted "section 816(b)(3) of this title (article 16(b)(3))" for "section 816(1)(B) of this title (article 16(1)(B))".

Subsec. (c). Pub. L. 114–328, §5162(2), added subsec. (c) and struck out former subsec. (c) which read as follows: "Consistent with sections 819, 820, and 856(b) of this title (articles 19, 20, and 56(b)), only general courts-martial have jurisdiction over an offense specified in section 856(b)(2) of this title (article 56(b)(2))."

2013Pub. L. 113–66 designated the first two sentences as subsec. (a), designated third sentence as subsec. (b) and substituted "A general court-martial" for "However, a general court-martial", and added subsec. (c).

1968Pub. L. 90–632 provided that a general court-martial consisting of only a military judge has no jurisdiction in cases in which the death penalty may be adjudged unless the case has been previously referred to trial as a noncapital case.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 2013 Amendment

Pub. L. 113–66, div. A, title XVII, §1705(c), Dec. 26, 2013, 127 Stat. 960, provided that: "The amendments made by this section [amending this section and section 856 of this title] shall take effect 180 days after the date of the enactment of this Act [Dec. 26, 2013], and apply to offenses specified in section 856(b)(2) of title 10, United States Code (article 56(b)(2) of the Uniform Code of Military Justice), as added by subsection (a)(1), committed on or after that date."

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.

§819. Art. 19. Jurisdiction of special courts-martial

(a) In General.—Subject to section 817 of this title (article 17), special courts-martial have jurisdiction to try persons subject to this chapter for any noncapital offense made punishable by this chapter and, under such regulations as the President may prescribe, for capital offenses. Special courts-martial may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter except death, dishonorable discharge, dismissal, confinement for more than one year, hard labor without confinement for more than three months, forfeiture of pay exceeding two-thirds pay per month, or forfeiture of pay for more than one year.

(b) Additional Limitation.—Neither a bad-conduct discharge, nor confinement for more than six months, nor forfeiture of pay for more than six months may be adjudged if charges and specifications are referred to a special court-martial consisting of a military judge alone under section 816(c)(2)(A) of this title (article 16(c)(2)(A)).

(c) Military Magistrate.—If charges and specifications are referred to a special court-martial consisting of a military judge alone under section 816(c)(2)(A) of this title (article 16(c)(2)(A)), the military judge, with the consent of the parties, may designate a military magistrate to preside over the special court-martial.

(Aug. 10, 1956, ch. 1041, 70A Stat. 43; Pub. L. 90–632, §2(5), Oct. 24, 1968, 82 Stat. 1335; Pub. L. 106–65, div. A, title V, §577(a), Oct. 5, 1999, 113 Stat. 625; Pub. L. 107–107, div. A, title X, §1048(g)(4), Dec. 28, 2001, 115 Stat. 1228; Pub. L. 114–328, div. E, title LIV, §5163, Dec. 23, 2016, 130 Stat. 2898.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
819 50:579. May 5, 1950, ch. 169, §1 (Art. 19), 64 Stat. 114.

The word "shall" in the first sentence is omitted as surplusage. The words "for more than" are substituted for the words "in excess of". The words "more than" are substituted for the words "a period exceeding". The word "may" is substituted for the word "shall" in the last sentence.

Amendments

2016Pub. L. 114–328 designated existing provisions as subsec. (a) and inserted heading, struck out "A bad-conduct discharge, confinement for more than six months, or forfeiture of pay for more than six months may not be adjudged unless a complete record of the proceedings and testimony has been made, counsel having the qualifications prescribed under section 827(b) of this title (article 27(b)) was detailed to represent the accused, and a military judge was detailed to the trial, except in any case in which a military judge could not be detailed to the trial because of physical conditions or military exigencies. In any such case in which a military judge was not detailed to the trial, the convening authority shall make a detailed written statement, to be appended to the record, stating the reason or reasons a military judge could not be detailed." after "one year.", and added subsecs. (b) and (c).

2001Pub. L. 107–107, §1048(g)(4), amended directory language of Pub. L. 106–65, §577(a)(2). See 1999 Amendment note below.

1999Pub. L. 106–65, §577(a)(2), as amended by Pub. L. 107–107, §1048(g)(4), inserted ", confinement for more than six months, or forfeiture of pay for more than six months" after "A bad-conduct discharge" in third sentence.

Pub. L. 106–65, §577(a)(1), substituted "one year" for "six months" in two places in second sentence.

1968Pub. L. 90–632 provided that before a bad-conduct discharge may be adjudged by a special court-martial the accused must be detailed counsel who is legally qualified under the Code and a military judge must be detailed to the trial, with a detailed written statement appended to the record if a military judge was not detailed to the trial, because of physical conditions and military exigencies, stating the reasons that a military judge could not be so detailed.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 2001 Amendment

Pub. L. 107–107, div. A, title X, §1048(g), Dec. 28, 2001, 115 Stat. 1228, provided that the amendment made by section 1048(g)(4) is effective as of Oct. 5, 1999, and as if included in Pub. L. 106–65 as enacted.

Effective Date of 1999 Amendment

Pub. L. 106–65, div. A, title V, §577(b), Oct. 5, 1999, 113 Stat. 625, provided that: "The amendments made by subsection (a) [amending this section] shall take effect on the first day of the sixth month beginning after the date of the enactment of this Act [Oct. 5, 1999] and shall apply with respect to charges referred on or after that effective date to trial by special courts-martial."

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.

§820. Art. 20. Jurisdiction of summary courts-martial

(a) In General.—Subject to section 817 of this title (article 17), summary courts-martial have jurisdiction to try persons subject to this chapter, except officers, cadets, aviation cadets, and midshipmen, for any noncapital offense made punishable by this chapter. No person with respect to whom summary courts-martial have jurisdiction may be brought to trial before a summary court-martial if he objects thereto. If objection to trial by summary court-martial is made by an accused, trial may be ordered by special or general court-martial as may be appropriate. Summary courts-martial may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter except death, dismissal, dishonorable or bad-conduct discharge, confinement for more than one month, hard-labor without confinement for more than 45 days, restriction to specified limits for more than two months, or forfeiture of more than two-thirds of one month's pay.

(b) Non-criminal Forum.—A summary court-martial is a non-criminal forum. A finding of guilty at a summary court-martial does not constitute a criminal conviction.

(Aug. 10, 1956, ch. 1041, 70A Stat. 43; Pub. L. 90–632, §2(6), Oct. 24, 1968, 82 Stat. 1336; Pub. L. 114–328, div. E, title LIV, §5164, Dec. 23, 2016, 130 Stat. 2899.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
820 50:580. May 5, 1950, ch. 169, §1 (Art. 20), 64 Stat. 114.

The word "shall" in the first sentence is omitted as surplusage. The word "may" is substituted for the word "shall" in the second sentence. The words "the provisions of" are omitted as surplusage. The word "If" is substituted for the word "Where". The words "for more than" are substituted for the words "in excess of". The words "more than" are substituted for the words "pay in excess of".

Amendments

2016Pub. L. 114–328 designated existing provisions as subsec. (a), inserted heading, and added subsec. (b).

1968Pub. L. 90–632 substituted provisions prohibiting trial by summary court-martial in all cases if the person objects thereto for provisions allowing such trial over the person's objection if he has previously been offered and has refused article 15 punishment.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.

§821. Art. 21. Jurisdiction of courts-martial not exclusive

The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals. This section does not apply to a military commission established under chapter 47A of this title.

(Aug. 10, 1956, ch. 1041, 70A Stat. 44; Pub. L. 109–366, §4(a)(2), Oct. 17, 2006, 120 Stat. 2631.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
821 50:581. May 5, 1950, ch. 169, §1 (Art. 21), 64 Stat. 115.

The words "do not deprive" are substituted for the words "shall not be construed as depriving". The words "with respect to" are substituted for the words "in respect of".

Amendments

2006Pub. L. 109–366 inserted last sentence.

SUBCHAPTER V—COMPOSITION OF COURTS-MARTIAL

 
Sec.Art. 
822. 22. Who may convene general courts-martial.
823. 23. Who may convene special courts-martial.
824. 24. Who may convene summary courts-martial.
825. 25. Who may serve on courts-martial.
825a. 25a. Number of court-martial members in capital cases.
826. 26. Military judge of a general or special court-martial.
826a. 26a. Military magistrates.
827. 27. Detail of trial counsel and defense counsel.
828. 28. Detail or employment of reporters and interpreters.
829. 29. Assembly and impaneling of members; detail of new members and military judges.

Amendments

2017Pub. L. 115–91, div. A, title X, §1081(d)(19)(A), (B), Dec. 12, 2017, 131 Stat. 1601, amended Pub. L. 114–328, §5541(2). See 2016 Amendment note below.

2016Pub. L. 114–328, div. E, title LXIII, §5541(2), Dec. 23, 2016, 130 Stat. 2965, as amended by Pub. L. 115–91, div. A, title X, §1081(d)(19)(A), (B), Dec. 12, 2017, 131 Stat. 1601, added items 825a, 826a, and 829 and struck out former items 825a "Art. 25a. Number of members in capital cases" and 829 "Art. 29. Absent and additional members".

2001Pub. L. 107–107, div. A, title V, §582(b)(2), Dec. 28, 2001, 115 Stat. 1124, added item 825a.

1968Pub. L. 90–632, §2(8), Oct. 24, 1968, 82 Stat. 1336, substituted "Military judge of a general or special court-martial" for "Law officer of a general court-martial" in item 826.

§822. Art. 22. Who may convene general courts-martial

(a) General courts-martial may be convened by—

(1) the President of the United States;

(2) the Secretary of Defense;

(3) the commanding officer of a unified or specified combatant command;

(4) the Secretary concerned;

(5) the commanding officer of an Army Group, an Army, an Army Corps, a division, a separate brigade, or a corresponding unit of the Army or Marine Corps;

(6) the commander of a fleet; the commanding officer of a naval station or larger shore activity of the Navy beyond the United States;

(7) the commanding officer of an air command, an air force, an air division, or a separate wing of the Air Force or Marine Corps;

(8) any other commanding officer designated by the Secretary concerned; or

(9) any other commanding officer in any of the armed forces when empowered by the President.


(b) If any such commanding officer is an accuser, the court shall be convened by superior competent authority, and may in any case be convened by such authority if considered desirable by him.

(Aug. 10, 1956, ch. 1041, 70A Stat. 44; Pub. L. 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, 2006, 119 Stat. 3440; Pub. L. 114–328, div. E, title LV, §5181, Dec. 23, 2016, 130 Stat. 2899.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
822(a)

822(b)

50:586(a).

50:586(b).

May 5, 1950, ch. 169, §1 (Art. 22), 64 Stat. 115.

Subsection (a)(2) is substituted for the words "the Secretary of a Department".

In subsection (a)(4), the words "continental limits of the" are omitted, since section 101(1) of this title defines the United States to include the States and the District of Columbia.

In subsection (a)(6), the words "any other commanding officer" are substituted for the words "such other commanding officers as may be".

In subsection (b), the word "If" is substituted for the word "When". The words "if considered" are substituted for the words "when deemed".

Amendments

2016—Subsec. (a)(6). Pub. L. 114–328 struck out "in chief" after "the commander".

2006—Subsec. (a)(5). Pub. L. 109–163 struck out "a Territorial Department," before "an Army Group".

1986—Subsec. (a)(2) to (9). Pub. L. 99–433 added pars. (2) and (3) and redesignated existing pars. (2) to (7) as (4) to (9), respectively.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

§823. Art. 23. Who may convene special courts-martial

(a) Special courts-martial may be convened by—

(1) any person who may convene a general court-martial;

(2) the commanding officer of a district, garrison, fort, camp, station, Air Force base, auxiliary air field, or other place where members of the Army or the Air Force are on duty;

(3) the commanding officer of a brigade, regiment, detached battalion, or corresponding unit of the Army;

(4) the commanding officer of a wing, group, or separate squadron of the Air Force;

(5) the commanding officer of any naval or Coast Guard vessel, shipyard, base, or station; the commanding officer of any Marine brigade, regiment, detached battalion, or corresponding unit; the commanding officer of any Marine barracks, wing, group, separate squadron, station, base, auxiliary air field, or other place where members of the Marine Corps are on duty;

(6) the commanding officer of any separate or detached command or group of detached units of any of the armed forces placed under a single commander for this purpose; or

(7) the commanding officer or officer in charge of any other command when empowered by the Secretary concerned.


(b) If any such officer is an accuser, the court shall be convened by superior competent authority, and may in any case be convened by such authority if considered advisable by him.

(Aug. 10, 1956, ch. 1041, 70A Stat. 44.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
823(a)

823(b)

50:587(a).

50:587(b).

May 5, 1950, ch. 169, §1 (Art. 23), 64 Stat. 115.

In subsection (a)(7), the words "Secretary concerned" are substituted for the words "Secretary of a Department".

In subsection (b), the word "If" is substituted for the word "When". The words "if considered" are substituted for the words "when deemed".

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

§824. Art. 24. Who may convene summary courts-martial

(a) Summary courts-martial may be convened by—

(1) any person who may convene a general or special court-martial;

(2) the commanding officer of a detached company, or other detachment of the Army;

(3) the commanding officer of a detached squadron or other detachment of the Air Force; or

(4) the commanding officer or officer in charge of any other command when empowered by the Secretary concerned.


(b) When only one commissioned officer is present with a command or detachment he shall be the summary court-martial of that command or detachment and shall hear and determine all summary court-martial cases brought before him. Summary courts-martial may, however, be convened in any case by superior competent authority when considered desirable by him.

(Aug. 10, 1956, ch. 1041, 70A Stat. 45.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
824(a)

824(b)

50:588(a).

50:588(b).

May 5, 1950, ch. 169, §1 (Art. 24), 64 Stat. 116.

In subsection (a)(4), the words "Secretary concerned" are substituted for the words "Secretary of a Department".

In subsection (b), the words "only one commissioned" are substituted for the words "but one" for clarity. The word "considered" is substituted for the word "deemed".

§825. Art. 25. Who may serve on courts-martial

(a) Any commissioned officer on active duty is eligible to serve on all courts-martial for the trial of any person who may lawfully be brought before such courts for trial.

(b) Any warrant officer on active duty is eligible to serve on general and special courts-martial for the trial of any person, other than a commissioned officer, who may lawfully be brought before such courts for trial.

(c)(1) Any enlisted member on active duty is eligible to serve on a general or special court-martial for the trial of any other enlisted member.

(2) Before a court-martial with a military judge and members is assembled for trial, an enlisted member who is an accused may personally request, orally on the record or in writing, that—

(A) the membership of the court-martial be comprised entirely of officers; or

(B) enlisted members comprise at least one-third of the membership of the court-martial, regardless of whether enlisted members have been detailed to the court-martial.


(3) Except as provided in paragraph (4), after such a request, the accused may not be tried by a general or special court-martial if the membership of the court-martial is inconsistent with the request.

(4) If, because of physical conditions or military exigencies, a sufficient number of eligible officers or enlisted members, as the case may be, is not available to carry out paragraph (2), the trial may nevertheless be held. In that event, the convening authority shall make a detailed written statement of the reasons for nonavailability. The statement shall be appended to the record.

(d)(1) Except as provided in paragraph (2) for capital offenses, the accused in a court-martial with a military judge and members may, after the findings are announced and before any matter is presented in the sentencing phase, request, orally on the record or in writing, sentencing by members.

(2) In a capital case, the accused shall be sentenced by the members for all offenses for which the court-martial may sentence the accused to death in accordance with section 853(c) of this title (article 53(c)).

(3) In a capital case, if the accused is convicted of a non-capital offense, the accused shall be sentenced for such non-capital offense in accordance with section 853(b) of this title (article 53(b)), regardless of whether the accused is convicted of an offense for which the court-martial may sentence the accused to death.

(e)(1) When it can be avoided, no member of an armed force may be tried by a court-martial any member of which is junior to him in rank or grade.

(2) When convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No member of an armed force is eligible to serve as a member of a general or special court-martial when he is the accuser or a witness for the prosecution or has acted as preliminary hearing officer or as counsel in the same case.

(3) The convening authority shall detail not less than the number of members necessary to impanel the court-martial under section 829 of this title (article 29).

(f) Before a court-martial is assembled for the trial of a case, the convening authority may excuse a member of the court from participating in the case. Under such regulations as the Secretary concerned may prescribe, the convening authority may delegate his authority under this subsection to his staff judge advocate or legal officer or to any other principal assistant.

(Aug. 10, 1956, ch. 1041, 70A Stat. 45; Pub. L. 90–632, §2(7), Oct. 24, 1968, 82 Stat. 1336; Pub. L. 98–209, §§3(b), 13(c), Dec. 6, 1983, 97 Stat. 1394, 1408; Pub. L. 99–661, div. A, title VIII, §803(a), Nov. 14, 1986, 100 Stat. 3906; Pub. L. 114–328, div. E, title LV, §5182, title LVI, §5203(e)(2), Dec. 23, 2016, 130 Stat. 2899, 2906.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
825(a)

825(b)

50:589(a).

50:589(b).

May 5, 1950, ch. 169, §1 (Art. 25), 64 Stat. 116.
825(c) 50:589(c).
825(d) 50:589(d).

In subsection (a), the word "commissioned" is inserted before the word "officer" for clarity. The word "is" is substituted for the words "shall be".

In subsections (a), (b), and (c)(1), the words "with the armed forces" are omitted as surplusage.

In subsection (b), the word "is" is substituted for the words "shall be". The words "a commissioned" are substituted for the word "an" for clarity.

In subsection (c), the words "member" and "members", respectively are substituted for the words "person" and "persons". The words "of an armed force" are inserted for clarity.

In subsection (c)(1), the word "is" is substituted for the words "shall be". The word "before" is substituted for the words "prior to". The words "the accused may not" are substituted for the words "no enlisted person shall", for clarity. The word "If" is substituted for the word "Where".

In subsection (c)(2), the word "means" is substituted for the words "shall mean". The words "Secretary concerned" are substituted for the words "Secretary of the Department". The word "may" is substituted for the word "shall". The word "than", before the words "a body", is omitted as surplusage.

In subsection (d)(1), the word "may" is substituted for the word "shall". The word "member" is substituted for the word "person".

In subsection (d)(2), the word "is" is substituted for the words "shall be". The word "detail" is substituted for the word "appoint", since the filling of the position involved is not appointment to an office in the constitutional sense. The words "member of an armed force" and "members of the armed forces", respectively, are substituted for the words "person" and "persons".

Amendments

2016—Subsec. (c). Pub. L. 114–328, §5182(a), amended subsec. (c) generally. Prior to amendment, subsec. (c) related to service on general and special courts-martial by enlisted members.

Subsec. (d). Pub. L. 114–328, §5182(b)(2), added subsec. (d). Former subsec. (d) redesignated (e).

Subsec. (e). Pub. L. 114–328, §5182(b)(1), redesignated subsec. (d) as (e). Former subsec. (e) redesignated (f).

Subsec. (e)(2). Pub. L. 114–328, §5203(e)(2), which directed amendment of this section by substituting "preliminary hearing officer" for "investigating officer" in subsec. (d)(2), was executed by making the substitution in subsec. (e)(2) to reflect the probable intent of Congress and the redesignation of subsec. (d) as (e) by Pub. L. 114–328, §5182(b)(1).

Subsec. (e)(3). Pub. L. 114–328, §5182(c), added par. (3).

Subsec. (f). Pub. L. 114–328, §5182(b)(1), redesignated subsec. (e) as (f).

1986—Subsec. (c)(1). Pub. L. 99–661 substituted "has requested orally on the record or in writing" for "has requested in writing".

1983—Subsec. (c)(2). Pub. L. 98–209, §13(c), struck out "the word" before " 'unit' ".

Subsec. (e). Pub. L. 98–209, §3(b), added subsec. (e).

1968—Subsec. (c)(1). Pub. L. 90–632 inserted requirement that an accused's request for inclusion of enlisted members on his court-martial be made before conclusion of a pre-trial session called by the military judge under section 839(a) or before the court is assembled for his trial and substituted "assembled" for "convened" to describe the calling together of the court for the trial in provision allowing such calling together without requested enlisted members if such members cannot be obtained.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 1986 Amendment

Pub. L. 99–661, div. A, title VIII, §803(b), Nov. 14, 1986, 100 Stat. 3906, provided that: "The amendment made by subsection (a) [amending this section] shall apply only to a case in which arraignment is completed on or after the effective date of this title."

Title VIII of Pub. L. 99–661 effective the earlier of (1) the last day of the 120-day period beginning on Nov. 14, 1986; or (2) the date specified in an Executive order for such amendment to take effect, see section 808 of Pub. L. 99–661, set out as a note under section 802 of this title.

Effective Date of 1983 Amendment

Amendment by section 13(c) of Pub. L. 98–209 effective Dec. 6, 1983, and amendment by section 3(b) of Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, see section 12(a)(1) of Pub. L. 98–209, set out as a note under section 801 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.

§825a. Art. 25a. Number of court-martial members in capital cases

(a) In General.—In a case in which the accused may be sentenced to death, the number of members shall be 12.

(b) Case No Longer Capital.—Subject to section 829 of this title (article 29)—

(1) if a case is referred for trial as a capital case and, before the members are impaneled, the accused may no longer be sentenced to death, the number of members shall be eight; and

(2) if a case is referred for trial as a capital case and, after the members are impaneled, the accused may no longer be sentenced to death, the number of members shall remain 12.

(Added Pub. L. 107–107, div. A, title V, §582(b)(1), Dec. 28, 2001, 115 Stat. 1124; amended Pub. L. 114–328, div. E, title LV, §5183, Dec. 23, 2016, 130 Stat. 2900.)

Amendments

2016Pub. L. 114–328 amended section generally. Prior to amendment, text read as follows: "In a case in which the accused may be sentenced to a penalty of death, the number of members shall be not less than 12, unless 12 members are not reasonably available because of physical conditions or military exigencies, in which case the convening authority shall specify a lesser number of members not less than five, and the court may be assembled and the trial held with not less than the number of members so specified. In such a case, the convening authority shall make a detailed written statement, to be appended to the record, stating why a greater number of members were not reasonably available."

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date

Section applicable with respect to offenses committed after Dec. 31, 2002, see section 582(d) of Pub. L. 107–107, set out as an Effective Date of 2001 Amendment note under section 816 of this title.

§826. Art. 26. Military judge of a general or special court-martial

(a) A military judge shall be detailed to each general and special court-martial. The military judge shall preside over each open session of the court-martial to which he has been detailed.

(b) A military judge shall be a commissioned officer of the armed forces who is a member of the bar of a Federal court or a member of the bar of the highest court of a State and who is certified to be qualified, by reason of education, training, experience, and judicial temperament, for duty as a military judge by the Judge Advocate General of the armed force of which such military judge is a member.

(c)(1) In accordance with regulations prescribed under subsection (a), a military judge of a general or special court-martial shall be designated for detail by the Judge Advocate General of the armed force of which the military judge is a member.

(2) Neither the convening authority nor any member of the staff of the convening authority shall prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to the military judge's performance of duty as a military judge.

(3) A commissioned officer who is certified to be qualified for duty as a military judge of a general court-martial—

(A) may perform such duties only when the officer is assigned and directly responsible to the Judge Advocate General of the armed force of which the military judge is a member; and

(B) may perform duties of a judicial or nonjudicial nature other than those relating to the officer's primary duty as a military judge of a general court-martial when such duties are assigned to the officer by or with the approval of that Judge Advocate General.


(4) In accordance with regulations prescribed by the President, assignments of military judges under this section (article) shall be for appropriate minimum periods, subject to such exceptions as may be authorized in the regulations.

(d) No person is eligible to act as military judge in a case if he is the accuser or a witness for the prosecution or has acted as preliminary hearing officer or a counsel in the same case.

(e) The military judge of a court-martial may not consult with the members of the court except in the presence of the accused, trial counsel, and defense counsel, nor may he vote with the members of the court.

(f) A military judge may be detailed under subsection (a) to a court-martial or a proceeding under section 830a of this title (article 30a) that is convened in a different armed force, when so permitted by the Judge Advocate General of the armed force of which the military judge is a member.

(g) In accordance with regulations prescribed by the President, each Judge Advocate General shall designate a chief trial judge from among the members of the applicable trial judiciary.

(Aug. 10, 1956, ch. 1041, 70A Stat. 46; Pub. L. 90–632, §2(9), Oct. 24, 1968, 82 Stat. 1336; Pub. L. 98–209, §3(c)(1), Dec. 6, 1983, 97 Stat. 1394; Pub. L. 114–328, div. E, title LV, §5184, title LVI, §5203(e)(3), Dec. 23, 2016, 130 Stat. 2901, 2906.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
826(a)

826(b)

50:590(a).

50:590(b).

May 5, 1950, ch. 169, §1 (Art. 26), 64 Stat. 117.

In subsection (a), the words "a commissioned" are substituted for the word "an" for clarity. The words "of the United States" are omitted as surplusage. The word "is" is substituted for the words "shall be". The word "if" is substituted for the word "when". The word "detail" is substituted for the word "appoint", since the filling of the position involved is not appointment to an office in the constitutional sense.

In subsection (b), the word "may" is substituted for the word "shall".

Amendments

2016—Subsec. (a). Pub. L. 114–328, §5184(a), inserted "and special" after "each general" and struck out "Subject to regulations of the Secretary concerned, a military judge may be detailed to any special court-martial." before "The military judge".

Subsec. (b). Pub. L. 114–328, §5184(b), substituted "qualified, by reason of education, training, experience, and judicial temperament, for duty" for "qualified for duty".

Subsec. (c). Pub. L. 114–328, §5184(c), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: "The military judge of a general court-martial shall be designated by the Judge Advocate General, or his designee, of the armed force of which the military judge is a member for detail in accordance with regulations prescribed under subsection (a). Unless the court-martial was convened by the President or the Secretary concerned, neither the convening authority nor any member of his staff shall prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to his performance of duty as a military judge. A commissioned officer who is certified to be qualified for duty as a military judge of a general court-martial may perform such duties only when he is assigned and directly responsible to the Judge Advocate General, or his designee, of the armed force of which the military judge is a member and may perform duties of a judicial or nonjudicial nature other than those relating to his primary duty as a military judge of a general court-martial when such duties are assigned to him by or with the approval of that Judge Advocate General or his designee."

Subsec. (d). Pub. L. 114–328, §5203(e)(3), substituted "preliminary hearing officer" for "investigating officer".

Subsec. (f). Pub. L. 114–328, §5184(d), added subsec. (f).

Subsec. (g). Pub. L. 114–328, §5184(e), added subsec. (g).

1983—Subsec. (a). Pub. L. 98–209, §3(c)(1)(A), amended subsec. (a) generally, inserting provision requiring the Secretary concerned to prescribe regulations providing for the manner in which military judges are detailed for courts-martial and for the persons who are authorized to detail military judges for such courts-martial.

Subsec. (c). Pub. L. 98–209, §3(c)(1)(B), substituted "in accordance with regulations prescribed under subsection (a). Unless" for "by the convening authority, and, unless".

1968Pub. L. 90–632 substituted "military judge" for "law officer" and inserted reference to special court-martial.

Subsec. (a). Pub. L. 90–632 substituted reference to military judge for references to law officer and such law officer's requisite qualifications, inserted reference to special court-martial and regulations of the Secretary concerned governing the convening of a special court-martial, inserted provisions directing the military judge to preside over the open sessions of the court-martial to which he was assigned, and struck out provisions making law officers ineligible in a case in which he was the accuser or a witness for the prosecution or acted as investigating officer or as counsel.

Subsecs. (b) to (d). Pub. L. 90–632 added subsecs. (b) to (d). Former subsec. (b) redesignated as subsec. (e) and amended.

Subsec. (e). Pub. L. 90–632 redesignated former subsec. (b) as (e) and substituted "military judge" for "law officer" and struck out provision allowing consultation with members of the court on the form of the findings as provided in section 839 of this title (article 39).

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 1983 Amendment

Amendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, but not to affect the designation or detail of a military judge or military counsel to a court-martial before that date, see section 12(a)(1), (2) of Pub. L. 98–209, set out as a note under section 801 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.

Statutory References to Law Officer Deemed References to Military Judge

Pub. L. 90–632, §3(a), Oct. 24, 1968, 82 Stat. 1343, provided that: "Whenever the term law officer is used, with reference to any officer detailed to a court-martial pursuant to section 826(a) (article 26(a)) of title 10, United States Code [subsec. (a) of this section], in any provision of Federal law (other than provisions amended by this Act [see Short Title of 1968 Amendment note set out under section 801 of this title] or in any regulation, document, or record of the United States, such term shall be deemed to mean military judge."

§826a. Art. 26a. Military magistrates

(a) Qualifications.—A military magistrate shall be a commissioned officer of the armed forces who—

(1) is a member of the bar of a Federal court or a member of the bar of the highest court of a State; and

(2) is certified to be qualified, by reason of education, training, experience, and judicial temperament, for duty as a military magistrate by the Judge Advocate General of the armed force of which the officer is a member.


(b) Duties.—In accordance with regulations prescribed by the Secretary concerned, in addition to duties when designated under section 819 or 830a of this title (article 19 or 30a), a military magistrate may be assigned to perform other duties of a nonjudicial nature.

(Added Pub. L. 114–328, div. E, title LV, §5185, Dec. 23, 2016, 130 Stat. 2901.)

Effective Date

Section effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. 13825, set out as notes under section 801 of this title.

§827. Art. 27. Detail of trial counsel and defense counsel

(a)(1) Trial counsel and defense counsel shall be detailed for each general and special court-martial. Assistant trial counsel and assistant and associate defense counsel may be detailed for each general and special court-martial. The Secretary concerned shall prescribe regulations providing for the manner in which counsel are detailed for such courts-martial and for the persons who are authorized to detail counsel for such courts-martial.

(2) No person who, with respect to a case, has served as a preliminary hearing officer, court member, military judge, military magistrate, or appellate judge, may later serve as trial counsel, assistant trial counsel, or, unless expressly requested by the accused, as defense counsel or assistant or associate defense counsel in the same case. No person who has acted for the prosecution may act later in the same case for the defense, nor may any person who has acted for the defense act later in the same case for the prosecution.

(b) Trial counsel, defense counsel, or assistant defense counsel detailed for a general court-martial—

(1) must be a judge advocate who is a graduate of an accredited law school or is a member of the bar of a Federal court or of the highest court of a State; or must be a member of the bar of a Federal court or of the highest court of a State; and

(2) must be certified as competent to perform such duties by the Judge Advocate General of the armed force of which he is a member.


(c)(1) Defense counsel and assistant defense counsel detailed for a special court-martial shall have the qualifications set forth in subsection (b).

(2) Trial counsel and assistant trial counsel detailed for a special court-martial and assistant trial counsel detailed for a general court-martial must be determined to be competent to perform such duties by the Judge Advocate General, under such rules as the President may prescribe.

(d) To the greatest extent practicable, in any capital case, at least one defense counsel shall, as determined by the Judge Advocate General, be learned in the law applicable to such cases. If necessary, this counsel may be a civilian and, if so, may be compensated in accordance with regulations prescribed by the Secretary of Defense.

(Aug. 10, 1956, ch. 1041, 70A Stat. 46; Pub. L. 90–179, §1(5), Dec. 8, 1967, 81 Stat. 546; Pub. L. 90–632, §2(10), Oct. 24, 1968, 82 Stat. 1337; Pub. L. 98–209, §§2(d), 3(c)(2), Dec. 6, 1983, 97 Stat. 1393, 1394; Pub. L. 114–328, div. E, title LV, §5186, Dec. 23, 2016, 130 Stat. 2902.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
827(a)

827(b)

50:591(a).

50:591(b).

May 5, 1950, ch. 169, §1 (Art. 27), 64 Stat. 117.
827(c) 50:591(c).

The words, "detail" and "detailed" are substituted for the words "appoint" and "appointed" throughout the revised section, since the filling of the position involved is not appointment to an office in the constitutional sense.

In subsection (a), the word "and" is substituted for the words "together with". The word "considers" is substituted for the word "deems". The words "necessary or" are omitted as surplusage, since what is necessary is also appropriate. The word "may" is substituted for the word "shall". The word "later" is substituted for the word "subsequently".

In subsections (b) and (c), the word "must" is substituted for the word "shall", since the clauses prescribe conditions and not commands.

In subsection (b), the word "for" is substituted for the words "in the case of". The words "person * * * a person who is" are omitted as surplusage.

Amendments

Subsec. (a)(2). Pub. L. 114–328, §5186(1), substituted "No person who, with respect to a case, has served as a preliminary hearing officer, court member, military judge, military magistrate, or appellate judge, may later serve as trial counsel," for "No person who has acted as investigating officer, military judge, or court member in any case may act later as trial counsel,".

Subsec. (b). Pub. L. 114–328, §5186(2), substituted "Trial counsel, defense counsel, or assistant defense counsel" for "Trial counsel or defense counsel" in introductory provisions.

Subsecs. (c), (d). Pub. L. 114–328, §5186(3), added subsecs. (c) and (d) and struck out former subsec. (c) which read as follows: "In the case of a special court-martial—

"(1) the accused shall be afforded the opportunity to be represented at the trial by counsel having the qualifications prescribed under section 827(b) of this title (article 27(b)) unless counsel having such qualifications cannot be obtained on account of physical conditions or military exigencies. If counsel having such qualifications cannot be obtained, the court may be convened and the trial held but the convening authority shall make a detailed written statement, to be appended to the record, stating why counsel with such qualifications could not be obtained;

"(2) if the trial counsel is qualified to act as counsel before a general court-martial, the defense counsel detailed by the convening authority must be a person similarly qualified; and

"(3) if the trial counsel is a judge advocate or a member of the bar of a Federal court or the highest court of a State, the defense counsel detailed by the convening authority must be one of the foregoing."

1983—Subsec. (a)(1). Pub. L. 98–209, §3(c)(2)(A), designated first sentence of existing provisions as par. (1), substituted provisions requiring that trial counsel and defense counsel be detailed for each general and special court-martial, and permitting the detailing of assistant trial counsel and assistant and associate defense counsel for each general and special court-martial for provisions requiring that for each general and special court-martial the authority convening the court had to detail trial counsel and defense counsel and such assistants as he considered appropriate, and inserted provision requiring the Secretary concerned to prescribe regulations providing for the manner in which counsel are detailed for such courts-martial and for the persons who are authorized to detail counsel for such courts-martial.

Subsec. (a)(2). Pub. L. 98–209, §3(c)(2)(B), designated existing provision, less first sentence, as par. (2) and substituted "assistant or associate defense counsel" for "assistant defense counsel".

Subsec. (b)(1). Pub. L. 98–209, §2(d)(1), substituted "judge advocate" for "judge advocate of the Army, Navy, Air Force, or Marine Corps or a law specialist of the Coast Guard,".

Subsec. (c)(3). Pub. L. 98–209, §2(d)(2), struck out ", or a law specialist," after "is a judge advocate".

1968—Subsec. (a). Pub. L. 90–632, §2(10)(A), substituted "military judge" for "law officer".

Subsec. (c). Pub. L. 90–632, §2(10)(B), redesignated former pars. (1) and (2) as pars. (2) and (3), respectively, and added par. (1).

1967—Subsec. (b)(1). Pub. L. 90–179 inserted reference to judge advocate of the Marine Corps and substituted reference to judge advocate of the Navy for reference to law specialist of the Navy.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 1983 Amendment

Amendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, but amendment by section 3(c)(2) of Pub. L. 98–209 not to affect the designation or detail of a military judge or military counsel to a court-martial before that date, see section 12(a)(1), (2) of Pub. L. 98–209, set out as a note under section 801 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.

Effective Prosecution and Defense in Courts-Martial and Pilot Programs on Professional Military Justice Development for Judge Advocates

Pub. L. 114–328, div. A, title V, §542, Dec. 23, 2016, 130 Stat. 2126, as amended by Pub. L. 115–91, div. A, title V, §532, Dec. 12, 2017, 131 Stat. 1388, provided that:

"(a) Program for Effective Prosecution and Defense.—The Secretary concerned shall carry out a program to ensure that—

"(1) trial counsel and defense counsel detailed to prosecute or defend a court-martial have sufficient experience and knowledge to effectively prosecute or defend the case or there is adequate supervision and oversight of trial counsel and defense counsel so detailed to ensure effective prosecution and defense in the court-martial; and

"(2) a deliberate professional developmental process is in place to ensure effective prosecution and defense in all courts-martial.

"(b) Military Justice Experience Designators or Skill Identifiers.—The Secretary concerned shall establish and use a system of military justice experience designators or skill identifiers for purposes of identifying judge advocates with skill and experience in military justice proceedings in order to ensure that judge advocates with experience and skills identified through such experience designators or skill identifiers are assigned to develop less experienced judge advocates in the prosecution and defense in courts-martial under a program carried out pursuant to subsection (a).

"(c) Use of Civilian Employees to Advise Less Experienced Judge Advocates in Prosecution and Defense.—The Secretary concerned may use highly qualified experts and other civilian employees who are under the jurisdiction of the Secretary concerned, are available, and are experienced in the prosecution or defense of complex criminal cases to provide assistance to, and consult with, less experienced judge advocates throughout the court-martial process.

"(d) Pilot Programs on Professional Developmental Process for Judge Advocates.—

"(1) Purpose.—The Secretary concerned shall carry out a pilot program to assess the feasibility and advisability of a military justice career track for judge advocates under the jurisdiction of the Secretary.

"(2) Additional matters.—A pilot program may also assess such other matters related to professional military justice development for judge advocates as the Secretary concerned considers appropriate.

"(3) Duration.—Each pilot program shall be for a period of five years.

"(4) Elements.—Each pilot program shall include the following:

"(A) A military justice career track for judge advocates that leads to judge advocates with military justice expertise in the grade of colonel, or in the grade of captain in the case of judge advocates of the Navy.

"(B) The use of skill identifiers to identify judge advocates for participation in the pilot program from among judge advocates having appropriate skill and experience in military justice matters.

"(C) Guidance for promotion boards considering the selection for promotion of officers participating in the pilot program in order to ensure that judge advocates who are participating in the pilot program have the same opportunity for promotion as all other judge advocate officers being considered for promotion by such boards.

"(D) Such other matters as the Secretary concerned considers appropriate.

"(5) Report.—Not later than four years after the date of the enactment of this Act [Dec. 23, 2016], the Secretary concerned shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report on the pilot programs conducted under this section. The report shall include the following:

"(A) A description and assessment of each pilot program.

"(B) Such recommendations as the Secretary considers appropriate in light of the pilot programs, including whether any pilot program should be extended or made permanent.

"(e) Secretary Concerned Defined.—In this section, the term 'Secretary concerned' has the meaning given that term in section 101(a)(9) of title 10, United States Code."

§828. Art. 28. Detail or employment of reporters and interpreters

Under such regulations as the Secretary concerned may prescribe, the convening authority of a court-martial, military commission, or court of inquiry shall detail or employ qualified court reporters, who shall record the proceedings of and testimony taken before that court or commission. Under like regulations the convening authority of a court-martial, military commission, or court of inquiry may detail or employ interpreters who shall interpret for the court or commission. This section does not apply to a military commission established under chapter 47A of this title.

(Aug. 10, 1956, ch. 1041, 70A Stat. 47; Pub. L. 109–366, §4(a)(2), Oct. 17, 2006, 120 Stat. 2631.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
828 50:592. May 5, 1950, ch. 169, §1 (Art. 28), 64 Stat. 117.

The words "Secretary concerned" are substituted for the words "Secretary of the Department". The words, "detail or employ" are substituted for the word "appoint", since the filling of the position involved is not appointment to an office in the constitutional sense.

Amendments

2006Pub. L. 109–366 inserted last sentence.

§829. Art 29. Assembly and impaneling of members; detail of new members and military judges

(a) Assembly.—The military judge shall announce the assembly of a general or special court-martial with members. After such a court-martial is assembled, no member may be absent, unless the member is excused—

(1) as a result of a challenge;

(2) under subsection (b)(1)(B); or

(3) by order of the military judge or the convening authority for disability or other good cause.


(b) Impaneling.—(1) Under rules prescribed by the President, the military judge of a general or special court-martial with members shall—

(A) after determination of challenges, impanel the court-martial; and

(B) excuse the members who, having been assembled, are not impaneled.


(2) In a general court-martial, the military judge shall impanel—

(A) 12 members in a capital case; and

(B) eight members in a noncapital case.


(3) In a special court-martial, the military judge shall impanel four members.

(c) Alternate Members.—In addition to members under subsection (b), the military judge shall impanel alternate members, if the convening authority authorizes alternate members.

(d) Detail of New Members.—(1) If, after members are impaneled, the membership of the court-martial is reduced to—

(A) fewer than 12 members with respect to a general court-martial in a capital case;

(B) fewer than six members with respect to a general court-martial in a noncapital case; or

(C) fewer than four members with respect to a special court-martial;


the trial may not proceed unless the convening authority details new members and, from among the members so detailed, the military judge impanels new members sufficient in number to provide the membership specified in paragraph (2).

(2) The membership referred to in paragraph (1) is as follows:

(A) 12 members with respect to a general court-martial in a capital case.

(B) At least six but not more than eight members with respect to a general court-martial in a noncapital case.

(C) Four members with respect to a special court-martial.


(e) Detail of New Military Judge.—If the military judge is unable to proceed with the trial because of disability or otherwise, a new military judge shall be detailed to the court-martial.

(f) Evidence.—(1) In the case of new members under subsection (d), the trial may proceed with the new members present after the evidence previously introduced is read or, in the case of audiotape, videotape, or similar recording, is played, in the presence of the new members, the military judge, the accused, and counsel for both sides.

(2) In the case of a new military judge under subsection (e), the trial shall proceed as if no evidence had been introduced, unless the evidence previously introduced is read or, in the case of audiotape, videotape, or similar recording, is played, in the presence of the new military judge, the accused, and counsel for both sides.

(Aug. 10, 1956, ch. 1041, 70A Stat. 47; Pub. L. 90–632, §2(11), Oct. 24, 1968, 82 Stat. 1337; Pub. L. 98–209, §3(d), Dec. 6, 1983, 97 Stat. 1394; Pub. L. 107–107, div. A, title V, §582(c), Dec. 28, 2001, 115 Stat. 1124; Pub. L. 114–328, div. E, title LV, §5187, Dec. 23, 2016, 130 Stat. 2902.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
829(a)

829(b)

50:593(a).

50:593(b).

May 5, 1950, ch. 169, §1 (Art. 29), 64 Stat. 117.
829(c) 50:593(c).

In subsections (a), (b), and (c), the word "may" is substituted for the word "shall".

In subsections (b) and (c), the word "details" is substituted for the word "appoints", since the filling of the position involved is not appointment to an office in the constitutional sense.

Amendments

2016Pub. L. 114–328 amended section generally. Prior to amendment, section related to absent and additional members of a general or special court-martial.

2001—Subsec. (b). Pub. L. 107–107 designated existing provisions as par. (1), substituted "the applicable minimum number of members" for "five members" in two places, and added par. (2).

1983—Subsec. (a). Pub. L. 98–209 substituted "unless excused as a result of a challenge, excused by the military judge for physical disability or other good cause, or excused by order of the convening authority for good cause" for "except for physical disability or as a result of a challenge or by order of the convening authority for good cause".

1968—Subsec. (a). Pub. L. 90–632, §2(11)(A), substituted "court has been assembled for the trial of the accused" for "accused has been arraigned".

Subsec. (b). Pub. L. 90–632, §2(11)(B), inserted reference to court-martial composed of a military judge alone, struck out reference to oath of members, and inserted provisions requiring that only the evidence which has been introduced before members of the court be read to the court and that all evidence, not merely testimony, be included.

Subsec. (c). Pub. L. 90–632, §2(11)(C), inserted reference to court-martial composed of a military judge alone, struck out reference to oath of members, and substituted evidence previously introduced for testimony of previously examined witnesses as the body of evidence which the verbatim record must cover.

Subsec. (d) Pub. L. 90–632, §2(11)(D), added subsec. (d).

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 2001 Amendment

Amendment by Pub. L. 107–107 applicable with respect to offenses committed after Dec. 31, 2002, see section 582(d) of Pub. L. 107–107, set out as a note under section 816 of this title.

Effective Date of 1983 Amendment

Amendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, see section 12(a)(1) of Pub. L. 98–209, set out as a note under section 801 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.

SUBCHAPTER VI—PRE-TRIAL PROCEDURE

 
Sec.Art. 
830. 30. Charges and specifications.
830a. 30a. Certain proceedings conducted before referral.
831. 31. Compulsory self-incrimination prohibited.
832. 32. Preliminary hearing required before referral to general court-martial.
833. 33. Disposition guidance.
834. 34. Advice to convening authority before referral for trial.
835. 35. Service of charges; commencement of trial.

Amendments

2017Pub. L. 115–91, div. A, title X, §1081(d)(19)(A), (C), Dec. 12, 2017, 131 Stat. 1601, amended Pub. L. 114–328, §5541(3). See 2016 Amendment note below.

2016Pub. L. 114–328, div. E, title LXIII, §5541(3), Dec. 23, 2016, 130 Stat. 2965, as amended by Pub. L. 115–91, div. A, title X, §1081(d)(19)(A), (C), Dec. 12, 2017, 131 Stat. 1601, added item 830a and substituted "Preliminary hearing required before referral to general court-martial" for "Preliminary hearing" in item 832, "Disposition guidance" for "Forwarding of charges" in item 833, "Advice to convening authority before referral for trial" for "Advice of staff judge advocate and reference for trial" in item 834, and "Service of charges; commencement of trial" for "Service of charges" in item 835.

2013Pub. L. 113–66, div. A, title XVII, §1702(a)(2), Dec. 26, 2013, 127 Stat. 955, substituted "Preliminary hearing" for "Investigation" in item 832.

§830. Art 30. Charges and specifications

(a) In General.—Charges and specifications—

(1) may be preferred only by a person subject to this chapter; and

(2) shall be preferred by presentment in writing, signed under oath before a commissioned officer of the armed forces who is authorized to administer oaths.


(b) Required Content.—The writing under subsection (a) shall state that—

(1) the signer has personal knowledge of, or has investigated, the matters set forth in the charges and specifications; and

(2) the matters set forth in the charges and specifications are true, to the best of the knowledge and belief of the signer.


(c) Duty of Proper Authority.—When charges and specifications are preferred under subsection (a), the proper authority shall, as soon as practicable—

(1) inform the person accused of the charges and specifications; and

(2) determine what disposition should be made of the charges and specifications in the interest of justice and discipline.

(Aug. 10, 1956, ch. 1041, 70A Stat. 47; Pub. L. 114–328, div. E, title LVI, §5201, Dec. 23, 2016, 130 Stat. 2904.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
830(a)

830(b)

50:601(a).

50:601(b).

May 5, 1950, ch. 169, §1 (Art. 30), 64 Stat. 118.

In subsection (a), the word "they" is substituted for the words "the same". The word "commissioned" is inserted for clarity.

Amendments

2016Pub. L. 114–328 amended section generally. Prior to amendment, text read as follows:

"(a) Charges and specifications shall be signed by a person subject to this chapter under oath before a commissioned officer of the armed forces authorized to administer oaths and shall state—

"(1) that the signer has personal knowledge of or has investigated, the matters set forth therein; and

"(2) that they are true in fact to the best of his knowledge and belief.

"(b) Upon the preferring of charges, the proper authority shall take immediate steps to determine what disposition should be made thereof in the interest of justice and discipline, and the person accused shall be informed of the charges against him as soon as practicable."

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

§830a. Art. 30a. Certain proceedings conducted before referral

(a) In General.—(1) Proceedings may be conducted to review, or otherwise act on, the following matters before referral of charges and specifications to court-martial for trial in accordance with regulations prescribed by the President:

(A) Pre-referral investigative subpoenas.

(B) Pre-referral warrants or orders for electronic communications.

(C) Pre-referral matters referred by an appellate court.

(D) Pre-referral matters under subsection (c) or (e) of section 806b of this title (article 6b).


(2) The regulations prescribed under paragraph (1) shall—

(A) include procedures for the review of such rulings that may be ordered under this section as the President considers appropriate; and

(B) provide such limitations on the relief that may be ordered under this section as the President considers appropriate.


(3) If any matter in a proceeding under this section becomes a subject at issue with respect to charges that have been referred to a general or special court-martial, the matter shall be transferred to the military judge detailed to the court-martial.

(b) Detail of Military Judge.—The Secretary concerned shall prescribe regulations providing for the manner in which military judges are detailed to proceedings under subsection (a)(1).

(c) Discretion to Designate Magistrate to Preside.—In accordance with regulations prescribed by the Secretary concerned, a military judge detailed to a proceeding under subsection (a)(1), other than a proceeding described in subparagraph (B) of that subsection, may designate a military magistrate to preside over the proceeding.

(Added Pub. L. 114–328, div. E, title LVI, §5202, Dec. 23, 2016, 130 Stat. 2904; amended Pub. L. 115–91, div. A, title V, §531(b), Dec. 12, 2017, 131 Stat. 1384.)

Amendments

2017—Subsec. (a)(1). Pub. L. 115–91, §531(b)(1), inserted ", or otherwise act on," after "to review" in introductory provisions.

Subsec. (a)(1)(D). Pub. L. 115–91, §531(b)(2), added subpar. (D).

Effective Date of 2017 Amendment

Amendment by Pub. L. 115–91 effective immediately after this section takes effect as provided for in section 5542 of Pub. L. 114–328 (10 U.S.C. 801 note), see section 531(p) of Pub. L. 115–91, set out as a note under section 801 of this title.

Effective Date

Section effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. 13825, set out as notes under section 801 of this title.

§831. Art. 31. Compulsory self-incrimination prohibited

(a) No person subject to this chapter may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him.

(b) No person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.

(c) No person subject to this chapter may compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade him.

(d) No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.

(Aug. 10, 1956, ch. 1041, 70A Stat. 48.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
831(a)

831(b)

50:602(a).

50:602(b).

May 5, 1950, ch. 169, §1 (Art 31), 64 Stat. 118.
831(c) 50:602(c).
831(d) 50:602(d).

The word "may" is substituted for the word "shall" throughout the revised section.

§832. Art. 32. Preliminary hearing required before referral to general court-martial

(a) In General.—(1)(A) Except as provided in subparagraph (B), a preliminary hearing shall be held before referral of charges and specifications for trial by general court-martial. The preliminary hearing shall be conducted by an impartial hearing officer, detailed by the convening authority in accordance with subsection (b).

(B) Under regulations prescribed by the President, a preliminary hearing need not be held if the accused submits a written waiver to the convening authority and the convening authority determines that a hearing is not required.

(2) The purpose of the preliminary hearing shall be limited to determining the following:

(A) Whether or not the specification alleges an offense under this chapter.

(B) Whether or not there is probable cause to believe that the accused committed the offense charged.

(C) Whether or not the convening authority has court-martial jurisdiction over the accused and over the offense.

(D) A recommendation as to the disposition that should be made of the case.


(b) Hearing Officer.—(1) A preliminary hearing under this section shall be conducted by an impartial hearing officer, who—

(A) whenever practicable, shall be a judge advocate who is certified under section 827(b)(2) of this title (article 27(b)(2)); or

(B) when it is not practicable to appoint a judge advocate because of exceptional circumstances, is not a judge advocate so certified.


(2) In the case of a hearing officer under paragraph (1)(B), a judge advocate who is certified under section 827(b)(2) of this title (article 27(b)(2)) shall be available to provide legal advice to the hearing officer.

(3) Whenever practicable, the hearing officer shall be equal in grade or senior in grade to military counsel who are detailed to represent the accused or the Government at the preliminary hearing.

(c) Report to Convening Authority.—After a preliminary hearing under this section, the hearing officer shall submit to the convening authority a written report (accompanied by a recording of the preliminary hearing under subsection (e)) that includes the following:

(1) For each specification, a statement of the reasoning and conclusions of the hearing officer with respect to determinations under subsection (a)(2), including a summary of relevant witness testimony and documentary evidence presented at the hearing and any observations of the hearing officer concerning the testimony of witnesses and the availability and admissibility of evidence at trial.

(2) Recommendations for any necessary modifications to the form of the charges or specifications.

(3) An analysis of any additional information submitted after the hearing by the parties or by a victim of an offense, that, under such rules as the President may prescribe, is relevant to disposition under sections 830 and 834 of this title (articles 30 and 34).

(4) A statement of action taken on evidence adduced with respect to uncharged offenses, as described in subsection (f).


(d) Rights of Accused and Victim.—(1) The accused shall be advised of the charges against the accused and of the accused's right to be represented by counsel at the preliminary hearing under this section. The accused has the right to be represented at the preliminary hearing as provided in section 838 of this title (article 38) and in regulations prescribed under that section.

(2) The accused may cross-examine witnesses who testify at the preliminary hearing and present additional evidence that is relevant to the issues for determination under subsection (a)(2).

(3) A victim may not be required to testify at the preliminary hearing. A victim who declines to testify shall be deemed to be not available for purposes of the preliminary hearing. A declination under this paragraph shall not serve as the sole basis for ordering a deposition under section 849 of this title (article 49).

(4) The presentation of evidence and examination (including cross-examination) of witnesses at a preliminary hearing shall be limited to the matters relevant to determinations under subsection (a)(2).

(e) Recording of Preliminary Hearing.—A preliminary hearing under subsection (a) shall be recorded by a suitable recording device. The victim may request the recording and shall have access to the recording under such rules as the President may prescribe.

(f) Effect of Evidence of Uncharged Offense.—If evidence adduced in a preliminary hearing under subsection (a) indicates that the accused committed an uncharged offense, the hearing officer may consider the subject matter of that offense without the accused having first been charged with the offense if the accused—

(1) is present at the preliminary hearing;

(2) is informed of the nature of each uncharged offense considered; and

(3) is afforded the opportunities for representation, cross-examination, and presentation consistent with subsection (d).


(g) Effect of Violation.—The requirements of this section are binding on all persons administering this chapter, but failure to follow the requirements does not constitute jurisdictional error. A defect in a report under subsection (c) is not a basis for relief if the report is in substantial compliance with that subsection.

(h) Victim Defined.—In this section, the term "victim" means a person who—

(1) is alleged to have suffered a direct physical, emotional, or pecuniary harm as a result of the matters set forth in a charge or specification being considered; and

(2) is named in one of the specifications.

(Aug. 10, 1956, ch. 1041, 70A Stat. 48; Pub. L. 97–81, §4(a), Nov. 20, 1981, 95 Stat. 1088; Pub. L. 104–106, div. A, title XI, §1131, Feb. 10, 1996, 110 Stat. 464; Pub. L. 113–66, div. A, title XVII, §1702(a)(1), Dec. 26, 2013, 127 Stat. 954; Pub. L. 113–291, div. A, title V, §531(a)(4)(A), Dec. 19, 2014, 128 Stat. 3363; Pub. L. 114–328, div. E, title LVI, §5203(a)–(d), Dec. 23, 2016, 130 Stat. 2905, 2906.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
832(a)

832(b)

50:603(a).

50:603(b).

May 5, 1950, ch. 169, §1 (Art. 32), 64 Stat. 118.
832(c) 50:603(c).
832(d) 50:603(d).

In subsection (a), the word "may" is substituted for the word "shall". The words "consideration of the" and "a recommendation as to" are inserted in the interest of accuracy and precision of statement.

In subsection (b), the word "detailed" is substituted for the word "appointed", since the filling of the position involved is not appointment to an office in the constitutional sense.

In subsection (c), the word "before" is substituted for the words "prior to the time". The words "of this section" are omitted as surplusage.

In subsection (d), the word "are" is substituted for the words "shall be." The word "does" is substituted for the words "in any case shall".

Amendments

2016Pub. L. 114–328, §5203(a), substituted "Preliminary hearing required before referral to general court-martial" for "Preliminary hearing" in section catchline.

Subsecs. (a) to (c). Pub. L. 114–328, §5203(a), added subsecs. (a) to (c) and struck out former subsecs. (a) to (c) which related to requirement of preliminary hearing, hearing officer, and report of hearing results, respectively.

Subsec. (d)(1). Pub. L. 114–328, §5203(b)(1), substituted "this section" for "subsection (a)".

Subsec. (d)(2). Pub. L. 114–328, §5203(b)(2), substituted "that is relevant to the issues for determination under subsection (a)(2)." for "in defense and mitigation, relevant to the limited purposes of the hearing, as provided for in paragraph (4) and subsection (a)(2)."

Subsec. (d)(3). Pub. L. 114–328, §5203(b)(3), inserted at end "A declination under this paragraph shall not serve as the sole basis for ordering a deposition under section 849 of this title (article 49)."

Subsec. (d)(4). Pub. L. 114–328, §5203(b)(4), substituted "determinations under subsection (a)(2)" for "the limited purposes of the hearing, as provided in subsection (a)(2)".

Subsec. (e). Pub. L. 114–328, §5203(c), substituted "under such rules as the President may prescribe" for "as prescribed by the Manual for Courts-Martial".

Subsec. (g). Pub. L. 114–328, §5203(d), inserted at end "A defect in a report under subsection (c) is not a basis for relief if the report is in substantial compliance with that subsection."

2014—Subsec. (a)(1). Pub. L. 113–291 inserted ", unless such hearing is waived by the accused" after "preliminary hearing".

2013Pub. L. 113–66 substituted "Preliminary hearing" for "Investigation" in section catchline and amended text generally. Prior to amendment, section provided that no charge or specification may be referred to general court-martial for trial until thorough and impartial investigation of all the matters had been made.

1996—Subsecs. (d), (e). Pub. L. 104–106 added subsec. (d) and redesignated former subsec. (d) as (e).

1981—Subsec. (b). Pub. L. 97–81 substituted "The accused has the right to be represented at that investigation as provided in section 838 of this title (article 38) and in regulations prescribed under that section" for "Upon his own request he shall be represented by civilian counsel if provided by him, or military counsel of his own selection if such counsel is reasonably available, or by counsel detailed by the officer exercising general court-martial jurisdiction over the command".

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 2013 Amendment

Amendment by Pub. L. 113–66 effective on the later of Dec. 26, 2014, or the date of the enactment of the Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year 2015 (Dec. 19, 2014) and applicable with respect to preliminary hearings conducted on or after that effective date, see section 1702(d)(1) of Pub. L. 113–66, set out as a note under section 802 of this title.

Effective Date of 1981 Amendment

Amendment by Pub. L. 97–81 to take effect at end of 60-day period beginning on Nov. 20, 1981, and to apply with respect to investigations under this section that begin on or after that date, see section 7(a) and (b)(3) of Pub. L. 97–81, set out as an Effective Date note under section 706 of this title.

§833. Art 33. Disposition guidance

The President shall direct the Secretary of Defense to issue, in consultation with the Secretary of the department in which the Coast Guard is operating when it is not operating as a service in the Navy, non-binding guidance regarding factors that commanders, convening authorities, staff judge advocates, and judge advocates should take into account when exercising their duties with respect to disposition of charges and specifications in the interest of justice and discipline under sections 830 and 834 of this title (articles 30 and 34). Such guidance shall take into account, with appropriate consideration of military requirements, the principles contained in official guidance of the Attorney General to attorneys for the Government with respect to disposition of Federal criminal cases in accordance with the principle of fair and evenhanded administration of Federal criminal law.

(Aug. 10, 1956, ch. 1041, 70A Stat. 49; Pub. L. 114–328, div. E, title LVI, §5204, Dec. 23, 2016, 130 Stat. 2906.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
833 50:604. May 5, 1950, ch. 169, §1 (Art. 33), 64 Stat. 119.

Amendments

2016Pub. L. 114–328 amended section generally. Prior to amendment, text read as follows: "When a person is held for trial by general court-martial the commanding officer shall, within eight days after the accused is ordered into arrest or confinement, if practicable, forward the charges, together with the investigation and allied papers, to the officer exercising general court-martial jurisdiction. If that is not practicable, he shall report in writing to that officer the reasons for delay."

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

§834. Art. 34. Advice to convening authority before referral for trial

(a) General Court-martial.—

(1) Staff judge advocate advice required before referral.—Before referral of charges and specifications to a general court-martial for trial, the convening authority shall submit the matter to the staff judge advocate for advice, which the staff judge advocate shall provide to the convening authority in writing. The convening authority may not refer a specification under a charge to a general court-martial unless the staff judge advocate advises the convening authority in writing that—

(A) the specification alleges an offense under this chapter;

(B) there is probable cause to believe that the accused committed the offense charged; and

(C) a court-martial would have jurisdiction over the accused and the offense.


(2) Staff judge advocate recommendation as to disposition.—Together with the written advice provided under paragraph (1), the staff judge advocate shall provide a written recommendation to the convening authority as to the disposition that should be made of the specification in the interest of justice and discipline.

(3) Staff judge advocate advice and recommendation to accompany referral.—When a convening authority makes a referral for trial by general court-martial, the written advice of the staff judge advocate under paragraph (1) and the written recommendation of the staff judge advocate under paragraph (2) with respect to each specification shall accompany the referral.


(b) Special Court-martial; Convening Authority Consultation With Judge Advocate.—Before referral of charges and specifications to a special court-martial for trial, the convening authority shall consult a judge advocate on relevant legal issues.

(c) General and Special Courts-martial; Correction of Charges and Specifications Before Referral.—Before referral for trial by general court-martial or special court-martial, changes may be made to charges and specifications—

(1) to correct errors in form; and

(2) when applicable, to conform to the substance of the evidence contained in a report under section 832(c) of this title (article 32(c)).


(d) Referral Defined.—In this section, the term "referral" means the order of a convening authority that charges and specifications against an accused be tried by a specified court-martial.

(Aug. 10, 1956, ch. 1041, 70A Stat. 49; Pub. L. 98–209, §4, Dec. 6, 1983, 97 Stat. 1395; Pub. L. 113–66, div. A, title XVII, §1702(c)(3)(B), Dec. 26, 2013, 127 Stat. 957; Pub. L. 113–291, div. A, title V, §531(a)(4)(B), Dec. 19, 2014, 128 Stat. 3363; Pub. L. 114–328, div. E, title LVI, §5205, Dec. 23, 2016, 130 Stat. 2907.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
834(a)

834(b)

50:605(a).

50:605(b).

May 5, 1950, ch. 169, §1 (Art. 34), 64 Stat. 119.

In subsection (a), the word "may" is substituted for the word "shall".

Amendments

2016Pub. L. 114–328 amended section generally. Prior to amendment, section consisted of subsecs. (a) to (c) relating to reference of charge to staff judge advocate for consideration and advice before trial, written and signed statement of advice by the staff judge advocate, and corrections to charges and specifications, respectively.

2014—Subsec. (a)(2). Pub. L. 113–291 inserted "(if there is such a report)" after "(article 32)".

2013—Subsec. (a)(2). Pub. L. 113–66 substituted "a preliminary hearing under section 832 of this title (article 32)" for "investigation under section 832 of this title (article 32) (if there is such a report)".

1983—Subsec. (a). Pub. L. 98–209, §4(a), substituted "judge advocate" for "judge advocate or legal officer", and provisions that the convening authority may not refer a specification under a charge to a general court-martial for trial unless he has been advised in writing by the staff judge advocate that the specification alleges an offense under this chapter, the specification is warranted by the evidence indicated in the report of investigation under section 832 of this title (article 32) (if there is such a report), and a court-martial would have jurisdiction over the accused and the offense, for provision that the convening authority could not refer a charge to a general court-martial for trial unless he found that the charge alleged an offense under this chapter and was warranted by evidence indicated in the report of investigation.

Subsecs. (b), (c). Pub. L. 98–209, §4(b), added subsec. (b) and redesignated former subsec. (b) as (c).

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 2013 Amendment

Amendment by Pub. L. 113–66 effective on the later of Dec. 26, 2014, or the date of the enactment of the Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year 2015 (Dec. 19, 2014) and applicable with respect to preliminary hearings conducted on or after that effective date, see section 1702(d)(1) of Pub. L. 113–66, set out as a note under section 802 of this title.

Effective Date of 1983 Amendment

Amendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, but not to apply to any case in which charges were referred to trial before that date, and proceedings in any such case to be held in the same manner and with the same effect as if such amendments had not been enacted, see section 12(a)(1), (3) of Pub. L. 98–209, set out as a note under section 801 of this title.

Review of Decisions Not To Refer Charges of Certain Sex-Related Offenses for Trial by Court-Martial

Pub. L. 113–66, div. A, title XVII, §1744, Dec. 26, 2013, 127 Stat. 980, as amended by Pub. L. 113–291, div. A, title V, §541, Dec. 19, 2014, 128 Stat. 3371, provided that:

"(a) Review Required.—

"(1) In general.—The Secretary of Defense shall require the Secretaries of the military departments to provide for review of decisions not to refer charges for trial by court-martial in cases where a sex-related offense has been alleged by a victim of the alleged offense.

"(2) Specific review requirements.—As part of a review conducted pursuant to paragraph (1), the Secretary of a military department shall require that—

"(A) consideration be given to the victim's statement provided during the course of the criminal investigation regarding the alleged sex-related offense perpetrated against the victim; and

"(B) a determination be made whether the victim's statement and views concerning disposition of the alleged sex-related offense were considered by the convening authority in making the referral decision.

"(b) Sex-related Offense Defined.—In this section, the term 'sex-related offense' means any of the following:

"(1) Rape or sexual assault under subsection (a) or (b) of section 920 of title 10, United States Code (article 120 of the Uniform Code of Military Justice).

"(2) Forcible sodomy under section 925 of such title (article 125 of the Uniform Code of Military Justice).

"(3) An attempt to commit an offense specified in paragraph (1) or (2) as punishable under section 880 of such title (article 80 of the Uniform Code of Military Justice).

"(c) Review of Certain Cases Not Referred to Court-martial.—

"(1) Cases not referred following staff judge advocate recommendation for referral for trial.—In any case where a staff judge advocate, pursuant to section 834 of title 10, United States Code (article 34 of the Uniform Code of Military Justice), recommends that charges of a sex-related offense be referred for trial by court-martial and the convening authority decides not to refer any charges to a court-martial, the convening authority shall forward the case file to the Secretary of the military department concerned for review as a superior authorized to exercise general court-martial convening authority.

"(2) Cases not referred by convening authority upon request for review by chief prosecutor.—

"(A) In general.—In any case where a convening authority decides not to refer a charge of a sex-related offense to trial by court-martial, the Secretary of the military department concerned shall review the decision as a superior authority authorized to exercise general court-martial convening authority if the chief prosecutor of the Armed Force concerned, in response to a request by the detailed counsel for the Government, requests review of the decision by the Secretary.

"(B) Chief prosecutor defined.—In this paragraph, the term 'chief prosecutor' means the chief prosecutor or equivalent position of an Armed Force, or, if an Armed Force does not have a chief prosecutor or equivalent position, such other trial counsel as shall be designated by the Judge Advocate General of that Armed Force, or in the case of the Marine Corps, the Staff Judge Advocate to the Commandant of the Marine Corps.

"(d) Review of Cases Not Referred to Court-martial Following Staff Judge Advocate Recommendation Not to Refer for Trial.—In any case where a staff judge advocate, pursuant to section 834 of title 10, United States Code (article 34 of the Uniform Code of Military Justice), recommends that charges of a sex-related offense should not be referred for trial by court-martial and the convening authority decides not to refer any charges to a court-martial, the convening authority shall forward the case file for review to the next superior commander authorized to exercise general court-martial convening authority.

"(e) Elements of Case File.—A case file forwarded to higher authority for review pursuant to subsection (c) or (d) shall include the following:

"(1) All charges and specifications preferred under section 830 of title 10, United States Code (article 30 of the Uniform Code of Military Justice).

"(2) All reports of investigations of such charges, including the military criminal investigative organization investigation report and the report prepared under section 832 of title 10, United States Code (article 32 of the Uniform Code of Military Justice), as amended by section 1702.

"(3) A certification that the victim of the alleged sex-related offense was notified of the opportunity to express views on the victim's preferred disposition of the alleged offense for consideration by the convening authority.

"(4) All statements of the victim provided to the military criminal investigative organization and to the victim's chain of command relating to the alleged sex-related offense and any statement provided by the victim to the convening authority expressing the victim's view on the victim's preferred disposition of the alleged offense.

"(5) The written advice of the staff judge advocate to the convening authority pursuant to section 834 of title 10, United States Code (article 34 of the Uniform Code of Military Justice).

"(6) A written statement explaining the reasons for the convening authority's decision not to refer any charges for trial by court-martial.

"(7) A certification that the victim of the alleged sex-related offense was informed of the convening authority's decision to forward the case as provided in subsection (c) or (d).

"(f) Notice on Results or Review.—The victim of the alleged sex-related offense shall be notified of the results of the review conducted under subsection (c) or (d) in the manner prescribed by the victims and witness assistance program of the Armed Force concerned.

"(g) Victim Allegation of Sex-related Offense.—The Secretary of Defense shall require the Secretaries of the military departments to develop a system to ensure that a victim of a possible sex-related offense under the Uniform Code of Military Justice is given the opportunity to state, either at the time of making an unrestricted report of the allegation or during the criminal investigation of the allegation, whether or not the victim believes that the offense alleged is a sex-related offense subject to the requirements of this section."

§835. Art. 35. Service of charges; commencement of trial

(a) In General.—Trial counsel detailed for a court-martial under section 827 of this title (article 27) shall cause to be served upon the accused a copy of the charges and specifications referred for trial.

(b) Commencement of Trial.—(1) Subject to paragraphs (2) and (3), no trial or other proceeding of a general court-martial or a special court-martial (including any session under section 839(a) of this title (article 39(a)) may be held over the objection of the accused—

(A) with respect to a general court-martial, from the time of service through the fifth day after the date of service; or

(B) with respect to a special court-martial, from the time of service through the third day after the date of service.


(2) An objection under paragraph (1) may be raised only at the first session of the trial or other proceeding and only if the first session occurs before the end of the applicable period under paragraph (1)(A) or (1)(B). If the first session occurs before the end of the applicable period, the military judge shall, at that session, inquire as to whether the defense objects under this subsection.

(3) This subsection shall not apply in time of war.

(Aug. 10, 1956, ch. 1041, 70A Stat. 49; Pub. L. 90–632, §2(12), Oct. 24, 1968, 82 Stat. 1337; Pub. L. 114–328, div. E, title LVI, §5206, Dec. 23, 2016, 130 Stat. 2908.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
835 50:606. May 5, 1950, ch. 169, §1 (Art. 35), 64 Stat. 119.

The word "may" is substituted for the word "shall". The word "after" is substituted for the words "subsequent to".

Amendments

2016Pub. L. 114–328 amended section generally. Prior to amendment, text read as follows: "The trial counsel to whom court-martial charges are referred for trial shall cause to be served upon the accused a copy of the charges upon which trial is to be had. In time of peace no person may, against his objection, be brought to trial, or be required to participate by himself or counsel in a session called by the military judge under section 839(a) of this title (article 39(a)), in a general court-martial case within a period of five days after the service of charges upon him, or in a special court-martial case within a period of three days after the service of charges upon him."

1968Pub. L. 90–632 inserted reference to a session called by the military judge under section 839(a) of this title (article 39(a)).

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.

SUBCHAPTER VII—TRIAL PROCEDURE

 
Sec.Art. 
836. 36. President may prescribe rules.
837. 37. Unlawfully influencing action of court.
838. 38. Duties of trial counsel and defense counsel.
839. 39. Sessions.
840. 40. Continuances.
841. 41. Challenges.
842. 42. Oaths.
843. 43. Statute of limitations.
844. 44. Former jeopardy.
845. 45. Pleas of the accused.
846. 46. Opportunity to obtain witnesses and other evidence in trials by court-martial.
847. 47. Refusal of person not subject to chapter to appear, testify, or produce evidence.
848. 48. Contempt.
849. 49. Depositions.
850. 50. Admissibility of sworn testimony from records of courts of inquiry.
850a. 50a. Defense of lack of mental responsibility.
851. 51. Voting and rulings.
852. 52. Votes required for conviction, sentencing, and other matters.
853. 53. Findings and sentencing.
853a. 53a. Plea agreements.
854. 54. Record of trial.

Amendments

2017Pub. L. 115–91, div. A, title X, §1081(d)(19)(A), Dec. 12, 2017, 131 Stat. 1601, made technical amendment to Pub. L. 114–328, §5541(4). See 2016 Amendment note below.

2016Pub. L. 114–328, div. E, title LXIII, §5541(4), Dec. 23, 2016, 130 Stat. 2966, as amended by Pub. L. 115–91, div. A, title X, §1081(d)(19)(A), Dec. 12, 2017, 131 Stat. 1601, added item 853a and substituted "Opportunity to obtain witnesses and other evidence in trials by court-martial" for "Opportunity to obtain witnesses and other evidence" in item 846, "Refusal of person not subject to chapter to appear, testify, or produce evidence" for "Refusal to appear or testify" in item 847, "Contempt" for "Contempts" in item 848, "Admissibility of sworn testimony from records of courts of inquiry" for "Admissibility of records of courts of inquiry" in item 850, "Votes required for conviction, sentencing, and other matters" for "Number of votes required" in item 852, and "Findings and sentencing" for "Court to announce action" in item 853.

1986Pub. L. 99–661, div. A, title VIII, §802(a)(2), Nov. 14, 1986, 100 Stat. 3906, added item 850a.

§836. Art. 36. President may prescribe rules

(a) Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not, except as provided in chapter 47A of this title, be contrary to or inconsistent with this chapter.

(b) All rules and regulations made under this article shall be uniform insofar as practicable, except insofar as applicable to military commissions established under chapter 47A of this title.

(Aug. 10, 1956, ch. 1041, 70A Stat. 50; Pub. L. 96–107, title VIII, §801(b), Nov. 9, 1979, 93 Stat. 811; Pub. L. 101–510, div. A, title XIII, §1301(4), Nov. 5, 1990, 104 Stat. 1668; Pub. L. 109–366, §4(a)(3), Oct. 17, 2006, 120 Stat. 2631.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
836(a)

836(b)

50:611(a).

50:611(b).

May 5, 1950, ch. 169, §1 (Art. 36), 64 Stat. 120.

In subsection (a), the word "considers" is substituted for the word "deems". The word "may" is substituted for the word "shall".

In subsection (b), the word "under" is substituted for the words "in pursuance of".

Amendments

2006—Subsec. (a). Pub. L. 109–366, §4(a)(3)(A), inserted ", except as provided in chapter 47A of this title," after "but which may not".

Subsec. (b). Pub. L. 109–366, §4(a)(3)(B), inserted before period at end ", except insofar as applicable to military commissions established under chapter 47A of this title".

1990—Subsec. (b). Pub. L. 101–510 struck out "and shall be reported to Congress" after "as practicable".

1979—Subsec. (a). Pub. L. 96–107 substituted provisions authorizing pretrial, trial, and post-trial procedures for cases under this chapter triable in courts-martial, military commissions and other military tribunals, for provisions authorizing procedure in cases before courts-martial, military commissions, and other military tribunals.

§837. Art. 37. Unlawfully influencing action of court

(a) No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or his functions in the conduct of the proceeding. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts. The foregoing provisions of the subsection shall not apply with respect to (1) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial, or (2) to statements and instructions given in open court by the military judge, president of a special court-martial, or counsel.

(b) In the preparation of an effectiveness, fitness, or efficiency report, or any other report or document used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to be advanced, in grade, or in determining the assignment or transfer of a member of the armed forces or in determining whether a member of the armed forces should be retained on active duty, no person subject to this chapter may, in preparing any such report (1) consider or evaluate the performance of duty of any such member as a member of a court-martial, or (2) give a less favorable rating or evaluation of any member of the armed forces because of the zeal with which such member, as counsel, represented any accused before a court-martial.

(Aug. 10, 1956, ch. 1041, 70A Stat. 50; Pub. L. 90–632, §2(13), Oct. 24, 1968, 82 Stat. 1338.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
837 50:612. May 5, 1950, ch. 169, §1 (Art. 37), 64 Stat. 120.

The word "may" is substituted for the word "shall".

Amendments

1968Pub. L. 90–632 designated existing provisions as subsec. (a), substituted "military judge" for "law officer", inserted provisions specifically exempting instructional or general informational lectures on military justice and statements and instructions given in open court by the military judge, president of a special court-martial, or counsel from prohibitions of subsec. (a), and added subsec. (b).

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.

§838. Art. 38. Duties of trial counsel and defense counsel

(a) The trial counsel of a general or special court-martial shall prosecute in the name of the United States, and shall, under the direction of the court, prepare the record of the proceedings.

(b)(1) The accused has the right to be represented in his defense before a general or special court-martial or at a preliminary hearing under section 832 of this title (article 32) as provided in this subsection.

(2) The accused may be represented by civilian counsel if provided by him.

(3) The accused may be represented—

(A) by military counsel detailed under section 827 of this title (article 27); or

(B) by military counsel of his own selection if that counsel is reasonably available (as determined under regulations prescribed under paragraph (7)).


(4) If the accused is represented by civilian counsel, military counsel detailed or selected under paragraph (3) shall act as associate counsel unless excused at the request of the accused.

(5) Except as provided under paragraph (6), if the accused is represented by military counsel of his own selection under paragraph (3)(B), any military counsel detailed under paragraph (3)(A) shall be excused.

(6) The accused is not entitled to be represented by more than one military counsel. However, the person authorized under regulations prescribed under section 827 of this title (article 27) to detail counsel, in his sole discretion—

(A) may detail additional military counsel as assistant defense counsel; and

(B) if the accused is represented by military counsel of his own selection under paragraph (3)(B), may approve a request from the accused that military counsel detailed under paragraph (3)(A) act as associate defense counsel.


(7) The Secretary concerned shall, by regulation, define "reasonably available" for the purpose of paragraph (3)(B) and establish procedures for determining whether the military counsel selected by an accused under that paragraph is reasonably available. Such regulations may not prescribe any limitation based on the reasonable availability of counsel solely on the grounds that the counsel selected by the accused is from an armed force other than the armed force of which the accused is a member. To the maximum extent practicable, such regulations shall establish uniform policies among the armed forces while recognizing the differences in the circumstances and needs of the various armed forces. The Secretary concerned shall submit copies of regulations prescribed under this paragraph to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives.

(c) In any court-martial proceeding resulting in a conviction, the defense counsel—

(1) may forward for attachment to the record of proceedings a brief of such matters as he determines should be considered in behalf of the accused on review (including any objection to the contents of the record which he considers appropriate);

(2) may assist the accused in the submission of any matter under section 860, 860a, or 860b of this title (article 60, 60a, or 60b); and

(3) may take other action authorized by this chapter.


(d) An assistant trial counsel of a general court-martial may, under the direction of the trial counsel or when he is qualified to be a trial counsel as required by section 827 of this title (article 27), perform any duty imposed by law, regulation, or the custom of the service upon the trial counsel of the court. An assistant trial counsel of a special court-martial may perform any duty of the trial counsel.

(e) An assistant defense counsel of a general or special court-martial may perform any duty imposed by law, regulation, or the custom of the service upon counsel for the accused.

(Aug. 10, 1956, ch. 1041, 70A Stat. 50; Pub. L. 90–632, §2(14), Oct. 24, 1968, 82 Stat. 1338; Pub. L. 97–81, §4(b), Nov. 20, 1981, 95 Stat. 1088; Pub. L. 98–209, §3(e), Dec. 6, 1983, 97 Stat. 1394; Pub. L. 104–106, div. A, title XV, §1502(a)(1), Feb. 10, 1996, 110 Stat. 502; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 113–66, div. A, title XVII, §1702(c)(3)(C), Dec. 26, 2013, 127 Stat. 957; Pub. L. 114–328, div. E, title LVII, §5221, Dec. 23, 2016, 130 Stat. 2909; Pub. L. 115–91, div. A, title V, §531(c), Dec. 12, 2017, 131 Stat. 1384.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
838(a)

838(b)

838(c)

50:613(a).

50:613(b).

50:613(c).

May 5, 1950, ch. 169, §1 (Art. 38), 64 Stat. 120.
838(d) 50:613(d).
838(e) 50:613(e).

In subsection (b), the word "has" is substituted for the words "shall have". The word "under" is substituted for the words "pursuant to". The word "duly" is omitted as surplusage. The words "detailed" and "who were detailed" are substituted for the word "appointed", since the filling of the position involved is not appointment to an office in the constitutional sense.

In subsection (c), the word "considers" is substituted for the words "may deem".

Amendments

2017—Subsec. (c)(2). Pub. L. 115–91 substituted "section 860, 860a, or 860b of this title (article 60, 60a, or 60b)" for "section 860 of this title (article 60)".

2016—Subsec. (e). Pub. L. 114–328 struck out ", under the direction of the defense counsel or when he is qualified to be the defense counsel as required by section 827 of this title (article 27)," after "court-martial may".

2013—Subsec. (b)(1). Pub. L. 113–66 substituted "a preliminary hearing under section 832" for "an investigation under section 832".

1999—Subsec. (b)(7). Pub. L. 106–65 substituted "and the Committee on Armed Services" for "and the Committee on National Security".

1996—Subsec. (b)(7). Pub. L. 104–106 substituted "Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives" for "Committees on Armed Services of the Senate and House of Representatives".

1983—Subsec. (b)(6). Pub. L. 98–209, §3(e)(1), substituted "the person authorized under regulations prescribed under section 827 of this title (article 27) to detail counsel" for "a convening authority".

Subsec. (b)(7). Pub. L. 98–209, §3(e)(2), inserted provision that such regulations may not prescribe any limitation based on the reasonable availability of counsel solely on the grounds that the counsel selected by the accused is from an armed force other than the armed force of which the accused is a member.

Subsec. (c). Pub. L. 98–209, §3(e)(3), designated existing provisions as par. (1), made minor changes in phraseology and punctuation, and added pars. (2) and (3).

1981—Subsec. (b). Pub. L. 97–81 revised subsec. (b) by dividing its provisions into seven numbered paragraphs and inserted provisions relating to the right to counsel at an investigation under section 832 of this title (article 32), authorizing the promulgation of regulations relating to the "reasonable availability" of military counsel, and authorizing the detailing of additional military counsel for the accused under specified circumstances.

1968—Subsec. (b). Pub. L. 90–632 substituted "military judge or by the president of a court-martial without a military judge" for "president of the court".

Effective Date of 2017 Amendment

Amendment by Pub. L. 115–91 effective immediately after the amendments made by div. E (§§5001–5542) of Pub. L. 114–328 take effect as provided for in section 5542 of that Act (10 U.S.C. 801 note), see section 531(p) of Pub. L. 115–91, set out as a note under section 801 of this title.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 2013 Amendment

Amendment by Pub. L. 113–66 effective on the later of Dec. 26, 2014, or the date of the enactment of the Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year 2015 (Dec. 19, 2014) and applicable with respect to preliminary hearings conducted on or after that effective date, see section 1702(d)(1) of Pub. L. 113–66, set out as a note under section 802 of this title.

Effective Date of 1983 Amendment

Amendment by Pub. L. 98–209 effective first day of eighth calendar month after Dec. 6, 1983, but not to affect the designation or detail of a military judge or military counsel to a court-martial before that date, see section 12(a)(1), (2) of Pub. L. 98–209, set out as a note under section 801 of this title.

Effective Date of 1981 Amendment

Amendment by Pub. L. 97–81 to take effect at end of 60-day period beginning on Nov. 20, 1981, and to apply to trials by courts-martial in which all charges are referred to trial on or after that date, see section 7(a) and (b)(4) of Pub. L. 97–81, set out as an Effective Date note under section 706 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective on first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.

§839. Art. 39. Sessions

(a) At any time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject to section 835 of this title (article 35), call the court into session without the presence of the members for the purpose of—

(1) hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty;

(2) hearing and ruling upon any matter which may be ruled upon by the military judge under this chapter, whether or not the matter is appropriate for later consideration or decision by the members of the court;

(3) holding the arraignment and receiving the pleas of the accused;

(4) conducting a sentencing proceeding and sentencing the accused under section 853(b)(1) of this title (article 53(b)(1)); and

(5) performing any other procedural function which may be performed by the military judge under this chapter or under rules prescribed pursuant to section 836 of this title (article 36) and which does not require the presence of the members of the court.


(b) Proceedings under subsection (a) shall be conducted in the presence of the accused, the defense counsel, and the trial counsel and shall be made a part of the record. These proceedings may be conducted notwithstanding the number of members of the court and without regard to section 829 of this title (article 29). If authorized by regulations of the Secretary concerned, and if at least one defense counsel is physically in the presence of the accused, the presence required by this subsection may otherwise be established by audiovisual technology (such as videoteleconferencing technology).

(c) When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any other consultation of the members of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and the military judge.

(d) The findings, holdings, interpretations, and other precedents of military commissions under chapter 47A of this title—

(1) may not be introduced or considered in any hearing, trial, or other proceeding of a court-martial under this chapter; and

(2) may not form the basis of any holding, decision, or other determination of a court-martial.

(Aug. 10, 1956, ch. 1041, 70A Stat. 51; Pub. L. 90–632, §2(15), Oct. 24, 1968, 82 Stat. 1338; Pub. L. 101–510, div. A, title V, §541(a), Nov. 5, 1990, 104 Stat. 1565; Pub. L. 109–163, div. A, title V, §556, Jan. 6, 2006, 119 Stat. 3266; Pub. L. 111–84, div. A, title XVIII, §1803(a)(2), Oct. 28, 2009, 123 Stat. 2612; Pub. L. 114–328, div. E, title LVII, §5222, Dec. 23, 2016, 130 Stat. 2909; Pub. L. 115–91, div. A, title X, §1081(c)(1)(D), Dec. 12, 2017, 131 Stat. 1598.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
839 50:614. May 5, 1950, ch. 169, §1 (Art. 39), 64 Stat. 121.

The word "When" is substituted for the word "Whenever". The words "deliberates or votes" are substituted for the words "is to deliberate or vote". The word "may" is substituted for the word "shall". The word "shall" is inserted before the words "be in the presence" for clarity.

Amendments

2017—Subsec. (a)(4). Pub. L. 115–91 substituted "under section 853(b)(1) of this title (article 53(b)(1))" for "in non-capital cases unless the accused requests sentencing by members under section 825 of this title (article 25)".

2016—Subsec. (a)(3). Pub. L. 114–328, §5222(1)(A), struck out "if permitted by regulations of the Secretary concerned," before "holding" and "and" after "accused;".

Subsec. (a)(4), (5). Pub. L. 114–328, §5222(1)(B), (C), added par. (4) and redesignated former par. (4) as (5).

Subsec. (c). Pub. L. 114–328, §5222(2), struck out ", in cases in which a military judge has been detailed to the court," after "the trial counsel, and".

2009—Subsec. (d). Pub. L. 111–84 added subsec. (d).

2006Pub. L. 109–163 redesignated concluding provisions of subsec. (a) as subsec. (b), substituted "Proceedings under subsection (a) shall be conducted" for "These proceedings shall be conducted", inserted at end "If authorized by regulations of the Secretary concerned, and if at least one defense counsel is physically in the presence of the accused, the presence required by this subsection may otherwise be established by audiovisual technology (such as videoteleconferencing technology).", and redesignated former subsec. (b) as (c).

1990—Subsec. (a). Pub. L. 101–510 inserted at end "These proceedings may be conducted notwithstanding the number of members of the court and without regard to section 829 of this title (article 29)."

1968Pub. L. 90–632 added subsec. (a), designated existing provisions as subsec. (b), substituted "military judge" for "law officer", and struck out provisions authorizing the court after voting on the findings in a general court-martial to request the law officer and the reporter to appear before the court to put the findings in proper form.

Effective Date of 2017 Amendment

Amendment by Pub. L. 115–91 effective immediately after the amendments made by div. E (§§5001–5542) of Pub. L. 114–328 take effect as provided for in section 5542 of that Act (10 U.S.C. 801 note), see section 1081(c)(4) of Pub. L. 115–91, set out as a note under section 801 of this title.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 1990 Amendment

Pub. L. 101–510, div. A, title V, §541(e), Nov. 5, 1990, 104 Stat. 1565, provided that: "The amendments made by subsections (a) through (d) [amending this section and section 841 of this title] shall apply only to a court-martial convened on or after the date of the enactment of this Act [Nov. 5, 1990]."

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.

§840. Art. 40. Continuances

The military judge or a summary court-martial may, for reasonable cause, grant a continuance to any party for such time, and as often, as may appear to be just.

(Aug. 10, 1956, ch. 1041, 70A Stat. 51; Pub. L. 90–632, §2(16), Oct. 24, 1968, 82 Stat. 1339; Pub. L. 114–328, div. E, title LVII, §5223, Dec. 23, 2016, 130 Stat. 2909.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
840 50:615. May 5, 1950, ch. 169, §1 (Art. 40), 64 Stat. 121.

Amendments

2016Pub. L. 114–328 substituted "summary court-martial" for "court-martial without a military judge".

1968Pub. L. 90–632 inserted reference to military judge.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.

§841. Art. 41. Challenges

(a)(1) The military judge and members of a general or special court-martial may be challenged by the accused or the trial counsel for cause stated to the court. The military judge shall determine the relevancy and validity of challenges for cause, and may not receive a challenge to more than one person at a time. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused are offered.

(2) If exercise of a challenge for cause reduces the court below the number of members required by section 816 of this title (article 16), all parties shall (notwithstanding section 829 of this title (article 29)) either exercise or waive any challenge for cause then apparent against the remaining members of the court before additional members are detailed to the court. However, peremptory challenges shall not be exercised at that time.

(b)(1) Each accused and the trial counsel are entitled initially to one peremptory challenge of members of the court. The military judge may not be challenged except for cause.

(2) If exercise of a peremptory challenge reduces the court below the number of members required by section 816 of this title (article 16), the parties shall (notwithstanding section 829 of this title (article 29)) either exercise or waive any remaining peremptory challenge (not previously waived) against the remaining members of the court before additional members are detailed to the court.

(c) Whenever additional members are detailed to the court, and after any challenges for cause against such additional members are presented and decided, each accused and the trial counsel are entitled to one peremptory challenge against members not previously subject to peremptory challenge.

(Aug. 10, 1956, ch. 1041, 70A Stat. 51; Pub. L. 90–632, §2(17), Oct. 24, 1968, 82 Stat. 1339; Pub. L. 101–510, div. A, title V, §541(b)–(d), Nov. 5, 1990, 104 Stat. 1565; Pub. L. 111–383, div. A, title X, §1075(b)(13), Jan. 7, 2011, 124 Stat. 4369; Pub. L. 114–328, div. E, title LVII, §5224, Dec. 23, 2016, 130 Stat. 2909.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
841(a)

841(b)

50:616(a).

50:616(b).

May 5, 1950, ch. 169, §1 (Art. 41), 64 Stat. 121.

In subsection (a), the word "may" is substituted for the word "shall" before the words "not receive".

In subsection (b), the word "the" is inserted before the word "trial". The word "is" is substituted for the words "shall be". The word "may" is substituted for the word "shall".

Amendments

2016—Subsec. (a)(1). Pub. L. 114–328, §5224(1), struck out ", or, if none, the court," before "shall determine".

Subsec. (a)(2). Pub. L. 114–328, §5224(2), struck out "minimum" after "below the".

Subsec. (b)(2). Pub. L. 114–328, §5224(3), struck out "minimum" after "below the".

2011—Subsec. (c). Pub. L. 111–383 substituted "trial counsel" for "trail counsel".

1990—Subsec. (a). Pub. L. 101–510, §541(b), designated existing provision as par. (1) and added par. (2).

Subsec. (b). Pub. L. 101–510, §541(c), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: "Each accused and the trial counsel is entitled to one peremptory challenge, but the military judge may not be challenged except for cause."

Subsec. (c). Pub. L. 101–510, §541(d), added subsec. (c).

1968—Subsec. (a). Pub. L. 90–632, §2(17)(A), (B), inserted reference to the military judge and struck out references to the law officer of a general court-martial.

Subsec. (b). Pub. L. 90–632, §2(17)(C), substituted "military judge" for "law officer".

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 1990 Amendment

Amendment by Pub. L. 101–510 applicable only to court-martial convened on or after Nov. 5, 1990, see section 541(e) of Pub. L. 101–510, set out as a note under section 839 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.

§842. Art. 42. Oaths

(a) Before performing their respective duties, military judges, members of general and special courts-martial, trial counsel, assistant trial counsel, defense counsel, assistant or associate defense counsel, reporters, and interpreters shall take an oath to perform their duties faithfully. The form of the oath, the time and place of the taking thereof, the manner of recording the same, and whether the oath shall be taken for all cases in which these duties are to be performed or for a particular case, shall be as prescribed in regulations of the Secretary concerned. These regulations may provide that an oath to perform faithfully duties as a military judge, trial counsel, assistant trial counsel, defense counsel, or assistant or associate defense counsel may be taken at any time by any judge advocate or other person certified to be qualified or competent for the duty, and if such an oath is taken it need not again be taken at the time the judge advocate or other person is detailed to that duty.

(b) Each witness before a court-martial shall be examined on oath.

(Aug. 10, 1956, ch. 1041, 70A Stat. 51; Pub. L. 90–632, §2(18), Oct. 24, 1968, 82 Stat. 1339; Pub. L. 98–209, §§2(e), 3(f), Dec. 6, 1983, 97 Stat. 1393, 1395.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
842(a)

842(b)

50:617(a).

50:617(b).

May 5, 1950, ch. 169, §1 (Art. 42), 64 Stat. 121.

In subsection (a), the word "all" and the word "the" before the words "members", "trial", "defense", and "reporter" are omitted as surplusage.

In subsections (a) and (b), the words "or affirmation" are omitted as covered by the definition of the word "oath" in section 1 of Title 1.

In subsection (b), the words "Each witness" are substituted for the words "All witnesses".

Amendments

1983—Subsec. (a). Pub. L. 98–209 struck out ", law specialist," after "judge advocate" in two places, substituted "assistant or associate defense counsel" for "assistant defense counsel".

1968—Subsec. (a). Pub. L. 90–632 struck out requirement that the oath given to court-martial personnel be taken in the presence of the accused and provided that the form of the oath, the time and place of its taking, the manner of recording thereof, and whether the oath shall be taken for all cases or for a particular case shall be as prescribed by regulations of the Secretary concerned and contemplated secretarial regulations allowing the administration of an oath to certified legal personnel on a one-time basis.

Effective Date of 1983 Amendment

Amendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, see section 12(a)(1) of Pub. L. 98–209, set out as a note under section 801 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.

§843. Art. 43. Statute of limitations

(a) No Limitation for Certain Offenses.—A person charged with absence without leave or missing movement in time of war, with murder, rape or sexual assault, or rape or sexual assault of a child, or with any other offense punishable by death, may be tried and punished at any time without limitation.

(b) Five-year Limitation for Trial by Court-martial.—(1) Except as otherwise provided in this section (article), a person charged with an offense is not liable to be tried by court-martial if the offense was committed more than five years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command.

(2)(A) A person charged with having committed a child abuse offense against a child is liable to be tried by court-martial if the sworn charges and specifications are received during the life of the child or within ten years after the date on which the offense was committed, whichever provides a longer period, by an officer exercising summary court-martial jurisdiction with respect to that person.

(B) In subparagraph (A), the term "child abuse offense" means an act that involves abuse of a person who has not attained the age of 16 years and constitutes any of the following offenses:

(i) Any offense in violation of section 920, 920a, 920b, 920c, or 930 of this title (article 120, 120a, 120b, 120c, or 130), unless the offense is covered by subsection (a).

(ii) Maiming in violation of section 928a of this title (article 128a).

(iii) Aggravated assault, assault consummated by a battery, or assault with intent to commit specified offenses in violation of section 928 of this title (article 128).

(iv) Kidnapping in violation of section 925 of this title (article 125).


(C) In subparagraph (A), the term "child abuse offense" includes an act that involves abuse of a person who has not attained the age of 18 years and would constitute an offense under chapter 110 or 117 of title 18 or under section 1591 of that title.

(3) A person charged with an offense is not liable to be punished under section 815 of this title (article 15) if the offense was committed more than two years before the imposition of punishment.

(c) Tolling for Absence Without Leave or Flight From Justice.—Periods in which the accused is absent without authority or fleeing from justice shall be excluded in computing the period of limitation prescribed in this section (article).

(d) Tolling for Absence From US or Military Jurisdiction.—Periods in which the accused was absent from territory in which the United States has the authority to apprehend him, or in the custody of civil authorities, or in the hands of the enemy, shall be excluded in computing the period of limitation prescribed in this article.

(e) Extension for Offenses in Time of War Detrimental to Prosecution of War.—For an offense the trial of which in time of war is certified to the President by the Secretary concerned to be detrimental to the prosecution of the war or inimical to the national security, the period of limitation prescribed in this article is extended to six months after the termination of hostilities as proclaimed by the President or by a joint resolution of Congress.

(f) Extension for Other Offenses in Time of War.—When the United States is at war, the running of any statute of limitations applicable to any offense under this chapter—

(1) involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not;

(2) committed in connection with the acquisition, care, handling, custody, control, or disposition of any real or personal property of the United States; or

(3) committed in connection with the negotiation, procurement, award, performance, payment, interim financing, cancellation, or other termination or settlement, of any contract, subcontract, or purchase order which is connected with or related to the prosecution of the war, or with any disposition of termination inventory by any war contractor or Government agency;


is suspended until three years after the termination of hostilities as proclaimed by the President or by a joint resolution of Congress.

(g) Defective or Insufficient Charges.—(1) If charges or specifications are dismissed as defective or insufficient for any cause and the period prescribed by the applicable statute of limitations—

(A) has expired; or

(B) will expire within 180 days after the date of dismissal of the charges and specifications,


trial and punishment under new charges and specifications are not barred by the statute of limitations if the conditions specified in paragraph (2) are met.

(2) The conditions referred to in paragraph (1) are that the new charges and specifications must—

(A) be received by an officer exercising summary court-martial jurisdiction over the command within 180 days after the dismissal of the charges or specifications; and

(B) allege the same acts or omissions that were alleged in the dismissed charges or specifications (or allege acts or omissions that were included in the dismissed charges or specifications).


(h) Fraudulent Enlistment or Appointment.—A person charged with fraudulent enlistment or fraudulent appointment under section 904a(1) of this title (article 104a(1)) may be tried by court-martial if the sworn charges and specifications are received by an officer exercising summary court-martial jurisdiction with respect to that person, as follows:

(1) In the case of an enlisted member, during the period of the enlistment or five years, whichever provides a longer period.

(2) In the case of an officer, during the period of the appointment or five years, whichever provides a longer period.


(i) DNA Evidence.—If DNA testing implicates an identified person in the commission of an offense punishable by confinement for more than one year, no statute of limitations that would otherwise preclude prosecution of the offense shall preclude such prosecution until a period of time following the implication of the person by DNA testing has elapsed that is equal to the otherwise applicable limitation period.

(Aug. 10, 1956, ch. 1041, 70A Stat. 51; Pub. L. 99–661, div. A, title VIII, §805(a), (b), Nov. 14, 1986, 100 Stat. 3908; Pub. L. 108–136, div. A, title V, §551, Nov. 24, 2003, 117 Stat. 1481; Pub. L. 109–163, div. A, title V, §§552(e), 553, Jan. 6, 2006, 119 Stat. 3263, 3264; Pub. L. 109–364, div. A, title X, §1071(a)(4), Oct. 17, 2006, 120 Stat. 2398; Pub. L. 111–383, div. A, title X, §1075(b)(14), Jan. 7, 2011, 124 Stat. 4369; Pub. L. 112–81, div. A, title V, §541(d)(1), Dec. 31, 2011, 125 Stat. 1410; Pub. L. 112–239, div. A, title X, §1076(f)(8), Jan. 2, 2013, 126 Stat. 1952; Pub. L. 113–66, div. A, title XVII, §1703(a), (b), Dec. 26, 2013, 127 Stat. 958; Pub. L. 113–291, div. A, title V, §531(d)(2)(A), Dec. 19, 2014, 128 Stat. 3364; Pub. L. 114–328, div. E, title LVII, §5225(a)–(e), Dec. 23, 2016, 130 Stat. 2909, 2910; Pub. L. 115–91, div. A, title X, §1081(c)(1)(E), Dec. 12, 2017, 131 Stat. 1598.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
843(a)

843(b)

50:618(a).

50:618(b).

May 5, 1950, ch. 169, §1 (Art. 43), 64 Stat. 121.
843(c) 50:618(c).
843(d) 50:618(d).
843(e) 50:618(e).
843(f) 50:618(f).

In subsection (b), the word "inclusive" is omitted as surplusage.

In subsections (b) and (c), the words "is not" are substituted for the words "shall not be".

In subsection (e), the words "For an" are substituted for the words "In the case of any". The word "is" is substituted for the words "shall be". The words "Secretary concerned" are substituted for the words "Secretary of the Department".

In subsection (f), the word "is" is substituted for the words "shall be".

Amendments

2017—Subsec. (i). Pub. L. 115–91 substituted "DNA Evidence" for "Dna Evidence" in heading.

2016Pub. L. 114–328, §5225(e), inserted headings in subsecs. (a) to (g).

Subsec. (b)(2)(A). Pub. L. 114–328, §5225(a), substituted "ten years" for "five years".

Subsec. (b)(2)(B)(i) to (v). Pub. L. 114–328, §5225(d), added pars. (i) to (iv) and struck out former pars. (i) to (v) which read as follows:

"(i) Any offense in violation of section 920, 920a, 920b, or 920c of this title (article 120, 120a, 120b, or 120c), unless the offense is covered by subsection (a).

"(ii) Maiming in violation of section 924 of this title (article 124).

"(iii) Forcible sodomy in violation of section 925 of this title (article 125).

"(iv) Aggravated assault or assault consummated by a battery in violation of section 928 of this title (article 128).

"(v) Kidnaping, assault with intent to commit murder, voluntary manslaughter, rape, or forcible sodomy, or indecent acts in violation of section 934 of this title (article 134)."

Subsec. (h). Pub. L. 114–328, §5225(b), added subsec. (h).

Subsec. (i). Pub. L. 114–328, §5225(c), added subsec. (i).

2014—Subsec. (b)(2)(B)(iii). Pub. L. 113–291, §531(d)(2)(A)(i), substituted "Forcible sodomy" for "Sodomy".

Subsec. (b)(2)(B)(v). Pub. L. 113–291, §531(d)(2)(A)(ii), substituted "forcible sodomy" for "sodomy".

2013—Subsec. (a). Pub. L. 113–66, §1703(a), substituted "rape or sexual assault, or rape or sexual assault of a child" for "rape, or rape of a child".

Subsec. (b)(2)(B)(i). Pub. L. 113–66, §1703(b), inserted ", unless the offense is covered by subsection (a)" before period at end.

Subsec. (b)(2)(B)(v). Pub. L. 112–239 substituted "Kidnaping," for "Kidnaping,,".

2011—Subsec. (b)(2)(B)(i). Pub. L. 112–81, §541(d)(1)(A), substituted "section 920, 920a, 920b, or 920c of this title (article 120, 120a, 120b, or 120c)" for "section 920 of this title (article 120)".

Subsec. (b)(2)(B)(v). Pub. L. 112–81, §541(d)(1)(B), struck out "indecent assault" after "Kidnaping," and "or liberties with a child" after "indecent acts".

Pub. L. 111–383 substituted "Kidnaping, indecent assault," for "Kidnaping; indecent assault;".

2006—Subsec. (a). Pub. L. 109–163, §553(a), substituted "with murder or rape, or with any other offense punishable by death" for "or with any offense punishable by death".

Pub. L. 109–163, §552(e), substituted ", rape, or rape of a child," for "or rape,".

Subsec. (b)(2)(A). Pub. L. 109–163, §553(b)(1), substituted "during the life of the child or within five years after the date on which the offense was committed, whichever provides a longer period," for "before the child attains the age of 25 years".

Subsec. (b)(2)(B). Pub. L. 109–163, §553(b)(2)(A), struck out "sexual or physical" before "abuse of a person" in introductory provisions.

Subsec. (b)(2)(B)(i). Pub. L. 109–163, §553(b)(2)(B), substituted "Any offense" for "Rape or carnal knowledge".

Subsec. (b)(2)(B)(iii). Pub. L. 109–364, §1071(a)(4)(A), substituted "125" for "126".

Subsec. (b)(2)(B)(v). Pub. L. 109–163, §553(b)(2)(C), substituted "Kidnaping; indecent assault;" for "Indecent assault,".

Subsec. (b)(2)(C). Pub. L. 109–364, §1071(a)(4)(B), substituted "under chapter 110 or 117 of title 18 or under section 1591 of that title" for "under chapter 110 or 117, or under section 1591, of title 18".

Pub. L. 109–163, §553(b)(3), added subpar. (C).

2003—Subsec. (b)(2), (3). Pub. L. 108–136 added par. (2) and redesignated former par. (2) as (3).

1986—Subsecs. (a) to (c). Pub. L. 99–661, §805(a), amended subsecs. (a) to (c) generally. Prior to amendment, subsecs. (a) to (c) read as follows:

"(a) A person charged with desertion or absence without leave in time of war, or with aiding the enemy, mutiny, or murder, may be tried and punished at any time without limitation.

"(b) Except as otherwise provided in this article, a person charged with desertion in time of peace or any of the offenses punishable under sections 919–932 of this title (articles 119–132) is not liable to be tried by court-martial if the offense was committed more than three years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command.

"(c) Except as otherwise provided in this article, a person charged with any offense is not liable to be tried by court-martial or punished under section 815 of this title (article 15) if the offense was committed more than two years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command or before the imposition of punishment under section 815 of this title (article 15)."

Subsec. (g). Pub. L. 99–661, §805(b), added subsec. (g).

Effective Date of 2017 Amendment

Amendment by section 1081(c)(1)(E) of Pub. L. 115–91 effective immediately after the amendments made by div. E (§§5001–5542) of Pub. L. 114–328 take effect as provided for in section 5542 of that Act (10 U.S.C. 801 note), see section 1081(c)(4) of Pub. L. 115–91, set out as a note under section 801 of this title.

Effective Date of 2016 Amendment

Pub. L. 114–328, div. E, title LVII, §5225(f), Dec. 23, 2016, 130 Stat. 2910, as amended by Pub. L. 115–91, div. A, title X, §1081(d)(17), Dec. 12, 2017, 131 Stat. 1600, provided that: "The amendments made by subsections (a), (b), (c), and (d) [amending this section] shall apply to the prosecution of any offense committed before, on, or after the date of the enactment of this section [Dec. 23, 2016] if the applicable limitation period has not yet expired."

[Pub. L. 115–91, div. A, title X, §1081(d), Dec. 12, 2017, 131 Stat. 1599, provided that the amendment made by section 1081(d)(17) to section 5225(f) of Pub. L. 114–328, set out above, is effective as of Dec. 23, 2016, and as if included in Pub. L. 114–328 as enacted.]

Amendment by section 5225(e) of Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 2013 Amendment

Pub. L. 113–66, div. A, title XVII, §1703(c), Dec. 26, 2013, 127 Stat. 958, provided that: "The amendments made by this section [amending this section] shall take effect on the date of the enactment of this Act [Dec. 26, 2013], and shall apply with respect to an offense covered by section 920(b) or 920b(b) of title 10, United States Code (article 120(b) or 120b(b) of the Uniform Code of Military Justice), that is committed on or after that date."

Effective Date of 2011 Amendment

Pub. L. 112–81, div. A, title V, §541(f), Dec. 31, 2011, 125 Stat. 1411, provided that: "The amendments made by this section [enacting sections 920b and 920c of this title and amending this section and sections 918 and 920 of this title] shall take effect 180 days after the date of the enactment of this Act [Dec. 31, 2011] and shall apply with respect to offenses committed on or after such effective date."

Effective Date of 2006 Amendment

Pub. L. 109–163, div. A, title V, §552(f), Jan. 6, 2006, 119 Stat. 3263, provided that: "The amendments made by this section [amending this section and sections 918 and 920 of this title and enacting provisions set out as notes under section 920 of this title] shall take effect on October 1, 2007."

Effective Date of 1986 Amendment

Pub. L. 99–661, div. A, title VIII, §805(c), Nov. 14, 1986, 100 Stat. 3908, provided that: "The amendments made by this section [amending this section] shall apply to an offense committed on or after the date of the enactment of this Act [Nov. 14, 1986]."

Applicability of Subsections (b)(2)(B) and (h)

Pub. L. 115–91, div. A, title V, §531(n)(2), (3), Dec. 12, 2017, 131 Stat. 1387, provided that:

"(2) Child abuse offenses.—With respect to offenses committed before the date designated by the President under section 5542(a) of the Military Justice Act of 2016 (division E of Public Law 114–328; 130 Stat. 2967) [10 U.S.C. 801 note], subsection (b)(2)(B) of section 843 of title 10, United States Code (article 43 of the Uniform Code of Military Justice), shall be applied as in effect on December 22, 2016.

"(3) Fraudulent enlistment or appointment offenses.—With respect to the period beginning on December 23, 2016, and ending on the day before the date designated by the President under section 5542(a) of the Military Justice Act of 2016 (division E of Public Law 114–328; 130 Stat. 2967), in the application of subsection (h) of section 843 of title 10, United States Code (article 43 of the Uniform Code of Military Justice), as added by section 5225(b) of that Act (130 Stat. 2909), the reference in such subsection (h) to section 904a(1) of title 10, United States Code (article 104a(1) of the Uniform Code of Military Justice), shall be deemed to be a reference to section 883(1) of title 10, United States Code (article 83(1) of the Uniform Code of Military Justice)."

§844. Art. 44. Former jeopardy

(a) No person may, without his consent, be tried a second time for the same offense.

(b) No proceeding in which an accused has been found guilty by a court-martial upon any charge or specification is a trial in the sense of this article until the finding of guilty has become final after review of the case has been fully completed.

(c)(1) A court-martial with a military judge alone is a trial in the sense of this section (article) if, without fault of the accused—

(A) after introduction of evidence; and

(B) before announcement of findings under section 853 of this title (article 53);


the case is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses.

(2) A court-martial with a military judge and members is a trial in the sense of this section (article) if, without fault of the accused—

(A) after the members, having taken an oath as members under section 842 of this title (article 42) and after completion of challenges under section 841 of this title (article 41), are impaneled; and

(B) before announcement of findings under section 853 of this title (article 53);


the case is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses.

(Aug. 10, 1956, ch. 1041, 70A Stat. 52; Pub. L. 114–328, div. E, title LVII, §5226, Dec. 23, 2016, 130 Stat. 2910.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
844(a)

844(b)

844(c)

50:619(a).

50:619(b).

50:619(c).

May 5, 1950, ch. 169, §1 (Art. 44), 64 Stat. 122.

In subsection (a), the word "may" is substituted for the word "shall".

In subsection (b), the word "is" is substituted for the words "shall be held to be".

In subsection (c), the word "after" is substituted for the words "subsequent to". The word "before" is substituted for the words "prior to". The word "is" is substituted for the words "shall be".

Amendments

2016—Subsec. (c). Pub. L. 114–328 amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: "A proceeding which, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses without any fault of the accused is a trial in the sense of this article."

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

§845. Art. 45. Pleas of the accused

(a) Irregular and Similar Pleas.—If an accused after arraignment makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty.

(b) Pleas of Guilty.—A plea of guilty by the accused may not be received to any charge or specification alleging an offense for which the death penalty is mandatory. With respect to any other charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge, a finding of guilty of the charge or specification may be entered immediately without vote. This finding shall constitute the finding of the court unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty.

(c) Harmless Error.—A variance from the requirements of this article is harmless error if the variance does not materially prejudice the substantial rights of the accused.

(Aug. 10, 1956, ch. 1041, 70A Stat. 52; Pub. L. 90–632, §2(19), Oct. 24, 1968, 82 Stat. 1339; Pub. L. 114–328, div. E, title LVII, §5227, Dec. 23, 2016, 130 Stat. 2911.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
845(a)

845(b)

50:620(a).

50:620(b).

May 5, 1950, ch. 169, §1 (Art. 45), 64 Stat. 122.

In subsection (b), the word "may" is substituted for the word "shall".

Amendments

2016—Subsec. (a). Pub. L. 114–328, §5227(c)(1), inserted heading.

Subsec. (b). Pub. L. 114–328, §5227(c)(2), inserted heading.

Pub. L. 114–328, §5227(a), substituted "is mandatory" for "may be adjudged" and struck out "or by a court-martial without a military judge" after "by the military judge" and ", if permitted by regulations of the Secretary concerned," after "charge or specification may".

Subsec. (c). Pub. L. 114–328, §5227(b), added subsec. (c).

1968—Subsec. (a). Pub. L. 90–632, §2(19)(A), substituted "after arraignment" for "arraigned before a court-martial".

Subsec. (b). Pub. L. 90–632, §2(19)(B), inserted provisions covering the making and accepting of a guilty plea to charges or specifications other than charges and specifications alleging an offense for which the death penalty may be adjudged.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.

§846. Art. 46. Opportunity to obtain witnesses and other evidence in trials by court-martial

(a) Opportunity To Obtain Witnesses and Other Evidence.—In a case referred for trial by court-martial, the trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.

(b) Subpoena and Other Process Generally.—Any subpoena or other process issued under this section (article)—

(1) shall be similar to that which courts of the United States having criminal jurisdiction may issue;

(2) shall be executed in accordance with regulations prescribed by the President; and

(3) shall run to any part of the United States and to the Commonwealths and possessions of the United States.


(c) Subpoena and Other Process for Witnesses.—A subpoena or other process may be issued to compel a witness to appear and testify—

(1) before a court-martial, military commission, or court of inquiry;

(2) at a deposition under section 849 of this title (article 49); or

(3) as otherwise authorized under this chapter.


(d) Subpoena and Other Process for Evidence.—

(1) In general.—A subpoena or other process may be issued to compel the production of evidence—

(A) for a court-martial, military commission, or court of inquiry;

(B) for a deposition under section 849 of this title (article 49);

(C) for an investigation of an offense under this chapter; or

(D) as otherwise authorized under this chapter.


(2) Investigative subpoena.—An investigative subpoena under paragraph (1)(C) may be issued before referral of charges to a court-martial only if a general court-martial convening authority has authorized counsel for the Government to issue such a subpoena or a military judge issues such a subpoena pursuant to section 830a of this title (article 30a).

(3) Warrant or order for wire or electronic communications.—With respect to an investigation of an offense under this chapter, a military judge detailed in accordance with section 826 or 830a of this title (article 26 or 30a) may issue warrants or court orders for the contents of, and records concerning, wire or electronic communications in the same manner as such warrants and orders may be issued by a district court of the United States under chapter 121 of title 18, subject to such limitations as the President may prescribe by regulation.


(e) Request for Relief From Subpoena or Other Process.—If a person requests relief from a subpoena or other process under this section (article) on grounds that compliance is unreasonable or oppressive or is prohibited by law, a military judge detailed in accordance with section 826 or 830a of this title (article 26 or 30a) shall review the request and shall—

(1) order that the subpoena or other process be modified or withdrawn, as appropriate; or

(2) order the person to comply with the subpoena or other process.

(Aug. 10, 1956, ch. 1041, 70A Stat. 53; Pub. L. 109–163, div. A, title X, §1057(a)(6), Jan. 6, 2006, 119 Stat. 3441; Pub. L. 113–66, div. A, title XVII, §1704, Dec. 26, 2013, 127 Stat. 958; Pub. L. 113–291, div. A, title V, §531(b), Dec. 19, 2014, 128 Stat. 3363; Pub. L. 114–328, div. E, title LVII, §5228(a), Dec. 23, 2016, 130 Stat. 2911.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
846 50:621. May 5, 1950, ch. 169, §1 (Art. 46), 64 Stat. 122.

The word "Commonwealths" is inserted to reflect the present status of Puerto Rico.

Amendments

2016Pub. L. 114–328, §5228(a)(5), amended section catchline generally, substituting "Opportunity to obtain witnesses and other evidence in trials by court-martial" for "Opportunity to obtain witnesses and other evidence".

Subsec. (a). Pub. L. 114–328, §5228(a)(1), substituted "In a case referred for trial by court-martial, the trial counsel, the defense counsel," for "The counsel for the Government, the counsel for the accused,".

Subsec. (b). Pub. L. 114–328, §5228(a)(2), amended subsec. (b) generally. Prior to amendment, subsec. (b) related to request by counsel for accused to interview the victim of an alleged sex-related offense.

Subsec. (c). Pub. L. 114–328, §5228(a)(3), amended subsec. (c) generally. Prior to amendment, text read as follows: "Process issued in court-martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall be similar to that which courts of the United States having criminal jurisdiction may lawfully issue and shall run to any part of the United States, or the Commonwealths and possessions."

Subsecs. (d), (e). Pub. L. 114–328, §5228(a)(4), added subsecs. (d) and (e).

2014—Subsec. (a). Pub. L. 113–291, §531(b)(2), (3)(B), substituted "counsel for the Government" for "trial counsel" and "counsel for the accused" for "defense counsel".

Subsec. (b). Pub. L. 113–291, §531(b)(3)(A), which directed substitution of "Counsel for Accused" for "Defense Counsel" in heading of section, was executed by making the substitution in the heading of subsec. (b) to reflect the probable intent of Congress.

Pub. L. 113–291, §531(b)(2), (3)(B), substituted "counsel for the Government" for "trial counsel" and "counsel for the accused" for "defense counsel" wherever appearing.

Subsec. (b)(1). Pub. L. 113–291, §531(b)(1), substituted "through the Special Victims' Counsel or other counsel for the victim, if applicable" for "through trial counsel".

2013Pub. L. 113–66 designated first sentence as subsec. (a) and second sentence as subsec. (c), inserted headings, and added subsec. (b).

2006Pub. L. 109–163 substituted "Commonwealths and possessions" for "Territories, Commonwealths, and possessions".

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

§847. Art. 47. Refusal of person not subject to chapter to appear, testify, or produce evidence

(a) In General.—(1) Any person described in paragraph (2) who—

(A) willfully neglects or refuses to appear; or

(B) willfully refuses to qualify as a witness or to testify or to produce any evidence which that person is required to produce;


is guilty of an offense against the United States.

(2) The persons referred to in paragraph (1) are the following:

(A) Any person not subject to this chapter who—

(i) is issued a subpoena or other process described in subsection (c) of section 846 of this title (article 46); and

(ii) is provided a means for reimbursement from the Government for fees and mileage at the rates allowed to witnesses attending the courts of the United States or, in the case of extraordinary hardship, is advanced such fees and mileage.


(B) Any person not subject to this chapter who is issued a subpoena or other process described in subsection (d) of section 846 of this title (article 46).


(b) Any person who commits an offense named in subsection (a) shall be tried on indictment or information in a United States district court or in a court of original criminal jurisdiction in any of the Commonwealths or possessions of the United States, and jurisdiction is conferred upon those courts for that purpose. Upon conviction, such a person shall be fined or imprisoned, or both, at the court's discretion.

(c) The United States attorney or the officer prosecuting for the United States in any such court of original criminal jurisdiction shall, upon the certification of the facts to him by the military court, commission, court of inquiry, board, or convening authority, file an information against and prosecute any person violating this article.

(d) The fees and mileage of witnesses shall be advanced or paid out of the appropriations for the compensation of witnesses.

(Aug. 10, 1956, ch. 1041. 70A Stat. 53; Pub. L. 104–106, div. A, title XI, §1111, Feb. 10, 1996, 110 Stat. 461; Pub. L. 109–163, div. A, title X, §1057(a)(5), Jan. 6, 2006, 119 Stat. 3440; Pub. L. 112–81, div. A, title V, §542(a), (b), Dec. 31, 2011, 125 Stat. 1411; Pub. L. 113–66, div. A, title XVII, §1702(c)(3)(D), Dec. 26, 2013, 127 Stat. 958; Pub. L. 114–328, div. E, title LVII, §5229, Dec. 23, 2016, 130 Stat. 2913.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
847(a)

847(b)

50:622(a).

50:622(b).

May 5, 1950, ch. 169, §1 (Art. 47), 64 Stat. 123.
847(c) 50:622(c).
847(d) 50:622(d).

In subsection (a), the word "Any" is substituted for the word "Every". The word "is" is substituted for the words "shall be deemed".

In subsection (b), the words "named in subsection (a)" are substituted for the words "denounced by this article". The words "Territories, Commonwealths, or" are substituted for the word "Territorial". The words "not more than" are substituted for the words "a period not exceeding".

In subsection (c), the words "It shall be the duty of * * * to" are omitted as surplusage. The words "United States Attorney" are substituted for the words "United States district attorney", to conform to the terminology of section 501 of title 28. The word "shall" is inserted after the word "jurisdiction".

Amendments

2016Pub. L. 114–328, §5229(b), amended section catchline generally, substituting "Refusal of person not subject to chapter to appear, testify, or produce evidence" for "Refusal to appear or testify".

Subsec. (a). Pub. L. 114–328, §5229(a), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: "Any person not subject to this chapter who—

"(1) has been duly subpoenaed to appear as a witness before a court-martial, military commission, court of inquiry, or any other military court or board, or before any military or civil officer designated to take a deposition to be read in evidence before such a court, commission, or board, or has been duly issued a subpoena duces tecum for a preliminary hearing pursuant to section 832 of this title (article 32);

"(2) has been provided a means for reimbursement from the Government for fees and mileage at the rates allowed to witnesses attending the courts of the United States or, in the case of extraordinary hardship, is advanced such fees and mileage; and

"(3) willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or to produce any evidence which that person may have been legally subpoenaed to produce;

is guilty of an offense against the United States."

2013—Subsec. (a)(1). Pub. L. 113–66 substituted "a preliminary hearing pursuant to section 832 of this title (article 32)" for "an investigation pursuant to section 832(b) of this title (article 32(b))".

2011—Subsec. (a). Pub. L. 112–81, §542(b), substituted "subpoenaed" for "subpenaed" in two places.

Subsec. (a)(1). Pub. L. 112–81, §542(a)(1)(A), substituted "board, or has been duly issued a subpoena duces tecum for an investigation pursuant to section 832(b) of this title (article 32(b));" for "board;".

Subsec. (a)(2). Pub. L. 112–81, §542(a)(1)(B), substituted "provided a means for reimbursement from the Government for fees and mileage" for "duly paid or tendered the fees and mileage of a witness" and inserted "or, in the case of extraordinary hardship, is advanced such fees and mileage" before semicolon.

Subsec. (c). Pub. L. 112–81, §542(a)(2), substituted "board, or convening authority" for "or board".

2006—Subsec. (b). Pub. L. 109–163 substituted "Commonwealths or possessions" for "Territories, Commonwealths, or possessions".

1996—Subsec. (b). Pub. L. 104–106 inserted "indictment or" after "shall be tried on" and substituted "shall be fined or imprisoned, or both, at the court's discretion" for "shall be punished by a fine of not more than $500, or imprisonment for not more than six months, or both".

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 2013 Amendment

Amendment by Pub. L. 113–66 effective on the later of Dec. 26, 2014, or the date of the enactment of the Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year 2015 (Dec. 19, 2014) and applicable with respect to preliminary hearings conducted on or after that effective date, see section 1702(d)(1) of Pub. L. 113–66, set out as a note under section 802 of this title.

Effective Date of 2011 Amendment

Pub. L. 112–81, div. A, title V, §542(c), Dec. 31, 2011, 125 Stat. 1411, provided that: "The amendments made by subsection (a) [amending this section] shall apply with respect to subpoenas issued after the date of the enactment of this Act [Dec. 31, 2011]."

§848. Art. 48. Contempt

(a) Authority To Punish.—(1) With respect to any proceeding under this chapter, a judicial officer specified in paragraph (2) may punish for contempt any person who—

(A) uses any menacing word, sign, or gesture in the presence of the judicial officer during the proceeding;

(B) disturbs the proceeding by any riot or disorder; or

(C) willfully disobeys a lawful writ, process, order, rule, decree, or command issued with respect to the proceeding.


(2) A judicial officer referred to in paragraph (1) is any of the following:

(A) Any judge of the Court of Appeals for the Armed Forces and any judge of a Court of Criminal Appeals under section 866 of this title (article 66).

(B) Any military judge detailed to a court-martial, a provost court, a military commission, or any other proceeding under this chapter.

(C) Any military magistrate designated to preside under section 819 of this title (article 19).

(D) The president of a court of inquiry.


(b) Punishment.—The punishment for contempt under subsection (a) may not exceed confinement for 30 days, a fine of $1,000, or both.

(c) Review.—A punishment under this section—

(1) if imposed by a military judge or military magistrate, may be reviewed by the Court of Criminal Appeals in accordance with the uniform rules of procedure for the Courts of Criminal Appeals under section 866(h) of this title (article 66(h));

(2) if imposed by a judge of the Court of Appeals for the Armed Forces or a judge of a Court of Criminal Appeals, shall constitute a judgment of the court, subject to review under the applicable provisions of section 867 or 867a of this title (article 67 or 67a); and

(3) if imposed by a court of inquiry, shall be subject to review by the convening authority in accordance with rules prescribed by the President.


(d) Inapplicability to Military Commissions Under Chapter 47A.—This section does not apply to a military commission established under chapter 47A of this title.

(Aug. 10, 1956, ch. 1041, 70A Stat. 53; Pub. L. 109–366, §4(a)(2), Oct. 17, 2006, 120 Stat. 2631; Pub. L. 111–383, div. A, title V, §542(a), Jan. 7, 2011, 124 Stat. 4218; Pub. L. 114–328, div. E, title LVII, §5230, Dec. 23, 2016, 130 Stat. 2913; Pub. L. 115–91, div. A, title X, §1081(c)(1)(F), Dec. 12, 2017, 131 Stat. 1598.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
848 50:623. May 5, 1950, ch. 169, §1 (Art. 48), 64 Stat. 123.

The word "may" is substituted for the word "shall".

Amendments

2017—Subsec. (c)(1). Pub. L. 115–91 substituted "section 866(h) of this title (article 66(h))" for "section 866(g) of this title (article 66(g))".

2016Pub. L. 114–328, §5230(c), amended section catchline generally, substituting "Contempt" for "Contempts".

Subsec. (a). Pub. L. 114–328, §5230(a), amended subsec. (a) generally. Prior to amendment, text read as follows: "A judge detailed to a court-martial, a court of inquiry, the United States Court of Appeals for the Armed Forces, a military Court of Criminal Appeals, a provost court, or a military commission may punish for contempt any person who—

"(1) uses any menacing word, sign, or gesture in the presence of the judge during the proceedings of the court-martial, court, or military commission;

"(2) disturbs the proceedings of the court-martial, court, or military commission by any riot or disorder; or

"(3) willfully disobeys the lawful writ, process, order, rule, decree, or command of the court-martial, court, or military commission."

Subsecs. (c), (d). Pub. L. 114–328, §5230(b), added subsec. (c) and redesignated former subsec. (c) as (d).

2011Pub. L. 111–383 amended section generally. Prior to amendment, text read as follows: "A court-martial, provost court, or military commission may punish for contempt any person who uses any menacing word, sign, or gesture in its presence, or who disturbs its proceedings by any riot or disorder. The punishment may not exceed confinement for 30 days or a fine of $100, or both. This section does not apply to a military commission established under chapter 47A of this title."

2006Pub. L. 109–366 inserted last sentence.

Effective Date of 2017 Amendment

Amendment by Pub. L. 115–91 effective immediately after the amendments made by div. E (§§5001–5542) of Pub. L. 114–328 take effect as provided for in section 5542 of that Act (10 U.S.C. 801 note), see section 1081(c)(4) of Pub. L. 115–91, set out as a note under section 801 of this title.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 2011 Amendment

Pub. L. 111–383, div. A, title V, §542(b), Jan. 7, 2011, 124 Stat. 4218, provided that: "Section 848 of title 10, United States Code (article 48 of the Uniform Code of Military Justice), as amended by subsection (a), shall apply with respect to acts of contempt committed after the date of the enactment of this Act [Jan. 7, 2011]."

§849. Art. 49. Depositions

(a) In General.—(1) Subject to paragraph (2), a convening authority or a military judge may order depositions at the request of any party.

(2) A deposition may be ordered under paragraph (1) only if the requesting party demonstrates that, due to exceptional circumstances, it is in the interest of justice that the testimony of a prospective witness be preserved for use at a court-martial, military commission, court of inquiry, or other military court or board.

(3) A party who requests a deposition under this section shall give to every other party reasonable written notice of the time and place for the deposition.

(4) A deposition under this section shall be taken before, and authenticated by, an impartial officer, as follows:

(A) Whenever practicable, by an impartial judge advocate certified under section 827(b) of this title (article 27(b)).

(B) In exceptional circumstances, by an impartial military or civil officer authorized to administer oaths by (i) the laws of the United States or (ii) the laws of the place where the deposition is taken.


(b) Representation by Counsel.—Representation of the parties with respect to a deposition shall be by counsel detailed in the same manner as trial counsel and defense counsel are detailed under section 827 of this title (article 27). In addition, the accused shall have the right to be represented by civilian or military counsel in the same manner as such counsel are provided for in section 838(b) of this title (article 38(b)).

(c) Admissibility and Use as Evidence.—A deposition order under subsection (a) does not control the admissibility of the deposition in a court-martial or other proceeding under this chapter. Except as provided by subsection (d), a party may use all or part of a deposition as provided by the rules of evidence.

(d) Capital Cases.—Testimony by deposition may be presented in capital cases only by the defense.

(Aug. 10, 1956, ch. 1041, 70A Stat. 53; Pub. L. 90–632, §2(20), Oct. 24, 1968, 82 Stat. 1340; Pub. L. 98–209, §6(b), Dec. 6, 1983, 97 Stat. 1400; Pub. L. 109–163, div. A, title X, §1057(a)(3), Jan. 6, 2006, 119 Stat. 3440; Pub. L. 113–291, div. A, title V, §532, Dec. 19, 2014, 128 Stat. 3366; Pub. L. 114–328, div. E, title LVII, §5231, Dec. 23, 2016, 130 Stat. 2914.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
849(a)

849(b)

50:624(a).

50:624(b).

May 5, 1950, ch. 169, §1 (Art. 49), 64 Stat. 123.
849(c) 50:624(c).
849(d) 50:624(d).
849(e) 50:624(e).
849(f) 50:624(f).

In subsection (a), the word "commissioned" is inserted for clarity.

In subsection (d), the word "Commonwealth" is inserted to reflect the present status of Puerto Rico. The words "of Columbia" are inserted after the word "District" for clarity. The words "the distance of" are omitted as surplusage.

In subsections (e) and (f), the words "the requirements of" and the words "of this article" are omitted as surplusage. The word "presented" is substituted for the word "adduced" in subsection (e).

In subsection (f), the word "directs" is substituted for the words "shall have directed". The words "by law" are omitted as surplusage.

Amendments

2016Pub. L. 114–328 amended section generally. Prior to amendment, section consisted of subsecs. (a) to (f) relating to ordering depositions, notice, military and civil officers authorized to take depositions, use of depositions as evidence, testimony by deposition by the defense in capital cases, and use of deposition as evidence in cases in which the death penalty is authorized, respectively.

2014—Subsec. (a). Pub. L. 113–291 amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: "At any time after charges have been signed as provided in section 830 of this title (article 30), any party may take oral or written depositions unless the military judge or court-martial without a military judge hearing the case or, if the case is not being heard, an authority competent to convene a court-martial for the trial of those charges forbids it for good cause. If a deposition is to be taken before charges are referred for trial, such an authority may designate commissioned officers to represent the prosecution and the defense and may authorize those officers to take the deposition of any witness."

2006—Subsec. (d)(1). Pub. L. 109–163 struck out "Territory," after "State,".

1983—Subsecs. (d), (f). Pub. L. 98–209 inserted "or, in the case of audiotape, videotape, or similar material, may be played in evidence" after "read in evidence".

1968—Subsec. (a). Pub. L. 90–632 inserted reference to the taking of depositions being forbidden by the military judge or the court-martial without a military judge if the case is being heard.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 1983 Amendment

Amendment by Pub. L. 98–209 effective on first day of eighth calendar month beginning after Dec. 6, 1983, but not to apply to any case in which the findings and sentence were adjudged by a court-martial before that date, and the proceedings in any such case to be held in the same manner and with the same effect as if such amendments had not been enacted, see section 12(a)(1), (4) of Pub. L. 98–209, set out as a note under section 801 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.

§850. Art. 50. Admissibility of sworn testimony from records of courts of inquiry

(a) Use as Evidence by Any Party.—In any case not capital and not extending to the dismissal of a commissioned officer, the sworn testimony, contained in the duly authenticated record of proceedings of a court of inquiry, of a person whose oral testimony cannot be obtained, may, if otherwise admissible under the rules of evidence, be read in evidence by any party before a court-martial or military commission if the accused was a party before the court of inquiry and if the same issue was involved or if the accused consents to the introduction of such evidence. This section does not apply to a military commission established under chapter 47A of this title.

(b) Use as Evidence by Defense.—Such testimony may be read in evidence only by the defense in capital cases or cases extending to the dismissal of a commissioned officer.

(c) Use in Courts of Inquiry and Military Boards.—Such testimony may also be read in evidence before a court of inquiry or a military board.

(d) Audiotape or Videotape.—Sworn testimony that—

(1) is recorded by audiotape, videotape, or similar method; and

(2) is contained in the duly authenticated record of proceedings of a court of inquiry;


is admissible before a court-martial, military commission, court of inquiry, or military board, to the same extent as sworn testimony may be read in evidence before any such body under subsection (a), (b), or (c).

(Aug. 10, 1956, ch. 1041, 70A Stat. 54; Pub. L. 109–366, §4(a)(2), Oct. 17, 2006, 120 Stat. 2631; Pub. L. 114–328, div. E, title LVII, §5232, Dec. 23, 2016, 130 Stat. 2915.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
850(a)

850(b)

50:625(a).

50:625(b).

May 5, 1950, ch. 169, §1 (Art. 50), 64 Stat. 124.
850(c) 50:625(c).

In subsections (a) and (b), the word "commissioned" is inserted for clarity.

Amendments

2016Pub. L. 114–328, §5232(b), amended section catchline generally, substituting "Admissibility of sworn testimony from records of courts of inquiry" for "Admissibility of records of courts of inquiry".

Subsec. (a). Pub. L. 114–328, §5232(c)(1), inserted heading.

Subsec. (b). Pub. L. 114–328, §5232(c)(2), inserted heading.

Subsec. (c). Pub. L. 114–328, §5232(c)(3), inserted heading.

Subsec. (d). Pub. L. 114–328, §5232(a), added subsec. (d).

2006—Subsec. (a). Pub. L. 109–366 inserted last sentence.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

§850a. Art. 50a. Defense of lack of mental responsibility

(a) It is an affirmative defense in a trial by court-martial that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts. Mental disease or defect does not otherwise constitute a defense.

(b) The accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence.

(c) Whenever lack of mental responsibility of the accused with respect to an offense is properly at issue, the military judge shall instruct the members of the court as to the defense of lack of mental responsibility under this section and charge them to find the accused—

(1) guilty;

(2) not guilty; or

(3) not guilty only by reason of lack of mental responsibility.


(d) Subsection (c) does not apply to a court-martial composed of a military judge only. In the case of a court-martial composed of a military judge only, whenever lack of mental responsibility of the accused with respect to an offense is properly at issue, the military judge shall find the accused—

(1) guilty;

(2) not guilty; or

(3) not guilty only by reason of lack of mental responsibility.


(e) Notwithstanding the provisions of section 852 of this title (article 52), the accused shall be found not guilty only by reason of lack of mental responsibility if—

(1) a majority of the members of the court-martial present at the time the vote is taken determines that the defense of lack of mental responsibility has been established; or

(2) in the case of a court-martial composed of a military judge only, the military judge determines that the defense of lack of mental responsibility has been established.

(Added Pub. L. 99–661, div. A, title VIII, §802(a)(1), Nov. 14, 1986, 100 Stat. 3905; Pub. L. 114–328, div. E, title LVII, §5233, Dec. 23, 2016, 130 Stat. 2915.)

Amendments

2016—Subsec. (c). Pub. L. 114–328, in introductory provisions, struck out ", or the president of a court-martial without a military judge," after "the military judge".

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date

Pub. L. 99–661, div. A, title VIII, §802(b), Nov. 14, 1986, 100 Stat. 3906, provided that: "Section 850a of title 10, United States Code, as added by subsection (a)(1), shall apply only to offenses committed on or after the date of the enactment of this Act [Nov. 14, 1986]."

§851. Art. 51. Voting and rulings

(a) Voting by members of a general or special court-martial on the findings and on the sentence shall be by secret written ballot. The junior member of the court shall count the votes. The count shall be checked by the president, who shall forthwith announce the result of the ballot to the members of the court.

(b) The military judge shall rule upon all questions of law and all interlocutory questions arising during the proceedings. Any such ruling made by the military judge upon any question of law or any interlocutory question other than the factual issue of mental responsibility of the accused is final and constitutes the ruling of the court, except that the military judge may change a ruling at any time during trial.

(c) Before a vote is taken on the findings, the military judge shall, in the presence of the accused and counsel, instruct the members of the court as to the elements of the offense and charge them—

(1) that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt;

(2) that in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and he must be acquitted;

(3) that, if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt; and

(4) that the burden of proof to establish the guilt of the accused beyond reasonable doubt is upon the United States.


(d) Subsections (a), (b), and (c) do not apply to a court-martial composed of a military judge only. The military judge of such a court-martial shall determine all questions of law and fact arising during the proceedings and, if the accused is convicted, adjudge an appropriate sentence. The military judge of such a court-martial shall make a general finding and shall in addition on request find the facts specially. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein.

(Aug. 10, 1956, ch. 1041, 70A Stat. 54; Pub. L. 90–632, §2(21), Oct. 24, 1968, 82 Stat. 1340; Pub. L. 114–328, div. E, title LVII, §5234, Dec. 23, 2016, 130 Stat. 2915.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
851(a)

851(b)

50:626(a).

50:626(b).

May 5, 1950, ch. 169, §1 (Art. 51), 64 Stat. 124.
851(c) 50:626(c).

In subsection (a), the words "in each case" are omitted as surplusage.

In subsection (b), the word "is" is substituted for the words "shall be" in the second sentence. The word "constitutes" is substituted for the words "shall constitute". The word "However," is substituted for the word "but". The word "his" is substituted for the words "any such". The words "the ruling is" are substituted for the words "such ruling be". The words "voice vote" are substituted for the words "vote * * * viva voce".

In subsection (c), the word "must" is substituted for the word "shall" in clause (2), since a condition is prescribed, not a command. The words "United States" are substituted for the word "Government".

Amendments

2016—Subsec. (a). Pub. L. 114–328, §5234(1), struck out ", and by members of a court-martial without a military judge upon questions of challenge," after "on the sentence".

Subsec. (b). Pub. L. 114–328, §5234(2), struck out "and, except for questions of challenge, the president of a court-martial without a military judge" after "The military judge" and substituted "is final and constitutes the ruling of the court, except that the military judge may change a ruling at any time during trial." for ", or by the president of a court-martial without a military judge upon any question of law other than a motion for a finding of not guilty, is final and constitutes the ruling of the court. However, the military judge or the president of a court-martial without a military judge may change his ruling at any time during trial. Unless the ruling is final, if any member objects thereto, the court shall be cleared and closed and the question decided by a voice vote as provided in section 852 of this title (article 52), beginning with the junior in rank."

Subsec. (c). Pub. L. 114–328, §5234(3), struck out "or the president of a court-martial without a military judge" after "the military judge" in introductory provisions.

1968—Subsec. (a). Pub. L. 90–632, §2(21)(A), limited the balloting on the question of challenges to courts-martial without military judges.

Subsec. (b). Pub. L. 90–632, §2(21)(B), substituted "military judge" for "law officer" and inserted reference to the military judge's ruling upon challenges for cause when a military judge is part of a court-martial and reference to questions of law.

Subsec. (c). Pub. L. 90–632, §2(21)(C), substituted "military judge" for "law officer" and made minor changes in phraseology eliminating the division between general and special court-martials.

Subsec. (d). Pub. L. 90–632, §2(21)(D), added subsec. (d).

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.

§852. Art. 52. Votes required for conviction, sentencing, and other matters

(a) In General.—No person may be convicted of an offense in a general or special court-martial, other than—

(1) after a plea of guilty under section 845(b) of this title (article 45(b));

(2) by a military judge in a court-martial with a military judge alone, under section 816 of this title (article 16); or

(3) in a court-martial with members under section 816 of this title (article 16), by the concurrence of at least three-fourths of the members present when the vote is taken.


(b) Level of Concurrence Required.—

(1) In general.—Except as provided in subsection (a) and in paragraph (2), all matters to be decided by members of a general or special court-martial shall be determined by a majority vote, but a reconsideration of a finding of guilty or reconsideration of a sentence, with a view toward decreasing the sentence, may be made by any lesser vote which indicates that the reconsideration is not opposed by the number of votes required for that finding or sentence.

(2) Sentencing.—A sentence of death requires (A) a unanimous finding of guilty of an offense in this chapter expressly made punishable by death and (B) a unanimous determination by the members that the sentence for that offense shall include death. All other sentences imposed by members shall be determined by the concurrence of at least three-fourths of the members present when the vote is taken.

(Aug. 10, 1956, ch. 1041, 70A Stat. 55; Pub. L. 90–632, §2(22), Oct. 24, 1968, 82 Stat. 1340; Pub. L. 114–328, div. E, title LVII, §5235, Dec. 23, 2016, 130 Stat. 2916.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
852(a)

852(b)

50:627(a).

50:627(b)

May 5, 1950, ch. 169, §1 (Art. 52), 64 Stat. 125.
852(c) 50:627(c).

In subsections (a) and (b), the word "may" is substituted for the word "shall".

In subsection (b)(2), the words "for more than" are substituted for the words "in excess of".

In subsection (c), the word "disqualifies" is substituted for the words "shall disqualify". The word "is" is substituted for the words "shall be" in the last two sentences.

Amendments

2016Pub. L. 114–328 amended section generally. Prior to amendment, section consisted of subsecs. (a) to (c) relating to number of votes required for conviction of an offense for which the death penalty is mandatory, sentences, and all other questions, respectively.

1968—Subsec. (a)(2). Pub. L. 90–632, §2(22)(A), inserted reference to the exception provided in section 845(b) of this title (article 45(b)).

Subsec. (c). Pub. L. 90–632, §2(22)(B), provided that a determination to reconsider a finding of guilty or to reconsider a sentence, with a view toward decreasing it, may be made by a vote of less than a majority vote which indicates that the reconsideration is not opposed by the number of votes required for that finding or sentence.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.

§853. Art. 53. Findings and sentencing

(a) Announcement.—A court-martial shall announce its findings and sentence to the parties as soon as determined.

(b) Sentencing Generally.—

(1) General and special courts-martial.—

(A) Sentencing by military judge.—Except as provided in subparagraph (B), and in subsection (c) for capital offenses, if the accused is convicted of an offense in a trial by general or special court-martial, the military judge shall sentence the accused.

(B) Sentencing by members.—If the accused is convicted of an offense by general or special court-martial consisting of a military judge and members and the accused elects sentencing by members under section 825 of this title (article 25), the members shall sentence the accused.

(C) Sentence of the accused.—The sentence determined pursuant to this paragraph constitutes the sentence of the accused.


(2) Summary courts-martial.—If the accused is convicted of an offense in a trial by summary court-martial, the court-martial shall sentence the accused.


(c) Sentencing for Capital Offenses.—

(1) In general.—In a capital case, if the accused is convicted of an offense for which the court-martial may sentence the accused to death, the members shall determine whether the sentence for that offense shall be death or a lesser authorized punishment.

(2) Lesser authorized punishments.—In accordance with regulations prescribed by the President, the court-martial may include in any sentence to death or life in prison without eligibility for parole other lesser punishments authorized under this chapter.

(3) Other non-capital offenses.—In a capital case, if the accused is convicted of a non-capital offense, the accused shall be sentenced for such non-capital offense in accordance with subsection (b), regardless of whether the accused is convicted of an offense for which the court-martial may sentence the accused to death.

(Aug. 10, 1956, ch. 1041, 70A Stat. 56; Pub. L. 114–328, div. E, title LVII, §5236, Dec. 23, 2016, 130 Stat. 2916; Pub. L. 115–91, div. A, title X, §1081(c)(1)(G), Dec. 12, 2017, 131 Stat. 1598.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
853 50:628. May 5, 1950, ch. 169, §1 (Art. 53), 64 Stat. 125.

The word "A" is substituted for the word "Every".

Amendments

2017—Subsec. (b)(1)(B). Pub. L. 115–91 struck out "in a trial" after "convicted of an offense".

2016Pub. L. 114–328 amended section generally. Prior to amendment, text read as follows: "A court-martial shall announce its findings and sentence to the parties as soon as determined."

Effective Date of 2017 Amendment

Amendment by Pub. L. 115–91 effective immediately after the amendments made by div. E (§§5001–5542) of Pub. L. 114–328 take effect as provided for in section 5542 of that Act (10 U.S.C. 801 note), see section 1081(c)(4) of Pub. L. 115–91, set out as a note under section 801 of this title.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

§853a. Art. 53a. Plea agreements

(a) In General.—(1) At any time before the announcement of findings under section 853 of this title (article 53), the convening authority and the accused may enter into a plea agreement with respect to such matters as—

(A) the manner in which the convening authority will dispose of one or more charges and specifications; and

(B) limitations on the sentence that may be adjudged for one or more charges and specifications.


(2) The military judge of a general or special court-martial may not participate in discussions between the parties concerning prospective terms and conditions of a plea agreement.

(b) Limitation on Acceptance of Plea Agreements.—The military judge of a general or special court-martial shall reject a plea agreement that—

(1) contains a provision that has not been accepted by both parties;

(2) contains a provision that is not understood by the accused;

(3) except as provided in subsection (c), contains a provision for a sentence that is less than the mandatory minimum sentence applicable to an offense referred to in section 856(b)(2) of this title (article 56(b)(2));

(4) is prohibited by law; or

(5) is contrary to, or is inconsistent with, a regulation prescribed by the President with respect to terms, conditions, or other aspects of plea agreements.


(c) Limited Conditions for Acceptance of Plea Agreement for Sentence Below Mandatory Minimum for Certain Offenses.—With respect to an offense referred to in section 856(b)(2) of this title (article 56(b)(2))—

(1) the military judge may accept a plea agreement that provides for a sentence of bad conduct discharge; and

(2) upon recommendation of the trial counsel, in exchange for substantial assistance by the accused in the investigation or prosecution of another person who has committed an offense, the military judge may accept a plea agreement that provides for a sentence that is less than the mandatory minimum sentence for the offense charged.


(d) Binding Effect of Plea Agreement.—Upon acceptance by the military judge of a general or special court-martial, a plea agreement shall bind the parties and the court-martial.

(Added Pub. L. 114–328, div. E, title LVII, §5237, Dec. 23, 2016, 130 Stat. 2917; amended Pub. L. 115–91, div. A, title V, §531(d), title X, §1081(c)(1)(H), Dec. 12, 2017, 131 Stat. 1384, 1598.)

Amendments

2017—Subsec. (b)(4), (5). Pub. L. 115–91, §531(d)(1), added pars. (4) and (5).

Subsec. (d). Pub. L. 115–91, §1081(c)(1)(H), which directed substitution of "court-martial" for "military judge" the second place it appeared, could not be executed because of the prior amendment by Pub. L. 115–91, §531(d)(2). See below.

Pub. L. 115–91, §531(d)(2), substituted "shall bind the parties and the court-martial" for "shall bind the parties and the military judge".

Effective Date of 2017 Amendment

Amendment by section 531(d) of Pub. L. 115–91 effective immediately after the amendments made by div. E (§§5001–5542) of Pub. L. 114–328 take effect as provided for in section 5542 of that Act (10 U.S.C. 801 note), see section 531(p) of Pub. L. 115–91, set out as a note under section 801 of this title.

Amendment by section 1081(c)(1)(H) of Pub. L. 115–91 effective immediately after the amendments made by div. E (§§5001–5542) of Pub. L. 114–328 take effect as provided for in section 5542 of that Act (10 U.S.C. 801 note), see section 1081(c)(4) of Pub. L. 115–91, set out as a note under section 801 of this title.

Effective Date

Section effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. 13825, set out as notes under section 801 of this title.

§854. Art. 54. Record of trial

(a) General and Special Courts-martial.—Each general or special court-martial shall keep a separate record of the proceedings in each case brought before it. The record shall be certified by a court-reporter, except that in the case of death, disability, or absence of a court reporter, the record shall be certified by an official selected as the President may prescribe by regulation.

(b) Summary Courts-martial.—Each summary court-martial shall keep a separate record of the proceedings in each case, and the record shall be certified in the manner required by such regulations as the President may prescribe.

(c) Contents of Record.—(1) Except as provided in paragraph (2), the record shall contain such matters as the President may prescribe by regulation.

(2) In accordance with regulations prescribed by the President, a complete record of proceedings and testimony shall be prepared in any case of a sentence of death, dismissal, discharge, confinement for more than six months, or forfeiture of pay for more than six months.

(d) Copy to Accused.—A copy of the record of the proceedings of each general and special court-martial shall be given to the accused as soon as it is certified.

(e) Copy to Victim.—In the case of a general or special court-martial, upon request, a copy of all prepared records of the proceedings of the court-martial shall be given to the victim of the offense if the victim testified during the proceedings. The records of the proceedings shall be provided without charge and as soon as the records are certified. The victim shall be notified of the opportunity to receive the records of the proceedings.

(Aug. 10, 1956, ch. 1041, 70A Stat. 56; Pub. L. 90–632, §2(23), Oct. 24, 1968, 82 Stat. 1340; Pub. L. 98–209, §6(c), Dec. 6, 1983, 97 Stat. 1400; Pub. L. 106–398, §1 [[div. A], title V, §555(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A-127; Pub. L. 112–81, div. A, title V, §586(e), Dec. 31, 2011, 125 Stat. 1435; Pub. L. 114–328, div. E, title LVII, §5238, Dec. 23, 2016, 130 Stat. 2918.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
854(a)

854(b)

50:629(a).

50:629(b).

May 5, 1950, ch. 169, §1 (Art. 54), 64 Stat. 125.
854(c) 50:629(c).

In subsection (a), the word "If" is substituted for the words "In case". The words "any of those" are substituted for the word "such" in the last sentence.

In subsection (b), the words "and the" are substituted for the word "which" before the word "record". The words "the matter and shall be authenticated in the manner required by such regulations as" are substituted for the words "such matter and be authenticated in such manner as may be required by regulations which".

In subsection (c), the words "it is" are inserted before the word "authenticated".

Amendments

2016—Subsec. (a). Pub. L. 114–328, §5238(1), added subsec. (a) and struck out former subsec. (a) which read as follows: "Each general court-martial shall keep a separate record of the proceedings in each case brought before it, and the record shall be authenticated by the signature of the military judge. If the record cannot be authenticated by the military judge by reason of his death, disability, or absence, it shall be authenticated by the signature of the trial counsel or by that of a member if the trial counsel is unable to authenticate it by reason of his death, disability, or absence. In a court-martial consisting of only a military judge the record shall be authenticated by the court reporter under the same conditions which would impose such a duty on a member under this subsection."

Subsec. (b). Pub. L. 114–328, §5238(2), substituted "Summary Courts-martial.—Each summary court-martial" for "Each special and summary court-martial" and "certified" for "authenticated".

Subsec. (c). Pub. L. 114–328, §5238(3), added subsec. (c) and struck out former subsec. (c) which related to preparation of complete record of proceedings.

Subsec. (d). Pub. L. 114–328, §5238(4), inserted heading and substituted "certified" for "authenticated".

Subsec. (e). Pub. L. 114–328, §5238(5), inserted heading and substituted ", upon request," for "involving a sexual assault or other offense covered by section 920 of this title (article 120)," and "certified" for "authenticated".

2011—Subsec. (e). Pub. L. 112–81 added subsec. (e).

2000—Subsec. (c)(1)(B). Pub. L. 106–398 inserted ", confinement for more than six months, or forfeiture of pay for more than six months" after "bad-conduct discharge".

1983—Subsec. (a). Pub. L. 98–209, §6(c)(1), struck out provision that if the proceedings had resulted in an acquittal of all charges and specifications or, if not affecting a general or flag officer, in a sentence not including discharge and not in excess of that which could otherwise be adjudged by a special court-martial, the record had to contain such matters as might be prescribed by regulations of the President.

Subsec. (b). Pub. L. 98–209, §6(c)(2), substituted "the record" for "the record shall contain the matter and".

Subsecs. (c), (d). Pub. L. 98–209, §6(c)(3), (4), added subsec. (c) and redesignated former subsec. (c) as (d).

1968—Subsec. (a). Pub. L. 90–632 provided for authentication of a record of trial by general court-martial by the signature of the military judge, for alternate methods of authentication if the military judge for specified reasons is unable to authenticate it, for authentication when a court-martial consists only of a military judge, and for summarized records of trial in specified cases.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 2000 Amendment

Pub. L. 106–398, §1 [[div. A], title V, §555(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A-127, provided that: "The amendment made by subsection (a) [amending this section] shall take effect as of April 1, 2000, and shall apply with respect to charges referred on or after that date to trial by special court-martial."

Effective Date of 1983 Amendment

Amendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, but not to apply to any case in which the findings and sentence were adjudged by a court-martial before that date, and the proceedings in any such case to be held in the same manner and with the same effect as if such amendments had not been enacted, see section 12(a)(1), (4) of Pub. L. 98–209, set out as a note under section 801 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.

SUBCHAPTER VIII—SENTENCES

 
Sec.Art. 
855. 55. Cruel and unusual punishments prohibited.
856. 56. Sentencing.
[856a. 56a. Repealed.]
857. 57. Effective date of sentences.
[857a. 57a. Repealed.]
858. 58. Execution of confinement.
858a. 58a. Sentences: reduction in enlisted grade.
858b. 58b. Sentences: forfeiture of pay and allowances during confinement.

Amendments

2017Pub. L. 115–91, div. A, title X, §1081(d)(19)(A), Dec. 12, 2017, 131 Stat. 1601, made technical amendment to Pub. L. 114–328, §5541(5). See 2016 Amendment note below.

Pub. L. 115–91, div. A, title V, §531(f)(3), Dec. 12, 2017, 131 Stat. 1385, added item 858a and struck out former item 858a "Sentences: reduction in enlisted grade upon approval".

2016Pub. L. 114–328, div. E, title LXIII, §5541(5), Dec. 23, 2016, 130 Stat. 2966, as amended by Pub. L. 115–91, div. A, title X, §1081(d)(19)(A), Dec. 12, 2017, 131 Stat. 1601, substituted "Sentencing" for "Maximum and minimum limits" in item 856 and struck out items 856a "Art. 56a. Sentence of confinement for life without eligibility for parole" and 857a "Art. 57a. Deferment of sentences".

2013Pub. L. 113–66, div. A, title XVII, §1705(a)(2)(B), Dec. 26, 2013, 127 Stat. 959, substituted "Maximum and minimum limits" for "Maximum limits" in item 856.

1997Pub. L. 105–85, div. A, title V, §581(a)(2), Nov. 18, 1997, 111 Stat. 1760, added item 856a.

1996Pub. L. 104–106, div. A, title XI, §§1122(a)(2), 1123(b), Feb. 10, 1996, 110 Stat. 463, 464, added items 857a and 858b.

1960Pub. L. 86–633, §1(2), July 12, 1960, 74 Stat. 468, added item 858a.

§855. Art. 55. Cruel and unusual punishments prohibited

Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by any court-martial or inflicted upon any person subject to this chapter. The use of irons, single or double, except for the purpose of safe custody, is prohibited.

(Aug. 10, 1956, ch. 1041, 70A Stat. 56.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
855 50:636. May 5, 1950, ch. 169, §1 (Art. 55), 64 Stat. 126.

The word "may" is substituted for the word "shall".

§856. Art. 56. Sentencing

(a) Sentence Maximums.—The punishment which a court-martial may direct for an offense may not exceed such limits as the President may prescribe for that offense.

(b) Sentence Minimums for Certain Offenses.—(1) Except as provided in subsection (d) of section 853a of this title (article 53a), punishment for any offense specified in paragraph (2) shall include dismissal or dishonorable discharge, as applicable.

(2) The offenses referred to in paragraph (1) are as follows:

(A) Rape under subsection (a) of section 920 of this title (article 120).

(B) Sexual assault under subsection (b) of such section (article).

(C) Rape of a child under subsection (a) of section 920b of this title (article 120b).

(D) Sexual assault of a child under subsection (b) of such section (article).

(E) An attempt to commit an offense specified in subparagraph (A), (B), (C), or (D) that is punishable under section 880 of this title (article 80).

(F) Conspiracy to commit an offense specified in subparagraph (A), (B), (C), or (D) that is punishable under section 881 of this title (article 81).


(c) Imposition of Sentence.—

(1) In general.—In sentencing an accused under section 853 of this title (article 53), a court-martial shall impose punishment that is sufficient, but not greater than necessary, to promote justice and to maintain good order and discipline in the armed forces, taking into consideration—

(A) the nature and circumstances of the offense and the history and characteristics of the accused;

(B) the impact of the offense on—

(i) the financial, social, psychological, or medical well-being of any victim of the offense; and

(ii) the mission, discipline, or efficiency of the command of the accused and any victim of the offense;


(C) the need for the sentence—

(i) to reflect the seriousness of the offense;

(ii) to promote respect for the law;

(iii) to provide just punishment for the offense;

(iv) to promote adequate deterrence of misconduct;

(v) to protect others from further crimes by the accused;

(vi) to rehabilitate the accused; and

(vii) to provide, in appropriate cases, the opportunity for retraining and return to duty to meet the needs of the service; and


(D) the sentences available under this chapter.


(2) Sentencing by military judge.—In announcing the sentence in a general or special court-martial in which the accused is sentenced by a military judge alone under section 853 of this title (article 53), the military judge shall, with respect to each offense of which the accused is found guilty, specify the term of confinement, if any, and the amount of the fine, if any. If the accused is sentenced to confinement for more than one offense, the military judge shall specify whether the terms of confinement are to run consecutively or concurrently.

(3) Sentencing by members.—In a general or special court-martial in which the accused has elected sentencing by members, the court-martial shall announce a single sentence for all of the offenses of which the accused was found guilty.

(4) Sentence of confinement for life without eligibility for parole.—(A) If an offense is subject to a sentence of confinement for life, a court-martial may impose a sentence of confinement for life without eligibility for parole.

(B) An accused who is sentenced to confinement for life without eligibility for parole shall be confined for the remainder of the accused's life unless—

(i) the sentence is set aside or otherwise modified as a result of—

(I) action taken by the convening authority or the Secretary concerned; or

(II) any other action taken during post-trial procedure and review under any other provision of subchapter IX of this chapter;


(ii) the sentence is set aside or otherwise modified as a result of action taken by a Court of Criminal Appeals, the Court of Appeals for the Armed Forces, or the Supreme Court; or

(iii) the accused is pardoned.


(d) Appeal of Sentence by the United States.—(1) With the approval of the Judge Advocate General concerned, and consistent with standards and procedures set forth in regulations prescribed by the President, the Government may appeal a sentence to the Court of Criminal Appeals, on the grounds that—

(A) the sentence violates the law; or

(B) the sentence is plainly unreasonable, as determined in accordance with standards and procedures prescribed by the President.


(2) An appeal under this subsection must be filed within 60 days after the date on which the judgment of a court-martial is entered into the record under section 860c of this title (article 60c).

(Aug. 10, 1956, ch. 1041, 70A Stat. 56; Pub. L. 113–66, div. A, title XVII, §1702(a)(1), (2)(A), Dec. 26, 2013, 127 Stat. 959; Pub. L. 114–328, div. E, title LVIII, §5301(a), Dec. 23, 2016, 130 Stat. 2919; Pub. L. 115–91, div. A, title V, §531(e), Dec. 12, 2017, 131 Stat. 1385.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
856 50:637. May 5, 1950, ch. 169, §1 (Art. 56), 64 Stat. 126.

The word "may" is substituted for the word "shall".

Amendments

2017—Subsec. (d)(1). Pub. L. 115–91, §531(e)(1), inserted "and consistent with standards and procedures set forth in regulations prescribed by the President," after "concerned," in introductory provisions.

Subsec. (d)(1)(B). Pub. L. 115–91, §531(e)(2), inserted ", as determined in accordance with standards and procedures prescribed by the President" before period at end.

2016Pub. L. 114–328 amended section generally. Prior to amendment, section related to maximum and minimum sentencing limits.

2013Pub. L. 113–66 substituted "Maximum and minimum limits" for "Maximum limits" in section catchline, designated existing provisions as subsec. (a), and added subsec. (b).

Effective Date of 2017 Amendment

Amendment by Pub. L. 115–91 effective immediately after the amendments made by div. E (§§5001–5542) of Pub. L. 114–328 take effect as provided for in section 5542 of that Act (10 U.S.C. 801 note), see section 531(p) of Pub. L. 115–91, set out as a note under section 801 of this title.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 2013 Amendment

Amendment by Pub. L. 113–66 effective 180 days after Dec. 26, 2013, and applicable to offenses specified in subsec. (b)(2) of this section committed on or after that date, see section 1705(c) of Pub. L. 113–66, set out as a note under section 818 of this title.

[§856a. Repealed. Pub. L. 114–328, div. E, title LVIII, §5301(b), Dec. 23, 2016, 130 Stat. 2920]

Section, added Pub. L. 105–85, div. A, title V, §581(a)(1), Nov. 18, 1997, 111 Stat. 1759, related to sentence of confinement for life without eligibility for parole.

Effective Date of Repeal

Repeal effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

§857. Art. 57. Effective date of sentences

(a) Execution of Sentences.—A court-martial sentence shall be executed and take effect as follows:

(1) Forfeiture and reduction.—A forfeiture of pay or allowances shall be applicable to pay and allowances accruing on and after the date on which the sentence takes effect. Any forfeiture of pay or allowances or reduction in grade that is included in a sentence of a court-martial takes effect on the earlier of—

(A) the date that is 14 days after the date on which the sentence is adjudged; or

(B) in the case of a summary court-martial, the date on which the sentence is approved by the convening authority.


(2) Confinement.—Any period of confinement included in a sentence of a court-martial begins to run from the date the sentence is adjudged by the court-martial, but periods during which the sentence to confinement is suspended or deferred shall be excluded in computing the service of the term of confinement.

(3) Approval of sentence of death.—If the sentence of the court-martial extends to death, that part of the sentence providing for death may not be executed until approved by the President. In such a case, the President may commute, remit, or suspend the sentence, or any part thereof, as the President sees fit. That part of the sentence providing for death may not be suspended.

(4) Approval of dismissal.—If in the case of a commissioned officer, cadet, or midshipman, the sentence of a court-martial extends to dismissal, that part of the sentence providing for dismissal may not be executed until approved by the Secretary concerned or such Under Secretary or Assistant Secretary as may be designated by the Secretary concerned. In such a case, the Secretary, Under Secretary, or Assistant Secretary, as the case may be, may commute, remit, or suspend the sentence, or any part of the sentence, as the Secretary sees fit. In time of war or national emergency he may commute a sentence of dismissal to reduction to any enlisted grade. A person so reduced may be required to serve for the duration of the war or emergency and six months thereafter.

(5) Completion of appellate review.—If a sentence extends to death, dismissal, or a dishonorable or bad-conduct discharge, that part of the sentence extending to death, dismissal, or a dishonorable or bad-conduct discharge may be executed, in accordance with service regulations, after completion of appellate review (and, with respect to death or dismissal, approval under paragraph (3) or (4), as appropriate).

(6) Other sentences.—Except as otherwise provided in this subsection, a general or special court-martial sentence is effective upon entry of judgment and a summary court-martial sentence is effective when the convening authority acts on the sentence.


(b) Deferral of Sentences.—

(1) In general.—On application by an accused, the convening authority or, if the accused is no longer under his or her jurisdiction, the officer exercising general court-martial jurisdiction over the command to which the accused is currently assigned, may, in his or her sole discretion, defer the effective date of a sentence of confinement, reduction, or forfeiture. The deferment shall terminate upon entry of judgment or, in the case of a summary court-martial, when the convening authority acts on the sentence. The deferment may be rescinded at any time by the officer who granted it or, if the accused is no longer under his jurisdiction, by the officer exercising general court-martial jurisdiction over the command to which the accused is currently assigned.

(2) Deferral of certain persons sentenced to confinement.—In any case in which a court-martial sentences a person referred to in paragraph (3) to confinement, the convening authority may defer the service of the sentence to confinement, without the consent of that person, until after the person has been permanently released to the armed forces by a State or foreign country referred to in that paragraph.

(3) Covered persons.—Paragraph (2) applies to a person subject to this chapter who—

(A) while in the custody of a State or foreign country is temporarily returned by that State or foreign country to the armed forces for trial by court-martial; and

(B) after the court-martial, is returned to that State or foreign country under the authority of a mutual agreement or treaty, as the case may be.


(4) State defined.—In this subsection, the term "State" includes the District of Columbia and any Commonwealth, territory, or possession of the United States.

(5) Deferral while review pending.—In any case in which a court-martial sentences a person to confinement, but in which review of the case under section 867(a)(2) of this title (article 67(a)(2)) is pending, the Secretary concerned may defer further service of the sentence to confinement while that review is pending.


(c) Appellate Review.—

(1) Completion of appellate review.—Appellate review is complete under this section when—

(A) a review under section 865 of this title (article 65) is completed; or

(B) a review under section 866 of this title (article 66) is completed by a Court of Criminal Appeals and—

(i) the time for the accused to file a petition for review by the Court of Appeals for the Armed Forces has expired and the accused has not filed a timely petition for such review and the case is not otherwise under review by that Court;

(ii) such a petition is rejected by the Court of Appeals for the Armed Forces; or

(iii) review is completed in accordance with the judgment of the Court of Appeals for the Armed Forces and—

(I) a petition for a writ of certiorari is not filed within the time limits prescribed by the Supreme Court;

(II) such a petition is rejected by the Supreme Court; or

(III) review is otherwise completed in accordance with the judgment of the Supreme Court.


(2) Completion as final judgment of legality of proceedings.—The completion of appellate review shall constitute a final judgment as to the legality of the proceedings.

(Aug. 10, 1956, ch. 1041, 70A Stat. 56; Pub. L. 90–632, §2(24), Oct. 24, 1968, 82 Stat. 1341; Pub. L. 98–209, §5(f), Dec. 6, 1983, 97 Stat. 1400; Pub. L. 102–484, div. A, title X, §1064, Oct. 23, 1992, 106 Stat. 2505; Pub. L. 104–106, div. A, title XI, §§1121(a), 1123(a)(1), (2), Feb. 10, 1996, 110 Stat. 462–464; Pub. L. 114–328, div. E, title LVIII, §5302(a), Dec. 23, 2016, 130 Stat. 2921.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
857(a)

857(b)

50:638(a).

50:638(b).

May 5, 1950, ch. 169, §1 (Art. 57), 64 Stat. 126.
857(c) 50:638(c).

In subsection (a), the word "may" is substituted for the word "shall".

In subsection (b), the word "begins" is substituted for the words "shall begin".

In subsection (c), the word "are" is substituted for the words "shall become".

Amendments

2016Pub. L. 114–328 amended section generally. Prior to amendment, section related to effective date of sentences.

1996—Subsec. (a). Pub. L. 104–106, §1121(a), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: "No forfeiture may extend to any pay or allowances accrued before the date on which the sentence is approved by the person acting under section 860(c) of this title (article 60(c))."

Subsecs. (d), (e). Pub. L. 104–106, §1123(a)(1), (2), redesignated subsecs. (d) and (e) as section 857a(a) and (b), respectively, of this title.

1992—Subsec. (e). Pub. L. 102–484 added subsec. (e).

1983—Subsec. (a). Pub. L. 98–209 substituted provision that no forfeiture may extend to any pay or allowances accrued before the date on which the sentence is approved by the person acting under section 860(c) of this title, for provision that whenever a sentence of a court-martial as lawfully adjudged and approved included a forfeiture of pay or allowances in addition to confinement not suspended or deferred, the forfeiture could apply to pay or allowances becoming due on or after the date the sentence was approved by the convening authority, and that no forfeiture could extend to any pay or allowances accrued before that date.

1968—Subsec. (a). Pub. L. 90–632 inserted reference to deferral of sentence of confinement.

Subsec. (b). Pub. L. 90–632 inserted reference to deferral of sentence of confinement.

Subsec. (d). Pub. L. 90–632 added subsec. (d).

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 1996 Amendment

Pub. L. 104–106, div. A, title XI, §1121(b), Feb. 10, 1996, 110 Stat. 462, provided that: "The amendment made by subsection (a) [amending this section] shall apply to a case in which a sentence is adjudged by a court-martial on or after the first day of the first month that begins at least 30 days after the date of the enactment of this Act [Feb. 10, 1996]."

Effective Date of 1992 Amendment

Amendment by Pub. L. 102–484 effective Oct. 23, 1992, and applicable with respect to offenses committed on or after that date, see section 1067 of Pub. L. 102–484, set out as a note under section 803 of this title.

Effective Date of 1983 Amendment

Amendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, but not to apply to any case in which the findings and sentence were adjudged by a court-martial before that date, and the proceedings in any such case to be held in the same manner and with the same effect as if such amendments had not been enacted, see section 12(a)(1), (4) of Pub. L. 98–209, set out as a note under section 801 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.

[§857a. Repealed. Pub. L. 114–328, div. E, title LVIII, §5302(b)(1), Dec. 23, 2016, 130 Stat. 2923]

Section, added Pub. L. 90–632, §2(24), Oct. 24, 1968, 82 Stat. 1341, §857(d); amended Pub. L. 102–484, div. A, title X, §1064, Oct. 23, 1992, 106 Stat. 2505; renumbered §857a and amended Pub. L. 104–106, div. A, title XI, §1123(a), Feb. 10, 1996, 110 Stat. 463, related to deferment of sentence to confinement.

Effective Date of Repeal

Repeal effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

§858. Art. 58. Execution of confinement

(a) Under such instructions as the Secretary concerned may prescribe, a sentence of confinement adjudged by a court-martial or other military tribunal, whether or not the sentence includes discharge or dismissal, and whether or not the discharge or dismissal has been executed, may be carried into execution by confinement in any place of confinement under the control of any of the armed forces or in any penal or correctional institution under the control of the United States, or which the United States may be allowed to use. Persons so confined in a penal or correctional institution not under the control of one of the armed forces are subject to the same discipline and treatment as persons confined or committed by the courts of the United States or of the State, District of Columbia, or place in which the institution is situated.

(b) The omission of the words "hard labor" from any sentence of a court-martial adjudging confinement does not deprive the authority executing that sentence of the power to require hard labor as a part of the punishment.

(Aug. 10, 1956, ch. 1041, 70A Stat. 57; Pub. L. 109–163, div. A, title X, §1057(a)(3), Jan. 6, 2006, 119 Stat. 3440.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
858(a)

858(b)

50:639(a).

50:639(b).

May 5, 1950, ch. 169, §1 (Art. 58), 64 Stat. 126.

In subsection (a), the words "Secretary concerned" are substituted for the words "Department concerned", since the "Department" as an entity, cannot issue instructions. The word "are" is substituted for the words "shall be". The words "of Columbia" are inserted after "District" for clarity.

In subsection (b), the word "from" is substituted for the word "in". The words "does not deprive" are substituted for the words "shall not be construed as depriving".

Amendments

2006—Subsec. (a). Pub. L. 109–163 struck out "Territory," after "State,".

§858a. Art. 58a. Sentences: reduction in enlisted grade

(a) A court-martial sentence of an enlisted member in a pay grade above E–1, as set forth in the judgment of the court-martial entered into the record under section 860c of this title (article 60c), that includes—

(1) a dishonorable or bad-conduct discharge;

(2) confinement; or

(3) hard labor without confinement;


reduces that member to pay grade E–1, if such a reduction is authorized by regulation prescribed by the President. The reduction in pay grade shall take effect on the date on which the judgment is so entered.

(b) If the sentence of a member who is reduced in pay grade under subsection (a) is set aside or reduced, or, as finally affirmed, does not include any punishment named in subsection (a)(1), (2), or (3), the rights and privileges of which he was deprived because of that reduction shall be restored to him and he is entitled to the pay and allowances to which he would have been entitled, for the period the reduction was in effect, had he not been so reduced.

(Added Pub. L. 86–633, §1(1), July 12, 1960, 74 Stat. 468; amended Pub. L. 114–328, div. E, title LVIII, §5303, Dec. 23, 2016, 130 Stat. 2923; Pub. L. 115–91, div. A, title V, §531(f)(1), (2), Dec. 12, 2017, 131 Stat. 1385.)

Amendments

2017Pub. L. 115–91, §531(f)(2), struck out "upon approval" after "reduction in enlisted grade" in section catchline.

Subsec. (a). Pub. L. 115–91, §531(f)(1), substituted ", if such a reduction is authorized by regulation prescribed by the President. The reduction in pay grade shall take effect on the date" for ", effective on the date" in concluding provisions.

2016—Subsec. (a). Pub. L. 114–328, §5303(1), in introductory provisions, substituted "A" for "Unless otherwise provided in regulations to be prescribed by the Secretary concerned, a" and "as set forth in the judgment of the court-martial entered into the record under section 860c of this title (article 60c)" for "as approved by the convening authority", and, in concluding provisions, substituted "on which the judgment is so entered" for "of that approval".

Subsec. (b). Pub. L. 114–328, §5303(2), substituted "reduced, or, as finally affirmed" for "disapproved, or, as finally approved".

Effective Date of 2017 Amendment

Amendment by Pub. L. 115–91 effective immediately after the amendments made by div. E (§§5001–5542) of Pub. L. 114–328 take effect as provided for in section 5542 of that Act (10 U.S.C. 801 note), see section 531(p) of Pub. L. 115–91, set out as a note under section 801 of this title.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

§858b. Art. 58b. Sentences: forfeiture of pay and allowances during confinement

(a)(1) A court-martial sentence described in paragraph (2) shall result in the forfeiture of pay, or of pay and allowances, due that member during any period of confinement or parole. The forfeiture pursuant to this section shall take effect on the date determined under section 857 of this title (article 57) and may be deferred as provided in that section. The pay and allowances forfeited, in the case of a general court-martial, shall be all pay and allowances due that member during such period and, in the case of a special court-martial, shall be two-thirds of all pay due that member during such period.

(2) A sentence covered by this section is any sentence that includes—

(A) confinement for more than six months or death; or

(B) confinement for six months or less and a dishonorable or bad-conduct discharge or dismissal.


(b) In a case involving an accused who has dependents, the convening authority or other person acting under section 860a or 860b of this title (article 60a or 60b) may waive any or all of the forfeitures of pay and allowances required by subsection (a) for a period not to exceed six months. Any amount of pay or allowances that, except for a waiver under this subsection, would be forfeited shall be paid, as the convening authority or other person taking action directs, to the dependents of the accused.

(c) If the sentence of a member who forfeits pay and allowances under subsection (a) is set aside or disapproved or, as finally approved, does not provide for a punishment referred to in subsection (a)(2), the member shall be paid the pay and allowances which the member would have been paid, except for the forfeiture, for the period during which the forfeiture was in effect.

(Added Pub. L. 104–106, div. A, title XI, §1122(a)(1), Feb. 10, 1996, 110 Stat. 463; amended Pub. L. 104–201, div. A, title X, §1068(a)(1), Sept. 23, 1996, 110 Stat. 2655; Pub. L. 105–85, div. A, title X, §1073(a)(9), Nov. 18, 1997, 111 Stat. 1900; Pub. L. 114–328, div. E, title LVIII, §5302(b)(3), Dec. 23, 2016, 130 Stat. 2923; Pub. L. 115–91, div. A, title V, §531(g), Dec. 12, 2017, 131 Stat. 1385.)

Amendments

2017—Subsec. (b). Pub. L. 115–91 substituted "section 860a or 860b of this title (article 60a or 60b)" for "section 860 of this title (article 60)".

2016—Subsec. (a)(1). Pub. L. 114–328 substituted "section 857 of this title (article 57)" for "section 857(a) of this title (article 57(a))".

1997—Subsec. (a)(1). Pub. L. 105–85 substituted "forfeiture of pay, or of pay and allowances, due that member" for "forfeiture of pay and (if adjudged by a general court-martial) allowances due that member" in first sentence.

1996—Subsec. (a)(1). Pub. L. 104–201, §1068(a)(1)(B), substituted "two-thirds of all pay" for "two-thirds of all pay and allowances" in third sentence.

Pub. L. 104–201, §1068(a)(1)(A), which directed amendment of first sentence by inserting "(if adjudged by a general court-martial)" after "all pay and", was executed by making the insertion after "of pay and" in first sentence to reflect the probable intent of Congress.

Effective Date of 2017 Amendment

Amendment by Pub. L. 115–91 effective immediately after the amendments made by div. E (§§5001–5542) of Pub. L. 114–328 take effect as provided for in section 5542 of that Act (10 U.S.C. 801 note), see section 531(p) of Pub. L. 115–91, set out as a note under section 801 of this title.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 1996 Amendment

Pub. L. 104–201, div. A, title X, §1068(a)(2), Sept. 23, 1996, 110 Stat. 2655, provided that: "The amendments made by paragraph (1) [amending this section] shall take effect as of April 1, 1996, and shall apply to any case in which a sentence is adjudged by a court-martial on or after that date."

Effective Date

Pub. L. 104–106, div. A, title XI, §1122(b), Feb. 10, 1996, 110 Stat. 463, provided that: "The section (article) added by the amendment made by subsection (a)(1) [this section] shall apply to a case in which a sentence is adjudged by a court-martial on or after the first day of the first month that begins at least 30 days after the date of the enactment of this Act [Feb. 10, 1996]."

SUBCHAPTER IX—POST-TRIAL PROCEDURE AND REVIEW OF COURTS-MARTIAL

 
Sec.Art. 
859. 59. Error of law; lesser included offense.
860. 60. Post-trial processing in general and special courts-martial.
860a. 60a. Limited authority to act on sentence in specified post-trial circumstances.
860b. 60b. Post-trial actions in summary courts-martial and certain general and special courts-martial.
860c. 60c. Entry of judgment.
861. 61. Waiver of right to appeal; withdrawal of appeal.
862. 62. Appeal by the United States.
863. 63. Rehearings.
864. 64. Judge advocate review of finding of guilty in summary court-martial.
865. 65. Transmittal and review of records.
866. 66. Courts of Criminal Appeals.
867. 67. Review by the Court of Appeals for the Armed Forces.
867a. 67a. Review by the Supreme Court.
868. 68. Branch offices.
869. 69. Review by Judge Advocate General.
870. 70. Appellate counsel.
[871. 71. Repealed.]
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.
876b. 76b. Lack of mental capacity or mental responsibility: commitment of accused for examination and treatment.

Amendments

2017Pub. L. 115–91, div. A, title X, §1081(d)(19)(A), Dec. 12, 2017, 131 Stat. 1601, made technical amendment to Pub. L. 114–328, §5541(6)(A) to (C). See 2016 Amendment notes below.

2016Pub. L. 114–328, div. E, title LXIII, §5541(6)(D), Dec. 23, 2016, 130 Stat. 2967, struck out item 871 "Art. 71. Execution of sentence; suspension of sentence".

Pub. L. 114–328, div. E, title LXIII, §5541(6)(B), (C), Dec. 23, 2016, 130 Stat. 2967, as amended by Pub. L. 115–91, div. A, title X, §1081(d)(19)(A), Dec. 12, 2017, 131 Stat. 1601, substituted "Judge advocate review of finding of guilty in summary court-martial" for "Review by a judge advocate" in item 864, "Transmittal and review of records" for "Disposition of records" in item 865, "Courts of Criminal Appeals" for "Review by Court of Criminal Appeals" in item 866, and "Review by Judge Advocate General" for "Review in the office of the Judge Advocate General" in item 869.

Pub. L. 114–328, div. E, title LXIII, §5541(6)(A), Dec. 23, 2016, 130 Stat. 2966, as amended by Pub. L. 115–91, div. A, title X, §1081(d)(19)(A), Dec. 12, 2017, 131 Stat. 1601, added items 860a to 860c and substituted "Post-trial processing in general and special courts-martial" for "Action by the convening authority" in item 860.

Pub. L. 114–328, div. E, title LXIII, §5541(6)(A), Dec. 23, 2016, 130 Stat. 2966, as amended by Pub. L. 115–91, div. A, title X, §1081(d)(19)(A), Dec. 12, 2017, 131 Stat. 1601, which directed amendment of analysis by striking out item "61" and inserting item 861, was amended by striking out item 861 "Waiver or withdrawal of appeal" and adding new item 861 to reflect the probable intent of Congress.

1996Pub. L. 104–106, div. A, title XI, §1133(a)(2), Feb. 10, 1996, 110 Stat. 466, added item 876b.

1994Pub. L. 103–337, div. A, title IX, §924(c)(4)(C), Oct. 5, 1994, 108 Stat. 2832, substituted "Court of Criminal Appeals" for "Court of Military Review" in item 866 and "Court of Appeals for the Armed Forces" for "Court of Military Appeals" in item 867.

1990Pub. L. 101–510, div. A, title XIV, §1484(i)(1), Nov. 5, 1990, 104 Stat. 1718, added item 867a.

1983Pub. 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, substituted "Post-trial Procedure and Review of Courts-Martial" for "Review of Courts-Martial" as subchapter heading, "Action by the convening authority" for "Initial action on the record" in item 860, "Waiver or withdrawal of appeal" for "Same—General court-martial records" in item 861, "Appeal by the United States" for "Reconsideration and revision" in item 862, "Review by a judge advocate" for "Approval by the convening authority" in item 864, and "Disposition of records" for "Disposition of records after review by the convening authority" in item 865.

1981Pub. L. 97–81, §2(c)(2), Nov. 20, 1981, 95 Stat. 1087, added item 876a.

1968Pub. L. 90–632, §2(25), Oct. 24, 1968, 82 Stat. 1341, substituted "Court of Military Review" for "board of review" in item 866 (article 66).

§859. Art. 59. Error of law; lesser included offense

(a) A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.

(b) Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense.

(Aug. 10, 1956, ch. 1041, 70A Stat. 57.)

Historical and Revision Notes
Revised sectionSource (U.S. Code)Source (Statutes at Large)
859(a)

859(b)

50:646(a).

50:646(b).

May 5, 1950, ch. 169, §1 (Art. 59), 64 Stat. 127.

The word "may" is substituted for the word "shall".

§860. Art 60. Post-trial processing in general and special courts-martial

(a) Statement of Trial Results.—(1) The military judge of a general or special court-martial shall enter into the record of trial a document entitled "Statement of Trial Results", which shall set forth—

(A) each plea and finding;

(B) the sentence, if any; and

(C) such other information as the President may prescribe by regulation.


(2) Copies of the Statement of Trial Results shall be provided promptly to the convening authority, the accused, and any victim of the offense.

(b) Post-trial Motions.—In accordance with regulations prescribed by the President, the military judge in a general or special court-martial shall address all post-trial motions and other post-trial matters that—

(1) may affect a plea, a finding, the sentence, the Statement of Trial Results, the record of trial, or any post-trial action by the convening authority; and

(2) are subject to resolution by the military judge before entry of judgment.

(Aug. 10, 1956, ch. 1041,