Page 139 TITLE 10-ARMED FORCES - Library of Congress

TITLE 10-ARMED FORCES

140, and (2) by section 2 of the act of June 21, 1930, 46Stat. 793, as amended by section 2 of said act of July 6,1953, to prescribe regulations authorizing occasionsupon which the uniform may be worn by persons whohave served honorably in the armed forces of theUnited States in time of war is hereby delegated to theSecretary of Defense so far as it pertains to the uni-forms of the Army, Navy. Air Force, and MarineCorps, and to the Secretary of the Treasury so far asit pertains to the uniform of the Coast Guard.

DWIGHT D. EISENHOWER.

CROSS REFERENCES

Coast Guard, right to wear uniform, see section 483of Title 14, Coast Guard.

Provisions respecting sale of exterior articles of uni-form to persons discharged honorably from Army orAir Force as not modifying this section, see sections4621, 9621 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 771a, 4621,6156, 9621 of this title,

§ 773. When distinctive insignia required

(a) A person for whom one of the followinguniforms is prescribed may wear it, if it in-cludes distinctive insignia prescribed by theSecretary of the military department concernedto distinguish it from the uniform of the Army,Navy, Air Force, or Marine Corps, as the casemay be:

(1) The uniform prescribed by the universi-ty, college, or school for an instructor ormember of the organized cadet corps of-

(A) a State university or college, or apublic high school, having a regular courseof military instruction; or

(B) an educational institution having aregular course of military instruction, andhaving a member of the Army, Navy, AirForce, or Marine Corps as instructor in mili-tary science and tactics.

(2) The uniform prescribed by a military so-ciety composed of persons discharged honor-ably or under honorable conditions from theArmy, Navy, Air Force, or Marine Corps to beworn by a member of that society when au-thorized by regulations prescribed by thePresident.

(b) A uniform prescribed under subsection (a)may not include insignia of grade the same as,or similar to, those prescribed for officers ofthe Army, Navy, Air Force, or Marine Corps.

(c) Under such regulations as the Secretary ofthe military department concerned may pre-scribe, any person who is permitted to attend acourse of instruction prescribed for members ofa reserve officers' training corps, and who is nota member of that corps, may, while attendingthat course of instruction, wear the uniform ofthat corps.

(Aug. 10, 1956, ch. 1041, 70A Stat. 35; Mar. 28,1958, Pub. L. 85-355, 72 Stat. 66 )

HISTORICAL AND REVISION NOTES

Revised Source (.S. Code) Source (Statutes atsection Large)

773(a) ........ 10:1393 (words between June 3. 1918, ch. 134,4th and 7th semico. I 125 (words betweenlons of 1st proviso, 4th and 7th semlco.and 2d proviso, of 1st Ions of 1st proviso,par.). and 2d and last provi-

773(b) ........ 10:1393 (last proviso of sos. of 1st par.). 391st par.). Stat. 216: June 4.

1920. ch. 228, 1S. 41Stat. 838; Sept. 15.1951. ch. 402. 65 Stat.323; July 6. 1953, ch.180, 11. 67 Stat. 140.

In subsection (a), the word "mark" is omitted as sur-plusage.

In subsection (a)(2), the words "persons dischargedhonorably or under honorable conditions from" aresubstituted for the words "entirely of honorably dis.charged officers or enlisted men, or both, of". Thewords "Regular or Volunteer" are omitted as surplus.age. The words "when authorized by regulations pre-scribed by" are substituted for the words "upon occa-sions authorized by regulations of".

AMENDMENTS

1958-Subsec. (c). Pub. L. 85-355 added subsec. (c).

CRoss REFERENCESProvisions respecting sale of exterior articles of uni-

form to person discharged honorably from Army orAir Force as not modifying this section, see sections4621, 9621 of this title.


This section is referred to in sections 4621, 6156,9621 of this title.

§ 774. Applicability of chapter

This chapter applies in the United States, theTerritories, Commonwealths, and possessions,and all other places under its jurisdiction.

(Aug. 10, 1956, ch. 1041, 70A Stat. 36.)


Revised Source (Statutes atsection Source(.S. Code) Large)

774 ............. 10:1393 (less 1st and last June 3, 1916. ch. 134,pars,). 1125 (less 1st and last

pars.), 39 Stat, 216;Apr. 15, 1948, ch. 188.62 Stat. 172; June 25,1948, ch. 645, 121 (asapplicable to j 125 ofthe Act of June 3,1916, ch. 134). 62 Stat864; May 24, 1949, ch.139, 1115(b) (less lastar.), 142 (as appl"ca.le to the Act of Apr.

15, 1948, ch. 188), 63Stat. 91, 110.

The words "the Canal Zone, Guam, AmericanSamoa, and the Virgin Islands as well as to °* *other" are omitted as covered by the words "posses-sions, and all other places under its Jurisdiction".

CHAPTER 47-UNIFORM CODE OF MILITARYJUSTICE

Subchap. Sec, Art.

I. General Provisions ................................ 801 1II. Apprehension and Restraint ............... 807 7

III. Non-Judicial Punishment .................... 815 15IV. Court-Martial Jurisdiction .................. 816 16

39 § 77.1


Subchap. Sec. Art.

V. Composition of Courts-Martial ........... 822 22VI. Pre-Trial Procedure .............................. 830 30

VII. Trial Procedure ...................................... 836 36VIII. Sentences ................................................ 855 55

IX. Review of Courts-Martial .................... 859 59X. Punitive Articles .................................... 877 77

XI. Miscellaneous Provisions ..................... 935 135

AMENDMENTS

1958-Pub. L. 85-861, § 33(a)(6), Sept. 2. 1958. 72Stat. 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.

CROSS REFERENCES

Retirement benefits, forfeiture upon conviction ofoffenses described hereunder, see section 8312 of Title5, Government Organization and Employees.

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in sections 951, 955. 1037,5148 of this title: title 5 sections 8312, 8313, 8331; title28 section 535; title 42 section 217; title 49 App. sec-tions 1471, 1655; title 50 App. section 473.

SUBCHAPTER I-GENERAL PROVISIONS

Sec. Art.801. 1802. 2803. 3804. 4

805. 5806. 6

Definitions.Persons subject to this chapter.Jurisdiction to try certain personnel.Dismissed officer's right to trial by court-

martial.Territorial applicability of this chapter.Judge advocates and legal officers.

§ 801. Article I. Definitions

In this chapter:(1) "Judge Advocate General" means, sever-

ally, the Judge Advocates General of theArmy, Navy, and Air Force and, except whenthe Coast Guard is operating as a service inthe Navy, the General Counsel of the Depart-ment of Transportation.

(2) The Navy, the Marine Corps, and theCoast Guard when it is operating as a servicein the Navy, shall be considered as one armedforce.

(3) "Commanding officer" includes onlycommissioned officers.

(4) "Officer in charge" means a member ofthe Navy, the Marine Corps, or th, CoastGuard designated as such by appropriate au-thority.

(5) "Superior commissioned officer" meansa commissioned officer superior in rank orcommand.

(6) "Cadet" means a cadet of the UnitedStates Military Academy, the United StatesAir Force Academy, or the United StatesCoast Guard Academy.

(7) "Midshipman" means a midshipman ofthe United States Naval Academy and anyother midshipman on active duty in the navalservice.

(8) "Military" refers to any or all of thearmed forces.

(9) "Accuser" means a person who signs andswears to charges, any person who directsthat charges nominally be signed and swornto by another, and any other person who hasan interest other than an official interest inthe prosecution of the accused.

(10) "Military judge" means an official of ageneral or special court-martial detailed in ac-cordance with section 826 of this title (article26).

(11) "Law specialist" means a commissionedofficer of the Coast Guard designated for spe-cial duty (law).

(12) "Legal officer" means any commis-sioned officer of the Navy, Marine Corps, orCoast Guard designated to perform legalduties for a command.

(13) "Judge advocate" means an officer ofthe Judge Advocate General's Corps of theArmy or the Navy or an officer of the AirForce or the Marine Corps who is designatedas a judge advocate.

(Aug. 10, 1956, ch. 1041, 70A Stat. 36; Oct. 15,1966, Pub. L. 89-670, § 10(g), 80 Stat. 948; Dec.8, 1967, Pub. L. 90-179, § 1(1), (2), 81 Stat. 545;Oct. 24, 1968, Pub. L. 90-632, § 2(1), 82 Stat.1335.)


Revised Source (U.S. Code) Source (Statutes atsection .Large)

801 ............. 50:551 (less (9)). May 5.1950, ch. 189, 11rt. .) (less (9)), 64

Stat. 108.

The words "In this chapter" are substituted for theintroductory clause.

In the introductory clause and throughout the re-vised chapter the word "chapter" is substituted forthe word "code".

Clauses (1), (2), and (5) of 50:551 are omitted as re-spectively covered by the definitions in clauses (4). (6).and (14) of section 101 of this title. The words "com-missioned officer" are substituted for the word "offi-cer" for clarity throughout this chapter, since thelatter term was defined in the limited sense of commis-sioned officer in clause (5) of 50:551, and is now cov-ered by section 101(14) of this title.

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

In clause (1), the words "service in" are substitutedfor i.. sords "part of" to conform to section 1 of title14. The words "Department of the Treasury" are sub-stituted 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 bythe Air Force Academy Act (63 Stat. 47).

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

In clause (12), the words "Marine Corps" are insert-ed to make explicit that the clausc applies to theMarine Corps. The word "commissioned" is insertedfor clarity.

AMENDMENTS

1968-Cl. (10). Pub. L. 90-632 substituted "militaryJudge" for "law officer" as the term being defined andadded reference to special court-martial in the defini.tion thereof.

Page 140


1967-Cl. (11). Pub. L. 90-179, 1 1(1), struck out"Navy or" preceding "Coast Guard".

Cl. (13). Pub. L. 90-179, § 1(2), added cl. (13).1966-Pub. L. 89-670 substituted the General Coun-

sel of the Department of Transportation for the Gen-eral Counsel of the Department of the Treasury in thedefinition of "Judge Advocate General" applicable tothe Coast Guard when operating as a service in theNavy.

EFFECTIVE DATE OF 1968 AMENDMENT

Section 4 of Pub. L. 90-632 provided that:"(a) Except for the amendments made by para-

graphs (30) and (33) of section 2, this Act [see ShortTitle of 1968 Amendment note below] shall become ef-fective on the first day of the tenth month followingthe month in which it is enacted [Oct. 24, 1968].

"(b) The amendment made by paragraph (30) of sec-tion 2 [amending section 869 of this title] shallbecome effective upon the date of enactment of thisAct [Oct. 24, 1968].

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

EFFECTIVE DATE

Section 51 of act Aug. 10, 1956, provided that thischapter shall take effect Jan. 1, 1957.

SHORT TITLE OF 1981 AMENDMENT

Pub. L. 97-81, § 1(a), Nov. 20, 1981, 95 Stat. 1085, pro-vided that: "This Act [enacting sections 706, 707, and876a of this title, amending sections 701, 813, 832, 838,867. and 869 of this title, and enacting provisions setout as a note under section 706 of this title] may becited as the 'Military Justice Amendments of 1981'."

SHORT TITLE OF 1968 AMENDMENT

Section 1 of Pub. L. 90-632 provided: "That this Act[amending sections 801, 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 asnotes under sections 801, 826 and 866 of this title] maybe cited as the 'Military Justice Act of 1968'."

RMESINATION OF NAVY LAW SPECIALISTS AS JUDGEADVOCATES

Navy law specialists redesignated Judge advocates.see section 8 of Pub. L. 90-179, set out as a note undersection 5148 of this title.

SAVINGS PROVISIONS

Rights, duties and proceedings not affected by Pub.L. 90-179 establishing Judge Advocate General's Corpsin Navy, see section 10 of Pub. L. 90-179, set out as anote under section 5148 of this title.

LEGISLATIVE CONSTRUCTION

Section 49(e) of act Aug. 10, 1956, provided that: "Inchapter 47 of title 10, United States Code [this chap-ter], enacted by section 1 of this Act, no inference of alegislative construction is to be drawn from the part inwhich any article is placed nor from the catchlines ofthe part or the article as set out in that chapter."

Cnoss REFERENCES

Appointment and duties-General Counsel of Department of Transporta-

tion, see section 102 of Title 49, Transportation.Judge Advocates General of the Army, Navy, and

Air Force, see sections 3037, 5148 and 8072 ofthis title.

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

(a) The following persons are subject to thischapter:

(1) Members of a regular component of thearmed forces, including those awaiting dis-charge after expiration of their terms of en-listment; volunteers from the time of theirmuster or acceptance into the armed forces;inductees from the time of their actual induc-tion into the armed forces; and other personslawfully called or ordered into, or to duty inor for training in, the armed forces, from thedates when they are required by the terms ofthe call or order to obey it.

(2) Cadets, aviation cadets, and midship-men.

(3) Members of a reserve component whilethey are on inactive duty training authorizedby written orders which are voluntarily ac-cepted by them and which specify that theyare subject to this chapter.

(4) Retired members of a regular compo-nent of the armed forces who are entitled topay.

(5) Retired members of a reserve compo-nent who are receiving hospitalization froman armed force.

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

(7) Persons in custody of the armed forcesserving a sentence imposed by a court-mar-tial.

(8) Members of the National Oceanic andAtmospheric Administration, Public HealthService, and other organizations, when as-signed to and serving with the armed forces.

(9) Prisoners of war in custody of the armedforces.

(10) In time of war, persons serving with oraccompanying an armed force in the field.

(11) Subject to any treaty or agreement towhich the United States is or may be a partyor to any accepted rule of international law,persons serving with, employed by, or accom-panying the armed forces outside the UnitedStates and outside the following: the CanalZone, Puerto Rico, Guam, and the Virgin Is-lands.

(12) Subject to any treaty or agreement towhich the United States is or may be a partyor to any accepted rule of international law,persons within an area leased by or otherwisereserved or acquired for the use of the UnitedStates which is under the control of the Sec-retary concerned and which is outside theUnited States and outside the following, theCanal Zone, Puerto Rico, Guam, and theVirgin Islands.

(b) The voluntary enlistment of any personwho has the capacity to understand the signifi-cance of enlisting in the armed forces shall bevalid for purposes of jurisdiction under subsec-tion (a) of this section and a change of statusfrom civilian to member of the armed forcesshall be effective upon the taking of the oathof enlistment.

(c) Notwithstanding any other provision oflaw, a person serving with an armed forcewho-

Page 141 § 802


(1) submitted voluntarily to military au-thority;

(2) met the mental competency and mini-mum age qualifications of sections 504 and505 of this title at the time of voluntary sub-mission to military authority;

(3) received military pay or allowances; and(4) performed military duties;

is subject to this chapter until such person's,ctive service has been terminated in accord-

ance with law or regulations promulgated bythe Secretary concerned.

(Aug. 10, 1956, ch. 1041, 70A Stat. 37; June 25,1959. Pub. L. 86-70, § 6(b), 73 Stat. 142; July 12,1960, Pub. L. 86-624, § 4(b), 74 Stat. 411; Sept. 7,1962, Pub. L. 87-651, title I, § 104, 76 Stat. 508;Nov. 2, 1966, Pub. L. 89-718. § 8(a), 80 Stat,1117; Nov. 9, 1979, Pub. L. 96-107, title VIII,§ 801(a), 93 Stat. 810; Dec. 12, 1980, Pub. L.96-513, title V, § 511(24), 94 Stat. 2922.)


1956 ACT

Revised Source (U.S. Code) Source (Statutes atsection Large)

802 ............. 50:552. May 5, 1950, ch. 169, 11(Art. 2), 64 Stat. 109.

In clause (1), the wo'is "Members of" are substitut-ed for the words "All persons belonging to". Thewords "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 UnitedStates" are omitted as surplusage.

In clause (3), the words "Members of a reserve com-ponent" are substituted for the words "Reserve per-sonnel". The word "orders" in the last clause is omit-ted as surplusage.

In clause (4), the word "receive" is omitted as sur-plusage.

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

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

In clauses (11) and (12). the word "outside" is substi-tuted for the word "without" wherever it occurs. Thewords "the continental limits of" are omitted, sincesection 101(1) of this title defines the United States toinclude the States and the District of Columbia. Thewords "the provision of", "all", and "territories" areomitted as surplusage.

In clause (12), the words "Secretary concerned" aresubstituted for the words "Secretary of a Depart-ment".

1962 ACT

Revised Source (Statutes atsection Source (U.S. Code) Large)

802(11), 50:5,52(11) and (12). Aug. 1, 1956. ch. 852,(12). 1 23, 70 Stat. 911.

The Act of August 1, 1956, was enacted during the

pendency of the codification bill.

REFERENCES IN TEXT

For definition of Canal Zone, referred to in cls. (11)and (12), see section 3602(b) of Title 22. Foreign Rela-tions and Intercourse.

AMENDMENTS

1980-Subsec. (a)(8). Pub. L. 96-513 substituted "Na-tional Oceanic and Atmospheric Administration" for"Environmental Science Services Administration".

1979-Subsec. (a). Pub. L. 96-107, 1 801(a)(l), desig.nated existing provisions as subsec. (a).

Subsecs. (b), (c). Pub. L. 96-107. 1 801(a)(2), addedsubsecs. (b) and (c).

1966-Pub, L. 89-718 substituted "EnvironmentalScience Services Administration" for "Coast and Geo-detic Survey" in clause (8).

1962-Pub. L. 87-651 inserted "Guam," following"Puerto Rico," in clauses (11) and (12).

1960-Pub. L. 86-624 eliminated words "the maingroup of the Hawaiian Islands," preceding "PuertoRico" in clauses (11) and (12).

1959-Pub. L. 86-70 eliminated words "that part ofAlaska east of longitude 172 degrees west," preceding"the Canal Zone" in clauses (11) and (12).


Amendment by Pub. L. 96-513 effective Dec. 12,1980, see section 701(b)(3) of Pub. L. 96-513, set out asan Effective Date of 1980 Amendment note under sec-tion 101 of this title.

REPEALS

Pub. L. 89-718, J 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 Sur-geon General of the Public Health Service, and of allother officers and employees of the Public HealthService, and all functions of all agencies of or in thePublic Health Service transferred to Secretary ofHealth, Education, and Welfare by 1966 Reorg. PlanNo. 3. 31 F.R. 8855, 80 Stat. 1610, effective June 25,1966, .et out in the Appendix to Title 5, GovernmentOrganization and Employees.

The Secretary of Health, Education, and Welfarewas redesignated the Secretary of Health and HumanServices by section 3508(b) of Title 20, Education.

Ex. ORD. No. 10631. CODE OF CONDUCT FOR MEMBERS OFTHE ARMED FORCES

Ex. Ord. No. 10631, Aug. 17, 1955. 20 F.R. 6057. asamended by Ex. Ord. No. 11382, Nov. 28, 1967, 32 F.R.16247; Ex. Ord. No. 12017, Nov. 3, 1977, 42 F.R. 57941,provided:

By virtue of the authority vested in me as Presidentof the United States, and as Commander in Chief ofthe armed forces of the United States, I hereby pre-scribe the Code of Conduct for Members of the ArmedForces of the United States which is attached to thisorder and hereby made a part thereof.

Every member of the armed forces of the UnitedStates is expected to measure up to the standards em-bodied in this Code of Conduct while he is in combator in captivity. To insure achievement of these stand-ards, each member of the armed forces liable to cap-ture shall be provided with specific training and in-struction designed to better equip him to counter andwithstand all enemy efforts against him, and shall befully instructed as to the behavior and obligations ex-pected of him during combat or captivity.

The Secretary of Defense (and the Secretary ofTransportation with respect to the Coast Guardexcept when it is serving as part of the Navy) shalltake such action as is deemed necessary to implementthis order and to disseminate and make the said Codeknown to all members of the armed forces of theUnited Flates.

CODE OF CONDUCT FOR MEMBERS OF THE UNITED CTATESARMED FoRcs

II am an American fighting man. I serve in the forces

which guard my country and our way of life, I am pre-pared to give my life in their defense.

§ 802 Page 142


II

I will never surrender of my own free will. If in com-mand I will never surrender my men while they stillhave the means to resist.

III

If I am captured I will continue to resist by allmeans available. I will make every effort to escape andaid others to escape. I will accept neither parole norspecial favors from the enemy.

IV

If I become a prisoner of war, I will keep faith withmy fellow prisoners. I will give no information or takepart in any action which might be harmful to my com-rades. If I am senior, I will take command. If not, Iwill obey the lawful orders of those appointed over meand 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 anddate of birth. I will evade answering further questionsto the utmost of my ability. I will make no oral orwritten statements disloyal to my country and itsallies or harmful to their cause.

VI

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

CROSS REFERENCES

Article to be explained, see section 937 of this ttle.

SECTION REFERRED TO IN OTlHR SECTT'iS

This section is referred to in section 937 of this title.

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

(a) Subject to section 843 of this title (article43), no person charged with having committed,while in a status in ;hich he was subject to thischapter, an offense against this chapter, pun-ishable by confinement for five years or moreand for which the person cannot be tried in thecourts of the United States or of a State, a Ter-ritory, or the District of Columbia, may be re-lieved from amenability to trial by court mar-tial by reason of the termination of that status.

(b) Each person discharged from the armedforces who is later charged with having fraudu-lently obtained his discharge is, subject to sec-tion 843 of this title (article 43), subject to trialby court-martial on that charge and is after ap-prehension subject to this chapter while in thecustody of the armed forces for that trial. Uponconviction of that charge he is subject to trialby court-martial for all offenses under thischapter committed before the fraudulent dis-charge.

(c) No person who has deserted from thearmed forces may be relieved from amenabilityto the Jurisdiction of this chapter by virtue of aseparation from any later period of service.

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


Revised Source (U.S. Code) Source (Statutes atscciiois Large)

803(a) ........ 50:553(a). Ma 5. 1950, ell. 159, 11803(b) ........ 50:553(b). ( t. 3), 4 Stat. 109.803(c) ......... 50:553(c).

In subsection (a). the words "the provisions of" areomitted as surplusage. The words "no * * * may" aresubstituted for the words "any I 1 * shall not". Theword "for" is substituted for the word "of" before thewords "five years". The words "of a State, a Territory,or" are substituted for the words "any State or Terri-tory thereof or of". The word "court-martial" is sub-stituted for the word "courts-martial".

In subsection (b), the words "Each person" are sub-stituted for the words "All persons". The words "whois later" are substituted for the word "subsequently".The words "-is discharge is" are substituted for thewords "said discharge shall * $ be". The words "theprovisions of" are omitted as surplusage. The word"is" is substituted for the words "shall ° * 6 be". Thewords "he is" are substituted for the words "they shallbe". The word "before" is substituted for the words"prior to".

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

CROSS REFERENCES

Article to be explained, see section 937 of this title.



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

(a) If any commissioned officer, dismissed byorder of the President, makes a written applica-tion for trial by court-martial, setting forth,under oath, that he has been wrongfully dis-missed, the President, as soon as practicable,shall convene a general court-martial to trythat officer on the charges on which he was dis-missed. A court-martial so convened has juris-diction to try the dismissed officer on thosecharges, and he shall be considered to havewaived the right to plead any statute of limita-tions applicable to any offense with which he ischarged. The court-martial may, as part of itssentence, adjudge the affirmance of the dis-missal, but if the court-martial acquits the ac-cused or if the sentence adjudged, as finally ap-proved or affirmed, does not include dismissalor death, the Secretary concerned shall substi-tute for the dismissal ordered by the Presidenta form of discharge authorized for administra-tive issue.

(b) If the President fails to convene a generalcourt-martial within six months from the pres-entation of an application for trial under thisarticle, the Secretary concerned shall substitutefor the dismissal ordered by the President aform of discharge authorized for administrativeissue.

(c) If a discharge is substituted for a dismissalunder this article, the President alone mayreappoint the officer to such commissionedgrade and with such rank as, in the opinion ofthe President, that former officer would haveattained had he not been dismissed. The reap-pointment of such a former officer shall be

Page 143 § 804


without regard to the existence of a vacancyand shall affect the promotion status of otherofficers only insofar as the President maydirect. All time between the dismissal and thereappointment shall be considered as actualservice for all purposes, including the right topay and allowances.

(d) If an officer is discharged from any armedforce by administrative action or is droppedfrom the rolls by order of the President, he hasno right to trial under this article.

(Aug. 10, 1056, ch. 1041, 70A Stat. 38.)

HISTORICAL AND REVISION NO7ES

, vised Source (U.S. Code) Source (Statutes atsection Large)

804(a . 50:554(a). May 5. 1950. ch. 169, 1 1804b) . 50:554(b). (Art. 4), 64 Stat. 110.804(c). 50:554(c).804(d) . 50:554(d).

In subsection (a), the word "If" is substituted for theword "When". The word "commissioned" is insertedbefore the wcrd "officer". The word "considered" issubstituted for the word "held".

In subsections (a) and (b), the words "Secretary con-cerned" are substituted for the words "Secretary ofthe Department".

In subsection (c), the word "If" is substituted for theword "Where". The words "the authority of" are omit-ted as surplusage. The words "grade and with suchrank" are substituted for the words "rank and prece-dence", since a person is appointed to a grade, not to aposition of precedence, and the word "rank" is the ac-cepted military word denoting the general idea of pre-cedence. The words "the existence of a" are substitut-ed for the word "position" for clarity. The word "re-ceive" is omitted as surplusage.

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

CROSS REFERENCESLimitations on dismissal of commissioned officers,

see section 1161 of this title.

§ 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


805 ...... 50:555. May 5. 1950. ch. 169. 81(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 advo-cates of the Army, Navy, and Air Force and lawspecialists of the Coast Guard shall be madeupon the recommendation of the Judge Advo-cate General of the armed force of which theyare members. The assignment for duty of judgeadvocates of the Marine Corps shall be made bydirection of the Commandant of the MarineCorps. The Judge Advocate General or seniormembers of his staff shall make frequent in-spections in the field in supervision of the ad-ministration of military justice.

(b) Convening authorities shall at all timescommunicate directly with their staff Judge ad-vocates or legal officers in matters relating tothe administration of military justice; and thestaff judge advocate or legal officer of any com-mand is entitled to communicate directly withthe staff judge advocate or legal officer of a su-perior or subordinate command, or with theJudge Advocate General.

(c) Fo person who has acted as member, mili-tary judge, trial counsel, assistant trial counsel,defensi counsel, assistant defense counsel, orinvestigating officer in any case may later actas a staff Judge advocate or legal officer to anyreviewing authority upon the same case.

(Aug. 10, 1956, ch. 1041, 70A Stat. 39; Dec. 8,1967, Pub. L. 90-179, § 1(3), 81 Stat. 545; Oct. 24,1968, Pub. L. 90-632, § 2(2). 82 Stat. 1335.)



806(a) 50:556(a). May 5, 1950, ch. 169. 1806(b -50:556(b). (Art. 6). 64 Stat. 110.806(c) . 50:556(c).

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

In subsection (c), the words "may later" are substi-tuted for the words "shall subsequ,.ntly".

AMENDMENTS

1968-Subsec. (c). Pub. L. 90-632 substituted "mili-tary Judge" for "law officer".

1967-Subsec. (a). Pub. L. 90-179 substituted refer-ence to judge advocates of the Navy for reference tolaw specialists of the Navy and provided for the as-signment of judge advocates of the Marine Corps.


Amendment by Pub. L. 90-632 effective on the firstday of the tenth month following October 1968, seesection 4 of Pub. L. 90-632, set out as a note under sec-tion b01 of this title.

CROSS REFERENCES

Judge Advocat,! General's Corps of the Army, seesection 3072 of this title.

Judge Advocates of the Air Force, see section 8067 ofthis title.

Oaths, administration of: notary, general powers of,see section 936 of this title.

SUBCHAPTER II-APPREHENSION ANDRESTRAINT

See. Art.

807. 7. Apprehension.808. 8. Apprehension of deserters.809. 9. Imposition of restraint.110. 10. Restraint of persons charged with of-

fenses.811. '11. Report% and receiving of prisoners.812. 12. Confinement with enemy prisoners pro-

hibited.813. 13. Punishment prohibited before trial.814. 14. Delivery of offenders to civil authorities.

§ 805 Page 144


§ 807. Art. 7. Apprehension

(a) Apprehension is the taking of a personinto custody.

(b) Any person authorized under regulationsgoverning the armed forces to apprehend per-sons subject to this chapter or to trial thereun-der may do so upon reasonable belief that anoffense has been committed and that theperson apprehended committed it.

(c) Commissioned officers, warrant officers,petty officers, and noncommissioned officershave authority to quell quarrels, frays, and dis-orders among persons subject to this chapterand to apprehend persons subject to this chap-ter who take part therein.

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



807(u) . 50:561(a). Mayr5, 1950. ch. 169, 1807(b) . 50:561(b). art. 7). 64 Stat. Il1.807(c) . 50:561(c).

In subsection (a), the words "into custody" and "of aperson" are transposed.

In subsection (c), the words "All" and "shall" areomitted as surplusage. The word "Commissioned" isinserted before the word "officers" for clarity. Theword "therein" is substituted for the words "in thesame".

REWARD FOR APPREHENSION OF DESERTERS, PRISONERS,ABSENT WITHOUT LEAVE

Provisions making appropriations of the Depart-ment of Defense for specific fiscal years available forpayment of rewards of not to exceed a specifiedamount in any one case for the apprehension and de-livery of deserters, prisoners, and members absentwithout leave were contained in the following appro-priation acts:

Dec. 21, 1982, Pub. L. 97-377, title I, 1 101(c) [titleVII, 17091, 96 Stat. 1833, 1851.

Dec. 29, 1981, Pub. L. 97-114, title VII, 1 709, 95 Stat.1580.

Dec. 15, 1980, Pub. L. 96-527, title VII, 1 709, 94 Stat.3082.

Dec. 21, 1979, Pub. L. 96-154, title VII, I 709, 93 Stat.1153.

Oct. 13, 1978, Pub. L. 95-457, title VIII, 1 809, 92Stat. 1245.

Sept. 21, 1977, Pub. L. 95-111, title VIII, J 808, 91Stat. 900.

Sept. 22, 1976, Pub. L. 94-419, title VII, 1 708, 90Stat. 1292.

Feb. 9, 1976, Pub. L. 94-212, title VII, 1 708, 90 Stat.169.

Oct. 8, 1974, Pub. L. 93-437, title VIII, § 808, 88 Stat.1226.

Jap. 2, 1974, Pub. L. 93-238, title VII, § 708, 87 Stat.1039.

Oct. 2., 1972, Pub. L. 92-570, title VII, § 708. 85 Stat.728.

Dec. 18, 1971, Pub. L. 92-204, title VII, § 708, 05 Stat.728.

Jan. 11, 1971, Pub. L. 91-668, title VIII, 1 808, 84Stat. 2031.

Dec. 29, 1969, Pub. L. 91-171, title VI, § 608, 83 Stat.481.

Oct. 17. 1968, Pub. L. 90-580, title V, § 507, 82 Stat.1130.

Sept. 29, 1967, Pub. L. 90-96, title VI, § 607, 81 Stat.243.

Oct. 15, 1966. Pub. L. 89-687, title VI. 1 607, 80 Stat.992.

Sept. 29, 1965, Pub. L. 89-213, title VI, 1 607, 79 Stat.874.

Aug. 19, 1964, Pub. L. 88-446, title V, 1 507, 78 Stat,475.

Oct. 17, 1963, Pub. L. 88-149, title V, I 507, 77 Stat.264.

Aug. 9, 1962. Pub. L. 87-577, title I, J 101, 76 Stat.318.

Aug. 17, 1961, Pub. L. 87-144, title I, 101, 75 Stat.365, 366.

July 7, 1960, Pub. L. 86-601, title I, 1 101, 74 Stat.338, 339.

Aug. 18, 1959, Pub. L. 86-166, title I, § 101, 73 Stat.366, 367.

Aug. 22, 1958, Pub. L. 85-724, title III,§ 301, title V,1 501, 72 Stat. 713, 722.

Aug. 2, 1957, Pub. L. 85-117, title III, § 301, title V,1 501, 71 .stat. 313, 321.

July 2, 1956, ch. 488, title III, 1301, title V, I 501, 70Stat. 456, 465.

July 13, 1955, ch. 358, title III, J 301, title V. I 501, 69Stat. 303, 312.

June 30, 1954, ch. 432, title IV, § 401, title VI, § 601,68 Stat. 338, 348.

Aug. 1, 1953, ch. 305, title III, 1301, title V. 1 501, 67Stat. 338, 348.

July 10, 1952. ch. 630, title III, § 301, title V, 1 501, 6Stat. 519, 530.

Oct. 18. 1951, ch. 512, title III, § 301, title V, 1 501, 65Stat. 426, 443.

Sept. 6, 1950, ch. 896, ch. X, title III, 1301, title V,I 501, 64 Stat. 732, 750.

Oct. 29, 1949, ch. 787, title III, § 301, title V. 1 501, 63Stat. 990, 1015.

June 24, 1948, ch. 632, 62 Stat. 653.July 30, 1947, ch. 357, title I, § 1, 61 Stat. 555.July 16, 1946, ch. 583, 11, 60 Stat. 546.July 3, 1945, ch. 265, § 1, 59 Stat. 388.June 28, 1944, ch. 303, 1, 58 Stat. 578.July 1, 1943, ch. 185, § 1, 57 Stat. 352.July 2, 1942, ch. 477, § 1, 56 Stat. 615.June 30, 1941, ch. 262, § 1, 55 Stat. 371,June 13, 1940, ch. 343, § 1, 54 Stat. 357.Apr. 26, 1939, ch. 88, § 1, 53 Stat. 598.June 11, 1938, ch. 347, 1 1, 52 Stat. 648.July 1, 1937, ch. 423, 11, 50 Stat. 448.May 15, 1936, ch. 404, §1. 49 Stat. 1284.Apr. 9, 1935, ch. 54, title I, 49 Stat. 127.Apr. 26, 1934, ch. 165, title I, 48 Stat. 619.Mar. 4, 1933, ch. 281, title 1, 47 Stat. 15V.July 14, 1932, ch. 482, title I, 47 Stat. 668.Feb. 23, 1931, ch. 279, title I, 46 Stat. 1281.May 28, 1930, ch. 348, title I, 46 Stat. 436.Feb. 28, 1929, ch. 366, title 1, 45 Stat. 1354.Mar. 29, 1928, ch. 232, title I, 45 Stat. 330.Feb. 23, 1927, ch. 167, title I, 44 Stat. 1110.Apr. 15, 1926, ch. 146, title I, 44 Stat. 259.Feb. 12, 1925, ch. 225, title I, 43 Stat. 900.

CROSS REFERENCES

Arrest and commitment, see section 3041 et seq. ofTitle 18, Crimes and Criminal Procedure.

Article to be explained, see section 937 of this title.Expenses for apprehension and delivery of deserters,

stragglers, and prisoners of the Navy, see section 7214of this title.

Resistance, breach of arrest, and escape, punish-ment, see section 895 of this title.

Unlawful detention, punishment, see section 897 ofthis title.


This section is referred to !n section 937 of this title.

§ 808. Art. 8. Apprehension of deserters

Any civil officer having authority to appre-hend offenders under the laws of the United

§ 808Page 145


States or of a State, Territory, Commonwealth,or possession, or the District of Columbia maysummarily apprehend a deserter from thearmed forces and deliver him into the custodyof those forces.

(Aug. 10, 1956, ch. 1041, 70A Stat. 40.)


Revised Source U.S. Code) Source (Statutes atsection Large)

808 ............. 50:562. May 5. 1950, ch. 169. 11X rt. 8), 64 Stat. I)I.

The word "may" is substituted for the words "Itshall be lawful for 0 * 0 to". The words "a State, Terri-tory, Commonwealth, or possession, or the District ofColumbia" are substituted for the words "any State,District, Territory, or possession of the UnitedStates". The words "of the United States", before thewords "and deliver", are omitted as surplusage. Thewords "those forces" are substituted for the words"the armed forces of the United States", after thewords "custody of".

CROSS REFERENCES

Arrest and commitment, see section 3041 et seq. ofTitle 18, Crimes and Criminal Procedure.

Article to be explained, see section 937 of this title.Resistance, breach of arrest, and escape, punish-

ment, see section 895 of this title.Unlawful detention, punishment, see section 897 of

this title.



§ 809. Art. 9. Imposition of restraint

(a) Arrest is the restraint of a person by anorder, not imposed as a punishment for an of-fense, directing him to remain within certainspecified limits. Confinement is the physical re-straint of a person.

(b) An enlisted member may be ordered intoarrest or confinement by any commissioned of-ficer by an order, oral or written, delivered inperson or through other persons subject to thischapter. A commanding officer may authorizewarrant officers, petty officers, or noncommis-sioned officers to order enlisted members of hiscommand or subject to his authority into arrestor confinement.

(c) A commissioned officer, a warrant officer,or a civilian subject to this chapter or to trialthereunder may be ordered into arrest or con-finement only by a commanding officer towhose authority he is subject, by an order, oralor written, delivered in person or by anothercommissioned officer. The authority to ordersuch persons into arrest or confinement maynot be delegated.

(d) No person may be ordered into arrest orconfinement except for probable cause.

(e) Nothing in this article limits the authorityof persons authorized to apprehend offendersto secure the custody of an alleged offenderuntil proper authority may be notified.

(Aug. 10, 1956, ch. 1041, 70A Stat. 40.)


Revised Sourre (U. Code) Source (Statutes atsection Large)

809(a) ........ 50:5863(a). May 5. 1950. ch. 169, 11809(b) ........ 50:563(b). ( t. 9), 84 Stat. 111.809(c) . 50:563(c).809(d) . 50:563(d).809(e) . 50:503(e).

In subsection (b). the word "commissioned" is insert.ed before the word "officer" for clarity. The words"member" and "members", respectively, are substitut.ed for the words "person" and "persons".

In subsection (c), the words "A commissioned" aresubstituted 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 forthe word "shall".

In subsection (e), the word "limits" is substituted forthe words "shall be construed to limit".

CROSS REFERENCES

Article to be explained, ,see section 937 of this title.Forwarding of charges, time of, see section 833 of

this title.



§ 810. Art. 10. Restraint of persons charged with of.fenses

Any person subject to this chapter chargedwith an offense under this chapter shall be or-dered into arrest or confinement, as circum-stances may require; but when charged onlywith an offense normally tried by a summarycourt.martial, he shall not ordinarily be placedin confinement. When any person subject tothis chapter is placed in arrest or confinemei.tprior to trial, immediate steps shall be taken toinform him of the specific wrong of which he isaccused and to try him or to dismiss thecharges and release him.(Aug. 10, 1956, ch. 1041, 70A Stat. 40.'


Revised Source (U.S. Source (Statutes atsecon Code) Large)

810 ............. 50:564. May 5. 1950. ch. 169. 11rt. 10), 64 Stat. Ill.

The word "he" is substituted for the words "such

person".

CROSS REFERENCES

Article to be explained, see section 937 of this title.Enlisted members required to make up time lost, see

section 972 of this title.Summary courts-martial, jurisdiction of, see section

820 of this title.



§ 811, Art. 11. Reports and receiving of prisoners

(a) No provost marshal, commander of aguard, or master at arms may refuse to receiveor keep any prisoner committed to his chargeby a commissioned officer of the armed forces,when the committing officer furnishes a state-

Page 146


ment, signed by him, of the offense chargedagainst the prisoner.

(b) Every commander of a guard or master atarms to whose charge a prisoner is committedshall, within twenty-four hours after that com-mitment or as soon as he is relieved from guard,report to the commanding officer the name ofthe prisoner, the offense charged against him,and the name of the person who ordered or au-thorized the commitment.

(Aug. 10, 1956, ch. 1041, 70A Stat. 40.)

HISTORICAL AND REVIsIoN NOTES


11(a) . 50:565(a). May 5, 1950. ch. 169, 1811(b).50:565(b). (Art. 11), 64 Stat. 112.

In subsection (a), the word "may" is substituted forthe word "shall". The words "a nommissioned" aresubstituted for the word "an" for clarity.

CRoss REFERENCES

Article to be explained, see section 937 of thi title.



§ 812. Art. 12. Confinement with enemy prisoners pro-hibited

No member of the armed forces may beplaced in confinement in immediate associationwith enemy prisoners or other foreign nationalsnot members of the armed forces.

(Aug. 10, 1956, ch. 1041, 70A Stat. 41.)


Revised Source (Statutes atsection Large)

812 ............. 50:566. May5, 1950. ch. 169, 11X(Art. 12), 64 Stat. 112.

The words "of the United States" are omitted as sur-plusage. The word "may" is substituted for the word"shall".

CROSS REFERENCES




§ 813. Art. 13. Punishment prohibited before trial

No person, while being held for trial, may besubjected to punishment or penalty other thanarrest or confinement upon the charges pend-ing against him, nor shall the arrest or confine-ment imposed upon him be any more rigorousthan the circumstances require to insure hispresence, but he may be subjected to minorpunishment during that period for infractionsof discipline.

(Aug. 10, 1956, ch. 1041, 70A Stat. 41; Nov. 20,1981, Pub. L. 97-81, 1 3, 95 Stat. 1087.)

HISTORICAL AND REVIsIoN NoTrS

section ourcc (U.S. Large)

813 ............. 50:567. May 5, 1950, ch. 169, I 1(Art. 13), 64 Stat. 112.

The words "the provisions of" are omitted as sur-plusage. The word "results" is changed to the singular.The word "may" is substituted for the word ""hall".

AMENDMENTS

1981-Pub. L. 97-81 substituted "No person, whilebeing held for trial, may be subjected" for "Subject tosection 857 of this title (article 57). no person, whilebeing held for trial or 'he result of trial, may be sub-jected".

EFFECTIVE DAT OF 1981 AMENDMENT

Amendment by Pub. L. 97-81 to take effect at theend of the 60-day period beginning on Nov. 20. 1981,and to apply to each person held as the result of acourt-martial sentence announced on or after thatdate, see section 7(a) and (b)(2) of Pub. L. 97-81, setout as an Effective Date note under section 706 of thistitle.

CROSS REFERENCES

Article to be explained. jee section 937 of this title.

SECTION REFERRED TO IN OTHER SECTIONSThis section is referred to in section 937 of this title.

§ 814. Art. 14. Delivery of offenders to civil authori-ties

(a) Under such regulations as the Secretaryconcerned may prescribe, a member of thearmed forces accused of an offense against civilauthority may be delivered, upon request, tothe civil authority for trial,

(b) When delivery under this article is madeto any civil authority of a person undergoingsentence of a court-martial, the delivery, if fol-lowed by conviction in a civil tribunal, inter-rupts the execution of the sentence of thecourt-martial, and the offender after having an-swered to the civil authorities for his offenseshall, upon the request of competent militaryauthority, be returned to military custody forthe completion of his sentence.

(Aug. 10, 1956, ch. 1041, 70A Stat. 41.)

HISTORICAL AND REVISION Noms


14(a) ........ 50:568(a). May 5, 1950. ch. 169. 1 1814(b) . 50:56(b). (Art. 14), 64 Stat. 112.

In subsection (a), the words "Secretary concerned"are substituted for the words "Secretary of the De-partment".

In subsection (b), the word "interrupts" is substitut-ed for the words "shall be held to interrupt". Theword "his" is substituted for the words "the saidcourt-martial".

CROSS REFERENCES

Article to be explained, see section 937 of this title.Effective date of federal sentence, see section 3568

of Title 18, Crimes and Criminal Procedure.

Page 147[ § 814




SUBCHAPTER III-NON-JUDICIALPUNISHMENT

Sec. Art.

815. 15. Commanding officer's non-judicial pun-ishment.

§ 815. Art. 15. Commanding officer's non.judicial pun-Ishment

(a) Under such regulations as the Presidentmay prescribe, and under such additional regu-lations as may be prescribed by the Secretaryconcerned, limitations may be placed on thepowers granted by this article with respect tothe kind and amount of punishment author-ized, the categories of commanding officers andwarrant officers exercising command author-ized to exercise those powers, the applicabilityof this article to an accused who demands trialby court-martial, and the kinds of courts-mar-tial to which the case may be referred uponsuch a demand. However, except in the case ofa member attached to or embarked in a vessel,punishment may not be imposed upon anymember of the armed forces under this articleif the member has, before the imposition ofsuch punishment, demanded trial by court-mar-tial in lieu of such punishment. Under similarregulations, rules may be prescribed with re-spect to the suspension of punishments author-ized hereunder. If authorized by regulations ofthe Secretary concerned, a commanding officerexercising general court-martial jurisdiction oran officer or general or flag rank in commandmay delegate his powers under this article to aprincipal assistant.

(b) Subject to subsection (a) of this section,any commanding officer may, in addition to orin lieu of admonition or reprimand, impose oneor more of the following disciplinary punish-ments for minor offenses without the interven-tion of a court-martial-

(1) upon officers of his command-(A) restriction to certain specified limits,

with or without suspension from duty, fornot more than 30 consecutive days;

(B) if imposed by an officer exercisinggeneral court-martial Jurisdiction or an offi-cer of general or flag rank in command-

(I) arrest in quarters for not more than30 consecutive days;

(ii) forfeiture of not more than one-halfof one month's pay per month for twomonths;

(iii) restriction to certain specifiedlimits, with or without suspension fromduty, for not more than 60 consecutivedays;

(iv) detention of not more than one-halfof one month's pay per month for threemonths;

(2) upon other personnel of his command-(A),if imposed upon a person attached to

or embarked in a vessel, confinement on

bread and water or diminished rations fornot more than three consecutive days;

(B) correctional custody for not morethan seven consecutive days;

(C) forfeiture of not more than sevendays' pay;

(D) reduction to the next inferior paygrade, if the grade from which demoted iswithin the promotion authority of the offi-cer imposing the reduction or any officersubordinate to the one who imposes the re-duction;

(E) extra duties, including fatigue orother duties, for not more than 14 consecu-tive days;

(F) restriction to certain specified limits,with or without suspension from duty, fornot more than 14 consecutive days;

(G) detention of not more than 14 days'pay;

(H) if imposed by an officer of the gradeof major or lieutenant commander, orabove-

(i) the punishment authorized undersubsection (b)(2)(A);

(it) correctional custody for not morethan 30 consecutive days;

(iii) forfeiture of not more than one-half of one month's pay per month fortwo months;

(iv) reduction to the lowest or any inter-mediate pay grade, if the grade fromwhich demoted is within the promotionauthority of the officer imposing the re-duction or any officer subordinate to theone who imposes the reduction, but an en-listed member in a pay grade above E-4may not be reduced more than two paygrades;

(v) extra duties, including fatigue orother duties, for not more than 45 con-secutive days;

(vi) restrictions to certain specifiedlimits, with or without suspension fromduty, for not more than 60 consecutivedays;

(vii) detention of not more than one-half of one month's pay per month forthree months.

Detention of pay shall be for a stated period ofnot more than one year but if the offender'sterm of service expires earlier, the detentionshall terminate upon that expiration. No two ormore of the punishments of arrest in quarters,confinement on bread and water or diminishedrations, correctional custody, extra duties, andrestriction may be combined to run consecutive-ly in the maximum amount imposable for each.Whenever any of those punishments are com-bined to run consecutively, there must be anapportionment. In addition, forfeiture of paymay not be combined with detention of paywithout an apportionment. For the purposes ofthis subsection, "correctional custody" is thephysical restraint of a person during duty ornonduty hours and may include extra duties,fatigue duties, or hard labor. If practicable, cor-rectional custody will not be served in immedi-ate association with persons awaiting trial or

Page 148§ 815


held In confinement pursuant to trial by court-martial.

c, An ofihler in charge may impose upon en-listed members assigned to the unit of which heis In charge such of the punishments author-ized under subsection (b)(2)(A)-(G) as the Sec-retary concerned may specifically prescribe byregulation.(d) The officer who Imposes the punishment

authorized in subsection (b), or his successor incommand, may, at any time, suspend probation-ally any part or amount of the unexecuted pun-ishment imposed and may suspend probational-ly a reduction in grade or a forfeiture imposedunder subsection (b), whether or not executed.In addition, he may, at any time, remit or miti-gate any part or amount of the unexecutedpunishment imposed and may set aside inwhole or in part the punishment, whether ex-ecuted or unexecuted, and restore all rights,privileges, and property affected. He may alsomitigate reduction in grade to forfeiture or de-tention of pay. When mitigating-

(1) arrest in quarters to restriction;(2) confinement on bread and water or di-

minished rations to correctional custody;(3) correctional custody or confinement on

bread and water or diminished rations toextra duties or restriction, or both; or

(4) extra duties to restriction;the mitigated punishment shall not be for agreater period than the punishment mitigated.When mitigating forfeiture of pay to detentionof pay, the amount of the detention shall notbe greater than the amount of the forfeiture.When mitigating reduction in grade to forfeit-ure or detention of pay, the amount of the for-feiture of detention shall not be greater thanthe amount that could have been imposed ini-tially under this article by the officer who im-posed tl,. punishment mitigated.

(e) A person punished under this article whoconsiders his punishment unjust or dispropor-tionate to the offense may, through the properchannel, appeal to the next superior author' ty.The appeal shall be promptly forwarded anddecided, but the person punished may in themeantime be required to undergo the punish-ment adjudged. The superior authority may ex-ercise the same powers with respect to the pun-ishment imposed as may be exercised undersubsection (d) by the officer who imposed thepunishment. Before acting on an appeal from apunishment of-

(1) arrest in quarters for more than sevendays;

(2) correctional custody for more thanseven 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 shallrefer the case to a judge advocate of the Army,Navy, Air Force, or Marine Corps, or a law spe-cialist or lawyer of the Coast Guard or Depart-ment of Transportation for consideration andadvice, and may so refer the case upon appeal

from any punishment imposed under subsec-tion (b).

(f) The imposition and enforcement of disci-plinary punishment under this article for anyact or omission is not a bar to trial by court-martial for a serious crime or offense growingout of the same act or omission, an.1 n~ot proper-ly punishable under this article; but the factthat a disciplinary punishment has been en-forced may be shown by the accused upon trial,and ahen so shown shall be considered in de-termining the measure of punishment to be ad-judged in the event of a finding of guilty.

(g) The Secretary concerned may, by regula-tion, prescribe the form of records to be kept ofproceedings ander this article and may also pre-scribe that certain categories of those proceed-ings shah be in writing.

(Aug. 10, 1956, ch. 1041, 70A Stat. 41; Sept. 7,1962, Pub. L. 87-648, § 1, 76 Stat. 447; Dec. 8,1967, Pub. L. 90-179, § 1(4), 81 Stat. 545; Oct. 22,1968, Pub. L. 90-623, § 2(4), 82 Stat. 1314.)


Revised Source (U.S. Code) Source (Statutes atsection Source I_______oe) Large)

815(a) ...815(b).....815(c).815(d):....815(e).

50:571(L).50:571(b).50:571(c).50:571(d).50:57 1(e).

Ma 5, 1950, ch. 169, 1(Art. 15), 64 Stat. 112.

In subsection (a) (now (b)], the words "not morethan" are slibstituted for the words "a period not toexceed". "not to exceed", and "a period not exceed-ing".

In subsection (a)(1) (now (b)(1)], the words "andwarrant officers" are omitted, since the word "offi-cer", as defined in section 101(14) of this title, includeswarrant officers.

In clause (1)(C), the words "one month's pay" aresubstituted for the words "his pay per month for aperiod not exceeding one month".

In subsection (b) [now (a)], the words "Secretaryconcerned" are substituted for the words "Secretaryof a Department".

In subsection (c), the word "subsections" is substi-tuted for the word "subdivisions". The words "enlistedmembers" are substituted for the words "enlisted per-sons".

In subsections (d) (now (e)] and (e) [now (f)]. thewords "authority of" are omitted as surplusage.

In subsection (d) [now (e)], the word "considers" issubstituted for the word "deems". The word "may" issubstituted for the words "shall have power to °

to".In subsection (e) [now (f)], the words "is not" are

substituted for the words "shall not be".

AMENDMENTS

1968-Subsec. (e). Pub. L. 90-623 substituted "or alaw specialist or lawyer of the Coast Guard or Depart-ment of Transportation" for "or a law specialist orlawyer of the Marine Corps, Coast Guard, or TreasuryDepartment".

1907-Subsec. (e). Pub. L. 90-179 Inserted referenceto Judge advocate of the Marine Corps and substitutedreference to judge advocate of the Navy for referenceto law specialist of the Navy.

190.2-Subsec. (a). Pub. L. 87-648 redesignatedformer subsee. (b) as (a), added references to such reg-ulations as the President may prescribe, permittedlimitations to be placed on the categories of warrantofficers exercising command authorized to exercise

Page 149 § 815


powers under this article, and on the kinds of courts-martial to which a case may be referred upon demandtherefor, promulgation of regulations prescribing ruleswith respect to the suspension of punishment authorized by this article, and the delegation of powers to aprincipal assistant by a commanding officer exercisinggeneral court-martial jurisdiction or an officer of gen-eral or flag rank in command, if so authorized by theSecretary's regulations, and prohibited, except formembers attached to or embarked in a vessel, imposi-tion of punishment under this article on any membero. the armed forces who, before imposition of suchpunishment, demands trial by court-martial. Formersubsec. (a) redesignated (b).

Subsec. (b). Pub. L. 87-648 redesignated formersubsec. (a) as (b), enlarged authority of commandingofficers to impose punishment upon officers by in-creasing the number of days restriction from not morethan 14 to not mpcxe than 30 days, and the number ofmonths one-half of one month's pay may be orderedforfeited by an officer exercising general court-martialJurisdiction from one to two months, empowering offi-cers exercising general court-martial jurisdiction andofficers of general or flag rank in command to imposearrest in quarters for not more than 30 consecutivedays, restriction, with or without suspension fromduty, for not more than 60 consecutive days, and de-tention of not more than one-half of one month's payper month for three months, and officers of general orflag rank in command to order forfeiture of not morethan one-half of one month's pay per month for twomonths, and the authority of commanding officers toimpose punishment upon other personnel of his com-mand to permit correctional custody for not morethan seven consecuLive days, forfeiture of not morethan seven days' pay, and detention of not more than14 days' pay, empowered officers of the grade of majoror lieutenant commander, or above, to impose the pun.ishments prescribed in clauses (I) to (vii) of subpar. (2)(H) upon personnel of his command other than offi-cers, changed provisions which permitted reduction tonext inferior grade, if the grade from which demotedwas established by the command or an equivalent orlower command to permit reduction to the next inferi-or pay grade, if the grade from which demoted iswithin the promotion authority of the officer impos-ing the reduction or any officer subordinate to the onewho imposes the reduction, and provisions which per-mitted extra duties for not more than two consecutiveweeks, and not more than two hours per day, holidaysincluded, to authorize extra duties, including fatigueor other duties, for not more than 14 consecutive days,inserted provisions limiting detention of pay for astated period of not more than one year, prohibitingtwo or more of the punishments of arrest in quarters,confinement on bread and water or diminished ra-tions, correctional custody, extra duties, and restric-tion to be combined to run consecutively in the maxi-mum amount Imposable for each, combining of forfeit-ure of pay with detention without an apportionment,and service of correctional custody, if practicable, inimmediate association with persons awaiting trial orheld in confinement pursuant to court-martial, requr-ing apportionment of punishments comb!ned to tunconsecutively, and in those cases where forfeiture ofpay is combined with detention of pay, defining "cor-rectional custody", and eliminated provisions whichpermitted withholding of privileges of officers andother personnel for not more than two consecutiveweeks and which authorized confinement for not morethan seven cor.secutivc days if imposed opon a personattached to or embarked in a vessel. Former subsec.(b) redesignated (a).

Subsec. (c). Pub. L. 87-648 substituted "under sub-section (b)(2)(A)-(O) as the Secretary concerned mayspecifically prescribe by regulation" for "to be im-posed by commanding officers as the Secretary con-cerned may by regulation specifically prescribe, as pro-vided in subsections (a) and (b)," and deleted "forminor offenses" following "an officer in charge may",

Subsec. (d). Pub. L. 87-648 added subsec, (d). Formersubsec. (d) redesignated (e).

Subsec. (e). Pub. L. 87-648 redesignated formersubsec. (d) as (e), added provisions requiring the au-thority who is to act on an appeal from any of theseven enumerated punishments to refer the case to ajudge advocate of the Army or Air Force, a law special-ist of the Navy, or a law specialist or lawyer of theMarine Corps, Coast Guard, or Treasury Departmentfor advice, and authorizing such referral of any caseon appeal from punishments under subsec. (b) of thissection, and substituted "The superior authority mayexercise the same powers with respect to the punish-ment imposed as may be exercised under subsection(d) by the officer who imposed the punishment" for"The officer who imposes the punishment, his succes-sor in command, and superior authority may suspend,set aside, or remit any part or amount of the punish-ment, and restore all rights, privileges, and propertyaffected." Former subsec. (Ce) redesignated (f).

Subsec. (f) Pub. I. 87-648 redesignated formersubsec. (e) as (f).

Subsec. (g). Pub. L. 87-648 added subsec. (g).


Amendment by Pub. L. 90-623 intended to restatewithout substantive change the law In effect on Oct.22, 1968, see section 6 of Pub. L. 90-623, set out as anote under section 5334 of Title 5, Government Orga-nisation and Employees.


Section 2 of Pub'. L. 87-648 provided that: "This Act[amending this sectioni becomes effective on the firstday of the fifth month following the month in whichit Is enacted [Sept. 7, 1962]."

CROSS REFERENCES

Article to be explained, see section 937 of this title.Enlisted members required to make up lost time, see

section 972 of this title.Statute of limitations, see section 843 of this title.Summary court-martial, election to refuse com-

manding officer's punishment, see section 820 of thistitle.


This section is referred to in sections 843, 937 of thistitle; title 24 section 44.

SUBCHAPTER IV-COURT-MARTIALJURISDICTION

Sec. Art.

116. 16. Courts-martial classified.817. 17. Jurisdiction of courts-martial in general.818. 18. Jurisdiction of geiieral courts-martial.819. 19. Jurisdiction of special courts-martial.820. 20. Jurisdiction of summary courts-martial.821. 21. Jurisdiction of courts-martial not exclu-

sive.

§ 816, Art. 16. Courts-martial classified

The three kinds of courts-martial in each ofthe armed forces are-

(1) general courts-martial, consisting of-(A) a military Judge and not less than five

members; or(B) only a military judge, if before the

court is assembled the accused, knowing theidentity of the military judge and after con-sultation with defense counsel, requests in

§ 816 Page 150


writing a court composed only of a militaryJudge and the military judge approves;

(2) special courts.martial, consisting of-(A) not less than three members; or(B) a military Judge and not less than

three members; or(C) only a military judge, if one has been

detailed to the court, and the accused underthe same conditions as those prescribed inclause (1)(B) so requests; and

(3) summary courts-martial, consisting ofone commissioned officer.

(Aug. 10, 1056, ch. 1041, 70A Stat. 42; Oct. 24,1968, Pub. 1-. 90-632, 1 2(3). 82 Stat. 1335.)


Revised Source (U.S. Code) Source (Statutes atbection Large)

816 ............. 50:576. May 5, 1950, ch. 169, 1I(Art. 16), 64 Stat. 113.

The word "The" is substituted for the words "Thereshall be". The word "are" is substituted for the word"namely". The words "not less than five members" aresubstituted for the words "any number of membersnot less than five". The words "not less than threemembers" are substituted for the words "any numberof members not less than three". The word "commis-sioned" is inserted before the word "officer" in clause(3) for clarity.

AMENDMENTS

1968-Pub. L. 90-632 provided that a general or spe-cial court-martial shall consist of only a military judgeif the accused, before the court is assembled, so re-quests in writing and the military judge approves,with the added requirements that the accused knowthe identity of the military judge and have the adviceof counsel, and that the election be available in thecase of a special court-martial only if a military judgehas been detailed to the court.

EFFECTIVE DATE OF 1968 AMENDMENTAmendment by Pub. L. 90-632 effective on the first

day of the tenth month following October 1968, seesection 4 of Pub. L. 90-632, set out as a note under sec-tion 801 of this title.


This section is referred to in sections 818, 829 of thistitle.

§ 817. Art. 17. Jurisdiction of courts-martial ingeneral

(a) Each armed force has court-martial Juris-diction over all persons subject to this chapter.The exercise of jurisdiction by one armed forceover personnel of another armed force shall bein accordance with regulations prescribed bythe President.

(b) In all cases, departmental review afterthat by the officer with authority to convene ageneral court-martial for the command whichheld the trial, where that review is requiredunder this chapter, shall be carried out by thedepartment that includes the armed force ofwhich the accused is a member.

(Aug. 10, 1956, ch. 1041, 70A Stat. 43.)


Revised Source (U.S. Code) Source (Statutes atsection S Large)

817(a). 50:57(a). May 5. 1950, ch. 169, I1817(b) . 50:577(b). (Art. 17). 64 Stat. 114.

In subsection (a), Lhe word "has" is substituted forthe words "shall have".

In subsection (b), the word "after" is substituted forthe words "subsequent to". The words "the provisionsof" are omitted as surplusage. The words "departmentthat includes the" are inserted before the words"armed force", since the review is carrded out by thedepartment and not by the armed force.

CRoss REFRENsCESJurisdiction of-

General courts-martial, see section 818 of this title.Special courts-martial, see section 819 of this title.Summary courts-martial, see section 820 of this

title.

SE TION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 818, 819. 820 ofthis title.

§ 818. Art. 18. Jurisdiction of general courts-martial

Subject to section 817 of this title (article 17),general courts-martial have jurisdiction to trypersons subject to this chapter for any offensemade punishable by this chapter and may,under such limitations as the President mayprescribe, adjudge any punishment not forbid-den by this chapter, including the penalty ofdeath when specifically authorized by thischapter. General courts-martial also have Juris-diction to try any person who by the law of waris subject to trial by a military tribunal andmay adjudge any punishment permitted by thelaw of war. However, a general court-martial ofthe kind specified in section 816(1)(B) of thistitle (article 16(1)(B)) shall not have jurisdic-tion to try any person for any offense for whichthe death penalty may be adjudged unless thecase has been previously referred to trial as anoncapital case.

(Aug. 10, 1956, ch. 1041, 70A Stat. 43; Oct. 24,1968, Pub. L. 90-632, § 2(4), 82 Stat. 1335.)



818......50:578. May 5. 1950, ch. 169, I8Art. 18), 64 Stat. 114.

The word "shall" is omitted as surplusage whereverit occurs.

AMENDMENTS

1968-Pub. L. 90-632 provided that a general court-martial consisting of only a military judge has no ju-risdiction in cases in which the death penalty may beadjudged unless the case has been previously referredto trial as a noncapital case.


Amendment by Pub. L. 90-632 effective on the firstday of the tenth month following October 1968, seesection 4 of Pub. L. 90-632, set out as a note under sec-tion 801 of this title.

Page 151 § 818


9 819. Art. 19. Jurisdiction of special courts-martial

Subject to section 817 of this title (article 17),special courts-martial have jurisdiction to trypersons subject to this chapter for any noncapi-tal offense made punishable by this chapterand, under such regulations as the Presidentmay prescribe, for capital offenses. Specialcourts-martial may, under such limitations asthe President may prescribe, adjudge any pun-ishment not forbidden by this chapter exceptdeath, dishonorable discharge, dismissal, con-finement for more than six months, hard laborwithout confinement for more than threemonths, forfeiture of pay exceeding two-thirdspay - er month, or forfeiture of pay for morethan six months. A bad-conduct discharge maynot be adjudged unless a complete record of theproceedings and testimony has been made,counsel having the qualifications prescribedunder scction 827(b) of this title (article 27(b))was detailed to represent the accused, and amilitary judge was detailed to the trial, exceptin any case in which a military judge could notbe detailed to the trial because of physical con-ditions or military exigencies. In any such casein which a military judge was not detailed tothe trial, the convening authority shall make adetailed written statement, to be appended tothe record, stating the reason or reasons a mili-tary judge could not be detailed.



Rev Sred c Code) Source (Statutes atecton Source (U.S. CodeLarge)

819 ............. 50:579. May 5, 1950, ch. 169. 11(Xrt. 19), 64 Stat. 114.

The word "shall" in the first sentence is omitted assurplusage. The words "for more than" are substitutedfor 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" inthe last sentence.

AMENDMENTS

1968-Pub. L. 90-632 provided that before a bad-con-duct discharge may be adjudged by a special court-martial the accused must be detailed counsel who is le-gally qualified under the Code and a military judgemust be detailed to the trial, with a detailed writtenstatement appended to the record if a military judgewas not detailed to the trial, because of physical condi-tions and military exigencies, stating the reasons thata military judge could not be so detailed.



§ 820. Art. 20. Jurisdiction of summary courts-martial

Subject to section 817 of this title (article 17),summary courts-martial have jurisdiction to trypersons subject to this chapter, except officers,cadets, aviation cadets, and midshipmen, forany noncapital offense made punishable by thischapter. No person with respect to whom sum-mary courts-martial have jurisdiction may be

brought to trial before a summary court-mar-tial if he objects thereto. If objection to trial bysummary court-martial is made by an accused,trial may be ordered by special or generalcourt-martial as may be appropriate. Summarycourts-martial may, under such limitations asthe President may prescribe, adjudge any pun-ishment not forbidden by this chapter exceptdeath, dismissal, dishonorable or bad-conductdischarge, confinement for more than onemonth, hard-labor without confinement formore than 45 days, restriction to specifiedlimits for more than two months, or forfeitureof more than two-thirds of one month's pay.

(Aug. 10, 1956, ch. 1041, 70A Stat 43; Oct. 24,1968, Pub. L. 90-632. § 2(6), 82 Stat. 1336.)


Revised Source (U.S. Code Source (Statutes atsection Large)

820 ............. 50:580. May 5. 1950, ch. 169, I 1(Art. 20). 64 Stat. 114.

The word "shall" in the first sentence is omitted assurplusagc The word "may" is substituted for theword "shall" in tae second sentence. The words "theprovisions of" are omitted as surplusage. The word"If" is substituted for the word "Where". The wnrds"for more than" are substituted for the words "inexcess of". The words "more than" are substituted forthe words "pay in excess of".

AMENDMENTS

1968-Pub. L. 90-032 substituted provisions prohibit-ing trial by summary court-martial in all cases if theperson objects thereto for provisions allowing suchtrial over the person's objection if he has previouslybeen offered and has refused article 15 punishment.



CROSS REFERENCES

Confinement not ordinarily ordered for personcharged with offense normally tried by summarycourt-martial, see section 810 of this title.

Inquests; disposition of effects of deceased persons,see sections 4711, 4712, 9711, 9712 of this title.

Oaths, administration of; notary, general powers of.see section 936 of this title,

§ 821. Art. 21. Jurisdiction of courts-martial not ex-clusive

The provisions of this chapter conferring ju-risdiction upon courts-martial do not deprivemilitary commissions, provost courts, or othermilitary tribunals of concurrent Jurisdictionwith respect to offenders or offenses that bystatute or by the law of war may be tried bymilitary commissions, provost courts, or othermilitary tribunals.

(Aug. 10, 1956, ch. 1041, 70A Stat. 44.)

§ 819 Page 152

TITLE 10 -ARMED FORCES





821 ............. 1 50:581.May 5. 1950. ch. 169. 1 822(a) ........ 50:586(a).

(Art. 21), 64 Stat. 115. 822(b) . 50:586(b).May 5, 1950. ch. 169, 8 1

(Art. 22), 64 Stat. 115.

The words "do not deprive" are substituted for thewords "shall not be construed as depriving". Thewords "with respect to" are substituted for the words"in respect of".

Caoss REFERENCESJudge Advocate Generals of Army and Air Force to

receive, revise, and have recorded proceedings of mill-tory commissions, see sections 3037, 8072 of this title.

SUBCHAPTER V-COMPOSITION OFCOURTS-MARTIAL

Who may convene general courts-martial.Who may convefie special courts.martial.Who may convene summary courts-mar-

tial.Who may serve on courts-martial.Military judge of a general or special

court-martial.Detail of trial counsel aond defense coun-

sel.Detail or employment of reporters and

interpreters.Absent and additional members.

AMENDMENTS

1908-Pub. L. 90-632, § 2(8), Oct. 24, 1968. 82 Stat.1336, substituted "Military judge of a general or spe-cial court-martial" for "Law officer of a general court-martial" in item 826 (article 26).

§ 822. Art. 22. Who may convene general courts-mar-tial

(a) General courts-martial may be convenedby-

(1) the President of the United States;(2) the Secretary concerned;(3) the commanding officer of a Territorial

Department, an Army Group, an Army, anArmy Corps, a division, a separate brigade, ora corresponding unit of the Army or MarineCorps;

(4) the commander in chief of a fleet; thecommanding officer of a naval station orlarger shore activity of the Navy beyond theUnited States;

(5) the commanding officer of an air com-mand, an air force, an air division, or a sepa-rate wing of the Air Force or Marine Corps;

(6) any other commanding officer designat-ed by the Secretary concerned; or

(7) any other commanding officer in any ofthe armed forces when empowered by thePresident.

(b) If any such commanding officer is an ac-cuser, the court shall be convened by superiorcompetent authority, and may in any case beconvened by such authority if considered desir-able by him.

(Aug. 10, 1956, ch. 1041, 70A Stat. 44.)

Subsection (a)(2) is substituted for the words "theSecretary of a Department".

In subsection (a)(4), the words "continental limits ofthe" are omitted, sin'e section 101(1) of this title de-fines the United States to include the States and theDistrict of Columbia.

In subsection (a)(6). the words "any other command-ing officer" are substituted for the words "such othercommanding officers as may be".

In subsection (b), the word "If" is substituted for theword "When". The words "if -.,nsidered" are substi-tuted for the words "when deemed".

CROSS REFERENCESComplaints of wrongs, see section 938 of this title.Courts of inquiry, authority to convene, see section

935 of this title.Initial action on record, see section 860 of this title.

§ 823. Art. 23. Who may convene special courts-mar-tial

(a) Special courts-martial may be convenedby-

(1) any person who may convene a generalcourt-martial;

(2) the commanding officer of a district,garrison, fort, camp, station, Air Force base,auxiliary air field, or other place where mem-bers of the Army or the Air Force are onduty;

(3) the commanding officer of a brigade,regiment, detached battallon, or correspond-ing 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 orCoast Guard vessel, shipyard, base, or station;the commanding officer of any Marine bri-gade, regiment, detached battalion, or corre-sponding unit; the commanding officer of anyMarine barracks, wing, group, separate squad-ron, station, base, auxiliary air field, or otherplace where members of the Marine Corpsare on duty;

(6) the commanding officer of any separateor detached command or group of detachedunits of any of the armed forces placed undera single commander for this purpose; or

(7) the commanding officer or officer incharge of any other command when empow-ered by the Secretary concerned.

(b) If any such officer is an accuser, the courtshall be convened by superior competent au-thority, and may in any case be convened bysuch authority if considered advisable by him.

(Aug. 10, 1956, ch. 1041, 70A Stat. 44.)


Revised Source (U.S. Code) Source (Statutes atsec,'on Large)

823(a) . 50:587(a). Ma 5,1950. ch. 169. 1823(b). 50:587(b). (Art. 23), 64 Stat. 115.

3 § 823


In subsection (a)(7), the words "Secretary con-cerned" are substituted for the words "Secretary of aDepartment".

In subsection (b), the word "If" is substituted for theword "When". The words "if considered" are substi-tuted for the words "when deemed".

CROSS REFERENCES

Initial action on record, see section 860 of this title.

§ 824. Art. 24. Who may conven'i summary courts-martial

(a) Summary courts-martial may be convenedby-

(1) any person who may convene a generalor special court-martial;

(2) the commanding officer of a detachedcompany, or other detachment of the Army;

(3) the commanding officer of a detachedsquadron or other detachment of the AirForce; or

(4) the commanding officer or officer incharge of any other command when empow-ered by the Secretary concerned.

(b) When only one commissioned officer ispresent with a command or detachment heshall be the summary court-martial of thatcommand or detachment and shall hear and de-termine all summary court-martial casesbrought before him. Summary courts-martialmay, however, be convened in any case by supe-rior competent authority when considered de-sirable by him.

(Aug. 10, 1956, ch. 1041, 70A Stat. 45.)



824(a) ........ 50:588(a). May 5, 1950, ch. 169, 1824(b) . 50:588(b). (Art. 24), 64 StLt. 116.

In subsection (a)(4), the words "Secretary con-cerned' are substituted for the words "Secretary of aDepartment".

In subsection (b), the words "only one commis-sioned" are substituted for the words "but one" forclarity. The word "considered" is substituted for theword "deemed".

CROSS REFERENCES

Initial action on record, see section 860 of this title.Inquests, disposition of effects of deceased persons,

see sections 4711, 4712, 9711, 9712 of this title.

§ 825. Art. 25. Who may serve on courts-martial

(a) Any commissioned officer on active duty iseligible to serve on all courts-martial for thetrial of any person who may lawfully bebrought before such courts for trial.

(b) Any warrant officer on active duty is eligi-ble to serve on general and special courts-mar-tial for the trial of any person, other than acommissioned officer, who may lawfully bebrought before such courts for trial.

(c)(1) Any enlisted member of an armed forceon active duty who is not a member of the sameunit as the accused is eligible to serve on gener-al and special courts-martial for the trial of anyenlisted member of an armed force who maylawfully be brought before such courts for trial,but he shall serve as a member of a court only

if, before the conclusion of a session called bythe military judge under section 839(a) of thistitle (article 39(a)) prior to trial or, in the ab-sence of such a session, before the court is as-sembled for the trial of the accused, the ac-cused personally has requested in writing thatenlisted members serve on it. After such a re-quest, the accused may not be tried by a gener-al or special court-martial the membership ofwhich does not include enlisted members in anumber comprising at least, one-third of thetotal membership of the court, unless eligibleenlisted members cannot be obtained on ac-count of physical conditions or military exigen-cies. If such members cannot be obtained, thecourt may be assembled and the trial held with-out them, but the convening authority shallmake a detailed written statement, to be ap-pended to the record, stating why they couldnot be cbtained.

(2) In this article, the word "unit" means anyregularly organized body as defined by the Sec-retary concerned, but in no case may it be abody larger than a company, squadron, ship'screw, or body corresponding to one of them.

(d)(1) When it can be avoided, no member ofan armed force may be tried by a court-martialany member of which is junior to him in rankor grade.

(2) When convening a court-martial, the con-vening authority shall detail as members there-of such members of the armed forces as, in hisopinion, are best qualified for the duty byreason of age, education, training, experience,length of service, and judicial temperament. Nomember of an armed force is eligible to serve asa member of a general or special court-martialwhen he is the accuser or a witness for theprosecution or has acted as investigating officeror as counsel in the same case.



Revised Source ( U. S. Code) Source (Statutes atsection Large)

825(a) ........ 50:589(a). May 5,1950, ch. 169, 11825(b) ........ 50:589(b). (Art. 25), 64 Stat. 116.825(c) ......... 50:589(c).825(d) ........ 50:589(d).

In subsection (a), the word "commissioned" is insert-ed 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 "withthe armed forces" are omitted as surplusage.

In subsection (b), the word "is" is substituted for thewords "shall be". The words "a commissioned" aresubstituted for the word "an" for clarity.

In subsection (c), the words "member" and "mem-bers", respectively are substituted for the words"person" and "persons". The words "of an armedforce" are inserted for clarity.

In subsection (c)(1), the word "is" is substituted forthe words "shall be". The word "before" is substitutedfor the words "prior to". The words "the accused maynot" are substituted for the words "no enlisted personshall", for clarity. The word "If" is substituted for theword "Where".

In subsection (c)(2), the word "means" is substitutedfor the words "shall mean". The words "Secretaryconcerned" are substituted for the words "Secretary

Page 154 '§ 824


of the Department". The word "may" is substitutedfor the word "shall". The word "than", before thewords "a body", is omitted as surplusage.

In subsection (d)(1), the word "may" ih oubstitutedfor the word "shall". The word "member" is substitut-ed for the word "person"

In subsection (d)W2). the word "is" is substituted forthe words "shall be". The word "detail" is substitutedfor the word "appoint", since the filling of the posi-tion involved is not appointment to an office in theconstitutional sense. The words "nember of an armedforce" and "members of the armed forces", respective-ly, are substituted for the words "person" and "per-sons".

AMENDMENTS

1968-Subsec. (c)(1). Pub. L. 90-632 added require-ment that an accused's requt,"t for the inclusion of en-listed members on his court-martial be made beforethe conclusion of a pre-trial session called by the mili-tary Judge under section 839(r.) or before the court isassembled for his trial and substituted "assembled"for "convened" to describe the calling together of thecourt for the trial in the provision allowing such call-ing together without requested enlisted members ifsuch members cannot be obtained.

EFFECTIVE DATE Or 1968 AMENDMENT

Amendment by Pub. L. 90-632 effective nn the firstday of the tenth month following October 1968, seesection 4 of Pub. L. 90-632, set out as a note under sec-tion 801 of this title.

CRoss REFERENCES


SECTION REFERRED TO IN OTHER SECTIONs


§ 826. Art. 26. Military judge of a general or specialcourt-martial

(a) The authority convening a general court-martial shall, and, subject to regulations of theSecretary concerned, the authority convening aspecial court-martial may, detail a militaryJudge thereto. A military Judge shall presideover each open session of the court-martial towhich he has been detailed.(b) A military judge shallbe a commissioned

officer of the armed forces who is a member ofthe bar of a Federal court or a member of thebar of the highest court of a State and who iscertified to be qualified for duty as a militaryjudge by the Judge Advocate General of thearmed force of which such military judge is amember.(c) The military Judge of a general court-mar-

tial shall be designated by the Judge AdvocateGeneral, or his designee, of the armed force ofwhich the military judge is a member for detailby the convening authority, and, unless thecourt-martial was convened by the President orthe Secretary concerned, neither the conveningauthority nor any member of his staff shallprepare or review any report concerning the ef-fectiveness, fitness, or efficiency of the militaryjudge so detailed, which relates to his perform-ance of duty as a military judge. A commis-sioned officer who is certified to be qualifiedfor duty as a military judge of a general court-martial may perform such duties only when heis assigned and directly responsible to theJudge Advocate General, or his designee, of thearmed force of which the military judge is a

member and may perform duties of a judicial ornonJudicial nature other than those relating tohis primary duty as a military Judge of a gener-al court-martial when such duties are assignedto him by or with the approval of that JudgeAdvocate General or his designee.

(d) No person is eligible to act as militaryJudge in a case if he is the accuser or a witnessfor the prosecution or has acted as investigat-ing officer or a counsel in the same case.

(e) The military Judge of a court-martial maynot consult with the members of the courtexcept in the presence of the accused, trialcounsel, and defense counsel, nor may he votewith the members of the court.

(Aug. 10, 1956, ch. 1041, 70A Stat 46; Oct. 24,1968, Pub. L. 90-632, 1 2(9), 82 Stat. 1336.)



826(a) . 50:590(a). May 5, 1950. ch. 169, 1 1826(b). 50:590(b). (Art. 26), 64 Stat. 117.

In subsection (a), the words "a commissioned" aresubstituted for the word "an" for clarity. The words"of the United States" are omitted as surplusage. Theword "is" is substituted for the words "shall be". Theword "if" is substituted for the word "when". Theword "detail" is substituted for the word "appoint",since the filling of the position involved is not appoint-ment to an office in the constitutional sense.

In subsection (b) [now (e] the word "may" is sub-stituted for the word "shall".

AMENDMENTS

1968-Pub. L. 90-6.2 substituted "military judge" for"law officer" and inserted reference to special court-martial.

Subsec. (a). Pub. L. 90-632 substituted reference tomilitary judge for references to law officer and suchlaw officer's requisite qualifications, inserted referenceto special court-martial and regulati.ns of the Secre-tary concerned governing the conven.ng of a specialcourt-martial, added provisions directing the militaryJudge to preside over the open sessions of the court-martial to which he was assigned, and struck out pro-visions making law officers ineligible In a case inwhich he was the accuser r a witness for the prosecu-tion or acted as investiguing 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 formersubsec. (b) as (e) and substituted "military Judge" for"law officer" and struck out provision allowing consul-taticn with members of the court on the form of thefindings as provided in section 839 of this title (article39).

En ErivE DATE OF 1968 AMENDMENTAmendment by Pub. L. 90-632 effective on the first

day of the tenth month following October 1968, seesection 4 of Pub. L. 90-632, set out as a note under sec-tion 801 of this title.

STATUTORY REFERENCES TO LAW OnICER DEEMEDREFERENCES TO MILITARY JUDGE

Section 3(a) of Pub. L. 90-632 provided that: "When-ever the term law officer is used, with reference to anyofficer detailed to a court-martial pursuant to section826(a) (article 26(a)) of title 10, United States Code[subsec. (a) of this section], in any provision of Feder-al law (other than provisions amended by this Act [see

§ 826Page 155


Short Title of 1968 Amendment note set out undersection 801 of this title] or in any regulation, docu-ment, or record of the United States, such term shallbe deemed to mean military Judge."

CROSS REFERENCES

Authentication of record, see section 854 of thistitle.

Definition of military judge, see section 801 of thistitle.

Oath to perform duties faithfully, see section 842 ofthis title.

Oaths, administration of; notary, general powers of,see section 936 of this title.

Rulings on interlocutory questions, see section 851of this title.



§ 827. Art. 27. Detail of trial counsel amid defensecounsel

(a) For each general and special court-martialthe authority convening the court shall detailtrial counsel and defense counsel, and such as-sistants as he considers appropriate. No personwho has acted as investigating officer, militaryjudge, or court member in any case may actlater as trial counsel, assistant trial counsel, or,unless expressly requested by the accused, asdefense counsel or assistant defense counsel inthe same case. No person who has acted for theprosecution may act later in the same case forthe defense, nor may any person who has actedfor the defense act later in the same case forthe prosecution.

(b) Trial counsel or defense counsel detailedfor a general court-martial-

(1) must be a judge advocate of the Army,Navy, Air Force, or Marine Corps or a lawspecialist of the Coast Guard, who is a gradu-ate of an accredited law school or is a memberof 'he bar of a Federal court or of the highestcourt of a State; or must be a member of thebar of a Federal court or of the highest courtof a State; and

(2) mbst be certified as competent to per-form such duties by the Judge Advocate Gen-eral of the armed force of which he is amember.

(c) In the case of a special court-martial-(1) the accused shall be afforded the oppor-

tunity to be represented at the trial by coun-sel having the qualifications prescribed undersection 827(b) of this title (article 27(b))unless counsel having such qualificationscannot be obtained on account of physicalconditions or military exigencies. If counselhaving such qualifications cannot be ob-tained, the court may be convened and thetrial held but the convening authority shallmake a detailed written statement, to be ap-pended to the record, stating why counselwith such qualifications could not ioe ob-tained;

(2) if the trial counsel is qualified to act ascounsel before a general court-martial, thedefense counsel detailed by the convening au-thority must be a person similarly qualified;and

(3) if the trial counsel is a judge advocate,or a law specialist, or a member of the bar of

a Federal court or the highest court of aState, the defense counsel detailed by theconvening authority must be one of the fore-going.

(Aug. 10, 1956, ch. 1041, 70A Stat. 46; Dec. 8,1967, Pub. L. 90-179, § 1(5), 81 Stat. 546; Oct. 24,1968, Pub. L. 90-632, § 2(10), 82 Stat. 1337.)

HISTORICAL AND ',EVISION NOTES


827(a) ....... 50:591(a). May 5, 1950, ch. 169, I 1827(b) ....... 5 0:591(b). (Art. 27), 64 Stat. 117.827(c) ........ 50:591(c).

The words, "detail" and "detailed" are substitutedfor the words "appoint" and "appointed" throughoutthe revised section, since the filling of the position in-volved is not appointment to an office in the constitu-tional sense.

In subsection (a), the word "and" is substituted forthe word. "together with". The wrrd "considers" issubstituted for the word "deems". The words "neces-sary or" are omitted as surplusage, since what is neces-sary is also appropriate. The word "may" is substitut-ed for the word "shall". The word "later" is substitut-ed for the word "subsequently".

In subsections (b) and Cc), the word "must" is substi-tuted for the word "shall", since the clauses prescribeconditions and not commands.

In subsection (b), the word "for" is substitutea forthe words "in the case of". The words "person * aperson who is" are omitted as surplusage.

AMENDMENTS

1968-Subsee. (a). Pub. L. 90-632, 1 2WOW)(A), substi-tuted "military Judge" for "law officer".

Subsec. Cc). Pub. L. 90-632, 1 2(10)(B), redesignatedformer pars. (1) and (2) as pars. (2) and (3), respective-ly, and added par. (1).

1967-Subsec. (b)(1). Pub. L. 90-179 inserted refer-ence to judge advocate of the Marine Corps and sub-stituted reference to judge advocate of the Navy forreference to law specialist of the Navy.



CROSS REFERENCES

Appointment of appellate counsel, see section 870 ofthis title.

Article to be explained, see section 937 of this title.Courts of inquiry, appointment of counsel for court,

see section 935 of this title.Duties of trial and defense counsel, see section 838

of this title.Oath of trial and defense counsel to perform duties

faithfully, see section 842 of this title.Oaths, administration of; notary, general powers of,

see section 936 of this title.


This section is referred to In sections 819, 838. 870,937, 5587a of this title.

§ 828. Art. 28. Detail or employment of reporters andInterpreters

Under such regulations as the Secretary con-cerned may prescribe, the convening authorityof a court-martial, military commission, orcourt of inquiry shall detail or employ qualified

Page 156§ 827


court reporters, who shall record the proceed-ings of and testimony taken before that courtor commission. Under like regulations the con-vening authority of a court-martial, militarycommission, or court of inquiry may detail oremploy interpreters who shall interpret for thecourt or commission.(Aug. 10, 1956, ch. 1041, 70A Stat. 47.)


Revised Source (US Code? Source (Statutes atsection Large)

828 . 50:592. May 5, 1950, ch. 169, I1(Art. 28). 64 Stat. 117.

The words "Secretary concerned" are substituted forthe words "Secretary of the Department". The words,"detail or employ" are substituted for the word "ap-point", since the filling of the position involved is notappointment to an office in the constitutional sense.

CROSS REFERENCES

Judge Advocate Generals of Army and Air Force toreceive, revise and have recorded proceedings of courtsof inquiry and military commissions, see sections 3037,1072 of this title.

Oath of reporters and interpreters to perform dutiesfaithfully, see section 842 of this title.

§ 829. Art. 29. Absent and additional members

(a) No member of a general or special court-martial may be absent or excused after thecourt has been assembled for the trial of the ac-cused except for physical disability or as aresult of a challenge or by order of the conven-ing authority for good cause.

(b) Whenever a general court-martial, otherthan a general court-martial cnmposed cf a mil-itary Judge ,inly, is reduced below five mem-bers, the trial may not proceed unless the con-vening authority details new members suffi-cient in number to provide not less than fivemembers. The trial may proceed with the newmembers present after the recorded evidencepreviously introduced before the members ofthe court has been read to the court in thepresence of the military judge, the accused, andcounsel for both sides,

(c) Whenever a special court-martial, otherthan a speciRj v ourt-martial composed of a mili-tary Judgc -.iy, is reduced below three mem-bers, the trial may not proceed unless the con-vening authority details new members suffi-cient in number to provide not less than threemembers. The trial shall proceed with the newmembers present as if no evidence had previ-ously been introduced at the trial, unless a ver-batim record of the evidence previously intro-duced before the members of the court or astipulation thereof is read to the court in thepresence of the military judge, if any, the ac-cused and counsel for both sides.

(d) If the military judge of a court-martialcomposed of a military judge only is unable toproceed with the trial because of physical dis-ability, as a result of a challenge, or for othergood cause, the trial shall proceed, subject toany applicable conditions of section 816(1)(B)or (2)(C) of this title (article 16(1)(B) or (2)(C)),after the detail of a new military judge as if noevidence had previously been introduced, unless

a verbatim record of the evidence previously in-troduced or a stipulation thereof is read incourt in the presence of the new military judge,the accused, and counsel for both sides.




829(a) 50:593(a).829(b) ........ 50:593(b).829(c) . 50:593(c).

May 5. 1950. ch. 169,(Art. 29). 64 Stat. 117,

In subsections (a), (b), and (c), the word "may" issubstituted for the word "shall".

In, subsections (b) and (c), the word "details" is sub-stituted for the word "appoints", since th., filling ofthe position involved is not appointment fu an officein the constitutional sense.

AMENDMENTS

1968-Subsec. (a). Pub. L. 90-632, § 2(11)(A), substi-tuted "court has been assembled for the trial of theaccused" for "accused has been arraigned".

Subsec. (b). Pub. L. 90-632, 1 2(11)(B), inserted refer-ence to court-martial composed of a military judgealone, struck out reference to oath of members, anda ded provisions requiring that only the evidencewhich has been introduced before members of thecourt be read to the court and that all evidence, notmerely testimony, be included.

Subsec. (c). Pub. L. 90-632, § 2(1l)(C), inserted refer-ence to court-martial composed of a military judgealone, struck out reference to oath of members, andsubstituted evidence previously introduced ;or testi-mony o! previously examined witnesses as the body ofevidence which the verbatim record must cover.

Subsec. (d) Pub. L. 90-632, § 2('.1)(D), added subsec.(d).



SUBCHAPTER VI-PRE-TRIALPROCEDURE

Charges and specifications.Compulsory self-incrimination prohibited.Investigation.Forwarding of charges.Advice of staff Judge advocate and refer-

ence for trial.Service of charges.

§ 830. Art. 30. Charges and specifications

(a) Charges and specifications shall be signedby a person subject to this chapter under oathbefore a commissioned officer of the armedforces authorized to administer oaths and shallstate-

(1) that the signer has personal knowledgeof or has investigated, the matters set forththerein; and

(2) that they are true in fact to the best ofhis knowledge and belief.

Page 157 § 830


(b) Upon the preferring of charges, theproper authority shall take immediate steps todetermine what disposition should be madethereof in the interest of justice and discipline,and the person accused shall be informed of thecharges against him as soon as practicable.

(Aug. 10, 1956, ch. 1041, 70A Stat. 47.)



830(a) ........ 50:601(a). May 5 1950. ch. 169, 11830(b) ........ (a1rt. 30). 64 Stat. 118.

In subsection (a), the word "they" is substituted forthe words "the same". The word "commissioned" Is in-serted for clarity.

CROSS REFERENCES

Authority to administer oaths, see section 936 of thistitle.

Corrections and changes to conform to investigationreport, see section 834 of this title.

SECTICs REFERRED TO IN OTHER SECTIONS


§ 831. Art. 31. Compulsory self-incrimination prohib.ited

(a) No person subject to this chapter mtycompel any person to incriminate himself or toanswer any question the answer to which maytend to incriminate him.

(b) No person subject to this chapter may in-terrogate, or request any statement from, anaccused or a person suspected of an offensewithout first informing him of the nature ofthe accusation and advising him that he doesnot have to make any statement regarding theoffense of which he is accused or suspected andthat any statewient made by him may be usedas evidence against him in a trial by court-mar-tial.

(c) No person subject to this chapter maycompel any person to make a statement or pro-duce evidence before any military tribunal ifthe statement or evidence is not material to theissue and may tend to degrade him.

(d) No statement obLalned from any person inviolation of this article, or through the use ofcoercion, unlawful influence, or unlawful in-ducement may be received in evidence againsthim in a trial by court-martial.

(Aug. 10, 1956, ch. 1041, 70A Stat. 48.)


Revised Source (U.S. Code)section

831(a) . 50:602(a).831(b) . 50:602(b).831(c) ......... 50:602(c).831(d) ........ 50:602(d).

Source (Statutes at


This section is referred to in section 937 o, this title.

§ 832. Art. 32. Investigation

(a) No charge or specification may be referredto a general court-martial for trial until a thor-ough and impartial investigation of all the mat-ters set forth therein has been made. This in-vestigation shall include inquiry as to the truthof the matter set forth in the charges, consider-ation of the form of charges, and a recommen-dation as to the disposition which should bemade of the case in the interest of justice anddiscipline.

(b) The accused shall be advised of thecharges against him and of his rigl. to be rep-resented at that investigation by counsel. Theaccused has the right to be represented at thatinvestigation as provided in section 838 of thistitle (article 38) and in regulations prescribedunder that section. At that investigation fullopportunity shall be given to the accused tocross-examine witnesses against him if they areavailable and to present anything he mayLsire in his own behalf, either in defense ormitigation, and the investigating officer shallexamine available witnesses requested by theaccused. If the charges are forwarded after theinvestigation, they shall be accompanied by astatement of the substance of the testimonytaken on both sides and a copy thereof shall begiven to the accused.

(W) If an investigation of the subject matter ofan offense has been conducted before the ac-cused is charged with the offense, and if the ac-cused was present at the investigation and af-forded the opportunities for representation,cross-examination, and presentation prescribedin subsection (b), no further investigation ofthat chrrge is necessary under this articleunless it is demanded by the accused after he isinformed of the charge. A demand for furtherinvestigation entitles the accused to recall wit-nesses for further cross-examination and tooffer any new evidence in his cwn behalf.

(d) The requirements of this article are bind-ing on all persons administering thls chapterbut failure to follow them does not constitutejurisdictional error.

(Aug. 10, 1956, ch. 1041, 70A Stat. 48; Nov. 20,1981, Pub. L. 97-81, § 4(a), 95 Stat. 1088.)



May 5. 1950. ch. 169, 11(Art. 32), 64 Stat. 118.

The word "may" is substituted for the word "shall"throughout the revised section.

CROSS REFERENCES

Article to be explained, see section 937 of this title.Self-incrimination; protection against, see Const.

Amend. 5.

In subsection (a), the word "may" is substituted forthe word "shall". The words "consideration of the"and "a recommendation as to" are inserted in the in-terest of accuracy and precision of statement.

In subsection (b), the word "detailed" is substitutedfor the word "appointed", since the filling of the posi-tion involved is not appointment to an office in theconstitutional sense.

Large)832(a) ........ 50:603(a).

M 1950. 832(b) ........ 50:603(b).It 51)0 6 Stch. 169. 1 832(c) ...... 50:603(c),31). 64 stat. 118. 832(d)..... 50:603(d).

Page 158§ 831


In subsection (c), the word "before" is substitutedfor the words "prior to the time". The words "of thissection" are omitted as surplusage.

In subsection (d), the word "are" is substituted forthe words "shall be," The word "does" is substitutedfor the words "in any case shall".

AMENDMENTS

1981-Subsec. (b). Pub. L. 97-81 substituted "The ac-cused has the right to be represented at that investiga-tion as provided in section 833 of this title (article 38)and in regulations prescribed under that section" for"Upon his own request he shall be represented by ci-vilian counsel if provided by him, or military counselof his own selection if such counsel is reasonably avail-able, or by counsel detailed by the officer exercisinggeneral court-martial jurisdict.on over the command".


Amendment by Pub. L. 97-81 to take effect at theend of the 60-day period beginning on Nov. 20, 1981,and to apply with kespect to investigations under thissection that begin on or after that date, s(e section7(a) ano (b)(3) of Pub. L. 97-81, set out as an F.ffestiveDate note under section 706 of this title.

.=ss REFERENCES

Oaths, administration of; notary, general powe,-s of.see section 936 of this title.

SECTION REFF.RRED TO IN OTHER SECTIONF,

This section W referred to in section 838 of this tit.c.

§ 833. Art. 33. Forwarding of charges

When a person is held for trial by generalcourt-martial the commanding officer shall,within eight days after the accused is orderedinto arrest or confinement, if practicable, for-ward the charges, together with the investiga-tion and allied papers, to the officer exercisinggeneral court-martial jurisdiction. If that is notpraeticable, he shall report in writing to thatofficer the reasons for delay.

(Aug. 10, 1956, ch. 1041, 70A Stat. 49.)



833 ............. 50:604. May 5. 1950, ch. 169. 1 1(Art. 33). 64 Stat. 119.

§ 834. Art. 34. Advice of staff judge advocate and ref-erence for trial

(a) Before directing the trial of any charge bygeneral court-martial, the convening authorityshall refer it to his staff judge advocate or legalofficer for consideration and advice. The con-vening authority may not refer a charge to ageneral court-martial for trial unless he hasfound that the charge alleges an offense underthis chapter and is warranted by evidence indi-cated in the report of investigation.

(b) If the charges or specifications are notformally correct or do not conform to the sub-stance of the evidence contained in the reportof the investigating officer, formal corrections,an~d such changes in the charges and specifica-tions as are needed to make them conform tothe evidence, may be made.

(Aug. 10, 1956, ch. 1041, 70A Stat. 49.)



834(a) . 50:605(a). May 5, 1950. ch. 169. 11834(b) ........ 50:605(b). Art. 34). 64 Stat. 119.

In subsection (a), the word "may" is substituted for

the word "shall".

§ 835. Art. 35. Service of charges

The trial counsel to whom court-martialcharges are referred for trial shall cause to beserved upon the accused a copy of the chargesupon which trial is to be had. In time of peaceno person may, against hi- objection, bebrought to trial, or be required to participateby himself or counsel In a session called by themilitary judge under section 839(a) of this title(article 39(a)), in a general court-martial casewithin a period of five days after the service ofcharges upon him, or in a special court-martialcase within a period of three days after theservice of charges upon him.



Revised Source (US Code) Source (Statutes atsection Large)

135 . 50:606. May 5. 1950. ch. 169, I(Art. 35). 64 Stat. 119.

The word "may" is substituted for the word "shall".The word "after" is substituted for the words "subse-quent to".

AMENDMENTS

1968-Pub. L. 90-632 inserted reference to a sessioncalled by the military Judge under eaction 839(a) ofthis title (article 39(a)).

EFFECTIVE DATE OF 1968 AMLNDMENT


SECTION REFFRRED TO IN OTHER SECTIONS


SUBCHAPTER VII-TRIAL PROCEDURE

President may prescribe rules.Unlawfully influencing action of court.Duties of trial counsel and defense coun-

sel.Sessions.Continuances.Challenges.Oaths.Statute of limitations.Former Jeopardy.Pleas of the accused.Opportunity to obtain witnesses and

other evidence.Refusal to appear or testify.Contempts.Depositions.

Page 159 § 835


Sec. Art.

Admissibility of records of courts of in-quiry.

Voting and rulings.Number of votes required.Court to announce action.Record of trial.

§ 836. Art. 36. President may prescribe rules(a) 1-retrial, trial, and post-trial procedures,

including modes of proof, for cases arisingunder this chapter triable in courts-martial,military commissions and other military tribu-nals, and procedures for courts of inquiry, maybe prescribed by the President by regulationswhich shall, so far as he considers practicable,apply the principles of law and the rules of evi-dence generally recognized in the trial of crimi-nal cases in the United States district courts,but which may not be contrary to or inconsist-ent with this chapter.

(b) All rules and regulations made under thisarticle shall be uniform insofar as practicableand shall be reported to Congress.(Aug. 10, 1956, ch. 1041, 70A Stat. 50; Nov. 9,1979, Pub. L. 96-107, title VIII, § 801(b), 93 Stat.811.)


Revised Source (U.S. Code) Source (Statutes atsection Sore(..Cd)Large)

836(a) ........ May 5. 1950. ch. 169. 1836(b). 50:611(b). (Art. 36). 64 Stat. 120.

In subsection (a), the word "considers" is substitutedfor the word "deems". The word "may" is substitutedfor the word "shall".

In subsection (b), the word "under" is substitutedfor the words "in pursuance of".

AMENDMENTS

1979-Subsec. (a). Pub. L. 96-107 substituted provi-sions authorizing pretrial, trial, and post-trial proce-dures for cases under this chapter triable In courts-martial, military commissions and other military tri-bunals, for provisions authorizing procedure In casesbefore courts-martial, military commissions, and othermilitary tribunals.

CROSS RFFERENCES

Competency of accused as witness, see section 3481of Title 18, Crimes and Criminal Procedure.

Federal Rules of Criminal Procedure, see Title 18,Appendix.

Judge Advocate General of Army and Air Force toreceive, revise, and have recorded proceedings ofcourts of inquiry and military commissions, see sec-tions 3037, 8072 of this title.



§ 837. Art. 37. Unlawfully influencing action of court(a) No authority convening a general, special,

or summary court-martial, nor any other com-manding officer, may censure, reprimand, oradmonish the court or any member, militaryJudge, or counsel thereof, with respect to thefindings or sentence adjudged by the court, orwith respect to any other exercise of its or his

functions in the conduct of the proceeding. Noperson subject to this chapter may attempt tocoerce or, by any unauthorized means, influ-ence the action of a court-martial or any othermilitary tribunal or any member thereof, inreaching the findings or sentence in any case,or the action of any convening, approving, orreviewing authority with respect to his judicialacts. The foregoing provisions of the subsectionshall not apply with respect to (1) general in-structional or informational courses in militaryjustice if such courses are designed solely forthe purpose of instructing members of a com-mand in the substantive and procedural a-pectsof courts-martial, or (2) to statements andinstructions given in open court by the militaryjudge, president of a special court-martial, orcounsel.

(b) In the preparation of an effectiveness, fit-ness, or efficiency report, or any other report ordocument used in whole or in part for the pur-pose of determining whether a member of thearmed forces is qualified to be advanced, ingrade, or in determining the assignment ortransfer of a member of the armed forces or indetermining whether a member of the armedforces should be retained on active duty, noperson subject to this chapter may, in prepar-ing any such report (1) consider or evaluate theperformance of duty of any such member as amember of a court-martial, or (2) give a less fa-vorable rating or evaluation of any member ofthe armed forces because of the zeal withwhich such member, as counsel, representedany accused before a court-martial.

(Aug. 10, 1956, ch. 1041, 70A Stat. 50; Oct. 24,1968, Pub. L. 90-632, § 2(13). 82 Stat. 1338.)


Revised Source (U.S. Code) Source (Statutes atsectionrSuc US oe Large)

837... 50:612. May 5, 1950. ch. 169, i I( t. 37), 64 Stat. 120.

The word "may" is substituted for the word "shall".

AMENDMENTS

1968-Subsec. (a). Pub. L. 90-632, § 2(13)(A) to (C),designated existing provisions as subsec. (a) and, sub-stituted therein "military Judge" for "law officer" andadded provisions specifically exempting instructionalor general informational lectures on military justiceand statements and instructions given in open courtby the military judge, president of a special court-mar-tial, or counsel from the prohibitions of subsec. (a).

Subsec. (b). Pub. L. 90-632, § 2(13)(D), added subsec.(b).



CROSS REFERENCES




§ 836 Page 160


§ 838. Art. 38. Duties of trial counsel and defensecounsel

(a) The trial counsel of a general or specialcourt-martial shall prosecute in the name ofthe United States, and shall, under the direc-tion of the court, prepare the record of the pro-ceedings.

(b)(1) The accused has the right to be repre-sented in his defense before a general or specialcourt-martial or at an investigation under sec-tion 832 of this title (article 32) as provided inthis subsection.

(2) The accused may be represented by civil-ian counsel if provided by him.

(3) The accused may be represented-(A) by military counsel detailed under sec-

tion 827 of this title (article 27); or(B) by military counsel of his own selection

if that counsel is reasonably available (as de-termined under regulations prescribed underparagraph (7)).(4) If the accused is represented by civilian

counsel, military counsel detailed or selectedunder paragraph (3) shall act as associate coun-sel unless excused at the reauest of the ac-cused.

(5) Except as provided under paragraph (6), ifthe accused is represented by military counselof 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 repre-sented by more than one military counsel. How-ever, a convening authority, in his sole discre-tion-

(A) may detail additional military counselas assistant defense counsel; and

(B) if the accused is represented by militarycounsel of his own selection under paragraph(3)(B), may approve a request from the ac-cused that military counsel detailed underparagraph (3)(A) act as associate defensecounsel.(7) The Secretary concerned shall, by regula-

tion, define "reasonably available" for the pur-pose of paragraph (3)(B) and establish proce-dures for determining whether the militarycounsel selected by an accused under that para-graph is reasonably available. To the man:imumextent practicable, such regulations shall estab-lish uniform policies among the armed forceswhile recognizing the differences in the circum-stances and needs of the various armed forces.The Secretary concerned shall submit copies ofregulations prescribed under this paragraph tothe Committees on Armed Services of theSenate and House of Representatives.

(c) In every court-martial proceeding, the de-fense counsel may, in the event of conviction,forward for attachment to the record of pro-ceedings a brief of such matters as he feelsshould be considered in behalf of the accusedon review, including any objection to the con-tents of the record which he considers appro-priate.

Cd) An assistant trial counsel of a generalcourt-martial may, under the direction of thetrial counsel or when he is qualified to be atrial counsel as required by section 827 of thistitle (article 27), perform any duty imposed by

law, regulation, or the custom of the serviceupon the trial counsel of the court. An assistanttrial counsel of a special court-martial may per-form any duty of the trial counsel.

(e) An assistant defense counsel of a generalor special court-martial may, under the direc-tion of the defense counsel or when he is quali-fied to be the defense counsel as required bysection 827 of this title (article 27), perform anyduty imposed by law, regulation, or the customof the service upon counsel for the accused.

(Aug. 10, 1956, ch. 1041, 70A Stat. 50; Oct. 24,1968, Pub. L. 90-632, § 2(14), 82 Stat. 1338; Nov.20, 1981, Pub. L. 97-81, § 4(b), 95 Stat. 1088.)


Revised Source (U.S. Code) Source (Statutes atsection tLarge)

838(a) ........ 50:613(a). May 5. 1950, ch. 169,838(b) . 50:613(b). I (Art. 38). 64 Stat.838(c) . 50:613(c). 120.838(d) ........ 50:613(d).838(e) ........ I50:613(e).

In subsection (b), the word "has" is substituted forthe words "shall have". The word "under" is substitut-ed for the words "pursuant to". The word "duly" isomitted as surplusage. The words "detailed" and "whowere detailed" are substituted for the word "appoint.ed". since the filling of the position involved is not ap-pointment to an office in the constitutional sense.

In subsection (c), the word "considers" is substitutedfor the words "may deem".

AMENDMENTS

1981-Subsec. b). Pub. L. 97-81 revised the subsec-tion by dividing its provisions into seven numberedparagraphs and added provisions relating to the rightto counsel at an investigation under section 832 of thistitle (article 32), authorizing the promulgation of reg-ulations relating to the "reasonable availability" ofmilitary counsel, and authorizing the detailing of addi-tional military counsel for the accused under specifiedcircumstances.

1968-Subsec. b). Pub. L. 90-632 substituted "mili-tary Judge or by the president of a court-martial with-out a military Judge" for "president of the court".

EFFECTIvE DATE OF 1981 AMENDMENT

Amendment by Pub. L. 97-81 to take effect at theend of the 60-day period beginning on Nov. 20. 1981,and to apply to trials by courts-martial in which allcharges are referred to trial on or after that date, seesection 7(a) and (b)(4) of Pub. L. 97-81, set. out as anEffective Date note under section 706 of this title.



CROSS REFERENCES

Article to be explained, see section 937 of this title.Courts of inquiry, representation by counsel, see sec-

tion 935 of this title.Vacation of suspension of sentence, representation

of probationer at hearing, see section 872 of this title.



11-602 0 - 83 - 7 QL 3

Page 161 § 838


§ 839. Art. 39. Sessions

(a) At any time after the service of chargeswhich have been referred for trial to a court-martial composed of a military judge and mem-bers, the military judge may, subject to section835 of this title (article 35), call the court intosession without the presence of the membersfor the purpose of-

(1) hearing and determining motions raisingdefenses or objections which are capable ofdetermination without trial of the issuesraised by a plea of not guilty;

(2) hearing and ruling upon any matterwhich may be ruled upon by the militaryjudge under this chapter, whether or not thematter is appropriate for later considerationor decision by the members of the court;

(3) if permitted by regulations of the Secre-tary concerned, holding the arraignment andreceiving the pleas of the accused; and

(4) performing any other procedural func-tion which may be performed by the militaryjudge under this chapter or under rules pre-scribed pursuant to section 836 of this title(article 36) and which does not require thepresence of the members of the court.

These proceedings shall be conducted in thepresence of the accused, the defense counsel,and the trial counsel and shall be made a partof the record.

(b) When the members of a court-martial de-liberate or vote, only the members may be pres-ent. All other proceedings, including any otherconsultation of the members of the court withcounsel or the military judge, shall be made apart of the record and shall be in the presenceof the accused, the defense counsel, the trialcounsel, and, in cases in which a military judgehas been detailed to the court, the militaryjudge.

(Aug. 10, 1956, ch. 1041, 70A Stat. 51; Oct. 24,1968, Pub. L. 90-632, § 2(15), 82 Stat 1338.)



839 ............ 50:614. May 5, 1950. ch. 169. 11(Art. 39), 64 Stat. 121.

The word "When" Is substituted for the word"Whenever". The words "deliberates or votes" are sub-stituted for the words "is to deliberate or vote". Theword "may" is substituted for the word "shall". Theword "shall" is inserted before the words "be in thepresence" for clarity.

AMENDMENTS

1968-Subsec. (a). Pub. L. 90-632 added subsec. (a),and designated existing provisions as subsec. (b).

Subsec. (b). Pub. L. 90-632 designated exist!ng provi-sions as subsec. (b) and substituted therein "militaryjudge" for "law officer" and struck out provisionsauthorizing the court after voting on the findings in ageneral court-martial to request the law officer andthe reporter to appear before the court to put thefindings in proper form.



CROSS REFERENCES

Consultations by military judge with members ofcourt, see section 826 of this title.

Record of trial, see section 854 of this title.Voting and rulings, see section 851 of this title.



9 840. Art. 40. Continuances

The military Judge or a court-martial withouta military Judge may, for reasonable cause,grant a continuance to any party for such time,and as often, as may appear to be Just.




840 . 50:615. Ma 5, 1950, ch. 169, 11rt. 40). 64 Stat. 121.

AMENDMENTS

1968-Pub. L. 90-632 inserted reference to militaryJudge.



§ 841. Art. 41. Challenges

(a) The military judge and members of a gen-eral or special court-martial may be challengedby the accused or the trial counsel for causestated to the court. The military judge, or, ifnone, the court, shall determine the relevancyand validity of challenges for cause, and maynot receive a challenge to more than one personat a time. Challenges by the trial counsel shallordinarily be presented and decided beforethose by the accused are offered.

(b) Each accused and the trial counsel is enti-tled to one peremptory challenge, but the mili-tary judge may not be challenged except forcause.




841(a):.:::::: 50:616(a). May 5. 1950, ch. 169, 61841(b) . 50:616(b). (Art, 41). 64 Stat. 121.

In subsection (a), the word "may" is substituted forthe word "shall" before the words "not receive".

In subsection (b), the word "the" is inserted beforethe word "trial". The word "is" is substituted for thewords "shill be". The word "may" is substituted forthe word "shall".

AMENDMENTS

1968-Subsec. (a). Pub. L. 90-632, § 2(17)(A), (B), In-serted reference to the military judge and struck out

Page 162§ 839


references to the law officer of a general court-mar-tial.

Subsec. (b). Pub. L. 90-632, 1 2(17)(C), substituted"military judge" for "law officer".


Amendment by Pub. L. 90J32 effective on the firstday of the tenth month following October 1968, seesection 4 of Pub. L. 90-632, set out as a note under sec-tion 801 of this title.

CRoss REFERENCES

Courts of inquiry, see section 935 of this title.Voting and rulings, see section 851 of this title.

§ 842. Art. 42. Oaths

(a) Before performing their respective duties,military Judges, members of general and specialcourts-martial, trial counsel, assistant trialcounsel, defense counsel, assistant defensecounsel, reporters, and interpreters shall takean oath to perform their duties faithfully. Theform of the oath, the time and place of thetaking thereof, the manner of recording thesame, and whether the oath shall be taken forall cases in which these duties are to be per-formed or for a particular case, shall be as pre-scribed in regulations of the Secretary con-cerned. These regulations may provide that anoath to perform faithfully duties as a militaryJudge, trial counsel, assistant trial counsel, de-fense counsel, or assistant defense counsel maybe taken at any time by any judge advocate,law specialist, or other person certified to bequalified or competent for the duty, and if suchan oath is taken it need not again be taken atthe time the judge advocate, law specialist, orother person is detailed to that duty.

(b) Each witness before a court-martial shallbe examined on oath.(Aug. 10, 1956, ch. 1041, 70A Stat. 51; Oct. 24,1968, Pub. L. 90-632, § 2(18), 82 Stat. 1339.)


Revised Source (U.S. Code) Source (Statutes utsection Large)

842(a) 50:6171(a). May 5, 190. ch. 169. i1842( 50:17(b). (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 affirma-tiona" are omitted as covered by the definition of theword "oath" in section 1 of Title 1.

In subsection (b), the words "Each witness" are sub-stituted for the words "All witnesses".

AMENDMENTS

1968-Subsec. (a). Pub. L. 90-632 struck out require-ment that the oath given to court-martial personnelbe taken in the presence of the accused and providedthat the form of the oath, the time and place of itstaking, the manner of recording thereof, and whetherthe oath shall be taken for all cases or for a particularcase shall be as prescribed by regulations of the Secre-tary concerned and contemplated secretarial regula-tions allowing the administration of an oath to certi-fied legal personnel on a one-time basis.


Amendment by Pub. L. 90-632 effective on the firstday of the tenth month following October 1968, see

section 4 of Pub. L. 90-632, set out as a note under sec-tion 801 of this title.

CROSS REFERENCES

Courts of inquiry, see section 935 of this title.

§ 843, Art. 43. Statute of limitations

(a) A person charged with desertion or ab-sence without leave in time of war, or withaiding the enemy, mutiny, or murder, may betried and punished at any time without limita-tion.

(b) Except as otherwise provided in this arti-cle, a person charged with desertion in time ofpeace or any of the offenses punishable undersections 919-932 of this title (articles 119-132) Isnot liable to be tried by court-martial if the of-fense was committed more than three yearsbefore the receipt of sworn charges and specifi-cations by an officer exercising summary court-martial Jurisdiction over the command.

(c) Except as otherwise provided in this arti-cle, a person charged with any offense is notliable to be tried by court-martial or punishedunder section 815 of this title (article 15) if theoffense was committed more than two yearsbefore the receipt of sworn charges and specifi-cations by an officer exercising summary court-martial jurisdiction over the command orbefore the imposition of punishment under sec-tion 815 of this title (article 15).

(d) Periods in which the accused was absentfrom territory in which the United States hasthe authority to apprehend him, or in the cus-tody of civil authorities, or in the hands of theenemy, shall be excluded in computing theperiod of limitation prescribed in this article.

(e) For an offense the trial of which in timeof war is certified to the President by the Sec-retary concerned to be detrimental to the pros-ecution of the war or inim!cal to the nationalsecurity, the period of limitation prescribed inthis article is extended to six months after thetermination of hostilities as proclaimed by thePresident or by a Joint resolution of Congress.

(f) When the United States is at war, the run-ning of any statute of limitations applicable toany offense under this chapter-

(1) involving fraud or attempted fraudagainst the United States or any agencythereof in any manner, whether by conspir-acy or not;

(2) committed in connection with the acqui-sition, care, handling, custody, control, or dis-position of any real or personal property ofthe United States; or

(3) committed in connection with the nego-tiation, procurement, award, performance,payment, interim financing, cancellation, orother termination or settlement, of any con-tract, subcontract, or purchase order which isconnected with or related to the prosecutionof the war, or with any disposition of termi-nation inventory by any war contractor orGovernment agency;

is suspended until three years after the termi-nation of hostilities as proclaimed by the Presi-dent or by a Joint resolution of Congress.(Aug. 10, 1956, ch. 1041, 70A Stat. 51.)

Page 163


HISTORICAL AND REVISION NtTES


843(a) ........ 50:618(a). May 5. 1950. ch. 169, 1843(b) . 50:618(b). (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 assurplusage.

In subsections (b) and (c), the words "is not" aresubstituted for the words "shall not be".

In subsection (e), the words "For an" are substitutedfor the words "In the case of any". The word "is" issubstituted for the words "shall be". The words "Sec-retary concerned" are substituted for the words "Sec-retary of the Department".

In subsection (f), the word "'" is substituted for thewords "shall be".

CROSS REFERENCES

Absence without leave, see section 886 of this title.Aiding enemy, see section 904 of this title.Desertion, see section 885 of this title.Frauds against United States, see section 932 of this

title.Jurisdiction to try certain personnel, limitations, see

section 803 of this title.Murder, see section 918 of this title.Mutiny, see section 894 of this title.



§ 844. Art. 44. Former jeopardy

(a) No person may, without his consent, betried a second time for the same offense.

(b) No proceeding in which an accused hasbeen found guilty by a court-martial upon anycharge or specification is a trial in the sense ofthis article until the finding of guilty hasbecome final after review of the case has beenfully completed.

(c) A proceeding which, after the Introductionof evidence but before a finding, is dismissed orterminated by the convening authority or onmotion of the prosecution for failure of availa-ble evidence or witnesses without any fault ofthe accused is a trial in the sense of this article.

(Aug. 10, 1956, ch. 1041, 70A Stat. 52.)



844(a) . 50:619(a). May 5, 1950, ch. 169 11844(b) ........ 50:619(b). (Art. 44), 61 Stat. 122.844(c) ......... 50:619(c).

In subsection (a), the word "may" is substituted forthe word "shall".

In subsection (b), the word "is" is substituted for thewords "shall be held to be".

In subsection (c), the word "after" is substituted forthe words "subsequent to". The word "before" is sub-stituted for the words "prior to". The word "is" is sub-stituted for the words "shall be".

CROSS REFERENCES

Double jeopardy, prohibition against, see Const.Amend. 5.

§ 8,15. Art. 45. Pleas of the accused

(a) If an accused after arraignment makes anirregular pleading, or after a plea of guilty setsup matter inconsistent with the plea, or if it ap-pears that he has entered the plea of guilty im-providently or through lack of understandingof its meaning and effect, or if he fails or re-fuses to plead, a plea of not guilty shall be en-tered in the record, and the court shall proceedas though he had pleaded not guilty.

(b) A plea of guilty by the accused may not bereceived to any charge or specification allegingan offense for which the death penalty may beadjudged. With respect to any other charge orspecification to which a plea of guilty has beenmade by the accused and accepted by the mili-tary judge or by a court-martial without a mili-tary Judge, a finding of guilty of the charge orspecification may, if permitted by regulationsof the Secretary concerned, be entered immedi-ately without vote. This finding shall constitutethe finding of the court unless the plea ofguilty is withdrawn prior to announcement ofthe sentence, in which event the proceedingsshall continue as though the accused hadpleaded not guilty.




845(a) . 50:620(a). May 5, 1950, ch. 169, 1I845(b) . 50:620(b). (Art. 45), 64 Stat. 122.

In subsection (b), the word "may" is substituted forthe word "shall".

AMENDMENTS

1968-Subsec. (a). Pub. L. 90-632, 1 2(19)(A), substi-tuted "after arraignment" for "arraigned before acourt-martial".

Subsec. (b). Pub. L. 90-632, 1 2(19)(B), added provi-sions covering the making and accepting of a guiltyplea to charges or specifications other than chargesand specifications alleging an offense for which thedeath penalty may be adjudged.





§ 846. Art. 46. Opportunity to obtain witnesses andother evidence

The trial counsel, the defense counsel, andthe court-martial shall have equal opportunityto obtain witnesses and other evidence in ac-cordance with such regulations as the Presidentmay prescribe. Process issued in court-martialcases to compel witnesses to appear and testifyand to compel the production of other evidenceshall be similar to that which courts of theUnited States having criminal jurisdiction maylawfully issue and shall run to any part of the

Page 164§ 844


United States, or the Territories, Common-wealths, and possessions.

(Aug. 10, 1956, ch. 1041, 70A Stat. 53.)



846 ............. 50:621. May 5 1950, ch. 169. I1(Art. 46), 64 Stat. 122.

The word "Commonwealths" is inserted to reflectthe present status of Puerto Rico.

FEDERAL RULES OF CRIMINAL PROCEIDURESubpoena, see rule 17, Title 18, Appendix, Crimes

and Criminal Procedure.

§ 847. Art. 47. Refusal to appear or testify

(a) Any person not subject to this chapterwho-

(1) has been duly subpenaed to appear as awitness before a court-martial, military com-mission, court of inquiry, or any other mili-tary court or board, or before any military orcivil officer designated to take a deposition tobe read in evidence before such a court, com-mission, or board;

(2) has been duly paid or tendered the feesand mileage of a witness at the rates allowedto witnesses attending the courts of theUnited States; and

(3) willfully neglects or refuses to appear, orrefuses to qualify as a witness or to testify orto produce any evidence which that personmay have been legally subpenaed to produce:

is guilty of an offense against the UnitedStates.

(b) Any person who commits an offensenamed in subsection (a) shall be tried on infor-mation in a United States district court or in acourt of original criminal jurisdiction in any ofthe Territories, Commonwealths, or possessionsof the United States, and Jurisdiction is con-ferred upon those courts for that purpose.Upon conviction, such a person shall be pun-ished by a fine of not more than $500, or im-prisonment for not more than six months, orboth.

(c) The United States attorney or the officerprosecuting for the United States in any suchcourt of original criminal jurisdiction shall,upon the certification of the facts to him bythe military court, commission, court of in-quiry, or board, file an information against andprosecute any person violating this article.

(d) The fees and mileage of witnesses shall beadvanced or paid out of the appropriations forthe compensation of witnesses.

(Aug. 10, 1956, ch. 1041. 70A Stat. 53.)


Reivied Source (U.S. Code) Source (Statutes atsection Large)

847(a) . 50:622(a). May 5, 1950, ch. 1S, s 1847(b) ........ 50:622(b). (Art. 47), 64 Stat. 123.847(c) ......... 50:622(c).847(d) ........ 50:822(d).

In subsection (a), the word "Any" is substituted forthe word "Every". The word "is" is substituted for thewords "shall be deemed".

In subsection (b), the words "named in subsection(a)" are substituted for the words "denounced by thisarticle". The words "Territories, Conmonwealths, or"are substituted for the word "Territorial". The words"not more than" are substituted for the words "aperiod 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 theterminology of section 501 of title 28. The word"shall" is inserted after the word "jurisdiction".

CROSS REFERENCES

Per diem and mileage of witnesses generally, see sec-tion 1821 of Title 28, Judiciary and Judicial Procedure.

§ 848. Art. 48. Contempts

A court-martial, provost court, or militarycommission may punish for contempt anyperson who uses any menacing word, sign, orgesture in its presence, or who disturbs its pro-ceedings by any riot or disorder. The punish-ment may not exceed confinement for 30 daysor a fine of $100, or both.

(Aug. 10, 1956, ch. 1041, 70A Stat. 53.)



848 ............. 50:623. May 5. 1950. ch. 169, 11(,Art. 48). 64 Stat. 123.


§ 849. Art. 49. Depositions

(a) At any time after charges have beensigned as provided in section 830 of this title(article 30), any party may take oral or writtendepositions unless the military judge or court-martial without a military judge hearing thecase or, if the case is not being heard, an au-thority competent to convene a court-martialfor the trial of those charges forbids it for goodcause. If a deposition is to be taken beforecharges are referred for trial, such an authoritymay designate commissioned officers to repre-sent the prosecution and the defense and mayauthorize those officers to take the depositionof any witness.

(b) The party at whose instance a depositionis to be taken shall give to every other partyreasonable written notice of the time and placefor taking the deposition.

(c) Depositions may be taken before andauthenticated by any military or civil officerauthorized by the laws of the United States orby the laws of the place where the deposition istaken to administer oaths.

(d) A duly authenticated deposition takenupon reasonable notice to the other parties, sofar as otherwise admissible under the rules ofevidence, may be read in evidence before anymilitary court or commission in any case notcapital, or in any proceeding before a court ofinquiry or military board, if it appears-

Page 165 § 849


(1) that the witness resides or is beyond theState, Territory, Commonwealth, or Districtof Columbia in which the court, commission,or board is ordered to sit, or beyond 100 milesfrom the place of trial or hearing;

(2) that the witness by reason of death, age,sickness, bodily infirmity, imprisonment, mili-tary necessity, nonamenability to process, orother reasonable cause, is unable or refuses toappear and testify in person at the place oftrial or hearing; or

(3) that the present whereabouts of the wit-ness is unknown.

(e) Subject to subsection (d), testimony bydeposition may be presented by the defense incapital cases.

(f) Subject to subsection (d), a deposition maybe read in evidence in any case in which thedeath penalty is authorized but is not manda-tory, whenever the convening authority directsthat the case be treated as not capital, and insuch a case a sentence of dcath may not be ad-Judged by the court-martial.




849(a) ........ 50:624(a). May 5. 1950. ch. 169, J I849(b) ........ 50:624(b). (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 insert-ed for clarity.

In subsection (d), the word "Commonwealth" is in-serted 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" areomitted as surplusage.

In subsections (e) and (f), the words "the require-ments of" and the words "of this article" are omittedas surplusage. The word "presented" is substituted forthe word "adduced" in subsection (e).

In subsection (f), the word "directs" is substitutedfor the words "shall have directed". The words "bylaw" are omitted as surplusage.

AMENDMENTS

1968-Subsec. (a). Pub. L. 90-632 inserted referenceto the taking of depositions being forbidden by themilitary judge or the court-martial without a militaryjudge if the case is being heard.



CROSS REFERENCES

Authority competent to convene court-martial, seesections 822 to 824 of this title.

Officers authorized to administer oaths, see section936 of this title.

§ 850. Art. 50. Admissibility of records of courts of in-quiry

(a) In any case not capital and not extendingto the dismissal of a commissioned officer, the

sworn testimony, contained in the duly authen-ticated record of proceedings of a court of in-quiry, of a person whose oral testimony cannotbe obtained, may, if otherwisr admissible underthe rules of evidence, be read in evidence byany party before a court-martial or militarycommission if the accused was a party beforethe court of inquiry and if the same issue wasinvolved or if the accused consents to the intro-duction of such evidence.

(b) Such testimony may be read in evidenceonly by the defense in capital cases or cases ex-tending to the dismissal of a commissioned offi-cer.

(c) Such testimony may also be read in evi-dence before a court of inquiry or a militaryboard.

(Aug. 10, 1956, ch. 1041, 70A Stat. 54.)



850(a) . 50:625(a). May 5, 1050. ch. 169, ii850(b) . 50:625(b). (Art. 50). 64 Stat. 124.850(c) . 50:625(c).

In subsections (a) and (b), the word "commissioned"is inserted for clarity.

CROSS REFERZNCES

Courts of inquiry, see section 935 of this title.Judge Advocate Generals of Army and Air Force to

receive, revise, and have recorded proceedings ofcourts of inquiry, see sections 3037, 8072 of this title.

§ 851. Art. 51. Voting and rulings

(a) Voting by members of a general or specialcourt-martial on the findings and on the sen-tence, and by members of a court-martial with-out a military judge upon questions of chal-lenge, shall be by secret written ballot. Thejunior member of the court shall count thevotes. The count shall be checked by the presi-dent, who shall forthwith announce the resultof the ballot to the members of the court.

(b) The military judge and, except for ques-tions of challenge, the president of a court-mar-tial without a military judge shall rule upon allquestions of law and all interlocutory questionsarising during the proceedings. Any such rulingmade by the military judge upon any questionof law or any interlocutory question other thanthe factual issue of mental responsibility of theaccused, or by the president of a court-martialwithout a military judge upon any question oflaw other than a motion for a finding of notguilty, is final and constitutes the ruling of thecourt. However, the military judge or the presi-dent of a court-martial without a military judgemay change his ruling at any time during trial.Unless the ruling is final, if any member objectsthereto, the court shall be cleared and closedand the question decided by a voice vote as pro-vided in section 852 of this title (article 52), be-ginning with the junior in rank.

(c) Before a vote is taken on the findings, themilitary judge or the president of a court-mar-tial without a military Judge shall, in the pres-ence of the accused and counsel, instruct the

§ 850 Page 106


members of the court as to the elements of theoffense and charge them-

(1) that the accused must be presumed to beinnocent until his guilt is established by legaland competent evidence beyond reasonabledoubt;

(2) that in the case being considered, ifthere is a reasonable doubt as to the guilt ofthe accured, the doubt must be resolved infavor of the accused and he must be acquit-ted;

(3) that, if there is a reasonable doubt as tothe degree of guilt, the finding must be in alower degree as to which there is no reason-able doubt; and

(4) that the burden of proof to establish theguilt of the accused beyond reasonable doubtis upon the United States.

(d) Subsections (a), (b), and (c) do not applyto a court-martial composed of a military judgeonly. The military judge of such a court-martialshall determine all questions of law and factarising during the proceedings and, if the ac-cused is convicted, adjudge an appropriate sen-tence. The military judge of such a court-mar-tial shall make a general finding and shall inaddition on request find the facts specially. Ifan opinion or memorandum of decision is filed,it will be sufficient if the findings of factappear therein.




851(a) ........ 50:626(a). May 5, 1950, ch. 169, I 1851(b) . 50:626(b). (Art. 51), 64 Stat. 124.851(c) . 50:26(c).

In subsection (a), the words "in each case" are omit-ted as surplusage.

In subsection (b), the word "is" is substituted for thewords "shall be" in the second sentence. The word"constitutes" is substituted for the words "shall con-stitute". The word "However," is substituted for theword "bt". The word "his" is substituted for thewords "any such". The words "the ruling is" are sub-stituted for the words "such ruling be". The words"voice vote" are substituted for the words "voteviva voce".

In subsection (c), the word "must" is substituted forthe word "shall" in clause (2), since a condition is pre-scribed, not a command. The woids "United States"are substituted for the word "Government".

AMENDMENTS

1968-Subsec. (a). Pub. L. 90-632, J 2(21)(A), limitedthe balloting on the question of challenges to courts-martial without military judges.

Subsec. (b). Pub. L. 90-632, J 2(21)(B), substituted"military judge" for "law officer" and inserted refer-ence to the military Judge's ruling upon challenges forcause when a military Judge is part of a court-martialand reference to questions of law.

Subsee. (c). Pub. L. 90-632, 1 2(21)(C), substituted"military Judge" for "law officer" and made minorchanges in phraseology eliminating the division be-tween general and special court-martials.

Subsec, d). Pub. L. 90-632, § 2(21)(D), added subsec.(d).



CRoss REFERENCES

Military Judge prohibited from voting, see section826 of this title.

§ 852. Art. 52. Number of votes required

(a)(1) No person may be convicted of an of-fense for which the death penalty is made man-datory by law, except by the concurrence of allthe members of the court-martial present atthe time the vote is taken.

(2) No person may be convicted of any otheroffense, except as provided in section 845(b) ofthis title (article 45(b)) or by the concurrenceof two-thirds of the members present at thetime the vote is taken.

(b)(1) No person may be sentenced to sufferdeath, except by the concurrence of all themembers of the court-martial present at thetime the vote i taken and for an offense in thischapter expressly made punishable by death.

(2) No person may be sentenced to life impris-onment or to confinement for more than tenyears, except by the concurrence of three-fourths of the members present at the time thevote is taken.

(3) All other sentences shall be determined bythe concurrence of two-thirds of the memberspresent at the time the vote is taken.

(c) All other questions to be decided by themembers of a general or special court-martialshall be determined by a majority vote, but adetermination to reconsider a finding of guiltyor to reconsider a sentence, with a view towarddecreasing it, may be made by any lesser votewhich indicates that the reconsideration is notopposed by the number of votes required forthat finding or sentence. A tie vote on a chal-lenge disqualifies the member challenged. A tievote on a motion for a finding of not guilty oron a motion relating to the question of the ac-cused's sanity is a determination against the ac-cused. A tie vote on any other question is a de-termination in favor of the accused.

(Aug. 10, 1956, ch. 1041, 70A Stat. 55; Oct. 24,1968, Pub. L. 90-632, § 2(22), 82 Stat. 1340,)



852(a) . 50;627(a). May 5, 1950. ch. 169, 11852(b) . 50:627(b) (Art. 52), 64 Stat. 125.852(c) ......... 50:627(c).

In subsections (a) and (b), the word "may" is substi-tuted for the word "shall".

In subsection (b)(2), the words "for more than" aresubstituted for the words "in excess of".

In subsection (c), the word "disqualifies" is substi-tuted for the words "shall disqualify". The word "is" issubstituted for the words "shall be" in the last twosentences.

Page 167 § 852


AMENDMENTS

1968-Subsec. (a)(2). Pub. L. 90-632, § 2(22)(A),added reference to the exception provided in section845(b) of this title (article 45(b)).

Subsec. (c). Pub. L. 90-632, § 2(22)(B), provided thata determination to reconsider a finding of guilty or toreconsider a sentence, with a view toward decreasingit, may be made by a vote of less than a majority votewhich indicates that the reconsideration is not op-posed by the number of votes required for that findingor sentence.



CROSS REFERENCES

Objections to rulings, voice vote on, see section 851of this title.



§ 853. Art. 53. Court to announce action

A court-martial shall announce its findingsand sentence to the parties as soon as deter-mined.

(Aug. 10, 1956, ch. 1041, 70A Stat. 56.)


Revised Source S. Code) Source (Statutes atsection Large)

853 ............. 50:628. May 5. 1950. ch. 169. 11(Art. 53). 64 Stat. 125.

The word "A" is substituted for the word "Every".

§ 854. Art. 54. Record of trial

(a) Each general court-martial shall keep aseparate record of the proceedings in each casebrought before it, and the record shall be auth-enticated by the signature of the militaryjudge. If the record cannot be authenticated bythe military judge by reason of his death, dis-ability, or absence, it shall be authenticated bythe signature of the trial counsel or by that ofa member if the trial counsel is unable to au-thenticate it by reason of his death, disability,or absence. In a court-martial consisting of onlya military Judge the record shall be authenti-cated by the court reporter under the same con-ditions which would impose such a duty on amember under this subsection. If the proceed-ings have resulted in an acquittal of all chargesand specifications or, if not affecting a generalor flag officer, in a sentence not including dis-charge and not in excess of that which mayotherwise be adjudged by a special court-mar-tial, the record shall contain such matters asmay be prescribed by regulations of the Presi-dent.

(b) Each special and summary court-martialshall keep a separate record of the proceedingsin each case, and the record shall contain thematter and shall be authenticated in themanner required by such regulatlons as thePresident may prescribe.

(c) A copy of the record of the proceedings ofeach general and special court-martial shall be

given to the accused as soon as it is authenticat-ed.



Revised Soure (S Code) Source (Statutes atsection Large)

854(a) . 50:629(a) May 5. 1950. ch. 169 § 1854(b) ........ 50:629(b). (Art. 54). 64 Stat. 125.854(c) ......... 50:629(c).

In subsection (a), the word "If" is substituted for thewords "In case". The words "any of those" are substi-tuted for the word "such" in the last sentence.

In subsection (b), the words "and the" are substitut-ed for the word "which" before the word "record".The words "the matter and shall be authenticated inthe manner required by such regulations as" are sub-stituted for the words "such matter and be authenti.cated in such manner as may be required by regula-tions which".

In subsection (c), the words "it is" are insertedbefore the word "authenticated".

AMENDMENTS

1968-Subsec. (a). Pub. L. 90-632 provided for au-thentication of a record of trial by general court-mar-tial by the signature of the military judge, for alter-nate methods of authentication if the military judgefor specified reasons is unable to authenticate it. forauthentic.tion when a court-martial consists only of amilitary judge, and for sumarized records el trial inspecified cases.



CROSS REFERENCES

Courts of inquiry, see section 935 of this title.

SUBCHAPTER VIII-SENTENCES

Sec. Art.

855. 55.

856. 56.857. 57.858. 58.858a. 58a.

Cruel and unusual punishments prohibit-ed.

Maximum limits.Effective date of sentences.Execution of confinement.Sentences: reduction in enlisted grade

upon approval.

AMENDMENTS

1960-Pub. L. 86-633, J 1(2), July 12, 1960, 74 Stat.468, added item 858a.

§ 855. Art. 55. Cruel and unusual punishments prohib-Ited

Punishment by flogging, or by branding,marking, or tattooing on the body, or any othercruel or unusual punishment, may not be ad-judged by any court-martial or inflicted uponany person subject to this chapter. The use ofirons, single or double, except for the purposeof safe custody, is prohibited.

(Aug. 10, 1956, ch. 1041, 70A Stat. 56.)

§853 Page 168



Revised Source (US Code) Source (Statutes atsection ILarge)


Revised Source (U.S. Code) Source (Statutes atsection I I Large)

855 ............. 50:636. May 5, 1950. ch. 169, 91 857(a) . 50:638(a).(Art. 55). 64 Stat. 126. 857(b)...50:638(b).

857(c) ......... 50:638(c).

May 5. 1950. ch, 169. 11(Art. 57), 64 Stat. 126.


CROSS REFERENCES

Article to be explained, see section 937 of this title.Constitutional limitation, sce Const. Amend. B.


This section is referred to in section 937 of this title,

§ 856. Art. 56. Maximum limits

The punishment which a court-mirtial maydirect for an offense may not exceed suchlimits as the President may prescribe for thatoffense.

(Aug. 10. 1956, ch. 1041, 70A Stat. 56.)



856 ............. 50:637. May 5. 1950. cl. 169, J 1(Art. 56), 64 Stat. 126.


§ 857. Art. 57. Effective date of sentences

(a) Whenever a sentence of a court-martial aslawfully adjudged and approved includes a for-feiture of pay or allowances in addition to con-finement not suspended or deferred, the for-feiture may apply to pay or allowances becom-ing due on or after the date the sentence is ap-proved by the convening authority. No forfeit-ure may extend to any pay or allowances ac-crued before that date.

(b) Any period of confinement included in asentence of a court-martial begins to run fromthe date the sentence is adjudged by the court-martial, but periods during which the sentenceto confinement is suspended or deferred shallbe excluded in computing the service of theterm of confinement.

(c) All other sentences of courts-martial areeffective on the date ordered executed.

(d) On application by an accused who isunder sentence to confinement that has notbeen ordered executed, the convening authorityor, if the accused is no longer under his Juris-diction, the officer exercising general court-martial Jurisdiction over the command to whichthe accused is currently assigned, may in hissole discretion defer service of the sentence toconfinement. The deferment shall terminatewhen the sentence is ordered executed. The de-ferment may be rescinded at any time by theofficer who granted it or, if the accused is nolonger under his jurisdiction, by the officer ex-ercising general court-martial Jurisdiction overthe command to which the accused is currentlyassigned.


In subsection (a), the word "may" is substituted forthe word "shall".

In subsection (b). the word "begins" is substitutedfor the words "shall begin".

In subsection (c), the word "are" is substituted forthe words "shall become".

AMENDMENTS

1968-Subsee. (a). Pub. L. 90-632 inserted referenceto deferral of sentence of confinement.

Subsec. (b). Pub. L. 90-632 added reference to defer-ral of sentence of confinement.

Subsec. (d). Pub. L. 90-632 added subsec. (d).


Amendment by Pub. L. 90-632 effective on the firstday of the tenth month following October 1968, seesection 4 of Pub. L. 90-632, set out as a note under sec-tion 801 of this title,

CROSS REFERENCES

Delivery of offenders to civil authorities, see section814 of this title.

Enlisted members' deposits not subject to forfeitureby sentence of court-martial, see section 1035 of thistitle.

Enlisted members required to make up lost time, seesection 972 of this title.

Punishment prohibited before trial, see section 813of this title.

§ 858. Art. 58. Execution of confinement

(a) Under such instructions as the Secretaryconcerned may prescribe, a sentence of confine-ment adjudged by a court-martial or other mili-tary tribunal, whether or not the sentence in-cludes discharge or dismissal, and whether ornot the discharge or dismissal has been execut-ed, may be carried into execution by confine-ment in any place of confinement under thecontrol of any of the armed forces or in anypenal or correctional institution under the con-trol of the United States, or which the UnitedStates may be allowed to use. Persons so con-fined in a penal or correctional institution notunder the control of one of the armed forcesare subject to the same discipline and treat-ment as persons confined or committed by thecourts of the United States or of the State, Ter-ritory, District of Columbia, or place in whichthe institution is situated.

(b) The omission of the words "hard labor"from any sentence of a court-martial adjudgingconfinement does not deprive the authority ex-ecuting that sentence of the power to requirehard labor as a part of the punishment.

(Aug. 10, 1956, ch. 1041, 70A Stat. 57.)


Revised Source (U.S. Code) Source (Statutes atsection S Large?

858(a) . 50:639(a). May 5, 1950. ch. 169, 11858(b) ........ 5 Art. 58). 64 Stat. 126.

Page 169 § 858


In subsection (a), the words "Secretary concerned"are substituted for the words "Department con-cerned", since the "Department" as an entity, cannotissue instructions. The word "are" is substituted forthe words "shall be". The words "of Columbia" are in-serted after "District" for clarity.

In subsection (b), the word "from" is substituted forthe word "in". The words "does not deprive" are sub-stituted for the words "shall not be construed as de-priving".

DONATION UPON RELEASE FROM CONFINEMENT ORDISCHARGE FOR FRAUDULENT ENLISTMENT

Provisions making appropriations of the Depart-ment of Defense for specific fiscal years available forpayment of donations of not to exceed a specifiedamount to each prisoner upon each release from con-finement in military or contract prison and to eachperson discharged for fraudulent enlistment were con-tained in the following appropriation acts:

Dec. 21, 1982, Pub. L. 97-377, title I, § 101(c) (titleVII. § 709J, 96 Stat. 1833, 1851.

Dec. 29. 1981, Pub. L. 97-114, title VII, § 709, 95 Stat.1579.

Dec. 15. 1980, Pub. L. 96-527. title VII, § 709, 94 Stat.3081.

Dec. 21, 1979, Pub. L. 96-154, title VII, § 709, 93 Stat.1153.

Oct. 13, 1978, Pub. L. 95-457, title VIII, § 809. 92Stat, 1244.

Sept. 21, 1977, Pub. L. 95-111, title VIII, §808, 91Stat. 900.

Sept. 22, 1976, Pub. L. 94-419, title VII. § 708, 90Stat. 1292.

Feb. 9, 1976, Pub. L. 94-212, title VII, § 708, 90 Stat.169.

Oct. 8, 1974. Pub. L. 93-437, title VIII, § 808, 88 Stat.1225.

Jan. 2, 1974, Pub. L. 93-238, title VII, § 708, 87 Stat.1039.

Oct. 26, 1972, Pub. L. 92-570, title VII, § 708. 86 Stat.1197.

Dec. 18, 1971, Pub. L. 92-204, title VII, I 708, 85 Stat.728.

Jan. 11, 1971, Pub. L. 91-668, title VIII, §808, 84Stat. 2031.

Dec. 29, 1969, Pub. L. 91-171, title VI, § 608, 83 Stat.480.

Oct. 17, 1968, Pub. L. 90-580, title V, § 507, 82 Stat.1130.


Oct. 15, 1966, Pub. L. 89-687, title VI, § 607, 80 Stat.991.


Aug. 19, 1964, Pub. L. 88-446, title V, § 507, 78 Stat.475.

Oct. 17, 1963, Pub. L. 88-149, title V, 1 507, 77 Stat.264.

Aug. 9, 1962, Pub. L. 87-577. title V. 1 507, 76 Stat.328.

Aug. 17, 1961, Pub. L. 87-144. title VI, § 607, 75 Stat.376.

July 7. 1960, Pub. L. 86-601, title V, I 507. 74 Stat.350.

Aug. 18, 1959, Pub. L. 86-166. title V, j 607, 73 Stat.379.

Aug. 22, 1958, Pub. L. 85-724. title III. § 301, title V,§ 501, 72 Stat. 713, 722.

Aug. 2, 1957, Pub. L. 85-117, title III, § 301, title V,§ 501, 71 Stat. 313, 321.

July 2. 1956, ch. 488, title III, 301, title V, 1 501, 70Stat. 456, 465.

July 13, 1955, ch. 358, title II, 301. title V, j 501, 69Stat. 303, 313.

June 30, 1954, ch. 432, title IV, § 401, title VI, § 601,68 Stat. 339, 348.

Aug. 1. 1953, ch. 305, title III, § 301. title V, § 501. 67Stat. 338, 348.

July 10, 1952, ch. 630, title III, 301, title V. 1501, 66Stat. 519, 530.

Oct. 18, 1951, ch. 512, title III, 1 301, title V. § 501, 65Stat. 426, 443.

Sept. 6, 1950, ch. 896, ch. X, title III, § 301, title V,I 501, 64 Stat. 732, 750.

Oct. 29, 1949, ch. 787, title III, § 301, title V, § 501, 63Stat. 991, 1015.

June 24. 1948, ch. 632, 62 Stat. 653.July 30, 1947, ch. 357, title 1, § 1, 61 Stat. 555.July 16, 1946, ch. 583, § 1, 60 Stat. 546.July 3, 1945, ch. 265, § 1, 59 Stat. 389.June 28, 1944. ch. 303, § 1. 58 Stat. 578.July 1, 1943, ch. 187, § 1, 57 Stat. 352.July 2, 1942, ch. 477, I1, 56 Stat. 615.June 30, 1941, ch. 262, I1, 55 Stat. 371.June 13, 1940, ch. 343, §1, 54 Stat. 357.Apr. 26, 1939, ch. 88, 11. 53 Stat. 598.June 11, 1938, ch, 34, §1. 52 Stat. 648.July 1, 1937, ch. 423, §1, 50 Stat. 448.May 15, 1936, ch. 404, § 1, title I, 49 Stat. 1284.Apr. 9. 1935, ch. 54, §1, title I, 49 Stat. 127.Apr. 26, 1934, ch. 165, title I, 48 Stat. 619.Mar. 4, 1933, ch. 281, title I, 47 Stat. 1575.July 14, 1932, ch. 482, title I, 47 Stat. 668.Feb. 23, 1931, ch. 279, title I, 46 Stat. 1282.May 28, 1930. ch. 348, title I, 46 Stat. 436.Feb. 28, 1929, ch. 366, title I, 45 Stat. 1354.Mar. 23, 1928, ch. 232, title 1, 45 Stat. 330.Feb. 23, 1927, ch. 167, title I, 44 Stat. 1110.Apr. 15, 1926, ch. 146, title I, 44 Stat. 259.

CROSS REFERENCES

Enlisted members required to make up lost time, seesection 972 of this title.

Penitentiary imprisonment, consent, see section 4083of Title 18, Crimes and Criminal Procedure.

Prisons and prisoners, see section 4001 et seq. ofTitle 18.

§ 858a. Art. 58a. Sentences: reduction in enlistedgrade upon approval

(a) Unless otherwise provided in regulationsto be prescribed by the Secretary concerned, acourt-martial sentence of an enlisted member ina pay grade above E-1, as approved by the con-vening authority, 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, effec-tive on the date of that approval.

(b) If the sentence of a member who is re-duced in pay grade under subsection (a) is setaside or disapproved, or, as finally approved,does not include any punishment named in sub-section (a)(1), (2), or (3), the rights and privi-leges of which he was deprived because of thatreduction shall be restored to him and he is en-titled to the pay and allowances to which hewould have been entitled, for the period the re-duction was in effect, had he not been so re-duced.

(Added Pub. L. 86-633. § 1(1), July 12, 1960, 74Stat. 468.)



Page 170§ 858a


Sec.859.860.861.862.863.864.865.

866.867.868.869.

870.871.

872.873.874.875.876.

876a.

SUBCHAPTER IX-REVIEW OFCOURTS-MARTIAL

Art.

59. Error of law; lesser included offense.60. Initial action on the record.61. Same-General court-martial records.62. Reconsideration and revision.63. Rehearings.64. Approval by the convening authority.65. Disposition of records after review by the

convening authority.66. Review by Court of Military Review.67. Review by the Court of Military Appeals.68. Branch offices.69. Review in the office of the Judge Advo-

cate General.70. Appellate counsel.71. Execution of sentence; suspension of sen-

tence.72. Vacation of suspension.73. Petition for a new trial.74. Remission and suspension.75. Restoration.76. Finality of proceedings, findings, and sen-

tences.76a. Leave required to be taken pending

review of certain court-martial convic-tions.

AMENDMENTS

1981-Pub. L. 97-81, § 2(c)(2), Nov. 20, 1981, 95 Stat.1087, added item 876a.

1968-Pub. L. 90-632, J 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-martialmay not be held incorrect on the ground of anerror of law unless the error materially preju-dices the substantial rights of the accused.

(b) Any reviewing authority with the powerto approve or affirm a finding of guilty may ap-prove or affirm, instead, so much of the findingas includes a lesser included offense.

(Aug. 10, L956, ch. 1041, 70A Stat. 57.)


Revised Source (Statutes asection

Large)

859(a) ........ 50:646(a). May 5, 1950, ch. 169. 31859(b) ........ 50:646(b). t 59), 64 Stat. 127.


§ 860. Art. 60. Initial action on the record

After a trial by court-martial the record shallbe forwarded to the convening authority, andaction thereon may be taken by the person whoconvened the court, a commissioned officercommanding for the time being, a successor incommand, or any officer exercising generalcourt-martial jurisdiction.

(Aug. 10, 1956, ch. 1041, 70A Stat. 57.)



860 ............. 50:647. May 5, 1950. ch. 169, 31(Art. 60), 64 Stat. 127.

The word "a" is substituted for the word "every".The word "by" before the words "any officer" is omit-ted as surplusage. The word "person" is substitutedfor the word "officer" before the words "who con-vened", since, under sections 823 and 824 of this title(articles 23 and 24), noncommissioned officers who are"officers in charge" may convene special and summarycourts-martial.

CROSS REFERENCES

Authority to convene general, special or summarycourts-martial, see sections 822 to 824 of this title.

Record of trial, see section 854 of this title.

§ 861. Art. 61. Same-General court-martial records

The convening authority shall refer therecord of each general court-martial to his staffJudge advocate or legal officer, who shallsubmit his written opinion thereon to the con-vening authority. If the final action of thecourt has resulted in acquittal of all chargesand specifications, the opinion shall be limitedto questions of Jurisdiction and shall be for-warded with the record to the Judge AdvocateGeneral of the armed force of which the ac-cused is a member.

(Aug. 10, 1956, ch. 1041, 70A Stat. 58.)



861 ....... 50:648. May 5, 1950, ch. 169, 31(Art. 61), 64 Stat. 127.

The word "each" is substituted for the word "every".

§ 862. Art. 62. Reconsideration and revision

(a) If a specification before a court-martialhas been dismissed on motion and the rulingdoes not amount to a finding of not guilty, theconvening authority may return the record tothe court for reconsideration of the ruling andany further appropriate action.

(b) Where there is an apparent error or omis-sion in the record or where the record showsimproper or inconsistent action by a court-mar-tial with respect to a finding or sentence whichcan be rectified without material prejudice tothe substantial rights of the accused, the con-vening authority may return the record to thecourt for appropriate action. In no case, howev-er, may the record be returned-

(1) for reconsideration of a finding of notguilty of any specification, or a ruling whichamounts to a finding of not guilty;

(2) for reconsideration of a finding of notguilty of any charge, unless the record showsa finding of guilty under a specification laidunder that charge, which sufficiently allegesa violation of some article of this chapter; or

§ 862Page 171


(3) for increasing the severity of the sen-tence unless the sentence prescribed for theoffense is mandatory.

(Aug. 10, 1956, ch. 1041, 70A Stat. 58.)



862(a) ........ 50:649(a). May 5, 1950, ch. 169, 8 1862(b) ........ 50:649(b). (Art. 62), 64 Stat. 127.

§ 863. Art. 63. Rehearings

(a) If the convening authority disapprovesthe findings and sentence of a court-martial hemay, except where there is lack of sufficientevidence in the record to support the findings,order a rehearing. In such a case he shall statethe reasons for disapproval. If he disapprovesthe findings and sentence and does not order arehearing, he shall dismiss the charges.

(b) Each rehearing shall take place before acourt-martial composed of members not mem-bers of the court-martial which first heard thecase. Upon a rehearing the accused may not betried for any offense of which he was found notguilty by the first court-martial, and no sen-tence in excess of or more severe than the origi-nal sentence may be imposed, unless the sen-tence is based upon a finding of guilty of an of-fense not considered upon the merits in theoriginal proceedings, or unless the sentence pre-scribed for the offense is mandatory.

(Aug. 10, 1956, ch. 1041, 70A Stat. 58.)


Revised Source (U.S. Code) source (Statutes atsection o . d Large)

863(a) . 50:650(a). May 5, 1950. ch. 169, 8 1863(b) ....... 50:650(b). (Art. 63), 64 Stat. 127.

In subsection (a), the words "In such a" are substi-tuted for the words "in which".

In subsection (b), the word "Each" is substituted forthe word "Every". The word "may" is substituted forthe word "shall" in the second sentence.

§ 864. Art. 64. Approval by the convening authority

In acting on the findings and sentence of acourt-martial, the convening authority may ap-prove only such findings of guilty, and the sen-tence or such part or amount of the sentence,as he finds correct in law and fact and as he inhis discretion determines should be approved.Unless he indicates otherwise, approval of thesentence is approval of the findings and sen-tence.

(Aug. 10, 1956, ch. 1041, 70A Stat. 58.)


R e v i e d S u c U S o esection

864 .. 50:651.

Source (Statutes atLarge)

May 5, 1950. ch. 169, 81(Art. 64), 64 Stat. 128.

CROSS REFERENCES

Disapproval by the convening authority, see section863 of this title.


This section is referred to in section 876a of thistitle.

§ 865. Art. 65. Disposition of records after review bythe convening authority

(a) When the convening authority has takenfinal action in a general court-martial case, heshall send the entire record, including hisaction thereon and the opinion or opinions ofthe staff Judge advocate or legal officer, to theappropriate Judge Advocate General.

(b) If the sentence of a special court-martialas approved by the convening authority in-cludes a bad-conduct discharge, whether or notsuspended, the record shall be sent to the offi-cer exercising general court-martial Jurisdictionover the command to be reviewed in the samemanner as a record of trial by general court-martial or directly to the appropriate Judge Ad-vocate General to be reviewed by a Court ofMilitary Review. If the sentence as approved byan officer exercising general court-martial ju-risdiction includes a bad-conduct discharge,whether or not suspended, the record shall besent to the appropriate Judge Advocate Gener-al to be reviewed by a Court of Military Review.

(c) All other special and summary court-mar-tial records shall be reviewed by a judge advo-cate of the Army, Navy, Air Force, or MarineCorps, or a law specialist or lawyer of the CoastGuard or Department of Transportation, andshall be transmitted and disposed of as the Sec-retary concerned may prescribe by regulation.

(Aug. 10, 1956, ch. 1041, 70A Stat. 59; Dec. 8,1967, Pub. L. 90-179, § 1(6), 81 Stat. 546; Oct. 24,1968, Pub. L. 90-632, § 2(26), 82 Stat. 1341; Dec.12, 1980, Pub. L. 96-513, title V, § 511(25), 94Stat. 2922.)



885(a) ........ 50:652(a). May 5, 1950, ch. 169, j 1865(b) ........ 50:052(b). (Art. 65), 64 Stat. 128.865(c) ......... 50:652(c).

In subsection (b), the word "If" is substituted for theword "Where".

In subsections (a) and (b), the words "send" and"sent" are substituted for the words "forward" and"forwarded", respectively.

In subsection (c), the words "Secretary concerned"are substituted for the words "Secretary of the De-partment".

AMENDMENTS

1980-Subsec. (c). Pub. L. 96-513 substituted "De-partment of Transportation" for "Department of theTreasury".

1968-Subsec. (b). Pub. L. 90-632 substituted "Courtof Military Review" for "board of review" whereverappearing.

1967-Subsec. (c). Pub. L. 90-179 inserted referenceto Judge advocate of the Marine Corps and substitutedreference to Judge advocate of the Navy for referenceto law specialist of the Navy.

The word "may" Is substituted for the word "shall".The word "Is" is substituted for the words "shall con-stitute".

§ 863 Page 172



Amendment by Pub. L. 96-513 effective Dec. 12.1980, see section 701(b)(3) of Pub. L. 96-513, set out asan Effective Date of 1980 Amendment note under sec-tion 101 of this title.



SECTInN REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 869, 876a ofthis title.

§ 866. Art. 66. Review by Court of Military Review

(a) Each Judge Advocate General shall estab-lish a Court of Military Review which shall becomposed of one or more panels, and each suchpanel shall be composed of not less than threeappellate military judges. For the purpose ofreviewing court-martial cases, the court may sitin panels or as a whole in accordance with rulesprescribed under subsection (f). Appellate mili-tary judges who are assigned to a Court of Mili-tary Review may be commissioned officers or ci-vilians, each of whom must be a member of abar of a Federal court or of the highest court ofa State. The Judge Advocate General shall des-ignate as chief judge one of the appellate mili-tary judges of the Court of Military Review es-tablished by him. The chief judge shall deter-mine on which panels of the court the appel-late judges assigned to the court will serve andwhich military judge assigned to the court willact as the senior judge on each panel.

(b) The Judge Advocate General shall referto a Court of Military Review the record inevery case of trial by court-martial in which thesentence, as approved, affects a general or flagofficer or extends to death, dismissal of a com-missioned officer, cadet, or midshipman, dis-honorable or bad-conduct discharge, or confine-ment for one year or more.

(c) In a case referred to it, the Court of Mili-tary Review may act only with respect to thefindings and sentence as approved by the con-vening authority. It may affirm only such find-ings of guilty, and the sentence or such part oramount of the sentence, as it finds correct inlaw and fact and determines, on the basis of theentire record, should be approved. In consider-ing the record, it may weigh the evidence, judgethe credibility of witnesses, and determine con-troverted questions of fact, recognizing that thetrial court saw and heard the witnesses.

(d) If the Court of Military Review sets asidethe findings and sentence, it may, except wherethe setting aside is based on lack of sufficientevidence in the record to support the findings,order a rehearing. If it sets aside the findingsand sentence and does not order a rehearing, itshall order that the charges be dismissed.

(e) The Judge Advocate General shall, unlessthere is to be further action by the President,the Secretary concerned, or the Court of Mili-tary Appeals, instruct the convening authorityto take action in accordance with the decisionof the Court of Military Review. If the Court ofMilitary Review has ordered a rehearing but

the convening authority finds a rehearing im-practicable, he may dismiss the charges.

(f) The Judge Advocates General shall pre-scribe uniform rules of procedure for Courts ofMilitary Review and shall meet periodically toformulate policies and procedure in regard toreview of court-martial cases in the offices ofthe Judge Advocates General and by Courts ofMilitary Review.

(g) No member of a Court of Military Reviewshall be required, or on his own initiative bepermitted, to prepare, approve, disapprove,review, or submit, with respect to any othermember of the same or another Court of Mili-tary Review, an effectiveness, fitness, or effi-ciency report, or any, other report or documentused in whole or in part for the purpose of de-termining whether a member of the armedforces is qualified to be advanced in grade, or indetermining the assignment or transfer of amember of the armed forces, or in determiningwhether a member of the armed forces shouldbe retained on active duty.

(h) No member of a Court of Military Reviewshall be eligible to review the record of anytrial if such member served as investigating of-ficer in the case or served as a member of thecourt-martial before which such trial was con-ducted, or served as military judge, trial or de-fense counsel, or reviewing officer of such trial.




866(a) ........ 50:653(a). May 5, 1950, ch. 169, I 1866(b)., 50:653(b). (Art, 66). 64 Stat. 128.866(c) ......... 50:653(c).866(d) ........ 50:653(d).806(e) ....... 50:653(e).866(f) ........ 50:653(f).

In subsection (a), the word "Each" is substituted forthe words "The * " * of each of the armed forces".The word "must" is substituted for the word "shall"after the word "whom", since a condition is prescribed,not a command. The words "of the United States" areomitted as surplusage.

In subsections (a) and (b), the word "commissioned"is inserted before the word "officer".

In subsection (c), the word "may" is substituted forthe word "shall" and for the words "shall have au-thority to".

In subsection (e), the words "Secretary concerned"are substituted for the words "Secretary of the De-partment".

In subsection Cf), the words "of the armed forces"and "proceedings in and before" are omitted as sur-plusage.

AMENDMENTS

1968-Subsec. (a). Pub. L. 90-632, § 2(27)(A), (B),substituted "Court of Military Review" for "board ofreview" in the section catchline and, in subsec. (a),substituted "Court of Military Review" for "board ofreview" as the name of the reviewing body establishedby each Judge Advocate General, and added provisionssetting out the procedures for such Courts of MilitaryReview, their composition and functions.

Subsecs. Cb) to (e). Pub. L. 90-632, 1 2(27)(C), substi-tuted "Court of Military Review" for "board ofreview" wherever appearing.

Page 173 §} 866


Subsec. (M. Pub. L. 90-632, 1 2(27)(D), substituted"Courts of Military Review" for "boards of review" intwo instances.

Subsecs. (g), (h). Pub. L. 90-632, § 2(27)(E), addedsubsecs. (g) and (h).



STATUTORY REFERENCES TO BOARD OF REVIEW DEEMEDREFERENCES TO COURT OF MILITARY REVIEW

Section 3(b) of Pub. L. 90-632 provided that: "When-ever the term board of review is used, with referenceto or in connection with the appellate review ofcourts-martial cases, in any provision of Federal law(other than provisions amended by this Act) [seeShort Title of 1968 Amendment note under section 801of this title] or in any regulation, document, or recordof the United States, such term shall be deemed tomean Court of Military Review."

CROSS REFERENCES

Review in the office of the Judge Advocate General,see section 869 of this title.



§ 867. Art. 67. Review by the Court of Military Ap-peals

(a)(1) There is a United States Court of Mili-tary Appeals established under article I of theConstitution of the United States and locatedfor administrative purposes only in the Depart-ment of Defense. The court consists of threejudges appointed from civil life by the Presi-dent, by and with the advice and consent of theSenate, for a term of fifteen years. Not morethan two of the judges of the court may be ap-pointed from the same political party, nor isany person eligible for appointment to thecourt who is not a member of the bar of a Fed-eral court or the highest court of a State. Eachjudge is entitled to the same salary and travelallowances as are, and from time to time maybe, provided for judges of the United StatesCourt of Appeals, and is eligible for reappoint-ment. The President shall designate from timeto time one of the judges to "ct as chief judge.The chief judge of the court shall have prece-dence and preside at any session which he at-tends. The other judges shall have precedenceand preside according to the seniority of theircommissions. Judges whose commissions bearthe same date shall have precedence accordingto seniority in age. The court may prescribe itsown rules of procedure and determine thenumber of judges required to constitute aquorum. A vacancy in the court does not impairthe right of the remaining judges to exercisethe powers of the court.

(2) Judges of the United States Court of Mili-tary Appeals may be removed by the President,upon notice and hearing, for neglect of duty ormalfeasance in office, or for mental or physicaldisability, but for no other cause.

(3) If a judge of the United States Court ofMilitary Appeals is temporarily unable to per-form his duties because of illness or other dis-

ability, the President may designate a judge ofthe United States Court of Appeals for the Dis-trict of Columbia to fill the office for theperiod of disability.

(4) Any Judge of the United States Court ofMilitary Appeals who is receiving retired paymay become a senior judge, may occupy officesin a Federal building, may be provided with astaff assistant whose compensation shall notexceed the rate prescribed for GS-9 in the Gen-eral Schedule under section 5332 of title 5, and,with his consent, may be called upon by thechief Judge of said court to perform judicialduties with said court for any period or periodsspecified by such chief judge. A senior judgewho is performing judicial duties pursuant tothis subsection shall be paid the same compen-sation (in lieu of retired pay) and allowancesfor travel and other expenses as a judge.

(b) The Court of Military Appeals shallreview the record in-

(1) all cases in which the sentence, as af-firmed by a Court of Military Review, affectsa general or flag officer or extends to death;

(2) all cases reviewed by a Court of MilitaryReview which the Judge Advocate Generalorders sent to the Court of Military Appealsfor review; and

(3) all cases reviewed by a Court of MilitaryReview in which, upon petition of the accusedand on good cause shown, the Court of Mili-tary Appeals has granted a review.

(c) The accused may petition the Court ofMilitary Appeals for review of a decision of aCourt of Military Review within 60 days fromthe earlier of-

(1) the date on which the accused is notifiedof the decision of the Court of MilitaryReview; or

(2) the date on which a copy of the decisionof the Court of Military Review, after beingserved on appellate counsel of record for theaccused (if any), is deposited in the UnitedStates mails for delivery by first-class certi-fied mpil to the accused at an address pro-vided by the accused or, if no such addresshas been provided by the accused, at thelatest address listed for the accused in his of-ficial service record.

The Court of Military Appeals shall act uponsuch a petition promptly in accordance withthe rules of the court.

(d) In any case reviewed by it, the Court ofMilitary Appeals may act only with respect tothe findings and sentence as approved by theconvening authority and as affirmed or setaside as incorrect in law by the Court of Mili-tary Review. In a case which the Judge Advo-cate General oroers sent to the Court of Mili-tary Appeals, that action need be taken onlywith respect to the issues raised by him. In acase reviewed upon petition of the accused, thataction need be taken only with respect to issuesspecified in the grant of review. The Court ofMilitary Appeals shall take action only with re-spect to matters of law.

(e) If the Court of Military Appeals sets asidethe findings and sentence, it may, except wherethe setting aside is based on lack of sufficient

§ 867 Page 174

TITLE 10--A:'MED FORCES

evidence in the record to support the findings,order a rehearing. If it sets aside the findingsand sentence and does not order a rehearing, itshall order that the charges be dismissed.

(f) After it has acted on a case, the Court ofMilitary Appeals may direct the Judge Advo-cate General to return the record to the Courtof Military Review for further review in accord-ance with the decision of the court. Otherwise,unless there is to be further action by thePresident or the Secretary concerned, theJudge Advocate General shall instruct the con-vening authority to take action in accordancewith that decision. If the court has ordered arehearing, but the convening authority finds arehearing impracticable, he may dismiss thecharges.

(g) The Court of Military Appeals and theJudge Advocates General shall meet annuallyto make a comprehensive survey of the oper-ation of this chapter and report to the Commit-tees on Armed Services of the Senate and ofthe House of Representatives and to the Secre-tary of Defense, the Secretaries of the militarydepartments, and the Secretary of Transporta-tion, the number and status of pending casesand any recommendations relating to uniform-ity of policies as to sentences, amendments tothis chapter, and any other matters consideredappropriate.(Aug. 10, 1956, ch. 1041, 70A Stat. 60; Aug. 14,1964, Pub. L. 88-426, title IV, § 403(j), 78 Stat.434; June 15, 1968, Pub. L. 90-340, § 1, 82 Stat.178; Oct. 24, 1968, Pub. L. 90-632, § 2(28), 82Stat. 1342, Dec. 23, 1980, Pub. L. 96-579, § 12(a),94 Stat. 3369; Nov. 20, 1981, Pub. L. 97-81, § 5,95 Stat. 1088; Oct. 12, 1982, Pub. L. 97-295,§ 1(12), 96 Stat. 1289.)


1956 ACT


867(a) ........ 50:654(a). May 5, 1950, ch. 169. 81867(b) ........ 50:654(b). (Art. 67), 64 Stat. 129;867(c) ......... 50:654(c). Mar. 2, 1955, ch. 9, 1 1867(d) ........ 50:654(d). (i), 69 Stat. 10.867(e) . 50:654(e).867(f)... :654(f).867() . 50:654(g).

In subsection (a)(l), the word "is" is substituted forthe words "is hereby established". The words "all"and "which shall be" are omitted as surplusage. Theword "consists" is substituted for the words "shall con-sist". The word "civil" is substituted for the word "ci-vilian". The word "may" is substituted for the word"shall" before the words "be appointed". The word"is" is substituted for the word "shall" before thewords "any person". The words "is entitled to" aresubstituted for the words "shall receive". The word"is" is substituted for the words "shall be" in thefourth sentence. The word "may" is substituted forthe words "shall have power to * 0 0 to". The word"does" is substituted for the word "shall" in the nextto the last sentence. In the last sentence, the words "isentitled * 0 to" are substituted for the word "shall".The word "outside" is substituted for the words "at aplace other than his official station. The official sta-tion of such Judges for such purpose shall be". Thewords "also" and "actually" are omitted as surplusage.

In (former) subsection (a)(2), the words "February28, 1951," are substituted for the words "the effective

date of this subdivision". The word "shall" in the firstsentence, and the word "shall" before the word"expire" in the second sentence, are omitted as sur-plusage. The word "before" is substituted !or thewords "prior to". The word "may" is substituLed forthe word "shall" before the words "be appointed".

In subsection (a)(3) [now (a)(2)], the word "for" issubstituted for the words "upon the ground of".

In subsection (b). the words "the following cases"are omitted as surplusage.

In subsections (b) and (d), the word "sent" is substi-tuted for the word "forwarded".

In subsection (0), the word "when" is inserted afterthe word "time". The words "a grant of" are omittedas surplusage.

In subsection (d), the word "may" is substituted forthe word "shall" in the first sentence.

In subsection (f), the words "Secretary concerned"are substituted for the words "Secretary of the De-partment".

In subsection (g), the words "of the armed forces"are omitted as surplusage. The words "policies as tosentences" are substituted for the words "sentencepolicies". The word "considered" is substituted for theword "deemed". The words "Secretaries of the mili-tary departments, and the Secretary of the Treasury"are substituted for the words "Secretaries of the De-partments".

1982 AcT

In subsection (d), the words "Court of MilitaryReview" are substituted for "board of review" becauseof section 3(b) of the Military Justice Act of 1968(Pub. L. 90-632, Oct. 24, 1968, 82 Stat. 1343).

The change in subsection (g) reflects the transfer offunctions from the Secretary of the Treasury to theSecretary of Transportation under 49:1655(b).

AMENDMENTS

1982-Subsec. (d). Pub. L. 97-295, § 1(12)(A), substi-tuted "Court of Military Review" for "board ofreview" following "incorrect in law by the".

Subsec. (g). Pub. L. 97-295, § 1(12)(B), substituted"Secretary of Transportation" for "Secretary of theTreasury" following "military departments, and the".

1981-Subsec. (c). Pub. L. 97-81 substituted provi-sions authorizing the accused to petition the Court ofMilitary Appeals for review of a decision of a Court ofMilitary Review within 60 days from the earlier of (1)the date on which the accused is notified of the deci-sion of the Court of Military Review, or (2) the dateon which a copy of the decision of the Court of Mili-tary Review, after being served on appellate counsel ofrecord for the accused (if any), is deposited in theUnited States mails for delivery by first-class certifiedmail to the accused at an address provided by the ac-cused or, if no such address has been provided by theaccused, at the latest address listed for the accused inhis official service record, and directing the Court ofMilitary Appeals to act upon such a petition promptlyin accordance with the rules of the court for provisionwhich had given the accused 30 days from the timewhen he was notified of the decision of a board ofreview to petition the Court of Military Appeals forreview and which had directed the court to act uponsuch a petition within 30 days of the receipt thereof.

1980-Subsec. (a)(1). Pub. L. 96-579 struck out thirdsentence prescribing expiration of terms of office ofall successors of judges of the Court of Military Ap-peals serving on June 15, 1968, fifteen years after expi-ration of term of their predecessors subject to require-ment that any judge appointed to fill a vacancy occur-ring prior to the expiration of the term for which hispredecessor was appointed should be appointed onlyfor the unr cpired term of the predecessor.

1968-Subsec. (a)(1). Pub. L. 90-340 changed thename of the Court of Military Appeals to the UnitedStates Court of Military Appeals, and established it

Page 175 § 867


under Article I of the United States Constitution, pro-vided that the terms of office of all successors of thejudges serving on June 15, 1968, shall expire 15 yearsafter the expiration of the terms for which their pred-ecessors were appointed but that any judge appointedto fill a vacancy occurring prior to the expiration ofthe term of his predecessor shall be appointed only forthe unexpired term of his predecessor, substitutedprovisions that each judge Is entitled to the samesalary and travel allowances as are judges of theUnited States Court of Appeals for provisions that en-titled each judge to a salary of $33,000 a year and atravel and maintenance allowance, for expenses in-curred while attending court or transacting officialbusiness outside the District of Columbia, not toexceed $15 a day, and provided for the precedence ofthe chief judge, and of the other Judges based on theirseniority.

Subsec. (a)(2). Pub. L. 90-340 redesignated formerpar. (3) as (2) and as so redesignated changed thename of the Court of Military Appeals to the UnitedStates Court of Military Appeals. Provisions of formerpar. (2) pertaining to the terms of office of judgeswere placed in par. (1). Provisions of former par. (2)pertaining to the terms of office of the three judgesfirst taking office after February 28, 1951, and expir-ing, as designated by the President at the time ofnomination, one on May 1, 1956, one on May 1, 1961,and one on May 1, 1966, were eliminated.

Subsec. (a)(3). Pub. L. 90-340 redesignated formerpar. (4) as (3) and as so redesignated changed thename of the Court of Military Appeals to the UnitedStates Court of Military Appeals, and provided that ajudge appointed to fill a temporary vacancy due to ill-ness or disability may only be a judge of the Court ofAppeals for the District of Columbia. Provisions offormer par. (3) were redesignated as par. (2).

Subsec. (a)(4). Pub. L. 90-340 added par. (4). Formerpar. (4) redesignated as par. (3).

Subsecs. (b), (f). Pub. L. 90-632 substituted "Court ofMilitary Review" for "board of review" wherever ap-pearing.

1964-Subsec. (a)(1). Pub. L. 88-426 increased thesalary of the judges from $25,500 to $33,000.


Amendment by Pub. L. 97-81 to take effect at theend of the 60-day period beginning on Nov. 20, 1981,and to apply to any accused with respect to a Court ofMilitary Review decision that is dated on or after thatdate, see section 7(a) and (b)(5) of Pub. L. 97-81, setout as an Effective Date note under section 706 of thistitle.




For effective date of amendment by Pub. L. 88-426,see section 501 of Pub. L. 88-426.

TERMS OF OFFICE OF JUDGES OF UNITED STATES COURTOF MILITARY APPEALS

Section 12(b) of Pub. L. 96-579 provided: "The termof office of a judge of the United States Court of Mili-tary Appeals serving on such court on the date of theenactment of this Act [Dec. 23, 1980] shall expire (1)on the date the term of such judge would have expiredunder the law in effect on the day before such date ofenactment [Dec. 23, 1980], or (2) ten years after thedate on which such judge took office as a Judge of theUnited States Court of Military Appeals, whichever islater."

REFERENCES TO BOARD OF REVIEW

Board of review ducmed to mean Court of MilitaryReview, see section 3(b) of Pub. L. 90-632, set out as anote under section 866 of this title.

CONTINUATION OF POWERS AND JURISDICTION OFCOURT OF MILITARY APPEALS; STATUS OF JUDGES

Section 2 of Pub. L. 90-340 provided that: "TheUnited States Court of Military Appeals establishedunder this Act [which amended subsec. (a) of this sec-tion] is a continuation of the Court of Military Ap-peals as it existed prior to the effective date of thisAct [June 15, 1968], and no loss of rights or powers, in.terruption of jurisdiction, or prejudice to matterspending in the Court of Military Appeals before theeffective date of this Act (June 15, 1968] shall result.A judge of the Court of Military Appeals so serving onthe day before the effective date of this Act [June 15,1968] shall, for all purposes, be a Judge of the UnitedStates Court of Military Appeals under this Act."

1977 INCREASE IN SALARY

Salaries of judges increased to $57,500 per annum,upon recommendation of the President of the UnitedStates, see note set out under section 358 of Title 2,The Congress.

1969 INCREASE IN SALARY

Salaries of Judges increased from $33,000 to $42,500per annum, commencing the first day of the payperiod which begins after February 14, 1969, upon rec-ommendation of the President of the Urited States,see note set out under section 358 of Title 2, The Con-gress.

EXECUTIVE ORDER No. 12063

Ex. Ord. No. 12063, June 5, 1978, 43 P.R. 24659,which related to the United States Court of MilitaryAppeals Nominating Commission, was revoked by Ex.Ord. No. 12258, Dec. 31, 1980, 46 F.R. 1251, set out as anote under section 14 of the Appendix to Title 5, Gov-ernment Organization and Employees.

UNITED STATES COURT OF MILITARY APPEALS; RULESOF PRACTICE AND PROCEDURE

See Appendix to this title.

CROSS REFERENCES

Execution of sentence, see section 871 of this title.New trial, petition for, see section 873 of this title.Review in office of Judge Advocate General, see sec-

tion 869 of this title.



§ 868. Art. 68. Branch offices

The Secretary concerned may direct theJudge Advocate General to establish a branchoffice with any command. The branch officeshall be under an Assistant Judge AdvocateGeneral who, with the consent of the JudgeAdvocate General, may establish a Court ofMilitary Review with one or more panels. ThatAssistant Judge Advocate General and anyCourt of Military Review established by himmay perform for that command under the gen-eral supervision of the Judge Advocate General,the respective duties which the Judge AdvocateGeneral and a Court of Military Review estab-lished by the Judge Advocate General wouldotherwise be required to perform as to all cases

§ 868 Page 176


involving sentences not requiring approval bythe President.




868 ............. 50:655. May 5, 1950, ch. 169, 11(Art. 68), 64 Stat. 130.

The word "considers" is substituted for the word"deems". The word "may" is substituted for the words"shall be empowered to". The word "respective" is in-serted for clarity.

AMENDMENTS

1968-Pub. L. 90-632 substituted the Secretary con-cerned for the President as the individual authorizedto direct the Judge Advocate General to establish abranch office under an Assistant Judge Advocate Gen-eral with any command and substituted "Court of Mil-itary Review" for "board of review" as the name ofthe body established by the Assistant Judge AdvocateGeneral in charge of the branch office.



CROSS REFERENCESReview by Court of Military Review, see section 866

of this title.

§ 869. Art. 69. Review in the office of the Judge Advo-cate General

Every record of trial by general court-martial,in which there has been a finding of guilty anda sentence, the appellate review of which is nototherwise provided for by section 866 of thistitle (article 66), shall be examined in the officeof the Judge Advocate General. If any part ofthe findings or sentence is found unsupportedin law, or if the Judge Advocate General so di-rects, the record shall be reviewed by a board ofreview in accordance with section 866 of thistitle (article 66), but in that event there may beno further review by the Court of Military Ap-peals except under section 867(b)(2) of this title(article 67(b)(2)). Notwithstanding section 876of this title (article 76), the findings or sen-tence, or both, in a court-martial case whichhas been finally reviewed, but has not been re-viewed by a Court of Military Review may bevacated or modified, in whole or in part, by theJudge Advocate General on the ground ofnewly discovered evidence, fraud on the court,lack of jurisdiction over the accused or the of-fense, or error prejudicial to the substantialrights of the accused. When such a case is con-sidered upon application of the accused, the ap-plication must be filed in the Office of theJudge Advocate General by the accusedbefore-

(1) October 1, 1983; or(2) the last day of the two-year period be-

ginning on the date the sentence is approvedby the convening authority or, in a specialcourt-martial case which requires actionunder section 865(b) of this title (article

65(b)), the officer exercisIng general court-martial Jurisdiction,

whichever is later, unless the accused estab-lishes good cause for failure to file within thattime.

(Aug. 10, 1956, ch. 1041, 70A Stat. 61; Oct. 24,1968, Pub. L. 90-632, § 2(30), 82 Stat. 1342; Nov.20, 1981, Pub. L, 97-81, § 6. 95 Stat. 1089.)



869 ............. 50:656. May 5, 1950. ch. 169, I(Art. 69). 64 Stat. 130.

The word "may" is substituted for the word "will".The word "under" is substituted for the words "pursu-ant to the provisions of".

AMENDMENTS

1981-Pub. L. 97-81 added provision that, when acase Is considered upon application of the accused, theapplication must be filed in the Office of the JudgeAdvocate General by the accused before (1) October 1,1983, or (2) the last day of the two-year period begin-ning on the date the sentence is approved by the con-vening authority or, in a special court-martial casewhich requires action under section 865(b) of this title(article 65(b)), the officer exercising general court-martial jurisdiction, whichever is later, unless the ac-cused establishes good cause for failure to file withinthat time.

1968-Pub. L. 90-632 authorized the Judge AdvocateGeneral to either vacate or modify the findings or sen-tence, or both, in whole or in part, in any court-mar-tial case which has been finally reviewed, but whichhas not been reviewed by a Court of Military Review.because of newly discovered evidence, fraud on thecourt, lack of Jurisdiction over the accused or the of-fense, or error prejudicial to the substantial rights ofthe accused.

EFFECTIVE DATE OF 1981 AMENDMENTAmendment by Pub. L. 97-81 effective at the end of

the 60-day period beginning on Nov. 20, 1981, see sec-tion 7(a) of Pub. L. 97-81, set out as an Effective Datenote under section 706 of this title.

EFFECTIVE DATE OF 1968 AMENDMENTAmendment by Pub. L. 90-632 effective Oct. 24,

1968, see section 4(b) of Pub. L. 90-632, set out as anote under section 801 of this title.

REFERENCES TO BOARD OF REVIEWBoard of review deemed to mean Court of Military

Review, see section 3(b) of Pub. L. 90-632, set out as anote under section 866 of this title.

§ 870. Art. 70. Appellate counsel

(a) The Judge Advocate General shall detailin his office one or more commissioned officersas appellate Government counsel, and one ormore commissioned officers as appellate de-fense counsel, who are qualified under section827(b)(1) of this title (article 27(b)(1)).

(b) Appellate Government counsel shall rep-resent the United States before the Court ofMilitary Review or the Court of Military Ap-peals when directed to do so by the Judge Ad-vocate General.

Page 177 § 870


(c) Appellate defense counsel shall representthe accused before the Court of MilitaryReview or the Court of Military Appeals-

(1) when he is requested to do so by the ac-cused;

(2) when the United States is representedby counsel; or

(3) when the Judge Advocate General hassent a case to the Court of Military Appeals.(d) The accused has the right to be represent-

ed before the Court of Military Appeals or theCourt of Military Review by civilian counsel ifprovided by him.

(e) Military appellate counsel shall also per-form such other functions in connection withthe review of court martial cases as the JudgeAdvocate General directs.(Aug. 10, 1956, ch. 1041, 70A Stat. 62; Oct. 24,1968, Pub. L. 90-632, § 2(31), 82 Stat. 1342.)


Revised Source (U.S. Code) Source (Statutes atsection 4 ___________ Large)

870(a) 50:657(a). May 5, P50, ch. 169. £ 1870(b) ........ 50:657(b). (Art. 70). 64 Stat. 130.870(c) ......... 50:657(c).870(d) ........ 50:657(d).870(e) ........ 50:657(e).

In subsection (a), the word "detail" is substituted forthe word "appoint", since the filling of the position in-volved is not appointment to an office in the constitu-tional sense. The word "commissioned" is inserted forclarity. The word "are" is substituted for the words"shall be". The words "the provisions of" are omittedas surplusage.

In subsections (b) and (c), the word "shall" is substi-tuted for the words "It shall be the duty of * to".

In subsection (c)(3), the word "sent" is substitutedfor the word "transmitted".

In subsection (d), the word "has" is substituted forthe words "shall have".

In subsection (c), the word "directs" is substitutedfor the words "shall direct".

AMENDMENTS

1968-Subsecs. (b) to d). Pub. L. 90-632 substituted"Court of Military Review" for "board of review"wherever appearing.


Amendment by Pub. L. 90-632 effective on the firstday of the tenth month following October 1968, seesection 4 of Pub. L. 90-632, set out its a note under sec-tion 801 of this title.

CRoss REFERENCES

Trial counsel and defense counsel, duties, see section838 of this title.

§ 871. Art. 71. Execution of sentence; suspension ofsentence

(a) No court-martial sentence extending todeath or involving a general or flag officer maybe executed until approved by the President,He shall approve the sentence or such part,amount, or commuted form of the sentence ashe sees fit, and 'may suspend the execution ofthe sentence or tiny part of the sentence, as ap-proved by him. except a death sentence.

(b) No sentence extending to the dismissal ofa commissioned officer (other than a general orflag officer), cadet, or midshipman may be ex-

ecuted until approved by the Secretary con-cerned, or such Under Secretary or AssistantSecretary as may be designated by him. Heshall approve the sentence or such part,amount, or commuted form of the sentence ashe sees fit, and may suspend the execution ofany part of the sentence as approved by him. Intime of war or national emergency he may com-mute a sentence of dismissal to reduction toany enlisted grade. A person so reduced may berequired to serve for the duration of the war oremergency and six months thereafter.

(c) No sentence which includes, unsuspended,a dishonorable or bad-conduct discharge, orconfinement for one year or more, may be ex-ecuted until affirmed by a Court of MilitaryReview and, in cases reviewed by it, the Courtof Military Appeals.

(d) All other court-martial sentences, unlesssuspended or deferred, may be ordered execut-ed by the convening authority when approvedby him. The convening authority may suspendthe execution of any sentence, except a deathsentence.

(Aug. 10, 1956, ch. 1041, 70A Stat. 62; Oct. 24,1968, Pub. L. 90-632, § 2(32), 82 Stat, 1342.)



871(a) ........ 50:658(a). May 5, 1950, ch. 169, 91871(b) ........ 50:658(b). (Art. 71), 64 Stat. 131.871(c) ......... 50:658(c).871(d) ........ 50:658(d).

In subsection Ca), the word "may" is substituted forthe word "shall".

In subsection (b), the word "commissioned" is insert-ed for clarity. The word "may" is substituted for theword "shall" in the first sentence. The words "Secre-tary concerned" are substituted for the words "Secre-tary of the Department". The words "who is" areomitted as surplusage.

In subsection (c), the word "may" is substituted forthe word "shall".

AMENDMENTS

1968-Subsec. (c). Pub. L. 90-632, § 232)(A), substi.tuted "Court of Military Review" for "board ofreview".

Subsec. (d). Pub. L. 90-632, § 232)(B), inserted refer-ence to deferred court-martial sentences.


Amendments by Pub. L. 90-632 effective on the firstday of the tenth month following October 1968, seesection 4 of Pub. L. 90-632, set out as a note under sec-tion 801 of this title.

CROSS REFERENCES

Pay and allowances of enlisted members of Armyand Air Force not to accrue during suspended sentenceof dishonorable discharge, see section 804 of Title 37,Pay and Allowances of the Uniformed Services.

Vacation of suspension, see section 872 of this title.


This section Is referred to in section 872 of this title.

9 872. Art. 72. Vacation of suspension

(a) Before the vacation of the suspension of aspecial court-martial sentence which as ap-

§ 871 Page 178


proved includes a bad-conduct discharge, or ofany general court-martial sentence, the officerhaving special court-martial jurisdiction overthe probationer shall hold a hearing on the al-leged violation of probation. The probationershall be represented at the hearing by counselif he so desires.

(b) The record of the hearing and the recom-mendation of the officer having special court-martial jurisdiction shall be sent for action tothe officer exercising general court-martial ju-risdiction over the probationer. If he vacatesthe suspension, any unexecuted part of the sen-tence, except a dismissal, shall be executed,subject to applicable restrictions in section 871(c) of this title (article 71(c)). The vacation ofthe suspension of a dismissal is not effectiveuntil approved by the Secretary concerned.

(c) The suspension of any other sentence maybe vacated by any authority competent to con-vene, for the command in which the accused isserving or assigned, a court of the kind that im-posed the sentence.

(Aug. 10, 1956, ch. 1041, 70A Stat. 63.)



872(a) ........ 50:859(a). May 5. 1950. ch. 169, * 1872(b) ........ 50:659(b). (Art. 72), 64 Stat. 131.872(c) . 50:659(c).

In subsection (a), the word "Before" is substitutedfor the words "Prior to".

In subsection (b), the words "be effective " to"are omitted as surplusage.

The second sentence is restated to make it clear thatthe execution of the rest of the court-martial sentenceis not automatic. The word "is" is substituted for thewords "shall " " * be" in the last sentence. The word"sent" is substituted for the word "forwarded". Thewords "Secretary concerned" are substituted for thewords "Secretary of the Department".

9 873. Art. 73. Petition for a new trial

At any time within two years after approvalby the convening authority of a court-martialsentence, the accused may petition the JudgeAdvocate General for a new trial on thegrounds of newly discovered evidence or fraudon the court. If the accused's case is pendingbefore a Court of Military Review or before theCourt of Military Appeals, the Judge AdvocateGeneral shall refer the petition to the appro-priate court for action. Otherwise the JudgeAdvocate General shall act upon the petition.

(Aug. 10, 1956. ch. 1041, 70A Stat. 63; Oct. 24,1968, Pub. L. 90-632, § 2(33), 82 Stat. 1342.)



873 ............. 50:660. May 5. 1950, ch. 169. 1(Art. 73). 64 Stat. 132.

The words "the ground" are substituted for theword "grounds". The words "as the case may be" aresubstituted for the word "respectively", since the pre-scribed action is alternative, not distributive.

AMENDMENTS

1968-Pub. L. 90-632 extended the time duringwhich the accused may petition the Judge AdvocateGeneral for a new trial from 1 to 2 years and struckout provisions which had limited the right to petitionfor a new trial to cases of death, dismissal, a punitivedischarge, or a year or more in confinement.

EFFECTIVE DATE or 1968 AMENDMENT

Amendment by Pub. L. 90-632 to apply in the case ofall court-martial sentences approved by the conveningauthority on or after, or not more than two yearsbefore Oct. 24, 1968. see section 4(c) of Pub. L. 90-632,set out as a note under section 801 of this title.

CROSS REFERENCES

Finality of proceedings, findings, and sentences assubject to petition for new trial, see section 876 of thistitle.

Review by-Court of Military Appeals, see section 867 of this

title.Court of Military Review, see section 866 of this

title.



§ 874. Art. 74. Remission and suspension

(a) The Secretary concerned and, when desig-nated by him, any Under Secretary, AssistantSecretary, Judge Advocate General, or com-manding officer may remit or suspend any partor amount of the unexecuted part of any sen-tence, including all uncollected forfeituresother than a sentence approved by the Presi-dent.

(b) The Secretary concerned may, for goodcause, substitute an administrative form of dis-charge for a discharge or dismissal executed inaccordance with the sentence of a court-mar-tial.

(Aug. 10, 1956, ch. 1041, 70A Stat. 63.)



874(a) 50:651(a). May 5. 1950, ch. 169. 5 1874(b) . 50:661(b). (Art. 74). 64 Stat. 132.

In subsections (a) and (b), the words "Secretary con-cerned" are substituted for the words "Secretary ofthe Department".

CROSS REFERENCES

Finality of proceedings, findings, and sentences assubject to petition for new trial, see section 878 of thistitle.

SECrION REFERRED TO IN OTHER SECTIONS


§ 875. Art. 75. Restoration

(a) Under such regulations as the Presidentmay prescribe, all rights, privileges, and proper-ty affected by an executed part of a court-mar-tial sentence which has been set aside or disap-proved, except an executed dismissal or dis-charge, shall be restored unless a new trial orrehearing is ordered and such executed part is

fr875Page 179


included in a sentence imposed upon the newtrial or rehearing.

(b) If a previously executed sentence of dis-honorable or bad-conduct discharge is not im-posed on a new trial, the Secretary concernedshall substitute therefor a form of dischargeauthorized for administrative issuance unlessthe accused is to serve out the remainder of hisenlistment,(c) If a previously executed sentence of dis-

missal is not imposed on a new trial, the Secre-tary concerned shall substitute therefor a formof discharge authorized for administrativeissue, and the commissioned officer dismissedby that sentence may be reappointed by thePresident alone to such commissioned gradeand with such rank as in the opinion of thePresident that former officer would have at-tained had he not been dismissed. The reap-pointment of such a former officer shall bewithout regard to the existence of a vacancyand shall affect the promotion status of otherofficers only insofar as the President maydirect. All time between the dismissal and thereappointment shall be considered as actualservice for all purposes, including the right topay and allowances.(Aug. 10, 1956, ch. 1041, 70A Stat. 63.)



875(a) ........ 50:662(a). May 5. 1950. ch. 169. 1 1875(b) ........ 50:662(b). (Art. 75), 64 Stat. 132.875(c) ......... 50:662(c).

In subsections (b) and (c), the word "If" is substitut-ed for the word "Where". The word "imposed" is sub-stituted for the word "sustained". The words "Secre-tary concerned" are substituted for the words "Secre-tary of the Department".

In subsection (c), the word "issue" is substituted forthe word "issuance". The word "commissioned" is in-serted for clarity. The words "grade and with suchrank" are substituted for the words "rank and prece-dence", since a person is appointed to a grade, not aposition of precedence, and the word "rank" is the ac-cepted military word denoting the general idea of pre-cedence. The words "the existence of a" are substitut-ed for the word "position". The word "receive" is omit-ted as surplusage.§ 876. Art. 76. Finality of proceedings, findings, and

sentences

The appellate review of records of trial pro-vided by this chapter, the proceedings, findings,and sentences of courts-martial as approved, re-viewed, or affirmed as required by this chapter,and all dismissals and discharges carried intoexecution under sentences by courts-martialfollowing approval, review, or affirmation as re-quired by this chapter, are final and conclusive,Orders publishing the proceedings of courts-martial and all action taken pursuant to thoseproceedings are binding upon all departments,courts, agencies, and officers of the UnitedStates, subject only to action upon a petitionfor a new trial as provided in section 873 of thistitle (article 73) and to action by the Secretaryconcerned as provided in section 874 of this

title (article 74) and the authority of the Presi-dent.(Aug. 10, 1956, ch. 1041, 70A Stat. 64.)


Revised Source (U.S Code) Source (Statutes atsection Large)

876 . 50:663. May 5, 1950, ch. 169, 11(Art. 76), 64 Stat. 132.

The word "under" is substituted for the words "pur-suant to". The word "are" is substituted for the words"shall be". The words "Secretary concerned" are sub.stituted for the words "Secretary of a Department".



§ 876a. Art. 76a. Leave required to be taken pendingreview of certain court-martial convictions

Under regulations prescribed by the Secre-tary concerned, an accused who has been sen-tenced by a court-martial may be required totake leave pending completion of action underthis subchapter if the sentence, as approvedunder section 864 or 865 of this title (article 64or 65) by the officer exercising general court-martial jurisdiction, includes an unsuspendeddismissal or an unsuspended dishonorable orbad-conduct discharge. The accused may be re-quired to begin such leave on the date on whichthe sentence is approved by the officer exercis-ing general court-martial jurisdiction or at anytime after such date, and such leave may becontinued until the date on which action underthis subchapter is completed or may be termi-nated at any earlier time.

(Added Pub. L. 97-81, § 2(c)(1), Nov. 20, 1981, 95Stat. 1087.)

EFFECTIVE DATE

Section to take effect at the end of the 60-day periodbeginning on Nov. 20, 1981, to apply to each memberwhose sentence by court-martial is approved on orafter that date under section 884 or 865 of this title bythe officer exercising general court-martial jurisdic-tion, see section 7(a) and (b)(1) of Pub. L. 97-81, setout as an Effective Date note under section 706 of thistitle.


This section is referred to In sections 706, 707 of thistitle.

SUBCHAPTER X-PUNITIVE ARTICLES

Principals.Accessory after the fact.Conviction of lesser included offense.Attempts.Conspiracy.Solicitation.Fraudulent enlistment, appointment, or

separation.Unlawful enlistment, appointment, or

separation.Desertion.Absence without leave.Missing movement.Contempt toward officials.

§ 876 Page 180


Sec. Art.

889. 89. Disrespect toward superior commissionedofficer.

890. 90. Assaulting or willfully disobeying superi-or commissioned officer.

891. 91. Insubordinate conduct toward warrant of-ficer, noncommissioned officer, or pettyofficer.

892. 92. Failure to obey order or regulation.893. 93. Cruelty and maltreatment.894. 94. Mutiny or sedition.895. 95. Resistance, breach of arrest, and escape,896. 96. Releasing prisoner without proper au-

thority.897. 97. Unlawful detention.898. 98. Noncompliance with procedural rules.899. 99. Misbehavior before the enemy.900. 100. Subordinate compelling surrender.901. 101. Improper use of countersign.902. 102. Forcing a safeguard.903. 103. Captured or abandoned property.904. 104. Aiding the enemy.905. 105. Misconduct as prisoner.900. 106. Spies.907. 107. False official statements.908. 108. Military property of United States-Loss,

damage, destruction, or wrongful dispo-sition.

909. 109. Property other than military property ofUnited States-Waste, spoilage, or de-struction.

910. 110. Improper hazarding of vessel.911. 111. Drunken or reckless driving.912. 112. Drunk on duty.913. 113. Misbehavior of sentinel.914. 114. Dueling.915. 115. Malingering.918. 116. Riot or breach of peace.917. 117. Provoking speeches or gestures,918. 118. Murder.919. 119. Manslaughter.920. 120. Rape and carnal knowledge.921. 121. Larceny and wrongful appropriation.922. 122. Robbery.923. 123. Forgery.923a. 123a. Making, drawing, or uttering check, draft,

or order without sufficient funds.924. 124. Maiming.925. 125. Sodomy.926. 126. Arson.927. 127. Extortion.928. 128. Assault.929. 129. Burglary.930. 130. Housebreaking.931. 131. Perjury.932. 132. Frauds against the United States.933. 133. Conduct unbecoming an officer and a

gentleman.934. 134. General article.

AMENDMENTS

1961-Pub. L. 87-385, 1 1(2), Oct. 4, 1961. 75 Stat.814, added item 923a.

CROss REFERENCES

Federal retirement benefits, forfeiture upon convic-tion of offenses described hereunder, see section 8312of Title 5, Government Organization and Employees.

§ 877. Art. 77. Principals

Any person punishable under this chapterwho-

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

(2) causes an act to be done which if direct-ly performed by him would be punishable bythis chapter;

is a principal.

(Aug. 10, 1956, ch. 1041, 70A Stat. 65.)

HISTORICAL AND REvISION NOTES


877 ............. 50:671. May 5, 1950. ch. 169, 11(Art. 77), 64 Stat. 134,

CROSS REFERENCES

Article to be explained, see section 937 of this title.Definition of principal, federal offense, see section 2




§ 878. Art. 78. Accessory after the fact

Any person subject to this chapter who,knowing that an offense punishable by thischapter has been committed, receives, comforts,or assists the offender in order to hinder or pre-vent his apprehension, trial, or punishmentshall be punished as a court-martial may direct.(Aug. 10, 1956, ch. 1041, 70A Stat. 65.)

HISTORICAL AND REvISION NOTES


878 ............. 50:672. May 5, 1950, ch. 189, I1(Art. 78). 64 Stat. 134.

CROSS REFERENCES

Article to be explained, see section 937, of this title.Definition of accessory after the fact, federal of-

fense, see section 3 of Title 18, Crimes and CriminalProcedure.



§ 879. Art. 79. Conviction of lesser included offense

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

(Aug. 10, 1956, ch. 1041, 70A Stat. 65.)

HISTORICAL AND REvISION NOTESd Source (Statutes at

Revsedton Source (U.S. Code) Large)

879........50:673. May 5, 1950, ch. 169, 11I(Art. 79), 64 Stat. 134.

CRoss REFERENCES




Page 181 § 879


§ 880. Art. 80. Attempts

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

(b) Any person subject to this chapter who at-tempts to commit any offense punishable bythis chapter shall be punished as a court-mar-tial may direct, unless otherwise specificallyprescribed.

(c) Any person subject to this chapter may beconvicted of an attempt to commit an offensealthough it appears on the trial that the of-fense was consummated.

(Aug. 10, 1956, ch. 1041, 70A Stat. 65.)



880(a).50:674(a). May 5. 1950. ch. 169. i1880(b) . 50:674(b). (Art. 80). 64 Stat. 134.880(c) ......... 50:674(c).

In subsection (a), the words "even though" are sub-

stituted for the word "but" for clarity.

CROSS REFERENCES

Article to be explained, see section 937 of this title.Desertion, attempt, see section 885 of this title.



§ 881. Art. 81. Conspiracy

Any person subject to this chapter who con-spires with any other person to commit an of-fense under this chapter shall, if one or more ofthe conspirators does an act to effect the objectof the conspiracy, be punished as a court-mar-tial may direct,

(Aug. 10, 1956, ch. 1041, 70A Stat. 66.)


Revised Source ( U.S. Code)section

881 ............. 50:675.

Source (Statutes atLarge)

May 5, 1950. ch. 169, I1(t. 81), 64 Stat. 134.

The words "or persons" are omitted as surplusage,since under section 1 of title 1 words importing thesingular may apply to several persons.

CROSS REFERENCES

Article to be explained, see section 937 of this title.Federal offenses, see sections 371, 372 of Title 18,

Crimes and Criminal Procedure.



§ 882. Art. 82. Solicitation

(a) Any person subject to this chapter who so-licits or advises another or others to desert inviolation of section 885 of this title (article 85)or mutiny in violation of section 894 of this title(article 94) shall, if the offense solicited or ad-vised is attempted or committed, be punishedwith the punishment provided for the commis-

sion of the offense, but, if the offense solicitedor advised is not committed or attempted, heshall be punished as a court-martial may direct.

(b) Any person subject to this chapter whosolicits or advises another or others to commitan act of misbehavior before the enemy in vio-lation of section 899 of this title (article 99) orsedition in violation of section 894 of this title(article 94) shall, if the offense solicited or ad-vised is committed, be punished with the pun-ishment provided for the commission of the of-fense, but, if the offense solicited or advised Isnot committed, he shall be punished as a court-martial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 66.)



882(a).50:676(a). May 5,1950. ch. 169, 11,882(b) . 50:676(b). (Art. 82). 64 Stat. 134.

CROSS REFERENCES

Article to be explained, see section 937 of this title.Enticing desertion, federal offense, see section 1381




§ 883. Art. 83. Fraudulent enlistment, appointment, orseparation

Any person who--(1) procures his own enlistment or appoint-

ment in the armed forces by knowingly falserepresentation or deliberate concealment asto his qualifications for that enlistment or ap-pointment and receives pay or allowancesthereunder; or

(2) procures his own separation from thearmed forces by knowingly false representa-tion or deliberate concealment as to his eligi-bility for that separation;

shall be punished as a court-martial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 66.)


Revised Sourc (U.S. Code) Source (Statutes atsection Large)

883 ............. 50:677. May 5, 1950, ch. 169, i I(Art. 83), 64 Stat. 134.

In clauses (1) and (2), the words "means of" areomitted as surplusage.

CROSS REFERENCESArticle to be explained, see section 937 of this title.



§ 884. Art. 84. Unlawful enlistment, appointment, orseparation

Any person subject to this chapter who ef-fects an enlistment or appointment in or a sepa-ration from the armed forces of any person

Page 182§ 880


who is known to him to be ineligible for thatenlistment, appointment, or separation becauseit is prohibited by law, regulation, or ordershall be punished as a court-martial may direct.(Aug. 10, 1956, ch. 1041, 70A Stat. 66.)


Revised S Source (Statutes atsection o (U.S Code) Large)

884 ............. 50:78. May 5 50, ch. 169, 11(Art. 84), 64 Stat. 135.

CROSS REFERENCES




§ 885. Art. 85. Desertion

(a) Any member of the armed forces who-(1) without authority goes or remains

absent from his unit, organization, or place ofduty with intent to remain away therefrompermanently;

(2) quits his unit, organization, or place ofduty with intent to avoid hazardous duty orto shirk important service; or

(3) without being regularly separated fromone of the armed forces enlists or accepts anappointment in the same or another one ofthe armed forces without fully disclosing thefact that he has not been regularly separated,or enters any foreign armed service exceptwhen authorized by the United States;

is guilty of desertion.(b) Any commissioned officer of the armed

forces who, after tender of his resignation andbefore notice of its acceptance, quits his post orproper duties without leave and with intent toremain away therefrom permanently is guiltyof desertion.

(c) Any person found guilty of desertion orattempt to desert shall be punished, if the of-fense is committed in time of war, by death orsuch other punishment as a court-martial maydirect, but if the desertion or attempt to desertoccurs at any other time, by such punishment,other than death, as a court-martial may direct.(Aug. 10, 1956, ch. 1041, 70A Stat. 67.)


Revised source (U.S. Code) Source (Statutes atsection Large)

885(a) . 50:679(a). May 5.1950, ch. 169, 11885(b) ........ 50:679(b). (Art. 85), 64 Stat. 135.885(c) ......... 50:679(c).

In subsection (a), the word "unit" is substituted forthe words "place of service" to conform to clause (2) ofthis section and section 886(3) of this title. The word"proper" Is omitted as surplusage.

In subsection (b), the word "commissioned" is insert-ed for clarity. The word "before" is substituted for thewords "prior to". The words "its acceptance" are sub-stituted for the words "the acceptance of the same".The words "after tender of" are substituted for thewords "having tendered" for clarity. The word "due"is omitted as surplusage.

In subsection (c), the words "attempt to desert" aresubstituted for the words "attempted desertion".

CROSS REFERENCES

Apprehension of deserters, see section 808 of thistitle.

Article to be explained, see section 937 of this title.Enlisted members of Army and Air Force, required

to make up lost time, see section 972 of this title.Enticing desertion and harboring deserters, federal

offense, see section 1381 of Title 18, Crime, and Crimi-nal Procedure.


Naturalization, deserter ineligible for, see section1425 of Title 8, Aliens and Nationality.

Plea of guilty, prohibition against reception, see sec-tion 845 of this title.

Public office, deserter ineligible to hold, see section1425 of Title 8, Aliens and Nationality.

Solicitation of offense, see section 882 of this title.Statute of limitations, see section 843 of this title.


This section Is referred to in sections 882, 937 of thistitle.

§ 886. Art. 86. Absence without leave

Any member of the armed forces who, with-out authority-

(1) fails to go to his appointed place of dutyat the time prescribed;

(2) goes from that place; or(3) absents himself or remains absent from

his unit, organization, or place of duty atwhich he is required to be at the time pre-scribed;


(Aug. 10, 1956, ch. 1041, 70A Stat. 67.)


Revised Code) Source (Statutes atsection SoreI.S oe Large)

886 ........... 50:680. May 5, 1950, ch. 169, J I(Art. 86). 64 Stat. 135.

The words "proper" and "other" are omitted as sur-plusage.

CROSS REFERENCES

Article to be explained, see section 937 of this title.Enlisted members required to make up time lost, see

section 972 of this title.Policy as to leave and liberty, Navy and Marine

Corps, see section 5949 of this title.Statute of limitations, see section 843 of this title.



§ 887. Art. 87. Missing movement

Any person subject to this chapter whothrough neglect or design misses the movementof a ship, aircraft, or unit with which he is re-quired in the course of duty to move shall bepunished as a courtmartial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 67.)

Page .183 § 887



Revised Source (US Code) Source (Statutes atsection I Large)



887 ............. 50:681. May 5, 1950. ch. 169, § 1 889 ............. 50:683.(Art. 87), 64 Stat. 135.

Ma 5, 1950, ell. 169. §1(Art. 89). 64 Stat. 135.

CROSS REFERENCES




§ 888. Art. 88. Contempt toward officials

Any commissioned officer who uses contemp-tuous words against the President, the VicePresident, Congress, the Secretary of Defense,the Secretary of a military department, theSecretary of Transportation, or the Governoror legislature of any State, Territory, Common-wealth, or possession in which he is on duty orpresent shall be punished as a court-martialmay direct

(Aug. 10, 1956, ch. 1041, 70A Stat. 67; Dec. 12,1980, Pub. L. 96-513, title V, § 511(25), 94 Stat.2922.)



888 ............. 50:682. May 5,1950. ch. 169, Ii(Art. 88), 64 Stat. 135.

The word "commissioned" is inserted for clarity.The words "the Vice President, Congress, the Secre-tary of Defense, the Secretary of a military depart-ment, the Secretary of the Treasury, or the Governoror legislature of any State, Territory, Commonwealth.or possession" are substituted for the words "VicePresident, Congress, Secretary of Defen.'e, or a Secre-tary of a Department, a Governor or a legislature ofany State, Territory, or other possession of the UnitedStates".

AMENDMENTS

1980-Pub. L. 96-513 substituted "Secretary ofTransportation" for "Secretary of the Treasury".


Amendment by Pub. L. 96-513 effective Dec. 12,1980, see section 701(b)(3) of Pub. L. 96-513, set out asan Effective Date of 1980 Amendment note under sec-tion 101 of this title.

CROSS REFERENCES




§ 889. Art. 89. Disrespect toward superior commis-sioned officer

Any person subject to this chapter who be-haves with disrespect toward his superior com-missioned officer shall be punished as a court-martial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 67.)

The word "commissioned" is inserted for clarity.

CROSS REFERENCES




§ 890. Art. 90. Assaulting or willfully disobeying supe-rior commissioned officer

Any person subject to this chapter who-(1) str'kes his superior commissioned officer

or draws or lifts up any weapon or offers anyviolence against him while he is in the execu-tion of his office; or

(2) willfully disobeys a lawful command ofhis superior commissioned officer;

shall be punished, if the offense is committedin time of war, by death or such other punish-ment as a court-martial may direct, and if theoffense is committed at any other time, by suchpunishment, other than death, as a court-mar-tial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 68.)



890 ,. 50:684. May 5, 1950, ch. 169, 91(Art, 90), 64 Stat. 135.


Cnoss REFERENCESArticle to be explained, see section 937 of this title.Assault as Federal offense, see section 111 et seq. of

Title 18, Crimes and Criminal Procedure.Plea of guilty, prohibition against reception, see sec-

tion 845 of this title.



§ 891, Art. 91, Insubordinate conduct toward warrantofficer, noncommissioned officer, or petty officer

Any warrant officer or enlisted memberwho-

(1) strikes or assaults a warrant officer,noncommissioned officer, or petty officer,while that officer is in the execution of hisoffice;

(2) willfully disobeys the lawful order of awarrant officer, noncommissioned officer, orpetty officer; or

(3) treats with contempt or is disrespectfulin language or deportment toward a warrantofficer, noncommissioned officer, or petty of-ficer, while that officer is in the execution ofhis office;


(Aug. 10, 1956, ch. 1041, 70A Stat. 68.)

Page 184§ 888



Revised Source (U.S. Code) e (Statutes atsection Large)

891 .... 50:685. May 5. 1950, h. 169, ' I(Art. 91), 64 Stat. 136.

The word "member" is substituted for the word"Verson".

CROSS REFERENCES



§ 892. Art. 92. Failure to obey order or regulation

Any person subject to this chapter who-(1) violates or fails to obey any lawful gen-

eral order or regulation;(2) having knowledge of any other lawful

order issued by a member of the armedforces, which it is his duty to obey, fails toobey the order; or

(3) Is derelict in the performance of hisduties;


(Aug. 10, 1956, ch. 1041, 70A Stat. 68.)



892 ............. 50:686. May 5, 1950, ch. 169, 11(Art. 92), 64 Stat. 136.

The word "order" is substituted for the word

"same".

CROSS REFERENCES



§ 893. Art. 93. Cruelty and maltreatment

Any person subject to this chapter who isguilty of cruelty toward, or oppression or mal-treatment of, any person subject to his ordersshall be punished as a court-martial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 68.)HISTORICAL AND REVISION NOTES

Revised Source (US. Code) Source(Statutes atsection Large)

893 ............. 50:687. May 5, 1950, ch. 169, 11(Art. 93), 64 Stat. 136.

CROSS REFERENCES

Article to be explained, see section 937 of this title.Prisoner, misconduct as, see section 905 of this title.


§ 894. Art. 94. Mutiny or sedition

(a) Any person subject to this chapter who-(1) with intent to usurp or override lawful

military authority, refuses, in concert with

any other person, to obey orders or otherwisedo his duty or creates any violence or disturb.ance is guilty of mutiny;

(2) with intent to cause the overthrow ordestruction of lawful civil authority, creates,in concert with any other person, revolt, vio-lence, or other disturbance against that au-thority is guilty of sedition;

(3) fails to do his utmost to prevent andsuppress a mutiny or sedition being commit-ted in his presence, or fails to take all reason-able means to inform his superior commis-sioned officer or commanding officer of amutiny or sedition which he knows or hasreason to believe is taking place, is guilty of afailure to suppress or report a mutiny or sedi-tion.

(b) A person who is found guilty of attemptedmutiny, mutiny, sedition, or failure to suppressor report a mutiny or sedition shall be punishedby death or such other punishment as a court-martial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 68.)


Revised Source (U.S. Code) Source (Statutes atsectin Large)

894(a) ........ 50:688(a). May 5, 1950, ch. 169, 11894(b) ........ 50:688(b). (Art. 94), 64 Stat. 136.

In subsection (a)(1) and (2), the words "or persons"are omitted, since, under section 1 of title 1, words im-porting the singular may apply to several persons.

In subsection (a)(3), the word "a" is substituted forthe words "an offense of". The words "commissionedofficer" are inserted after the word "superior", forclarity.

CRoss REFERENCES

Article to be explained, see section 937 of this title.Federal offenses-

Advocating overthrow of Government, see section2385 of Title 18, Crimes and Criminal Procedure.

Mutiny affecting armed forces generally andduring war, see sections 2387 and 2388 of Title18.

Mutiny of seamen, see sections 2192, 2193 of Title18.

Seditious conspiracy, see section 2384 of Title 18.Forfeiture of veterans' benefits upon conviction

under this section, see section 3505 of Title 38, Veter-ans' Benefits.


Solicitation of offense, see section 882 of this title.Statute of limitations, see section 843 of this title.


This section Is referred to in sections 882, 937 of thistitle; title 38 section 3505.

§ 895. Art. 95. Resistance, breach of arrest, and escape

Any person subject to this chapter who re-sists apprehension or breaks arrest or who es-capes from custody or confinement shall bepunished as a court-martial may direct.

(Aug. 10, 1950, ch. 1041, 70A Stat. 69.)

Page 185 § 895




895 ............. 50:689. May 5, 1950. ch. 169. 1(Art. 95), 64 Stat. 136.

CROSS REFERENCES

Apprehension, see sections 807 and 808 of this title.Article to be explained, see section 937 of this title.Escape and rescue, federal offenses, see section 751

et seq. of Title 18, Crimes and Criminal Procedure.Restraint-

Imposition, E e section 809 of this title.Persons charged with offenses, see section 810 of

this title.



§ 896. Art. 96. Releasing prisoner without proper au-thority

Any person subject to this chapter who, with-out proper authority, releases any prisonercommitted to his charge, or who through ne-glect or design suffers any such prisoner toescape, shall be punished as a court-martialmay direct, whether or not the prisoner wascommitted in strict compliance with law.

(Aug. i0, 1956, ch. 1041, 70A Stat. 69.)



896 ............. 50:690. May 5, 1950. ch. 169, 91(Art. 96), 64 Stat. 136.

The words "whether or not the prisoner was com-mitted in strict compliance with law" are substitutedfor the word "duly", to reflect the long standing con-struction expressed in the Manual for Courts-Martial,United States, 1951, par. 175a.

CROSS REFERENCES




§ 897. Art. 97. Unlawful detention

Any person subject to this chapter who,except as provided by law, apprehends, arrests,or confines any person shall be punished as acourt-martial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 69.)



897 ............. 50:691. May 5, 1950. ch. 169 ,(Art. 97), 64 Stat. 137.

CROSS REFERENCES

Apprehension, see sections 807 and 808 of this title.Article to be explained, see section 937 of this title.Restraint--

Imposition, see section 809 of this title.Persons charged with offenses, see section 810 of

this title.

SECTION REFERRED TO IN OTHER SECfrIONS


§ 898. Art. 98. Noncompliance with procedural rules

Any person subject to this chapter who-(1) Is responsible for unnecessary delay in

the disposition of any case of a person ac-cused of an offense under this chapter; or

(2) knowingly and intentionally fails to en-force or comply with any provision of thischapter regulating the proceedings before,during, or after trial of an accused;


(Aug. 10, 1956, ch. 1041, 70A Stat. 69.)


Revised Source (U.S. Code) Source (Slatutes atsection Large)

898. 50:692. May 5, 1950. ch. 119, 11(Art. 98). 64 Stat. 137.

CROSS REFERENCES




§ 899. Art. 99. Misbehavior before the enemy

Any member of the armed forces who beforeor in the presence of the enemy-

(1) runs away;(2) shamefully abandons, surrenders, or de-

livers up any command, unit, place, or mili-tary property which it is his duty to defend;

(3) through disobedience, neglect, or inten-tional misconduct endangers the safety ofany such command, unit, place, or militaryproperty;

(4) casts away his arms or ammunition;(5) is guilty of cowardly conduct;(6) quits his place of duty to plunder or pil-

lage;(7) causes false alarms in any command,

unit, or place under control of the armedforces;

(8) willfully fails to do his utmost to en-counter, engage, capture, or destroy anyenemy troops, combatants, vessels, aircraft, orany other thing, which it is his duty so to en-counter, engage, capture, or destroy; or

(9) does not afford all practicable relief andassistance to any troops, combatants, vessels,or aircraft of the armed forces belonging tothe United States or their allies when en-gaged in battle;

shall be punished by death or such other pun-ishment as a court-martial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 69.)


Revised Source (Statutes atsection Source (US. Code) Large)

899 ..... 50:693. May 5. 1950, ch. 169, I1(Art. 99), 64 Stat. 137.

§ 896 Page 186


CROSS REFERENCES

Article to be explained, see section 937 of this title.Federal retirement benefits, forfeiture upon convic-

tion of offenses described hereunder, see section 8312of Title 5, Government Organization and Employees.


Solicitation of offense, see section 882 of this title.


This section is.referred to in sections 882, 937 of thistitle.

§ 900. Art. 100. Subordinate compelling surrender

Any person subject to this chapter who com-pels or attempts to compel the commander ofany place, vessel, aircraft, or other militaryproperty, or of any body of members of thearmed forces, to give it up to an enemy or toabandon it, or who strikes the colors or flag toan enemy without proper authority, shall bepunished by death or such other punishment asa court-martial may direct.

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


Revised Source (U.S. Source (Statutes atsection Code) Large)

900 ............. 50:61,4. Ma 5, 1950. ch. 169. IIt. 100). 64 Stat.137.

CROSS REFERENCES




§ 901, Art. 101. Improper use of countersign

Any person subject to this chapter who intime of war discloses the parole or countersignto any person not entitled to receive It or whogives to another who is entitled to receive anduse the parole or countersign a different paroleor countersign from that which, to his knowl-edge, he was authorized and required to give,shall be punished by death or such other pun-ishment as a court-martial may direct.

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



901 ........... 50:695. MaXr5. 1950, ch. 169. I1rt. 101), 64 Stat.

137.

CROSS REFERENCES




§ 902. Art. 102, Forcing a safeguard

Any person subject to this chapter who forcesa safeguard shall suffer death or such otherpunishment as a court-martial may direct.

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


Revised Source M, Code) Source (Statutes atsection S .Large)

902 ............. 50:696. May 5, 1950. ch. 169, 11(A. 102), 64 Stat.137.

CROSS REFERENCES



§ 903. Art. 103. Captured or abandoned property

(a) All persons subject to this chapter shallsecure all public property taken from theenemy for the service of the United States, andshall give notice and turn over to the proper au-thority without delay all captured or aban-doned property in their possession, custody, orcontrol.

(b) Any person subject to this chapter who-(1) fails to carry out the duties prescribed in

subsection (a);(2) buys, sells, trades, or in any way deals in

or disposes of captured or abandoned proper-ty, whereby he receives or expects any profit,benefit, or advantage to himself or anotherdirectly or indirectly connected with himself;or

(3) engages in looting or pillaging;


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



903(a) ........ 50:697(a). May 5, 1950. ch. 169. 51903(b) ........ 50:697(b). (Art. 103), 64 Stat.

138.

In subsection (b)(1), the words "of this section" are

omitted as surplusage.

CROSS REFERENCES

Article to be explained, see section 937 of this title.Statute of limitations, see section 843 of this title.



§ 904. Art, 10.1. Aiding the enemy

Any person who--(1) aids, or attempts to aid, the enemy with

arms, ammunition, supplies, money, or otherthings; or

(2) without proper authority, knowinglyharbors or protects or gives intelligence to, orcommunicates or corresponds with or holdsany Intercourse with the enemy, either direct-ly or Indirectly;

shall suffer death or such other punishment asa court-martial or military commission maydirect.

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

§ 904Page 187



Revised Source(U.S Cod) Source (Statutes atsection Large)

904 . 50:698. May 5, 1950, ch. 169. 11(Art. 104). 64 Stat.138.

CROSS REFERENCES


Enlistment to serve against United States, see sec-tion 2390 of Title 18, Crimes and Criminal Proce-dure.

Recruiting for service against United States, seesection 2389 of Title 18.

Trading with the Enemy Act, see section 16 of Ap-pendix to Title 50, War and National Defense.


Forfeiture of veterans' benefits upon convictionunder this section, see section 3505 of Title 38, Veter-ans' Benefits.


Statute of limitations, see section 843 of this title.


This section is referred to in section 937 of this title;title 5 section 8312; title 38 section 3505.

§ 905. Art. 105. Misconduct as prisoner

Any person subject to this chapter who, whilein the hands of the enemy in time of war-

(1) for the purpose of securing favorabletreatment by his captors acts without properauthority in a manner contrary to law,custom, or regulation, to tle detriment ofothers of whatever nationality held by theenemy as civilian or military prisoners; or

(2) while in a position of authority oversuch persons maltreats them without justifi-able cause;


(Aug. 10, 1956, ch. 1041, 70A Stat. 71.)



905 ............. 50:699. May 5, 1950, ch. 169. 1IIt. 105). 64 Stat.

138.

CROSS REFERENCES

Article to be explained, see section 937 of this title.Cruelty and maltreatment, see section 893 of this

title.


This section is referred to In section 937 of this title.

§ 906. Art. 106. Spies

Any person who in time of war is found lurk-ing as a spy or acting as a spy In or about anyplace, vessel, or aircraft, within the control orJurisdiction of any of the armed forces, or in orabout any shipyard, any manufacturing or in-dustrial plant, or any other place or Institutionengaged in work in aid of the prosecution of

the war by the United States, or elsewhere,shall be tried by a general court-martial or by amilitary commission and on conviction shall bepunished by death.

(Aug. 10, 1956, ch. 1041, 70A Stat. 71.)


Revised Source ( Code) Source (Statutes atsection Large)

906 ............. 50:700. May 5, 1950, cA. 169. 11(Art. 106), 64 Stat.138.

The words "of the United States" are omitted as sur-plusage.

PROCLAMATION No. 2561. ENEMIES DENIED ACCESS TOUNITED STATES COURTS

Proc. No. 2561, July 2, 1942, 7 F.R. 5101, 56 Stat.1964, provided:

Whereas the safety of the United States demandsthat all enemies who have entered upon the territoryof the United States as part of an invasion or predato-ry incursion, or who have entered in order to commitsabotage, espionage or other hostile or warlike acts,should be promptly tried in accordance with the lawof war;

Now, therefore, I, Franklin D. Roosevelt, Presidentof the United States of America and Commander inChief of the Army and Navy of the United States, byvirtue of the authority vested in me by the Constitu-tion and the statutes of the United States, do herebyproclaim that all persons who are subjects, citizens orresidents of any nation at war with the United Statesor who give obedience to or act under the direction ofany such nation, and who during time of war enter orattempt to enter the United States or any territory orpossession thereof, through coastal or boundary de-fenses, and are charged with committing or attempt-ing or preparing to commit sabotage, espionage, hos-tile or warlike acts, or violations of the law of war,shall be subject to the law of war and to the Jurisdic-tion of military tribunals; and that such persons shallnot be privileged to seek any remedy or maintain anyproceeding directly or indirectly, or to have any suchremedy or proceeding sought on their behalf, in thecourts of the United States, or of its States, territories,and possessions, except under such regulations as theAttorney General, with the approval of the Secretaryof War, may from time to time prescribe.

CROSS REFERENCES

Aliens likely to engage in espionage, exclusion, ap-prehension and deportation, see sections 1182, 1225,1251 and 1327 of Title 8, Aliens and Nationality.

Article to be explained, see section 937 of this title.Communist-action organization, members of, see sec-

tion 843 of Title 50, War and National Defense.Espionage and censorship, see section 792 et seq. of

Title 18, Crimes and Criminal Procedure.Federal retirement benefits, forfeiture upon convic-


Forfeiture of veterans' benefits upon convictionunder this section, see section 3505 of Title 38, Veter-ans' Benefits,



This section is referred to in section 937 of this title;title 5 section 8312; title 38 section 3505.

§ 905 Page 188


§ 907. Art. 107. False official statements

Any person subject to this chapter who, withintent to deceive, signs any false record, return,regulation, order, or other official document,knowing it to be false, or makes any other falseofficial statement knowing it to be false, shallbe punished as a court-martial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 71.)



907 ............. 50:701. May 5. 1950, ch. 169,1 11(Art.- 107). 64 Stat.

138.

The word "it" is substituted for the words "thesame".

CROSS REFERENCESArticle to be explained, see section 937 of this title.Fraud and false statements, federal offenses, see sec-

tion 1001 et seq. of Title 18, Crimes and Criminal Pro-cedure.



§ 908. Art. 108. Military property of United States-Loss, damage, destruction, or wrongful disposi-tion

Any person subject to this chapter who, with-out proper authority-

(1) sells or otherwise disposes of;(2) willfully or through neglect damages,

destroys, or loses; or(3) willfully or through neglect suffers to be

lost, damaged, destroyed, sold, or wrongfullydisposed of;

any military property of the United States,shall be punished as a court-martial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 71.)



908 ....... 50:702. May 5, 1950, ch. 169, J I(Art. 108). 64 Stat.138.

CROSS REFERENCES


Government property, malicious mischief, see sec-tion 1361 of Title 18, Crimes and Criminal Proce-dure.

Public money, property or records, embezzlementand theft, see section 641 of Title 18.

Purchase of veterans' or armed forces' facilitiesproperty, fraud and false statements, see section1024 of Title 1 8.

Individual equipment, unauthorized disposition, seesections 4836, 9836 of this title.



This section is referred to In section 937 of this title.

§ 909. Art. 109. Property other than military propertyof United States-Waste, spoilage, or destruction

Any person subject to this chapter who will-fully or recklessly wastes, spoils, or otherwisewillfully and wrongfully destroys or damagesany property other than military property ofthe United States shall be punished as a court-martial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 71.)

HISTORICAL AND REVISIoN NOTES


909 ............ 50:703. M 1950, ch. 189, IIIAt. 109), 84 Stat.139.

CROSS REFERENCESArticle to be explained, see section 937 of this title.Statute of limitations, see section 843 of this title.



§ 910. Art. 110. Improper hazarding of vessel

(a) Any person subject to this chapter whowillfully and wrongfully hazards or suffers tobe hazarded any vessel of the armed forcesshall suffer death or such other punishment asa court-martial may direct.

(b) Any person subject to this chapter whonegligently hazards or suffers to be hazardedany vessel of the armed forces shall be pun-ished as a court-martial may direct.(Aug. 10, 1956, ch. 1041, 70A Stat. 71.)


Revised S SSource (Statutes atsection Source (U.S. Code) Large)

910(a) . 50:704(a). May 5, 1950. ch. 169, 0 1910(b). 50:704(b). (Art 110). 64 Stat.

139.

CROSS REFERENCES




§ 911. Art. 111. Drunken or reckless driving

Any person subject to this chapter who oper-ates any vehicle while drunk, or in a reckless orwanton manner, shall be punished as a court-martial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 72.)



911 ............. 50:705. May 5. 1950, ch. 169. I 1( t. 111), 64 Stat.131,.

Page 189


CROSS REFERENCES

Article to be explained. see section 937 of this title.



§912. Art. 112. Drunk on duty

Any person subject to this chapter other thana sentinel or look-out, who is found drunk onduty, shall be punished as a court-martial maydirect.

(Aug. 10, 1956, ch. 1041, 70A Stat. 72.)


Revised Sourc (U.S. Code) Source (Statutes atsection Latrges a

912 ............ 50:706. May 5, 1950, ch. 169. I(Art. 112), 64 Stat.139.

CROSS REFERENCES

Article to be explained, see section 937 of this title.Drunkenness or neglect of duty by seamen on com-

mercial vessel, federal offense, see section 2196 ofTitle 18, Crimes and Criminal Procedure.



§ 913. Art. 113. Misbehavior of sentinel

Any sentinel or look-out who is found drunkor sleeping upon his post, or leaves it before heis regularly relieved, shall be punished, if theoffense is committed in time of war, by deathor such other punishment as a court-martialmay direct, but if the offense is committed atany other time, by such punishment other thandeath as a court-martial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 72.)



913 ............. 50:707. May 5, 1950, ch. 169, I 1(Art. 113). 64 Stat.139.

CROSS REFERENCES

Article to be explained, see section 937 of this title.Federal retirement benefits, forfeiture upon convic.





§ 914. Art. 114. Dueling

Any person subject to this chapter who fightsor promotes, or is concerned in or connives atfighting a duel, or who, having knowledge of achallenge sent or about to be sent, fails toreport the facts promptly to the proper author-ity, shall be punished as a court-martial maydirect.

(Aug. 10, 1956, ch. 1041, 70A Stat. 72.)



914 ............. 50:708. May 5, 1950, ch. 169. 11It. 114), 64 Stat.139.

CROSS REFERENCES

Article to be explained, see section 937 of this title,



§ 915. Art. 115. Malingering

Any person subject to this chapter who forthe purpose of avoiding work, duty, or service-

(1) feigns illness, physical disablement,mental lapse or derangement; or

(2) intentionally inflicts self-injury;


(Aug. 10, 1956, ch. 1041, 70A Stat. 72.)



915 ............ 50:709. MaY 5. 1950, ch. 169. 11rt. 115). 64 Stat.

139.

CROSS REFERENCES




§ 916. Art. 116. Riot or breach of peace

Any person subject to this chapter whocauses or participates in any riot or breach ofthe peace shall be punished as a court-martialmay direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 72.)


Revised Source (U.S. Code) Source (Statutes atsection Sore(..Cd)Large)

916 ............. 50:710. May 5. 1950, ch. 169. 11At. 116), 64 Stat.

139.

CROSS REFERENCES

Article to be explained, see section 937 of this title.Crew rioting on board vessel of United States, feder-

al offense, see section 2192 of Title 18, Crimes andCriminal Procedure.



§ 917. Art. 117. Provoking speeches or gestures

Any person subject to this chapter who usesprovoking or reproachful words or gestures to-wards any other person subject to this chaptershall be punished as a court-martial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 72.)

Page 190§ 912




917 ...... 50:711. May 5. 1950, ch. 169, 11(Art. 117), 64 Stat.139.

CROSS REFERENCES




§918. Art. 118. Murder

Any person subject to this chapter who, with-out justification or excuse, unlawfully kills ahuman being, when he-

(1) has a premeditated design to kill;(2) intends to kill or inflict great bodily

harm;(3) is engaged in an act which is inherently

dangerous to others and evinces a wanton dis-regard of human life; or

(4) is engaged in the perpetration or at-tempted perpetration of burglary, sodomy,rape, robbery, or aggravated arson;

is guilty of murder, and shall suffer such pun-ishment as a court-martial may direct, exceptthat if found guilty under clause (1) or (4), heshall suffer death or imprisonment for life as acourt-martial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 72.)



918 ............. 50:712. May 5, 1950, ch. 169, 114rt. 118), 64 Stat.140.

The words "of this section" are omitted as surplus-

age.

CROSS REFERENCES

Article to be explained, see section 937 of this title.Burglary when intending to commit offense punish-

able under this section, see section 929 of this title.Federal offense, see section 1111 of Title 18, Crimes

and Criminal Procedure.Federal retirement benefits, forfeiture upon convic-

tion of offense described under this section, see sec-tion 8312 of Title 5, Government Organization andEmployees.

Killing while engaged in other crime as manslaugh-ter, see section 919 of this title.




This section is referred to in sections 919, 929, 937 ofthis title.

§919. Art. 119. Manslaughter

(a) Any person subject to this chapter who,with an intent to kill or inflict great bodilyharm, unlawfully kills a human being in theheat of sudden passion caused by adequateprovocation is guilty of voluntary manslaughterand shall be punished as a court-martial maydirect.

(b) Any person subject to this chapter who,without an intent to kill or inflict great bodilyharm, unlawfully kills a human being-

(1) by culpable negligence; or(2) while perpetrating or attempting to per-

petrate an offense, other than those named inclause (4) of section 918 of this title (article118), directly affecting the person;

is guilty of involuntary manslaughter and shallbe punished as a court-martial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 73.)



919(a) . 50:713(a). May 5, 1950, ch. 169. 1919(b) ........ 50:713(b). ( t. 119), 64 Stat.

140.

The word "named" is substituted for the word "spec-

ified".

CROSS REFERENCES



and Criminal Procedure.Statute of limitations, see section 843 of this title.



§ 920. Art. 120, Rape and carnal knowledge

(a) Any person subject to this chapter whocommits an act of sexual intercourse with afemale not his wife, by force and without herconsent, is guilty of rape and shall be punishedby death or such other punishment as a court-martial may direct.

(b) Any person subject to this chapter who,under circumstances not amounting to rape,commits an act of sexual intercourse with afemale not his wife who has not attained theage of sixteen years, is guilty of carnal knowl-edge and shall be punished as a court-martialmay direct.

(c) Penetration, however slight, is sufficientto complete either of these offenses.

(Aug. 10, 1956, ch. 1041, 70A Stat. 73.)


Rsectioned Source (U.S. Co Source (Statutes atsectio oeLarge)

920(a) ........ 50:714(a) May 5. 1950. ch. 169, 11920(b) . 50:714(b) (Art. 120). 64 Stat.920(c) . 50:714(c). 140.

In subsection (c), the words "either of" are inserted

for clarity.

CROSS REFERENCES


able under this section, see section 929 of this title.Federal offense, see sections 2031, 2032 of Title 18,

Crimes and Criminal Procedure.Federal retirement benefits, forfeiture upon convic-

tion of offenses described under this section, see sec-

Page 191 § 920


tion 8312 of Title 5, Government Organization andEmployees.




This section Is referred to in sections 843, 929, 937 ofthis title.

§ 921. Art. 121. Larceny and wrongful appropriation

(a) Any person subject to this chapter whowrongfully takes, obtains, or withholds, by anymeans, from the possession of the owner or ofany other person any. money, personal proper-ty, or article of value of any kind-

(1) with intent permanently to deprive ordefraud another person of the use and bene-fit of property or to appropriate it to his ownuse or the use of any person other than theowner, steals that property and is guilty oflarceny; or

(2) with intent temporarily to deprive or de-fraud another person of the use and benefitof property or to appropriate it to his own useor the use of any person other than theowner, is guilty of wrongful appropriation.

(b) Any person found guilty of larceny orwrongful appropriation shall be punished as acourt-martial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 73.)


Revised Source(U.S. Code) Source (Statutes atsection Large)

921(a).50:715(a). May 5. 1950, ch. 169, 11921(b) . 50:715(b). (Art. 121). 64 Stat.

140.

In subsection (a), the words "whatever" and "true"are omitted as surplusage. The word "it" is substitutedfor the words "the same" in clauses (1) and (2).

CROSS REFERENCES


able under this section, see section 929 of this title.Embezzlement and theft, federal offenses, see sec-

tion 641 et seq. of Title 18, Crimes and Criminal Proce-dure.

Statute of limitations, see section 843 of this title,



§ 922. Art. 122. Robbery

Any person subject to this chapter who withintent to steal takes anything of value from theperson or in the presence of another, againsthis will, by means of force or violence or fear ofimmediate or future injury to his person orproperty or to the person or property of a rela-tive or member of his family or of anyone in hiscompany at the time of the robbery, is guilty ofrobbery and shall be punished as a court-mar-tial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 73.)


Revised S (U.S. Code) Source (Statutes atsection Soi rce Large)

922. 50:716, May 5, 1950. ch. 169. 11(Art. 122). 64 Stat.140.

CROSS REFERENCES

Article to be explained, see section 937 of this title.Burglary when intending to commit offense punish.

able under this section, see section 929 of this title.Robbery and burglary, federal offenses, see section

2111 et seq. of Title 18, Crimes and Criminal Proce.dure.




§ 923. Art. 123. Forgery

Any person subject to this chapter who, withintent to defraud-

(1) falsely makes or alters any signature to,or any part of, any writing which would, ifgenuine, apparently impose a legal liabilityon another or change his legal right or liabili-ty to his prejudice; or

(2) utters, offers, issues, or transfers such awriting, known by him to be so made or al-tered;

is guilty of forgery and shall be punished as acourt-martial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 74.)


Revised Se (U.S. Code) Source (Statutes atsection ou.. Large)

923 . 50:717. May 5. 1950, ch. 169. 1 1( t. 123), 64 Stat.141.

CROSS REFERENCES

Article to be explained, see section 937 of this title.Burglary when intending to commit offenses punish-

able under this section, see section 929 of this title.Federal offenses, see section 471 et seq. of Title 18,

Crimes and Criminal Procedure.Statute of limitations, see section 843 of this title.



§ 923a. Art. 123a. Making, drawing, or uttering check,draft, or order without sufficient funds

Any person subject to this chapter who-(1) for the procurement of any article or

thing of value, with intent to defraud; or(2) for the payment of any past due obliga-

tion, or for any other purpose, with intent todeceive;

makes, draws, utters, or delivers any check,draft, or order for the payment of money uponany bank or other depository, knowing at thetime that the maker or drawer has not or willnot have sufficient funds in, or credit with, the

§ 921 Page 192


bank or other depository for the payment ofthat check, draft, or order in full upon its pre-sentment, shall be punished as a court-martialmay direct. The making, drawing, uttering, ordelivering by a maker or drawer of a check,draft, or order, payment of which is refused bythe drawee because of insufficient funds of themaker or drawer in the drawee's possession orcontrol, is prima facie evidence of his intent todefraud or deceive and of his knowledge of in-sufficient funds in, or credit with, that bank orother depository, unless the maker or drawerpays the holder the amount due within fivedays after receiving notice, orally or in writing,that the check, draft, or order was not paid onpresentment. In this section, the word "credit"means an arrangement or understanding, ex-press or implied, with the bank or other deposi-tory for the payment of that check, draft, ororder.(Added Pub. L. 87-385, § 1(1), Oct. 4, 1961, 75Stat. 814.)

EFFECTIVE DATE

Section 2 of Pub. L. 87-385 provided that: "This Act[adding this section] becomes effective on the firstday of the fifth month following the month in whichit is enacted [October, 19611."



§ 924. Art. 124. Maiming

Any person subject to this chapter who, withintent to injure, disfigure, or disable, inflictsupon the person of another an injury which-

(1) seriously disfigures his person by anymutilation thereof;

(2) destroys or disables any member ororgan of his body; or

(3) seriously diminishes his physical vigorby the injury of any member or organ;

is guilty of maiming and shall be punished as acourt-martial may direct.(Aug. 10, 1956, ch. 1041, 70A Stat. 74.)



924 ............. 50:718. May 5. 1950, ch. 169, 11(Art. 124). 64 Stat.141.

CROSS REFERENCES

Article to be explained, see section 937 of this title,Burglary when intending to commit offense punish-




This section Is referred to in sections 843, 929, 937 ofthis title.

§ 925. Art. 125. Sodomy

(a) Any person subject to this chapter whoengages in unnatural carnal copulation with an-

other person of the same or opposite sex orwith an animal is guilty of sodomy. Penetra-tion, however slight, is sufficient to completethe offense.

(b) Any person found guilty of sodomy shallbe punished as a court-martial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 74.)


Revised Source U.S. Code) Source (Statutes atsection La rge)

925(a) ........ 50:719(a), May 5. 1950, ch. 169. 31925(b) ........ 50:719(b). art. 125), 64 Stat.

141.

CROSS REFERENCES


able under this section, see section 929 of this title.Statute of limitations, see section 843 of this title.



§ 926. Art. 126. Arson

(a) Any person subject to this chapter whowillfully and maliciously burns or sets on firean inhabited dwelling, or any other structure,movable or immovable, wherein to the knowl-edge of the offender there is at the time ahuman being, is guilty of aggravated arson andshall be punished as a court-martial may direct.

(b) Any person subject to this chapter whowillfully and maliciously burns or sets fire tothe property of another, except as provided insubsection (a), is guilty of simple arson andshall be punished as a court-martial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 74.)


Revised Source (U.S. Code) Source (Statutes atsectton Large)

926(a) ........ 50:720(a). May 5, 1950, ch. 189, 31926(b) ........ 50:720(b). (Art. 128). 64 Stat.

141.

In subsection (b), the words "of this section" areomitted as surplusage.

CROSS REFERENCES






§ 927. Art. 127. Extortion

Any person subject to this chapter who com-municates threats to another person with theintention thereby to obtain anything of valueor any acquittance, advantage, or immunity is

11-602 0 - 83 - 8 QI, 3

Page 193 § 927


guilty of extortion and shall be punished as acourt-martial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 74.)



927 ..... 50:721. Ma 5. 1950. ch. 169, I 1It. 127). 64 Stat.141.

The words "of any description" are omitted as sur-plusage.

CROSS REFERENCES


able under this section, see section 929 of this article.Federal offenses-

Extortion and threats, see section 871 et seq. ofTitle 18, Crimes and Criminal Procedure.

Interference with commerce by threats or violencesee section 1951 of Title 18.



This section is referred to In sections 843, 929, 937 ofthis title.

§ 928. Art. 128. Assault

(a) Any person subject to this chapter who at-tempts or offers with unlawful force or violenceto do bodily harm to another person, whetheror not the attempt or offer is consummated, isguilty of assault and shall be punished as acourt-martial may direct.

(b) Any person subject to this chapter who-(1) commits an assault with a dangerous

weapon or other means or force likely to pro-duce death or grievous bodily harm; or

(2) commits an assault and intentionally in-flicts grievous bodily harm with or without aweapon;

is guilty of aggravated assault and shall be pun-ished as a court-martial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 75.)


Revised (.Source (Statutes atsection Source (U.S. Code) Large)

928(a) ........ 50:722(a). May 5, 1950. ch. 169, i1928(b). 50:722(b). (Art. 128), 64 Stat.141.

CROSS REFERENCES


able under this section, see section 929 of this title.Federal offense, see section 111 et seq. of Title 18,

Crimes and Criminal Procedure.Statute of limitations, see section 843 of this title.Superior commissioned officer, assaulting, see sec-

tion 890 of this title.Warrant officer, noncommissioned officer, or petty

officer, assaulting, see section 891 of this title.



§ 929. Art. 129. Burglary

Any person subject to this chapter who, withintent to commit an offense punishable undersections 918-928 of this title (articles 118-128),breaks and enters, in the nighttime, the dwell-ing house of another, is guilty of burglary andshall be punished as a court-martial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 75.)



929 ............. 50:723. May 5, 1950, ch. 169, I 1(Art. 129), 64 Stat.142.

CROSS REFERENCES

Article to be explained, see section 937 of this title.Robbery and burglary, federal offenses, see section

2111 et seq. of Title 18, Crimes and Criminal Proce-dure.




§ 930. Art. 130. Housebreaking

Any person subject to this chapter who un-lawfully enters the building or structure of an-other with intent to commit a criminal offensetherein is guilty of housebreaking and shall bepunished as a court-martial may direct.

(Aug, 10, 1956, ch. 1041, 70A Stat. 75.)



930 ............. 50:724. May 5, 1950, ch. 169. 1(Art. 130), 64 Stat.142.

CROSS REFERENCES

Article to be explained, see section 937 of this title.Statute of limitations, see section 843 of this title.



§931. Art. 131. Perjury

Any person subject to this chapter who in ajudicial proceeding or in a course of justice will-fully and corruptly-

(1) upon a lawful oath or in any form al-lowed by law to be substituted for an oath,gives any false testimony material to theissue or matter of inquiry: or

(2) in any declaration, certificate, verifica-tion, or statement under penalty of perjury aspermitted under section 1746 of title 28, sub-scribes any false statement material to theissue or matter of inquiry;

is guilty of perjury and shall be punished as acourt-martial may direct,

Page 194§ 928


(Aug. 10, 1956, ch. 1041, 70A Stat. 75; Oct. 18,1976, Pub. L. 94-550, § 3, 90 Stat. 2535; Oct. 12,1982, Pub. L. 97-295. § 1(13), 96 Stat. 1289.)


Revised Source (U.S. Code) Source (Statutes atsection I I Large)

931 ............. 1 50:725.

shall, upon conviction, be punished as a court-martial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 75.)


Revised .qou re ( U.S. Code) Source (Statutes atLarge)

tM5. 1950. ch. 169, 1

132). 64 Stat.142.

The words "in a" are inserted before the words"course of justice".

AMENDMENTS

1982-Par. (2). Pub. L. 97-295 struck out "UnitedStates Code," following "title 28,".

1976-Pub. L. 94-550 divided existing provisions intoan introductory phrase, par. (1), and a closing phrase,and added par. (2).

CROSS REFERENCES

Article to be explained, see section 937 of this title.Federal offense, see section 1621 of Title 18, Crimes




§ 932. Art. 132. Frauds against the United States

Any person subject to this chapter-(1) who, knowing it to be false or fraudu-

lent-(A) makes any claim against the United

States or any officer thereof; or(B) presents to any person in the civil or

military service thereof, for approval orpayment, any claim against the UnitedStates or any officer thereof;

(2) who, for the purpose of obtaining theapproval, allowance, or payment of any claimagainst the United States or any officerthereof-

(A) makes or uses any writing or otherpaper knowing it to contain any false orfraudulent statements;

(B) makes any oath to any fact or to anywriting or other paper knowing the oath tobe false; or

(C) forges or counterfeits any signatureupon any writing or other paper, or usesany such signature knowing it to be forgedor counterfeited;

(3) who, having charge, possession, custodyor control of any money, or other property ofthe United States, furnished or intended forthe armed forces thereof, knowingly deliversto any person having authority to receive it,any amount thereof less than that for whichhe receives a certificate or receipt; or

(4) who, being authorized to make or deliverany paper certifying the receipt of any prop-erty of the United States furnished or intend-ed for the armed forces thereof, makes or de-livers to any person such writing withouthaving full knowledge of the truth of thestatements therein contained and with intentto defraud the United States;

The word "it" is substituted for the words "the

same" throughout the revised section.

CROSS REFERENCES


Claims and services in matters affecting Govern.ment, see section 285 et seq. of Title 18, Crimesand Criminal Procedure.

Fraud and false statements, see section 1001 et seq.of Title 18.




§ 933. Art. 133. Conduct unbecoming an officer and agentleman

Any commissioned officer, cadet, or midship-man who is convicted of conduct unbecomingan officer and a gentleman shall be punished asa court-martial may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 76.)


Revised Source ( U.S. Code) Source (Statutes atsection Large)

933 ............. 50:727. Ma 5, 1950, ch. 169. 11( t. 133), 64 Stat.142.


CROSS REFERENCES




9 931. Art. 131. General article

Though not specifically mentioned in thischapter, all disorders and neglects to the preju-dice of good order and discipline in the armedforces, all conduct of a nature to bring discreditupon the armed forces, and crimes and offensesnot capital, of which persons subject to thischapter may be guilty, shall be taken cogni-zance of by a general, special, or summarycourt-martial, according to the nature anddegree of the offense, and shall be punished atthe discretion of that court.

(Aug. 10, 1956, ch. 1041, 70A Stat. 76.)

sectionMRy 5, 1950, ch. 169. |11 sc~ n . .,rt. 131), 64 Stat. 932 ......... 50:726.

142.

Page 195



Source (U.S. Code) Source (Statutes atsection La rpe

934 ............ 50:728. May 5, 1950, ch. 169. 1(Art. 134), 64 Stat.142.

The words "shall be" are Inserted before the word

"punished'..

CROSS REFERENCES



This section ih referred to in section 937 of this title.

SUBCHAPTER XI-MISCELLANEOUSPROVISIONS

Sec. Art.

935. 135. Courts of inquiry.936. 136. Authority to administer oaths and to act

as notary.937. 137. Articles to be explained.938. 138. Complaints of wrongs.939. 139. Redress of injuries to property.940. 140. Delegation by the President.

§ 935. Art. 135. Courts of inquiry

(a) Courts of inquiry to investigate anymatter may be convened by any person author-ized to convene a general court-martial or byany other person designated by the Secretaryconcerned for that purpose, whether or not thepirsons involved have requested such an in-quiry.

(b) A court of inquiry consists of three ormore commissioned officers. For each court ofinquiry the convening authority shall also ap-point counsel for the court.

(c) Any person subject to this chapter whoseconduct is subject to inquiry shall be designat-ed as a party. Any person subject to this chap-ter or employed by the Department of Defensewho has a 4irect interest in the subject of in-quiry has t.Le right to be designated as a partyupon request to the court. Any person designat-ed as a party shall be given due notice and hasthe right to be present, to be represented bycounsel, to cross-examine witnesses, and to in-troduce evidence.

(d) Members of a court of inquiry may bechallenged by a party, but only for cause statedto the court.

(e) The members, counsel, the reporter, andinterpreters of courts of inquiry shall take anoath to faithfully perform their duties.

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

(g) Courts of inquiry shall make findings offact but may not express opinions or make rec-ommendations unless required to do so by theconvening authority.

(h) Each court of inquiry shall keep a recordof its proceedings, which shall be authenticatedby the signatures of the president and counselfor the court and forwarded to the conveningauthority. If the record cannot be authenticat-

ed by the president, it shall be signed by amember in lieu of the president. If the recordcannot be authenticated by the counsel for thecourt, it shall be signed by a member in lieu ofthe counsel.

(Aug. 10, 1956, ch. 1041, 70A Stat. 76.)



935(a) . 50:731(a). May 5, 1950. ch. 169. 11935(b) ........ 50:731(b). (Art. 135), 64 Stat.935(c) ......... 50:731(c), 143.935(d) ........ 50:731(d).935(e) ........ 50:731(e).935(1)...:::: 50:731(f).935(g) ...,,,.. 50:731(g).935(h)... 50:731(h).

In subsection (a), the words "Secretary concerned"are substituted for the words "Secretary of a Depart-ment".

In subsection (b), the word "commissioned" is insert-ed for clarity. The word "consists" is substituted forthe words "shall consist".

In subsection (c), the word "has" is substituted forthe words "shall have".

In subsection (e), the words "or affirmation" areomitted as covered by the definition of the word"oath" in section 1 of title 1.

In subsection (g), the word "may" is substituted forthe word "shall".

In subsection (h), the word "If" is substituted forthe words "In case".

CROSS REFERENCES

Challenges, general or special court-martial, see sec-tion 841 of this title.

Counsel, right to before general or special court-martial, see section 838 of this title.

Evidence, courts-martial-Depositions, see section 849 of this title.Opportunity to obtain witnesses and other evi-

dence, see section 846 of this title.Refusal of witnesses to appear or testify, see sec-

tion 847 of this title.Judge Advocate Generals of the Army and Air Force

to receive, revise, and have recorded proceedings ofcourts of inquiry, see sections 3037, 8072 of this title.

Military Judge of general court-martial, see section826 of this title.

Oaths, administration of; notary, general powers of,see section 936 of this title.

Oaths, general and special courts-martial, see section842 of this title.

Persons authorized to convene general courts-mar-tial, see section 822 of this title.

Records of courts of inquiry, admissibility, see sec-tion 850 of this title.

§ 936. Art. 136. Authority to administer oaths and toact as notary

(a) The following persons on active duty mayadminister oaths for the purposes of militaryadministration, including military Justice, andhave the general powers of a notary public andof a consul of the United States, in the per-formance of all notarial acts to be executed bymembers of any of the armed forces, whereverthey may be, by persons serving with, employedby, or accompanying the armed forces outsidethe United States and outside the Canal Zone,Puerto Rico, Guam, and the Virgin Islands, andby other persons subject to this chapter outsideof the United States:

§ 935 Page 196


(1) All judge advocates of the Army, Navy,Air Force, and Marine Corps.

(2) All law specialists.(3) All summary courts-martial.(4) All adjutants, assistant adjutants, acting

adjutants, and personnel adjutants.(5) All commanding officers of the Navy,

Marine Corps, and Coast Guard.(6) All staff judge advocates and legal offi-

cers, and acting or assistant staff judge advo-cates and legal officers.

(7) All other persons designated by regula-tions of the armed forces or by statute.(b) The following persons on active duty may

administer oaths necessary in the performanceof their duties:

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

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

(3) All officers designated to take a deposi-tion.

(4) All persons detailed to conduct an inves-tigation.

(5) All recruiting officers.(6) All other persons designated by regula-

tions of the armed forces or by statute.(c) No fee may be paid to or received by any

person for the performance of any notarial actherein authorized.

(d) The signature without seal of any suchperson acting as notary, together with the titleof his office, is prima facie evidence of his au-thority.(Aug. 10, 1956, ch. 1041, 70A Stat. 77; July 5,1960, Pub. L. 86-589, 74 Stat. 329; Dec. 8, 1967,Pub. L. 90-179, § 1(7), 81 Stat. 546; Oct. 24, 1968,Pub. L. 90-632, § 2(34), 82 Stat. 1343.)

HISTORICAL AND REVIsIoN NOTES

section Source (U.S. Large)

936(a) .50:732(a). May 5, 1950, ch. 169, 91936(b) ........ 50:732(b). (Art. 136), 64 Stat.936(c) ......... 50:732(c). 143.936(d) ........ 50:732(d).

In subsection (a), the word "may" is substituted forthe words "shall have authority to". The word "shall"before the words "have the general powers" is omittedas surplusage. The words "the continental limits" areomitted, since section 101(1) of this title defines theUnited States to include the States and the District ofColumbia.

In subsections (a) and (b), the words "in the armedforces" are omitted as surplusage.

In subsection (b), the word "may" is substituted forthe words "shall have authority to".

In subsection (c), the words "of any character" areomitted as surplusage. The word "may" is substitutedfor the word "shall".

In subsection (d), the word "is" is substituted for thewords "shall be".

REFERENCES IN TEXT

For definition of Canal Zone, referred to in subsec.(a), see section 3602(b) of Title 22, Foreign Relationsand Intercourse.

AMENDMENTS

1968-Subsec. (b). Pub. L. 90-632 substituted "mili.tary judge" for "law officer" in par. (1).

1967-Subsee. (a)(1). Pub. L. 90-179 inserted refer.ences to judge advocates of the Navy and the MarineCorps.

1960-Subsec. (a). Pub. L. 86-589 permitted the ad-ministration of oaths and the performance of notarialacts for persons serving, employed by, or accompany-ing the armed forces outside the United States andoutside the Canal Zone, Puerto Rico, Guam, and theVirgin Islands.



§ 937. Art. 137. Articles to be explained

Sections 802, 803, 807-815, 825, 827, 831, 837,838, 855, 877-934, and 937-939 (articles 2, 3,7-15, 25, 27, 31, 37, 38, 55, 77-134, and 137-139)of this chapter shall be carefully explained toeach enlisted member at the time of his en-trance on active duty, or within six days there-after. They shall be explained again after hehas completed six months of active duty, andagain at the time when he reenlists. A completetext of the Uniform Code of Military Justiceand of the regulations prescribed by the Presi-dent thereunder shall be maade available to anyperson on active duty, upon his request, for hispersonal examination.

(Aug. 10, 1956, ch. 1041, 70A Stat. 78.)


Revised Source U.S. Code) Source (Statutes atsection Large)

937 ............. 50:733. May 5, 1950, ch. 169, 1(Art. 137), 64 Stat.144.

The word "each" is substituted for the word "every".The word "member" is substituted for the word"person". The words "in [any of] the armed forces ofthe United States" are omitted as surplusage.

REFERENCES IN TEXT

The Uniform Code of Military Justice, referred to intext, is classified to this chapter.

§ 938. Art. 138. Complaints of wrongs

Any member of the armed forces who believeshimself wronged by his commanding officer,and who, upon due application to that com-manding officer, is refused redress, may com-plain to any superior commissioned officer, whoshall forward the complaint to the officer exer-cising general court-martial jurisdiction overthe officer against whom it is made. The officerexercising general court-martial jurisdictionshall examine into the complaint and takeproper measures for redressing the wrong com-plained of; and he shall, as soon as possible,send to the Secretary concerned a true state-ment of that complaint, with the proceedingshad thereon.

(Aug. 10, 1956, ch. 1041, 70A Stat. 78.)

Page 197 § 938




938 ............. 50:734. May 5, 1950, ch. 169, 11(Art. 138). 64 Stat.144.

The words "commanding officer" are substituted forthe word "commander". The word "who" is insertedafter the word "and". The word "commissioned" is in-serted after the word "superior" for clarity. The words"The officer exercising general court-martial Jurisdic-tion" are substituted for the words "That officer" forclarity. The word "send" is substituted for the word"transmit". The word "Secretary" is substituted forthe word "Department" for accuracy, since the "De-partment", as an entity, could not act upon the com-plaint.

CROSS REFERENCES




§ 939. Art. 139. Redress of injuries to property

(a) Whenever complaint is made to any com-manding officer that willful damage has beendone to the property of any person or that hisproperty has been wrongfully taken by mem-bers of the armed forces, he may, under suchregulations as the Secretary concerned mayprescribe, convene a board to investigate thecomplaint. The board shall consist of from oneto three commissioned officers and, for the pur-pose of that investigation, it has power tosummon witnesses and examine them uponoath, to receive depositions or other documen-tary evidence, and to assess the damages sus-tained against the responsible parties. The as-sessment of damages made by the board is sub-Ject to the approval of the commanding officer,and In the amount approved by him shall becharged against the pay of the offenders. Theorder of the commanding officer directingcharges herein authorized is conclusive on anydisbursing officer for the payment by him tothe injured parties of the damages so assessedand approved.

(b) If the offenders cannot be ascertained,but the organization or detachment to whichthey belong is known, charges totaling theamount of damages assessed and approved maybe made in such proportion as may be consid-ered Just upon the individual members thereofwho are shown to have been present at thescene at the time the damages complained ofwere Inflicted, as determined by the approvedfindings of the board.

(Aug. 10, 1956, ch. 1041, 70A Stat. 78.)

HISTORICAL ANI REVISION NOTES


939(a) ........ 50:735(a). May 5. 1950, ch. 169, 11939(b) ........ 50:735(b). (Art. 139). 64 Stat.

144.

In subsection (a), the words "Secretary concerned"are substituted for the words "Secretary of the De-partment". The word "under" is substituted for the

words "subject to". The words "or affirmation" areomitted as covered by the definition of the word"oath" in section 1 of title 7. The words "it has" aresubstituted for the words "shall have" in the secondsentence. The word "is" is substituted for the words"shall be" before the words "subject" and "conclu-sive". The word "commissioned" is inserted for clarity.

In subsection (b), the word "If" is substituted for theword "Where". The word "considered" is substitutedfor the word "deemed".

CROSS REFERENCES




§ 940. Art. 140. Delegation by the President

The President may delegate any authorityvested in him under this chapter, and providefor the subdelegation of any such authority.

(Aug. 10, 1956, ch. 1041, 70A Stat. 78.)



940 ............. 50:736. May 5. 1950. ch. 169. 11(Art. 140), 64 Stat.145.

The word "may" is substituted for the words "is au-thorized to * $ to".

CHAPTER 48-MILITARY CORRECTIONALFACILITIES

Sec.951. Establishment; organization: administration.952. Parole.953. Remission or suspension of sentence; restora-

tion to duty: reenlistment.954. Voluntary extension; probation.955. Prisoners transferred to or from foreign

countries.

AMENDMENTS

1980-Pub. L. 9e-513, title V, 1 511(26), Dec. 13, 1980,94 Stat. 2922, added item 955.

§ 951. Establishment; organization; administration

(a) The Secretaries concerned may providefor the establishment of such military correc-tional facilities as are necessary for the confine-ment of offenders against chapter 47 of thistitle.

(b) The Secretary concerned shall-(1) designate an officer for each armed

force under his jurisdiction to administer mil-itary correctional facilities established underthis chapter;

(2) provide for the education, training, re-habilitation, and welfare of offenders con-fined in a military correctional facility of hisdepartment; and

(3) provide for the organization and equip-ping of offenders selected for training with aview to their honorable restoration to duty orpossible reenlistment.

(c) There shall be an officer in command ofeach major military correctional facility. Underregulations to be prescribed by the Secretary

§l 939 Page 198

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