The Uniform Code of Military Justice (UCMJ)
These are the rights for members of the US military. Here is the document in its entirety:
Subchapter Sec Art.
I. General Provisions 801
1
II. Apprehension
and Restraint 807 7
III Non-Judicial
Punishment 815 15
IV. Court-Martial
Jurisdiction 816 16
V. Composition
of Courts-Martial 822 22
VI. Pre-Trial Procedure
830 30
VII. Trial Procedure 836
36
VIII. Sentences 855 55
IX.
Post-Trial Procedure and Review of Courts Martial 859 59
X.
Punitive Articles 877 77
XI.
Miscellaneous Provisions 935 135
*XII
Court of Military Appeals 941 141
SUB
CHAPTER 1. GENERAL PROVISIONS
Sec. Art.
801. 1. Definitions
802. 2. Persons
Subject to this chapter.
803.
3. Jurisdiction to try certain personnel.
804.
4. Dismissed officer's right to trial by court-martial.
805.
5. Territorial applicability of this chapter.
806. 6.
Judge advocates and legal officers.
*806a
6a. Investigation and disposition of matters pertaining to the
fitness of military judges.
801. ART. 1. DEFINITIONS.
In this chapter.
(1) "Judge Advocate
General" means, severally, the Judge Advocates General of the Army,
Navy, and Air Force and, except when the Coast Guard is operating as a
service in the Navy, the General Counsel of the Department of Transportation.
(2) The Navy, the Marine
Corps, and the Coast Guard designated as such by appropriate authority.
(4) "Officer in Charge"
means a member of the Navy, the Marine Corps, or the Coast Guard designated
as such by appropriate authority.
(5) "Superior commissioned
officer" means a commissioned officer superior in rank of command.
(6) "Cadet" means
a cadet of the United States Military Academy, the United States Air Force
Academy, or the United States Coast Guard Academy.
(7) "Midshipman"
means a midshipman of the United States Naval Academy and any other midshipman
on active duty in the naval service.
(8) "Military"
refers to any or all of the armed forces.
(9) "Accuser" means
a person who signs and swears to charges, any person who directs that charges
nominally be signed and sworn to by another person who has an interest
other than an official interest in the prosecution of the accused.
(10) "Military Judge"
means an official of a general or special court-martial detailed in accordance
with section 826 of this title (article 26).
(11) "Law specialist"
means a commissioned officer of the Coast Guard designated for special
duty (law).
(12) "Legal officer"
means any commissioned officer of the Navy, Marine Corps, or Coast Guard
designated to perform legal duties for a command.
(13) "Judge Advocate"
means--
(A) an officer of the Judge
Advocate General's Corp of the Army or the Navy;
(B) an officer of the Air
Force or the Marine Corps who is designated as a judge advocate; or
(C) an officer of the Coast
Guard who is designated as a law specialist.
(14) "Record",
when used in connection with the proceedings of a court-martial means--
(A) an official written transcript,
written summary, or other writing relating to the proceedings: or
(B) an official audiotape,
videotape, or similar material from which sound and visual images, depicting
the proceedings may be reproduced.
802.
ART. 2. PERSONS SUBJECT TO THIS CHAPTER
(a) The following persons
are subject to this chapter:
(1) Members of a regular
component of the armed forces, including those awaiting discharge after
expiration of their terms of enlistment; volunteers from the time of their
muster or acceptance into the armed forces; inductees from the time of
their actual induction into the armed forces; and other persons lawfully
called or ordered into, or to duty in or for training in the armed forces,
from the dates when they are required by the terms of the call or order
to obey it.
(2) Cadets, aviation cadets,
and midshipman.
(3) Members of a reserve
component while on inactive-duty training, but in the case of members of
the Army National Guard of the United States or the Air National Guard
of the United States only when in Federal Service.
(4) Retired members of a
regular component of the armed forces who are entitled to pay.
(5) Retired members of a
reserve component who are receiving hospitalization from an armed force.
(6) Members of the Fleet
Reserve and Fleet Marine Corps Reserve.
(7) Persons in custody of
the armed forces serving a sentence imposed by a court-martial.
(8) Members of the National
Oceanic and Atmospheric Administration, Public Health Service, and other
organizations, when assigned to and serving with the armed forces.
(9) Prisoners of war in custody
of the armed forces.
(10) In time of war, persons
serving with or accompanying an armed force in the field.
(11) Subject to any treaty
or agreement which the United States is or may be a party to any accepted
rule of international law, persons serving with, employed by, or accompanying
the armed forces outside the United States and outside the Canal Zone,
the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
(12) Subject to any treaty
or agreement t which the United States is or may be a party to any accepted
rule of international law, persons within an area leased by or otherwise
reserved or acquired for use of the United States which is under the control
of the Secretary concerned and which is outside the United States and outside
the Canal Zone, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
(b) The voluntary enlistment
of any person who has the capacity to understand the significance of enlisting
in the armed forces shall be valid for purposes of jurisdiction under subsection
(a) and change of status from civilian to member of the armed forces shall
be effective upon the taking of the oath of enlistment.
(c) Notwithstanding any other
provision of law, a person serving with an armed force who--
(1) Submitted voluntarily
to military authority;
(2) met the mental competence
and minimum age qualifications of sections 504 and 505 of this title at
the time of voluntary submissions to military authority:
(3) received military pay
or allowances; and
(4) performed military duties:
is subject to this chapter until such person's active service has been
terminated in accordance with law or regulations promulgated by the Secretary
concerned.
(d)(1) A member of a reserve
component who is not on active duty and who is made the subject of proceedings
under section 815 (article 15) or section 830 (article 30) with respect
to an offense against this chapter may be ordered to active duty involuntary
for the purpose of-
(A) investigation under section
832 of this title (article 32);
(B) trial by court-martial;
or
(C) non judicial punishment
under section 815 of this title (article 15).
(2) A member of a reserve
component may not be ordered to active duty under paragraph (1) except
with respect to an offense committed while the member was
(A) on active duty; or
(B) on inactive-duty training,
but in the case of members of the Army National Guard of the United States
or the Air National Guard of the United States only when in Federal service.
(3) Authority to order a
member to active duty under paragraph (1) shall be exercised under regulations
prescribed by the President.
(4) A member may be ordered
to active duty under paragraph (1) only by a person empowered to convene
general courts-martial in a regular component of the armed forces.
(5) A member ordered to active
duty under paragraph (1), unless the order to active duty was approved
by the Secretary concerned, may not--
(A) be sentenced to confinement;
or
(B) be required to serve
a punishment of any restriction on liberty during a period other than a
period of inactive-duty training or active duty (other than active duty
ordered under paragraph (1)).
803.
ART. 3. JURISDICTION TO TRY CERTAIN PERSONNEL
(a) Subject to section 843
of this title (article 43), no person charged with having committed, while
in a status in which he was subject to this chapter, an offense against
this chapter, punishable by confinement for five years or more and for
which the person cannot be tried in the courts of the United States or
of a State, a Territory, or District of Columbia, may be relieved from
amenability to trial by court-martial by reason of the termination of that
status.
(b) Each person discharged
from the armed forces who is later charged with having fraudulently obtained
his discharge is, subject to section 843 of this title (article 43), subject
to trial by court-martial on that charge and is after apprehension subject
to trial by court-martial for all offense under this chapter committed
before the fraudulent discharge
(c) No person who has deserted
from the armed forces may be relieved form amenability to the jurisdiction
of this chapter by virtue of separation from any later period of service.
(d) A member of a reserve
component who is subject to this chapter is not, by virtue of the termination
of a period of active duty or inactive-duty training, relieved from amenability
to the jurisdiction of this chapter for an offense against this chapter
committed during such period of active duty or inactive-duty training.
804
ART. 4. DISMISSED OFFICER'S RIGHT TO TRIAL BY COURT-MARTIAL
(a) If any commissioned officer,
dismissed by order of the president, makes a written application for trial
by court-martial setting forth under oath, that he has been wrongfully
dismissed, the President, as soon as practicable, shall convene a general
court-martial to try that officer on the charges on which he was dismissed.
A court-martial so convened has jurisdiction to try the dismissed officer
on those charges, and he shall be considered to have waived the right to
plead any statute of limitations applicable to any offense with which he
is charged. The court-martial may, as part of its sentence, adjudge the
affirmance of the dismissal, but if the court-martial acquits the accused
or if the sentence adjudged, as finally approved or affirmed, does not
include dismissal or death, the Secretary concerned shall substitute for
the dismissal ordered by the President a form of discharge authorized for
administrative issue.
(b) If the President fails
to convene a general court-martial within six months from the preparation
of an application for trial under this article, the Secretary concerned
shall substitute for the dismissal order by the President a form of discharge
authorized for administrative issue.
(c) If a discharge is substituted
for a dismissal under this article, the President alone may reappoint the
officer to such commissioned grade and with such rank as, in the opinion
of the President, that former officer would have attained had he not been
dismissed. The reappointment of such a former officer shall be without
regard to the existence of a vacancy and shall affect the promotion status
of other officers only insofar as the President may direct. All time between
the dismissal and the reappointment shall be considered as actual service
for all purposes, including the right to pay and allowances.
(d) If an officer is discharged
from any armed force by administrative action or is dropped from the rolls
by order of the President, he has no right to trial under this article.
805.
ART. 5. TERRITORIAL APPLICABILITY OF THIS CHAPTER
This chapter applies in all
places.
806.
ART. 6. JUDGE ADVOCATES AND LEGAL OFFICERS
(a) The assignment for duty
of judge advocates of the Army, Navy, Air Force, and Coast Guard shall
be made upon the recommendation of the Judge Advocate General of the armed
force of which they are members. The assignment for duty of judge advocate
of the Marine Corps shall be made by direction of the Commandant of the
Marine Corps. The Judge Advocate General or senior members of his staff
shall make frequent inspection in the field in supervision of the administration
of military justice.
(b) Convening authorities
shall at all times communicate directly with their staff judge advocates
or legal officers in matters relating to the administration of military
justice; and the staff judge advocate or legal officer of a superior or
subordinate command, or with the Judge Advocate General.
(c) No person who has acted
as member, military judge, trial counsel, assistant trial counsel, defense
counsel, assistant defense counsel, or investigating officer in any case
may later act as staff judge-advocate or legal officer to any reviewing
authority upon the same case.
(d)(1) A judge advocate who
is assigned or detailed to perform the functions of a civil office in the
Government of the United States under section 973(*b)(2)(B) of this title
may perform such duties as may be requested by the agency concerned, including
representation of the United States in civil and criminal cases.
(2) The Secretary of Defense,
and the Secretary of Transportation with respect to the Coast Guard when
it in not operating as a service in the Navy, shall prescribe regulations
providing that reimbursement may be a condition of assistance by judge
advocates assigned or detailed under section 973(b)(2)(B) of this title.
*
806a. ART. 6a. INVESTIGATION AND DISPOSITION OF MATTERS PERTAINING TO THE
FITNESS OF MILITARY JUDGES.
(a) The President shall prescribe
procedures for the investigation and disposition of charges, allegations,
or information pertaining to the fitness of a military judge or military
appellate judge to perform the duties of the judge's position, to the extent
practicable, the procedures shall be uniform for all armed forces.
(b) The President shall transmit
a copy of the procedures prescribed pursuant to this section to the Committees
on Armed Services of the Senate and the House of Representatives.
SUBCHAPTER
II. APPREHENSION AND RESTRAINT
Sec. Art.
807. 7. Apprehension.
808. 8. Apprehension
of deserters.
809. 9. Imposition
of Restraint.
810.
10. Restraint of persons charged with offenses.
811. 11.
Reports and receiving of prisoners.
812.
12. Confinement with enemy prisoners prohibited.
813. 13.
Punishment prohibited before trial.
814.
14. Delivery of offenders to civil authorities.
807. ART. 7. APPREHENSION
(a) Apprehension is the taking
of a person into custody.
(b) Any person authorized
under regulations governing the armed forces to apprehend persons subject
to this chapter or to trial thereunder may do so upon reasonable belief
that an offense has been committed and that the person apprehended committed
it.
(c) Commissioned officers,
warrant officers, petty officers, and noncommissioned officers have authority
to quell quarrels, frays and disorders among persons subject to this chapter
who take part therein.
808.
ART. 8. APPREHENSION OF DESERTERS
Any civil officer having
authority to apprehend offenders under the laws of the United States or
of a State, Territory, Commonwealth, or possession, or the District of
Columbia may summarily apprehend a deserter from the armed forces and deliver
him into the custody of those forces.
809.
ART. 9. IMPOSITION OF RESTRAINT
(a) Arrest is the restraint
of a person by an order, not imposed as a punishment for an offense, directing
him to remain within certain specified limits. Confinement is the physical
restraint of a person.
(b) An enlisted member may
be ordered into arrest or confinement by any commissioned officer by an
order, oral or written, delivered in person or through other persons subject
to this chapter. A commanding officer may authorize warrant officers, petty
officers, or noncommissioned officers to order enlisted members of his
command or subject to his authority into arrest or confinement.
(c)A commissioned officer,
a warrant officer, or a civilian subject to this chapter or to trial thereunder
may be ordered into arrest or confinement only by a commanding officer
to whose authority he is subject, by an order, oral or written, delivered
in person or by another commissioned officer. The authority to order such
persons into arrest or confinement may not be delegated.
(d) No person may be ordered
into arrest or confinement except for probable cause.
(e) Nothing in this article
limits the authority of person s authorized to apprehend offenders to secure
the custody of an alleged offender until proper authority may be notified.
810.
ART. 10. RESTRAINT OF PERSONS CHARGED WITH OFFENSES
Any person subject to this
chapter charged with an offense under this chapter shall be ordered into
arrest or confinement, as circumstances may require; but when charged only
with an offense normally tried by a summary court-martial, he shall not
ordinarily be placed in confinement. When any person subject to this chapter
is placed in arrest or confinement prior to trial, immediate steps shall
be taken to inform him of the specific wrong of which he is accused and
to try him or to dismiss the charges and release him.
811.
ART. 11. REPORTS AND RECEIVING OF PRISONERS
(a) No provost marshal, commander
or a guard, or master at arms may refuse to receive or keep any prisoner
committed to his charge by a commissioned officer of the armed forces,
when the committing officer furnishes a statement, signed by him, of the
offense charged against the prisoner.
(b) Every commander of a
guard or master at arms to whose charge a prisoner is committed shall,
within twenty-four hours after that commitment or as soon as he is relieved
from guard, report to the commanding officer the name of the prisoner,
the offense charged against him, and the name of the person who ordered
or authorized the commitment.
812.
ART. 12. CONFINEMENT WITH ENEMY PRISONERS PROHIBITED
No member of the armed forces
may be placed in confinement in immediate association with enemy prisoners
or other foreign nationals not members of the armed forces.
813.
ART. 13 PUNISHMENT PROHIBITED BEFORE TRIAL
No person, while being held
for trial, may be subjected to punishment or penalty other than arrest
or confinement upon the charges pending against him, nor shall the arrest
or confinement imposed upon him be any more rigorous than the circumstances
required to insure his presence, but he may be subjected to minor punishment
during that period for infractions of discipline.
814.
ART. 14. DELIVERY OF OFFENDERS TO CIVIL AUTHORITIES
(a) Under such regulations
as the Secretary concerned may prescribe, a member of the armed forces
accused of an offense against civil authority may be delivered, upon request,
to the civil authority for trial.
(b) When delivery under this
article is made to any civil authority of a person undergoing sentence
of a court-martial, the delivery, if followed by conviction in a civil
tribunal, interrupts the execution of the sentence of the court-martial,
and the offender after having answered to the civil authorities for his
offense shall, upon the request of competent military authority, be returned
to military custody for the completion of his sentence.
SUBCHAPTER
III. NON-JUDICIAL PUNISHMENT
815. ART. 15. COMMANDING
OFFICER'S NON-JUDICIAL PUNISHMENT
(a) Under such regulations
as the President may prescribe, and under such additional regulations as
may be prescribed by the Secretary concerned, limitations may be placed
on the powers granted by this article with respect to the kind and amount
of punishment authorized, the categories of commanding officers and warrant
officers exercising command authorized to exercise those powers, the applicability
of this article to an accused who demands trial by court-martial, and the
kinds of courts-martial to which the case may be referred upon such a demand.
However, except in the case of a member attached to or embarked in a vessel,
punishment may not be imposed upon any member of the armed forces under
this article if the member has, before the imposition of such punishment,
demanded trial by court-martial in lieu of such punishment. Under similar
regulations, rules may be prescribed with respect to the suspension of
punishments authorized by regulations of the Secretary concerned, a commanding
officer exercising general court-martial jurisdiction or an officer of
general or flag rank in command may delegate his powers under this article
to a principal assistant.
(b) Subject to subsection
(a) any commanding officer may, in addition to or in lieu of admonition
or reprimand, impose one or more of the following disciplinary punishments
for minor offenses without the intervention of a court-martial--
(1) upon officers of his
command--
(A) restriction to certain
specified limits, with or without suspension from duty, for not more that
30 consecutive days;
(B) if imposed by an officer
exercising general court-martial jurisdictions or an officer of general
flag rank in command--
(i) arrest in quarters for
not more than 30 consecutive days;
(ii) forfeiture of not more
than one-half of one month's pay per month for two months;
(iii) restriction to certain
specified limits, with or without suspension from duty, for not more than
60 consecutive days;
(iv) detention of not more
than one-half of one month's pay per month for three months;
(2) upon other personnel
of his command--
(A) if imposed upon a person
attached to or embarked in a vessel, confinement on bread and water or
diminished rations for not more than three consecutive days;
(B) correctional custody
for not more than seven consecutive days;
(C) forfeiture of not more
than seven days' pay;
(D) reduction to the next
inferior pay grade, if the grade from which demoted is within the promotion
authority of the officer imposing the reduction or any officer subordinate
to the one who imposes the reduction;
(E) extra duties, including
fatigue or other duties, for not more than 14 consecutive days;
(F) restriction to certain
specified limits, with or without suspension from duty, for not more than
14 consecutive days;
(G) detention of not more
than 14 days' pay;
(H) if imposed by an officer
of the grade of major or lieutenant commander, or above--
(i) the punishment authorized
under clause (A);
(ii) correctional custody
for not more than 30 consecutive days;
(iii) forfeiture of not more
than one-half of one month's pay per month for two months;
(iv) reduction to the lowest
or any intermediate pay grade, if the grade from which demoted is within
the promotion authority of the officer imposing the reduction or any officer
subordinate to the one who imposes the reduction, by an enlisted member
in a pay grade above E-4 may not be reduced more than two pay grades;
(v) extra duties, including
fatigue or other duties, for not more than 45 consecutive days;
(vi) restriction to certain
specified limits, with or without suspension from duty, for not more than
60 consecutive days;
(vii) detention of not more
than one-half of one month's pay per month for three months.
Detention of pay shall be
for a stated period of not more than one year but if the offender's term
of service expires earlier, the detention shall terminate upon that expiration.
No two or more of the punishments of arrest in quarters, confinement or
bread and water or diminished rations, correctional custody, extra duties,
and restriction may be combined to run consecutively in the maximum amount
impossible for each. Whenever any of those punishments are combined to
run consecutively, there must be an apportionment. In addition, forfeiture
of pay may not bee combined with detention of pay without an apportionment.
For the purpose of this subsection, "correctional custody" is
the physical restraint of a person during duty or nonduty hours and may
include extra duties, fatigue duties, or hard labor. If practicable, correctional
custody will not be served in immediate association with persons awaiting
trial or held in confinement pursuant to trial by court-martial.
(c) An officer in charge
may impose upon enlisted members assigned to the unit of which he is in
charge such of the punishment authorized under subsection (b)(2)(A)-(G)
as the Secretary concerned may specifically prescribe by regulation.
(d) The officer who imposes
the punishment authorized in subsection (b), or his successor in command,
may, at any time, suspend probationally any part or amount of the unexecuted
punishment imposed and may suspend probationally a reduction in grade or
forfeiture imposed under subsection (b), whether or not executed. In addition,
he may, at any time, remit or mitigate any part or amount of the unexecuted
punishment imposed and may set aside in whole or in part the punishment,
whether executed or unexecuted, and restore all rights, privileges and
property affected. He may also mitigate reduction in grade to forfeiture
or detention of pay. When mitigating--
(1) arrest in quarters to
restriction;
(2) confinement on bread
and water or diminished rations to correctional custody;
(3) correctional custody
confinement on bread and water or diminished rations to extra duties or
restriction, or both; or
(4) extra duties to restriction;
the mitigated punishment
shall not be for a greater period than the punishment mitigated. When mitigating
forfeiture of pay to detention of pay, the amount of detention shall not
be greater than the amount of the forfeiture. When mitigating reduction
in grade to forfeiture or detention of pay, the amount of the forfeiture
or detention shall not be greater than the amount that could have been
imposed initially under this article by the officer who imposed the punishment
mitigated.
(e) A person punished under
this article who considers his punishment unjust or disproportionate to
the offense may, through proper channels, appeal to the next superior authority.
The appeal shall be promptly forwarded and decided, but the person punished
may in the meantime be required to undergo the punishment adjudged. The
superior authority may exercise the same powers with respect to punishment
imposed as may be exercised under subsection (d) by the officer who imposed
the punishment. Before acting on appeal from a punishment of--
(1) arrest in quarters for
more than seven days;
(2) correctional custody
for more than seven days;
(3) forfeiture of more than
seven days' pay;
(4) reduction of one or more
pay grades from the fourth or a higher pay grade;
(5) extra duties for more
than 14 days;
(6) restriction for more
than 14 days; or
(7) detention of more than
14 days' pay;
the authority who is to act
on the appeal shall refer the case to a judge advocate or a lawyer of the
Department of Transportation for consideration and advice, and may so refer
the case upon appeal from any punishment imposed under subsection (b).
(f) The imposition and enforcement
of disciplinary punishment under this article for any act or omission is
not a bar to trial by court-martial for a serious crime or offense growing
out of the same act or omission, and not properly punishable under this
article; but the fact that a disciplinary punishment has been enforced
may be shown by the accuse upon trial, and when so shown shall be considered
in determining the measure of punishment to be adjudged in the event of
a finding of guilty.
(g) The Secretary concerned
may, by regulation, prescribe the form of records to be kept under this
article and may also prescribe that certain categories of those proceedings
shall be in writing.
SUBCHAPTER
IV. COURT-MARTIAL JURISDICTION
Sec. Art.
816. 16. Courts-Martial classified.
817.
17. Jurisdiction of courts-martial in general
818.
18. Jurisdiction of general courts-martial.
819. 19.
Jurisdiction of special courts-martial.
820.
20. Jurisdiction of summary courts-martial.
821.
21. Jurisdiction of courts-martial not exclusive.
816. ART. 16. COURT-MARTIAL
CLASSIFIED
The three kinds of courts-martial
in each of the 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 the identity of the
military judge and after consultation with defense counsel, requests orally
on the record or in writing a court composed only of a military judge 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 under the same conditions
as those prescribed in clause (1)(B) so requests; and
(3) summary courts-martial,
consisting of one commissioned officer.
817.
ART. 17. JURISDICTION OF COURTS-MARTIAL IN GENERAL
(a) Each armed force has
court-martial jurisdiction over all persons subject to this chapter. The
exercise of jurisdiction by one armed force over personnel of another armed
force shall be in accordance with regulations prescribed by the President.
(b) In all cases, departmental
review after that by the officer with authority to convene a general court-martial
for the command which held the trial, where that review is required under
this chapter, shall be carried out by the department that includes the
armed force of which the accused is a member.
818.
ART. 18. JURISDICTION OF GENERAL COURTS-MARTIAL
Subject to section 817 of
this title (article 17), general courts-martial have jurisdiction to try
persons subject to this chapter for any offense made punishable by this
chapter and may, under such limitations as the President may prescribe,
adjudge any punishment not forbidden by this chapter, including the penalty
of death when specifically authorized by this chapter. General courts-martial
also have jurisdiction to try any person who by the law of war is subject
to trial by a military tribunal and may adjudge any punishment permitted
by the law of war. However, a general court-martial of the kind specified
in section 816(1)(B) of this title (article 16(1)(B)) shall not have jurisdiction
to try any person for any offense for which the death penalty may be adjudged
unless the case has been previously referred to trial as noncapital case.
ART.
19. JURISDICTION OF SPECIAL COURTS-MARTIAL
Subject to section 817 of
this title (article 17), special courts-martial have jurisdiction to try
persons subject to this chapter for any noncapital offense made punishable
by this chapter and, under such regulations as the President may prescribe,
for capital offenses. Special courts-martial may, under such limitations
as the President may prescribe, adjudge any punishment not forbidden by
this chapter except death, dishonorable discharge, dismissal, confinement
for more than six months, hard labor without confinement for more than
three months, forfeiture of pay exceeding two-thirds pay per month, or
forfeiture of pay for more than six months. A bad-conduct discharge may
not be adjudged unless a complete record of the proceedings and testimony
has been made, counsel having the qualifications prescribed under section
827(b) of this title (article 27(b)) was detailed to represent the accused,
and a military judge was detailed to the trial, except in any case in which
a military judge could not be detailed to the trial, the convening authority
shall make a detailed written statement, to be appended to the record,
stating the reason or reasons a military judge could not be detailed.
820
ART. 20. JURISDICTION OF SUMMARY COURTS-MARTIAL
Subject to section 817 of
this title (article 17), summary courts-martial have jurisdiction to try
persons subject to this chapter, except officers, cadets, aviation cadets,
and midshipman, for any noncapital offense made punishable by this chapter.
No person with respect to whom summary courts- martial have jurisdiction
may be brought to trial before a summary court- martial if he objects thereto.
If objection to trial by summary court- martial is made by an accused,
trial may be ordered by special or general court-martial as may be appropriate.
Summary courts-martial may, under such limitations as the President may
prescribe, adjudge any punishment not forbidden by this chapter except
death, dismissal, dishonorable or bad- conduct discharge, confinement for
more than one month, hard labor without confinement for more than 45 days,
restrictions to specified limits for more than two months, or forfeiture
of more than two-thirds of one month's pay.
821.
ART. 21. JURISDICTION OF COURTS-MARTIAL NOT EXCLUSIVE
The provisions of this chapter
conferring jurisdiction upon courts- martial do not deprive military commissions,
provost courts, or other military tribunals of concurrent jurisdiction
with respect to offenders or offenses that by statute or by the law of
war may be tried by military commissions, provost courts, or other military
tribunals.
SUBCHAPTER
V. COMPOSITION OF COURTS-MARTIAL
Sec. Art.
822. 22. Who may convene
general courts-martial.
823. 23.
Who may convene special courts-martial.
824.
24. Who may convene summary courts-martial.
825. 25. Who
may serve on courts-martial.
826.
26. Military judge of a general or special court-martial.
827.
27. Detail of trial counsel and defense counsel.
828.
28. Detail or employment of reporters and interpreters.
829. 29. Absent
and additional members.
822. ART. 22. WHO MAY CONVENE
GENERAL COURTS-MARTIAL
(a) General courts-martial
may be convened by--
(1) the President of the
United States;
*(2) the Secretary of Defense;
*(3) the commanding officer
of a unified or specified combatant command;
(4) the Secretary concerned;
(5) the commanding officer
of a Territorial Department, an Army Group, an Army, an Army Corps, a division,
a separate brigade, or a corresponding unit of the Army or Marine Corps;
(6) the commander in chief
of a fleet; the commanding officer of a naval station or larger activity
of the Navy beyond the United States.
(7) the commanding officer
of an air command, an air force, an air division, or a separate wing of
the Air Force or Marine Corps;
(8) any other commanding
officer designated by the Secretary concerned; or
(9) any other commanding
officer in any of the armed forces when empowered by the President.
(b) If any such commanding
officer is an accuser, the court shall be convened by superior competent
authority, and may in any case be convened by such authority if considered
desirable by him.
823.
ART. 23. WHO MAY CONVENE SPECIAL COURTS-MARTIAL
(a) Special courts-martial
may be convened by--
(1) any person who may convene
a general court-martial;
(2) the commanding officer
of a district, garrison, fort, camp, station, Air Force base, auxiliary
air field, or other place where members of the Army or the Air Force are
on duty;
(3) the commanding officer
of a brigade, regiment, detached battalion, or corresponding unit of the
Army;
(4) the commanding officer
of a wing, group, or separate squadron of the Air Force;
(5) the commanding officer
of any naval or Coast Guard vessel, shipyard, base, or station; the commanding
officer of any Marine brigade, regiment, detached battalion, or corresponding
unit; the commanding officer of any Marine barracks, wing, group, separate
squadron, station, base, auxiliary air field, or other place where members
of the Marine Corps are on duty;
(6) the commanding officer
of any separate or detached command or group of detached units of any of
the armed forces placed under a single commander for this purpose; or
(7) the commanding officer
or officer in charge of any other command when empowered by the Secretary
concerned.
(b) If any such officer is
an accuser, the court shall be convened by superior competent authority,
and may in any case be convened by such authority if considered advisable
by him.
824.
ART. 24. WHO MAY CONVENE SUMMARY COURTS-MARTIAL
(a) Summary courts-martial
may be convened by--
(1) any person who may convene
a general or special court-martial;
(2) the commanding officer
of a detached company other detachment of the Army;
(3) the commanding officer
of a detached squadron or other detachment of the Air Force; or
(4) the commanding officer
or officer in charge of any other command when empowered by the Secretary
concerned.
(b) When only one commissioned
officer is present with a command or detachment he shall be the summary
court-martial of that command or detachment and shall hear and determine
all summary court-martial cases brought before him. Summary courts-martial
may, however, be convened in any case by superior competent authority when
considered desirable by him.
825.
ART, 25. WHO MAY SERVE ON COURTS-MARTIAL
(a) Any commissioned officer
on active duty is eligible to serve on all courts-martial for the trial
of any person who may lawfully be brought before such courts for trial.
(b) Any warrant officer on
active duty is eligible to serve on general and special courts-martial
for the trial of any person, other than a commissioned officer, who may
lawfully be brought before such courts for trial.
*(c)(1) Any enlisted member
of an armed force on active duty who is not a member of the same unit as
the accused is eligible to serve on general and special courts-martial
for the trial of any enlisted member of an armed force who may lawfully
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 by the military
judge under section 839(a) of this title (article 39(a)) prior to trial
or, in the absence of such a session, before the court is assembled for
the trial of the accused, the accused personally has requested orally on
the record or in writing that enlisted members serve on it. After such
a request, the accused may not be tried by a general or special courts-martial
the membership of which does not include enlisted members in a number comprising
at least one-third of the total membership of the court, unless eligible
enlisted members cannot be obtained on account of physical conditions or
military exigencies. If such members cannot be obtained, the court may
be assembled and the trial held without them, but the convening authority
shall make a detailed written statement, to be appended to the record,
stating why they could not be obtained.
(2) In this article, "unit"
means any regularly organized body as defined by the Secretary concerned,
but in no case may it be a body larger than a company, squadron, ship's
crew, or body corresponding to one of them.
(d) (1) When it can be avoided,
no member of an armed force may be tried by a court-martial any member
of which is junior to him in rank or grade.
(2) When convening a court-martial,
the convening authority shall detail as member thereof such members of
the armed forces as, in his opinion, are best qualified for the duty by
reason of age, education, training, experience, length of service, and
judicial temperament. No member of an armed force is eligible to serve
as a member of a general or special court-martial when he is the accuser
or a witness for the prosecution or has acted as investigating officer
or as counsel in the same case.
(e) Before a court-martial
is assembled for the trial of a case, the convening authority may excuse
a member of the court from participating in the case. Under such regulations
as the Secretary concerned may prescribe, the convening authority may delegate
his authority under this subsection to his staff judge advocate or legal
officer or to any other principal assistant.
826.
ART. 26. MILITARY JUDGE OF A GENERAL OR SPECIAL COURT-MARTIAL
(a) A military judge shall
be detailed to each general court-martial. Subject to regulations of the
Secretary concerned, a military judge may be detailed to any special court-martial.
The Secretary concerned shall prescribe regulations providing for the manner
in which military judges are detailed for such courts-martial and for the
persons who are authorized to detail military judges for such courts-martial.
The military judge shall preside over each open session of the court-martial
in which he has been detailed.
(b) A military judge shall
be a commissioned officer of the armed forces who is a member of the bar
of a Federal court or a member of the bar of the highest court of a State
and who is certified to be qualified for duty as a military judge by the
Judge Advocate General of the armed force of which such military judge
is a member.
(c) The military judge of
a general court-martial shall be designated by the Judge Advocate General,
or his designee, of the armed force of which the military judge is a member
of detail in accordance with regulations prescribed under subsection (a).
Unless the court-martial was convened by the President or the Secretary
concerned, neither the convening authority nor any member of his staff
shall prepare or review any report concerning the effectiveness, fitness,
or efficiency of the military judge so detailed, which relates to his performance
of duty as a military judge. A commissioned officer who is certified to
be qualified for duty as a military judge of a general court-martial may
perform such duties only when he is assigned and directly responsible to
the Judge Advocate General, or his designee, of the armed force of which
the military judge is a member and may perform duties of a judicial or
nonjudicial nature other than those relating to his primary duty as a military
judge of a general court-martial when such duties are assigned to him by
or with the approval of that Judge Advocate General or his designee.
(d) No person is eligible
to act as military judge in a case if he is the accuser or a witness for
the prosecution or has acted as investigating officer or a counsel in the
same case.
(e) The military judge of
a court-martial may not consult with the members of the court except in
the presence of the accused, trial counsel, and defense counsel, nor may
he vote with the members of the court.
827.
ART. 27. DETAIL OF TRIAL COUNSEL AND DEFENSE COUNSEL
(a) (1) Trial counsel and
defense counsel shall be detailed for each general and special court-martial.
Assistant trial counsel and assistant and associate defense counsel may
be detailed for each general and special court-martial. The Secretary concerned
shall prescribe regulations providing for the manner in which counsel are
detailed for such courts- martial and for the persons who are authorized
to detail counsel for such courts-martial.
(2) No person who has acted
as investigating officer, military judge, or court member in any case may
act later as trial counsel, assistant trial counsel, or, unless expressly
requested by the accused, as defense counsel or assistant or associate
defense counsel in the same case. No person who has acted for the prosecution
may act later in the same case for the defense, nor may any person who
has acted for the defense act later in the same case for the prosecution.
(b) Trial counsel or defense
counsel detailed for a general court-martial- -
(1) must be a judge advocate
who is a graduate of an accredited law school or is a member of the bar
of a Federal court or of the highest court of a State; or must be a member
of the bar of a Federal court or of the highest court of a State; and
(2) must be certified as
competent to perform such duties by the Judge Advocate General of the armed
force of which he is a member.
(c) In the case of a special
court-martial--
(1) the accused shall be
afforded the opportunity to be represented at the trial by counsel having
the qualifications prescribed under section 827(b) of this title (article
27(b)) unless counsel having such qualifications cannot be obtained on
account of physical conditions or military exigencies. If counsel having
such qualifications cannot be obtained, the court may be convened and the
trial held but the convening authority shall make a detailed written statement,
to be appended to the record, stating why counsel with such qualifications
could not be obtained;
(2) if the trial counsel
is qualified to act as counsel before a general curt-martial, the defense
counsel detailed by the convening authority must be a person similarly
qualified; and
(3) if the trial counsel
is a judge advocate or a member of the bar of a Federal court or the highest
court of a State, the defense counsel detailed by the convening authority
must be one of the foregoing.
828.
ART. 28 DETAIL OR EMPLOYMENT OF REPORTERS AND INTERPRETERS.
Under such regulations as
the Secretary concerned may prescribe, the convening authority of a court-martial,
military commission, or court of inquiry shall detail or employ qualified
court reporters, who shall record the proceedings of and testimony taken
before that court or commission. Under like regulations the convening authority
of a court-martial, military commission, or court of inquiry may detail
or employ interpreters who shall interpret for the court or commission.
829.
ART. 29. ABSENT AND ADDITIONAL MEMBERS
(a) No member of a general
or special court-martial may be absent or excused after the court has been
assembled for the trial of the accused unless excused as a result of challenge,
excused by the military judge for physical disability or other good cause,
or excused by order of the convening authority for good cause.
(b) Whenever a general court-martial,
other than a general court-martial composed of a military judge only, is
reduced below five members, the trial may not proceed unless the convening
authority details new member sufficient in number to provide not less than
five members. The trial may proceed with the new members present after
the recorded evidence previously introduced before the members of the court
has been read to the court in the presence of the military judge, the accused
and counsel for both sides.
(c) Whenever a special court-martial,
other than a special court-marital composed of a military judge only, is
reduced below three members, the trial may not proceed unless the convening
authority details new members sufficient in number to provide not less
than three members. The trial shall proceed with the new members present
as if no evidence had previously been introduced at the trial, unless verbatim
record of the evidence previously introduced before the members of the
court or a stipulation thereof is read to the court in the presence of
the military judge, if any, the accused and counsel for both sides.
(d) If the military judge
of a court-martial composed of a military judge only is unable to proceed
with the trial because of physical disability, as a result of a challenge,
or for other good cause, the trial shall proceed, subject to any 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 no evidence had
previously been introduced, unless a verbatim record of the evidence previously
introduced or a stipulation thereof is read in court in the presence of
the new military judge, the accused, and counsel for both sides.
SUBCHAPTER
VI. PRE-TRIAL PROCEDURE
Sec. Art.
830. 30. Charges and specifications
831. 31.
Compulsory self-incrimination prohibited.
832. 32. Investigation.
833. 33. Forwarding
of charges.
834.
34. Advice of staff judge advocate and reference for trial.
835. 35. Service of charges.
830. ART. 30. CHARGES AND
SPECIFICATIONS
(a) Charges and specifications
shall be signed by a person subject to this chapter under oath before a
commissioned officer of the armed forces authorized to administer oaths
and shall state--
(1) that the signer has personal
knowledge of, or has investigated, the matters set forth therein; and
(2) that they are true in
fact to the best of his knowledge and belief.
(b) Upon the preferring of
charges, the proper authority shall take immediate steps to determine what
disposition should be made thereof in the interest of justice and discipline,
and the person accused shall be informed of the charges against him as
soon as practicable.
831
ART. 31. COMPULSORY SELF-INCRIMINATION PROHIBITED
(a) No person subject to
this chapter may compel any person to incriminate himself or to answer
any questions the answer to which may tend to incriminate him.
(b) No person subject to
this chapter may interrogate, or request any statement from an accused
or a person suspected of an offense without first informing him of the
nature of the accusation and advising him that he does not have to make
any statement regarding the offense of which he is accused or suspected
and that any statement made by him may be used as evidence against him
in a trial by court-martial.
(c) No person subject to
this chapter may compel any person to make a statement or produce evidence
before any military tribunal if the statement or evidence in not material
to the issue and may tend to degrade him.
(d) No statement obtained
from any person in violation of this article, or through the use of coercion,
unlawful influence, or unlawful inducement may be received in evidence
against him in a trial by court-martial.
832.
ART. 32. INVESTIGATION
(a) No charge or specification
may be referred to a general court-martial for trial until a through and
impartial investigation of all the matters set forth therein has been made.
This investigation shall include inquiry as to the truth of the matter
set forth in the charges, consideration of the form of charges, and recommendation
as to the disposition which should be made of the case in the interest
of justice and discipline.
(b) The accused shall be
advised of the charges against him and of his right to be represented at
that investigation as provided in section 838 of this title (article 38)
and in regulations prescribed under that section. At that investigation
full opportunity shall be given to the accused to cross-examine witnesses
against him if they are available and to present anything he may desire
in his own behalf, either in defense or mitigation, and the investigation
officer shall examine available witnesses requested by the accused. If
the charges are forwarded after the investigation, they shall be accompanied
by a statement of the substance of the testimony taken on both sides and
a copy thereof shall be given to the accused.
(c) If an investigation of
the subject matter of an offense has been conducted before the accused
is charged with the offense, and if the accused was present at the investigation
and afforded the opportunities for representation, cross-examination, and
presentation prescribed in subsection (b), no further investigation of
that charge is necessary under this article unless it is demanded by the
accused after he is informed of the charge. A demand for further investigation
entitles the accused to recall witnesses for further cross-examination
and to offer any new evidence in his own behalf.
(d) The requirements of this
article are binding on all persons administering this chapter but failure
to follow them does not constitute judicial error.
833.
ART.. 33. FORWARDING OF CHARGES
When a person is held for
trial by general court-martial the commanding officer shall, within eight
days after the accused is ordered into arrest or confinement, if practicable,
forward the charges, together with the investigation and allied papers,
to the officer exercising general court martial jurisdiction. If that is
not practicable, he shall report in writing to that officer the reasons
for the delay.
834.
ART. 34. ADVICE OF STAFF JUDGE ADVOCATE AND REFERENCE FOR TRIAL
(a) Before directing the
trial of any charge by general court-martial, the convening authority shall
refer it to his staff judge advocate for consideration and advice. The
convening authority may not refer a specification under a charge to a general
court-martial for trial unless he has been advised in writing by the staff
judge advocate that--
(1) the specification alleges
an offense under this chapter;
(2) the specification is
warranted by the evidence indicated in the report of investigation under
section 832 of this title (article 32) (if there is such a report); and
(3) a court-martial would
have jurisdiction over the accused and the offense.
(b) The advice of the staff
judge advocate under subsection (a) with respect to a specification under
a charge shall include a written and signed statement by the staff judge
advocate--
(1) expressing his conclusions
with respect to each matter set forth in subsection (a); and
(2) recommending action that
the convening authority take regarding the specification.
If the specification is referred
for trial, the recommendation of the staff judge advocate shall accompany
the specification.
(c) If the charges or specifications
are not formally correct or do not conform to the substance of the evidence
contained in the report of the investigation officer, formal corrections,
and such changes in the charges and specifications as are needed to make
them conform to the evidence, may be made.
835.
ART. 35. SERVICE OF CHARGES.
The trial counsel to whom
court-martial charges are referred for trial shall cause to be served upon
the accused a copy of the charges upon which trial is to be had. In time
of peace no person may, against his objection, be brought to trial or be
required to participate by himself or counsel in a session called by the
military judge under section 839(a) of this title (article 39(a)), in a
general court-martial case within a period of five days after the service
of charges upon him or in a special court-martial within a period of three
days after the service of the charges upon him.
SUBCHAPTER
VII. TRIAL PROCEDURE
Sec. Art.
836.
36. President may prescribe rules
837.
37. Unlawful influencing the action of the court.
838.
38. Duties of trial counsel and defense counsel.
839. 39. Sessions.
840. 40. Continuances.
841. 41. Challenges.
842. 42. Oaths.
843. 43. Statute
of limitations.
844. 44. Former jeopardy.
845. 45. Pleas of the
accused.
846.
46. Opportunity to obtain witnesses and other evidence.
847. 47. Refusal
to appear or testify.
848. 48. Contempt's.
849. 49. Depositions.
850.
50. Admissibility of records of courts of inquiry.
851. 51. Voting and rulings.
852. 52. Number of
votes required.
853. 53. Court to
announce action.
854. 54. Record of trial.
836.
ART 36. PRESIDENT MAY PRESCRIBE RULES
(a) Pretrial, trial, and
post trial procedures, including modes of proof, for cases arising under
this chapter triable in courts-martial, military commissions and other
military tribunals, and procedures for courts of inquiry, may be prescribed
by the President by regulations which shall, so far as he considers practicable,
apply the principles of law and the rules of evidence generally recognized
in the trial of criminal cases in the United States district courts, but
which may not be contrary to or inconsistent with this chapter.
(b) All rules and regulations
made under this article shall be uniform insofar as practicable and shall
be reported to Congress.
837.
ART. 37. UNLAWFULLY INFLUENCING ACTION OF COURT
(a) No authority convening
a general, special, or summary court-martial, nor any other commanding
officer, may censure, reprimand, or admonish the court or any member, military
judge, or counsel thereof, with respect to the findings or sentence adjudged
by the court, or with respect to any other exercises of its or his functions
in the conduct of the proceedings. No person subject to this chapter may
attempt to coerce or, by any unauthorized means, influence the action of
a court-martial or any other military tribunal or any member thereof, in
reaching the findings or sentence in any case, or the action of any convening,
approving, or reviewing authority with respect to his judicial acts. The
foregoing provisions of the subsection shall not apply with respect to
(1) general instructional or informational courses in military justice
if such courses are designed solely for the purpose of instructing members
of a command in the substantive and procedural aspects of courts-martial,
or (2) to statements and instructions given in open court by the military
judge, president of a special court-martial, or counsel.
(b) In the preparation of
an effectiveness, fitness, or efficiency report on any other report or
document used in whole or in part for the purpose of determining whether
a member of the armed forces is qualified to be advanced, in grade, or
in determining the assignment or transfer of a member of the armed forces
or in determining whether a member of the armed forces should be retained
on active duty, no person subject to this chapter may, in preparing any
such report (1) consider or evaluate the performance of duty of any such
member, as counsel, represented any accused before a court-martial.
838.
ART. 38. DUTIES OF TRIAL COUNSEL AND DEFENSE COUNSEL
(a) The trial counsel of
a general or special court-martial shall prosecute in the name of the United
States, and shall, under the direction of the court, prepare the record
of the proceedings.
(b) (1) The accused has the
right to be represented in his defense before a general or special court-martial
or at an investigation under section 832 of this title (article 32) as
provided in this subsection.
(2) The accused may be represented
by civilian counsel if provided by him.
(3) The accused may be represented--
(A) by military counsel detailed
under section 827 of this title (article 27); or
(B) by military counsel of
his own selection if that counsel is reasonably available (as determined
under regulations prescribed under paragraph (7)).
(4) If the accused is represented
by civilian counsel, military counsel detailed or selected under paragraph
(3) shall act as associate counsel unless excused at the request of the
accused.
(5) Except as provided under
paragraph (6), if the accused is represented by military counsel of his
own selection under paragraph (3)(B), any military counsel detailed under
paragraph (3)(A) shall be excused.
(6) The accused is not entitled
to be represented by more than one military counsel. However, the person
authorized under regulations prescribed under section 827 of this title
(article 27) to detail counsel in his sole discretion--
(A) may detail additional
military counsel as assistant defense counsel; and
(B) if the accused is represented
by military counsel of his own selection under paragraph (3)(B), may approve
a request from the accused that military counsel detailed under paragraph
(3)(A) act as associate defense counsel.
(7) The Secretary concerned
shall, by regulation, define "reasonably available" for the purpose
of paragraph (3)(B) and establish procedures for determining whether the
military counsel selected by an accused under that paragraph is reasonably
available. Such regulations may not prescribe any limitation based on the
reasonable availability of counsel solely on the grounds that the counsel
selected by the accused if from an armed force other than the armed force
of which the accuse is a member. To the maximum extent practicable, such
regulations shall establish uniform policies among the armed forces while
recognizing the differences in the circumstances and needs of the various
armed forces. The Secretary concerned shall submit copies of regulations
prescribed under this paragraph to the Committees on Armed Services of
the Senate and House of Representatives.
(c) In any court-martial
proceeding resulting in a conviction, the defense counsel-
(1) may foreword for attachment
to the record of proceedings a brief of such matters as he determines should
be considered in behalf of the accused on review (including any objections
to the contents of the record which he considers appropriate);
(2) may assist the accused
in the submission of any mater under section 860 of this title (article
60); and
(3) may take other action
authorized by this chapter.
(d) An assistant trial counsel
of a general court-martial may, under the direction of the trial counsel
or when he is qualified to be a trial counsel as required by section 827
of this title (article 27), perform any duty imposed by law, regulation,
or the custom of the service upon the trial counsel of the court. An assistant
trial counsel of a special court- martial may perform any duty of the trial
counsel.
(e) An assistant defense
counsel of a general or special court-martial may, under the direction
of the defense counsel or when he is qualified to be the defense counsel
as required by section 827 of this title (article 27), perform any duty
imposed by law, regulation, or custom of the service upon counsel for the
accused.
839.
ART. 39. SESSIONS
(a) At any time after the
service of charges which have been referred for trial by court-martial
composed of a military judge and members, the military judge may, subject
to section 835 of this title (article 35), call the court into session
without the presence of the members for the purpose of--
(1) hearing and determining
motions raising defenses or objections which are capable of determination
without trial of the issues raised by a plea of not guilty;
(2) hearing and ruling upon
any matter which may be ruled upon by the military judge under this chapter,
whether or not the matter is appropriate for later consideration or decision
by the members of the court;
(3) if permitted by regulations
of the Secretary concerned, holding the arraignment and receiving the pleas
of the accused; and
(4) performing any other
procedural function which may be performed by the military judge under
this chapter or under rules prescribed pursuant to section 836 of this
title (article 36) and which does not require the presence of the members
of the court.
These proceedings shall be
conducted in the presence of the accused, the defense counsel, and the
trial counsel and shall be made part of the record.
(b) When the members of a
court-martial deliberate or vote, only the members may be present. All
other proceedings, including any other consultation of the members of the
court with counsel or the military judge, shall be made a part of the record
and shall be in the presence of the accused, the defense counsel, the trial
counsel, and in cases in which a military judge has been detailed to the
court, the military judge.
840.
ART. 40. CONTINUANCES.
The military judge or a court-martial
without a military judge may, for reasonable cause, grant a continuance
to any party for such time, and as often, as may appear to be just.
841.
ART. 41. CHALLENGES
(a) The military judge and
members of a general or special court- martial may be challenged by the
accused or the trial counsel for cause stated to the court. The military
judge, or if none, the court, shall determine the relevance and validity
of the challenges for cause, and may not receive a challenge to more than
one person at a time. Challenges by the trial counsel shall ordinarily
be presented and decided before those by the accused are offered.
(b) Each accused and the
trial counsel is entitled to one preemptory challenge, but the military
judge may not be challenged except for cause.
842.
ART. 42. OATHS
(a) Before performing their
respective duties, military judges, members of general and special courts-martial,
trial counsel, assistant trial counsel, defense counsel, assistant or associate
defense counsel, reporters, and interpreters shall take an oath to perform
their duties faithfully. The form of the oath, the time and place of the
taking thereof, the manner of recording the same, and whether the oath
shall be taken for all cases in which these duties are to be performed
or for a particular case, shall be as prescribed in regulations of the
Secretary concerned. These regulations may provide that an oath to perform
faithfully duties as a military judge, trial counsel, assistant trial counsel,
defense counsel, or assistant or associate defense counsel may be taken
at any time by any judge advocate or other person certified to be qualified
or competent for duty, and if such an oath is taken it need not again be
taken at the time the judge advocate, or other person is detailed to that
duty.
(b) Each witness before a
court-martial shall be examined on oath.
*
843. ART. 43. STATUTE OF LIMITATIONS
(a) A person charged with
absence without leave or missing movement in time of war, or with any offense
punishable by death, may be tried at any time without limitation.
(b) (1) Except as otherwise
provided in this section (article), a person charged with an offense is
not liable to be tried by court-martial if the offense was committed more
than five years before the receipt of sworn charges and specifications
by an officer exercising summary court- martial jurisdiction over the command.
(2) A person charged with
an offense is not liable to be punished under section 815 of this title
(article 15) if the offense was committed more than two years before the
imposition of punishment.
(c) Periods in which the
accused is absent without authority or fleeing from justice shall be excluded
in computing the period of limitation prescribed in this section (article).
(d) Periods in which the
accused was absent from territory in which the United States has the authority
to apprehend him, or in the custody of civil authorities, or in the hands
of the enemy, shall be excluded in computing the period of limitation prescribed
in this article.
(e) For an offense the trial
of which in time of war is certified to the President by the Secretary
concerned to be detrimental to the prosecution of the war or inimical to
the national security, the period of limitation prescribed in this article
is extended to six months after the termination of hostilities as proclaimed
by the President or by a joint resolution of Congress.
(f) When the United States
is at war, the running of any statute of limitations applicable to any
offense under this chapter--
(1) involving fraud or attempted
fraud against the United States or any agency thereof in any manner, whether
by conspiracy or not;
(2) committed in connection
with the acquisition, care, handling, custody, control, or disposition
of any real or personal property of the United States; or
(3) committed in connection
with the negotiation, procurement, award, performance, payment, interim
financing, cancellation, or other termination or settlement, of any contract,
subcontract, or purchase order which is connected with or related to the
prosecution of the war, or with any disposition of termination inventory
by any war contractor or Government agency;
is suspended until three
years after the termination of hostilities as proclaimed by the President
or by a joint resolution of Congress.
*(g) (1) If charges or specifications
are dismissed or insufficient for any cause and the period prescribed by
the applicable statute of limitations--
(A) has expired; or
(B) will expire within 180
days after the date of dismissal of the charges and specifications, trial
and punishment under new charges and specifications are not bared by the
statute of limitations if the conditions specified in paragraph (2) are
met.
(2) The conditions referred
to in paragraph (1) are that the new charges and specifications must--
(A) be received by an officer
exercising summary court-martial jurisdiction over the command within 180
days after dismissal of the charges or specifications; and
(B) allege the same acts
or omissions that were alleged in the dismissed charges or specifications
(or allege acts or omissions that were included in the dismissed charges
or specifications).
844.
ART. 44. FORMER JEOPARDY
(a) No person may, without
his consent, be tried a second time for the same offense.
(b) No proceeding in which
the accused has been found guilty by court- martial upon any charge or
specification is a trial in the sense of this article until the finding
of guilty has become final after review of the case has been fully completed.
(c) A proceeding which, after
the introduction of evidence but before a finding, is dismissed or terminated
by the convening authority or motion of the prosecution for failure of
available evidence or witnesses without any fault of the accused is a trial
in the sense of this article.
845.
ART. 45. PLEAS OF THE ACCUSED
(a) If an accused after arraignment
makes an irregular pleading, or after a plea of guilty sets up matter inconsistent
with the plea, or if it appears that he has entered the plea of guilty
improvidently or through lack of understanding of its meaning and effect,
or if he fails or refuses to plead, a plea of not guilty shall be entered
in the record, and the court shall proceed as though he had pleaded not
guilty.
(b) A plea of guilty by the
accused may not be received to any charge or specification alleging an
offense for which the death penalty may be adjudged. With respect to any
other charge or specification to which a plea of guilty has been made by
the accused and accepted by the military judge or by a court-martial without
a military judge, a finding of guilty of the charge or specification may,
if permitted by regulations of the Secretary concurrence, be entered immediately
whither vote. This finding shall constitute the finding of the court unless
the plea of guilty is withdrawn prior to announcement of the sentence,
in which event the proceedings shall continue as though the accused had
pleaded not guilty.
846.
ART. 46. OPPORTUNITY TO OBTAIN WITNESSES AND OTHER EVIDENCE
The trial counsel, the defense
counsel, and the court-martial shall have equal opportunity to obtain witnesses
and other evidence in accordance with such regulations as the President
may prescribe. Process issued in court- martial cases to compel witnesses
to appear and testify and to compel the production of other evidence shall
be similar to that which courts of the Unites States having criminal jurisdiction
may lawfully issue and shall run to any part of the United States, or the
Territories, Commonwealths, and possessions.
847.
ART. 47. REFUSAL TO APPEAR OR TESTIFY
(a) Any person not subject
to this who--
(1) has been dully subpoenaed
to appear as a witness before a court- martial, military commission, court
of inquiry, or any other military court or board, or before any military
or civil officer designated to take a deposition to be read in evidence
before such a court, commission, or board;
(2) has been dully paid or
tendered the fees and mileage of a witness at the rates allowed to witnesses
attending the courts of the United States; and
(3) willfully neglects or
refuses to appear, or refuses to qualify as a witness or to testify or
to produce any evidence which that person may have been legally subpoenaed
to produce;
is guilty of an offense against
the United States.
(b) Any person who commits
an offense named in subsection (a) shall be tried on information in a United
States district court or in a court of original criminal jurisdiction in
any of the Territories, Commonwealths, or possessions of the United States,
and jurisdiction is conferred upon those courts for that purpose. Upon
conviction, such person shall be punished by a fine of not more than $500,
or imprisonment for not more than six months, or both.
(c) The United States attorney
or the officer prosecuting for the United States in any such court of original
criminal jurisdiction shall, upon the certification of the facts to him
by the military court, commission, court of inquiry, or board, file an
information against and prosecute any person violating this article.
(d) The fees and mileage
of witnesses shall be advanced or paid out of the appropriations for the
compensation of witnesses.
848.
ART. 48. CONTEMPT'S
A court-martial, provost
court, or military commission may punish for contempt any person who uses
any menacing word, sign, or gesture in its presence, or who disturbs its
proceedings by any riot or disorder. The punishment may not exceed confinement
for 30 days or a fine of $100 or both.
849.
ART. 49. DEPOSITIONS
(a) At any time after charges
have been signed as provided in section 830 of this title (article 30),
any party may take oral or written depositions unless the military judge
or court-martial without a military judge hearing the case or, if the case
is not being heard, an attorney competent to convene a court-martial for
the trial of those charges forbids it for good cause. If a deposition is
to be taken before charges are referred for trial, such authority may designate
commissioned officers to represent the prosecution and the defense and
may authorize those officers to take the deposition of any witness.
(b) The party at whose instance
a deposition is to be taken shall give to every other party reasonable
written notice of the time and place for taking the deposition.
(c) Depositions may be taken
before and authenticated by any military or civilian authorized by the
laws of the United States or by the laws of the place where the deposition
is taken to administer oaths.
(d) A duly authenticated
deposition taken upon reasonable notice to other parties, so far as otherwise
admissible under the rules of evidence, may be read in evidence or, in
the case of audiotape, videotape, or similar material, may be played in
evidence before any military court or commission in any case not capital,
or in any proceeding before a court of inquiry or military board, if it
appears--
(1) that the witness resides
or is beyond the State, Territory, Commonwealth, or District of Columbia
in which the court, commission, or board is ordered to sit, or beyond 100
miles from the place of trial or hearing;
(2) that the witness by reason
of death, age, sickness, bodily infirmity, imprisonment, military necessity,
non amenability to process, or other reasonable cause is unable or refuses
to appear and testify in person at the place of trial or hearing; or
(3) that the present whereabouts
of the witness is unknown.
(e) Subject to subsection
(d), a deposition may be read in evidence or, in the case of audiotape,
videotape, or similar material, may be played in evidence in any case in
which the death penalty is authorized but is not mandatory, whenever the
convening authority directs that the case be treated as not capital, and
in such a case a sentence of death may not be adjudged by the court-martial.
850.
ART. 50. ADMISSIBILITY OF RECORDS OF COURTS OF INQUIRY
(a) In any case not capital
and not extending to the dismissal of a commissioned officer, the sworn
testimony, contained in the duly authenticated record of proceedings of
a court of inquiry, of a person whose oral testimony cannot be obtained,
may, if otherwise admissible under the rules of evidence, be read in evidence
by any party before a court- martial or military commission if the accused
was a party before the court of inquiry and if the same issue was involved
or if the accused consents to the introduction of such evidence.
(b) such testimony may be
read in evidence only by the defense in capital cases extending to the
dismissal of a commissioned officer.
(c) Such testimony may also
be read in evidence before a court of inquiry or a military board.
*
850a. ART. 50a. DEFENSE OF LACK OF MENTAL RESPONSIBILITY
(a) It is an affirmative
defense in a trial by court-martial that, at the time of the commission
of the acts constituting the offense, the accused, as a result of a sever
mental disease or defect, was unable to appreciate the nature and quality
or the wrongfulness of the acts. Mental disease or defect does not otherwise
constitute a defense.
(b) The accused has the burden
of proving the defense of lack of mental responsibility by clear and convincing
evidence.
(c) Whenever lack of mental
responsibility of the accused with respect to an offense is properly at
issue, the military judge, or the president of the court-martial without
a military judge, shall instruct the members of the court as to the defense
of lack of mental responsibility under this section and shall charge them
to find the accused--
(1) guilty;
(2) not guilty; or
(3) not guilty only by reason
of lack of mental responsibility.
(d) Subsection (c) does not
apply to a court-martial composed of a military judge only. In the case
of a court-martial composed of a military judge only, whenever lack of
mental responsibility of the accused with respect to an offense is properly
at issue, the military judge shall find the accused--
(1) guilty;
(2) not guilty; or
(3) not guilty only by reason
of lack of mental responsibility.
(e) Notwithstanding the provision
of section 852 of this title (article 52), the accused shall be found not
guilty only by reason of lack of mental responsibility if--
(1) a majority of the members
of the court-martial present at the time the vote is taken determines that
the defense of lack of mental responsibility has been established; or
(2) in the case of court-martial
composed of a military judge only, the military judge determines that the
defense of lack of mental responsibility has been established.
851.
ART. 51. VOTING AND RULINGS
(a) Voting by members of
a general or special court-martial on the findings and on the sentence,
and by members of a court-martial without a military judge upon questions
of challenge, shall be by secret written ballot. The junior member of the
court shall count the votes. The count shall be checked by the president,
who shall forthwith announce the result of the ballot to the members of
the court.
(b) The military judge and,
except for questions of challenge, the president of a court-martial without
a military judge shall ruse upon all questions of law and all interlocutory
questions arising during the proceedings. Any such ruling made by the military
judge upon any question of lay or any interlocutory question other than
the factual issue of mental responsibility of the accused, or by the president
of a court-martial without a military judge upon any question of law other
than a motion for a finding of not guilty, is final and constitutes the
ruling of the court. However, the military judge or the president of a
court-martial without a military judge may change his ruling at any time
during the trial. Unless the ruling is final, if any member objects thereto,
the court shall be cleared and closed and the question decided by a voice
vote as provided in section 852 of this title (article 52), beginning with
the junior in rank.
(c) Before a vote is taken
of the findings, the military judge or the president of a court-martial
without a military judge shall, in the presence of the accused and counsel,
instruct the members of the court as to the elements of the offense and
charge them--
(1) that the accused must
be presumed to be innocent until his guilt is established by legal and
competent evidence beyond reasonable doubt;
(2) that in the case being
considered, if there is a reasonable doubt as to the guilt of the accused,
the doubt must be resolved in favor of the accused and he must be acquitted;
(3) that, if there is reasonable
doubt as to the degree of guilt, the finding must be in a lower degree
as to which there is no reasonable doubt; and
(4) that the burden of proof
to establish the guilt of the accused beyond a reasonable doubt is upon
the United States.
(d) Subsections (a), (b),
and (c) do not apply to a court-martial composed of a military judge only.
The military judge of such a court- martial shall determine all questions
of law and fact arising during the proceedings, and, if the accused is
convicted, adjudge an appropriate sentence. The military judge of such
a court-martial shall make a general finding and shall in addition on request
find the facts specially. If an opinion or memorandum of decision is field,
it will be sufficient if the findings of fact appear therein.
852.
ART. 52. NUMBER OF VOTES REQUIRED
(a) (1) No person may be
convicted of an offense for which the death penalty is made mandatory by
law, except by the concurrence of all the members of the court-martial
present at the time the vote is taken.
(2) No person may be convicted
of any other offense, except as provided in section 845(b) of this title
(article 45(b)) or by concurrence of two-thirds of the members present
at the time the vote is taken.
(b) (1) No person may be
sentenced to suffer death, except by the concurrence of all the members
of the court-martial present at the time the vote is taken and for an offense
in this chapter expressly made punishable by death.
(2) No person may be sentenced
by life imprisonment or to confinement for more than ten years, except
by the concurrence of three-fourths of the members at the time the vote
is taken.
(3) All other sentences shall
be determined by the concurrence of two- thirds of the members at the time
the vote is taken.
(c) All other questions to
be decided by the members of a general or special court-martial shall be
determined by a majority vote, but a determination to reconsider a finding
of guilty or to reconsider a sentence, with a view toward decreasing it,
may be made by any lesser vote which indicates that the reconsideration
is not opposed by the number of votes required for that finding or sentence.
A tie vote on a challenge disqualifies the member challenged. A tie vote
on a motion for a finding of not guilty or on a motion relating to the
question of the accused sanity. is a determination against the accused.
A tie vote on any other question is a determination in favor of the accused.
853.
ART. 53. COURT TO ANNOUNCE ACTION
A court-martial shall announce
its findings and sentence to the parties as soon as determined.
854.
ART. 54. RECORD OF TRIAL
(a) Each general court-martial
shall deep a separate record of the proceedings in each case brought before
it, and the record shall be authenticated by the signature of the military
judge. If the record cannot be authenticated by the military judge by reason
of his death, disability, or absence, it shall be authenticated by the
signature of the trial counsel or by that of a member if the trial counsel
is unable to authenticate it by reason of his death, disability, or absence.
In a court-martial consisting of only a military judge the record shall
be authenticated by the court reporter under the same conditions which
would impose such a duty on a member under the subsection.
(b) Each special and summary
court-martial shall keep a separate record of the proceedings in each case,
and the record shall be authenticated in the manner required by such regulations
as the President may prescribe.
(c) (1) A complete record
of the proceedings and testimony shall be prepared--
(A) in each general court-martial
case in which the sentence adjudged includes death, a dismissal, a discharge,
or (if the sentence adjudged does not include a discharge) or any other
punishment which exceeds that which may otherwise be adjudged by a special
court-martial; and
(B) in each special court-martial
case in which the sentence includes a bad-conduct discharge.
(2) In all other court-martial
cases, the record shall contain such matters as may be prescribed by regulations
of the President.
(d) A copy of the record
of the proceedings of each general and special court-martial shall be given
to the accused as soon as it is authenticated.
SUBCHAPTER
VIII. SENTENCES
Sec. Art.
855. 55. Cruel and unusual
punishments prohibited.
856. 56. Maximum limits.
857. 57. Effective
date of sentences.
858. 58. Execution
of confinement.
858a.
58a. Sentences: reduction in enlisted grade upon approval.
855. ART. 55. CRUEL AND UNUSUAL
PUNISHMENTS PROHIBITED.
Punishment by flogging, or
by branding, marking, or tattooing on the body, or any other cruel or unusual
punishment, may not be adjudged by a court-martial or inflicted upon any
person subject to this chapter. The use of irons, single or double, except
for the purpose of safe custody, is prohibited.
856.
ART. 56. MAXIMUM LIMITS
The punishment which a court-martial
may direct for an offense may not exceed such limits as the President may
prescribe for that offense.
857.
ART. 57. EFFECTIVE DATE OF SENTENCES
(a) No forfeiture may extend
to any pay or allowances accrued before the date on which the sentence
is approved by the person acting under section 860(c) of this title (article
60(c)).
(b) Any period of confinement
included in a sentence of a court-martial begins to run from the date the
sentence is adjudged by the court-martial, but periods during which the
sentence to confinement is suspended or deferred shall be excluded in computing
the service of the term of confinement.
(c) All other sentences of
courts-martial are effective on the date ordered executed.
(d) On application by an
accused who is under sentence to confinement that has not been ordered
executed, the convening authority, or, if the accused is no longer under
his jurisdiction, the officer exercising general court-martial jurisdiction
over the command to which the accused is currently assigned, may in his
sole discretion defer service of the sentence to confinement. The deferment
shall terminate when the sentence is ordered executed. The deferment may
be rescinded at any time by the officer who granted it or, if the accused
is no longer under his jurisdiction, by the officer exercising general
court-martial jurisdiction over the command to which the accused is currently
assigned.
858.
ART. 58. EXECUTION OF CONFINEMENT.
(a) Under such instructions
as the Secretary concerned may prescribe, a sentence of confinement adjudged
by a court-martial or other military tribunal, whether or not the sentence
includes discharge or dismissal, and whether or not the discharge or dismissal
has been executed, may be carried into execution by confinement in any
place of confinement under the control of any of the armed forces or in
any penal or correctional institution under the control of the United States,
or which the United States may be allowed to use. Persons so confined in
a penal or correctional institution not under the control of one of the
armed forces are subject to the dame discipline and treatment as persons
confined or committed by the courts of the United States or of the State,
Territory, District of Columbia, or place in which the institution is situated.
(b) The omission of the words
"hard labor" from any sentence of a court- martial adjudging
confinement does not deprive the authority executing that sentence of the
power to require hard labor as a part of the punishment.
858a.
ART. 58a. SENTENCES: REDUCTION IN ENLISTED GRADE UPON APPROVAL
(a) Unless otherwise provided
in regulations to be prescribed by the Secretary concerned, a court-martial
sentence of an enlisted member in pay grade above E-1, as approved by the
convening authority, that includes--
(1) a dishonorable or bad-conduct
discharge;
(2) confinement; or
(3) hard labor without confinement;
reduces that member to pay
grade E1, effective on the date of that approval.
(b) If the sentence of a
member who is reduced in pay grade under subsection (a) is set aside or
disapproved, or, as finally approved does not include any punishment named
in subsection (a)(1), (2), or (3), the rights and privileges of which he
was deprived because of that reduction shall be restored to him and he
is entitled to the pay and allowances to which he would have been entitled
for the period the reduction was in effect, had he not been so reduced.
SUBCHAPTER IX. POST-TRIAL PROCEDURE
AND REVIEW OF COURTS-MARTIAL
Sec. Art.
859. 59. Error of law; lesser
included offense.
860. 60. Action by the convening
authority.
861. 61. Waiver or withdrawal of
appeal.
862. 62. Appeal by the United
States.
863. 63. Rehearings.
864. 64. Review by a judge
advocate.
865. 65. Disposition of records.
866. 66. Review by Court of
Military Review.
867. 67. Review by the Court of
Military Appeals.
*867a. 67a. Review by the Supreme
Court.
868. 68. Branch offices.
869. 69. Review in the office of
the Judge Advocate General.
870. 70. Appellate counsel.
871. 71. Execution of sentence;
suspension of sentence.
872. 72. Vacation of suspension.
873. 73. Petition for a new trial.
874. 74. Remission and suspension.
875. 75. Restoration.
876. 76. Finality of proceedings,
findings, and sentences.
876a. 76a. Leave required to be
taken pending review of certain court-martial convictions.
859. ART. 59. ERROR OF LAW; LESSER
INCLUDED OFFENSE
(a) A finding or sentence
of court-martial may not be held incorrect on the ground of an
error of law unless the error materially prejudices the
substantial rights of the accused.
(b) Any reviewing
authority with the power to approve or affirm a finding of guilty
may approve or affirm, instead, so much of the finding as
includes a lesser included offense.
860. ART. 60. ACTION BY THE
CONVENING AUTHORITY
(a) the findings and
sentence of a court-martial shall be reported promptly to the
convening authority after the announcement of the sentence.
(b) (1) the accused may
submit to the convening authority matters for consideration by
the convening authority with respect to the findings and the
sentence. Except in a summary court- martial case, such a
submission shall be made within 10 days after the accused has
been given an authenticated record of trial and, if applicable,
the recommendation of the staff judge advocate or legal officer
under subsection (d). In a summary court-martial case, such
submission shall be made within seven days after the sentence is
announced.
(2) If the accused shows
that additional time is required for the accused to submit such
matters, the convening authority or other person taking action
under this section, for good cause, may extend the applicable
period under paragraph (1) for not more than an additional 20
days.
(3) In a summary
court-martial case, the accused shall be promptly provided a copy
of the record of trial for use in preparing a submission
authorized by paragraph (1).
(4) The accused may waive
his right to make a submission to the convening authority under
paragraph (1). Such a waiver must be made in writing and may not
be revoked. For the purposes of subsection (c)(2), the time
within which the accused may make a submission under this
subsection shall be deemed to have expired upon the submission of
such a waiver to the convening authority.
(c) (1) The authority
under this section to modify the findings and sentence of a
court-martial is a matter of command prerogative involving the
sole discretion of the convening authority. Under regulations of
the Secretary concerned, a commissioned officer commanding for
the time being, a successor in command, or any person exercising
general court-martial jurisdiction may act under this section in
place of the convening authority.
(2) Action on the
sentence of a court-martial shall be taken by the convening
authority or by another person authorized to act under this
section. Subject to regulations of the Secretary concerned, such
action may be taken only after consideration of any matters
submitted by the accused under subsection (b) or after the time
for submitting such matters expires, whichever is earlier. The
convening authority or other person taking such action, in his
sole discretion, may approve, disapprove, commute, or suspend the
sentence in whole or in part.
(3) Action on the
findings of a court-martial by the convening authority or other
person acting on the sentence is not required. However, such
person, in his sole discretion, may--
(A) dismiss any charge or
specification by setting aside a finding of guilty thereto; or
(B) change a finding of
guilty to a charge or specification to a finding of guilty to an
offense that is a lesser included offense of the offense stated
in the charge or specification.
(d) Before acting under
this section on any general court- martial case or any special
court-martial case that includes a bad-conduct discharge, the
convening authority or other person taking action under this
section shall obtain and consider the written recommendation of
his staff judge advocate or legal officer. The convening
authority or other person taking action under this section shall
refer the record of trial to his staff judge advocate or legal
officer, and the staff judge advocate or legal officer shall use
such record in the preparation of his recommendation. The
recommendation of the staff judge advocate or legal officer shall
include such matters as the President may prescribe by regulation
and shall be served on the accused, who may submit any matter in
response under subsection (b). Failure to object in the response
to the recommendation or to any matter attached to the
recommendation waives the right to object thereto.
(e) (1) The convening
authority or other person taking action under this section, in
his sole discretion, may order a proceeding in revision or a
rehearing.
(2) A proceeding in
revision may be ordered if there is an apparent error or omission
in the record or if the record shows improper or inconsistent
action by a court-martial with respect to the findings or
sentence that can be rectified without material prejudice to the
substantial rights of the accused. In no case, however, may a
proceeding in revision--
(A) reconsider a finding
of not guilty of any specification or a ruling which amounts to a
finding of not guilty;
(B) reconsider a finding
of not guilty of any charge, unless there has been a finding of
guilty under a specification laid under that charge, which
sufficiently alleges a violation of some article of this chapter;
or
(C) increase the severity
of some article of the sentence unless the sentence prescribed
for the offense is mandatory.
(3) A rehearing may be
ordered by the convening authority or other person taking action
under this section if he disapproves the findings and sentence
and states the reasons for disapproval of the findings. If such a
person disapproves the findings and sentence and does not order a
rehearing, he shall dismiss the charges. A rehearing as to the
findings may not be ordered where there is a lack of sufficient
evidence in the record to support the findings. A rehearing as to
the sentence may be ordered if the convening authority or other
person taken action under this subsection disapproves the
sentence.
861. WAIVER OR WITHDRAWAL OF APPEAL
(a) In each case subject
to appellate review under section 866 or 869(a) of this title
(article 66 or 69(a)), except a case in which the sentence as
approved under section 860(c) of this title (article 60(c))
includes death, the accused may file with the convening authority
a statement expressly waving the right of the accuse d to such
review. Such a waiver shall be signed by both the accused and by
defense counsel and must be filed within 10 days after the action
under sections 860(c) of this title (article 60(c)) is served on
the accused or on defense counsel. the convening authority or
other person taking such action, for good cause, may extend the
period for such filing by not more than 30 days.
(b) Except in a case in
which the sentence as approved under section 860(c) of this title
(article 60(c)) includes death, the accused may withdraw an
appeal at any time.
(c) A waiver of the right
to appellate review or the withdrawal of an appeal under this
section bars review under section 866 or 869(a) of this title
(article 66 or 69(a)).
862. ART. 62. APPEAL BY THE UNITED
STATES
(a) (1) In a trial by
court-martial in which a military judge presides and in which a
punitive discharge may be adjudged, the United States may appeal
an order or ruling of the military judge which terminates the
proceedings with respect to a charge or specifications or which
excludes evidence that is substantial proof of a fact material in
the proceeding. However, the United States may not appeal an
order or ruling that is, or amounts to, a finding of not guilty
with respect to the charge or specification.
(2) An appeal of an order
or ruling may not be taken unless the trial counsel provides the
military judge with written notice of appeal from the order or
ruling within 72 hours of the order or ruling. Such notice shall
include a certification by the
(b) An appeal under this
section shall be forwarded by means prescribed under regulations
of the President directly to the Court of Military Review and
shall, whenever practicable, have priority over all other
proceedings before that court. In ruling on an appeal under this
section, the Court of Military review may act only with respect
to matters of law, notwithstanding section 866(c) of this title
(article 66(c)).
(c) Any period of delay
resulting from an appeal under this section shall be excluded in
deciding any issue regarding denial of a speedy trial unless an
appropriate authority determines that the appeal was filed solely
for the purpose of delay with the knowledge that it was totally
frivolous and without merit.
863. ART. 63. REHEARINGS
Each rehearing under this
chapter shall take place before a court-martial composed of
members not members of the court- martial which first heard the
case. Upon a rehearing the accused may not be tried for any
offense of which he was found not guilty by the first
court-martial, and no sentence in excess of or more than the
original sentence may be imposed unless the sentence is based
upon a finding of guilty of an offense not considered upon the
merits in the original proceedings, or unless the sentence
prescribed for the offense is mandatory. If the sentence approved
after the first court-martial was in accordance with a pretrial
agreement and the accused at the rehearing changes his plea with
respect to the charges or specifications upon which the pretrial
agreement was based, or otherwise does not comply with pretrial
agreement, the sentence as to those charges or specifications may
include any punishment not in excess of that lawfully adjudged at
the first court-martial.
864. ART. 64. REVIEW BY A JUDGE
ADVOCATE
(a) Each case in which
there has been a finding of guilty that is not reviewed under
section 866 or 869(a) of this title (article 66 or 69(a)) shall
be reviewed by a judge advocate under regulations of the
Secretary concerned. A judge advocate may not review a case under
this subsection if he has acted in the same case as an accuser,
investigating officer, member of the court, military judge, or
counsel or has otherwise acted on behalf of the prosecution or
defense. The judge advocate's review shall be in writing and
shall contain the following:
(1) Conclusions at to
whether--
(A) the court had
jurisdiction over the accused and the offense;
(B) the charge and
specification stated an offense; and
(C) the sentence was
within the limits prescribed as a matter of law.
(2) A response to each
allegation of error made in writing by the accused.
(3) If the case is sent
for action under subsection (b), a recommendation as to the
appropriate action to be taken and an opinion as to whether
corrective action is required as a matter of law.
(b) The record of trial
and related documents in each case reviewed under subsection (a)
shall be sent for action to the person exercising general
court-martial jurisdiction over the accused at the time the court
was convened (or to that person's successor in command) if--
(1) the judge advocate
who reviewed the case recommends corrective action;
(2) the sentence approved
under section 860(c) of this title (article 60(c)) extends to
dismissal, a bad-conduct or dishonorable discharge, or
confinement for more than six months; or
(3) such action is
otherwise required by regulations of the Secretary concerned.
(c) (1) The person to
whom the record of trial and related documents are sent under
subsection (b) may--
(A) disapprove or approve
the findings or sentence, in whole or in part;
(B) remit, commute, or
suspend the sentence in whole or in part;
(C) except where the
evidence was insufficient at the trial to support the findings,
order a rehearing on the findings, on the sentence, or on both;
or
(D) dismiss the charges.
(2) If a rehearing is
ordered by the convening authority finds a rehearing
impracticable, he shall dismiss the charges.
(3) If the opinion of the
judge advocate in the judge advocate's review under subsection
(a) is that corrective action is required as a matter of law and
if the person required to take action under subsection (b) does
not take action that is at least as favorable to the accused as
that recommended by the judge advocate, the record of trial and
action thereon shall be sent to Judge Advocate General for review
under section 869(b) of this title (article 69(b)).
865. ART. 65. DISPOSITION OF
RECORDS
(a) In a case subject to
appellate review under section 866 or 869(a) of this title
(article 66 or 69(a)) in which the right to such review is not
waived, or an appeal is not withdrawn, under section 861 of this
title (article 61), the record of trial and action thereon shall
be transmitted to the Judge General for appropriate action.
(b) Except as otherwise
required by this chapter, all other records of trial and related
documents shall be transmitted and disposed of as the Secretary
may prescribe by regulation.
866. ART. 66. REVIEW BY COURT OF
MILITARY REVIEW
(a) Each Judge Advocate
General shall establish a Court of Military Review which shall be
composed of one or more panels, and each such panel shall be
composed of not less than three appellate military judges. For
the purpose of reviewing court- martial cases, the court may sit
in panels or as a whole in accordance with rules prescribed under
subsection (f). Any decision of a panel bay be reconsidered by
the court sitting as a whole in accordance with such rules.
Appellate military judges who are assigned to a Court of Military
Review may be commissioned officers or civilians, each of whom
must be a member of a bar of a Federal court or the highest court
of a State. The Judge Advocate General shall designate as trial
counsel that appeal is not taken for the purpose of delay and (if
the order or ruling appealed is one which excludes evidence) that
the evidence is substantial proof of a fact material in the
proceeding.
(3) An appeal under this
section shall be diligently prosecuted by appellate Government
counsel.
(b) An appeal under this
section shall be forwarded by a means prescribed under
regulations of the President directly to the Court of Military
Review and shall, whenever practicable, have priority over all
other proceedings before that court. In ruling on an appeal under
this section, the Court of Military Review may act only with
respect to matters of law, notwithstanding section 666(c) of this
title (article 66(c)).
(c) Any period of delay
resulting from an appeal under this section shall be excluded in
deciding any issue regarding denial of a speedy trial unless an
appropriate authority determines that the appeal was filed solely
for the purposed of delay with the knowledge that it was totally
frivolous and without merit.
* 867. ART. 67. REVIEW BY THE COURT
OF MILITARY APPEALS
(a) The Court of Military
Appeals shall review the record in--
(1) all cases in which
the sentence, as affirmed by a Court of Military Review, extends
to death;
(2) all cases reviewed by
a Court of Military Review which the Judge Advocate General
orders sent to the Court of Military Appeals for review; and
(3) all cases reviewed by
a Court of Military Review in which, upon petition of the accused
and on good cause shown, the Court of Military Appeals has
granted review.
(b) the accused may
petition the Court of Military Appeals for review of a decision
of a court of Military Review within 60 days from the earlier of
--
(1) the date on which the
accused is notified of the decision of the Court of Military
Review; or
(2) the date on which a
copy of the decision of the Court of Military Review, after being
served on appellate counsel of record for the accused (if any),
is deposited in the United States mails for delivery by first
class mail to the accused at an address provided by the accused,
or, if no such address has been provided by the accused, at the
last address listed for the accused in his official service
record. The Court of Military Appeals shall act upon such a
petition promptly in accordance with the rules of the court.
(c) In any case reviewed
by it, the Court of Military Appeals may act only with respect to
the findings and sentence as approved by the convening authority
and as affirmed or set aside as incorrect in law by the Court of
Military Review. In a case which the Judge Advocate General
orders sent to the Court of Military Appeals, that action need be
taken only with respect to the issues raised by him. In a case
reviewed upon petition of the accused, that action need be taken
only with respect to issues specified in the grant of review. The
Court of Military Appeals shall take action only with respect to
matters of law.
(d) If the Court of
Military Appeals sets aside the findings and sentence, it may,
except where the setting aside is based on lack of sufficient
evidence in the record to support the findings, order a
rehearing. If it sets aside the findings and sentence and does
not order a rehearing, it shall order that the charges be
dismissed.
(e) After it has acted on
a case, the Court of Military Appeals may direct the Judge
Advocate General to return the record to the Court of Military
Review for further review in accordance with the decision of the
Court. Otherwise, unless there is to be further action by the
President or the Secretary concerned, the Judge Advocate General
shall instruct the convening authority to take action in
accordance with that decision. If the court has ordered a
rehearing, but the convening authority finds a rehearing
impracticable, he may dismiss the charges.
* 867a. ART. 67a. REVIEW BY THE
SUPREME COURT
(a) Decisions of the
Unites States Court of Military Appeals are subject to review by
the Supreme Court by writ of certiorari as provided in section
1259 of title 28. The Supreme Court may not review by a writ of
certiorari under this section any action of the Court of Military
Appeals in refusing to grant a petition for review.
(b) The accused may
petition the Supreme Court for a writ of certiorari without
prepayment of fees and costs or security therefor and without
filing the affidavit required by section 1915(a) of title 28.
868. ART. 68. BRANCH OFFICES
The Secretary concerned
may direct the Judge Advocate General to establish a branch
office with any command. The branch office shall be under an
Assistant Judge Advocate General who, with the consent of the
judge Advocate General, may establish a Court of Military Review
with one or more panels. That Assistant Judge Advocate General
and any Court of Military Review established by him may perform
for that command under the general supervision of the Judge
Advocate General, the respective duties which the Judge Advocate
General and a Court of Military Review established by the Judge
Advocate General would otherwise be required to perform as to all
cases involving sentences not requiring approval by the
President.
869. ART. 69. REVIEW IN THE OFFICE
OF THE JUDGE ADVOCATE GENERAL
*(a) The record of trial
in each general court-martial that is not otherwise reviewed
under section 866 of this title (article 66) shall be examined in
the office of the Judge Advocate General if there is a finding of
guilty and the accused does not waive or withdraw his right to
appellate review under section 861 of this title (article 61). If
any part of the findings or sentence is found to be unsupported
in law or if reassessment of the sentence is appropriate, the
Judge Advocate General may modify or set aside the findings of
sentence or both.
(b) The findings or
sentence, or both, in a court-martial case not reviewed under
subsection (a) or under section 866 of this title (article 66)
may be modified or set aside, in whole or in part, by the Judge
Advocate General on the ground of newly discovered evidence,
fraud on the court, lack of jurisdiction over the accused or the
offense, error prejudicial to the substantial rights of the
accused, or the appropriateness of the sentence. If such a case
is considered upon application of the accused, the application
must be filed in the office of the Judge Advocate General by the
accused on or before the last day of the two-year period
beginning on the date the sentence is approved under section
860(c) of this title (article 60(c)), unless the accused
establishes good cause for failure to file within that time.
(c) If the Judge Advocate
General sets aside the findings or sentence, he may, except when
the setting aside is based on lace of sufficient evidence in the
record to support the findings, order a rehearing. If he sets
aside the findings and sentence and does not order a rehearing,
he shall order that the charges be dismissed. If the Judge
Advocate General orders a rehearing by the convening authority
finds a rehearing impractical, the convening authority shall
dismiss the charges.
*(d) A Court of Military
Review may review, under section 866 of this title (article 66)--
(1) any court-martial
case which (A) is subject to action by the Judge Advocate General
under this section, and (b) is sent to the Court of Military
Review by order of the Judge Advocate General; and,
(2) any action taken by
the Judge Advocate General under this section in such case.
*(e) Notwithstanding
section 866 of this title (article 66), in any case reviewed by a
Court of Military Review under this section, the Court may take
action only with respect to matters of law.
870. ART. 70. APPELLATE COUNSEL
(a) The Judge Advocate
General shall detail in his office one or more commissioned
officers as appellate Government counsel, and one or more
commissioned officers as appellate defense counsel, who are
qualified under section 827(b)(1) of this title (article
27(b)(1)).
(b) Appellate Government
counsel shall represent the United States before the Court of
Military Review or the Court of Military Appeals when directed to
do so by the judge Advocate General. Appellate Government counsel
may represent the United States before the Supreme Court in cases
arising under this chapter when requested to do so by the
Attorney General.
(c) Appellate defense
counsel shall represent the accused before the Court of Military
Review, the Court of Military Appeals, or the Supreme Court--
(1) when requested by the
accused;
(2) when the United
States is represented by counsel; or
(3) when the Judge
Advocate General has sent the case to the Court of Military
Appeals.
(d) The accused has the
right to be represented before the Court of Military Review, the
Court of Military Appeals, or the Supreme court by civilian
counsel if provided by him.
(e) Military appellate
counsel shall also perform such other functions in connection
with the review of court-martial cases as the Judge Advocate
General directs.
871. ART. 71. EXECUTION OF
SENTENCE; SUSPENSION OF SENTENCE
(a) If the sentence of
the court-martial extends to death, that part of the sentence
providing for death may not be executed until approved by the
President. In such a case, the President may commute, remit, or
suspend the sentence, or any part thereof, as he sees fit. That
part of the sentence providing for the death may not be
suspended.
(b) If in the case of a
commissioned officer, cadet, or midshipman, the sentence of a
court-martial extends to dismissal, that part of the sentence
providing for dismissal may not be executed until approved by the
Secretary concerned or such Under Secretary of Assistant
Secretary as may be designated by the Secretary concerned. In
such a case, the Secretary, Under Secretary or Assistant t
Secretary, as the case may be, may commute, remit, or suspend the
sentence, or any part of the sentence, as he sees fit. In time of
war or national emergency he may commute a sentence of dismissal
to reduction to any enlisted grade. A person so reduced may be
required to serve for the duration of the war or emergency and
six months thereafter.
(c) (1) If a sentence
extends to death, dismissal, or dishonorable or bad-conduct
discharge and if the right of the accused to appellate review is
not waived, and an appeal is not withdrawn, under section 861 of
this title (article 61), that part of the sentence extending to
death, dismissal, or a dishonorable or bad-conduct discharge may
not be executed until there is a final judgment as to the
legality of the proceedings (and with respect to death or
dismissal, approval under subsection (a) or (b), as appropriate).
A judgment as to legality of the proceedings is final in such
cases when review is completed by a Court of Military Review
and--
(A) the time for the
accused to file a petition for review by the Court of Military
Appeals has expired and the accused has not filed a timely
petition for such review and the case is not otherwise under
review by that Court;
(B) such a petition is
rejected by the Court of Military Appeals; or
(C) review is completed
in accordance with the judgment of the Court of Military Appeals
and--
(i) a petition for a writ
of certiorari is not filed within the time limits prescribed by
the Supreme Court;
(ii) such a petition is
rejected by the Supreme Court; or
(iii) review is otherwise
completed in accordance with the judgment of the Supreme Court.
(2) If a sentence extends
to dismissal or a dishonorable or bad-conduct discharge and if
the right of the accused to appellate review is waived, or an
appeal is withdrawn, under section 861 of this title (article
61), that part of the sentence extending to dismissal or a
bad-conduct discharge may not be executed until review of the
case by a judge advocate (and any action of that review) under
section 864 of this title (article 64) is completed. Any other
part of a court-martial sentence may be ordered executed by the
convening authority or other person acting on the case under
section 860 of this title (article 60) when approved by hum under
that section.
(d) The convening
authority or other person acting on the case under section 860 of
this title (article 60) may suspend the execution of any sentence
or part thereof, except a death sentence.
872. ART. 72. VACATION OF
SUSPENSION
(a) Before the vacation
of the suspension of a special court- martial sentence which as
approved includes a bad-conduct discharge, or of any general
court-martial sentence, the officer having special court-martial
jurisdiction over the probationer shall hold a hearing on the
alleged violation of probation. The probationer shall be
represented at the hearing by counsel if he so desires.
(b) The record of the
hearing and the recommendation of the officer having special
court-martial jurisdiction shall be sent for action to the
officer exercising general court-martial jurisdiction over the
probationer. If he vacates the suspension, any unexecuted part of
the sentence, except a dismissal, shall be executed, subject to
applicable restrictions in section 871(c) of this title (article
71(c)). The vacation of the suspension of a dismissal is not
effective until approved by the Secretary concerned.
(c) The suspension of nay
other sentence may be vacated by any authority competent to
convene, for the command in which the accused is serving or
assigned, a court of the kind that imposed the sentence.
873. ART. 73. PETITION FOR A NEW
TRIAL
At any time within two
years after approval by the convening authority of a
court-martial sentence, the accused may petition the Judge
Advocate General for a new trial on the grounds of newly
discovered evidence or fraud on the court. If the accused's case
is pending before a Court of Military Review or before the Court
of Military Appeals, the Judge Advocate General shall refer the
petition to the appropriate court for action. Otherwise the Judge
Advocate General shall act upon the petition.
874. ART. 74. REMISSION AND
SUSPENSION
(a) The secretary
concerned and, when designated by him, any Under Secretary,
Assistant Secretary, Judge Advocate General, or commanding
officer may remit or suspend any part or amount of the unexecuted
part of any sentence, including all uncollected forfeitures other
than a sentence prescribed by the President.
(b) The Secretary
concerned may, for good cause, substitute an administrative form
of discharge for a discharge or dismissal executed in accordance
with the sentence of a court-martial.
875. ART. 75. RESTORATION
(a) Under such
regulations as the President may prescribe, all rights,
privileges, and property affected by an executed part of a
court-martial sentence which has been set aside or disapproved,
except an executed dismissal or discharge, shall be restored
unless a new trial or rehearing is ordered and such executed part
is included in a sentence imposed upon the new trial or
rehearing.
(b) If a previously
executed sentence of dishonorable or bad- conduct discharge is
not imposed on a new trial, the Secretary concerned shall
substitute therefor a form of discharge authorized for
administrative issuance unless the accused is to serve out the
remainder of this enlistment.
(c) If a previously
executed sentence of dismissal in not imposed on a new trial, the
Secretary concerned shall substitute therefor a form of discharge
authorized for administrative issue, and the commissioned officer
dismissed by the sentence may be re- appointed by the President
alone to such commissioned grade and with such rank as in the
opinion of the President that former officer would have attained
had he not been dismissed. The reappointment of such a former
officer shall be without regard to the existence of a vacancy and
shall affect the promotion status of other officers only insofar
as the President may direct. All time between the dismissal and
reappointment shall be considered as actual service for all
purposes, including the right to pay and allowances.
876. ART. 76. FINALITY OF
PROCEEDINGS, FINDINGS, AND SENTENCES
The appellate review of
records of trial provided by this chapter, the proceedings,
findings, and sentences of courts- martial as approved, reviewed,
or affirmed as required by this chapter, and all dismissals and
discharges carried into execution under sentences by
courts-martial following approval, review, or affirmation as
required by this chapter, are final and conclusive. Orders
publishing the proceedings of courts-martials and all action
taken pursuant to those proceedings are binding upon all
departments, courts, agencies, and officers of the United States,
subject only to action upon a petition for a new trial as
provided in section 873 of this title (article 73) and to action
by the Secretary concerned as provided in section 874 of this
title (article 74), and the authority of the President.
876a. ART. 76a. LEAVE REQUIRED TO
BE TAKEN PENDING REVIEW OF CERTAIN COURT-MARTIAL CONVICTIONS
Under regulations
prescribed by the Secretary concerned, an accused who has been
sentenced by a court-martial may be required to take leave
pending completion of action under this subchapter if the
sentence, as approved under section 860 of this title (article
60), includes an unsuspended dismissal or an unsuspended
dishonorable or bad-conduct discharge. the accused may be
required to begin such leave on the date on which the sentence is
approved under section 860 of this title (article 60) or at any
time after such date, and such leave may be continued until the
date which action under this subchapter is completed or may be
terminated at any earlier time.
SUBCHAPTER X. PUNITIVE ARTICLES
Sec. Art.
877. 77. Principals
878. 78. Accessory after the fact
879. 79. Conviction of lesser
included offense.
880. 80. Attempts
881. 81. Conspiracy.
882. 82. Solicitation.
883. 83. Fraudulent enlistment,
appointment, or separation.
884. 84. Unlawful enlistment,
appointment, or separation.
885. 85. Desertion.
886. 86. Absence without leave.
887. 87. Missing movement.
888. 88. Contempt toward officials.
889. 89. Disrespect toward superior
commissioned officer
890. 90. Assaulting or willfully
disobeying superior commissioned officer.
891. 91. Insubordinate conduct
toward warrant officer, noncommissioned officer, or petty
officer.
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 authority.
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. Capture or abandoned
property.
904. 104. Aiding the enemy.
905. 105. Misconduct as prisoner.
906. 106. Spies.
907. 107. False official
statements.
908. 108. Military property of
United States--Loss, damage, destruction, or wrongful
disposition.
909. 109. Property other than
military property of the United States-- Waste, spoilage, or
destruction.
910. 110. Improper hazarding of
vessel.
911. 111. Drunken or reckless
driving.
912. 112. Drunk on duty.
912a. 112a. Wrongful use,
possession, etc., of controlled substances.
913. 113. Misbehavior of sentinel.
914. 114. Dueling.
915. 115. Malingering.
916. 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.
877. ART. 77. PRINCIPALS
Any person punishable
under this chapter who--
(1) commits an offense
punishable by this chapter, or aids, abets, counsels, commands,
or procures its commission or
(2) causes an act to be
done which if directly performed by him would be punishable by
this chapter, is a principal.
878. ART. 78. ACCESSORY AFTER THE
FACT
Any person subject to
this chapter who, knowing that an offense punishable by this
chapter has been committed, receives, comforts, or assists the
offender in order to hinder or prevent his apprehension, trial,
or punishment shall be punished as a court-martial may direct.
879. ART. 79. CONVICTION OF LESSER
OFFENSE
An accused may be found
guilty of an offense necessarily included in the offense charged
or of an attempt to commit either the offense charged or an
offense necessarily included therein.
880. ART. 80. ATTEMPTS
(a) An act, done with
specific intent to commit an offense under this chapter,
amounting to more than mere preparation and tending, even though
failing, to effect its commission, is an attempt to commit that
offense.
(b) Any person subject to
this chapter who attempts to commit any offense punishable by
this chapter shall be punished as a court-martial may direct,
unless otherwise specifically prescribed.
(c) Any person subject to
this chapter may be convicted of an attempt to commit an offense
although it appears on the trial that the offense was
consummated.
881. ART. 81. CONSPIRACY
Any person subject to
this chapter who conspires with any other person to commit an
offense under this chapter shall, if one or more of the
conspirators does an act to effect the object of the conspiracy,
be punished as a court-martial may direct.
882. ART. 82. SOLICITATION
(a) Any person subject to
this chapter who solicits or advises another or others to desert
in violation of section 885 of this title (article 85) or mutiny
in violation of section 894 of this title (article 94) shall, if
the offense solicited or advised is attempted or committed, be
punished with the punishment provided for the commission of the
offense, but, if the offense solicited or advised is not
committed or attempted, he shall be punished as a court-martial
may direct.
(b) Any person subject to
this chapter who solicits or advises another or others to commit
an act or misbehavior before the enemy in violation of section
899 of this title (article 99) or sedition in violation of
section 894 of this title (article 94) shall, if the offense
solicited or advised is committed, be punished with the
punishment provided for the commission of the offense, but, if
the offense solicited or advised is not committed, he shall be
punished as a court-martial may direct.
883. ART. 83. FRAUDULENT
ENLISTMENT, APPOINTMENT, OR SEPARATION
Any person who--
(1) procures his own
enlistment or appointment in the armed forces by knowingly false
representation or deliberate concealment as to his qualifications
for the enlistment or appointment and receives pay or allowances
thereunder; or
(2) procures his own
separation from the armed forces by knowingly false
representation or deliberate concealment as to his eligibility
for that separation;
shall be punished as a
court-martial may direct.
884. ART. 84. UNLAWFUL ENLISTMENT,
APPOINTMENT, OR SEPARATION
Any person subject to
this chapter who effects an enlistment or appointment in or a
separation from the armed forces of any person who is known to
him to be ineligible for that enlistment, appointment, or
separation because it is prohibited by law, regulation, or order
shall be punished as a court-martial may direct.
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 of
duty with intent to remain away therefrom permanently;
(2) quits his unit,
organization, or place of duty with intent to avoid hazardous
duty or to shirk important service; or
(3) without being
regularly separated from one of the armed forces enlists or
accepts an appointment in the same or another on of the armed
forces without fully disclosing the fact that he has not been
regularly separated, or enters any foreign armed service except
when authorized by the United States; is guilty of desertion.
(b) Any commissioned
officer of the armed forces who, after tender of his resignation
and before notice of its acceptance, quits his post or proper
duties without leave and with intent to remain away therefrom
permanently is guilty of desertion.
(c) Any person found
guilty of desertion or attempt to desert shall be punished, if
the offense is committed in time of war, by death or such other
punishment as a court-martial may direct, but if the desertion or
attempt to desert occurs at any other time, by such punishment,
other than death, as a court-martial may direct.
866. ART. 86. ABSENCE WITHOUT LEAVE
Any member of the armed
forces who, without authority--
(1) fails to go to his
appointed place of duty at the time prescribed;
(2) goes from that place;
or
(3) absents himself or
remains absent from his unit, organization, or place of duty at
which he is required to be at the time prescribed; shall be
punished as a court-martial may direct.
887. ART. 87. MISSING MOVEMENT
Any person subject to
this chapter who through neglect or design misses the movement of
a ship, aircraft, or unit with which he is required in the course
of duty to move shall be punished as a court-martial may direct.
888. ART. 88. CONTEMPT TOWARD
OFFICIALS
Any commissioned officer
who uses contemptuous words against the President, the Vice
President, Congress, the Secretary of Defense, the Secretary of a
military department, the Secretary of Transportation, or the
Governor or legislature of any State, Territory, Commonwealth, or
possession in which he is on duty or present shall be punished as
a court-martial may direct.
889. ART. 89 DISRESPECT TOWARD
SUPERIOR COMMISSIONED OFFICER
Any person subject to
this chapter who behaves with disrespect toward his superior
commissioned officer shall be punished as a court-martial may
direct.
809. ART. 90. ASSAULTING OR
WILLFULLY DISOBEYING SUPERIOR COMMISSIONED OFFICER.
Any person subject to
this chapter who--
(1) strikes his superior
commissioned officer or draws or lifts up any weapon or offers
any violence against him while he is in the execution of his
officer; or
(2) willfully disobeys a
lawful command of his superior commissioned officer;
shall be punished, if the
offense is committed in time of war, by death or such other
punishment as a court-martial may direct, and if the offense is
committed at any other time, by such punishment, other than
death, as a court-martial may direct.
891. ART. 91. INSUBORDINATE CONDUCT
TOWARD WARRANT OFFICER, NONCOMMISSIONED OFFICER, OR PETTY OFFICER
Any warrant officer or
enlisted member who--
(1) strikes or assaults a
warrant officer, noncommissioned officer, or petty officer, while
that officer is in the execution of his office;
(2) willfully disobeys
the lawful order of a warrant officer, noncommissioned officer,
or petty officer; or
(3) treats with contempt
or is disrespectful in language or deportment toward a warrant
officer, noncommissioned officer, or petty officer while that
officer is in the execution of his office;
shall be punished as a
court-martial may direct.
892. ART. 92. FAILURE TO OBEY ORDER
OR REGULATION
Any person subject to
this chapter who--
(1) violates or fails to
obey any lawful general order or regulation;
(2) having knowledge of
any other lawful order issued by any member of the armed forces,
which it is his duty to obey, fails to obey the order; or
(3) is derelict in the
performance of his duties;
shall be punished as a
court-martial may direct.
893. ART. 93. CRUELTY AND
MALTREATMENT
Any person subject to
this chapter who is guilty of cruelty toward, or oppression or
maltreatment of, any person subject to his orders shall be
punished as a court-martial may direct.
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 otherwise do his duty or
creates any violence or disturbance is guilty of mutiny;
(2) with intent to cause
the overthrow or destruction of lawful civil authority, creates,
in concert with any other person, revolt, violence, or
disturbance against that authority is guilty of sedition;
(3) fails to do his
utmost to prevent and suppress a mutiny or sedition being
committed in his presence, or fails to take all reasonable means
to inform his superior commissioned officer or commanding officer
of a mutiny or sedition which he knows or has reason to believe
is taking place, is guilty of a failure to suppress or report a
mutiny or sedition.
(b) A person who is found
guilty of attempted mutiny, mutiny, sedition, or failure to
suppress or report a mutiny or sedition shall be punished by
death or such other punishment as a court- martial may direct.
895. ART. 95. RESISTANCE, BREACH OF
ARREST, AND ESCAPE
Any person subject to
this chapter who resists apprehension or breaks arrest or who
escapes from custody shall be punished as a court-martial may
direct.
896. ART. 96. RELEASING PRISONER
WITHOUT PROPER AUTHORITY
Any person subject to
this chapter who, without proper authority, releases any prisoner
committed to his charge, or who through neglect or design suffers
any such prisoner to escape, shall be punished as a court-martial
may direct, whether or not the prisoner was committed in strict
compliance with law.
897. ART. 97. UNLAWFUL DETENTION
Any person subject to
this chapter who, except as provided by law, arrests, or confines
any person shall be punished as a court- martial may direct.
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
accused of an offense under this chapter; or
(2) knowingly and
intentionally fails to enforce or comply with any provision of
this chapter regulating the proceedings before, during, or after
trial of an accused;
shall be punished as a
court-martial may direct.
899. ART. 99. MISBEHAVIOR BEFORE
THE ENEMY
Any person subject to
this chapter who before or in the presence of the enemy--
(1) runs away;
(2) shamefully abandons,
surrenders, or delivers up any command, unit, place, or military
property which it is his duty to defend;
(3) through disobedience,
neglect, or intentional misconduct endangers the safety of any
such command, unit, place, or military property;
(4) casts away his arms
or ammunition;
(5) is guilty of cowardly
conduct;
(6) quits his place of
duty to plunder or pillage;
(7) causes false alarms
in any command, unit, or place under control of the armed forces;
(8) willfully fails to do
his utmost to encounter, engage, capture, or destroy any enemy
troops, combatants, vessels, aircraft, or any other thing, which
it is his duty so to encounter, engage, capture, or destroy; or
(9) does not afford all
practicable relief and assistance to any troops, combatants,
vessels, or aircraft of the armed forces belonging to the United
States or their allies when engaged in battle;
shall be punished by
death or such punishment as a court- martial may direct.
900. ART. 100. SUBORDINATE
COMPELLING SURRENDER
Any person subject to
this chapter who compels or attempts to compel the commander of
any place, vessel, aircraft, or military property, or of any body
of members of the armed forces, to give it up to an enemy or to
abandon it, or who strikes the colors or flag to any enemy
without proper authority, shall be punished by death or such
other punishment as a court-martial may direct.
901. ART. 101. IMPROPER USE OF
COUNTERSIGN
Any person subject to
this chapter who in time of war discloses the parole or
countersign to any person not entitled to receive it or who gives
to another who is entitled to receive and use the parole or
countersign a different parole or countersign from that which, to
his knowledge, he was authorized and required to give, shall be
punished by death or such other punishment as a court- martial
may direct.
902. ART. 102. FORCING A SAFEGUARD
Any person subject to
this chapter forces a safeguard shall suffer death or such other
punishment as a court-martial may direct.
903. ART. 103. CAPTURED OR
ABANDONED PROPERTY
(a) All persons subject
to this chapter will secure all public property taken from the
enemy for the service of the United States, and shall give notice
and turn over to the proper authority without delay all captured
or abandoned property in their possession, custody, or control.
(b) Any person subject to
this chapter who--
(1) fails to carry out
the duties prescribed in subsection (a);
(a) buys, sells, trades,
or in any way deals in or disposes of captured or abandoned
property, whereby he receives or expects any profit, benefit, or
a advantage to himself or another directly or indirectly
connected with himself; or
(3) engages in looting or
pillaging;
shall be punished as a
court-martial may direct.
904. ART. 104. AIDING THE ENEMY
Any person who--
(1) aids, or attempts to
aid, the enemy with arms, ammunition, supplies, money, or other
things; or
(2) without proper
authority, knowingly harbors or [protects or gives intelligence
to or communicates or corresponds with or holds any intercourse
with the enemy, either directly or indirectly;
shall suffer death or
such other punishment as a court-martial or military commission
may direct.
905. ART 105. MISCONDUCT AS
PRISONER
Any person subject to
this chapter who, while in the hands of the enemy in time of
war--
(1) for the purpose of
securing favorable treatment by his captors acts without proper
authority in a manner contrary to law, custom, or regulation, to
the detriment of others of whatever nationality held by the enemy
as civilian or military prisoners; or
(2) while in a position
of authority over such persons maltreat them without justifiable
cause;
shall be punished as a
court-martial may direct.
906. ART. 106. SPIES
Any person who in time of
war is found lurking as a spy or acting as a spy in or about any
place, vessel, or aircraft, within the control or jurisdiction of
any of the armed forces, or in or about any shipyard, any
manufacturing or industrial plant, or any other place or
institution engaged in work in aid of the prosecution of the war
by the Unites States, or elsewhere, shall be tried by a general
court-martial or by a military commission and on conviction shall
be punished by death.
906a. ART. 106a. ESPIONAGE
(A) (1) Any person
subject to this chapter who, with intent or reason to believe
that it is to be used to the injury of the United States or to
the advantage of a foreign nation, communicates, delivers, or
transmits, or attempts to communicate, deliver, or transmit, to
any entity described in paragraph (2), either directly or
indirectly, any thing described in paragraph (3) shall be
punished as a court-martial may direct, except that if the
accused is found guilty of an offense that directly concerns (A)
nuclear weaponry, military spacecraft or satellites, early
warning systems, or other means of defense or retaliation against
large scale attack, (B) war plans, (C) communications
intelligence or cryptographic information, or (D) any other major
weapons system or major element of defense strategy, the accused
shall be punished by death or such other punishment as a court-
martial may direct.
(2) An entity referred to
in paragraph (1) is--
(A) a foreign government;
(B) a faction or party or
military force within a foreign country, whether recognized or
unrecognized by the United States
(C) a representative,
officer, agent, employee, subject, or citizen of such government,
faction, party, or force.
(3) A thing refereed to
in paragraph (1) is a document, writing, code book, signal book,
sketch, photograph, photographic negative, blueprint, plan, map,
model, note, instrument, appliance or information relating to the
national defense.
(b) (1) No person may be
sentenced by court-martial to suffer death for an offense under
this section (article) unless--
(A) the members of the
court-martial unanimously find at least one of the aggravating
factors set out in subsection (c); and
(B) the members
unanimously determine that any extenuating or mitigating
circumstances are substantially outweighed by any aggravating
circumstances, including the aggravating factors set out under
subsection (c).
(2) Findings under this
subsection may be based on--
(A) evidence introduced
on the issue of guilt or innocence;
(B) evidence introduced
during the sentencing proceeding; or
(C) all such evidence.
(3) The accused shall be
given broad latitude to present matters in extenuation and
mitigation.
(c) A sentence of death
may be adjudged by a court-martial for an offense under this
section (article) only if the members unanimously find, beyond a
reasonable doubt, one or more of the following aggravating
factors:
(1) The accused has been
convicted of another offense involving espionage or treason for
which either a sentence of death or imprisonment for life was
authorized by statute.
(2) In the commission of
the offense, the accused knowingly created a grave risk of
substantial damage to the national security.
(3) In the commission of
the offense, the accused knowingly created a grave risk of death
to another person.
(4) Any other factor that
may be prescribed by the President by regulations under section
836 of this title (Article 36).
907. ART. 107. FALSE STATEMENTS
Any person subject to
this chapter who, with intent to deceive, signs any false record,
return, regulation, order, or other official document, knowing it
to be false, or makes any other false official statement knowing
it to be false, shall be punished as a court-martial may direct.
908. ART. 108. MILITARY PROPERTY OF
UNITED STATES-LOSS, DAMAGE, DESTRUCTION, OR WRONGFUL DISPOSITION
Any person subject to
this chapter who, without proper authority--
(1) sells or otherwise
disposes of;
(2) willfully ore through
neglect damages, destroys, or loses; or
(3) willfully or through
neglect suffers to be lost, damaged, sold, or wrongfully disposed
of;
any military property of
the United States, shall be punished as a court-martial may
direct.
909. ART. 109. PROPERTY OTHER THAN
MILITARY PROPERTY OF UNITED STATES - WASTE, SPOILAGE, OR
DESTRUCTION
Any person subject to
this chapter who willfully or recklessly wastes, spoils, or
otherwise willfully and wrongfully destroys or damages any
property other than military property of the United States shall
be punished as a court-martial may direct.
910. ART 110. IMPROPER HAZARDING OF
VESSEL
(a) Any person subject to
this chapter who willfully and wrongfully hazards or suffers to
be hazarded any vessel of the armed forces shall suffer death or
such punishment as a court- martial may direct.
(b) Any person subject to
this chapter who negligently hazards or suffers to be hazarded
any vessel of the armed forces shall be punished as a
court-martial may direct.
* 911. ART. 111. DRUNKEN OR
RECKLESS DRIVING
Any person subject to
this chapter who operates any vehicle while drunk, or in a
reckless or wanton manner, or while impaired by a substance
described in section 912a(b) of this title (article 112a(b)),
shall be punished as a court-martial may direct.
912. ART. 112. DRUNK ON DUTY
Any person subject to
this chapter other than a sentinel or look-out, who is found
drunk on duty, shall be punished as a court-martial may direct.
912a. ART. 112a. WRONGFUL USE,
POSSESSION, ETC., OF CONTROLLED SUBSTANCES
(a) Any person subject to
this chapter who wrongfully uses, possesses, manufactures,
distributes, imports into the customs territory of the United
States, exports form the United States, or introduces into an
installation, vessel, vehicle, or aircraft used by or under the
control of the armed forces a substance described in subsection
(b) shall be punished as a court-martial may direct.
(b) The substances
refereed to in subsection (a) are the following:
(1) opium, heroin,
cocaine, amphetamine, lysergic acid diethylamide,
methamephetamine, penecyclidine, barbituric acid, and marijuana,
and any compound or derivative of any such substance.
(2) Any substance not
specified in clause (1) that is listed on a scheduile of
controlled substances prescribed by the President for the
purposes of this article.
(3) Any other substance
not specified in clause (1) or contained on a list prescribed by
the President under clause (2) that is listed in Schedules I
through V of section 202 of the Controlled Substances Act (21
U.S.C. 812).
913. ART. 113. MISBEHAVIOR OF A
SENTINEL OR LOOKOUT
Any sentinel or look-out
who is found drunk or sleeping upon his post, or leaves it before
he is regularly relieved, shall be punished, if the offense is
committed in time of war, by death or such other punishment as a
court-martial may direct, by if the offense is committed at any
other time, by such punishment other than death as court-martial
may direct.
914. ART. 114. DUELING
Any person subject to
this chapter who fights or promotes, or is concerned in or
connives at fighting a duel, or who, having knowledge of a
challenge sent or about to be sent, fails to report the fact
promptly to the proper authority, shall be punished as a
court-martial may direct.
915. ART 115. MALINGERING
Any person subject to
this chapter who for the purpose of avoiding work, duty, or
service--
(1) feigns illness,
physical disablement, mental lapse or derangement; or
(2) intentionally
inflects self-injury;
shall be punished as a
court-martial may direct.
916. ART. 116. RIOT OR BREACH OF
PEACE
Any person subject to
this chapter who causes or participates in any riot or breach of
the peace shall be punished as a court- martial may direct.
917. ART. 117. PROVOKING SPEECHES
OR GESTURES
Any person subject to
this chapter who uses provoking or reproachful words or gestures
towards any other person subject to this chapter shall be
punished as a court-martial may direct.
918. ART. 118. MURDER
Any person subject to
this chapter whom without justification or excuse, unlawfully
kills a human 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
disregard of human life; or
(4) is engaged in the
perpetration or attempted perpetration of burglary, sodomy, rape,
robbery, or aggravated arson;
is guilty of murder, and
shall suffer such punishment as a court-martial may direct,
except that if found guilty under clause (1) or (4), he shall
suffer death or imprisonment for life as a court-martial may
direct.
919. ART. 119. MANSLAUGHTER
(a) Any person subject to
this chapter who, with an intent to kill or inflict great bodily
harm, unlawfully kills a human being in the heat of sudden
passion caused by adequate provocation is guilty of voluntary
manslaughter and shall be punished as a court- martial may
direct.
(b) Any person subject to
this chapter who, without an intent to kill or inflict great
bodily harm, unlawfully kills a human being--
(1) by culpable
negligence; or
(2) while perpetrating or
attempting to perpetrate an offense, other than those named in
clause (4) of section 918 of this title (article 118), directly
affecting the person;
is guilty of involuntary
manslaughter and shall be punished as a court-martial may direct.
920. ART. 120. RAPE AND CARNAL
KNOWLEDGE
(a) Any person subject to
this chapter who commits an act of sexual intercourse with a
female not his wife, by force and without consent, is guilty of
rape and shall be punished by 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 a female not his wife
who has not attained the age of sixteen years, is guilty of
carnal knowledge and shall be punished as a court-martial may
direct.
(c) Penetration, however
slight, is sufficient to complete either of these offenses.
921. ART. 121. LARCENY AND WRONGFUL
APPROPRIATION
(a) Any person subject to
this chapter who wrongfully takes, obtains, or withholds, by any
means, from the possession of the owner or of any other person
any money, personal property, or article of value of any kind--
(1) with intent
permanently to deprive or defraud another person of the use and
benefit of property or to appropriate it to his won use or the
use of any person other than the owner, steals that property and
is guilty of larceny; or
(2) with intent to
temporarily to deprive or defraud another person of the use and
benefit of property or to appropriate to his own use the use of
any person other than the owner, is guilty of wrongful
appropriation.
(b) Any person found
guilty of larceny or wrongful appropriation shall be punished as
a court-martial may direct.
922. ART. 122. ROBBERY
Any person subject to
this chapter who with intent to steal takes anything of value
from the person or in the presence of another, against his will,
by means of force or violence or fear of immediate or future
injury to his person or property or to the person or property of
a relative or member of his family or of anyone in his company at
the time of the robbery, is guilty of robbery and shall be
punished as a court-martial may direct.
923. ART. 123. FORGERY
Any person subject to
this chapter who, with intent to defraud- -
(1) falsely makes or
alters any signature, to, or any part of, any writing which
would, if genuine, apparently impose a legal liability on another
or change his legal right or liability to his prejudice; or
(2) utters, offers,
issues, or transfers such a writing, known by him to be so made
or altered;
is guilty of forgery and
shall be punished as a court-martial may direct.
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 obligation, or for any other purpose, with intent to
deceive;
makes, draws, utters, or
delivers any check, draft, or order for the payment of money upon
any bank or other depository, knowing at the time that the maker
or drawer has not or will not have sufficient funds in, or credit
with, the bank or other depository for the payment of that check,
draft, or order in full presentment, shall be punished as a
court-martial may direct. The making, drawing, uttering, or
delivering by a maker or drawer of a check, draft, or order,
payment of which is refused by the drawee because of insufficient
funds of the maker or drawer in the drawee's possession or
control, is prima facie evidence of his intent to defraud or
deceive and of his knowledge of insufficient funds in, or credit
with, that bank or other depository, unless the maker or drawer
pays the holder the amount due within five days after receiving
notice , orally or in writing, that the check, draft, or order
was not paid on presentment. in this section the word
"credit" means an arrangement or understanding ,
express or implied, with the bank or other depository for the
payment of that check, draft, or order.
924. ART. 124. MAIMING
Any person subject to
this chapter who, with intent to injure, disfigure, or disable,
inflicts upon the person of another an injury which--
(1) seriously disfigures
his person by a mutilation thereof;
(2) destroys or disables
any member or organ of his body; or
(3) seriously diminishes
his physical vigor by the injury of any member or organ;
is guilty of maiming and
shall be punished as a court-martial may direct.
925. ART. 125. SODOMY
(a) Any person subject to
this chapter who engages in unnatural carnal copulation with
another person of the same or opposite sex or with an animal is
guilty of sodomy. Penetration , however slight, is sufficient to
complete the offense.
(b) Any person found
guilty of sodomy shall be punished as a court-martial may direct.
926. ART. 126. ARSON
(a) Any person subject to
this chapter who willfully and maliciously burns or sets on fire
an inhabited dwelling, or any other structure, movable or
immovable, wherein to the knowledge of the offender there is at
the time a human being, is guilty of aggravated arson and shall
be punished as a court-martial may direct.
(b) Any person subject to
this chapter who willfully and maliciously burns or sets fire to
the property of another, except as provided in subsection (a), is
guilty of simple arson and shall be punished as a court-martial
may direct.
927. ART. 127. EXTORTION
Any person subject to
this chapter who communicates threats to another person with the
intention thereby to obtain anything of value or any acquittance,
advantage, or immunity is guilty of extortion and shall be
punished as a court-martial may direct.
928. ART. 128. ASSAULT
(a) Any person subject to
this chapter who attempts or offers with unlawful force or
violence to do bodily harm to another person, whether or not the
attempt or offer is consummated, is guilty of assault and shall
be punished as a court-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 produce
death or grievous bodily harm; or
(2) commits an assault
and intentionally inflicts grievous bodily harm with or without a
weapon;
is guilty of aggravated
assault and shall be punished as a court-martial may direct.
929. ART. 129. BURGLARY
Any person subject to
this chapter who, with intent to commit an offense punishable
under section 918-929 of this title (article 118-128), breaks and
enters, in the nighttime, the dwelling house of another, is
guilty of burglary and shall be punished as a court-martial may
direct.
930. ART. 130. HOUSEBREAKING
Any person subject to
this chapter who unlawfully enters the building or structure of
another with intent to commit a criminal offense therein is
guilty of housebreaking and shall be punished as a court-martial
may direct.
931. ART. 131. PERJURY
Any person subject to
this chapter who in a judicial proceeding or in a course of
justice willfully and corruptly--
(1) upon a lawful oath or
in a form allowed by law to be substituted for an oath, gives any
false testimony material to the issue or matter of inquiry; or
(2) in any declaration,
certificate, verification, or statement under penalty or perjury
as permitted under section 1746 of title 28, United States Code,
subscribes any false statement material to the issue or matter of
inquiry;
is guilty of perjury and
shall be punished as a court-martial may direct.
932. ART. 132. FRAUDS AGAINST THE
UNITED STATES
Any person subject to
this chapter--
(1) who, knowing it to be
false or fraudulent--
(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 or
payment, any claim against the United States or any officer
thereof;
(2) who, for the purpose
of obtaining the approval, allowance, or payment of any claim
against the United States or any officer thereof
(A) makes or uses any
writing or other paper knowing it to contain false or fraudulent
statements;
(B) makes any oath to any
fact or to any writing or other paper knowing the oath to be
false; or
(C) forges or
counterfeits any signature upon any writing or other paper, or
uses any such signature knowing it to be forged or counterfeited;
(3) who, having charge,
possession, custody, or control of any money, or other property
or the United States, furnished or intended for the armed forces
thereof, knowingly delivers to any person having authority to
receive it, any amount thereof less than that for which he
receives a certificate or receipt; or
(4) who, being authorized
to make or deliver any paper certifying the receipt of any
property of the United States furnished or intended for the armed
forces thereof, makes or delivers to any person such writing
without having full knowledge of the truth of the statements
therein contained and with intent to defraud the United States;
shall, upon conviction,
be punished as a court-martial may direct.
933. ART. 133. CONDUCT UNBECOMING
AN OFFICER AND A GENTLEMAN
Any commissioned officer,
cadet, or midshipman who is convicted of conduct unbecoming an
officer and a gentleman shall be punished as a court-martial may
direct.
934. ART. 134. GENERAL ARTICLE
Though not specifically
mentioned in this chapter, all disorders and neglects to the
prejudice of good order and discipline in the armed forces, all
conduct of a nature to bring discredit upon the armed forces, and
crimes and offenses not capital, of which persons subject to this
chapter may be guilty, shall be taken cognizance of by a general,
special or summary court-martial, according to the nature and
degree of the offense, and shall be punished at the discretion of
that court.
SUBCHAPTER XI. MISCELLANEOUS
PROVISIONS
Sec. Art.
936. 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 any matter may be convened by any person authorized
to convene a general court-martial or by any other person
designated by the Secretary concerned for that purpose, whether
or not the persons involved have requested such an inquiry.
(b) A court of inquiry
consists of three or more commissioned officers. For each court
of inquiry the convening authority shall also appoint counsel for
the court.
(c) Any person subject to
this chapter whose conduct is subject to inquiry shall be
designated as a party. Any person subject to this chapter or
employed by the Department of Defense who has a direct interest
in the subject of inquiry has the right to be designated as a
party upon request to the court. Any person designated as a party
shall be given due notice and has the right to be present, to be
represented by counsel, to cross- examine witnesses, and to
introduce evidence.
(d) Members of a court of
inquiry may be challenged by a party, but only for cause stated
to the court.
(e) The members, counsel,
the reporter, and interpreters of courts of inquiry shall take an
oath to faithfully perform their duties.
(f) Witnesses may be
summoned to appear and testify and be examined before courts of
inquiry, as provided for courts-martial.
(g) Courts of inquiry
shall make findings of fact but may not express opinions or make
recommendations unless required to do so by the convening
authority.
(h) Each court of inquiry
shall keep a record of its proceedings, which shall be
authenticated by the signatures of the president and counsel for
the court and forwarded to the convening authority. If the record
cannot be authenticated by the president, it shall be signed by a
member in lieu of the president. If the record cannot be
authenticated by the counsel for the court, it shall be signed by
a member in lieu of the counsel.
* 936. ART. 136. AUTHORITY TO
ADMINISTER OATHS AND ACT AS NOTARY
(a) The following persons
on active duty or performing inactive-duty training may
administer oaths for the purpose of military administration,
including military justice, and have the general powers of a
notary public and of a consul of the United States, in the
performance of all notarial acts to be executed by members of any
of the armed forces, wherever they may be, by persons serving
with, employed by, or accompanying the armed forces outside the
United States and outside the Canal Zone, Puerto Rico, Guam, and
the Virgin Islands, and by other persons subject to this chapter
outside the United States.
(1) All judge advocates
(2) All summary
courts-martial.
(3) All adjutants,
assistant adjutants, acting adjutants, and personnel adjutants.
(4) All commanding
officers of the Navy, Marine Corps, and Coast Guard.
(5) All staff judge
advocates and legal officers, and acting or assistant staff judge
advocates and legal officers.
(6) All other persons
designated by regulations of the armed forces or by statute.,
(b) The following persons
on active duty or performing inactive-duty training may
administer oaths necessary in the performance of their duties:
(1) The president,
military judge, trial counsel, and assistant trial counsel for
all general and special courts-martial.
(2) The president and
counsel for the court of any court of inquiry.
(3) All officers
designated to take a deposition.
(4) All persons detailed
to conduct an investigation.
(5) All recruiting
officers.
(6) All other persons
designated by regulations of the armed forces or by statute.
(c) No fee may be paid to
or received by any person for the performance of any notarial act
herein authorized.
(d) The signature without
seal of any such person acting as notary, together with the title
of his office, is prima facie evidence of his authority.
* 937. ART. 137. ARTICLES TO BE
EXPLAINED.
(a) (1) The sections of
this title (articles of the Uniform Code of Military Justice)
specified in paragraph (3) shall be carefully explained to each
enlisted member at the time of (or within six days after)--
(A) the member's initial
entrance on active duty; or
(B) the member's initial
entrance into a duty status with a reserve component.
(2) Such sections
(articles) shall be explained again--
(A) after the member has
completed six months of active duty or, in the case of a member
of a reserve component, after the member has completed basic or
recruiting training; and
(B) at the time when the
member reenlists.
(3) This subsection
applies with respect to sections 802, 803, 807- 815, 825, 827,
831, 837, 838, 855, 877-934, and 937-939 of this title (articles
2, 3, 7-15, 25, 27, 31, 38, 55, 77-134, and 137-139).
(b) The text of the
Uniform Code of Military Justice and of the regulations
prescribed by the President under such Code shall be made
available to a member on active duty or to a member of a reserve
component, upon request by the member, for the member's personal
examination.
938. ART. 138. COMPLAINTS OF WRONGS
Any member of the armed
forces who believes himself wronged by his commanding officer,
and who, upon due application to that commanding officer, is
refused redress, may complain to any superior commissioned
officer, who shall foreword the complaint to the office
exercising court- martial jurisdiction over the officer against
whom it is made. The officer exercising general court-martial
jurisdiction shall examine into the complaint and take proper
measures for redressing the wrong complained of; and he shall, as
soon as possible, send to the Secretary concerned a true
statement of that complaint, with the proceedings thereon.
939. ART. 139. REDRESS OF INJURIES
TO PROPERTY
(a) Whenever a complaint
is made to any commanding officer hat willful damage has been
done to the property of any person or that his property has been
wrongfully taken by members of the armed forces, he may, under
such regulations as the Secretary concerned may prescribe,
convene an board to investigate the complaint. The board shall
consist of from one to three commissioned officers and, for the
purpose of investigation, it has the power to summon witnesses
and examine them upon oath, to receive depositions or other
documentary evidence, and to assess the damages sustained against
the responsible parties. The assessment of damages made by the
board is subject to the approval of the commanding officer, and
in the amount approved by him shall be charged against the pay of
the offenders. The order of the commanding officer directing
charges herein authorized is conclusive on any disbursing officer
for the payment by him to the injured parties of the damages as
assessed and approved.
(b) If the offenders
cannot be ascertained, but organization or detachment to which
they belong is known, charges totaling the amount of damages
assessed and approved may be made in such proportion as may be
considered just upon the individual members thereof who are shown
to have been present at the scene at the time the damages
complained of were inflicted, as determined by the approved
findings of the board.
940. ART. 140. DELEGATION BY THE
PRESIDENT.
The President may
delegate any authority vested in him under this chapter, and
provide for sub delegation of any such authority.
*SUBCHAPTER XII -- COURT OF
MILITARY APPEALS
Sec. Art.
941. 141. Status.
942. 142. Judges.
943. 143. Organization and
employees.
944. 144. Procedure.
945. 145. Annuities for judges and
survivors.
946. 146. Code committee.
941. ART. 141. STATUS
There is a court of
record known as the United States Court of Military Appeals. The
court is established under Article 1 of the Constitution. The
court is located for administrative purposes only in the
Department of Defense.
942. ART. 142. JUDGES.
(a) NUMBER. The United
States Court of Military Appeals consists of five judges.
(b) APPOINTMENT;
QUALIFICATION.
(1) Each judge of the
court shall be appointed from civil life by the President, by and
with the advice and consent of the Senate, for a specified term
determined under paragraph (2). A judge may serve as a senior
judge as provided in subsection (e).
(2) The term of a judge
shall expire as follows:
(A) In the case of a
judge who is appointed after March 31 and before October 1 of any
year, the term shall expire on September 30 of the year in which
the fifteenth anniversary of the appointment occurs.
(B) In the case of a
judge who is appointed after September 30 of any year and Before
April 1 of the following year, the term shall expire fifteen
years after such September 30.
(3) Not more than three
of the judges may be appointed from the same political party, and
no person may be appointed to be judge of the court unless the
person is a member of the bar of a Federal court or the highest
court of a State.
(c) REMOVAL. Judges of
the court may be removed from office by the President, upon
notice and hearing, for--
(1) neglect of duty;
(2) misconduct; or
(3) mental or physical
disability.
A judge may not be
removed by the President for any other cause.
(d) PAY AND ALLOWANCES.
Each judge of the court is entitled to the same salary and travel
allowances as are, and from the time may be, provided for judges
of the United States Courts of Appeals.
(e) SENIOR JUDGES.
(1) A former judge of the
court who is receiving retired pay or annuity under section 945
of this title (article 145) or under subchapter III of chapter 83
or chapter 84 title 5 shall be a senior judge.
(2) (A) The chief judge
of the court may call upon a senior judge of the court, with the
consent of the senior judge, to perform judicial duties with the
court--
(i) during a period a
judge of the court is unable to perform his duties because of
illness or other disability;
(ii) during a period in
which a position of judge of the court is vacant; or
(iii) in any case in
which a judge of the court recuses himself.
(B) A senior judge shall
be paid for each day on which he performs judicial duties with
the court an amount equal to the daily equivalent of the annual
rate of pay provided for a judge of the court. Such pay shall be
in lieu of retired pay and in lieu of an annuity under section
945 of this title (Article 145), subchapter III of chapter 83 or
subchapter II of chapter 84 of title 5, or any other retirement
system for employees of the Federal Government.
(3) A senior judge, while
performing duties referred to in paragraph (2), shall be provided
with such office space and staff assistance as the chief judge
considers appropriate and shall be entitled to the per diem,
travel allowances, and other allowances provided for judges of
the court.
(4) A senior judge shall
be considered to be an officer or employee of the United States
with respect to his status as a senior judge, but only during
periods the senior judge is performing duties referred to in
paragraph (2). For the purposes of section 205 of title 18, a
senior judge shall be considered to be a special Government
employee during such periods. Any provision of law that prohibits
or limits the political or business activities of an employee of
the United States shall apply to a senior judge only during such
periods.
(5) The court shall
prescribe rules for the use and conduct of senior judges of the
court. The chief judge of the court shall transmit such rules,
and any amendments to such rules, to the Committees on Armed
Services of Senate and House of Representatives not later than 15
days after the issuance of such rules or amendments, as the case
may be.
(6) For the purposes of
subchapter III of chapter 83 of title 5 (relating to the Civil
Service Retirement and Disability System) and chapter 84 of such
title (relating to the Federal Employees' Retirement System) and
for purposes of any other Federal Government retirement system
for employees of the Federal Government--
(A) a period during which
a senior judge performs duties referred to in paragraph (2) shall
not be considered creditable service.
(B) no amount shall be
withheld from the pay of a senior judge as a retirement
contribution under section 8334, 8343, 8342, or 8432 of title 5
or under other such retirement system for any period during which
the senior judge performs duties refereed to in paragraph (2);
(C) no contribution shall
be made by the Federal Government to any retirement system with
respect to a senior judge for any period during which the senior
judge performs duties referred to in paragraph (2); and
(D) a senior judge shall
not be considered to a re employed annuitant for any period
during which the senior judge performs duties referred to in
paragraph (2).
(f) SERVICE OF ARTICLE
III JUDGES.
(1) the Chief Justice of
the United States, upon the request of the chief judge of the
court, may designate a judge of a United States court of appeals
or of a United States district court to perform the duties of
judge of the United States Court of Military Appeals--
(A) during a period a
judge of the court is unable to perform his duties because of
illness or other disability; or
(B) in any case in which
a judge of the court recuses himself.
(2) A designation under
paragraph (1) may be made only with the consent of the designated
judge and the concurrence of the chief judge of the court of
appeals or district court concerned.
(3) Per diem, travel
allowances, and other allowances paid to the designated judge in
connection with the performance of duties for the court shall be
paid from funds available for the payment of per diem and such
allowances for judges of the court.
(g) EFFECT OF VACANCY ON
COURT. A vacancy on the court does not impair the right of the
remaining judges to exercise the powers of the court.
943. ART. 143. ORGANIZATION AND
EMPLOYEES
(a) CHIEF JUDGE. The
President shall designate from time to time one of the judges of
the United States Court of Military Appeals to be chief judge of
the court.
(b) PRECEDENCE OF JUDGES.
The chief judge of the court shall have precedence and preside at
any session that he attends. The other judges shall have
precedence and preside according to the seniority of their
original commissions. Judges whose commissions bear the same date
shall have precedence according to seniority in age.
(c) STATUS OF ATTORNEY
POSITIONS.
(1) Attorney positions of
employment under the Court of Military Appeals are exempted from
the competitive service. Appointments to such positions shall be
made by the court, without the concurrence of any other officer
or employee of the executive branch, as in the same manner as
appointments are made to other executive branch positions of a
confidential or policy- determining character for which it is not
practicable to examine or hold a competitive examination. such
positions shall not be counted as positions of that character for
purposes of any limitation on the number of positions of that
character provided in law.
(2) In making
appointments to the positions described in paragraph (1),
preference shall be given, among equally qualified persons, to
persons who are preference eligibles (as defined in section
2108(3) of title 5).
944. ART. 144. PROCEDURE
The United States Court
of Military Appeals may prescribe its rules of procedure and may
determine the number of judges required to constitute a quorum.
945. ART. 145. ANNUITIES FOR JUDGES
AND SURVIVORS
(a) RETIREMENT ANNUITIES
FOR JUDGES.
(1) A person who has
completed a term of service for which he was appointed as a judge
of the United States Court of Military Appeals is eligible for an
annuity under this section upon separation from civilian service
in the Federal Government.
(2) A person who is
eligible for any annuity under this section shall be paid that
annuity if, at the time he becomes eligible to receive that
annuity, he elects to receive that annuity in lieu of any other
annuity for which he may be eligible at the time of such election
(whether an immediate or a deferred annuity) under subchapter III
of chapter 83 or subchapter II of chapter 84 of title 5 or any
other retirement system for civilian employees of the Federal
Government. Such an election may not be revoked.
(3) (A) The Secretary of
Defense shall notify the Director of the Office of Personnel
Management whenever an election under paragraph (2) is made
affecting any right or interest under subchapter III of chapter
83 or subchapter II of chapter 85 of title 5 based on service as
a judge of the United States Court of Military Appeals.
(B) Upon receiving any
notification under subparagraph (A) in the case of a person
making an election under (2), the Director shall determine the
amount of the person's lump-sum credit under subchapter III of
chapter 83 or subchapter II of chapter 84 of title 5, as
applicable, and shall request the Secretary of Treasury to
transfer such amount from the Civil Service Retirement and
Disability Fund to the Department of Defense Military Retirement
Fund. The Secretary of the Treasury shall make any transfer so
requested.
(C) In determining the
amount of a lump-sum credit under section 8331(8) of title 5 for
purposes of this paragraph--
(i) interest shall be
computed using the rates under section 8334(e)(3) of such title;
and
(ii) the completion of 5
years of civilian service (or longer) shall not be a basis for
excluding interest.
(b) AMOUNT OF ANNUITY.
The annuity payable under this section to a person who makes an
election under subsection (a)(2) is 80 percent of the rate of pay
for a judge in active service on the United States Court of
Military Appeals as of the date on which the person is separated
form civilian service.
(c) RELATION TO THRIFT
SAVINGS PLAN. Nothing in this section affects any right of any
person to participate in the thrift savings plan under section
8351 of title 5 subchapter III of chapter 84 of such title.
(d) SURVIVOR ANNUITIES.
The Secretary of Defense shall prescribe by regulation a program
to provide annuities for survivors and former spouses of persons
receiving annuities under section by reason of elections made by
such persons under subsection (a)(2). That program shall, to the
maximum extent practicable, provide benefits and establish terms
and conditions that are similar to those provided under survivor
and former spouse annuity programs under other retirement systems
for civilian employees of the Federal Government. The program may
include provisions for the reduction in the annuity paid the
person as a condition for the survivor annuity. An election by a
judge (including a senior judge) or former judge to receive an
annuity under this section terminates any right or interest which
any other individual may have to a survivor annuity under any
other retirement system for civilian employees of the Federal
Government based on the service of that judge or former judge as
a civilian officer or employee of the Federal Government (except
with respect to an election under subsection (g)(1)(B)).
(e) COST-OF-LIVING
INCREASES. The Secretary of Defense shall periodically increase
annuities and survivor annuities paid under this section in order
to take account of changes in the cost of living. The Secretary
shall prescribe by regulation procedures for increases in
annuities under this section. Such system shall, to the maximum
extent appropriate, provide cost-of-living adjustments that are
similar to those that are provided under other retirement systems
for civilian employees of the Federal Government.
(f) DUAL COMPENSATION. A
person who is receiving an annuity under this section by reason
of service as a judge of the court and who is appointed to a
position in the Federal Government shall, during the period of
such person's service in such position, be entitled to receive
only the annuity under this section or the pay for that position,
whichever is higher.
(g) ELECTION OF JUDICIAL
RETIREMENT BENEFITS.
(1) A person who is
receiving an annuity under this section by reason of service as a
judge of the court and who later is appointed as a justice or
judge of the United States to hold office during good behavior
and who retires from that office, or from regular service in that
office, shall be paid either--
(A) the annuity under
this section, or
(B) the annuity or salary
to which he is entitled by reason of his service as such a
justice or judge of the United States, as determined by an
election by that person at the time of his retirement from the
office, or from regular active service in the office, of justice
or judge of the United States. Such an election may not be
revoked.
(2) An election by a
person to be paid an annuity or salary pursuant to paragraph
(1)(B) terminates (A) any election previously made by such person
to provide a survivor annuity pursuant to subsection (d), and (B)
any right of any other individual to receive an survivor annuity
pursuant to subsection (d) on the basis of the service of that
person.
(h) SOURCE OF PAYMENT OF
ANNUITIES. Annuities and survivor annuities paid under this
section shall be paid out f the Department of Defense Military
Retirement Fund.
946. ART. 146. CODE COMMITTEE
(a) ANNUAL SURVEY. A
committee shall beet at least annually and shall make an annual
comprehensive survey of the operation of this chapter.
(b) COMPOSITION OF
COMMITTEE. the committee shall consist of--
(1) the judges of the
United States Court of Military Appeals;
(2) the Judge Advocates
General of the Army, Navy, and Air Force, the Chief Counsel of
the Coast Guard, and the Staff Judge Advocate to the Commandant
of the Marine Corps; and
(3) two members of the
public appointed by the Secretary of Defense.
(c) REPORTS.
(1) After each such
survey, the committee shall submit a report--
(A) to the Committees on
Armed Services of the Senate and House of Representatives; and
(B) Amy recommendation of
the committee relating to--
(i) uniformity of
policies as to sentences;
(ii) amendments to this
chapter; and
(iii) any other matter
the committee considers appropriate.
(d) QUALIFICATION AND
TERMS OF APPOINTED MEMBERS. Each member of the committee
appointed by the Secretary of Defense under subsection (B)(3)
shall be a recognized authority in military justice or criminal
law. Each such member shall be appointed for a term of three
years.
(e) APPLICABILITY OF
FEDERAL ADVISORY COMMITTEE ACT. The Federal Advisory Committee
Act (5 U.S.C. App I) shall not apply to the committee.
TLG
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