UNIFORM CODE OF MILITARY JUSTICE
Congressional Code of Military Criminal Law applicable to all military
members worldwide. Use the links below for a quick tour of
the UCMJ.
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SUB
CHAPTER 1. GENERAL PROVISIONS
Sec. Art.
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. 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. 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. 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. 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.
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. 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.
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