UNIFORM CODE OF MILITARY JUSTICE Cont...
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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(a) A finding or sentence
of court-martial may not be held incorrect on the ground of an
error of law unless the error materially prejudices the
substantial rights of the accused.
(b) Any reviewing
authority with the power to approve or affirm a finding of guilty
may approve or affirm, instead, so much of the finding as
includes a lesser included offense.
(a) the findings and
sentence of a court-martial shall be reported promptly to the
convening authority after the announcement of the sentence.
(b) (1) the accused may
submit to the convening authority matters for consideration by
the convening authority with respect to the findings and the
sentence. Except in a summary court- martial case, such a
submission shall be made within 10 days after the accused has
been given an authenticated record of trial and, if applicable,
the recommendation of the staff judge advocate or legal officer
under subsection (d). In a summary court-martial case, such
submission shall be made within seven days after the sentence is
announced.
(2) If the accused shows
that additional time is required for the accused to submit such
matters, the convening authority or other person taking action
under this section, for good cause, may extend the applicable
period under paragraph (1) for not more than an additional 20
days.
(3) In a summary
court-martial case, the accused shall be promptly provided a copy
of the record of trial for use in preparing a submission
authorized by paragraph (1).
(4) The accused may waive
his right to make a submission to the convening authority under
paragraph (1). Such a waiver must be made in writing and may not
be revoked. For the purposes of subsection (c)(2), the time
within which the accused may make a submission under this
subsection shall be deemed to have expired upon the submission of
such a waiver to the convening authority.
(c) (1) The authority
under this section to modify the findings and sentence of a
court-martial is a matter of command prerogative involving the
sole discretion of the convening authority. Under regulations of
the Secretary concerned, a commissioned officer commanding for
the time being, a successor in command, or any person exercising
general court-martial jurisdiction may act under this section in
place of the convening authority.
(2) Action on the
sentence of a court-martial shall be taken by the convening
authority or by another person authorized to act under this
section. Subject to regulations of the Secretary concerned, such
action may be taken only after consideration of any matters
submitted by the accused under subsection (b) or after the time
for submitting such matters expires, whichever is earlier. The
convening authority or other person taking such action, in his
sole discretion, may approve, disapprove, commute, or suspend the
sentence in whole or in part.
(3) Action on the
findings of a court-martial by the convening authority or other
person acting on the sentence is not required. However, such
person, in his sole discretion, may--
(A) dismiss any charge or
specification by setting aside a finding of guilty thereto; or
(B) change a finding of
guilty to a charge or specification to a finding of guilty to an
offense that is a lesser included offense of the offense stated
in the charge or specification.
(d) Before acting under
this section on any general court- martial case or any special
court-martial case that includes a bad-conduct discharge, the
convening authority or other person taking action under this
section shall obtain and consider the written recommendation of
his staff judge advocate or legal officer. The convening
authority or other person taking action under this section shall
refer the record of trial to his staff judge advocate or legal
officer, and the staff judge advocate or legal officer shall use
such record in the preparation of his recommendation. The
recommendation of the staff judge advocate or legal officer shall
include such matters as the President may prescribe by regulation
and shall be served on the accused, who may submit any matter in
response under subsection (b). Failure to object in the response
to the recommendation or to any matter attached to the
recommendation waives the right to object thereto.
(e) (1) The convening
authority or other person taking action under this section, in
his sole discretion, may order a proceeding in revision or a
rehearing.
(2) A proceeding in
revision may be ordered if there is an apparent error or omission
in the record or if the record shows improper or inconsistent
action by a court-martial with respect to the findings or
sentence that can be rectified without material prejudice to the
substantial rights of the accused. In no case, however, may a
proceeding in revision--
(A) reconsider a finding
of not guilty of any specification or a ruling which amounts to a
finding of not guilty;
(B) reconsider a finding
of not guilty of any charge, unless there has been a finding of
guilty under a specification laid under that charge, which
sufficiently alleges a violation of some article of this chapter;
or
(C) increase the severity
of some article of the sentence unless the sentence prescribed
for the offense is mandatory.
(3) A rehearing may be
ordered by the convening authority or other person taking action
under this section if he disapproves the findings and sentence
and states the reasons for disapproval of the findings. If such a
person disapproves the findings and sentence and does not order a
rehearing, he shall dismiss the charges. A rehearing as to the
findings may not be ordered where there is a lack of sufficient
evidence in the record to support the findings. A rehearing as to
the sentence may be ordered if the convening authority or other
person taken action under this subsection disapproves the
sentence.
(a) In each case subject
to appellate review under section 866 or 869(a) of this title
(article 66 or 69(a)), except a case in which the sentence as
approved under section 860(c) of this title (article 60(c))
includes death, the accused may file with the convening authority
a statement expressly waving the right of the accuse d to such
review. Such a waiver shall be signed by both the accused and by
defense counsel and must be filed within 10 days after the action
under sections 860(c) of this title (article 60(c)) is served on
the accused or on defense counsel. the convening authority or
other person taking such action, for good cause, may extend the
period for such filing by not more than 30 days.
(b) Except in a case in
which the sentence as approved under section 860(c) of this title
(article 60(c)) includes death, the accused may withdraw an
appeal at any time.
(c) A waiver of the right
to appellate review or the withdrawal of an appeal under this
section bars review under section 866 or 869(a) of this title
(article 66 or 69(a)).
(a) (1) In a trial by
court-martial in which a military judge presides and in which a
punitive discharge may be adjudged, the United States may appeal
an order or ruling of the military judge which terminates the
proceedings with respect to a charge or specifications or which
excludes evidence that is substantial proof of a fact material in
the proceeding. However, the United States may not appeal an
order or ruling that is, or amounts to, a finding of not guilty
with respect to the charge or specification.
(2) An appeal of an order
or ruling may not be taken unless the trial counsel provides the
military judge with written notice of appeal from the order or
ruling within 72 hours of the order or ruling. Such notice shall
include a certification by the
(b) An appeal under this
section shall be forwarded by means prescribed under regulations
of the President directly to the Court of Military Review and
shall, whenever practicable, have priority over all other
proceedings before that court. In ruling on an appeal under this
section, the Court of Military review may act only with respect
to matters of law, notwithstanding section 866(c) of this title
(article 66(c)).
(c) Any period of delay
resulting from an appeal under this section shall be excluded in
deciding any issue regarding denial of a speedy trial unless an
appropriate authority determines that the appeal was filed solely
for the purpose of delay with the knowledge that it was totally
frivolous and without merit.
Each rehearing under this
chapter shall take place before a court-martial composed of
members not members of the court- martial which first heard the
case. Upon a rehearing the accused may not be tried for any
offense of which he was found not guilty by the first
court-martial, and no sentence in excess of or more than the
original sentence may be imposed unless the sentence is based
upon a finding of guilty of an offense not considered upon the
merits in the original proceedings, or unless the sentence
prescribed for the offense is mandatory. If the sentence approved
after the first court-martial was in accordance with a pretrial
agreement and the accused at the rehearing changes his plea with
respect to the charges or specifications upon which the pretrial
agreement was based, or otherwise does not comply with pretrial
agreement, the sentence as to those charges or specifications may
include any punishment not in excess of that lawfully adjudged at
the first court-martial.
(a) Each case in which
there has been a finding of guilty that is not reviewed under
section 866 or 869(a) of this title (article 66 or 69(a)) shall
be reviewed by a judge advocate under regulations of the
Secretary concerned. A judge advocate may not review a case under
this subsection if he has acted in the same case as an accuser,
investigating officer, member of the court, military judge, or
counsel or has otherwise acted on behalf of the prosecution or
defense. The judge advocate's review shall be in writing and
shall contain the following:
(1) Conclusions at to
whether--
(A) the court had
jurisdiction over the accused and the offense;
(B) the charge and
specification stated an offense; and
(C) the sentence was
within the limits prescribed as a matter of law.
(2) A response to each
allegation of error made in writing by the accused.
(3) If the case is sent
for action under subsection (b), a recommendation as to the
appropriate action to be taken and an opinion as to whether
corrective action is required as a matter of law.
(b) The record of trial
and related documents in each case reviewed under subsection (a)
shall be sent for action to the person exercising general
court-martial jurisdiction over the accused at the time the court
was convened (or to that person's successor in command) if--
(1) the judge advocate
who reviewed the case recommends corrective action;
(2) the sentence approved
under section 860(c) of this title (article 60(c)) extends to
dismissal, a bad-conduct or dishonorable discharge, or
confinement for more than six months; or
(3) such action is
otherwise required by regulations of the Secretary concerned.
(c) (1) The person to
whom the record of trial and related documents are sent under
subsection (b) may--
(A) disapprove or approve
the findings or sentence, in whole or in part;
(B) remit, commute, or
suspend the sentence in whole or in part;
(C) except where the
evidence was insufficient at the trial to support the findings,
order a rehearing on the findings, on the sentence, or on both;
or
(D) dismiss the charges.
(2) If a rehearing is
ordered by the convening authority finds a rehearing
impracticable, he shall dismiss the charges.
(3) If the opinion of the
judge advocate in the judge advocate's review under subsection
(a) is that corrective action is required as a matter of law and
if the person required to take action under subsection (b) does
not take action that is at least as favorable to the accused as
that recommended by the judge advocate, the record of trial and
action thereon shall be sent to Judge Advocate General for review
under section 869(b) of this title (article 69(b)).
(a) In a case subject to
appellate review under section 866 or 869(a) of this title
(article 66 or 69(a)) in which the right to such review is not
waived, or an appeal is not withdrawn, under section 861 of this
title (article 61), the record of trial and action thereon shall
be transmitted to the Judge General for appropriate action.
(b) Except as otherwise
required by this chapter, all other records of trial and related
documents shall be transmitted and disposed of as the Secretary
may prescribe by regulation.
(a) Each Judge Advocate
General shall establish a Court of Military Review which shall be
composed of one or more panels, and each such panel shall be
composed of not less than three appellate military judges. For
the purpose of reviewing court- martial cases, the court may sit
in panels or as a whole in accordance with rules prescribed under
subsection (f). Any decision of a panel bay be reconsidered by
the court sitting as a whole in accordance with such rules.
Appellate military judges who are assigned to a Court of Military
Review may be commissioned officers or civilians, each of whom
must be a member of a bar of a Federal court or the highest court
of a State. The Judge Advocate General shall designate as trial
counsel that appeal is not taken for the purpose of delay and (if
the order or ruling appealed is one which excludes evidence) that
the evidence is substantial proof of a fact material in the
proceeding.
(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.
(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.
(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.
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.
*(a) The record of trial
in each general court-martial that is not otherwise reviewed
under section 866 of this title (article 66) shall be examined in
the office of the Judge Advocate General if there is a finding of
guilty and the accused does not waive or withdraw his right to
appellate review under section 861 of this title (article 61). If
any part of the findings or sentence is found to be unsupported
in law or if reassessment of the sentence is appropriate, the
Judge Advocate General may modify or set aside the findings of
sentence or both.
(b) The findings or
sentence, or both, in a court-martial case not reviewed under
subsection (a) or under section 866 of this title (article 66)
may be modified or set aside, in whole or in part, by the Judge
Advocate General on the ground of newly discovered evidence,
fraud on the court, lack of jurisdiction over the accused or the
offense, error prejudicial to the substantial rights of the
accused, or the appropriateness of the sentence. If such a case
is considered upon application of the accused, the application
must be filed in the office of the Judge Advocate General by the
accused on or before the last day of the two-year period
beginning on the date the sentence is approved under section
860(c) of this title (article 60(c)), unless the accused
establishes good cause for failure to file within that time.
(c) If the Judge Advocate
General sets aside the findings or sentence, he may, except when
the setting aside is based on lace of sufficient evidence in the
record to support the findings, order a rehearing. If he sets
aside the findings and sentence and does not order a rehearing,
he shall order that the charges be dismissed. If the Judge
Advocate General orders a rehearing by the convening authority
finds a rehearing impractical, the convening authority shall
dismiss the charges.
*(d) A Court of Military
Review may review, under section 866 of this title (article 66)--
(1) any court-martial
case which (A) is subject to action by the Judge Advocate General
under this section, and (b) is sent to the Court of Military
Review by order of the Judge Advocate General; and,
(2) any action taken by
the Judge Advocate General under this section in such case.
*(e) Notwithstanding
section 866 of this title (article 66), in any case reviewed by a
Court of Military Review under this section, the Court may take
action only with respect to matters of law.
(a) The Judge Advocate
General shall detail in his office one or more commissioned
officers as appellate Government counsel, and one or more
commissioned officers as appellate defense counsel, who are
qualified under section 827(b)(1) of this title (article
27(b)(1)).
(b) Appellate Government
counsel shall represent the United States before the Court of
Military Review or the Court of Military Appeals when directed to
do so by the judge Advocate General. Appellate Government counsel
may represent the United States before the Supreme Court in cases
arising under this chapter when requested to do so by the
Attorney General.
(c) Appellate defense
counsel shall represent the accused before the Court of Military
Review, the Court of Military Appeals, or the Supreme Court--
(1) when requested by the
accused;
(2) when the United
States is represented by counsel; or
(3) when the Judge
Advocate General has sent the case to the Court of Military
Appeals.
(d) The accused has the
right to be represented before the Court of Military Review, the
Court of Military Appeals, or the Supreme court by civilian
counsel if provided by him.
(e) Military appellate
counsel shall also perform such other functions in connection
with the review of court-martial cases as the Judge Advocate
General directs.
(a) If the sentence of
the court-martial extends to death, that part of the sentence
providing for death may not be executed until approved by the
President. In such a case, the President may commute, remit, or
suspend the sentence, or any part thereof, as he sees fit. That
part of the sentence providing for the death may not be
suspended.
(b) If in the case of a
commissioned officer, cadet, or midshipman, the sentence of a
court-martial extends to dismissal, that part of the sentence
providing for dismissal may not be executed until approved by the
Secretary concerned or such Under Secretary of Assistant
Secretary as may be designated by the Secretary concerned. In
such a case, the Secretary, Under Secretary or Assistant t
Secretary, as the case may be, may commute, remit, or suspend the
sentence, or any part of the sentence, as he sees fit. In time of
war or national emergency he may commute a sentence of dismissal
to reduction to any enlisted grade. A person so reduced may be
required to serve for the duration of the war or emergency and
six months thereafter.
(c) (1) If a sentence
extends to death, dismissal, or dishonorable or bad-conduct
discharge and if the right of the accused to appellate review is
not waived, and an appeal is not withdrawn, under section 861 of
this title (article 61), that part of the sentence extending to
death, dismissal, or a dishonorable or bad-conduct discharge may
not be executed until there is a final judgment as to the
legality of the proceedings (and with respect to death or
dismissal, approval under subsection (a) or (b), as appropriate).
A judgment as to legality of the proceedings is final in such
cases when review is completed by a Court of Military Review
and--
(A) the time for the
accused to file a petition for review by the Court of Military
Appeals has expired and the accused has not filed a timely
petition for such review and the case is not otherwise under
review by that Court;
(B) such a petition is
rejected by the Court of Military Appeals; or
(C) review is completed
in accordance with the judgment of the Court of Military Appeals
and--
(i) a petition for a writ
of certiorari is not filed within the time limits prescribed by
the Supreme Court;
(ii) such a petition is
rejected by the Supreme Court; or
(iii) review is otherwise
completed in accordance with the judgment of the Supreme Court.
(2) If a sentence extends
to dismissal or a dishonorable or bad-conduct discharge and if
the right of the accused to appellate review is waived, or an
appeal is withdrawn, under section 861 of this title (article
61), that part of the sentence extending to dismissal or a
bad-conduct discharge may not be executed until review of the
case by a judge advocate (and any action of that review) under
section 864 of this title (article 64) is completed. Any other
part of a court-martial sentence may be ordered executed by the
convening authority or other person acting on the case under
section 860 of this title (article 60) when approved by hum under
that section.
(d) The convening
authority or other person acting on the case under section 860 of
this title (article 60) may suspend the execution of any sentence
or part thereof, except a death sentence.
(a) Before the vacation
of the suspension of a special court- martial sentence which as
approved includes a bad-conduct discharge, or of any general
court-martial sentence, the officer having special court-martial
jurisdiction over the probationer shall hold a hearing on the
alleged violation of probation. The probationer shall be
represented at the hearing by counsel if he so desires.
(b) The record of the
hearing and the recommendation of the officer having special
court-martial jurisdiction shall be sent for action to the
officer exercising general court-martial jurisdiction over the
probationer. If he vacates the suspension, any unexecuted part of
the sentence, except a dismissal, shall be executed, subject to
applicable restrictions in section 871(c) of this title (article
71(c)). The vacation of the suspension of a dismissal is not
effective until approved by the Secretary concerned.
(c) The suspension of nay
other sentence may be vacated by any authority competent to
convene, for the command in which the accused is serving or
assigned, a court of the kind that imposed the sentence.
At any time within two
years after approval by the convening authority of a
court-martial sentence, the accused may petition the Judge
Advocate General for a new trial on the grounds of newly
discovered evidence or fraud on the court. If the accused's case
is pending before a Court of Military Review or before the Court
of Military Appeals, the Judge Advocate General shall refer the
petition to the appropriate court for action. Otherwise the Judge
Advocate General shall act upon the petition.
(a) The secretary
concerned and, when designated by him, any Under Secretary,
Assistant Secretary, Judge Advocate General, or commanding
officer may remit or suspend any part or amount of the unexecuted
part of any sentence, including all uncollected forfeitures other
than a sentence prescribed by the President.
(b) The Secretary
concerned may, for good cause, substitute an administrative form
of discharge for a discharge or dismissal executed in accordance
with the sentence of a court-martial.
(a) Under such
regulations as the President may prescribe, all rights,
privileges, and property affected by an executed part of a
court-martial sentence which has been set aside or disapproved,
except an executed dismissal or discharge, shall be restored
unless a new trial or rehearing is ordered and such executed part
is included in a sentence imposed upon the new trial or
rehearing.
(b) If a previously
executed sentence of dishonorable or bad- conduct discharge is
not imposed on a new trial, the Secretary concerned shall
substitute therefor a form of discharge authorized for
administrative issuance unless the accused is to serve out the
remainder of this enlistment.
(c) If a previously
executed sentence of dismissal in not imposed on a new trial, the
Secretary concerned shall substitute therefor a form of discharge
authorized for administrative issue, and the commissioned officer
dismissed by the sentence may be re- appointed by the President
alone to such commissioned grade and with such rank as in the
opinion of the President that former officer would have attained
had he not been dismissed. The reappointment of such a former
officer shall be without regard to the existence of a vacancy and
shall affect the promotion status of other officers only insofar
as the President may direct. All time between the dismissal and
reappointment shall be considered as actual service for all
purposes, including the right to pay and allowances.
The appellate review of
records of trial provided by this chapter, the proceedings,
findings, and sentences of courts- martial as approved, reviewed,
or affirmed as required by this chapter, and all dismissals and
discharges carried into execution under sentences by
courts-martial following approval, review, or affirmation as
required by this chapter, are final and conclusive. Orders
publishing the proceedings of courts-martials and all action
taken pursuant to those proceedings are binding upon all
departments, courts, agencies, and officers of the United States,
subject only to action upon a petition for a new trial as
provided in section 873 of this title (article 73) and to action
by the Secretary concerned as provided in section 874 of this
title (article 74), and the authority of the President.
Under regulations
prescribed by the Secretary concerned, an accused who has been
sentenced by a court-martial may be required to take leave
pending completion of action under this subchapter if the
sentence, as approved under section 860 of this title (article
60), includes an unsuspended dismissal or an unsuspended
dishonorable or bad-conduct discharge. the accused may be
required to begin such leave on the date on which the sentence is
approved under section 860 of this title (article 60) or at any
time after such date, and such leave may be continued until the
date which action under this subchapter is completed or may be
terminated at any earlier time.
Sec. Art.
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.
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.
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.
(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.
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.
(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.
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.
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.
(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.
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.
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.
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.
Any person subject to
this chapter who behaves with disrespect toward his superior
commissioned officer shall be punished as a court-martial may
direct.
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.
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.
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.
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.
(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.
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.
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.
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.
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.
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.
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.
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.
Any person subject to
this chapter forces a safeguard shall suffer death or such other
punishment as a court-martial may direct.
(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.
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.
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.
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.
(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).
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.
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.
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.
(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.
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.
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.
(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).
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.
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.
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.
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.
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.
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.
(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.
(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.
(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.
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.
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.
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.
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.
(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.
(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.
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.
(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.
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.
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.
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.
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.
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.
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.
Sec. Art.
(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.
(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.
(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.
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.
(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.
The President may
delegate any authority vested in him under this chapter, and
provide for sub delegation of any such authority.
Sec. Art.
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.
(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.
(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).
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.
(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.
(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.
Page Added on: 05 August 2007
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