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UCMJ Uniform Code of Military Justice

UCMJ Articles



 


Subchapter Sec Art.
I. General Provisions 801 1
II. Apprehension and
Restraint 807 7
III Non-Judicial
Punishment 815 15
IV. Court-Martial
Jurisdiction 816 16
V. Composition of
Courts-Martial 822 22
VI. Pre-Trial Procedure 830 30
VII. Trial Procedure 836 36
VIII. Sentences 855 55

IX. Post-Trial Procedure and Review of Courts Martial 859 59

X. Punitive Articles 877 77
XI. Miscellaneous Provisions
935 135

*XII Court of Military
Appeals 941 141


SUB CHAPTER 1. GENERAL
PROVISIONS
Sec.
Art.
801. 1.
Definitions
802. 2. Persons Subject
to this chapter.
803. 3.
Jurisdiction to try certain personnel.

804. 4. Dismissed officer’s right to trial by court-martial.

805. 5.
Territorial applicability of this chapter.
806. 6. Judge
advocates and legal officers.


*806a 6a. Investigation and disposition of matters pertaining to the
fitness of military judges.
801. ART. 1. DEFINITIONS.
In this
chapter.
(1)
"Judge Advocate General" means, severally, the Judge Advocates General of the
Army, Navy, and Air Force and, except when the Coast Guard is operating as a
service in the Navy, the General Counsel of the Department of Transportation.
(2) The
Navy, the Marine Corps, and the Coast Guard designated as such by appropriate
authority.
(4)
"Officer in Charge" means a member of the Navy, the Marine Corps, or the Coast
Guard designated as such by appropriate authority.
(5)
"Superior commissioned officer" means a commissioned officer superior in rank of
command.
(6)
"Cadet" means a cadet of the United States Military Academy, the United States
Air Force Academy, or the United States Coast Guard Academy.
(7)
"Midshipman" means a midshipman of the United States Naval Academy and any other
midshipman on active duty in the naval service.
(8)
"Military" refers to any or all of the armed forces.
(9)
"Accuser" means a person who signs and swears to charges, any person who directs
that charges nominally be signed and sworn to by another person who has an
interest other than an official interest in the prosecution of the accused.
(10)
"Military Judge" means an official of a general or special court-martial
detailed in accordance with section 826 of this title (article 26).

(11)
"Law specialist" means a commissioned officer of the Coast Guard designated for
special duty (law).
(12)
"Legal officer" means any commissioned officer of the Navy, Marine Corps, or
Coast Guard designated to perform legal duties for a command.

(13)
"Judge Advocate" means–
(A) an
officer of the Judge Advocate General’s Corp of the Army or the Navy;
(B) an
officer of the Air Force or the Marine Corps who is designated as a judge
advocate; or
(C) an
officer of the Coast Guard who is designated as a law specialist.
(14)
"Record", when used in connection with the proceedings of a court-martial
means–
(A) an
official written transcript, written summary, or other writing relating to the
proceedings: or
(B) an
official audiotape, videotape, or similar material from which sound and visual
images, depicting the proceedings may be reproduced.

802. ART. 2. PERSONS
SUBJECT TO THIS CHAPTER
(a) The
following persons are subject to this chapter:
(1)
Members of a regular component of the armed forces, including those awaiting
discharge after expiration of their terms of enlistment; volunteers from the
time of their muster or acceptance into the armed forces; inductees from the
time of their actual induction into the armed forces; and other persons lawfully
called or ordered into, or to duty in or for training in the armed forces, from
the dates when they are required by the terms of the call or order to obey it.
(2)
Cadets, aviation cadets, and midshipman.
(3)
Members of a reserve component while on inactive-duty training, but in the case
of members of the Army National Guard of the United States or the Air National
Guard of the United States only when in Federal Service.
(4)
Retired members of a regular component of the armed forces who are entitled to
pay.
(5)
Retired members of a reserve component who are receiving hospitalization from an
armed force.
(6)
Members of the Fleet Reserve and Fleet Marine Corps Reserve.
(7)
Persons in custody of the armed forces serving a sentence imposed by a
court-martial.
(8)
Members of the National Oceanic and Atmospheric Administration, Public Health
Service, and other organizations, when assigned to and serving with the armed
forces.
(9)
Prisoners of war in custody of the armed forces.
(10) In
time of war, persons serving with or accompanying an armed force in the field.
(11)
Subject to any treaty or agreement which the United States is or may be a party
to any accepted rule of international law, persons serving with, employed by, or
accompanying the armed forces outside the United States and outside the Canal
Zone, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.

(12)
Subject to any treaty or agreement t which the United States is or may be a
party to any accepted rule of international law, persons within an area leased
by or otherwise reserved or acquired for use of the United States which is under
the control of the Secretary concerned and which is outside the United States
and outside the Canal Zone, the Commonwealth of Puerto Rico, Guam, and the
Virgin Islands.
(b) The
voluntary enlistment of any person who has the capacity to understand the
significance of enlisting in the armed forces shall be valid for purposes of
jurisdiction under subsection (a) and change of status from civilian to member
of the armed forces shall be effective upon the taking of the oath of
enlistment.
(c)
Notwithstanding any other provision of law, a person serving with an armed force
who–
(1)
Submitted voluntarily to military authority;
(2) met
the mental competence and minimum age qualifications of sections 504 and 505 of
this title at the time of voluntary submissions to military authority:

(3)
received military pay or allowances; and
(4)
performed military duties: is subject to this chapter until such person’s active
service has been terminated in accordance with law or regulations promulgated by
the Secretary concerned.
(d)(1) A
member of a reserve component who is not on active duty and who is made the
subject of proceedings under section 815 (article 15) or section 830 (article
30) with respect to an offense against this chapter may be ordered to active
duty involuntary for the purpose of-
(A)
investigation under section 832 of this title (article 32);
(B)
trial by court-martial; or
(C) non
judicial punishment under section 815 of this title (article 15).
(2) A
member of a reserve component may not be ordered to active duty under paragraph
(1) except with respect to an offense committed while the member was

(A) on
active duty; or
(B) on
inactive-duty training, but in the case of members of the Army National Guard of
the United States or the Air National Guard of the United States only when in
Federal service.
(3)
Authority to order a member to active duty under paragraph (1) shall be
exercised under regulations prescribed by the President.
(4) A
member may be ordered to active duty under paragraph (1) only by a person
empowered to convene general courts-martial in a regular component of the armed
forces.
(5) A
member ordered to active duty under paragraph (1), unless the order to active
duty was approved by the Secretary concerned, may not–
(A) be
sentenced to confinement; or
(B) be
required to serve a punishment of any restriction on liberty during a period
other than a period of inactive-duty training or active duty (other than active
duty ordered under paragraph (1)).

803. ART. 3.
JURISDICTION TO TRY CERTAIN PERSONNEL
(a)
Subject to section 843 of this title (article 43), no person charged with having
committed, while in a status in which he was subject to this chapter, an offense
against this chapter, punishable by confinement for five years or more and for
which the person cannot be tried in the courts of the United States or of a
State, a Territory, or District of Columbia, may be relieved from amenability to
trial by court-martial by reason of the termination of that status.

(b) Each
person discharged from the armed forces who is later charged with having
fraudulently obtained his discharge is, subject to section 843 of this title
(article 43), subject to trial by court-martial on that charge and is after
apprehension subject to trial by court-martial for all offense under this
chapter committed before the fraudulent discharge
(c) No
person who has deserted from the armed forces may be relieved form amenability
to the jurisdiction of this chapter by virtue of separation from any later
period of service.
(d) A
member of a reserve component who is subject to this chapter is not, by virtue
of the termination of a period of active duty or inactive-duty training,
relieved from amenability to the jurisdiction of this chapter for an offense
against this chapter committed during such period of active duty or
inactive-duty training.

804
ART. 4. DISMISSED OFFICER’S RIGHT TO TRIAL BY COURT-MARTIAL
(a) If
any commissioned officer, dismissed by order of the president, makes a written
application for trial by court-martial setting forth under oath, that he has
been wrongfully dismissed, the President, as soon as practicable, shall convene
a general court-martial to try that officer on the charges on which he was
dismissed. A court-martial so convened has jurisdiction to try the dismissed
officer on those charges, and he shall be considered to have waived the right to
plead any statute of limitations applicable to any offense with which he is
charged. The court-martial may, as part of its sentence, adjudge the affirmance
of the dismissal, but if the court-martial acquits the accused or if the
sentence adjudged, as finally approved or affirmed, does not include dismissal
or death, the Secretary concerned shall substitute for the dismissal ordered by
the President a form of discharge authorized for administrative issue.

(b) If
the President fails to convene a general court-martial within six months from
the preparation of an application for trial under this article, the Secretary
concerned shall substitute for the dismissal order by the President a form of
discharge authorized for administrative issue.
(c) If a
discharge is substituted for a dismissal under this article, the President alone
may reappoint the officer to such commissioned grade and with such rank as, in
the opinion of the President, that former officer would have attained had he not
been dismissed. The reappointment of such a former officer shall be without
regard to the existence of a vacancy and shall affect the promotion status of
other officers only insofar as the President may direct. All time between the
dismissal and the reappointment shall be considered as actual service for all
purposes, including the right to pay and allowances.
(d) If
an officer is discharged from any armed force by administrative action or is
dropped from the rolls by order of the President, he has no right to trial under
this article.

805. ART.
5. TERRITORIAL APPLICABILITY OF THIS CHAPTER
This
chapter applies in all places.

806. ART. 6. JUDGE
ADVOCATES AND LEGAL OFFICERS
(a) The
assignment for duty of judge advocates of the Army, Navy, Air Force, and Coast
Guard shall be made upon the recommendation of the Judge Advocate General of the
armed force of which they are members. The assignment for duty of judge advocate
of the Marine Corps shall be made by direction of the Commandant of the Marine
Corps. The Judge Advocate General or senior members of his staff shall make
frequent inspection in the field in supervision of the administration of
military justice.
(b)
Convening authorities shall at all times communicate directly with their staff
judge advocates or legal officers in matters relating to the administration of
military justice; and the staff judge advocate or legal officer of a superior or
subordinate command, or with the Judge Advocate General.
(c) No
person who has acted as member, military judge, trial counsel, assistant trial
counsel, defense counsel, assistant defense counsel, or investigating officer in
any case may later act as staff judge-advocate or legal officer to any reviewing
authority upon the same case.
(d)(1) A
judge advocate who is assigned or detailed to perform the functions of a civil
office in the Government of the United States under section 973(*b)(2)(B) of
this title may perform such duties as may be requested by the agency concerned,
including representation of the United States in civil and criminal cases.
(2) The
Secretary of Defense, and the Secretary of Transportation with respect to the
Coast Guard when it in not operating as a service in the Navy, shall prescribe
regulations providing that reimbursement may be a condition of assistance by
judge advocates assigned or detailed under section 973(b)(2)(B) of this title.


* 806a. ART. 6a. INVESTIGATION AND DISPOSITION OF MATTERS PERTAINING TO THE
FITNESS OF MILITARY JUDGES.
(a) The
President shall prescribe procedures for the investigation and disposition of
charges, allegations, or information pertaining to the fitness of a military
judge or military appellate judge to perform the duties of the judge’s position,
to the extent practicable, the procedures shall be uniform for all armed forces.
(b) The
President shall transmit a copy of the procedures prescribed pursuant to this
section to the Committees on Armed Services of the Senate and the House of
Representatives.


SUBCHAPTER II.
APPREHENSION AND RESTRAINT
Sec.
Art.
807. 7.
Apprehension.
808. 8. Apprehension of
deserters.
809. 9. Imposition of
Restraint.
810. 10.
Restraint of persons charged with offenses.
811. 11. Reports
and receiving of prisoners.
812.
12. Confinement with enemy prisoners prohibited.
813. 13.
Punishment prohibited before trial.
814. 14.
Delivery of offenders to civil authorities.
807. ART. 7. APPREHENSION
(a)
Apprehension is the taking of a person into custody.
(b) Any
person authorized under regulations governing the armed forces to apprehend
persons subject to this chapter or to trial thereunder may do so upon reasonable
belief that an offense has been committed and that the person apprehended
committed it.
(c)
Commissioned officers, warrant officers, petty officers, and noncommissioned
officers have authority to quell quarrels, frays and disorders among persons
subject to this chapter who take part therein.

808. ART. 8. APPREHENSION
OF DESERTERS
Any
civil officer having authority to apprehend offenders under the laws of the
United States or of a State, Territory, Commonwealth, or possession, or the
District of Columbia may summarily apprehend a deserter from the armed forces
and deliver him into the custody of those forces.

809. ART. 9. IMPOSITION OF
RESTRAINT
(a)
Arrest is the restraint of a person by an order, not imposed as a punishment for
an offense, directing him to remain within certain specified limits. Confinement
is the physical restraint of a person.
(b) An
enlisted member may be ordered into arrest or confinement by any commissioned
officer by an order, oral or written, delivered in person or through other
persons subject to this chapter. A commanding officer may authorize warrant
officers, petty officers, or noncommissioned officers to order enlisted members
of his command or subject to his authority into arrest or confinement.

(c)A
commissioned officer, a warrant officer, or a civilian subject to this chapter
or to trial thereunder may be ordered into arrest or confinement only by a
commanding officer to whose authority he is subject, by an order, oral or
written, delivered in person or by another commissioned officer. The authority
to order such persons into arrest or confinement may not be delegated.

(d) No
person may be ordered into arrest or confinement except for probable cause.
(e)
Nothing in this article limits the authority of person s authorized to apprehend
offenders to secure the custody of an alleged offender until proper authority
may be notified.

810. ART.
10. RESTRAINT OF PERSONS CHARGED WITH OFFENSES
Any
person subject to this chapter charged with an offense under this chapter shall
be ordered into arrest or confinement, as circumstances may require; but when
charged only with an offense normally tried by a summary court-martial, he shall
not ordinarily be placed in confinement. When any person subject to this chapter
is placed in arrest or confinement prior to trial, immediate steps shall be
taken to inform him of the specific wrong of which he is accused and to try him
or to dismiss the charges and release him.

811. ART. 11.
REPORTS AND RECEIVING OF PRISONERS
(a) No
provost marshal, commander or a guard, or master at arms may refuse to receive
or keep any prisoner committed to his charge by a commissioned officer of the
armed forces, when the committing officer furnishes a statement, signed by him,
of the offense charged against the prisoner.
(b)
Every commander of a guard or master at arms to whose charge a prisoner is
committed shall, within twenty-four hours after that commitment or as soon as he
is relieved from guard, report to the commanding officer the name of the
prisoner, the offense charged against him, and the name of the person who
ordered or authorized the commitment.

812.
ART. 12. CONFINEMENT WITH ENEMY PRISONERS PROHIBITED
No
member of the armed forces may be placed in confinement in immediate association
with enemy prisoners or other foreign nationals not members of the armed forces.

813. ART. 13
PUNISHMENT PROHIBITED BEFORE TRIAL
No
person, while being held for trial, may be subjected to punishment or penalty
other than arrest or confinement upon the charges pending against him, nor shall
the arrest or confinement imposed upon him be any more rigorous than the
circumstances required to insure his presence, but he may be subjected to minor
punishment during that period for infractions of discipline.

814. ART.
14. DELIVERY OF OFFENDERS TO CIVIL AUTHORITIES
(a)
Under such regulations as the Secretary concerned may prescribe, a member of the
armed forces accused of an offense against civil authority may be delivered,
upon request, to the civil authority for trial.
(b) When
delivery under this article is made to any civil authority of a person
undergoing sentence of a court-martial, the delivery, if followed by conviction
in a civil tribunal, interrupts the execution of the sentence of the
court-martial, and the offender after having answered to the civil authorities
for his offense shall, upon the request of competent military authority, be
returned to military custody for the completion of his sentence.



SUBCHAPTER III.
NON-JUDICIAL PUNISHMENT
815. ART. 15. COMMANDING OFFICER’S
NON-JUDICIAL PUNISHMENT
(a)
Under such regulations as the President may prescribe, and under such additional
regulations as may be prescribed by the Secretary concerned, limitations may be
placed on the powers granted by this article with respect to the kind and amount
of punishment authorized, the categories of commanding officers and warrant
officers exercising command authorized to exercise those powers, the
applicability of this article to an accused who demands trial by court-martial,
and the kinds of courts-martial to which the case may be referred upon such a
demand. However, except in the case of a member attached to or embarked in a
vessel, punishment may not be imposed upon any member of the armed forces under
this article if the member has, before the imposition of such punishment,
demanded trial by court-martial in lieu of such punishment. Under similar
regulations, rules may be prescribed with respect to the suspension of
punishments authorized by regulations of the Secretary concerned, a commanding
officer exercising general court-martial jurisdiction or an officer of general
or flag rank in command may delegate his powers under this article to a
principal assistant.
(b)
Subject to subsection (a) any commanding officer may, in addition to or in lieu
of admonition or reprimand, impose one or more of the following disciplinary
punishments for minor offenses without the intervention of a court-martial–
(1) upon
officers of his command–
(A)
restriction to certain specified limits, with or without suspension from duty,
for not more that 30 consecutive days;
(B) if
imposed by an officer exercising general court-martial jurisdictions or an
officer of general flag rank in command–
(i)
arrest in quarters for not more than 30 consecutive days;
(ii)
forfeiture of not more than one-half of one month’s pay per month for two
months;
(iii)
restriction to certain specified limits, with or without suspension from duty,
for not more than 60 consecutive days;
(iv)
detention of not more than one-half of one month’s pay per month for three
months;
(2) upon
other personnel of his command–
(A) if
imposed upon a person attached to or embarked in a vessel, confinement on bread
and water or diminished rations for not more than three consecutive days;

(B)
correctional custody for not more than seven consecutive days;

(C)
forfeiture of not more than seven days’ pay;
(D)
reduction to the next inferior pay grade, if the grade from which demoted is
within the promotion authority of the officer imposing the reduction or any
officer subordinate to the one who imposes the reduction;
(E)
extra duties, including fatigue or other duties, for not more than 14
consecutive days;
(F)
restriction to certain specified limits, with or without suspension from duty,
for not more than 14 consecutive days;
(G)
detention of not more than 14 days’ pay;
(H) if
imposed by an officer of the grade of major or lieutenant commander, or above–
(i) the
punishment authorized under clause (A);
(ii)
correctional custody for not more than 30 consecutive days;
(iii)
forfeiture of not more than one-half of one month’s pay per month for two
months;
(iv)
reduction to the lowest or any intermediate pay grade, if the grade from which
demoted is within the promotion authority of the officer imposing the reduction
or any officer subordinate to the one who imposes the reduction, by an enlisted
member in a pay grade above E-4 may not be reduced more than two pay grades;
(v)
extra duties, including fatigue or other duties, for not more than 45
consecutive days;
(vi)
restriction to certain specified limits, with or without suspension from duty,
for not more than 60 consecutive days;
(vii)
detention of not more than one-half of one month’s pay per month for three
months.

Detention of pay shall be for a stated period of not more than one year but if
the offender’s term of service expires earlier, the detention shall terminate
upon that expiration. No two or more of the punishments of arrest in quarters,
confinement or bread and water or diminished rations, correctional custody,
extra duties, and restriction may be combined to run consecutively in the
maximum amount impossible for each. Whenever any of those punishments are
combined to run consecutively, there must be an apportionment. In addition,
forfeiture of pay may not bee combined with detention of pay without an
apportionment. For the purpose of this subsection, "correctional custody" is the
physical restraint of a person during duty or nonduty hours and may include
extra duties, fatigue duties, or hard labor. If practicable, correctional
custody will not be served in immediate association with persons awaiting trial
or held in confinement pursuant to trial by court-martial.
(c) An
officer in charge may impose upon enlisted members assigned to the unit of which
he is in charge such of the punishment authorized under subsection (b)(2)(A)-(G)
as the Secretary concerned may specifically prescribe by regulation.

(d) The
officer who imposes the punishment authorized in subsection (b), or his
successor in command, may, at any time, suspend probationally any part or amount
of the unexecuted punishment imposed and may suspend probationally a reduction
in grade or forfeiture imposed under subsection (b), whether or not executed. In
addition, he may, at any time, remit or mitigate any part or amount of the
unexecuted punishment imposed and may set aside in whole or in part the
punishment, whether executed or unexecuted, and restore all rights, privileges
and property affected. He may also mitigate reduction in grade to forfeiture or
detention of pay. When mitigating–
(1)
arrest in quarters to restriction;
(2)
confinement on bread and water or diminished rations to correctional custody;
(3)
correctional custody confinement on bread and water or diminished rations to
extra duties or restriction, or both; or
(4)
extra duties to restriction;
the
mitigated punishment shall not be for a greater period than the punishment
mitigated. When mitigating forfeiture of pay to detention of pay, the amount of
detention shall not be greater than the amount of the forfeiture. When
mitigating reduction in grade to forfeiture or detention of pay, the amount of
the forfeiture or detention shall not be greater than the amount that could have
been imposed initially under this article by the officer who imposed the
punishment mitigated.
(e) A
person punished under this article who considers his punishment unjust or
disproportionate to the offense may, through proper channels, appeal to the next
superior authority. The appeal shall be promptly forwarded and decided, but the
person punished may in the meantime be required to undergo the punishment
adjudged. The superior authority may exercise the same powers with respect to
punishment imposed as may be exercised under subsection (d) by the officer who
imposed the punishment. Before acting on appeal from a punishment of–

(1)
arrest in quarters for more than seven days;
(2)
correctional custody for more than seven days;
(3)
forfeiture of more than seven days’ pay;
(4)
reduction of one or more pay grades from the fourth or a higher pay grade;
(5)
extra duties for more than 14 days;
(6)
restriction for more than 14 days; or
(7)
detention of more than 14 days’ pay;
the
authority who is to act on the appeal shall refer the case to a judge advocate
or a lawyer of the Department of Transportation for consideration and advice,
and may so refer the case upon appeal from any punishment imposed under
subsection (b).
(f) The
imposition and enforcement of disciplinary punishment under this article for any
act or omission is not a bar to trial by court-martial for a serious crime or
offense growing out of the same act or omission, and not properly punishable
under this article; but the fact that a disciplinary punishment has been
enforced may be shown by the accuse upon trial, and when so shown shall be
considered in determining the measure of punishment to be adjudged in the event
of a finding of guilty.
(g) The
Secretary concerned may, by regulation, prescribe the form of records to be kept
under this article and may also prescribe that certain categories of those
proceedings shall be in writing.


SUBCHAPTER IV.
COURT-MARTIAL JURISDICTION
Sec.
Art.
816. 16.
Courts-Martial classified.
817. 17.
Jurisdiction of courts-martial in general
818. 18.
Jurisdiction of general courts-martial.
819. 19.
Jurisdiction of special courts-martial.
820. 20.
Jurisdiction of summary courts-martial.
821.
21. Jurisdiction of courts-martial not exclusive.
816. ART. 16. COURT-MARTIAL CLASSIFIED
The
three kinds of courts-martial in each of the armed forces are–

(1)
general courts-martial, consisting of–
(A) a
military judge and not less than five members; or
(B) only
a military judge, if before the court is assembled the accused, knowing the
identity of the military judge and after consultation with defense counsel,
requests orally on the record or in writing a court composed only of a military
judge and the military judge approves;
(2)
special courts-martial, consisting of–
(A) not
less than three members; or
(B) a
military judge and not less than three members; or
(C) only
a military judge, if one has been detailed to the court, and the accused under
the same conditions as those prescribed in clause (1)(B) so requests; and

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


817. ART.
17. JURISDICTION OF COURTS-MARTIAL IN GENERAL
(a) Each
armed force has court-martial jurisdiction over all persons subject to this
chapter. The exercise of jurisdiction by one armed force over personnel of
another armed force shall be in accordance with regulations prescribed by the
President.
(b) In
all cases, departmental review after that by the officer with authority to
convene a general court-martial for the command which held the trial, where that
review is required under this chapter, shall be carried out by the department
that includes the armed force of which the accused is a member.


818. ART. 18.
JURISDICTION OF GENERAL COURTS-MARTIAL
Subject
to section 817 of this title (article 17), general courts-martial have
jurisdiction to try persons subject to this chapter for any offense made
punishable by this chapter and may, under such limitations as the President may
prescribe, adjudge any punishment not forbidden by this chapter, including the
penalty of death when specifically authorized by this chapter. General
courts-martial also have jurisdiction to try any person who by the law of war is
subject to trial by a military tribunal and may adjudge any punishment permitted
by the law of war. However, a general court-martial of the kind specified in
section 816(1)(B) of this title (article 16(1)(B)) shall not have jurisdiction
to try any person for any offense for which the death penalty may be adjudged
unless the case has been previously referred to trial as noncapital case.


ART. 19.
JURISDICTION OF SPECIAL COURTS-MARTIAL
Subject
to section 817 of this title (article 17), special courts-martial have
jurisdiction to try persons subject to this chapter for any noncapital offense
made punishable by this chapter and, under such regulations as the President may
prescribe, for capital offenses. Special courts-martial may, under such
limitations as the President may prescribe, adjudge any punishment not forbidden
by this chapter except death, dishonorable discharge, dismissal, confinement for
more than six months, hard labor without confinement for more than three months,
forfeiture of pay exceeding two-thirds pay per month, or forfeiture of pay for
more than six months. A bad-conduct discharge may not be adjudged unless a
complete record of the proceedings and testimony has been made, counsel having
the qualifications prescribed under section 827(b) of this title (article 27(b))
was detailed to represent the accused, and a military judge was detailed to the
trial, except in any case in which a military judge could not be detailed to the
trial, the convening authority shall make a detailed written statement, to be
appended to the record, stating the reason or reasons a military judge could not
be detailed.

820 ART. 20.
JURISDICTION OF SUMMARY COURTS-MARTIAL
Subject
to section 817 of this title (article 17), summary courts-martial have
jurisdiction to try persons subject to this chapter, except officers, cadets,
aviation cadets, and midshipman, for any noncapital offense made punishable by
this chapter. No person with respect to whom summary courts- martial have
jurisdiction may be brought to trial before a summary court- martial if he
objects thereto. If objection to trial by summary court- martial is made by an
accused, trial may be ordered by special or general court-martial as may be
appropriate. Summary courts-martial may, under such limitations as the President
may prescribe, adjudge any punishment not forbidden by this chapter except
death, dismissal, dishonorable or bad- conduct discharge, confinement for more
than one month, hard labor without confinement for more than 45 days,
restrictions to specified limits for more than two months, or forfeiture of more
than two-thirds of one month’s pay.

821.
ART. 21. JURISDICTION OF COURTS-MARTIAL NOT EXCLUSIVE
The
provisions of this chapter conferring jurisdiction upon courts- martial do not
deprive military commissions, provost courts, or other military tribunals of
concurrent jurisdiction with respect to offenders or offenses that by statute or
by the law of war may be tried by military commissions, provost courts, or other
military tribunals.


SUBCHAPTER V.
COMPOSITION OF COURTS-MARTIAL
Sec.
Art.
822. 22.
Who may convene general courts-martial.
823. 23. Who may
convene special courts-martial.
824. 24. Who
may convene summary courts-martial.
825. 25. Who may
serve on courts-martial.


826. 26. Military judge of a general or special court-martial.
827.
27. Detail of trial counsel and defense counsel.

828. 28. Detail or employment of reporters and interpreters.
829. 29. Absent and
additional members.
822. ART. 22. WHO MAY CONVENE GENERAL
COURTS-MARTIAL
(a)
General courts-martial may be convened by–
(1) the
President of the United States;
*(2) the
Secretary of Defense;
*(3) the
commanding officer of a unified or specified combatant command;

(4) the
Secretary concerned;
(5) the
commanding officer of a Territorial Department, an Army Group, an Army, an Army
Corps, a division, a separate brigade, or a corresponding unit of the Army or
Marine Corps;
(6) the
commander in chief of a fleet; the commanding officer of a naval station or
larger activity of the Navy beyond the United States.
(7) the
commanding officer of an air command, an air force, an air division, or a
separate wing of the Air Force or Marine Corps;
(8) any
other commanding officer designated by the Secretary concerned; or

(9) any
other commanding officer in any of the armed forces when empowered by the
President.
(b) If
any such commanding officer is an accuser, the court shall be convened by
superior competent authority, and may in any case be convened by such authority
if considered desirable by him.

823. ART. 23.
WHO MAY CONVENE SPECIAL COURTS-MARTIAL
(a)
Special courts-martial may be convened by–
(1) any
person who may convene a general court-martial;
(2) the
commanding officer of a district, garrison, fort, camp, station, Air Force base,
auxiliary air field, or other place where members of the Army or the Air Force
are on duty;
(3) the
commanding officer of a brigade, regiment, detached battalion, or corresponding
unit of the Army;
(4) the
commanding officer of a wing, group, or separate squadron of the Air Force;
(5) the
commanding officer of any naval or Coast Guard vessel, shipyard, base, or
station; the commanding officer of any Marine brigade, regiment, detached
battalion, or corresponding unit; the commanding officer of any Marine barracks,
wing, group, separate squadron, station, base, auxiliary air field, or other
place where members of the Marine Corps are on duty;
(6) the
commanding officer of any separate or detached command or group of detached
units of any of the armed forces placed under a single commander for this
purpose; or
(7) the
commanding officer or officer in charge of any other command when empowered by
the Secretary concerned.
(b) If
any such officer is an accuser, the court shall be convened by superior
competent authority, and may in any case be convened by such authority if
considered advisable by him.

824. ART. 24.
WHO MAY CONVENE SUMMARY COURTS-MARTIAL
(a)
Summary courts-martial may be convened by–
(1) any
person who may convene a general or special court-martial;
(2) the
commanding officer of a detached company other detachment of the Army;

(3) the
commanding officer of a detached squadron or other detachment of the Air Force;
or
(4) the
commanding officer or officer in charge of any other command when empowered by
the Secretary concerned.
(b) When
only one commissioned officer is present with a command or detachment he shall
be the summary court-martial of that command or detachment and shall hear and
determine all summary court-martial cases brought before him. Summary
courts-martial may, however, be convened in any case by superior competent
authority when considered desirable by him.

825. ART, 25. WHO
MAY SERVE ON COURTS-MARTIAL
(a) Any
commissioned officer on active duty is eligible to serve on all courts-martial
for the trial of any person who may lawfully be brought before such courts for
trial.
(b) Any
warrant officer on active duty is eligible to serve on general and special
courts-martial for the trial of any person, other than a commissioned officer,
who may lawfully be brought before such courts for trial.
*(c)(1)
Any enlisted member of an armed force on active duty who is not a member of the
same unit as the accused is eligible to serve on general and special
courts-martial for the trial of any enlisted member of an armed force who may
lawfully be brought before such courts for trial, but he shall serve as a member
of a court only if, before the conclusion of a session called by the military
judge under section 839(a) of this title (article 39(a)) prior to trial or, in
the absence of such a session, before the court is assembled for the trial of
the accused, the accused personally has requested orally on the record or in
writing that enlisted members serve on it. After such a request, the accused may
not be tried by a general or special courts-martial the membership of which does
not include enlisted members in a number comprising at least one-third of the
total membership of the court, unless eligible enlisted members cannot be
obtained on account of physical conditions or military exigencies. If such
members cannot be obtained, the court may be assembled and the trial held
without them, but the convening authority shall make a detailed written
statement, to be appended to the record, stating why they could not be obtained.
(2) In
this article, "unit" means any regularly organized body as defined by the
Secretary concerned, but in no case may it be a body larger than a company,
squadron, ship’s crew, or body corresponding to one of them.
(d) (1)
When it can be avoided, no member of an armed force may be tried by a
court-martial any member of which is junior to him in rank or grade.

(2) When
convening a court-martial, the convening authority shall detail as member
thereof such members of the armed forces as, in his opinion, are best qualified
for the duty by reason of age, education, training, experience, length of
service, and judicial temperament. No member of an armed force is eligible to
serve as a member of a general or special court-martial when he is the accuser
or a witness for the prosecution or has acted as investigating officer or as
counsel in the same case.
(e)
Before a court-martial is assembled for the trial of a case, the convening
authority may excuse a member of the court from participating in the case. Under
such regulations as the Secretary concerned may prescribe, the convening
authority may delegate his authority under this subsection to his staff judge
advocate or legal officer or to any other principal assistant.



826. ART. 26. MILITARY JUDGE OF A GENERAL OR SPECIAL COURT-MARTIAL

(a) A
military judge shall be detailed to each general court-martial. Subject to
regulations of the Secretary concerned, a military judge may be detailed to any
special court-martial. The Secretary concerned shall prescribe regulations
providing for the manner in which military judges are detailed for such
courts-martial and for the persons who are authorized to detail military judges
for such courts-martial. The military judge shall preside over each open session
of the court-martial in which he has been detailed.
(b) A
military judge shall be a commissioned officer of the armed forces who is a
member of the bar of a Federal court or a member of the bar of the highest court
of a State and who is certified to be qualified for duty as a military judge by
the Judge Advocate General of the armed force of which such military judge is a
member.
(c) The
military judge of a general court-martial shall be designated by the Judge
Advocate General, or his designee, of the armed force of which the military
judge is a member of detail in accordance with regulations prescribed under
subsection (a). Unless the court-martial was convened by the President or the
Secretary concerned, neither the convening authority nor any member of his staff
shall prepare or review any report concerning the effectiveness, fitness, or
efficiency of the military judge so detailed, which relates to his performance
of duty as a military judge. A commissioned officer who is certified to be
qualified for duty as a military judge of a general court-martial may perform
such duties only when he is assigned and directly responsible to the Judge
Advocate General, or his designee, of the armed force of which the military
judge is a member and may perform duties of a judicial or nonjudicial nature
other than those relating to his primary duty as a military judge of a general
court-martial when such duties are assigned to him by or with the approval of
that Judge Advocate General or his designee.
(d) No
person is eligible to act as military judge in a case if he is the accuser or a
witness for the prosecution or has acted as investigating officer or a counsel
in the same case.
(e) The
military judge of a court-martial may not consult with the members of the court
except in the presence of the accused, trial counsel, and defense counsel, nor
may he vote with the members of the court.

827.
ART. 27. DETAIL OF TRIAL COUNSEL AND DEFENSE COUNSEL
(a) (1)
Trial counsel and defense counsel shall be detailed for each general and special
court-martial. Assistant trial counsel and assistant and associate defense
counsel may be detailed for each general and special court-martial. The
Secretary concerned shall prescribe regulations providing for the manner in
which counsel are detailed for such courts- martial and for the persons who are
authorized to detail counsel for such courts-martial.
(2) No
person who has acted as investigating officer, military judge, or court member
in any case may act later as trial counsel, assistant trial counsel, or, unless
expressly requested by the accused, as defense counsel or assistant or associate
defense counsel in the same case. No person who has acted for the prosecution
may act later in the same case for the defense, nor may any person who has acted
for the defense act later in the same case for the prosecution.

(b)
Trial counsel or defense counsel detailed for a general court-martial- –

(1) must
be a judge advocate who is a graduate of an accredited law school or is a member
of the bar of a Federal court or of the highest court of a State; or must be a
member of the bar of a Federal court or of the highest court of a State; and
(2) must
be certified as competent to perform such duties by the Judge Advocate General
of the armed force of which he is a member.
(c) In
the case of a special court-martial–
(1) the
accused shall be afforded the opportunity to be represented at the trial by
counsel having the qualifications prescribed under section 827(b) of this title
(article 27(b)) unless counsel having such qualifications cannot be obtained on
account of physical conditions or military exigencies. If counsel having such
qualifications cannot be obtained, the court may be convened and the trial held
but the convening authority shall make a detailed written statement, to be
appended to the record, stating why counsel with such qualifications could not
be obtained;
(2) if
the trial counsel is qualified to act as counsel before a general curt-martial,
the defense counsel detailed by the convening authority must be a person
similarly qualified; and
(3) if
the trial counsel is a judge advocate or a member of the bar of a Federal court
or the highest court of a State, the defense counsel detailed by the convening
authority must be one of the foregoing.


828. ART. 28 DETAIL OR EMPLOYMENT OF REPORTERS AND INTERPRETERS.
Under
such regulations as the Secretary concerned may prescribe, the convening
authority of a court-martial, military commission, or court of inquiry shall
detail or employ qualified court reporters, who shall record the proceedings of
and testimony taken before that court or commission. Under like regulations the
convening authority of a court-martial, military commission, or court of inquiry
may detail or employ interpreters who shall interpret for the court or
commission.

829. ART. 29. ABSENT
AND ADDITIONAL MEMBERS
(a) No
member of a general or special court-martial may be absent or excused after the
court has been assembled for the trial of the accused unless excused as a result
of challenge, excused by the military judge for physical disability or other
good cause, or excused by order of the convening authority for good cause.
(b)
Whenever a general court-martial, other than a general court-martial composed of
a military judge only, is reduced below five members, the trial may not proceed
unless the convening authority details new member sufficient in number to
provide not less than five members. The trial may proceed with the new members
present after the recorded evidence previously introduced before the members of
the court has been read to the court in the presence of the military judge, the
accused and counsel for both sides.
(c)
Whenever a special court-martial, other than a special court-marital composed of
a military judge only, is reduced below three members, the trial may not proceed
unless the convening authority details new members sufficient in number to
provide not less than three members. The trial shall proceed with the new
members present as if no evidence had previously been introduced at the trial,
unless verbatim record of the evidence previously introduced before the members
of the court or a stipulation thereof is read to the court in the presence of
the military judge, if any, the accused and counsel for both sides.

(d) If
the military judge of a court-martial composed of a military judge only is
unable to proceed with the trial because of physical disability, as a result of
a challenge, or for other good cause, the trial shall proceed, subject to any
applicable conditions of section 816(1)(B) or (2)(C) of this title (article
16(1)(B) or (2)(C), after the detail of a new military judge as if no evidence
had previously been introduced, unless a verbatim record of the evidence
previously introduced or a stipulation thereof is read in court in the presence
of the new military judge, the accused, and counsel for both sides.



SUBCHAPTER VI. PRE-TRIAL
PROCEDURE
Sec.
Art.
830. 30.
Charges and specifications
831. 31.
Compulsory self-incrimination prohibited.
832. 32. Investigation.
833. 33. Forwarding of
charges.


834. 34. Advice of staff judge advocate and reference for trial.
835. 35. Service of charges.
830. ART. 30. CHARGES AND
SPECIFICATIONS
(a)
Charges and specifications shall be signed by a person subject to this chapter
under oath before a commissioned officer of the armed forces authorized to
administer oaths and shall state–
(1) that
the signer has personal knowledge of, or has investigated, the matters set forth
therein; and
(2) that
they are true in fact to the best of his knowledge and belief.

(b) Upon
the preferring of charges, the proper authority shall take immediate steps to
determine what disposition should be made thereof in the interest of justice and
discipline, and the person accused shall be informed of the charges against him
as soon as practicable.

831 ART. 31.
COMPULSORY SELF-INCRIMINATION PROHIBITED
(a) No
person subject to this chapter may compel any person to incriminate himself or
to answer any questions the answer to which may tend to incriminate him.

(b) No
person subject to this chapter may interrogate, or request any statement from an
accused or a person suspected of an offense without first informing him of the
nature of the accusation and advising him that he does not have to make any
statement regarding the offense of which he is accused or suspected and that any
statement made by him may be used as evidence against him in a trial by
court-martial.
(c) No
person subject to this chapter may compel any person to make a statement or
produce evidence before any military tribunal if the statement or evidence in
not material to the issue and may tend to degrade him.
(d) No
statement obtained from any person in violation of this article, or through the
use of coercion, unlawful influence, or unlawful inducement may be received in
evidence against him in a trial by court-martial.

832. ART. 32. INVESTIGATION
(a) No
charge or specification may be referred to a general court-martial for trial
until a through and impartial investigation of all the matters set forth therein
has been made. This investigation shall include inquiry as to the truth of the
matter set forth in the charges, consideration of the form of charges, and
recommendation as to the disposition which should be made of the case in the
interest of justice and discipline.
(b) The
accused shall be advised of the charges against him and of his right to be
represented at that investigation as provided in section 838 of this title
(article 38) and in regulations prescribed under that section. At that
investigation full opportunity shall be given to the accused to cross-examine
witnesses against him if they are available and to present anything he may
desire in his own behalf, either in defense or mitigation, and the investigation
officer shall examine available witnesses requested by the accused. If the
charges are forwarded after the investigation, they shall be accompanied by a
statement of the substance of the testimony taken on both sides and a copy
thereof shall be given to the accused.
(c) If
an investigation of the subject matter of an offense has been conducted before
the accused is charged with the offense, and if the accused was present at the
investigation and afforded the opportunities for representation,
cross-examination, and presentation prescribed in subsection (b), no further
investigation of that charge is necessary under this article unless it is
demanded by the accused after he is informed of the charge. A demand for further
investigation entitles the accused to recall witnesses for further
cross-examination and to offer any new evidence in his own behalf.

(d) The
requirements of this article are binding on all persons administering this
chapter but failure to follow them does not constitute judicial error.


833. ART.. 33. FORWARDING OF
CHARGES
When a
person is held for trial by general court-martial the commanding officer shall,
within eight days after the accused is ordered into arrest or confinement, if
practicable, forward the charges, together with the investigation and allied
papers, to the officer exercising general court martial jurisdiction. If that is
not practicable, he shall report in writing to that officer the reasons for the
delay.


834. ART. 34. ADVICE OF STAFF JUDGE ADVOCATE AND REFERENCE FOR TRIAL

(a)
Before directing the trial of any charge by general court-martial, the convening
authority shall refer it to his staff judge advocate for consideration and
advice. The convening authority may not refer a specification under a charge to
a general court-martial for trial unless he has been advised in writing by the
staff judge advocate that–
(1) the
specification alleges an offense under this chapter;
(2) the
specification is warranted by the evidence indicated in the report of
investigation under section 832 of this title (article 32) (if there is such a
report); and
(3) a
court-martial would have jurisdiction over the accused and the offense.

(b) The
advice of the staff judge advocate under subsection (a) with respect to a
specification under a charge shall include a written and signed statement by the
staff judge advocate–
(1)
expressing his conclusions with respect to each matter set forth in subsection
(a); and
(2)
recommending action that the convening authority take regarding the
specification.
If the
specification is referred for trial, the recommendation of the staff judge
advocate shall accompany the specification.
(c) If
the charges or specifications are not formally correct or do not conform to the
substance of the evidence contained in the report of the investigation officer,
formal corrections, and such changes in the charges and specifications as are
needed to make them conform to the evidence, may be made.

835. ART. 35. SERVICE OF
CHARGES.
The
trial counsel to whom court-martial charges are referred for trial shall cause
to be served upon the accused a copy of the charges upon which trial is to be
had. In time of peace no person may, against his objection, be brought to trial
or be required to participate by himself or counsel in a session called by the
military judge under section 839(a) of this title (article 39(a)), in a general
court-martial case within a period of five days after the service of charges
upon him or in a special court-martial within a period of three days after the
service of the charges upon him.


SUBCHAPTER VII. TRIAL PROCEDURE
Sec.
Art.

836. 36. President may
prescribe rules
837. 37.
Unlawful influencing the action of the court.
838.
38. Duties of trial counsel and defense counsel.
839. 39. Sessions.
840. 40. Continuances.
841. 41. Challenges.
842. 42. Oaths.
843. 43. Statute of
limitations.
844. 44. Former jeopardy.
845. 45. Pleas of the accused.


846. 46. Opportunity to obtain witnesses and other evidence.
847. 47. Refusal to
appear or testify.
848. 48. Contempt’s.
849. 49. Depositions.
850.
50. Admissibility of records of courts of inquiry.
851. 51. Voting and rulings.
852. 52. Number of votes
required.
853. 53. Court to announce
action.
854. 54. Record of trial.

836. ART 36. PRESIDENT
MAY PRESCRIBE RULES
(a)
Pretrial, trial, and post trial procedures, including modes of proof, for cases
arising under this chapter triable in courts-martial, military commissions and
other military tribunals, and procedures for courts of inquiry, may be
prescribed by the President by regulations which shall, so far as he considers
practicable, apply the principles of law and the rules of evidence generally
recognized in the trial of criminal cases in the United States district courts,
but which may not be contrary to or inconsistent with this chapter.

(b) All
rules and regulations made under this article shall be uniform insofar as
practicable and shall be reported to Congress.

837. ART. 37.
UNLAWFULLY INFLUENCING ACTION OF COURT
(a) No
authority convening a general, special, or summary court-martial, nor any other
commanding officer, may censure, reprimand, or admonish the court or any member,
military judge, or counsel thereof, with respect to the findings or sentence
adjudged by the court, or with respect to any other exercises of its or his
functions in the conduct of the proceedings. No person subject to this chapter
may attempt to coerce or, by any unauthorized means, influence the action of a
court-martial or any other military tribunal or any member thereof, in reaching
the findings or sentence in any case, or the action of any convening, approving,
or reviewing authority with respect to his judicial acts. The foregoing
provisions of the subsection shall not apply with respect to (1) general
instructional or informational courses in military justice if such courses are
designed solely for the purpose of instructing members of a command in the
substantive and procedural aspects of courts-martial, or (2) to statements and
instructions given in open court by the military judge, president of a special
court-martial, or counsel.
(b) In
the preparation of an effectiveness, fitness, or efficiency report on any other
report or document used in whole or in part for the purpose of determining
whether a member of the armed forces is qualified to be advanced, in grade, or
in determining the assignment or transfer of a member of the armed forces or in
determining whether a member of the armed forces should be retained on active
duty, no person subject to this chapter may, in preparing any such report (1)
consider or evaluate the performance of duty of any such member, as counsel,
represented any accused before a court-martial.

838.
ART. 38. DUTIES OF TRIAL COUNSEL AND DEFENSE COUNSEL
(a) The
trial counsel of a general or special court-martial shall prosecute in the name
of the United States, and shall, under the direction of the court, prepare the
record of the proceedings.
(b) (1)
The accused has the right to be represented in his defense before a general or
special court-martial or at an investigation under section 832 of this title
(article 32) as provided in this subsection.
(2) The
accused may be represented by civilian counsel if provided by him.

(3) The
accused may be represented–
(A) by
military counsel detailed under section 827 of this title (article 27); or
(B) by
military counsel of his own selection if that counsel is reasonably available
(as determined under regulations prescribed under paragraph (7)).

(4) If
the accused is represented by civilian counsel, military counsel detailed or
selected under paragraph (3) shall act as associate counsel unless excused at
the request of the accused.
(5)
Except as provided under paragraph (6), if the accused is represented by
military counsel of his own selection under paragraph (3)(B), any military
counsel detailed under paragraph (3)(A) shall be excused.
(6) The
accused is not entitled to be represented by more than one military counsel.
However, the person authorized under regulations prescribed under section 827 of
this title (article 27) to detail counsel in his sole discretion–

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

(B) if
the accused is represented by military counsel of his own selection under
paragraph (3)(B), may approve a request from the accused that military counsel
detailed under paragraph (3)(A) act as associate defense counsel.

(7) The
Secretary concerned shall, by regulation, define "reasonably available" for the
purpose of paragraph (3)(B) and establish procedures for determining whether the
military counsel selected by an accused under that paragraph is reasonably
available. Such regulations may not prescribe any limitation based on the
reasonable availability of counsel solely on the grounds that the counsel
selected by the accused if from an armed force other than the armed force of
which the accuse is a member. To the maximum extent practicable, such
regulations shall establish uniform policies among the armed forces while
recognizing the differences in the circumstances and needs of the various armed
forces. The Secretary concerned shall submit copies of regulations prescribed
under this paragraph to the Committees on Armed Services of the Senate and House
of Representatives.
(c) In
any court-martial proceeding resulting in a conviction, the defense counsel-
(1) may
foreword for attachment to the record of proceedings a brief of such matters as
he determines should be considered in behalf of the accused on review (including
any objections to the contents of the record which he considers appropriate);
(2) may
assist the accused in the submission of any mater under section 860 of this
title (article 60); and
(3) may
take other action authorized by this chapter.
(d) An
assistant trial counsel of a general court-martial may, under the direction of
the trial counsel or when he is qualified to be a trial counsel as required by
section 827 of this title (article 27), perform any duty imposed by law,
regulation, or the custom of the service upon the trial counsel of the court. An
assistant trial counsel of a special court- martial may perform any duty of the
trial counsel.
(e) An
assistant defense counsel of a general or special court-martial may, under the
direction of the defense counsel or when he is qualified to be the defense
counsel as required by section 827 of this title (article 27), perform any duty
imposed by law, regulation, or custom of the service upon counsel for the
accused.

839. ART. 39. SESSIONS
(a) At
any time after the service of charges which have been referred for trial by
court-martial composed of a military judge and members, the military judge may,
subject to section 835 of this title (article 35), call the court into session
without the presence of the members for the purpose of–
(1)
hearing and determining motions raising defenses or objections which are capable
of determination without trial of the issues raised by a plea of not guilty;
(2)
hearing and ruling upon any matter which may be ruled upon by the military judge
under this chapter, whether or not the matter is appropriate for later
consideration or decision by the members of the court;
(3) if
permitted by regulations of the Secretary concerned, holding the arraignment and
receiving the pleas of the accused; and
(4)
performing any other procedural function which may be performed by the military
judge under this chapter or under rules prescribed pursuant to section 836 of
this title (article 36) and which does not require the presence of the members
of the court.
These
proceedings shall be conducted in the presence of the accused, the defense
counsel, and the trial counsel and shall be made part of the record.

(b) When
the members of a court-martial deliberate or vote, only the members may be
present. All other proceedings, including any other consultation of the members
of the court with counsel or the military judge, shall be made a part of the
record and shall be in the presence of the accused, the defense counsel, the
trial counsel, and in cases in which a military judge has been detailed to the
court, the military judge.

840. ART. 40. CONTINUANCES.
The
military judge or a court-martial without a military judge may, for reasonable
cause, grant a continuance to any party for such time, and as often, as may
appear to be just.

841. ART. 41. CHALLENGES
(a) The
military judge and members of a general or special court- martial may be
challenged by the accused or the trial counsel for cause stated to the court.
The military judge, or if none, the court, shall determine the relevance and
validity of the challenges for cause, and may not receive a challenge to more
than one person at a time. Challenges by the trial counsel shall ordinarily be
presented and decided before those by the accused are offered.

(b) Each
accused and the trial counsel is entitled to one preemptory challenge, but the
military judge may not be challenged except for cause.
842.
ART. 42. OATHS
(a)
Before performing their respective duties, military judges, members of general
and special courts-martial, trial counsel, assistant trial counsel, defense
counsel, assistant or associate defense counsel, reporters, and interpreters
shall take an oath to perform their duties faithfully. The form of the oath, the
time and place of the taking thereof, the manner of recording the same, and
whether the oath shall be taken for all cases in which these duties are to be
performed or for a particular case, shall be as prescribed in regulations of the
Secretary concerned. These regulations may provide that an oath to perform
faithfully duties as a military judge, trial counsel, assistant trial counsel,
defense counsel, or assistant or associate defense counsel may be taken at any
time by any judge advocate or other person certified to be qualified or
competent for duty, and if such an oath is taken it need not again be taken at
the time the judge advocate, or other person is detailed to that duty.

(b) Each
witness before a court-martial shall be examined on oath.

* 843. ART. 43. STATUTE OF
LIMITATIONS
(a) A
person charged with absence without leave or missing movement in time of war, or
with any offense punishable by death, may be tried at any time without
limitation.
(b) (1)
Except as otherwise provided in this section (article), a person charged with an
offense is not liable to be tried by court-martial if the offense was committed
more than five years before the receipt of sworn charges and specifications by
an officer exercising summary court- martial jurisdiction over the command.
(2) A
person charged with an offense is not liable to be punished under section 815 of
this title (article 15) if the offense was committed more than two years before
the imposition of punishment.
(c)
Periods in which the accused is absent without authority or fleeing from justice
shall be excluded in computing the period of limitation prescribed in this
section (article).
(d)
Periods in which the accused was absent from territory in which the United
States has the authority to apprehend him, or in the custody of civil
authorities, or in the hands of the enemy, shall be excluded in computing the
period of limitation prescribed in this article.
(e) For
an offense the trial of which in time of war is certified to the President by
the Secretary concerned to be detrimental to the prosecution of the war or
inimical to the national security, the period of limitation prescribed in this
article is extended to six months after the termination of hostilities as
proclaimed by the President or by a joint resolution of Congress.

(f) When
the United States is at war, the running of any statute of limitations
applicable to any offense under this chapter–
(1)
involving fraud or attempted fraud against the United States or any agency
thereof in any manner, whether by conspiracy or not;
(2)
committed in connection with the acquisition, care, handling, custody, control,
or disposition of any real or personal property of the United States; or

(3)
committed in connection with the negotiation, procurement, award, performance,
payment, interim financing, cancellation, or other termination or settlement, of
any contract, subcontract, or purchase order which is connected with or related
to the prosecution of the war, or with any disposition of termination inventory
by any war contractor or Government agency;
is
suspended until three years after the termination of hostilities as proclaimed
by the President or by a joint resolution of Congress.
*(g) (1)
If charges or specifications are dismissed or insufficient for any cause and the
period prescribed by the applicable statute of limitations–
(A) has
expired; or
(B) will
expire within 180 days after the date of dismissal of the charges and
specifications, trial and punishment under new charges and specifications are
not bared by the statute of limitations if the conditions specified in paragraph
(2) are met.
(2) The
conditions referred to in paragraph (1) are that the new charges and
specifications must–
(A) be
received by an officer exercising summary court-martial jurisdiction over the
command within 180 days after dismissal of the charges or specifications; and
(B)
allege the same acts or omissions that were alleged in the dismissed charges or
specifications (or allege acts or omissions that were included in the dismissed
charges or specifications).

844. ART. 44. FORMER JEOPARDY

(a) No
person may, without his consent, be tried a second time for the same offense.
(b) No
proceeding in which the accused has been found guilty by court- martial upon any
charge or specification is a trial in the sense of this article until the
finding of guilty has become final after review of the case has been fully
completed.
(c) A
proceeding which, after the introduction of evidence but before a finding, is
dismissed or terminated by the convening authority or motion of the prosecution
for failure of available evidence or witnesses without any fault of the accused
is a trial in the sense of this article.

845. ART. 45. PLEAS OF THE
ACCUSED
(a) If
an accused after arraignment makes an irregular pleading, or after a plea of
guilty sets up matter inconsistent with the plea, or if it appears that he has
entered the plea of guilty improvidently or through lack of understanding of its
meaning and effect, or if he fails or refuses to plead, a plea of not guilty
shall be entered in the record, and the court shall proceed as though he had
pleaded not guilty.
(b) A
plea of guilty by the accused may not be received to any charge or specification
alleging an offense for which the death penalty may be adjudged. With respect to
any other charge or specification to which a plea of guilty has been made by the
accused and accepted by the military judge or by a court-martial without a
military judge, a finding of guilty of the charge or specification may, if
permitted by regulations of the Secretary concurrence, be entered immediately
whither vote. This finding shall constitute the finding of the court unless the
plea of guilty is withdrawn prior to announcement of the sentence, in which
event the proceedings shall continue as though the accused had pleaded not
guilty.


846. ART. 46. OPPORTUNITY TO OBTAIN WITNESSES AND OTHER EVIDENCE
The
trial counsel, the defense counsel, and the court-martial shall have equal
opportunity to obtain witnesses and other evidence in accordance with such
regulations as the President may prescribe. Process issued in court- martial
cases to compel witnesses to appear and testify and to compel the production of
other evidence shall be similar to that which courts of the Unites States having
criminal jurisdiction may lawfully issue and shall run to any part of the United
States, or the Territories, Commonwealths, and possessions.

847. ART. 47. REFUSAL
TO APPEAR OR TESTIFY
(a) Any
person not subject to this who–
(1) has
been dully subpoenaed to appear as a witness before a court- martial, military
commission, court of inquiry, or any other military court or board, or before
any military or civil officer designated to take a deposition to be read in
evidence before such a court, commission, or board;
(2) has
been dully paid or tendered the fees and mileage of a witness at the rates
allowed to witnesses attending the courts of the United States; and

(3)
willfully neglects or refuses to appear, or refuses to qualify as a witness or
to testify or to produce any evidence which that person may have been legally
subpoenaed to produce;
is
guilty of an offense against the United States.
(b) Any
person who commits an offense named in subsection (a) shall be tried on
information in a United States district court or in a court of original criminal
jurisdiction in any of the Territories, Commonwealths, or possessions of the
United States, and jurisdiction is conferred upon those courts for that purpose.
Upon conviction, such person shall be punished by a fine of not more than $500,
or imprisonment for not more than six months, or both.
(c) The
United States attorney or the officer prosecuting for the United States in any
such court of original criminal jurisdiction shall, upon the certification of
the facts to him by the military court, commission, court of inquiry, or board,
file an information against and prosecute any person violating this article.
(d) The
fees and mileage of witnesses shall be advanced or paid out of the
appropriations for the compensation of witnesses.

848. ART. 48. CONTEMPT’S
A
court-martial, provost court, or military commission may punish for contempt any
person who uses any menacing word, sign, or gesture in its presence, or who
disturbs its proceedings by any riot or disorder. The punishment may not exceed
confinement for 30 days or a fine of $100 or both.

849. ART. 49. DEPOSITIONS
(a) At
any time after charges have been signed as provided in section 830 of this title
(article 30), any party may take oral or written depositions unless the military
judge or court-martial without a military judge hearing the case or, if the case
is not being heard, an attorney competent to convene a court-martial for the
trial of those charges forbids it for good cause. If a deposition is to be taken
before charges are referred for trial, such authority may designate commissioned
officers to represent the prosecution and the defense and may authorize those
officers to take the deposition of any witness.
(b) The
party at whose instance a deposition is to be taken shall give to every other
party reasonable written notice of the time and place for taking the deposition.
(c)
Depositions may be taken before and authenticated by any military or civilian
authorized by the laws of the United States or by the laws of the place where
the deposition is taken to administer oaths.
(d) A
duly authenticated deposition taken upon reasonable notice to other parties, so
far as otherwise admissible under the rules of evidence, may be read in evidence
or, in the case of audiotape, videotape, or similar material, may be played in
evidence before any military court or commission in any case not capital, or in
any proceeding before a court of inquiry or military board, if it appears–
(1) that
the witness resides or is beyond the State, Territory, Commonwealth, or District
of Columbia in which the court, commission, or board is ordered to sit, or
beyond 100 miles from the place of trial or hearing;
(2) that
the witness by reason of death, age, sickness, bodily infirmity, imprisonment,
military necessity, non amenability to process, or other reasonable cause is
unable or refuses to appear and testify in person at the place of trial or
hearing; or
(3) that
the present whereabouts of the witness is unknown.
(e)
Subject to subsection (d), a deposition may be read in evidence or, in the case
of audiotape, videotape, or similar material, may be played in evidence in any
case in which the death penalty is authorized but is not mandatory, whenever the
convening authority directs that the case be treated as not capital, and in such
a case a sentence of death may not be adjudged by the court-martial.


850.
ART. 50. ADMISSIBILITY OF RECORDS OF COURTS OF INQUIRY
(a) In
any case not capital and not extending to the dismissal of a commissioned
officer, the sworn testimony, contained in the duly authenticated record of
proceedings of a court of inquiry, of a person whose oral testimony cannot be
obtained, may, if otherwise admissible under the rules of evidence, be read in
evidence by any party before a court- martial or military commission if the
accused was a party before the court of inquiry and if the same issue was
involved or if the accused consents to the introduction of such evidence.

(b) such
testimony may be read in evidence only by the defense in capital cases extending
to the dismissal of a commissioned officer.
(c) Such
testimony may also be read in evidence before a court of inquiry or a military
board.
* 850a. ART. 50a. DEFENSE OF LACK OF
MENTAL RESPONSIBILITY
(a) It
is an affirmative defense in a trial by court-martial that, at the time of the
commission of the acts constituting the offense, the accused, as a result of a
sever mental disease or defect, was unable to appreciate the nature and quality
or the wrongfulness of the acts. Mental disease or defect does not otherwise
constitute a defense.
(b) The
accused has the burden of proving the defense of lack of mental responsibility
by clear and convincing evidence.
(c)
Whenever lack of mental responsibility of the accused with respect to an offense
is properly at issue, the military judge, or the president of the court-martial
without a military judge, shall instruct the members of the court as to the
defense of lack of mental responsibility under this section and shall charge
them to find the accused–
(1)
guilty;
(2) not
guilty; or
(3) not
guilty only by reason of lack of mental responsibility.
(d)
Subsection (c) does not apply to a court-martial composed of a military judge
only. In the case of a court-martial composed of a military judge only, whenever
lack of mental responsibility of the accused with respect to an offense is
properly at issue, the military judge shall find the accused–

(1)
guilty;
(2) not
guilty; or
(3) not
guilty only by reason of lack of mental responsibility.
(e)
Notwithstanding the provision of section 852 of this title (article 52), the
accused shall be found not guilty only by reason of lack of mental
responsibility if–
(1) a
majority of the members of the court-martial present at the time the vote is
taken determines that the defense of lack of mental responsibility has been
established; or
(2) in
the case of court-martial composed of a military judge only, the military judge
determines that the defense of lack of mental responsibility has been
established.

851. ART. 51. VOTING AND RULINGS
(a)
Voting by members of a general or special court-martial on the findings and on
the sentence, and by members of a court-martial without a military judge upon
questions of challenge, shall be by secret written ballot. The junior member of
the court shall count the votes. The count shall be checked by the president,
who shall forthwith announce the result of the ballot to the members of the
court.
(b) The
military judge and, except for questions of challenge, the president of a
court-martial without a military judge shall ruse upon all questions of law and
all interlocutory questions arising during the proceedings. Any such ruling made
by the military judge upon any question of lay or any interlocutory question
other than the factual issue of mental responsibility of the accused, or by the
president of a court-martial without a military judge upon any question of law
other than a motion for a finding of not guilty, is final and constitutes the
ruling of the court. However, the military judge or the president of a
court-martial without a military judge may change his ruling at any time during
the trial. Unless the ruling is final, if any member objects thereto, the court
shall be cleared and closed and the question decided by a voice vote as provided
in section 852 of this title (article 52), beginning with the junior in rank.
(c)
Before a vote is taken of the findings, the military judge or the president of a
court-martial without a military judge shall, in the presence of the accused and
counsel, instruct the members of the court as to the elements of the offense and
charge them–
(1) that
the accused must be presumed to be innocent until his guilt is established by
legal and competent evidence beyond reasonable doubt;
(2) that
in the case being considered, if there is a reasonable doubt as to the guilt of
the accused, the doubt must be resolved in favor of the accused and he must be
acquitted;
(3)
that, if there is reasonable doubt as to the degree of guilt, the finding must
be in a lower degree as to which there is no reasonable doubt; and

(4) that
the burden of proof to establish the guilt of the accused beyond a reasonable
doubt is upon the United States.
(d)
Subsections (a), (b), and (c) do not apply to a court-martial composed of a
military judge only. The military judge of such a court- martial shall determine
all questions of law and fact arising during the proceedings, and, if the
accused is convicted, adjudge an appropriate sentence. The military judge of
such a court-martial shall make a general finding and shall in addition on
request find the facts specially. If an opinion or memorandum of decision is
field, it will be sufficient if the findings of fact appear therein.


852. ART. 52. NUMBER OF
VOTES REQUIRED
(a) (1)
No person may be convicted of an offense for which the death penalty is made
mandatory by law, except by the concurrence of all the members of the
court-martial present at the time the vote is taken.
(2) No
person may be convicted of any other offense, except as provided in section
845(b) of this title (article 45(b)) or by concurrence of two-thirds of the
members present at the time the vote is taken.
(b) (1)
No person may be sentenced to suffer death, except by the concurrence of all the
members of the court-martial present at the time the vote is taken and for an
offense in this chapter expressly made punishable by death.
(2) No
person may be sentenced by life imprisonment or to confinement for more than ten
years, except by the concurrence of three-fourths of the members at the time the
vote is taken.
(3) All
other sentences shall be determined by the concurrence of two- thirds of the
members at the time the vote is taken.
(c) All
other questions to be decided by the members of a general or special
court-martial shall be determined by a majority vote, but a determination to
reconsider a finding of guilty or to reconsider a sentence, with a view toward
decreasing it, may be made by any lesser vote which indicates that the
reconsideration is not opposed by the number of votes required for that finding
or sentence. A tie vote on a challenge disqualifies the member challenged. A tie
vote on a motion for a finding of not guilty or on a motion relating to the
question of the accused sanity. is a determination against the accused. A tie
vote on any other question is a determination in favor of the accused.


853. ART. 53. COURT TO
ANNOUNCE ACTION
A
court-martial shall announce its findings and sentence to the parties as soon as
determined.

854. ART. 54. RECORD OF TRIAL

(a) Each
general court-martial shall deep a separate record of the proceedings in each
case brought before it, and the record shall be authenticated by the signature
of the military judge. If the record cannot be authenticated by the military
judge by reason of his death, disability, or absence, it shall be authenticated
by the signature of the trial counsel or by that of a member if the trial
counsel is unable to authenticate it by reason of his death, disability, or
absence. In a court-martial consisting of only a military judge the record shall
be authenticated by the court reporter under the same conditions which would
impose such a duty on a member under the subsection.
(b) Each
special and summary court-martial shall keep a separate record of the
proceedings in each case, and the record shall be authenticated in the manner
required by such regulations as the President may prescribe.
(c) (1)
A complete record of the proceedings and testimony shall be prepared–

(A) in
each general court-martial case in which the sentence adjudged includes death, a
dismissal, a discharge, or (if the sentence adjudged does not include a
discharge) or any other punishment which exceeds that which may otherwise be
adjudged by a special court-martial; and
(B) in
each special court-martial case in which the sentence includes a bad-conduct
discharge.
(2) In
all other court-martial cases, the record shall contain such matters as may be
prescribed by regulations of the President.
(d) A
copy of the record of the proceedings of each general and special court-martial
shall be given to the accused as soon as it is authenticated.



SUBCHAPTER VIII. SENTENCES

Sec.
Art.
855. 55.
Cruel and unusual punishments prohibited.
856. 56. Maximum limits.
857. 57. Effective date
of sentences.
858. 58. Execution of
confinement.


858a. 58a. Sentences: reduction in enlisted grade upon approval.

855. ART. 55. CRUEL AND UNUSUAL
PUNISHMENTS PROHIBITED.

Punishment by flogging, or by branding, marking, or tattooing on the body, or
any other cruel or unusual punishment, may not be adjudged by a court-martial or
inflicted upon any person subject to this chapter. The use of irons, single or
double, except for the purpose of safe custody, is prohibited.


856. ART. 56. MAXIMUM LIMITS
The
punishment which a court-martial may direct for an offense may not exceed such
limits as the President may prescribe for that offense.

857. ART. 57. EFFECTIVE
DATE OF SENTENCES
(a) No
forfeiture may extend to any pay or allowances accrued before the date on which
the sentence is approved by the person acting under section 860(c) of this title
(article 60(c)).
(b) Any
period of confinement included in a sentence of a court-martial begins to run
from the date the sentence is adjudged by the court-martial, but periods during
which the sentence to confinement is suspended or deferred shall be excluded in
computing the service of the term of confinement.
(c) All
other sentences of courts-martial are effective on the date ordered executed.
(d) On
application by an accused who is under sentence to confinement that has not been
ordered executed, the convening authority, or, if the accused is no longer under
his jurisdiction, the officer exercising general court-martial jurisdiction over
the command to which the accused is currently assigned, may in his sole
discretion defer service of the sentence to confinement. The deferment shall
terminate when the sentence is ordered executed. The deferment may be rescinded
at any time by the officer who granted it or, if the accused is no longer under
his jurisdiction, by the officer exercising general court-martial jurisdiction
over the command to which the accused is currently assigned.

858. ART. 58. EXECUTION OF
CONFINEMENT.
(a)
Under such instructions as the Secretary concerned may prescribe, a sentence of
confinement adjudged by a court-martial or other military tribunal, whether or
not the sentence includes discharge or dismissal, and whether or not the
discharge or dismissal has been executed, may be carried into execution by
confinement in any place of confinement under the control of any of the armed
forces or in any penal or correctional institution under the control of the
United States, or which the United States may be allowed to use. Persons so
confined in a penal or correctional institution not under the control of one of
the armed forces are subject to the dame discipline and treatment as persons
confined or committed by the courts of the United States or of the State,
Territory, District of Columbia, or place in which the institution is situated.
(b) The
omission of the words "hard labor" from any sentence of a court- martial
adjudging confinement does not deprive the authority executing that sentence of
the power to require hard labor as a part of the punishment.


858a. ART. 58a. SENTENCES: REDUCTION IN ENLISTED GRADE UPON APPROVAL

(a)
Unless otherwise provided in regulations to be prescribed by the Secretary
concerned, a court-martial sentence of an enlisted member in pay grade above
E-1, as approved by the convening authority, that includes–
(1) a
dishonorable or bad-conduct discharge;
(2)
confinement; or
(3) hard
labor without confinement;
reduces
that member to pay grade E1, effective on the date of that approval.

(b) If
the sentence of a member who is reduced in pay grade under subsection (a) is set
aside or disapproved, or, as finally approved does not include any punishment
named in subsection (a)(1), (2), or (3), the rights and privileges of which he
was deprived because of that reduction shall be restored to him and he is
entitled to the pay and allowances to which he would have been entitled for the
period the reduction was in effect, had he not been so reduced.

 



SUBCHAPTER IX. POST-TRIAL PROCEDURE AND
REVIEW OF COURTS-MARTIAL


859. 59. Error of
law; lesser included offense.
860. 60. Action
by the convening authority.
861. 61. Waiver or withdrawal
of appeal.
862. 62. Appeal by the
United States.
863. 63. Rehearings.
864. 64. Review by a
judge advocate.
865. 65. Disposition of
records.
866. 66. Review
by Court of Military Review.
867. 67.
Review by the Court of Military Appeals.
*867a. 67a. Review
by the Supreme Court.
868. 68. Branch offices.

869. 69. Review in the office of the Judge Advocate General.
870. 70. Appellate counsel.
871.
71. Execution of sentence; suspension of sentence.
872. 72. Vacation of
suspension.
873. 73. Petition for a
new trial.
874. 74. Remission and
suspension.
875. 75. Restoration.

876. 76. Finality of proceedings, findings, and sentences.


876a. 76a. Leave required to be taken pending review of certain court-martial
convictions.

859. ART. 59. ERROR OF LAW; LESSER INCLUDED
OFFENSE
(a) A
finding or sentence of court-martial may not be held incorrect on the ground of
an error of law unless the error materially prejudices the substantial rights of
the accused.
(b) Any
reviewing authority with the power to approve or affirm a finding of guilty may
approve or affirm, instead, so much of the finding as includes a lesser included
offense.

860. ART. 60. ACTION BY THE CONVENING
AUTHORITY
(a) the
findings and sentence of a court-martial shall be reported promptly to the
convening authority after the announcement of the sentence.
(b) (1)
the accused may submit to the convening authority matters for consideration by
the convening authority with respect to the findings and the sentence. Except in
a summary court- martial case, such a submission shall be made within 10 days
after the accused has been given an authenticated record of trial and, if
applicable, the recommendation of the staff judge advocate or legal officer
under subsection (d). In a summary court-martial case, such submission shall be
made within seven days after the sentence is announced.
(2) If
the accused shows that additional time is required for the accused to submit
such matters, the convening authority or other person taking action under this
section, for good cause, may extend the applicable period under paragraph (1)
for not more than an additional 20 days.
(3) In a
summary court-martial case, the accused shall be promptly provided a copy of the
record of trial for use in preparing a submission authorized by paragraph (1).
(4) The
accused may waive his right to make a submission to the convening authority
under paragraph (1). Such a waiver must be made in writing and may not be
revoked. For the purposes of subsection (c)(2), the time within which the
accused may make a submission under this subsection shall be deemed to have
expired upon the submission of such a waiver to the convening authority.

(c) (1)
The authority under this section to modify the findings and sentence of a
court-martial is a matter of command prerogative involving the sole discretion
of the convening authority. Under regulations of the Secretary concerned, a
commissioned officer commanding for the time being, a successor in command, or
any person exercising general court-martial jurisdiction may act under this
section in place of the convening authority.
(2)
Action on the sentence of a court-martial shall be taken by the convening
authority or by another person authorized to act under this section. Subject to
regulations of the Secretary concerned, such action may be taken only after
consideration of any matters submitted by the accused under subsection (b) or
after the time for submitting such matters expires, whichever is earlier. The
convening authority or other person taking such action, in his sole discretion,
may approve, disapprove, commute, or suspend the sentence in whole or in part.
(3)
Action on the findings of a court-martial by the convening authority or other
person acting on the sentence is not required. However, such person, in his sole
discretion, may–
(A)
dismiss any charge or specification by setting aside a finding of guilty
thereto; or
(B)
change a finding of guilty to a charge or specification to a finding of guilty
to an offense that is a lesser included offense of the offense stated in the
charge or specification.
(d)
Before acting under this section on any general court- martial case or any
special court-martial case that includes a bad-conduct discharge, the convening
authority or other person taking action under this section shall obtain and
consider the written recommendation of his staff judge advocate or legal
officer. The convening authority or other person taking action under this
section shall refer the record of trial to his staff judge advocate or legal
officer, and the staff judge advocate or legal officer shall use such record in
the preparation of his recommendation. The recommendation of the staff judge
advocate or legal officer shall include such matters as the President may
prescribe by regulation and shall be served on the accused, who may submit any
matter in response under subsection (b). Failure to object in the response to
the recommendation or to any matter attached to the recommendation waives the
right to object thereto.
(e) (1)
The convening authority or other person taking action under this section, in his
sole discretion, may order a proceeding in revision or a rehearing.

(2) A
proceeding in revision may be ordered if there is an apparent error or omission
in the record or if the record shows improper or inconsistent action by a
court-martial with respect to the findings or sentence that can be rectified
without material prejudice to the substantial rights of the accused. In no case,
however, may a proceeding in revision–
(A)
reconsider a finding of not guilty of any specification or a ruling which
amounts to a finding of not guilty;
(B)
reconsider a finding of not guilty of any charge, unless there has been a
finding of guilty under a specification laid under that charge, which
sufficiently alleges a violation of some article of this chapter; or

(C)
increase the severity of some article of the sentence unless the sentence
prescribed for the offense is mandatory.
(3) A
rehearing may be ordered by the convening authority or other person taking
action under this section if he disapproves the findings and sentence and states
the reasons for disapproval of the findings. If such a person disapproves the
findings and sentence and does not order a rehearing, he shall dismiss the
charges. A rehearing as to the findings may not be ordered where there is a lack
of sufficient evidence in the record to support the findings. A rehearing as to
the sentence may be ordered if the convening authority or other person taken
action under this subsection disapproves the sentence.

861. WAIVER OR WITHDRAWAL OF APPEAL
(a) In
each case subject to appellate review under section 866 or 869(a) of this title
(article 66 or 69(a)), except a case in which the sentence as approved under
section 860(c) of this title (article 60(c)) includes death, the accused may
file with the convening authority a statement expressly waving the right of the
accuse d to such review. Such a waiver shall be signed by both the accused and
by defense counsel and must be filed within 10 days after the action under
sections 860(c) of this title (article 60(c)) is served on the accused or on
defense counsel. the convening authority or other person taking such action, for
good cause, may extend the period for such filing by not more than 30 days.
(b)
Except in a case in which the sentence as approved under section 860(c) of this
title (article 60(c)) includes death, the accused may withdraw an appeal at any
time.
(c) A
waiver of the right to appellate review or the withdrawal of an appeal under
this section bars review under section 866 or 869(a) of this title (article 66
or 69(a)).

862. ART. 62. APPEAL BY THE UNITED STATES
(a) (1)
In a trial by court-martial in which a military judge presides and in which a
punitive discharge may be adjudged, the United States may appeal an order or
ruling of the military judge which terminates the proceedings with respect to a
charge or specifications or which excludes evidence that is substantial proof of
a fact material in the proceeding. However, the United States may not appeal an
order or ruling that is, or amounts to, a finding of not guilty with respect to
the charge or specification.
(2) An
appeal of an order or ruling may not be taken unless the trial counsel provides
the military judge with written notice of appeal from the order or ruling within
72 hours of the order or ruling. Such notice shall include a certification by
the
(b) An
appeal under this section shall be forwarded by means prescribed under
regulations of the President directly to the Court of Military Review and shall,
whenever practicable, have priority over all other proceedings before that
court. In ruling on an appeal under this section, the Court of Military review
may act only with respect to matters of law, notwithstanding section 866(c) of
this title (article 66(c)).
(c) Any
period of delay resulting from an appeal under this section shall be excluded in
deciding any issue regarding denial of a speedy trial unless an appropriate
authority determines that the appeal was filed solely for the purpose of delay
with the knowledge that it was totally frivolous and without merit.

863.
ART. 63. REHEARINGS
Each
rehearing under this chapter shall take place before a court-martial composed of
members not members of the court- martial which first heard the case. Upon a
rehearing the accused may not be tried for any offense of which he was found not
guilty by the first court-martial, and no sentence in excess of or more than the
original sentence may be imposed unless the sentence is based upon a finding of
guilty of an offense not considered upon the merits in the original proceedings,
or unless the sentence prescribed for the offense is mandatory. If the sentence
approved after the first court-martial was in accordance with a pretrial
agreement and the accused at the rehearing changes his plea with respect to the
charges or specifications upon which the pretrial agreement was based, or
otherwise does not comply with pretrial agreement, the sentence as to those
charges or specifications may include any punishment not in excess of that
lawfully adjudged at the first court-martial.

864. ART. 64. REVIEW BY A JUDGE ADVOCATE
(a) Each
case in which there has been a finding of guilty that is not reviewed under
section 866 or 869(a) of this title (article 66 or 69(a)) shall be reviewed by a
judge advocate under regulations of the Secretary concerned. A judge advocate
may not review a case under this subsection if he has acted in the same case as
an accuser, investigating officer, member of the court, military judge, or
counsel or has otherwise acted on behalf of the prosecution or defense. The
judge advocate’s review shall be in writing and shall contain the following:
(1)
Conclusions at to whether–
(A) the
court had jurisdiction over the accused and the offense;
(B) the
charge and specification stated an offense; and
(C) the
sentence was within the limits prescribed as a matter of law.

(2) A
response to each allegation of error made in writing by the accused.

(3) If
the case is sent for action under subsection (b), a recommendation as to the
appropriate action to be taken and an opinion as to whether corrective action is
required as a matter of law.
(b) The
record of trial and related documents in each case reviewed under subsection (a)
shall be sent for action to the person exercising general court-martial
jurisdiction over the accused at the time the court was convened (or to that
person’s successor in command) if–
(1) the
judge advocate who reviewed the case recommends corrective action;

(2) the
sentence approved under section 860(c) of this title (article 60(c)) extends to
dismissal, a bad-conduct or dishonorable discharge, or confinement for more than
six months; or
(3) such
action is otherwise required by regulations of the Secretary concerned.

(c) (1)
The person to whom the record of trial and related documents are sent under
subsection (b) may–
(A)
disapprove or approve the findings or sentence, in whole or in part;

(B)
remit, commute, or suspend the sentence in whole or in part;
(C)
except where the evidence was insufficient at the trial to support the findings,
order a rehearing on the findings, on the sentence, or on both; or

(D)
dismiss the charges.
(2) If a
rehearing is ordered by the convening authority finds a rehearing impracticable,
he shall dismiss the charges.
(3) If
the opinion of the judge advocate in the judge advocate’s review under
subsection (a) is that corrective action is required as a matter of law and if
the person required to take action under subsection (b) does not take action
that is at least as favorable to the accused as that recommended by the judge
advocate, the record of trial and action thereon shall be sent to Judge Advocate
General for review under section 869(b) of this title (article 69(b)).


865. ART. 65. DISPOSITION OF RECORDS
(a) In a
case subject to appellate review under section 866 or 869(a) of this title
(article 66 or 69(a)) in which the right to such review is not waived, or an
appeal is not withdrawn, under section 861 of this title (article 61), the
record of trial and action thereon shall be transmitted to the Judge General for
appropriate action.
(b)
Except as otherwise required by this chapter, all other records of trial and
related documents shall be transmitted and disposed of as the Secretary may
prescribe by regulation.

866. ART. 66. REVIEW BY COURT OF MILITARY
REVIEW
(a) Each
Judge Advocate General shall establish a Court of Military Review which shall be
composed of one or more panels, and each such panel shall be composed of not
less than three appellate military judges. For the purpose of reviewing court-
martial cases, the court may sit in panels or as a whole in accordance with
rules prescribed under subsection (f). Any decision of a panel bay be
reconsidered by the court sitting as a whole in accordance with such rules.
Appellate military judges who are assigned to a Court of Military Review may be
commissioned officers or civilians, each of whom must be a member of a bar of a
Federal court or the highest court of a State. The Judge Advocate General shall
designate as trial counsel that appeal is not taken for the purpose of delay and
(if the order or ruling appealed is one which excludes evidence) that the
evidence is substantial proof of a fact material in the proceeding.

(3) An
appeal under this section shall be diligently prosecuted by appellate Government
counsel.
(b) An
appeal under this section shall be forwarded by a means prescribed under
regulations of the President directly to the Court of Military Review and shall,
whenever practicable, have priority over all other proceedings before that
court. In ruling on an appeal under this section, the Court of Military Review
may act only with respect to matters of law, notwithstanding section 666(c) of
this title (article 66(c)).
(c) Any
period of delay resulting from an appeal under this section shall be excluded in
deciding any issue regarding denial of a speedy trial unless an appropriate
authority determines that the appeal was filed solely for the purposed of delay
with the knowledge that it was totally frivolous and without merit.


* 867. ART. 67. REVIEW BY THE COURT OF
MILITARY APPEALS
(a) The
Court of Military Appeals shall review the record in–
(1) all
cases in which the sentence, as affirmed by a Court of Military Review, extends
to death;
(2) all
cases reviewed by a Court of Military Review which the Judge Advocate General
orders sent to the Court of Military Appeals for review; and
(3) all
cases reviewed by a Court of Military Review in which, upon petition of the
accused and on good cause shown, the Court of Military Appeals has granted
review.
(b) the
accused may petition the Court of Military Appeals for review of a decision of a
court of Military Review within 60 days from the earlier of —

(1) the
date on which the accused is notified of the decision of the Court of Military
Review; or
(2) the
date on which a copy of the decision of the Court of Military Review, after
being served on appellate counsel of record for the accused (if any), is
deposited in the United States mails for delivery by first class mail to the
accused at an address provided by the accused, or, if no such address has been
provided by the accused, at the last address listed for the accused in his
official service record. The Court of Military Appeals shall act upon such a
petition promptly in accordance with the rules of the court.
(c) In
any case reviewed by it, the Court of Military Appeals may act only with respect
to the findings and sentence as approved by the convening authority and as
affirmed or set aside as incorrect in law by the Court of Military Review. In a
case which the Judge Advocate General orders sent to the Court of Military
Appeals, that action need be taken only with respect to the issues raised by
him. In a case reviewed upon petition of the accused, that action need be taken
only with respect to issues specified in the grant of review. The Court of
Military Appeals shall take action only with respect to matters of law.

(d) If
the Court of Military Appeals sets aside the findings and sentence, it may,
except where the setting aside is based on lack of sufficient evidence in the
record to support the findings, order a rehearing. If it sets aside the findings
and sentence and does not order a rehearing, it shall order that the charges be
dismissed.
(e)
After it has acted on a case, the Court of Military Appeals may direct the Judge
Advocate General to return the record to the Court of Military Review for
further review in accordance with the decision of the Court. Otherwise, unless
there is to be further action by the President or the Secretary concerned, the
Judge Advocate General shall instruct the convening authority to take action in
accordance with that decision. If the court has ordered a rehearing, but the
convening authority finds a rehearing impracticable, he may dismiss the charges.

* 867a. ART. 67a. REVIEW BY THE SUPREME
COURT
(a)
Decisions of the Unites States Court of Military Appeals are subject to review
by the Supreme Court by writ of certiorari as provided in section 1259 of title
28. The Supreme Court may not review by a writ of certiorari under this section
any action of the Court of Military Appeals in refusing to grant a petition for
review.
(b) The
accused may petition the Supreme Court for a writ of certiorari without
prepayment of fees and costs or security therefor and without filing the
affidavit required by section 1915(a) of title 28.

868. ART. 68. BRANCH OFFICES
The
Secretary concerned may direct the Judge Advocate General to establish a branch
office with any command. The branch office shall be under an Assistant Judge
Advocate General who, with the consent of the judge Advocate General, may
establish a Court of Military Review with one or more panels. That Assistant
Judge Advocate General and any Court of Military Review established by him may
perform for that command under the general supervision of the Judge Advocate
General, the respective duties which the Judge Advocate General and a Court of
Military Review established by the Judge Advocate General would otherwise be
required to perform as to all cases involving sentences not requiring approval
by the President.

869. ART. 69. REVIEW IN THE OFFICE OF THE
JUDGE ADVOCATE GENERAL
*(a) The
record of trial in each general court-martial that is not otherwise reviewed
under section 866 of this title (article 66) shall be examined in the office of
the Judge Advocate General if there is a finding of guilty and the accused does
not waive or withdraw his right to appellate review under section 861 of this
title (article 61). If any part of the findings or sentence is found to be
unsupported in law or if reassessment of the sentence is appropriate, the Judge
Advocate General may modify or set aside the findings of sentence or both.
(b) The
findings or sentence, or both, in a court-martial case not reviewed under
subsection (a) or under section 866 of this title (article 66) may be modified
or set aside, in whole or in part, by the Judge Advocate General on the ground
of newly discovered evidence, fraud on the court, lack of jurisdiction over the
accused or the offense, error prejudicial to the substantial rights of the
accused, or the appropriateness of the sentence. If such a case is considered
upon application of the accused, the application must be filed in the office of
the Judge Advocate General by the accused on or before the last day of the
two-year period beginning on the date the sentence is approved under section
860(c) of this title (article 60(c)), unless the accused establishes good cause
for failure to file within that time.
(c) If
the Judge Advocate General sets aside the findings or sentence, he may, except
when the setting aside is based on lace of sufficient evidence in the record to
support the findings, order a rehearing. If he sets aside the findings and
sentence and does not order a rehearing, he shall order that the charges be
dismissed. If the Judge Advocate General orders a rehearing by the convening
authority finds a rehearing impractical, the convening authority shall dismiss
the charges.
*(d) A
Court of Military Review may review, under section 866 of this title (article
66)–
(1) any
court-martial case which (A) is subject to action by the Judge Advocate General
under this section, and (b) is sent to the Court of Military Review by order of
the Judge Advocate General; and,
(2) any
action taken by the Judge Advocate General under this section in such case.
*(e)
Notwithstanding section 866 of this title (article 66), in any case reviewed by
a Court of Military Review under this section, the Court may take action only
with respect to matters of law.

870. ART. 70. APPELLATE COUNSEL

(a) The
Judge Advocate General shall detail in his office one or more commissioned
officers as appellate Government counsel, and one or more commissioned officers
as appellate defense counsel, who are qualified under section 827(b)(1) of this
title (article 27(b)(1)).
(b)
Appellate Government counsel shall represent the United States before the Court
of Military Review or the Court of Military Appeals when directed to do so by
the judge Advocate General. Appellate Government counsel may represent the
United States before the Supreme Court in cases arising under this chapter when
requested to do so by the Attorney General.
(c)
Appellate defense counsel shall represent the accused before the Court of
Military Review, the Court of Military Appeals, or the Supreme Court–

(1) when
requested by the accused;
(2) when
the United States is represented by counsel; or
(3) when
the Judge Advocate General has sent the case to the Court of Military Appeals.
(d) The
accused has the right to be represented before the Court of Military Review, the
Court of Military Appeals, or the Supreme court by civilian counsel if provided
by him.
(e)
Military appellate counsel shall also perform such other functions in connection
with the review of court-martial cases as the Judge Advocate General directs.

871. ART. 71. EXECUTION OF SENTENCE;
SUSPENSION OF SENTENCE
(a) If
the sentence of the court-martial extends to death, that part of the sentence
providing for death may not be executed until approved by the President. In such
a case, the President may commute, remit, or suspend the sentence, or any part
thereof, as he sees fit. That part of the sentence providing for the death may
not be suspended.
(b) If
in the case of a commissioned officer, cadet, or midshipman, the sentence of a
court-martial extends to dismissal, that part of the sentence providing for
dismissal may not be executed until approved by the Secretary concerned or such
Under Secretary of Assistant Secretary as may be designated by the Secretary
concerned. In such a case, the Secretary, Under Secretary or Assistant t
Secretary, as the case may be, may commute, remit, or suspend the sentence, or
any part of the sentence, as he sees fit. In time of war or national emergency
he may commute a sentence of dismissal to reduction to any enlisted grade. A
person so reduced may be required to serve for the duration of the war or
emergency and six months thereafter.
(c) (1)
If a sentence extends to death, dismissal, or dishonorable or bad-conduct
discharge and if the right of the accused to appellate review is not waived, and
an appeal is not withdrawn, under section 861 of this title (article 61), that
part of the sentence extending to death, dismissal, or a dishonorable or
bad-conduct discharge may not be executed until there is a final judgment as to
the legality of the proceedings (and with respect to death or dismissal,
approval under subsection (a) or (b), as appropriate). A judgment as to legality
of the proceedings is final in such cases when review is completed by a Court of
Military Review and–
(A) the
time for the accused to file a petition for review by the Court of Military
Appeals has expired and the accused has not filed a timely petition for such
review and the case is not otherwise under review by that Court;

(B) such
a petition is rejected by the Court of Military Appeals; or
(C)
review is completed in accordance with the judgment of the Court of Military
Appeals and–
(i) a
petition for a writ of certiorari is not filed within the time limits prescribed
by the Supreme Court;
(ii)
such a petition is rejected by the Supreme Court; or
(iii)
review is otherwise completed in accordance with the judgment of the Supreme
Court.
(2) If a
sentence extends to dismissal or a dishonorable or bad-conduct discharge and if
the right of the accused to appellate review is waived, or an appeal is
withdrawn, under section 861 of this title (article 61), that part of the
sentence extending to dismissal or a bad-conduct discharge may not be executed
until review of the case by a judge advocate (and any action of that review)
under section 864 of this title (article 64) is completed. Any other part of a
court-martial sentence may be ordered executed by the convening authority or
other person acting on the case under section 860 of this title (article 60)
when approved by hum under that section.
(d) The
convening authority or other person acting on the case under section 860 of this
title (article 60) may suspend the execution of any sentence or part thereof,
except a death sentence.

872. ART. 72. VACATION OF SUSPENSION
(a)
Before the vacation of the suspension of a special court- martial sentence which
as approved includes a bad-conduct discharge, or of any general court-martial
sentence, the officer having special court-martial jurisdiction over the
probationer shall hold a hearing on the alleged violation of probation. The
probationer shall be represented at the hearing by counsel if he so desires.
(b) The
record of the hearing and the recommendation of the officer having special
court-martial jurisdiction shall be sent for action to the officer exercising
general court-martial jurisdiction over the probationer. If he vacates the
suspension, any unexecuted part of the sentence, except a dismissal, shall be
executed, subject to applicable restrictions in section 871(c) of this title
(article 71(c)). The vacation of the suspension of a dismissal is not effective
until approved by the Secretary concerned.
(c) The
suspension of nay other sentence may be vacated by any authority competent to
convene, for the command in which the accused is serving or assigned, a court of
the kind that imposed the sentence.

873. ART. 73. PETITION FOR A NEW TRIAL
At any
time within two years after approval by the convening authority of a
court-martial sentence, the accused may petition the Judge Advocate General for
a new trial on the grounds of newly discovered evidence or fraud on the court.
If the accused’s case is pending before a Court of Military Review or before the
Court of Military Appeals, the Judge Advocate General shall refer the petition
to the appropriate court for action. Otherwise the Judge Advocate General shall
act upon the petition.

874. ART. 74. REMISSION AND SUSPENSION
(a) The
secretary concerned and, when designated by him, any Under Secretary, Assistant
Secretary, Judge Advocate General, or commanding officer may remit or suspend
any part or amount of the unexecuted part of any sentence, including all
uncollected forfeitures other than a sentence prescribed by the President.
(b) The
Secretary concerned may, for good cause, substitute an administrative form of
discharge for a discharge or dismissal executed in accordance with the sentence
of a court-martial.

875. ART. 75. RESTORATION
(a)
Under such regulations as the President may prescribe, all rights, privileges,
and property affected by an executed part of a court-martial sentence which has
been set aside or disapproved, except an executed dismissal or discharge, shall
be restored unless a new trial or rehearing is ordered and such executed part is
included in a sentence imposed upon the new trial or rehearing.

(b) If a
previously executed sentence of dishonorable or bad- conduct discharge is not
imposed on a new trial, the Secretary concerned shall substitute therefor a form
of discharge authorized for administrative issuance unless the accused is to
serve out the remainder of this enlistment.
(c) If a
previously executed sentence of dismissal in not imposed on a new trial, the
Secretary concerned shall substitute therefor a form of discharge authorized for
administrative issue, and the commissioned officer dismissed by the sentence may
be re- appointed by the President alone to such commissioned grade and with such
rank as in the opinion of the President that former officer would have attained
had he not been dismissed. The reappointment of such a former officer shall be
without regard to the existence of a vacancy and shall affect the promotion
status of other officers only insofar as the President may direct. All time
between the dismissal and reappointment shall be considered as actual service
for all purposes, including the right to pay and allowances.

876. ART. 76. FINALITY OF PROCEEDINGS,
FINDINGS, AND SENTENCES
The
appellate review of records of trial provided by this chapter, the proceedings,
findings, and sentences of courts- martial as approved, reviewed, or affirmed as
required by this chapter, and all dismissals and discharges carried into
execution under sentences by courts-martial following approval, review, or
affirmation as required by this chapter, are final and conclusive. Orders
publishing the proceedings of courts-martials and all action taken pursuant to
those proceedings are binding upon all departments, courts, agencies, and
officers of the United States, subject only to action upon a petition for a new
trial as provided in section 873 of this title (article 73) and to action by the
Secretary concerned as provided in section 874 of this title (article 74), and
the authority of the President.

876a. ART. 76a. LEAVE REQUIRED TO BE TAKEN
PENDING REVIEW OF CERTAIN COURT-MARTIAL CONVICTIONS
Under
regulations prescribed by the Secretary concerned, an accused who has been
sentenced by a court-martial may be required to take leave pending completion of
action under this subchapter if the sentence, as approved under section 860 of
this title (article 60), includes an unsuspended dismissal or an unsuspended
dishonorable or bad-conduct discharge. the accused may be required to begin such
leave on the date on which the sentence is approved under section 860 of this
title (article 60) or at any time after such date, and such leave may be
continued until the date which action under this subchapter is completed or may
be terminated at any earlier time.

SUBCHAPTER X. PUNITIVE ARTICLES
Sec.
Art.

877. 77. Principals
878. 78. Accessory after
the fact
879. 79. Conviction of
lesser included offense.
880. 80. Attempts
881. 81. Conspiracy.
882. 82. Solicitation.

883. 83. Fraudulent enlistment, appointment, or separation.

884. 84. Unlawful enlistment, appointment, or separation.
885. 85. Desertion.
886. 86. Absence without
leave.
887. 87. Missing movement.
888. 88. Contempt toward
officials.
889.
89. Disrespect toward superior commissioned officer


890. 90. Assaulting or willfully disobeying superior commissioned officer.


891. 91. Insubordinate conduct toward warrant officer, noncommissioned officer,
or petty officer.
892. 92.
Failure to obey order or regulation.
893. 93. Cruelty and
maltreatment.
894. 94. Mutiny or sedition.
895. 95.
Resistance, breach of arrest, and escape.
896.
96. Releasing prisoner without proper authority.
897. 97. Unlawful detention.
898. 98.
Noncompliance with procedural rules.
899. 99. Misbehavior
before the enemy.
900. 100.
Subordinate compelling surrender.
901. 101. Improper use
of countersign.
902. 102. Forcing a safeguard.

903. 103. Capture
or abandoned property.
904. 104. Aiding the enemy.
905. 105. Misconduct as
prisoner.
906. 106. Spies.
907. 107. False official
statements.


908. 108. Military property of United States–Loss, damage, destruction, or
wrongful disposition.


909. 109. Property other than military property of the United States– Waste,
spoilage, or destruction.
910. 110. Improper
hazarding of vessel.
911. 111. Drunken or
reckless driving.
912. 112. Drunk on duty.


912a. 112a. Wrongful use, possession, etc., of controlled substances.
913. 113.
Misbehavior of sentinel.
914. 114. Dueling.
915. 115. Malingering.
916. 116. Riot or breach
of peace.
917. 117. Provoking
speeches or gestures.
918. 118. Murder.
919. 119. Manslaughter.
920. 120. Rape and
carnal knowledge.
921. 121.
Larceny and wrongful appropriation.
922. 122. Robbery.
923. 123. Forgery.


923a. 123a. Making, drawing, or uttering check, draft, or order without
sufficient funds.
924. 124. Maiming.
925. 125. Sodomy.
926. 126. Arson.
927. 127. Extortion.
928. 128. Assault.
929. 129. Burglary.
930. 130. Housebreaking.
931. 131. Perjury.
932. 132. Frauds
against the United States.
933.
133. Conduct unbecoming an officer and a gentleman.
934. 134. General Article.
877.
ART. 77. PRINCIPALS
Any
person punishable under this chapter who–
(1)
commits an offense punishable by this chapter, or aids, abets, counsels,
commands, or procures its commission or
(2)
causes an act to be done which if directly performed by him would be punishable
by this chapter, is a principal.

878. ART. 78. ACCESSORY AFTER THE FACT
Any
person subject to this chapter who, knowing that an offense punishable by this
chapter has been committed, receives, comforts, or assists the offender in order
to hinder or prevent his apprehension, trial, or punishment shall be punished as
a court-martial may direct.

879. ART. 79. CONVICTION OF LESSER OFFENSE
An
accused may be found guilty of an offense necessarily included in the offense
charged or of an attempt to commit either the offense charged or an offense
necessarily included therein.
880.
ART. 80. ATTEMPTS
(a) An
act, done with specific intent to commit an offense under this chapter,
amounting to more than mere preparation and tending, even though failing, to
effect its commission, is an attempt to commit that offense.
(b) Any
person subject to this chapter who attempts to commit any offense punishable by
this chapter shall be punished as a court-martial may direct, unless otherwise
specifically prescribed.
(c) Any
person subject to this chapter may be convicted of an attempt to commit an
offense although it appears on the trial that the offense was consummated.
881.
ART. 81. CONSPIRACY
Any
person subject to this chapter who conspires with any other person to commit an
offense under this chapter shall, if one or more of the conspirators does an act
to effect the object of the conspiracy, be punished as a court-martial may
direct.

882. ART. 82. SOLICITATION
(a) Any
person subject to this chapter who solicits or advises another or others to
desert in violation of section 885 of this title (article 85) or mutiny in
violation of section 894 of this title (article 94) shall, if the offense
solicited or advised is attempted or committed, be punished with the punishment
provided for the commission of the offense, but, if the offense solicited or
advised is not committed or attempted, he shall be punished as a court-martial
may direct.
(b) Any
person subject to this chapter who solicits or advises another or others to
commit an act or misbehavior before the enemy in violation of section 899 of
this title (article 99) or sedition in violation of section 894 of this title
(article 94) shall, if the offense solicited or advised is committed, be
punished with the punishment provided for the commission of the offense, but, if
the offense solicited or advised is not committed, he shall be punished as a
court-martial may direct.

883. ART. 83. FRAUDULENT ENLISTMENT,
APPOINTMENT, OR SEPARATION
Any
person who–
(1)
procures his own enlistment or appointment in the armed forces by knowingly
false representation or deliberate concealment as to his qualifications for the
enlistment or appointment and receives pay or allowances thereunder; or

(2)
procures his own separation from the armed forces by knowingly false
representation or deliberate concealment as to his eligibility for that
separation;
shall be
punished as a court-martial may direct.

884. ART. 84. UNLAWFUL ENLISTMENT,
APPOINTMENT, OR SEPARATION
Any
person subject to this chapter who effects an enlistment or appointment in or a
separation from the armed forces of any person who is known to him to be
ineligible for that enlistment, appointment, or separation because it is
prohibited by law, regulation, or order shall be punished as a court-martial may
direct.
885.
ART. 85. DESERTION
(a) Any
member of the armed forces who–
(1)
without authority goes or remains absent from his unit, organization, or place
of duty with intent to remain away therefrom permanently;
(2)
quits his unit, organization, or place of duty with intent to avoid hazardous
duty or to shirk important service; or
(3)
without being regularly separated from one of the armed forces enlists or
accepts an appointment in the same or another on of the armed forces without
fully disclosing the fact that he has not been regularly separated, or enters
any foreign armed service except when authorized by the United States; is guilty
of desertion.
(b) Any
commissioned officer of the armed forces who, after tender of his resignation
and before notice of its acceptance, quits his post or proper duties without
leave and with intent to remain away therefrom permanently is guilty of
desertion.
(c) Any
person found guilty of desertion or attempt to desert shall be punished, if the
offense is committed in time of war, by death or such other punishment as a
court-martial may direct, but if the desertion or attempt to desert occurs at
any other time, by such punishment, other than death, as a court-martial may
direct.

866. ART. 86. ABSENCE WITHOUT LEAVE
Any
member of the armed forces who, without authority–
(1)
fails to go to his appointed place of duty at the time prescribed;

(2) goes
from that place; or
(3)
absents himself or remains absent from his unit, organization, or place of duty
at which he is required to be at the time prescribed; shall be punished as a
court-martial may direct.

887. ART. 87. MISSING MOVEMENT

Any
person subject to this chapter who through neglect or design misses the movement
of a ship, aircraft, or unit with which he is required in the course of duty to
move shall be punished as a court-martial may direct.

888. ART. 88. CONTEMPT TOWARD OFFICIALS
Any
commissioned officer who uses contemptuous words against the President, the Vice
President, Congress, the Secretary of Defense, the Secretary of a military
department, the Secretary of Transportation, or the Governor or legislature of
any State, Territory, Commonwealth, or possession in which he is on duty or
present shall be punished as a court-martial may direct.

889. ART. 89 DISRESPECT TOWARD SUPERIOR
COMMISSIONED OFFICER
Any
person subject to this chapter who behaves with disrespect toward his superior
commissioned officer shall be punished as a court-martial may direct.


809. ART. 90. ASSAULTING OR WILLFULLY
DISOBEYING SUPERIOR COMMISSIONED OFFICER.
Any
person subject to this chapter who–
(1)
strikes his superior commissioned officer or draws or lifts up any weapon or
offers any violence against him while he is in the execution of his officer; or
(2)
willfully disobeys a lawful command of his superior commissioned officer;

shall be
punished, if the offense is committed in time of war, by death or such other
punishment as a court-martial may direct, and if the offense is committed at any
other time, by such punishment, other than death, as a court-martial may direct.

891. ART. 91. INSUBORDINATE CONDUCT TOWARD
WARRANT OFFICER, NONCOMMISSIONED OFFICER, OR PETTY OFFICER
Any
warrant officer or enlisted member who–
(1)
strikes or assaults a warrant officer, noncommissioned officer, or petty
officer, while that officer is in the execution of his office;

(2)
willfully disobeys the lawful order of a warrant officer, noncommissioned
officer, or petty officer; or
(3)
treats with contempt or is disrespectful in language or deportment toward a
warrant officer, noncommissioned officer, or petty officer while that officer is
in the execution of his office;
shall be
punished as a court-martial may direct.

892. ART. 92. FAILURE TO OBEY ORDER OR
REGULATION
Any
person subject to this chapter who–
(1)
violates or fails to obey any lawful general order or regulation;

(2)
having knowledge of any other lawful order issued by any member of the armed
forces, which it is his duty to obey, fails to obey the order; or

(3) is
derelict in the performance of his duties;
shall be
punished as a court-martial may direct.

893. ART. 93. CRUELTY AND MALTREATMENT
Any
person subject to this chapter who is guilty of cruelty toward, or oppression or
maltreatment of, any person subject to his orders shall be punished as a
court-martial may direct.

894. ART. 94. MUTINY OR SEDITION
(a) Any
person subject to this chapter who–
(1) with
intent to usurp or override lawful military authority, refuses, in concert with
any other person, to obey orders or otherwise do his duty or creates any
violence or disturbance is guilty of mutiny;
(2) with
intent to cause the overthrow or destruction of lawful civil authority, creates,
in concert with any other person, revolt, violence, or disturbance against that
authority is guilty of sedition;
(3)
fails to do his utmost to prevent and suppress a mutiny or sedition being
committed in his presence, or fails to take all reasonable means to inform his
superior commissioned officer or commanding officer of a mutiny or sedition
which he knows or has reason to believe is taking place, is guilty of a failure
to suppress or report a mutiny or sedition.
(b) A
person who is found guilty of attempted mutiny, mutiny, sedition, or failure to
suppress or report a mutiny or sedition shall be punished by death or such other
punishment as a court- martial may direct.

895. ART. 95. RESISTANCE, BREACH OF ARREST,
AND ESCAPE
Any
person subject to this chapter who resists apprehension or breaks arrest or who
escapes from custody shall be punished as a court-martial may direct.


896. ART. 96. RELEASING PRISONER WITHOUT
PROPER AUTHORITY
Any
person subject to this chapter who, without proper authority, releases any
prisoner committed to his charge, or who through neglect or design suffers any
such prisoner to escape, shall be punished as a court-martial may direct,
whether or not the prisoner was committed in strict compliance with law.


897. ART. 97. UNLAWFUL DETENTION
Any
person subject to this chapter who, except as provided by law, arrests, or
confines any person shall be punished as a court- martial may direct.


898. ART. 98. NONCOMPLIANCE WITH PROCEDURAL
RULES
Any
person subject to this chapter who–
(1) is
responsible for unnecessary delay in the disposition of any case of a person
accused of an offense under this chapter; or
(2)
knowingly and intentionally fails to enforce or comply with any provision of
this chapter regulating the proceedings before, during, or after trial of an
accused;
shall be
punished as a court-martial may direct.

899. ART. 99. MISBEHAVIOR BEFORE THE ENEMY
Any
person subject to this chapter who before or in the presence of the enemy–
(1) runs
away;
(2)
shamefully abandons, surrenders, or delivers up any command, unit, place, or
military property which it is his duty to defend;
(3)
through disobedience, neglect, or intentional misconduct endangers the safety of
any such command, unit, place, or military property;
(4)
casts away his arms or ammunition;
(5) is
guilty of cowardly conduct;
(6)
quits his place of duty to plunder or pillage;
(7)
causes false alarms in any command, unit, or place under control of the armed
forces;
(8)
willfully fails to do his utmost to encounter, engage, capture, or destroy any
enemy troops, combatants, vessels, aircraft, or any other thing, which it is his
duty so to encounter, engage, capture, or destroy; or
(9) does
not afford all practicable relief and assistance to any troops, combatants,
vessels, or aircraft of the armed forces belonging to the United States or their
allies when engaged in battle;
shall be
punished by death or such punishment as a court- martial may direct.


900. ART. 100. SUBORDINATE COMPELLING
SURRENDER
Any
person subject to this chapter who compels or attempts to compel the commander
of any place, vessel, aircraft, or military property, or of any body of members
of the armed forces, to give it up to an enemy or to abandon it, or who strikes
the colors or flag to any enemy without proper authority, shall be punished by
death or such other punishment as a court-martial may direct.


901. ART. 101. IMPROPER USE OF COUNTERSIGN
Any
person subject to this chapter who in time of war discloses the parole or
countersign to any person not entitled to receive it or who gives to another who
is entitled to receive and use the parole or countersign a different parole or
countersign from that which, to his knowledge, he was authorized and required to
give, shall be punished by death or such other punishment as a court- martial
may direct.

902. ART. 102. FORCING A SAFEGUARD
Any
person subject to this chapter forces a safeguard shall suffer death or such
other punishment as a court-martial may direct.

903. ART. 103. CAPTURED OR ABANDONED
PROPERTY
(a) All
persons subject to this chapter will secure all public property taken from the
enemy for the service of the United States, and shall give notice and turn over
to the proper authority without delay all captured or abandoned property in
their possession, custody, or control.
(b) Any
person subject to this chapter who–
(1)
fails to carry out the duties prescribed in subsection (a);
(a)
buys, sells, trades, or in any way deals in or disposes of captured or abandoned
property, whereby he receives or expects any profit, benefit, or a advantage to
himself or another directly or indirectly connected with himself; or

(3)
engages in looting or pillaging;
shall be
punished as a court-martial may direct.

904. ART. 104. AIDING THE ENEMY

Any
person who–
(1)
aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or
other things; or
(2)
without proper authority, knowingly harbors or [protects or gives intelligence
to or communicates or corresponds with or holds any intercourse with the enemy,
either directly or indirectly;
shall
suffer death or such other punishment as a court-martial or military commission
may direct.

905. ART 105. MISCONDUCT AS PRISONER
Any
person subject to this chapter who, while in the hands of the enemy in time of
war–
(1) for
the purpose of securing favorable treatment by his captors acts without proper
authority in a manner contrary to law, custom, or regulation, to the detriment
of others of whatever nationality held by the enemy as civilian or military
prisoners; or
(2)
while in a position of authority over such persons maltreat them without
justifiable cause;
shall be
punished as a court-martial may direct.
906.
ART. 106. SPIES
Any
person who in time of war is found lurking as a spy or acting as a spy in or
about any place, vessel, or aircraft, within the control or jurisdiction of any
of the armed forces, or in or about any shipyard, any manufacturing or
industrial plant, or any other place or institution engaged in work in aid of
the prosecution of the war by the Unites States, or elsewhere, shall be tried by
a general court-martial or by a military commission and on conviction shall be
punished by death.

906a. ART. 106a. ESPIONAGE
(A) (1)
Any person subject to this chapter who, with intent or reason to believe that it
is to be used to the injury of the United States or to the advantage of a
foreign nation, communicates, delivers, or transmits, or attempts to
communicate, deliver, or transmit, to any entity described in paragraph (2),
either directly or indirectly, any thing described in paragraph (3) shall be
punished as a court-martial may direct, except that if the accused is found
guilty of an offense that directly concerns (A) nuclear weaponry, military
spacecraft or satellites, early warning systems, or other means of defense or
retaliation against large scale attack, (B) war plans, (C) communications
intelligence or cryptographic information, or (D) any other major weapons system
or major element of defense strategy, the accused shall be punished by death or
such other punishment as a court- martial may direct.
(2) An
entity referred to in paragraph (1) is–
(A) a
foreign government;
(B) a
faction or party or military force within a foreign country, whether recognized
or unrecognized by the United States
(C) a
representative, officer, agent, employee, subject, or citizen of such
government, faction, party, or force.
(3) A
thing refereed to in paragraph (1) is a document, writing, code book, signal
book, sketch, photograph, photographic negative, blueprint, plan, map, model,
note, instrument, appliance or information relating to the national defense.
(b) (1)
No person may be sentenced by court-martial to suffer death for an offense under
this section (article) unless–
(A) the
members of the court-martial unanimously find at least one of the aggravating
factors set out in subsection (c); and
(B) the
members unanimously determine that any extenuating or mitigating circumstances
are substantially outweighed by any aggravating circumstances, including the
aggravating factors set out under subsection (c).
(2)
Findings under this subsection may be based on–
(A)
evidence introduced on the issue of guilt or innocence;
(B)
evidence introduced during the sentencing proceeding; or
(C) all
such evidence.
(3) The
accused shall be given broad latitude to present matters in extenuation and
mitigation.
(c) A
sentence of death may be adjudged by a court-martial for an offense under this
section (article) only if the members unanimously find, beyond a reasonable
doubt, one or more of the following aggravating factors:
(1) The
accused has been convicted of another offense involving espionage or treason for
which either a sentence of death or imprisonment for life was authorized by
statute.
(2) In
the commission of the offense, the accused knowingly created a grave risk of
substantial damage to the national security.
(3) In
the commission of the offense, the accused knowingly created a grave risk of
death to another person.
(4) Any
other factor that may be prescribed by the President by regulations under
section 836 of this title (Article 36).

907. ART. 107. FALSE STATEMENTS

Any
person subject to this chapter who, with intent to deceive, signs any false
record, return, regulation, order, or other official document, knowing it to be
false, or makes any other false official statement knowing it to be false, shall
be punished as a court-martial may direct.

908. ART. 108. MILITARY PROPERTY OF UNITED
STATES-LOSS, DAMAGE, DESTRUCTION, OR WRONGFUL DISPOSITION
Any
person subject to this chapter who, without proper authority–

(1)
sells or otherwise disposes of;
(2)
willfully ore through neglect damages, destroys, or loses; or

(3)
willfully or through neglect suffers to be lost, damaged, sold, or wrongfully
disposed of;
any
military property of the United States, shall be punished as a court-martial may
direct.

909. ART. 109. PROPERTY OTHER THAN MILITARY
PROPERTY OF UNITED STATES – WASTE, SPOILAGE, OR DESTRUCTION
Any
person subject to this chapter who willfully or recklessly wastes, spoils, or
otherwise willfully and wrongfully destroys or damages any property other than
military property of the United States shall be punished as a court-martial may
direct.

910. ART 110. IMPROPER HAZARDING OF VESSEL
(a) Any
person subject to this chapter who willfully and wrongfully hazards or suffers
to be hazarded any vessel of the armed forces shall suffer death or such
punishment as a court- martial may direct.
(b) Any
person subject to this chapter who negligently hazards or suffers to be hazarded
any vessel of the armed forces shall be punished as a court-martial may direct.

* 911. ART. 111. DRUNKEN OR RECKLESS
DRIVING
Any
person subject to this chapter who operates any vehicle while drunk, or in a
reckless or wanton manner, or while impaired by a substance described in section
912a(b) of this title (article 112a(b)), shall be punished as a court-martial
may direct.

912. ART. 112. DRUNK ON DUTY
Any
person subject to this chapter other than a sentinel or look-out, who is found
drunk on duty, shall be punished as a court-martial may direct.


912a. ART. 112a. WRONGFUL USE, POSSESSION,
ETC., OF CONTROLLED SUBSTANCES
(a) Any
person subject to this chapter who wrongfully uses, possesses, manufactures,
distributes, imports into the customs territory of the United States, exports
form the United States, or introduces into an installation, vessel, vehicle, or
aircraft used by or under the control of the armed forces a substance described
in subsection (b) shall be punished as a court-martial may direct.

(b) The
substances refereed to in subsection (a) are the following:
(1)
opium, heroin, cocaine, amphetamine, lysergic acid diethylamide,
methamephetamine, penecyclidine, barbituric acid, and marijuana, and any
compound or derivative of any such substance.
(2) Any
substance not specified in clause (1) that is listed on a scheduile of
controlled substances prescribed by the President for the purposes of this
article.
(3) Any
other substance not specified in clause (1) or contained on a list prescribed by
the President under clause (2) that is listed in Schedules I through V of
section 202 of the Controlled Substances Act (21 U.S.C. 812).


913. ART. 113. MISBEHAVIOR OF A SENTINEL OR
LOOKOUT
Any
sentinel or look-out who is found drunk or sleeping upon his post, or leaves it
before he is regularly relieved, shall be punished, if the offense is committed
in time of war, by death or such other punishment as a court-martial may direct,
by if the offense is committed at any other time, by such punishment other than
death as court-martial may direct.
914.
ART. 114. DUELING
Any
person subject to this chapter who fights or promotes, or is concerned in or
connives at fighting a duel, or who, having knowledge of a challenge sent or
about to be sent, fails to report the fact promptly to the proper authority,
shall be punished as a court-martial may direct.

915. ART 115. MALINGERING
Any
person subject to this chapter who for the purpose of avoiding work, duty, or
service–
(1)
feigns illness, physical disablement, mental lapse or derangement; or

(2)
intentionally inflects self-injury;
shall be
punished as a court-martial may direct.

916. ART. 116. RIOT OR BREACH OF PEACE
Any
person subject to this chapter who causes or participates in any riot or breach
of the peace shall be punished as a court- martial may direct.


917. ART. 117. PROVOKING SPEECHES OR
GESTURES
Any
person subject to this chapter who uses provoking or reproachful words or
gestures towards any other person subject to this chapter shall be punished as a
court-martial may direct.
918.
ART. 118. MURDER
Any
person subject to this chapter whom without justification or excuse, unlawfully
kills a human being, when he- –
(1) has
a premeditated design to kill;
(2)
intends to kill or inflict great bodily harm;
(3) is
engaged in an act which is inherently dangerous to others and evinces a wanton
disregard of human life; or
(4) is
engaged in the perpetration or attempted perpetration of burglary, sodomy, rape,
robbery, or aggravated arson;
is
guilty of murder, and shall suffer such punishment as a court-martial may
direct, except that if found guilty under clause (1) or (4), he shall suffer
death or imprisonment for life as a court-martial may direct.


919. ART. 119. MANSLAUGHTER
(a) Any
person subject to this chapter who, with an intent to kill or inflict great
bodily harm, unlawfully kills a human being in the heat of sudden passion caused
by adequate provocation is guilty of voluntary manslaughter and shall be
punished as a court- martial may direct.
(b) Any
person subject to this chapter who, without an intent to kill or inflict great
bodily harm, unlawfully kills a human being–
(1) by
culpable negligence; or
(2)
while perpetrating or attempting to perpetrate an offense, other than those
named in clause (4) of section 918 of this title (article 118), directly
affecting the person;
is
guilty of involuntary manslaughter and shall be punished as a court-martial may
direct.

920. ART. 120. RAPE AND CARNAL KNOWLEDGE
(a) Any
person subject to this chapter who commits an act of sexual intercourse with a
female not his wife, by force and without consent, is guilty of rape and shall
be punished by death or such other punishment as a court-martial may direct.
(b) Any
person subject to this chapter who, under circumstances not amounting to rape,
commits an act of sexual intercourse with a female not his wife who has not
attained the age of sixteen years, is guilty of carnal knowledge and shall be
punished as a court-martial may direct.
(c)
Penetration, however slight, is sufficient to complete either of these offenses.

921. ART. 121. LARCENY AND WRONGFUL
APPROPRIATION
(a) Any
person subject to this chapter who wrongfully takes, obtains, or withholds, by
any means, from the possession of the owner or of any other person any money,
personal property, or article of value of any kind–
(1) with
intent permanently to deprive or defraud another person of the use and benefit
of property or to appropriate it to his won use or the use of any person other
than the owner, steals that property and is guilty of larceny; or

(2) with
intent to temporarily to deprive or defraud another person of the use and
benefit of property or to appropriate to his own use the use of any person other
than the owner, is guilty of wrongful appropriation.
(b) Any
person found guilty of larceny or wrongful appropriation shall be punished as a
court-martial may direct.
922.
ART. 122. ROBBERY
Any
person subject to this chapter who with intent to steal takes anything of value
from the person or in the presence of another, against his will, by means of
force or violence or fear of immediate or future injury to his person or
property or to the person or property of a relative or member of his family or
of anyone in his company at the time of the robbery, is guilty of robbery and
shall be punished as a court-martial may direct.
923.
ART. 123. FORGERY
Any
person subject to this chapter who, with intent to defraud- –

(1)
falsely makes or alters any signature, to, or any part of, any writing which
would, if genuine, apparently impose a legal liability on another or change his
legal right or liability to his prejudice; or
(2)
utters, offers, issues, or transfers such a writing, known by him to be so made
or altered;
is
guilty of forgery and shall be punished as a court-martial may direct.


923a. ART. 123a. MAKING, DRAWING, OR
UTTERING CHECK, DRAFT, OR ORDER WITHOUT SUFFICIENT FUNDS
Any
person subject to this chapter who–
(1) for
the procurement of any article or thing of value, with intent to defraud; or
(2) for
the payment of any past due obligation, or for any other purpose, with intent to
deceive;
makes,
draws, utters, or delivers any check, draft, or order for the payment of money
upon any bank or other depository, knowing at the time that the maker or drawer
has not or will not have sufficient funds in, or credit with, the bank or other
depository for the payment of that check, draft, or order in full presentment,
shall be punished as a court-martial may direct. The making, drawing, uttering,
or delivering by a maker or drawer of a check, draft, or order, payment of which
is refused by the drawee because of insufficient funds of the maker or drawer in
the drawee’s possession or control, is prima facie evidence of his intent to
defraud or deceive and of his knowledge of insufficient funds in, or credit
with, that bank or other depository, unless the maker or drawer pays the holder
the amount due within five days after receiving notice , orally or in writing,
that the check, draft, or order was not paid on presentment. in this section the
word "credit" means an arrangement or understanding , express or implied, with
the bank or other depository for the payment of that check, draft, or order.
924.
ART. 124. MAIMING
Any
person subject to this chapter who, with intent to injure, disfigure, or
disable, inflicts upon the person of another an injury which–

(1)
seriously disfigures his person by a mutilation thereof;
(2)
destroys or disables any member or organ of his body; or
(3)
seriously diminishes his physical vigor by the injury of any member or organ;
is
guilty of maiming and shall be punished as a court-martial may direct.

925.
ART. 125. SODOMY
(a) Any
person subject to this chapter who engages in unnatural carnal copulation with
another person of the same or opposite sex or with an animal is guilty of
sodomy. Penetration , however slight, is sufficient to complete the offense.
(b) Any
person found guilty of sodomy shall be punished as a court-martial may direct.
926.
ART. 126. ARSON
(a) Any
person subject to this chapter who willfully and maliciously burns or sets on
fire an inhabited dwelling, or any other structure, movable or immovable,
wherein to the knowledge of the offender there is at the time a human being, is
guilty of aggravated arson and shall be punished as a court-martial may direct.
(b) Any
person subject to this chapter who willfully and maliciously burns or sets fire
to the property of another, except as provided in subsection (a), is guilty of
simple arson and shall be punished as a court-martial may direct.

927.
ART. 127. EXTORTION
Any
person subject to this chapter who communicates threats to another person with
the intention thereby to obtain anything of value or any acquittance, advantage,
or immunity is guilty of extortion and shall be punished as a court-martial may
direct.
928.
ART. 128. ASSAULT
(a) Any
person subject to this chapter who attempts or offers with unlawful force or
violence to do bodily harm to another person, whether or not the attempt or
offer is consummated, is guilty of assault and shall be punished as a
court-martial may direct.
(b) Any
person subject to this chapter who–
(1)
commits an assault with a dangerous weapon or other means or force likely to
produce death or grievous bodily harm; or
(2)
commits an assault and intentionally inflicts grievous bodily harm with or
without a weapon;
is
guilty of aggravated assault and shall be punished as a court-martial may
direct.
929.
ART. 129. BURGLARY
Any
person subject to this chapter who, with intent to commit an offense punishable
under section 918-929 of this title (article 118-128), breaks and enters, in the
nighttime, the dwelling house of another, is guilty of burglary and shall be
punished as a court-martial may direct.

930. ART. 130. HOUSEBREAKING
Any
person subject to this chapter who unlawfully enters the building or structure
of another with intent to commit a criminal offense therein is guilty of
housebreaking and shall be punished as a court-martial may direct.

931.
ART. 131. PERJURY
Any
person subject to this chapter who in a judicial proceeding or in a course of
justice willfully and corruptly–
(1) upon
a lawful oath or in a form allowed by law to be substituted for an oath, gives
any false testimony material to the issue or matter of inquiry; or

(2) in
any declaration, certificate, verification, or statement under penalty or
perjury as permitted under section 1746 of title 28, United States Code,
subscribes any false statement material to the issue or matter of inquiry;
is
guilty of perjury and shall be punished as a court-martial may direct.


932. ART. 132. FRAUDS AGAINST THE UNITED
STATES
Any
person subject to this chapter–
(1) who,
knowing it to be false or fraudulent–
(A)
makes any claim against the United States or any officer thereof; or

(B)
presents to any person in the civil or military service thereof, for approval or
payment, any claim against the United States or any officer thereof;

(2) who,
for the purpose of obtaining the approval, allowance, or payment of any claim
against the United States or any officer thereof
(A)
makes or uses any writing or other paper knowing it to contain false or
fraudulent statements;
(B)
makes any oath to any fact or to any writing or other paper knowing the oath to
be false; or
(C)
forges or counterfeits any signature upon any writing or other paper, or uses
any such signature knowing it to be forged or counterfeited;
(3) who,
having charge, possession, custody, or control of any money, or other property
or the United States, furnished or intended for the armed forces thereof,
knowingly delivers to any person having authority to receive it, any amount
thereof less than that for which he receives a certificate or receipt; or

(4) who,
being authorized to make or deliver any paper certifying the receipt of any
property of the United States furnished or intended for the armed forces
thereof, makes or delivers to any person such writing without having full
knowledge of the truth of the statements therein contained and with intent to
defraud the United States;
shall,
upon conviction, be punished as a court-martial may direct.

933. ART. 133. CONDUCT UNBECOMING AN
OFFICER AND A GENTLEMAN
Any
commissioned officer, cadet, or midshipman who is convicted of conduct
unbecoming an officer and a gentleman shall be punished as a court-martial may
direct.

934. ART. 134. GENERAL ARTICLE

Though
not specifically mentioned in this chapter, all disorders and neglects to the
prejudice of good order and discipline in the armed forces, all conduct of a
nature to bring discredit upon the armed forces, and crimes and offenses not
capital, of which persons subject to this chapter may be guilty, shall be taken
cognizance of by a general, special or summary court-martial, according to the
nature and degree of the offense, and shall be punished at the discretion of
that court.


SUBCHAPTER XI. MISCELLANEOUS PROVISIONS
Sec.
Art.

936. 135. Courts of inquiry

936. 136. Authority to administer oaths and to act as notary.
937. 137. Articles to
be explained.
938. 138. Complaints of
wrongs.
939. 139. Redress
of injuries to property.
940. 140. Delegation
by the President.

935. ART. 135. COURTS OF INQUIRY
(a)
Courts of inquiry to investigate any matter may be convened by any person
authorized to convene a general court-martial or by any other person designated
by the Secretary concerned for that purpose, whether or not the persons involved
have requested such an inquiry.
(b) A
court of inquiry consists of three or more commissioned officers. For each court
of inquiry the convening authority shall also appoint counsel for the court.
(c) Any
person subject to this chapter whose conduct is subject to inquiry shall be
designated as a party. Any person subject to this chapter or employed by the
Department of Defense who has a direct interest in the subject of inquiry has
the right to be designated as a party upon request to the court. Any person
designated as a party shall be given due notice and has the right to be present,
to be represented by counsel, to cross- examine witnesses, and to introduce
evidence.
(d)
Members of a court of inquiry may be challenged by a party, but only for cause
stated to the court.
(e) The
members, counsel, the reporter, and interpreters of courts of inquiry shall take
an oath to faithfully perform their duties.
(f)
Witnesses may be summoned to appear and testify and be examined before courts of
inquiry, as provided for courts-martial.
(g)
Courts of inquiry shall make findings of fact but may not express opinions or
make recommendations unless required to do so by the convening authority.

(h) Each
court of inquiry shall keep a record of its proceedings, which shall be
authenticated by the signatures of the president and counsel for the court and
forwarded to the convening authority. If the record cannot be authenticated by
the president, it shall be signed by a member in lieu of the president. If the
record cannot be authenticated by the counsel for the court, it shall be signed
by a member in lieu of the counsel.

* 936. ART. 136. AUTHORITY TO ADMINISTER
OATHS AND ACT AS NOTARY
(a) The
following persons on active duty or performing inactive-duty training may
administer oaths for the purpose of military administration, including military
justice, and have the general powers of a notary public and of a consul of the
United States, in the performance of all notarial acts to be executed by members
of any of the armed forces, wherever they may be, by persons serving with,
employed by, or accompanying the armed forces outside the United States and
outside the Canal Zone, Puerto Rico, Guam, and the Virgin Islands, and by other
persons subject to this chapter outside the United States.
(1) All
judge advocates
(2) All
summary courts-martial.
(3) All
adjutants, assistant adjutants, acting adjutants, and personnel adjutants.
(4) All
commanding officers of the Navy, Marine Corps, and Coast Guard.

(5) All
staff judge advocates and legal officers, and acting or assistant staff judge
advocates and legal officers.
(6) All
other persons designated by regulations of the armed forces or by statute.,
(b) The
following persons on active duty or performing inactive-duty training may
administer oaths necessary in the performance of their duties:

(1) The
president, military judge, trial counsel, and assistant trial counsel for all
general and special courts-martial.
(2) The
president and counsel for the court of any court of inquiry.
(3) All
officers designated to take a deposition.
(4) All
persons detailed to conduct an investigation.
(5) All
recruiting officers.
(6) All
other persons designated by regulations of the armed forces or by statute.
(c) No
fee may be paid to or received by any person for the performance of any notarial
act herein authorized.
(d) The
signature without seal of any such person acting as notary, together with the
title of his office, is prima facie evidence of his authority.


* 937. ART. 137. ARTICLES TO BE EXPLAINED.
(a) (1)
The sections of this title (articles of the Uniform Code of Military Justice)
specified in paragraph (3) shall be carefully explained to each enlisted member
at the time of (or within six days after)–
(A) the
member’s initial entrance on active duty; or
(B) the
member’s initial entrance into a duty status with a reserve component.

(2) Such
sections (articles) shall be explained again–
(A)
after the member has completed six months of active duty or, in the case of a
member of a reserve component, after the member has completed basic or
recruiting training; and
(B) at
the time when the member reenlists.
(3) This
subsection applies with respect to sections 802, 803, 807- 815, 825, 827, 831,
837, 838, 855, 877-934, and 937-939 of this title (articles 2, 3, 7-15, 25, 27,
31, 38, 55, 77-134, and 137-139).
(b) The
text of the Uniform Code of Military Justice and of the regulations prescribed
by the President under such Code shall be made available to a member on active
duty or to a member of a reserve component, upon request by the member, for the
member’s personal examination.

938. ART. 138. COMPLAINTS OF WRONGS
Any
member of the armed forces who believes himself wronged by his commanding
officer, and who, upon due application to that commanding officer, is refused
redress, may complain to any superior commissioned officer, who shall foreword
the complaint to the office exercising court- martial jurisdiction over the
officer against whom it is made. The officer exercising general court-martial
jurisdiction shall examine into the complaint and take proper measures for
redressing the wrong complained of; and he shall, as soon as possible, send to
the Secretary concerned a true statement of that complaint, with the proceedings
thereon.

939. ART. 139. REDRESS OF INJURIES TO
PROPERTY
(a)
Whenever a complaint is made to any commanding officer hat willful damage has
been done to the property of any person or that his property has been wrongfully
taken by members of the armed forces, he may, under such regulations as the
Secretary concerned may prescribe, convene an board to investigate the
complaint. The board shall consist of from one to three commissioned officers
and, for the purpose of investigation, it has the power to summon witnesses and
examine them upon oath, to receive depositions or other documentary evidence,
and to assess the damages sustained against the responsible parties. The
assessment of damages made by the board is subject to the approval of the
commanding officer, and in the amount approved by him shall be charged against
the pay of the offenders. The order of the commanding officer directing charges
herein authorized is conclusive on any disbursing officer for the payment by him
to the injured parties of the damages as assessed and approved.

(b) If
the offenders cannot be ascertained, but organization or detachment to which
they belong is known, charges totaling the amount of damages assessed and
approved may be made in such proportion as may be considered just upon the
individual members thereof who are shown to have been present at the scene at
the time the damages complained of were inflicted, as determined by the approved
findings of the board.

940. ART. 140. DELEGATION BY THE PRESIDENT.
The
President may delegate any authority vested in him under this chapter, and
provide for sub delegation of any such authority.


*SUBCHAPTER XII. COURT OF MILITARY APPEALS
Sec.
Art.

941. 141. Status.


942. 142. Judges.

943. 143. Organization
and employees.
944. 144. Procedure.
945. 145.
Annuities for judges and survivors.
946. 146. Code committee.
941.
ART. 141. STATUS
There is
a court of record known as the United States Court of Military Appeals. The
court is established under Article 1 of the Constitution. The court is located
for administrative purposes only in the Department of Defense.

942.
ART. 142. JUDGES.
(a)
NUMBER. The United States Court of Military Appeals consists of five judges.
(b)
APPOINTMENT; QUALIFICATION.
(1) Each
judge of the court shall be appointed from civil life by the President, by and
with the advice and consent of the Senate, for a specified term determined under
paragraph (2). A judge may serve as a senior judge as provided in subsection
(e).
(2) The
term of a judge shall expire as follows:
(A) In
the case of a judge who is appointed after March 31 and before October 1 of any
year, the term shall expire on September 30 of the year in which the fifteenth
anniversary of the appointment occurs.
(B) In
the case of a judge who is appointed after September 30 of any year and Before
April 1 of the following year, the term shall expire fifteen years after such
September 30.
(3) Not
more than three of the judges may be appointed from the same political party,
and no person may be appointed to be judge of the court unless the person is a
member of the bar of a Federal court or the highest court of a State.

(c)
REMOVAL. Judges of the court may be removed from office by the President, upon
notice and hearing, for–
(1)
neglect of duty;
(2)
misconduct; or
(3)
mental or physical disability.
A judge
may not be removed by the President for any other cause.
(d) PAY
AND ALLOWANCES. Each judge of the court is entitled to the same salary and
travel allowances as are, and from the time may be, provided for judges of the
United States Courts of Appeals.
(e)
SENIOR JUDGES.
(1) A
former judge of the court who is receiving retired pay or annuity under section
945 of this title (article 145) or under subchapter III of chapter 83 or chapter
84 title 5 shall be a senior judge.
(2) (A)
The chief judge of the court may call upon a senior judge of the court, with the
consent of the senior judge, to perform judicial duties with the court–

(i)
during a period a judge of the court is unable to perform his duties because of
illness or other disability;
(ii)
during a period in which a position of judge of the court is vacant; or

(iii) in
any case in which a judge of the court recuses himself.
(B) A
senior judge shall be paid for each day on which he performs judicial duties
with the court an amount equal to the daily equivalent of the annual rate of pay
provided for a judge of the court. Such pay shall be in lieu of retired pay and
in lieu of an annuity under section 945 of this title (Article 145), subchapter
III of chapter 83 or subchapter II of chapter 84 of title 5, or any other
retirement system for employees of the Federal Government.
(3) A
senior judge, while performing duties referred to in paragraph (2), shall be
provided with such office space and staff assistance as the chief judge
considers appropriate and shall be entitled to the per diem, travel allowances,
and other allowances provided for judges of the court.
(4) A
senior judge shall be considered to be an officer or employee of the United
States with respect to his status as a senior judge, but only during periods the
senior judge is performing duties referred to in paragraph (2). For the purposes
of section 205 of title 18, a senior judge shall be considered to be a special
Government employee during such periods. Any provision of law that prohibits or
limits the political or business activities of an employee of the United States
shall apply to a senior judge only during such periods.
(5) The
court shall prescribe rules for the use and conduct of senior judges of the
court. The chief judge of the court shall transmit such rules, and any
amendments to such rules, to the Committees on Armed Services of Senate and
House of Representatives not later than 15 days after the issuance of such rules
or amendments, as the case may be.
(6) For
the purposes of subchapter III of chapter 83 of title 5 (relating to the Civil
Service Retirement and Disability System) and chapter 84 of such title (relating
to the Federal Employees’ Retirement System) and for purposes of any other
Federal Government retirement system for employees of the Federal Government–
(A) a
period during which a senior judge performs duties referred to in paragraph (2)
shall not be considered creditable service.
(B) no
amount shall be withheld from the pay of a senior judge as a retirement
contribution under section 8334, 8343, 8342, or 8432 of title 5 or under other
such retirement system for any period during which the senior judge performs
duties refereed to in paragraph (2);
(C) no
contribution shall be made by the Federal Government to any retirement system
with respect to a senior judge for any period during which the senior judge
performs duties referred to in paragraph (2); and
(D) a
senior judge shall not be considered to a re employed annuitant for any period
during which the senior judge performs duties referred to in paragraph (2).
(f)
SERVICE OF ARTICLE III JUDGES.
(1) the
Chief Justice of the United States, upon the request of the chief judge of the
court, may designate a judge of a United States court of appeals or of a United
States district court to perform the duties of judge of the United States Court
of Military Appeals–
(A)
during a period a judge of the court is unable to perform his duties because of
illness or other disability; or
(B) in
any case in which a judge of the court recuses himself.
(2) A
designation under paragraph (1) may be made only with the consent of the
designated judge and the concurrence of the chief judge of the court of appeals
or district court concerned.
(3) Per
diem, travel allowances, and other allowances paid to the designated judge in
connection with the performance of duties for the court shall be paid from funds
available for the payment of per diem and such allowances for judges of the
court.
(g)
EFFECT OF VACANCY ON COURT. A vacancy on the court does not impair the right of
the remaining judges to exercise the powers of the court.

943. ART. 143. ORGANIZATION AND EMPLOYEES
(a)
CHIEF JUDGE. The President shall designate from time to time one of the judges
of the United States Court of Military Appeals to be chief judge of the court.
(b)
PRECEDENCE OF JUDGES. The chief judge of the court shall have precedence and
preside at any session that he attends. The other judges shall have precedence
and preside according to the seniority of their original commissions. Judges
whose commissions bear the same date shall have precedence according to
seniority in age.
(c)
STATUS OF ATTORNEY POSITIONS.
(1)
Attorney positions of employment under the Court of Military Appeals are
exempted from the competitive service. Appointments to such positions shall be
made by the court, without the concurrence of any other officer or employee of
the executive branch, as in the same manner as appointments are made to other
executive branch positions of a confidential or policy- determining character
for which it is not practicable to examine or hold a competitive examination.
such positions shall not be counted as positions of that character for purposes
of any limitation on the number of positions of that character provided in law.
(2) In
making appointments to the positions described in paragraph (1), preference
shall be given, among equally qualified persons, to persons who are preference
eligibles (as defined in section 2108(3) of title 5).
944.
ART. 144. PROCEDURE
The
United States Court of Military Appeals may prescribe its rules of procedure and
may determine the number of judges required to constitute a quorum.


945. ART. 145. ANNUITIES FOR JUDGES AND
SURVIVORS
(a)
RETIREMENT ANNUITIES FOR JUDGES.
(1) A
person who has completed a term of service for which he was appointed as a judge
of the United States Court of Military Appeals is eligible for an annuity under
this section upon separation from civilian service in the Federal Government.
(2) A
person who is eligible for any annuity under this section shall be paid that
annuity if, at the time he becomes eligible to receive that annuity, he elects
to receive that annuity in lieu of any other annuity for which he may be
eligible at the time of such election (whether an immediate or a deferred
annuity) under subchapter III of chapter 83 or subchapter II of chapter 84 of
title 5 or any other retirement system for civilian employees of the Federal
Government. Such an election may not be revoked.
(3) (A)
The Secretary of Defense shall notify the Director of the Office of Personnel
Management whenever an election under paragraph (2) is made affecting any right
or interest under subchapter III of chapter 83 or subchapter II of chapter 85 of
title 5 based on service as a judge of the United States Court of Military
Appeals.
(B) Upon
receiving any notification under subparagraph (A) in the case of a person making
an election under (2), the Director shall determine the amount of the person’s
lump-sum credit under subchapter III of chapter 83 or subchapter II of chapter
84 of title 5, as applicable, and shall request the Secretary of Treasury to
transfer such amount from the Civil Service Retirement and Disability Fund to
the Department of Defense Military Retirement Fund. The Secretary of the
Treasury shall make any transfer so requested.
(C) In
determining the amount of a lump-sum credit under section 8331(8) of title 5 for
purposes of this paragraph–
(i)
interest shall be computed using the rates under section 8334(e)(3) of such
title; and
(ii) the
completion of 5 years of civilian service (or longer) shall not be a basis for
excluding interest.
(b)
AMOUNT OF ANNUITY. The annuity payable under this section to a person who makes
an election under subsection (a)(2) is 80 percent of the rate of pay for a judge
in active service on the United States Court of Military Appeals as of the date
on which the person is separated form civilian service.
(c)
RELATION TO THRIFT SAVINGS PLAN. Nothing in this section affects any right of
any person to participate in the thrift savings plan under section 8351 of title
5 subchapter III of chapter 84 of such title.
(d)
SURVIVOR ANNUITIES. The Secretary of Defense shall prescribe by regulation a
program to provide annuities for survivors and former spouses of persons
receiving annuities under section by reason of elections made by such persons
under subsection (a)(2). That program shall, to the maximum extent practicable,
provide benefits and establish terms and conditions that are similar to those
provided under survivor and former spouse annuity programs under other
retirement systems for civilian employees of the Federal Government. The program
may include provisions for the reduction in the annuity paid the person as a
condition for the survivor annuity. An election by a judge (including a senior
judge) or former judge to receive an annuity under this section terminates any
right or interest which any other individual may have to a survivor annuity
under any other retirement system for civilian employees of the Federal
Government based on the service of that judge or former judge as a civilian
officer or employee of the Federal Government (except with respect to an
election under subsection (g)(1)(B)).
(e)
COST-OF-LIVING INCREASES. The Secretary of Defense shall periodically increase
annuities and survivor annuities paid under this section in order to take
account of changes in the cost of living. The Secretary shall prescribe by
regulation procedures for increases in annuities under this section. Such system
shall, to the maximum extent appropriate, provide cost-of-living adjustments
that are similar to those that are provided under other retirement systems for
civilian employees of the Federal Government.
(f) DUAL
COMPENSATION. A person who is receiving an annuity under this section by reason
of service as a judge of the court and who is appointed to a position in the
Federal Government shall, during the period of such person’s service in such
position, be entitled to receive only the annuity under this section or the pay
for that position, whichever is higher.
(g)
ELECTION OF JUDICIAL RETIREMENT BENEFITS.
(1) A
person who is receiving an annuity under this section by reason of service as a
judge of the court and who later is appointed as a justice or judge of the
United States to hold office during good behavior and who retires from that
office, or from regular service in that office, shall be paid either–

(A) the
annuity under this section, or
(B) the
annuity or salary to which he is entitled by reason of his service as such a
justice or judge of the United States, as determined by an election by that
person at the time of his retirement from the office, or from regular active
service in the office, of justice or judge of the United States. Such an
election may not be revoked.
(2) An
election by a person to be paid an annuity or salary pursuant to paragraph
(1)(B) terminates (A) any election previously made by such person to provide a
survivor annuity pursuant to subsection (d), and (B) any right of any other
individual to receive an survivor annuity pursuant to subsection (d) on the
basis of the service of that person.
(h)
SOURCE OF PAYMENT OF ANNUITIES. Annuities and survivor annuities paid under this
section shall be paid out f the Department of Defense Military Retirement Fund.

946. ART. 146. CODE COMMITTEE

(a)
ANNUAL SURVEY. A committee shall beet at least annually and shall make an annual
comprehensive survey of the operation of this chapter.
(b)
COMPOSITION OF COMMITTEE. the committee shall consist of–
(1) the
judges of the United States Court of Military Appeals;
(2) the
Judge Advocates General of the Army, Navy, and Air Force, the Chief Counsel of
the Coast Guard, and the Staff Judge Advocate to the Commandant of the Marine
Corps; and
(3) two
members of the public appointed by the Secretary of Defense.
(c)
REPORTS.
(1)
After each such survey, the committee shall submit a report–

(A) to
the Committees on Armed Services of the Senate and House of Representatives; and
(B) Amy
recommendation of the committee relating to–
(i)
uniformity of policies as to sentences;
(ii)
amendments to this chapter; and
(iii)
any other matter the committee considers appropriate.
(d)
QUALIFICATION AND TERMS OF APPOINTED MEMBERS. Each member of the committee
appointed by the Secretary of Defense under subsection (B)(3) shall be a
recognized authority in military justice or criminal law. Each such member shall
be appointed for a term of three years.
(e)
APPLICABILITY OF FEDERAL ADVISORY COMMITTEE ACT. The Federal Advisory Committee
Act (5 U.S.C. App I) shall not apply to the committee.