CHAPTER 47 - UNIFORM CODE OF MILITARY JUSTICE

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§ 801 Article 1. Definitions

In this chapter (the Uniform Code of Military Justice): The term “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, an official designated to serve as Judge Advocate General of the Coast Guard by the Secretary of Homeland Security. The Navy, the Marine Corps, and the Coast Guard when it is operating as a service in the Navy, shall be considered as one armed force. The term “commanding officer” includes only commissioned officers. The term “officer in charge” means a member of the Navy, the Marine Corps, or the Coast Guard designated as such by appropriate authority. The term “superior commissioned officer” means a commissioned officer superior in rank or command. The term “cadet” means a cadet of the United States Military Academy, the United States Air Force Academy, or the United States Coast Guard Academy. The term “midshipman” means a midshipman of the United States Naval Academy and any other midshipman on active duty in the naval service. The term “military” refers to any or all of the armed forces. The term “accuser” means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than an official interest in the prosecution of the accused. The term “military judge” means a judge advocate designated under section 826(c) of this title (article 26(c)) who is detailed under section 826(a) or section 830a of this title (article 26(a) or 30a). The term “military magistrate” means a commissioned officer certified for duty as a military magistrate in accordance with section 826a of this title (article 26a). The term “legal officer” means any commissioned officer of the Navy, Marine Corps, or Coast Guard designated to perform legal duties for a command. The term “judge advocate” means— an officer of the Judge Advocate General’s Corps of the Army, the Navy, or the Air Force; an officer of the Marine Corps who is designated as a judge advocate; or a commissioned officer of the Coast Guard designated for special duty (law). The term “record”, when used in connection with the proceedings of a court-martial, means— an official written transcript, written summary, or other writing relating to the proceedings; or an official audiotape, videotape, or similar material from which sound, or sound and visual images, depicting the proceedings may be reproduced. The term “classified information” means (A) any information or material that has been determined by an official of the United States pursuant to law, an Executive order, or regulation to require protection against unauthorized disclosure for reasons of national security, and (B) any restricted data, as defined in section 11(y) of the Atomic Energy Act of 1954 ( 42 U.S.C. 2014(y) ). The term “national security” means the national defense and foreign relations of the United States. The term “covered offense” means— an offense under section 917a (article 117a), section 918 (article 118), section 919 (article 119), section 919a (article 119a), section 920 (article 120), section 920a (article 120a), section 920b (article 120b), section 920c (article 120c), section 925 (article 125), section 928b (article 128b), section 930 (article 130), section 932 (article 132), the standalone offense of child pornography punishable under section 934 (article 134), or the standalone offense of sexual harassment punishable under section 934 (article 134) of this title in each instance in which a formal complaint is made and such formal complaint is substantiated in accordance with regulations prescribed by the Secretary concerned; a conspiracy to commit an offense specified in subparagraph (A) as punishable under section 881 of this title (article 81); a solicitation to commit an offense specified in subparagraph (A) as punishable under section 882 of this title (article 82); or an attempt to commit an offense specified in subparagraph (A), (B), or (C) as punishable under section 880 of this title (article 80). The term “special trial counsel” means a judge advocate detailed as a special trial counsel in accordance with section 824a of this title (article 24a) and includes a judge advocate appointed as a lead special trial counsel pursuant to section 1044f(a)(2) of this title . ( Aug. 10, 1956, ch. 1041 , 70A Stat. 36 ; Pub. L. 89–670, § 10(g) , Oct. 15, 1966 , 80 Stat. 948 ; Pub. L. 90–179, § 1(1) , (2), Dec. 8, 1967 , 81 Stat. 545 ; Pub. L. 90–632, § 2(1) , Oct. 24, 1968 , 82 Stat. 1335 ; Pub. L. 98–209 , §§ 2(a), 6(a), Dec. 6, 1983 , 97 Stat. 1393 , 1400; Pub. L. 100–180, div. A, title XII, § 1231(17) , Dec. 4, 1987 , 101 Stat. 1161 ; Pub. L. 100–456, div. A, title XII, § 1233(f)(1) , Sept. 29, 1988 , 102 Stat. 2057 ; Pub. L. 104–106, div. A, title XI, § 1141(b) , Feb. 10, 1996 , 110 Stat. 467 ; Pub. L. 107–296, title XVII, § 1704(b)(2) , Nov. 25, 2002 , 116 Stat. 2314 ; Pub. L. 109–241, title II, § 218(a) , July 11, 2006 , 120 Stat. 526 ; Pub. L. 114–328, div. E, title LI, § 5101 , Dec. 23, 2016 , 130 Stat. 2894 ; Pub. L. 115–91, div. A, title X, § 1081(a)(21) , (c)(1)(A), Dec. 12, 2017 , 131 Stat. 1595 , 1597; Pub. L. 117–81, div. A, title V, § 533 , Dec. 27, 2021 , 135 Stat. 1695 ; Pub. L. 117–263, div. A, title V, § 541(a)(1) , (b)(1), Dec. 23, 2022 , 136 Stat. 2579 , 2580.)

“SEC. 1021 AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

(“(a) In General.— Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force ( Public Law 107–40 ; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(“(b) Covered Persons.— A covered person under this section is any person as follows: A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 , or harbored those responsible for those attacks. A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(“(c) Disposition Under Law of War.— The disposition of a person under the law of war as described in subsection (a) may include the following: Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force. Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111–84 )). Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction. Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

(“(d) Construction.— Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

(“(e) Authorities.— Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

(“(f) Requirement for Briefings of Congress.— The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be ‘covered persons’ for purposes of subsection (b)(2).

“SEC. 1022 MILITARY CUSTODY FOR FOREIGN AL-QAEDA TERRORISTS.

(“(a) Custody Pending Disposition Under Law of War.— Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force ( Public Law 107–40 ) in military custody pending disposition under the law of war. The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1021 who is determined— to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners. For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section 1021(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1028. The President may waive the requirement of paragraph (1) if the President submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.

(“(b) Applicability to United States Citizens and Lawful Resident Aliens.— The requirement to detain a person in military custody under this section does not extend to citizens of the United States. The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.

(“(c) Implementation Procedures.— Not later than 60 days after the date of the enactment of this Act [ Dec. 31, 2011 ], the President shall issue, and submit to Congress, procedures for implementing this section. The procedures for implementing this section shall include, but not be limited to, procedures as follows: Procedures designating the persons authorized to make determinations under subsection (a)(2) and the process by which such determinations are to be made. Procedures providing that the requirement for military custody under subsection (a)(1) does not require the interruption of ongoing surveillance or intelligence gathering with regard to persons not already in the custody or control of the United States. Procedures providing that a determination under subsection (a)(2) is not required to be implemented until after the conclusion of an interrogation which is ongoing at the time the determination is made and does not require the interruption of any such ongoing interrogation. Procedures providing that the requirement for military custody under subsection (a)(1) does not apply when intelligence, law enforcement, or other Government officials of the United States are granted access to an individual who remains in the custody of a third country. Procedures providing that a certification of national security interests under subsection (a)(4) may be granted for the purpose of transferring a covered person from a third country if such a transfer is in the interest of the United States and could not otherwise be accomplished.

(“(d) Authorities.— Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody.

(“(e) Effective Date.— This section shall take effect on the date that is 60 days after the date of the enactment of this Act, and shall apply with respect to persons described in subsection (a)(2) who are taken into the custody or brought under the control of the United States on or after that effective date.

“SEC. 1023 PROCEDURES FOR PERIODIC DETENTION REVIEW OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

(“(a) Procedures Required.— Not later than 180 days after the date of the enactment of this Act [ Dec. 31, 2011 ], the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth procedures for implementing the periodic review process required by Executive Order No. 13567 [set out below] for individuals detained at United States Naval Station, Guantanamo Bay, Cuba, pursuant to the Authorization for Use of Military Force ( Public Law 107–40 ; 50 U.S.C. 1541 note).

(“(b) Covered Matters.— The procedures submitted under subsection (a) shall, at a minimum— clarify that the purpose of the periodic review process is not to determine the legality of any detainee’s law of war detention, but to make discretionary determinations whether or not a detainee represents a continuing threat to the security of the United States; clarify that the Secretary of Defense is responsible for any final decision to release or transfer an individual detained in military custody at United States Naval Station, Guantanamo Bay, Cuba, pursuant to the Executive Order referred to in subsection (a), and that in making such a final decision, the Secretary shall consider the recommendation of a periodic review board or review committee established pursuant to such Executive Order, but shall not be bound by any such recommendation; clarify that the periodic review process applies to any individual who is detained as an unprivileged enemy belligerent at United States Naval Station, Guantanamo Bay, Cuba, at any time; and ensure that appropriate consideration is given to factors addressing the need for continued detention of the detainee, including— the likelihood the detainee will resume terrorist activity if transferred or released; the likelihood the detainee will reestablish ties with al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners if transferred or released; the likelihood of family, tribal, or government rehabilitation or support for the detainee if transferred or released; the likelihood the detainee may be subject to trial by military commission; and any law enforcement interest in the detainee.

(“(c) Appropriate Committees of Congress Defined.— In this section, the term ‘appropriate committees of Congress’ means— the Committee on Armed Services and the Select Committee on Intelligence of the Senate; and the Committee on Armed Services and the Permanent Select Committee on Intelligence of the House of Representatives.

“SEC. 1024 PROCEDURES FOR STATUS DETERMINATIONS.

(“(a) In General.— Not later than 90 days after the date of the enactment of this Act [ Dec. 31, 2011 ], the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth the procedures for determining the status of persons detained pursuant to the Authorization for Use of Military Force ( Public Law 107–40 ; 50 U.S.C. 1541 note) for purposes of section 1021.

(“(b) Elements of Procedures.— The procedures required by this section shall provide for the following in the case of any unprivileged enemy belligerent who will be held in long-term detention under the law of war pursuant to the Authorization for Use of Military Force: A military judge shall preside at proceedings for the determination of status of an unprivileged enemy belligerent. An unprivileged enemy belligerent may, at the election of the belligerent, be represented by military counsel at proceedings for the determination of status of the belligerent.

(“(c) Applicability.— The Secretary of Defense is not required to apply the procedures required by this section in the case of a person for whom habeas corpus review is available in a Federal court.

(“(d) Report on Modification of Procedures.— The Secretary of Defense shall submit to the appropriate committees of Congress a report on any modification of the procedures submitted under this section. The report on any such modification shall be so submitted not later than 60 days before the date on which such modification goes into effect.

(“(e) Appropriate Committees of Congress Defined.— In this section, the term ‘appropriate committees of Congress’ means— the Committee on Armed Services and the Select Committee on Intelligence of the Senate; and the Committee on Armed Services and the Permanent Select Committee on Intelligence of the House of Representatives.

“SEC. 1025 REQUIREMENT FOR NATIONAL SECURITY PROTOCOLS GOVERNING DETAINEE COMMUNICATIONS.

(“(a) In General.— Not later than 180 days after the date of the enactment of this Act [ Dec. 31, 2011 ], the Secretary of Defense shall develop and submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a national security protocol governing communications to and from individuals detained at United States Naval Station, Guantanamo Bay, Cuba, pursuant to the Authorization for Use of Military Force ( Public Law 107–40 ; 50 U.S.C. 1541 note), and related issues.

(“(b) Contents.— The protocol developed pursuant to subsection (a) shall include Department of Defense policies and procedures regarding each of the following: Detainee access to military or civilian legal representation, or both, including any limitations on such access and the manner in which any applicable legal privileges will be balanced with national security considerations. Detainee communications with persons other than Federal Government personnel and members of the Armed Forces, including meetings, mail, phone calls, and video teleconferences, including— any limitations on categories of information that may be discussed or materials that may be shared; and the process by which such communications or materials are to be monitored or reviewed. The extent to which detainees may receive visits by persons other than military or civilian representatives. The measures planned to be taken to implement and enforce the provisions of the protocol.

(“(c) Updates.— The Secretary of Defense shall notify the congressional defense committees of any significant change to the policies and procedures described in the protocol submitted pursuant to subsection (a) not later than 30 days after such change is made.

(“(d) Form of Protocol.— The protocol submitted pursuant to subsection (a) may be submitted in classified form.

“[SEC. 1028

Repealed. Pub. L. 113–66, div. A, title X, § 1035(f)(1) , Dec. 26, 2013 , 127 Stat. 853 .]

“SEC. 1029 REQUIREMENT FOR CONSULTATION REGARDING PROSECUTION OF TERRORISTS.

(“(a) In General.— Before seeking an indictment of, or otherwise charging, an individual described in subsection (b) in a Federal court, the Attorney General shall consult with the Director of National Intelligence and the Secretary of Defense about— whether the more appropriate forum for prosecution would be a Federal court or a military commission; and whether the individual should be held in civilian custody or military custody pending prosecution.

(“(b) Applicability.— The consultation requirement in subsection (a) applies to— a person who is subject to the requirements of section 1022, in accordance with a determination made pursuant to subsection (a)(2) of such section; and any other person who is held in military detention outside of the United States pursuant to the authority affirmed by section 1021.”

“SEC. 1402 UNIFORM STANDARDS FOR THE INTERROGATION OF PERSONS UNDER THE DETENTION OF THE DEPARTMENT OF DEFENSE.

(“(a) In General.— No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.

(“(b) Applicability.— Subsection (a) shall not apply with respect to any person in the custody or under the effective control of the Department of Defense pursuant to a criminal law or immigration law of the United States.

(“(c) Construction.— Nothing in this section shall be construed to affect the rights under the United States Constitution of any person in the custody or under the physical jurisdiction of the United States.

“SEC. 1405 PROCEDURES FOR STATUS REVIEW OF DETAINEES OUTSIDE THE UNITED STATES.

(“(a) Submittal of Procedures for Status Review of Detainees at Guantanamo Bay, Cuba, and in Afghanistan and Iraq.— Not later than 180 days after the date of the enactment of this Act [ Jan. 6, 2006 ], the Secretary of Defense shall submit to the Committee on Armed Services and the Committee on the Judiciary of the Senate and the Committee on Armed Services and the Committee on the Judiciary of the House of Representatives a report setting forth— the procedures of the Combatant Status Review Tribunals and the Administrative Review Boards established by direction of the Secretary of Defense that are in operation at Guantanamo Bay, Cuba, for determining the status of the detainees held at Guantanamo Bay or to provide an annual review to determine the need to continue to detain an alien who is a detainee; and the procedures in operation in Afghanistan and Iraq for a determination of the status of aliens detained in the custody or under the physical control of the Department of Defense in those countries. The procedures submitted to Congress pursuant to paragraph (1)(A) shall ensure that the official of the Department of Defense who is designated by the President or Secretary of Defense to be the final review authority within the Department of Defense with respect to decisions of any such tribunal or board (referred to as the ‘Designated Civilian Official’) shall be a civilian officer of the Department of Defense holding an office to which appointments are required by law to be made by the President, by and with the advice and consent of the Senate. The procedures submitted under paragraph (1)(A) shall provide for periodic review of any new evidence that may become available relating to the enemy combatant status of a detainee.

(“(b) Consideration of Statements Derived With Coercion.— The procedures submitted to Congress pursuant to subsection (a)(1)(A) shall ensure that a Combatant Status Review Tribunal or Administrative Review Board, or any similar or successor administrative tribunal or board, in making a determination of status or disposition of any detainee under such procedures, shall, to the extent practicable, assess— whether any statement derived from or relating to such detainee was obtained as a result of coercion; and the probative value, if any, of any such statement. Paragraph (1) applies with respect to any proceeding beginning on or after the date of the enactment of this Act [ Jan. 6, 2006 ].

(“(c) Report on Modification of Procedures.— The Secretary of Defense shall submit to the committees specified in subsection (a)(1) a report on any modification of the procedures submitted under subsection (a). Any such report shall be submitted not later than 60 days before the date on which such modification goes into effect.

(“(d) Annual Report.— The Secretary of Defense shall submit to Congress an annual report on the annual review process for aliens in the custody of the Department of Defense outside the United States. Each such report shall be submitted in unclassified form, with a classified annex, if necessary. The report shall be submitted not later than December 31 each year. Each such report shall include the following with respect to the year covered by the report: The number of detainees whose status was reviewed. The procedures used at each location.

(“(e) Judicial Review of Detention of Enemy Combatants.— Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant. The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to claims brought by or on behalf of an alien— who is, at the time a request for review by such court is filed, detained by the Department of Defense at Guantanamo Bay, Cuba; and for whom a Combatant Status Review Tribunal has been conducted, pursuant to applicable procedures specified by the Secretary of Defense. The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of— whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor the Government’s evidence); and to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States. The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit with respect to the claims of an alien under this paragraph shall cease upon the release of such alien from the custody of the Department of Defense. Repealed. Pub. L. 111–84, div. A, title XVIII, § 1803(b)(2) , as added Pub. L. 111–383, div. A, title X, § 1075(d)(21) , Jan. 7, 2011 , 124 Stat. 4374 .] The Secretary of Defense shall be the named respondent in any appeal to the United States Court of Appeals for the District of Columbia Circuit under this subsection.

(“(f) Construction.— Nothing in this section shall be construed to confer any constitutional right on an alien detained as an enemy combatant outside the United States.

(“(g) United States Defined.— For purposes of this section, the term ‘United States’, when used in a geographic sense, is as defined in section 101(a)(38) of the Immigration and Nationality Act [ 8 U.S.C. 1101(a)(38) ] and, in particular, does not include the United States Naval Station, Guantanamo Bay, Cuba.

(“(h) Effective Date.— This section shall take effect on the date of the enactment of this Act [ Jan. 6, 2006 ]. Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.

“SEC. 1406 TRAINING OF IRAQI SECURITY FORCES REGARDING TREATMENT OF DETAINEES.

(“(a) Required Policies.— The Secretary of Defense shall prescribe policies designed to ensure that all military and civilian Department of Defense personnel or contractor personnel of the Department of Defense responsible for the training of any unit of the Iraqi Security Forces provide training to such units regarding the international obligations and laws applicable to the humane treatment of detainees, including protections afforded under the Geneva Conventions and the Convention Against Torture. The Secretary shall ensure that, for all personnel of the Iraqi Security Forces who are provided training referred to in paragraph (1), there is documented acknowledgment that such training has been provided. The policies required by paragraph (1) shall be prescribed not later than 180 days after the date of the enactment of this Act [ Jan. 6, 2006 ].

(“(b) Army Field Manual.— The Secretary of Defense shall provide for the unclassified portions of the United States Army Field Manual on Intelligence Interrogation to be translated into Arabic and any other language the Secretary determines appropriate for use by members of the Iraqi security forces. The Secretary of Defense shall provide for such manual, as translated, to be distributed to all appropriate officials of the Iraqi Government, including, but not limited to, the Iraqi Minister of Defense, the Iraqi Minister of Interior, senior Iraqi military personnel, and appropriate members of the Iraqi Security Forces with a recommendation that the principles that underlay the manual be adopted by the Iraqis as the basis for their policies on interrogation of detainees.

(“(c) Transmittal to Congressional Committees.— Not less than 30 days after the date on which policies are first prescribed under subsection (a), the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives copies of such regulations, policies, or orders, together with a report on steps taken to the date of the report to implement this section.

(“(d) Annual Report.— Not less than one year after the date of the enactment of this Act [ Jan. 6, 2006 ], and annually thereafter, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report on the implementation of this section.”

“SEC. 1002 UNIFORM STANDARDS FOR THE INTERROGATION OF PERSONS UNDER THE DETENTION OF THE DEPARTMENT OF DEFENSE.

“SEC. 1005 PROCEDURES FOR STATUS REVIEW OF DETAINEES OUTSIDE THE UNITED STATES.

(“(a) Submittal of Procedures for Status Review of Detainees at Guantanamo Bay, Cuba, and in Afghanistan and Iraq.— Not later than 180 days after the date of the enactment of this Act [ Dec. 30, 2005 ], the Secretary of Defense shall submit to the Committee on Armed Services and the Committee on the Judiciary of the Senate and the Committee on Armed Services and the Committee on the Judiciary of the House of Representatives a report setting forth— the procedures of the Combatant Status Review Tribunals and the Administrative Review Boards established by direction of the Secretary of Defense that are in operation at Guantanamo Bay, Cuba, for determining the status of the detainees held at Guantanamo Bay or to provide an annual review to determine the need to continue to detain an alien who is a detainee; and the procedures in operation in Afghanistan and Iraq for a determination of the status of aliens detained in the custody or under the physical control of the Department of Defense in those countries. The procedures submitted to Congress pursuant to paragraph (1)(A) shall ensure that the official of the Department of Defense who is designated by the President or Secretary of Defense to be the final review authority within the Department of Defense with respect to decisions of any such tribunal or board (referred to as the ‘Designated Civilian Official’) shall be a civilian officer of the Department of Defense holding an office to which appointments are required by law to be made by the President, by and with the advice and consent of the Senate. The procedures submitted under paragraph (1)(A) shall provide for periodic review of any new evidence that may become available relating to the enemy combatant status of a detainee.

(“(b) Consideration of Statements Derived With Coercion.— The procedures submitted to Congress pursuant to subsection (a)(1)(A) shall ensure that a Combatant Status Review Tribunal or Administrative Review Board, or any similar or successor administrative tribunal or board, in making a determination of status or disposition of any detainee under such procedures, shall, to the extent practicable, assess— whether any statement derived from or relating to such detainee was obtained as a result of coercion; and the probative value (if any) of any such statement. Paragraph (1) applies with respect to any proceeding beginning on or after the date of the enactment of this Act [ Dec. 30, 2005 ].

(“(e) Judicial Review of Detention of Enemy Combatants.— Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant. The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to claims brought by or on behalf of an alien— who is, at the time a request for review by such court is filed, detained by the United States; and for whom a Combatant Status Review Tribunal has been conducted, pursuant to applicable procedures specified by the Secretary of Defense. The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of— whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government’s evidence); and to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States. The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit with respect to the claims of an alien under this paragraph shall cease upon the release of such alien from the custody of the Department of Defense. Repealed. Pub. L. 111–84, div. A, title XVIII, § 1803(b)(1) , formerly § 1803(b), Oct. 28, 2009 , 123 Stat. 2612 , as renumbered § 1803(b)(1) by Pub. L. 111–383, div. A, title X, § 1075(d)(21) , Jan. 7, 2011 , 124 Stat. 4374 .] The Secretary of Defense shall be the named respondent in any appeal to the United States Court of Appeals for the District of Columbia Circuit under this subsection.

(“(f) Construction.— Nothing in this section shall be construed to confer any constitutional right on an alien detained as an enemy combatant outside the United States.

(“(h) Effective Date.— This section shall take effect on the date of the enactment of this Act [ Dec. 30, 2005 ]. Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.

“SEC. 1006 TRAINING OF IRAQI FORCES REGARDING TREATMENT OF DETAINEES.

(“(a) Required Policies.— The Secretary of Defense shall ensure that policies are prescribed regarding procedures for military and civilian personnel of the Department of Defense and contractor personnel of the Department of Defense in Iraq that are intended to ensure that members of the Armed Forces, and all persons acting on behalf of the Armed Forces or within facilities of the Armed Forces, ensure that all personnel of Iraqi military forces who are trained by Department of Defense personnel and contractor personnel of the Department of Defense receive training regarding the international obligations and laws applicable to the humane detention of detainees, including protections afforded under the Geneva Conventions and the Convention Against Torture. The Secretary shall ensure that, for all personnel of the Iraqi Security Forces who are provided training referred to in paragraph (1), there is documented acknowledgment of such training having been provided. The policies required by paragraph (1) shall be prescribed not later than 180 days after the date of the enactment of this Act [ Dec. 30, 2005 ].

(“(b) Army Field Manual.— The Secretary of Defense shall provide for the United States Army Field Manual on Intelligence Interrogation to be translated into arabic [sic] and any other language the Secretary determines appropriate for use by members of the Iraqi military forces. The Secretary of Defense shall provide for such manual, as translated, to be provided to each unit of the Iraqi military forces trained by Department of Defense personnel or contractor personnel of the Department of Defense.

(“(c) Transmittal of Regulations.— Not less than 30 days after the date on which regulations, policies, and orders are first prescribed under subsection (a), the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives copies of such regulations, policies, or orders, together with a report on steps taken to the date of the report to implement this section.

(“(d) Annual Report.— Not less than one year after the date of the enactment of this Act [ Dec. 30, 2005 ], and annually thereafter, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report on the implementation of this section.”

“SEC. 1091 SENSE OF CONGRESS AND POLICY CONCERNING PERSONS DETAINED BY THE UNITED STATES.

(“(a) Sense of Congress.— It is the sense of Congress that— the abuses inflicted upon detainees at the Abu Ghraib prison in Baghdad, Iraq, are inconsistent with the professionalism, dedication, standards, and training required of individuals who serve in the United States Armed Forces; the vast majority of members of the Armed Forces have upheld the highest possible standards of professionalism and morality in the face of illegal tactics and terrorist attacks and attempts on their lives; the abuse of persons in United States custody in Iraq is appropriately condemned and deplored by the American people; the Armed Forces are moving swiftly and decisively to identify, try, and, if found guilty, punish persons who perpetrated such abuse; the Department of Defense and appropriate military authorities must continue to undertake corrective action, as appropriate, to address chain-of-command deficiencies and the systemic deficiencies identified in the incidents in question; the Constitution, laws, and treaties of the United States and the applicable guidance and regulations of the United States Government prohibit the torture or cruel, inhuman, or degrading treatment of foreign prisoners held in custody by the United States; the alleged crimes of a handful of individuals should not detract from the commendable sacrifices of over 300,000 members of the Armed Forces who have served, or who are serving, in Operation Iraqi Freedom; and no detainee shall be subject to torture or cruel, inhuman, or degrading treatment or punishment that is prohibited by the Constitution, laws, or treaties of United States.

(“(b) Policy.— It is the policy of the United States to— ensure that no detainee shall be subject to torture or cruel, inhuman, or degrading treatment or punishment that is prohibited by the Constitution, laws, or treaties of the United States; investigate and prosecute, as appropriate, all alleged instances of unlawful treatment of detainees in a manner consistent with the international obligations, laws, or policies of the United States; ensure that all personnel of the United States Government understand their obligations in both wartime and peacetime to comply with the legal prohibitions against torture, cruel, inhuman, or degrading treatment of detainees in the custody of the United States; ensure that, in a case in which there is doubt as to whether a detainee is entitled to prisoner of war status under the Geneva Conventions, such detainee receives the protections accorded to prisoners of war until the detainee’s status is determined by a competent tribunal; and expeditiously process and, if appropriate, prosecute detainees in the custody of the United States, including those in the custody of the United States Armed Forces at Guantanamo Bay, Cuba.

(“(c) Detainees.— For purposes of this section, the term ‘detainee’ means a person in the custody or under the physical control of the United States as a result of armed conflict.

“SEC. 1092 ACTIONS TO PREVENT THE ABUSE OF DETAINEES.

(“(a) Policies Required.— The Secretary of Defense shall ensure that policies are prescribed not later than 150 days after the date of the enactment of this Act [ Oct. 28, 2004 ] regarding procedures for Department of Defense personnel and contractor personnel of the Department of Defense intended to ensure that members of the Armed Forces, and all persons acting on behalf of the Armed Forces or within facilities of the Armed Forces, treat persons detained by the United States Government in a humane manner consistent with the international obligations and laws of the United States and the policies set forth in section 1091(b).

(“(b) Matters to Be Included.— In order to achieve the objective stated in subsection (a), the policies under that subsection shall specify, at a minimum, procedures for the following: Ensuring that each commander of a Department of Defense detention facility or interrogation facility— provides all assigned personnel with training, and documented acknowledgment of receiving training, regarding the law of war, including the Geneva Conventions; and establishes standard operating procedures for the treatment of detainees. Ensuring that each Department of Defense contract in which contract personnel in the course of their duties interact with individuals detained by the Department of Defense on behalf of the United States Government include a requirement that such contract personnel have received training, and documented acknowledgment of receiving training, regarding the international obligations and laws of the United States applicable to the detention of personnel. Providing all detainees with information, in their own language, of the applicable protections afforded under the Geneva Conventions. Conducting periodic unannounced and announced inspections of detention facilities in order to provide continued oversight of interrogation and detention operations. Ensuring that, to the maximum extent practicable, detainees and detention facility personnel of a different gender are not alone together.

(“(c) Secretary of Defense Certification.— The Secretary of Defense shall certify that all Federal employees and civilian contractors engaged in the handling or interrogation of individuals detained by the Department of Defense on behalf of the United States Government have fulfilled an annual training requirement on the law of war, the Geneva Conventions, and the obligations of the United States under international law.”

§ 802 Art. 2. Persons subject to this chapter

(a) The following persons are subject to this chapter: Members of a regular component of the armed forces, and members of the Space Force on active duty under section 20105 of this title , 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. Cadets, aviation cadets, and midshipmen. While on inactive-duty training and during any of the periods specified in subparagraph (B)— members of a reserve component or the Space Force; and members of the Army National Guard of the United States or the Air National Guard of the United States, but only when in Federal service. The periods referred to in subparagraph (A) are the following: Travel to and from the inactive-duty training site of the member, pursuant to orders or regulations. Intervals between consecutive periods of inactive-duty training on the same day, pursuant to orders or regulations. Intervals between inactive-duty training on consecutive days, pursuant to orders or regulations. Retired members of a regular component of the armed forces who are entitled to pay. Retired members of a reserve component, or retired members of the Space Force who qualified for a non-regular retirement and are receiving retired pay, who are receiving hospitalization from an armed force. Members of the Fleet Reserve and Fleet Marine Corps Reserve. Persons in custody of the armed forces serving a sentence imposed by a court-martial. Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces. Prisoners of war in custody of the armed forces. In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field. Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands. Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons within an area leased by or otherwise reserved or acquired for the use of the United States which is under the control of the Secretary concerned and which is outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands. Individuals belonging to one of the eight categories enumerated in Article 4 of the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316), who violate the law of war. Retired members of the Space Force who qualified for a regular retirement under section 20601 or 20603 of this title and are receiving retired pay.

(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 a 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— submitted voluntarily to military authority; met the mental competency and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority; received military pay or allowances; and 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) A member of a reserve component or the Space Force 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 involuntarily for the purpose of— a preliminary hearing under section 832 of this title (article 32); trial by court-martial; or nonjudicial punishment under section 815 of this title (article 15). A member of a reserve component or the Space Force may not be ordered to active duty under paragraph (1) except with respect to an offense committed while the member was— on active duty; or 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. Authority to order a member to active duty under paragraph (1) shall be exercised under regulations prescribed by the President. 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 or the Space Force. A member ordered to active duty under paragraph (1), unless the order to active duty was approved by the Secretary concerned, may not— be sentenced to confinement; or be required to serve a punishment consisting 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)).

(e) The provisions of this section are subject to section 876b(d)(2) of this title (article 76b(d)(2)).

§ 803 Art. 3. Jurisdiction to try certain personnel

(a) Subject to section 843 of this title (article 43), a person who is in a status in which the person is subject to this chapter and who committed an offense against this chapter while formerly in a status in which the person was subject to this chapter is not relieved from amenability to the jurisdiction of this chapter for that offense by reason of a termination of that person’s former 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 this chapter while in the custody of the armed forces for that trial. Upon conviction of that charge he is subject to trial by court-martial for all offenses under this chapter committed before the fraudulent discharge.

(c) No person who has deserted from the armed forces may be relieved from amenability to the jurisdiction of this chapter by virtue of a separation from any later period of service.

(d) A member of a reserve component or the Space Force 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 presentation of an application for trial under this article, the Secretary concerned shall substitute for the dismissal ordered 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. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 39 .)

§ 806 Art. 6. Judge advocates and legal officers

(a) A member of the armed forces may only serve as a judge advocate if such member— is admitted to the practice of law before the highest court of a State, territory, commonwealth, or the District of Columbia; maintains a license status that provides current eligibility to actively practice law before such court; is subject to the disciplinary review process of the jurisdiction in which such member maintains such a license status; and is in compliance with any other requirements of such jurisdiction to remain eligible to practice law in such jurisdiction. The Judge Advocates General of the Army, Navy, Air Force, and Coast Guard and the Staff Judge Advocate to the Commandant of the Marine Corps may suspend the authority of a judge advocate of the Army, Navy, Air Force, Coast Guard, or Marine Corps, respectively, to perform legal duties if such judge advocate becomes noncompliant with the requirements of paragraph (1). A member of the armed forces who is suspended or disbarred from the practice of law within a jurisdiction may not perform legal duties.

(b) 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 advocates of the Marine Corps shall be made by direction of the Commandant of the Marine Corps. The Judge Advocates General, and within the Marine Corps the Staff Judge Advocate to the Commandant of the Marine Corps, or senior members of their staffs, shall make frequent inspections in the field in supervision of the administration of military justice. The assignment for duty of judge advocates pursuant to this subsection shall include qualified judge advocates in numbers sufficient to provide legal advice to all commanders responsible for planning and organizing military operations (including commanders of and within commands assigned to a combatant command or the United States element of the North American Aerospace Defense Command as established pursuant to sections 161 and 162 of this title) and all commanders authorized to convene courts-martial under sections 822 through 824 of this title (articles 22 through 24). The qualifications of judge advocates assigned to provide legal advice to commanders under this paragraph shall include— the qualifications set forth in subsection (a)(1); and any additional education, expertise, or experience determined to be necessary to fulfill the requirements of this paragraph by the Judge Advocate General of the armed force concerned, or in the case of the Marine Corps, by the Staff Judge Advocate to the Commandant of the Marine Corps.

(c) 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 any command is entitled to communicate directly with the staff judge advocate or legal officer of a superior or subordinate command, or with the Judge Advocate General.

(d) No person who, with respect to a case, serves in a capacity specified in paragraph (2) may later serve as a staff judge advocate or legal officer to any reviewing or convening authority upon the same case. The capacities referred to in paragraph (1) are, with respect to the case involved, any of the following: Preliminary hearing officer, court member, military judge, military magistrate, or appellate judge. Counsel who have acted in the same case or appeared in any proceeding before a military judge, military magistrate, preliminary hearing officer, or appellate court.

(e) 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. The Secretary of Defense, and the Secretary of Homeland Security with respect to the Coast Guard when it is 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 appellate judge, military judge, or military magistrate to perform the duties of the position involved. 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 Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives.

§ 806b Art. 6b. Rights of the victim of an offense under this chapter

(a) Rights of a Victim of an Offense Under This Chapter.— A victim of an offense under this chapter has the following rights: The right to be reasonably protected from the accused. The right to reasonable, accurate, and timely notice of any of the following: A public hearing concerning the continuation of confinement prior to trial of the accused. A preliminary hearing under section 832 of this title (article 32) relating to the offense. A court-martial relating to the offense. A post-trial motion, filing, or hearing that may address the finding or sentence of a court-martial with respect to the accused, unseal privileged or private information of the victim, or result in the release of the accused. A public proceeding of the service clemency and parole board relating to the offense. The release or escape of the accused, unless such notice may endanger the safety of any person. The right not to be excluded from any public hearing or proceeding described in paragraph (2) unless the military judge or preliminary hearing officer, as applicable, after receiving clear and convincing evidence, determines that testimony by the victim of an offense under this chapter would be materially altered if the victim heard other testimony at that hearing or proceeding. The right to be reasonably heard at any of the following: A public hearing concerning the continuation of confinement prior to trial of the accused. A sentencing hearing relating to the offense. A public proceeding of the service clemency and parole board relating to the offense. The reasonable right to confer with the counsel representing the Government at any proceeding described in paragraph (2). The right to receive restitution as provided in law. The right to proceedings free from unreasonable delay. The right to be informed in a timely manner of any plea agreement, separation-in-lieu-of-trial agreement, or non-prosecution agreement relating to the offense, unless providing such information would jeopardize a law enforcement proceeding or would violate the privacy concerns of an individual other than the accused. The right to be treated with fairness and with respect for the dignity and privacy of the victim of an offense under this chapter.

(b) Victim of an Offense Under This Chapter Defined.— In this section, the term “victim of an offense under this chapter” means an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under this chapter.

(c) Appointment of Individuals to Assume Rights for Certain Victims.— In the case of a victim of an offense under this chapter who is under 18 years of age (but who is not a member of the armed forces), incompetent, incapacitated, or deceased, the legal guardians of the victim or the representatives of the victim’s estate, family members, or any other person designated as suitable by the military judge, may assume the rights of the victim under this section. However, in no event may the individual so designated be the accused.

(d) Rule of Construction.— Nothing in this section (article) shall be construed— to authorize a cause of action for damages; to create, to enlarge, or to imply any duty or obligation to any victim of an offense under this chapter or other person for the breach of which the United States or any of its officers or employees could be held liable in damages; or to impair the exercise of discretion under sections 830 and 834 of this title (articles 30 and 34).

(e) Enforcement by Court of Criminal Appeals.— If the victim of an offense under this chapter believes that a preliminary hearing ruling under section 832 of this title (article 32) or a court-martial ruling violates the rights of the victim afforded by a section (article) or rule specified in paragraph (4), the victim may petition the Court of Criminal Appeals for a writ of mandamus to require the preliminary hearing officer or the court-martial to comply with the section (article) or rule. If the victim of an offense under this chapter is subject to an order to submit to a deposition, notwithstanding the availability of the victim to testify at the court-martial trying the accused for the offense, the victim may petition the Court of Criminal Appeals for a writ of mandamus to quash such order. A petition for a writ of mandamus described in this subsection shall be forwarded directly to the Court of Criminal Appeals, by such means as may be prescribed by the President, subject to section 830a of this title (article 30a). To the extent practicable, a petition for a writ of mandamus described in this subsection shall have priority over all other proceedings before the Court of Criminal Appeals. Review of any decision of the Court of Criminal Appeals on a petition for a writ of mandamus described in this subsection shall have priority in the Court of Appeals for the Armed Forces, as determined under the rules of the Court of Appeals for the Armed Forces. Paragraph (1) applies with respect to the protections afforded by the following: This section (article). Section 832 (article 32) of this title. Military Rule of Evidence 412, relating to the admission of evidence regarding a victim’s sexual background. Military Rule of Evidence 513, relating to the psychotherapist-patient privilege. Military Rule of Evidence 514, relating to the victim advocate-victim privilege. Military Rule of Evidence 615, relating to the exclusion of witnesses.

(f) Counsel for Accused Interview of Victim of Alleged Offense.— Upon notice by counsel for the Government to counsel for the accused of the name of an alleged victim of an offense under this chapter who counsel for the Government intends to call as a witness at a proceeding under this chapter, counsel for the accused shall make any request to interview the victim through the Special Victims’ Counsel or other counsel for the victim, if applicable. If requested by an alleged victim who is subject to a request for interview under paragraph (1), any interview of the victim by counsel for the accused shall take place only in the presence of the counsel for the Government, a counsel for the victim, or, if applicable, a victim advocate.

§ 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 and to apprehend 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, Commonwealth, possession, or the District of Columbia may summarily apprehend a deserter from the armed forces and deliver him into the custody of those forces. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 40 ; Pub. L. 109–163, div. A, title X, § 1057(a)(4) , Jan. 6, 2006 , 119 Stat. 3440 .)

§ 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 persons 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

(a) In General.— Subject to paragraph (2), any person subject to this chapter who is charged with an offense under this chapter may be ordered into arrest or confinement as the circumstances require. When a person subject to this chapter is charged only with an offense that is normally tried by summary court-martial, the person ordinarily shall not be ordered into confinement.

(b) Notification to Accused and Related Procedures.— When a person subject to this chapter is ordered into arrest or confinement before trial, immediate steps shall be taken— to inform the person of the specific offense of which the person is accused; and to try the person or to dismiss the charges and release the person. To facilitate compliance with paragraph (1), the President shall prescribe regulations setting forth procedures relating to referral for trial, including procedures for prompt forwarding of the charges and specifications and, if applicable, the preliminary hearing report submitted under section 832 of this title (article 32).

§ 811 Art. 11. Reports and receiving of prisoners

(a) No provost marshal, commander of 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. Prohibition of confinement of members of the armed forces with enemy prisoners and certain others

No member of the armed forces may be placed in confinement in immediate association with— enemy prisoners; or other individuals— who are detained under the law of war and are foreign nationals; and who are not members of the armed forces. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 41 ; Pub. L. 114–328, div. E, title LII, § 5122 , Dec. 23, 2016 , 130 Stat. 2896 .)

§ 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 require to insure his presence, but he may be subjected to minor punishment during that period for infractions of discipline. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 41 ; Pub. L. 97–81, § 3 , Nov. 20, 1981 , 95 Stat. 1087 .)

§ 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.

§ 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 hereunder. If 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— upon officers of his command— restriction to certain specified limits, with or without suspension from duty, for not more than 30 consecutive days; if imposed by an officer exercising general court-martial jurisdiction or an officer of general or flag rank in command— arrest in quarters for not more than 30 consecutive days; forfeiture of not more than one-half of one month’s pay per month for two months; restriction to certain specified limits, with or without suspension from duty, for not more than 60 consecutive days; detention of not more than one-half of one month’s pay per month for three months; upon other personnel of his command— if imposed upon a person attached to or embarked in a vessel, confinement for not more than three consecutive days; correctional custody for not more than seven consecutive days; forfeiture of not more than seven days’ pay; 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; extra duties, including fatigue or other duties, for not more than 14 consecutive days; restriction to certain specified limits, with or without suspension from duty, for not more than 14 consecutive days; detention of not more than 14 days’ pay; if imposed by an officer of the grade of major or lieutenant commander, or above— the punishment authorized under clause (A); correctional custody for not more than 30 consecutive days; forfeiture of not more than one-half of one month’s pay per month for two months; 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, but an enlisted member in a pay grade above E–4 may not be reduced more than two pay grades; extra duties, including fatigue or other duties, for not more than 45 consecutive days; restrictions to certain specified limits, with or without suspension from duty, for not more than 60 consecutive days; 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, correctional custody, extra duties, and restriction may be combined to run consecutively in the maximum amount imposable for each. Whenever any of those punishments are combined to run consecutively, there must be an apportionment. In addition, forfeiture of pay may not be combined with detention of pay without an apportionment. For the purposes 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 punishments 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 a 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— arrest in quarters to restriction; confinement to correctional custody; correctional custody or confinement to extra duties or restriction, or both; or 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 the 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 the proper channel, 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 the punishment imposed as may be exercised under subsection (d) by the officer who imposed the punishment. Before acting on an appeal from a punishment of— arrest in quarters for more than seven days; correctional custody for more than seven days; forfeiture of more than seven days’ pay; reduction of one or more pay grades from the fourth or a higher pay grade; extra duties for more than 14 days; restriction for more than 14 days; or 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 Homeland Security 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 accused 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 of proceedings under this article and may also prescribe that certain categories of those proceedings shall be in writing.

§ 816 Art. 16. Courts-martial classified

(a) In General.— The three kinds of courts-martial in each of the armed forces are the following: General courts-martial, as described in subsection (b). Special courts-martial, as described in subsection (c). Summary courts-martial, as described in subsection (d).

(b) General Courts-martial.— General courts-martial are of the following three types: A general court-martial consisting of a military judge and eight members, subject to sections 825(e)(3) and 829 of this title (articles 25(e)(3) and 29). In a capital case, a general court-martial consisting of a military judge and the number of members determined under section 825a of this title (article 25a), subject to sections 825(e)(3) and 829 of this title (articles 25(e)(3) and 29). A general court-martial consisting of a military judge alone, 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 of a military judge alone and the military judge approves the request.

(c) Special Courts-martial.— Special courts-martial are of the following two types: A special court-martial consisting of a military judge and four members, subject to sections 825(e)(3) and 829 of this title (articles 25(e)(3) and 29). A special court-martial consisting of a military judge alone— if the case is so referred, subject to section 819 of this title (article 19) and such limitations as the President may prescribe by regulation; or if the case is referred under paragraph (1) and, 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 of a military judge alone and the military judge approves the request.

(d) Summary Court-martial.— A summary court-martial consists 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

(a) 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.

(b) A general court-martial of the kind specified in section 816(b)(3) of this title (article 16(b)(3)) 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 a noncapital case.

(c) Consistent with sections 819 and 820 of this title (articles 19 and 20), only general courts-martial have jurisdiction over the following offenses: A violation of subsection (a) or (b) of section 920 of this title (article 120). A violation of subsection (a) or (b) of section 920b of this title (article 120b). An attempt to commit an offense specified in paragraph (1) or (2) that is punishable under section 880 of this title (article 80).

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

(a) In General.— 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 one year, 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 one year.

(b) Additional Limitation.— Neither a bad-conduct discharge, nor confinement for more than six months, nor forfeiture of pay for more than six months may be adjudged if charges and specifications are referred to a special court-martial consisting of a military judge alone under section 816(c)(2)(A) of this title (article 16(c)(2)(A)).

(c) Military Magistrate.— If charges and specifications are referred to a special court-martial consisting of a military judge alone under section 816(c)(2)(A) of this title (article 16(c)(2)(A)), the military judge, with the consent of the parties, may designate a military magistrate to preside over the special court-martial.

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

(a) In General.— 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 midshipmen, 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, restriction to specified limits for more than two months, or forfeiture of more than two-thirds of one month’s pay.

(b) Non-criminal Forum.— A summary court-martial is a non-criminal forum. A finding of guilty at a summary court-martial does not constitute a criminal conviction.

§ 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. This section does not apply to a military commission established under chapter 47A of this title. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 44 ; Pub. L. 109–366, § 4(a)(2) , Oct. 17, 2006 , 120 Stat. 2631 .)

§ 822 Art. 22. Who may convene general courts-martial

(a) General courts-martial may be convened by— the President of the United States; the Secretary of Defense; the commanding officer of a unified or specified combatant command; the Secretary concerned; the commanding officer of an Army Group, an Army, an Army Corps, a division, a separate brigade, or a corresponding unit of the Army or Marine Corps; the commander of a fleet; the commanding officer of a naval station or larger shore activity of the Navy beyond the United States; the commanding officer of an air command, an air force, an air division, or a separate wing of the Air Force or Marine Corps, or the commanding officer of a corresponding unit of the Space Force; any other commanding officer designated by the Secretary concerned; or 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. A commanding officer shall not be considered an accuser solely due to the role of the commanding officer in convening a general court-martial to which charges and specifications were referred by a special trial counsel in accordance with this chapter.

§ 823 Art. 23. Who may convene special courts-martial

(a) Special courts-martial may be convened by— any person who may convene a general court-martial; the commanding officer of a district, garrison, fort, camp, station, Air Force or Space Force military installation, auxiliary air field, or other place where members of the Army, the Air Force, or the Space Force are on duty; the commanding officer of a brigade, regiment, detached battalion, or corresponding unit of the Army; the commanding officer of a wing, group, or separate squadron of the Air Force or a corresponding unit of the Space Force; 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; 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 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. A commanding officer shall not be considered an accuser solely due to the role of the commanding officer in convening a special court-martial to which charges and specifications were referred by a special trial counsel in accordance with this chapter.

§ 824 Art. 24. Who may convene summary courts-martial

(a) Summary courts-martial may be convened by— any person who may convene a general or special court-martial; the commanding officer of a detached company, or other detachment of the Army; the commanding officer of a detached squadron or other detachment of the Air Force or a corresponding unit of the Space Force; or 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.

§ 824a Art. 24a. Special trial counsel

(a) Detail of Special Trial Counsel.— Each Secretary concerned shall promulgate regulations for the detail of commissioned officers to serve as special trial counsel.

(b) Qualifications.— A special trial counsel shall be a commissioned officer who— is a judge advocate who is qualified under section 806(a)(1) of this title (article 6(a)(1)); and is certified to be qualified, by reason of education, training, experience, and temperament, for duty as a special trial counsel by— the Judge Advocate General of the armed force of which the officer is a member; or in the case of the Marine Corps, the Staff Judge Advocate to the Commandant of the Marine Corps; and in the case of a lead special trial counsel appointed pursuant to section 1044f(a)(2) of this title , is in a grade no lower than O–7.

(c) Duties and Authorities.— Special trial counsel shall carry out the duties described in this chapter and any other duties prescribed by the Secretary concerned, by regulation. A special trial counsel shall have exclusive authority to determine if a reported offense is a covered offense and shall exercise authority over any such offense in accordance with this chapter. Any determination to prefer or refer charges shall not act to disqualify the special trial counsel as an accuser. If a special trial counsel determines that a reported offense is a covered offense, the special trial counsel may also exercise authority over any offense that the special trial counsel determines to be related to the covered offense and any other offense alleged to have been committed by a person alleged to have committed the covered offense. Subject to paragraph (5), with respect to charges and specifications alleging any offense over which a special trial counsel exercises authority, a special trial counsel shall have exclusive authority to, in accordance with this chapter— on behalf of the Government, withdraw or dismiss the charges and specifications or make a motion to withdraw or dismiss the charges and specifications; refer the charges and specifications for trial by a special or general court-martial; enter into a plea agreement; and determine if an authorized rehearing is impracticable. The determination of a special trial counsel to refer charges and specifications to a court-martial for trial shall be binding on any applicable convening authority for the referral of such charges and specifications. If a special trial counsel exercises authority over an offense and elects not to prefer charges and specifications for such offense or, with respect to charges and specifications for such offense preferred by a person other than a special trial counsel, elects not to refer such charges and specifications, a commander or convening authority may exercise any of the authorities of such commander or convening authority under this chapter with respect to such offense, except that such commander or convening authority may not refer charges and specifications for a covered offense for trial by special or general court-martial.

(d) Special Trial Counsel Authority Over Certain Other Offenses.— A special trial counsel may, at the sole and exclusive discretion of the special trial counsel, exercise authority over the following offenses: An offense under section 917a (article 117a), 918 (article 118), section 919 (article 119), section 919a (article 119a), section 920 (article 120), section 920a (article 120a), section 920b (article 120b), section 920c (article 120c), section 928b (article 128b), or the standalone offense of child pornography punishable under section 934 (article 134) of this title that occurred on or before December 27, 2023 . An offense under section 925 (article 125), section 930 (article 130), or section 932 (article 132) of this title that occurred on or after January 1, 2019 , and before December 28, 2023 . An offense under section 920a (article 120a) of this title, an offense under section 925 (article 125) of this title alleging an act of nonconsensual sodomy, or the standalone offense of kidnapping punishable under section 934 (article 134) of this title that occurred before January 1, 2019 . A conspiracy to commit an offense specified in subparagraph (A), (B), or (C) as punishable under section 881 of this title (article 81). A solicitation to commit an offense specified in subparagraph (A), (B), or (C) as punishable under section 882 of this title (article 82). An attempt to commit an offense specified in subparagraph (A), (B), (C), (D), or (E) as punishable under section 880 of this title (article 80). After January 1, 2025 , a special trial counsel may, at the sole and exclusive discretion of the special trial counsel, exercise authority over the following offenses: The standalone offense of sexual harassment punishable under section 934 of this title (article 134) in each instance in which— the offense occurs after January 26, 2022 , and on or before January 1, 2025 ; and a formal complaint is substantiated in accordance with regulations prescribed by the Secretary concerned. A conspiracy to commit an offense specified in subparagraph (A) as punishable under section 881 of this title (article 81). A solicitation to commit an offense specified in subparagraph (A) as punishable under section 882 of this title (article 82). An attempt to commit an offense specified in subparagraph (A), (B), or (C) as punishable under section 880 of this title (article 80). If a special trial counsel exercises authority over an offense pursuant to paragraph (1) or (2), the offense over which the special trial counsel exercises authority shall be considered a covered offense for purposes of this chapter. If a special trial counsel exercises authority over an offense pursuant to subsection (c)(2)(A) or paragraph (1) or (2) of this subsection, the special trial counsel may exercise the authority of the special trial counsel under subparagraph (B) of subsection (c)(2) with respect to other offenses described in that subparagraph without regard to the date on which the other offenses occur.

§ 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) Any enlisted member on active duty is eligible to serve on a general or special court-martial for the trial of any other enlisted member. Before a court-martial with a military judge and members is assembled for trial, an enlisted member who is an accused may personally request, orally on the record or in writing, that— the membership of the court-martial be comprised entirely of officers; or enlisted members comprise at least one-third of the membership of the court-martial, regardless of whether enlisted members have been detailed to the court-martial. Except as provided in paragraph (4), after such a request, the accused may not be tried by a general or special court-martial if the membership of the court-martial is inconsistent with the request. If, because of physical conditions or military exigencies, a sufficient number of eligible officers or enlisted members, as the case may be, is not available to carry out paragraph (2), the trial may nevertheless be held. In that event, the convening authority shall make a detailed written statement of the reasons for nonavailability. The statement shall be appended to the record.

(d) Except as provided in paragraph (2) for capital offenses, the accused in a court-martial with a military judge and members shall be sentenced by the military judge. In a capital case, if the accused is convicted of an offense for which the court-martial may sentence the accused to death, the accused shall be sentenced in accordance with section 853(c) of this title (article 53(c)). In a capital case, if the accused is convicted of a non-capital offense, the accused shall be sentenced for such non-capital offense in accordance with section 853(b) of this title (article 53(b)), regardless of whether the accused is convicted of an offense for which the court-martial may sentence the accused to death.

(e) 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 the member being tried in rank or grade. When convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in the opinion of the convening authority, 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 the member is the accuser or a witness for the prosecution or has acted as preliminary hearing officer or as counsel in the same case. The convening authority shall detail not less than the number of members necessary to impanel the court-martial under section 829 of this title (article 29). When convening a court-martial, the convening authority shall detail as members thereof members of the armed forces under such regulations as the President may prescribe for the randomized selection of qualified personnel, to the maximum extent practicable.

(f) 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 the authority of the convening authority under this subsection to the staff judge advocate or legal officer of the convening authority or to any other principal assistant.

§ 825a Art. 25a. Number of court-martial members in capital cases

(a) In General.— In a case in which the accused may be sentenced to death, the number of members shall be 12.

(b) Case No Longer Capital.— Subject to section 829 of this title (article 29)— if a case is referred for trial as a capital case and, before the members are impaneled, the accused may no longer be sentenced to death, the number of members shall be eight; and if a case is referred for trial as a capital case and, after the members are impaneled, the accused may no longer be sentenced to death, the number of members shall remain 12.

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

(a) A military judge shall be detailed to each general and 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 to 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, by reason of education, training, experience, and judicial temperament, for duty as a military judge by the Judge Advocate General of the armed force of which such military judge is a member.

(c) In accordance with regulations prescribed under subsection (a), a military judge of a general or special court-martial shall be designated for detail by the Judge Advocate General of the armed force of which the military judge is a member. Neither the convening authority nor any member of the staff of the convening authority shall prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to the military judge’s 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 the officer is assigned and directly responsible to the Judge Advocate General 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 the officer’s primary duty as a military judge of a general court-martial when such duties are assigned to the officer by or with the approval of that Judge Advocate General. In accordance with regulations prescribed by the President, assignments of military judges under this section (article) shall be for appropriate minimum periods, subject to such exceptions as may be authorized in the regulations.

(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 preliminary hearing 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.

(f) A military judge may be detailed under subsection (a) to a court-martial or a proceeding under section 830a of this title (article 30a) that is convened in a different armed force, when so permitted by the Judge Advocate General of the armed force of which the military judge is a member.

(g) In accordance with regulations prescribed by the President, each Judge Advocate General shall designate a chief trial judge from among the members of the applicable trial judiciary.

§ 826a Art. 26a. Military magistrates

(a) Qualifications.— A military magistrate 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 is certified to be qualified, by reason of education, training, experience, and judicial temperament, for duty as a military magistrate by the Judge Advocate General of the armed force of which the officer is a member.

(b) Duties.— In accordance with regulations prescribed by the Secretary concerned, in addition to duties when designated under section 819 or 830a of this title (article 19 or 30a), a military magistrate may be assigned to perform other duties of a nonjudicial nature.

§ 827 Art. 27. Detail of trial counsel and defense counsel

(a) 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. No person who, with respect to a case, has served as a preliminary hearing officer, court member, military judge, military magistrate, or appellate judge, may later serve 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, defense counsel, or assistant defense counsel detailed for a general court-martial— must be a judge advocate who is qualified under section 806(a)(1) of this title (article 6(a)(1)); and 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) Defense counsel and assistant defense counsel detailed for a special court-martial shall have the qualifications set forth in subsection (b). Trial counsel and assistant trial counsel detailed for a special court-martial and assistant trial counsel detailed for a general court-martial must be determined to be competent to perform such duties by the Judge Advocate General, under such rules as the President may prescribe.

(d) To the greatest extent practicable, in any capital case, at least one defense counsel shall, as determined by the Judge Advocate General, be learned in the law applicable to such cases. If necessary, this counsel may be a civilian and, if so, may be compensated in accordance with regulations prescribed by the Secretary of Defense.

(e) For each general and special court-martial for which charges and specifications were referred by a special trial counsel— a special trial counsel shall be detailed as trial counsel; and a special trial counsel may detail other trial counsel as necessary who are judge advocates.

§ 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. This section does not apply to a military commission established under chapter 47A of this title. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 47 ; Pub. L. 109–366, § 4(a)(2) , Oct. 17, 2006 , 120 Stat. 2631 .)

§ 829 Art. 29. Assembly and impaneling of members; detail of new members and military judges

(a) Assembly.— The military judge shall announce the assembly of a general or special court-martial with members. After such a court-martial is assembled, no member may be absent, unless the member is excused— as a result of a challenge; under subsection (b)(1)(B); or by order of the military judge or the convening authority for disability or other good cause.

(b) Impaneling.— Under rules prescribed by the President, the military judge of a general or special court-martial with members shall— after determination of challenges, impanel the court-martial; and excuse the members who, having been assembled, are not impaneled. In a general court-martial, the military judge shall impanel— 12 members in a capital case; and eight members in a noncapital case. In a special court-martial, the military judge shall impanel four members.

(c) Alternate Members.— In addition to members under subsection (b), the military judge shall impanel alternate members, if the convening authority authorizes alternate members.

(d) Detail of New Members.— If, after members are impaneled, the membership of the court-martial is reduced to— fewer than 12 members with respect to a general court-martial in a capital case; fewer than six members with respect to a general court-martial in a noncapital case; or fewer than four members with respect to a special court-martial; the trial may not proceed unless the convening authority details new members and, from among the members so detailed, the military judge impanels new members sufficient in number to provide the membership specified in paragraph (2). The membership referred to in paragraph (1) is as follows: 12 members with respect to a general court-martial in a capital case. At least six but not more than eight members with respect to a general court-martial in a noncapital case. Four members with respect to a special court-martial.

(e) Detail of New Military Judge.— If the military judge is unable to proceed with the trial because of disability or otherwise, a new military judge shall be detailed to the court-martial.

(f) Evidence.— In the case of new members under subsection (d), the trial may proceed with the new members present after the evidence previously introduced is read or, in the case of audiotape, videotape, or similar recording, is played, in the presence of the new members, the military judge, the accused, and counsel for both sides. In the case of a new military judge under subsection (e), the trial shall proceed as if no evidence had been introduced, unless the evidence previously introduced is read or, in the case of audiotape, videotape, or similar recording, is played, in the presence of the new military judge, the accused, and counsel for both sides.

§ 830 Art. 30. Charges and specifications

(a) In General.— Charges and specifications— may be preferred only by a person subject to this chapter; and shall be preferred by presentment in writing, signed under oath before a commissioned officer of the armed forces who is authorized to administer oaths.

(b) Required Content.— The writing under subsection (a) shall state that— the signer has personal knowledge of, or has investigated, the matters set forth in the charges and specifications; and the matters set forth in the charges and specifications are true, to the best of the knowledge and belief of the signer.

(c) Duty of Proper Authority.— When charges and specifications are preferred under subsection (a), the proper authority shall, as soon as practicable— inform the person accused of the charges and specifications; and determine what disposition should be made of the charges and specifications in the interest of justice and discipline.

§ 830a Art. 30a. Proceedings conducted before referral

(a) In General.— The President shall prescribe regulations for matters relating to proceedings conducted before referral of charges and specifications to court-martial for trial, including the following: Pre-referral investigative subpoenas. Pre-referral warrants or orders for electronic communications. Pre-referral matters referred by an appellate court. Pre-referral matters under subsection (c) or (e) of section 806b of this title (article 6b). Pre-referral matters relating to the following: Pre-trial confinement of an accused. The mental capacity or mental responsibility of an accused. A request for an individual military counsel. In addition to the matters specified in paragraph (1), the regulations prescribed under that paragraph shall— set forth the matters that a military judge may rule upon in such proceedings; include procedures for the review of such rulings; include appropriate limitations to ensure that proceedings under this section extend only to matters that would be subject to consideration by a military judge in a general or special court-martial; and provide such limitations on the relief that may be ordered under this section as the President considers appropriate. If any matter in a proceeding under this section becomes a subject at issue with respect to charges that have been referred to a general or special court-martial, the matter shall be transferred to the military judge detailed to the court-martial.

(b) Detail of Military Judge.— The Secretary concerned shall prescribe regulations providing for the manner in which military judges are detailed to proceedings under subsection (a)(1).

(c) Discretion to Designate Magistrate to Preside.— In accordance with regulations prescribed by the Secretary concerned, a military judge detailed to a proceeding under subsection (a)(1), other than a proceeding described in subparagraph (B) of that subsection, may designate a military magistrate to preside over the proceeding.

§ 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 question 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 is 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. Preliminary hearing required before referral to general court-martial

(a) In General.— Except as provided in subparagraph (B), a preliminary hearing shall be held before referral of charges and specifications for trial by general court-martial. The preliminary hearing shall be conducted by an impartial hearing officer detailed in accordance with subparagraph (C). Under regulations prescribed by the President, a preliminary hearing need not be held if the accused submits a written waiver to— except as provided in clause (ii), the convening authority and the convening authority determines that a hearing is not required; and with respect to charges and specifications over which the special trial counsel is exercising authority in accordance with section 824a of this title (article 24a), the special trial counsel and the special trial counsel determines that a hearing is not required. Except as provided in clause (ii), the convening authority shall detail a hearing officer. If a special trial counsel is exercising authority over the charges and specifications subject to a preliminary hearing under this section (article), the special trial counsel shall request a hearing officer and a hearing officer shall be provided by the convening authority, in accordance with regulations prescribed by the President. The purpose of the preliminary hearing shall be limited to determining the following: Whether or not the specification alleges an offense under this chapter. Whether or not there is probable cause to believe that the accused committed the offense charged. Whether or not the convening authority has court-martial jurisdiction over the accused and over the offense. A recommendation as to the disposition that should be made of the case.

(b) Hearing Officer.— A preliminary hearing under this section shall be conducted by an impartial hearing officer, who— whenever practicable, shall be a judge advocate who is certified under section 827(b)(2) of this title (article 27(b)(2)); or when it is not practicable to appoint a judge advocate because of exceptional circumstances, is not a judge advocate so certified. In the case of a hearing officer under paragraph (1)(B), a judge advocate who is certified under section 827(b)(2) of this title (article 27(b)(2)) shall be available to provide legal advice to the hearing officer. Whenever practicable, the hearing officer shall be equal in grade or senior in grade to military counsel who are detailed to represent the accused or the Government at the preliminary hearing.

(c) Report to Convening Authority or Special Trial Counsel.— After a preliminary hearing under this section, the hearing officer shall submit to the convening authority or, in the case of a preliminary hearing in which the hearing officer is provided at the request of a special trial counsel to the special trial counsel, a written report (accompanied by a recording of the preliminary hearing under subsection (e)) that includes the following: For each specification, a statement of the reasoning and conclusions of the hearing officer with respect to determinations under subsection (a)(2), including a summary of relevant witness testimony and documentary evidence presented at the hearing and any observations of the hearing officer concerning the testimony of witnesses and the availability and admissibility of evidence at trial. Recommendations for any necessary modifications to the form of the charges or specifications. An analysis of any additional information submitted after the hearing by the parties or by a victim of an offense, that, under such rules as the President may prescribe, is relevant to disposition under sections 830 and 834 of this title (articles 30 and 34). A statement of action taken on evidence adduced with respect to uncharged offenses, as described in subsection (f).

(d) Rights of Accused and Victim.— The accused shall be advised of the charges against the accused and of the accused’s right to be represented by counsel at the preliminary hearing under this section. The accused has the right to be represented at the preliminary hearing as provided in section 838 of this title (article 38) and in regulations prescribed under that section. The accused may cross-examine witnesses who testify at the preliminary hearing and present additional evidence that is relevant to the issues for determination under subsection (a)(2). A victim may not be required to testify at the preliminary hearing. A victim who declines to testify shall be deemed to be not available for purposes of the preliminary hearing. A declination under this paragraph shall not serve as the sole basis for ordering a deposition under section 849 of this title (article 49). The presentation of evidence and examination (including cross-examination) of witnesses at a preliminary hearing shall be limited to the matters relevant to determinations under subsection (a)(2).

(e) Recording of Preliminary Hearing.— A preliminary hearing under subsection (a) shall be recorded by a suitable recording device. The victim may request the recording and shall have access to the recording under such rules as the President may prescribe.

(f) Effect of Evidence of Uncharged Offense.— If evidence adduced in a preliminary hearing under subsection (a) indicates that the accused committed an uncharged offense, the hearing officer may consider the subject matter of that offense without the accused having first been charged with the offense if the accused— is present at the preliminary hearing; is informed of the nature of each uncharged offense considered; and is afforded the opportunities for representation, cross-examination, and presentation consistent with subsection (d).

(g) Effect of Violation.— The requirements of this section are binding on all persons administering this chapter, but failure to follow the requirements does not constitute jurisdictional error. A defect in a report under subsection (c) is not a basis for relief if the report is in substantial compliance with that subsection.

(h) Victim Defined.— In this section, the term “victim” means a person who— is alleged to have suffered a direct physical, emotional, or pecuniary harm as a result of the matters set forth in a charge or specification being considered; and is named in one of the specifications.

§ 833 Art. 33. Disposition guidance

The President shall direct the Secretary of Defense to issue, in consultation with the Secretary of the department in which the Coast Guard is operating when it is not operating as a service in the Navy, non-binding guidance regarding factors that commanders, convening authorities, staff judge advocates, and judge advocates should take into account when exercising their duties with respect to disposition of charges and specifications in the interest of justice and discipline under sections 830 and 834 of this title (articles 30 and 34). Such guidance shall take into account, with appropriate consideration of military requirements, the principles contained in official guidance of the Attorney General to attorneys for the Government with respect to disposition of Federal criminal cases in accordance with the principle of fair and evenhanded administration of Federal criminal law. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 49 ; Pub. L. 114–328, div. E, title LVI, § 5204 , Dec. 23, 2016 , 130 Stat. 2906 .)

§ 834 Art. 34. Advice to convening authority before referral for trial

(a) General Court-martial.— Subject to subsection (c), before referral of charges and specifications to a general court-martial for trial, the convening authority shall submit the matter to the staff judge advocate for advice, which the staff judge advocate shall provide to the convening authority in writing. The convening authority may not refer a specification under a charge to a general court-martial unless the staff judge advocate advises the convening authority in writing that— the specification alleges an offense under this chapter; there is probable cause to believe that the accused committed the offense charged; and a court-martial would have jurisdiction over the accused and the offense. Together with the written advice provided under paragraph (1), the staff judge advocate shall provide a written recommendation to the convening authority as to the disposition that should be made of the specification in the interest of justice and discipline. When a convening authority makes a referral for trial by general court-martial, the written advice of the staff judge advocate under paragraph (1) and the written recommendation of the staff judge advocate under paragraph (2) with respect to each specification shall accompany the referral.

(b) Special Court-martial; Convening Authority Consultation With Judge Advocate.— Subject to subsection (c), before referral of charges and specifications to a special court-martial for trial, the convening authority shall consult a judge advocate on relevant legal issues.

(c) Covered Offenses.— A referral to a general or special court-martial for trial of charges and specifications over which a special trial counsel exercises authority may only be made— by a special trial counsel, subject to a special trial counsel’s written determination accompanying the referral that— each specification under a charge alleges an offense under this chapter; there is probable cause to believe that the accused committed the offense charged; and a court-martial would have jurisdiction over the accused and the offense; or in the case of charges and specifications that do not allege a covered offense and as to which a special trial counsel declines to prefer or, in the case of charges and specifications preferred by a person other than a special trial counsel, refer charges, by the convening authority in accordance with this section.

(d) General and Special Courts-martial; Correction of Charges and Specifications Before Referral.— Before referral for trial by general court-martial or special court-martial, changes may be made to charges and specifications— to correct errors in form; and when applicable, to conform to the substance of the evidence contained in a report under section 832(c) of this title (article 32(c)).

(e) Referral Defined.— In this section, the term “referral” means the order of a convening authority or, with respect to charges and specifications over which a special trial counsel exercises authority in accordance with section 824a of this title (article 24a), a special trial counsel, that charges and specifications against an accused be tried by a specified court-martial.

§ 835 Art. 35. Service of charges; commencement of trial

(a) In General.— Trial counsel detailed for a court-martial under section 827 of this title (article 27) shall cause to be served upon the accused a copy of the charges and specifications referred for trial.

(b) Commencement of Trial.— Subject to paragraphs (2) and (3), no trial or other proceeding of a general court-martial or a special court-martial (including any session under section 839(a) of this title (article 39(a)) may be held over the objection of the accused— with respect to a general court-martial, from the time of service through the fifth day after the date of service; or with respect to a special court-martial, from the time of service through the third day after the date of service. An objection under paragraph (1) may be raised only at the first session of the trial or other proceeding and only if the first session occurs before the end of the applicable period under paragraph (1)(A) or (1)(B). If the first session occurs before the end of the applicable period, the military judge shall, at that session, inquire as to whether the defense objects under this subsection. This subsection shall not apply in time of war.

§ 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, except as provided in chapter 47A of this title, be contrary to or inconsistent with this chapter.

(b) All rules and regulations made under this article shall be uniform insofar as practicable, except insofar as applicable to military commissions established under chapter 47A of this title.

§ 837 Art. 37. Command influence

(a) No court-martial convening authority, 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 exercise of its or his functions in the conduct of the proceeding. No court-martial convening authority, nor any other commanding officer, may deter or attempt to deter a potential witness from participating in the investigatory process or testifying at a court-martial. The denial of a request to travel at government expense or refusal to make a witness available shall not by itself constitute unlawful command influence. No person subject to this chapter may attempt to coerce or, by any unauthorized means, attempt to 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 or preliminary hearing officer with respect to such acts taken pursuant to this chapter as prescribed by the President. Conduct that does not constitute a violation of paragraphs (1) through (3) may include, for example— general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing persons on the substantive and procedural aspects of courts-martial; statements regarding criminal activity or a particular criminal offense that do not advocate a particular disposition, or a particular court-martial finding or sentence, or do not relate to a particular accused; or statements and instructions given in open court by the military judge or counsel. Notwithstanding paragraphs (1) through (3), but subject to subparagraph (B)— a superior convening authority or officer may generally discuss matters to consider regarding the disposition of alleged violations of this chapter with a subordinate convening authority or officer; and a subordinate convening authority or officer may seek advice from a superior convening authority or officer regarding the disposition of an alleged offense under this chapter. No superior convening authority or officer may direct a subordinate convening authority or officer to make a particular disposition in a specific case or otherwise substitute the discretion of such authority or such officer for that of the subordinate convening authority or officer.

(b) In the preparation of an effectiveness, fitness, or efficiency report, or 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 a member of a court-martial, or (2) give a less favorable rating or evaluation of any member of the armed forces because of the zeal with which such member, as counsel, represented any person in a court-martial proceeding.

(c) No finding or sentence of a court-martial may be held incorrect on the ground of a violation of this section unless the violation materially prejudices the substantial rights of the accused.

(d) A superior convening authority or commanding officer may withhold the authority of a subordinate convening authority or officer to dispose of offenses in individual cases, types of cases, or generally. Except as provided in paragraph (1) or as otherwise authorized by this chapter, a superior convening authority or commanding officer may not limit the discretion of a subordinate convening authority or officer to act with respect to a case for which the subordinate convening authority or officer has authority to dispose of the offenses.

§ 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) The accused has the right to be represented in his defense before a general or special court-martial or at a preliminary hearing under section 832 of this title (article 32) as provided in this subsection. The accused may be represented by civilian counsel if provided by him. The accused may be represented— by military counsel detailed under section 827 of this title (article 27); or by military counsel of his own selection if that counsel is reasonably available (as determined under regulations prescribed under paragraph (7)). 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. 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. 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— may detail additional military counsel as assistant defense counsel; and 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. 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 is from an armed force other than the armed force of which the accused 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 Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives.

(c) In any court-martial proceeding resulting in a conviction, the defense counsel— may forward 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 objection to the contents of the record which he considers appropriate); may assist the accused in the submission of any matter under section 860, 860a, or 860b of this title (article 60, 60a, or 60b); and 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 perform any duty imposed by law, regulation, or the 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 to a 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— 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; 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; holding the arraignment and receiving the pleas of the accused; conducting a sentencing proceeding and sentencing the accused under section 853(b)(1) of this title (article 53(b)(1)); and 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.

(b) Proceedings under subsection (a) shall be conducted in the presence of the accused, the defense counsel, and the trial counsel and shall be made a part of the record. These proceedings may be conducted notwithstanding the number of members of the court and without regard to section 829 of this title (article 29). If authorized by regulations of the Secretary concerned, and if at least one defense counsel is physically in the presence of the accused, the presence required by this subsection may otherwise be established by audiovisual technology (such as videoteleconferencing technology).

(c) 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 the military judge.

(d) The findings, holdings, interpretations, and other precedents of military commissions under chapter 47A of this title— may not be introduced or considered in any hearing, trial, or other proceeding of a court-martial under this chapter; and may not form the basis of any holding, decision, or other determination of a court-martial.

§ 840 Art. 40. Continuances

The military judge or a summary court-martial may, for reasonable cause, grant a continuance to any party for such time, and as often, as may appear to be just. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 51 ; Pub. L. 90–632, § 2(16) , Oct. 24, 1968 , 82 Stat. 1339 ; Pub. L. 114–328, div. E, title LVII, § 5223 , Dec. 23, 2016 , 130 Stat. 2909 .)

§ 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 shall determine the relevancy and validity of 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. If exercise of a challenge for cause reduces the court below the number of members required by section 816 of this title (article 16), all parties shall (notwithstanding section 829 of this title (article 29)) either exercise or waive any challenge for cause then apparent against the remaining members of the court before additional members are detailed to the court. However, peremptory challenges shall not be exercised at that time.

(b) Each accused and the trial counsel are entitled initially to one peremptory challenge of members of the court. The military judge may not be challenged except for cause. If exercise of a peremptory challenge reduces the court below the number of members required by section 816 of this title (article 16), the parties shall (notwithstanding section 829 of this title (article 29)) either exercise or waive any remaining peremptory challenge (not previously waived) against the remaining members of the court before additional members are detailed to the court.

(c) Whenever additional members are detailed to the court, and after any challenges for cause against such additional members are presented and decided, each accused and the trial counsel are entitled to one peremptory challenge against members not previously subject to peremptory challenge.

§ 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 the 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) No Limitation for Certain Offenses.— A person charged with absence without leave or missing movement in time of war, with murder, rape or sexual assault, or rape or sexual assault of a child, maiming of a child, kidnapping of a child, or with any other offense punishable by death, may be tried and punished at any time without limitation.

(b) Five-year Limitation for Trial by Court-martial.— 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. A person charged with having committed a child abuse offense against a child is liable to be tried by court-martial if the sworn charges and specifications are received during the life of the child or within ten years after the date on which the offense was committed, whichever provides a longer period, by an officer exercising summary court-martial jurisdiction with respect to that person. In subparagraph (A), the term “child abuse offense” means an act that involves abuse of a person who has not attained the age of 16 years and constitutes any of the following offenses: Any offense in violation of section 920, 920a, 920b, 920c, or 930 of this title (article 120, 120a, 120b, 120c, or 130), unless the offense is covered by subsection (a). Aggravated assault, assault consummated by a battery, or assault with intent to commit specified offenses in violation of section 928 of this title (article 128). In subparagraph (A), the term “child abuse offense” includes an act that involves abuse of a person who has not attained the age of 18 years and would constitute an offense under chapter 110 or 117 of title 18 or under section 1591 of that title. 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) Tolling for Absence Without Leave or Flight From Justice.— 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) Tolling for Absence From US or Military Jurisdiction.— 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) Extension for Offenses in Time of War Detrimental to Prosecution of War.— 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) Extension for Other Offenses in Time of War.— When the United States is at war, the running of any statute of limitations applicable to any offense under this chapter— involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not; committed in connection with the acquisition, care, handling, custody, control, or disposition of any real or personal property of the United States; or 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) Defective or Insufficient Charges.— If charges or specifications are dismissed as defective or insufficient for any cause and the period prescribed by the applicable statute of limitations— has expired; or 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 barred by the statute of limitations if the conditions specified in paragraph (2) are met. The conditions referred to in paragraph (1) are that the new charges and specifications must— be received by an officer exercising summary court-martial jurisdiction over the command within 180 days after the dismissal of the charges or specifications; and 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).

(h) Fraudulent Enlistment or Appointment.— A person charged with fraudulent enlistment or fraudulent appointment under section 904a(1) of this title (article 104a(1)) may be tried by court-martial if the sworn charges and specifications are received by an officer exercising summary court-martial jurisdiction with respect to that person, as follows: In the case of an enlisted member, during the period of the enlistment or five years, whichever provides a longer period. In the case of an officer, during the period of the appointment or five years, whichever provides a longer period.

(i) DNA Evidence.— If DNA testing implicates an identified person in the commission of an offense punishable by confinement for more than one year, no statute of limitations that would otherwise preclude prosecution of the offense shall preclude such prosecution until a period of time following the implication of the person by DNA testing has elapsed that is equal to the otherwise applicable limitation period.

§ 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 an accused has been found guilty by a 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 court-martial with a military judge alone is a trial in the sense of this section (article) if, without fault of the accused— after introduction of evidence; and before announcement of findings under section 853 of this title (article 53); the case is dismissed or terminated by the convening authority or the special trial counsel or on motion of the prosecution for failure of available evidence or witnesses. A court-martial with a military judge and members is a trial in the sense of this section (article) if, without fault of the accused— after the members, having taken an oath as members under section 842 of this title (article 42) and after completion of challenges under section 841 of this title (article 41), are impaneled; and before announcement of findings under section 853 of this title (article 53); the case is dismissed or terminated by the convening authority or the special trial counsel or on motion of the prosecution for failure of available evidence or witnesses.

§ 845 Art. 45. Pleas of the accused

(a) Irregular and Similar Pleas.— 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) Pleas of Guilty.— A plea of guilty by the accused may not be received to any charge or specification alleging an offense for which the death penalty is mandatory. 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, a finding of guilty of the charge or specification may be entered immediately without 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.

(c) Harmless Error.— A variance from the requirements of this article is harmless error if the variance does not materially prejudice the substantial rights of the accused.

§ 846 Art. 46. Opportunity to obtain witnesses and other evidence in trials by court-martial

(a) Opportunity To Obtain Witnesses and Other Evidence.— In a case referred for trial by court-martial, 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.

(b) Subpoena and Other Process Generally.— Any subpoena or other process issued under this section (article)— shall be similar to that which courts of the United States having criminal jurisdiction may issue; shall be executed in accordance with regulations prescribed by the President; and shall run to any part of the United States and to the Commonwealths and possessions of the United States.

(c) Subpoena and Other Process for Witnesses.— A subpoena or other process may be issued to compel a witness to appear and testify— before a court-martial, military commission, or court of inquiry; at a deposition under section 849 of this title (article 49); or as otherwise authorized under this chapter.

(d) Subpoena and Other Process for Evidence.— A subpoena or other process may be issued to compel the production of evidence— for a court-martial, military commission, or court of inquiry; for a deposition under section 849 of this title (article 49); for an investigation of an offense under this chapter; or as otherwise authorized under this chapter. An investigative subpoena under paragraph (1)(C) may be issued before referral of charges to a court-martial only if a general court-martial convening authority has authorized counsel for the Government to issue such a subpoena or a military judge issues such a subpoena pursuant to section 830a of this title (article 30a). With respect to an investigation of an offense under this chapter, a military judge detailed in accordance with section 826 or 830a of this title (article 26 or 30a) may issue warrants or court orders for the contents of, and records concerning, wire or electronic communications in the same manner as such warrants and orders may be issued by a district court of the United States under chapter 121 of title 18, subject to such limitations as the President may prescribe by regulation.

(e) Request for Relief From Subpoena or Other Process.— If a person requests relief from a subpoena or other process under this section (article) on grounds that compliance is unreasonable or oppressive or is prohibited by law, a military judge detailed in accordance with section 826 or 830a of this title (article 26 or 30a) shall review the request and shall— order that the subpoena or other process be modified or withdrawn, as appropriate; or order the person to comply with the subpoena or other process.

§ 847 Art. 47. Refusal of person not subject to chapter to appear, testify, or produce evidence

(a) In General.— Any person described in paragraph (2) who— willfully neglects or refuses to appear; or willfully refuses to qualify as a witness or to testify or to produce any evidence which that person is required to produce; is guilty of an offense against the United States. The persons referred to in paragraph (1) are the following: Any person not subject to this chapter who— is issued a subpoena or other process described in subsection (c) of section 846 of this title (article 46); and is provided a means for reimbursement from the Government for fees and mileage at the rates allowed to witnesses attending the courts of the United States or, in the case of extraordinary hardship, is advanced such fees and mileage. Any person not subject to this chapter who is issued a subpoena or other process described in subsection (d) of section 846 of this title (article 46).

(b) Any person who commits an offense named in subsection (a) shall be tried on indictment or information in a United States district court or in a court of original criminal jurisdiction in any of the Commonwealths or possessions of the United States, and jurisdiction is conferred upon those courts for that purpose. Upon conviction, such a person shall be fined or imprisoned, or both, at the court’s discretion.

(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, board, or convening authority, 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

(a) Authority To Punish.— With respect to any proceeding under this chapter, a judicial officer specified in paragraph (2) may punish for contempt any person who— uses any menacing word, sign, or gesture in the presence of the judicial officer during the proceeding; disturbs the proceeding by any riot or disorder; or willfully disobeys a lawful writ, process, order, rule, decree, or command issued with respect to the proceeding. A judicial officer referred to in paragraph (1) is any of the following: Any judge of the Court of Appeals for the Armed Forces and any judge of a Court of Criminal Appeals under section 866 of this title (article 66). Any military judge detailed to a court-martial, a provost court, a military commission, or any other proceeding under this chapter. Any military magistrate designated to preside under section 819 of this title (article 19). The president of a court of inquiry.

(b) Punishment.— The punishment for contempt under subsection (a) may not exceed confinement for 30 days, a fine of $1,000, or both.

(c) Review.— A punishment under this section— if imposed by a military judge or military magistrate, may be reviewed by the Court of Criminal Appeals in accordance with the uniform rules of procedure for the Courts of Criminal Appeals under section 866(h) of this title (article 66(h)); if imposed by a judge of the Court of Appeals for the Armed Forces or a judge of a Court of Criminal Appeals, shall constitute a judgment of the court, subject to review under the applicable provisions of section 867 or 867a of this title (article 67 or 67a); and if imposed by a court of inquiry, shall be subject to review by the convening authority in accordance with rules prescribed by the President.

(d) Inapplicability to Military Commissions Under Chapter 47A.— This section does not apply to a military commission established under chapter 47A of this title.

§ 849 Art. 49. Depositions

(a) In General.— Subject to paragraph (2), a convening authority or a military judge may order depositions at the request of any party. A deposition may be ordered under paragraph (1) only if the requesting party demonstrates that, due to exceptional circumstances, it is in the interest of justice that the testimony of a prospective witness be preserved for use at a court-martial, military commission, court of inquiry, or other military court or board. A party who requests a deposition under this section shall give to every other party reasonable written notice of the time and place for the deposition. A deposition under this section shall be taken before, and authenticated by, an impartial officer, as follows: Whenever practicable, by an impartial judge advocate certified under section 827(b) of this title (article 27(b)). In exceptional circumstances, by an impartial military or civil officer authorized to administer oaths by (i) the laws of the United States or (ii) the laws of the place where the deposition is taken.

(b) Representation by Counsel.— Representation of the parties with respect to a deposition shall be by counsel detailed in the same manner as trial counsel and defense counsel are detailed under section 827 of this title (article 27). In addition, the accused shall have the right to be represented by civilian or military counsel in the same manner as such counsel are provided for in section 838(b) of this title (article 38(b)).

(c) Admissibility and Use as Evidence.— A deposition order under subsection (a) does not control the admissibility of the deposition in a court-martial or other proceeding under this chapter. Except as provided by subsection (d), a party may use all or part of a deposition as provided by the rules of evidence.

(d) Capital Cases.— Testimony by deposition may be presented in capital cases only by the defense.

§ 850 Art. 50. Admissibility of sworn testimony from records of courts of inquiry

(a) Use as Evidence by Any Party.— 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. This section does not apply to a military commission established under chapter 47A of this title.

(b) Use as Evidence by Defense.— Such testimony may be read in evidence only by the defense in capital cases or cases extending to the dismissal of a commissioned officer.

(c) Use in Courts of Inquiry and Military Boards.— Such testimony may also be read in evidence before a court of inquiry or a military board.

(d) Audiotape or Videotape.— Sworn testimony that— is recorded by audiotape, videotape, or similar method; and is contained in the duly authenticated record of proceedings of a court of inquiry; is admissible before a court-martial, military commission, court of inquiry, or military board, to the same extent as sworn testimony may be read in evidence before any such body under subsection (a), (b), or (c).

§ 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 severe 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 shall instruct the members of the court as to the defense of lack of mental responsibility under this section and charge them to find the accused— guilty; not guilty; or 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— guilty; not guilty; or not guilty only by reason of lack of mental responsibility.

(e) Notwithstanding the provisions of section 852 of this title (article 52), the accused shall be found not guilty only by reason of lack of mental responsibility if— 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 in the case of a 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 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 shall rule 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 law or any interlocutory question other than the factual issue of mental responsibility of the accused is final and constitutes the ruling of the court, except that the military judge may change a ruling at any time during trial.

(c) Before a vote is taken on the findings, the 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— that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt; 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; that, if there is a 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 that the burden of proof to establish the guilt of the accused beyond 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 filed, it will be sufficient if the findings of fact appear therein.

§ 852 Art. 52. Votes required for conviction, sentencing, and other matters

(a) In General.— No person may be convicted of an offense in a general or special court-martial, other than— after a plea of guilty under section 845(b) of this title (article 45(b)); by a military judge in a court-martial with a military judge alone, under section 816 of this title (article 16); or in a court-martial with members under section 816 of this title (article 16), by the concurrence of at least three-fourths of the members present when the vote is taken.

(b) Level of Concurrence Required.— Except as provided in subsection (a) and in paragraph (2), all matters to be decided by members of a general or special court-martial shall be determined by a majority vote, but a reconsideration of a finding of guilty or reconsideration of a sentence, with a view toward decreasing the sentence, 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 sentence of death requires (A) a unanimous finding of guilty of an offense in this chapter expressly made punishable by death and (B) a unanimous determination by the members that the sentence for that offense shall include death. All other sentences imposed by members shall be determined by the concurrence of at least three-fourths of the members present when the vote is taken.

§ 853 Art. 53. Findings and sentencing

(a) Announcement.— A court-martial shall announce its findings and sentence to the parties as soon as determined.

(b) Sentencing Generally.— Except as provided in subsection (c) for capital offenses, if the accused is convicted of an offense in a trial by general or special court-martial, the military judge shall sentence the accused. The sentence determined by the military judge constitutes the sentence of the court-martial. If the accused is convicted of an offense in a trial by summary court-martial, the court-martial shall sentence the accused.

(c) Sentencing for Capital Offenses.— In a capital case, if the accused is convicted of an offense for which the court-martial may sentence the accused to death— the members shall determine— whether the sentence for that offense shall be death or life in prison without eligibility for parole; or whether the matter shall be returned to the military judge for determination of a lesser punishment; and the military judge shall sentence the accused for that offense in accordance with the determination of the members under subparagraph (A). In accordance with regulations prescribed by the President, the military judge may include in any sentence to death or life in prison without eligibility for parole other lesser punishments authorized under this chapter. In a capital case, if the accused is convicted of a non-capital offense, the accused shall be sentenced for such non-capital offense in accordance with subsection (b), regardless of whether the accused is convicted of an offense for which the court-martial may sentence the accused to death.

§ 853a Art. 53a. Plea agreements

(a) In General.— Subject to paragraph (3), at any time before the announcement of findings under section 853 of this title (article 53), the convening authority and the accused may enter into a plea agreement with respect to such matters as— the manner in which the convening authority will dispose of one or more charges and specifications; and limitations on the sentence that may be adjudged for one or more charges and specifications. The military judge of a general or special court-martial may not participate in discussions between the parties concerning prospective terms and conditions of a plea agreement. With respect to charges and specifications over which a special trial counsel exercises authority pursuant to section 824a of this title (article 24a), a plea agreement under this section may only be entered into between a special trial counsel and the accused. Such agreement shall be subject to the same limitations and conditions applicable to other plea agreements under this section (article).

(b) Acceptance of Plea Agreement.— Subject to subsection (c), the military judge of a general or special court-martial shall accept a plea agreement submitted by the parties, except that— in the case of an offense with a sentencing parameter set forth in regulations prescribed by the President pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022, the military judge may reject a plea agreement that proposes a sentence that is outside the sentencing parameter if the military judge determines that the proposed sentence is plainly unreasonable; and in the case of an offense for which the President has not established a sentencing parameter pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022, the military judge may reject a plea agreement that proposes a sentence if the military judge determines that the proposed sentence is plainly unreasonable.

(c) Limitation on Acceptance of Plea Agreements.— The military judge of a general or special court-martial shall reject a plea agreement that— contains a provision that has not been accepted by both parties; contains a provision that is not understood by the accused; except as provided in subsection (c), contains a provision for a sentence that is less than the mandatory minimum sentence applicable to an offense referred to in section 856(b)(2) of this title (article 56(b)(2)); is prohibited by law; or is contrary to, or is inconsistent with, a regulation prescribed by the President with respect to terms, conditions, or other aspects of plea agreements.

(d) Limited Conditions for Acceptance of Plea Agreement for Sentence Below Mandatory Minimum for Certain Offenses.— With respect to an offense referred to in section 856(b)(2) of this title (article 56(b)(2))— the military judge may accept a plea agreement that provides for a sentence of bad conduct discharge; and upon recommendation of the trial counsel, in exchange for substantial assistance by the accused in the investigation or prosecution of another person who has committed an offense, the military judge may accept a plea agreement that provides for a sentence that is less than the mandatory minimum sentence for the offense charged.

(e) Binding Effect of Plea Agreement.— Upon acceptance by the military judge of a general or special court-martial, a plea agreement shall bind the parties (including the convening authority and the special trial counsel in the case of a plea agreement entered into under subsection (a)(3)) and the court-martial.

§ 854 Art. 54. Record of trial

(a) General and Special Courts-martial.— Each general or special court-martial shall keep a separate record of the proceedings in each case brought before it. The record shall be certified by a court-reporter, except that in the case of death, disability, or absence of a court reporter, the record shall be certified by an official selected as the President may prescribe by regulation.

(b) Summary Courts-martial.— Each summary court-martial shall keep a separate record of the proceedings in each case, and the record shall be certified in the manner required by such regulations as the President may prescribe.

(c) Contents of Record.— Except as provided in paragraph (2), the record shall contain such matters as the President may prescribe by regulation. In accordance with regulations prescribed by the President, a complete record of proceedings and testimony shall be prepared in any case of a sentence of death, dismissal, discharge, confinement for more than six months, or forfeiture of pay for more than six months.

(d) Copy to Accused.— 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 certified.

(e) Copy to Victim.— In the case of a general or special court-martial, upon request, a copy of all prepared records of the proceedings of the court-martial shall be given to the victim of the offense if the victim testified during the proceedings. The records of the proceedings shall be provided without charge and as soon as the records are certified. The victim shall be notified of the opportunity to receive the records of the proceedings.

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

§ 856 Art. 56. Sentencing

(a) Sentence Maximums.— The punishment which a court-martial may direct for an offense may not exceed such limits as the President may prescribe for that offense.

(b) Sentence Minimums for Certain Offenses.— Except as provided in subsection (c) 1 of section 853a of this title (article 53a), punishment for any offense specified in paragraph (2) shall include dismissal or dishonorable discharge, as applicable. The offenses referred to in paragraph (1) are as follows: Rape under subsection (a) of section 920 of this title (article 120). Sexual assault under subsection (b) of such section (article). Rape of a child under subsection (a) of section 920b of this title (article 120b). Sexual assault of a child under subsection (b) of such section (article). An attempt to commit an offense specified in subparagraph (A), (B), (C), or (D) that is punishable under section 880 of this title (article 80). Conspiracy to commit an offense specified in subparagraph (A), (B), (C), or (D) that is punishable under section 881 of this title (article 81).

(c) Imposition of Sentence.— In sentencing an accused under section 853 of this title (article 53), a court-martial shall impose punishment that is sufficient, but not greater than necessary, to promote justice and to maintain good order and discipline in the armed forces, taking into consideration— the nature and circumstances of the offense and the history and characteristics of the accused; the impact of the offense on— the financial, social, psychological, or medical well-being of any victim of the offense; and the mission, discipline, or efficiency of the command of the accused and any victim of the offense; the need for the sentence— to reflect the seriousness of the offense; to promote respect for the law; to provide just punishment for the offense; to promote adequate deterrence of misconduct; to protect others from further crimes by the accused; to rehabilitate the accused; and to provide, in appropriate cases, the opportunity for retraining and return to duty to meet the needs of the service; the sentences available under this chapter; and the applicable sentencing parameters or sentencing criteria set forth in regulations prescribed by the President pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022. Except as provided in subparagraph (B), in a general or special court-martial in which the accused is convicted of an offense for which the President has established a sentencing parameter pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022, the military judge shall sentence the accused for that offense within the applicable parameter. The military judge may impose a sentence outside a sentencing parameter upon finding specific facts that warrant such a sentence. If the military judge imposes a sentence outside a sentencing parameter under this subparagraph, the military judge shall include in the record a written statement of the factual basis for the sentence. In a general or special court-martial in which the accused is convicted of an offense for which the President has established sentencing criteria pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022, the military judge shall consider the applicable sentencing criteria in determining the sentence for that offense. In announcing the sentence under section 853 of this title (article 53) in a general or special court-martial, the military judge shall, with respect to each offense of which the accused is found guilty, specify the term of confinement, if any, and the amount of the fine, if any. If the accused is sentenced to confinement for more than one offense, the military judge shall specify whether the terms of confinement are to run consecutively or concurrently. Sentencing parameters and sentencing criteria shall not apply to a determination of whether an offense should be punished by death. If an offense is subject to a sentence of confinement for life, a court-martial may impose a sentence of confinement for life without eligibility for parole. An accused who is sentenced to confinement for life without eligibility for parole shall be confined for the remainder of the accused’s life unless— the sentence is set aside or otherwise modified as a result of— action taken by the convening authority or the Secretary concerned; or any other action taken during post-trial procedure or review under any other provision of subchapter IX of this chapter; the sentence is set aside or otherwise modified as a result of action taken by a court of competent jurisdiction; or the accused receives a pardon or another form of Executive clemency.

(d) Appeal of Sentence by the United States.— With the approval of the Judge Advocate General concerned, and consistent with standards and procedures set forth in regulations prescribed by the President, the Government may appeal a sentence to the Court of Criminal Appeals, on the grounds that— the sentence violates the law; in the case of a sentence for an offense for which the President has established a sentencing parameter pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022, the sentence is a result of an incorrect application of the parameter; or the sentence is plainly unreasonable. An appeal under this subsection must be filed within 60 days after the date on which the judgment of a court-martial is entered into the record under section 860c of this title (article 60c).

[§ 856a Repealed. Pub. L. 114–328, div. E, title LVIII, § 5301(b), Dec. 23, 2016, 130 Stat. 2920]

§ 857 Art. 57. Effective date of sentences

(a) Execution of Sentences.— A court-martial sentence shall be executed and take effect as follows: A forfeiture of pay or allowances shall be applicable to pay and allowances accruing on and after the date on which the sentence takes effect. Any forfeiture of pay or allowances or reduction in grade that is included in a sentence of a court-martial takes effect on the earlier of— the date that is 14 days after the date on which the sentence is adjudged; or in the case of a summary court-martial, the date on which the sentence is approved by the convening authority. 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. 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 the President sees fit. That part of the sentence providing for death may not be suspended. 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 or Assistant Secretary as may be designated by the Secretary concerned. In such a case, the Secretary, Under Secretary, or Assistant Secretary, as the case may be, may commute, remit, or suspend the sentence, or any part of the sentence, as the Secretary 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. If a sentence extends to death, dismissal, or a dishonorable or bad-conduct discharge, that part of the sentence extending to death, dismissal, or a dishonorable or bad-conduct discharge may be executed, in accordance with service regulations, after completion of appellate review (and, with respect to death or dismissal, approval under paragraph (3) or (4), as appropriate). Except as otherwise provided in this subsection, a general or special court-martial sentence is effective upon entry of judgment and a summary court-martial sentence is effective when the convening authority acts on the sentence.

(b) Deferral of Sentences.— On application by an accused, the convening authority or, if the accused is no longer under his or her jurisdiction, the officer exercising general court-martial jurisdiction over the command to which the accused is currently assigned, may, in his or her sole discretion, defer the effective date of a sentence of confinement, reduction, or forfeiture. The deferment shall terminate upon entry of judgment or, in the case of a summary court-martial, when the convening authority acts on the sentence. 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. In any case in which a court-martial sentences a person referred to in paragraph (3) to confinement, the convening authority may defer the service of the sentence to confinement, without the consent of that person, until after the person has been permanently released to the armed forces by a State or foreign country referred to in that paragraph. Paragraph (2) applies to a person subject to this chapter who— while in the custody of a State or foreign country is temporarily returned by that State or foreign country to the armed forces for trial by court-martial; and after the court-martial, is returned to that State or foreign country under the authority of a mutual agreement or treaty, as the case may be. In this subsection, the term “State” includes the District of Columbia and any Commonwealth, territory, or possession of the United States. In any case in which a court-martial sentences a person to confinement, but in which review of the case under section 867(a)(2) of this title (article 67(a)(2)) is pending, the Secretary concerned may defer further service of the sentence to confinement while that review is pending.

(c) Appellate Review.— Appellate review is complete under this section when— a review under section 865 of this title (article 65) is completed; or a review under section 866 of this title (article 66) is completed by a Court of Criminal Appeals and— the time for the accused to file a petition for review by the Court of Appeals for the Armed Forces 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; such a petition is rejected by the Court of Appeals for the Armed Forces; or review is completed in accordance with the judgment of the Court of Appeals for the Armed Forces and— a petition for a writ of certiorari is not filed within the time limits prescribed by the Supreme Court; such a petition is rejected by the Supreme Court; or review is otherwise completed in accordance with the judgment of the Supreme Court. The completion of appellate review shall constitute a final judgment as to the legality of the proceedings.

[§ 857a Repealed. Pub. L. 114–328, div. E, title LVIII, § 5302(b)(1), Dec. 23, 2016, 130 Stat. 2923]

§ 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 same discipline and treatment as persons confined or committed by the courts of the United States or of the State, 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

(a) A court-martial sentence of an enlisted member in a pay grade above E–1, as set forth in the judgment of the court-martial entered into the record under section 860c of this title (article 60c), that includes— a dishonorable or bad-conduct discharge; confinement; or hard labor without confinement; reduces that member to pay grade E–1, if such a reduction is authorized by regulation prescribed by the President. The reduction in pay grade shall take effect on the date on which the judgment is so entered.

(b) If the sentence of a member who is reduced in pay grade under subsection (a) is set aside or reduced, or, as finally affirmed, 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.

§ 858b Art. 58b. Sentences: forfeiture of pay and allowances during confinement

(a) A court-martial sentence described in paragraph (2) shall result in the forfeiture of pay, or of pay and allowances, due that member during any period of confinement or parole. The forfeiture pursuant to this section shall take effect on the date determined under section 857 of this title (article 57) and may be deferred as provided in that section. The pay and allowances forfeited, in the case of a general court-martial, shall be all pay and allowances due that member during such period and, in the case of a special court-martial, shall be two-thirds of all pay due that member during such period. A sentence covered by this section is any sentence that includes— confinement for more than six months or death; or confinement for six months or less and a dishonorable or bad-conduct discharge or dismissal.

(b) In a case involving an accused who has dependents, the convening authority or other person acting under section 860a or 860b of this title (article 60a or 60b) may waive any or all of the forfeitures of pay and allowances required by subsection (a) for a period not to exceed six months. Any amount of pay or allowances that, except for a waiver under this subsection, would be forfeited shall be paid, as the convening authority or other person taking action directs, to the dependents of the accused.

(c) If the sentence of a member who forfeits pay and allowances under subsection (a) is set aside or disapproved or, as finally approved, does not provide for a punishment referred to in subsection (a)(2), the member shall be paid the pay and allowances which the member would have been paid, except for the forfeiture, for the period during which the forfeiture was in effect.

§ 859 Art. 59. Error of law; lesser included offense

(a) A finding or sentence of a 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. Post-trial processing in general and special courts-martial

(a) Statement of Trial Results.— The military judge of a general or special court-martial shall enter into the record of trial a document entitled “Statement of Trial Results”, which shall set forth— each plea and finding; the sentence, if any; and such other information as the President may prescribe by regulation. Copies of the Statement of Trial Results shall be provided promptly to the convening authority, the accused, and any victim of the offense.

(b) Post-trial Motions.— In accordance with regulations prescribed by the President, the military judge in a general or special court-martial shall address all post-trial motions and other post-trial matters that— may affect a plea, a finding, the sentence, the Statement of Trial Results, the record of trial, or any post-trial action by the convening authority; and are subject to resolution by the military judge before entry of judgment.

§ 860a Art. 60a. Limited authority to act on sentence in specified post-trial circumstances

(a) In General.— The convening authority of a general or special court-martial described in paragraph (2)— may act on the sentence of the court-martial only as provided in subsection (b), (c), or (d); and may not act on the findings of the court-martial. The courts-martial referred to in paragraph (1) are the following: A general or special court-martial in which the maximum sentence of confinement established under subsection (a) of section 856 of this title (article 56) for any offense of which the accused is found guilty is more than two years. A general or special court-martial in which the total of the sentences of confinement imposed, running consecutively, is more than six months. A general or special court-martial in which the sentence imposed includes a dismissal, dishonorable discharge, or bad-conduct discharge. A general or special court-martial in which the accused is found guilty of a violation of subsection (a) or (b) of section 920 of this title (article 120), section 920b of this title (article 120b), or such other offense as the Secretary of Defense may specify by regulation. Except as provided in subsection (d), the convening authority may act under this section only before entry of judgment. Under regulations prescribed by 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.

(b) Reduction, Commutation, and Suspension of Sentences Generally.— Except as provided in subsection (c) or (d), the convening authority may not reduce, commute, or suspend any of the following sentences: A sentence of confinement, if the total period of confinement imposed for all offenses involved, running consecutively, is greater than six months. A sentence of dismissal, dishonorable discharge, or bad-conduct discharge. A sentence of death. The convening authority may reduce, commute, or suspend any sentence not specified in paragraph (1).

(c) Suspension of Certain Sentences Upon Recommendation of Military Judge.— Upon recommendation of the military judge, as included in the Statement of Trial Results, together with an explanation of the facts supporting the recommendation, the convening authority may suspend— a sentence of confinement, in whole or in part; or a sentence of dismissal, dishonorable discharge, or bad-conduct discharge. The convening authority may not, under paragraph (1)— suspend a mandatory minimum sentence; or suspend a sentence to an extent in excess of the suspension recommended by the military judge.

(d) Reduction of Sentence for Substantial Assistance by Accused.— Upon a recommendation by the trial counsel, if the accused, after sentencing and before entry of judgment, provides substantial assistance in the investigation or prosecution of another person, the convening authority may reduce, commute, or suspend a sentence, in whole or in part, including any mandatory minimum sentence. Upon a recommendation by a trial counsel, designated in accordance with rules prescribed by the President, if the accused, after entry of judgment, provides substantial assistance in the investigation or prosecution of another person, a convening authority, designated under such regulations, may reduce, commute, or suspend a sentence, in whole or in part, including any mandatory minimum sentence. In evaluating whether the accused has provided substantial assistance under this subsection, the convening authority may consider the presentence assistance of the accused.

(e) Submissions by Accused and Victim.— In accordance with rules prescribed by the President, in determining whether to act under this section, the convening authority shall consider matters submitted in writing by the accused or any victim of an offense. Such rules shall include— procedures for notice of the opportunity to make such submissions; the deadlines for such submissions; and procedures for providing the accused and any victim of an offense with a copy of the recording of any open sessions of the court-martial and copies of, or access to, any admitted, unsealed exhibits. The convening authority shall not consider under this section any submitted matters that relate to the character of a victim unless such matters were presented as evidence at trial and not excluded at trial.

(f) Decision of Convening Authority.— The decision of the convening authority under this section shall be forwarded to the military judge, with copies provided to the accused and to any victim of the offense. If, under this section, the convening authority reduces, commutes, or suspends the sentence, the decision of the convening authority shall include a written explanation of the reasons for such action. If, under subsection (d)(2), the convening authority reduces, commutes, or suspends the sentence, the decision of the convening authority shall be forwarded to the chief trial judge for appropriate modification of the entry of judgment, which shall be transmitted to the Judge Advocate General for appropriate action.

§ 860b Art. 60b. Post-trial actions in summary courts-martial and certain general and special courts-martial

(a) In General.— In a court-martial not specified in section 860a(a)(2) of this title (article 60a(a)(2)), the convening authority may— dismiss any charge or specification by setting aside the finding of guilty; change a finding of guilty to a charge or specification to a finding of guilty to a lesser included offense; disapprove the findings and the sentence and dismiss the charges and specifications; disapprove the findings and the sentence and order a rehearing as to the findings and the sentence; disapprove, commute, or suspend the sentence, in whole or in part; or disapprove the sentence and order a rehearing as to the sentence. In a summary court-martial, the convening authority shall approve the sentence or take other action on the sentence under paragraph (1). Except as provided in paragraph (4), the convening authority may act under this section only before entry of judgment. The convening authority may act under this section after entry of judgment in a general or special court-martial in the same manner as the convening authority may act under section 860a(d)(2) of this title (article 60a(d)(2)). Such action shall be forwarded to the chief trial judge, who shall ensure appropriate modification to the entry of judgment and shall transmit the entry of judgment to the Judge Advocate General for appropriate action. Under regulations prescribed by 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.

(b) Limitations on Rehearings.— The convening authority may not order a rehearing under this section— as to the findings, if there is insufficient evidence in the record to support the findings; to reconsider a finding of not guilty of any specification or a ruling which amounts to a finding of not guilty; or to 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.

(c) Submissions by Accused and Victim.— In accordance with rules prescribed by the President, in determining whether to act under this section, the convening authority shall consider matters submitted in writing by the accused or any victim of the offense. Such rules shall include the matter required by section 860a(e) of this title (article 60a(e)).

(d) Decision of Convening Authority.— In a general or special court-martial, the decision of the convening authority under this section shall be forwarded to the military judge, with copies provided to the accused and to any victim of the offense. If the convening authority acts on the findings or the sentence under subsection (a)(1), the decision of the convening authority shall include a written explanation of the reasons for such action.

§ 860c Art. 60c. Entry of judgment

(a) Entry of Judgment of General or Special Court-martial.— In accordance with rules prescribed by the President, in a general or special court-martial, the military judge shall enter into the record of trial the judgment of the court. The judgment of the court shall consist of the following: The Statement of Trial Results under section 860 of this title (article 60). Any modifications of, or supplements to, the Statement of Trial Results by reason of— any post-trial action by the convening authority; or any ruling, order, or other determination of the military judge that affects a plea, a finding, or the sentence. Under rules prescribed by the President, the judgment under paragraph (1) shall be— provided to the accused and to any victim of the offense; and made available to the public.

(b) Summary Court-martial Judgment.— The findings and sentence of a summary court-martial, as modified by any post-trial action by the convening authority under section 860b of this title (article 60b), constitutes the judgment of the court-martial and shall be recorded and distributed under rules prescribed by the President.

§ 861 Art. 61. Waiver of right to appeal; withdrawal of appeal

(a) Waiver of Right to Appeal.— After entry of judgment in a general or special court-martial, under procedures prescribed by the Secretary concerned, the accused may waive the right to appellate review in each case subject to such review under section 866 of this title (article 66). Such a waiver shall be— signed by the accused and by defense counsel; and attached to the record of trial.

(b) Withdrawal of Appeal.— In a general or special court-martial, the accused may withdraw an appeal at any time.

(c) Death Penalty Case Exception.— Notwithstanding subsections (a) and (b), an accused may not waive the right to appeal or withdraw an appeal with respect to a judgment that includes a sentence of death.

(d) Waiver or Withdrawal as Bar.— Except as provided by section 869(c)(2) of this title (article 69(c)(2)), a waiver or withdrawal under this section bars review under section 866 of this title (article 66).

§ 862 Art. 62. Appeal by the United States

(a) In a trial by general or special court-martial, or in a pretrial proceeding under section 830a of this title (article 30a), the United States may appeal the following: An order or ruling of the military judge which terminates the proceedings with respect to a charge or specification. An order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding. An order or ruling which directs the disclosure of classified information. An order or ruling which imposes sanctions for nondisclosure of classified information. A refusal of the military judge to issue a protective order sought by the United States to prevent the disclosure of classified information. A refusal by the military judge to enforce an order described in subparagraph (E) that has previously been issued by appropriate authority. An order or ruling of the military judge entering a finding of not guilty with respect to a charge or specification following the return of a finding of guilty by the members. 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 trial counsel that the appeal is not taken for the purpose of delay and (if the order or ruling appealed is one which excludes evidence) that the evidence excluded is substantial proof of a fact material in the proceeding. An appeal of an order or ruling may not be taken when prohibited by section 844 of this title (article 44). 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 Criminal Appeals and shall, whenever practicable, have priority over all other proceedings before that court. In ruling on an appeal under this section, the Court of Criminal Appeals may act only with respect to matters of law.

(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.

(d) The United States may appeal a ruling or order of a military magistrate in the same manner as had the ruling or order been made by a military judge, except that the issue shall first be presented to the military judge who designated the military magistrate or to a military judge detailed to hear the issue.

(e) The provisions of this section shall be liberally construed to effect its purposes.

§ 863 Art. 63. Rehearings

(a) 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 severe than the original sentence may be adjudged, 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.

(b) If the sentence adjudged by the first court-martial was in accordance with a plea agreement under section 853a of this title (article 53a) and the accused at the rehearing does not comply with the agreement, or if a plea of guilty was entered for an offense at the first court-martial and a plea of not guilty was entered at the rehearing, the sentence as to those charges or specifications may include any punishment not in excess of that which could have been adjudged at the first court-martial, subject to such limitations as the President may prescribe by regulation.

(c) If, after appeal by the Government under section 856(d) of this title (article 56(d)), the sentence adjudged is set aside and a rehearing on sentence is ordered by the Court of Criminal Appeals or Court of Appeals for the Armed Forces, the court-martial may impose any sentence that is in accordance with the order or ruling setting aside the adjudged sentence, subject to such limitations as the President may prescribe by regulation.

§ 864 Art. 64. Judge advocate review of finding of guilty in summary court-martial

(a) In General.— Under regulations prescribed by the Secretary concerned, each summary court-martial in which there is a finding of guilty shall be reviewed by a judge advocate. A judge advocate may not review a case under this subsection if the judge advocate has acted in the same case as an accuser, preliminary hearing 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: Conclusions as to whether— the court had jurisdiction over the accused and the offense; the charge and specification stated an offense; and the sentence was within the limits prescribed as a matter of law. A response to each allegation of error made in writing by the accused. 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) Record.— 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— the judge advocate who reviewed the case recommends corrective action; or such action is otherwise required by regulations of the Secretary concerned.

(c) The person to whom the record of trial and related documents are sent under subsection (b) may— disapprove or approve the findings or sentence, in whole or in part; remit, commute, or suspend the sentence in whole or in part; 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 dismiss the charges. If a rehearing is ordered but the convening authority finds a rehearing impracticable, he shall dismiss the charges. 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 the Judge Advocate General for review under section 869 of this title (article 69).

§ 865 Art. 65. Transmittal and review of records

(a) Transmittal of Records.— If the judgment of a general or special court-martial entered under section 860c of this title (article 60c) includes a finding of guilty, the record shall be transmitted to the Judge Advocate General. In all other cases, records of trial by court-martial and related documents shall be transmitted and disposed of as the Secretary concerned may prescribe by regulation.

(b) Cases for Direct Appeal.— If the judgment includes a sentence of death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable discharge or bad-conduct discharge, or confinement for 2 years or more, the Judge Advocate General shall forward— the record of trial to the Court of Criminal Appeals for review under section 866(b)(3) of this title (article 66(b)(3)); and a copy of the record of trial to an appellate defense counsel who shall be detailed to review the case and, upon request of the accused, to represent the accused before the Court of Criminal Appeals. If the case is eligible for direct review under section 866(b)(1) of this title (article 66(b)(1)), the Judge Advocate General shall, upon written request of the accused— forward a copy of the record of trial to an appellate defense counsel who shall be detailed to review the case and to represent the accused before the Court of Criminal Appeals; and forward a copy of the record of trial to civilian counsel provided by the accused. Subparagraph (A) shall not apply if the accused waives the right to appeal under section 861 of this title (article 61).

(c) Notice of Right to Appeal.— The Judge Advocate General shall provide notice to the accused of the right to file an appeal under section 866(b)(1) of this title (article 66(b)(1)) by means of depositing in the United States mails for delivery by first class certified mail to the accused at an address provided by the accused or, if no such address has been provided by the accused, at the latest address listed for the accused in the official service record of the accused. Paragraph (1) shall not apply if the accused waives the right to appeal under section 861 of this title (article 61).

(d) Review by Judge Advocate General.— A review conducted under this subsection may be conducted by an attorney within the Office of the Judge Advocate General or another attorney designated under regulations prescribed by the Secretary concerned. A review under subparagraph (B) shall be completed in each general and special court-martial that is not eligible for direct appeal under paragraph (1) or (3) of section 866(b) of this title (article 66(b)). A review referred to in subparagraph (A) shall include a written decision providing each of the following: A conclusion as to whether the court had jurisdiction over the accused and the offense. A conclusion as to whether the charge and specification stated an offense. A conclusion as to whether the sentence was within the limits prescribed as a matter of law. A response to each allegation of error made in writing by the accused. A review under subparagraph (B) shall be completed in each general and special court-martial if— the accused waives the right to appeal or withdraws appeal under section 861 of this title (article 61); or the accused does not file a timely appeal in a case eligible for direct appeal under subparagraph (A), (B), or (C) of section 866(b)(1) of this title (article 66(b)(1)). A review referred to in subparagraph (A) shall include a written decision limited to providing conclusions on the matters specified in clauses (i), (ii), and (iii) of paragraph (2)(B).

(e) Remedy.— If after a review of a record under subsection (d), the attorney conducting the review believes corrective action may be required, the record shall be forwarded to the Judge Advocate General, who may set aside the findings or sentence, in whole or in part. In setting aside findings or sentence, the Judge Advocate General may order a rehearing, except that a rehearing may not be ordered in violation of section 844 of this title (article 44). If the Judge Advocate General sets aside findings and sentence and does not order a rehearing, the Judge Advocate General shall dismiss the charges. Subject to clause (ii), if the Judge Advocate General sets aside findings and orders a rehearing and the convening authority determines that a rehearing would be impractical, the convening authority shall dismiss the charges. If a case was referred to trial by a special trial counsel, a special trial counsel shall determine if a rehearing is impracticable and shall dismiss the charges if the special trial counsel so determines.

§ 866 Art. 66. Courts of Criminal Appeals

(a) Courts of Criminal Appeals.— Each Judge Advocate General shall establish a Court of Criminal Appeals 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 (h). Any decision of a panel may be reconsidered by the court sitting as a whole in accordance with such rules. Appellate military judges who are assigned to a Court of Criminal Appeals may be commissioned officers or civilians, each of whom must be a member of a bar of a Federal court or of the highest court of a State and must be certified by the Judge Advocate General as qualified, by reason of education, training, experience, and judicial temperament, for duty as an appellate military judge. The Judge Advocate General shall designate as chief judge one of the appellate military judges of the Court of Criminal Appeals established by him. The chief judge shall determine on which panels of the court the appellate judges assigned to the court will serve and which military judge assigned to the court will act as the senior judge on each panel. In accordance with regulations prescribed by the President, assignments of appellate military judges under this section (article) shall be for appropriate minimum periods, subject to such exceptions as may be authorized in the regulations. In addition to any other qualifications specified in paragraph (1), any commissioned officer or civilian assigned as an appellate military judge to a Court of Criminal Appeals shall have not fewer than 12 years of experience in the practice of law before such assignment.

(b) Review.— A Court of Criminal Appeals shall have jurisdiction over— a timely appeal from the judgment of a court-martial, entered into the record under section 860c(a) of this title (article 60c(a)), that includes a finding of guilty; and a summary court-martial case in which the accused filed an application for review with the Court under section 869(d)(1) of this title (article 69(d)(1)) and for which the application has been granted by the Court. A Court of Criminal Appeals shall have jurisdiction over all cases that the Judge Advocate General orders sent to the Court for review under section 856(d) of this title (article 56(d)). A Court of Criminal Appeals shall have jurisdiction over a court-martial in which the judgment entered into the record under section 860c of this title (article 60c) includes a sentence of death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable discharge or bad-conduct discharge, or confinement for 2 years or more.

(c) Timeliness.— An appeal under subsection (b)(1) is timely if— in the case of an appeal under subparagraph (A) of such subsection, it is filed before the later of— the end of the 90-day period beginning on the date the accused is provided notice of appellate rights under section 865(c) of this title (article 65(c)); or the date set by the Court of Criminal Appeals by rule or order; and in the case of an appeal under subparagraph (B) of such subsection, an application for review with the Court is filed not later than the earlier of the dates established under section 869(d)(2)(B) of this title (article 69(d)(2)(B)).

(d) Duties.— In any case before the Court of Criminal Appeals under subsection (b), the Court may act only with respect to the findings and sentence as entered into the record under section 860c of this title (article 60c). The Court may affirm only such findings of guilty as the Court finds correct in law, and in fact in accordance with subparagraph (B). In an appeal of a finding of guilty under subsection (b), the Court may consider whether the finding is correct in fact upon request of the accused if the accused makes a specific showing of a deficiency in proof. After an accused has made such a showing, the Court may weigh the evidence and determine controverted questions of fact subject to— appropriate deference to the fact that the trial court saw and heard the witnesses and other evidence; and appropriate deference to findings of fact entered into the record by the military judge. If, as a result of the review conducted under clause (ii), the Court is clearly convinced that the finding of guilty was against the weight of the evidence, the Court may dismiss, set aside, or modify the finding, or affirm a lesser finding. In any case before the Court of Criminal Appeals under subsection (b), the Court may provide appropriate relief if the accused demonstrates error or excessive delay in the processing of the court-martial after the judgment was entered into the record under section 860c of this title (article 60c).

(e) Consideration of Sentence.— In considering a sentence on appeal, other than as provided in section 856(d) of this title (article 56(d)), the Court of Criminal Appeals may consider— whether the sentence violates the law; whether the sentence is inappropriately severe— if the sentence is for an offense for which the President has not established a sentencing parameter pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022; or in the case of an offense for which the President has established a sentencing parameter pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022, if the sentence is above the upper range of such sentencing parameter; in the case of a sentence for an offense for which the President has established a sentencing parameter pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022, whether the sentence is a result of an incorrect application of the parameter; whether the sentence is plainly unreasonable; and in review of a sentence to death or to life in prison without eligibility for parole determined by the members in a capital case under section 853(c) of this title (article 53(c)), whether the sentence is otherwise appropriate, under rules prescribed by the President. In an appeal under this subsection or section 856(d) of this title (article 56(d)), other than review under subsection (b)(2) of this section, the record on appeal shall consist of— any portion of the record in the case that is designated as pertinent by any party; the information submitted during the sentencing proceeding; and any information required by rule or order of the Court of Criminal Appeals.

(f) Limits of Authority.— If the Court of Criminal Appeals sets aside the findings, the Court— may affirm any lesser included offense; and may, except when prohibited by section 844 of this title (article 44), order a rehearing. If the Court of Criminal Appeals sets aside the findings and does not order a rehearing, the Court shall order that the charges be dismissed. Subject to clause (ii), if the Court of Criminal Appeals orders a rehearing on a charge and the convening authority finds a rehearing impracticable, the convening authority may dismiss the charge. If a case was referred to trial by a special trial counsel, a special trial counsel shall determine if a rehearing is impracticable and shall dismiss the charges if the special trial counsel so determines. If the Court of Criminal Appeals sets aside the sentence, the Court may— modify the sentence to a lesser sentence; or order a rehearing. If the Court of Criminal Appeals determines that additional proceedings are warranted, the Court may order a hearing as may be necessary to address a substantial issue, subject to such limitations as the Court may direct and under such regulations as the President may prescribe. If the Court of Appeals for the Armed Forces determines that additional proceedings are warranted, the Court of Criminal Appeals shall order a hearing or other proceeding in accordance with the direction of the Court of Appeals for the Armed Forces.

(g) Action in Accordance With Decisions of Courts.— The Judge Advocate General shall, unless there is to be further action by the President, the Secretary concerned, the Court of Appeals for the Armed Forces, or the Supreme Court, instruct the appropriate authority to take action in accordance with the decision of the Court of Criminal Appeals.

(h) Rules of Procedure.— The Judge Advocates General shall prescribe uniform rules of procedure for Courts of Criminal Appeals and shall meet periodically to formulate policies and procedure in regard to review of court-martial cases in the offices of the Judge Advocates General and by Courts of Criminal Appeals.

(i) Prohibition on Evaluation of Other Members of Courts.— No member of a Court of Criminal Appeals shall be required, or on his own initiative be permitted, to prepare, approve, disapprove, review, or submit, with respect to any other member of the same or another Court of Criminal Appeals, an effectiveness, fitness, or efficiency report, or 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.

(j) Ineligibility of Members of Courts To Review Records of Cases Involving Certain Prior Member Service.— No member of a Court of Criminal Appeals shall be eligible to review the record of any trial if such member served as investigating officer in the case or served as a member of the court-martial before which such trial was conducted, or served as military judge, trial or defense counsel, or reviewing officer of such trial.

§ 867 Art. 67. Review by the Court of Appeals for the Armed Forces

(a) The Court of Appeals for the Armed Forces shall review the record in— all cases in which the sentence, as affirmed by a Court of Criminal Appeals, extends to death; all cases reviewed by a Court of Criminal Appeals which the Judge Advocate General, after appropriate notification to the other Judge Advocates General and the Staff Judge Advocate to the Commandant of the Marine Corps, orders sent to the Court of Appeals for the Armed Forces for review; and all cases reviewed by a Court of Criminal Appeals in which, upon petition of the accused and on good cause shown, the Court of Appeals for the Armed Forces has granted a review.

(b) The accused may petition the Court of Appeals for the Armed Forces for review of a decision of a Court of Criminal Appeals within 60 days from the earlier of— the date on which the accused is notified of the decision of the Court of Criminal Appeals; or the date on which a copy of the decision of the Court of Criminal Appeals, 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 certified mail to the accused at an address provided by the accused or, if no such address has been provided by the accused, at the latest address listed for the accused in his official service record. The Court of Appeals for the Armed Forces 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 Appeals for the Armed Forces may act only with respect to— the findings and sentence set forth in the entry of judgment, as affirmed or set aside as incorrect in law by the Court of Criminal Appeals; a decision, judgment, or order by a military judge, as affirmed or set aside as incorrect in law by the Court of Criminal Appeals; or the findings set forth in the entry of judgment, as affirmed, dismissed, set aside, or modfied by the Court of Criminal Appeals as incorrect in fact under section 866(d)(1)(B) of this title (article 66(d)(1)(B)). In a case which the Judge Advocate General orders sent to the Court of Appeals for the Armed Forces, 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 Appeals for the Armed Forces shall take action only with respect to matters of law.

(d) If the Court of Appeals for the Armed Forces 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 Appeals for the Armed Forces may direct the Judge Advocate General to return the record to the Court of Criminal Appeals 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. Notwithstanding the preceding sentence, if a case was referred to trial by a special trial counsel, a special trial counsel shall determine if a rehearing is impracticable and shall dismiss the charges if the special trial counsel so determines.

§ 867a Art. 67a. Review by the Supreme Court

(a) Decisions of the United States Court of Appeals for the Armed Forces are subject to review by the Supreme Court by writ of certiorari as provided in section 1259 of title 28 .

(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 Criminal Appeals with one or more panels. That Assistant Judge Advocate General and any Court of Criminal Appeals 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 Criminal Appeals established by the Judge Advocate General would otherwise be required to perform as to all cases involving sentences not requiring approval by the President. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 61 ; Pub. L. 90–632, § 2(29) , Oct. 24, 1968 , 82 Stat. 1342 ; Pub. L. 103–337, div. A, title IX, § 924(c)(2) , Oct. 5, 1994 , 108 Stat. 2831 .)

§ 869 Art. 69. Review by Judge Advocate General

(a) In General.— Upon application by the accused or receipt of the record pursuant to section 864(c)(3) of this title (article 64(c)(3)) and subject to subsections (b), (c), and (d), the Judge Advocate General may— with respect to a summary court-martial, modify or set aside, in whole or in part, the findings and sentence; or with respect to a general or special court-martial, order such court-martial to be reviewed under section 866 of this title (article 66).

(b) Timing.— To qualify for consideration, an application under subsection (a) must be submitted to the Judge Advocate General not later than— for a summary court-martial, one year after the date of completion of review under section 864 of this title (article 64); or for a general or special court-martial, one year after the end of the 90-day period beginning on the date the accused is provided notice of appellate rights under section 865(c) of this title (article 65(c)), unless the accused submitted a waiver or withdrawal of appellate review under section 861 of this title (article 61) before being provided notice of appellate rights, in which case the application must be submitted to the Judge Advocate General not later than one year after the entry of judgment under section 860c of this title (article 60c). The Judge Advocate General may, for good cause shown, extend the period for submission of an application, except that— in the case of an application for review of a summary court martial, the Judge Advocate may not consider an application submitted more than three years after the completion date referred to in paragraph (1)(A); and in case of an application for review of a general or special court-martial, the Judge Advocate may not consider an application submitted more than three years after the end of the applicable period under paragraph (1)(B).

(c) Scope.— In a case reviewed under section 864 of this title (article 64), the Judge Advocate General may set aside the findings or sentence, in whole or in part, on the grounds 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. In setting aside findings or sentence, the Judge Advocate General may order a rehearing, except that a rehearing may not be ordered in violation of section 844 of this title (article 44). If the Judge Advocate General sets aside findings and sentence and does not order a rehearing, the Judge Advocate General shall dismiss the charges. Subject to clause (ii), if the Judge Advocate General sets aside findings and orders a rehearing and the convening authority determines that a rehearing would be impracticable, the convening authority shall dismiss the charges. If a case was referred to trial by a special trial counsel, a special trial counsel shall determine if a rehearing is impracticable and shall dismiss the charges if the special trial counsel so determines. In a case reviewed under section 865(b) of this title (article 65(b)), review under this section is limited to the issue of whether the waiver or withdrawal of an appeal was invalid under the law. If the Judge Advocate General determines that the waiver or withdrawal of an appeal was invalid, the Judge Advocate General shall send the case to the Court of Criminal Appeals.

(d) Court of Criminal Appeals.— A Court of Criminal Appeals may review the action taken by the Judge Advocate General under subsection (c)(1) in a case submitted to the Court of Criminal Appeals by the accused in an application for review. The Court of Criminal Appeals may grant an application under paragraph (1) only if— the application demonstrates a substantial basis for concluding that the action on review under subsection (c) constituted prejudicial error; and the application is filed not later than the earlier of— 60 days after the date on which the accused is notified of the decision of the Judge Advocate General; or 60 days after the date on which a copy of the decision of the Judge Advocate General is deposited in the United States mails for delivery by first-class certified mail to the accused at an address provided by the accused or, if no such address has been provided by the accused, at the latest address listed for the accused in his official service record. The submission of an application for review under this subsection does not constitute a proceeding before the Court of Criminal Appeals for purposes of section 870(c)(1) of this title (article 70(c)(1)).

(e) Action Only on Matters of Law.— Notwithstanding section 866 of this title (article 66), in any case reviewed by a Court of Criminal Appeals under subsection (d), 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 Criminal Appeals or the Court of Appeals for the Armed Forces 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 Criminal Appeals, the Court of Appeals for the Armed Forces, or the Supreme Court— when requested by the accused; when the United States is represented by counsel; or when the Judge Advocate General has sent the case to the Court of Appeals for the Armed Forces.

(d) The accused has the right to be represented before the Court of Criminal Appeals, the Court of Appeals for the Armed Forces, 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.

(f) To the greatest extent practicable, in any capital case, at least one defense counsel under subsection (c) shall, as determined by the Judge Advocate General, be learned in the law applicable to such cases. If necessary, this counsel may be a civilian and, if so, may be compensated in accordance with regulations prescribed by the Secretary of Defense.

[§ 871 Repealed. Pub. L. 114–328, div. E, title LVIII, § 5302(b)(2), Dec. 23, 2016, 130 Stat. 2923]

§ 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 special court-martial convening authority may detail a judge advocate, who is certified under section 827(b) of this title (article 27(b)), to conduct the hearing. The probationer shall be represented at the hearing by counsel if the probationer 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 the officer exercising general court-martial jurisdiction vacates the suspension, any unexecuted part of the sentence, except a dismissal, shall be executed, subject to applicable restrictions in section 857 of this title (article 57). The vacation of the suspension of a dismissal is not effective until approved by the Secretary concerned.

(c) The suspension of any 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 three years after the date of the entry of judgment under section 860c of this title (article 60c), 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 Criminal Appeals or before the Court of Appeals for the Armed Forces, the Judge Advocate General shall refer the petition to the appropriate court for action. Otherwise the Judge Advocate General shall act upon the petition. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 63 ; Pub. L. 90–632, § 2(33) , Oct. 24, 1968 , 82 Stat. 1342 ; Pub. L. 103–337, div. A, title IX, § 924(c)(1) , (2), Oct. 5, 1994 , 108 Stat. 2831 ; Pub. L. 114–328, div. E, title LIX, § 5336 , Dec. 23, 2016 , 130 Stat. 2937 .)

§ 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 approved by the President. However, in the case of a sentence of confinement for life without eligibility for parole that is adjudged for an offense committed after October 29, 2000 , after the sentence is ordered executed, the authority of the Secretary concerned under the preceding sentence (1) may not be delegated, and (2) may be exercised only after the service of a period of confinement of not less than 20 years.

(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 his enlistment.

(c) If a previously executed sentence of dismissal is 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 that sentence may be reappointed 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 the reappointment shall be considered as actual service for all purposes, including the right to pay and allowances.

(d) The President shall prescribe regulations, with such limitations as the President considers appropriate, governing eligibility for pay and allowances for the period after the date on which an executed part of a court-martial sentence is set aside.

§ 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-martial 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. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 64 .)

§ 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 includes an unsuspended dismissal or an unsuspended dishonorable or bad-conduct discharge. The accused may be required to begin such leave on the date of the entry of judgment under section 860c of this title (article 60c) or at any time after such date, and such leave may be continued until the date on which action under this subchapter is completed or may be terminated at any earlier time. (Added Pub. L. 97–81, § 2(c)(1) , Nov. 20, 1981 , 95 Stat. 1087 ; amended Pub. L. 98–209, § 5(g) , Dec. 6, 1983 , 97 Stat. 1400 ; Pub. L. 114–328, div. E, title LIX, § 5338 , Dec. 23, 2016 , 130 Stat. 2937 .)

§ 876b Art. 76b. Lack of mental capacity or mental responsibility: commitment of accused for examination and treatment

(a) Persons Incompetent To Stand Trial.— In the case of a person determined under this chapter to be presently suffering from a mental disease or defect rendering the person mentally incompetent to the extent that the person is unable to understand the nature of the proceedings against that person or to conduct or cooperate intelligently in the defense of the case, the general court-martial convening authority for that person shall commit the person to the custody of the Attorney General. The Attorney General shall take action in accordance with section 4241(d) of title 18 . If at the end of the period for hospitalization provided for in section 4241(d) of title 18 , it is determined that the committed person’s mental condition has not so improved as to permit the trial to proceed, action shall be taken in accordance with section 4246 of such title. When the director of a facility in which a person is hospitalized pursuant to paragraph (2) determines that the person has recovered to such an extent that the person is able to understand the nature of the proceedings against the person and to conduct or cooperate intelligently in the defense of the case, the director shall promptly transmit a notification of that determination to the Attorney General and to the general court-martial convening authority for the person. The director shall send a copy of the notification to the person’s counsel. Upon receipt of a notification, the general court-martial convening authority shall promptly take custody of the person unless the person covered by the notification is no longer subject to this chapter. If the person is no longer subject to this chapter, the Attorney General shall take any action within the authority of the Attorney General that the Attorney General considers appropriate regarding the person. The director of the facility may retain custody of the person for not more than 30 days after transmitting the notifications required by subparagraph (A). In the application of section 4246 of title 18 to a case under this subsection, references to the court that ordered the commitment of a person, and to the clerk of such court, shall be deemed to refer to the general court-martial convening authority for that person. However, if the person is no longer subject to this chapter at a time relevant to the application of such section to the person, the United States district court for the district where the person is hospitalized or otherwise may be found shall be considered as the court that ordered the commitment of the person.

(b) Persons Found Not Guilty by Reason of Lack of Mental Responsibility.— If a person is found by a court-martial not guilty only by reason of lack of mental responsibility, the person shall be committed to a suitable facility until the person is eligible for release in accordance with this section. The court-martial shall conduct a hearing on the mental condition in accordance with subsection (c) of section 4243 of title 18 . Subsections (b) and (d) of that section shall apply with respect to the hearing. A report of the results of the hearing shall be made to the general court-martial convening authority for the person. If the court-martial fails to find by the standard specified in subsection (d) of section 4243 of title 18 that the person’s release would not create a substantial risk of bodily injury to another person or serious damage of property of another due to a present mental disease or defect— the general court-martial convening authority may commit the person to the custody of the Attorney General; and the Attorney General shall take action in accordance with subsection (e) of section 4243 of title 18 . Subsections (f), (g), and (h) of section 4243 of title 18 shall apply in the case of a person hospitalized pursuant to paragraph (4)(B), except that the United States district court for the district where the person is hospitalized shall be considered as the court that ordered the person’s commitment.

(c) General Provisions.— Except as otherwise provided in this subsection and subsection (d)(1), the provisions of section 4247 of title 18 apply in the administration of this section. In the application of section 4247(d) of title 18 to hearings conducted by a court-martial under this section or by (or by order of) a general court-martial convening authority under this section, the reference in that section to section 3006A of such title does not apply.

(d) Applicability.— The provisions of chapter 313 of title 18 referred to in this section apply according to the provisions of this section notwithstanding section 4247(j) of title 18 . If the status of a person as described in section 802 of this title (article 2) terminates while the person is, pursuant to this section, in the custody of the Attorney General, hospitalized, or on conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment, the provisions of this section establishing requirements and procedures regarding a person no longer subject to this chapter shall continue to apply to that person notwithstanding the change of status.

§ 877 Art. 77. Principals

Any person punishable under this chapter who— commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission; or causes an act to be done which if directly performed by him would be punishable by this chapter; is a principal. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 65 .)

§ 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. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 65 .)

§ 879 Art. 79. Conviction of offense charged, lesser included offenses, and attempts

(a) In General.— An accused may be found guilty of any of the following: The offense charged. A lesser included offense. An attempt to commit the offense charged. An attempt to commit a lesser included offense, if the attempt is an offense in its own right.

(b) Lesser Included Offense Defined.— In this section (article), the term “lesser included offense” means— an offense that is necessarily included in the offense charged; and any lesser included offense so designated by regulation prescribed by the President.

(c) Regulatory Authority.— Any designation of a lesser included offense in a regulation referred to in subsection (b) shall be reasonably included in the greater offense.

§ 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

(a) 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.

(b) Any person subject to this chapter who conspires with any other person to commit an offense under the law of war, and who knowingly does an overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a court-martial or military commission may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a court-martial or military commission may direct.

§ 882 Art. 82. Soliciting commission of offenses

(a) Soliciting Commission of Offenses Generally.— Any person subject to this chapter who solicits or advises another to commit an offense under this chapter (other than an offense specified in subsection (b)) shall be punished as a court-martial may direct.

(b) Soliciting Desertion, Mutiny, Sedition, or Misbehavior Before the Enemy.— Any person subject to this chapter who solicits or advises another to violate section 885 of this title (article 85), section 894 of this title (article 94), or section 899 of this title (article 99)— if the offense solicited or advised is attempted or is committed, shall be punished with the punishment provided for the commission of the offense; and if the offense solicited or advised is not attempted or committed, shall be punished as a court-martial may direct.

§ 883 Art. 83. Malingering

Any person subject to this chapter who, with the intent to avoid work, duty, or service— feigns illness, physical disablement, mental lapse, or mental derangement; or intentionally inflicts self-injury; shall be punished as a court-martial may direct. (Added Pub. L. 114–328, div. E, title LX, § 5404 , Dec. 23, 2016 , 130 Stat. 2940 .)

§ 884 Art. 84. Breach of medical quarantine

Any person subject to this chapter— who is ordered into medical quarantine by a person authorized to issue such order; and who, with knowledge of the quarantine and the limits of the quarantine, goes beyond those limits before being released from the quarantine by proper authority; shall be punished as a court-martial may direct. (Added Pub. L. 114–328, div. E, title LX, § 5405 , Dec. 23, 2016 , 130 Stat. 2940 .)

§ 885 Art. 85. Desertion

(a) Any member of the armed forces who— without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently; quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another one 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.

§ 886 Art. 86. Absence without leave

Any member of the armed forces who, without authority— fails to go to his appointed place of duty at the time prescribed; goes from that place; or 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. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 67 .)

§ 887 Art. 87. Missing movement; jumping from vessel

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

(b) Jumping From Vessel Into the Water.— Any person subject to this chapter who wrongfully and intentionally jumps into the water from a vessel in use by the armed forces shall be punished as a court-martial may direct.

§ 887a Art. 87a. Resistance, flight, breach of arrest, and escape

Any person subject to this chapter who— resists apprehension; flees from apprehension; breaks arrest; or escapes from custody or confinement; shall be punished as a court-martial may direct. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 69 , § 895; Pub. L. 104–106, div. A, title XI, § 1112(a) , Feb. 10, 1996 , 110 Stat. 461 ; renumbered § 887a, Pub. L. 114–328, div. E, title LX, § 5401(2) , Dec. 23, 2016 , 130 Stat. 2938 .)

§ 887b Art. 87b. Offenses against correctional custody and restriction

(a) Escape From Correctional Custody.— Any person subject to this chapter— who is placed in correctional custody by a person authorized to do so; who, while in correctional custody, is under physical restraint; and who escapes from the physical restraint before being released from the physical restraint by proper authority; shall be punished as a court-martial may direct.

(b) Breach of Correctional Custody.— Any person subject to this chapter— who is placed in correctional custody by a person authorized to do so; who, while in correctional custody, is under restraint other than physical restraint; and who goes beyond the limits of the restraint before being released from the correctional custody or relieved of the restraint by proper authority; shall be punished as a court-martial may direct.

(c) Breach of Restriction.— Any person subject to this chapter— who is ordered to be restricted to certain limits by a person authorized to do so; and who, with knowledge of the limits of the restriction, goes beyond those limits before being released by proper authority; 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 Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 67 ; Pub. L. 96–513, title V, § 511(25) , Dec. 12, 1980 , 94 Stat. 2922 ; Pub. L. 107–296, title XVII, § 1704(b)(1) , Nov. 25, 2002 , 116 Stat. 2314 ; Pub. L. 109–163, div. A, title X, § 1057(a)(3) , Jan. 6, 2006 , 119 Stat. 3440 .)

§ 889 Art. 89. Disrespect toward superior commissioned officer; assault of superior commissioned officer

(a) Disrespect.— Any person subject to this chapter who behaves with disrespect toward that person’s superior commissioned officer shall be punished as a court-martial may direct.

(b) Assault.— Any person subject to this chapter who strikes that person’s superior commissioned officer or draws or lifts up any weapon or offers any violence against that officer while the officer is in the execution of the officer’s office 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.

§ 890 Art. 90. Willfully disobeying superior commissioned officer

Any person subject to this chapter who willfully disobeys a lawful command of that person’s 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. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 68 ; Pub. L. 114–328, div. E, title LX, § 5409 , Dec. 23, 2016 , 130 Stat. 2942 .)

§ 891 Art. 91. Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer

Any warrant officer or enlisted member who— strikes or assaults a warrant officer, noncommissioned officer, or petty officer, while that officer is in the execution of his office; willfully disobeys the lawful order of a warrant officer, noncommissioned officer, or petty officer; or 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. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 68 .)

§ 892 Art. 92. Failure to obey order or regulation

Any person subject to this chapter who— violates or fails to obey any lawful general order or regulation; having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or is derelict in the performance of his duties; shall be punished as a court-martial may direct. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 68 .)

§ 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. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 68 .)

§ 893a Art. 93a. Prohibited activities with military recruit or trainee by person in position of special trust

(a) Abuse of Training Leadership Position.— Any person subject to this chapter— who is an officer, a noncommissioned officer, or a petty officer; who is in a training leadership position with respect to a specially protected junior member of the armed forces; and who engages in prohibited sexual activity with such specially protected junior member of the armed forces; shall be punished as a court-martial may direct.

(b) Abuse of Position as Military Recruiter.— Any person subject to this chapter— who is a military recruiter and engages in prohibited sexual activity with an applicant for military service; or who is a military recruiter and engages in prohibited sexual activity with a specially protected junior member of the armed forces who is enlisted under a delayed entry program; shall be punished as a court-martial may direct.

(c) Consent.— Consent is not a defense for any conduct at issue in a prosecution under this section (article).

(d) Definitions.— In this section (article): The term “specially protected junior member of the armed forces” means— a member of the armed forces who is assigned to, or is awaiting assignment to, basic training or other initial active duty for training, including a member who is enlisted under a delayed entry program; a member of the armed forces who is a cadet, a midshipman, an officer candidate, or a student in any other officer qualification program; and a member of the armed forces in any program that, by regulation prescribed by the Secretary concerned, is identified as a training program for initial career qualification. The term “training leadership position” means, with respect to a specially protected junior member of the armed forces, any of the following: Any drill instructor position or other leadership position in a basic training program, an officer candidate school, a reserve officers’ training corps unit, a training program for entry into the armed forces, or any program that, by regulation prescribed by the Secretary concerned, is identified as a training program for initial career qualification. Faculty and staff of the United States Military Academy, the United States Naval Academy, the United States Air Force Academy, and the United States Coast Guard Academy. The term “applicant for military service” means a person who, under regulations prescribed by the Secretary concerned, is an applicant for original enlistment or appointment in the armed forces. The term “military recruiter” means a person who, under regulations prescribed by the Secretary concerned, has the primary duty to recruit persons for military service. The term “prohibited sexual activity” means, as specified in regulations prescribed by the Secretary concerned, inappropriate physical intimacy under circumstances described in such regulations.

§ 894 Art. 94. Mutiny or sedition

(a) Any person subject to this chapter who— 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; with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition; 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. Offenses by sentinel or lookout

(a) Drunk or Sleeping on Post, or Leaving Post Before Being Relieved.— Any sentinel or lookout who is drunk on post, who sleeps on post, or who leaves post before being 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; and if the offense is committed other than in time of war, by such punishment, other than death, as a court-martial may direct.

(b) Loitering or Wrongfully Sitting on Post.— Any sentinel or lookout who loiters or wrongfully sits down on post shall be punished as a court-martial may direct.

§ 895a Art. 95a. Disrespect toward sentinel or lookout

(a) Disrespectful Language Toward Sentinel or Lookout.— Any person subject to this chapter who, knowing that another person is a sentinel or lookout, uses wrongful and disrespectful language that is directed toward and within the hearing of the sentinel or lookout, who is in the execution of duties as a sentinel or lookout, shall be punished as a court-martial may direct.

(b) Disrespectful Behavior Toward Sentinel or Lookout.— Any person subject to this chapter who, knowing that another person is a sentinel or lookout, behaves in a wrongful and disrespectful manner that is directed toward and within the sight of the sentinel or lookout, who is in the execution of duties as a sentinel or lookout, shall be punished as a court-martial may direct.

§ 896 Art. 96. Release of prisoner without authority; drinking with prisoner

(a) Release of Prisoner Without Authority.— Any person subject to this chapter— who, without authority to do so, releases a prisoner; or who, through neglect or design, allows a prisoner to escape; shall be punished as a court-martial may direct, whether or not the prisoner was committed in strict compliance with the law.

(b) Drinking With Prisoner.— Any person subject to this chapter who unlawfully drinks any alcoholic beverage with a prisoner shall be punished as a court-martial may direct.

§ 897 Art. 97. Unlawful detention

Any person subject to this chapter who, except as provided by law, apprehends, arrests, or confines any person shall be punished as a court-martial may direct. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 69 .)

§ 898 Art. 98. Misconduct as prisoner

Any person subject to this chapter who, while in the hands of the enemy in time of war— 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 while in a position of authority over such persons maltreats them without justifiable cause; shall be punished as a court-martial may direct. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 71 , § 905; renumbered § 898, Pub. L. 114–328, div. E, title LX, § 5401(6) , Dec. 23, 2016 , 130 Stat. 2938 .)

§ 899 Art. 99. Misbehavior before the enemy

Any member of the armed forces who before or in the presence of the enemy— runs away; shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his duty to defend; through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property; casts away his arms or ammunition; is guilty of cowardly conduct; quits his place of duty to plunder or pillage; causes false alarms in any command, unit, or place under control of the armed forces; 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 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 other punishment as a court-martial may direct. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 69 .)

§ 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 other 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 an enemy without proper authority, shall be punished by death or such other punishment as a court-martial may direct. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 70 .)

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

§ 902 Art. 102. Forcing a safeguard

Any person subject to this chapter who forces a safeguard shall suffer death or such other punishment as a court-martial may direct. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 70 .)

§ 903 Art. 103. 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 United States, or elsewhere, shall be tried by a general court-martial or by a military commission and on conviction shall be punished by death or such other punishment as a court-martial or a military commission may direct. This section does not apply to a military commission established under chapter 47A of this title. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 71 , § 906; Pub. L. 109–366, § 4(a)(2) , Oct. 17, 2006 , 120 Stat. 2631 ; renumbered § 903 and amended Pub. L. 114–328, div. E, title LX , §§ 5401(7), 5414, Dec. 23, 2016 , 130 Stat. 2938 , 2944.)

§ 903a Art. 103a. Espionage

(a) 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, anything 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. An entity referred to in paragraph (1) is— a foreign government; a faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States; or a representative, officer, agent, employee, subject, or citizen of such a government, faction, party, or force. A thing referred 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) No person may be sentenced by court-martial to suffer death for an offense under this section (article) unless— the members of the court-martial unanimously find at least one of the aggravating factors set out in subsection (c); and the members unanimously determine that any extenuating or mitigating circumstances are substantially outweighed by any aggravating circumstances, including the aggravating factors set out in subsection (c). Findings under this subsection may be based on— evidence introduced on the issue of guilt or innocence; evidence introduced during the sentencing proceeding; or all such evidence. 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: 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. In the commission of the offense, the accused knowingly created a grave risk of substantial damage to the national security. In the commission of the offense, the accused knowingly created a grave risk of death to another person. Any other factor that may be prescribed by the President by regulations under section 836 of this title (article 36).

§ 903b Art. 103b. Aiding the enemy

Any person who— aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or without proper authority, knowingly harbors or protects or gives intelligence to, provides military education, military training, or tactical advice 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. This section does not apply to a military commission established under chapter 47A of this title. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 70 , § 904; Pub. L. 109–366, § 4(a)(2) , Oct. 17, 2006 , 120 Stat. 2631 ; renumbered § 903b, Pub. L. 114–328, div. E, title LX, § 5401(5) , Dec. 23, 2016 , 130 Stat. 2938 ; Pub. L. 118–159, div. A, title V, § 564 , Dec. 23, 2024 , 138 Stat. 1904 .)

§ 904 Art. 104. Public records offenses

Any person subject to this chapter who, willfully and unlawfully— alters, conceals, removes, mutilates, obliterates, or destroys a public record; or takes a public record with the intent to alter, conceal, remove, mutilate, obliterate, or destroy the public record; shall be punished as a court-martial may direct. (Added Pub. L. 114–328, div. E, title LX, § 5415 , Dec. 23, 2016 , 130 Stat. 2944 .)

§ 904a Art. 104a. Fraudulent enlistment, appointment, or separation

Any person who— procures his own enlistment or appointment in the armed forces by knowingly false representation or deliberate concealment as to his qualifications for that enlistment or appointment and receives pay or allowances thereunder; or 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. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 66 , § 883; renumbered § 904a, Pub. L. 114–328, div. E, title LX, § 5401(1) , Dec. 23, 2016 , 130 Stat. 2938 .)

§ 904b Art. 104b. 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. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 66 , § 884; renumbered § 904b, Pub. L. 114–328, title LX, § 5401(1) , Dec. 23, 2016 , 130 Stat. 2938 .)

§ 905 Art. 105. Forgery

Any person subject to this chapter who, with intent to defraud— 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 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. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 74 , § 923; renumbered § 905, Pub. L. 114–328, div. E, title LX, § 5401(12) , Dec. 23, 2016 , 130 Stat. 2939 .)

§ 905a Art. 105a. False or unauthorized pass offenses

(a) Wrongful Making, Altering, etc.— Any person subject to this chapter who, wrongfully and falsely, makes, alters, counterfeits, or tampers with a military or official pass, permit, discharge certificate, or identification card shall be punished as a court-martial may direct.

(b) Wrongful Sale, etc.— Any person subject to this chapter who wrongfully sells, gives, lends, or disposes of a false or unauthorized military or official pass, permit, discharge certificate, or identification card, knowing that the pass, permit, discharge certificate, or identification card is false or unauthorized, shall be punished as a court-martial may direct.

(c) Wrongful Use or Possession.— Any person subject to this chapter who wrongfully uses or possesses a false or unauthorized military or official pass, permit, discharge certificate, or identification card, knowing that the pass, permit, discharge certificate, or identification card is false or unauthorized, shall be punished as a court-martial may direct.

§ 906 Art. 106. Impersonation of officer, noncommissioned or petty officer, or agent or official

(a) In General.— Any person subject to this chapter who, wrongfully and willfully, impersonates— an officer, a noncommissioned officer, or a petty officer; an agent of superior authority of one of the armed forces; or an official of a government; shall be punished as a court-martial may direct.

(b) Impersonation With Intent to Defraud.— Any person subject to this chapter who, wrongfully, willfully, and with intent to defraud, impersonates any person referred to in paragraph (1), (2), or (3) of subsection (a) shall be punished as a court-martial may direct.

(c) Impersonation of Government Official Without Intent to Defraud.— Any person subject to this chapter who, wrongfully, willfully, and without intent to defraud, impersonates an official of a government by committing an act that exercises or asserts the authority of the office that the person claims to have shall be punished as a court-martial may direct.

§ 906a Art. 106a. Wearing unauthorized insignia, decoration, badge, ribbon, device, or lapel button

Any person subject to this chapter— who is not authorized to wear an insignia, decoration, badge, ribbon, device, or lapel button; and who wrongfully wears such insignia, decoration, badge, ribbon, device, or lapel button upon the person’s uniform or civilian clothing; shall be punished as a court-martial may direct. (Added Pub. L. 114–328, div. E, title LX, § 5418 , Dec. 23, 2016 , 130 Stat. 2945 .)

§ 907 Art. 107. False official statements; false swearing

(a) False Official 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.

(b) False Swearing.— Any person subject to this chapter— who takes an oath that— is administered in a matter in which such oath is required or authorized by law; and is administered by a person with authority to do so; and who, upon such oath, makes or subscribes to a statement; if the statement is false and at the time of taking the oath, the person does not believe the statement to be true, shall be punished as a court-martial may direct.

§ 907a Art. 107a. Parole violation

Any person subject to this chapter— who, having been a prisoner as the result of a court-martial conviction or other criminal proceeding, is on parole with conditions; and who violates the conditions of parole; shall be punished as a court-martial may direct. (Added Pub. L. 114–328, div. E, title LX, § 5420 , Dec. 23, 2016 , 130 Stat. 2946 .)

§ 908 Art. 108. Military property of United States—Loss, damage, destruction, or wrongful disposition

Any person subject to this chapter who, without proper authority— sells or otherwise disposes of; willfully or through neglect damages, destroys, or loses; or willfully or through neglect suffers to be lost, damaged, destroyed, sold, or wrongfully disposed of; any military property of the United States, shall be punished as a court-martial may direct. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 71 .)

§ 908a Art. 108a. Captured or abandoned property

(a) All persons subject to this chapter shall 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— fails to carry out the duties prescribed in subsection (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 advantage to himself or another directly or indirectly connected with himself; or engages in looting or pillaging; 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. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 71 .)

§ 909a Art. 109a. Mail matter: wrongful taking, opening, etc.

(a) Taking.— Any person subject to this chapter who, with the intent to obstruct the correspondence of, or to pry into the business or secrets of, any person or organization, wrongfully takes mail matter before the mail matter is delivered to or received by the addressee shall be punished as a court-martial may direct.

(b) Opening, Secreting, Destroying, Stealing.— Any person subject to this chapter who wrongfully opens, secretes, destroys, or steals mail matter before the mail matter is delivered to or received by the addressee shall be punished as a court-martial may direct.

§ 910 Art. 110. Improper hazarding of vessel or aircraft

(a) Willful and Wrongful Hazarding.— Any person subject to this chapter who, willfully and wrongfully, hazards or suffers to be hazarded any vessel or aircraft of the armed forces shall be punished by death or such other punishment as a court-martial may direct.

(b) Negligent Hazarding.— Any person subject to this chapter who negligently hazards or suffers to be hazarded any vessel or aircraft of the armed forces shall be punished as a court-martial may direct.

§ 911 Art. 111. Leaving scene of vehicle accident

(a) Driver.— Any person subject to this chapter— who is the driver of a vehicle that is involved in an accident that results in personal injury or property damage; and who wrongfully leaves the scene of the accident— without providing assistance to an injured person; or without providing personal identification to others involved in the accident or to appropriate authorities; shall be punished as a court-martial may direct.

(b) Senior Passenger.— Any person subject to this chapter— who is a passenger in a vehicle that is involved in an accident that results in personal injury or property damage; who is the superior commissioned or noncommissioned officer of the driver of the vehicle or is the commander of the vehicle; and who wrongfully and unlawfully orders, causes, or permits the driver to leave the scene of the accident— without providing assistance to an injured person; or without providing personal identification to others involved in the accident or to appropriate authorities; shall be punished as a court-martial may direct.

§ 912 Art. 112. Drunkenness and other incapacitation offenses

(a) Drunk on Duty.— Any person subject to this chapter who is drunk on duty shall be punished as a court-martial may direct.

(b) Incapacitation for Duty From Drunkenness or Drug Use.— Any person subject to this chapter who, as a result of indulgence in any alcoholic beverage or any drug, is incapacitated for the proper performance of duty shall be punished as a court-martial may direct.

(c) Drunk Prisoner.— Any person subject to this chapter who is a prisoner and, while in such status, is drunk 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 from 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 referred to in subsection (a) are the following: Opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana and any compound or derivative of any such substance. Any substance not specified in clause (1) that is listed on a schedule of controlled substances prescribed by the President for the purposes of this article. 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. Drunken or reckless operation of a vehicle, aircraft, or vessel

(a) Any person subject to this chapter who— operates or physically controls any vehicle, aircraft, or vessel in a reckless or wanton manner or while impaired by a substance described in section 912a(b) of this title (article 112a(b)), or operates or is in actual physical control of any vehicle, aircraft, or vessel while drunk or when the alcohol concentration in the person’s blood or breath is equal to or exceeds the applicable limit under subsection (b), shall be punished as a court-martial may direct.

(b) For purposes of subsection (a), the applicable limit on the alcohol concentration in a person’s blood or breath is as follows: In the case of the operation or control of a vehicle, aircraft, or vessel in the United States, such limit is the lesser of— the blood alcohol content limit under the law of the State in which the conduct occurred, except as may be provided under paragraph (2) for conduct on a military installation that is in more than one State; or the blood alcohol content limit specified in paragraph (3). In the case of the operation or control of a vehicle, aircraft, or vessel outside the United States, the applicable blood alcohol content limit is the blood alcohol content limit specified in paragraph (3) or such lower limit as the Secretary of Defense may by regulation prescribe. In the case of a military installation that is in more than one State, if those States have different blood alcohol content limits under their respective State laws, the Secretary may select one such blood alcohol content limit to apply uniformly on that installation. For purposes of paragraph (1), the blood alcohol content limit with respect to alcohol concentration in a person’s blood is 0.08 grams of alcohol per 100 milliliters of blood and with respect to alcohol concentration in a person’s breath is 0.08 grams of alcohol per 210 liters of breath, as shown by chemical analysis. The Secretary may by regulation prescribe limits that are lower than the limits specified in the preceding sentence, if such lower limits are based on scientific developments, as reflected in Federal law of general applicability. In this subsection: The term “blood alcohol content limit” means the amount of alcohol concentration in a person’s blood or breath at which operation or control of a vehicle, aircraft, or vessel is prohibited. The term “United States” includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa and the term “State” includes each of those jurisdictions.

§ 914 Art. 114. Endangerment offenses

(a) Reckless Endangerment.— Any person subject to this chapter who engages in conduct that— is wrongful and reckless or is wanton; and is likely to produce death or grievous bodily harm to another person; shall be punished as a court-martial may direct.

(b) 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 facts promptly to the proper authority; shall be punished as a court-martial may direct.

(c) Firearm Discharge, Endangering Human Life.— Any person subject to this chapter who, willfully and wrongly, discharges a firearm, under circumstances such as to endanger human life shall be punished as a court-martial may direct.

(d) Carrying Concealed Weapon.— Any person subject to this chapter who unlawfully carries a dangerous weapon concealed on or about his person shall be punished as a court-martial may direct.

§ 915 Art. 115. Communicating threats

(a) Communicating Threats Generally.— Any person subject to this chapter who wrongfully communicates a threat to injure the person, property, or reputation of another shall be punished as a court-martial may direct.

(b) Communicating Threat to Use Explosive, etc.— Any person subject to this chapter who wrongfully communicates a threat to injure the person or property of another by use of (1) an explosive, (2) a weapon of mass destruction, (3) a biological or chemical agent, substance, or weapon, or (4) a hazardous material, shall be punished as a court-martial may direct.

(c) Communicating False Threat Concerning Use of Explosive, etc.— Any person subject to this chapter who maliciously communicates a false threat concerning injury to the person or property of another by use of (1) an explosive, (2) a weapon of mass destruction, (3) a biological or chemical agent, substance, or weapon, or (4) a hazardous material, shall be punished as a court-martial may direct. As used in the preceding sentence, the term “false threat” means a threat that, at the time the threat is communicated, is known to be false by the person communicating the threat.

§ 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. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 72 .)

§ 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. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 72 .)

§ 917a Art. 117a. Wrongful broadcast or distribution of intimate visual images

(a) Prohibition.— Any person subject to this chapter— who knowingly and wrongfully broadcasts or distributes an intimate visual image of another person or a visual image of sexually explicit conduct involving a person who— is at least 18 years of age at the time the intimate visual image or visual image of sexually explicit conduct was created; is identifiable from the intimate visual image or visual image of sexually explicit conduct itself, or from information displayed in connection with the intimate visual image or visual image of sexually explicit conduct; and does not explicitly consent to the broadcast or distribution of the intimate visual image or visual image of sexually explicit conduct; who knows or reasonably should have known that the intimate visual image or visual image of sexually explicit conduct was made under circumstances in which the person depicted in the intimate visual image or visual image of sexually explicit conduct retained a reasonable expectation of privacy regarding any broadcast or distribution of the intimate visual image or visual image of sexually explicit conduct; who knows or reasonably should have known that the broadcast or distribution of the intimate visual image or visual image of sexually explicit conduct is likely— to cause harm, harassment, intimidation, emotional distress, or financial loss for the person depicted in the intimate visual image or visual image of sexually explicit conduct; or to harm substantially the depicted person with respect to that person’s health, safety, business, calling, career, financial condition, reputation, or personal relationships; and whose conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment, is guilty of wrongful distribution of intimate visual images or visual images of sexually explicit conduct and shall be punished as a court-martial may direct.

(b) Definitions.— In this section: The term “broadcast” means to electronically transmit a visual image with the intent that it be viewed by a person or persons. The term “distribute” means to deliver to the actual or constructive possession of another person, including transmission by mail or electronic means. The term “intimate visual image” means a visual image that depicts a private area of a person. The term “private area” means the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple. The term “reasonable expectation of privacy” means circumstances in which a reasonable person would believe that a private area of the person, or sexually explicit conduct involving the person, would not be visible to the public. The term “sexually explicit conduct” means actual or simulated genital-genital contact, oral-genital contact, anal-genital contact, or oral-anal contact, whether between persons of the same or opposite sex, bestiality, masturbation, or sadistic or masochistic abuse. The term “visual image” means the following: Any developed or undeveloped photograph, picture, film, or video. Any digital or computer image, picture, film, or video made by any means, including those transmitted by any means, including streaming media, even if not stored in a permanent format. Any digital or electronic data capable of conversion into a visual image.

§ 918 Art. 118. Murder

Any person subject to this chapter who, without justification or excuse, unlawfully kills a human being, when such person— has a premeditated design to kill; intends to kill or inflict great bodily harm; is engaged in an act which is inherently dangerous to another and evinces a wanton disregard of human life; or is engaged in the perpetration or attempted perpetration of burglary, rape, rape of a child, sexual assault, sexual assault of a child, aggravated sexual contact, sexual abuse of a child, 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), such person shall suffer death or imprisonment for life as a court-martial may direct, unless such person is otherwise sentenced in accordance with a plea agreement entered into between the parties under section 853a of this title (article 53a). ( Aug. 10, 1956, ch. 1041 , 70A Stat. 72 ; Pub. L. 102–484, div. A, title X, § 1066(b) , Oct. 23, 1992 , 106 Stat. 2506 ; Pub. L. 109–163, div. A, title V, § 552(d) , Jan. 6, 2006 , 119 Stat. 3263 ; Pub. L. 112–81, div. A, title V, § 541(d)(2) , Dec. 31, 2011 , 125 Stat. 1410 ; Pub. L. 113–291, div. A, title V, § 531(d)(2)(B) , Dec. 19, 2014 , 128 Stat. 3364 ; Pub. L. 114–328, div. E, title LX, § 5428 , Dec. 23, 2016 , 130 Stat. 2949 ; Pub. L. 118–31, div. A, title V, § 531(a) , Dec. 22, 2023 , 137 Stat. 257 .)

§ 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— by culpable negligence; or 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.

§ 919a Art. 119a. Death or injury of an unborn child

(a) Any person subject to this chapter who engages in conduct that violates any of the provisions of law listed in subsection (b) and thereby causes the death of, or bodily injury (as defined in section 1365 of title 18 ) to, a child, who is in utero at the time the conduct takes place, is guilty of a separate offense under this section and shall, upon conviction, be punished by such punishment, other than death, as a court-martial may direct, which shall be consistent with the punishments prescribed by the President for that conduct had that injury or death occurred to the unborn child’s mother. An offense under this section does not require proof that— the person engaging in the conduct had knowledge or should have had knowledge that the victim of the underlying offense was pregnant; or the accused intended to cause the death of, or bodily injury to, the unborn child. If the person engaging in the conduct thereby intentionally kills or attempts to kill the unborn child, that person shall, instead of being punished under paragraph (1), be punished as provided under sections 880, 918, and 919(a) of this title (articles 80, 118, and 119(a)) for intentionally killing or attempting to kill a human being. Notwithstanding any other provision of law, the death penalty shall not be imposed for an offense under this section.

(b) The provisions referred to in subsection (a) are sections 918, 919(a), 919(b)(2), 920(a), 922, 926, 928, and 928a of this title (articles 118, 119(a), 119(b)(2), 120(a), 122, 126, 128, and 128a).

(c) Nothing in this section shall be construed to permit the prosecution— of any person for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law; of any person for any medical treatment of the pregnant woman or her unborn child; or of any woman with respect to her unborn child.

(d) In this section, the term “unborn child” means a child in utero, and the term “child in utero” or “child, who is in utero” means a member of the species homo sapiens, at any stage of development, who is carried in the womb.

§ 919b Art. 119b. Child endangerment

Any person subject to this chapter— who has a duty for the care of a child under the age of 16 years; and who, through design or culpable negligence, endangers the child’s mental or physical health, safety, or welfare; shall be punished as a court-martial may direct. (Added Pub. L. 114–328, div. E, title LX, § 5429 , Dec. 23, 2016 , 130 Stat. 2949 .)

§ 920 Art. 120. Rape and sexual assault generally

(a) Rape.— Any person subject to this chapter who commits a sexual act upon another person by— using unlawful force against that other person; using force causing or likely to cause death or grievous bodily harm to any person; threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping; first rendering that other person unconscious; or administering to that other person by force or threat of force, or without the knowledge or consent of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct; is guilty of rape and shall be punished as a court-martial may direct.

(b) Sexual Assault.— Any person subject to this chapter who— commits a sexual act upon another person by— threatening or placing that other person in fear; making a fraudulent representation that the sexual act serves a professional purpose; or inducing a belief by any artifice, pretense, or concealment that the person is another person; commits a sexual act upon another person— without the consent of the other person; or when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring; or commits a sexual act upon another person when the other person is incapable of consenting to the sexual act due to— impairment by any drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person; or a mental disease or defect, or physical disability, and that condition is known or reasonably should be known by the person; is guilty of sexual assault and shall be punished as a court-martial may direct.

(c) Aggravated Sexual Contact.— Any person subject to this chapter who commits or causes sexual contact upon or by another person, if to do so would violate subsection (a) (rape) had the sexual contact been a sexual act, is guilty of aggravated sexual contact and shall be punished as a court-martial may direct.

(d) Abusive Sexual Contact.— Any person subject to this chapter who commits or causes sexual contact upon or by another person, if to do so would violate subsection (b) (sexual assault) had the sexual contact been a sexual act, is guilty of abusive sexual contact and shall be punished as a court-martial may direct.

(e) Proof of Threat.— In a prosecution under this section, in proving that a person made a threat, it need not be proven that the person actually intended to carry out the threat or had the ability to carry out the threat.

(f) Defenses.— An accused may raise any applicable defenses available under this chapter or the Rules for Court-Martial. Marriage is not a defense for any conduct in issue in any prosecution under this section.

(g) Definitions.— In this section: The term “sexual act” means— the penetration, however slight, of the penis into the vulva or anus or mouth; contact between the mouth and the penis, vulva, scrotum, or anus; or the penetration, however slight, of the vulva or penis or anus of another by any part of the body or any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. The term “sexual contact” means touching, or causing another person to touch, either directly or through the clothing, the vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. Touching may be accomplished by any part of the body or an object. The term “grievous bodily harm” means serious bodily injury. It includes fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily injuries. It does not include minor injuries such as a black eye or a bloody nose. The term “force” means— the use of a weapon; the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or inflicting physical harm sufficient to coerce or compel submission by the victim. The term “unlawful force” means an act of force done without legal justification or excuse. The term “threatening or placing that other person in fear” means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to the wrongful action contemplated by the communication or action. The term “consent” means a freely given agreement to the conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance does not constitute consent. Submission resulting from the use of force, threat of force, or placing another person in fear also does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue does not constitute consent. A sleeping, unconscious, or incompetent person cannot consent. A person cannot consent to force causing or likely to cause death or grievous bodily harm or to being rendered unconscious. A person cannot consent while under threat or in fear or under the circumstances described in subparagraph (B) or (C) of subsection (b)(1). All the surrounding circumstances are to be considered in determining whether a person gave consent. The term “incapable of consenting” means the person is— incapable of appraising the nature of the conduct at issue; or physically incapable of declining participation in, or communicating unwillingess to engage in, the sexual act at issue.

§ 920a Art. 120a. Mails: deposit of obscene matter

Any person subject to this chapter who, wrongfully and knowingly, deposits obscene matter for mailing and delivery shall be punished as a court-martial may direct. (Added Pub. L. 114–328, div. E, title LX, § 5431 , Dec. 23, 2016 , 130 Stat. 2951 .)

§ 920b Art. 120b. Rape and sexual assault of a child

(a) Rape of a Child.— Any person subject to this chapter who— commits a sexual act upon a child who has not attained the age of 12 years; or commits a sexual act upon a child who has attained the age of 12 years by— using force against any person; threatening or placing that child in fear; rendering that child unconscious; or administering to that child a drug, intoxicant, or other similar substance; is guilty of rape of a child and shall be punished as a court-martial may direct.

(b) Sexual Assault of a Child.— Any person subject to this chapter who commits a sexual act upon a child who has attained the age of 12 years is guilty of sexual assault of a child and shall be punished as a court-martial may direct.

(c) Sexual Abuse of a Child.— Any person subject to this chapter who commits a lewd act upon a child is guilty of sexual abuse of a child and shall be punished as a court-martial may direct.

(d) Age of Child.— In a prosecution under this section, it need not be proven that the accused knew the age of the other person engaging in the sexual act or lewd act. It is not a defense that the accused reasonably believed that the child had attained the age of 12 years. In a prosecution under this section, it need not be proven that the accused knew that the other person engaging in the sexual act or lewd act had not attained the age of 16 years, but it is a defense in a prosecution under subsection (b) (sexual assault of a child) or subsection (c) (sexual abuse of a child), which the accused must prove by a preponderance of the evidence, that the accused reasonably believed that the child had attained the age of 16 years, if the child had in fact attained at least the age of 12 years.

(f) Consent.— Lack of consent is not an element and need not be proven in any prosecution under this section. A child cannot consent to any sexual act, lewd act, or use of force.

(g) Definitions.— In this section: The terms “sexual act” and “sexual contact” have the meanings given those terms in section 920(g) of this title (article 120(g)), except that the term “sexual act” also includes the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person. The term “force” means— the use of a weapon; the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a child; or inflicting physical harm. In the case of a parent-child or similar relationship, the use or abuse of parental or similar authority is sufficient to constitute the use of force. The term “threatening or placing that child in fear” means a communication or action that is of sufficient consequence to cause the child to fear that non-compliance will result in the child or another person being subjected to the action contemplated by the communication or action. The term “child” means any person who has not attained the age of 16 years. The term “lewd act” means— any sexual contact with a child; intentionally exposing one’s genitalia, anus, buttocks, or female areola or nipple to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person; intentionally communicating indecent language to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person; or any indecent conduct, intentionally done with or in the presence of a child, including via any communication technology, that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

§ 920c Art. 120c. Other sexual misconduct

(a) Indecent Viewing, Visual Recording, or Broadcasting.— Any person subject to this chapter who, without legal justification or lawful authorization— knowingly and wrongfully views the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy; knowingly photographs, videotapes, films, or records by any means the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy; or knowingly broadcasts or distributes any such recording that the person knew or reasonably should have known was made under the circumstances proscribed in paragraphs (1) and (2); is guilty of an offense under this section and shall be punished as a court-martial may direct.

(b) Forcible Pandering.— Any person subject to this chapter who compels another person to engage in an act of prostitution with any person is guilty of forcible pandering and shall be punished as a court-martial may direct.

(c) Indecent Exposure.— Any person subject to this chapter who intentionally exposes, in an indecent manner, the genitalia, anus, buttocks, or female areola or nipple is guilty of indecent exposure and shall by punished as a court-martial may direct.

(d) Definitions.— In this section: The term “act of prostitution” means a sexual act or sexual contact (as defined in section 920(g) of this title (article 120(g))) on account of which anything of value is given to, or received by, any person. The term “private area” means the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple. The term “under circumstances in which that other person has a reasonable expectation of privacy” means— circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of a private area of the person was being captured; or circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public. The term “broadcast” means to electronically transmit a visual image with the intent that it be viewed by a person or persons. The term “distribute” means delivering to the actual or constructive possession of another, including transmission by electronic means. The term “indecent manner” means conduct that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

§ 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— with intent permanently to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, steals that property and is guilty of larceny; or with intent temporarily to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or 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.

§ 921a Art. 121a. Fraudulent use of credit cards, debit cards, and other access devices

(a) In General.— Any person subject to this chapter who, knowingly and with intent to defraud, uses— a stolen credit card, debit card, or other access device; a revoked, cancelled, or otherwise invalid credit card, debit card, or other access device; or a credit card, debit card, or other access device without the authorization of a person whose authorization is required for such use; to obtain money, property, services, or anything else of value shall be punished as a court-martial may direct.

(b) Access Device Defined.— In this section (article), the term “access device” has the meaning given that term in section 1029 of title 18 .

§ 921b Art. 121b. False pretenses to obtain services

Any person subject to this chapter who, with intent to defraud, knowingly uses false pretenses to obtain services shall be punished as a court-martial may direct. (Added Pub. L. 114–328, div. E, title LX, § 5433 , Dec. 23, 2016 , 130 Stat. 2951 .)

§ 922 Art. 122. Robbery

Any person subject to this chapter who 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. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 73 ; Pub. L. 114–328, div. E, title LX, § 5434 , Dec. 23, 2016 , 130 Stat. 2951 .)

§ 922a Art. 122a. Receiving stolen property

Any person subject to this chapter who wrongfully receives, buys, or conceals stolen property, knowing the property to be stolen property, shall be punished as a court-martial may direct. (Added Pub. L. 114–328, div. E, title LX, § 5435 , Dec. 23, 2016 , 130 Stat. 2952 .)

§ 923 Art. 123. Offenses concerning Government computers

(a) In General.— Any person subject to this chapter who— knowingly accesses a Government computer, with an unauthorized purpose, and by doing so obtains classified information, with reason to believe such information could be used to the injury of the United States, or to the advantage of any foreign nation, and intentionally communicates, delivers, transmits, or causes to be communicated, delivered, or transmitted such information to any person not entitled to receive it; intentionally accesses a Government computer, with an unauthorized purpose, and thereby obtains classified or other protected information from any Government computer; or knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization to a Government computer; shall be punished as a court-martial may direct.

(b) Definitions.— In this section: The term “computer” has the meaning given that term in section 1030 of title 18 . The term “Government computer” means a computer owned or operated by or on behalf of the United States Government. The term “damage” has the meaning given that term in section 1030 of title 18 .

§ 923a Art. 123a. Making, drawing, or uttering check, draft, or order without sufficient funds

Any person subject to this chapter who— for the procurement of any article or thing of value, with intent to defraud; or 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 upon its 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. (Added Pub. L. 87–385, § 1(1) , Oct. 4, 1961 , 75 Stat. 814 .)

§ 924 Art. 124. Frauds against the United States

Any person subject to this chapter— who, knowing it to be false or fraudulent— makes any claim against the United States or any officer thereof; or 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; who, for the purpose of obtaining the approval, allowance, or payment of any claim against the United States or any officer thereof— makes or uses any writing or other paper knowing it to contain any false or fraudulent statements; makes any oath to any fact or to any writing or other paper knowing the oath to be false; or forges or counterfeits any signature upon any writing or other paper, or uses any such signature knowing it to be forged or counterfeited; who, having charge, possession, custody or control of any money, or other property of 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 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. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 75 , § 932; renumbered § 924, Pub. L. 114–328, div. E, title LX, § 5401(14) , Dec. 23, 2016 , 130 Stat. 2939 .)

§ 924a Art. 124a. Bribery

(a) Asking, Accepting, or Receiving Thing of Value.— Any person subject to this chapter— who occupies an official position or who has official duties; and who wrongfully asks, accepts, or receives a thing of value with the intent to have the person’s decision or action influenced with respect to an official matter in which the United States is interested; shall be punished as a court-martial may direct.

(b) Promising, Offering, or Giving Thing of Value.— Any person subject to this chapter who wrongfully promises, offers, or gives a thing of value to another person, who occupies an official position or who has official duties, with the intent to influence the decision or action of the other person with respect to an official matter in which the United States is interested, shall be punished as a court-martial may direct.

§ 924b Art. 124b. Graft

(a) Asking, Accepting, or Receiving Thing of Value.— Any person subject to this chapter— who occupies an official position or who has official duties; and who wrongfully asks, accepts, or receives a thing of value as compensation for or in recognition of services rendered or to be rendered by the person with respect to an official matter in which the United States is interested; shall be punished as a court-martial may direct.

(b) Promising, Offering, or Giving Thing of Value.— Any person subject to this chapter who wrongfully promises, offers, or gives a thing of value to another person, who occupies an official position or who has official duties, as compensation for or in recognition of services rendered or to be rendered by the other person with respect to an official matter in which the United States is interested, shall be punished as a court-martial may direct.

§ 925 Art. 125. Kidnapping

Any person subject to this chapter who wrongfully— seizes, confines, inveigles, decoys, or carries away another person; and holds the other person against that person’s will; shall be punished as a court-martial may direct. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 74 ; Pub. L. 113–66, div. A, title XVII, § 1707(a) , Dec. 26, 2013 , 127 Stat. 961 ; Pub. L. 113–291, div. A, title V, § 531(d)(1) , Dec. 19, 2014 , 128 Stat. 3364 ; Pub. L. 114–328, div. E, title LX, § 5439 , Dec. 23, 2016 , 130 Stat. 2953 .)

§ 926 Art. 126. Arson; burning property with intent to defraud

(a) Aggravated Arson.— 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 that person, there is at the time a human being, is guilty of aggravated arson and shall be punished as a court-martial may direct.

(b) Simple Arson.— Any person subject to this chapter who, willfully and maliciously, burns or sets fire to the property of another is guilty of simple arson and shall be punished as a court-martial may direct.

(c) Burning Property With Intent to Defraud.— Any person subject to this chapter who, willfully, maliciously, and with intent to defraud, burns or sets fire to any property 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. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 74 .)

§ 928 Art. 128. Assault

(a) Assault.— Any person subject to this chapter who, unlawfully and with force or violence— attempts to do bodily harm to another person; offers to do bodily harm to another person; or does bodily harm to another person; is guilty of assault and shall be punished as a court-martial may direct.

(b) Aggravated Assault.— Any person subject to this chapter— who, with the intent to do bodily harm, offers to do bodily harm with a dangerous weapon; who, in committing an assault, inflicts substantial bodily harm or grievous bodily harm on another person; or who commits an assault by strangulation or suffocation; is guilty of aggravated assault and shall be punished as a court-martial may direct.

(c) Assault With Intent to Commit Specified Offenses.— Any person subject to this chapter who commits assault with intent to commit an offense specified in paragraph (2) shall be punished as a court-martial may direct. The offenses referred to in paragraph (1) are murder, voluntary manslaughter, rape, sexual assault, rape of a child, sexual assault of a child, robbery, arson, burglary, and kidnapping.

§ 928a Art. 128a. Maiming

Any person subject to this chapter who, with intent to injure, disfigure, or disable, inflicts upon the person of another an injury which— seriously disfigures his person by any mutilation thereof; destroys or disables any member or organ of his body; or 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. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 74 , § 924; renumbered § 928a, Pub. L. 114–328, div. E, title LX, § 5401(13)(A) , Dec. 23, 2016 , 130 Stat. 2939 .)

§ 928b Art. 128b. Domestic violence

(a) In General.— Any person who— commits a violent offense against a spouse, an intimate partner, a dating partner, or an immediate family member of that person; with intent to threaten or intimidate a spouse, an intimate partner, a dating partner, or an immediate family member of that person— commits an offense under this chapter against any person; or commits an offense under this chapter against any property, including an animal; with intent to threaten or intimidate a spouse, an intimate partner, a dating partner, or an immediate family member of that person, violates a protection order; with intent to commit a violent offense against a spouse, an intimate partner, a dating partner, or an immediate family member of that person, violates a protection order; or assaults a spouse, an intimate partner, a dating partner, or an immediate family member of that person by strangling or suffocating; shall be punished as a court-martial may direct.

(b) Definitions.— In this section, the terms “dating partner”, “immediate family”, and “intimate partner” have the meanings given such terms in section 930 of this title (article 130).

§ 929 Art. 129. Burglary; unlawful entry

(a) Burglary.— Any person subject to this chapter who, with intent to commit an offense under this chapter, breaks and enters the building or structure of another shall be punished as a court-martial may direct.

(b) Unlawful Entry.— Any person subject to this chapter who unlawfully enters— the real property of another; or the personal property of another which amounts to a structure usually used for habitation or storage; shall be punished as a court-martial may direct.

[§ 929a Art. 129a. Omitted]

§ 930 Art. 130. Stalking

(a) In General.— Any person subject to this chapter— who wrongfully engages in a course of conduct directed at a specific person that would cause a reasonable person to fear death or bodily harm, including sexual assault, to himself or herself, to a member of his or her immediate family, to his or her intimate partner, or to his or her dating partner; who has knowledge, or should have knowledge, that the specific person will be placed in reasonable fear of death or bodily harm, including sexual assault, to himself or herself, to a member of his or her immediate family, to his or her intimate partner, or to his or her dating partner; and whose conduct induces reasonable fear in the specific person of death or bodily harm, including sexual assault, to himself or herself, to a member of his or her immediate family, to his or her intimate partner, or to his or her dating partner; is guilty of stalking and shall be punished as a court-martial may direct.

(b) Definitions.— In this section: The term “conduct” means conduct of any kind, including use of surveillance, the mails, an interactive computer service, an electronic communication service, or an electronic communication system. The term “course of conduct” means— a repeated maintenance of visual or physical proximity to a specific person; a repeated conveyance of verbal threat, written threats, or threats implied by conduct, or a combination of such threats, directed at or toward a specific person; or a pattern of conduct composed of repeated acts evidencing a continuity of purpose. The term “dating partner”, in the case of a specific person, means a person who is or has been in a social relationship of a romantic or intimate nature with such specific person based on a consideration of— the length of the relationship; the type of relationship; the frequency of interaction between the persons involved in the relationship; and the extent of physical intimacy or sexual contact between the persons involved in the relationship. The term “repeated”, with respect to conduct, means two or more occasions of such conduct. The term “immediate family”, in the case of a specific person, means— that person’s spouse, parent, brother or sister, child, or other person to whom he or she stands in loco parentis; or any other person living in his or her household and related to him or her by blood or marriage. The term “intimate partner”, in the case of a specific person, means— a former spouse of the specific person, a person who shares a child in common with the specific person, or a person who cohabits with or has cohabited as a spouse with the specific person; or a person who has been in a social relationship of a romantic or intimate nature with the specific person, as determined by the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.

§ 931 Art. 131. Perjury

Any person subject to this chapter who in a judicial proceeding or in a course of justice willfully and corruptly— upon a lawful oath or in any form allowed by law to be substituted for an oath, gives any false testimony material to the issue or matter of inquiry; or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28 , 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. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 75 ; Pub. L. 94–550, § 3 , Oct. 18, 1976 , 90 Stat. 2535 ; Pub. L. 97–295, § 1(13) , Oct. 12, 1982 , 96 Stat. 1289 .)

§ 931a Art. 131a. Subornation of perjury

(a) In General.— Any person subject to this chapter who induces and procures another person— to take an oath; and to falsely testify, depose, or state upon such oath; shall, if the conditions specified in subsection (b) are satisfied, be punished as a court-martial may direct.

(b) Conditions.— The conditions referred to in subsection (a) are the following: The oath is administered with respect to a matter for which such oath is required or authorized by law. The oath is administered by a person having authority to do so. Upon the oath, the other person willfully makes or subscribes a statement. The statement is material. The statement is false. When the statement is made or subscribed, the person subject to this chapter and the other person do not believe that the statement is true.

§ 931b Art. 131b. Obstructing justice

Any person subject to this chapter who engages in conduct in the case of a certain person against whom the accused had reason to believe there were or would be criminal or disciplinary proceedings pending, with intent to influence, impede, or otherwise obstruct the due administration of justice shall be punished as a court-martial may direct. (Added Pub. L. 114–328, div. E, title LX, § 5445 , Dec. 23, 2016 , 130 Stat. 2956 .)

§ 931c Art. 131c. Misprision of serious offense

Any person subject to this chapter— who knows that another person has committed a serious offense; and wrongfully conceals the commission of the offense and fails to make the commission of the offense known to civilian or military authorities as soon as possible; shall be punished as a court-martial may direct. (Added Pub. L. 114–328, div. E, title LX, § 5446 , Dec. 23, 2016 , 130 Stat. 2956 .)

§ 931d Art. 131d. Wrongful refusal to testify

Any person subject to this chapter who, in the presence of a court-martial, a board of officers, a military commission, a court of inquiry, a preliminary hearing, or an officer taking a deposition, of or for the United States, wrongfully refuses to qualify as a witness or to answer a question after having been directed to do so by the person presiding shall be punished as a court-martial may direct. (Added Pub. L. 114–328, div. E, title LX, § 5447 , Dec. 23, 2016 , 130 Stat. 2957 .)

§ 931e Art. 131e. Prevention of authorized seizure of property

Any person subject to this chapter who, knowing that one or more persons authorized to make searches and seizures are seizing, are about to seize, or are endeavoring to seize property, destroys, removes, or otherwise disposes of the property with intent to prevent the seizure thereof shall be punished as a court-martial may direct. (Added Pub. L. 114–328, div. E, title LX, § 5448 , Dec. 23, 2016 , 130 Stat. 2957 .)

§ 931f Art. 131f. Noncompliance with procedural rules

Any person subject to this chapter who— is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under this chapter; or 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. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 69 , § 898; renumbered § 931f, Pub. L. 114–328, div. E, title LX, § 5401(3) , Dec. 23, 2016 , 130 Stat. 2938 .)

§ 931g Art. 131g. Wrongful interference with adverse administrative proceeding

Any person subject to this chapter who, having reason to believe that an adverse administrative proceeding is pending against any person subject to this chapter, wrongfully acts with the intent— to influence, impede, or obstruct the conduct of the proceeding; or otherwise to obstruct the due administration of justice; shall be punished as a court-martial may direct. (Added Pub. L. 114–328, div. E, title LX, § 5449 , Dec. 23, 2016 , 130 Stat. 2957 .)

§ 932 Art. 132. Retaliation

(a) In General.— Any person subject to this chapter who, with the intent to retaliate against any person for reporting or planning to report a criminal offense, or making or planning to make a protected communication, or with the intent to discourage any person from reporting a criminal offense or making or planning to make a protected communication— wrongfully takes or threatens to take an adverse personnel action against any person; or wrongfully withholds or threatens to withhold a favorable personnel action with respect to any person; shall be punished as a court-martial may direct.

(b) Definitions.— In this section: The term “protected communication” means the following: A lawful communication to a Member of Congress or an Inspector General. A communication to a covered individual or organization in which a member of the armed forces complains of, or discloses information that the member reasonably believes constitutes evidence of, any of the following: A violation of law or regulation, including a law or regulation prohibiting sexual harassment or unlawful discrimination. Gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. The term “Inspector General” has the meaning given that term in section 1034(j) of this title . The term “covered individual or organization” means any recipient of a communication specified in clauses (i) through (v) of section 1034(b)(1)(B) of this title . The term “unlawful discrimination” means discrimination on the basis of race, color, religion, sex, or national origin.

§ 933 Art. 133. Conduct unbecoming an officer

Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer shall be punished as a court-martial may direct. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 76 ; Pub. L. 117–81, div. A, title V, § 542(a) , Dec. 27, 2021 , 135 Stat. 1709 .)

§ 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. As used in the preceding sentence, the term “crimes and offenses not capital” includes any conduct engaged in outside the United States, as defined in section 5 of title 18 , that would constitute a crime or offense not capital if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States, as defined in section 7 of title 18 . ( Aug. 10, 1956, ch. 1041 , 70A Stat. 76 ; Pub. L. 114–328, div. E, title LX, § 5451 , Dec. 23, 2016 , 130 Stat. 2958 .)

§ 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 who is (A) subject to this chapter, (B) employed by the Department of Defense, or (C) with respect to the Coast Guard, employed by the department in which the Coast Guard is operating when it is not operating as a service in the Navy, and 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

(a) The following persons on active duty or performing inactive-duty training may administer oaths for the purposes of military administration, including military justice: All judge advocates. All summary courts-martial. All adjutants, assistant adjutants, acting adjutants, and personnel adjutants. All commanding officers of the Navy, Marine Corps, and Coast Guard. All staff judge advocates and legal officers, and acting or assistant staff judge advocates and legal officers. 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: The president, military judge, trial counsel, and assistant trial counsel for all general and special courts-martial. The president and the counsel for the court of any court of inquiry. All officers designated to take a deposition. All persons detailed to conduct an investigation. All recruiting officers. All other persons designated by regulations of the armed forces or by statute.

(c) Each judge and senior judge of the United States Court of Appeals for the Armed Forces shall have the powers relating to oaths, affirmations, and acknowledgments provided to justices and judges of the United States by section 459 of title 28 .

§ 937 Art. 137. Articles to be explained

(a) Enlisted Members.— The sections (articles) of this chapter specified in paragraph (3) shall be carefully explained to each enlisted member at the time of (or within fourteen days after)— the member’s initial entrance on active duty; the member’s initial entrance into a duty status with a reserve component; or the member’s initial entrance on active duty or into a space force active status. Such sections (articles) shall be explained again— 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 recruit training; after a member of the Space Force has completed six months of sustained duty or in the case of a member not on sustained duty, after the member has completed basic or recruit training; and at the time when the member reenlists. 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, 37, 38, 55, 77–134, and 137–139).

(b) Officers.— The sections (articles) of this chapter specified in paragraph (2) shall be carefully explained to each officer at the time of (or within six months after)— the initial entrance of the officer on active duty as an officer; or the initial commissioning of the officer in a reserve component or the Space Force. This subsection applies with respect to the sections (articles) specified in subsection (a)(3) and such other sections (articles) as the Secretary concerned may prescribe by regulation.

(c) Training for Certain Officers.— Under regulations prescribed by the Secretary concerned, officers with the authority to convene courts-martial or to impose non-judicial punishment shall receive periodic training regarding the purposes and administration of this chapter. Under regulations prescribed by the Secretary of Defense, officers assigned to duty in a joint command or a combatant command, who have such authority, shall receive additional specialized training regarding the purposes and administration of this chapter with respect to joint commands and the combatant commands.

(d) Availability and Maintenance of Text.— The text of this chapter and the text of the regulations prescribed by the President under this chapter shall be— made available to a member on active duty, to a member of a reserve component, or to a member of the Space Force, upon request by the member, for the member’s personal examination; and maintained by the Secretary of Defense in electronic formats that are updated periodically and made available on the Internet.

§ 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 forward the complaint to the officer exercising general 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 had thereon. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 78 .)

§ 939 Art. 139. Redress of injuries to property

(a) Whenever complaint is made to any commanding officer that 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 a board to investigate the complaint. The board shall consist of from one to three commissioned officers and, for the purpose of that investigation, it has 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 so assessed and approved.

(b) If the offenders cannot be ascertained, but the 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 the subdelegation of any such authority. ( Aug. 10, 1956, ch. 1041 , 70A Stat. 78 .)

§ 940a Art. 140a. Case management; data collection and accessibility

(a) In General.— The Secretary of Defense, in consultation with the Secretary of Homeland Security, shall prescribe uniform standards and criteria for conduct of each of the following functions at all stages of the military justice system (including with respect to the Coast Guard), including pretrial, trial, post-trial, and appellate processes, using, insofar as practicable, the best practices of Federal and State courts: Collection and analysis of data concerning substantive offenses and procedural matters in a manner that facilitates case management and decision making within the military justice system, and that enhances the quality of periodic reviews under section 946 of this title (article 146). Case processing and management. Timely, efficient, and accurate production and distribution of records of trial within the military justice system. Facilitation of public access to docket information, filings, and records, taking into consideration restrictions appropriate to judicial proceedings and military records.

(b) Protection of Certain Personally Identifiable Information.— Records of trial, docket information, filings, and other records made publicly accessible in accordance with the uniform standards and criteria for conduct established by the Secretary under subsection (a) shall restrict access to personally identifiable information of minors and victims of crime (including victims of sexual assault and domestic violence), as practicable to the extent such information is restricted in electronic filing systems of Federal and State courts.

(c) Inapplicability to Certain Dockets and Records.— Nothing in this section shall be construed to provide public access to docket information, filings, or records that are classified, subject to a judicial protective order, or ordered sealed.

(d) Preservation of Court-Martial Records Without Regard to Outcome.— The standards and criteria prescribed by the Secretary of Defense under subsection (a) shall provide for the preservation of general and special court-martial records, without regard to the outcome of the proceeding concerned, for not fewer than 15 years.

§ 941 Art. 141. Status

There is a court of record known as the United States Court of Appeals for the Armed Forces. The court is established under article I of the Constitution. The court is located for administrative purposes only in the Department of Defense. (Added Pub. L. 101–189, div. A, title XIII, § 1301(c) , Nov. 29, 1989 , 103 Stat. 1570 ; amended Pub. L. 103–337, div. A, title IX, § 924(a)(2) , Oct. 5, 1994 , 108 Stat. 2831 .)

§ 942 Art. 142. Judges

(a) Number.— The United States Court of Appeals for the Armed Forces consists of five judges.

(b) Appointment; Qualification.— Each judge of the court shall be appointed from civilian 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). The term of a judge shall expire as follows: In the case of a judge who is appointed after January 31 and before July 31 of any year, the term shall expire on July 31 of the year in which the fifteenth anniversary of the appointment occurs. In the case of a judge who is appointed after July 31 of any year and before February 1 of the following year, the term shall expire fifteen years after such July 31. If at the time of the appointment of a judge the date that is otherwise applicable under subparagraph (A) for the expiration of the term of service of the judge is the same as the date for the expiration of the term of service of a judge already on the court, then the term of the judge being appointed shall expire on the first July 31 after such date on which no term of service of a judge already on the court will expire. No person may be appointed to be a judge of the court unless the person is a member of the bar of a Federal court or the highest court of a State. A person may not be appointed as a judge of the court within seven years after retirement from active duty as a commissioned officer of a regular component of an armed force.

(c) Removal.— Judges of the court may be removed from office by the President, upon notice and hearing, for— neglect of duty; misconduct; or 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 time to time may be, provided for judges of the United States Courts of Appeals.

(e) Senior Judges.— A former judge of the court who is receiving retired pay or an annuity under section 945 of this title (article 145) or under subchapter III of chapter 83 or chapter 84 of title 5 shall be a senior judge. The chief judge of the court may call upon an individual who is a senior judge of the court under this subparagraph, with the consent of the senior judge, to perform judicial duties with the court— during a period a judge of the court is unable to perform his duties because of illness or other disability; during a period in which a position of judge of the court is vacant; or in any case in which a judge of the court recuses himself. If, at the time the term of a judge expires, no successor to that judge has been appointed, the chief judge of the court may call upon that judge (with that judge’s consent) to continue to perform judicial duties with the court until the vacancy is filled. A judge who, upon the expiration of the judge’s term, continues to perform judicial duties with the court without a break in service under this subparagraph shall be a senior judge while such service continues. A senior judge shall be paid for each day on which he performs judicial duties with the court an amount equal to the difference between— the daily equivalent of the annual rate of pay provided for a judge of the court; and the daily equivalent of the annuity of the judge under section 945 of this title (article 145), the applicable provisions of title 5, or any other retirement system for employees of the Federal Government under which the senior judge receives an annuity. A senior judge, while performing duties referred to in paragraph (1), 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. 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 (1). 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. 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 Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives not later than 15 days after the issuance of such rules or amendments, as the case may be. For 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 period during which a senior judge performs duties referred to in paragraph (1) shall not be considered creditable service; no amount shall be withheld from the pay of a senior judge as a retirement contribution under section 8334, 8343, 8422, or 8432 of title 5 or under any other such retirement system for any period during which the senior judge performs duties referred to in paragraph (1); 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 (1); and a senior judge shall not be considered to be a reemployed annuitant for any period during which the senior judge performs duties referred to in paragraph (1).

(f) Service of Article III Judges.— 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 Appeals for the Armed Forces— during a period a judge of the court is unable to perform his duties because of illness or other disability; in any case in which a judge of the court recuses himself; or during a period when there is a vacancy on the court and in the opinion of the chief judge of the court such a designation is necessary for the proper dispatch of the business of the court. The chief judge of the court may not request that a designation be made under paragraph (1) unless the chief judge has determined that no person is available to perform judicial duties with the court as a senior judge under subsection (e). 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. 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 chief judge of the United States Court of Appeals for the Armed Forces shall be the judge of the court in regular active service who is senior in commission among the judges of the court who— have served for one or more years as judges of the court; and have not previously served as chief judge. In any case in which there is no judge of the court in regular active service who has served as a judge of the court for at least one year, the judge of the court in regular active service who is senior in commission and has not served previously as chief judge shall act as the chief judge. Except as provided in paragraph (4), a judge of the court shall serve as the chief judge under paragraph (1) for a term of five years. If no other judge is eligible under paragraph (1) to serve as chief judge upon the expiration of that term, the chief judge shall continue to serve as chief judge until another judge becomes eligible under that paragraph to serve as chief judge. The term of a chief judge shall be terminated before the end of five years if— the chief judge leaves regular active service as a judge of the court; or the chief judge notifies the other judges of the court in writing that such judge desires to be relieved of his duties as chief judge. The effective date of a termination of the term under subparagraph (A) shall be the date on which the chief judge leaves regular active service or the date of the notification under subparagraph (A)(ii), as the case may be. If a chief judge is temporarily unable to perform his duties as a chief judge, the duties shall be performed by the judge of the court in active service who is present, able and qualified to act, and is next in precedence.

(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 Certain Positions.— Attorney positions of employment under the Court of Appeals for the Armed Forces are excepted from the competitive service. A position of employment under the court that is provided primarily for the service of one judge of the court, reports directly to the judge, and is a position of a confidential character is excepted from the competitive service. Appointments to positions referred to in the preceding sentences shall be made by the court, without the concurrence of any other officer or employee of the executive branch, 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 to 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. 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 Appeals for the Armed Forces may prescribe its rules of procedure and may determine the number of judges required to constitute a quorum. (Added Pub. L. 101–189, div. A, title XIII, § 1301(c) , Nov. 29, 1989 , 103 Stat. 1572 ; amended Pub. L. 103–337, div. A, title IX, § 924(c)(1) , Oct. 5, 1994 , 108 Stat. 2831 .)

§ 945 Art. 145. Annuities for judges and survivors

(a) Retirement Annuities for Judges.— A person who has completed a term of service for which he was appointed as a judge of the United States Court of Appeals for the Armed Forces is eligible for an annuity under this section upon separation from civilian service in the Federal Government. A person who continues service with the court as a senior judge under section 942(e)(1)(B) of this title (article 142(e)(1)(B)) upon the expiration of the judge’s term shall be considered to have been separated from civilian service in the Federal Government only upon the termination of that continuous service. A person who is eligible for an 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. 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 84 of title 5 based on service as a judge of the United States Court of Appeals for the Armed Forces. Upon receiving any notification under subparagraph (A) in the case of a person making an election under paragraph (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 the 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. In determining the amount of a lump-sum credit under section 8331(8) of title 5 for purposes of this paragraph— interest shall be computed using the rates under section 8334(e)(3) of such title; and 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 Appeals for the Armed Forces as of the date on which the person is separated from 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 or 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 this 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 (f)(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) Election of Judicial Retirement Benefits.— 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 active 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. 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 a survivor annuity pursuant to subsection (d) on the basis of the service of that person.

(g) Source of Payment of Annuities.— Annuities and survivor annuities paid under this section shall be paid out of the Department of Defense Military Retirement Fund.

(h) Eligibility to Elect Between Retirement Systems.— This subsection applies with respect to any person who— prior to being appointed as a judge of the United States Court of Appeals for the Armed Forces, performed civilian service of a type making such person subject to the Civil Service Retirement System; and would be eligible to make an election under section 301(a)(2) of the Federal Employees’ Retirement System Act of 1986, by virtue of being appointed as such a judge, but for the fact that such person has not had a break in service of sufficient duration to be considered someone who is being reemployed by the Federal Government. Any person with respect to whom this subsection applies shall be eligible to make an election under section 301(a)(2) of the Federal Employees’ Retirement System Act of 1986 to the same extent and in the same manner (including subject to the condition set forth in section 301(d) of such Act) as if such person’s appointment constituted reemployment with the Federal Government.

§ 946 Art. 146. Military Justice Review Panel

(a) Establishment.— The Secretary of Defense shall establish a panel to conduct independent periodic reviews and assessments of the operation of this chapter. The panel shall be known as the “Military Justice Review Panel” (in this section referred to as the “Panel”).

(b) Members.— The Panel shall be composed of thirteen members. Each of the following shall appoint one member of the Panel: The Secretary of Defense (in consultation with the Secretary of the department in which the Coast Guard is operating when it is not operating as a service in the Navy). The Attorney General. The Judge Advocates General of the Army, Navy, Air Force, and Coast Guard, and the Staff Judge Advocate to the Commandant of the Marine Corps. The Secretary of Defense shall appoint the remaining members of the Panel, taking into consideration recommendations made by each of the following: The chairman and ranking minority member of the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives. The Chief Justice of the United States. The Chief Judge of the United States Court of Appeals for the Armed Forces. Notwithstanding subsection (e), members of the Panel appointed to serve on the Panel to fill vacancies that exist due to terms of appointment expiring during the period beginning on August 1, 2030 , and ending on November 30, 2030 , shall be appointed to terms as follows: Three members designated by the Secretary of Defense shall serve a term of two years. Three members designated by the Secretary of Defense shall serve a term of four years. Three members designated by the Secretary of Defense shall serve a term of six years. Four members designated by the Secretary of Defense shall serve a term of eight years.

(c) Qualifications of Members.— The members of the Panel shall be appointed from among private United States citizens with expertise in criminal law, as well as appropriate and diverse experience in investigation, prosecution, defense, victim representation, or adjudication with respect to courts-martial, Federal civilian courts, or State courts.

(d) Chair.— The Secretary of Defense shall select the chair of the Panel from among the members.

(e) Term; Vacancies.— Subject to subsection (b)(4) and paragraphs (2) and (3) of this subsection, each member shall be appointed for a term of eight years, and no member may serve more than one term. Any vacancy in the Panel shall be filled in the same manner as the original appointment. A member appointed to fill a vacancy in the Panel that occurs before the expiration of the term of appointment of the predecessor of such member shall be appointed for the remainder of the term of such predecessor. Notwithstanding paragraph (1), a member of the Panel may be appointed to a single additional term if— the appointment of the member is to fill a vacancy described in subsection (b)(4); or the member was initially appointed— to a term of four years or less in accordance with subsection (b)(4); or to fill a vacancy that occurs before the expiration of the term of the predecessor of such member and for which the remainder of the term of such predecessor is four years or less.

(f) Reviews and Reports.— During fiscal year 2021, the Panel shall conduct an initial review and assessment of the implementation of the amendments made to this chapter during the preceding five years. In conducting the initial review and assessment, the Panel may review such other aspects of the operation of this chapter as the Panel considers appropriate. During fiscal year 2020, the Panel shall gather and analyze sentencing data collected from each of the armed forces from general and special courts-martial applying offense-based sentencing under section 856 of this title (article 56). The sentencing data shall include the number of accused who request member sentencing and the number who request sentencing by military judge alone, the offenses which the accused were convicted of, and the resulting sentence for each offense in each case. The Judge Advocates General and the Staff Judge Advocate to the Commandant of the Marine Corps shall provide the sentencing data in the format and for the duration established by the chair of the Panel. The analysis under this paragraph shall be included in the assessment required by paragraph (1). During fiscal year 2024 and every eight years thereafter, the Panel shall conduct a comprehensive review and assessment of the operation of this chapter. During fiscal year 2028 and every eight years thereafter, the Panel shall conduct an interim review and assessment of such other aspects of the operation of this chapter as the Panel considers appropriate. In addition, at the request of the Secretary of Defense, the Panel may, at any time, review and assess other specific matters relating to the operation of this chapter. With respect to each review and assessment under this subsection, the Panel shall submit a report to the Committees on Armed Services of the Senate and the House of Representatives. Each report— shall set forth the results of the review and assessment concerned, including the findings and recommendations of the Panel; and shall be submitted not later than December 31 of the calendar year in which the review and assessment is concluded.

(g) Hearings.— The Panel may hold such hearings, sit and act at such times and places, take such testimony, and receive such evidence as the Panel considers appropriate to carry out its duties under this section.

(h) Information From Federal Agencies.— Upon request of the chair of the Panel, a department or agency of the Federal Government shall provide information that the Panel considers necessary to carry out its duties under this section.

(i) Administrative Matters.— Members of the Panel shall serve without pay, but shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I of chapter 57 of title 5, while away from their homes or regular places of business in the performance of services for the Panel. The Secretary of Defense shall provide staffing and resources to support the Panel.

(j) Chapter 10 of Title 5.— Chapter 10 of title 5 shall not apply to the Panel.

§ 946a Art. 146a. Annual reports

(a) Court of Appeals for the Armed Forces.— Not later than December 31 each year, the Court of Appeals for the Armed Forces shall submit a report that, with respect to the previous fiscal year, provides information on the number and status of completed and pending cases before the Court, and such other matters as the Court considers appropriate regarding the operation of this chapter.

(b) Service Reports.— Not later than December 31 each year, the Judge Advocates General and the Staff Judge Advocate to the Commandant of the Marine Corps shall each submit a report, with respect to the preceding fiscal year, containing the following: Data on the number and status of pending cases. Data on the number and status of completed cases, including— information on race, ethnicity, rank, and sex demographic for the victim and the accused; the enumerated offenses preferred and referred; the types of court-martial; and the results for each case, including cases that resulted in nonjudicial punishment or administrative separation. Information on the appellate review process, including— information on compliance with processing time goals; descriptions of the circumstances surrounding cases in which general or special court-martial convictions were (i) reversed because of command influence or denial of the right to speedy review or (ii) otherwise remitted because of loss of records of trial or other administrative deficiencies; an analysis of each case in which a provision of this chapter was held unconstitutional; and an analysis of each case in which a Court of Criminal Appeals made a final determination that a finding of a court-martial was clearly against the weight of the evidence, including an explanation of the standard of appellate review applied in such case. An explanation of measures implemented by the armed force concerned to ensure the ability of judge advocates— to participate competently as trial counsel and defense counsel in cases under this chapter; to preside as military judges in cases under this chapter; and to perform the duties of Special Victims’ Counsel, when so designated under section 1044e of this title . The explanation under subparagraph (A) shall specifically identify the measures that focus on capital cases, national security cases, sexual assault cases, and proceedings of military commissions. The independent views of each Judge Advocate General and of the Staff Judge Advocate to the Commandant of the Marine Corps as to the sufficiency of resources available within the respective armed forces, including total workforce, funding, training, and officer and enlisted grade structure, to capably perform military justice functions. Such other matters regarding the operation of this chapter as may be appropriate.

(c) Submission.— Each report under this section shall be submitted— to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives; and to the Secretary of Defense, the Secretaries of the military departments, and the Secretary of the department in which the Coast Guard is operating when it is not operating as a service in the Navy.

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CHAPTER 47 - UNIFORM CODE OF MILITARY JUSTICE

CHAPTER 47 - UNIFORM CODE OF MILITARY JUSTICE

Sections (217)

§ 801 Article 1. Definitions

“SEC. 1021 AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

“SEC. 1022 MILITARY CUSTODY FOR FOREIGN AL-QAEDA TERRORISTS.

“SEC. 1023 PROCEDURES FOR PERIODIC DETENTION REVIEW OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

“SEC. 1024 PROCEDURES FOR STATUS DETERMINATIONS.

“SEC. 1025 REQUIREMENT FOR NATIONAL SECURITY PROTOCOLS GOVERNING DETAINEE COMMUNICATIONS.

“[SEC. 1028

“SEC. 1029 REQUIREMENT FOR CONSULTATION REGARDING PROSECUTION OF TERRORISTS.

“SEC. 1402 UNIFORM STANDARDS FOR THE INTERROGATION OF PERSONS UNDER THE DETENTION OF THE DEPARTMENT OF DEFENSE.

“SEC. 1405 PROCEDURES FOR STATUS REVIEW OF DETAINEES OUTSIDE THE UNITED STATES.

“SEC. 1406 TRAINING OF IRAQI SECURITY FORCES REGARDING TREATMENT OF DETAINEES.

“SEC. 1002 UNIFORM STANDARDS FOR THE INTERROGATION OF PERSONS UNDER THE DETENTION OF THE DEPARTMENT OF DEFENSE.

“SEC. 1005 PROCEDURES FOR STATUS REVIEW OF DETAINEES OUTSIDE THE UNITED STATES.

“SEC. 1006 TRAINING OF IRAQI FORCES REGARDING TREATMENT OF DETAINEES.

“SEC. 1091 SENSE OF CONGRESS AND POLICY CONCERNING PERSONS DETAINED BY THE UNITED STATES.

“SEC. 1092 ACTIONS TO PREVENT THE ABUSE OF DETAINEES.

§ 802 Art. 2. Persons subject to this chapter

§ 803 Art. 3. Jurisdiction to try certain personnel

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

§ 805 Art. 5. Territorial applicability of this chapter

§ 806 Art. 6. Judge advocates and legal officers

§ 806a Art. 6a. Investigation and disposition of matters pertaining to the fitness of military judges

§ 806b Art. 6b. Rights of the victim of an offense under this chapter

§ 807 Art. 7. Apprehension

§ 808 Art. 8. Apprehension of deserters

§ 809 Art. 9. Imposition of restraint

§ 810 Art. 10. Restraint of persons charged

§ 811 Art. 11. Reports and receiving of prisoners

§ 812 Art. 12. Prohibition of confinement of members of the armed forces with enemy prisoners and certain others

§ 813 Art. 13. Punishment prohibited before trial

§ 814 Art. 14. Delivery of offenders to civil authorities

§ 815 Art. 15. Commanding officer’s non-judicial punishment

§ 816 Art. 16. Courts-martial classified

§ 817 Art. 17. Jurisdiction of courts-martial in general

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

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

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

§ 821 Art. 21. Jurisdiction of courts-martial not exclusive

§ 822 Art. 22. Who may convene general courts-martial

§ 823 Art. 23. Who may convene special courts-martial

§ 824 Art. 24. Who may convene summary courts-martial

§ 824a Art. 24a. Special trial counsel

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

§ 825a Art. 25a. Number of court-martial members in capital cases

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

§ 826a Art. 26a. Military magistrates

§ 827 Art. 27. Detail of trial counsel and defense counsel

§ 828 Art. 28. Detail or employment of reporters and interpreters

§ 829 Art. 29. Assembly and impaneling of members; detail of new members and military judges

§ 830 Art. 30. Charges and specifications

§ 830a Art. 30a. Proceedings conducted before referral

§ 831 Art. 31. Compulsory self-incrimination prohibited

§ 832 Art. 32. Preliminary hearing required before referral to general court-martial

§ 833 Art. 33. Disposition guidance

§ 834 Art. 34. Advice to convening authority before referral for trial

§ 835 Art. 35. Service of charges; commencement of trial

§ 836 Art. 36. President may prescribe rules

§ 837 Art. 37. Command influence

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

§ 839 Art. 39. Sessions

§ 840 Art. 40. Continuances

§ 841 Art. 41. Challenges

§ 842 Art. 42. Oaths

§ 843 Art. 43. Statute of limitations

§ 844 Art. 44. Former jeopardy

§ 845 Art. 45. Pleas of the accused

§ 846 Art. 46. Opportunity to obtain witnesses and other evidence in trials by court-martial

§ 847 Art. 47. Refusal of person not subject to chapter to appear, testify, or produce evidence

§ 848 Art. 48. Contempt

§ 849 Art. 49. Depositions

§ 850 Art. 50. Admissibility of sworn testimony from records of courts of inquiry

§ 850a Art. 50a. Defense of lack of mental responsibility

§ 851 Art. 51. Voting and rulings

§ 852 Art. 52. Votes required for conviction, sentencing, and other matters

§ 853 Art. 53. Findings and sentencing

§ 801 Article 1. Definitions

§ 802 Art. 2. Persons subject to this chapter

§ 803 Art. 3. Jurisdiction to try certain personnel

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

§ 805 Art. 5. Territorial applicability of this chapter

§ 806 Art. 6. Judge advocates and legal officers

§ 806a Art. 6a. Investigation and disposition of matters pertaining to the fitness of military judges

§ 806b Art. 6b. Rights of the victim of an offense under this chapter

§ 807 Art. 7. Apprehension

§ 808 Art. 8. Apprehension of deserters

§ 809 Art. 9. Imposition of restraint

§ 810 Art. 10. Restraint of persons charged

§ 811 Art. 11. Reports and receiving of prisoners

§ 812 Art. 12. Prohibition of confinement of members of the armed forces with enemy prisoners and certain others

§ 813 Art. 13. Punishment prohibited before trial

§ 814 Art. 14. Delivery of offenders to civil authorities

§ 815 Art. 15. Commanding officer’s non-judicial punishment

§ 816 Art. 16. Courts-martial classified

§ 817 Art. 17. Jurisdiction of courts-martial in general

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

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

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

§ 821 Art. 21. Jurisdiction of courts-martial not exclusive

§ 822 Art. 22. Who may convene general courts-martial

§ 823 Art. 23. Who may convene special courts-martial

§ 824 Art. 24. Who may convene summary courts-martial

§ 824a Art. 24a. Special trial counsel

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

§ 825a Art. 25a. Number of court-martial members in capital cases

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

§ 826a Art. 26a. Military magistrates

§ 827 Art. 27. Detail of trial counsel and defense counsel

§ 828 Art. 28. Detail or employment of reporters and interpreters

§ 829 Art. 29. Assembly and impaneling of members; detail of new members and military judges

§ 830 Art. 30. Charges and specifications

§ 830a Art. 30a. Proceedings conducted before referral

§ 831 Art. 31. Compulsory self-incrimination prohibited

§ 832 Art. 32. Preliminary hearing required before referral to general court-martial

§ 833 Art. 33. Disposition guidance

§ 834 Art. 34. Advice to convening authority before referral for trial

§ 835 Art. 35. Service of charges; commencement of trial

§ 836 Art. 36. President may prescribe rules

§ 837 Art. 37. Command influence

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

§ 839 Art. 39. Sessions

§ 840 Art. 40. Continuances

§ 841 Art. 41. Challenges

§ 842 Art. 42. Oaths

§ 843 Art. 43. Statute of limitations

§ 844 Art. 44. Former jeopardy

§ 845 Art. 45. Pleas of the accused

§ 846 Art. 46. Opportunity to obtain witnesses and other evidence in trials by court-martial

§ 847 Art. 47. Refusal of person not subject to chapter to appear, testify, or produce evidence

§ 848 Art. 48. Contempt

§ 849 Art. 49. Depositions

§ 850 Art. 50. Admissibility of sworn testimony from records of courts of inquiry

§ 850a Art. 50a. Defense of lack of mental responsibility

§ 851 Art. 51. Voting and rulings

§ 852 Art. 52. Votes required for conviction, sentencing, and other matters

§ 853 Art. 53. Findings and sentencing

§ 853a Art. 53a. Plea agreements

§ 854 Art. 54. Record of trial

§ 855 Art. 55. Cruel and unusual punishments prohibited

§ 856 Art. 56. Sentencing

[§ 856a Repealed. Pub. L. 114–328, div. E, title LVIII, § 5301(b), Dec. 23, 2016, 130 Stat. 2920]

§ 857 Art. 57. Effective date of sentences

[§ 857a Repealed. Pub. L. 114–328, div. E, title LVIII, § 5302(b)(1), Dec. 23, 2016, 130 Stat. 2923]

§ 858 Art. 58. Execution of confinement

§ 858a Art. 58a. Sentences: reduction in enlisted grade

§ 858b Art. 58b. Sentences: forfeiture of pay and allowances during confinement

§ 859 Art. 59. Error of law; lesser included offense

§ 860 Art. 60. Post-trial processing in general and special courts-martial

§ 860a Art. 60a. Limited authority to act on sentence in specified post-trial circumstances

§ 860b Art. 60b. Post-trial actions in summary courts-martial and certain general and special courts-martial

§ 860c Art. 60c. Entry of judgment

§ 861 Art. 61. Waiver of right to appeal; withdrawal of appeal

§ 862 Art. 62. Appeal by the United States

§ 863 Art. 63. Rehearings

§ 864 Art. 64. Judge advocate review of finding of guilty in summary court-martial

§ 865 Art. 65. Transmittal and review of records