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UNIFORM CODE OF MILITARY JUSTICE
Congressional Code of Military Criminal Lawapplicable to all military members worldwide. Use the links below for a quick tour of the UCMJ.
Subchapter Sec Art.
I.
General Provisions 801 1
II.
Apprehension and Restraint 807 7
III
Non-Judicial Punishment 815 15
IV.
Court-Martial Jurisdiction 816 16
V.
Composition of Courts-Martial 822 22
VI.
Pre-Trial Procedure 830 30
VII.
Trial Procedure 836 36
VIII.
Sentences 855 55
IX.
Post-Trial Procedure and Review of Courts Martial 859 59
X.
Punitive Articles 877 77
XI.
Miscellaneous Provisions 935 135
*XII
Court of Military Appeals 941 141
SUB CHAPTER 1. GENERAL PROVISIONS
Sec. Art.
801. 1. Definitions
802.
2. Persons Subject to this chapter.
803.
3. Jurisdiction to try certain personnel.
804.
4. Dismissed officer's right to trial by court-martial.
805.
5. Territorial applicability of this chapter.
806.
6. Judge advocates and legal officers.
*806a
6a. Investigation and disposition of matters pertaining to the
fitness of military judges.
801. ART. 1. DEFINITIONS.
In this chapter.
(1) "Judge Advocate
General" means, severally, the Judge Advocates General of the Army, Navy,
and Air Force and, except when the Coast Guard is operating as a service in the
Navy, the General Counsel of the Department of Transportation.
(2) The Navy, the Marine
Corps, and the Coast Guard designated as such by appropriate authority.
(4) "Officer in
Charge" means a member of the Navy, the Marine Corps, or the Coast Guard
designated as such by appropriate authority.
(5) "Superior
commissioned officer" means a commissioned officer superior in rank of
command.
(6) "Cadet" means a
cadet of the United States Military Academy United States Air Force Academy United States Coast Guard Academy
(7) "Midshipman"
means a midshipman of the United States Naval Academy
in the naval service.
(8) "Military"
refers to any or all of the armed forces.
(9) "Accuser" means
a person who signs and swears to charges, any person who directs that charges
nominally be signed and sworn to by another person who has an interest other
than an official interest in the prosecution of the accused.
(10) "Military
Judge" means an official of a general or special court-martial detailed in
accordance with section 826 of this title (article 26).
(11) "Law
specialist" means a commissioned officer of the Coast Guard designated for
special duty (law).
(12) "Legal officer"
means any commissioned officer of the Navy, Marine Corps, or Coast Guard
designated to perform legal duties for a command.
(13) "Judge
Advocate" means--
(A) an officer of the Judge
Advocate General's Corp of the Army or the Navy;
(B) an officer of the Air
Force or the Marine Corps who is designated as a judge advocate; or
(C) an officer of the Coast
Guard who is designated as a law specialist.
(14) "Record", when
used in connection with the proceedings of a court-martial means--
(A) an official written
transcript, written summary, or other writing relating to the proceedings: or
(B) an official audiotape,
videotape, or similar material from which sound and visual images, depicting
the proceedings may be reproduced.
802. ART. 2. PERSONS SUBJECT TO THIS
CHAPTER
(a) The following persons are
subject to this chapter:
(1) Members of a regular
component of the armed forces, including those awaiting discharge after
expiration of their terms of enlistment; volunteers from the time of their
muster or acceptance into the armed forces; inductees from the time of their
actual induction into the armed forces; and other persons lawfully called or
ordered into, or to duty in or for training in the armed forces, from the dates
when they are required by the terms of the call or order to obey it.
(2) Cadets, aviation cadets,
and midshipman.
(3) Members of a reserve
component while on inactive-duty training, but in the case of members of the
Army National Guard of the United States or the Air National Guard of the
United States only when in Federal Service.
(4) Retired members of a
regular component of the armed forces who are entitled to pay.
(5) Retired members of a
reserve component who are receiving hospitalization from an armed force.
(6) Members of the Fleet
Reserve and Fleet Marine Corps Reserve.
(7) Persons in custody of the
armed forces serving a sentence imposed by a court-martial.
(8) Members of the National
Oceanic and Atmospheric Administration, Public Health Service, and other
organizations, when assigned to and serving with the armed forces.
(9) Prisoners of war in
custody of the armed forces.
(10) In time of war, persons
serving with or accompanying an armed force in the field.
(11) Subject to any treaty or
agreement which the United States is or may be a party to any accepted rule of
international law, persons serving with, employed by, or accompanying the armed
forces outside the United States and outside the Canal Zone, the Commonwealth
of Puerto Rico, Guam, and the Virgin Islands.
(12) Subject to any treaty or
agreement t which the United States is or may be a party to any accepted rule
of international law, persons within an area leased by or otherwise reserved or
acquired for use of the United States which is under the control of the Secretary
concerned and which is outside the United States and outside the Canal Zone,
the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
(b) The voluntary enlistment
of any person who has the capacity to understand the significance of enlisting
in the armed forces shall be valid for purposes of jurisdiction under
subsection (a) and change of status from civilian to member of the armed forces
shall be effective upon the taking of the oath of enlistment.
(c) Notwithstanding any other
provision of law, a person serving with an armed force who--
(1) Submitted voluntarily to
military authority;
(2) met the mental competence
and minimum age qualifications of sections 504 and 505 of this title at the
time of voluntary submissions to military authority:
(3) received military pay or
allowances; and
(4) performed military duties:
is subject to this chapter until such person's active service has been
terminated in accordance with law or regulations promulgated by the Secretary
concerned.
(d)(1) A member of a reserve
component who is not on active duty and who is made the subject of proceedings
under section 815 (article 15) or section 830 (article 30) with respect to an
offense against this chapter may be ordered to active duty involuntary for the
purpose of-
(A) investigation under
section 832 of this title (article 32);
(B) trial by court-martial; or
(C) non judicial punishment
under section 815 of this title (article 15).
(2) A member of a reserve
component may not be ordered to active duty under paragraph (1) except with
respect to an offense committed while the member was
(A) on active duty; or
(B) on inactive-duty training,
but in the case of members of the Army National Guard of the United States or
the Air National Guard of the United States only when in Federal service.
(3) Authority to order a
member to active duty under paragraph (1) shall be exercised under regulations
prescribed by the President.
(4) A member may be ordered to
active duty under paragraph (1) only by a person empowered to convene general
courts-martial in a regular component of the armed forces.
(5) A member ordered to active
duty under paragraph (1), unless the order to active duty was approved by the
Secretary concerned, may not--
(A) be sentenced to
confinement; or
(B) be required to serve a
punishment of any restriction on liberty during a period other than a period of
inactive-duty training or active duty (other than active duty ordered under
paragraph (1)).
803. ART. 3. JURISDICTION TO TRY CERTAIN
PERSONNEL
(a) Subject to section 843 of
this title (article 43), no person charged with having committed, while in a
status in which he was subject to this chapter, an offense against this
chapter, punishable by confinement for five years or more and for which the
person cannot be tried in the courts of the United States or of a State, a
Territory, or District of Columbia, may be relieved from amenability to trial
by court-martial by reason of the termination of that status.
(b) Each person discharged
from the armed forces who is later charged with having fraudulently obtained
his discharge is, subject to section 843 of this title (article 43), subject to
trial by court-martial on that charge and is after apprehension subject to
trial by court-martial for all offense under this chapter committed before the
fraudulent discharge
(c) No person who has deserted
from the armed forces may be relieved form amenability to the jurisdiction of
this chapter by virtue of separation from any later period of service.
(d) A member of a reserve
component who is subject to this chapter is not, by virtue of the termination
of a period of active duty or inactive-duty training, relieved from amenability
to the jurisdiction of this chapter for an offense against this chapter
committed during such period of active duty or inactive-duty training.
804 ART. 4. DISMISSED OFFICER'S RIGHT TO
TRIAL BY COURT-MARTIAL
(a) If any commissioned
officer, dismissed by order of the president, makes a written application for
trial by court-martial setting forth under oath, that he has been wrongfully
dismissed, the President, as soon as practicable, shall convene a general
court-martial to try that officer on the charges on which he was dismissed. A
court-martial so convened has jurisdiction to try the dismissed officer on
those charges, and he shall be considered to have waived the right to plead any
statute of limitations applicable to any offense with which he is charged. The
court-martial may, as part of its sentence, adjudge the affirmance of the
dismissal, but if the court-martial acquits the accused or if the sentence
adjudged, as finally approved or affirmed, does not include dismissal or death,
the Secretary concerned shall substitute for the dismissal ordered by the
President a form of discharge authorized for administrative issue.
(b) If the President fails to
convene a general court-martial within six months from the preparation of an
application for trial under this article, the Secretary concerned shall
substitute for the dismissal order by the President a form of discharge
authorized for administrative issue.
(c) If a discharge is
substituted for a dismissal under this article, the President alone may
reappoint the officer to such commissioned grade and with such rank as, in the
opinion of the President, that former officer would have attained had he not
been dismissed. The reappointment of such a former officer shall be without
regard to the existence of a vacancy and shall affect the promotion status of
other officers only insofar as the President may direct. All time between the
dismissal and the reappointment shall be considered as actual service for all
purposes, including the right to pay and allowances.
(d) If an officer is
discharged from any armed force by administrative action or is dropped from the
rolls by order of the President, he has no right to trial under this article.
805. ART. 5. TERRITORIAL APPLICABILITY
OF THIS CHAPTER
This chapter applies in all
places.
806. ART. 6. JUDGE ADVOCATES AND LEGAL
OFFICERS
(a) The assignment for duty of
judge advocates of the Army, Navy, Air Force, and Coast Guard shall be made
upon the recommendation of the Judge Advocate General of the armed force of
which they are members. The assignment for duty of judge advocate of the Marine
Corps shall be made by direction of the Commandant of the Marine Corps. The
Judge Advocate General or senior members of his staff shall make frequent
inspection in the field in supervision of the administration of military
justice.
(b) Convening authorities
shall at all times communicate directly with their staff judge advocates or
legal officers in matters relating to the administration of military justice;
and the staff judge advocate or legal officer of a superior or subordinate
command, or with the Judge Advocate General.
(c) No person who has acted as
member, military judge, trial counsel, assistant trial counsel, defense
counsel, assistant defense counsel, or investigating officer in any case may
later act as staff judge-advocate or legal officer to any reviewing authority
upon the same case.
(d)(1) A judge advocate who is
assigned or detailed to perform the functions of a civil office in the
Government of the United States under section 973(*b)(2)(B) of this title may
perform such duties as may be requested by the agency concerned, including
representation of the United States in civil and criminal cases.
(2) The Secretary of Defense,
and the Secretary of Transportation with respect to the Coast Guard when it in
not operating as a service in the Navy, shall prescribe regulations providing
that reimbursement may be a condition of assistance by judge advocates assigned
or detailed under section 973(b)(2)(B) of this title.
* 806a. ART. 6a. INVESTIGATION AND
DISPOSITION OF MATTERS PERTAINING TO THE FITNESS OF MILITARY JUDGES.
(a) The President shall
prescribe procedures for the investigation and disposition of charges,
allegations, or information pertaining to the fitness of a military judge or
military appellate judge to perform the duties of the judge's position, to the
extent practicable, the procedures shall be uniform for all armed forces.
(b) The President shall
transmit a copy of the procedures prescribed pursuant to this section to the
Committees on Armed Services of the Senate and the House of Representatives.
SUBCHAPTER II. APPREHENSION AND
RESTRAINT
Sec. Art.
807. 7. Apprehension.
808.
8. Apprehension of deserters.
809.
9. Imposition of Restraint.
810.
10. Restraint of persons charged with offenses.
811.
11. Reports and receiving of prisoners.
812.
12. Confinement with enemy prisoners prohibited.
813.
13. Punishment prohibited before trial.
814.
14. Delivery of offenders to civil authorities.
807. ART. 7. APPREHENSION
(a) Apprehension is the taking
of a person into custody.
(b) Any person authorized
under regulations governing the armed forces to apprehend persons subject to
this chapter or to trial thereunder may do so upon reasonable belief that an
offense has been committed and that the person apprehended committed it.
(c) Commissioned officers,
warrant officers, petty officers, and noncommissioned officers have authority
to quell quarrels, frays and disorders among persons subject to this chapter
who take part therein.
808. ART. 8. APPREHENSION OF DESERTERS
Any civil officer having
authority to apprehend offenders under the laws of the United States or of a
State, Territory, Commonwealth, or possession, or the District of Columbia may
summarily apprehend a deserter from the armed forces and deliver him into the
custody of those forces.
809. ART. 9. IMPOSITION OF RESTRAINT
(a) Arrest is the restraint of
a person by an order, not imposed as a punishment for an offense, directing him
to remain within certain specified limits. Confinement is the physical
restraint of a person.
(b) An enlisted member may be
ordered into arrest or confinement by any commissioned officer by an order,
oral or written, delivered in person or through other persons subject to this
chapter. A commanding officer may authorize warrant officers, petty officers,
or noncommissioned officers to order enlisted members of his command or subject
to his authority into arrest or confinement.
(c)A commissioned officer, a
warrant officer, or a civilian subject to this chapter or to trial thereunder
may be ordered into arrest or confinement only by a commanding officer to whose
authority he is subject, by an order, oral or written, delivered in person or
by another commissioned officer. The authority to order such persons into
arrest or confinement may not be delegated.
(d) No person may be ordered
into arrest or confinement except for probable cause.
(e) Nothing in this article
limits the authority of person s authorized to apprehend offenders to secure
the custody of an alleged offender until proper authority may be notified.
810. ART. 10. RESTRAINT OF PERSONS
CHARGED WITH OFFENSES
Any person subject to this
chapter charged with an offense under this chapter shall be ordered into arrest
or confinement, as circumstances may require; but when charged only with an
offense normally tried by a summary court-martial, he shall not ordinarily be
placed in confinement. When any person subject to this chapter is placed in arrest
or confinement prior to trial, immediate steps shall be taken to inform him of
the specific wrong of which he is accused and to try him or to dismiss the
charges and release him.
811. ART. 11. REPORTS AND RECEIVING OF
PRISONERS
(a) No provost marshal,
commander or a guard, or master at arms may refuse to receive or keep any
prisoner committed to his charge by a commissioned officer of the armed forces,
when the committing officer furnishes a statement, signed by him, of the
offense charged against the prisoner.
(b) Every commander of a guard
or master at arms to whose charge a prisoner is committed shall, within
twenty-four hours after that commitment or as soon as he is relieved from
guard, report to the commanding officer the name of the prisoner, the offense
charged against him, and the name of the person who ordered or authorized the
commitment.
812. ART. 12. CONFINEMENT WITH ENEMY
PRISONERS PROHIBITED
No member of the armed forces
may be placed in confinement in immediate association with enemy prisoners or
other foreign nationals not members of the armed forces.
813. ART. 13 PUNISHMENT PROHIBITED
BEFORE TRIAL
No person, while being held
for trial, may be subjected to punishment or penalty other than arrest or
confinement upon the charges pending against him, nor shall the arrest or
confinement imposed upon him be any more rigorous than the circumstances
required to insure his presence, but he may be subjected to minor punishment
during that period for infractions of discipline.
814. ART. 14. DELIVERY OF OFFENDERS TO
CIVIL AUTHORITIES
(a) Under such regulations as
the Secretary concerned may prescribe, a member of the armed forces accused of
an offense against civil authority may be delivered, upon request, to the civil
authority for trial.
(b) When delivery under this
article is made to any civil authority of a person undergoing sentence of a
court-martial, the delivery, if followed by conviction in a civil tribunal,
interrupts the execution of the sentence of the court-martial, and the offender
after having answered to the civil authorities for his offense shall, upon the
request of competent military authority, be returned to military custody for
the completion of his sentence.
SUBCHAPTER III. NON-JUDICIAL PUNISHMENT
815. ART. 15. COMMANDING
OFFICER'S NON-JUDICIAL PUNISHMENT
(a) Under such regulations as
the President may prescribe, and under such additional regulations as may be
prescribed by the Secretary concerned, limitations may be placed on the powers
granted by this article with respect to the kind and amount of punishment
authorized, the categories of commanding officers and warrant officers
exercising command authorized to exercise those powers, the applicability of
this article to an accused who demands trial by court-martial, and the kinds of
courts-martial to which the case may be referred upon such a demand. However,
except in the case of a member attached to or embarked in a vessel, punishment
may not be imposed upon any member of the armed forces under this article if
the member has, before the imposition of such punishment, demanded trial by
court-martial in lieu of such punishment. Under similar regulations, rules may
be prescribed with respect to the suspension of punishments authorized by
regulations of the Secretary concerned, a commanding officer exercising general
court-martial jurisdiction or an officer of general or flag rank in command may
delegate his powers under this article to a principal assistant.
(b) Subject to subsection (a)
any commanding officer may, in addition to or in lieu of admonition or
reprimand, impose one or more of the following disciplinary punishments for
minor offenses without the intervention of a court-martial--
(1) upon officers of his
command--
(A) restriction to certain
specified limits, with or without suspension from duty, for not more that 30
consecutive days;
(B) if imposed by an officer
exercising general court-martial jurisdictions or an officer of general flag
rank in command--
(i) arrest in quarters for not
more than 30 consecutive days;
(ii) forfeiture of not more
than one-half of one month's pay per month for two months;
(iii) restriction to certain
specified limits, with or without suspension from duty, for not more than 60
consecutive days;
(iv) detention of not more
than one-half of one month's pay per month for three months;
(2) upon other personnel of
his command--
(A) if imposed upon a person
attached to or embarked in a vessel, confinement on bread and water or
diminished rations for not more than three consecutive days;
(B) correctional custody for
not more than seven consecutive days;
(C) forfeiture of not more
than seven days' pay;
(D) reduction to the next
inferior pay grade, if the grade from which demoted is within the promotion
authority of the officer imposing the reduction or any officer subordinate to
the one who imposes the reduction;
(E) extra duties, including
fatigue or other duties, for not more than 14 consecutive days;
(F) restriction to certain
specified limits, with or without suspension from duty, for not more than 14
consecutive days;
(G) detention of not more than
14 days' pay;
(H) if imposed by an officer
of the grade of major or lieutenant commander, or above--
(i) the punishment authorized
under clause (A);
(ii) correctional custody for
not more than 30 consecutive days;
(iii) forfeiture of not more
than one-half of one month's pay per month for two months;
(iv) reduction to the lowest
or any intermediate pay grade, if the grade from which demoted is within the
promotion authority of the officer imposing the reduction or any officer
subordinate to the one who imposes the reduction, by an enlisted member in a
pay grade above E-4 may not be reduced more than two pay grades;
(v) extra duties, including
fatigue or other duties, for not more than 45 consecutive days;
(vi) restriction to certain
specified limits, with or without suspension from duty, for not more than 60
consecutive days;
(vii) detention of not more
than one-half of one month's pay per month for three months.
Detention of pay shall be for
a stated period of not more than one year but if the offender's term of service
expires earlier, the detention shall terminate upon that expiration. No two or
more of the punishments of arrest in quarters, confinement or bread and water or
diminished rations, correctional custody, extra duties, and restriction may be
combined to run consecutively in the maximum amount impossible for each.
Whenever any of those punishments are combined to run consecutively, there must
be an apportionment. In addition, forfeiture of pay may not bee combined with
detention of pay without an apportionment. For the purpose of this subsection,
"correctional custody" is the physical restraint of a person during
duty or nonduty hours and may include extra duties, fatigue duties, or hard
labor. If practicable, correctional custody will not be served in immediate
association with persons awaiting trial or held in confinement pursuant to
trial by court-martial.
(c) An officer in charge may
impose upon enlisted members assigned to the unit of which he is in charge such
of the punishment authorized under subsection (b)(2)(A)-(G) as the Secretary
concerned may specifically prescribe by regulation.
(d) The officer who imposes
the punishment authorized in subsection (b), or his successor in command, may,
at any time, suspend probationally any part or amount of the unexecuted
punishment imposed and may suspend probationally a reduction in grade or
forfeiture imposed under subsection (b), whether or not executed. In addition, he
may, at any time, remit or mitigate any part or amount of the unexecuted
punishment imposed and may set aside in whole or in part the punishment,
whether executed or unexecuted, and restore all rights, privileges and property
affected. He may also mitigate reduction in grade to forfeiture or detention of
pay. When mitigating--
(1) arrest in quarters to
restriction;
(2) confinement on bread and
water or diminished rations to correctional custody;
(3) correctional custody
confinement on bread and water or diminished rations to extra duties or
restriction, or both; or
(4) extra duties to
restriction;
the mitigated punishment shall
not be for a greater period than the punishment mitigated. When mitigating
forfeiture of pay to detention of pay, the amount of detention shall not be
greater than the amount of the forfeiture. When mitigating reduction in grade
to forfeiture or detention of pay, the amount of the forfeiture or detention
shall not be greater than the amount that could have been imposed initially
under this article by the officer who imposed the punishment mitigated.
(e) A person punished under
this article who considers his punishment unjust or disproportionate to the
offense may, through proper channels, appeal to the next superior authority. The
appeal shall be promptly forwarded and decided, but the person punished may in
the meantime be required to undergo the punishment adjudged. The superior
authority may exercise the same powers with respect to punishment imposed as
may be exercised under subsection (d) by the officer who imposed the
punishment. Before acting on appeal from a punishment of--
(1) arrest in quarters for
more than seven days;
(2) correctional custody for
more than seven days;
(3) forfeiture of more than
seven days' pay;
(4) reduction of one or more
pay grades from the fourth or a higher pay grade;
(5) extra duties for more than
14 days;
(6) restriction for more than
14 days; or
(7) detention of more than 14
days' pay;
the authority who is to act on
the appeal shall refer the case to a judge advocate or a lawyer of the
Department of Transportation for consideration and advice, and may so refer the
case upon appeal from any punishment imposed under subsection (b).
(f) The imposition and
enforcement of disciplinary punishment under this article for any act or
omission is not a bar to trial by court-martial for a serious crime or offense
growing out of the same act or omission, and not properly punishable under this
article; but the fact that a disciplinary punishment has been enforced may be
shown by the accuse upon trial, and when so shown shall be considered in
determining the measure of punishment to be adjudged in the event of a finding
of guilty.
(g) The Secretary concerned
may, by regulation, prescribe the form of records to be kept under this article
and may also prescribe that certain categories of those proceedings shall be in
writing.
SUBCHAPTER IV. COURT-MARTIAL
JURISDICTION
Sec. Art.
816. 16. Courts-Martial
classified.
817.
17. Jurisdiction of courts-martial in general
818.
18. Jurisdiction of general courts-martial.
819.
19. Jurisdiction of special courts-martial.
820.
20. Jurisdiction of summary courts-martial.
821.
21. Jurisdiction of courts-martial not exclusive.
816. ART. 16. COURT-MARTIAL
CLASSIFIED
The three kinds of
courts-martial in each of the armed forces are--
(1) general courts-martial,
consisting of--
(A) a military judge and not
less than five members; or
(B) only a military judge, if
before the court is assembled the accused, knowing the identity of the military
judge and after consultation with defense counsel, requests orally on the
record or in writing a court composed only of a military judge and the military
judge approves;
(2) special courts-martial,
consisting of--
(A) not less than three
members; or
(B) a military judge and not
less than three members; or
(C) only a military judge, if
one has been detailed to the court, and the accused under the same conditions
as those prescribed in clause (1)(B) so requests; and
(3) summary courts-martial,
consisting of one commissioned officer.
817. ART. 17. JURISDICTION OF
COURTS-MARTIAL IN GENERAL
(a) Each armed force has
court-martial jurisdiction over all persons subject to this chapter. The
exercise of jurisdiction by one armed force over personnel of another armed
force shall be in accordance with regulations prescribed by the President.
(b) In all cases, departmental
review after that by the officer with authority to convene a general
court-martial for the command which held the trial, where that review is
required under this chapter, shall be carried out by the department that
includes the armed force of which the accused is a member.
818. ART. 18. JURISDICTION OF GENERAL
COURTS-MARTIAL
Subject to section 817 of this
title (article 17), general courts-martial have jurisdiction to try persons
subject to this chapter for any offense made punishable by this chapter and
may, under such limitations as the President may prescribe, adjudge any
punishment not forbidden by this chapter, including the penalty of death when
specifically authorized by this chapter. General courts-martial also have jurisdiction
to try any person who by the law of war is subject to trial by a military
tribunal and may adjudge any punishment permitted by the law of war. However, a
general court-martial of the kind specified in section 816(1)(B) of this title
(article 16(1)(B)) shall not have jurisdiction to try any person for any
offense for which the death penalty may be adjudged unless the case has been
previously referred to trial as noncapital case.
ART. 19. JURISDICTION OF SPECIAL
COURTS-MARTIAL
Subject to section 817 of this
title (article 17), special courts-martial have jurisdiction to try persons
subject to this chapter for any noncapital offense made punishable by this
chapter and, under such regulations as the President may prescribe, for capital
offenses. Special courts-martial may, under such limitations as the President
may prescribe, adjudge any punishment not forbidden by this chapter except
death, dishonorable discharge, dismissal, confinement for more than six months,
hard labor without confinement for more than three months, forfeiture of pay
exceeding two-thirds pay per month, or forfeiture of pay for more than six
months. A bad-conduct discharge may not be adjudged unless a complete record of
the proceedings and testimony has been made, counsel having the qualifications
prescribed under section 827(b) of this title (article 27(b)) was detailed to
represent the accused, and a military judge was detailed to the trial, except
in any case in which a military judge could not be detailed to the trial, the
convening authority shall make a detailed written statement, to be appended to
the record, stating the reason or reasons a military judge could not be
detailed.
820 ART. 20. JURISDICTION OF SUMMARY
COURTS-MARTIAL
Subject to section 817 of this
title (article 17), summary courts-martial have jurisdiction to try persons
subject to this chapter, except officers, cadets, aviation cadets, and
midshipman, for any noncapital offense made punishable by this chapter. No
person with respect to whom summary courts- martial have jurisdiction may be
brought to trial before a summary court- martial if he objects thereto. If
objection to trial by summary court- martial is made by an accused, trial may
be ordered by special or general court-martial as may be appropriate. Summary
courts-martial may, under such limitations as the President may prescribe,
adjudge any punishment not forbidden by this chapter except death, dismissal,
dishonorable or bad- conduct discharge, confinement for more than one month,
hard labor without confinement for more than 45 days, restrictions to specified
limits for more than two months, or forfeiture of more than two-thirds of one
month's pay.
821. ART. 21. JURISDICTION OF
COURTS-MARTIAL NOT EXCLUSIVE
The provisions of this chapter
conferring jurisdiction upon courts- martial do not deprive military
commissions, provost courts, or other military tribunals of concurrent
jurisdiction with respect to offenders or offenses that by statute or by the
law of war may be tried by military commissions, provost courts, or other
military tribunals.
SUBCHAPTER V. COMPOSITION OF
COURTS-MARTIAL
Sec. Art.
822. 22. Who may convene
general courts-martial.
823.
23. Who may convene special courts-martial.
824.
24. Who may convene summary courts-martial.
825.
25. Who may serve on courts-martial.
826.
26. Military judge of a general or special court-martial.
827.
27. Detail of trial counsel and defense counsel.
828.
28. Detail or employment of reporters and interpreters.
829.
29. Absent and additional members.
822. ART. 22. WHO MAY CONVENE
GENERAL COURTS-MARTIAL
(a) General courts-martial may
be convened by--
(1) the President of the United States
*(2) the Secretary of Defense;
*(3) the commanding officer of
a unified or specified combatant command;
(4) the Secretary concerned;
(5) the commanding officer of
a Territorial Department, an Army Group, an Army, an Army Corps, a division, a
separate brigade, or a corresponding unit of the Army or Marine Corps;
(6) the commander in chief of
a fleet; the commanding officer of a naval station or larger activity of the
Navy beyond the United States
(7) the commanding officer of
an air command, an air force, an air division, or a separate wing of the Air
Force or Marine Corps;
(8) any other commanding
officer designated by the Secretary concerned; or
(9) any other commanding officer
in any of the armed forces when empowered by the President.
(b) If any such commanding
officer is an accuser, the court shall be convened by superior competent
authority, and may in any case be convened by such authority if considered
desirable by him.
823. ART. 23. WHO MAY CONVENE SPECIAL
COURTS-MARTIAL
(a) Special courts-martial may
be convened by--
(1) any person who may convene
a general court-martial;
(2) the commanding officer of
a district, garrison, fort, camp, station, Air Force base, auxiliary air field,
or other place where members of the Army or the Air Force are on duty;
(3) the commanding officer of
a brigade, regiment, detached battalion, or corresponding unit of the Army;
(4) the commanding officer of
a wing, group, or separate squadron of the Air Force;
(5) the commanding officer of
any naval or Coast Guard vessel, shipyard, base, or station; the commanding
officer of any Marine brigade, regiment, detached battalion, or corresponding
unit; the commanding officer of any Marine barracks, wing, group, separate
squadron, station, base, auxiliary air field, or other place where members of
the Marine Corps are on duty;
(6) the commanding officer of
any separate or detached command or group of detached units of any of the armed
forces placed under a single commander for this purpose; or
(7) the commanding officer or
officer in charge of any other command when empowered by the Secretary
concerned.
(b) If any such officer is an
accuser, the court shall be convened by superior competent authority, and may
in any case be convened by such authority if considered advisable by him.
824. ART. 24. WHO MAY CONVENE SUMMARY
COURTS-MARTIAL
(a) Summary courts-martial may
be convened by--
(1) any person who may convene
a general or special court-martial;
(2) the commanding officer of
a detached company other detachment of the Army;
(3) the commanding officer of
a detached squadron or other detachment of the Air Force; or
(4) the commanding officer or
officer in charge of any other command when empowered by the Secretary
concerned.
(b) When only one commissioned
officer is present with a command or detachment he shall be the summary
court-martial of that command or detachment and shall hear and determine all
summary court-martial cases brought before him. Summary courts-martial may,
however, be convened in any case by superior competent authority when
considered desirable by him.
825. ART, 25. WHO MAY SERVE ON
COURTS-MARTIAL
(a) Any commissioned officer
on active duty is eligible to serve on all courts-martial for the trial of any
person who may lawfully be brought before such courts for trial.
(b) Any warrant officer on
active duty is eligible to serve on general and special courts-martial for the
trial of any person, other than a commissioned officer, who may lawfully be
brought before such courts for trial.
*(c)(1) Any enlisted member of
an armed force on active duty who is not a member of the same unit as the
accused is eligible to serve on general and special courts-martial for the
trial of any enlisted member of an armed force who may lawfully be brought
before such courts for trial, but he shall serve as a member of a court only
if, before the conclusion of a session called by the military judge under
section 839(a) of this title (article 39(a)) prior to trial or, in the absence
of such a session, before the court is assembled for the trial of the accused,
the accused personally has requested orally on the record or in writing that
enlisted members serve on it. After such a request, the accused may not be
tried by a general or special courts-martial the membership of which does not
include enlisted members in a number comprising at least one-third of the total
membership of the court, unless eligible enlisted members cannot be obtained on
account of physical conditions or military exigencies. If such members cannot
be obtained, the court may be assembled and the trial held without them, but
the convening authority shall make a detailed written statement, to be appended
to the record, stating why they could not be obtained.
(2) In this article,
"unit" means any regularly organized body as defined by the Secretary
concerned, but in no case may it be a body larger than a company, squadron,
ship's crew, or body corresponding to one of them.
(d) (1) When it can be
avoided, no member of an armed force may be tried by a court-martial any member
of which is junior to him in rank or grade.
(2) When convening a
court-martial, the convening authority shall detail as member thereof such
members of the armed forces as, in his opinion, are best qualified for the duty
by reason of age, education, training, experience, length of service, and
judicial temperament. No member of an armed force is eligible to serve as a
member of a general or special court-martial when he is the accuser or a
witness for the prosecution or has acted as investigating officer or as counsel
in the same case.
(e) Before a court-martial is
assembled for the trial of a case, the convening authority may excuse a member
of the court from participating in the case. Under such regulations as the
Secretary concerned may prescribe, the convening authority may delegate his
authority under this subsection to his staff judge advocate or legal officer or
to any other principal assistant.
826. ART. 26. MILITARY JUDGE OF A
GENERAL OR SPECIAL COURT-MARTIAL
(a) A military judge shall be
detailed to each general court-martial. Subject to regulations of the Secretary
concerned, a military judge may be detailed to any special court-martial. The
Secretary concerned shall prescribe regulations providing for the manner in
which military judges are detailed for such courts-martial and for the persons
who are authorized to detail military judges for such courts-martial. The
military judge shall preside over each open session of the court-martial in
which he has been detailed.
(b) A military judge shall be
a commissioned officer of the armed forces who is a member of the bar of a
Federal court or a member of the bar of the highest court of a State and who is
certified to be qualified for duty as a military judge by the Judge Advocate
General of the armed force of which such military judge is a member.
(c) The military judge of a
general court-martial shall be designated by the Judge Advocate General, or his
designee, of the armed force of which the military judge is a member of detail
in accordance with regulations prescribed under subsection (a). Unless the
court-martial was convened by the President or the Secretary concerned, neither
the convening authority nor any member of his staff shall prepare or review any
report concerning the effectiveness, fitness, or efficiency of the military
judge so detailed, which relates to his performance of duty as a military
judge. A commissioned officer who is certified to be qualified for duty as a
military judge of a general court-martial may perform such duties only when he
is assigned and directly responsible to the Judge Advocate General, or his
designee, of the armed force of which the military judge is a member and may perform
duties of a judicial or nonjudicial nature other than those relating to his
primary duty as a military judge of a general court-martial when such duties
are assigned to him by or with the approval of that Judge Advocate General or
his designee.
(d) No person is eligible to
act as military judge in a case if he is the accuser or a witness for the
prosecution or has acted as investigating officer or a counsel in the same
case.
(e) The military judge of a
court-martial may not consult with the members of the court except in the
presence of the accused, trial counsel, and defense counsel, nor may he vote
with the members of the court.
827. ART. 27. DETAIL OF TRIAL COUNSEL
AND DEFENSE COUNSEL
(a) (1) Trial counsel and
defense counsel shall be detailed for each general and special court-martial.
Assistant trial counsel and assistant and associate defense counsel may be
detailed for each general and special court-martial. The Secretary concerned
shall prescribe regulations providing for the manner in which counsel are
detailed for such courts- martial and for the persons who are authorized to
detail counsel for such courts-martial.
(2) No person who has acted as
investigating officer, military judge, or court member in any case may act
later as trial counsel, assistant trial counsel, or, unless expressly requested
by the accused, as defense counsel or assistant or associate defense counsel in
the same case. No person who has acted for the prosecution may act later in the
same case for the defense, nor may any person who has acted for the defense act
later in the same case for the prosecution.
(b) Trial counsel or defense
counsel detailed for a general court-martial- -
(1) must be a judge advocate
who is a graduate of an accredited law school or is a member of the bar of a
Federal court or of the highest court of a State; or must be a member of the
bar of a Federal court or of the highest court of a State; and
(2) must be certified as
competent to perform such duties by the Judge Advocate General of the armed
force of which he is a member.
(c) In the case of a special
court-martial--
(1) the accused shall be
afforded the opportunity to be represented at the trial by counsel having the
qualifications prescribed under section 827(b) of this title (article 27(b))
unless counsel having such qualifications cannot be obtained on account of
physical conditions or military exigencies. If counsel having such
qualifications cannot be obtained, the court may be convened and the trial held
but the convening authority shall make a detailed written statement, to be
appended to the record, stating why counsel with such qualifications could not
be obtained;
(2) if the trial counsel is
qualified to act as counsel before a general curt-martial, the defense counsel
detailed by the convening authority must be a person similarly qualified; and
(3) if the trial counsel is a
judge advocate or a member of the bar of a Federal court or the highest court
of a State, the defense counsel detailed by the convening authority must be one
of the foregoing.
828. ART. 28 DETAIL OR EMPLOYMENT OF
REPORTERS AND INTERPRETERS.
Under such regulations as the
Secretary concerned may prescribe, the convening authority of a court-martial,
military commission, or court of inquiry shall detail or employ qualified court
reporters, who shall record the proceedings of and testimony taken before that
court or commission. Under like regulations the convening authority of a
court-martial, military commission, or court of inquiry may detail or employ
interpreters who shall interpret for the court or commission.
829. ART. 29. ABSENT AND ADDITIONAL
MEMBERS
(a) No member of a general or
special court-martial may be absent or excused after the court has been
assembled for the trial of the accused unless excused as a result of challenge,
excused by the military judge for physical disability or other good cause, or
excused by order of the convening authority for good cause.
(b) Whenever a general
court-martial, other than a general court-martial composed of a military judge
only, is reduced below five members, the trial may not proceed unless the
convening authority details new member sufficient in number to provide not less
than five members. The trial may proceed with the new members present after the
recorded evidence previously introduced before the members of the court has
been read to the court in the presence of the military judge, the accused and
counsel for both sides.
(c) Whenever a special
court-martial, other than a special court-marital composed of a military judge
only, is reduced below three members, the trial may not proceed unless the
convening authority details new members sufficient in number to provide not
less than three members. The trial shall proceed with the new members present
as if no evidence had previously been introduced at the trial, unless verbatim
record of the evidence previously introduced before the members of the court or
a stipulation thereof is read to the court in the presence of the military
judge, if any, the accused and counsel for both sides.
(d) If the military judge of a
court-martial composed of a military judge only is unable to proceed with the
trial because of physical disability, as a result of a challenge, or for other
good cause, the trial shall proceed, subject to any applicable conditions of
section 816(1)(B) or (2)(C) of this title (article 16(1)(B) or (2)(C), after
the detail of a new military judge as if no evidence had previously been
introduced, unless a verbatim record of the evidence previously introduced or a
stipulation thereof is read in court in the presence of the new military judge,
the accused, and counsel for both sides.
SUBCHAPTER VI. PRE-TRIAL PROCEDURE
Sec. Art.
830. 30. Charges and
specifications
831.
31. Compulsory self-incrimination prohibited.
832.
32. Investigation.
833.
33. Forwarding of charges.
834.
34. Advice of staff judge advocate and reference for trial.
835.
35. Service of charges.
830. ART. 30. CHARGES AND
SPECIFICATIONS
(a) Charges and specifications
shall be signed by a person subject to this chapter under oath before a
commissioned officer of the armed forces authorized to administer oaths and
shall state--
(1) that the signer has
personal knowledge of, or has investigated, the matters set forth therein; and
(2) that they are true in fact
to the best of his knowledge and belief.
(b) Upon the preferring of
charges, the proper authority shall take immediate steps to determine what
disposition should be made thereof in the interest of justice and discipline,
and the person accused shall be informed of the charges against him as soon as
practicable.
831 ART. 31. COMPULSORY
SELF-INCRIMINATION PROHIBITED
(a) No person subject to this
chapter may compel any person to incriminate himself or to answer any questions
the answer to which may tend to incriminate him.
(b) No person subject to this
chapter may interrogate, or request any statement from an accused or a person
suspected of an offense without first informing him of the nature of the
accusation and advising him that he does not have to make any statement
regarding the offense of which he is accused or suspected and that any
statement made by him may be used as evidence against him in a trial by
court-martial.
(c) No person subject to this
chapter may compel any person to make a statement or produce evidence before
any military tribunal if the statement or evidence in not material to the issue
and may tend to degrade him.
(d) No statement obtained from
any person in violation of this article, or through the use of coercion,
unlawful influence, or unlawful inducement may be received in evidence against
him in a trial by court-martial.
832. ART. 32. INVESTIGATION
(a) No charge or specification
may be referred to a general court-martial for trial until a thorough and
impartial investigation of all the matters set forth therein has been made.
This investigation shall include inquiry as to the truth of the matter set
forth in the charges, consideration of the form of charges, and recommendation
as to the disposition which should be made of the case in the interest of
justice and discipline.
(b) The accused shall be
advised of the charges against him and of his right to be represented at that
investigation as provided in section 838 of this title (article 38) and in
regulations prescribed under that section. At that investigation full
opportunity shall be given to the accused to cross-examine witnesses against
him if they are available and to present anything he may desire in his own
behalf, either in defense or mitigation, and the investigation officer shall
examine available witnesses requested by the accused. If the charges are
forwarded after the investigation, they shall be accompanied by a statement of
the substance of the testimony taken on both sides and a copy thereof shall be
given to the accused.
(c) If an investigation of the
subject matter of an offense has been conducted before the accused is charged
with the offense, and if the accused was present at the investigation and
afforded the opportunities for representation, cross-examination, and
presentation prescribed in subsection (b), no further investigation of that
charge is necessary under this article unless it is demanded by the accused
after he is informed of the charge. A demand for further investigation entitles
the accused to recall witnesses for further cross-examination and to offer any
new evidence in his own behalf.
(d) The requirements of this
article are binding on all persons administering this chapter but failure to
follow them does not constitute judicial error.
833. ART.. 33. FORWARDING OF CHARGES
When a person is held for
trial by general court-martial the commanding officer shall, within eight days
after the accused is ordered into arrest or confinement, if practicable,
forward the charges, together with the investigation and allied papers, to the
officer exercising general court martial jurisdiction. If that is not
practicable, he shall report in writing to that officer the reasons for the
delay.
834. ART. 34. ADVICE OF STAFF JUDGE
ADVOCATE AND REFERENCE FOR TRIAL
(a) Before directing the trial
of any charge by general court-martial, the convening authority shall refer it
to his staff judge advocate for consideration and advice. The convening
authority may not refer a specification under a charge to a general
court-martial for trial unless he has been advised in writing by the staff
judge advocate that--
(1) the specification alleges
an offense under this chapter;
(2) the specification is
warranted by the evidence indicated in the report of investigation under
section 832 of this title (article 32) (if there is such a report); and
(3) a court-martial would have
jurisdiction over the accused and the offense.
(b) The advice of the staff
judge advocate under subsection (a) with respect to a specification under a
charge shall include a written and signed statement by the staff judge
advocate--
(1) expressing his conclusions
with respect to each matter set forth in subsection (a); and
(2) recommending action that
the convening authority take regarding the specification.
If the specification is
referred for trial, the recommendation of the staff judge advocate shall
accompany the specification.
(c) If the charges or
specifications are not formally correct or do not conform to the substance of
the evidence contained in the report of the investigation officer, formal
corrections, and such changes in the charges and specifications as are needed
to make them conform to the evidence, may be made.
835. ART. 35. SERVICE OF CHARGES.
The trial counsel to whom
court-martial charges are referred for trial shall cause to be served upon the
accused a copy of the charges upon which trial is to be had. In time of peace
no person may, against his objection, be brought to trial or be required to
participate by himself or counsel in a session called by the military judge
under section 839(a) of this title (article 39(a)), in a general court-martial
case within a period of five days after the service of charges upon him or in a
special court-martial within a period of three days after the service of the
charges upon him.
SUBCHAPTER VII. TRIAL PROCEDURE
Sec. Art.
836.
36. President may prescribe rules
837.
37. Unlawful influencing the action of the court.
838.
38. Duties of trial counsel and defense counsel.
839.
39. Sessions.
840.
40. Continuances.
841.
41. Challenges.
842.
42. Oaths.
843.
43. Statute of limitations.
844.
44. Former jeopardy.
845.
45. Pleas of the accused.
846.
46. Opportunity to obtain witnesses and other evidence.
847.
47. Refusal to appear or testify.
848.
48. Contempt's.
849.
49. Depositions.
850.
50. Admissibility of records of courts of inquiry.
851.
51. Voting and rulings.
852.
52. Number of votes required.
853.
53. Court to announce action.
854.
54. Record of trial.
836. ART 36. PRESIDENT MAY PRESCRIBE
RULES
(a) Pretrial, trial, and post
trial procedures, including modes of proof, for cases arising under this
chapter triable in courts-martial, military commissions and other military
tribunals, and procedures for courts of inquiry, may be prescribed by the President
by regulations which shall, so far as he considers practicable, apply the
principles of law and the rules of evidence generally recognized in the trial
of criminal cases in the United States district courts, but which may not be
contrary to or inconsistent with this chapter.
(b) All rules and regulations
made under this article shall be uniform insofar as practicable and shall be
reported to Congress.
837. ART. 37. UNLAWFULLY INFLUENCING
ACTION OF COURT
(a) No authority convening a
general, special, or summary court-martial, nor any other commanding officer,
may censure, reprimand, or admonish the court or any member, military judge, or
counsel thereof, with respect to the findings or sentence adjudged by the
court, or with respect to any other exercises of its or his functions in the
conduct of the proceedings. No person subject to this chapter may attempt to
coerce or, by any unauthorized means, influence the action of a court-martial
or any other military tribunal or any member thereof, in reaching the findings
or sentence in any case, or the action of any convening, approving, or
reviewing authority with respect to his judicial acts. The foregoing provisions
of the subsection shall not apply with respect to (1) general instructional or
informational courses in military justice if such courses are designed solely
for the purpose of instructing members of a command in the substantive and
procedural aspects of courts-martial, or (2) to statements and instructions
given in open court by the military judge, president of a special
court-martial, or counsel.
(b) In the preparation of an
effectiveness, fitness, or efficiency report on any other report or document
used in whole or in part for the purpose of determining whether a member of the
armed forces is qualified to be advanced, in grade, or in determining the
assignment or transfer of a member of the armed forces or in determining
whether a member of the armed forces should be retained on active duty, no
person subject to this chapter may, in preparing any such report (1) consider
or evaluate the performance of duty of any such member, as counsel, represented
any accused before a court-martial.
838. ART. 38. DUTIES OF TRIAL COUNSEL
AND DEFENSE COUNSEL
(a) The trial counsel of a
general or special court-martial shall prosecute in the name of the United States
court, prepare the record of the proceedings.
(b) (1) The accused has the
right to be represented in his defense before a general or special
court-martial or at an investigation under section 832 of this title (article
32) as provided in this subsection.
(2) The accused may be
represented by civilian counsel if provided by him.
(3) The accused may be
represented--
(A) by military counsel
detailed under section 827 of this title (article 27); or
(B) by military counsel of his
own selection if that counsel is reasonably available (as determined under
regulations prescribed under paragraph (7)).
(4) If the accused is
represented by civilian counsel, military counsel detailed or selected under
paragraph (3) shall act as associate counsel unless excused at the request of
the accused.
(5) Except as provided under
paragraph (6), if the accused is represented by military counsel of his own
selection under paragraph (3)(B), any military counsel detailed under paragraph
(3)(A) shall be excused.
(6) The accused is not
entitled to be represented by more than one military counsel. However, the
person authorized under regulations prescribed under section 827 of this title
(article 27) to detail counsel in his sole discretion--
(A) may detail additional
military counsel as assistant defense counsel; and
(B) if the accused is
represented by military counsel of his own selection under paragraph (3)(B),
may approve a request from the accused that military counsel detailed under
paragraph (3)(A) act as associate defense counsel.
(7) The Secretary concerned
shall, by regulation, define "reasonably available" for the purpose
of paragraph (3)(B) and establish procedures for determining whether the
military counsel selected by an accused under that paragraph is reasonably
available. Such regulations may not prescribe any limitation based on the
reasonable availability of counsel solely on the grounds that the counsel
selected by the accused if from an armed force other than the armed force of
which the accuse is a member. To the maximum extent practicable, such
regulations shall establish uniform policies among the armed forces while
recognizing the differences in the circumstances and needs of the various armed
forces. The Secretary concerned shall submit copies of regulations prescribed
under this paragraph to the Committees on Armed Services of the Senate and
House of Representatives.
(c) In any court-martial
proceeding resulting in a conviction, the defense counsel-
(1) may foreword for
attachment to the record of proceedings a brief of such matters as he
determines should be considered in behalf of the accused on review (including
any objections to the contents of the record which he considers appropriate);
(2) may assist the accused in
the submission of any mater under section 860 of this title (article 60); and
(3) may take other action
authorized by this chapter.
(d) An assistant trial counsel
of a general court-martial may, under the direction of the trial counsel or
when he is qualified to be a trial counsel as required by section 827 of this
title (article 27), perform any duty imposed by law, regulation, or the custom
of the service upon the trial counsel of the court. An assistant trial counsel
of a special court- martial may perform any duty of the trial counsel.
(e) An assistant defense
counsel of a general or special court-martial may, under the direction of the
defense counsel or when he is qualified to be the defense counsel as required
by section 827 of this title (article 27), perform any duty imposed by law,
regulation, or custom of the service upon counsel for the accused.
839. ART. 39. SESSIONS
(a) At any time after the
service of charges which have been referred for trial by court-martial composed
of a military judge and members, the military judge may, subject to section 835
of this title (article 35), call the court into session without the presence of
the members for the purpose of--
(1) hearing and determining
motions raising defenses or objections which are capable of determination
without trial of the issues raised by a plea of not guilty;
(2) hearing and ruling upon
any matter which may be ruled upon by the military judge under this chapter,
whether or not the matter is appropriate for later consideration or decision by
the members of the court;
(3) if permitted by
regulations of the Secretary concerned, holding the arraignment and receiving
the pleas of the accused; and
(4) performing any other
procedural function which may be performed by the military judge under this
chapter or under rules prescribed pursuant to section 836 of this title
(article 36) and which does not require the presence of the members of the
court.
These proceedings shall be
conducted in the presence of the accused, the defense counsel, and the trial
counsel and shall be made part of the record.
(b) When the members of a
court-martial deliberate or vote, only the members may be present. All other
proceedings, including any other consultation of the members of the court with
counsel or the military judge, shall be made a part of the record and shall be
in the presence of the accused, the defense counsel, the trial counsel, and in
cases in which a military judge has been detailed to the court, the military
judge.
840. ART. 40. CONTINUANCES.
The military judge or a
court-martial without a military judge may, for reasonable cause, grant a
continuance to any party for such time, and as often, as may appear to be just.
841. ART. 41. CHALLENGES
(a) The military judge and
members of a general or special court- martial may be challenged by the accused
or the trial counsel for cause stated to the court. The military judge, or if
none, the court, shall determine the relevance and validity of the challenges
for cause, and may not receive a challenge to more than one person at a time.
Challenges by the trial counsel shall ordinarily be presented and decided
before those by the accused are offered.
(b) Each accused and the trial
counsel is entitled to one preemptory challenge, but the military judge may not
be challenged except for cause.
842. ART. 42. OATHS
(a) Before performing their
respective duties, military judges, members of general and special
courts-martial, trial counsel, assistant trial counsel, defense counsel,
assistant or associate defense counsel, reporters, and interpreters shall take
an oath to perform their duties faithfully. The form of the oath, the time and
place of the taking thereof, the manner of recording the same, and whether the
oath shall be taken for all cases in which these duties are to be performed or
for a particular case, shall be as prescribed in regulations of the Secretary
concerned. These regulations may provide that an oath to perform faithfully duties
as a military judge, trial counsel, assistant trial counsel, defense counsel,
or assistant or associate defense counsel may be taken at any time by any judge
advocate or other person certified to be qualified or competent for duty, and
if such an oath is taken it need not again be taken at the time the judge
advocate, or other person is detailed to that duty.
(b) Each witness before a
court-martial shall be examined on oath.
* 843. ART. 43. STATUTE OF LIMITATIONS
(a) A person charged with
absence without leave or missing movement in time of war, or with any offense
punishable by death, may be tried at any time without limitation.
(b) (1) Except as otherwise
provided in this section (article), a person charged with an offense is not
liable to be tried by court-martial if the offense was committed more than five
years before the receipt of sworn charges and specifications by an officer
exercising summary court- martial jurisdiction over the command.
(2) A person charged with an
offense is not liable to be punished under section 815 of this title (article
15) if the offense was committed more than two years before the imposition of
punishment.
(c) Periods in which the
accused is absent without authority or fleeing from justice shall be excluded
in computing the period of limitation prescribed in this section (article).
(d) Periods in which the
accused was absent from territory in which the United States has the authority
to apprehend him, or in the custody of civil authorities, or in the hands of
the enemy, shall be excluded in computing the period of limitation prescribed
in this article.
(e) For an offense the trial
of which in time of war is certified to the President by the Secretary
concerned to be detrimental to the prosecution of the war or inimical to the
national security, the period of limitation prescribed in this article is
extended to six months after the termination of hostilities as proclaimed by
the President or by a joint resolution of Congress.
(f) When the United States
of limitations applicable to any offense under this chapter--
(1) involving fraud or
attempted fraud against the United States
whether by conspiracy or not;
(2) committed in connection
with the acquisition, care, handling, custody, control, or disposition of any
real or personal property of the United States; or
(3) committed in connection
with the negotiation, procurement, award, performance, payment, interim
financing, cancellation, or other termination or settlement, of any contract,
subcontract, or purchase order which is connected with or related to the
prosecution of the war, or with any disposition of termination inventory by any
war contractor or Government agency;
is suspended until three years
after the termination of hostilities as proclaimed by the President or by a
joint resolution of Congress.
*(g) (1) If charges or
specifications are dismissed or insufficient for any cause and the period
prescribed by the applicable statute of limitations--
(A) has expired; or
(B) will expire within 180
days after the date of dismissal of the charges and specifications, trial and
punishment under new charges and specifications are not bared by the statute of
limitations if the conditions specified in paragraph (2) are met.
(2) The conditions referred to
in paragraph (1) are that the new charges and specifications must--
(A) be received by an officer
exercising summary court-martial jurisdiction over the command within 180 days
after dismissal of the charges or specifications; and
(B) allege the same acts or
omissions that were alleged in the dismissed charges or specifications (or
allege acts or omissions that were included in the dismissed charges or
specifications).
844. ART. 44. FORMER JEOPARDY
(a) No person may, without his
consent, be tried a second time for the same offense.
(b) No proceeding in which the
accused has been found guilty by court- martial upon any charge or
specification is a trial in the sense of this article until the finding of
guilty has become final after review of the case has been fully completed.
(c) A proceeding which, after
the introduction of evidence but before a finding, is dismissed or terminated
by the convening authority or motion of the prosecution for failure of
available evidence or witnesses without any fault of the accused is a trial in
the sense of this article.
845. ART. 45. PLEAS OF THE ACCUSED
(a) If an accused after
arraignment makes an irregular pleading, or after a plea of guilty sets up matter
inconsistent with the plea, or if it appears that he has entered the plea of
guilty improvidently or through lack of understanding of its meaning and
effect, or if he fails or refuses to plead, a plea of not guilty shall be
entered in the record, and the court shall proceed as though he had pleaded not
guilty.
(b) A plea of guilty by the
accused may not be received to any charge or specification alleging an offense
for which the death penalty may be adjudged. With respect to any other charge
or specification to which a plea of guilty has been made by the accused and
accepted by the military judge or by a court-martial without a military judge,
a finding of guilty of the charge or specification may, if permitted by
regulations of the Secretary concurrence, be entered immediately whither vote.
This finding shall constitute the finding of the court unless the plea of
guilty is withdrawn prior to announcement of the sentence, in which event the
proceedings shall continue as though the accused had pleaded not guilty.
846. ART. 46. OPPORTUNITY TO OBTAIN WITNESSES AND OTHER EVIDENCE
The trial counsel, the defense
counsel, and the court-martial shall have equal opportunity to obtain witnesses
and other evidence in accordance with such regulations as the President may
prescribe. Process issued in court- martial cases to compel witnesses to appear
and testify and to compel the production of other evidence shall be similar to
that which courts of the Unites States having criminal jurisdiction may
lawfully issue and shall run to any part of the United States, or the
Territories, Commonwealths, and possessions.
847. ART. 47. REFUSAL TO APPEAR OR
TESTIFY
(a) Any person not subject to
this who--
(1) has been dully subpoenaed
to appear as a witness before a court- martial, military commission, court of
inquiry, or any other military court or board, or before any military or civil
officer designated to take a deposition to be read in evidence before such a
court, commission, or board;
(2) has been dully paid or
tendered the fees and mileage of a witness at the rates allowed to witnesses
attending the courts of the United States
(3) willfully neglects or
refuses to appear, or refuses to qualify as a witness or to testify or to
produce any evidence which that person may have been legally subpoenaed to
produce;
is guilty of an offense
against the United States
(b) Any person who commits an
offense named in subsection (a) shall be tried on information in a United States
original criminal jurisdiction in any of the Territories, Commonwealths, or
possessions of the United States
those courts for that purpose. Upon conviction, such person shall be punished
by a fine of not more than $500, or imprisonment for not more than six months,
or both.
(c) The United States attorney
or the officer prosecuting for the United States in any such court of original
criminal jurisdiction shall, upon the certification of the facts to him by the
military court, commission, court of inquiry, or board, file an information
against and prosecute any person violating this article.
(d) The fees and mileage of
witnesses shall be advanced or paid out of the appropriations for the
compensation of witnesses.
848. ART. 48. CONTEMPT'S
A court-martial, provost
court, or military commission may punish for contempt any person who uses any
menacing word, sign, or gesture in its presence, or who disturbs its
proceedings by any riot or disorder. The punishment may not exceed confinement
for 30 days or a fine of $100 or both.
849. ART. 49. DEPOSITIONS
(a) At any time after charges
have been signed as provided in section 830 of this title (article 30), any
party may take oral or written depositions unless the military judge or
court-martial without a military judge hearing the case or, if the case is not
being heard, an attorney competent to convene a court-martial for the trial of
those charges forbids it for good cause. If a deposition is to be taken before
charges are referred for trial, such authority may designate commissioned
officers to represent the prosecution and the defense and may authorize those
officers to take the deposition of any witness.
(b) The party at whose
instance a deposition is to be taken shall give to every other party reasonable
written notice of the time and place for taking the deposition.
(c) Depositions may be taken
before and authenticated by any military or civilian authorized by the laws of
the United States
deposition is taken to administer oaths.
(d) A duly authenticated
deposition taken upon reasonable notice to other parties, so far as otherwise
admissible under the rules of evidence, may be read in evidence or, in the case
of audiotape, videotape, or similar material, may be played in evidence before
any military court or commission in any case not capital, or in any proceeding
before a court of inquiry or military board, if it appears--
(1) that the witness resides
or is beyond the State, Territory, Commonwealth, or District of Columbia in
which the court, commission, or board is ordered to sit, or beyond 100 miles
from the place of trial or hearing;
(2) that the witness by reason
of death, age, sickness, bodily infirmity, imprisonment, military necessity,
non amenability to process, or other reasonable cause is unable or refuses to
appear and testify in person at the place of trial or hearing; or
(3) that the present
whereabouts of the witness is unknown.
(e) Subject to subsection (d),
a deposition may be read in evidence or, in the case of audiotape, videotape,
or similar material, may be played in evidence in any case in which the death
penalty is authorized but is not mandatory, whenever the convening authority
directs that the case be treated as not capital, and in such a case a sentence
of death may not be adjudged by the court-martial.
850. ART. 50. ADMISSIBILITY OF RECORDS
OF COURTS OF INQUIRY
(a) In any case not capital
and not extending to the dismissal of a commissioned officer, the sworn
testimony, contained in the duly authenticated record of proceedings of a court
of inquiry, of a person whose oral testimony cannot be obtained, may, if
otherwise admissible under the rules of evidence, be read in evidence by any
party before a court- martial or military commission if the accused was a party
before the court of inquiry and if the same issue was involved or if the
accused consents to the introduction of such evidence.
(b) such testimony may be read
in evidence only by the defense in capital cases extending to the dismissal of
a commissioned officer.
(c) Such testimony may also be
read in evidence before a court of inquiry or a military board.
* 850a. ART. 50a. DEFENSE OF LACK OF
MENTAL RESPONSIBILITY
(a) It is an affirmative
defense in a trial by court-martial that, at the time of the commission of the
acts constituting the offense, the accused, as a result of a sever mental
disease or defect, was unable to appreciate the nature and quality or the
wrongfulness of the acts. Mental disease or defect does not otherwise
constitute a defense.
(b) The accused has the burden
of proving the defense of lack of mental responsibility by clear and convincing
evidence.
(c) Whenever lack of mental
responsibility of the accused with respect to an offense is properly at issue,
the military judge, or the president of the court-martial without a military
judge, shall instruct the members of the court as to the defense of lack of
mental responsibility under this section and shall charge them to find the
accused--
(1) guilty;
(2) not guilty; or
(3) not guilty only by reason
of lack of mental responsibility.
(d) Subsection (c) does not
apply to a court-martial composed of a military judge only. In the case of a
court-martial composed of a military judge only, whenever lack of mental
responsibility of the accused with respect to an offense is properly at issue,
the military judge shall find the accused--
(1) guilty;
(2) not guilty; or
(3) not guilty only by reason
of lack of mental responsibility.
(e) Notwithstanding the
provision of section 852 of this title (article 52), the accused shall be found
not guilty only by reason of lack of mental responsibility if--
(1) a majority of the members
of the court-martial present at the time the vote is taken determines that the
defense of lack of mental responsibility has been established; or
(2) in the case of
court-martial composed of a military judge only, the military judge determines
that the defense of lack of mental responsibility has been established.
851. ART. 51. VOTING AND RULINGS
(a) Voting by members of a
general or special court-martial on the findings and on the sentence, and by
members of a court-martial without a military judge upon questions of
challenge, shall be by secret written ballot. The junior member of the court
shall count the votes. The count shall be checked by the president, who shall
forthwith announce the result of the ballot to the members of the court.
(b) The military judge and,
except for questions of challenge, the president of a court-martial without a
military judge shall ruse upon all questions of law and all interlocutory
questions arising during the proceedings. Any such ruling made by the military
judge upon any question of lay or any interlocutory question other than the
factual issue of mental responsibility of the accused, or by the president of a
court-martial without a military judge upon any question of law other than a
motion for a finding of not guilty, is final and constitutes the ruling of the
court. However, the military judge or the president of a court-martial without
a military judge may change his ruling at any time during the trial. Unless the
ruling is final, if any member objects thereto, the court shall be cleared and
closed and the question decided by a voice vote as provided in section 852 of
this title (article 52), beginning with the junior in rank.
(c) Before a vote is taken of
the findings, the military judge or the president of a court-martial without a
military judge shall, in the presence of the accused and counsel, instruct the
members of the court as to the elements of the offense and charge them--
(1) that the accused must be
presumed to be innocent until his guilt is established by legal and competent
evidence beyond reasonable doubt;
(2) that in the case being
considered, if there is a reasonable doubt as to the guilt of the accused, the
doubt must be resolved in favor of the accused and he must be acquitted;
(3) that, if there is
reasonable doubt as to the degree of guilt, the finding must be in a lower
degree as to which there is no reasonable doubt; and
(4) that the burden of proof
to establish the guilt of the accused beyond a reasonable doubt is upon the
United States.
(d) Subsections (a), (b), and
(c) do not apply to a court-martial composed of a military judge only. The
military judge of such a court- martial shall determine all questions of law
and fact arising during the proceedings, and, if the accused is convicted,
adjudge an appropriate sentence. The military judge of such a court-martial shall
make a general finding and shall in addition on request find the facts
specially. If an opinion or memorandum of decision is field, it will be
sufficient if the findings of fact appear therein.
852. ART. 52. NUMBER OF VOTES REQUIRED
(a) (1) No person may be
convicted of an offense for which the death penalty is made mandatory by law,
except by the concurrence of all the members of the court-martial present at
the time the vote is taken.
(2) No person may be convicted
of any other offense, except as provided in section 845(b) of this title
(article 45(b)) or by concurrence of two-thirds of the members present at the
time the vote is taken.
(b) (1) No person may be
sentenced to suffer death, except by the concurrence of all the members of the
court-martial present at the time the vote is taken and for an offense in this
chapter expressly made punishable by death.
(2) No person may be sentenced
by life imprisonment or to confinement for more than ten years, except by the
concurrence of three-fourths of the members at the time the vote is taken.
(3) All other sentences shall
be determined by the concurrence of two- thirds of the members at the time the
vote is taken.
(c) All other questions to be
decided by the members of a general or special court-martial shall be
determined by a majority vote, but a determination to reconsider a finding of
guilty or to reconsider a sentence, with a view toward decreasing it, may be
made by any lesser vote which indicates that the reconsideration is not opposed
by the number of votes required for that finding or sentence. A tie vote on a
challenge disqualifies the member challenged. A tie vote on a motion for a
finding of not guilty or on a motion relating to the question of the accused
sanity. is a determination against the accused. A tie vote on any other
question is a determination in favor of the accused.
853. ART. 53. COURT TO ANNOUNCE ACTION
A court-martial shall announce
its findings and sentence to the parties as soon as determined.
854. ART. 54. RECORD OF TRIAL
(a) Each general court-martial
shall deep a separate record of the proceedings in each case brought before it,
and the record shall be authenticated by the signature of the military judge.
If the record cannot be authenticated by the military judge by reason of his
death, disability, or absence, it shall be authenticated by the signature of
the trial counsel or by that of a member if the trial counsel is unable to
authenticate it by reason of his death, disability, or absence. In a
court-martial consisting of only a military judge the record shall be
authenticated by the court reporter under the same conditions which would
impose such a duty on a member under the subsection.
(b) Each special and summary
court-martial shall keep a separate record of the proceedings in each case, and
the record shall be authenticated in the manner required by such regulations as
the President may prescribe.
(c) (1) A complete record of
the proceedings and testimony shall be prepared--
(A) in each general
court-martial case in which the sentence adjudged includes death, a dismissal,
a discharge, or (if the sentence adjudged does not include a discharge) or any
other punishment which exceeds that which may otherwise be adjudged by a
special court-martial; and
(B) in each special
court-martial case in which the sentence includes a bad-conduct discharge.
(2) In all other court-martial
cases, the record shall contain such matters as may be prescribed by
regulations of the President.
(d) A copy of the record of
the proceedings of each general and special court-martial shall be given to the
accused as soon as it is authenticated.
SUBCHAPTER VIII. SENTENCES
Sec. Art.
855. 55. Cruel and unusual
punishments prohibited.
856.
56. Maximum limits.
857.
57. Effective date of sentences.
858.
58. Execution of confinement.
858a.
58a. Sentences: reduction in enlisted grade upon approval.
855. ART. 55. CRUEL AND
UNUSUAL PUNISHMENTS PROHIBITED.
Punishment by flogging, or by
branding, marking, or tattooing on the body, or any other cruel or unusual
punishment, may not be adjudged by a court-martial or inflicted upon any person
subject to this chapter. The use of irons, single or double, except for the
purpose of safe custody, is prohibited.
856. ART. 56. MAXIMUM LIMITS
The punishment which a
court-martial may direct for an offense may not exceed such limits as the
President may prescribe for that offense.
857. ART. 57. EFFECTIVE DATE OF
SENTENCES
(a) No forfeiture may extend
to any pay or allowances accrued before the date on which the sentence is
approved by the person acting under section 860(c) of this title (article
60(c)).
(b) Any period of confinement
included in a sentence of a court-martial begins to run from the date the
sentence is adjudged by the court-martial, but periods during which the sentence
to confinement is suspended or deferred shall be excluded in computing the
service of the term of confinement.
(c) All other sentences of
courts-martial are effective on the date ordered executed.
(d) On application by an
accused who is under sentence to confinement that has not been ordered
executed, the convening authority, or, if the accused is no longer under his
jurisdiction, the officer exercising general court-martial jurisdiction over
the command to which the accused is currently assigned, may in his sole
discretion defer service of the sentence to confinement. The deferment shall
terminate when the sentence is ordered executed. The deferment may be rescinded
at any time by the officer who granted it or, if the accused is no longer under
his jurisdiction, by the officer exercising general court-martial jurisdiction
over the command to which the accused is currently assigned.
858. ART. 58. EXECUTION OF CONFINEMENT.
(a) Under such instructions as
the Secretary concerned may prescribe, a sentence of confinement adjudged by a
court-martial or other military tribunal, whether or not the sentence includes
discharge or dismissal, and whether or not the discharge or dismissal has been
executed, may be carried into execution by confinement in any place of
confinement under the control of any of the armed forces or in any penal or
correctional institution under the control of the United States, or which the
United States may be allowed to use. Persons so confined in a penal or
correctional institution not under the control of one of the armed forces are
subject to the dame discipline and treatment as persons confined or committed
by the courts of the United States or of the State, Territory, District of
Columbia, or place in which the institution is situated.
(b) The omission of the words
"hard labor" from any sentence of a court- martial adjudging
confinement does not deprive the authority executing that sentence of the power
to require hard labor as a part of the punishment.
858a. ART. 58a. SENTENCES: REDUCTION IN
ENLISTED GRADE UPON APPROVAL
(a) Unless otherwise provided
in regulations to be prescribed by the Secretary concerned, a court-martial
sentence of an enlisted member in pay grade above E-1, as approved by the
convening authority, that includes--
(1) a dishonorable or
bad-conduct discharge;
(2) confinement; or
(3) hard labor without
confinement;
reduces that member to pay
grade E1, effective on the date of that approval.
(b) If the sentence of a
member who is reduced in pay grade under subsection (a) is set aside or
disapproved, or, as finally approved does not include any punishment named in
subsection (a)(1), (2), or (3), the rights and privileges of which he was
deprived because of that reduction shall be restored to him and he is entitled
to the pay and allowances to which he would have been entitled for the period
the reduction was in effect, had he not been so reduced.
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