10 U.S.C. § 869 (ARMED FORCES)
§ 869. Art. 69. Review by Judge Advocate General
(a) In General.—
Upon application by the accused and subject to subsections (b), (c), and (d), the Judge Advocate General may modify or set aside, in whole or in part, the findings and sentence in a court-martial that is not 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 one year after the date of completion of review under section 864 or 865 of this title (article 64 or 65), as the case may be. The Judge Advocate General may, for good cause shown, extend the period for submission of an application, but may not consider an application submitted more than three years after such completion date.
(c) Scope.—
(1)
(A) In a case reviewed under section 864 or 865(b) of this title (article 64 or 65(b)), 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.
(B) 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).
(C) If the Judge Advocate General sets aside findings and sentence and does not order a rehearing, the Judge Advocate General shall dismiss the charges.
(D) 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.
(2) 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 order appropriate corrective action under rules prescribed by the President.
(d) Court of Criminal Appeals.—
(1) A Court of Criminal Appeals may review the action taken by the Judge Advocate General under subsection (c)—
(A) in a case sent to the Court of Criminal Appeals by order of the Judge Advocate General; or
(B) in a case submitted to the Court of Criminal Appeals by the accused in an application for review.
(2) The Court of Criminal Appeals may grant an application under paragraph (1)(B) only if—
(A) the application demonstrates a substantial basis for concluding that the action on review under subsection (c) constituted prejudicial error; and
(B) the application is filed not later than the earlier of—
(i) 60 days after the date on which the accused is notified of the decision of the Judge Advocate General; or
(ii) 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.
(3) 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.
(Aug. 10, 1956, ch. 1041, 70A Stat. 61; Pub. L. 90–632, § 2(30), Oct. 24, 1968, 82 Stat. 1342; Pub. L. 97–81, § 6, Nov. 20, 1981, 95 Stat. 1089; Pub. L. 98–209, § 7(e)(1), Dec. 6, 1983, 97 Stat. 1402; Pub. L. 101–189, div. A, title XIII, §§ 1302(a), 1304(b)(1), Nov. 29, 1989, 103 Stat. 1576, 1577; Pub. L. 103–337, div. A, title IX, § 924(c)(2), Oct. 5, 1994, 108 Stat. 2831; Pub. L. 114–328, div. E, title LIX, § 5333, Dec. 23, 2016, 130 Stat. 2935; Pub. L. 115–91, div. A, title X, § 1081(c)(1)(L), Dec. 12, 2017, 131 Stat. 1598; Pub. L. 117–81, div. A, title V, § 539A(d), Dec. 27, 2021, 135 Stat. 1699.)
heading: Amendment of Subsection (c)(1)(D)
text: Pub. L. 117–81, div. A, title V, §§ 539A(d), 539C, Dec. 27, 2021, 135 Stat. 1699, provided that, effective on the date that is two years after Dec. 27, 2021, and applicable with respect to offenses that occur after that date, with provisions for delayed effect and applicability, subsection (c)(1)(D) of this section is amended:
(1) by striking “If the Judge Advocate General” and inserting “(i) Subject to clause (ii), if the Judge Advocate General”;
(2) by striking “impractical” and inserting “impracticable”; and
(3) by adding at the end the following new clause:
(ii) 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.
See 2021 Amendment note below.
text: Historical and Revision Notes
Revised section
Source (U.S. Code)
Source (Statutes at Large)
869
50:656.
May 5, 1950, ch. 169, § 1 (Art. 69), 64 Stat. 130.
The word “may” is substituted for the word “will”. The word “under” is substituted for the words “pursuant to the provisions of”.
heading: Editorial Notes
heading: Amendments
text: 2021—Subsec. (c)(1)(D). Pub. L. 117–81 designated existing provisions as cl. (i), substituted “Subject to clause (ii), if the Judge Advocate General” for “If the Judge Advocate General” and “impracticable” for “impractical”, and added cl. (ii).
2017—Subsec. (c)(1)(A). Pub. L. 115–91 inserted comma after “in whole or in part”.
2016—Pub. L. 114–328 amended section generally. Prior to amendment, section related to review in the office of the Judge Advocate General.
1994—Subsecs. (d), (e). Pub. L. 103–337 substituted “Court of Criminal Appeals” for “Court of Military Review” wherever appearing.
1989—Subsec. (a). Pub. L. 101–189, § 1304(b)(1), which directed amendment of subsec. (a) by striking “section 867(b)(2) of this title (article 67(b)(2))” in the third sentence and inserting in lieu thereof “section 867(a)(2) of this title (article 67(a)(2))”, could not be executed because of the intervening amendment by Pub. L. 101–189, § 1302(a)(1), which struck out the third sentence, see below.
Pub. L. 101–189, § 1302(a)(1), struck out the third sentence, which read as follows: “If the Judge Advocate General so directs, the record shall be reviewed by a Court of Military Review under section 866 of this title (article 66), but in that event there may be no further review by the Court of Military Appeals except under section 867(b)(2) of this title (article 67(b)(2)).”
Subsecs. (d), (e). Pub. L. 101–189, § 1302(a)(2), added subsecs. (d) and (e).
1983—Pub. L. 98–209 amended section generally. Prior to amendment section provided that every record of trial by general court-martial, in which there had been a finding of guilty and a sentence, the appellate review of which was not otherwise provided for by section 866 of this title, was to be examined in the office of the Judge Advocate General; that if any part of the findings or sentence was found unsupported in law, or if the Judge Advocate General so directed, the record was to be reviewed by a board of review in accordance with section 866 of this title, but in that event there could be no further review by the Court of Military Appeals except under section 867(b)(2) of this title, that notwithstanding section 876 of this title, the findings or sentence, or both, in a court-martial case which had been finally reviewed, but had not been reviewed by a Court of Military Review could be vacated or modified, in whole or in part, by the Judge Advocate General on the ground of newly discovered evidence, fraud on the court, lack of jurisdiction over the accused or the offense, or error prejudicial to the substantial rights of the accused; and that when such a case was considered upon application of the accused, the application had to be filed in the Office of the Judge Advocate General by the accused before: (1) October 1, 1983, or (2) the last day of the two-year period beginning on the date the sentence was approved by the convening authority or, in a special court-martial case which required action under section 865(b) of this title, the officer exercising general court-martial jurisdiction, whichever was later, unless the accused established good cause for failure to file within that time.
1981—Pub. L. 97–81 inserted provision that, when a case is considered upon application of the accused, the application must be filed in the Office of the Judge Advocate General by the accused before (1) October 1, 1983, or (2) the last day of the two-year period beginning on the date the sentence is approved by the convening authority or, in a special court-martial case which requires action under section 865(b) of this title (article 65(b)), the officer exercising general court-martial jurisdiction, whichever is later, unless the accused establishes good cause for failure to file within that time.
1968—Pub. L. 90–632 authorized the Judge Advocate General to either vacate or modify the findings or sentence, or both, in whole or in part, in any court-martial case which has been finally reviewed, but which has not been reviewed by a Court of Military Review, because of newly discovered evidence, fraud on the court, lack of jurisdiction over the accused or the offense, or error prejudicial to the substantial rights of the accused.
heading: Statutory Notes and Related Subsidiaries
heading: Effective Date of 2021 Amendment
text: Amendment by Pub. L. 117–81 effective on the date that is two years after Dec. 27, 2021, and applicable with respect to offenses that occur after that date, with provisions for delayed effect and applicability if regulations are not prescribed by the President before the date that is two years after Dec. 27, 2021, see section 539C of Pub. L. 117–81, set out as a note under section 801 of this title.
heading: Effective Date of 2017 Amendment
text: Amendment by Pub. L. 115–91 effective immediately after the amendments made by div. E (§§ 5001–5542) of Pub. L. 114–328 take effect as provided for in section 5542 of that Act (10 U.S.C. 801 note), see section 1081(c)(4) of Pub. L. 115–91, set out as a note under section 801 of this title.
heading: Effective Date of 2016 Amendment
text: Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.
heading: Effective Date of 1989 Amendment
text: Pub. L. 101–189, div. A, title XIII, § 1302(b), Nov. 29, 1989, 103 Stat. 1576, provided that: “Subsection (e) of section 869 of title 10, United States Code, as added by subsection (a), shall apply with respect to cases in which a finding of guilty is adjudged by a general court-martial after the date of the enactment of this Act [Nov. 29, 1989].”
heading: Effective Date of 1983 Amendment
text: Amendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, but not to apply to any case in which the findings and sentence were adjudged by a court-martial before that date, and the proceedings in any such case to be held in the same manner and with the same effect as if such amendments had not been enacted, see section 12(a)(1), (4) of Pub. L. 98–209, set out as a note under section 801 of this title.
heading: Effective Date of 1981 Amendment
text: Amendment by Pub. L. 97–81 effective at end of 60-day period beginning on Nov. 20, 1981, see section 7(a) of Pub. L. 97–81, set out as an Effective Date note under section 706 of this title.
heading: Effective Date of 1968 Amendment
text: Amendment by Pub. L. 90–632 effective Oct. 24, 1968, see section 4(b) of Pub. L. 90–632, set out as a note under section 801 of this title.
heading: Two-Year Period for Applications for Modification or Set-Aside Inapplicable to Applications Filed On or Before October 1, 1983
text: Pub. L. 98–209, § 7(e)(2), Dec. 6, 1983, 97 Stat. 1403, provided that the two-year period specified under the second sentence of subsec. (b) of this section did not apply to any application filed in the office of the appropriate Judge Advocate General on or before Oct. 1, 1983, and that the application in such a case would be considered in the same manner and with the same effect as if such two-year period had not been enacted.