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10 U.S.C. § 850 (ARMED FORCES)
§ 850. Art. 50. Admissibility of sworn testimony from records of courts of inquiry
(a) Use as Evidence by Any Party.—
In any case not capital and not extending to the dismissal of a commissioned officer, the sworn testimony, contained in the duly authenticated record of proceedings of a court of inquiry, of a person whose oral testimony cannot be obtained, may, if otherwise admissible under the rules of evidence, be read in evidence by any party before a court-martial or military commission if the accused was a party before the court of inquiry and if the same issue was involved or if the accused consents to the introduction of such evidence. This section does not apply to a military commission established under chapter 47A of this title.
(b) Use as Evidence by Defense.—
Such testimony may be read in evidence only by the defense in capital cases or cases extending to the dismissal of a commissioned officer.
(c) Use in Courts of Inquiry and Military Boards.—
Such testimony may also be read in evidence before a court of inquiry or a military board.
(d) Audiotape or Videotape.—
Sworn testimony that—
(1) is recorded by audiotape, videotape, or similar method; and
(2) is contained in the duly authenticated record of proceedings of a court of inquiry;
is admissible before a court-martial, military commission, court of inquiry, or military board, to the same extent as sworn testimony may be read in evidence before any such body under subsection (a), (b), or (c).
(Aug. 10, 1956, ch. 1041, 70A Stat. 54; Pub. L. 109–366, § 4(a)(2), Oct. 17, 2006, 120 Stat. 2631; Pub. L. 114–328, div. E, title LVII, § 5232, Dec. 23, 2016, 130 Stat. 2915.)
text: Historical and Revision Notes
Revised section
Source (U.S. Code)
Source (Statutes at Large)
850(a)
850(b)
50:625(a).
50:625(b).
May 5, 1950, ch. 169, § 1 (Art. 50), 64 Stat. 124.
850(c)
50:625(c).
In subsections (a) and (b), the word “commissioned” is inserted for clarity.
heading: Editorial Notes
heading: Amendments
text: 2016—Pub. L. 114–328, § 5232(b), amended section catchline generally, substituting “Admissibility of sworn testimony from records of courts of inquiry” for “Admissibility of records of courts of inquiry”.
Subsec. (a). Pub. L. 114–328, § 5232(c)(1), inserted heading.
Subsec. (b). Pub. L. 114–328, § 5232(c)(2), inserted heading.
Subsec. (c). Pub. L. 114–328, § 5232(c)(3), inserted heading.
Subsec. (d). Pub. L. 114–328, § 5232(a), added subsec. (d).
2006—Subsec. (a). Pub. L. 109–366 inserted last sentence.
heading: Statutory Notes and Related Subsidiaries
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.
10 U.S.C. § 850a (ARMED FORCES)
§ 850a. Art. 50a. Defense of lack of mental responsibility
(a) It is an affirmative defense in a trial by court-martial that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts. Mental disease or defect does not otherwise constitute a defense.
(b) The accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence.
(c) Whenever lack of mental responsibility of the accused with respect to an offense is properly at issue, the military judge shall instruct the members of the court as to the defense of lack of mental responsibility under this section and charge them to find the accused—
(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 provisions of section 852 of this title (article 52), the accused shall be found not guilty only by reason of lack of mental responsibility if—
(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 a court-martial composed of a military judge only, the military judge determines that the defense of lack of mental responsibility has been established.
(Added Pub. L. 99–661, div. A, title VIII, § 802(a)(1), Nov. 14, 1986, 100 Stat. 3905; Pub. L. 114–328, div. E, title LVII, § 5233, Dec. 23, 2016, 130 Stat. 2915.)
heading: Editorial Notes
heading: Amendments
text: 2016—Subsec. (c). Pub. L. 114–328, in introductory provisions, struck out “, or the president of a court-martial without a military judge,” after “the military judge”.
heading: Statutory Notes and Related Subsidiaries
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
text: Pub. L. 99–661, div. A, title VIII, § 802(b), Nov. 14, 1986, 100 Stat. 3906, provided that: “Section 850a of title 10, United States Code, as added by subsection (a)(1), shall apply only to offenses committed on or after the date of the enactment of this Act [Nov. 14, 1986].”
10 U.S.C. § 856a (ARMED FORCES)
[§ 856a. Repealed. Pub. L. 114–328, div. E, title LVIII, § 5301(b), Dec. 23, 2016, 130 Stat. 2920]
text: Section, added Pub. L. 105–85, div. A, title V, § 581(a)(1), Nov. 18, 1997, 111 Stat. 1759, related to sentence of confinement for life without eligibility for parole.
heading: Statutory Notes and Related Subsidiaries
heading: Effective Date of Repeal
text: Repeal 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.
10 U.S.C. § 857a (ARMED FORCES)
[§ 857a. Repealed. Pub. L. 114–328, div. E, title LVIII, § 5302(b)(1), Dec. 23, 2016, 130 Stat. 2923]
text: Section, added Pub. L. 90–632, § 2(24), Oct. 24, 1968, 82 Stat. 1341, § 857(d); amended Pub. L. 102–484, div. A, title X, § 1064, Oct. 23, 1992, 106 Stat. 2505; renumbered § 857a and amended Pub. L. 104–106, div. A, title XI, § 1123(a), Feb. 10, 1996, 110 Stat. 463, related to deferment of sentence to confinement.
heading: Statutory Notes and Related Subsidiaries
heading: Effective Date of Repeal
text: Repeal 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.
10 U.S.C. § 858 (ARMED FORCES)
§ 858. Art. 58. Execution of confinement
(a) Under such instructions as the Secretary concerned may prescribe, a sentence of confinement adjudged by a court-martial or other military tribunal, whether or not the sentence includes discharge or dismissal, and whether or not the discharge or dismissal has been executed, may be carried into execution by confinement in any place of confinement under the control of any of the armed forces or in any penal or correctional institution under the control of the United States, or which the United States may be allowed to use. Persons so confined in a penal or correctional institution not under the control of one of the armed forces are subject to the same discipline and treatment as persons confined or committed by the courts of the United States or of the State, District of Columbia, or place in which the institution is situated.
(b) The omission of the words “hard labor” from any sentence of a court-martial adjudging confinement does not deprive the authority executing that sentence of the power to require hard labor as a part of the punishment.
(Aug. 10, 1956, ch. 1041, 70A Stat. 57; Pub. L. 109–163, div. A, title X, § 1057(a)(3), Jan. 6, 2006, 119 Stat. 3440.)
text: Historical and Revision Notes
Revised section
Source (U.S. Code)
Source (Statutes at Large)
858(a)
858(b)
50:639(a).
50:639(b).
May 5, 1950, ch. 169, § 1 (Art. 58), 64 Stat. 126.
In subsection (a), the words “Secretary concerned” are substituted for the words “Department concerned”, since the “Department” as an entity, cannot issue instructions. The word “are” is substituted for the words “shall be”. The words “of Columbia” are inserted after “District” for clarity.
In subsection (b), the word “from” is substituted for the word “in”. The words “does not deprive” are substituted for the words “shall not be construed as depriving”.
heading: Editorial Notes
heading: Amendments
text: 2006—Subsec. (a). Pub. L. 109–163 struck out “Territory,” after “State,”.
10 U.S.C. § 858a (ARMED FORCES)
§ 858a. Art. 58a. Sentences: reduction in enlisted grade
(a) A court-martial sentence of an enlisted member in a pay grade above E–1, as set forth in the judgment of the court-martial entered into the record under section 860c of this title (article 60c), that includes—
(1) a dishonorable or bad-conduct discharge;
(2) confinement; or
(3) hard labor without confinement;
reduces that member to pay grade E–1, if such a reduction is authorized by regulation prescribed by the President. The reduction in pay grade shall take effect on the date on which the judgment is so entered.
(b) If the sentence of a member who is reduced in pay grade under subsection (a) is set aside or reduced, or, as finally affirmed, does not include any punishment named in subsection (a)(1), (2), or (3), the rights and privileges of which he was deprived because of that reduction shall be restored to him and he is entitled to the pay and allowances to which he would have been entitled, for the period the reduction was in effect, had he not been so reduced.
(Added Pub. L. 86–633, § 1(1), July 12, 1960, 74 Stat. 468; amended Pub. L. 114–328, div. E, title LVIII, § 5303, Dec. 23, 2016, 130 Stat. 2923; Pub. L. 115–91, div. A, title V, § 531(f)(1), (2), Dec. 12, 2017, 131 Stat. 1385.)
heading: Editorial Notes
heading: Amendments
text: 2017—Pub. L. 115–91, § 531(f)(2), struck out “upon approval” after “reduction in enlisted grade” in section catchline.
Subsec. (a). Pub. L. 115–91, § 531(f)(1), substituted “, if such a reduction is authorized by regulation prescribed by the President. The reduction in pay grade shall take effect on the date” for “, effective on the date” in concluding provisions.
2016—Subsec. (a). Pub. L. 114–328, § 5303(1), in introductory provisions, substituted “A” for “Unless otherwise provided in regulations to be prescribed by the Secretary concerned, a” and “as set forth in the judgment of the court-martial entered into the record under section 860c of this title (article 60c)” for “as approved by the convening authority”, and, in concluding provisions, substituted “on which the judgment is so entered” for “of that approval”.
Subsec. (b). Pub. L. 114–328, § 5303(2), substituted “reduced, or, as finally affirmed” for “disapproved, or, as finally approved”.
heading: Statutory Notes and Related Subsidiaries
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 531(p) 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.
10 U.S.C. § 860c (ARMED FORCES)
§ 860c. Art. 60c. Entry of judgment
(a) Entry of Judgment of General or Special Court-martial.—
(1) In accordance with rules prescribed by the President, in a general or special court-martial, the military judge shall enter into the record of trial the judgment of the court. The judgment of the court shall consist of the following:
(A) The Statement of Trial Results under section 860 of this title (article 60).
(B) Any modifications of, or supplements to, the Statement of Trial Results by reason of—
(i) any post-trial action by the convening authority; or
(ii) any ruling, order, or other determination of the military judge that affects a plea, a finding, or the sentence.
(2) Under rules prescribed by the President, the judgment under paragraph (1) shall be—
(A) provided to the accused and to any victim of the offense; and
(B) made available to the public.
(b) Summary Court-martial Judgment.—
The findings and sentence of a summary court-martial, as modified by any post-trial action by the convening authority under section 860b of this title (article 60b), constitutes the judgment of the court-martial and shall be recorded and distributed under rules prescribed by the President.
(Added Pub. L. 114–328, div. E, title LIX, § 5324, Dec. 23, 2016, 130 Stat. 2927.)
heading: Statutory Notes and Related Subsidiaries
heading: Effective Date
text: Section 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. 13825, set out as notes under section 801 of this title.
10 U.S.C. § 861 (ARMED FORCES)
§ 861. Art. 61. Waiver of right to appeal; withdrawal of appeal
(a) Waiver of Right to Appeal.—
After entry of judgment in a general or special court-martial, under procedures prescribed by the Secretary concerned, the accused may waive the right to appellate review in each case subject to such review under section 866 of this title (article 66). Such a waiver shall be—
(1) signed by the accused and by defense counsel; and
(2) attached to the record of trial.
(b) Withdrawal of Appeal.—
In a general or special court-martial, the accused may withdraw an appeal at any time.
(c) Death Penalty Case Exception.—
Notwithstanding subsections (a) and (b), an accused may not waive the right to appeal or withdraw an appeal with respect to a judgment that includes a sentence of death.
(d) Waiver or Withdrawal as Bar.—
A waiver or withdrawal under this section bars review under section 866 of this title (article 66).
(Aug. 10, 1956, ch. 1041, 70A Stat. 58; Pub. L. 98–209, § 5(b)(1), Dec. 6, 1983, 97 Stat. 1397; Pub. L. 114–328, div. E, title LIX, § 5325, Dec. 23, 2016, 130 Stat. 2928.)
text: Historical and Revision Notes
Revised section
Source (U.S. Code)
Source (Statutes at Large)
861
50:648.
May 5, 1950, ch. 169, § 1 (Art. 61), 64 Stat. 127.
The word “each” is substituted for the word “every”.
heading: Editorial Notes
heading: Amendments
text: 2016—Pub. L. 114–328 amended section generally. Prior to amendment, section related to waiver or withdrawal of appeal.
1983—Pub. L. 98–209 amended section generally, substituting “Waiver or withdrawal of appeal” for “Same—General court-martial records” as section catchline, and, in text, substituting provisions relating to waiver or withdrawal of appeal for provisions relating to initial action by the convening authority on general court-martial records.
heading: Statutory Notes and Related Subsidiaries
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 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.
10 U.S.C. § 867a (ARMED FORCES)
§ 867a. Art. 67a. Review by the Supreme Court
(a) Decisions of the United States Court of Appeals for the Armed Forces are subject to review by the Supreme Court by writ of certiorari as provided in section 1259 of title 28. The Supreme Court may not review by a writ of certiorari under this section any action of the United States Court of Appeals for the Armed Forces in refusing to grant a petition for review.
(b) The accused may petition the Supreme Court for a writ of certiorari without prepayment of fees and costs or security therefor and without filing the affidavit required by section 1915(a) of title 28.
(Added Pub. L. 101–189, div. A, title XIII, § 1301(b), Nov. 29, 1989, 103 Stat. 1569; amended Pub. L. 103–337, div. A, title IX, § 924(c)(1), Oct. 5, 1994, 108 Stat. 2831; Pub. L. 114–328, div. E, title LIX, § 5332, Dec. 23, 2016, 130 Stat. 2935.)
heading: Editorial Notes
heading: Amendments
text: 2016—Subsec. (a). Pub. L. 114–328 inserted “United States” before “Court of Appeals” in second sentence.
1994—Subsec. (a). Pub. L. 103–337 substituted “Court of Appeals for the Armed Forces” for “Court of Military Appeals” in two places.
heading: Statutory Notes and Related Subsidiaries
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.
10 U.S.C. § 868 (ARMED FORCES)
§ 868. Art. 68. Branch offices
The Secretary concerned may direct the Judge Advocate General to establish a branch office with any command. The branch office shall be under an Assistant Judge Advocate General who, with the consent of the Judge Advocate General, may establish a Court of Criminal Appeals with one or more panels. That Assistant Judge Advocate General and any Court of Criminal Appeals established by him may perform for that command under the general supervision of the Judge Advocate General, the respective duties which the Judge Advocate General and a Court of Criminal Appeals established by the Judge Advocate General would otherwise be required to perform as to all cases involving sentences not requiring approval by the President.
(Aug. 10, 1956, ch. 1041, 70A Stat. 61; Pub. L. 90–632, § 2(29), Oct. 24, 1968, 82 Stat. 1342; Pub. L. 103–337, div. A, title IX, § 924(c)(2), Oct. 5, 1994, 108 Stat. 2831.)
text: Historical and Revision Notes
Revised section
Source (U.S. Code)
Source (Statutes at Large)
868
50:655.
May 5, 1950, ch. 169, § 1 (Art. 68), 64 Stat. 130.
The word “considers” is substituted for the word “deems”. The word “may” is substituted for the words “shall be empowered to”. The word “respective” is inserted for clarity.
heading: Editorial Notes
heading: Amendments
text: 1994—Pub. L. 103–337 substituted “Court of Criminal Appeals” for “Court of Military Review” wherever appearing.
1968—Pub. L. 90–632 substituted the Secretary concerned for the President as the individual authorized to direct the Judge Advocate General to establish a branch office under an Assistant Judge Advocate General with any command and substituted “Court of Military Review” for “board of review” as the name of the body established by the Assistant Judge Advocate General in charge of the branch office.
heading: Statutory Notes and Related Subsidiaries
heading: Effective Date of 1968 Amendment
text: Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.
10 U.S.C. § 871 (ARMED FORCES)
[§ 871. Repealed. Pub. L. 114–328, div. E, title LVIII, § 5302(b)(2), Dec. 23, 2016, 130 Stat. 2923]
text: Section, Aug. 10, 1956, ch. 1041, 70A Stat. 62; Pub. L. 90–632, § 2(32), Oct. 24, 1968, 82 Stat. 1342; Pub. L. 98–209, § 5(e), Dec. 6, 1983, 97 Stat. 1399; Pub. L. 103–337, div. A, title IX, § 924(c)(1), (2), Oct. 5, 1994, 108 Stat. 2831; Pub. L. 113–66, div. A, title XVII, § 1702(c)(2), Dec. 26, 2013, 127 Stat. 957, related to execution and suspension of various types of sentences.
heading: Statutory Notes and Related Subsidiaries
heading: Effective Date of Repeal
text: Repeal 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.
10 U.S.C. § 873 (ARMED FORCES)
§ 873. Art. 73. Petition for a new trial
At any time within three years after the date of the entry of judgment under section 860c of this title (article 60c), the accused may petition the Judge Advocate General for a new trial on the grounds of newly discovered evidence or fraud on the court. If the accused’s case is pending before a Court of Criminal Appeals or before the Court of Appeals for the Armed Forces, the Judge Advocate General shall refer the petition to the appropriate court for action. Otherwise the Judge Advocate General shall act upon the petition.
(Aug. 10, 1956, ch. 1041, 70A Stat. 63; Pub. L. 90–632, § 2(33), Oct. 24, 1968, 82 Stat. 1342; Pub. L. 103–337, div. A, title IX, § 924(c)(1), (2), Oct. 5, 1994, 108 Stat. 2831; Pub. L. 114–328, div. E, title LIX, § 5336, Dec. 23, 2016, 130 Stat. 2937.)
text: Historical and Revision Notes
Revised section
Source (U.S. Code)
Source (Statutes at Large)
873
50:660.
May 5, 1950, ch. 169, § 1 (Art. 73), 64 Stat. 132.
The words “the ground” are substituted for the word “grounds”. The words “as the case may be” are substituted for the word “respectively”, since the prescribed action is alternative, not distributive.
heading: Editorial Notes
heading: Amendments
text: 2016—Pub. L. 114–328 substituted “three years after the date of the entry of judgment under section 860c of this title (article 60c)” for “two years after approval by the convening authority of a court-martial sentence”.
1994—Pub. L. 103–337 substituted “Court of Criminal Appeals” for “Court of Military Review” and “Court of Appeals for the Armed Forces” for “Court of Military Appeals”.
1968—Pub. L. 90–632 extended time during which accused may petition Judge Advocate General for a new trial from 1 to 2 years and struck out provisions which limited right to petition for a new trial to cases of death, dismissal, a punitive discharge, or a year or more in confinement.
heading: Statutory Notes and Related Subsidiaries
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 1968 Amendment
text: Amendment by Pub. L. 90–632 to apply in the case of all court-martial sentences approved by the convening authority on or after, or not more than two years before Oct. 24, 1968, see section 4(c) of Pub. L. 90–632, set out as a note under section 801 of this title.