10 U.S.C. § 864 — Art. 64. Judge advocate review of finding of

Page 785 TITLE 10—ARMED FORCES § 864 the merits in the original proceedings, or unless the sentence prescribed for the offense is manda- tory. (b) If the sentence adjudged by the first court- martial was in accordance with a plea agree- ment under section 853a of this title (article 53a) and the accused at the rehearing does not com- ply with the agreement, or if a plea of guilty was entered for an offense at the first court- martial and a plea of not guilty was entered at the rehearing, the sentence as to those charges or specifications may include any punishment not in excess of that which could have been ad- judged at the first court-martial, subject to such limitations as the President may prescribe by regulation. (c) If, after appeal by the Government under section 856(d) of this title (article 56(d)), the sen- tence adjudged is set aside and a rehearing on sentence is ordered by the Court of Criminal Ap- peals or Court of Appeals for the Armed Forces, the court-martial may impose any sentence that is in accordance with the order or ruling setting aside the adjudged sentence, subject to such lim- itations as the President may prescribe by regu- lation. (Aug. 10, 1956, ch. 1041, 70A Stat. 58; Pub. L. 98–209, § 5(d), Dec. 6, 1983, 97 Stat. 1398; Pub. L. 102–484, div. A, title X, § 1065, Oct. 23, 1992, 106 Stat. 2506; Pub. L. 114–328, div. E, title LIX, § 5327, Dec. 23, 2016, 130 Stat. 2929; Pub. L. 115–91, div. A, title V, § 531(i), Dec. 12, 2017, 131 Stat. 1385.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 863(a) ...... 863(b) ...... 50:650(a). 50:650(b). May 5, 1950, ch. 169, § 1 (Art. 63), 64 Stat. 127. In subsection (a), the words ‘‘In such a’’ are sub- stituted for the words ‘‘in which’’. In subsection (b), the word ‘‘Each’’ is substituted for the word ‘‘Every’’. The word ‘‘may’’ is substituted for the word ‘‘shall’’ in the second sentence. Editorial Notes AMENDMENTS 2017—Subsec. (b). Pub. L. 115–91 inserted ‘‘, subject to such limitations as the President may prescribe by reg- ulation’’ before period at end. 2016—Pub. L. 114–328 designated existing provisions as subsec. (a), substituted ‘‘may be adjudged’’ for ‘‘may be approved’’ in second sentence, struck out at end ‘‘If the sentence approved after the first court-martial was in accordance with a pretrial agreement and the accused at the rehearing changes his plea with respect to the charges or specifications upon which the pretrial agree- ment was based, or otherwise does not comply with the pretrial agreement, the approved sentence as to those charges or specifications may include any punishment not in excess of that lawfully adjudged at the first court-martial.’’, and added subsecs. (b) and (c). 1992—Pub. L. 102–484 substituted ‘‘approved’’ for ‘‘im- posed’’ in second sentence and inserted ‘‘approved’’ be- fore last reference to ‘‘sentence’’ in third sentence. 1983—Pub. L. 98–209 struck out subsec. (a) which pro- vided that if the convening authority disapproved the findings and sentence of a court-martial he could, ex- cept where there was lack of sufficient evidence in the record to support the findings, order a rehearing, stat- ing the reasons for disapproval, and that if he dis- approved the findings without reordering a rehearing, he had to dismiss the charges, and redesignated former subsec. (b) as entire section, and, as so redesignated, in- serted ‘‘under this chapter’’ after ‘‘Each rehearing’’, and inserted provision that if the sentence approved after the first court-martial was in accordance with a pretrial agreement and the accused at the rehearing changes his plea with respect to the charges or speci- fications upon which the pretrial agreement was based, or otherwise does not comply with the pretrial agree- ment, the sentence as to those charges or specifications may include any punishment not in excess of that law- fully adjudged at the first court-martial. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2017 AMENDMENT 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. EFFECTIVE DATE OF 2016 AMENDMENT Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with imple- menting regulations and provisions relating to applica- bility 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. EFFECTIVE DATE OF 1992 AMENDMENT Amendment by Pub. L. 102–484 effective Oct. 23, 1992, and applicable with respect to offenses committed on or after that date, see section 1067 of Pub. L. 102–484, set out as a note under section 803 of this title. EFFECTIVE DATE OF 1983 AMENDMENT 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 sen- tence 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. § 864. Art. 64. Judge advocate review of finding of guilty in summary court-martial (a) IN GENERAL.—Under regulations prescribed by the Secretary concerned, each summary court-martial in which there is a finding of guilty shall be reviewed by a judge advocate. A judge advocate may not review a case under this subsection if the judge advocate has acted in the same case as an accuser, preliminary hearing of- ficer, member of the court, military judge, or counsel or has otherwise acted on behalf of the prosecution or defense. The judge advocate’s re- view shall be in writing and shall contain the following: (1) Conclusions as to whether— (A) the court had jurisdiction over the ac- cused and the offense; (B) the charge and specification stated an offense; and (C) the sentence was within the limits pre- scribed as a matter of law. (2) A response to each allegation of error made in writing by the accused. (3) If the case is sent for action under sub- section (b), a recommendation as to the appro- priate action to be taken and an opinion as to Page 786 TITLE 10—ARMED FORCES § 865 whether corrective action is required as a matter of law. (b) RECORD.—The record of trial and related documents in each case reviewed under sub- section (a) shall be sent for action to the person exercising general court-martial jurisdiction over the accused at the time the court was con- vened (or to that person’s successor in com- mand) if— (1) the judge advocate who reviewed the case recommends corrective action; or (2) such action is otherwise required by regu- lations of the Secretary concerned. (c)(1) The person to whom the record of trial and related documents are sent under subsection (b) may— (A) disapprove or approve the findings or sentence, in whole or in part; (B) remit, commute, or suspend the sentence in whole or in part; (C) except where the evidence was insuffi- cient at the trial to support the findings, order a rehearing on the findings, on the sentence, or on both; or (D) dismiss the charges. (2) If a rehearing is ordered but the convening authority finds a rehearing impracticable, he shall dismiss the charges. (3) If the opinion of the judge advocate in the judge advocate’s review under subsection (a) is that corrective action is required as a matter of law and if the person required to take action under subsection (b) does not take action that is at least as favorable to the accused as that rec- ommended by the judge advocate, the record of trial and action thereon shall be sent to the Judge Advocate General for review under sec- tion 869 of this title (article 69). (Aug. 10, 1956, ch. 1041, 70A Stat. 58; Pub. L. 98–209, § 7(a)(1), Dec. 6, 1983, 97 Stat. 1401; Pub. L. 114–328, div. E, title LIX, § 5328, Dec. 23, 2016, 130 Stat. 2929; Pub. L. 115–91, div. A, title X, § 1081(c)(1)(I), Dec. 12, 2017, 131 Stat. 1598.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 864 .......... 50:651. May 5, 1950, ch. 169, § 1 (Art. 64), 64 Stat. 128. The word ‘‘may’’ is substituted for the word ‘‘shall’’. The word ‘‘is’’ is substituted for the words ‘‘shall con- stitute’’. Editorial Notes AMENDMENTS 2017—Subsec. (a). Pub. L. 115–91 substituted ‘‘(a) IN GENERAL.—’’ for ‘‘(a) (a) IN GENERAL.—’’. 2016—Pub. L. 114–328, § 5328(b)(1), substituted ‘‘Judge advocate review of finding of guilty in summary court- martial’’ for ‘‘Review by a judge advocate’’ in section catchline. Subsec. (a). Pub. L. 114–328, § 5328(a), inserted subsec. (a) designation, heading, and first two sentences, and struck out former first two sentences which read as fol- lows: ‘‘Each case in which there has been a finding of guilty that is not reviewed under section 866 or 869(a) of this title (article 66 or 69(a)) shall be reviewed by a judge advocate under regulations of the Secretary con- cerned. A judge advocate may not review a case under this subsection if he has acted in the same case as an accuser, investigating officer, member of the court, military judge, or counsel or has otherwise acted on be- half of the prosecution or defense.’’ Subsec. (b). Pub. L. 114–328, § 5328(b)(2)(A), inserted heading. Subsec. (b)(2), (3). Pub. L. 114–328, § 5328(b)(2)(B)–(D), redesignated par. (3) as (2) and struck out former par. (2) which read as follows: ‘‘the sentence approved under section 860(c) of this title (article 60(c)) extends to dis- missal, a bad-conduct or dishonorable discharge, or confinement for more than six months; or’’. Subsec. (c)(3). Pub. L. 114–328, § 5328(b)(3), substituted ‘‘section 869 of this title (article 69).’’ for ‘‘section 869(b) of this title (article 69(b)).’’ 1983—Pub. L. 98–209 amended section generally, sub- stituting ‘‘Review by a judge advocate’’ for ‘‘Approval by the convening authority’’ in section catchline, and, in text, substituting provisions relating to review by a judge advocate for provision that in acting on the find- ings and sentence of a court-martial, the convening au- thority could approve only such findings of guilty, and the sentence or such part or amount of the sentence, as he found correct in law and fact and as he in his discre- tion determined should be approved, and that unless he indicated otherwise, approval of the sentence was ap- proval of the findings and sentence. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2017 AMENDMENT 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 sec- tion 801 of this title. EFFECTIVE DATE OF 2016 AMENDMENT Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with imple- menting regulations and provisions relating to applica- bility 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. EFFECTIVE DATE OF 1983 AMENDMENT 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 sen- tence 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. § 865. Art. 65. Transmittal and review of records (a) TRANSMITTAL OF RECORDS.— (1) FINDING OF GUILTY IN GENERAL OR SPECIAL COURT-MARTIAL.—If the judgment of a general or special court-martial entered under section 860c of this title (article 60c) includes a finding of guilty, the record shall be transmitted to the Judge Advocate General. (2) OTHER CASES.—In all other cases, records of trial by court-martial and related docu- ments shall be transmitted and disposed of as the Secretary concerned may prescribe by reg- ulation. (b) CASES FOR DIRECT APPEAL.— (1) AUTOMATIC REVIEW.—If the judgment in- cludes a sentence of death, dismissal of a com- missioned officer, cadet, or midshipman, dis- honorable discharge or bad-conduct discharge, or confinement for 2 years or more, the Judge Advocate General shall forward—