10 U.S.C. § 804 — Art. 4. Dismissed officer’s right to trial by

Page 721 TITLE 10—ARMED FORCES § 804 In subsection (a), the words ‘‘the provisions of’’ are omitted as surplusage. The words ‘‘no * * * may’’ are substituted for the words ‘‘any * * * shall not’’. The word ‘‘for’’ is substituted for the word ‘‘of’’ before the words ‘‘five years’’. The words ‘‘of a State, a Territory, or’’ are substituted for the words ‘‘any State or Terri- tory thereof or of’’. The word ‘‘court-martial’’ is sub- stituted for the word ‘‘courts-martial’’. In subsection (b), the words ‘‘Each person’’ are sub- stituted for the words ‘‘All persons’’. The words ‘‘who is later’’ are substituted for the word ‘‘subsequently’’. The words ‘‘his discharge is’’ are substituted for the words ‘‘said discharge shall * * * be’’. The words ‘‘the provisions of’’ are omitted as surplusage. The word ‘‘is’’ is substituted for the words ‘‘shall * * * be’’. The words ‘‘he is’’ are substituted for the words ‘‘they shall be’’. The word ‘‘before’’ is substituted for the words ‘‘prior to’’. In subsection (c), the words ‘‘No * * * may’’ are sub- stituted for the words ‘‘Any * * * shall not’’. The word ‘‘later’’ is substituted for the word ‘‘subsequent’’. Editorial Notes CODIFICATION Another section 1722(f) of Pub. L. 118–31 amended sec- tion 973 of this title. AMENDMENTS 2023—Subsec. (d). Pub. L. 118–31 inserted ‘‘or the Space Force’’ after ‘‘reserve component’’. 1992—Subsec. (a). Pub. L. 102–484 amended subsec. (a) generally. Prior to amendment, subsec. (a) read as fol- lows: ‘‘Subject to section 843 of this title (article 43), no person charged with having committed, while in a sta- tus 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 the District of Columbia, may be re- lieved from amenability to trial by court-martial by reason of the termination of that status.’’ 1986—Subsec. (d). Pub. L. 99–661 added subsec. (d). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1992 AMENDMENT Pub. L. 102–484, div. A, title X, § 1067, Oct. 23, 1992, 106 Stat. 2506, provided that: ‘‘The amendments made by sections 1063, 1064, 1065, and 1066 [amending this section and sections 857, 863, 911, 918, and 920 of this title] shall take effect on the date of the enactment of this Act [Oct. 23, 1992] and shall apply with respect to offenses committed on or after that date.’’ EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99–661 applicable to offenses committed on or after the earlier of (1) the last day of the 120-day period beginning on Nov. 14, 1986; or (2) the date specified in an Executive order, see sections 804(e) and 808 of Pub. L. 99–661, set out as notes under section 802 of this title. § 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 applica- tion for trial by court-martial, setting forth, under oath, that he has been wrongfully dis- missed, the President, as soon as practicable, shall convene a general court-martial to try that officer on the charges on which he was dis- missed. A court-martial so convened has juris- diction to try the dismissed officer on those charges, and he shall be considered to have waived the right to plead any statute of limita- tions applicable to any offense with which he is charged. The court-martial may, as part of its sentence, adjudge the affirmance of the dis- missal, but if the court-martial acquits the ac- cused or if the sentence adjudged, as finally ap- proved 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 pres- entation of an application for trial under this article, the Secretary concerned shall substitute for the dismissal ordered by the President a form of discharge authorized for administrative issue. (c) If a discharge is substituted for a dismissal under this article, the President alone may re- appoint the officer to such commissioned grade and with such rank as, in the opinion of the President, that former officer would have at- tained had he not been dismissed. The re- appointment of such a former officer shall be without regard to the existence of a vacancy and shall affect the promotion status of other offi- cers only insofar as the President may direct. All time between the dismissal and the re- appointment shall be considered as actual serv- ice 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. (Aug. 10, 1956, ch. 1041, 70A Stat. 38.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 804(a) ...... 804(b) ...... 50:554(a). 50:554(b). May 5, 1950, ch. 169, § 1 (Art. 4), 64 Stat. 110. 804(c) ...... 50:554(c). 804(d) ...... 50:554(d). In subsection (a), the word ‘‘If’’ is substituted for the word ‘‘When’’. The word ‘‘commissioned’’ is inserted be- fore the word ‘‘officer’’. The word ‘‘considered’’ is sub- stituted for the word ‘‘held’’. In subsections (a) and (b), the words ‘‘Secretary con- cerned’’ are substituted for the words ‘‘Secretary of the Department’’. In subsection (c), the word ‘‘If’’ is substituted for the word ‘‘Where’’. The words ‘‘the authority of’’ are omit- ted as surplusage. The words ‘‘grade and with such rank’’ are substituted for the words ‘‘rank and prece- dence’’, since a person is appointed to a grade, not to a position of precedence, and the word ‘‘rank’’ is the ac- cepted military word denoting the general idea of prec- edence. The words ‘‘the existence of a’’ are substituted for the word ‘‘position’’ for clarity. The word ‘‘receive’’ is omitted as surplusage. In subsection (d), the word ‘‘If’’ is substituted for the word ‘‘When’’. The words ‘‘he has no’’ are substituted for the words ‘‘there shall not be a’’. Executive Documents DELEGATION OF FUNCTIONS For delegation to Secretary of Homeland Security of certain authority vested in President by this section, see section 2 of Ex. Ord. No. 10637, Sept. 16, 1955, 20 F.R. 7025, as amended, set out as a note under section 301 of Title 3, The President. Page 722 TITLE 10—ARMED FORCES § 805 § 805. Art. 5. Territorial applicability of this chap- ter This chapter applies in all places. (Aug. 10, 1956, ch. 1041, 70A Stat. 39.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 805 .......... 50:555. May 5, 1950, ch. 169, § 1 (Art. 5), 64 Stat. 110. The word ‘‘applies’’ is substituted for the words ‘‘shall be applicable’’. § 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 advocates of the Marine Corps shall be made by direction of the Commandant of the Marine Corps. The Judge Advocates Gen- eral, and within the Marine Corps the Staff Judge Advocate to the Commandant of the Ma- rine Corps, or senior members of their staffs, shall make frequent inspections in the field in supervision of the administration of military justice. (b) Convening authorities shall at all times communicate directly with their staff judge ad- vocates or legal officers in matters relating to the administration of military justice; and the staff judge advocate or legal officer of any com- mand is entitled to communicate directly with the staff judge advocate or legal officer of a su- perior or subordinate command, or with the Judge Advocate General. (c)(1) No person who, with respect to a case, serves in a capacity specified in paragraph (2) may later serve as a staff judge advocate or legal officer to any reviewing or convening au- thority upon the same case. (2) The capacities referred to in paragraph (1) are, with respect to the case involved, any of the following: (A) Preliminary hearing officer, court mem- ber, military judge, military magistrate, or appellate judge. (B) Counsel who have acted in the same case or appeared in any proceeding before a mili- tary judge, military magistrate, preliminary hearing officer, or appellate court. (d)(1) A judge advocate who is assigned or de- tailed 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 Sec- retary of Homeland Security with respect to the Coast Guard when it is not operating as a serv- ice in the Navy, shall prescribe regulations pro- viding that reimbursement may be a condition of assistance by judge advocates assigned or de- tailed under section 973(b)(2)(B) of this title. (Aug. 10, 1956, ch. 1041, 70A Stat. 39; Pub. L. 90–179, § 1(3), Dec. 8, 1967, 81 Stat. 545; Pub. L. 90–632, § 2(2), Oct. 24, 1968, 82 Stat. 1335; Pub. L. 98–209, § 2(b), Dec. 6, 1983, 97 Stat. 1393; Pub. L. 99–661, div. A, title VIII, § 807(a), Nov. 14, 1986, 100 Stat. 3909; Pub. L. 107–296, title XVII, § 1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 112–239, div. A, title V, § 531(d)(1), Jan. 2, 2013, 126 Stat. 1726; Pub. L. 114–328, div. E, title LI, § 5103, Dec. 23, 2016, 130 Stat. 2895.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 806(a) ...... 806(b) ...... 50:556(a). 50:556(b). May 5, 1950, ch. 169, § 1 (Art. 6), 64 Stat. 110. 806(c) ...... 50:556(c). In subsection (b), the word ‘‘entitled’’ is substituted for the word ‘‘authorized’’. In subsection (c), the words ‘‘may later’’ are sub- stituted for the words ‘‘shall subsequently’’. Editorial Notes AMENDMENTS 2016—Subsec. (c). Pub. L. 114–328 amended subsec. (c) generally. Prior to amendment, subsec. (c) read as fol- lows: ‘‘No person who has acted as member, military judge, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or investigating of- ficer in any case may later act as a staff judge advocate or legal officer to any reviewing authority upon the same case.’’ 2013—Subsec. (a). Pub. L. 112–239 substituted ‘‘The Judge Advocates General, and within the Marine Corps the Staff Judge Advocate to the Commandant of the Marine Corps, or senior members of their staffs, shall’’ for ‘‘The Judge Advocate General or senior members of his staff shall’’. 2002—Subsec. (d)(2). Pub. L. 107–296 substituted ‘‘of Homeland Security’’ for ‘‘of Transportation’’. 1986—Subsec. (d). Pub. L. 99–661 added subsec. (d). 1983—Subsec. (a). Pub. L. 98–209 substituted ‘‘Air Force, and’’ for ‘‘and Air Force and law specialists of the’’. 1968—Subsec. (c). Pub. L. 90–632 substituted ‘‘military judge’’ for ‘‘law officer’’. 1967—Subsec. (a). Pub. L. 90–179 substituted reference to judge advocates of the Navy for reference to law spe- cialists of the Navy and provided for the assignment of judge advocates of the Marine Corps. Statutory Notes and Related Subsidiaries 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 2002 AMENDMENT Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1986 AMENDMENT Pub. L. 99–661, div. A, title VIII, § 807(b), Nov. 14, 1986, 100 Stat. 3909, provided that: ‘‘The amendment made by subsection (a) [amending this section]— ‘‘(1) shall take effect on the date of the enactment of this Act [Nov. 14, 1986]; and ‘‘(2) may not be construed to invalidate an action taken by a judge advocate, pursuant to an assign- ment or detail under section 973(b)(2)(B) of title 10, United States Code, before the date of the enactment of this Act.’’