10 U.S.C. § 874 — Art. 74. Remission and suspension

Page 800 TITLE 10—ARMED FORCES § 873 (c) The suspension of any other sentence may be vacated by any authority competent to con- vene, for the command in which the accused is serving or assigned, a court of the kind that im- posed the sentence. (Aug. 10, 1956, ch. 1041, 70A Stat. 63; Pub. L. 114–328, div. E, title LIX, § 5335, Dec. 23, 2016, 130 Stat. 2936.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 872(a) ...... 872(b) ...... 50:659(a). 50:659(b). May 5, 1950, ch. 169, § 1 (Art. 72), 64 Stat. 131. 872(c) ...... 50:659(c). In subsection (a), the word ‘‘Before’’ is substituted for the words ‘‘Prior to’’. In subsection (b), the words ‘‘be effective * * * to’’ are omitted as surplusage. The second sentence is restated to make it clear that the execution of the rest of the court-martial sentence is not automatic. The word ‘‘is’’ is substituted for the words ‘‘shall * * * be’’ in the last sentence. The word ‘‘sent’’ is substituted for the word ‘‘forwarded’’. The words ‘‘Secretary concerned’’ are substituted for the words ‘‘Secretary of the Department’’. Editorial Notes AMENDMENTS 2016—Subsec. (a). Pub. L. 114–328, § 5335(a), (b)(1), in- serted ‘‘The special court-martial convening authority may detail a judge advocate, who is certified under sec- tion 827(b) of this title (article 27(b)), to conduct the hearing.’’ after first sentence and substituted ‘‘if the probationer so desires’’ for ‘‘if he so desires’’ in last sentence. Subsec. (b). Pub. L. 114–328, § 5335(b)(2), substituted ‘‘If the officer exercising general court-martial jurisdic- tion’’ for ‘‘If he’’ and ‘‘section 857 of this title (article 57)’’ for ‘‘section 871(c) of this title (article 71(c))’’. 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. § 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 pend- ing 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.) 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 sub- stituted for the word ‘‘respectively’’, since the pre- scribed action is alternative, not distributive. Editorial Notes AMENDMENTS 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 ac- cused 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. 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 1968 AMENDMENT 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 be- fore Oct. 24, 1968, see section 4(c) of Pub. L. 90–632, set out as a note under section 801 of this title. § 874. Art. 74. Remission and suspension (a) The Secretary concerned and, when des- ignated by him, any Under Secretary, Assistant Secretary, Judge Advocate General, or com- manding officer may remit or suspend any part or amount of the unexecuted part of any sen- tence, including all uncollected forfeitures other than a sentence approved by the President. How- ever, in the case of a sentence of confinement for life without eligibility for parole that is ad- judged for an offense committed after October 29, 2000, after the sentence is ordered executed, the authority of the Secretary concerned under the preceding sentence (1) may not be delegated, and (2) may be exercised only after the service of a period of confinement of not less than 20 years. (b) The Secretary concerned may, for good cause, substitute an administrative form of dis- charge for a discharge or dismissal executed in accordance with the sentence of a court-martial. (Aug. 10, 1956, ch. 1041, 70A Stat. 63; Pub. L. 106–398, § 1 [[div. A], title V, § 553(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–125; Pub. L. 107–107, div. A, title X, § 1048(a)(8), Dec. 28, 2001, 115 Stat. 1223.) Page 801 TITLE 10—ARMED FORCES § 876 HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 874(a) ...... 874(b) ...... 50:661(a). 50:661(b). May 5, 1950, ch. 169, § 1 (Art. 74), 64 Stat. 132. In subsections (a) and (b), the words ‘‘Secretary con- cerned’’ are substituted for the words ‘‘Secretary of the Department’’. Editorial Notes AMENDMENTS 2001—Subsec. (a). Pub. L. 107–107 inserted ‘‘that is ad- judged for an offense committed after October 29, 2000’’ after ‘‘a sentence of confinement for life without eligi- bility for parole’’. 2000—Subsec. (a). Pub. L. 106–398 inserted at end ‘‘However, in the case of a sentence of confinement for life without eligibility for parole, after the sentence is ordered executed, the authority of the Secretary con- cerned under the preceding sentence (1) may not be del- egated, and (2) may be exercised only after the service of a period of confinement of not less than 20 years.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2000 AMENDMENT Pub. L. 106–398, § 1 [[div. A], title V, § 553(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–125, provided that: ‘‘The amendment made by subsection (a) [amending this sec- tion] shall not apply with respect to a sentence of con- finement for life without eligibility for parole that is adjudged for an offense committed before the date of the enactment of this Act [Oct. 30, 2000].’’ § 875. Art. 75. Restoration (a) Under such regulations as the President may prescribe, all rights, privileges, and prop- erty affected by an executed part of a court- martial sentence which has been set aside or dis- approved, except an executed dismissal or dis- charge, shall be restored unless a new trial or rehearing is ordered and such executed part is included in a sentence imposed upon the new trial or rehearing. (b) If a previously executed sentence of dishon- orable or bad-conduct discharge is not imposed on a new trial, the Secretary concerned shall substitute therefor a form of discharge author- ized for administrative issuance unless the ac- cused is to serve out the remainder of his enlist- ment. (c) If a previously executed sentence of dis- missal is not imposed on a new trial, the Sec- retary concerned shall substitute therefor a form of discharge authorized for administrative issue, and the commissioned officer dismissed by that sentence may be reappointed by the Presi- dent alone 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 ex- istence of a vacancy and shall affect the pro- motion status of other officers only insofar as the President may direct. All time between the dismissal and the reappointment shall be consid- ered as actual service for all purposes, including the right to pay and allowances. (d) The President shall prescribe regulations, with such limitations as the President considers appropriate, governing eligibility for pay and al- lowances for the period after the date on which an executed part of a court-martial sentence is set aside. (Aug. 10, 1956, ch. 1041, 70A Stat. 63; Pub. L. 114–328, div. E, title LIX, § 5337, Dec. 23, 2016, 130 Stat. 2937.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 875(a) ...... 875(b) ...... 50:662(a). 50:662(b). May 5, 1950, ch. 169, § 1 (Art. 75), 64 Stat. 132. 875(c) ...... 50:662(c). In subsections (b) and (c), the word ‘‘If’’ is substituted for the word ‘‘Where’’. The word ‘‘imposed’’ is sub- stituted for the word ‘‘sustained’’. The words ‘‘Sec- retary concerned’’ are substituted for the words ‘‘Sec- retary of the Department’’. In subsection (c), the word ‘‘issue’’ is substituted for the word ‘‘issuance’’. The word ‘‘commissioned’’ is in- serted for clarity. 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 a po- sition 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’’. The word ‘‘receive’’ is omitted as surplusage. Editorial Notes AMENDMENTS 2016—Subsec. (d). Pub. L. 114–328 added subsec. (d). 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. Executive Documents DELEGATION OF FUNCTIONS For delegation to Secretary of Homeland Security of certain authority vested in President by this section, see section 2(b) 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. § 876. Art. 76. Finality of proceedings, findings, and sentences The appellate review of records of trial pro- vided by this chapter, the proceedings, findings, and sentences of courts-martial as approved, re- viewed, or affirmed as required by this chapter, and all dismissals and discharges carried into execution under sentences by courts-martial fol- lowing approval, review, or affirmation as re- quired by this chapter, are final and conclusive. Orders publishing the proceedings of courts-mar- tial and all action taken pursuant to those pro- ceedings are binding upon all departments, courts, agencies, and officers of the United States, subject only to action upon a petition for a new trial as provided in section 873 of this title (article 73) and to action by the Secretary concerned as provided in section 874 of this title (article 74) and the authority of the President. (Aug. 10, 1956, ch. 1041, 70A Stat. 64.)