10 U.S.C. § 854 — Art. 54. Record of trial

Page 770 TITLE 10—ARMED FORCES § 854 cial court-martial shall reject a plea agreement that— (1) contains a provision that has not been ac- cepted by both parties; (2) contains a provision that is not under- stood by the accused; (3) except as provided in subsection (c), con- tains a provision for a sentence that is less than the mandatory minimum sentence appli- cable to an offense referred to in section 856(b)(2) of this title (article 56(b)(2)); (4) is prohibited by law; or (5) is contrary to, or is inconsistent with, a regulation prescribed by the President with respect to terms, conditions, or other aspects of plea agreements. (d) LIMITED CONDITIONS FOR ACCEPTANCE OF PLEA AGREEMENT FOR SENTENCE BELOW MANDA- TORY MINIMUM FOR CERTAIN OFFENSES.—With re- spect to an offense referred to in section 856(b)(2) of this title (article 56(b)(2))— (1) the military judge may accept a plea agreement that provides for a sentence of bad conduct discharge; and (2) upon recommendation of the trial coun- sel, in exchange for substantial assistance by the accused in the investigation or prosecu- tion of another person who has committed an offense, the military judge may accept a plea agreement that provides for a sentence that is less than the mandatory minimum sentence for the offense charged. (e) BINDING EFFECT OF PLEA AGREEMENT.— Upon acceptance by the military judge of a gen- eral or special court-martial, a plea agreement shall bind the parties (including the convening authority and the special trial counsel in the case of a plea agreement entered into under sub- section (a)(3)) and the court-martial. (Added Pub. L. 114–328, div. E, title LVII, § 5237, Dec. 23, 2016, 130 Stat. 2917; amended Pub. L. 115–91, div. A, title V, § 531(d), title X, § 1081(c)(1)(H), Dec. 12, 2017, 131 Stat. 1384, 1598; Pub. L. 117–81, div. A, title V, §§ 539, 539E(b), Dec. 27, 2021, 135 Stat. 1698, 1701.) Editorial Notes REFERENCES IN TEXT Section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022, referred to in subsec. (b), is section 539E(e) of Pub. L. 117–81, which is set out as a note under section 856 of this title. AMENDMENTS 2021—Subsec. (a)(1). Pub. L. 117–81, § 539(a)(1), sub- stituted ‘‘Subject to paragraph (3), at any time’’ for ‘‘At any time’’ in introductory provisions. Subsec. (a)(3). Pub. L. 117–81, § 539(a)(2), added par. (3). Subsecs. (b), (c). Pub. L. 117–81, § 539E(b), added sub- sec. (b) and redesignated former subsec. (b) as (c). Former subsec. (c) redesignated (d). Subsec. (d). Pub. L. 117–81, § 539E(b)(1), redesignated subsec. (c) as (d). Former subsec. (d) redesignated (e). Pub. L. 117–81, § 539(b), inserted ‘‘(including the con- vening authority and the special trial counsel in the case of a plea agreement entered into under subsection (a)(3))’’ after ‘‘parties’’. Subsec. (e). Pub. L. 117–81, § 539E(b)(1), redesignated subsec. (d) as (e). 2017—Subsec. (b)(4), (5). Pub. L. 115–91, § 531(d)(1), added pars. (4) and (5). Subsec. (d). Pub. L. 115–91, § 1081(c)(1)(H), which di- rected substitution of ‘‘court-martial’’ for ‘‘military judge’’ the second place it appeared, could not be exe- cuted because of the prior amendment by Pub. L. 115–91, § 531(d)(2). See below. Pub. L. 115–91, § 531(d)(2), substituted ‘‘shall bind the parties and the court-martial’’ for ‘‘shall bind the par- ties and the military judge’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by section 539 of Pub. L. 117–81 effective on the date that is two years after Dec. 27, 2021, and ap- plicable with respect to offenses that occur after that date, with provisions for delayed effect and applica- bility 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. Amendment by section 539E(b) of Pub. L. 117–81 effec- tive on the date that is two years after Dec. 27, 2021, and applicable to sentences adjudged in cases in which all findings of guilty are for offenses that occurred after the date that is two years after Dec. 27, 2021, see section 539E(f) of Pub. L. 117–81, set out as a note under section 853 of this title. EFFECTIVE DATE OF 2017 AMENDMENT Amendment by section 531(d) of Pub. L. 115–91 effec- tive 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. Amendment by section 1081(c)(1)(H) of Pub. L. 115–91 effective immediately after the amendments made by div. E (§§ 5001–5542) of Pub. L. 114–328 take effect as pro- vided 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. EFFECTIVE DATE Section effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provi- sions 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. § 854. Art. 54. Record of trial (a) GENERAL AND SPECIAL COURTS-MARTIAL.— Each general or special court-martial shall keep a separate record of the proceedings in each case brought before it. The record shall be certified by a court-reporter, except that in the case of death, disability, or absence of a court reporter, the record shall be certified by an official se- lected as the President may prescribe by regula- tion. (b) SUMMARY COURTS-MARTIAL.—Each sum- mary court-martial shall keep a separate record of the proceedings in each case, and the record shall be certified in the manner required by such regulations as the President may prescribe. (c) CONTENTS OF RECORD.—(1) Except as pro- vided in paragraph (2), the record shall contain such matters as the President may prescribe by regulation. (2) In accordance with regulations prescribed by the President, a complete record of pro- ceedings and testimony shall be prepared in any case of a sentence of death, dismissal, discharge, confinement for more than six months, or for- feiture of pay for more than six months. (d) COPY TO ACCUSED.—A copy of the record of the proceedings of each general and special Page 771 TITLE 10—ARMED FORCES § 854 court-martial shall be given to the accused as soon as it is certified. (e) COPY TO VICTIM.—In the case of a general or special court-martial, upon request, a copy of all prepared records of the proceedings of the court- martial shall be given to the victim of the of- fense if the victim testified during the pro- ceedings. The records of the proceedings shall be provided without charge and as soon as the records are certified. The victim shall be noti- fied of the opportunity to receive the records of the proceedings. (Aug. 10, 1956, ch. 1041, 70A Stat. 56; Pub. L. 90–632, § 2(23), Oct. 24, 1968, 82 Stat. 1340; Pub. L. 98–209, § 6(c), Dec. 6, 1983, 97 Stat. 1400; Pub. L. 106–398, § 1 [[div. A], title V, § 555(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–127; Pub. L. 112–81, div. A, title V, § 586(e), Dec. 31, 2011, 125 Stat. 1435; Pub. L. 114–328, div. E, title LVII, § 5238, Dec. 23, 2016, 130 Stat. 2918.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 854(a) ...... 854(b) ...... 50:629(a). 50:629(b). May 5, 1950, ch. 169, § 1 (Art. 54), 64 Stat. 125. 854(c) ...... 50:629(c). In subsection (a), the word ‘‘If’’ is substituted for the words ‘‘In case’’. The words ‘‘any of those’’ are sub- stituted for the word ‘‘such’’ in the last sentence. In subsection (b), the words ‘‘and the’’ are substituted for the word ‘‘which’’ before the word ‘‘record’’. The words ‘‘the matter and shall be authenticated in the manner required by such regulations as’’ are sub- stituted for the words ‘‘such matter and be authenti- cated in such manner as may be required by regula- tions which’’. In subsection (c), the words ‘‘it is’’ are inserted before the word ‘‘authenticated’’. Editorial Notes CODIFICATION Another section 586(e) of Pub. L. 112–81 is set out in a note under section 1561 of this title. AMENDMENTS 2016—Subsec. (a). Pub. L. 114–328, § 5238(1), added sub- sec. (a) and struck out former subsec. (a) which read as follows: ‘‘Each general court-martial shall keep a sepa- rate record of the proceedings in each case brought be- fore it, and the record shall be authenticated by the signature of the military judge. If the record cannot be authenticated by the military judge by reason of his death, disability, or absence, it shall be authenticated by the signature of the trial counsel or by that of a member if the trial counsel is unable to authenticate it by reason of his death, disability, or absence. In a court-martial consisting of only a military judge the record shall be authenticated by the court reporter under the same conditions which would impose such a duty on a member under this subsection.’’ Subsec. (b). Pub. L. 114–328, § 5238(2), substituted ‘‘SUMMARY COURTS-MARTIAL.—Each summary court- martial’’ for ‘‘Each special and summary court-mar- tial’’ and ‘‘certified’’ for ‘‘authenticated’’. Subsec. (c). Pub. L. 114–328, § 5238(3), added subsec. (c) and struck out former subsec. (c) which related to prep- aration of complete record of proceedings. Subsec. (d). Pub. L. 114–328, § 5238(4), inserted heading and substituted ‘‘certified’’ for ‘‘authenticated’’. Subsec. (e). Pub. L. 114–328, § 5238(5), inserted heading and substituted ‘‘, upon request,’’ for ‘‘involving a sex- ual assault or other offense covered by section 920 of this title (article 120),’’ and ‘‘certified’’ for ‘‘authenti- cated’’. 2011—Subsec. (e). Pub. L. 112–81 added subsec. (e). 2000—Subsec. (c)(1)(B). Pub. L. 106–398 inserted ‘‘, confinement for more than six months, or forfeiture of pay for more than six months’’ after ‘‘bad-conduct discharge’’. 1983—Subsec. (a). Pub. L. 98–209, § 6(c)(1), struck out provision that if the proceedings had resulted in an ac- quittal of all charges and specifications or, if not af- fecting a general or flag officer, in a sentence not in- cluding discharge and not in excess of that which could otherwise be adjudged by a special court-martial, the record had to contain such matters as might be pre- scribed by regulations of the President. Subsec. (b). Pub. L. 98–209, § 6(c)(2), substituted ‘‘the record’’ for ‘‘the record shall contain the matter and’’. Subsecs. (c), (d). Pub. L. 98–209, § 6(c)(3), (4), added subsec. (c) and redesignated former subsec. (c) as (d). 1968—Subsec. (a). Pub. L. 90–632 provided for authen- tication of a record of trial by general court-martial by the signature of the military judge, for alternate meth- ods of authentication if the military judge for specified reasons is unable to authenticate it, for authentication when a court-martial consists only of a military judge, and for summarized records of trial in specified cases. 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 2000 AMENDMENT Pub. L. 106–398, § 1 [[div. A], title V, § 555(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–127, provided that: ‘‘The amendment made by subsection (a) [amending this sec- tion] shall take effect as of April 1, 2000, and shall apply with respect to charges referred on or after that date to trial by special court-martial.’’ 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. EFFECTIVE DATE OF 1968 AMENDMENT 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. SUBCHAPTER VIII—SENTENCES Sec. Art. 855. 55. Cruel and unusual punishments prohib- ited. 856. 56. Sentencing. [856a. 56a. Repealed.] 857. 57. Effective date of sentences. [857a. 57a. Repealed.] 858. 58. Execution of confinement. 858a. 58a. Sentences: reduction in enlisted grade. 858b. 58b. Sentences: forfeiture of pay and allow- ances during confinement. Editorial Notes AMENDMENTS 2017—Pub. L. 115–91, div. A, title X, § 1081(d)(19)(A), Dec. 12, 2017, 131 Stat. 1601, made technical amendment