10 U.S.C. § 865 — Art. 65. Transmittal and review of records

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— Page 787 TITLE 10—ARMED FORCES § 865 (A) the record of trial to the Court of Criminal Appeals for review under section 866(b)(3) of this title (article 66(b)(3)); and (B) a copy of the record of trial to an ap- pellate defense counsel who shall be detailed to review the case and, upon request of the accused, to represent the accused before the Court of Criminal Appeals. (2) CASES ELIGIBLE FOR DIRECT APPEAL RE- VIEW.— (A) IN GENERAL.—If the case is eligible for direct review under section 866(b)(1) of this title (article 66(b)(1)), the Judge Advocate General shall, upon written request of the accused— (i) forward a copy of the record of trial to an appellate defense counsel who shall be detailed to review the case and to rep- resent the accused before the Court of Criminal Appeals; and (ii) forward a copy of the record of trial to civilian counsel provided by the ac- cused. (B) INAPPLICABILITY.—Subparagraph (A) shall not apply if the accused waives the right to appeal under section 861 of this title (article 61). (c) NOTICE OF RIGHT TO APPEAL.— (1) IN GENERAL.—The Judge Advocate Gen- eral shall provide notice to the accused of the right to file an appeal under section 866(b)(1) of this title (article 66(b)(1)) by means of de- positing in the United States mails for deliv- ery by first class certified mail to the accused at an address provided by the accused or, if no such address has been provided by the accused, at the latest address listed for the accused in the official service record of the accused. (2) INAPPLICABILITY UPON WAIVER OF AP- PEAL.—Paragraph (1) shall not apply if the ac- cused waives the right to appeal under section 861 of this title (article 61). (d) REVIEW BY JUDGE ADVOCATE GENERAL.— (1) BY WHOM.—A review conducted under this subsection may be conducted by an attorney within the Office of the Judge Advocate Gen- eral or another attorney designated under reg- ulations prescribed by the Secretary con- cerned. (2) REVIEW OF CASES NOT ELIGIBLE FOR DIRECT APPEAL.— (A) IN GENERAL.—A review under subpara- graph (B) shall be completed in each general and special court-martial that is not eligible for direct appeal under paragraph (1) or (3) of section 866(b) of this title (article 66(b)). (B) SCOPE OF REVIEW.—A review referred to in subparagraph (A) shall include a written decision providing each of the following: (i) A conclusion as to whether the court had jurisdiction over the accused and the offense. (ii) A conclusion as to whether the charge and specification stated an offense. (iii) A conclusion as to whether the sen- tence was within the limits prescribed as a matter of law. (iv) A response to each allegation of error made in writing by the accused. (3) REVIEW WHEN DIRECT APPEAL IS WAIVED, WITHDRAWN, OR NOT FILED.— (A) IN GENERAL.—A review under subpara- graph (B) shall be completed in each general and special court-martial if— (i) the accused waives the right to appeal or withdraws appeal under section 861 of this title (article 61); or (ii) the accused does not file a timely ap- peal in a case eligible for direct appeal under subparagraph (A), (B), or (C) of sec- tion 866(b)(1) of this title (article 66(b)(1)). (B) SCOPE OF REVIEW.—A review referred to in subparagraph (A) shall include a written decision limited to providing conclusions on the matters specified in clauses (i), (ii), and (iii) of paragraph (2)(B). (e) REMEDY.— (1) IN GENERAL.—If after a review of a record under subsection (d), the attorney conducting the review believes corrective action may be required, the record shall be forwarded to the Judge Advocate General, who may set aside the findings or sentence, in whole or in part. (2) REHEARING.—In setting aside findings or sentence, the Judge Advocate General may order a rehearing, except that a rehearing may not be ordered in violation of section 844 of this title (article 44). (3) REMEDY WITHOUT REHEARING.— (A) DISMISSAL WHEN NO REHEARING OR- DERED.—If the Judge Advocate General sets aside findings and sentence and does not order a rehearing, the Judge Advocate Gen- eral shall dismiss the charges. (B) DISMISSAL WHEN REHEARING IMPRACTI- CABLE.— (i) IN GENERAL.—Subject to clause (ii), if the Judge Advocate General sets aside findings and orders a rehearing and the convening authority determines that a re- hearing would be impractical, the con- vening authority shall dismiss the charges. (ii) CASES REFERRED BY SPECIAL TRIAL COUNSEL.—If a case was referred to trial by a special trial counsel, a special trial coun- sel shall determine if a rehearing is im- practicable and shall dismiss the charges if the special trial counsel so determines. (Aug. 10, 1956, ch. 1041, 70A Stat. 59; Pub. L. 90–179, § 1(6), Dec. 8, 1967, 81 Stat. 546; Pub. L. 90–632, § 2(26), Oct. 24, 1968, 82 Stat. 1341; Pub. L. 96–513, title V, § 511(25), Dec. 12, 1980, 94 Stat. 2922; Pub. L. 98–209, § 6(d)(1), Dec. 6, 1983, 97 Stat. 1401; Pub. L. 114–328, div. E, title LIX, § 5329, Dec. 23, 2016, 130 Stat. 2930; Pub. L. 115–91, div. A, title X, § 1081(c)(1)(J), Dec. 12, 2017, 131 Stat. 1598; Pub. L. 117–81, div. A, title V, § 539A(a), Dec. 27, 2021, 135 Stat. 1698; Pub. L. 118–159, div. A, title V, § 563, Dec. 23, 2024, 138 Stat. 1903.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 865(a) ...... 865(b) ...... 50:652(a). 50:652(b). May 5, 1950, ch. 169, § 1 (Art. 65), 64 Stat. 128. 865(c) ...... 50:652(c). In subsection (b), the word ‘‘If’’ is substituted for the word ‘‘Where’’. Page 788 TITLE 10—ARMED FORCES § 866 In subsections (a) and (b), the words ‘‘send’’ and ‘‘sent’’ are substituted for the words ‘‘forward’’ and ‘‘forwarded’’, respectively. In subsection (c), the words ‘‘Secretary concerned’’ are substituted for the words ‘‘Secretary of the Depart- ment’’. Editorial Notes AMENDMENTS 2024—Subsec. (b)(1). Pub. L. 118–159, § 563(1), sub- stituted ‘‘forward—’’ for ‘‘forward’’, inserted subpar. (A) designation before ‘‘the record’’, and added subpar. (B). Subsec. (b)(2)(A). Pub. L. 118–159, § 563(2)(A)(i), sub- stituted ‘‘shall, upon written request of the accused’’ for ‘‘shall’’ in introductory provisions. Subsec. (b)(2)(A)(i). Pub. L. 118–159, § 563(2)(A)(ii), struck out ‘‘, upon request of the accused,’’ after ‘‘re- view the case and’’. Subsec. (b)(2)(A)(ii). Pub. L. 118–159, § 563(2)(A)(iii), struck out ‘‘upon written request of the accused,’’ be- fore ‘‘forward a copy’’. Subsec. (b)(2)(B). Pub. L. 118–159, § 563(2)(B), sub- stituted ‘‘accused’’ for ‘‘accused—’’, struck out cl. (i) designation before ‘‘waives’’, and struck out cl. (ii) which read as follows: ‘‘declines in writing the detail- ing of appellate defense counsel under subparagraph (A)(i).’’ 2021—Subsec. (e)(3)(B). Pub. L. 117–81 substituted ‘‘im- practicable’’ for ‘‘impractical’’ in subpar. heading, des- ignated existing provisions as cl. (i), inserted cl. (i) heading, substituted ‘‘Subject to clause (ii), if the Judge Advocate General’’ for ‘‘If the Judge Advocate General’’ and ‘‘impracticable’’ for ‘‘impractical’’, and added cl. (ii). 2017—Subsec. (b)(1). Pub. L. 115–91 substituted ‘‘sec- tion 866(b)(3) of this title (article 66(b)(3))’’ for ‘‘section 866(b)(2) of this title (article 66(b)(2))’’. 2016—Pub. L. 114–328 amended section generally. Prior to amendment, section related to disposition of records. 1983—Pub. L. 98–209 amended section generally, sub- stituting ‘‘Disposition of records’’ for ‘‘Disposition of records after review by the convening authority’’ in section catchline, and, in text, substituting provisions relating to disposition of records for prior provisions relating to disposition of records that required when the convening authority had taken final action in a general court-martial case, he had to send the entire record, including his action thereon and the opinion or opinions of the staff judge advocate or legal officer, to the appropriate Judge Advocate General, required that where sentences of special courts-martial included a bad-conduct discharge, the record had to be sent for re- view either to the officer exercising general court-mar- tial jurisdiction over the command to be reviewed or directly to the appropriate Judge Advocate General to be reviewed by a Court of Military Review, and re- quired that all other special and summary court-mar- tial records had to be reviewed by a judge advocate of the Army, Navy, Air Force, or Marine Corps, or a law specialist or lawyer of the Coast Guard or Department of Transportation, and had to be transmitted and dis- posed of as the Secretary concerned might prescribe by regulation. 1980—Subsec. (c). Pub. L. 96–513 substituted ‘‘Depart- ment of Transportation’’ for ‘‘Department of the Treas- ury’’. 1968—Subsec. (b). Pub. L. 90–632 substituted ‘‘Court of Military Review’’ for ‘‘board of review’’ wherever ap- pearing. 1967—Subsec. (c). Pub. L. 90–179 inserted reference to judge advocate of the Marine Corps and substituted ref- erence to judge advocate of the Navy for reference to law specialist of the Navy. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 117–81 effective on the date that is two years after Dec. 27, 2021, and applicable with respect to offenses that occur after that date, with pro- visions for delayed effect and applicability if regula- tions 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. 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. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 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. § 866. Art. 66. Courts of Criminal Appeals (a) COURTS OF CRIMINAL APPEALS.— (1) IN GENERAL.—Each Judge Advocate Gen- eral shall establish a Court of Criminal Ap- peals which shall be composed of one or more panels, and each such panel shall be composed of not less than three appellate military judges. For the purpose of reviewing court- martial cases, the court may sit in panels or as a whole in accordance with rules prescribed under subsection (h). Any decision of a panel may be reconsidered by the court sitting as a whole in accordance with such rules. Appellate military judges who are assigned to a Court of Criminal Appeals may be commissioned offi- cers or civilians, each of whom must be a member of a bar of a Federal court or of the highest court of a State and must be certified by the Judge Advocate General as qualified, by reason of education, training, experience, and judicial temperament, for duty as an ap- pellate military judge. The Judge Advocate General shall designate as chief judge one of the appellate military judges of the Court of Criminal Appeals established by him. The chief judge shall determine on which panels of the court the appellate judges assigned to the court will serve and which military judge as- signed to the court will act as the senior judge