10 U.S.C. § 869 — Art. 69. Review by Judge Advocate General

Page 796 TITLE 10—ARMED FORCES § 868 Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2023 AMENDMENT Pub. L. 118–31, div. A, title V, § 533(b), Dec. 22, 2023, 137 Stat. 261, provided that: ‘‘(1) IN GENERAL.—The amendments made by sub- section (a) [amending this section and sections 1259 and 2101 of Title 28, Judiciary and Judicial Procedure] shall take effect on the date that is one year after the date of the enactment of this Act [Dec. 22, 2023] and shall apply with respect to any action of the United States Court of Appeals for the Armed Forces in granting or refusing to grant a petition for review submitted to such Court for the first time on or after such effective date. ‘‘(2) INAPPLICABILITY TO PENDING DECISIONS.—With re- spect to a petition submitted to the United States Court of Appeals for the Armed Forces before the effec- tive date specified in paragraph (1) and on which the Court has not taken action as of such date, the provi- sions of the United States Code amended by subsection (a) shall apply as if such amendments had not been en- acted. Any action of the United States Court of Appeals for the Armed Forces in granting or refusing to grant such a petition is final and conclusive. ‘‘(3) FINALITY OF DECISIONS BEFORE EFFECTIVE DATE.— Any action of the United States Court of Appeals for the Armed Forces in granting or refusing to grant a pe- tition for review before the effective date specified in paragraph (1) is final and conclusive. ‘‘(4) RULES REQUIRED.—The Supreme Court shall pre- scribe rules to carry out section 2101(g) of title 28, United States Code, as amended by subsection (a)(2)(B) of this section, by not later than the effective date specified in paragraph (1).’’ 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. § 868. Art. 68. Branch offices The Secretary concerned may direct the Judge Advocate General to establish a branch office with any command. The branch office shall be under an Assistant Judge Advocate General who, with the consent of the Judge Advocate General, may establish a Court of Criminal Ap- peals with one or more panels. That Assistant Judge Advocate General and any Court of Crimi- nal Appeals established by him may perform for that command under the general supervision of the Judge Advocate General, the respective du- ties which the Judge Advocate General and a Court of Criminal Appeals established by the Judge Advocate General would otherwise be re- quired to perform as to all cases involving sen- tences not requiring approval by the President. (Aug. 10, 1956, ch. 1041, 70A Stat. 61; Pub. L. 90–632, § 2(29), Oct. 24, 1968, 82 Stat. 1342; Pub. L. 103–337, div. A, title IX, § 924(c)(2), Oct. 5, 1994, 108 Stat. 2831.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 868 .......... 50:655. May 5, 1950, ch. 169, § 1 (Art. 68), 64 Stat. 130. The word ‘‘considers’’ is substituted for the word ‘‘deems’’. The word ‘‘may’’ is substituted for the words ‘‘shall be empowered to’’. The word ‘‘respective’’ is in- serted for clarity. Editorial Notes AMENDMENTS 1994—Pub. L. 103–337 substituted ‘‘Court of Criminal Appeals’’ for ‘‘Court of Military Review’’ wherever ap- pearing. 1968—Pub. L. 90–632 substituted the Secretary con- cerned for the President as the individual authorized to direct the Judge Advocate General to establish a branch office under an Assistant Judge Advocate Gen- eral with any command and substituted ‘‘Court of Mili- tary Review’’ for ‘‘board of review’’ as the name of the body established by the Assistant Judge Advocate Gen- eral in charge of the branch office. Statutory Notes and Related Subsidiaries 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. § 869. Art. 69. Review by Judge Advocate General (a) IN GENERAL.—Upon application by the ac- cused or receipt of the record pursuant to sec- tion 864(c)(3) of this title (article 64(c)(3)) and subject to subsections (b), (c), and (d), the Judge Advocate General may— (1) with respect to a summary court-martial, modify or set aside, in whole or in part, the findings and sentence; or (2) with respect to a general or special court- martial, order such court-martial to be re- viewed under section 866 of this title (article 66). (b) TIMING.—(1) To qualify for consideration, an application under subsection (a) must be sub- mitted to the Judge Advocate General not later than— (A) for a summary court-martial, one year after the date of completion of review under section 864 of this title (article 64); or (B) for a general or special court-martial, one year after the end of the 90-day period be- ginning on the date the accused is provided notice of appellate rights under section 865(c) of this title (article 65(c)), unless the accused submitted a waiver or withdrawal of appellate review under section 861 of this title (article 61) before being provided notice of appellate rights, in which case the application must be submitted to the Judge Advocate General not later than one year after the entry of judg- ment under section 860c of this title (article 60c). (2) The Judge Advocate General may, for good cause shown, extend the period for submission of an application, except that— (A) in the case of an application for review of a summary court martial, the Judge Advo- cate may not consider an application sub- mitted more than three years after the com- pletion date referred to in paragraph (1)(A); and (B) in case of an application for review of a general or special court-martial, the Judge Advocate may not consider an application sub- mitted more than three years after the end of the applicable period under paragraph (1)(B). (c) SCOPE.—(1)(A) In a case reviewed under sec- tion 864 of this title (article 64), the Judge Advo- Page 797 TITLE 10—ARMED FORCES § 869 cate General may set aside the findings or sen- tence, in whole or in part, on the grounds of newly discovered evidence, fraud on the court, lack of jurisdiction over the accused or the of- fense, error prejudicial to the substantial rights of the accused, or the appropriateness of the sentence. (B) 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). (C) If the Judge Advocate General sets aside findings and sentence and does not order a re- hearing, the Judge Advocate General shall dis- miss the charges. (D)(i) Subject to clause (ii), if the Judge Advo- cate General sets aside findings and orders a re- hearing and the convening authority determines that a rehearing would be impracticable, the convening authority shall dismiss the charges. (ii) If a case was referred to trial by a special trial counsel, a special trial counsel shall deter- mine if a rehearing is impracticable and shall dismiss the charges if the special trial counsel so determines. (2) In a case reviewed under section 865(b) of this title (article 65(b)), review under this sec- tion is limited to the issue of whether the waiv- er or withdrawal of an appeal was invalid under the law. If the Judge Advocate General deter- mines that the waiver or withdrawal of an ap- peal was invalid, the Judge Advocate General shall send the case to the Court of Criminal Ap- peals. (d) COURT OF CRIMINAL APPEALS.—(1) A Court of Criminal Appeals may review the action taken by the Judge Advocate General under sub- section (c)(1) in a case submitted to the Court of Criminal Appeals by the accused in an applica- tion for review. (2) The Court of Criminal Appeals may grant an application under paragraph (1) only if— (A) the application demonstrates a substan- tial basis for concluding that the action on re- view under subsection (c) constituted preju- dicial error; and (B) the application is filed not later than the earlier of— (i) 60 days after the date on which the ac- cused is notified of the decision of the Judge Advocate General; or (ii) 60 days after the date on which a copy of the decision of the Judge Advocate Gen- eral is deposited in the United States mails for delivery by first-class certified mail to the accused at an address provided by the ac- cused or, if no such address has been pro- vided by the accused, at the latest address listed for the accused in his official service record. (3) The submission of an application for review under this subsection does not constitute a pro- ceeding before the Court of Criminal Appeals for purposes of section 870(c)(1) of this title (article 70(c)(1)). (e) ACTION ONLY ON MATTERS OF LAW.—Not- withstanding section 866 of this title (article 66), in any case reviewed by a Court of Criminal Ap- peals under subsection (d), the Court may take action only with respect to matters of law. (Aug. 10, 1956, ch. 1041, 70A Stat. 61; Pub. L. 90–632, § 2(30), Oct. 24, 1968, 82 Stat. 1342; Pub. L. 97–81, § 6, Nov. 20, 1981, 95 Stat. 1089; Pub. L. 98–209, § 7(e)(1), Dec. 6, 1983, 97 Stat. 1402; Pub. L. 101–189, div. A, title XIII, §§ 1302(a), 1304(b)(1), Nov. 29, 1989, 103 Stat. 1576, 1577; Pub. L. 103–337, div. A, title IX, § 924(c)(2), Oct. 5, 1994, 108 Stat. 2831; Pub. L. 114–328, div. E, title LIX, § 5333, Dec. 23, 2016, 130 Stat. 2935; Pub. L. 115–91, div. A, title X, § 1081(c)(1)(L), Dec. 12, 2017, 131 Stat. 1598; Pub. L. 117–81, div. A, title V, § 539A(d), Dec. 27, 2021, 135 Stat. 1699; Pub. L. 117–263, div. A, title V, § 544(c), Dec. 23, 2022, 136 Stat. 2582.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 869 .......... 50:656. May 5, 1950, ch. 169, § 1 (Art. 69), 64 Stat. 130. The word ‘‘may’’ is substituted for the word ‘‘will’’. The word ‘‘under’’ is substituted for the words ‘‘pursu- ant to the provisions of’’. Editorial Notes AMENDMENTS 2022—Subsec. (a). Pub. L. 117–263, § 544(c)(1), amended subsec. (a) generally. Prior to amendment, text read as follows: ‘‘Upon application by the accused and subject to subsections (b), (c), and (d), the Judge Advocate Gen- eral may modify or set aside, in whole or in part, the findings and sentence in a court-martial that is not re- viewed under section 866 of this title (article 66).’’ Subsec. (b). Pub. L. 117–263, § 544(c)(2), designated ex- isting provisions as par. (1), substituted ‘‘not later than—’’ and subpars. (A) and (B) for ‘‘not later than one year after the date of completion of review under sec- tion 864 or 865 of this title (article 64 or 65), as the case may be. The Judge Advocate General may, for good cause shown, extend the period for submission of an ap- plication, but may not consider an application sub- mitted more than three years after such completion date.’’ and added par. (2). Subsec. (c)(1)(A). Pub. L. 117–263, § 544(c)(3)(A), sub- stituted ‘‘section 864 of this title (article 64)’’ for ‘‘sec- tion 864 or 865(b) of this title (article 64 or 65(b))’’. Subsec. (c)(2). Pub. L. 117–263, § 544(c)(3)(B), sub- stituted ‘‘the Judge Advocate General shall send the case to the Court of Criminal Appeals’’ for ‘‘the Judge Advocate General shall order appropriate corrective ac- tion under rules prescribed by the President’’. Subsec. (d)(1). Pub. L. 117–263, § 544(c)(4)(A), sub- stituted ‘‘under subsection (c)(1) in a case submitted’’ for ‘‘under subsection (c)— ‘‘(A) in a case sent to the Court of Criminal Appeals by order of the Judge Advocate General; or ‘‘(B) in a case submitted’’. Subsec. (d)(2). Pub. L. 117–263, § 544(c)(4)(B), sub- stituted ‘‘paragraph (1)’’ for ‘‘paragraph (1)(B)’’ in in- troductory provisions. 2021—Subsec. (c)(1)(D). Pub. L. 117–81 designated ex- isting provisions as cl. (i), substituted ‘‘Subject to clause (ii), if the Judge Advocate General’’ for ‘‘If the Judge Advocate General’’ and ‘‘impracticable’’ for ‘‘im- practical’’, and added cl. (ii). 2017—Subsec. (c)(1)(A). Pub. L. 115–91 inserted comma after ‘‘in whole or in part’’. 2016—Pub. L. 114–328 amended section generally. Prior to amendment, section related to review in the office of the Judge Advocate General. 1994—Subsecs. (d), (e). Pub. L. 103–337 substituted ‘‘Court of Criminal Appeals’’ for ‘‘Court of Military Re- view’’ wherever appearing. 1989—Subsec. (a). Pub. L. 101–189, § 1304(b)(1), which di- rected amendment of subsec. (a) by striking ‘‘section 867(b)(2) of this title (article 67(b)(2))’’ in the third sen- tence and inserting in lieu thereof ‘‘section 867(a)(2) of this title (article 67(a)(2))’’, could not be executed be- Page 798 TITLE 10—ARMED FORCES § 870 cause of the intervening amendment by Pub. L. 101–189, § 1302(a)(1), which struck out the third sentence, see below. Pub. L. 101–189, § 1302(a)(1), struck out the third sen- tence, which read as follows: ‘‘If the Judge Advocate General so directs, the record shall be reviewed by a Court of Military Review under section 866 of this title (article 66), but in that event there may be no further review by the Court of Military Appeals except under section 867(b)(2) of this title (article 67(b)(2)).’’ Subsecs. (d), (e). Pub. L. 101–189, § 1302(a)(2), added subsecs. (d) and (e). 1983—Pub. L. 98–209 amended section generally. Prior to amendment section provided that every record of trial by general court-martial, in which there had been a finding of guilty and a sentence, the appellate review of which was not otherwise provided for by section 866 of this title, was to be examined in the office of the Judge Advocate General; that if any part of the find- ings or sentence was found unsupported in law, or if the Judge Advocate General so directed, the record was to be reviewed by a board of review in accordance with section 866 of this title, but in that event there could be no further review by the Court of Military Appeals except under section 867(b)(2) of this title, that not- withstanding section 876 of this title, the findings or sentence, or both, in a court-martial case which had been finally reviewed, but had not been reviewed by a Court of Military Review could be vacated or modified, in whole or in part, by the Judge Advocate General on the ground of newly discovered evidence, fraud on the court, lack of jurisdiction over the accused or the of- fense, or error prejudicial to the substantial rights of the accused; and that when such a case was considered upon application of the accused, the application had to be filed in the Office of the Judge Advocate General by the accused before: (1) October 1, 1983, or (2) the last day of the two-year period beginning on the date the sentence was approved by the convening authority or, in a special court-martial case which required action under section 865(b) of this title, the officer exercising general court-martial jurisdiction, whichever was later, unless the accused established good cause for failure to file within that time. 1981—Pub. L. 97–81 inserted provision that, when a case is considered upon application of the accused, the application must be filed in the Office of the Judge Ad- vocate General by the accused before (1) October 1, 1983, or (2) the last day of the two-year period beginning on the date the sentence is approved by the convening au- thority or, in a special court-martial case which re- quires action under section 865(b) of this title (article 65(b)), the officer exercising general court-martial ju- risdiction, whichever is later, unless the accused estab- lishes good cause for failure to file within that time. 1968—Pub. L. 90–632 authorized the Judge Advocate General to either vacate or modify the findings or sen- tence, or both, in whole or in part, in any court-martial case which has been finally reviewed, but which has not been reviewed by a Court of Military Review, because of newly discovered evidence, fraud on the court, lack of jurisdiction over the accused or the offense, or error prejudicial to the substantial rights of the accused. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2022 AMENDMENT Amendment by Pub. L. 117–263 not applicable to any matter that was submitted before Dec. 23, 2022, to a Judge Advocate General under this section, see section 544(d)(2) of Pub. L. 117–263, set out as a note under sec- tion 861 of this title. 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 1989 AMENDMENT Pub. L. 101–189, div. A, title XIII, § 1302(b), Nov. 29, 1989, 103 Stat. 1576, provided that: ‘‘Subsection (e) of section 869 of title 10, United States Code, as added by subsection (a), shall apply with respect to cases in which a finding of guilty is adjudged by a general court-martial after the date of the enactment of this Act [Nov. 29, 1989].’’ 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 1981 AMENDMENT Amendment by Pub. L. 97–81 effective at end of 60-day period beginning on Nov. 20, 1981, see section 7(a) of Pub. L. 97–81, set out as an Effective Date note under section 706 of this title. EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90–632 effective Oct. 24, 1968, see section 4(b) of Pub. L. 90–632, set out as a note under section 801 of this title. TWO-YEAR PERIOD FOR APPLICATIONS FOR MODIFICA- TION OR SET-ASIDE INAPPLICABLE TO APPLICATIONS FILED ON OR BEFORE OCTOBER 1, 1983 Pub. L. 98–209, § 7(e)(2), Dec. 6, 1983, 97 Stat. 1403, pro- vided that the two-year period specified under the sec- ond sentence of subsec. (b) of this section did not apply to any application filed in the office of the appropriate Judge Advocate General on or before Oct. 1, 1983, and that the application in such a case would be considered in the same manner and with the same effect as if such two-year period had not been enacted. § 870. Art. 70. Appellate counsel (a) The Judge Advocate General shall detail in his office one or more commissioned officers as appellate Government counsel, and one or more commissioned officers as appellate defense coun- sel, who are qualified under section 827(b)(1) of this title (article 27(b)(1)). (b) Appellate Government counsel shall rep- resent the United States before the Court of Criminal Appeals or the Court of Appeals for the Armed Forces when directed to do so by the Judge Advocate General. Appellate Government counsel may represent the United States before