10 U.S.C. § 870 — Art. 70. Appellate counsel

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 Page 799 TITLE 10—ARMED FORCES § 872 the Supreme Court in cases arising under this chapter when requested to do so by the Attorney General. (c) Appellate defense counsel shall represent the accused before the Court of Criminal Ap- peals, the Court of Appeals for the Armed Forces, or the Supreme Court— (1) when requested by the accused; (2) when the United States is represented by counsel; or (3) when the Judge Advocate General has sent the case to the Court of Appeals for the Armed Forces. (d) The accused has the right to be represented before the Court of Criminal Appeals, the Court of Appeals for the Armed Forces, or the Su- preme Court by civilian counsel if provided by him. (e) Military appellate counsel shall also per- form such other functions in connection with the review of court martial cases as the Judge Advocate General directs. (f) To the greatest extent practicable, in any capital case, at least one defense counsel under subsection (c) shall, as determined by the Judge Advocate General, be learned in the law applica- ble to such cases. If necessary, this counsel may be a civilian and, if so, may be compensated in accordance with regulations prescribed by the Secretary of Defense. (Aug. 10, 1956, ch. 1041, 70A Stat. 62; Pub. L. 90–632, § 2(31), Oct. 24, 1968, 82 Stat. 1342; Pub. L. 98–209, § 10(c)(3), Dec. 6, 1983, 97 Stat. 1406; 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, § 5334, Dec. 23, 2016, 130 Stat. 2936.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 870(a) ...... 870(b) ...... 50:657(a). 50:657(b). May 5, 1950, ch. 169, § 1 (Art. 70), 64 Stat. 130. 870(c) ...... 50:657(c). 870(d) ...... 50:657(d). 870(e) ...... 50:657(e). In subsection (a), the word ‘‘detail’’ is substituted for the word ‘‘appoint’’, since the filling of the position in- volved is not appointment to an office in the constitu- tional sense. The word ‘‘commissioned’’ is inserted for clarity. The word ‘‘are’’ is substituted for the words ‘‘shall be’’. The words ‘‘the provisions of’’ are omitted as surplusage. In subsections (b) and (c), the word ‘‘shall’’ is sub- stituted for the words ‘‘It shall be the duty of * * * to’’. In subsection (c)(3), the word ‘‘sent’’ is substituted for the word ‘‘transmitted’’. In subsection (d), the word ‘‘has’’ is substituted for the words ‘‘shall have’’. In subsection (e), the word ‘‘directs’’ is substituted for the words ‘‘shall direct’’. Editorial Notes AMENDMENTS 2016—Subsec. (f). Pub. L. 114–328 added subsec. (f). 1994—Subsecs. (b) to (d). Pub. L. 103–337 substituted ‘‘Court of Criminal Appeals’’ for ‘‘Court of Military Re- view’’ and ‘‘Court of Appeals for the Armed Forces’’ for ‘‘Court of Military Appeals’’ wherever appearing. 1983—Subsec. (b). Pub. L. 98–209, § 10(c)(3)(A), inserted provision that Appellate Government counsel may rep- resent the United States before the Supreme Court in cases arising under this chapter when requested to do so by the Attorney General. Subsecs. (c), (d). Pub. L. 98–209, § 10(c)(3)(B), amended subsecs. (c) and (d) generally, inserting references to the Supreme Court. 1968—Subsecs. (b) to (d). Pub. L. 90–632 substituted ‘‘Court of Military Review’’ for ‘‘board of review’’ wher- ever appearing. 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 1983 AMENDMENT Amendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, see section 12(a)(1) 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. [§ 871. Repealed. Pub. L. 114–328, div. E, title LVIII, § 5302(b)(2), Dec. 23, 2016, 130 Stat. 2923] Section, Aug. 10, 1956, ch. 1041, 70A Stat. 62; Pub. L. 90–632, § 2(32), Oct. 24, 1968, 82 Stat. 1342; Pub. L. 98–209, § 5(e), Dec. 6, 1983, 97 Stat. 1399; Pub. L. 103–337, div. A, title IX, § 924(c)(1), (2), Oct. 5, 1994, 108 Stat. 2831; Pub. L. 113–66, div. A, title XVII, § 1702(c)(2), Dec. 26, 2013, 127 Stat. 957, related to execution and suspension of var- ious types of sentences. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF REPEAL Repeal 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. No. 13825, set out as notes under section 801 of this title. § 872. Art. 72. Vacation of suspension (a) Before the vacation of the suspension of a special court-martial sentence which as ap- proved includes a bad-conduct discharge, or of any general court-martial sentence, the officer having special court-martial jurisdiction over the probationer shall hold a hearing on the al- leged violation of probation. The special court- martial convening authority may detail a judge advocate, who is certified under section 827(b) of this title (article 27(b)), to conduct the hearing. The probationer shall be represented at the hearing by counsel if the probationer so desires. (b) The record of the hearing and the rec- ommendation of the officer having special court-martial jurisdiction shall be sent for ac- tion to the officer exercising general court-mar- tial jurisdiction over the probationer. If the offi- cer exercising general court-martial jurisdiction vacates the suspension, any unexecuted part of the sentence, except a dismissal, shall be exe- cuted, subject to applicable restrictions in sec- tion 857 of this title (article 57). The vacation of the suspension of a dismissal is not effective until approved by the Secretary concerned.