10 U.S.C. § 816 — Art. 16. Courts-martial classified

Page 731 TITLE 10—ARMED FORCES § 816 EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90–623 intended to restate without substantive change the law in effect on Oct. 22, 1968, see section 6 of Pub. L. 90–623, set out as a note under section 5334 of Title 5, Government Organization and Employees. EFFECTIVE DATE OF 1962 AMENDMENT Pub. L. 87–648, § 2, Sept. 7, 1962, 76 Stat. 450, provided that: ‘‘This Act [amending this section] becomes effec- tive on the first day of the fifth month following the month in which it is enacted [September 1962].’’ SUBCHAPTER IV—COURT-MARTIAL JURISDICTION Sec. Art. 816. 16. Courts-martial classified. 817. 17. Jurisdiction of courts-martial in general. 818. 18. Jurisdiction of general courts-martial. 819. 19. Jurisdiction of special courts-martial. 820. 20. Jurisdiction of summary courts-martial. 821. 21. Jurisdiction of courts-martial not exclu- sive. § 816. Art. 16. Courts-martial classified (a) IN GENERAL.—The three kinds of courts- martial in each of the armed forces are the fol- lowing: (1) General courts-martial, as described in subsection (b). (2) Special courts-martial, as described in subsection (c). (3) Summary courts-martial, as described in subsection (d). (b) GENERAL COURTS-MARTIAL.—General courts-martial are of the following three types: (1) A general court-martial consisting of a military judge and eight members, subject to sections 825(e)(3) and 829 of this title (articles 25(e)(3) and 29). (2) In a capital case, a general court-martial consisting of a military judge and the number of members determined under section 825a of this title (article 25a), subject to sections 825(e)(3) and 829 of this title (articles 25(e)(3) and 29). (3) A general court-martial consisting of a military judge alone, if, before the court is as- sembled, the accused, knowing the identity of the military judge and after consultation with defense counsel, requests, orally on the record or in writing, a court composed of a military judge alone and the military judge approves the request. (c) SPECIAL COURTS-MARTIAL.—Special courts- martial are of the following two types: (1) A special court-martial consisting of a military judge and four members, subject to sections 825(e)(3) and 829 of this title (articles 25(e)(3) and 29). (2) A special court-martial consisting of a military judge alone— (A) if the case is so referred, subject to sec- tion 819 of this title (article 19) and such limitations as the President may prescribe by regulation; or (B) if the case is referred under paragraph (1) and, before the court is assembled, the accused, knowing the identity of the mili- tary judge and after consultation with de- fense counsel, requests, orally on the record or in writing, a court composed of a military judge alone and the military judge approves the request. (d) SUMMARY COURT-MARTIAL.—A summary court-martial consists of one commissioned offi- cer. (Aug. 10, 1956, ch. 1041, 70A Stat. 42; Pub. L. 90–632, § 2(3), Oct. 24, 1968, 82 Stat. 1335; Pub. L. 98–209, § 3(a), Dec. 6, 1983, 97 Stat. 1394; Pub. L. 107–107, div. A, title V, § 582(a), Dec. 28, 2001, 115 Stat. 1124; Pub. L. 114–328, div. E, title LIV, § 5161, Dec. 23, 2016, 130 Stat. 2897; Pub. L. 115–91, div. A, title X, § 1081(c)(1)(C), Dec. 12, 2017, 131 Stat. 1597; Pub. L. 118–31, div. A, title V, § 531(b)(1), Dec. 22, 2023, 137 Stat. 258.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 816 .......... 50:576. May 5, 1950, ch. 169, § 1 (Art. 16), 64 Stat. 113. The word ‘‘The’’ is substituted for the words ‘‘There shall be’’. The word ‘‘are’’ is substituted for the word ‘‘namely’’. The words ‘‘not less than five members’’ are substituted for the words ‘‘any number of members not less than five’’. The words ‘‘not less than three mem- bers’’ are substituted for the words ‘‘any number of members not less than three’’. The word ‘‘commis- sioned’’ is inserted before the word ‘‘officer’’ in clause (3) for clarity. Editorial Notes AMENDMENTS 2023—Subsec. (c)(2)(A). Pub. L. 118–31 struck out ‘‘by the convening authority’’ after ‘‘is so referred’’. 2017—Subsecs. (b), (c). Pub. L. 115–91 substituted ‘‘sec- tions 825(e)(3) and 829 of this title (articles 25(e)(3) and 29)’’ for ‘‘sections 825(d)(3) and 829 of this title (articles 25(d)(3) and 29)’’ wherever appearing. 2016—Pub. L. 114–328 amended section generally. Prior to amendment, section defined the three kinds of courts-martial in each of the armed forces. 2001—Par. (1)(A). Pub. L. 107–107 inserted ‘‘or, in a case in which the accused may be sentenced to a pen- alty of death, the number of members determined under section 825a of this title (article 25a)’’ after ‘‘five members’’. 1983—Par. (1)(B). Pub. L. 98–209 substituted ‘‘orally on the record or in writing’’ for ‘‘in writing’’. 1968—Pub. L. 90–632 provided that a general or special court-martial shall consist of only a military judge if the accused, before the court is assembled, so requests in writing and the military judge approves, with the added requirements that the accused know the identity of the military judge and have the advice of counsel, and that the election be available in the case of a spe- cial court-martial only if a military judge has been de- tailed to the court. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2023 AMENDMENT Pub. L. 118–31, div. A, title V, § 531(e), Dec. 22, 2023, 137 Stat. 260, provided that: ‘‘The amendments made by subsection (b) and subsection (c)(1) [amending this sec- tion and sections 824a and 825 of this title] shall take effect immediately after the coming into effect of the amendments made by part 1 of subtitle D of title V of the National Defense Authorization Act for Fiscal Year 2022 (Public Law 117–81) as provided in section 539C of that Act (10 U.S.C. 801 note).’’ EFFECTIVE DATE OF 2017 AMENDMENT Amendment by Pub. L. 115–91 effective immediately after the amendments made by div. E (§§ 5001–5542) of Page 732 TITLE 10—ARMED FORCES § 817 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 2001 AMENDMENT Pub. L. 107–107, div. A, title V, § 582(d), Dec. 28, 2001, 115 Stat. 1125, provided that: ‘‘The amendments made by this section [enacting section 825a of this title and amending this section and section 829 of this title] shall apply with respect to offenses committed after Decem- ber 31, 2002.’’ 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. § 817. Art. 17. Jurisdiction of courts-martial in general (a) Each armed force has court-martial juris- diction over all persons subject to this chapter. The exercise of jurisdiction by one armed force over personnel of another armed force shall be in accordance with regulations prescribed by the President. (b) In all cases, departmental review after that by the officer with authority to convene a gen- eral court-martial for the command which held the trial, where that review is required under this chapter, shall be carried out by the depart- ment that includes the armed force of which the accused is a member. (Aug. 10, 1956, ch. 1041, 70A Stat. 43.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 817(a) ...... 817(b) ...... 50:577(a). 50:577(b). May 5, 1950, ch. 169, § 1 (Art. 17), 64 Stat. 114. In subsection (a), the word ‘‘has’’ is substituted for the words ‘‘shall have’’. In subsection (b), the word ‘‘after’’ is substituted for the words ‘‘subsequent to’’. The words ‘‘the provisions of’’ are omitted as surplusage. The words ‘‘department that includes the’’ are inserted before the words ‘‘armed force’’, since the review is carried out by the department and not by the armed force. § 818. Art. 18. Jurisdiction of general courts-mar- tial (a) Subject to section 817 of this title (article 17), general courts-martial have jurisdiction to try persons subject to this chapter for any of- fense made punishable by this chapter and may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when specifically authorized by this chapter. General courts-martial also have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war. (b) A general court-martial of the kind speci- fied in section 816(b)(3) of this title (article 16(b)(3)) shall not have jurisdiction to try any person for any offense for which the death pen- alty may be adjudged unless the case has been previously referred to trial as a noncapital case. (c) Consistent with sections 819 and 820 of this title (articles 19 and 20), only general courts- martial have jurisdiction over the following of- fenses: (1) A violation of subsection (a) or (b) of sec- tion 920 of this title (article 120). (2) A violation of subsection (a) or (b) of sec- tion 920b of this title (article 120b). (3) An attempt to commit an offense speci- fied in paragraph (1) or (2) that is punishable under section 880 of this title (article 80). (Aug. 10, 1956, ch. 1041, 70A Stat. 43; Pub. L. 90–632, § 2(4), Oct. 24, 1968, 82 Stat. 1335; Pub. L. 113–66, div. A, title XVII, § 1705(b), Dec. 26, 2013, 127 Stat. 959; Pub. L. 114–328, div. E, title LIV, § 5162, Dec. 23, 2016, 130 Stat. 2898.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 818 .......... 50:578. May 5, 1950, ch. 169, § 1 (Art. 18), 64 Stat. 114. The word ‘‘shall’’ is omitted as surplusage wherever it occurs. Editorial Notes AMENDMENTS 2016—Subsec. (b). Pub. L. 114–328, § 5162(1), substituted ‘‘section 816(b)(3) of this title (article 16(b)(3))’’ for ‘‘section 816(1)(B) of this title (article 16(1)(B))’’. Subsec. (c). Pub. L. 114–328, § 5162(2), added subsec. (c) and struck out former subsec. (c) which read as follows: ‘‘Consistent with sections 819, 820, and 856(b) of this title (articles 19, 20, and 56(b)), only general courts- martial have jurisdiction over an offense specified in section 856(b)(2) of this title (article 56(b)(2)).’’ 2013—Pub. L. 113–66 designated the first two sentences as subsec. (a), designated third sentence as subsec. (b) and substituted ‘‘A general court-martial’’ for ‘‘How- ever, a general court-martial’’, and added subsec. (c). 1968—Pub. L. 90–632 provided that a general court- martial consisting of only a military judge has no ju- risdiction in cases in which the death penalty may be adjudged unless the case has been previously referred to trial as a noncapital case. 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 2013 AMENDMENT Pub. L. 113–66, div. A, title XVII, § 1705(c), Dec. 26, 2013, 127 Stat. 960, provided that: ‘‘The amendments made by this section [amending this section and sec- tion 856 of this title] shall take effect 180 days after the