10 U.S.C. § 872 — Art. 72. Vacation of suspension

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. Page 800 TITLE 10—ARMED FORCES § 873 (c) The suspension of any other sentence may be vacated by any authority competent to con- vene, for the command in which the accused is serving or assigned, a court of the kind that im- posed the sentence. (Aug. 10, 1956, ch. 1041, 70A Stat. 63; Pub. L. 114–328, div. E, title LIX, § 5335, Dec. 23, 2016, 130 Stat. 2936.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 872(a) ...... 872(b) ...... 50:659(a). 50:659(b). May 5, 1950, ch. 169, § 1 (Art. 72), 64 Stat. 131. 872(c) ...... 50:659(c). In subsection (a), the word ‘‘Before’’ is substituted for the words ‘‘Prior to’’. In subsection (b), the words ‘‘be effective * * * to’’ are omitted as surplusage. The second sentence is restated to make it clear that the execution of the rest of the court-martial sentence is not automatic. The word ‘‘is’’ is substituted for the words ‘‘shall * * * be’’ in the last sentence. The word ‘‘sent’’ is substituted for the word ‘‘forwarded’’. The words ‘‘Secretary concerned’’ are substituted for the words ‘‘Secretary of the Department’’. Editorial Notes AMENDMENTS 2016—Subsec. (a). Pub. L. 114–328, § 5335(a), (b)(1), in- serted ‘‘The special court-martial convening authority may detail a judge advocate, who is certified under sec- tion 827(b) of this title (article 27(b)), to conduct the hearing.’’ after first sentence and substituted ‘‘if the probationer so desires’’ for ‘‘if he so desires’’ in last sentence. Subsec. (b). Pub. L. 114–328, § 5335(b)(2), substituted ‘‘If the officer exercising general court-martial jurisdic- tion’’ for ‘‘If he’’ and ‘‘section 857 of this title (article 57)’’ for ‘‘section 871(c) of this title (article 71(c))’’. 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. § 873. Art. 73. Petition for a new trial At any time within three years after the date of the entry of judgment under section 860c of this title (article 60c), the accused may petition the Judge Advocate General for a new trial on the grounds of newly discovered evidence or fraud on the court. If the accused’s case is pend- ing before a Court of Criminal Appeals or before the Court of Appeals for the Armed Forces, the Judge Advocate General shall refer the petition to the appropriate court for action. Otherwise the Judge Advocate General shall act upon the petition. (Aug. 10, 1956, ch. 1041, 70A Stat. 63; Pub. L. 90–632, § 2(33), Oct. 24, 1968, 82 Stat. 1342; 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, § 5336, Dec. 23, 2016, 130 Stat. 2937.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 873 .......... 50:660. May 5, 1950, ch. 169, § 1 (Art. 73), 64 Stat. 132. The words ‘‘the ground’’ are substituted for the word ‘‘grounds’’. The words ‘‘as the case may be’’ are sub- stituted for the word ‘‘respectively’’, since the pre- scribed action is alternative, not distributive. Editorial Notes AMENDMENTS 2016—Pub. L. 114–328 substituted ‘‘three years after the date of the entry of judgment under section 860c of this title (article 60c)’’ for ‘‘two years after approval by the convening authority of a court-martial sentence’’. 1994—Pub. L. 103–337 substituted ‘‘Court of Criminal Appeals’’ for ‘‘Court of Military Review’’ and ‘‘Court of Appeals for the Armed Forces’’ for ‘‘Court of Military Appeals’’. 1968—Pub. L. 90–632 extended time during which ac- cused may petition Judge Advocate General for a new trial from 1 to 2 years and struck out provisions which limited right to petition for a new trial to cases of death, dismissal, a punitive discharge, or a year or more in confinement. 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 1968 AMENDMENT Amendment by Pub. L. 90–632 to apply in the case of all court-martial sentences approved by the convening authority on or after, or not more than two years be- fore Oct. 24, 1968, see section 4(c) of Pub. L. 90–632, set out as a note under section 801 of this title. § 874. Art. 74. Remission and suspension (a) The Secretary concerned and, when des- ignated by him, any Under Secretary, Assistant Secretary, Judge Advocate General, or com- manding officer may remit or suspend any part or amount of the unexecuted part of any sen- tence, including all uncollected forfeitures other than a sentence approved by the President. How- ever, in the case of a sentence of confinement for life without eligibility for parole that is ad- judged for an offense committed after October 29, 2000, after the sentence is ordered executed, the authority of the Secretary concerned under the preceding sentence (1) may not be delegated, and (2) may be exercised only after the service of a period of confinement of not less than 20 years. (b) The Secretary concerned may, for good cause, substitute an administrative form of dis- charge for a discharge or dismissal executed in accordance with the sentence of a court-martial. (Aug. 10, 1956, ch. 1041, 70A Stat. 63; Pub. L. 106–398, § 1 [[div. A], title V, § 553(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–125; Pub. L. 107–107, div. A, title X, § 1048(a)(8), Dec. 28, 2001, 115 Stat. 1223.)