§ 862. Art. 62. Appeal by the United States

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1956

   Aug. 10, 1956, ch. 1041, 70A Stat. 58 · 70A Stat. 58

   Enacted · 10 U.S.C. § 862

   Aug. 10, 1956, ch. 1041, 70A Stat. 58

   Source evidence

   Code source credit
   Aug. 10, 1956, ch. 1041, 70A Stat. 58

2. 1983

   Military Justice Act of 1983

   Pub. L. 98–209 § 5(c)(1) · 97 Stat. 1393

   1. Amended · 10 U.S.C. § 862

      Pub. L. 98–209 amended section generally

   2. Substituted · 10 U.S.C. § 862

      Pub. L. 98–209 substituting “Appeal by the United States” for “Reconsideration and revision” as section catchline, and, in text

   3. Substituted · 10 U.S.C. § 862

      Pub. L. 98–209 substituting provisions relating to appeals by the United States for provisions relating to the convening authority returning the record to the court for reconsideration and appropriate action

   Source evidence

   Code amendment note
   Pub. L. 98–209 amended section generally, substituting “Appeal by the United States” for “Reconsideration and revision” as section catchline, and, in text, substituting provisions relating to appeals by the United States for provisions relating to the convening authority returning the record to the court for reconsideration and appropriate action.

   Enacted provision · exact public law section
   (1) 10 USC 862. Section 862 (article 62) is amended to read as follows: “§ 862. Art. 62. Appeal by the United States “(a) (1) In a trial by court-martial in which a military judge presides and in which a punitive discharge may be adjudged, the United States may appeal an order or ruling of the military judge which terminates the proceedings with respect to a charge or specification or which excludes evidence that is substantial proof of a fact material in the proceeding. However, the United States may not appeal an order or ruling that is, or that amounts to, a finding of not guilty with respect to the charge or specification. (2) Written notice. An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within 72 hours of the order or ruling. Such notice shall include a certification by the trial counsel that the appeal is not taken for the purpose of delay and (if the order or ruling appealed is one which excludes evidence) that the evidence excluded is substantial proof of a fact material in the proceeding. (3) An appeal under this section shall be diligently prosecuted by appellate Government counsel. “(b) Submittal to Court of Military Review. An appeal under this section shall be forwarded by a means prescribed under regulations of the President directly to the Court of Military Review and shall, whenever practicable, have priority over all other proceedings before that court. In ruling on an appeal under this section, the Court of Military Review may act only with respect to matters of law, notwithstanding section 866(c) of this title (article 66(c)). “(c) Any period of delay resulting from an appeal under this section shall be excluded in deciding any issue regarding denial of a speedy trial unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit.”.

3. 1994

   National Defense Authorization Act for Fiscal Year 1995

   Pub. L. 103–337 div. A title IX § 924(c)(2) · 108 Stat. 2663

   Substituted · 10 U.S.C. § 862(b)

   Pub. L. 103–337 substituted “Court of Criminal Appeals” for “Court of Military Review” in two places

   Source evidence

   Code amendment note
   Subsec. (b). Pub. L. 103–337 substituted “Court of Criminal Appeals” for “Court of Military Review” in two places.

   Enacted provision · exact public law section
   (2) The following sections are amended by striking out “Court of Military Review” each place it appears and inserting in lieu thereof “Court of Criminal Appeals”: sections 707(a)(2), 862(b), 867, 868, 869, 870, 871, and 873.

4. 1996

   Military Justice Amendments of 1995

   Pub. L. 104–106 div. A title XI § 1141(a) · 110 Stat. 186

   Amended · 10 U.S.C. § 862(a)(1)

   Pub. L. 104–106 amended par. (1) generally. Prior to amendment, par. (1) read as follows: “In a trial by court-martial in which a military judge presides and in which a punitive discharge may be adjudged, the United States may appeal an order or ruling of the military judge which terminates the proceedings with respect to a charge or specification or which excludes evidence that is substantial proof of a fact material in the proceeding. However, the United States may not appeal an order or ruling that is, or that amounts to, a finding of not guilty with respect to the charge or specification.”

   Source evidence

   Code amendment note
   Subsec. (a)(1). Pub. L. 104–106 amended par. (1) generally. Prior to amendment, par. (1) read as follows: “In a trial by court-martial in which a military judge presides and in which a punitive discharge may be adjudged, the United States may appeal an order or ruling of the military judge which terminates the proceedings with respect to a charge or specification or which excludes evidence that is substantial proof of a fact material in the proceeding. However, the United States may not appeal an order or ruling that is, or that amounts to, a finding of not guilty with respect to the charge or specification.”

   Enacted provision · exact public law section
   (a) Appeals Relating to Disclosure of Classified Information.— Section 862(a)(1) (article 62(a)(1)) is amended to read as follows: “(a) (1) In a trial by court-martial in which a military judge presides and in which a punitive discharge may be adjudged, the United States may appeal the following (other than an order or ruling that is, or that amounts to, a finding of not guilty with respect to the charge or specification): “(A) An order or ruling of the military judge which terminates the proceedings with respect to a charge or specification. “(B) An order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding. “(C) An order or ruling which directs the disclosure of classified information. “(D) An order or ruling which imposes sanctions for nondisclosure of classified information. “(E) A refusal of the military judge to issue a protective order sought by the United States to prevent the disclosure of classified information. “(F) A refusal by the military judge to enforce an order described in subparagraph (E) that has previously been issued by appropriate authority.”.

5. 2016

   Military Justice Act of 2016

   Pub. L. 114–328 § 5326(1)(A) · 130 Stat. 2000

   Substituted · 10 U.S.C. § 862(a)(1)

   Pub. L. 114–328, § 5326(1)(A), in introductory provisions, substituted “general or special court-martial, or in a pretrial proceeding under section 830a of this title (article 30a), the United States may appeal the following:” for “court-martial in which a military judge presides and in which a punitive discharge may be adjudged, the United States may appeal the following (other than an order or ruling that is, or that amounts to, a finding of not guilty with respect to the charge or specification):”

   Source evidence

   Code amendment note
   Subsec. (a)(1). Pub. L. 114–328, § 5326(1)(A), in introductory provisions, substituted “general or special court-martial, or in a pretrial proceeding under section 830a of this title (article 30a), the United States may appeal the following:” for “court-martial in which a military judge presides and in which a punitive discharge may be adjudged, the United States may appeal the following (other than an order or ruling that is, or that amounts to, a finding of not guilty with respect to the charge or specification):”.

   Enacted provision · exact public law section
   (A) in the matter before subparagraph (A), by striking “court-martial” and all that follows through the colon at the end and inserting “general or special court-martial, or in a pretrial proceeding under section 830a of this title (article 30a), the United States may appeal the following:”; and

   Effective date note
   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 531(p) of Pub. L. 115–91, set out as a note under section 801 of this title.

6. 2016

   Military Justice Act of 2016

   Pub. L. 114–328 § 5326(1)(B) · 130 Stat. 2000

   Added · 10 U.S.C. § 862(a)(1)(G)

   Pub. L. 114–328, § 5326(1)(B), added subpar. (G)

   Source evidence

   Code amendment note
   Subsec. (a)(1)(G). Pub. L. 114–328, § 5326(1)(B), added subpar. (G).

   Enacted provision · exact public law section
   (B) by adding at the end the following new subparagraph: “(G) An order or ruling of the military judge entering a finding of not guilty with respect to a charge or specification following the return of a finding of guilty by the members.” ;

   Effective date note
   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 531(p) of Pub. L. 115–91, set out as a note under section 801 of this title.

7. 2016

   Military Justice Act of 2016

   Pub. L. 114–328 § 5326(2) · 130 Stat. 2000

   1. Amended · 10 U.S.C. § 862(a)(2)

      Pub. L. 114–328, § 5326(2), designated existing provisions as subpar. (A)

   2. Added · 10 U.S.C. § 862(a)(2)

      Pub. L. 114–328, § 5326(2), added subpar. (B)

   Source evidence

   Code amendment note
   Subsec. (a)(2). Pub. L. 114–328, § 5326(2), designated existing provisions as subpar. (A) and added subpar. (B).

   Enacted provision · exact public law section
   (2) in paragraph (2) of subsection (a)— (A) by striking “(2)” and inserting “(2)(A)”; and (B) by adding at the end the following new subparagraph: “(B) An appeal of an order or ruling may not be taken when prohibited by section 844 of this title (article 44).” ; and

   Effective date note
   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 531(p) of Pub. L. 115–91, set out as a note under section 801 of this title.

8. 2016

   Military Justice Act of 2016

   Pub. L. 114–328 § 5326(3) · 130 Stat. 2000

   Added · 10 U.S.C. § 862(d); 10 U.S.C. § 862(e)

   Pub. L. 114–328, § 5326(3), added subsecs. (d) and (e)

   Source evidence

   Code amendment note
   Subsecs. (d), (e). Pub. L. 114–328, § 5326(3), added subsecs. (d) and (e).

   Enacted provision · exact public law section
   (3) by adding at the end the following: “(d) The United States may appeal a ruling or order of a military magistrate in the same manner as had the ruling or order been made by a military judge, except that the issue shall first be presented to the military judge who designated the military magistrate or to a military judge detailed to hear the issue. “(e) The provisions of this section shall be liberally construed to effect its purposes.” .

   Effective date note
   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 531(p) of Pub. L. 115–91, set out as a note under section 801 of this title.

9. 2017

   National Defense Authorization Act for Fiscal Year 2018

   Pub. L. 115–91 div. A title V § 531(h) · 131 Stat. 1283

   Struck · 10 U.S.C. § 862(b)

   Pub. L. 115–91 struck out “, notwithstanding section 866(c) of this title (article 66(c))” after “matters of law”

   Source evidence

   Code amendment note
   Subsec. (b). Pub. L. 115–91 struck out “, notwithstanding section 866(c) of this title (article 66(c))” after “matters of law”.

   Enacted provision · exact public law section
   (h) Appeal by the United States.— Section 862(b) of title 10, United States Code (article 62(b) of the Uniform Code of Military Justice), is amended by striking “, notwithstanding section 866(c) of this title (article 66(c))”.

   Effective date note
   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 531(p) of Pub. L. 115–91, set out as a note under section 801 of this title.

11 of 12 references resolved to an enrolled provision · 1 partial