§ 864. Art. 64. Judge advocate review of finding of guilty in summary court-martial

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. § 864

   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 § 7(a)(1) · 97 Stat. 1393

   1. Amended · 10 U.S.C. § 864

      Pub. L. 98–209 amended section generally

   2. Substituted · 10 U.S.C. § 864

      Pub. L. 98–209 substituting “Review by a judge advocate” for “Approval by the convening authority” in section catchline, and, in text

   3. Substituted · 10 U.S.C. § 864

      Pub. L. 98–209 substituting provisions relating to review by a judge advocate for provision that in acting on the findings and sentence of a court-martial, the convening authority could approve only such findings of guilty, and the sentence or such part or amount of the sentence, as he found correct in law and fact and as he in his discretion determined should be approved, and that unless he indicated otherwise, approval of the sentence was approval of the findings and sentence

   Source evidence

   Code amendment note
   Pub. L. 98–209 amended section generally, substituting “Review by a judge advocate” for “Approval by the convening authority” in section catchline, and, in text, substituting provisions relating to review by a judge advocate for provision that in acting on the findings and sentence of a court-martial, the convening authority could approve only such findings of guilty, and the sentence or such part or amount of the sentence, as he found correct in law and fact and as he in his discretion determined should be approved, and that unless he indicated otherwise, approval of the sentence was approval of the findings and sentence.

   Enacted provision · exact public law section
   (1) Section 864 (article 64) is amended to read as follows: 10 USC 864. “§ 864. Art. 64. Review by a judge advocate “(a) Each case in which there has been a finding of guilty that is not reviewed under section 866 or 869(a) of this title (article 66 or 69(a)) shall be reviewed by a judge advocate under regulations of the Secretary concerned. A judge advocate may not Post, p. 1402. review a case under this subsection if he has acted in the same case as an accuser, investigating officer, member of the court, military judge, or counsel or has otherwise acted on behalf of the prosecution or defense. The judge advocate’s review shall be in writing and shall contain the following: “(1) Conclusions as to whether— “(A) the court had jurisdiction over the accused and the offense; “(B) the charge and specification stated an offense; and “(C) the sentence was within the limits prescribed as a matter of law. “(2) A response to each allegation of error made in writing by the accused. “(3) If the case is sent for action under subsection (b), a recommendation as to the appropriate action to be taken and an opinion as to whether corrective action is required as a matter of law. “(b) The record of trial and related documents in each case reviewed under subsection (a) shall be sent for action to the person exercising general court-martial jurisdiction over the accused at the time the court was convened (or to that person’s successor in command) if— “(1) the judge advocate who reviewed the case recommends corrective action; “(2) Ante, p. 1395. the sentence approved under section 860(c) of this title (article 60(c)) extends to dismissal, a bad-conduct or dishonorable discharge, or confinement for more than six months; or “(3) such action is otherwise required by regulations of the Secretary concerned. “(c) (1) The person to whom the record of trial and related documents are sent under subsection (b) may— “(A) disapprove or approve the findings or sentence, in whole or in part; “(B) remit, commute, or suspend the sentence in whole or in part; “(C) except where the evidence was insufficient at the trial to support the findings, order a rehearing on the findings, on the sentence, or on both; or “(D) dismiss the charges. “(2) If a rehearing is ordered but the convening authority finds a rehearing impracticable, he shall dismiss the charges. “(3) If the opinion of the judge advocate in the judge advocate’s review under subsection (a) is that corrective action is required as a matter of law and if the person required to take action under subsection (b) does not take action that is at least as favorable to the accused as that recommended by the judge advocate, the record of trial and action thereon shall be sent to Infra. the Judge Advocate General for review under section 869(b) of this title (article 69(b)).”.

3. 2016

   Military Justice Act of 2016

   Pub. L. 114–328 § 5328(b)(1) · 130 Stat. 2000

   Substituted · 10 U.S.C. § 864

   Pub. L. 114–328, § 5328(b)(1), substituted “Judge advocate review of finding of guilty in summary court-martial” for “Review by a judge advocate” in section catchline

   Source evidence

   Code amendment note
   Pub. L. 114–328, § 5328(b)(1), substituted “Judge advocate review of finding of guilty in summary court-martial” for “Review by a judge advocate” in section catchline.

   Enacted provision · exact public law section
   (1) The heading of such section (article) is amended to read as follows: “§ 864. Art. 64. Judge advocate review of finding of guilty in summary court-martial” .

   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 1081(c)(4) of Pub. L. 115–91, set out as a note under section 801 of this title.

4. 2016

   Military Justice Act of 2016

   Pub. L. 114–328 § 5328(a) · 130 Stat. 2000

   1. Inserted · 10 U.S.C. § 864(a)

      Pub. L. 114–328, § 5328(a), inserted subsec. (a) designation, heading, and first two sentences

   2. Struck · 10 U.S.C. § 864(a)

      Pub. L. 114–328, § 5328(a), struck out former first two sentences which read as follows: “Each case in which there has been a finding of guilty that is not reviewed under section 866 or 869(a) of this title (article 66 or 69(a)) shall be reviewed by a judge advocate under regulations of the Secretary concerned. A judge advocate may not review a case under this subsection if he has acted in the same case as an accuser, investigating officer, member of the court, military judge, or counsel or has otherwise acted on behalf of the prosecution or defense.”

   Source evidence

   Code amendment note
   Subsec. (a). Pub. L. 114–328, § 5328(a), inserted subsec. (a) designation, heading, and first two sentences, and struck out former first two sentences which read as follows: “Each case in which there has been a finding of guilty that is not reviewed under section 866 or 869(a) of this title (article 66 or 69(a)) shall be reviewed by a judge advocate under regulations of the Secretary concerned. A judge advocate may not review a case under this subsection if he has acted in the same case as an accuser, investigating officer, member of the court, military judge, or counsel or has otherwise acted on behalf of the prosecution or defense.”

   Enacted provision · exact public law section
   (a) In General.— Subsection (a) of section 864 of title 10, United States Code (article 64 of the Uniform Code of Military Justice), is amended by striking the first two sentences and inserting the following: “(a) In General.— Under regulations prescribed by the Secretary concerned, each summary court-martial in which there is a finding of guilty shall be reviewed by a judge advocate. A judge advocate may not review a case under this subsection if the judge advocate has acted in the same case as an accuser, preliminary hearing officer, member of the court, military judge, or counsel or has otherwise acted on behalf of the prosecution or defense.” .

   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 1081(c)(4) of Pub. L. 115–91, set out as a note under section 801 of this title.

5. 2016

   Military Justice Act of 2016

   Pub. L. 114–328 § 5328(b)(2)(A) · 130 Stat. 2000

   Inserted · 10 U.S.C. § 864(b)

   Pub. L. 114–328, § 5328(b)(2)(A), inserted heading

   Source evidence

   Code amendment note
   Subsec. (b). Pub. L. 114–328, § 5328(b)(2)(A), inserted heading.

   Enacted provision · exact public law section
   (A) by striking “(b) The record” and inserting “(b) Record.—The record”;

   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 1081(c)(4) 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 § 5328(b)(2)(B) · 130 Stat. 2000

   1. Redesignated · 10 U.S.C. § 864(b)(2); 10 U.S.C. § 864(b)(3)

      Pub. L. 114–328, § 5328(b)(2)(B)–(D), redesignated par. (3) as (2)

   2. Struck · 10 U.S.C. § 864(b)(2); 10 U.S.C. § 864(b)(3)

      Pub. L. 114–328, § 5328(b)(2)(B)–(D), struck out former par. (2) which read as follows: “the sentence approved under section 860(c) of this title (article 60(c)) extends to dismissal, a bad-conduct or dishonorable discharge, or confinement for more than six months; or”

   Source evidence

   Code amendment note
   Subsec. (b)(2), (3). Pub. L. 114–328, § 5328(b)(2)(B)–(D), redesignated par. (3) as (2) and struck out former par. (2) which read as follows: “the sentence approved under section 860(c) of this title (article 60(c)) extends to dismissal, a bad-conduct or dishonorable discharge, or confinement for more than six months; or”.

   Enacted provision · exact public law section
   (B) in paragraph (1), by adding “or” at the end;

   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 1081(c)(4) 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 § 5328(b)(3) · 130 Stat. 2000

   Substituted · 10 U.S.C. § 864(c)(3)

   Pub. L. 114–328, § 5328(b)(3), substituted “section 869 of this title (article 69).” for “section 869(b) of this title (article 69(b)).”

   Source evidence

   Code amendment note
   Subsec. (c)(3). Pub. L. 114–328, § 5328(b)(3), substituted “section 869 of this title (article 69).” for “section 869(b) of this title (article 69(b)).”

   Enacted provision · exact public law section
   (3) Subsection (c)(3) of such section (article) is amended by striking “section 869(b) of this title (article 69(b)).” and inserting “section 869 of this title (article 69).”.

   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 1081(c)(4) of Pub. L. 115–91, set out as a note under section 801 of this title.

8. 2017

   National Defense Authorization Act for Fiscal Year 2018

   Pub. L. 115–91 div. A title X § 1081(c)(1)(I) · 131 Stat. 1283

   Substituted · 10 U.S.C. § 864(a)

   Pub. L. 115–91 substituted “(a) In General.—” for “(a) (a) In General.—”

   Source evidence

   Code amendment note
   Subsec. (a). Pub. L. 115–91 substituted “(a) In General.—” for “(a) (a) In General.—”.

   Enacted provision · exact public law section
   (I) Section 864(a) (article 64(a)), as amended by section 5328(a) of the Military Justice Act of 2016 (130 Stat. 2929), is further amended by striking “(a) (a) In General.—” and inserting “(a) In General.—”.

   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 1081(c)(4) 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