§ 865. Art. 65. Transmittal and review of records

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. 59 · 70A Stat. 59

   Enacted · 10 U.S.C. § 865

   Aug. 10, 1956, ch. 1041, 70A Stat. 59

   Source evidence

   Code source credit
   Aug. 10, 1956, ch. 1041, 70A Stat. 59

2. 1967

   Pub. L. 90–179 § 1(6) · 81 Stat. 545

   1. Inserted · 10 U.S.C. § 865(c)

      Pub. L. 90–179 inserted reference to judge advocate of the Marine Corps

   2. Substituted · 10 U.S.C. § 865(c)

      Pub. L. 90–179 substituted reference to judge advocate of the Navy for reference to law specialist of the Navy

   Source evidence

   Code amendment note
   Subsec. (c). Pub. L. 90–179 inserted reference to judge advocate of the Marine Corps and substituted reference to judge advocate of the Navy for reference to law specialist of the Navy.

   Enacted provision · exact public law section
   (1) Section 801 (11) is amended to read as follows: “(11) ‘Law specialist’ means a commissioned officer of the Coast Guard designated for special duty (law).”

3. 1968

   Military Justice Act of 1968

   Pub. L. 90–632 § 2(26) · 82 Stat. 1335

   Substituted · 10 U.S.C. § 865(b)

   Pub. L. 90–632 substituted “Court of Military Review” for “board of review” wherever appearing

   Source evidence

   Code amendment note
   Subsec. (b). Pub. L. 90–632 substituted “Court of Military Review” for “board of review” wherever appearing.

   Enacted provision · exact public law section
   (26) Section 865(b) is amended by striking out “board of review” each time it appears therein and inserting in lieu thereof “Court of Military Review”.

4. 1980

   Defense Officer Personnel Management Act

   Pub. L. 96–513 title V § 511(25) · 94 Stat. 2835

   Substituted · 10 U.S.C. § 865(c)

   Pub. L. 96–513 substituted “Department of Transportation” for “Department of the Treasury”

   Source evidence

   Code amendment note
   Subsec. (c). Pub. L. 96–513 substituted “Department of Transportation” for “Department of the Treasury”.

   Enacted provision · exact public law section
   (25) Sections 865(c) and 888 are amended by striking out “the Treasury” and inserting in lieu thereof “Transportation”.

5. 1983

   Military Justice Act of 1983

   Pub. L. 98–209 § 6(d)(1) · 97 Stat. 1393

   1. Amended · 10 U.S.C. § 865

      Pub. L. 98–209 amended section generally

   2. Substituted · 10 U.S.C. § 865

      Pub. L. 98–209 substituting “Disposition of records” for “Disposition of records after review by the convening authority” in section catchline, and, in text

   3. Substituted · 10 U.S.C. § 865

      Pub. L. 98–209 substituting provisions relating to disposition of records for prior provisions relating to disposition of records that required when the convening authority had taken final action in a general court-martial case, he had to send the entire record, including his action thereon and the opinion or opinions of the staff judge advocate or legal officer, to the appropriate Judge Advocate General, required that where sentences of special courts-martial included a bad-conduct discharge, the record had to be sent for review either to the officer exercising general court-martial jurisdiction over the command to be reviewed or directly to the appropriate Judge Advocate General to be reviewed by a Court of Military Review, and required that all other special and summary court-martial records had to be reviewed by a judge advocate of the Army, Navy, Air Force, or Marine Corps, or a law specialist or lawyer of the Coast Guard or Department of Transportation, and had to be transmitted and disposed of as the Secretary concerned might prescribe by regulation

   Source evidence

   Code amendment note
   Pub. L. 98–209 amended section generally, substituting “Disposition of records” for “Disposition of records after review by the convening authority” in section catchline, and, in text, substituting provisions relating to disposition of records for prior provisions relating to disposition of records that required when the convening authority had taken final action in a general court-martial case, he had to send the entire record, including his action thereon and the opinion or opinions of the staff judge advocate or legal officer, to the appropriate Judge Advocate General, required that where sentences of special courts-martial included a bad-conduct discharge, the record had to be sent for review either to the officer exercising general court-martial jurisdiction over the command to be reviewed or directly to the appropriate Judge Advocate General to be reviewed by a Court of Military Review, and required that all other special and summary court-martial records had to be reviewed by a judge advocate of the Army, Navy, Air Force, or Marine Corps, or a law specialist or lawyer of the Coast Guard or Department of Transportation, and had to be transmitted and disposed of as the Secretary concerned might prescribe by regulation.

   Enacted provision · exact public law section
   (1) Section 865 (article 65) is amended to read as follows: 10 USC 865. “§ 865. Art. 65. Disposition of records “(a) In a case subject to appellate review under section 866 or 869(a) of this title (article 66 or 69(a)) in which the right to such review is not waived, or an appeal is not withdrawn, under Post, p. 1402. section 861 of this title (article 61), the record of trial and action thereon Ante, p. 1397, shall be transmitted to the Judge Advocate General for appropriate action. “(b) Except as otherwise required by this chapter, all other records of trial and related documents shall be transmitted and disposed of as the Secretary concerned may prescribe by regulation.”.

6. 2016

   Military Justice Act of 2016

   Pub. L. 114–328 div. E title LIX § 5329 · 130 Stat. 2000

   Amended · 10 U.S.C. § 865

   Pub. L. 114–328 amended section generally. Prior to amendment, section related to disposition of records

   Source evidence

   Code amendment note
   Pub. L. 114–328 amended section generally. Prior to amendment, section related to disposition of records.

   Enacted provision · exact public law section
   SEC. 5329. TRANSMITTAL AND REVIEW OF RECORDS.   Section 865 of title 10, United States Code (article 65 of the Uniform Code of Military Justice), is amended to read as follows: “§ 865. Art. 65. Transmittal and review of records “(a) Transmittal of Records.— “(1) Finding of guilty in general or special court-martial.— If the judgment of a general or special court-martial entered under section 860c of this title (article 60c) includes a finding of guilty, the record shall be transmitted to the Judge Advocate General. “(2) Other cases.— In all other cases, records of trial by court-martial and related documents shall be transmitted and disposed of as the Secretary concerned may prescribe by regulation. “(b) Cases for Direct Appeal.— “(1) Automatic review.— If the judgment includes a sentence of death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable discharge or bad-conduct discharge, or confinement for 2 years or more, the Judge Advocate General shall forward the record of trial to the Court of Criminal Appeals for review under section 866(b)(2) of this title (article 66(b)(2)). “(2) Cases eligible for direct appeal review.— “(A) In general.— If the case is eligible for direct review under section 866(b)(1) of this title (article 66(b)(1)), the Judge Advocate General shall— “(i) forward a copy of the record of trial to an appellate defense counsel who shall be detailed to review the case and, upon request of the accused, to represent the accused before the Court of Criminal Appeals; and “(ii) upon written request of the accused, forward a copy of the record of trial to civilian counsel provided by the accused. “(B) Inapplicability.— Subparagraph (A) shall not apply if the accused— “(i) waives the right to appeal under section 861 of this title (article 61); or “(ii) declines in writing the detailing of appellate defense counsel under subparagraph (A)(i). “(c) Notice of Right to Appeal.— “(1) In general.— The Judge Advocate General shall provide notice to the accused of the right to file an appeal under section 866(b)(1) of this title (article 66(b)(1)) by means of depositing in the United States mails for delivery by first class certified mail to the accused at an address provided by the accused or, if no such address has been provided by the accused, at the latest address listed for the accused in the official service record of the accused. “(2) Inapplicability upon waiver of appeal.— Paragraph (1) shall not apply if the accused waives the right to appeal under section 861 of this title (article 61). “(d) Review by Judge Advocate General.— “(1) By whom.— A review conducted under this subsection may be conducted by an attorney within the Office of the Judge Advocate General or another attorney designated under regulations prescribed by the Secretary concerned. “(2) Review of cases not eligible for direct appeal.— “(A) In general.— A review under subparagraph (B) shall be completed in each general and special court-martial that is not eligible for direct appeal under paragraph (1) or (3) of section 866(b) of this title (article 66(b)). “(B) Scope of review.— A review referred to in subparagraph (A) shall include a written decision providing each of the following: “(i) A conclusion as to whether the court had jurisdiction over the accused and the offense. “(ii) A conclusion as to whether the charge and specification stated an offense. “(iii) A conclusion as to whether the sentence was within the limits prescribed as a matter of law. “(iv) A response to each allegation of error made in writing by the accused. “(3) Review when direct appeal is waived, withdrawn, or not filed.— “(A) In general.— A review under subparagraph (B) shall be completed in each general and special court-martial if— “(i) the accused waives the right to appeal or withdraws appeal under section 861 of this title (article 61); or “(ii) the accused does not file a timely appeal in a case eligible for direct appeal under subparagraph (A), (B), or (C) of section 866(b)(1) of this title (article 66(b)(1)). “(B) Scope of review.— A review referred to in subparagraph (A) shall include a written decision limited to providing conclusions on the matters specified in clauses (i), (ii), and (iii) of paragraph (2)(B). “(e) Remedy.— “(1) In general.— If after a review of a record under subsection (d), the attorney conducting the review believes corrective action may be required, the record shall be forwarded to the Judge Advocate General, who may set aside the findings or sentence, in whole or in part. “(2) Rehearing.— In setting aside findings or sentence, the Judge Advocate General may order a rehearing, except that a rehearing may not be ordered in violation of section 844 of this title (article 44). “(3) Remedy without rehearing.— “(A) Dismissal when no rehearing ordered.— If the Judge Advocate General sets aside findings and sentence and does not order a rehearing, the Judge Advocate General shall dismiss the charges. “(B) Dismissal when rehearing impractical.— If the Judge Advocate General sets aside findings and orders a rehearing and the convening authority determines that a rehearing would be impractical, the convening authority shall dismiss the charges.” .

7. 2017

   National Defense Authorization Act for Fiscal Year 2018

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

   Substituted · 10 U.S.C. § 865(b)(1)

   Pub. L. 115–91 substituted “section 866(b)(3) of this title (article 66(b)(3))” for “section 866(b)(2) of this title (article 66(b)(2))”

   Source evidence

   Code amendment note
   Subsec. (b)(1). Pub. L. 115–91 substituted “section 866(b)(3) of this title (article 66(b)(3))” for “section 866(b)(2) of this title (article 66(b)(2))”.

   Enacted provision · exact public law section
   (J) Subsection (b)(1) of section 865 (article 65), as added by section 5329 of the Military Justice Act of 2016 (130 Stat. 2930), is amended by striking “section 866(b)(2) of this title (article 66(b)(2))” and inserting “section 866(b)(3) of this title (article 66(b)(3))”.

8. 2021

   National Defense Authorization Act for Fiscal Year 2022

   Pub. L. 117–81 div. A title V § 539A(a) · 135 Stat. 1541

   1. Substituted · 10 U.S.C. § 865(e)(3)(B)

      Pub. L. 117–81 substituted “impracticable” for “impractical” in subpar. heading

   2. Amended · 10 U.S.C. § 865(e)(3)(B)

      Pub. L. 117–81 designated existing provisions as cl. (i)

   3. Inserted · 10 U.S.C. § 865(e)(3)(B)

      Pub. L. 117–81 inserted cl. (i) heading

   4. Substituted · 10 U.S.C. § 865(e)(3)(B)

      Pub. L. 117–81 substituted “Subject to clause (ii), if the Judge Advocate General” for “If the Judge Advocate General”

   5. Substituted · 10 U.S.C. § 865(e)(3)(B)

      Pub. L. 117–81 substituted “impracticable” for “impractical”

   6. Added · 10 U.S.C. § 865(e)(3)(B)

      Pub. L. 117–81 added cl. (ii)

   Source evidence

   Code amendment note
   Subsec. (e)(3)(B). Pub. L. 117–81 substituted “impracticable” for “impractical” in subpar. heading, designated existing provisions as cl. (i), inserted cl. (i) heading, substituted “Subject to clause (ii), if the Judge Advocate General” for “If the Judge Advocate General” and “impracticable” for “impractical”, and added cl. (ii).

   Enacted provision · exact public law section
   (a) Transmittal and Review of Records.— Section 865(e)(3)(B) of title 10, United States Code (article 65(e)(3)(B) of the Uniform Code of Military Justice), is amended— (1) by striking “impractical.—If the Judge Advocate General” and inserting the following: “impracticable.—” “(i) In general.— Subject to clause (ii), if the Judge Advocate General” ; (2) by striking “impractical” and inserting “impracticable”; and (3) by adding at the end the following new clause: “(ii) Cases referred by special trial counsel .— If a case was referred to trial by a special trial counsel, a special trial counsel shall determine if a rehearing is impracticable and shall dismiss the charges if the special trial counsel so determines.” .

   Effective date note
   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 provisions for delayed effect and applicability if regulations 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.

9. 2024

   Pub. L. 118–159 § 563(1) · 138 Stat. 1903

   1. Substituted · 10 U.S.C. § 865(b)(1)

      Pub. L. 118–159, § 563(1), substituted “forward—” for “forward”

   2. Inserted · 10 U.S.C. § 865(b)(1)

      Pub. L. 118–159, § 563(1), inserted subpar. (A) designation before “the record”

   3. Added · 10 U.S.C. § 865(b)(1)

      Pub. L. 118–159, § 563(1), added subpar. (B)

   Unresolved: Pub. L. 118–159 was not found in the local Statutes at Large index.

   Source evidence

   Code amendment note
   Subsec. (b)(1). Pub. L. 118–159, § 563(1), substituted “forward—” for “forward”, inserted subpar. (A) designation before “the record”, and added subpar. (B).

10. 2024

    Pub. L. 118–159 § 563(2)(A)(i) · 138 Stat. 1903

    Substituted · 10 U.S.C. § 865(b)(2)(A)

    Pub. L. 118–159, § 563(2)(A)(i), substituted “shall, upon written request of the accused” for “shall” in introductory provisions

    Unresolved: Pub. L. 118–159 was not found in the local Statutes at Large index.

    Source evidence

    Code amendment note
    Subsec. (b)(2)(A). Pub. L. 118–159, § 563(2)(A)(i), substituted “shall, upon written request of the accused” for “shall” in introductory provisions.

11. 2024

    Pub. L. 118–159 § 563(2)(A)(ii) · 138 Stat. 1903

    Struck · 10 U.S.C. § 865(b)(2)(A)(i)

    Pub. L. 118–159, § 563(2)(A)(ii), struck out “, upon request of the accused,” after “review the case and”

    Unresolved: Pub. L. 118–159 was not found in the local Statutes at Large index.

    Source evidence

    Code amendment note
    Subsec. (b)(2)(A)(i). Pub. L. 118–159, § 563(2)(A)(ii), struck out “, upon request of the accused,” after “review the case and”.

12. 2024

    Pub. L. 118–159 § 563(2)(A)(iii) · 138 Stat. 1903

    Struck · 10 U.S.C. § 865(b)(2)(A)(ii)

    Pub. L. 118–159, § 563(2)(A)(iii), struck out “upon written request of the accused,” before “forward a copy”

    Unresolved: Pub. L. 118–159 was not found in the local Statutes at Large index.

    Source evidence

    Code amendment note
    Subsec. (b)(2)(A)(ii). Pub. L. 118–159, § 563(2)(A)(iii), struck out “upon written request of the accused,” before “forward a copy”.

13. 2024

    Pub. L. 118–159 § 563(2)(B) · 138 Stat. 1903

    1. Substituted · 10 U.S.C. § 865(b)(2)(B)

       Pub. L. 118–159, § 563(2)(B), substituted “accused” for “accused—”

    2. Struck · 10 U.S.C. § 865(b)(2)(B)

       Pub. L. 118–159, § 563(2)(B), struck out cl. (i) designation before “waives”

    3. Struck · 10 U.S.C. § 865(b)(2)(B)

       Pub. L. 118–159, § 563(2)(B), struck out cl. (ii) which read as follows: “declines in writing the detailing of appellate defense counsel under subparagraph (A)(i).”

    Unresolved: Pub. L. 118–159 was not found in the local Statutes at Large index.

    Source evidence

    Code amendment note
    Subsec. (b)(2)(B). Pub. L. 118–159, § 563(2)(B), substituted “accused” for “accused—”, struck out cl. (i) designation before “waives”, and struck out cl. (ii) which read as follows: “declines in writing the detailing of appellate defense counsel under subparagraph (A)(i).”

15 of 25 references resolved to an enrolled provision · 1 partial · 9 unresolved