§872 — Title 10 Armed Forces | U.S. Code

Summary

An officer with special‑court authority must hold a hearing before lifting a suspended sentence that includes a bad‑conduct discharge or any general court‑martial sentence. A certified military lawyer may run the hearing, and the probationer may have a lawyer. Send the hearing record and recommendation to the officer with general‑court authority. If that officer vacates the suspension, any unserved part except a dismissal will be carried out. Vacating a dismissal needs the Secretary’s approval. Other suspended sentences can be vacated by whoever can convene the same kind of court.

Title 10, §872

Armed Forces — Source: USLM XML via OLRC

(a)Before the vacation of the suspension of a special court-martial sentence which as approved 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 alleged 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 recommendation of the officer having special court-martial jurisdiction shall be sent for action to the officer exercising general court-martial jurisdiction over the probationer. If the officer exercising general court-martial jurisdiction vacates the suspension, any unexecuted part of the sentence, except a dismissal, shall be executed, subject to applicable restrictions in section 857 of this title (article 57). The vacation of the suspension of a dismissal is not effective until approved by the Secretary concerned.

(c)The suspension of any other sentence may be vacated by any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence.

Notes & Related Subsidiaries

Historical and Revision Notes

Revised sectionSource (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), inserted “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.” 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 jurisdiction” 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 AmendmentAmendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing

Regulations

and provisions 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