PRIA, Government Policy, Made Personal

Summary

Every summary court-martial that ends with a guilty finding must get a written review by a military lawyer called a judge advocate. The judge advocate must not review any case where they acted as an accuser, a member of the court, a military judge, counsel, or did other prosecution or defense work. The written review must say whether the court had power over the person and the offense, whether the charge actually describes a crime, whether the sentence was within legal limits, answer any written errors the accused raised, and, if sent on for action, recommend what should be done and say if the law requires correction. If the reviewer recommends correction or rules require it, the trial record goes to the officer who had court-martial authority then (or that officer’s successor). That officer can approve or disapprove findings or the sentence, reduce or suspend the sentence, order a rehearing unless the evidence was too weak, or dismiss the charges. If a rehearing is later found impractical, the charges must be dismissed. If the judge advocate says the law requires correction and the officer does less than the judge advocate recommended, the record goes to the Judge Advocate General for review under section 869 (article 69).

Title 10, §864

Armed Forces, Source: USLM XML via OLRC

(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. 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)Record.—

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; or

(2)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 the Judge Advocate General for review under section 869 of this title (article 69).

Notes & Related Subsidiaries

Historical and Revision Notes

Revised sectionSource (U.S. Code)Source (Statutes at Large) 86450:651.May 5, 1950, ch. 169, § 1 (Art. 64), 64 Stat. 128. The word “may” is substituted for the word “shall”. The word “is” is substituted for the words “shall constitute”.

Editorial Notes

Amendments

2017—Subsec. (a). Pub. L. 115–91 substituted “(a) In General.—” for “(a) (a) In General.—”. 2016—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. 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.” Subsec. (b). Pub. L. 114–328, § 5328(b)(2)(A), inserted heading. 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”. 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)).” 1983—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.

Statutory Notes and Related Subsidiaries

Effective Date

of 2017 AmendmentAmendment 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.

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.

Effective Date

of 1983 AmendmentAmendment by Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, but not to apply to any case in which the findings and sentence were adjudged by a court-martial before that date, and the proceedings in any such case to be held in the same manner and with the same effect as if such

Amendments

had not been enacted, see section 12(a)(1), (4) of Pub. L. 98–209, set out as a note under section 801 of this title.

§864 Art. 64. Judge Advocate Review of Finding of Guilty in Summary Court-martial

Summary

Title 10, §864

Notes & Related Subsidiaries

Historical and Revision Notes

Editorial Notes

Amendments

Regulations

Statutory Notes and Related Subsidiaries

Effective Date

Amendments

Effective Date

Regulations

Effective Date

Amendments

Citations & Metadata