PRIA, Government Policy, Made Personal

Summary

When a part of a court-martial sentence that was carried out is later set aside or thrown out, the person must get back the rights, privileges, and property lost because of that carried-out part—unless a new trial or rehearing is ordered and the same punishment is given again. This does not apply to a carried-out dismissal or discharge. If a carried-out dishonorable or bad-conduct discharge is not re-imposed on retrial, the service secretary must replace it with an authorized administrative discharge unless the person must finish their enlistment. If a carried-out dismissal is not re-imposed, the secretary must replace it with an administrative discharge, and a dismissed commissioned officer may be reappointed by the President to the rank they likely would have reached. That reappointment does not need a vacancy, affects others’ promotions only as the President orders, and the time between dismissal and reappointment counts as actual service for pay and benefits. The President must make rules about pay and allowances for the period after the carried-out part is set aside.

Title 10, §875

Armed Forces, Source: USLM XML via OLRC

(a)Under such regulations as the President may prescribe, all rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved, except an executed dismissal or discharge, shall be restored unless a new trial or rehearing is ordered and such executed part is included in a sentence imposed upon the new trial or rehearing.

(b)If a previously executed sentence of dishonorable or bad-conduct discharge is not imposed on a new trial, the Secretary concerned shall substitute therefor a form of discharge authorized for administrative issuance unless the accused is to serve out the remainder of his enlistment.

(c)If a previously executed sentence of dismissal is not imposed on a new trial, the Secretary concerned shall substitute therefor a form of discharge authorized for administrative issue, and the commissioned officer dismissed by that sentence may be reappointed by the President alone to such commissioned grade and with such rank as in the opinion of the President that former officer would have attained had he not been dismissed. The reappointment of such a former officer shall be without regard to the existence of a vacancy and shall affect the promotion status of other officers only insofar as the President may direct. All time between the dismissal and the reappointment shall be considered as actual service for all purposes, including the right to pay and allowances.

(d)The President shall prescribe regulations, with such limitations as the President considers appropriate, governing eligibility for pay and allowances for the period after the date on which an executed part of a court-martial sentence is set aside.

Notes & Related Subsidiaries

Historical and Revision Notes

Revised sectionSource (U.S. Code)Source (Statutes at Large) 875(a)875(b)50:662(a).50:662(b).May 5, 1950, ch. 169, § 1 (Art. 75), 64 Stat. 132. 875(c)50:662(c). In subsections (b) and (c), the word “If” is substituted for the word “Where”. The word “imposed” is substituted for the word “sustained”. The words “Secretary concerned” are substituted for the words “Secretary of the Department”. In subsection (c), the word “issue” is substituted for the word “issuance”. The word “commissioned” is inserted for clarity. The words “grade and with such rank” are substituted for the words “rank and precedence”, since a person is appointed to a grade, not a position of precedence, and the word “rank” is the accepted military word denoting the general idea of precedence. The words “the existence of a” are substituted for the word “position”. The word “receive” is omitted as surplusage.

Editorial Notes

Amendments

2016—Subsec. (d). Pub. L. 114–328 added subsec. (d).

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.

Executive Documents

Delegation of Functions For delegation to Secretary of Homeland Security of certain authority vested in President by this section, see section 2(b) of Ex. Ord. No. 10637, Sept. 16, 1955, 20 F.R. 7025, as amended, set out as a note under section 301 of Title 3, The President.

§875 Art. 75. Restoration