10 U.S. Code § 860 - Art. 60. Action by the convening authority

(a) The findings and sentence of a court-martial shall be reported promptly to the convening authority after the announcement of the sentence.
(b)
(1) The accused may submit to the convening authority matters for consideration by the convening authority with respect to the findings and the sentence. Any such submission shall be in writing. Except in a summary court-martial case, such a submission shall be made within 10 days after the accused has been given an authenticated record of trial and, if applicable, the recommendation of the staff judge advocate or legal officer under subsection (d). In a summary court-martial case, such a submission shall be made within seven days after the sentence is announced.
(2) If the accused shows that additional time is required for the accused to submit such matters, the convening authority or other person taking action under this section, for good cause, may extend the applicable period under paragraph (1) for not more than an additional 20 days.
(3) In a summary court-martial case, the accused shall be promptly provided a copy of the record of trial for use in preparing a submission authorized by paragraph (1).
(4) The accused may waive his right to make a submission to the convening authority under paragraph (1). Such a waiver must be made in writing and may not be revoked. For the purposes of subsection (c)(2), the time within which the accused may make a submission under this subsection shall be deemed to have expired upon the submission of such a waiver to the convening authority.
(c)
(1) The authority under this section to modify the findings and sentence of a court-martial is a matter of command prerogative involving the sole discretion of the convening authority. Under regulations of the Secretary concerned, a commissioned officer commanding for the time being, a successor in command, or any person exercising general court-martial jurisdiction may act under this section in place of the convening authority.
(2) Action on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section. Subject to regulations of the Secretary concerned, such action may be taken only after consideration of any matters submitted by the accused under subsection (b) or after the time for submitting such matters expires, whichever is earlier. The convening authority or other person taking such action, in his sole discretion, may approve, disapprove, commute, or suspend the sentence in whole or in part.
(3) Action on the findings of a court-martial by the convening authority or other person acting on the sentence is not required. However, such person, in his sole discretion, may—
(A) dismiss any charge or specification by setting aside a finding of guilty thereto; or
(B) change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification.
(d) Before acting under this section on any general court-martial case or any special court-martial case that includes a bad-conduct discharge, the convening authority or other person taking action under this section shall obtain and consider the written recommendation of his staff judge advocate or legal officer. The convening authority or other person taking action under this section shall refer the record of trial to his staff judge advocate or legal officer, and the staff judge advocate or legal officer shall use such record in the preparation of his recommendation. The recommendation of the staff judge advocate or legal officer shall include such matters as the President may prescribe by regulation and shall be served on the accused, who may submit any matter in response under subsection (b). Failure to object in the response to the recommendation or to any matter attached to the recommendation waives the right to object thereto.
(e)
(1) The convening authority or other person taking action under this section, in his sole discretion, may order a proceeding in revision or a rehearing.
(2) A proceeding in revision may be ordered if there is an apparent error or omission in the record or if the record shows improper or inconsistent action by a court-martial with respect to the findings or sentence that can be rectified without material prejudice to the substantial rights of the accused. In no case, however, may a proceeding in revision—
(A) reconsider a finding of not guilty of any specification or a ruling which amounts to a finding of not guilty;
(B) reconsider a finding of not guilty of any charge, unless there has been a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation of some article of this chapter; or
(C) increase the severity of the sentence unless the sentence prescribed for the offense is mandatory.
(3) A rehearing may be ordered by the convening authority or other person taking action under this section if he disapproves the findings and sentence and states the reasons for disapproval of the findings. If such person disapproves the findings and sentence and does not order a rehearing, he shall dismiss the charges. A rehearing as to the findings may not be ordered where there is a lack of sufficient evidence in the record to support the findings. A rehearing as to the sentence may be ordered if the convening authority or other person taking action under this subsection disapproves the sentence.

Source

(Aug. 10, 1956, ch. 1041, 70A Stat. 57; Pub. L. 98–209, § 5(a)(1),Dec. 6, 1983, 97 Stat. 1395; Pub. L. 99–661, div. A, title VIII, § 806(a)–(c), Nov. 14, 1986, 100 Stat. 3908, 3909; Pub. L. 104–106, div. A, title XI, § 1132,Feb. 10, 1996, 110 Stat. 464; Pub. L. 113–66, div. A, title XVII, §§ 1702(b), (c)(1), 1706,Dec. 26, 2013, 127 Stat. 955–957, 960.)
Amendment of Section

Pub. L. 113–66, div. A, title XVII, § 1702(b), (c)(1), (d)(2),Dec. 26, 2013, 127 Stat. 955–958, provided that, effective 180 days after Dec. 26, 2013, and applicable with respect to offenses committed under this chapter on or after that effective date, this section is amended: (1) in subsection (b)(2), by striking “or other person taking action under this section” and inserting “or another person authorized to act under this section”; (2) by amending subsection (c) to read as follows:
(c)(1) Under regulations of the Secretary concerned, a commissioned officer commanding for the time being, a successor in command, or any person exercising general court-martial jurisdiction may act under this section in place of the convening authority.
(2)(A) Action on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section. Subject to regulations of the Secretary concerned, such action may be taken only after consideration of any matters submitted by the accused under subsection (b) or after the time for submitting such matters expires, whichever is earlier.
(B) Except as provided in paragraph (4), the convening authority or another person authorized to act under this section may approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in part.
(C) If the convening authority or another person authorized to act under this section acts to disapprove, commute, or suspend, in whole or in part, the sentence of the court-martial for an offense (other than a qualifying offense), the convening authority or other person shall provide, at that same time, a written explanation of the reasons for such action. The written explanation shall be made a part of the record of the trial and action thereon.
(3)(A) Action on the findings of a court-martial by the convening authority or by another person authorized to act under this section is not required.
(B) If the convening authority or another person authorized to act under this section acts on the findings of a court-martial, the convening authority or other person—
(i) may not dismiss any charge or specification, other than a charge or specification for a qualifying offense, by setting aside a finding of guilty thereto; or
(ii) may not change a finding of guilty to a charge or specification, other than a charge or specification for a qualifying offense, to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification.
(C) If the convening authority or another person authorized to act under this section acts on the findings to dismiss or change any charge or specification for an offense (other than a qualifying offense), the convening authority or other person shall provide, at that same time, a written explanation of the reasons for such action. The written explanation shall be made a part of the record of the trial and action thereon.
(D)(i) In this subsection, the term “qualifying offense” means, except in the case of an offense excluded pursuant to clause (ii), an offense under this chapter for which—
(I) the maximum sentence of confinement that may be adjudged does not exceed two years; and
(II) the sentence adjudged does not include dismissal, a dishonorable or bad-conduct discharge, or confinement for more than six months.
(ii) Such term does not include any of the following:
(I) An offense under subsection (a) or (b) ofsection 920 of this title (article 120).
(II) An offense under section 920b or 925 of this title (articles 120b and 125).
(III) Such other offenses as the Secretary of Defense may specify by regulation.
(4)(A) Except as provided in subparagraph (B) or (C), the convening authority or another person authorized to act under this section may not disapprove, commute, or suspend in whole or in part an adjudged sentence of confinement for more than six months or a sentence of dismissal, dishonorable discharge, or bad conduct discharge.
(B) Upon the recommendation of the trial counsel, in recognition of the substantial assistance by the accused in the investigation or prosecution of another person who has committed an offense, the convening authority or another person authorized to act under this section shall have the authority to disapprove, commute, or suspend the adjudged sentence in whole or in part, even with respect to an offense for which a mandatory minimum sentence exists.
(C) If a pre-trial agreement has been entered into by the convening authority and the accused, as authorized by Rule for Courts–Martial 705, the convening authority or another person authorized to act under this section shall have the authority to approve, disapprove, commute, or suspend a sentence in whole or in part pursuant to the terms of the pre-trial agreement, subject to the following limitations for convictions of offenses that involve a mandatory minimum sentence:
(i) If a mandatory minimum sentence of a dishonorable discharge applies to an offense for which the accused has been convicted, the convening authority or another person authorized to act under this section may commute the dishonorable discharge to a bad conduct discharge pursuant to the terms of the pre-trial agreement.
(ii) Except as provided in clause (i), if a mandatory minimum sentence applies to an offense for which the accused has been convicted, the convening authority or another person authorized to act under this section may not disapprove, otherwise commute, or suspend the mandatory minimum sentence in whole or in part, unless authorized to do so under subparagraph (B).
(3) in subsection (d), by striking “or other person taking action under this section” the first place it appears and inserting “or another person authorized to act under this section”; and (4) in subsection (e)— (A) in paragraph (1), by striking “or other person taking action under this section, in his sole discretion,” and inserting “or another person authorized to act under this section”; and (B) in paragraph (3), by striking “or other person taking action under this section” and inserting “or another person authorized to act under this section”. Pub. L. 113–66, div. A, title XVII, § 1706,Dec. 26, 2013, 127 Stat. 960, provided that this section, as amended by section 1702 ofPub. L. 113–66, is further amended: (1) in subsection (b)— (A) in paragraph (1), by striking “subsection (d)” and inserting “subsection (e)”; and (B) by adding at the end the following new paragraph:
(5) The convening authority or other person taking action under this section shall not consider under this section any submitted matters that relate to the character of a victim unless such matters were presented as evidence at trial and not excluded at trial.
(2) by redesignating subsections (d) and (e) assubsections (e) and (f), respectively; and (3) by inserting after subsection (c) the following new subsection:
(d)(1) In any case in which findings and sentence have been adjudged for an offense that involved a victim, the victim shall be provided an opportunity to submit matters for consideration by the convening authority or by another person authorized to act under this section before the convening authority or such other person takes action under this section.
(2)(A) Except as provided in subparagraph (B), the submission of matters under paragraph (1) shall be made within 10 days after the later of—
(i) the date on which the victim has been given an authenticated record of trial in accordance with section 854 (e) of this title (article 54(e)); and
(ii) if applicable, the date on which the victim has been given the recommendation of the staff judge advocate or legal officer under subsection (e).
(B) In the case of a summary court-martial, the submission of matters under paragraph (1) shall be made within seven days after the date on which the sentence is announced.
(3) If a victim shows that additional time is required for submission of matters under paragraph (1), the convening authority or other person taking action under this section, for good cause, may extend the submission period under paragraph (2) for not more than an additional 20 days.
(4) A victim may waive the right under this subsection to make a submission to the convening authority or other person taking action under this section. Such a waiver shall be made in writing and may not be revoked. For the purposes of subsection (c)(2), the time within which a victim may make a submission under this subsection shall be deemed to have expired upon the submission of such waiver to the convening authority or such other person.
(5) In this section, the term “victim” means a person who has suffered a direct physical, emotional, or pecuniary loss as a result of a commission of an offense under this chapter (the Uniform Code of Military Justice) and on which the convening authority or other person authorized to take action under this section is taking action under this section.
See 2013 Amendment notes below.

Historical and Revision Notes
Revised section Source (U.S. Code) Source (Statutes at Large)
860 50:647. May 5, 1950, ch. 169, § 1 (Art. 60), 64 Stat. 127.

The word “a” is substituted for the word “every”. The word “by” before the words “any officer” is omitted as surplusage. The word “person” is substituted for the word “officer” before the words “who convened”, since, under sections 823 and 824 of this title (articles 23 and 24), noncommissioned officers who are “officers in charge” may convene special and summary courts-martial.
Amendments

2013—Subsec. (b)(1). Pub. L. 113–66, § 1706(c), substituted “subsection (e)” for “subsection (d)”.
Subsec. (b)(2). Pub. L. 113–66, § 1702(c)(1)(A), substituted “or another person authorized to act under this section” for “or other person taking action under this section”.
Subsec. (b)(5). Pub. L. 113–66, § 1706(b), added par. (5).
Subsec. (c). Pub. L. 113–66, § 1702(b), amended subsec. (c) generally. Prior to amendment, text related to the command prerogative of the convening authority to modify the findings and sentence of a court-martial.
Subsec. (d). Pub. L. 113–66, § 1706(a), added subsec. (d) and redesignated former subsec. (d) as (e).
Pub. L. 113–66, § 1702(c)(1)(B), substituted “or another person authorized to act under this section” for “or other person taking action under this section” in first sentence.
Subsec. (e). Pub. L. 113–66, § 1706(a)(1), redesignatedsubsec. (d) as (e). Former subsec. (e) redesignated (f).
Subsec. (e)(1). Pub. L. 113–66, § 1702(c)(1)(C), substituted “or another person authorized to act under this section” for “or other person taking action under this section, in his sole discretion,”.
Subsec. (e)(3). Pub. L. 113–66, § 1702(c)(1)(D), substituted “or another person authorized to act under this section” for “or other person taking action under this section”.
Subsec. (f). Pub. L. 113–66, § 1706(a)(1), redesignatedsubsec. (e) as (f).
1996—Subsec. (b)(1). Pub. L. 104–106inserted after first sentence “Any such submission shall be in writing.”
1986—Subsec. (b)(1). Pub. L. 99–661, § 806(a)(3), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “Within 30 days after the sentence of a general court-martial or of a special court-martial which has adjudged a bad-conduct discharge has been announced, the accused may submit to the convening authority matters for consideration by the convening authority with respect to the findings and the sentence. In the case of all other special courts-martial, the accused may make such a submission to the convening authority within 20 days after the sentence is announced. In the case of all summary courts-martial the accused may make such a submission to the convening authority within seven days after the sentence is announced. If the accused shows that additional time is required for the accused to submit such matters, the convening authority or other person taking action under this section, for good cause, may extend the period—
“(A) in the case of a general court-martial or a special court-martial which has adjudged a bad-conduct discharge, for not more than an additional 20 days; and
“(B) in the case of all other courts-martial, for not more than an additional 10 days.”
Subsec. (b)(2). Pub. L. 99–661, § 806(a)(2), (3), added par. (2). Former par. (2) redesignated (3).
Subsec. (b)(3). Pub. L. 99–661, § 806(a)(1), (2), redesignated par. (2) as (3), inserted a comma after “case”, and struck out former par. (3) which read as follows: “In no event shall the accused in any general or special court-martial case have less than a seven-day period after the day on which a copy of the authenticated record of trial has been given to him within which to make a submission under paragraph (1). The convening authority or other person taking action on the case, for good cause, may extend this period for up to an additional 10 days.”
Subsec. (c)(2). Pub. L. 99–661, § 806(b), struck out “and, if applicable, under subsection (d),” after “under subsection (b)”.
Subsec. (d). Pub. L. 99–661, § 806(c), substituted “who may submit any matter in response under subsection (b)” for “who shall have five days from the date of receipt in which to submit any matter in response. The convening authority or other person taking action under this section, for good cause, may extend that period for up to an additional 20 days.”
1983—Pub. L. 98–209amended section generally, substituting “Action by the convening authority” for “Initial action on the record” as section catchline, and, in text, substituting new provision for provision that after a trial by court-martial the record had to be forwarded to the convening authority, and action thereon could be taken by the person who convened the court, a commissioned officer commanding for the time being, a successor in command, or any officer exercising general court-martial jurisdiction.
Effective Date of 2013 Amendment

Pub. L. 113–66, div. A, title XVII, § 1702(d)(2),Dec. 26, 2013, 127 Stat. 958, provided that: “The amendments made by subsection (b) and paragraphs (1) and (2) of subsection (c) [amending this section and section 871 of this title] shall take effect 180 days after the date of the enactment of this Act [Dec. 26, 2013] and shall apply with respect to offenses committed under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), on or after that effective date.”
Effective Date of 1986 Amendment

Pub. L. 99–661, div. A, title VIII, § 806(c) [(d)], Nov. 14, 1986, 100 Stat. 3909, provided that: “The amendments made by this section [amending this section] shall apply in cases in which the sentence is adjudged on or after the effective date of this title.”
Title VIII of Pub. L. 99–661effective the earlier of (1) the last day of the 120-day period beginning on Nov. 14, 1986; or (2) the date specified in an Executive order for such amendment to take effect, see section 808 ofPub. L. 99–661, set out as a note under section 802 of this title.
Effective Date of 1983 Amendment

Amendment by Pub. L. 98–209effective 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) ofPub. L. 98–209, set out as a note under section 801 of this title.

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32 CFR - National Defense

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