10 USC § 871 - Art. 71. Execution of sentence; suspension of sentence

(a) If the sentence of the court-martial extends to death, that part of the sentence providing for death may not be executed until approved by the President. In such a case, the President may commute, remit, or suspend the sentence, or any part thereof, as he sees fit. That part of the sentence providing for death may not be suspended.

(b) If in the case of a commissioned officer, cadet, or midshipman, the sentence of a court-martial extends to dismissal, that part of the sentence providing for dismissal may not be executed until approved by the Secretary concerned or such Under Secretary or Assistant Secretary as may be designated by the Secretary concerned. In such a case, the Secretary, Under Secretary, or Assistant Secretary, as the case may be, may commute, remit, or suspend the sentence, or any part of the sentence, as he sees fit. In time of war or national emergency he may commute a sentence of dismissal to reduction to any enlisted grade. A person so reduced may be required to serve for the duration of the war or emergency and six months thereafter.

(c)

(1) If a sentence extends to death, dismissal, or a dishonorable or bad conduct discharge and if the right of the accused to appellate review is not waived, and an appeal is not withdrawn, under section 861 of this title (article 61), that part of the sentence extending to death, dismissal, or a dishonorable or bad-conduct discharge may not be executed until there is a final judgment as to the legality of the proceedings (and with respect to death or dismissal, approval under subsection (a) or (b), as appropriate). A judgment as to legality of the proceedings is final in such cases when review is completed by a Court of Criminal Appeals and—

(A) the time for the accused to file a petition for review by the Court of Appeals for the Armed Forces has expired and the accused has not filed a timely petition for such review and the case is not otherwise under review by that Court;

(B) such a petition is rejected by the Court of Appeals for the Armed Forces; or

(C) review is completed in accordance with the judgment of the Court of Appeals for the Armed Forces and—

(i) a petition for a writ of certiorari is not filed within the time limits prescribed by the Supreme Court;

(ii) such a petition is rejected by the Supreme Court; or

(iii) review is otherwise completed in accordance with the judgment of the Supreme Court.

(2) If a sentence extends to dismissal or a dishonorable or bad conduct discharge and if the right of the accused to appellate review is waived, or an appeal is withdrawn, under section 861 of this title (article 61), that part of the sentence extending to dismissal or a bad-conduct or dishonorable discharge may not be executed until review of the case by a judge advocate (and any action on that review) under section 864 of this title (article 64) is completed. Any other part of a court-martial sentence may be ordered executed by the convening authority or other person acting on the case under section 860 of this title (article 60) when approved by him under that section.

(d) The convening authority or other person acting on the case under section 860 of this title (article 60) may suspend the execution of any sentence or part thereof, except a death sentence.

Source

(Aug. 10, 1956, ch. 1041, 70A Stat. 62; Pub. L. 90–632, § 2(32),Oct. 24, 1968, 82 Stat. 1342; Pub. L. 98–209, § 5(e),Dec. 6, 1983, 97 Stat. 1399; Pub. L. 103–337, div. A, title IX, § 924(c)(1), (2),Oct. 5, 1994, 108 Stat. 2831.)

Historical and Revision Notes

Revised section	Source (U.S. Code)	Source (Statutes at Large)
871(a)
871(b)	50:658(a).
50:658(b).	May 5, 1950, ch. 169, § 1 (Art. 71), 64 Stat. 131.
871(c)	50:658(c).
871(d)	50:658(d).

In subsection (a), the word “may” is substituted for the word “shall”.

In subsection (b), the word “commissioned” is inserted for clarity. The word “may” is substituted for the word “shall” in the first sentence. The words “Secretary concerned” are substituted for the words “Secretary of the Department”. The words “who is” are omitted as surplusage.

In subsection (c), the word “may” is substituted for the word “shall”.

Amendments

1994—Subsec. (c)(1). Pub. L. 103–337substituted “Court of Criminal Appeals” for “Court of Military Review” and “Court of Appeals for the Armed Forces” for “Court of Military Appeals” wherever appearing.

1983—Subsec. (a). Pub. L. 98–209, § 5(e)(1), amended subsec. (a) generally, substituting provision that part of the court-martial sentence extending to death may not be executed without Presidential approval, and granting the President authority to commute, remit, or suspend the sentence, except that a death sentence may not be suspended, for provision that no sentence extending to death or involving a general or flag officer could be executed without Presidential approval, and authorizing the President to approve the sentence or any part, amount, or commuted form thereof, and suspend the execution of the sentence or any part thereof, except a death sentence.

Subsec. (b). Pub. L. 98–209, § 5(e)(2), substituted provision that where a court-martial sentence extends to dismissal of a commissioned officer, cadet, or midshipman, the dismissal may not be executed without approval by the Secretary concerned, or Under Secretary or Assistant Secretary designated by him, and authorizing such official to commute, remit, or suspend the sentence, or any part thereof, for provision that no dismissal of a commissioned officer (other than a general or flag officer), cadet or midshipman may be executed without such approval, and that such official could approve the sentence or such part, amount, or commuted form the sentence as he saw fit, and could suspend the execution of any part of the sentence.

Subsec. (c). Pub. L. 98–209, § 5(e)(3), amended subsec. (c) generally. Prior to amendment subsec. (c) read as follows: “No sentence which includes, unsuspended, a dishonorable or bad-conduct discharge, or confinement for one year or more, may be executed until affirmed by a Court of Military Review and, in cases reviewed by it, the Court of Military Appeals.”

Subsec. (d). Pub. L. 98–209, § 5(e)(3), amended subsec. (d) generally. Prior to amendment subsec. (d) read as follows: “All other court-martial sentences, unless suspended or deferred, may be ordered executed by the convening authority when approved by him. The convening authority may suspend the execution of any sentence, except a death sentence.”

1968—Subsec. (c). Pub. L. 90–632, § 2(32)(A), substituted “Court of Military Review” for “board of review”.

Subsec. (d). Pub. L. 90–632, § 2(32)(B), inserted reference to deferred court-martial sentences.

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.

Effective Date of 1968 Amendment

Amendments by Pub. L. 90–632effective first day of tenth month following October 1968, see section 4 ofPub. L. 90–632, set out as a note under section 801 of this title.