The word “may” is substituted for the word “shall”.
Editorial Notes
References in Text
Subsection (c) of section 853a of this title, referred to in subsec. (b)(1), was redesignated subsec. (d) of section 853a of this title by Pub. L. 117–81, div. A, title V, § 539E(b)(1), Dec. 27, 2021, 135 Stat. 1701.
Section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022, referred to in subsecs. (c)(1)(E), (2)(A), (3), (d)(1)(B), is section 539E(e) of Pub. L. 117–81, which is set out as a note below.
Amendments
2021—Subsec. (b)(1). Pub. L. 117–81, § 1081(a)(14), substituted “subsection (c) of section 853a” for “subsection (d) of section 853a”.
Subsec. (c)(1)(E). Pub. L. 117–81, § 539E(c)(1)(A), added subpar. (E).
Subsec. (c)(2) to (6). Pub. L. 117–81, § 539E(c)(1)(B), added pars. (2) to (6) and struck out former pars. (2) to (4) which related to sentencing by military judge, sentencing by members, and sentence of confinement for life without eligibility for parole, respectively.
Subsec. (d)(1)(B). Pub. L. 117–81, § 539E(c)(4)(C), added subpar. (B). Former subpar. (B) redesignated (C).
Subsec. (d)(1)(C). Pub. L. 117–81, § 539E(c)(4)(D), struck out “, as determined in accordance with standards and procedures prescribed by the President” after “unreasonable”.
Pub. L. 117–81, § 539E(c)(4)(A), (B), redesignated subpar. (B) as (C).
2017—Subsec. (d)(1). Pub. L. 115–91, § 531(e)(1), inserted “and consistent with standards and procedures set forth in regulations prescribed by the President,” after “concerned,” in introductory provisions.
Subsec. (d)(1)(B). Pub. L. 115–91, § 531(e)(2), inserted “, as determined in accordance with standards and procedures prescribed by the President” before period at end.
2016—Pub. L. 114–328 amended section generally. Prior to amendment, section related to maximum and minimum sentencing limits.
2013—Pub. L. 113–66 substituted “Maximum and minimum limits” for “Maximum limits” in section catchline, designated existing provisions as subsec. (a), and added subsec. (b).
Statutory Notes and Related Subsidiaries
Establishment of Sentencing Parameters and Sentencing Criteria
Pub. L. 117–81, div. A, title V, § 539E(e), Dec. 27, 2021, 135 Stat. 1704, provided that:
“(1) In general.—Not later than two years after the date of the enactment of this Act [Dec. 27, 2021], the President shall prescribe regulations establishing sentencing parameters and sentencing criteria related to offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), in accordance with this subsection. Such parameters and criteria—
“(A)
shall cover sentences of confinement; and
“(B)
may cover lesser punishments, as the President determines appropriate.
“(2) Sentencing parameters.—Sentencing parameters established under paragraph (1) shall—
“(A) identify a delineated sentencing range for an offense that is appropriate for a typical violation of the offense, taking into consideration—
“(i)
the severity of the offense;
“(ii)
the guideline or offense category that would apply to the offense if the offense were tried in a United States district court;
“(iii)
any
military-specific sentencing factors;
“(iv)
the need for the sentencing parameter to be sufficiently broad to allow for individualized consideration of the offense and the accused; and
“(v)
any other relevant sentencing guideline.
“(B)
include no fewer than 5 and no more than 12 offense categories;
“(C)
assign such offense under this chapter [probably should be “
chapter 47 of title 10, United States Code (the
Uniform Code of Military Justice)”] to an offense category unless the offense is identified as unsuitable for sentencing parameters under paragraph (4)(F)(ii); and
“(D)
delineate the confinement range for each offense category by setting an upper confinement limit and a lower confinement limit.
“(3) Sentencing criteria.—
Sentencing criteria established under paragraph (1) shall identify offense-specific factors the
military judge should consider and any collateral effects of available punishments that may aid the
military judge in determining an appropriate sentence when there is no applicable sentencing parameter for a specific offense.
“(4) Military sentencing parameters and criteria board.—
“(A) In general.—
There is established within the
Department of Defense a board, to be known as the
‘Military Sentencing Parameters and Criteria Board’ (referred to in this subsection as the ‘Board’).
“(B) Voting members.—The Board shall have 5 voting members, as follows:
“(iii)
A trial judge of the Marine Corps, designated under regulations prescribed by the President, if the chief trial judges designated under
section 826(g) of title 10, United States Code (article 26(g) of the
Uniform Code of Military Justice), do not include a trial judge of the Marine Corps.
“(C) Nonvoting members.—
The Chief Judge of the Court of Appeals for the Armed Forces, the Chairman of the Joint Chiefs of Staff, and the General Counsel of the Department of Defense shall each designate one nonvoting member of the Board. The Secretary of Defense may appoint one additional nonvoting member of the Board at the Secretary’s discretion.
“(D) Chair and vice-chair.—
The Secretary of Defense shall designate one voting member as chair of the Board and one voting member as vice-chair.
“(E) Voting requirement.—
An affirmative vote of at least three members is required for any action of the Board under this subsection.
“(F) Duties of board.—The Board shall have the following duties:
“(i) As directed by the Secretary of Defense, the Board shall submit to the President for approval—
“(I)
sentencing parameters for all offenses under
chapter 47 of title 10, United States Code (the
Uniform Code of Military Justice) (other than offenses that the Board identifies as unsuitable for sentencing parameters in accordance with clause (ii)); and
“(II)
sentencing criteria to be used by
military judges in determining appropriate sentences for offenses that are identified as unsuitable for sentencing parameters in accordance with clause (ii).
“(ii) Identify each offense under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), that is unsuitable for sentencing parameters. The Board shall identify an offense as unsuitable for sentencing parameters if—
“(I)
the nature of the offense is indeterminate and unsuitable for categorization; and
“(II)
there is no similar criminal offense under the laws of the United States or the laws of the District of Columbia.
“(iv)
In addition to establishing parameters for sentences of confinement under clause (i)(I), the Board shall consider the appropriateness of establishing sentencing parameters for punitive discharges, fines, reductions, forfeitures, and other lesser punishments authorized under
chapter 47 of title 10, United States Code (the
Uniform Code of Military Justice).
“(v) The Board shall regularly—
“(I)
review, and propose revision to, in consideration of comments and data coming to the Board’s attention, the sentencing parameters and sentencing criteria prescribed under paragraph (1); and
“(II)
submit to the President, through the Secretary of Defense, proposed amendments to the sentencing parameters and sentencing criteria, together with statements explaining the basis for the proposed amendments.
“(vi)
The Board shall develop means of measuring the degree to which applicable sentencing, penal, and correctional practices are effective with respect to the sentencing factors and policies set forth in this section.
“(vii)
In fulfilling its duties and in exercising its powers, the Board shall consult authorities on, and individual and institutional representatives of, various aspects of the
military criminal justice system. The Board may establish separate advisory groups consisting of individuals with current or recent experience in command and in senior enlisted positions, individuals with experience in the trial of courts-martial, and such other groups as the Board deems appropriate.
“(viii)
The Board shall submit to the President, through the Secretary of Defense, proposed amendments to the rules for courts-martial with respect to sentencing proceedings and maximum punishments, together with statements explaining the basis for the proposed amendments.”
Guidelines on Sentences for Offenses Committed Under the Uniform Code of Military Justice
Pub. L. 116–92, div. A, title V, § 537, Dec. 20, 2019, 133 Stat. 1363, which required the Secretary of Defense to develop nonbinding guidelines on sentences for offenses under chapter 47 of this title, not later than one year after date on which first report of Military Justice Review Panel is submitted to Committees on Armed Services of Senate and House of Representatives pursuant to section 946(f)(5) of this title, was repealed by Pub. L. 117–81, div. A, title V, § 539E(g), Dec. 27, 2021, 135 Stat. 1706. See section 539E(e) of Pub. L. 117–81, set out as a note above.
Executive Documents
Prescription of Method of Designating a Member of the Military Sentencing Parameters and Criteria Board
Memorandum of President of the United States, June 21, 2022, 87 F.R. 37971, provided:
Memorandum for the Secretary of Defense
By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 539E(e)(4)(B) of the National Defense Authorization Act for Fiscal Year 2022, Public Law 117–81, 135 Stat. 1541, 1700 (2021) [set out in a note above], I hereby order as follows:
(1) If the chief trial judges designated under article 26(g) of the Uniform Code of Military Justice, 10 U.S.C. 826(g), do not include a trial judge of the Navy, then the Judge Advocate General of the Navy shall designate as a voting member of the Military Sentencing Parameters and Criteria Board (Board) either the Chief Judge of the Department of the Navy or a Navy trial judge assigned to the Navy and Marine Corps Trial Judiciary.
(2) If the chief trial judges designated under article 26(g) of the Uniform Code of Military Justice, 10 U.S.C. 826(g), do not include a trial judge of the Marine Corps, then the Staff Judge Advocate to the Commandant of the Marine Corps, in consultation with the Judge Advocate General of the Navy, shall designate as a voting member of the Board a Marine Corps trial judge assigned to the Navy and Marine Corps Trial Judiciary.
This memorandum constitutes the regulations provided for in subsections (ii) and (iii) of section 539E(e)(4)(B) of the National Defense Authorization Act for Fiscal Year 2022.
You are authorized and directed to publish this memorandum in the Federal Register.
