(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 and may be taken only with respect to a qualifying offense.
(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 by setting aside a finding of guilty thereto, but may take such action with respect to a qualifying offense; or
(ii) may not 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, but may take such action with respect to a qualifying offense.
(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, 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) of
section 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 pursuant to
section 856(b) of this title (article 56(b)) 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).
| 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
2014—Subsec. (c)(3)(A). Pub. L. 113–291, § 531(a)(1)(A), inserted “and may be taken only with respect to a qualifying offense” after “is not required”.
Subsec. (c)(3)(B)(i). Pub. L. 113–291, § 531(a)(1)(B), struck out “, other than a charge or specification for a qualifying offense,” after “specification” and inserted “, but may take such action with respect to a qualifying offense” before semicolon.
Subsec. (c)(3)(B)(ii). Pub. L. 113–291, § 531(a)(1)(C), struck out “, other than a charge or specification for a qualifying offense,” after “to a charge or specification” and inserted “, but may take such action with respect to a qualifying offense” before period.
Subsec. (c)(3)(C). Pub. L. 113–291, § 531(a)(2), struck out “(other than a qualifying offense)” after “offense”.
Subsec. (c)(4)(C)(ii). Pub. L. 113–291, § 531(a)(5), inserted “pursuant to section 856(b) of this title (article 56(b))” after “applies”.
Subsec. (d)(2)(A)(i). Pub. L. 113–291, § 531(a)(3)(A)(i), inserted “, if applicable” before semicolon.
Subsec. (d)(2)(A)(ii). Pub. L. 113–291, § 531(a)(3)(A)(ii), struck out “if applicable,” before “the date”.
Subsec. (d)(5). Pub. L. 113–291, § 531(a)(3)(B), substituted “harm” for “loss”.
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)(2), added subsec. (d). Former subsec. (d) redesignated (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), redesignated subsec. (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), redesignated subsec. (e) as (f).
1996—Subsec. (b)(1). Pub. L. 104–106 inserted 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. 98–209 amended 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, as amended by Pub. L. 113–291, div. A, title V, § 531(g)(2)(A), Dec. 19, 2014, 128 Stat. 3365, provided that:
“(A) Except as provided in subparagraph (B), 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.
“(B) With respect to the findings and sentence of a court-martial that includes both a conviction for an offense committed before the effective date specified in subparagraph (A) and a conviction for an offense committed on or after that effective date, the convening authority shall have the same authority to take action on such findings and sentence as was in effect on the day before such effective date, except with respect to a mandatory minimum sentence under
section 856(b) of title 10, United States Code (article 56(b) of the Uniform Code of Military Justice).”
[Pub. L. 113–291, div. A, title V, § 531(g)(2)(B), Dec. 19, 2014, 128 Stat. 3366, provided that:
“The amendments made by subparagraph (A) [amending
section 1702(d)(2) of Pub. L. 113–66, set out above] shall not apply to the findings and sentence of a court-martial with respect to which the convening authority has taken action before the date that is 30 days after the date of the enactment of this Act [Dec. 19, 2014].”
]
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. 99–661 effective 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 of Pub. L. 99–661, set out as a note under section 802 of this title.
Effective Date of 1983 Amendment
Amendment 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.