§ 867. Art. 67. Review by the Court of Appeals for the Armed Forces

3,593 words·~16 min read·/usc/title-10/section-867

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(a)The Court of Appeals for the Armed Forces shall review the record in—

(1)all cases in which the sentence, as affirmed by a Court of Criminal Appeals, extends to death;

(2)all cases reviewed by a Court of Criminal Appeals which the Judge Advocate General, after appropriate notification to the other Judge Advocates General and the Staff Judge Advocate to the Commandant of the Marine Corps, orders sent to the Court of Appeals for the Armed Forces for review; and

(3)all cases reviewed by a Court of Criminal Appeals in which, upon petition of the accused and on good cause shown, the Court of Appeals for the Armed Forces has granted a review.

(b)The accused may petition the Court of Appeals for the Armed Forces for review of a decision of a Court of Criminal Appeals within 60 days from the earlier of—

(1)the date on which the accused is notified of the decision of the Court of Criminal Appeals; or

(2)the date on which a copy of the decision of the Court of Criminal Appeals, after being served on appellate counsel of record for the accused (if any), is deposited in the United States mails for delivery by first-class certified mail to the accused at an address provided by the accused or, if no such address has been provided by the accused, at the latest address listed for the accused in his official service record.

The Court of Appeals for the Armed Forces shall act upon such a petition promptly in accordance with the rules of the court.

(1)In any case reviewed by it, the Court of Appeals for the Armed Forces may act only with respect to—

(A)the findings and sentence set forth in the entry of judgment, as affirmed or set aside as incorrect in law by the Court of Criminal Appeals;

(B)a decision, judgment, or order by a military judge, as affirmed or set aside as incorrect in law by the Court of Criminal Appeals; or

(C)the findings set forth in the entry of judgment, as affirmed, dismissed, set aside, or modfied by the Court of Criminal Appeals as incorrect in fact under section 866(d)(1)(B) of this title (article 66(d)(1)(B)).

(2)In a case which the Judge Advocate General orders sent to the Court of Appeals for the Armed Forces, that action need be taken only with respect to the issues raised by him.

(3)In a case reviewed upon petition of the accused, that action need be taken only with respect to issues specified in the grant of review.

(4)The Court of Appeals for the Armed Forces shall take action only with respect to matters of law.

(d)If the Court of Appeals for the Armed Forces sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If it sets aside the findings and sentence and does not order a rehearing, it shall order that the charges be dismissed.

(e)After it has acted on a case, the Court of Appeals for the Armed Forces may direct the Judge Advocate General to return the record to the Court of Criminal Appeals for further review in accordance with the decision of the court. Otherwise, unless there is to be further action by the President or the Secretary concerned, the Judge Advocate General shall instruct the convening authority to take action in accordance with that decision. If the court has ordered a rehearing, but the convening authority finds a rehearing impracticable, he may dismiss the charges. Notwithstanding the preceding sentence, if a case was referred to trial by a special trial counsel, a special trial counsel shall determine if a rehearing is impracticable and shall dismiss the charges if the special trial counsel so determines.

(Aug. 10, 1956, ch. 1041, 70A Stat. 60; Pub. L. 88–426, title IV, § 403(j), Aug. 14, 1964, 78 Stat. 434; Pub. L. 90–340, § 1, June 15, 1968, 82 Stat. 178; Pub. L. 90–632, § 2(28), Oct. 24, 1968, 82 Stat. 1342; Pub. L. 96–579, § 12(a), Dec. 23, 1980, 94 Stat. 3369; Pub. L. 97–81, § 5, Nov. 20, 1981, 95 Stat. 1088; Pub. L. 97–295, § 1(12), Oct. 12, 1982, 96 Stat. 1289; Pub. L. 98–209, §§ 7(d), 9(a), 10(c)(2), 13(d), Dec. 6, 1983, 97 Stat. 1402, 1404, 1406, 1408; Pub. L. 100–26, § 7(a)(2), Apr. 21, 1987, 101 Stat. 275;

Pub. L. 100–456, div. A, title VII, § 722(a), (c), Sept. 29, 1988, 102 Stat. 2002, 2003; Pub. L. 101–189, div. A, title XIII, § 1301(a), Nov. 29, 1989, 103 Stat. 1569; Pub. L. 103–337, div. A, title IX, § 924(c)(1), (2), (4)(B), Oct. 5, 1994, 108 Stat. 2831, 2832; Pub. L. 114–328, div. E, title LIX, § 5331, Dec. 23, 2016, 130 Stat. 2934; Pub. L. 116–283, div. A, title V, § 542(c), Jan. 1, 2021, 134 Stat. 3612; Pub. L. 117–81, div. A, title V, § 539A(c), Dec. 27, 2021, 135 Stat. 1699.)

In subsection (a)(1), the word “is” is substituted for the words “is hereby established”. The words “all” and “which shall be” are omitted as surplusage. The word “consists” is substituted for the words “shall consist”. The word “civil” is substituted for the word “civilian”. The word “may” is substituted for the word “shall” before the words “be appointed”. The word “is” is substituted for the word “shall” before the words “any person”. The words “is entitled to” are substituted for the words “shall receive”.

The word “is” is substituted for the words “shall be” in the fourth sentence. The word “may” is substituted for the words “shall have power to * * * to”. The word “does” is substituted for the word “shall” in the next to the last sentence. In the last sentence, the words “is entitled * * * to” are substituted for the word “shall”. The word “outside” is substituted for the words “at a place other than his official station. The official station of such judges for such purpose shall be”.

The words “also” and “actually” are omitted as surplusage.

In subsection (a)(2), the words “February 28, 1951,” are substituted for the words “the effective date of this subdivision”. The word “shall” in the first sentence, and the word “shall” before the word “expire” in the second sentence, are omitted as surplusage. The word “before” is substituted for the words “prior to”. The word “may” is substituted for the word “shall” before the words “be appointed”.

In subsection (a)(3), the word “for” is substituted for the words “upon the ground of”.

In subsection (b), the words “the following cases” are omitted as surplusage.

In subsections

(b)and (d), the word “sent” is substituted for the word “forwarded”.

In subsection (c), the word “when” is inserted after the word “time”. The words “a grant of” are omitted as surplusage.

In subsection (d), the word “may” is substituted for the word “shall” in the first sentence.

In subsection (f), the words “Secretary concerned” are substituted for the words “Secretary of the Department”.

In subsection (g), the words “of the armed forces” are omitted as surplusage. The words “policies as to sentences” are substituted for the words “sentence policies”. The word “considered” is substituted for the word “deemed”. The words “Secretaries of the military departments, and the Secretary of the Treasury” are substituted for the words “Secretaries of the Departments”.

1982 Act

In subsection (d), the words “Court of Military Review” are substituted for “board of review” because of section 3(b) of the Military Justice Act of 1968 (Pub. L. 90–632, Oct. 24, 1968, 82 Stat. 1343).

The change in subsection

(g)reflects the transfer of functions from the Secretary of the Treasury to the Secretary of Transportation under 49:1655(b).