10 U.S.C. § 1521

Posthumous commissions

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(a) The President may issue, or have issued, an appropriate commission in the name of a member of the armed forces who, after September 8, 1939—(1) was appointed to a commissioned grade but was unable to accept the appointment because of death;(2) successfully completed the course at an officers’ training school and was recommended for appointment to a commissioned grade by the commanding officer or officer in charge of the school but was unable to accept the appointment because of death; or(3) was officially recommended for appointment or promotion to a commissioned grade but was unable to accept the promotion or appointment because of death.(b) A commission issued under subsection (a) shall issue as of the date of the appointment, recommendation, or official recommendation, as the case may be, and the member’s name shall be carried on the records of the military or executive department concerned as if he had served in the grade, and branch if any, in which posthumously commissioned, from the date of the appointment, recommendation, or official recommendation to the date of his death.(c) A commission issued under subsection (a) in connection with the promotion of a deceased member to a higher commissioned grade shall require certification by the Secretary concerned that, at the time of death of the member, the member was qualified for appointment to that higher grade.(Aug. 10, 1956, ch. 1041, 70A Stat. 115; Pub. L. 106–398, § 1 [[div. A], title V, § 505], Oct. 30, 2000, 114 Stat. 1654, 1654A–102; Pub. L. 110–417, [div. A], title V, § 502(a), Oct. 14, 2008, 122 Stat. 4433.)

Historical and Revision Notes
Revised section	Source (U.S. Code)	Source (Statutes at Large)
1521(a)	10:491a (words before semicolon). 10:491b (words before semicolon). 10:491c (words before semicolon).	July 28, 1942, ch. 528, §§ 1–3, 56 Stat. 722, 723; July 17, 1953, ch. 220, § 1(a)–(c), 67 Stat. 176.
	34:285b (words before semicolon).
	34:285c (words before semicolon).
	34:285d (words before semicolon).
1521(b)	10:491a (words after semicolon).
	10:491b (words after semicolon).
	10:491c (words after semicolon).
	34:285b (words after semicolon).
	34:285c (words after semicolon).
	34:285d (words after semicolon).

In subsection (a), the words “a member of” are substituted for the words “any person who, while in”, in 10:491a, 491b, 491c, and 34:285b, 285c, and 285d. The words “armed forces” are substituted for the words “military service of the United States”, in 10:491a, 491b, and 491c; and the words “naval service of the United States”, in 34:285b, 285c, and 285d (which did not appear in the source statute for the revised section, as amended by the Act of July 17, 1953, ch. 220, § 1(b), 67 Stat. 177). The words “to such grade”, in 10:491a and 34:285b, “receive or”, in 10:491c and 34:285d, are omitted as surplusage.

In subsection (b), the words “if any” are substituted for words “of the service”. The words “appointment and”, in 10:491b and 34:285c, and “appointment or promotion and”, in 10:491c and 34:285d, are omitted as surplusage.

Editorial NotesAmendments

2008—Subsec. (a). Pub. L. 110–417, § 502(a)(1), struck out “in line of duty” after “death” in pars. (1) to (3).

Subsec. (c). Pub. L. 110–417, § 502(a)(2), added subsec. (c).

2000—Subsec. (a)(3). Pub. L. 106–398, § 1 [[div. A], title V, § 505(a)], struck out “and the recommendation for whose appointment or promotion was approved by the Secretary concerned” after “commissioned grade”.

Subsec. (b). Pub. L. 106–398, § 1 [[div. A], title V, § 505(b)], substituted “official recommendation” for “approval” in two places.

Statutory Notes and Related SubsidiariesDetermination of Date of Death Under Missing Persons Act

Act July 28, 1942, ch. 528, § 5, as added July 17, 1953, ch. 220, § 1(e), 67 Stat. 177, provided that for purposes of this chapter, in any case where the date of death is established under the Missing Persons Act, as amended, the date of death is the date of receipt by the head of the department concerned of evidence that the person is dead, or the date the finding of death is made under section 5 of that Act, prior to repeal by Pub. L. 89–718, § 12(b), Nov. 2, 1966, 80 Stat. 1117. See section 1524 of this title.

Executive DocumentsDelegation of Functions

For assignment of functions of President under subsec. (a) of this section, see sections 1(a) and 2(a) of Ex. Ord. No. 13358, Sept. 28, 2004, 69 F.R. 58797, set out as a note under section 301 of Title 3, The President.

Notes of Decisions

Cited in 13 cases, 1949–2005 · leading case: Loving v. United States, 62 M.J. 235 (C.A.A.F. 2005).

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Loving v. United States, 62 M.J. 235 (C.A.A.F. 2005). “627 , 635-38, 10 U.S.C. § 1521 (1948). 41 . We note that almost identical language is used in AW 53 to address finality of proceedings relating to a petition for new trial.”

United States v. Redenius, 4 C.M.A. 161 (1954). “] Winthrop makes the same observation with regard to a second enlistment without a regular discharge from the first, then a violation of Article of War 50, 10 USC § 1521 , now Article 85 (e) (page 652): .”

Easley v. Hunter, Warden, 209 F.2d 483 (10th Cir. 1953). “10 U.S.C.A. § 1521 (h); 50 U.S.C.A. § 663 .”

United States v. Goodwin, 5 C.M.A. 647 (1955). “The powers of the board of review to consider matters on appeal were not substantially enlarged as may be gathered from the wording of Article 50 (d!) (3) and (4), 10 USC § 1521 : “(3) When the Board of Review is of the opinion that the record of trial in any case requiring…”

United States v. Petroff-Tachomakoff, 5 C.M.A. 824 (1955). “In 1948, Article of War 50, 50 Stat 627, 10 USC § 1521 (1948), replaced Article of War 504, and was in existence at the time the Uniform Code was enacted.”

Goldstein v. Johnson, Sec'y of Def., 184 F.2d 342 (D.C. Cir. 1950). “” 10 U.S.C.A. § 1521 . 1 While it is well established that the writ of habeas corpus is not suspended by such a provision, it is equally well settled that in the absence of physical confinement the courts cannot interfere with nor in any way review court-martial proceedings.”

United States v. Ray, 7 C.M.A. 378 (1956). “of appellate review, Article of War 50(e), 10 USC § 1521 ; Manual for Courts-Martial, supra, paragraph 87b, page 95, would have operated under the old law to prevent the forfeiture of accused’s pay and allowances until after the completion of appellate review.”

Brown v. Hunter, 172 F.2d 487 (10th Cir. 1949). “10 U.S.C.A. § 1521 , which provides, in part: “The power to order the execution of tiie sentence adjudged by a court-martial shall be held to include, inter alia, the power to mitigate or remit the whole or any part of the sentence.”

United States Ex Rel. Giese v. Chamberlin, 184 F.2d 404 (7th Cir. 1950). ““Approval, (d) No sentence of a court-martial shall be carried into execution until the same shall have been approved by the convening authority: * * Article of War 50(e), 10 U.S.C.A. § 1521 , provides in part: “Action by board of review in cases involving dishonorable or…”

Stock v. Dep't of the Air Force, 186 F.2d 968 (4th Cir. 1950). “The case was then reviewed by the Board of Review, Office of the Judge Advocate General United States Air Force, under the provisions of Article of War 50, 10 U.S.C.A. § 1521 (1949 Supp.), which held the record sufficient to support the findings and the sentence as modified.”

Sinclair v. Hiatt, 86 F. Supp. 828 (N.D. Ga. 1949). “§§ 1521 , 1525, a construction within the ruling of the Whelchel case and one that, at the same time, might sustain their constitutionality, would be to make the decisions of the Judge Advocate General, after compliance with Article of War 53, as to the facts and exercise of…”

Williams v. Humphrey, 89 F. Supp. 538 (M.D. Penn. 1950). “He asserts that the appellate review provided by Article of War 50, 10 U.S.C.A. § 1521 , has been had. This is not however the remedy provided by Article of War 53.”

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