U.S. Code » Title 10 » Subtitle Subtitle A— General Military Law › Part PART II— PERSONNEL › Chapter CHAPTER 47— UNIFORM CODE OF MILITARY JUSTICE › Subchapter SUBCHAPTER IX— POST-TRIAL PROCEDURE AND REVIEW OF COURTS-MARTIAL

10 U.S.C. § 861

Art. 61. Waiver of right to appeal; withdrawal of appeal

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(a)Waiver of Right to Appeal.—After entry of judgment in a general or special court-martial, under procedures prescribed by the Secretary concerned, the accused may waive the right to appellate review in each case subject to such review under section 866 of this title (article 66). Such a waiver shall be—(1) signed by the accused and by defense counsel; and(2) attached to the record of trial.(b)Withdrawal of Appeal.—In a general or special court-martial, the accused may withdraw an appeal at any time.(c)Death Penalty Case Exception.—Notwithstanding subsections (a) and (b), an accused may not waive the right to appeal or withdraw an appeal with respect to a judgment that includes a sentence of death.(d)Waiver or Withdrawal as Bar.—Except as provided by section 869(c)(2) of this title (article 69(c)(2)), a waiver or withdrawal under this section bars review under section 866 of this title (article 66).(Aug. 10, 1956, ch. 1041, 70A Stat. 58; Pub. L. 98–209, § 5(b)(1), Dec. 6, 1983, 97 Stat. 1397; Pub. L. 114–328, div. E, title LIX, § 5325, Dec. 23, 2016, 130 Stat. 2928; Pub. L. 117–263, div. A, title V, § 544(a), Dec. 23, 2022, 136 Stat. 2582.)

Historical and Revision Notes

Revised section

Source (U.S. Code)

Source (Statutes at Large)

861

50:648.

May 5, 1950, ch. 169, § 1 (Art. 61), 64 Stat. 127.

The word “each” is substituted for the word “every”.

Editorial NotesAmendments

2022—Subsec. (d). Pub. L. 117–263 substituted “Except as provided by section 869(c)(2) of this title (article 69(c)(2)), a waiver” for “A waiver”.

2016—Pub. L. 114–328 amended section generally. Prior to amendment, section related to waiver or withdrawal of appeal.

1983—Pub. L. 98–209 amended section generally, substituting “Waiver or withdrawal of appeal” for “Same—General court-martial records” as section catchline, and, in text, substituting provisions relating to waiver or withdrawal of appeal for provisions relating to initial action by the convening authority on general court-martial records.

Statutory Notes and Related SubsidiariesEffective Date of 2022 Amendment

Pub. L. 117–263, div. A, title V, § 544(d), Dec. 23, 2022, 136 Stat. 2583, provided that: “The amendments made by this section [amending this section and sections 866 and 869 of this title] shall not apply to—“(1) any matter that was submitted before the date of the enactment of this Act [Dec. 23, 2022] to a Court of Criminal Appeals established under section 866 of title 10, United States Code (article 66 of the Uniform Code of Military Justice); or“(2) any matter that was submitted before the date of the enactment of this Act to a Judge Advocate General under section 869 of such title (article 69 of the Uniform Code of Military Justice).”

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 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.

Notes of Decisions
Cited in 206 cases (15 in the last 5 years), 1957–2022 · leading case: United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016).
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United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016). · cites it 4× “Because we conclude that a case is subject to a complete appellate review by a Court of Criminal Appeals under Article 66(c), UCMJ, unless, after trial and sentenc- ing, an accused waives appellate review altogether pursuant to Article 61, UCMJ, 10 U.S.C. § 861 (2012), we affirm…”
United States v. Kincheloe, 14 M.J. 40 (1982). · cites it 2× “Article 61, UCMJ, 10 U.S.C. § 861 . With respect to the two letters that were supplied from Commander Burgess’ personal file, we also find nothing disquieting.”
Gosa v. Mayden, 413 U.S. 665 (1973). · cites it 2× “61 of the Code, 10 U. S. C. § 861 , the convening authority then referred the case to his staff judge advocate for review.”
United States v. Barnes, 3 M.J. 406 (1977). · cites it 2× “3, 6 (1975) (footnote omitted), the Court, after noting the delays encountered in resolving continual complaints as to the adequacy of post-trial reviews, held: Accordingly, it is ordered that on and after May 15,1975, a copy of the written review required by Article 61 or…”
State v. Morley, 952 P.2d 167 (Wash. 1998). “§ 860 ); and the accused has a right to appellate review with the aid of counsel ( 10 U.S.C. §§ 861 and 870). Smith, 598 A.2d at 272-73 .”
United States v. Hardin, 7 M.J. 399 (1979). · cites it 2× “Accordingly, the strict statutory disqualifications embraced in Article 6(c), which prevent a staff judge advocate from acting for a reviewing authority under Article 61, UCMJ, 10 U.S.C. § 861 , do not necessarily apply to his performance of inherently prosecutorial functions…”
United States v. Newman, 14 M.J. 474 (1983). · cites it 2× “This same staff judge advocate reviewed the accused’s conviction in accordance with the direction for review set out in Article 61, Uniform Code of Military Justice, 10 U.S.C. § 861 . Over Judge Latimer’s dissent, it was held that through his actions prior to trial, “the staff…”
United States v. Miller, 62 M.J. 471 (C.A.A.F. 2006). · cites it 2× “Under Article 61(a), UCMJ, 10 U.S.C. § 861 (a) (2000): the accused may file with the convening authority a statement expressly waiving the right of the accused to such review.”
United States v. Fields, 9 C.M.A. 70 (1958). · cites it 2× “The only provisions of the Uniform Code of Military Justice relating to the post-trial review are set out in Article 61, 10 USC § 861 , in the following language : “The convening authority shall refer the record of each general court-martial to his staff judge advocate or legal…”
United States v. Bodkins, 60 M.J. 322 (C.A.A.F. 2004). “See also Article 61(a), 10 U.S.C. § 861 (a) (review of the findings and sentence by the Court of Criminal Appeals may be waived only if an express waiver is filed with the convening authority by the accused after trial).”
United States v. DuBay, 17 C.M.A. 147 (1967). “If he determines that command control did not in fact exist, he will return the record to the convening authority, who will review the findings and take action thereon, in accordance with Code, supra, Articles 61 and 64, 10 USC §§ 861 , 864. The convening authority will forward…”
United States v. Kema, 10 C.M.A. 272 (1959). · cites it 4× “Apparently after the accused had raised an error at the board of review level touching on the failure of the staff judge advocate to meet the requirements of Article 61, Uniform Code of Military Justice, 10 USC § 861 , an affidavit was obtained by the Government.”
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