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. § 862

Art. 62. Appeal by the United States

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(a)(1) In a trial by general or special court-martial, or in a pretrial proceeding under section 830a of this title (article 30a), the United States may appeal the following:(A) An order or ruling of the military judge which terminates the proceedings with respect to a charge or specification.(B) An order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.(C) An order or ruling which directs the disclosure of classified information.(D) An order or ruling which imposes sanctions for nondisclosure of classified information.(E) A refusal of the military judge to issue a protective order sought by the United States to prevent the disclosure of classified information.(F) A refusal by the military judge to enforce an order described in subparagraph (E) that has previously been issued by appropriate authority.(G) An order or ruling of the military judge entering a finding of not guilty with respect to a charge or specification following the return of a finding of guilty by the members.(2)(A) An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within 72 hours of the order or ruling. Such notice shall include a certification by the trial counsel that the appeal is not taken for the purpose of delay and (if the order or ruling appealed is one which excludes evidence) that the evidence excluded is substantial proof of a fact material in the proceeding.(B) An appeal of an order or ruling may not be taken when prohibited by section 844 of this title (article 44).(3) An appeal under this section shall be diligently prosecuted by appellate Government counsel.(b) An appeal under this section shall be forwarded by a means prescribed under regulations of the President directly to the Court of Criminal Appeals and shall, whenever practicable, have priority over all other proceedings before that court. In ruling on an appeal under this section, the Court of Criminal Appeals may act only with respect to matters of law.(c) Any period of delay resulting from an appeal under this section shall be excluded in deciding any issue regarding denial of a speedy trial unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit.(d) The United States may appeal a ruling or order of a military magistrate in the same manner as had the ruling or order been made by a military judge, except that the issue shall first be presented to the military judge who designated the military magistrate or to a military judge detailed to hear the issue.(e) The provisions of this section shall be liberally construed to effect its purposes.(Aug. 10, 1956, ch. 1041, 70A Stat. 58; Pub. L. 98–209, § 5(c)(1), Dec. 6, 1983, 97 Stat. 1398; Pub. L. 103–337, div. A, title IX, § 924(c)(2), Oct. 5, 1994, 108 Stat. 2831; Pub. L. 104–106, div. A, title XI, § 1141(a), Feb. 10, 1996, 110 Stat. 466; Pub. L. 114–328, div. E, title LIX, § 5326, Dec. 23, 2016, 130 Stat. 2928; Pub. L. 115–91, div. A, title V, § 531(h), Dec. 12, 2017, 131 Stat. 1385.)

Historical and Revision Notes

Revised section

Source (U.S. Code)

Source (Statutes at Large)

862(a)

862(b)

50:649(a).

50:649(b).

May 5, 1950, ch. 169, § 1 (Art. 62), 64 Stat. 127.

Editorial NotesAmendments

2017—Subsec. (b). Pub. L. 115–91 struck out “, notwithstanding section 866(c) of this title (article 66(c))” after “matters of law”.

2016—Subsec. (a)(1). Pub. L. 114–328, § 5326(1)(A), in introductory provisions, substituted “general or special court-martial, or in a pretrial proceeding under section 830a of this title (article 30a), the United States may appeal the following:” for “court-martial in which a military judge presides and in which a punitive discharge may be adjudged, the United States may appeal the following (other than an order or ruling that is, or that amounts to, a finding of not guilty with respect to the charge or specification):”.

Subsec. (a)(1)(G). Pub. L. 114–328, § 5326(1)(B), added subpar. (G).

Subsec. (a)(2). Pub. L. 114–328, § 5326(2), designated existing provisions as subpar. (A) and added subpar. (B).

Subsecs. (d), (e). Pub. L. 114–328, § 5326(3), added subsecs. (d) and (e).

1996—Subsec. (a)(1). Pub. L. 104–106 amended par. (1) generally. Prior to amendment, par. (1) read as follows: “In a trial by court-martial in which a military judge presides and in which a punitive discharge may be adjudged, the United States may appeal an order or ruling of the military judge which terminates the proceedings with respect to a charge or specification or which excludes evidence that is substantial proof of a fact material in the proceeding. However, the United States may not appeal an order or ruling that is, or that amounts to, a finding of not guilty with respect to the charge or specification.”

1994—Subsec. (b). Pub. L. 103–337 substituted “Court of Criminal Appeals” for “Court of Military Review” in two places.

1983—Pub. L. 98–209 amended section generally, substituting “Appeal by the United States” for “Reconsideration and revision” as section catchline, and, in text, substituting provisions relating to appeals by the United States for provisions relating to the convening authority returning the record to the court for reconsideration and appropriate action.

Statutory Notes and Related SubsidiariesEffective Date of 2017 Amendment

Amendment by Pub. L. 115–91 effective immediately after the amendments made by div. E (§§ 5001–5542) of Pub. L. 114–328 take effect as provided for in section 5542 of that Act (10 U.S.C. 801 note), see section 531(p) of Pub. L. 115–91, set out as a note under section 801 of this title.

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 438 cases (50 in the last 5 years), 1957–2026 · leading case: United States v. Howell, 75 M.J. 386 (C.A.A.F. 2016).
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United States v. Howell, 75 M.J. 386 (C.A.A.F. 2016). · cites it 4× “” The jurisdiction of the Courts of Criminal Appeals has generally been limited to appeals by the United States under Article 62, UCMJ, 10 U.S.C. § 862 (2012), and review of the findings and sentences of certain courts-martial under Article 66(b), UCMJ, 10 U.”
United States v. Wuterich, 67 M.J. 63 (C.A.A.F. 2008). · cites it 7× “The Government appealed under Article 62, UCMJ, 10 U.S.C. § 862 (2000), which provides authority for interlocutory government appeals similar to the authority available in federal civilian criminal prosecutions under 18 U.”
Hamdan v. Rumsfeld, 548 U.S. 557 (2006). · cites it 3× “908(a); see also 10 U. S. C. § 862 (a)—the appeals go to a body called the Court of Criminal Appeals, not to the convening authority.”
Randolph v. HV & United States, 76 M.J. 27 (C.A.A.F. 2017). · cites it 6× “In Lopez de Victoria, we confirmed our jurisdiction pur- suant to Article 67(a)(3) to consider an accused’s petition from an interlocutory Government appeal under Article 62, UCMJ, 10 U.S.C. § 862 (2012). 66 M.J. at 70 ; see also United States v.”
United States v. Danylo, 73 M.J. 183 (C.A.A.F. 2014). · cites it 7× “Article 62(b), UCMJ, 10 U.S.C. § 862 (b) (2012) (“An appeal under this section .”
United States v. Gore, 60 M.J. 178 (C.A.A.F. 2004). · cites it 3× “WHETHER THE LOWER COURT ERRED BY ENGAGING IN IMPERMISSIBLE FACT-FINDING WHEN RULING ON THE GOVERNMENT’S APPEAL PURSUANT TO ARTICLE 62, UCMJ, 10 U.S.C. § 862 (2000). For the reasons set out below, we reverse the decision of the Court of Criminal Appeals (CCA).”
United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008). · cites it 4× “The Court specified an additional issue: whether this Court has statutory authority to exercise jurisdiction over decisions of the courts of criminal appeals rendered pursuant to Article 62, UCMJ, 10 U.S.C. § 862 (2000). We answer the specified issue as to our jurisdiction in…”
United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2013). · cites it 4× “See generally Article 62(b), UCMJ, 10 U.S.C. § 862 (b) (2006). 12 The normative method for addressing a military judge’s substantive ruling is not to seek a military judge’s disqualification and get a new ruling from a replacement military judge.”
Solorio v. United States, 483 U.S. 435 (1987). · cites it 4× “[10] The appeal to the Court of Military Review was brought under Article 62, Uniform Code of Military Justice, 10 U. S. C. § 862 (1982 ed., Supp. III). Section 862(b) provides that "[i]n ruling on an appeal under this section, the Court of Military Review may act only with…”
United States v. Wicks, 73 M.J. 93 (C.A.A.F. 2014). · cites it 3× “This case arises out of an interlocutory appeal under Article' 62, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 862 (2012), in a pending court-martial.”
United States v. Neal, 68 M.J. 289 (C.A.A.F. 2010). · cites it 4× “Upon appeal by the Government under Article 62, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 862 (2006), the United States Navy- Marine Corps Court of Criminal Appeals reversed the military judge and remanded the case to the Judge Advocate General of the Navy for further…”
United States v. Baker, 70 M.J. 283 (C.A.A.F. 2011). · cites it 3× “Neither, in my view, is this a matter upon which reasonable 1 On an appeal under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2006), it is axiomatic that a court of criminal appeals is bound by the facts found by the military judge, unless those facts are…”
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10 U.S.C. § 862(a): 1 case
In re B.M. v. U.S. & Bailey, No. 23-0233/NA (C.A.A.F. Apr. 3, 2024).
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