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. § 864

Art. 64. Judge advocate review of finding of guilty in summary court-martial

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(a)In General.—Under regulations prescribed by the Secretary concerned, each summary court-martial in which there is a finding of guilty shall be reviewed by a judge advocate. A judge advocate may not review a case under this subsection if the judge advocate has acted in the same case as an accuser, preliminary hearing officer, member of the court, military judge, or counsel or has otherwise acted on behalf of the prosecution or defense. The judge advocate’s review shall be in writing and shall contain the following:(1) Conclusions as to whether—(A) the court had jurisdiction over the accused and the offense;(B) the charge and specification stated an offense; and(C) the sentence was within the limits prescribed as a matter of law.(2) A response to each allegation of error made in writing by the accused.(3) If the case is sent for action under subsection (b), a recommendation as to the appropriate action to be taken and an opinion as to whether corrective action is required as a matter of law.(b)Record.—The record of trial and related documents in each case reviewed under subsection (a) shall be sent for action to the person exercising general court-martial jurisdiction over the accused at the time the court was convened (or to that person’s successor in command) if—(1) the judge advocate who reviewed the case recommends corrective action; or(2) such action is otherwise required by regulations of the Secretary concerned.(c)(1) The person to whom the record of trial and related documents are sent under subsection (b) may—(A) disapprove or approve the findings or sentence, in whole or in part;(B) remit, commute, or suspend the sentence in whole or in part;(C) except where the evidence was insufficient at the trial to support the findings, order a rehearing on the findings, on the sentence, or on both; or(D) dismiss the charges.(2) If a rehearing is ordered but the convening authority finds a rehearing impracticable, he shall dismiss the charges.(3) If the opinion of the judge advocate in the judge advocate’s review under subsection (a) is that corrective action is required as a matter of law and if the person required to take action under subsection (b) does not take action that is at least as favorable to the accused as that recommended by the judge advocate, the record of trial and action thereon shall be sent to the Judge Advocate General for review under section 869 of this title (article 69).(Aug. 10, 1956, ch. 1041, 70A Stat. 58; Pub. L. 98–209, § 7(a)(1), Dec. 6, 1983, 97 Stat. 1401; Pub. L. 114–328, div. E, title LIX, § 5328, Dec. 23, 2016, 130 Stat. 2929; Pub. L. 115–91, div. A, title X, § 1081(c)(1)(I), Dec. 12, 2017, 131 Stat. 1598.)

Historical and Revision Notes

Revised section

Source (U.S. Code)

Source (Statutes at Large)

864

50:651.

May 5, 1950, ch. 169, § 1 (Art. 64), 64 Stat. 128.

The word “may” is substituted for the word “shall”. The word “is” is substituted for the words “shall constitute”.

Editorial NotesAmendments

2017—Subsec. (a). Pub. L. 115–91 substituted “(a) In General.—” for “(a) (a) In General.—”.

2016—Pub. L. 114–328, § 5328(b)(1), substituted “Judge advocate review of finding of guilty in summary court-martial” for “Review by a judge advocate” in section catchline.

Subsec. (a). Pub. L. 114–328, § 5328(a), inserted subsec. (a) designation, heading, and first two sentences, and struck out former first two sentences which read as follows: “Each case in which there has been a finding of guilty that is not reviewed under section 866 or 869(a) of this title (article 66 or 69(a)) shall be reviewed by a judge advocate under regulations of the Secretary concerned. A judge advocate may not review a case under this subsection if he has acted in the same case as an accuser, investigating officer, member of the court, military judge, or counsel or has otherwise acted on behalf of the prosecution or defense.”

Subsec. (b). Pub. L. 114–328, § 5328(b)(2)(A), inserted heading.

Subsec. (b)(2), (3). Pub. L. 114–328, § 5328(b)(2)(B)–(D), redesignated par. (3) as (2) and struck out former par. (2) which read as follows: “the sentence approved under section 860(c) of this title (article 60(c)) extends to dismissal, a bad-conduct or dishonorable discharge, or confinement for more than six months; or”.

Subsec. (c)(3). Pub. L. 114–328, § 5328(b)(3), substituted “section 869 of this title (article 69).” for “section 869(b) of this title (article 69(b)).”

1983—Pub. L. 98–209 amended section generally, substituting “Review by a judge advocate” for “Approval by the convening authority” in section catchline, and, in text, substituting provisions relating to review by a judge advocate for provision that in acting on the findings and sentence of a court-martial, the convening authority could approve only such findings of guilty, and the sentence or such part or amount of the sentence, as he found correct in law and fact and as he in his discretion determined should be approved, and that unless he indicated otherwise, approval of the sentence was approval of the findings and sentence.

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 1081(c)(4) 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 145 cases (2 in the last 5 years), 1957–2024 · leading case: United States v. Nerad, 69 M.J. 138 (C.A.A.F. 2010).
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United States v. Nerad, 69 M.J. 138 (C.A.A.F. 2010). “Article 64, of the Uniform Code, supra, 10 U.S.C. § 864 . Not only does Article 66, supra, require that a board affirm findings of guilt which it determines to be correct in law and fact, but also that such determination be made “on the basis of the entire record.”
United States v. Arness, 74 M.J. 441 (C.A.A.F. 2015). · cites it 2× “See Article 64, UCMJ, 10 U.S.C. § 864 (2012). The second provision affecting a CCA’s jurisdiction provides that it may also review: (1) any court-martial case which (A) is subject to action by the Judge Advocate General under this section [§ 869], and (B) is sent to the Court of…”
Bolton v. Dep't of the Navy Bd. for Corr. of Naval Records, 914 F.3d 401 (6th Cir. 2019). · cites it 2× “64, 10 U.S.C. § 864 . The judge advocate must explain, in writing, whether the court-martial had jurisdiction over the accused, whether the charge stated an offense, and whether the sentence was legal.”
Noyd v. Bond, 395 U.S. 683 (1969). · cites it 2× “The court-martial's judgment was then forwarded to General Bond for the review required by 10 U. S. C. § 864 , and on May 10, 1968, the General approved the sentence, ordering that: "Pending completion of appellate review, the accused will be confined in the United States…”
Robert E. Curry v. Sec'y of the Army, 595 F.2d 873 (D.C. Cir. 1979). · cites it 3× “64, 10 U.S.C. § 864 (1976) which provides: In acting on the findings and sentence of a court-martial, the convening authority may approve only such findings of guilty, and the *875 sentence or such part or amount of the sentence, as he finds correct in law and fact and as he in…”
United States v. Weiss, 36 M.J. 224 (1992). “64, 50 USC § 651 , recodified in 10 USC § 864 (1956) (“[T]he convening authority shall approve only such findings of guilty, and the sentence or such part or amount of the sentence, as he finds correct in law and fact.”
Steele v. Van Riper, 50 M.J. 89 (C.A.A.F. 1999). · cites it 2× “The Government also asserted that the findings could be approved after review by a judge advocate under Article 64, UCMJ, 10 USC § 864 (review of cases that have not been reviewed by a Court of Criminal Appeals under Article 66, UCMJ, 10 USC § 866 , or by the Judge Advocate…”
United States v. Suzuki, 14 M.J. 491 (1983). “Article 64, Uniform Code of Military Justice, 10 U.S.C. § 864 . Inasmuch as the sentence approved by the convening authority obviated the credit awarded by the military judge, no relief is required — regardless of the correctness of the judge’s rulings or the staff judge…”
United States v. Larner, 1 M.J. 371 (1976). “Johnson, supra; Articles 64 and 66, UCMJ, 10 U.S.C. §§ 864 and 866; paragraph 88a, Manual for Courts-Martial, United States, 1969 (Rev.”
United States v. Matthews, 16 M.J. 354 (1983). “Under Article 64, UCMJ, 10 U.S.C. § 864 , the convening authority has absolute discretion to disapprove this penalty.”
United States v. Diaz, 40 M.J. 335 (1994). “10 USC § 864 , 70A Stat. 58 (1956), instructed: In acting on the findings and sentence of a court-martial, the convening authority may approve only such findings of guilty, and the sentence or such part or amount of the sentence, as he finds correct in law and fact and as he in…”
United States v. Cansdale, 7 M.J. 143 (1979). · cites it 2× “Article 64, UCMJ, 10 U.S.C. § 864 . Also, every level of review is limited by the action of the lower level, Articles 65(b), 66(c), 67(d), UCMJ, 10 U.”
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