U.S. Code
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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. § 872
Art. 72. Vacation of suspension
(a) Before the vacation of the suspension of a special court-martial sentence which as approved includes a bad-conduct discharge, or of any general court-martial sentence, the officer having special court-martial jurisdiction over the probationer shall hold a hearing on the alleged violation of probation. The special court-martial convening authority may detail a judge advocate, who is certified under section 827(b) of this title (article 27(b)), to conduct the hearing. The probationer shall be represented at the hearing by counsel if the probationer so desires.(b) The record of the hearing and the recommendation of the officer having special court-martial jurisdiction shall be sent for action to the officer exercising general court-martial jurisdiction over the probationer. If the officer exercising general court-martial jurisdiction vacates the suspension, any unexecuted part of the sentence, except a dismissal, shall be executed, subject to applicable restrictions in section 857 of this title (article 57). The vacation of the suspension of a dismissal is not effective until approved by the Secretary concerned.(c) The suspension of any other sentence may be vacated by any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence.(Aug. 10, 1956, ch. 1041, 70A Stat. 63; Pub. L. 114–328, div. E, title LIX, § 5335, Dec. 23, 2016, 130 Stat. 2936.)In subsection (a), the word “Before” is substituted for the words “Prior to”.
In subsection (b), the words “be effective * * * to” are omitted as surplusage.
The second sentence is restated to make it clear that the execution of the rest of the court-martial sentence is not automatic. The word “is” is substituted for the words “shall * * * be” in the last sentence. The word “sent” is substituted for the word “forwarded”. The words “Secretary concerned” are substituted for the words “Secretary of the Department”.
Editorial NotesAmendments2016—Subsec. (a). Pub. L. 114–328, § 5335(a), (b)(1), inserted “The special court-martial convening authority may detail a judge advocate, who is certified under section 827(b) of this title (article 27(b)), to conduct the hearing.” after first sentence and substituted “if the probationer so desires” for “if he so desires” in last sentence.
Subsec. (b). Pub. L. 114–328, § 5335(b)(2), substituted “If the officer exercising general court-martial jurisdiction” for “If he” and “section 857 of this title (article 57)” for “section 871(c) of this title (article 71(c))”.
Statutory Notes and Related SubsidiariesEffective Date of 2016 AmendmentAmendment 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.
Notes of Decisions
United States v. Dawson, 10 M.J. 142 (1981).
· cites it 3× “See Article 72(a), UCMJ, 10 U.S.C.A. § 872 (a). The agreement did include the following provision: It is expressly agreed by the accused that .”
United States v. Hunter, 65 M.J. 399 (C.A.A.F. 2008).
“1107, the convening authority could set aside the sentence limitations, after affording Appellant a hearing ‘“substantially similar to the hearing required by Article 72, UCMJ, [ 10 U.S.C. § 872 (2000)], and the procedures based on the level of adjudged punishment set forth in R.”
Noyd v. Bond, 395 U.S. 683 (1969).
· cites it 2× “10 U. S. C. § 872 (a). Article 57 (b), then, represents Congress' decision that even though a man is temporarily set at liberty, he should be given sentence *692 credit unless he is sure that his freedom will not be curtailed at a later date without a plenary hearing.”
United States v. Bingham, 3 M.J. 119 (1977).
· cites it 2× “Article 72(b), Uniform Code of Military Justice, 10 U.S.C. § 872 (b). . Article 72(a), UCMJ, 10 U.”
United States v. Miley, 59 M.J. 300 (C.A.A.F. 2004).
· cites it 4× “That process is governed by Article 72, UCMJ, 10 U.S.C. § 872 (2000) and R.C.M. 1109, both of which require that the SPCMCA (1) conduct a hearing on the alleged violation of the conditions of suspension and (2) transmit a record of that hearing and his/her recommendation to the…”
United States v. Rozycki, 3 M.J. 127 (1977).
· cites it 2× “A hearing was held by that officer 1 on February 14, 1975, pursuant to procedures prescribed in Article 72(a), Uniform Code of Military Justice, 10 U.S.C. § 872 (a). On February 18, 1975, the special court-martial convening authority recommended that the suspension of the…”
United States v. Goode, 23 C.M.A. 367 (1975).
“See Article 72, Uniform Code of Military Justice, 10 USC § 872 . From this premise, he advances the proposition that a similar hearing must be held if it is intended not to suspend an unapproved sentence when the pretrial agreement provides for its suspension.”
United States v. Hawkins, 11 M.J. 4 (1981).
· cites it 3× “The cited cases delineate the procedures necessary for the vacation of a suspended sentence, under Article 72 of the Uniform Code of Military Justice, 10 U.S.C. § 872 . They also articulate the rationale for similar civilian procedures generally set forth by the United States…”
United States v. Brooks, 49 M.J. 64 (C.A.A.F. 1998).
“On November 22, 1993, Captain (Capt) Lewandowski, who was the trial counsel in Burroughs’ court-martial, as well as a trial counsel in appellant’s case, sent a letter to the convening authority recommending that a hearing be convened under Article 72, UCMJ, 10 USC § 872 , and…”
United States v. May, 10 C.M.A. 358 (1959).
· cites it 2× “Article 72 of the Code, 10 USC § 872 , provides in part: “ (a) Before the vacation of the suspension of a special court-martial sentence which as approved includes a bad-conduct discharge, or of any general court-martial sentence, the officer having special court-martial…”
United States v. Oakley, 11 C.M.A. 187 (1960).
· cites it 2× “This order shows that the vacation was pursuant to Article 72 of the Uniform Code of Military Justice, 10 USC § 872 . Therefore, it appears the Army considered the accused to be a true probationer, afforded him a chance for rehabilitation, which apparently he bungled, and held a…”
United States v. Bulla, 58 M.J. 715 (2003).
“Before setting aside the sentencing provisions of this agreement, however, the Convening Authority shall afford me a hearing, substantially similar to the hearing required by Article 72, UCMJ, 10 U.S.C. § 872 , and the procedures based on the level of adjudged punishment set…”
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