
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 10USC867]

 
                         TITLE 10--ARMED FORCES
 
                    Subtitle A--General Military Law
 
                           PART II--PERSONNEL
 
              CHAPTER 47--UNIFORM CODE OF MILITARY JUSTICE
 
    SUBCHAPTER IX--POST-TRIAL PROCEDURE AND REVIEW OF COURTS-MARTIAL
 
Sec. 867. Art. 67. Review by the Court of Appeals for the Armed 
        Forces
        
    (a) The Court of Appeals for the Armed Forces shall review the 
record in--
        (1) all cases in which the sentence, as affirmed by a Court of 
    Criminal Appeals, extends to death;
        (2) all cases reviewed by a Court of Criminal Appeals which the 
    Judge Advocate General orders sent to the Court of Appeals for the 
    Armed Forces for review; and
        (3) all cases reviewed by a Court of Criminal Appeals in which, 
    upon petition of the accused and on good cause shown, the Court of 
    Appeals for the Armed Forces has granted a review.

    (b) The accused may petition the Court of Appeals for the Armed 
Forces for review of a decision of a Court of Criminal Appeals within 60 
days from the earlier of--
        (1) the date on which the accused is notified of the decision of 
    the Court of Criminal Appeals; or
        (2) the date on which a copy of the decision of the Court of 
    Criminal Appeals, after being served on appellate counsel of record 
    for the accused (if any), is deposited in the United States mails 
    for delivery by first-class certified mail to the accused at an 
    address provided by the accused or, if no such address has been 
    provided by the accused, at the latest address listed for the 
    accused in his official service record.

The Court of Appeals for the Armed Forces shall act upon such a petition 
promptly in accordance with the rules of the court.
    (c) In any case reviewed by it, the Court of Appeals for the Armed 
Forces may act only with respect to the findings and sentence as 
approved by the convening authority and as affirmed or set aside as 
incorrect in law by the Court of Criminal Appeals. In a case which the 
Judge Advocate General orders sent to the Court of Appeals for the Armed 
Forces, that action need be taken only with respect to the issues raised 
by him. In a case reviewed upon petition of the accused, that action 
need be taken only with respect to issues specified in the grant of 
review. The Court of Appeals for the Armed Forces shall take action only 
with respect to matters of law.
    (d) If the Court of Appeals for the Armed Forces sets aside the 
findings and sentence, it may, except where the setting aside is based 
on lack of sufficient evidence in the record to support the findings, 
order a rehearing. If it sets aside the findings and sentence and does 
not order a rehearing, it shall order that the charges be dismissed.
    (e) After it has acted on a case, the Court of Appeals for the Armed 
Forces may direct the Judge Advocate General to return the record to the 
Court of Criminal Appeals for further review in accordance with the 
decision of the court. Otherwise, unless there is to be further action 
by the President or the Secretary concerned, the Judge Advocate General 
shall instruct the convening authority to take action in accordance with 
that decision. If the court has ordered a rehearing, but the convening 
authority finds a rehearing impracticable, he may dismiss the charges.

(Aug. 10, 1956, ch. 1041, 70A Stat. 60; Pub. L. 88-426, title IV, 
Sec. 403(j), Aug. 14, 1964, 78 Stat. 434; Pub. L. 90-340, Sec. 1, June 
15, 1968, 82 Stat. 178; Pub. L. 90-632, Sec. 2(28), Oct. 24, 1968, 82 
Stat. 1342; Pub. L. 96-579, Sec. 12(a), Dec. 23, 1980, 94 Stat. 3369; 
Pub. L. 97-81, Sec. 5, Nov. 20, 1981, 95 Stat. 1088; Pub. L. 97-295, 
Sec. 1(12), Oct. 12, 1982, 96 Stat. 1289; Pub. L. 98-209, Secs. 7(d), 
9(a), 10(c)(2), 13(d), Dec. 6, 1983, 97 Stat. 1402, 1404, 1406, 1408; 
Pub. L. 100-26, Sec. 7(a)(2), Apr. 21, 1987, 101 Stat. 275; Pub. L. 100-
456, div. A, title VII, Sec. 722(a), (c), Sept. 29, 1988, 102 Stat. 
2002, 2003; Pub. L. 101-189, div. A, title XIII, Sec. 1301(a), Nov. 29, 
1989, 103 Stat. 1569; Pub. L. 103-337, div. A, title IX, Sec. 924(c)(1), 
(2), (4)(B), Oct. 5, 1994, 108 Stat. 2831, 2832.)

                                          Historical and Revision Notes
                                                    1956 Act
-------------------------------------------------------------------------------
---------------------------------
            Revised section                      Source (U.S. Code)            
   Source (Statutes at Large)
-------------------------------------------------------------------------------
---------------------------------
867(a)................................  50:654(a).                           Ma
y 5, 1950, ch. 169, Sec.  1 (Art.
867(b)................................  50:654(b).                            6
7), 64 Stat. 129; Mar. 2, 1955,
867(c)................................  50:654(c).                            c
h. 9, Sec.  1(i), 69 Stat. 10.
867(d)................................  50:654(d).
867(e)................................  50:654(e).
867(f)................................  50:654(f).
867(g)................................  50:654(g).
-------------------------------------------------------------------------------
---------------------------------

    In subsection (a)(1), the word ``is'' is substituted for the words 
``is hereby established''. The words ``all'' and ``which shall be'' are 
omitted as surplusage. The word ``consists'' is substituted for the 
words ``shall consist''. The word ``civil'' is substituted for the word 
``civilian''. The word ``may'' is substituted for the word ``shall'' 
before the words ``be appointed''. The word ``is'' is substituted for 
the word ``shall'' before the words ``any person''. The words ``is 
entitled to'' are substituted for the words ``shall receive''. The word 
``is'' is substituted for the words ``shall be'' in the fourth sentence. 
The word ``may'' is substituted for the words ``shall have power to * * 
* to''. The word ``does'' is substituted for the word ``shall'' in the 
next to the last sentence. In the last sentence, the words ``is entitled 
* * * to'' are substituted for the word ``shall''. The word ``outside'' 
is substituted for the words ``at a place other than his official 
station. The official station of such judges for such purpose shall 
be''. The words ``also'' and ``actually'' are omitted as surplusage.
    In subsection (a)(2), the words ``February 28, 1951,'' are 
substituted for the words ``the effective date of this subdivision''. 
The word ``shall'' in the first sentence, and the word ``shall'' before 
the word ``expire'' in the second sentence, are omitted as surplusage. 
The word ``before'' is substituted for the words ``prior to''. The word 
``may'' is substituted for the word ``shall'' before the words ``be 
appointed''.
    In subsection (a)(3), the word ``for'' is substituted for the words 
``upon the ground of''.
    In subsection (b), the words ``the following cases'' are omitted as 
surplusage.
    In subsections (b) and (d), the word ``sent'' is substituted for the 
word ``forwarded''.
    In subsection (c), the word ``when'' is inserted after the word 
``time''. The words ``a grant of'' are omitted as surplusage.
    In subsection (d), the word ``may'' is substituted for the word 
``shall'' in the first sentence.
    In subsection (f), the words ``Secretary concerned'' are substituted 
for the words ``Secretary of the Department''.
    In subsection (g), the words ``of the armed forces'' are omitted as 
surplusage. The words ``policies as to sentences'' are substituted for 
the words ``sentence policies''. The word ``considered'' is substituted 
for the word ``deemed''. The words ``Secretaries of the military 
departments, and the Secretary of the Treasury'' are substituted for the 
words ``Secretaries of the Departments''.

                            1982 Act

    In subsection (d), the words ``Court of Military Review'' are 
substituted for ``board of review'' because of section 3(b) of the 
Military Justice Act of 1968 (Pub. L. 90-632, Oct. 24, 1968, 82 Stat. 
1343).
    The change in subsection (g) reflects the transfer of functions from 
the Secretary of the Treasury to the Secretary of Transportation under 
49:1655(b).


                               Amendments

    1994--Pub. L. 103-337, Sec. 924(c)(4)(B), substituted ``Court of 
Appeals for the Armed Forces'' for ``Court of Military Appeals'' in 
section catchline.
    Pub. L. 103-337, Sec. 924(c)(2), substituted ``Court of Criminal 
Appeals'' for ``Court of Military Review'' wherever appearing in 
subsecs. (a) to (c) and (e).
    Pub. L. 103-337, Sec. 924(c)(1), substituted ``Court of Appeals for 
the Armed Forces'' for ``Court of Military Appeals'' wherever appearing.
    1989--Pub. L. 101-189 redesignated subsecs. (b) to (f) as (a) to 
(e), respectively, struck out former subsec. (a) which related to 
establishment of the United States Court of Military Appeals, and 
appointment, removal, allowances and compensation, etc., of judges of 
such court, struck out subsec. (g) which related to a committee required 
to make annual comprehensive surveys of the operation of this chapter, 
struck out subsec. (h) which related to review of decisions of the Court 
of Military Appeals by the Supreme Court, and struck out subsec. (i) 
which related to annuities for judges and former or retired judges, and 
survivors and former spouses of judges and former judges.
    1988--Subsec. (a)(4). Pub. L. 100-456, Sec. 722(c), inserted ``or an 
annuity under subsection (i) or subchapter III of chapter 83 or chapter 
84 of title 5'' after ``retired pay'' in two places.
    Subsec. (i). Pub. L. 100-456, Sec. 722(a), added subsec. (i).
    1987--Subsec. (g)(1). Pub. L. 100-26 substituted ``the Staff Judge 
Advocate to the Commandant of the Marine Corps'' for ``the Director, 
Judge Advocate Division, Headquarters, United States Marine Corps''.
    1983--Subsec. (a)(3). Pub. L. 98-209, Sec. 13(d), inserted 
``Circuit'' after ``District of Columbia''.
    Subsec. (b)(1). Pub. L. 98-209, Sec. 7(d), struck out ``affects a 
general or flag officer or'' before ``extends to death''.
    Subsec. (g). Pub. L. 98-209, Sec. 9(a), designated existing 
provisions as par. (1), substituted ``A committee consisting of the 
judges of the Court of Military Appeals, the Judge Advocates General of 
the Army, Navy, and Air Force, the Chief Counsel of the Coast Guard, the 
Director, Judge Advocate Division, Headquarters, United States Marine 
Corps, and two members of the public appointed by the Secretary of 
Defense shall meet at least annually. The committee shall make an annual 
comprehensive survey of the operation of this chapter. After each such 
survey, the committee shall report'' for ``The Court of Military Appeals 
and the Judge Advocates General shall meet annually to make a 
comprehensive survey of the operation of this chapter and report'', and 
added pars. (2) and (3).
    Subsec. (h). Pub. L. 98-209, Sec. 10(c)(2), added subsec. (h).
    1982--Subsec. (d). Pub. L. 97-295, Sec. 1(12)(A), substituted 
``Court of Military Review'' for ``board of review'' after ``incorrect 
in law by the''.
    Subsec. (g). Pub. L. 97-295, Sec. 1(12)(B), substituted ``Secretary 
of Transportation'' for ``Secretary of the Treasury'' after ``military 
departments, and the''.
    1981--Subsec. (c). Pub. L. 97-81 substituted provisions authorizing 
the accused to petition the Court of Military Appeals for review of a 
decision of a Court of Military Review within 60 days from the earlier 
of (1) the date on which the accused is notified of the decision of the 
Court of Military Review, or (2) the date on which a copy of the 
decision of the Court of Military Review, after being served on 
appellate counsel of record for the accused (if any), is deposited in 
the United States mails for delivery by first-class certified mail to 
the accused at an address provided by the accused or, if no such address 
has been provided by the accused, at the latest address listed for the 
accused in his official service record, and directing the Court of 
Military Appeals to act upon such a petition promptly in accordance with 
the rules of the court for provision which had given the accused 30 days 
from the time when he was notified of the decision of a board of review 
to petition the Court of Military Appeals for review and which had 
directed the court to act upon such a petition within 30 days of the 
receipt thereof.
    1980--Subsec. (a)(1). Pub. L. 96-579 struck out third sentence 
prescribing expiration of terms of office of all successors of judges of 
the Court of Military Appeals serving on June 15, 1968, fifteen years 
after expiration of term of their predecessors subject to requirement 
that any judge appointed to fill a vacancy occurring prior to the 
expiration of the term for which his predecessor was appointed should be 
appointed only for the unexpired term of the predecessor.
    1968--Subsec. (a)(1). Pub. L. 90-340 changed the name of the Court 
of Military Appeals to the United States Court of Military Appeals, and 
established it under Article I of the United States Constitution, 
provided that the terms of office of all successors of the judges 
serving on June 15, 1968, shall expire 15 years after the expiration of 
the terms for which their predecessors were appointed but that any judge 
appointed to fill a vacancy occurring prior to the expiration of the 
term of his predecessor shall be appointed only for the unexpired term 
of his predecessor, substituted provisions that each judge is entitled 
to the same salary and travel allowances as are judges of the United 
States Court of Appeals for provisions that entitled each judge to a 
salary of $33,000 a year and a travel and maintenance allowance, for 
expenses incurred while attending court or transacting official business 
outside the District of Columbia, not to exceed $15 a day, and provided 
for the precedence of the chief judge, and of the other judges based on 
their seniority.
    Subsec. (a)(2). Pub. L. 90-340 redesignated former par. (3) as (2) 
and changed the name of the Court of Military Appeals to the United 
States Court of Military Appeals. Provisions of former par. (2) 
pertaining to the terms of office of judges were placed in par. (1). 
Provisions of former par. (2) pertaining to the terms of office of the 
three judges first taking office after February 28, 1951, and expiring, 
as designated by the President at the time of nomination, one on May 1, 
1956, one on May 1, 1961, and one on May 1, 1966, were struck out.
    Subsec. (a)(3). Pub. L. 90-340 redesignated former par. (4) as (3) 
and changed the name of the Court of Military Appeals to the United 
States Court of Military Appeals, and provided that a judge appointed to 
fill a temporary vacancy due to illness or disability may only be a 
judge of the Court of Appeals for the District of Columbia. Former par. 
(3) redesignated (2).
    Subsec. (a)(4). Pub. L. 90-340 added par. (4). Former par. (4) 
redesignated (3).
    Subsecs. (b), (f). Pub. L. 90-632 substituted ``Court of Military 
Review'' for ``board of review'' wherever appearing.
    1964--Subsec. (a)(1). Pub. L. 88-426 increased salary of judges from 
$25,500 to $33,000.


                    Effective Date of 1988 Amendment

    Section 722(d) of Pub. L. 100-456 provided that: ``Subsection (i) of 
section 867 of title 10, United States Code, as added by subsection (a), 
shall apply with respect to judges of the United States Court of 
Military Appeals [now United States Court of Appeals for the Armed 
Forces] whose term of service on such court ends on or after the date of 
the enactment of this Act [Sept. 29, 1988] and to the survivors of such 
judges.''


                    Effective Date of 1983 Amendment

    Amendment by sections 9(a) and 13(d) Pub. L. 98-209 effective Dec. 
6, 1983, and amendment by sections 7(d) and 10(c)(2) of Pub. L. 98-209 
effective first day of eighth calendar month beginning after Dec. 6, 
1983, but amendment by section 7(d) of Pub. L. 98-209 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.


                    Effective Date of 1981 Amendment

    Amendment by Pub. L. 97-81 to take effect at end of 60-day period 
beginning on Nov. 20, 1981, and to apply to any accused with respect to 
a Court of Military Review [now Court of Criminal Appeals] decision that 
is dated on or after that date, see section 7(a), (b)(5) of Pub. L. 97-
81, set out as an Effective Date note under section 706 of this title.


                    Effective Date of 1968 Amendment

    Amendment by Pub. L. 90-632 effective first day of tenth month 
following October 1968, see section 4 of Pub. L. 90-632, set out as a 
note under section 801 of this title.


                    Effective Date of 1964 Amendment

    For effective date of amendment by Pub. L. 88-426, see section 501 
of Pub. L. 88-426.


             Deadline for Establishment of Survivor Program

    Section 722(b) of Pub. L. 100-456 provided that: ``The Secretary of 
Defense shall establish the program required by paragraph (4) of section 
867(i) of title 10, United States Code, as added by subsection (a), not 
later than one year after the date of the enactment of this Act [Sept. 
29, 1988].''


   Commission To Study and Make Recommendations Concerning Sentencing 
  Authority, Jurisdiction, Tenure, and Retirement of Military Judges; 
     Establishment; Composition; Report to Congressional Committees

    Section 9(b) of Pub. L. 98-209, as amended by Pub. L. 98-525, title 
XV, Sec. 1521, Oct. 19, 1984, 98 Stat. 2628, directed Secretary of 
Defense to establish a commission to study the sentencing authority, 
jurisdiction, tenure, and retirement system of military judges, and to 
report, not later than Dec. 15, 1984, its findings and recommendations 
to committees of Congress and to the committee established under former 
section 867(g) of this title.


  Terms of Office of Judges of United States Court of Military Appeals

    Section 12(b) of Pub. L. 96-579 provided that the term of office of 
a judge of United States Court of Military Appeals serving on such court 
on Dec. 23, 1980, expire (1) on the date the term of such judge would 
have expired under the law in effect on the day before Dec. 23, 1980, or 
(2) ten years after the date on which such judge took office as a judge 
of the United States Court of Military Appeals, whichever is later.


 Continuation of Powers and Jurisdiction of Court of Military Appeals; 
                            Status of Judges

    Section 2 of Pub. L. 90-340 provided that: ``The United States Court 
of Military Appeals [now United States Court of Appeals for the Armed 
Forces] established under this Act [which amended subsec. (a) of this 
section] is a continuation of the Court of Military Appeals as it 
existed prior to the effective date of this Act [June 15, 1968], and no 
loss of rights or powers, interruption of jurisdiction, or prejudice to 
matters pending in the Court of Military Appeals before the effective 
date of this Act shall result. A judge of the Court of Military Appeals 
so serving on the day before the effective date of this Act shall, for 
all purposes, be a judge of the United States Court of Military Appeals 
under this Act.''


                            Salary Increases

    1987--Salaries of judges increased to $95,000 per annum, on 
recommendation of President, see note set out under section 358 of Title 
2, The Congress.
    1977--Salaries of judges increased to $57,500 per annum, on 
recommendation of President, see note set out under section 358 of Title 
2.
    1969--Salaries of judges increased from $33,000 to $42,500 per 
annum, commencing first day of pay period which begins after Feb. 14, 
1969, on recommendation of President, see note set out under section 358 
of Title 2.

                        Executive Order No. 12063

    Ex. Ord. No. 12063, June 5, 1978, 43 F.R. 24659, which related to 
the United States Court of Military Appeals Nominating Commission, was 
revoked by Ex. Ord. No. 12258, Dec. 31, 1980, 46 F.R. 1251, set out as a 
note under section 14 of the Appendix to Title 5, Government 
Organization and Employees.

                  Section Referred to in Other Sections

    This section is referred to in sections 707, 857a, 869 of this 
title; title 28 section 1259.
