
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: 10USC869]

 
                         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. 869. Art. 69. Review in the office of the Judge Advocate 
        General
        
    (a) The record of trial in each general court-martial that is not 
otherwise reviewed under section 866 of this title (article 66) shall be 
examined in the office of the Judge Advocate General if there is a 
finding of guilty and the accused does not waive or withdraw his right 
to appellate review under section 861 of this title (article 61). If any 
part of the findings or sentence is found to be unsupported in law or if 
reassessment of the sentence is appropriate, the Judge Advocate General 
may modify or set aside the findings or sentence or both.
    (b) The findings or sentence, or both, in a court-martial case not 
reviewed under subsection (a) or under section 866 of this title 
(article 66) may be modified or set aside, in whole or in part, by the 
Judge Advocate General on the ground of newly discovered evidence, fraud 
on the court, lack of jurisdiction over the accused or the offense, 
error prejudicial to the substantial rights of the accused, or the 
appropriateness of the sentence. If such a case is considered upon 
application of the accused, the application must be filed in the office 
of the Judge Advocate General by the accused on or before the last day 
of the two-year period beginning on the date the sentence is approved 
under section 860(c) of this title (article 60(c)), unless the accused 
establishes good cause for failure to file within that time.
    (c) If the Judge Advocate General sets aside the findings or 
sentence, he may, except when the setting aside is based on lack of 
sufficient evidence in the record to support the findings, order a 
rehearing. If he sets aside the findings and sentence and does not order 
a rehearing, he shall order that the charges be dismissed. If the Judge 
Advocate General orders a rehearing but the convening authority finds a 
rehearing impractical, the convening authority shall dismiss the 
charges.
    (d) A Court of Criminal Appeals may review, under section 866 of 
this title (article 66)--
        (1) any court-martial case which (A) is subject to action by the 
    Judge Advocate General under this section, and (B) is sent to the 
    Court of Criminal Appeals by order of the Judge Advocate General; 
    and
        (2) any action taken by the Judge Advocate General under this 
    section in such case.

    (e) Notwithstanding section 866 of this title (article 66), in any 
case reviewed by a Court of Criminal Appeals under this section, the 
Court may take action only with respect to matters of law.

(Aug. 10, 1956, ch. 1041, 70A Stat. 61; Pub. L. 90-632, Sec. 2(30), Oct. 
24, 1968, 82 Stat. 1342; Pub. L. 97-81, Sec. 6, Nov. 20, 1981, 95 Stat. 
1089; Pub. L. 98-209, Sec. 7(e)(1), Dec. 6, 1983, 97 Stat. 1402; Pub. L. 
101-189, div. A, title XIII, Secs. 1302(a), 1304(b)(1), Nov. 29, 1989, 
103 Stat. 1576, 1577; Pub. L. 103-337, div. A, title IX, Sec. 924(c)(2), 
Oct. 5, 1994, 108 Stat. 2831.)

                                          Historical and Revision Notes
-------------------------------------------------------------------------------
---------------------------------
            Revised section                      Source (U.S. Code)            
   Source (Statutes at Large)
-------------------------------------------------------------------------------
---------------------------------
869...................................  50:656.                              Ma
y 5, 1950, ch. 169, Sec.  1 (Art.
                                                                              6
9), 64 Stat. 130.
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---------------------------------

    The word ``may'' is substituted for the word ``will''. The word 
``under'' is substituted for the words ``pursuant to the provisions 
of''.


                               Amendments

    1994--Subsecs. (d), (e). Pub. L. 103-337 substituted ``Court of 
Criminal Appeals'' for ``Court of Military Review'' wherever appearing.
    1989--Subsec. (a). Pub. L. 101-189, Sec. 1304(b)(1), which directed 
amendment of subsec. (a) by striking ``section 867(b)(2) of this title 
(article 67(b)(2))'' in the third sentence and inserting in lieu thereof 
``section 867(a)(2) of this title (article 67(a)(2))'', could not be 
executed because of the intervening amendment by Pub. L. 101-189, 
Sec. 1302(a)(1), which struck out the third sentence, see below.
    Pub. L. 101-189, Sec. 1302(a)(1), struck out the third sentence, 
which read as follows: ``If the Judge Advocate General so directs, the 
record shall be reviewed by a Court of Military Review under section 866 
of this title (article 66), but in that event there may be no further 
review by the Court of Military Appeals except under section 867(b)(2) 
of this title (article 67(b)(2)).''
    Subsecs. (d), (e). Pub. L. 101-189, Sec. 1302(a)(2), added subsecs. 
(d) and (e).
    1983--Pub. L. 98-209 amended section generally. Prior to amendment 
section provided that every record of trial by general court-martial, in 
which there had been a finding of guilty and a sentence, the appellate 
review of which was not otherwise provided for by section 866 of this 
title, was to be examined in the office of the Judge Advocate General; 
that if any part of the findings or sentence was found unsupported in 
law, or if the Judge Advocate General so directed, the record was to be 
reviewed by a board of review in accordance with section 866 of this 
title, but in that event there could be no further review by the Court 
of Military Appeals except under section 867(b)(2) of this title, that 
notwithstanding section 876 of this title, the findings or sentence, or 
both, in a court-martial case which had been finally reviewed, but had 
not been reviewed by a Court of Military Review could be vacated or 
modified, in whole or in part, by the Judge Advocate General on the 
ground of newly discovered evidence, fraud on the court, lack of 
jurisdiction over the accused or the offense, or error prejudicial to 
the substantial rights of the accused; and that when such a case was 
considered upon application of the accused, the application had to be 
filed in the Office of the Judge Advocate General by the accused before: 
(1) October 1, 1983, or (2) the last day of the two-year period 
beginning on the date the sentence was approved by the convening 
authority or, in a special court-martial case which required action 
under section 865(b) of this title, the officer exercising general 
court-martial jurisdiction, whichever was later, unless the accused 
established good cause for failure to file within that time.
    1981--Pub. L. 97-81 inserted provision that, when a case is 
considered upon application of the accused, the application must be 
filed in the Office of the Judge Advocate General by the accused before 
(1) October 1, 1983, or (2) the last day of the two-year period 
beginning on the date the sentence is approved by the convening 
authority or, in a special court-martial case which requires action 
under section 865(b) of this title (article 65(b)), the officer 
exercising general court-martial jurisdiction, whichever is later, 
unless the accused establishes good cause for failure to file within 
that time.
    1968--Pub. L. 90-632 authorized the Judge Advocate General to either 
vacate or modify the findings or sentence, or both, in whole or in part, 
in any court-martial case which has been finally reviewed, but which has 
not been reviewed by a Court of Military Review, because of newly 
discovered evidence, fraud on the court, lack of jurisdiction over the 
accused or the offense, or error prejudicial to the substantial rights 
of the accused.


                    Effective Date of 1989 Amendment

    Section 1302(b) of Pub. L. 101-189 provided that: ``Subsection (e) 
of section 869 of title 10, United States Code, as added by subsection 
(a), shall apply with respect to cases in which a finding of guilty is 
adjudged by a general court-martial after the date of the enactment of 
this Act [Nov. 29, 1989].''


                    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.


                    Effective Date of 1981 Amendment

    Amendment by Pub. L. 97-81 effective at end of 60-day period 
beginning on Nov. 20, 1981, see section 7(a) 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 Oct. 24, 1968, see section 
4(b) of Pub. L. 90-632, set out as a note under section 801 of this 
title.


     Two-Year Period for Applications for Modification or Set-Aside 
     Inapplicable to Applications Filed On or Before October 1, 1983

    Section 7(e)(2) of Pub. L. 98-209 provided that: ``The two-year 
period specified under the second sentence of section 869(b) (article 
69(b)) of title 10, United States Code, as amended by paragraph (1), 
does not apply to any application filed in the office of the appropriate 
Judge Advocate General (as defined in section 801(1) of such title) on 
or before October 1, 1983. The application in such a case shall be 
considered in the same manner and with the same effect as if such two-
year period had not been enacted.''

                  Section Referred to in Other Sections

    This section is referred to in sections 861, 864, 865 of this title.
