
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: 10USC871]

 
                         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. 871. Art. 71. Execution of sentence; suspension of sentence

    (a) If the sentence of the court-martial extends to death, that part 
of the sentence providing for death may not be executed until approved 
by the President. In such a case, the President may commute, remit, or 
suspend the sentence, or any part thereof, as he sees fit. That part of 
the sentence providing for death may not be suspended.
    (b) If in the case of a commissioned officer, cadet, or midshipman, 
the sentence of a court-martial extends to dismissal, that part of the 
sentence providing for dismissal may not be executed until approved by 
the Secretary concerned or such Under Secretary or Assistant Secretary 
as may be designated by the Secretary concerned. In such a case, the 
Secretary, Under Secretary, or Assistant Secretary, as the case may be, 
may commute, remit, or suspend the sentence, or any part of the 
sentence, as he sees fit. In time of war or national emergency he may 
commute a sentence of dismissal to reduction to any enlisted grade. A 
person so reduced may be required to serve for the duration of the war 
or emergency and six months thereafter.
    (c)(1) If a sentence extends to death, dismissal, or a dishonorable 
or bad conduct discharge and if the right of the accused to appellate 
review is not waived, and an appeal is not withdrawn, under section 861 
of this title (article 61), that part of the sentence extending to 
death, dismissal, or a dishonorable or bad-conduct discharge may not be 
executed until there is a final judgment as to the legality of the 
proceedings (and with respect to death or dismissal, approval under 
subsection (a) or (b), as appropriate). A judgment as to legality of the 
proceedings is final in such cases when review is completed by a Court 
of Criminal Appeals and--
        (A) the time for the accused to file a petition for review by 
    the Court of Appeals for the Armed Forces has expired and the 
    accused has not filed a timely petition for such review and the case 
    is not otherwise under review by that Court;
        (B) such a petition is rejected by the Court of Appeals for the 
    Armed Forces; or
        (C) review is completed in accordance with the judgment of the 
    Court of Appeals for the Armed Forces and--
            (i) a petition for a writ of certiorari is not filed within 
        the time limits prescribed by the Supreme Court;
            (ii) such a petition is rejected by the Supreme Court; or
            (iii) review is otherwise completed in accordance with the 
        judgment of the Supreme Court.

    (2) If a sentence extends to dismissal or a dishonorable or bad 
conduct discharge and if the right of the accused to appellate review is 
waived, or an appeal is withdrawn, under section 861 of this title 
(article 61), that part of the sentence extending to dismissal or a bad-
conduct or dishonorable discharge may not be executed until review of 
the case by a judge advocate (and any action on that review) under 
section 864 of this title (article 64) is completed. Any other part of a 
court-martial sentence may be ordered executed by the convening 
authority or other person acting on the case under section 860 of this 
title (article 60) when approved by him under that section.
    (d) The convening authority or other person acting on the case under 
section 860 of this title (article 60) may suspend the execution of any 
sentence or part thereof, except a death sentence.

(Aug. 10, 1956, ch. 1041, 70A Stat. 62; Pub. L. 90-632, Sec. 2(32), Oct. 
24, 1968, 82 Stat. 1342; Pub. L. 98-209, Sec. 5(e), Dec. 6, 1983, 97 
Stat. 1399; Pub. L. 103-337, div. A, title IX, Sec. 924(c)(1), (2), Oct. 
5, 1994, 108 Stat. 2831.)

                                          Historical and Revision Notes
-------------------------------------------------------------------------------
---------------------------------
            Revised section                      Source (U.S. Code)            
   Source (Statutes at Large)
-------------------------------------------------------------------------------
---------------------------------
871(a)................................  50:658(a).                           Ma
y 5, 1950, ch. 169, Sec.  1 (Art.
871(b)................................  50:658(b).                            7
1), 64 Stat. 131.
871(c)................................  50:658(c).
871(d)................................  50:658(d).
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---------------------------------

    In subsection (a), the word ``may'' is substituted for the word 
``shall''.
    In subsection (b), the word ``commissioned'' is inserted for 
clarity. The word ``may'' is substituted for the word ``shall'' in the 
first sentence. The words ``Secretary concerned'' are substituted for 
the words ``Secretary of the Department''. The words ``who is'' are 
omitted as surplusage.
    In subsection (c), the word ``may'' is substituted for the word 
``shall''.


                               Amendments

    1994--Subsec. (c)(1). Pub. L. 103-337 substituted ``Court of 
Criminal Appeals'' for ``Court of Military Review'' and ``Court of 
Appeals for the Armed Forces'' for ``Court of Military Appeals'' 
wherever appearing.
    1983--Subsec. (a). Pub. L. 98-209, Sec. 5(e)(1), amended subsec. (a) 
generally, substituting provision that part of the court-martial 
sentence extending to death may not be executed without Presidential 
approval, and granting the President authority to commute, remit, or 
suspend the sentence, except that a death sentence may not be suspended, 
for provision that no sentence extending to death or involving a general 
or flag officer could be executed without Presidential approval, and 
authorizing the President to approve the sentence or any part, amount, 
or commuted form thereof, and suspend the execution of the sentence or 
any part thereof, except a death sentence.
    Subsec. (b). Pub. L. 98-209, Sec. 5(e)(2), substituted provision 
that where a court-martial sentence extends to dismissal of a 
commissioned officer, cadet, or midshipman, the dismissal may not be 
executed without approval by the Secretary concerned, or Under Secretary 
or Assistant Secretary designated by him, and authorizing such official 
to commute, remit, or suspend the sentence, or any part thereof, for 
provision that no dismissal of a commissioned officer (other than a 
general or flag officer), cadet or midshipman may be executed without 
such approval, and that such official could approve the sentence or such 
part, amount, or commuted form the sentence as he saw fit, and could 
suspend the execution of any part of the sentence.
    Subsec. (c). Pub. L. 98-209, Sec. 5(e)(3), amended subsec. (c) 
generally. Prior to amendment subsec. (c) read as follows: ``No sentence 
which includes, unsuspended, a dishonorable or bad-conduct discharge, or 
confinement for one year or more, may be executed until affirmed by a 
Court of Military Review and, in cases reviewed by it, the Court of 
Military Appeals.''
    Subsec. (d). Pub. L. 98-209, Sec. 5(e)(3), amended subsec. (d) 
generally. Prior to amendment subsec. (d) read as follows: ``All other 
court-martial sentences, unless suspended or deferred, may be ordered 
executed by the convening authority when approved by him. The convening 
authority may suspend the execution of any sentence, except a death 
sentence.''
    1968--Subsec. (c). Pub. L. 90-632, Sec. 2(32)(A), substituted 
``Court of Military Review'' for ``board of review''.
    Subsec. (d). Pub. L. 90-632, Sec. 2(32)(B), inserted reference to 
deferred court-martial sentences.


                    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 1968 Amendment

    Amendments 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.

                  Section Referred to in Other Sections

    This section is referred to in section 872 of this title.
