How Does the Statute of Limitations Operate Under the UCMJ?
On this page
Article 43 of the Uniform Code of Military Justice (10 U.S.C. § 843) sets a default five-year limit, measured from the commission of the offense to the moment an officer exercising summary court-martial jurisdiction receives sworn charges. A short list of offenses has no limit, child abuse offenses get a longer window, Article 15 punishment has its own two-year limit, and several rules stop or extend the clock. Which rule applies depends on the specific offense, not on how serious the case feels.
The five-year rule and the event that stops the clock
Article 43(b)(1) bars trial by court-martial “if the offense was committed more than five years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command.”
Each part of that phrase matters:
- Sworn charges. The charges must already be preferred, meaning signed under oath by an accuser (R.C.M. 307). An open investigation, a commander’s interest, or a draft charge sheet does not stop the clock.
- Received by a summary court-martial convening authority. The deadline is met when that officer receives the sworn charge sheet. Referral, arraignment, and trial can all come later, outside the five years, and the case is still timely.
So a case can be preferred and received at four years and eleven months, go through an Article 32 preliminary hearing, and be tried after the five-year mark. A case whose sworn charges reach that officer one day late is barred, however long the government knew about the conduct. The receipt step sits inside the charging process described in how preferral and referral work.
The Manual for Courts-Martial adds a timing point that the statute does not spell out. Absence without leave, desertion, and fraudulent enlistment “are not continuing offenses”: they are committed on the day the person goes absent, deserts, or first receives pay or allowances under the enlistment (Discussion to R.C.M. 907(b)(2)(B)). A long absence therefore does not restart the clock each day; tolling, discussed below, does the work instead.
Offenses that can be tried at any time
Article 43(a) lists the offenses with no limitation period:
- absence without leave or missing movement in time of war
- murder
- rape or sexual assault
- rape or sexual assault of a child
- maiming of a child
- kidnapping of a child
- “any other offense punishable by death”
The list names offenses, not whole articles. Rape and sexual assault under Article 120(a) and (b), and rape and sexual assault of a child under Article 120b(a) and (b), are unlimited. Other sexual offenses are not on the list. Aggravated sexual contact and abusive sexual contact against an adult fall under the five-year rule. Sexual abuse of a child under Article 120b(c), and other sexual offenses against a person under 16 that are not on the unlimited list, fall under the child abuse rule described next, not under “no limit”.
The phrase “punishable by death” reaches offenses for which the UCMJ authorizes death, such as mutiny and sedition (Article 94), misbehavior before the enemy (Article 99), and espionage (Article 103a). In United States v. Briggs (2020), the Supreme Court held that the phrase is “a term of art that is defined by the provisions of the UCMJ specifying the punishments for the offenses it outlaws.” The question is what the UCMJ’s punishment article said, not whether a death sentence could constitutionally be carried out. The Court applied that reading to rape charges brought under the version of Article 120 that authorized death, and reversed the decisions that had set those convictions aside as untimely.
The child abuse rule
Article 43(b)(2) lets a “child abuse offense” be tried if sworn charges are received “during the life of the child or within ten years after the date on which the offense was committed, whichever provides a longer period”. The statute defines the term by age and offense:
| Victim's age | Offenses covered | Source |
|---|---|---|
| Under 16 | Articles 120, 120a, 120b, 120c, and 130 (unless already unlimited under Article 43(a)) | § 843(b)(2)(B)(i) |
| Under 16 | Aggravated assault, assault consummated by a battery, or assault with intent to commit specified offenses under Article 128 | § 843(b)(2)(B)(ii) |
| Under 18 | Acts that would be offenses under chapter 110 or 117 of title 18, or 18 U.S.C. § 1591 | § 843(b)(2)(C) |
Chapter 110 of title 18 is titled “Sexual Exploitation and Other Abuse of Children”, chapter 117 “Transportation for Illegal Sexual Activity and Related Crimes”, and § 1591 covers sex trafficking of children or by force, fraud, or coercion.
Nonjudicial punishment: two years
Article 43(b)(3) applies a separate limit to nonjudicial punishment under Article 15: a member “is not liable to be punished under section 815 of this title (article 15) if the offense was committed more than two years before the imposition of punishment.” The measuring point here is the imposition of punishment, not the receipt of charges.
Periods that do not count, and extensions
Tolling. Two kinds of time are excluded from the calculation:
- periods in which the accused “is absent without authority or fleeing from justice” (§ 843(c));
- periods in which the accused “was absent from territory in which the United States has the authority to apprehend him, or in the custody of civil authorities, or in the hands of the enemy” (§ 843(d)).
When the five years appear to have run, the prosecution bears the burden of proving that the period was tolled, extended, or suspended (Discussion to R.C.M. 907(b)(2)(B)).
Wartime rules. Two provisions apply only in time of war:
- If the Secretary concerned certifies to the President that trial of an offense in time of war would be “detrimental to the prosecution of the war or inimical to the national security,” the period is extended to six months after the termination of hostilities, as proclaimed by the President or by joint resolution of Congress (§ 843(e)).
- “When the United States is at war,” the limitation period is suspended until three years after hostilities end for offenses involving fraud against the United States, offenses connected with United States property, and offenses connected with war-related contracts (§ 843(f)).
Dismissed charges. If charges are dismissed “as defective or insufficient for any cause” after the period has expired, or when it will expire within 180 days, new charges are not time-barred if they are received by a summary court-martial convening authority within 180 days of the dismissal and allege the same acts or omissions (§ 843(g)). The provision is limited to dismissals for defect or insufficiency.
DNA evidence. If DNA testing implicates an identified person in an offense punishable by confinement for more than one year, the limitation period does not bar prosecution until a further period equal to the normal limitation period has run from the DNA identification (§ 843(i)).
Fraudulent enlistment or appointment. For fraudulent enlistment or appointment under Article 104a(1), sworn charges may be received during the enlistment or appointment or within five years, whichever is longer (§ 843(h)).
One date, five outcomes (hypothetical)
The conduct occurred in January 2020.
- If it is an ordinary five-year offense, sworn charges must reach the summary court-martial convening authority by January 2025.
- If the suspect was absent without authority for eight months during that span, those eight months do not count, which moves the deadline to about September 2025.
- If the conduct was sexual assault of an adult under Article 120(b), there is no limit.
- If it was abusive sexual contact against an adult, the five-year rule in step 1 applies.
- If it was sexual abuse of a 12-year-old under Article 120b(c), the child abuse rule applies: the case can be brought during the child’s life or within ten years, whichever is longer.
Raising the bar at trial
The statute of limitations is a waivable ground for dismissal: the accused must move to dismiss before the court-martial adjourns (R.C.M. 907(b)(2)(B)). The rule adds a protection: “if it appears that the accused is unaware of the right to assert the statute of limitations in bar of trial, the military judge shall inform the accused of this right”. A limitations bar is not raised automatically the way a lack of jurisdiction is, but the judge must tell an accused who appears not to know about it.
Article 43 has been amended by twelve laws since its 1956 codification, most recently on December 20, 2019 (Pub. L. 116-92). Older conduct can turn on older text: the rape charges in Briggs depended on the 1994 version of Article 120, which authorized death for rape.
Sources
- 10 U.S.C. § 843, Article 43, Statute of limitations (Cornell LII)
- United States v. Briggs, No. 19-108 (Dec. 10, 2020), slip opinion (Supreme Court of the United States)
- Manual for Courts-Martial, United States (2024 ed.), R.C.M. 307 and R.C.M. 907(b)(2)(B) with Discussion
This article is general information about military law, not legal advice for any individual case.