WAIVER OR WITHDRAWAL OF APPELLATE REVIEW

After any GCM, except one in which the approved sentence includes death, and after any SPCM in which

the approved sentence includes a BCD, the accused may waive or withdraw appellate review. Appellate review is not available for SPCMs in which a BCD was not adjudged or approved and for SCMs. Cases not subject to appellate review, or in which appellate review is waived, are reviewed by a judge advocate only. Such cases may also be submitted to the Judge Advocate General (JAG) for review.

The accused has the right to consult with counsel before submitting a waiver or withdrawal of appellate review. The waiver or withdrawal must be a written document. The waiver must establish that the accused and the DC have discussed (1) the accused's right to appellate review; (2) the effect that the waiver or withdrawal will have on the review; (3) that the accused understands these matters; and (4) that the waiver or withdrawal is submitted voluntarily. A waiver or withdrawal must be signed by the accused and the DC.

A waiver of appellate review is filed with the CA and is attached to the record of trial. A withdrawal of appellate review is filed with the OEGCMJ over the accused who sends it to JAG.

The accused may file a waiver of appellate review within 10 days after the accused or DC is served with a copy of the CA's action. Upon written application of the accused, the CA may extend this period for good cause for not more than 30 days. A withdrawal may be submitted any time before appellate review is completed. In either case, however, once appellate review is waived or withdrawn, it is irrevocable and the case will thereafter be reviewed locally in the same manner as an SCM or an SPCM not involving a BCD.

Figure 8-18 is the form to be used when an accused wishes to waive or withdraw his or her right to appellate review in a GCM or an SPCM subject to review by a Court of Military Review. Figure 8-19 should be used for those members who desire to waive their rights to appellate review in GCM cases subject to examination in the Office of the Judge Advocate General.

APPELLATE LEAVE

Under the provisions of Article 76(a), UCMJ, the Secretary of the Navy (SECNAV) may prescribe regulations that require officers and enlisted members to take leave pending completion of the appellate review process if the sentence, as approved by the CA, includes an unsuspended dismissal or an unsuspended dishonorable discharge (DD) or BCD. The regulations on appellate leave are contained in the Naval Military Personnel Manual (MILPERSMAN). Stated very

Figure 8-14.-Administrative Remarks, NAVPERS 1070/613.

Figure 8-15.-Court Memorandum, NAVPERS 1070/607-CA's action that approved and ordered executed the sentence awarded at trial.

Figure 8-16.-Court Memorandum, NAVPERS 1070/607-CA's action that approved and ordered executed the sentence awarded with the exception of the BCD.

Figure 8-17.-Court Memorandum, NAVPERS 1070/607-CA's action in which the CA only partially approved the sentence and ordered it executed.

^{Figure 8-18.}-Waiver/Withdrawal of Appellate Rights in GCM and SPCM Subject to Review by a Court of Military Review, DD Form 2330.

Figure 8-18.-Waiver/Withdrawa1 of Appellate Rights in GCM and SPCM Subject to Review by a Court of Military Review, DD Form 2330-Continued.

Figure 8-19.-Waiver/Withdrawal of Appellate Rights in GCM Subject to Examination in the Office of the Judge Advocate General, DD Form 2331.

Figure 8-19.-Waiver/Withdrawal of Appellate Rights in GCM Subject to Examination in the Office of the Judge Advocate General, DD Form 2331-Continued.

simply, procedures applicable to Navy personnel provide authority to place a member on mandatory appellate leave; the member can also request voluntary appellate leave. Members placed on mandatory appellate leave will be provided transportation to their home of record or place from which called to active duty. An entry will be made on a NAVPERS 1070/613, page 13, of the service record that will include a Privacy Act statement. The entry must be signed by the member and approved by the officer authorized to sign such entries.

Members may be granted voluntary appellate leave upon written request. The request must be approved by the OEGCMJ over the member and be in the best interest of the service. In the case of an SPCM, an officer then exercising SPCM jurisdiction may authorize appellate leave. Differing from mandatory appellate leave, personnel requesting appellate leave will not be provided transportation to their home of record.

Members not electing the leave option will be retained on temporary duty in a disciplinary status at the transient personnel unit collocated with the confinement site. Upon approval of the sentence by the CA, the member's leave status changes from voluntary to involuntary.

The following applies to all members placed on appellate leave: l For members stationed outside the continental United States (CONUS), family member travel and household goods (HHG) shipment will be authorized or approved to home of record when the GCM authority or SPCM authority over the member determines such to be in the best interest of the government. See Joint Federal Travel Regulations (JFTR), U5370-D8 and U5240-2. For members stationed in CONUS, with family members, travel and HHG shipment may be authorized at the discretion of the CA. For members stationed in CONUS, without family members, HHG shipment is not authorized. . Members will return all uniforms or civilian clothing issued by the government and will return all other property owned by the government. . Pay and allowances will terminate as of the date of departure or date of expiration of accrued leave. . Before departure the member must have a thorough physical examination. . The member's private automobile decal will be removed. l Both member and dependent's ID cards are turned in. New ID cards are then issued for a period of 3 months with appellate leave status stamped across the ID card. l Members are not eligible for space-available travel. Refer to OPNAVINST 4630.25 and NAVMIL-PERSCOMINST 4650.2 DISPOSITION OF RECORDS OF TRIAL AFTER ACTION BY THE CA

The CA's action for every trial by court-martial is reviewed by higher authority. Certain reviews are mandatory. Once these mandatory reviews are completed the case is final. Other reviews are discretionary. For example, the accused and his or her counsel must decide whether to petition the COMA for review of the case, whether to petition for review by JAG, or whether to petition for a new trial. The terms mandatory and discretionary reviews imply opposite concepts. In the former case, further review will happen regardless of the accused's wishes. In the latter case, further review will happen only if the accused or some other person takes some positive action. The concept of waiver and withdrawal gives an accused the option, except in a case involving death, to avoid appellate review.