Forwarding a GCM to the Judge Advocate General

A record of trial by a GCM and the CA's action will be sent directly to JAG if the approved sentence includes death or if the accused has not waived appellate review. The original and three copies of the order promulgating the results of trial will be sent with the original record of trial.

Forwarding a GCM to a Judge Advocate

You will send a record of trial by GCM and the CA's action directly to a judge advocate for review if the sentence does not include death and if the accused has ^{waived appellate review.} You must also include the original and three copies of the order promulgating the results of trial with the original record of trial.

SPCM With an Approved BCD

If the approved sentence of an SPCM includes a BCD, you will dispose of the record in the same manner as provided for in a record of trial by a GCM.

Other SPCMs

With a record of trial by an SPCM in which the approved sentence does not include a BCD you will send it directly to a judge advocate for review. Include four copies of the promulgating order with the record of trial.

SCM

Send a record of trial by SCM to a judge advocate for review.

REVIEW BY A JUDGE ADVOCATE GENERAL

Article 64, UCMJ, and Rules for Courts-Martial (R.C.M.) 1112 require that all SCMs, non-BCD SPCMs, and all other noncapital courts-martial where appellate review has been waived or withdrawn by the accused be reviewed by a judge advocate. The JAGMAN requires this officer to be the SJA of an OEGCMJ who, at the time of trial, could have exercised such jurisdiction over the accused. In all cases, the action of the CA will identify the officer to whom the record is sent by stating his or her official title.

Form and Content of a Judge Advocate's Review

The judge advocate's review is a written document containing the following: . A conclusion as to whether the court-martial had jurisdiction over the accused and over each offense for which there is a finding of guilty that has not been disapproved by the CA . A conclusion as to whether each specification for which there is a finding of guilty that has not been disapproved by the CA stated an offense l A conclusion as to whether the sentence was legal . A response to each allegation of error made in writing by the accused . In cases requiring action by the OEGCMJ, as noted in the following paragraph, a recommendation as to appropriate action and an opinion as to whether corrective action is required as a matter of law After the judge advocate has completed his or her review, most cases reach the end of mandatory review and will be considered final within the meaning of Article 76, UCMJ. If this is the case, the judge advocate's review will be attached to the original record of trial and a copy sent to the accused.

For SCM and SPCM cases not involving a BCD or where a shore activity judge advocate's review is the final action, the judge advocate's office will retain the original record of proceedings for a period of 2 years after final action. At the termination of such retention period, the original record of proceedings is transferred to the National Personnel Records Center, 9700 Page Boulevard, St. Louis, Missouri 63132. For fleet activities where the record of proceedings has been reviewed under Article 64, MCM, the original record of proceedings is retained for a period of 3 months after find action. At the expiration of the retention period, send the record to the National Personnel Records Center.

Forwarding of Record of Trial to Officer Exercising General Court-Martial Jurisdiction

The review is not final, and a further step is required, however, in the following two situations:

1. The judge advocate recommends corrective action.

2. The sentence as approved by the CA includes a dismissal, a DD or BCD, or confinement for more than 6 months.

The existence of either of these two situations will require the SJA to send the record of trial to the OEGCMJ for further action.

Action by Officer Exercising General Court-Martial Jurisdiction

The OEGCMJ who receives a record of trial may: disapprove or approve the findings or sentence in whole or in part; remit, commute, or suspend the sentence in whole or in part; order a rehearing on the findings, on the sentence, or on both except where the evidence was insufficient at the trial to support the findings; or dismiss the charges.

If the OEGCMJ orders a rehearing, but the CA finds a rehearing impractical, the CA will dismiss the charges. After the OEGCMJ has taken action, the accused will be notified of that action and the accused will be provided with a copy of the judge advocate's review.

Forwarding a Record of Trial to the Judge Advocate General

Assuming that appellate review has not been waived or withdrawn by the accused, an SPCM involving a BCD, whether or not suspended, will be sent directly to the Office of the Judge Advocate General of the Navy. After detailing appellate defense and government counsel, the case will then be sent to the NMCMR.

REVIEW IN THE OFFICE OF THE JUDGE ADVOCATE GENERAL

Article 69(b), UCMJ, provides that certain cases may be reviewed in the Office of the Judge Advocate General and that the findings or sentence, or both, may be vacated or modified by JAG on the grounds of newly discovered evidence, fraud on the court, lack of jurisdiction, or error prejudicial to the substantial rights of the accused. Review under this article may only be granted in a case that has been "finally" reviewed, but has not been reviewed by the NMCMR. Even then, such review by JAG is not automatic. The accused must petition JAG to review the case and JAG may or may not agree to do so. If the case is reviewed, JAG may or may not grant relief.

Article 73, UCMJ, provides that, under certain limited conditions, an accused can petition JAG to have his or her case tried again even after the conviction has become final by completion of appellate review. This is not another trial such as that ordered to cure jurisdictional defects, This is a trial de novo- a brand new trial-as if the accused had never been tried at all.

There are only two grounds for petition: (1) newly discovered evidence and (2) fraud on the court.

Sufficient grounds will be found to exist only if it is established that an injustice has resulted from the findings or sentence and that a new trial would probably produce a substantially more favorable result.

REVIEW BY A NAVY-MARINE CORPS COURT OF MILITARY REVIEW

An NMCMR reviews cases referred to it by JAG. The NMCMR has review authority similar to that of the CA, except that it may not suspend any part of the sentence. The NMCMR is also limited to reviewing only those findings and sentences that have been approved by the CA. In other words, it may not increase the sentence approved by the CA, nor may it approve findings of guilty already disapproved by the CA.

Action on Review and Forwarding of Cases

JAG may send the decision of the NMCMR to the COMA for review with respect to any matter of law, In such a case, JAG will cause a copy of the decision of the NMCMR and the order forwarding the case to be served on the accused and on the appellate DC.

In a case reviewed by the NMCMR in which the court sets aside the sentence and JAG does not send the case to the COMA, JAG will instruct an appropriate CA to take action according to the decision of the NMCMR. If the NMCMR orders a rehearing, the record will be sent to an appropriate CA. If the CA finds a rehearing impractical the CA may dismiss the charges.

If the NMCMR affirms any sentence that includes death, JAG transmits the record of trial and the decision of the NMCMR directly to the COMA when any period for reconsideration has expired.

If the NMCMR affirms any sentence other than one that includes death, JAG causes a copy of the decision of the NMCMR to be served on the accused.

If JAG believes that a sentence affirmed by the NMCMR, other than one that includes death, should be remitted or suspended in whole or in part, JAG may, before taking action, send the record of trial and the decision of the NMCMR to SECNAV with a recommendation for action under Article 74, UCMJ, or may take such action as he or she is authorized under Article 73(a), UCMJ.

If the decision of the NMCMR is not subject to review by the COMA or, if JAG has not sent the case to the COMA and the accused has not filed a petition to the COMA, JAG will do the following: . If the sentence affirmed by the NMCMR includes a dismissal, send the record, the decision of the NMCMR, and JAG's recommendation to SECNAV for action.

. If the sentence affirmed by the NMCMR does not

include a dismissal, notify the CA, the OEGCMJ over the accused, or SECNAV who may order into execution any unexecuted sentence affirmed by the NMCMR.