Notification to Accused

The accused is notified of the decision of the NMCMR. If the accused has the right to petition the COMA for review, the accused is provided with a copy of the decision of the NMCMR bearing an endorsement notifying the accused of this right. The endorsement informs the accused that such a petition:

. may be filed only within 60 days from the time the accused was notified of the decision of the NMCMR or the mailed copy of the decision was postmarked, whichever is earlier; or

. may be sent through the officer immediately exercising general court-martial jurisdiction over the accused and through JAG or filed directly with the COMA.

The accused may be notified personally or a copy of the decision may be sent, after service on appellate counsel, by certified First-Class Mail to the accused. If JAG sends the case to the COMA, the accused should be so notified.

REVIEW BY A COURT OF MILITARY APPEALS

The COMA reviews the record in all cases:

l in which the sentence, as affirmed by an NMCMR, extends to death;

l reviewed by an NMCMR that JAG orders sent to a COMA for review; and

l reviewed by an NMCMR, except those referred to it by JAG, in which, upon petition by the accused and on good case shown, the COMA grants a review.

In cases reviewed, a COMA has authority to act only on matters of law. A COMA does not have the authority to (1) weigh the evidence; (2) judge the credibility of witnesses; or (3) make new findings of fact.

Whether there is sufficient evidence to sustain a finding of guilty, however, is a matter of law.

In a case certified by JAG to a COMA, action by the COMA is not restricted to the issues certified by JAG. In a case reviewed upon petition of an accused, the court is required to take action only with regard to the issues specified in the grant of review.

ACTION ON DECISION BY A COURT OF MILITARY APPEALS

After it acts on a case, the COMA may direct JAG to return the record to the NMCMR for further proceedings according to the decision of the court. Otherwise, unless the decision is subject to review by the Supreme Court, or there is to be further action by the President of the United States or SECNAV, JAG will instruct the CA to take action according to the decision of the COMA.

If the COMA affirms a sentence that must be approved by the President before it can be executed, JAG sends the record of trial, the decision of the NMCMR, the decision of the COMA, and the recommentation of JAG to SECNAV for the action of the President.

REVIEW BY THE UNITED STATES SUPREME COURT

Finally, review by the United States Supreme Court is possible under 28 U.S.C. $ 1259 and Article 67(h), UCMJ. Decisions of the COMA may be reviewed by the Supreme Court by a writ of certiorari in the following cases:

Q Cases reviewed by the COMA under Article 67(b)(1)

l Cases certified to the COMA by JAG under Article 67(b)(2)

l Cases in which the COMA granted a petition for review under Article 67(b)(3)

l Cases other than those described previously that the COMA has granted relief

A writ of certiorari is an order by the appellate court that is used by that court when it has discretion on whether or not to hear an appeal from a lower court. If the writ is denied, the court refuses to hear the appeal and, in effect, the previous judgement stands unchanged. If the writ is granted, then it has the effect of ordering the lower court to certify the record and send it to the higher court that has used its discretion to hear the appeal.

The Supreme Court may not review by a writ of certiorari any action of a COMA in refusing to grant a petition for review.

After the Supreme Court has taken action, other than denial of a petition for a writ of certiorari, in any case, JAG will, unless the case is returned to the COMA for further processing, send the case to the President or SECNAV, or instruct the CA to take action according to the decision.

VACATION OF SUSPENDED SENTENCE

An act of misconduct, to serve as the basis for vacation of the suspension of a sentence, must occur within the period of suspension. The order vacating the suspension is issued before the expiration of the period of suspension. The running of the period of suspension is interrupted by the unauthorized absence of the probationer or by commencement of proceedings to vacate the suspension. R.C.M. 1109 indicates that vacation of a suspended sentence may be based on a violation of the UCMJ. Furthermore, when all or part of the sentence has been suspended as a result of a pretrial agreement, the suspension may be vacated for violation of any of the lawful requirements of the probation, including the duty to obey the local civilian law (as well as military law), to refrain from associating with known drug users or dealers, and to consent to searches of his or her person, quarters, and vehicle at any time.

AUTHORITY, PROCEDURE, AND ACTION BY THE OFFICER HAVING SPCM JURISDICTION

Procedural rules for hearing requirements depend on the type of suspended sentence being vacated. . Sentence of any GCM or an SPCM including an

approved BCD. If the suspended sentence was adjudged by a GCM, or by an SPCM that included an approved BCD, the following rules apply. After giving notice to the accused, the officer having SPCM jurisdiction over the probationer personally holds a hearing to inquire into the alleged violation of probation. The procedure for the hearing is similar to that prescribed for a formal pretrial investigation (Article 32, UCMJ), and the accused has the right to detailed and/or civilian counsel at the hearing. The record of the hearing and the recommendations of the SPCM authority are sent to the OEGCMJ who may vacate the suspension. . Sentence of an SPCM not including a BCD or sentence of an SCM. If the suspended sentence was adjudged by an SPCM and does not include a BCD, or if the sentence was adjudged by an SCM, the following rules apply. The officer having SPCM jurisdiction over the probationer personally holds a hearing to inquire into the alleged violation of probation. The procedure for the hearing is similar to that prescribed for a formal pretrial investigation. The probationer must be accorded the same right to counsel at the hearing that he or she was entitled to at the court-martial that imposed the sentence, except there is no right to request individual military counsel. Counsel does not need to be the same counsel who originally represented the _probationer. If the officer having SPCM jurisdiction over the probationer decides to vacate all or a portion of the suspended sentence, he or she records the evidence that he or she relied on and the reasons for vacating the suspension in his or her action.

The officer who actually vacates the suspension executes a written statement including a summary of the evidence he or she is relying on and his or her reasons for vacating the suspension.

If, based on an act of misconduct in violation of the terms of suspension, the accuscd is confined before the actual vacation of the suspended sentence, a preliminary hearing must be held before a neutral and detached officer to determine whether there is probable cause to believe the accused has violated the terms of his or her suspension. JAGMAN 0150 indicates that this officer should be one who is appointed to review pretrial confinement under R.C.M. 305.

RECORD OF PROCEEDINGS TO VACATE SUSPENDED SENTENCE

The officer who conducts the vacation proceeding makes a summarized record of the proceeding, using DD Form 455, Report of Proceedings to Vacate Suspension of General Court-Martial Sentence or of a Special Court-Martial Sentence Including a Bad-Conduct Discharge, and sends the record and his or her written recommendation about vacation to the OEGCMJ over the probationer.

ACTION BY THE OFFICER EXERCISING GCM JURISDICTION

Based on the record produced by and the recommendation of the officer exercising special court-martial jurisdiction over the probationer, the OEGCMJ over the probationer decides whether the probationer violated a condition of suspension and, if so, whether to vacate the suspended sentence. If the OEGCMJ decides to vacate, he or she prepares a written statement of evidence relied on and the reasons for vacating.

Any unexecuted part of a suspended sentence ordered vacated is vacated at this point.

CLEMENCY

What is clemency? Clemency is defined as that action, other than the correction of a legal error, that results in mitigation, remission, or suspension of the whole or any part of the unexecuted portion of a court-martial sentence, restoration to duty, or full or partial restoration of paygrade.

RECOMMENDATION FOR CLEMENCY

When an accused is convicted, an important posttrial duty of the DC is to prepare, in a proper case, a recommendation for clemency. The recommendation is made to the CA. However, since the recommendation is attached to the record of trial, it can be considered by any reviewing authority who has the power to act upon the recommendations; for example, JAG or the NMCMR. The DC usually initiates the recommendation for clemency. However, it may also be initiated by a court member.

Mitigating circumstances that could not be taken into consideration in determining the sentence may be a basis for a recommendation for clemency; either the court members or the military judge may wish to recommend that the CA suspend the sentence since the court has no power to award a suspended sentence. The recommendation should be specific as to the reasons for the recommendation. A recommendation for clemency should never be based upon a doubt as to the accused's guilt.

When considered appropriate, disposition boards, commanding officers, or BUPERS may, with respect to the unexecuted parts of a sentence, recommend one or more of the following:

Restoration to duty on probation

Remission of the punitive discharge or dismissal

Reduction in confinement, forfeitures, or fines

Mitigation of the discharge to one less severe

Full or partial restoration to paygrade or precedence

No clemency

NAVAL CLEMENCY AND PAROLE BOARD

The Naval Clemency and Parole Board was established by SECNAV to make appropriate recommendations in the cases of Navy and Marine Corps personnel eligible for clemency consideration. The board is composed of representatives of the Commandant of the Marine Corps, the Chief of Naval Personnel, the Judge Advocate General, the Chief, Bureau of Medicine and Surgery, and the Navy Council of Personnel Boards. The board bases its recommendations on the background of the individual concerned-his or her civil and military history, adjustment in confinement or while awaiting completion of appellate review if not confined, motivation for future service, the nature and circumstances of the offense(s), the recommendation of the commanding officer, and the recommendation of the Chief of Naval Personnel.

Recommendations to the Naval Clemency and Parole Board must comply with the provisions of SECNAVINST 5815.3. This instruction sets forth explicit directions and procedures for the submission of requests for clemency. At a minimum, the following documents must be submitted with a request for clemency:

l Petitioner's request

l Court-martial progress report

l Court-martial order and any supplementary court-martial orders

l Judge advocate's review

l The record of trial

SUMMARY

The material covered in this chapter is an important aspect of the total court-martial procedure. The posttrial actions required after a court-martial has adjourned is just another aspect of the Legalman rating. Normally those LNs assigned to duty with a CA/SJA will handle the larger part of posttrial administrative work. These procedures are very important and the regulations governing them must be strictly followed in order to guarantee cases will not be overturned on appeal.