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Form and Content of a Judge Advocate’s Review
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Notification to Accused - 14134_260
. 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 Forwarding a Record of Trial to the Judge Advocate  General Assuming that appellate review has not been waived or withdrawn by the accused, an SPCM involving a BCD, whether or not suspended, will be sent directly to the Office of the Judge Advocate General of the Navy.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. 8-31

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