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. 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or withdrawn by the accused, an SPCM involving a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.
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