United States v. Torres

22 C.M.A. 660

Opinion

On consideration of the Petition for Grant of Review and of the Reply of the United States thereto it appearing that a serious issue respecting the jurisdiction of the court-fnartial is presented, the factual basis of which is in dispute and may not satisfactorily be resolved on the basis of the record filed in this Court, it is, by the Court, this 24th day of October 1973:

ORDERED:

1. That the record be, and the same hereby is, remanded to the Judge Advocate General of the Army for reference to a proper convening authority who shall refer same to a special court-martial, the military judge of which shall be directed to conduct a hearing pursuant to Article 39(a), Uniform Code of Military Justice, 10 USC § 839(a); said military judge shall hear the respective contentions of the parties on the question, permit the presentation of witnesses and evidence in support thereof, and enter findings of fact and conclusions of law based thereon;

2. if said military judge determines that the special court-martial before which accused was tried lacked jurisdiction, he shall set aside the findings and sentence and dismiss the charges;

3. if he determines that said special court-martial had jurisdiction, he will enter his findings on the issue;

4. upon completion of the Article 39(a) session, the record, as supplemented by the proceedings herein directed, shall be forwarded to the convening authority for further review of the supplementary proceedings;

5. upon completion of the convening authority’s action, the record shall be forwarded in accordance with Article 66, Uniform Code, supra, 10 USC §866.

6. Subsequent to action by the Court of Military Review, the accused may further petition this Court pursuant to Article 67, Uniform Code, supra, 10 USC § 869.