§ 44-865 — Transmittal and review of records.

ARTICLE 65. Transmittal and review of records. A. Transmittal of records. 1. Finding of guilty in general or special court-martial. If the judgment of a general or special court-martial entered under Section 860C of this title (Article 60C) includes a finding of guilty, the record shall be transmitted to the State Judge Advocate. 2. Other cases. In all other cases, records of trial by court- martial and related documents shall be transmitted and disposed of as the Adjutant General may prescribe by regulation. B. Cases for direct appeal. 1. Automatic review. If the judgment includes a sentence of dismissal of a commissioned officer, or cadet, dishonorable discharge or bad-conduct discharge, or confinement for two (2) years or more, the State Judge Advocate shall forward the record of trial to the Military Court of Appeals for review under paragraph 3 of subsection F of Section 866 of this title (Article 66, subsection F, paragraph 3). 2. Cases eligible for direct appeal review. a. In general. If the case is eligible for direct review under paragraph 1 of subsection F of Section 866 of this title (Article 66, subsection F, paragraph 1), the State Judge Advocate shall: (1) forward a copy of the record of trial to an appellate defense counsel who shall be detailed to review the case and, upon request of the accused, to represent the accused before the Military Court of Appeals, and (2) upon written request of the accused, forward a copy of the record of trial to civilian counsel provided by the accused. b. Inapplicability. Subparagraph a of this paragraph shall not apply if the accused: (1) waives the right to appeal under Section 861 of this title (Article 61), or (2) declines in writing the detailing of appellate defense counsel under division (1) of subparagraph a of this paragraph. C. Notice of right to appeal. 1. In general. The State Judge Advocate shall provide notice to the accused of the right to file an appeal under paragraph 1 of subsection F of Section 866 of this title (Article 66, subsection F, paragraph 1) by means of depositing in the United States mail for delivery by first-class certified mail to the accused at an address provided by the accused or, if no such address has been provided by the accused, at the latest address listed for the accused in the official service record of the accused. 2. Inapplicability upon waiver of appeal. Paragraph 1 of this subsection shall not apply if the accused waives the right to appeal under Section 861 of this title (Article 61). D. Review by State Judge Advocate. 1. By whom. A review conducted under this subsection may be conducted by an attorney within the Office of the State Judge Advocate or another attorney designated under regulations prescribed by the Adjutant General. 2. Review of cases not eligible for direct appeal. a. In general. A review under subparagraph b of this paragraph shall be completed in each general and special court-martial that is not eligible for direct appeal under paragraph 1 or 3 of subsection F of Section 866 of this title (Article 66, subsection F, paragraph 1 or 3). b. Scope of review. A review referred to in subparagraph a of this paragraph shall include a written decision providing each of the following: (1) a conclusion as to whether the court had jurisdiction over the accused and the offense, (2) a conclusion as to whether the charge and specification stated an offense, (3) a conclusion as to whether the sentence was within the limits prescribed as a matter of law, and (4) a response to each allegation of error made in writing by the accused. 3. Review when direct appeal is waived, withdrawn, or not filed. a. In general. A review under subparagraph b of this paragraph shall be completed in each general and special court-martial if: (1) the accused waives the right to appeal or withdraws appeal under Section 861 of this title (Article 61), or (2) the accused does not file a timely appeal in a case eligible for direct appeal under subparagraph a, b or c of paragraph 1 of subsection F of Section 866 of this title (Article 66, subsection F, paragraph 1, subparagraph a, b or c). b. Scope of review. A review referred to in subparagraph a of this paragraph shall include a written decision limited to providing conclusions on the matters specified in divisions (1), (2) and (3) of subparagraph b of paragraph 2 of this subsection. E. Remedy. 1. In general. If, after a review of a record under subsection D of this section, the attorney conducting the review believes corrective action may be required, the record shall be forwarded to the State Judge Advocate, who may set aside the findings or sentence, in whole or in part. 2. Rehearing. In setting aside findings or sentence, the State Judge Advocate may order a rehearing, except that a rehearing may not be ordered in violation of Section 844 of this title (Article 44). 3. Remedy without rehearing. a. Dismissal when no rehearing ordered. If the State Judge Advocate sets aside findings and sentence and does not order a rehearing, the State Judge Advocate shall dismiss the charges. b. Dismissal when rehearing impractical. If the State Judge Advocate sets aside findings and orders a rehearing and the convening authority determines that a rehearing would be impractical, the convening authority shall dismiss the charges.

Legislative History

Added by Laws 2019, c. 408, § 80, eff. Oct. 1, 2019.