New trial

(a) In general. At any time within three years after the date of entry of judgment, the accused may petition the Judge Advocate General for a new trial on the ground of newly discovered evidence or fraud on the court- martial. A petition may not be submitted after the death of the accused. A petition for a new trial of the facts may not be submitted on the basis of newly discovered evidence when the petitioner was found guilty of the relevant offense pursuant to a guilty plea. (b) Who may petition. A petition for a new trial may be submitted by the accused personally, or by accused’s counsel, regardless whether the accused has been separated from the Service. (c) Form of petition. A petition for a new trial shall be written and shall be signed under oath or affirmation by the accused, by a person possessing the power of attorney of the accused for that purpose, or by a person with the authorization of an appropriate court to sign the petition as the representative of the accused. The petition shall contain the following information, or an explanation why such matters are not included: (1) The name, service number, and current address of the accused; (2) The date and location of the trial; (3) The type of court-martial and the title or position of the convening authority; (4) The request for the new trial; (5) The sentence or a description thereof as reflected in the judgment of the case, with any later reduction thereof by clemency or otherwise; (6) A brief description of any finding or sentence believed to be unjust; (7) A full statement of the newly discovered evidence or fraud on the court-martial which is relied upon for the remedy sought; (8) Affidavits pertinent to the matters in paragraph (c)(7) of this rule; and (9) The affidavit of each person whom the accused expects to present as a witness in the event of a new trial. Each such affidavit should set forth briefly the relevant facts within the personal knowledge of the witness. (d) Effect of petition. The submission of a petition for a new trial does not stay the execution of a sentence. (e) Who may act on petition. If the accused’s case is pending before a Court of Criminal Appeals or the Court of Appeals for the Armed Forces, the Judge Advocate General shall refer the petition to the appropriate court for action. Otherwise, the Judge Advocate General of the armed force which reviewed the previous trial shall act on the petition, except that petitions submitted by persons who, at the time of trial and sentence from which the petitioner seeks relief, were members of the Coast Guard, and who were members of the Coast Guard at the time the petition is submitted, shall be acted on in the Department in which the Coast Guard is serving at the time the petition is so submitted. (f) Grounds for new trial. (1) In general. A new trial may be granted only on grounds of newly discovered evidence or fraud on the court-martial. (2) Newly discovered evidence. A new trial shall not be granted on the grounds of newly discovered evidence unless the petition shows that: (A) The evidence was discovered after the trial; (B) The evidence is not such that it would have been discovered by the petitioner at the time of trial in the exercise of due diligence; and (C) The newly discovered evidence, if considered by a court-martial in the light of all other pertinent evidence, would probably produce a substantially more favorable result for the accused. (3) Fraud on court-martial. No fraud on the court- martial warrants a new trial unless it had a substantial contributing effect on a finding of guilty or the sentence adjudged. (g) Action on petition. (1) In general. The authority considering the petition may cause such additional investigation to be made and such additional information to be secured as that authority believes appropriate. Upon written request, and in its discretion, the authority considering the petition may permit oral argument on the matter. (2) Courts of Criminal Appeals; Court of Appeals for the Armed Forces. The Courts of Criminal Appeals and the Court of Appeals for the Armed Forces shall act on a petition for a new trial in accordance with their respective rules. (3) The Judge Advocates General. When a petition is considered by the Judge Advocate General, any hearing may be before the Judge Advocate General or before an officer or officers designated by the Judge Advocate General. If the Judge Advocate General believes meritorious grounds for relief under Article 74 have been established but that a new trial is not appropriate, the Judge Advocate General may act under Article 74 if authorized to do so, or transmit the petition and related papers to the Secretary concerned with a recommendation. The Judge Advocate General may also, in cases which have been finally reviewed but have not been reviewed by a Court of Criminal Appeals, act under Article 69. (h) Action when new trial is granted. (1) Forwarding to convening authority. When a petition for a new trial is granted, the Judge Advocate General shall select and forward the case to a convening authority for disposition. (2) Charges at new trial. At a new trial, the accused may not be tried for any offense of which the accused was found not guilty or upon which the accused was not tried at the earlier court-martial. (3) Action by convening authority. The convening authority’s action on the record of a new trial is the same as in other courts-martial. (4) Disposition of record. The disposition of the record of a new trial is the same as for other courts- martial. (5) Judgment. After a new trial, a new judgment shall be entered in accordance with R.C.M. 1111. (6) Action by persons charged with execution of the sentence. Persons charged with the administrative duty of executing a sentence adjudged upon a new trial shall credit the accused with any executed portion or amount of the original sentence included in the new sentence in computing the term or amount of punishment actually to be executed pursuant to the sentence. II-129 CHAPTER XIII. SUMMARY COURTS-MARTIAL