Review by a Court of Criminal Appeals

(a) In general. Each Judge Advocate General shall establish a Court of Criminal Appeals composed of appellate military judges who shall serve for a tour of not less than three years, subject to such provision for reassignment as may be prescribed in regulations issued by the Secretary concerned. (b) Cases reviewed by a Court of Criminal Appeals— Automatic Review. A Court of Criminal Appeals shall review cases forwarded to it by the Judge Advocate General under Article 65(b)(1). (c) Cases eligible for review by a Court of Criminal Appeals—Appeal by the accused. A Court of Criminal Appeals shall review a timely appeal from the judgment of the court-martial in accordance with the standards set forth in Article 66(b)(1) and the rules prescribed under Article 66(h). (d) Timeliness. In order for an appeal under subsection (c) to be timely, it must be filed in accordance with Article 66(c) and the rules prescribed under Article 66(h). (e) Action on cases reviewed by a Court of Criminal Appeals. (1) Forwarding by the Judge Advocate General to the Court of Appeals for the Armed Forces. The Judge Advocate General may forward the decision of the Court of Criminal Appeals to the Court of Appeals for the Armed Forces for review with respect to any matter of law. In such a case, the Judge Advocate General shall cause a copy of the decision of the Court of Criminal Appeals and the order forwarding the case to be served on the accused and on appellate defense counsel. While a review of a forwarded case is pending, the Secretary concerned may defer further service of a sentence to confinement that has been ordered executed in such a case. (2) Action when sentence is set aside. In a case reviewed by it under this rule in which the Court of Criminal Appeals has set aside the sentence and which is not forwarded to the Court of Appeals for the Armed Forces under paragraph (e)(1), the Judge Advocate General shall instruct an appropriate authority to modify the judgment in accordance with the decision of the Court of Criminal Appeals. If the Court of Criminal Appeals has ordered a rehearing on sentence, the record shall be sent to an appropriate convening authority. If that convening authority finds a rehearing impracticable that convening authority may order that a sentence of no punishment be imposed. (3) Action when sentence is affirmed in whole or part. (A) Sentence requiring approval by the President. If the Court of Criminal Appeals affirms any sentence which includes death, the Judge Advocate General shall transmit the record of trial and the decision of the Court of Criminal Appeals directly to the Court of Appeals for the Armed Forces when any period for reconsideration provided by the rules of the Courts of Criminal Appeals has expired. (B) Other cases. If the Court of Criminal Appeals affirms any sentence other than one which includes death, the Judge Advocate General shall cause a copy of the decision of the Court of Criminal Appeals to be served on the accused in accordance with subsection (f). (4) Remission or suspension. If the Judge Advocate General believes that a sentence as affirmed by the Court of Criminal Appeals, other than one which includes death, should be remitted or suspended in whole or part, the Judge Advocate General may, before taking action under paragraphs (e)(1) or (3), transmit the record of trial and the decision of the Court of Criminal Appeals to the Secretary concerned with a recommendation for action under Article 74 or may take such action as may be authorized by the Secretary concerned under Article 74(a). (5) Action when accused lacks mental capacity. In a review conducted under subsection (b) or (c), the Court of Criminal Appeals may not affirm the proceedings while the accused lacks mental capacity to understand and to conduct or cooperate intelligently in the appellate proceedings. In the absence of substantial evidence to the contrary, the accused is presumed to have the capacity to understand and to conduct or cooperate intelligently in the appellate proceedings. If a substantial question is raised as to the requisite mental capacity of the accused, the Court of Criminal Appeals may direct an examination of the accused in accordance with R.C.M. 706, but the examination may be limited to determining the accused’s present capacity to understand and cooperate in the appellate proceedings. The Court may further order a remand under R.C.M. 810(f) as may be necessary. If the record is thereafter returned to the Court of Criminal Appeals, the Court of Criminal Appeals may affirm part or all of the findings or sentence unless it is established, by a preponderance of the evidence—including matters outside the record of trial—that the accused does not have the requisite mental capacity. If the accused does not have the requisite mental capacity, the Court of Criminal Appeals shall stay the proceedings until the accused regains appropriate capacity, or take other appropriate action. Nothing in this subsection shall prohibit the Court of Criminal Appeals from making a determination in favor of the accused which will result in the setting aside of a conviction. (f) Notification to accused. (1) Notification of decision. The accused shall be notified of the decision of the Court of Criminal Appeals the Secretary concerned. in accordance with regulations of (2) Notification of right to petition the Court of Appeals for the Armed Forces for review. If the accused has the right to petition the Court of Appeals for the Armed Forces for review, the accused shall be provided with a copy of the decision of the Court of Criminal Appeals bearing an endorsement notifying the accused of this right. The endorsement shall inform the accused that such a petition: (A) May be filed only within 60 days from the time the accused was in fact notified of the decision of the Court of Criminal Appeals or the mailed copy of the decision was postmarked, whichever is earlier; and exercising (B) May be forwarded through the officer court-martial immediately jurisdiction over the through appropriate Judge Advocate General or filed directly with the Court of Appeals for the Armed Forces. the accused and general (3) Receipt by the accused—disposition. When the accused has the right to petition the Court of Appeals for the Armed Forces for review, the receipt of the accused for the copy of the decision of the Court of Criminal Appeals, a certificate of service on the accused, or the postal receipt for delivery of certified mail shall be transmitted in duplicate by expeditious means to the appropriate Judge Advocate General. If the accused is personally served, the receipt or certificate of service shall show the date of service. The Judge Advocate General shall forward one copy of the receipt, certificate, or postal receipt to the clerk of the Court of Appeals for the Armed Forces when required by the court. (g) Cases not reviewed by the Court of Appeals for the Armed Forces. If the decision of the Court of Criminal Appeals is not subject to review by the Court of II-125 Appeals for the Armed Forces, or if the Judge Advocate General has not forwarded the case to the Court of Appeals for the Armed Forces and the accused has not filed or the Court of Appeals for the Armed Forces has denied a petition for review, then either: (1) The Judge Advocate General shall, if the sentence affirmed by the Court of Criminal Appeals includes a dismissal, transmit the record, the decision of the Court of Criminal Appeals, and the Judge Advocate General’s recommendation to the Secretary concerned for action under R.C.M. 1206; or (2) If the sentence affirmed by the Court of Criminal Appeals does not include a dismissal, the unexecuted portion of the sentence affirmed by the Court of Criminal Appeals shall be executed in accordance with R.C.M. 1102.