Review by the Judge Advocate General

(a) Review of certain general and special courts- martial. Except as provided in subsection (b), an attorney designated by the Judge Advocate General shall review: (1) Each general and special court-martial case that is not eligible for appellate review by a Court of Criminal Appeals under Article 66(b)(1) or (3); and (2) Each general or special court-martial eligible for appellate review by a Court of Criminal Appeals in which the Court of Criminal Appeals does not review the case because: (A) In a case under Article 66(b)(3), other than one in which the sentence includes death, the accused withdraws direct appeal or waives the right to appellate review. (B) In a case under Article 66(b)(1), the accused does not file a timely appeal, or files a timely appeal and then withdraws it. (b) Exception. If the accused was found not guilty or not guilty only by reason of lack of mental responsibility of all offenses, or if the convening authority set aside all findings of guilty, no review under this rule is required. (c) By whom. (1) A review conducted under this rule may be conducted by an attorney within the Office of the Judge Advocate General or another attorney designated by the Judge Advocate General under regulations prescribed by the Secretary concerned. (2) No person may review a case under this rule if that person has acted in the same case as an accuser, preliminary hearing officer, member of the court- martial, military judge, or counsel, or has otherwise acted on behalf of the prosecution or defense. (d) Form and content for review of cases not eligible for appellate review at the Court of Criminal Appeals. The review referred to in paragraph (a)(1) shall include a written conclusion as to each of the following: (1) Whether the court had jurisdiction over the accused and the offense; (2) Whether each charge and specification stated an offense; (3) Whether the sentence was within the limits prescribed as a matter of law; and II-122 (4) When applicable, a response to each allegation of error made in writing by the accused. (e) Form and content for review of cases in which the accused has waived or withdrawn appellate review or failed to file an appeal. The review referred to in paragraph (a)(2) shall include a written conclusion as to each of the following: (1) Whether the court had jurisdiction over the accused and the offense; (2) Whether each charge and specification stated an offense; and (3) Whether the sentence was within the limits prescribed as a matter of law. (f) Remedies. (1) If the attorney conducting the review under subsection (a) believes corrective action is required, the attorney shall forward the matter to the Judge Advocate General, who may modify or set aside the findings or sentence, in whole or in part. (2) In setting aside the findings or sentence, the Judge Advocate General may order a rehearing, except that a rehearing may not be ordered where the evidence was legally insufficient at the trial to support the findings. (3) If the Judge Advocate General sets aside findings and sentence and does not order a rehearing, the Judge Advocate General shall dismiss the charges. (4) If the Judge Advocate General 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. (g) Notification. After a case is reviewed under subsection (a), the accused shall be notified of the results of the review and any action taken by the Judge Advocate General or convening authority by means of depositing a copy of the review and any modified judgment in the United States mails 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 accused’s official service record. Proof of service shall be attached to the record of trial. (h) Application for relief to the Judge Advocate General after final review. (1) In general. Notwithstanding R.C.M. 1209, the Judge Advocate General may, upon application of the accused or a person with authority to act for the accused or receipt of the record pursuant to R.C.M. 1307(g): (A) With respect to a summary court-martial previously reviewed under R.C.M. 1307, modify or set aside, in whole or in part, the findings and sentence; or (B) With respect to a general or special court- martial previously reviewed under paragraph (a)(1) or (2), order such a court-martial to be reviewed under R.C.M. 1203 by the Court of Criminal Appeals. (2) Timing. To qualify for consideration under this subsection, an accused must submit an application not later than one year after— (A) In the case of a summary court-martial, the date of completion of review under R.C.M. 1307; or (B) In the case of a general or special court- martial, the end of the 90-day period beginning on the date the accused is provided notice of appellate rights under R.C.M. 1116(b)(2). (3) Extension. The Judge Advocate General may, for good cause shown, extend the period for submission of an application under paragraph (h)(2) for a time period not to exceed three additional years. The Judge Advocate General may not consider an application submitted more than three years after the applicable expiration date specified in paragraph (h)(2). (4) Scope. (A) In a case previously reviewed under R.C.M. 1307 or paragraph (a)(1), the Judge Advocate General may act on the grounds of newly discovered evidence, fraud on the court, lack of jurisdiction over the accused or the offense, error prejudicial to the substantial rights of the accused, or the appropriateness of the sentence. (B) In a case previously reviewed under paragraph (a)(2), the Judge Advocate General’s review is limited to the issue of whether the waiver, withdrawal, or failure to file an appeal was invalid under the law. (5) Procedure. Each Judge Advocate General shall provide procedures for considering all cases properly submitted under this rule and may prescribe the manner by which an application for relief under this rule may be made and, if submitted by a person other than the accused, may require that the applicant show authority to act on behalf of the accused. (i) Remission and suspension. The Judge Advocate General may, when so authorized by the Secretary concerned under Article 74, at any time remit or suspend the unexecuted part of any sentence, other than a sentence approved by the President. (j) Mandatory review of summary courts-martial forwarded under R.C.M. 1307. The Judge Advocate General shall review summary courts-martial if the record of trial and the action thereon are forwarded under R.C.M. 1307(g). On such review, the Judge Advocate General may vacate or modify, in whole or in part, the findings or sentence, or both, of the court- martial on the ground of newly discovered evidence, fraud on the court-martial, lack of jurisdiction over the accused or the offense, error prejudicial to the substantial rights of the accused, or the appropriateness of the sentence. (k) Cases referred or submitted to the Court of Criminal Appeals. (1) In general. Action taken by the Judge Advocate General under subsections (h) or (j) may be reviewed by the Court of Criminal Appeals under Article 69(d) as follows: (A) The Judge Advocate General may forward a case to the Court of Criminal Appeals. If the case is forwarded to a Court of Criminal Appeals, the accused shall be informed and shall have the rights to appellate defense counsel afforded under R.C.M. 1202(b)(2). (B) The accused may submit an application for review to the Court of Criminal Appeals. The Court of Criminal Appeals may grant such an application only if the application demonstrates a substantial basis for concluding that the Judge Advocate General’s action under this rule constituted prejudicial error, and the application is filed not later than the earlier of— (i) 60 days after the date on which the accused is notified of the decision of the Judge Advocate General; or (ii) 60 days after the date on which a copy of the decision of the Judge Advocate General is deposited in the United States mails 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 accused’s official service record. Proof of service shall be attached to the record of trial. (2) The submission of an application for review under subparagraph (k)(1)(B) does not constitute a proceeding before the Court of Criminal Appeals for purposes of representation by appellate defense counsel under Article 70(c)(1). (3) In any case reviewed by a Court of Criminal Appeals under this subsection, the Court may take II-123 action only with respect to matters of law.