2008 edition - Fort Sam Houston - U.S. Army

T h e a c c u s e d m a y p e t i t i o n t h e C o u r t o f A p p e a l s f o r t h e
Armed Forces for review, as to any matter of law, of any decision
of the Court of Criminal Appeals except: (1) a case which was
referred to the Court of Criminal Appeals by the Judge Advocate
General under R.C.M. 1201(b)(1); (2) a case in which the Court
of Criminal Appeals has set aside the sentence; and (3) a case in
which the sentence includes death (because review by the Court
of Appeals for the Armed Forces is mandatory).
The placing of a petition for review in proper military channels
divests the Court of Criminal Appeals of jurisdiction over the
case, and jurisdiction is thereby conferred on the Court of Appeals
for the Armed Forces. See R.C.M. 1113 concerning action
to be taken if the accused does not file or the Court of Appeals
for the Armed Forces denies a petition for review.
(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.
(e) 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 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,
the Judge Advocate General shall—
(1) 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, notify the
convening authority, the officer exercising general
court-martial jurisdiction over the accused, or the
Secretary concerned, as appropriate, who, subject to
R.C.M. 1113(c)(1), may order into execution any
R.C.M. 1204(b)
unexecuted sentence affirmed by the Court of Criminal
Appeals or take other action, as authorized.
Discussion
See R.C.M. 1113, 1206, and Article 74(a) concerning the authority
of the Secretary and others to take action.
(f) Scope. Except as otherwise expressly provided in
this rule, this rule does not apply to appeals by the
Government under R.C.M. 908.
Rule 1204. Review by the Court of Appeals
for the Armed Forces
(a) Cases reviewed by the Court of Appeals for the
Armed Forces. Under such rules as it may prescribe,
the Court of Appeals for the Armed Forces shall
review the record in all cases:
(1) In which the sentence, as affirmed by a Court
of Criminal Appeals, extends to death;
(2) Reviewed by a Court of Criminal Appeals
which the Judge Advocate General orders sent to the
Court of Appeals for the Armed Forces for review;
and
(3) Reviewed by a Court of Criminal Appeals,
except those referred to it by the Judge Advocate
General under R.C.M. 1201(b)(1), in which, upon
petition by the accused and on good cause shown,
the Court of Appeals for the Armed Forces has granted
a review.
Discussion
See Article 67(a) concerning the composition of the Court of
Appeals for the Armed Forces. In any case reviewed by it, the
Court of Appeals for the Armed Forces may act only with respect
to the findings and sentence as approved by the convening authority
and as affirmed or set aside as incorrect in law by the Court of
Criminal Appeals. See Article 67(d) and (e). The rules of practice
and procedure before the Court of Appeals for the Armed Forces
are published in the Military Justice Reporter.
The Court of Appeals for the Armed Forces may entertain
petitions for extraordinary relief and may issue all writs necessary
or appropriate in aid of its jurisdiction and agreeable to the usages
and principles of law. Any party may petition the Court of Appeals
for the Armed Forces for extraordinary relief. However, in
the interest of judicial economy, such petitions usually should be
filed with and adjudicated before the appropriate Court of Criminal
Appeals prior to submission to the Court of Appeals for the
Armed Forces.
(b) Petition by the accused for review by the Court
of Appeals for the Armed Forces.
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