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

App. 21, R.C.M. 1203(c) APPENDIX 21
confinement pending the appeal. See Moore v. Akins, 30 M.J. 249
(C.M.A. 1990).
(d) Notification to accused. This subsection is based on Article
67(c) (as amended, see Military Justice Amendments of 1981,
Pub.L. 97–81, § 5, 95 Stat. 1088-89) and on the first paragraph of
paragraph 100 c (1)(a) of MCM, 1969 (Rev.) (see Exec. Order
No. 12340 (Jan. 20, 1982)). The discussion is based on Article
67(b) and on the second paragraph of paragraph 100 c(1)(a) of
MCM, 1969 (Rev.).
(e) Cases not reviewed by the Court of Appeals for the Armed
Forces. Subsection (1) is based on the first sentence of paragraph
100 c(1)(b) of MCM, 1969 (Rev.). See Article 71(b). Subsection
(2) is based on the last sentence of paragraph 100c(1)(a) of
MCM, 1969 Rev.). See Article 66(e).
(f) Scope. This subsection clarifies that the procedures for Government
appeals of interlocutory rulings at trial are governed by
R.C.M. 908.
Rule 1204 Review by the Court of Appeals for the
Armed Forces
( a ) C a s e s r e v i e w e d b y t h e C o u r t o f A p p e a l s f o r t h e A r m e d
Forces. This subsection is based on the ninth sentence of Article
67(a)(1), on Article 67(b), and on the second sentence in Article
69. It generally repeats the first paragraph of paragraph 101 of
MCM, 1969 (Rev.) except insofar as that paragraph provided for
mandatory review by the Court of Appeals for the Armed Forces
of cases affecting general and flag officers. See Article 67(b)(1),
as amended by the Military Justice Act of 1983, Pub.L. No.
98–209, § 7(d), 97 Stat. 1393 (1983). The first paragraph in the
discussion is based on Article 67(a), (d), and (e), which were
repeated in the second and third paragraphs of paragraph 101 of
MCM, 1969 (Rev.). The second paragraph in the discussion is
based on United States v. Frischholz, 16 U.S.C.M.A. 150, 36
C.M.R. 306 (1966); 28 U.S.C. § 1651(a). See also Noyd v. Bond,
395 U.S. 683, 695 n. 7 (1969); United States v. Augenblick, 393
U.S. 348 (1969); Dobzynski v. Green 16 M.J. 84 (C.M.A. 1983);
Murray v. Haldeman, 16 M.J. 74 (C.M.A. 1983); United States v.
Labella, 15 M.J. 228 (C.M.A. 1983); Cooke v. Orser, 12 M.J. 335
(C.M.A. 1982); Wickham v. Hall, 12 M.J. 145 (C.M.A. 1981);
Cooke v. Ellis, 12 M.J. 17 (C.M.A. 1981); Vorbeck v. Commanding
Officer, 11 M.J. 480 (C.M.A. 1981); United States v. Redding,
11 M.J. 100 (C.M.A. 1981); United States v. Strow, 11 M.J. 75
(C.M.A. 1981); Stewart v. Stevens, 5 M.J. 220 (C.M.A. 1978);
Corley v. Thurman, 3 M.J. 192 (C.M.A. 1977); McPhail v. United
S t a t e s , 1 M . J . 4 5 7 ( C . M . A . 1 9 7 6 ) ; B r o o k i n s v . C u l l i n s , 2 3
U.S.C.M.A. 216, 49 C.M.R. 5 (1974); Chenoweth v. Van Arsdall,
22 U.S.C.M.A. 183, 46 C.M.R. 5 (1970); United States v. Snyder,
18 U.S.C.M.A. 480, 40 C.M.R. 192 (1969); United States v.
Bevilacqua, 18 U.S.C.M.A. 10, 39 C.M.R. 10 (1968); Gale v.
United States, 17 U.S.C.M.A. 40, 37 C.M.R. 304 (1967).
(b) Petition by the accused for review by the Court of Appeals
for the Armed Forces. Subsection (1) is based on the last paragraph
of paragraph 102 b of MCM, 1969 (Rev.). Note that if the
case reached the Court of Criminal Appeals by an appeal by the
Government under R.C.M. 908, the accused would already have
detailed defense counsel. Subsection (2) is based on C.M.A.R.
19(a)(3).
(c) Action on decision by the Court of Appeals for the Armed
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Forces. Subsection (1) substantially repeats Article 67(f) as did
its predecessor, the fourth paragraph of paragraph 101 of MCM,
1969 (Rev.) except that paragraph did not address possible review
by the Supreme Court. See Article 67(h); 28 U.S.C. § 1259.
Subsections (2) and (3) are based on Article 71(a) and (b) and on
the last paragraph of paragraph 101 of MCM, 1969 (Rev.). Subsection
(4) is new and reflects the possibility of review by the
Supreme Court. See Article 67(h); 28 U.S.C. § 1259. See also
Article 71.
Rule 1205 Review by the Supreme Court
This rule is new and is based on Article 67(h); 28 U.S.C. §§
1259, 2101. See Military Justice Act of 1983, Pub.L. No. 98–209,
§ 10, 97 Stat. 1393 (1983).
Rule 1206 Powers and responsibilities of the
Secretary
(a) Sentences requiring approval by the Secretary. This subsection
is based on the first sentence of Article 71(b).
(b) Remission and suspension. Subsection (1) is based on Article
74(a). Subsection (2) is based on Article 74(b). Subsection (3) is
based on the second paragraph of paragraph 105 b of MCM, 1969
(Rev.). See Exec. Order No. 10498 (Nov. 4, 1953), 18 Fed.Reg.
7003. The reference in paragraph 105 a of MCM, 1969 (Rev.) to
Secretarial authority to commute sentences in deleted here as
unnecessary. See Article 71(b).
Rule 1207 Sentences requiring approval by the
President
This rule is based on the first sentence of Article 71(a). Paragraph
105 a of MCM, 1969 (Rev.), which stated the President’s
power to commute sentences, is deleted. Such a statement is
unnecessary. See also U.S. Const. art. II, § 2, cl. 1; Schick v.
Reed, 419 U.S. 256 (1974).
Rule 1208 Restoration
Introduction. This rule is based on Article 75.
(a) New trial. This subsection is based on paragraph 110 d of
MCM, 1969 (Rev.). It has been modified based on the modification
of the procedure for executing sentences in new trials. See
Analysis, R.C.M. 1209. The last two paragraphs in paragraph 110
d are omitted here. They repeated Article 75(b) and (c), which are
referred to in the discussion.
(b) Other cases. This subsection is based on paragraph 106 of
MCM, 1969 (Rev.).
Rule 1209 Finality of courts-martial
(a) When a conviction is final. This subsection is based on Article
71(c), as amended, see Military Justice Act of 1983, Pub.L.
No. 98–209, § 5(e)(1), 97 Stat. 1393 (1983). See also Article 64.
Note that subsection (2)(B) qualifies (2)(A) even if the officer
exercising general court-martial jurisdiction over the accused (or
that officer’s successor) approves the findings and sentence, the
conviction is not final if review by the Judge Advocate General is
required. See Article 64(c)(3); R.C.M. 1201(b)(2). As to the finality
of an acquittal or disposition not amounting to findings of