§44-869. Review by State Judge Advocate.

692 words·~3 min read·/ok/title-44-militia/44-869

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

ARTICLE 69. Review by State Judge Advocate.

A. In general. Upon application by the accused and subject to subsections B, C and D of this section, the State Judge Advocate may modify or set aside, in whole or in part, the findings and sentence in a court-martial that is not reviewed under Section 866 of this title (Article 66).

B. Timing. To qualify for consideration, an application under subsection A of this section shall be submitted to the State Judge Advocate not later than one

(1)year after the date of completion of review under Section 864 or 865 of this title (Article 64 or 65), as the case may be. The State Judge Advocate may, for good cause shown, extend the period for submission of an application, but may not consider an application submitted more than three

(3)years after such completion date.

C. Scope.

1. a. In a case reviewed under Section 864 or subsection B

of Section 865 of this title (Article 64 or Article

65, subsection B), the State Judge Advocate may set

aside the findings or sentence, in whole or in part,

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 setting aside findings or sentence, the State Judge

Advocate may order a rehearing, except that a

rehearing may not be ordered in violation of Section

844 of this title (Article 44).

c. If the State Judge Advocate sets aside findings and

sentence and does not order a rehearing, the State

Judge Advocate shall dismiss the charges.

d. If the State Judge Advocate 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.

2. In a case reviewed under subsection B of Section 865 of this title (Article 65, subsection B), review under this section is limited to the issue of whether the waiver or withdrawal of an appeal was invalid under the law. If the State Judge Advocate determines that the waiver or withdrawal of an appeal was invalid, the State Judge Advocate shall order appropriate corrective action under regulations promulgated by the Adjutant General.

D. Military Court of Appeals.

1. The Military Court of Appeals may review the action taken by the State Judge Advocate under subsection C of this section:

a. in a case sent to the Military Court of Appeals by

order of the State Judge Advocate, or

b. in a case submitted to the Military Court of Appeals

by the accused in an application for review.

2. The Military Court of Appeals may grant an application under subparagraph b of paragraph 1 of this subsection only if:

a. the application demonstrates a substantial basis for

concluding that the action on review under subsection

C of this section constituted prejudicial error, and

b. the application is filed not later than the earlier

of:

(1)sixty

(60)days after the date on which the

accused is notified of the decision of the State

Judge Advocate, or

(2)sixty

(60)days after the date on which a copy of

the decision of the State Judge Advocate is

deposited in the United States mail 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 his or

her official service record.

3. The submission of an application for review under this subsection does not constitute a proceeding before the Military Court of Appeals for purposes of paragraph 1 of subsection C of Section 870 of this title (Article 70, subsection C, paragraph 1).

E. Action only on matters of law. Notwithstanding Section 866 of this title (Article 66), in any case reviewed by the Military Court of Appeals under subsection D of this section, the Court may take action only with respect to matters of law. Added by Laws 2019, c. 408, § 85, eff. Oct. 1, 2019.