§ 865. Art. 65. Transmittal and review of records

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(a)Transmittal of Records.—

(1)Finding of guilty in general or special court-martial.— If the judgment of a general or special court-martial entered under section 860c of this title (article 60c) includes a finding of guilty, the record shall be transmitted to the Judge Advocate General.

(2)Other cases.— In all other cases, records of trial by court-martial and related documents shall be transmitted and disposed of as the Secretary concerned may prescribe by regulation.

(b)Cases for Direct Appeal.—

(1)Automatic review.— If the judgment includes a sentence of death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable discharge or bad-conduct discharge, or confinement for 2 years or more, the Judge Advocate General shall forward—

(A)the record of trial to the Court of Criminal Appeals for review under section 866(b)(3) of this title (article 66(b)(3)); and

(B)a copy of the record of trial to an appellate defense counsel who shall be detailed to review the case and, upon request of the accused, to represent the accused before the Court of Criminal Appeals.

(2)Cases eligible for direct appeal review.—

(A)In general.— If the case is eligible for direct review under section 866(b)(1) of this title (article 66(b)(1)), the Judge Advocate General shall, upon written request of the accused—

(i)forward a copy of the record of trial to an appellate defense counsel who shall be detailed to review the case and to represent the accused before the Court of Criminal Appeals; and

(ii)forward a copy of the record of trial to civilian counsel provided by the accused.

(B)Inapplicability.— Subparagraph

(A)shall not apply if the accused waives the right to appeal under section 861 of this title (article 61).

(c)Notice of Right to Appeal.—

(1)In general.— The Judge Advocate General shall provide notice to the accused of the right to file an appeal under section 866(b)(1) of this title (article 66(b)(1)) by means of depositing 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 official service record of the accused.

(2)Inapplicability upon waiver of appeal.— Paragraph

(1)shall not apply if the accused waives the right to appeal under section 861 of this title (article 61).

(d)Review by Judge Advocate General.—

(1)By whom.— A review conducted under this subsection may be conducted by an attorney within the Office of the Judge Advocate General or another attorney designated under regulations prescribed by the Secretary concerned.

(2)Review of cases not eligible for direct appeal.—

(A)In general.— A review under subparagraph

(B)shall be completed in each general and special court-martial that is not eligible for direct appeal under paragraph

(1)or

(3)of section 866(b) of this title (article 66(b)).

(B)Scope of review.— A review referred to in subparagraph

(A)shall include a written decision providing each of the following:

(i)A conclusion as to whether the court had jurisdiction over the accused and the offense.

(ii)A conclusion as to whether the charge and specification stated an offense.

(iii)A conclusion as to whether the sentence was within the limits prescribed as a matter of law.

(iv)A response to each allegation of error made in writing by the accused.

(3)Review when direct appeal is waived, withdrawn, or not filed.—

(A)In general.— A review under subparagraph

(B)shall be completed in each general and special court-martial if—

(i)the accused waives the right to appeal or withdraws appeal under section 861 of this title (article 61); or

(ii)the accused does not file a timely appeal in a case eligible for direct appeal under subparagraph (A), (B), or

(C)of section 866(b)(1) of this title (article 66(b)(1)).

(B)Scope of review.— A review referred to in subparagraph

(A)shall include a written decision limited to providing conclusions on the matters specified in clauses (i), (ii), and

(iii)of paragraph (2)(B).

(e)Remedy.—

(1)In general.— If after a review of a record under subsection (d), the attorney conducting the review believes corrective action may be required, the record shall be forwarded to the Judge Advocate General, who may set aside the findings or sentence, in whole or in part.

(2)Rehearing.— In setting aside findings or sentence, the Judge Advocate General may order a rehearing, except that a rehearing may not be ordered in violation of section 844 of this title (article 44).

(3)Remedy without rehearing.—

(A)Dismissal when no rehearing ordered.— If the Judge Advocate General sets aside findings and sentence and does not order a rehearing, the Judge Advocate General shall dismiss the charges.

(B)Dismissal when rehearing impracticable.—

(i)In general.— Subject to clause (ii), 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.

(ii)Cases referred by special trial counsel.— If a case was referred to trial by a special trial counsel, a special trial counsel shall determine if a rehearing is impracticable and shall dismiss the charges if the special trial counsel so determines.

(Aug. 10, 1956, ch. 1041, 70A Stat. 59; Pub. L. 90–179, § 1(6), Dec. 8, 1967, 81 Stat. 546; Pub. L. 90–632, § 2(26), Oct. 24, 1968, 82 Stat. 1341; Pub. L. 96–513, title V, § 511(25), Dec. 12, 1980, 94 Stat. 2922; Pub. L. 98–209, § 6(d)(1), Dec. 6, 1983, 97 Stat. 1401; Pub. L. 114–328, div. E, title LIX, § 5329, Dec. 23, 2016, 130 Stat. 2930; Pub. L. 115–91, div. A, title X, § 1081(c)(1)(J), Dec. 12, 2017, 131 Stat. 1598; Pub. L. 117–81, div. A, title V, § 539A(a), Dec. 27, 2021, 135 Stat. 1698; Pub. L. 118–159, div. A, title V, § 563, Dec. 23, 2024, 138 Stat. 1903.)

In subsection (b), the word “If” is substituted for the word “Where”.

In subsections

(a)and (b), the words “send” and “sent” are substituted for the words “forward” and “forwarded”, respectively.

In subsection (c), the words “Secretary concerned” are substituted for the words “Secretary of the Department”.

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