POST-TRIAL
REVIEW
&
APPELLATE
PROCEDURES
Learning Objectives
 Understand
the basic Post-Trial Review
procedures:
RCM 1105 matters
SJA’s recommendation under RCM 1106
 Understand
the meaning and effect of
the Convening Authority’s Action
 Describe the basic Appellate scheme
including mandatory Appeals
Progression of Post-Trial Events
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Last Day of Trial
Results of Trial
Transcription of the Record
Authentication of Record
Service of Record
Submission of 1105 Clemency
SJAR
Service of SJAR
Submission of 1106 Matters
SJAR Addendum
Convening Authority Action
Service of Convening Authority Action
Mailing of Complete Record of Trial to Navy and Marine Corps
Appellate Relief Activity (OJAG)
PRELIMINARY STEPS
•Results of Trial: RCM 1101(a)
TC prepares following trial
Evidence of trial and outcome before
Record of Trial Produced
Used by PSD to execute FF, R-in-R, &
Automatic FF on DAY 15
Used by Brig to determine release date
Sample in Post Trial Matters at page 2
PRELIMINARY STEPS

RECORD OF TRIAL (ROT)
 GCM & SPCM W/Punitive discharge or >6mos
conf/FOP
• Verbatim Record….months!!!
GCM & SPCM without Punitive discharge or
<6mos conf/FOP
• Summarized Record . . . Quicker, but still
months
• TC Responsible for preparation
Normally authenticated by MJ

Served on DC or Accused (Accused elects in Appellate
Rights Statement)
PRELIMINARY STEPS
R.C.M. 1105
 Prior
to taking action, CA must
give defense an opportunity to
submit “matters” for consideration
 Any
matter which may reasonably
tend to affect the CA’s decision to
approve, disapprove, change
findings or sentence
R.C.M. 1105 MATTERS
 Clemency
Recommendations
Military Judge, Members, Chain of
Command
E
& M Stuff
Both new and old, CA has no obligation
to read ROT
 Allegations
of legal error
If not raised, issue NOT WAIVED
1105 TIME PERIODS

GCM & SPCM W/BCD OR W/1YR CONF
10 days from receipt of ROT
Plus, a second 10 Day period following
receipt of SJAR
 SPCM W/O BCD OR 1 YR CONF
10 days from receipt of ROT
 Upon timely request, the CA MAY grant an
additional 20 Days
SJA/LO may approve
Only CA may disapprove
FORMAT FOR 1105
SUBMISSIONS
 Generally
done with a memo from
DC to CA, with supporting
enclosures
 Use Standard Navy Correspondence
Format
 What clemency requested? Why
should CA do it? How is justice best
served by granting requested
clemency?
SJA/LEGAL OFFICER
RECOMMENDATION
 Required
in GCM, BCD SPCM, OR
SPCM w/1yr confinement
 Purpose
- To assist the CA in taking
action on the court-martial
 SJA/LO:
Commissioned Officer!!
Command without SJA, may use a
“loaner” judge advocate
SJAR / LOR: MUST INCLUDE
RCM 1106
Findings/Sentence
Summary
of SRB
PTR (if any)
Effects
of PTA (if any)
Specific Recommendation
Address legal error raised
Clemency
(if any)
recommendation by MJ
PRIOR TO FORWARDING
SJAR/LOR TO CA
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Serve SJAR/LOR on DC & Accused
Accused may elect to have copy served on DC,
but DC ENTITLED TO OWN COPY!
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DC has 10 days to respond:
This is second window to submit clemency
matters
Should also comment upon any errors in the
SJAR
WAIVER APPLIES!!!
Failure to respond in time = WAIVER
SUPPLEMENTAL
SJAR/LOR
 SJA/LO
may issue a
Supplemental Recommendation
based on DC’s response
 SJA must
serve Supplemental
SJAR on DC if it contains “New
Matter”
SJAR/LOR
COMMON ERRORS
Charges, pleas, findings, sentence, or PTA
impact incorrectly stated
 Failure to note MJ or members clemency
recommendation
 Inaccurate summary of service record
 Failure to make specific recommendations
 No proof of service on accused & counsel
 Additional matters to CA without chance for
member to respond
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CONVENING AUTHORITY
ACTION
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CA’s function - non-delegable
Drafted by SJA/LO, but personal decision of
CA
Often SJAR will include CA’s action for CA’s
signature that is consistent with SJA
recommendation
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Case may be forwarded to
GCMCA for “Substitute” CA Action
CA’S ACTION
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Action on findings
Not required!!
CA can approve, approve a
lesser included offense, or
disapprove each finding
CA’S ACTION
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Action on sentence
 This required for each part of the
sentence
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On each piece of adjudged
punishment CA must either:
Approve
Approve and suspend
Disapprove
Mitigate or commute
CA SHALL CONSIDER:
Results of Trial
Recommendation of
SJA/LO
1105 and 1106 matters
CA MAY CONSIDER
 Record of Trial
 Accused's SRB
 Other matters
 CA MUST notify accused of
adverse matters and afford
opportunity to rebut
EXECUTION OF
SENTENCE
 Once
approved, CA’s Action also
“executes” unsuspended punishment
Except discharge, dismissal and death
 Execution
= Order to carry out sentence
 However many punishments already in
effect
Confinement: Day of Trial
FF and RinR: Day 15
CONTENT OF CA’S
ACTION
 Review
Example at page 35 of
POST TRIAL GUIDE
 Examples
of all possible actions
taken in Appendix 16, MCM
SUSPENDED CONFINEMENT

In the case of ___, the sentenced is
approved and will be executed, but the
execution of that part of the sentence
extending to confinement in excess of 1
year is suspended for 1 year, at which
time, unless sooner vacated, the
suspended part of the sentence will be
remitted without further action. Naval
Brig Rota is designated as place of
confinement.
PROMULGATING ORDER
 Publish
the results of trial and CAA
 Issued in EVERY SPCM/GCM case
 SJA/LO generates promulgating
order and signs by direction
 “Supplementary” orders are
required when further action on the
case is required
PROMULGATING ORDER
FORM & CONTENT
Type
of Court and CA
Charges/Specs
May
Pleas
be summarized
& Findings
Sentence, if any
CA's Action: Word for Word
Example: MCM Appendix 17
CHANGE 3 TO JAGMAN
 Updated
Oct 98
 Specifically authorizes a joint CA’s
Action and Promulgating Order in
one document
 Must be signed by CA
 Commands may use either method
No point in two documents
APPELLATE
REVIEW
MILITARY JUSTICE COURT SYSTEM
SUPREME COURT
CAAF
(COURT OF APPEALS FOR THE ARMED FORCES)
NMCCA
CGCCA ACCA
AFCCA
(COURTS OF CRIMINAL APPEAL)
NAVY, MARINE, COAST GUARD, ARMY & AIR FORCE
TRIAL COURTS
SPCM w/o BCD or 1 YR CONF
RCM 1112
 Judge Advocate
Review
ROT forwarded to SJA for GCMCA
 Basic
written review
Jurisdiction
Each specification states an offense
Sentence adjudged/approved is legal
 SJA forwards
to GCMCA if corrective
action required
To JAG if GCMCA does not correct
SPCM w/BCD or 1 YR CONF
 ROT
Forward to JAG
ROT
1105 Clemency Matters
SJAR/LOR
1106 Matters from Defense
CA’s Action
Promulgating Order
 JAG
Appellate Counsel Assigned
Forwards to Court of Criminal Appeal
Court of Criminal Appeals
 Review
of case on BOTH facts and law
 Weighs evidence, credibility of witnesses,
and determines questions of FACT
Keeping in mind court heard witnesses in
person
 May
set aside findings or sentence
Dismiss charges completely
Order rehearing on merits or sentence
Order new post trial actions taken
COURT OF APPEALS FOR
THE ARMED FORCES
 Accused
may appeal to CAAF
CAAF has discretion to accept case
“Good Cause” standard
 JAG
may certify case to CAAF
CAAF must accept case
 All
Death Cases
Appellant may not waive review
COURT OF APPEALS FOR
THE ARMED FORCES
 Review
for legal error
Does not weigh evidence or credibility
or witnesses
 If
CAAF rules against member:
May seek review by Supreme Court
• Per Article 67a, UCMJ
SPCM w/BCD or 1 YR CONF
WAIVER OF APPELLATE REVIEW
 Member
may waive right to review
In writing
With assistance of defense counsel
 Why?
Quick DD-214 = Job
No longer subject to UCMJ
Few cases get relief
 Case
still gets JA Review like a NonBCD SPCM
GCMCA for Final Action
GENERAL COURTMARTIAL REVIEW
 If
less than 1yr AND no discharge
JAG Review per ARTICLE 69
JAG may forward to CCA
 All
others handled like BCD SPCM
 Waiver of Review
Get JA review like NON BCD SPCM
Forwarded to GCMCA for final
action
APPELLATE REVIEW
OVERVIEW
•SPCM w/o 1yr confinement or BCD
Judge Advocate Review
•SPCM w/1yr confinement or BCD
Court of Criminal Appeals (Art 66)
Court of Appeals for Armed Forces (Art 67)
Supreme Court (Art 67a)
•GCM
Discharge or 1yr conf = Art 66 and maybe Art 67
Review
Article 69 JAG Review
ARTICLE 73
PETITION FOR NEW TRIAL
 Petition to OJAG
 Within two years after CA has
approved the sentence
 Grounds:
new evidence
fraud on the court
Post Trial Procedure
Blah blah blah blah blah blah
blah. Blah blah blah blah
R.C.M. 1105. Blah blah blah
blah blah blah blah. Blah blah
R.C.M. 1106. Blah blah blah
blah. Blah blah blah blah
KEY TAKEAWAYS
 When/how
can CA commute
punishment (e.g., BCD to confinement)
 What
are CA’s options when taking
action?
When can CA execute punitive discharge?
 When
is appellate review mandatory?