legally be approved. However, it is within the particular province of the convening authority to weigh evidence, judge the credibility of witnesses, determine controverted questions of fact that may have been raised in the record, and determine what legal sentence should be approved. In those unusual cases in which a convening authority is in disagreement with his staff judge advocate or legal officer as to the effect of any error or irregularity respecting the proceedings, as to the adequacy of the evidence, or as to what sentence can legally be approved, the convening authority may transmit the record of trial, with an expression of his own views and the opinion of his staff judge advocate or legal officer, to the Judge Advocate General of the armed force concerned for advice. In any case which is forwarded to the Judge Advocate General, if the convening authority takes an action different from that recommended by his staff judge advocate or legal officer, he should state the reasons for his action in a letter transmitting the record to the Judge Advocate General.

The convening authority has the absolute power to disapprove the findings and sentence, or any part thereof, for any reason or no reason. Because of the convening authority's broad powers which are not enjoyed by the appellate Courts of Military Review or the United States Court of Military Appeals, it is generally recognized that an accused has his best opportunity for relief at the level of the convening authority's review.

APPELLATE PROCEDURES

The Staff Judge Advocate's review prior to action by the convening authority is in a sense an appellate procedure because it consists of a legal analysis of the trial and provides an opportunity for the Staff Judge Advocate to recommend that the convening authority take corrective action at the local level. The Staff Judge Advocate's post trial review is automatic and free to the accused as are the formal appellate procedures in the military justice system. The only cost an accused might incur within the appellate system is the expense of a civilian appellate counsel if he desires to retain one.

The first formal level of appellate review is the Court of Military Review. Each branch of the armed forces has its own Court of Military Review which reviews court-martial cases tried within its service. Court-martial cases which are automatically referred to a Court of Military Review are those in which a convening authority has approved a sentence to death, dismissal of a commissioned officer, punitive discharge of an enlisted man, or confinement for a year or more.

In reviewing the legal sufficiency of the findings and sentence and the record of trial, the Court of Military Review weighs the evidence, judges the credibility of witnesses and determines controverted questions of fact. In fulfilling its reviewing function, the Court of Military Review is always aware that the trial court saw and heard the witnesses and accordingly is hesitant to second guess the trial court on close questions of fact.

A Court of Military Review may act only with respect to the findings

and sentence approved by a proper authority. In addition, it can affirm only findings of guilty and sentences that it finds to be correct in law and fact and determines should be approved. A Court of Military Review generally has the same powers to modify a sentence as a convening authority, but it does not have the authority to suspend a sentence or a part of a sentence. However, the court may reduce the period of a suspension prescribed by a convening authority. In addition, a Court of Military Review may not rule that a finding or a sentence of a courtmartial is incorrect as a matter of law unless it is apparent that the error materially prejudiced a substantial right of an accused.

After a case has been reviewed by a Court of Military Review, an accused may wish to appeal his court-martial conviction to the United States Court of Military Appeals. This court is the highest appellate body in the military system and is composed of three civilian jurists appointed by the President of the United States to 15 year terms of office.

Paragraph 101 of the Manual for Courts-Martial provides that the following types of cases can be reviewed by the United States Court of Military Appeals:

1. All cases in which the sentence, as affirmed by a Court of Military Review, affects a general or flag officer or extends to death;

2. All cases reviewed by a Court of Military Review which the Judge Advocate General orders sent to the Court of Military Appeals for review; and

3. All cases reviewed by a Court of Military Review in which, upon petition of the accused and on good cause shown, the Court of Military Appeals has granted a review.

The Court of Military Appeals takes action only with respect to matters of law in the review of cases presented to it on appeal. Upon completing its review of the legal issues appealed, the court either affirms the decision of the Court of Military Review, or reverses and directs that The Judge Advocate General return the record of trial to the Court of Military Review or the original convening authority for disposition consistent with the court's opinion.

Another level of formal appellate review is the Article 69 appeal. Article 69 of the Uniform Code of Military Justice provides for the appellate review of cases which are not reviewed automatically by the Court of Military Review. In part Article 69 provides that:

Every record of trial by general court-martial, in which there has been a finding of guilty and a sentence, the appellate review of which is not otherwise provided for by [article 66], shall be examined in the office of the Judge Advocate General. If any part of the findings or sentence is found unsupported in law, or if the Judge Advocate General so directs, the record shall be reviewed by a Court of Military Review in accordance with [article 66], but in that event there may be no further review by the Court of Military Appeals except under [article 76] the findings or sentence, or both, in a court-martial case which has been finally reviewed, but has not been reviewed by a Court of Military Review may be vacated or modified, in whole or in part, by the Judge Advocate General on the ground of newly discovered evidence, fraud on the court, lack of jurisdiction

over the accused or the offense, or error prejudicial to the substantial rights of the accused.

The cases most often appealed under the provisions of Article 69 are special court-martial cases in which the sentence adjudged was not severe enough to warrant review by the Court of Military Review.

An accused convicted by military court-martial is entitled to free and automatic appellate review. Depending upon the seriousness of the sentence imposed, the accused's case will be reviewed either in the Office of the Judge Advocate General or in a Court of Military Review. An accused can appeal a decision of a Court of Military Review to the Court of Military Appeals and if the appeal is accepted the court will rule on the allegations of error submitted to it.

At the appellate level, an accused enjoys rights to counsel similar to those he was entitled to at the trial level. Article 70 of the Code specifically defines the rights of an accused to counsel in the appellate courts:

(a) The Judge Advocate General shall detail in his office one or more commissioned officers as appellate Government counsel and one or more commissioned officers as appellate defense counsel, who are qualified under [article 27(b) (1)]. (b) Appellate Government counsel shall represent the United States before the Court of Military Review or the Court of Military Appeals when directed to do so by the Judge Advocate General.

(c) Appellate defense counsel shall represent the accused before the Court of Military Review or the Court of Military Appeals

(1) when he is requested to do so by the accused;

(2) when the United States is represented by counsel; or

(3) when the Judge Advocate General has sent a case to the Court of Military Appeals.

(d) The accused has the right to be represented before the Court of Military Appeals or the Court of Military Review by civilian counsel if provided by him. (e) Military appellate counsel shall also perform such other functions in connection with the review of court-martial cases as the Judge Advocate General directs.

Generally a defense counsel who specializes in appellate work is appointed to represent the accused in the appellate proceedings. The military defense counsel who defended the accused at the trial level rarely serves as the accused's military counsel at the appellate level. This is primarily because of the impracticability of allowing defense counsels to travel to Washington, D.C. to argue their client's cases. However defense counsels can submit appellate briefs and communicate with the appointed appellate defense counsel on any matters pertaining to the case. In addition to the appellate defense counsel detailed to represent him on the appeal of his case, an accused also may retain civilian defense counsel to represent him on the appeal.

Besides his rights to counsel an accused also is entitled to the following rights at the appellate level. He can petition the Court of Military Appeals for a grant of review within 30 days after he has been served with a copy of the decision of the Court of Military Review, unless the

case is reviewed by the court pursuant to the direction of The Judge Advocate General. He is entitled to the assistance of counsel in preparing a petition to the Court of Military Appeals and during the review of the case by the court if the petition is granted. In addition, the accused has the right to petition The Judge Advocate General for a new trial and in a proper case his petition may be granted.

The military court-martial system is similar in many respects to the federal and state criminal justice systems. The significant difference between the systems is the role of the commander in the administration of criminal justice in the military. The commander not only investigates the offense, but he prefers the charges, selects the jury members and conducts the initial review of the court-martial findings and sentence adjudged. The introduction of the legally trained and independent military judges corps into the military justice system has resulted in a significant improvement in the administration of justice and has served to limit severely the potential of unlawful command influence. Despite its weaknesses, the military justice system compares favorably with other criminal justice systems and in many respects guarantees an accused far more rights than he would be entitled to in either the federal or state court systems.

DISCUSSION PROBLEMS-CHAPTER 4

1. In this chapter the selection of court-martial members was discussed. Generally, only officers sit as court members, even though enlisted personnel may request enlisted members of their court. Should an accused in a court-martial be allowed to be tried by a jury selected from all members of the military community regardless of rank and status on a more random basis? For example, should all personnel of a particular unit, for example, Fort Blank, be put in a jury wheel for selection as jury members? Should any members of the military community be exempt from jury duty, and if so, which ones? For example, should a chaplain or a doctor or a new recruit be exempted?

2. Assume that legislation is passed by the Congress which authorizes an accused to be defended at a court-martial by either a military lawyer of The Judge Advocate General's Corps, as is currently authorized, or by a civilian lawyer whose legal fees would be paid for by the Government. If you were an accused, which would you choose and why? Would it make a difference to you if you were charged with a civilian type crime, for example, manslaughter, or with a military type crime, for example, insubordination to a superior officer?

CHAPTER 6

MILITARY CRIMES

INTRODUCTION

The Uniform Code of Military Justice defines crimes which are punishable under military law in Articles 77 to 134. Many of the criminal offenses included in the articles also are offenses in the civilian criminal system; some like rape, robbery and murder are punishable in the military as well as in the civilian community. Other offenses punishable under the Code are unique to the military. Absence without leave, disrespect to a superior, or conduct unbecoming an officer have no civilian counterpart and are only punishable in the military. For this reason these offenses often are referred to as military crimes.

OFFENSES INVOLVING UNAUTHORIZED
ABSENCES

In the civilian community an employee is free to come and go as he pleases. If he decides to take time off from work for several days without his employer's permission, he may lose pay or his job. Likewise, an employee may quit or change jobs if he wishes, and his employer cannot prevent him from doing so.

In military service, however, only the employer can terminate a soldier's employment relationship prior to the end of required or agreed upon service. If a soldier decides to take time off without permission from his commander, or if he decides to quit or fails to report to his place of work on time, he is committing a military criminal offense for which he can be punished.

A soldier serving in a military environment must be ready to perform his assigned duties and responsibilities at all times in the event of a national emergency. As the United States Army must be ready to mobilize and perform its assigned function on short notice, so should the individual soldier be prepared to perform when called upon to serve. In the event of a crisis all military personnel must be accounted for and ready to perform their assigned military specialty. In such situations, armed forces personnel should not be able to decide to look for other employment or to take time off without pay; they must be required to serve and to perform as trained.