[Code of Federal Regulations]
[Title 32, Volume 5]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR719.143]

[Page 204-205]
 
                       TITLE 32--NATIONAL DEFENSE
 
                   CHAPTER VI--DEPARTMENT OF THE NAVY
 
PART 719_REGULATIONS SUP PLE MENT ING THE MANUAL FOR COURTS-MARTIAL
--Table of Contents
 
                     Subpart E_Miscellaneous Matters
 
Sec. 719.143  Petition for new trial under 10 U.S.C. 873.

    (a) Statutory provisions. 10 U.S.C. 873, provides, ``At any time 
within 2 years after approval by the convening authority of a court-
martial sentence, the accused may petition the Judge Advocate General 
for a new trial on the grounds of newly discovered evidence or fraud on 
the court. If the accused's case is pending before a Court of Military 
Review or before the Court of Military Appeals, that Judge Advocate 
General shall refer the petition to the appropriate court for action. 
Otherwise the Judge Advocate General shall act upon the petition.''
    (b) Submission Procedures: At any time within 2 years after approval 
by the convening authority of a court-martial sentence, the accused may 
petition the Judge Advocate General for a new trial on the ground of 
newly discovered evidence or fraud on the court-martial. The petition 
for new trial may be submitted by the accused personally, or by 
accused's counsel, regardless of whether the accused has been separated 
from the service. A petition may not be submitted after the death of the 
accused.
    (c) Contents of petitions: The form and contents of petitions for 
new trial are specified in MCM, 1984, R.C.M. 1210(c). The petition for a 
new trial shall be written and shall be signed under oath or affirmation 
by the accused, by a person possessing the power of attorney of the 
accused for that purpose, or by a person with the authorization of an 
appropriate court to sign the petition as the representative of the 
accused. The petition shall contain the following information, or an 
explanation why such matters are not included:
    (1) The name, service number, and current address of the accused;
    (2) The date and location of the trial;
    (3) The type of court-martial and the title or position of the 
convening authority;
    (4) The request for the new trial;
    (5) The sentence or a description thereof as approved or affirmed, 
with any later reduction thereof by clemency or otherwise,
    (6) A brief description of any finding or sentence believed to be 
unjust;
    (7) A full statement of the newly discovered evidence or fraud on 
the court-martial which is relied upon for the remedy sought;
    (8) Affidavits pertinent to the matters in subsection (6)i; and
    (9) Affidavit of each person whom the accused expects to present as 
a witness in the event of a new trial. Each affidavit should set forth 
briefly the relevant facts within the personal knowledge of the witness.
    (d) Who may act on petition. If the accused's case is pending before 
a Court of Military Review or the Court of Military Appeals, the Judge 
Advocate General shall refer the petition to the appropriate court for 
action. Otherwise, the Judge Advocate shall act on the petition.
    (e) Ground for New Trial. A new trial may be granted only on grounds 
of newly discovered evidence or fraud on the court-martial.

[[Page 205]]

    (1) A new trial shall not be granted on the grounds of newly 
discovered evidence unless the petition shows that;
    (i) The evidence was discovered after the trial,
    (ii) The evidence is not such that it would have been discovered by 
the petitioner at the time of trial in the exercise of due diligence; 
and
    (iii) The newly discovered evidence, if considered by a court-
martial in the light of all other pertinent evidence, would probably 
produce a substantially more favorable result for the accused.
    (2) No fraud on the court-martial warrants a new trial unless it had 
a substantial contributing effect on a finding of guilty or the sentence 
adjudged.
    (f) Action on the petition. (1) The authority considering the 
petition may cause such additional investigation to be made and such 
additional information to be secured as that authority believes 
appropriate. Upon written request, and in his discretion, the authority 
considering the petition may permit oral argument on the matter.
    (2) When a petition is considered by the Judge Advocate General, any 
hearing may be before the Judge Advocate General or before an officer or 
officers designated by the Judge Advocate General.
    (3) If the Judge Advocate General believes meritorious grounds for 
relief under Article 74, Uniform Code of Military Justice have been 
established but that a new trial is not appropriate, the Judge Advocate 
General may act under article 74, Uniform Code of Military Justice, if 
authorized, or transmit the petition and related papers to the Secretary 
concerned with a recommendation.
    (4) The Judge Advocate may also, in cases which have been finally 
reviewed but have not been reviewed by a Court of Military Review, act 
under article 69, Uniform Code of Military Justice.

[50 FR 23803, June 6, 1985]