Defense additional studies in the same field which are obtained competitively.

Explanation: Proprietary data is information considered so valuable by its owners that it is held secret by them and their licensees. Where a contractor must obtain such data from others for purposes of the study, and can obtain it by the leverage of the Department of Defense contract, he will gain an advantage over other companies unless there are restrictions upon his use of the data. Such restrictions are necessary both to protect the data, and to encourage companies to furnish it to contractors for the necessary performance of the Department of Defense contract. The rule is not intended to protect proprietary data furnished voluntarily by companies without limitations as to use, or data which falls into the public domain.

Example A. Company A is selected to study the use of lasers in military communications. The Department of Defense will request that firms doing research in the field make proprietary data available to A. In order to receive the contract, A must agree with such firms to protect any proprietary data it obtains, so long as it remains proprietary, and shall not be permitted to utilize the data in supplying any lasers to the Department of Defense. Furthermore, while A could not receive a competitively awarded contract to perform additional studies of lasers using such data, it may receive a sole source contract for such studies.

(a) The contracting officer is responsible for applying these rules to contracts under his cognizance. If the prospective contractor disagrees with his decision, the contracting officer shall report his decision, and the contentions of the contractor, through channels to an Assistant Secretary of a Military Department or the Director of a Defense Agency for decision.

(b) Any of the prohibitions imposed by these rules may be waived by an Assistant Secretary of a Military Department or the Director of a Defense Agency if he determines that a failure to waive the prohibition will be prejudicial to the best interests of the Government.

The Gold Star Lapel Button shall designed as described in § 142.4 (a), ( and (c) and be distributed in accorda with the provisions of 10 U.S.C. 1124 widows, parents, and next of kin of me bers of the armed forces who:

duri

(a) Lost or lose their lives in the arm services of the United States World War I, World War II, or duri any subsequent period of armed hosti ties in which the United States was e gaged before July 1, 1958; or

(b) Lost or lose their lives after Ju 30, 1958, while engaged in an acti against an enemy of the United State while engaged in military operations i volving conflict with an opposing forei force; or while serving with friendly fo eign forces engaged in an armed confl in which the United States is not a b ligerent party against an opposing arm force.

§ 142.4 Description of Gold Star Lap Button.

(a) Obverse. A gold star one-quart inch in diameter, on a purple disc thre quarters inch in diameter, within wreath of gold laurel leaves five-eigh inch in diameter.

(b) Reverse. The inscription, “Unit States of America, Act of Congre August 1966," with space for engravi the initials of the recipient.

(c) Fasteners. Gold Star Lapel Bu tons shall be available with pin-joint ar safety catch fastener or with pin ar clutch-type fastener at the option of th recipient.

§ 150.01

Subpart A-General

Authority.

Pursuant to Article 66(f) of the Uniform Code of Military Justice (sec. 866(f), 70A Stat. 59-60, 10 U.S.C. 866 (f)), the following rules of procedure for proceedings in and before boards of review are jointly promulgated by the Judge Advocates General of the armed forces effective February 28, 1961. § 150.02

Definitions.

So far as the terms defined in Article 1 of the Uniform Code of Military Justice (sec. 801, 70A Stat. 36; 10 U.S.C. 801) are used in this part, they are used in the sense of their respective definitions therein unless the context indicates otherwise. As used in this part:

(a) "Appellate counsel" means any counsel representing any party before a board of review.

(b) "Appellate defense counsel" means any officer appointed by the Judge Advocate General to represent an accused before a board of review pursuant to Article 70 of the Uniform Code of Military Justice (sec. 870, 70A Stat. 62; 10 U.S.C.870).

(c) "Appellate government counsel" means any officer appointed by the Judge Advocate General to represent the government before a board of review pursuant to Article 70 of the Uniform Code of Military Justice (sec. 870, 70A Stat. 62; 10 U.S.C.870).

(d) "Civilian counsel" means civilian counsel provided by the accused to represent him before a board of review.

(e) "Appellate counsel for the accused" includes appellate defense counsel and civilian counsel.

(f) "Defense counsel" means any person who represented an accused at the trial by court-martial or who served as his counsel in the field.

purpose of hearing and determining any matter referred to the board. The determination of any matter referred to a board of review will be according to the opinion of a majority of the members participating in the decision. In the absence of a quorum the senior member present may make all necessary orders touching any proceedings pending in the board preparatory to hearing or decision thereof.

§ 150.2 Place for filing papers.

When the filing of a notice of appearance, brief, or other paper in the Office of a Judge Advocate General is required by these rules, such papers will be filed in the Office of the Judge Advocate General of the appropriate armed force. If transmitted by mail or other means, they are not filed until received in such office. § 150.3 Who may file papers.

Papers will be filed only by the accused or the duly authorized counsel for the parties in interest and proof of such authorization may be required.

§ 150.4 Signing of papers.

All formal papers must be signed and must show, typewritten or printed, the name and address of the person signing same, together with his military rank, if any, and the capacity in which he signs the paper. Such signature constitutes a certificate that the statements made therein are true and correct to the best of the knowledge, information, and belief of the person signing the paper, and that the paper is filed in good faith and not for purposes of unnecessary delay. § 150.5 Computation of time.

Times referred to herein are calendar days. If the last day falls on a Saturday, Sunday, or holiday, compliance may be made on the next working day. § 150.6 Qualification of counsel.

(a) In any proceeding before a board of review the accused may be represented by civilian counsel provided by him or by assigned appellate defense counsel. Civilian counsel must be a member of the bar of a Federal court or of the highest court of a State or Possession of the United States, and may be required to file a certificate setting forth such qualifications. Assigned appellate defense and government counsel must be qualified in accordance with Articles 70(a) and 27(b) (1) of the Uniform Code

of Military Justice (secs. 870 (a) and 8 (b)(1), 70A Stat. 62 and 46; 10 U.S 870(a) and 827 (b) (1)).

(b) Civilian counsel may not act counsel before a board of review if has been suspended by the Judge A vocate General of the service concern from such practice and such suspensi has not been revoked.

§ 150.7 Conduct of counsel.

(a) The conduct of counsel appeari before a board of review will be in a cordance with the rules of conduct pr scribed by paragraph 42b, Manual f Courts-Martial, United States, 19 (E.O. 10214, 16 F.R. 1320; 3 CFR, 194 1953 Comp. p. 441).

(b) A board of review may exerci its inherent right to remove, on an a hoc basis, counsel misbehaving befo or in relation to their appearance befo such board. When a counsel has bee so removed and the board considers th his conduct was such as probably to wa rant suspension, either temporarily indefinitely, the board shall report th misconduct to the Judge Advocate Ger neral of the service concerned an make such recommendations as deeme appropriate.

§ 150.8 Request for appellate defens counsel.

A request for representation by appe late defense counsel will be forwarde to the convening or reviewing authorit for attachment to the record or dis patched to the Office of the Judge Ad vocate General within ten days fro the date of the action of the convenin or reviewing authority, whichever later. In cases referred to a board unde Article 69 of the Uniform Code of Mili tary Justice (sec. 869, 70A Stat. 61; 1 U.S.C. 869), the accused will have tw days from the time he receives notic of such reference to forward a reques for appellate defense counsel to the Offic of the Judge Advocate General unles he has already forwarded such request Any request for appellate defense coun sel should be accompanied by a state ment as to the errors or other matter urged as grounds for relief. Although such statement need not be in technica form, the assistance of counsel in the field should be made available for its preparation. In the event defense counsel files a brief as provided in Article 38(c) of the Uniform Code of Military Justice (sec. 838 (c), 70A Stat. 50; 10

J.S.C. 838 (c)), such brief may be submitted in lieu of this statement.

150.9 Retention of civilian counsel.

(a) Notice that an accused has reained or has taken action to retain ivilian counsel to represent him before board of review will be forwarded o the convening or reviewing authority or attachment to the record or disatched to the Judge Advocate General within ten days from the date of the ction of the convening or reviewing auhority, whichever is later. In cases reerred to a board of review under Article 59 of the Uniform Code of Military Jusice (sec. 869, 70A Stat. 61; 10 U.S.C. 369), the accused will forward such notice within two days after receipt of notice by aim of such referral unless he has aleady forwarded such notice. The notice of retention of civilian counsel vill be signed by the accused or his representative and will state the name and address of such civilian counsel.

When

the accused has forwarded a timely notice of intention to retain civilian Counsel, a notice of retainer stating the mame and address of such counsel must be received in the Office of the Judge Advocate General within ten days of receipt of the notice of intention. Such

civilian counsel will thereafter be notified of the receipt of the record of trial in the Office of the Judge Advocate General, the number of the case, the board to which the case has been referred, and the arrangements made, or to be made, for a hearing.

(b) If the accused has forwarded a timely notice of intention to retain civilian counsel, appellate defense counsel shall be assigned to represent the interests of the accused pending appearance of civilian counsel.

§ 150.10 Failure to request notice of appellate counsel.

or give

Failure of an accused to request appellate defense counsel or to give notice of retainer of civilian counsel or of intention to retain civilian counsel within the times prescribed may be regarded as a waiver of such right and a board may take final action in the case. $150.11

Mandatory assignment of appellate defense counsel.

In all cases in which the United States is represented by counsel before a board of review, the accused will be assigned

99-171-69- +12

appellate defense counsel if not already represented by counsel.

§ 150.12

Relations between civilian counsel and other appellate counsel. Civilian counsel may communicate directly with appellate defense or government counsel. Appellate defense counsel shall render such appropriate assistance in connection with the appellate review in the case as may be requested by civilian counsel.

§ 150.13 Notice of appearance of counsel.

Appellate defense and government counsel in a case before a board of review I will file a written notice of appearance in the Office of the Judge Advocate General within five days of assignment to the case. Civilian counsel will file such notice within ten days from the date of receipt of the notice of retainer in the Office of the Judge Advocate General. Unless separate notice of appearance is filed, an assignment of errors, brief, or other formal paper will constitute a notice of appearance.

§ 150.14

Availability of records of trial to civilian counsel.

Civilian counsel who do not have a copy of the record of trial may make arrangements with appellate defense counsel to examine a copy of the record of trial in the Office of the Judge Advocate General and to make a copy of the whole or any part thereof without expense to the Government.

§ 150.15 Assignment of errors.

Within fifteen days after notification of the receipt of the record in the Office of the Judge Advocate General, appellate counsel for the accused shall file an assignment of errors setting forth separately and particularly each error asserted and intended to be urged (§ 150.31). An original and five clear copies prepared in accordance with the provisions of § 150.16 (a) will be submitted. It will contain the information prescribed in § 150.16(d) (1). A reply to this assignment may be filed within fifteen days.

§ 150.16 Briefs.

(a) General provisions. The assignment of errors prescribed in § 150.15 may be included in, or filed in lieu of, a brief for the accused. An original and five clear copies of all briefs will be submitted. Briefs will be typewritten, double

spaced on 8" x 121⁄2" (legal cap) white paper, securely fastened at the top. All references to matters contained in the record will show record page numbers and any exhibit designations.

(b) Number of briefs. Appellate counsel will be limited to the filing of one brief for each side unless the board otherwise permits or directs.

(c) Time for filing. Any brief for an accused will be filed within fifteen days after his appellate counsel has been notified of the receipt of the record in the Office of the Judge Advocate General. If the Judge Advocate General has directed appellate government counsel to represent the United States, such counsel may file a brief on behalf of the government within fifteen days after any brief or an assignment of errors has been filed on behalf of an accused. If no brief is filed on behalf of an accused, a brief on behalf of the government may be filed within fifteen days after expiration of the time allowed for the filing of a brief on behalf of the accused.

(d) General contents. (1) Each brief will indicate on the cover page (§ 150.32):

(i) The designation of the board of review to which the case has been referred,

(ii) The number of the case, if known, and the caption with designation of parties,

(iii) Title of the document,

(iv) Names and addresses of all counsel submitting the document,

(2) If the brief is ten pages or more, an index containing:

(i) Divisions of the brief, including a summary of the argument,

(ii) Table of authorities cited with references to the page of the brief where cited.

(e) Contents (accused) (§ 150.33). The brief for an accused will contain the following arranged in the order indicated:

(1) A summary of the proceedings showing the findings and sentence as approved and the action of the convening authority thereon,

(2) A concise statement of the facts of the case containing all that is material to the consideration of the questions presented with appropriate page references to the record,

(3) The substance of the errors or points intended to be urged, prepared in accordance with § 150.15,

(4) The argument exhibiting clea the points of fact and law being pr sented, citing the authorities and sta utes relied upon, and quoting t relevant parts of such authorities a statutes as are deemed to have an in portant bearing,

(5) A conclusion stating concise why the case should be decided as urge (f) Contents (government). (1) brief on behalf of the government w be of like character as that prescrib for the accused except that the matte prescribed in paragraph (e) (1), (2), ai (3) of this section need not be given u less deemed necessary in correcting a inaccuracy or omission in the brief the accused.

(2) Appropriate proof of service of copy of the brief will appear on t cover sheet when the accused is repr sented by civilian counsel.

(a) When heard. All cases in whi the parties are represented by couns will be set for argument unless, up request of counsel, a board permits case to be submitted without argumen

(b) Notice of setting of argument A board of review will give appella counsel at least ten days' notice of th time and place of oral argument, unle waived.

(c) Time limits. The length of or arguments will be within the discretic of a board of review and ordinarily w not exceed thirty minutes for each sid

(d) Number of counsel; opening an closing. A board in its discretion ma limit the number of counsel making a oral argument. The defense will ha the right to make opening and closin arguments.

(e) Failure to appear. Failure of a pellate counsel to appear at the tim and place set for oral argument may b regarded as a waiver thereof and th board may proceed to act on the case a submitted without argument or, in i discretion, may continue the case f argument at a later date, giving due no tice thereof.

(f) Presence of accused. The accuse does not have a right to be present a the hearing before the board of review § 150.18 Matters outside the record.

Matters outside the record of trial wil not be presented to or argued before board of review except with respect to