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General, it shall be considered to have been seasonably filed. Except in extraordinary circumstances, petitions will not be acted upon by the Judge Advocate General until all reviews in the field, contemplated by 10 U.S.C. 865, have been completed.

(c) Submission procedures. If the petitioner is on active duty the petition shall be submitted to the Judge Advocate General via the petitioner's commanding officer, the command which convened the court, and the command that took supervisory authority action on the case. If the supervisory authority has the record of trial he will forward it as an enclosure to his endorsement on the petition. The endorsement shall include information and comments as deemed appropriate. If the petitioner is no longer on active duty the petition may be submitted directly to the Judge Advocate General. If more than one court-martial is involved, a separate petition shall be filed for each trial.

(d) Contents of petitions. The form and contents of petitions for new trial are specified in paragraph 109e, MCM. In addition, the petition shall include the following:

(1) Place of trial.

(2) Command title of the organization at which the court-martial was convened (convening authority).

(3) Command title of the officer exercising general court-martial jurisdiction over the petitioner at the time of trial (supervisory authority).

(4) Type of court-martial which convicted the petitioner.

(e) Receipt in the Office of the Judge Advocate General. (1) If the case is pending before the Navy Court of Military Review or the U.S. Court of Military Appeals, or will be so pending, the petition will be referred for action to the Navy Court of Military Review or the U.S. Court of Military Appeals, as appropriate. If referred for action to the Navy Court of Military Review, such court shall take action in accordance with Courts of Military Review rules of practice and procedure.

(2) In all other cases the Judge Advocate General may take one or more of the following actions as appropriate:

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§ 719.144 Application for relief under 10 U.S.C. 769, in cases which have been finally reviewed.

(a) Statutory provisions. 10 U.S.C. 769 provides in pertinent part, "Notwithstanding section 876 of this title (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."

(b) Submission procedures. Applications for relief may be submitted to the Judge Advocate General by letter. If the accused is on active duty, the application shall be submitted via the applicant's commanding officer, and the command that convened the court, and the command that took supervisory authority action on the case. If the original record of trial is held by the supervisory authority, he shall forward it as an enclosure to his endorsement. This endorsement shall also include information and comment on the merits of the application. If the applicant is no longer on active duty, the application may be submitted directly to the Judge Advocate General. (c) Contents of applications. All applications for relief shall contain:

(1) Full name of the applicant; (2) Social Security number and branch of service, if any;

(3) Present grade if on active duty or retired, or "civilian" or "deceased" as applicable;

(4) Address at time the application is forwarded;

(5) Date of trial; (6) Place of trial;

(7) Command title of the organization at which the court-martial was convened (convening authority);

(8) Command title of the officer exercising general court-martial jurisdiction over the applicant at the time of trial (supervisory authority);

(9) Type of court-martial which convicted the applicant;

(10) General grounds for relief which must be one or more of the following:

(i) Newly discovered evidence;

(ii) Fraud on the court;

(iii) Lack of jurisdiction over the accused or the offense;

(iv) Error prejudicial to the substantial rights of the accused;

(11) An elaboration of the specific prejudice resulting from any error cited. (Legal authorities to support the applicant's contentions may be included, and the format used may take the form of a legal brief if the applicant so desires);

(12) Any other matter which the applicant desires to submit; and

(13) Relief requested.

The applicant's copy of the record of trial will not be forwarded with the application for relief, unless specifically requested by the Judge Advocate General.

(d) Signatures on applications. Unless incapable of making application himself, the applicant shall personally sign his application under oath before an official authorized to administer oaths. If the applicant is incapable of making application, the application may be signed under oath and submitted by applicant's spouse, next of kin, executor, guardian, or other person with a proper interest in the matter.

[38 FR 5997, Mar. 6, 1973, as amended at 39 FR 18437, May 28, 1974]

88 719.145-719.150 [Reserved]

§ 719.151 Furnishing of advice and counsel to accused placed in pretrial confinement.

The Department of the Navy Corrections Manual, SECNAVINST 1640.9, reiterates the requirement of Article 10, UCMJ, that, when a person is placed in pretrial confinement, immediate steps should be taken to inform the confinee of the specific wrong of which he is accused and try him or to dismiss the charges and release him. The Corrections Manual requires that this information normally will be provided within 48 hours along with advice as to the confinee's right to consult with lawyer counsel and his right to prepare for trial. Lawyer counsel may be either a civilian lawyer provided by the confinee at his own expense or a military lawyer provided by the Government. If a confinee requests to confer with a military lawyer, such lawyer should normally be made available for consultation within 48 hours after the request is made.

[39 FR 18437, May 28, 1974]

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Subpart B-Service of Process and Subpoenas Upon Personnel of Naval Establishment

Sec.

720.20 Service of process upon personnel. 720.21 Personnel subpoenaed as witnesses in State or local courts.

Subpart C-Production of Official Records

720.30 Production of official records in response to court order.

720.31 Production of official records in the absence of court order.

720.32 Certificates of full faith and credit. AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031 and 5148; 32 CFR 700.206 and 700.1202.

SOURCE: 38 FR 6021, Mar. 6, 1973, unless otherwise noted.

Subpart A-Delivery of Personnel

§ 720.1 Delivery when personnel within territorial limits of the requesting State.

In cases in which the delivery of any person in the Navy or Marine Corps is requested by local civil authorities of a State, Territory, or Commonwealth for an alleged offense punishable under the laws of that jurisdiction, and such person is attached to a Navy or Marine Corps activity within the requesting jurisdiction, or aboard a ship within the territorial waters of such jurisdiction, commanding officers are authorized to and normally will deliver such person when a proper warrant is presented, subject to exceptions in § 720.8.

§ 720.2 Delivery when personnel beyond territorial limits of requesting State.

(a) General. In all cases in which the delivery of any person in the Navy or Marine Corps is wanted by State, Territory, or Commonwealth civil authorities for an alleged crime or offense made punishable by the laws of the jurisdiction making the request, and such person is not attached to a Navy or Marine Corps activity within such requesting State, Territory, or Commonwealth, or a ship within the territorial waters thereof, any officer exercising general courts-martial jurisdiction, or officer designated by him, is authorized, upon compliance with the provisions of this part and § 720.5, and subject to the exceptions in § 720.8 to

deliver such person for the purpose of making him amendable to prosecution. The serviceman may be delivered upon formal and informal waiver of extradition in accordance with paragraph (b) of this section, or upon presentation of a fugitive warrant, in which case the procedures of paragraph (c) apply.

(b) Waiver of extradition. (1) Any person may waive formal extradition. A waiver must be in writing and witnessed. It must include a statement that the person signing it has received counsel of either a military or civilian attorney prior to executing the waiver, and it must further set forth the name and address of the attorney consulted.

(2) In every case where there is any doubt as to the voluntary nature of a waiver, such doubt shall be resolved against its use and all persons concerned will be advised to comply with the procedures set forth in paragraph (c) of this section.

(3) Executed copies of all waivers will be mailed to the Judge Advocate General immediately after execution.

(4) When an individual declines to waive extradition, the nearest naval legal service office or Marine Corps Staff Judge Advocate shall be informed and shall make further representations to the civil authorities as appropriate. The individual concerned shall not be transferred or ordered out of the State in which he is then located, without the permission of the Secretary of the Navy (Judge Advocate General), until the matter of extradition is resolved.

(c) Fugitive warrants. (1) A fugitive warrant, as used in this part is a warrant for the arrest of an individual issued by a State court of competent jurisdiction. Normally, a State requesting delivery of a serviceman from another State will issue a fugitive warrant to the State where the serviceman is located.

(2) Upon issuance of a fugitive warrant by the requesting State to the State in which the serviceman is located, the latter State will normally request delivery of the serviceman to local State authorities. Delivery to local State officials should be arranged by Navy or Marine Corps officers designated in paragraph (a) of this section and subject to the condi

tions of § 720.8 and (c) paragraph (3) and (4) of this section.

(3) Upon receipt of such a request for delivery of a serviceman under fugitive warrant to such State authorities, if such serviceman voluntarily waives extradition, the provisions of paragraph (b) of this section apply. If waiver is refused, the serviceman, after delivery to local State authorities, will then have the opportunity to contest extradition in the courts of the State in which he is located. Where waiver is refused, the nearest naval legal service office or Marine Corps Staff Judge Advocate is responsible for effecting liaison with officials of both the requesting State and State in which the serviceman is located. The provisions of paragraph (b)(4) of this section regarding transfer of the serviceman apply while State authorities are actively proceeding to effect extradition.

(4) No delivery of a serviceman by Navy or Marine Corps officers pursuant to a fugitive warrant or waiver of extradition shall be effected without completion of the agreement required by § 720.5 and execution of such agreement by officials of both the requesting State and the State in which the serviceman is located or execution of such agreement by officials of the State in which the man is located where such officials accept on behalf of such State the full responsibility for returning the individual to the designated military command.

(d) Personnel stationed outside of the United States. When the serviceman sought by State authorities is not located within a State, Territory, or Commonwealth of the United States, see § 720.3.

(1 CFR 18.14, and Part 21, Subpart B)

[41 FR 26860, June 30, 1976, as amended at 45 FR 8599, Feb. 8, 1980]

§ 720.3 Personnel stationed outside the United States.

(a) Personnel desired by local authorities. In all cases in which the delivery of any person in the Navy or Marine Corps is desired for trial by State, Territory, Commonwealth, or local civil authorities and such person is stationed outside the United States, a requisition for the delivery of the

person must be made by the Governor of such State, Territory, or Commonwealth, addressed to the Secretary of the Navy. It must show that the person desired is charged with a crime in that State, Territory, or Commonwealth, for which he could be extradited under the Constitution of the United States, the enactments of Congress, or the laws of the State, Territory, or Commonwealth desiring his delivery. Such requisition should be forwarded to the Secretary of the Navy (Judge Advocate General) for examination. If the papers allege that the person is a fugitive from the justice of that State, Territory, or Commonwealth and that he is charged with an extraditable crime and the papers are otherwise found to be in due form, the Secretary of the Navy (Judge Advocate General) will direct the Commandant of the Marine Corps or Chief of Naval Personnel, as the case may be, to issue appropriate orders to the individual concerned directing his transfer to the United States to the military installation most convenient to the Department of the Navy. The individual will be held under the minimum restraint required under the circumstances. The Commandant of the Marine Corps or the Chief of Naval Personnel, as the case may be, will inform the officials of the requesting State of the location of the individual concerned and that custody may be obtained by compliance with § 720.1 or § 720.2, as applicable.

(b) Personnel desired by Federal authorities. In all cases in which the delivery of any person in the Navy or Marine Corps is desired for trial in Federal District Court, upon appropriate representations by the Department of Justice to the Secretary of the Navy (Judge Advocate General), the individual will be returned to the United States and held at a military facility convenient to the Department of the Navy.

(1 CFR 18.14, and Part 21, Subpart B) [40 FR 12777, Mar. 21, 1975, as amended at 45 FR 8599, Feb. 8, 1980]

§ 720.4 JAG Authority.

The Judge Advocate General, the Deputy Judge Advocate General or

any Assistant Judge Advocate General is authorized to act for the Secretary of the Navy in the performance of functions under §§ 720.1, 720.2, 720.3, 720.5, 720.8, 720.15, 720.20, 720.23, and 720.30.

(1 CFR 18.14, and Part 21, Subpart B)

[38 FR 6021, Mar. 6, 1973, as amended at 41 FR 26861, June 30, 1976; 45 FR 8599, Feb. 8, 1980]

§ 720.5 Agreement required prior to delivery to State authorities.

In every case in which the delivery of any person in the Navy or Marine Corps to the civilian authorities of a State is authorized, such person's commanding officer shall, before making such delivery, obtain from the Governor or other duly authorized officer of such State a written agreement that conforms to the agreement as set forth in Appendix A-13-b of the Manual of the Judge Advocate General. When indicating in the agreement the naval or Marine Corps activity to which the person delivered is to be returned by the State, care should be taken to designate the closest appropriate activity (to the command to which he is attached) which possesses special court-martial jurisdiction. The Department of the Navy considers this agreement substantially complied with when the man is furnished transportation (under escort in case of delivery in accordance with § 720.15) back to a naval or Marine Corps activity as set forth herein, cash necessary to cover his incidental expenses en route thereto, and the Department of the Navy is so informed. Any departure from the agreement set forth in Appendix A13-b of the Manual of the Judge Advocate General must have prior approval from the Secretary of the Navy (Judge Advocate General).

(1 CFR 18.14, and Part 21, Subpart B)

[41 FR 26861, June 30, 1976, as amended at 45 FR 8599, Feb. 8, 1980]

§§ 720.6-720.7 [Reserved]

§ 720.8 Circumstances in which delivery is refused.

(a) Disciplinary proceedings pending. When disciplinary proceedings involving military offenses are pending,

commanding officers must obtain specific authority from the Secretary of the Navy (Judge Advocate General) to deliver personnel to Federal, State, Territory, Commonwealth, or local authorities.

(b) When delivery may be refused. Delivery may be refused in the following circumstances:

(1) Where the accused has been retained for prosecution as set forth in section 0107(g)(3)(a) of the Manual of the Judge Advocate General of this chapter.

(2) When the commanding officer considers that extraordinary circumstances exist which indicate that delivery should be denied.

(c) Delivery under Detainers Act. Where the accused is undergoing a sentence of a court-martial, see § 720.15.

(d) Reports required. When delivery is refused, see section 1310 of the Manual of the Judge Advocate General.

(1 CFR 18.14, and Part 21, Subpart B)

[41 FR 26861, June 30, 1976, as amended at 45 FR 8599, Feb. 8, 1980]

§§ 720.9-720.11 [Reserved]

§ 720.12 Personnel released by civil authorities on bail or on their own recognizance.

A person in the Navy or Marine Corps arrested by Federal, State, or territorial authorities and released on bail or on his own recognizance has a duty to return to his parent organization. Accordingly, where a person in the Navy or Marine Corps is arrested by Federal, State, or territorial authorities and returns to his ship or station on bail, or on his own recognizance, the commanding officer upon verification of the attending facts, date of trial, and approximate length of time that should be covered by the leave of absence should normally grant liberty or lease to permit appearance for trial. Nothing in this section is to be construed as permitting the person arrested and released to avoid the obligations of his bond or of his recognizance by reason of his being in the military service.

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