(b) Time limitations. If the petition for new trial was placed in military channels within 2 years after approval of a sentence by the convening authority, regardless of the date of its receipt in the Office of the Judge Advocate 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 une or more of the following actions as appropriate:

20-106-74- -28

(i) Return the petition for compliance with the procedural requirements of paragraph 109e, MCM, and paragraph (d) of this section.

(ii) Deny the petition if relief is not warranted under the criteria set forth in paragraph 109d, MCM.

(iii) Grant the petition if relief is warranted under the criteria set forth in paragraph 109d, MCM.

(iv) Refer the petition to one or more officers for review and preparation of a recommendation for the Judge Advocate General. In the event such a referral is made, counsel for the Government and for the petitioner will be designated and a hearing with oral argument after submission of briefs may be permitted.

§ 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;

(10) 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);

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

(12) 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]

§ 719.145 Set off of indebtedness of a person against his pay.

(a) Court-martial decisions. When the United States has suffered loss of money or property through the offenses of selling or otherwise disposing of, or willfully damaging, or losing military property, willfully and wrongfully hazarding a vessel, larceny, wrongful appropriation, robbery, forgery, arson, or fraud for which persons, other than accountable officers as defined in NAVSUPMAN paragraph 1136 (a) (b), have been convicted by court-martial, the amount of such loss

constitutes an indebtedness to the United States which will be set off against the final pay and allowances due such persons at the time of dismissal, discharge, or release from active duty.

(b) Administrative determinations. In addition, when the Government suffers a loss of money and competent authority has administratively determined that the loss occurred through the fraud, forgery, or other unlawful acts of such, persons as described in paragraph (a) of this section, the amount of such loss shall be set-off as described in paragraph (a) of this section. "Competent authority," as used herein, shall be the commanding officer of such persons and the administrative determination shall be made through an investigation pursuant to the JAG Manual and approved on review by a general court-martial authority

(c) Army and Air Force property. When the money or property involved belongs to the Army or the Air Force, and such service determines liability through the procedures provided by the authority of 37 U.S.C. 1007 and demands set off against the final pay and allowances of any naval service personnel, setoff shall be effected in accordance with subsection a above.

(d) Voluntary restitution. Immediate recovery action may be instituted on the basis of a voluntary offer of the member to make restitution of all or part of any indebtedness to the Government. The voluntary offer constitutes assumption of pecuniary responsibility for the loss and, as such, is sufficient to authorize checkage of current pay, if required, to collect the amount of the indebtedness. See also 10 U.S.C. 6161 and SECNAV INST 7220.38A series concerning the possibility of remission or cancellation of an enlisted member's indebtedness. Nothing herein shall be construed as precluding setoff against final pay in other cases when such action is directed by competent authority.

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

§ 719.146 Authority to prescribe regulations relating to the designation and changing of places of confinement. The Chief of Naval Personnel and the Commandant of the Marine Corps are authorized to issue joint regulations as required to appropriate authorities relating to the designation and the changing of places of confinement of naval pris

oners (see BUPERSINST 1640.5 series). Convening authorities, officers exercising supervisory authority, and commanding officers operating correctional facilities are considered appropriate authorities within the meaning of this section. The Chief of Naval Personnel is further authorized to designate places of confinement when necessary, to change the designation, and to authorize the transfer of prisoners between naval places of confinement and to Federal penal or correctional institutions.

§ 719.147

Apprehension by civilian agents of the Naval Investigative Service.

Pursuant to the provisions of paragraph 19, MCM, and under the authority of 10 U.S.C. 807(b), any civilian agent of the Naval Investigative Service, who is duly accredited by the Director, Naval Investigative Service, and who is engaged in conducting an investigation within the investigative jurisdiction of the Naval Investigative Service as established in departmental directives, which investigation has been duly requested by, or is at the direction of, competent U.S. Navy or U.S. Marine Corps authority, may apprehend, if necessary, persons subject to the Uniform Code of Military Justice or to trial thereunder, upon reasonable belief that an offense has been committed and that the person apprehended committed it. A person so apprehended must be taken promptly before his commanding officer or other appropriate military authority. Such a civilian agent may apprehend a commissioned officer or a warrant officer only pursuant to specific orders of a commissioned officer except where such an apprehension is necessary to prevent disgrace to the service, the commission of a serious offense, or the escape of one who has committed a serious offense. Such a civilian agent, even though not conducting an investigation relating to the person apprehended, may also apprehend a person subject to the Uniform Code of Military Justice upon observation of the commission of a felony or a misdemeanor amounting to a breach of the peace occurring in the agent's presence. A person so apprehended must be delivered promptly to his commanding officer or other appropriate military authority.

Appendix section 1-n' contains a suggested format which may henceforth be utilized by investigative personnel in cases in which criminal suspects desire to waive their rights concerning self-incrimination, and to make statements. This format is designed as a guide and its use is not mandatory.

§ 719.150 Court-martial case report.

The Court-Martial Case Report, NAVJAG 5813/2 (Rev. 6-69), is designed to serve as a statistical source for planning purposes and to afford the Judge Advocate General an early source of information regarding cases which may evoke public or congressional interest. A case report will be submitted by the "Presiding Officer" with respect to each accused tried by general or special courtmartial. The term "Presiding Officer" includes a military judge of the Judiciary Activity, any other military judge assigned to a special court-martial, and the president of a special court-martial without a military judge. Supplies of NAV JAG Form 5813/2 (Rev. 6-69) are available in the Forms and Publications Segment of the Navy Supply System under Stock No. S/N 0105-100-8160. A form containing sample entries is set forth in appendix section 1-0.1

§ 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

1 Filed as part of the original document.

Agreement required prior to delivery to State authorities.

Delivery of personnel to Federal autorities.

Delivery of personnel to foreign authorities.

Circumstances in which delivery is refused.

Reports required when personnel delivered.

720.10 Report required when delivery refused.

720.11 Report required when personnel confined by foreign authorities. 720.12 Personnel released by civil authorities on bail or on their own recognizance.

720.13 Interviewing of naval personnel by Federal civilian investigative agencies.

720.14 Habeas corpus.

Subpart B-Service of Process and Subpenas

720.20 720.21

720.22

Upon Personnel of Naval Establishment

Service of process upon personnel.
Personnel subpenaed as witnesses in
State or local courts.

Personnel subpenaed as witnesses in
Federal courts.

720.23 Naval prisoners as witnesses or parties in civil courts.

720.24 Interviewing personnel preliminary to civil litigation in matters pertaining to official duties. Suits against the United States. Subpart C-Production of Official Records Production of official records in response to court order. Production of official records in absence of court order. Certificates of full faith and credit. Subpart D-Liaison With the Department of Justice

720.25

720.30

720.31

720.32

AUTHORITY: Military Personnel and Civilian Employees' Claims Act of 1964, as amended (31 U.S.C. 240-243).

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 courtsmartial jurisdiction, or officer designated by him, is authorized, subject to exceptions in § 720.8, to deliver such person for the purpose of making him amenable to prosecution. The authorities of the requesting State will be required, in the absence of a waiver of extradition by the member concerned, to complete extradition process according to the prescribed procedures to obtain custody of a person from the State in which the individual is located, and to make arrangements to take the individual into custody there. Compliance with § 720.5 is required.

(b) Waiver of extradition. (1) Any person may waive formal extradition under circumstances cognizable under paragraph (a) of this section. 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. The form for waiver should be substantially as that suggested in appendix section A-13(a).1

(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 (a) of this paragraph.

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

(4) When an individual declines to waive extradition, the Commandant of the Naval District shall be informed and he 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, until the matter of extradition is resolved, without the permission of the Secretary of the Navy (Judge Advocate General).

(c) Fugitive warrants. A fugitive warrant, as used herein, is a warrant for the arrest of an individual issued by a court of competent jurisdiction of the State in which the individual concerned is then located, and which may be based on a warrant or other process issued by still another State. When delivery of an individual is sought on the basis of such a warrant, delivery will normally be granted. Section 720.1 is considered controlling in such cases. When the State in which the individual is located desires custody solely for the purpose of delivering the individual to another State, such as when delivery is sought on the basis of a fugitive warrant, officials of both States shall sign the agreement required by § 720.5, or the agreement will be modified so as to reflect clearly that the State in which the individual is located may not avoid the responsibility of returning the individual to the Department of the Navy. When an indivdual is delivered upon presentation of a proper fugitive warrant, the provisions of paragraph (b) of this section relative to extradition are applicable.

$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

1 Filed as part of original document.

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. Delivery may be accomplished as set forth in § 720.6. § 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, 720.14, 720.20, 720.23, and 720.30.