PART 719—REGULATIONS SUPPLEMENTING THE MANUAL FOR COURTS-MARTIAL Authority: 3 U.S.C. 301; 5 U.S.C. 301; 10 U.S.C. 815, 5013, 5148; 32 CFR 700.206 and 700.1202. Subparts A-B [Reserved] Subpart C—Trial Matters § 719.112 Authority to grant immunity from prosecution. (a) General. (b) Procedure. i.e., (c) Civilian witnesses. (d) Cases involving national security. (e) Content of immunity requests. (1) Name, citation, or other identifying information of the proceeding in which the order is to be used. (2) Name of the witness for whom the immunity is requested. (3) Name of the employer or company with which a witness is associated or the military unit or organization to which a witness is assigned. (4) Date and place of birth, if known, of the witness. (5) FBI or local police file number, if any, and if known. (6) Whether any State or Federal charges are pending against the witness and the nature of the charges. (7) Whether the witness is currently incarcerated, under what conditions, and for what length of time. (8) A brief resume of the background of the investigation or proceeding before the agency or department. (9) A concise statement of the reasons for the request, including: (i) What testimony the witness is expected to give; (ii) How this testimony will serve the public interest; (iii) Whether the witness: (A) Has invoked the privilege against self-incrimination; or (B) Is likely to invoke the privilege; (iv) If paragraph (e)(9)(iii)(B) of this section is applicable, then why it is anticipated that the prospective witness will invoke the privilege. (10) An estimate as to whether the witness is likely to testify in the event immunity is granted. (f) Post-testimony procedure. (1) Name, citation, or other identifying information, of the proceeding in which the order was requested. (2) Date of the examination of the witness. (3) Name and residence address of the witness. (4) Whether the witness invoked the privilege. (5) Whether the immunity order was used. (6) Whether the witness testified pursuant to the order. (7) If the witness refused to comply with the order, whether contempt proceedings were instituted, or are contemplated, and the result of the contempt proceeding, if concluded. A verbatim transcript of the witness' testimony, authenticated by the military judge, should be provided to the Judge Advocate General at the conclusion of the trial. No testimony or other information given by a civilian witness pursuant to such an order to testify (or any information directly or indirectly derived from such testimony or other information) may be used against him in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order. (g) Review. (h) Form of grant. [56 FR 57803, Nov. 14, 1991] §§ 719.113-719.114 [Reserved] § 719.115 Release of information pertaining to accused persons; spectators at judicial sessions. (a) Release of information General. (2) Applicability of regulations. (3) Release of information. (ii) Except in unusual circumstances, information which is subject to release under the regulation should be released by the cognizant public affairs officer; requests for information received from representatives of news media should be referred to the public affairs office for action. When an individual is suspected or accused of an offense, care should be taken to indicate that the individual is alleged to have committed or is suspected or accused of having committed an offense, as distinguished from stating or implying that the accused has committed the offense or offenses. (4) Information subject to release. (i) The accused's name, grade, age, unit, regularly assigned duties, duty station, and sex. (ii) The substance of the offenses of which the individual is accused or suspected. (iii) The identity of the victim of any alleged or suspected offense, except the victim of a sexual offense. (iv) The identity of the apprehending and investigative agency, and the identity of accused's counsel, if any. (v) The factual circumstances immediately surrounding the apprehension of the accused, including the time and place of apprehension, resistance, pursuit, and use of weapons. (vi) The type and place of custody, if any. (vii) Information which has become a part of the record of proceedings of the court-martial in open session. (viii) The scheduling of any stage in the judicial process. (ix) The denial by the accused of any offense or offenses of which he may be accused or suspected (when release of such information is approved by the counsel of the accused). (5) Prohibited information. (i) Subjective opinions, observations, or comments concerning the accused's character, demeanor at any time (except as authorized in paragraph (4)(v) of this section), or guilt of the offense or offenses involved. (ii) The prior criminal record (including other apprehensions, charges or trials) or the character or reputation of the accused. (iii) The existence or contents of any confession, admission, statement, or alibi given by the accused, or the refusal or failure of the accused to make any statement. (iv) The performance of any examination or test, such as polygraph examinations, chemical tests, ballistics tests, etc., or the refusal or the failure of the accused to submit to an examination or test. (v) The identity, testimony, or credibility of possible witnesses, except as authorized in paragraph (4)(iii), of this section. (vi) The possibility of a plea of guilty to any offense charged or to a lesser offense and any negotiation or any offer to negotiate respecting a plea of guilty. (vii) References to confidential sources or investigative techniques or procedures. (viii) Any other matter when there is a reasonable likelihood that the dissemination of such matter will affect the deliberations of an investigative body or the findings or sentence of a court-martial or otherwise prejudice the due administration of military justice either before, during, or after trial. (6) Exceptional cases. (b) Spectators. (2) At pretrial investigations. [38 FR 5997, Mar. 6, 1973, as amended at 47 FR 49644, Nov. 2, 1982; 50 FR 23800, June 6, 1985; 69 FR 20540, Apr. 16, 2004] Subpart D [Reserved] Subpart E—Miscellaneous Matters § 719.138 Fees of civilian witnesses. (a) Method of Payment. (1) Trial counsel or assistant trial counsel of the court-martial; (2) Summary court officer; (3) Counsel for the court in a court of inquiry; (4) Recorder or junior member of a board to redress injuries to property, or (5) Military or civil officer before whom a deposition is taken. The public voucher must be accompanied by a subpoena or invitational orders (Joint Travel Regulations, vol. 2, chap. 6), and by a certified copy of the order appointing the court-martial, court of inquiry, or investigation. If, however, a deposition is taken before charges are referred for trial, the fees and mileage of the witness concerned shall be paid by the disbursing officer at or near the place where the deposition is taken upon presentation of a public voucher, properly completed as hereinbefore prescribed, and accompanied by an order from the officer who authorized the taking of the deposition, subscribed by him and directing the disbursing officer to pay to the witness the fees and mileage supported by the public voucher. When the civilian witness testifies outside the United States, its territories and possessions, the public voucher must be accompanied by a certified copy of the order appointing the court-martial, court of inquiry, or investigation, and by an order from the convening authority or appointing authority, subscribed by him and directing the disbursing officer to pay to the witness the fees and mileage supported by the public voucher. (b) Obtaining money for advance tender or payment. (c) Reimbursement. (d) Certificate of person before whom deposition is taken. (e) Payment of accrued fees. (f) Computation. (g) Nontransferability of accounts. (h) Signatures. (i) Rates for civilian witnesses prescribed by law Civilian witnesses not in Government employ. (i) Attendance or travel which is not performed either as a direct result of being compelled to testify pursuant to a subpoena or as a direct result of invitational orders; or (ii) For travel which is performed prior to being duly summoned as a witness; or (iii) For travel returning to their places of residence if the travel from their places of residence does not qualify for payment under this paragraph. (2) Civilian witnesses in Government employ. (j) Supplemental construction of section. (k) Expert witnesses. (2) The provisions of paragraph (i) of this section are applicable to expert witnesses. However, the expert witness fee prescribed by the convening authority will be paid in lieu of ordinary attendance fees on those days the witness is required to attend the court. (3) An expert witness employed in strict accordance with MCM, 1984, R.C.M. 703(d), may be paid compensation at the rate prescribed in advance by the official empowered to authorize his employment (11 Comp. Gen. 504). In the absence of such authorization, no fees other than ordinary witness fees may be paid for the employment of an individual as an expert witness. After an expert witness has testified pursuant to such employment, the certificate of one of the officers listed in subsection a above, when presented to the disbursing officer, shall also enclose a certified copy of the authorization of the convening authority. (l) Payment of witness fees to foreign nationals: Officers exercising general court-martial jurisdiction in areas other than a State of the United States shall establish rates of compensation for payment of foreign nationals who testify as witnesses, including expert witnesses, at courts-martial convened in such areas. [38 FR 5997, Mar. 6, 1973, as amended at 47 FR 49644, Nov. 2, 1982; 50 FR 23801, June 6, 1985] §§ 719.139-719.141 [Reserved] § 719.142 Suspension of counsel. (a) Report of Allegations of Misconduct or Disability. (b) Form of report. (1) Be in writing, under oath or affirmation, and made and signed by the individual reporting the information. (2) State that the individual reporting the information has personal knowledge or belief or has otherwise received reliable information indicating that: (i) The counsel is, or has been, unable to discharge properly all the duties of his or her office by reason of mental or physical disability; or (ii) The counsel is or has been engaged in professional or personal misconduct of such a serious nature as to demonstrate that he or she is lacking in integrity or is failing to meet the ethical standards of the profession; or (iii) The counsel is unworthy or unqualified to perform his or her duties; (3) Set forth the grounds of the allegation together with all relevant facts; and (4) Be forwarded to the appropriate authority as set forth in paragraph (a). (c) Consideration of the Report Action by the Commanding Officer of a judge advocate. (i) Shall dismiss any report relating to the performance of a judge advocate more properly appealed under law or any report that is frivolous, unfounded, or vague and return it to the reporting individual; (ii) May make further inquiry into the report at his or her discretion to determine the merits of the report. The commanding officer may appoint an officer to investigate informally the allegations of the report to determine whether further action is warranted. Any officer so appointed should be a judge advocate senior in rank to the judge advocate being investigated; (iii) May take appropriate action to address and dispose of the matter being mindful of such measures as warning, counseling, caution, instruction, proceedings in contempt, therapy, and other punitive or administrative action; or (iv) Shall, if the commanding officer is of the opinion that evidence of disability or professional or personal misconduct exists, and that remedial measures short of suspension or decertification are not appropriate or will not be effective, forward the original complaint, a written report of the inquiry or investigation, all other relevant information, and his or her comments and recommendations to the officer in the chain of command exercising general court-martial authority. (2) Action by officer exercising general court-martial authority. (A) May take the action authorized by subsections (c)(1)(i), (ii) or (iii); or (B) Shall, if he or she considers that evidence of disability or professional or personal misconduct exists and that other remedial measures short of suspension or decertification are not appropriate or will not be effective, appoint a board of officers to investigate the matter and to report its findings and its recommendations. This board shall be comprised of at least three officers, each an Article 27(b), Uniform Code of Military Justice, certified judge advocate. If practicable, each of the officers of the board should be senior to the judge advocate under investigation. If the counsel is a member of the Marine Corps, a majority of the members of the board should be Marine Corps judge advocates. The senior officer of the board shall cause notice to be given to the counsel, judge advocate or civilian (respondent), informing him or her of the misconduct or other disqualification alleged and affording him or her the opportunity to appear before the board for a hearing. The respondent shall be permitted at least ten (10) days' notice prior to the hearing. Failure to appear on a set date after notice shall constitute waiver of appearance, absent good cause shown. The respondent shall be generally afforded the rights of a party as set out in section 0304 of this Manual, except that, in the event the judge advocate respondent wishes to have military counsel appointed, he or she shall not have the right to select or identify a particular military counsel. A civilian respondent may not be represented by military counsel, but may be represented by civilian counsel at no expense to the Government. Upon ascertaining the relevant facts after notice and hearing, a written report of the findings and recommendations of the board shall be made to the officer who convened the board. In all cases, a written copy of the board's findings and recommendations shall be provided to the respondent. The respondent shall be given an opportunity to comment on the report in writing. (ii) Upon receipt of the report of the board of investigation, the officer exercising general court-martial authority shall: (A) Return the report to the board for further investigation, if the investigation is determined to be incomplete; or (B) Forward the report of the board of investigation to the Judge Advocate General together with comments and recommendations concerning suspension of the counsel involved. (3) Action by the Judge Advocate General. (A) May take the action authorized by subsections (c)(1)(i), (ii), or (iii); (B) May appoint a board of officers for investigation and hearing in accordance with subsections (c)(2)(i)(B) or (C) May request the officer exercising general court-martial jurisdiction over the command of the respondent (if judge advocate counsel) or over the proceedings (if civilian counsel) to take the matter for investigation and hearing in accordance with subsection (c)(2)(i)(B). (ii) Upon receipt of the report of the investigating board, the Judge Advocate General: (A) May determine whether the respondent is to be suspended or decertified and, if so, whether for a stated term or indefinitely; (B) May determine that the findings of the board do not warrant further action; or (C) May return the report to the sending officer with appropriate instructions for further inquiry or action. The Judge Advocate General may, sua sponte, or upon petition of the respondent, modify or revoke any prior order of suspension or dismissal of a report. Further, if the Judge Advocate General suspends counsel, the Judge Advocates General of the other armed forces will be notified. (d) Grounds justifying suspension of counsel or suspension or decertification of a Judge Advocate. (2) Specific grounds for suspension or decertification include, but are not limited to, the following: (i) Demonstrated incompetence while acting as counsel before, during or after a court-martial. (ii) Preventing or obstructing justice, including the deliberate use of frivolous or unwarranted dilatory tactics. (iii) Fabricating papers or other evidence. (iv) Tampering with a witness. (v) Abusive conduct toward the court-martial, the Navy-Marine Corps Court of Military Review, the military judge, or opposing counsel. (vi) Flagrant or repeated violations of any specific rules of conduct prescribed for counsel in the Manual for Courts-Martial. (vii) Conviction of an offense involving moral turpitude or conviction for violation of article 48, UCMJ. (viii) Disbarment by a State Bar, Federal Court, or the United States Court of Military Appeals. (ix) Suspension as counsel by the Judge Advocate General of the Navy, Army, or Air Force or the General Counsel of the Department of Transportation. (x) Flagrant or repeated violations of the Uniform Rules of Practice Before Navy-Marine Corps Courts-Martial (xi) Flagrant or repeated violations of the provisions of section 0134 of this Manual of the Judge Advocate General dealing with the Release of Information Pertaining to Accused Persons; Spectators at Judicial Sessions. (xii) Failure to meet the rules set forth in the ABA Code of Professional Responsibility and the ABA Standards on Fair Trial and Free Press The Prosecution Function and the Defense Function. [50 FR 23801, June 6, 1985] § 719.143 Petition for new trial under 10 U.S.C. 873. (a) Statutory provisions. (b) Submission procedures: (c) Contents of petitions: (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. (e) Ground for new trial. (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. (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] § 719.144 Application for relief under 10 U.S.C. 869, in cases which have been finally reviewed. (a) Statutory provisions. (b) Time limitations. (c) Submission procedures. (d) Contents of applications. (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 review authority in accordance with 10 U.S.C. 864 over the applicant at the time of trial, if applicable; (9) Type of court-martial which convicted the applicant, and sentence adjudged; (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; (v) Appropriateness of the sentence; (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; (13) Relief requested; and (14) Facts and circumstances to establish “good cause” for a failure to file the application within the time limits prescribed in paragraph (b) of this section, if applicable; and (15) If the application is signed by a person other than the applicant pursuant to subsection e, an explanation of the circumstances rendering the applicant incapable of making application. The applicant's copy of the record of trial will not (e) Signatures on applications. [50 FR 23804, June 6, 1985] §§ 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] § 719.155 Application under 10 U.S.C. 874(b) for the substitution of an administrative form of discharge for a punitive discharge or dismissal. (a) Statutory provisions. (b) Submission procedures. (c) Contents of the application. (1) Full name of the applicant; (2) Social Security Number, service number (if different), and branch of service of the applicant; (3) Present age and date of birth of the applicant; (4) Present residence of the applicant; (5) Date and place of the trial, and type of court-martial which resulted in the punitive discharge or dismissal; (6) Command title of the convening authority of the court-martial which resulted in the punitive discharge or dismissal; (7) Offense(s) of which the applicant was convicted, and sentence finally approved from the trial which resulted in the punitive discharge or dismissal; (8) Date the punitive discharge or dismissal was executed; (9) Applicant's present marital status, and number and ages of dependents, if any; (10) Applicant's civilian criminal record (arrest(s) with disposition, and conviction(s)), both prior and subsequent to the court-martial which resulted in the punitive discharge or dismissal; (11) Applicant's entire court-martial record (offense(s) of which convicted and finally approved sentence(s)), and nonjudicial punishment record (including offense(s) and punishment(s) awarded); (12) Any military administrative discharge proceedings (circumstances and disposition) initiated against the applicant; (13) Applicant's full employment record since the punitive discharge or dismissal was executed; (14) The specific type and character of administrative discharge requested pursuant to 10 U.S.C. 874(b) (a more favorable administrative discharge than that requested will not be approved); (15) At least three but not more than six character affidavits, (The character affidavits must be notarized, must indicate the relationship of the affiant to the applicant, and must include the address of the affiant as well as specific reasons why the affiant believes the applicant to be of good character. The affidavits should discuss the applicant's character primarily as reflected in the civilian community subsequent to the punitive discharge or dismissal which is the subject of the application); (16) Any matters, other than the character affidavits, supporting the considerations described in subparagraph (18) below; (17) Any other relief sought within the Department of the Navy and outside the Department of the Navy including dates of application and final dispositions; (18) A statement by the applicant, setting forth the specific considerations which the applicant believes constitute “good cause,” so as to warrant the substitution of an administrative form of discharge for the punitive discharge or dismissal previously executed. (In this connection, 10 U.S.C. 874(b) does not provide another regular or extraordinary procedure for the review of a court-martial. Questions of guilt or innocence, or legal issues attendant to the court-martial which resulted in the punitive discharge or dismissal, are neither relevant nor appropriate for consideration under 10 U.S.C. 874(b). As used in the statute, “good cause” was envisioned by Congress to encompass only Secretarial exercise of clemency and ultimate control of sentence uniformity. Accordingly, in determining what constitutes “good cause” under 10 U.S.C. 874(b), the primary Secretarial concern will be with the applicant's record in the civilian community subsequent to his or her punitive separation. Material submitted by the 10 U.S.C. 874(b) applicant should be consistent with the foregoing.) (d) Signature on application. (e) Privacy Act Statement. [47 FR 49645, Nov. 2, 1982, as amended at 50 FR 23804, June 6, 1985]