Executive Order 10190—Prescribing Regulations Relating to New Trials by Courts-Martial and Other Relief in Navy and Coast Guard Cases

By virtue of the authority vested in me by section 12 of the act of Congress entitled "An Act to unify, consolidate, revise, and codify the Articles of War, the Articles for the Government of the Navy, and the disciplinary laws of the Coast Guard, and to enact and establish a Uniform Code of Military Justice," approved May 5, 1950 (64 Stat. 107; Public Law 506, 81st Congress), I hereby prescribe the following regulations governing the application for, and the granting of, new trials by courts-martial and other appropriate relief in cases in the Navy and the Coast Guard with respect to offenses committed during World War II:

1. PETITION; BASIS FOR REMEDY. With respect to all trials by general courts-martial which resulted in a conviction and with respect to any trial which resulted in an approved sentence, including a bad-conduct discharge adjudged by any lesser court-martial for a violation of the Articles for the Government of the Navy or the disciplinary laws of the Coast Guard committed at any time between December 7, 1941, and May 30, 1951, inclusive, an accused may, within one year after final disposition of the case upon initial appellate review or at any time before May 31, 1952, whichever is the later date, petition the Judge Advocate General of the Navy or the General Counsel of the Treasury Department, as may be appropriate, to grant a new trial, or to vacate any sentence adjudged and to restore rights, privileges, or property affected by the sentence, and in a proper case to substitute for a dismissal, dishonorable discharge, or bad-conduct discharge previously executed a form of discharge authorized for administrative issuance. Completion of review and of any confirming, approving, or affirming action taken under the Articles for the Government of the Navy or the disciplinary laws of the Coast Guard, or required under the Uniform Code of Military Justice, when it becomes effective or any regulations prescribed under such Articles, laws, or Code shall constitute final disposition of a case upon initial appellate review. Only one such petition may be entertained with regard o any one case. The petition may be submitted either by the accused or by his representative, regardless of whether the accused is in the service or has been separated therefrom. A petition may not be submitted after the death of an accused. A petition for relief under section 12 of the said act of May 5, 1950, shall be acted upon in the department which reviewed the previous trial, except that if the accused is a member of the Coast Guard at the time of his trial and at the time of submission of his petition, the petition shall be acted upon by the department in which the Coast Guard is serving at the time the petition is submitted.

Relief under section 12 of the said act of May 5, 1950, shall be granted only upon good cause shown. Good cause for granting a new trial, for vacation of a sentence, or for other remedy shall be deemed to exist only if, within the discretion of the Judge Advocate General of the Navy or the General Counsel of the Treasury Department, as the case may be, all the facts and information before him, including the record of trial, the petition, and other matter presented by the accused, affirmatively establish that an injustice has resulted from the findings or sentence.

2. FORM OF PETITION; PROCEDURE. The petition shall be in writing and signed under oath or affirmation by the accused, or by a person possessing either the power of attorney of the accused for the purpose or the authorization of a court of law to sign the petition as the representative of the accused, and shall be forwarded in triplicate directly to the Judge Advocate General of the Navy, Washington 25, DC., or the General Counsel of the Treasury Department, Washington 25, D.C., as may be appropriate. So far as practicable the petition shall be typewritten with lines double-spaced, and shall contain the following:

(1) The name and serial number of the accused, his address, and the date of trial.

(2) The remedy sought.

(3) The sentence or a description thereof as finally approved or confirmed, together with a statement of any subsequent reduction thereof by clemency or otherwise.

(4) A brief description of any findings or sentence believed unjust.

(5) A full statement of the fact, ruling, or error relied upon as good cause for the remedy south. No fact, ruling, or error other than matters relating to jurisdiction shall be deemed to constitute good cause unless it had a substantial contributing effect upon the findings of guilty or upon the sentence as finally approved.

(6) The affidavit of each person whom the accused expects to present as a witness in the event of a new trial. Each such affidavit should set forth briefly the relevant facts within the personal knowledge of the affiant.

Upon written request and within his discretion, the Judge Advocate General or the General Counsel of the Treasury Department, as the case may be, may allow oral argument upon a petition. Any hearing granted shall be conducted under rules prescribed by such officer and the hearing may be before that officer or before an officer or officers designated by him. The Judge Advocate General of the Navy or the General Counsel of the Treasury Department, as the case may be, may cause such additional investigation to be made and such additional evidence to be secured as he may deem appropriate.

Action in granting or denying a remedy under section 12 of the said act of May 5, 1950, shall be taken by the Judge Advocate General of the Navy or the General Counsel of the Treasury Department in writing signed in his own hand or by his direction. Whenever appropriate, the action granting a remedy shall be published in appropriate departmental orders.

If a new trial is granted by the Judge Advocate General of the Navy or the General Counsel of the Treasury Department upon the petition of the accused, he shall cause the accused to be brought before a new court convened by an officer possessing authority to convene an appropriate court-martial and designated for the purpose by the Judge Advocate General or the General Counsel. The new trial shall be on the same charges and specifications originally preferred against the accused unless the reasons for retrial are based on defects in the charges or specifications, in which case new charges and specifications shall be prepared correcting the pleading previously objected to, but the accused shall not be tried for any offense of which he was found not guilty by the first court. Upon the granting of a new trial, the proceedings, findings, and sentence relating to the previous trial shall be set aside by the Judge Advocate General of the Navy or the General Counsel of the Treasury Department, as the case may be: Provided, that if the accused has been separated from the service, such proceedings, findings, and sentence shall not be set aside when the new trial is granted but shall be set aside after initial appellate review of the new trial.

The new trial shall be held at such time and place as the convening authority may direct.

The presentation of a petition shall not operate to stay execution of a sentence.

HARRY S. TRUMAN

THE WHITE HOUSE,

December 6, 1950