U.S. v. Miller, 62 M.J. 471

Trial Stages: Appeals: Waiver

1. Congress has provided a narrow window in which an accused may waive appellate review in non-capital cases; under Article 61(a), UCMJ, such a waiver must be signed by the accused and defense counsel and must be filed within 10 days after the action on the sentence is served on the accused or on defense counsel; the convening authority or other person taking such action may extend the period for such filing by not more than 30 days; because a waiver may not be filed prior to the convening authority’s action, a premature filing is invalid, and appellate review will proceed
2. if the accused has waived review by the CCA, the convening authority must refer the case for review by a judge advocate under Article 64, UCMJ, and RCM 1112; in specified circumstances, including a case in which a punitive discharge has been adjudged, the case is then submitted for further action by an officer exercising general court-martial authority under Article 64(b) and RCM 1112(e); such cases also may be reviewed by the Office of the Judge Advocate General under Article 69(b), UCMJ
3. if review by the CCA has not been waived, the accused may withdraw an appeal at any time in a non-capital case; the discretion to grant or deny a motion to withdraw an appeal is vested in the appellate courts
4. the preferred method of demonstrating a provident waiver is a document signed after the convening authority’s action, but a document signed beforehand may be used so long as the record demonstrates a serious, rational, and informed discussion between the accused and defense counsel after the convening authority’s action, but before the filing of the waiver
5. the text of Article 61 does not preclude signing a waiver at any time so long as there is a provident waiver decision after the convening authority’s action; because this conclusion is based on the text of Article 61, it would be the same even if the President had not expressly authorized an early signing under RCM 1110(f)