Okla. Stat. tit. 44, § 44-866

ARTICLE 66. Military Court of Appeals for state military

forces.

A. Military Court of Appeals. There is hereby established a

Military Court of Appeals for the state military forces of the State

of Oklahoma. The Military Court of Appeals shall be a court of

record and except as provided in Section 867 of this title (Article

67), the appellate jurisdiction of the Military Court of Appeals

shall be exclusive in all courts-martial cases convened by state

military forces regardless of whether a court-martial was conducted

within or without the physical boundaries of the State of Oklahoma.

B. Composition and method of appointment. The Military Court

of Appeals shall be composed of one panel of not less than three

appellate military judges. At the time the Military Court of

Appeals is initially constituted and each time thereafter when a

vacancy shall occur or is certain to occur on the Court, the State

Judge Advocate shall choose and submit to the Governor at least one

nominee for a vacant seat, certified by the State Judge Advocate as

qualified, by reason of education, training, experience, and

judicial temperament, for duty as an appellate military judge.

Prior to submission of a nominee to the Governor, the nominee shall

have previously notified the State Judge Advocate in writing that he

or she will serve as an appellate military judge if appointed. The

Governor shall appoint one nominee to fill the vacancy, but if the

Governor fails to do so within sixty (60) days after the State Judge

Advocate submits the nominee to the Governor or the Governor does

not affirmatively reject in writing the nominee so submitted, the

State Judge Advocate shall appoint one nominee, the appointment to

be certified by the Secretary of State. No person so nominated and

Oklahoma Statutes - Title 44. Militia Page 131

appointed by the Governor or by the State Judge Advocate shall take

his or her seat on the Military Court of Appeals without first

receiving the approbation of the Senate through advice and consent;

provided that, in the case of any vacancy that occurs while the

Legislature is not in regular session within the meaning of Section

26 of Article V of the Oklahoma Constitution, the Governor, or the

State Judge Advocate as provided in this subsection, shall appoint a

person who satisfies the requirements established in subsection C of

this section to serve as an appellate military judge. If the

interim nomination of the appellate military judge is not approved

by the Senate during the first regular session following its

submission, it shall be deemed rejected. No person shall be

nominated to serve as a member of the Military Court of Appeals who

is presently employed by the Oklahoma Military Department, either in

a full-time or part-time capacity, nor shall any person employed as

a federal technician, as defined in Title 32 of the United States

Code, be nominated to serve as a member of the Military Court of

Appeals.

C. Qualifications. An appellate military judge who is

appointed to the Military Court of Appeals shall be a licensed

practicing attorney or judge of a court of record, or both, in

Oklahoma for one (1) year preceding his or her appointment and shall

continue to be a duly licensed attorney while in office to be

eligible to hold the office. No appellate military judge shall be

appointed to the Military Court of Appeals who did not previously

serve as a judge advocate in any department of the Armed Forces of

the United States, to include reserve components of the same. The

Military Court of Appeals shall include at least one appellate

military judge who previously served in the United States Army or a

reserve component of the same. The Military Court of Appeals shall

include at least one appellate military judge who previously served

in the United States Air Force or a reserve component of the same.

D. Term of office and causes for removal or retirement. Each
Military Court of Appeals shall include at least one appellate

military judge who previously served in the United States Army or a

reserve component of the same. The Military Court of Appeals shall

include at least one appellate military judge who previously served

in the United States Air Force or a reserve component of the same.

D. Term of office and causes for removal or retirement. Each

appellate military judge appointed pursuant to this section shall,

unless removed for cause, serve out the term for which he or she is

appointed. Appellate military judges appointed pursuant to this

section shall serve for fixed terms of office of appropriate minimum

periods which shall be prescribed by regulations promulgated by the

Adjutant General. The appellate military judges of the Military

Court of Appeals, exercising judicial power under the provisions of

the Oklahoma Uniform Code of Military Justice, shall be subject to

removal from office, or to compulsory retirement from office, by

proceedings in the Court on the Judiciary, for:

1. Gross neglect of duty, corruption in office, habitual

drunkenness, commission while in office of any offense involving

moral turpitude, gross partiality in office, oppression in office,

mental or physical disability preventing the proper performance of

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official duty or incompetence to perform the duties of the office;

or

2. Other reasons arising from military customs and practices

defined in regulations promulgated by the Adjutant General.

E. Compensation. Appellate military judges shall receive

compensation calculated on the basis of the current basic pay

received by a member in active federal service at the grade of O-6

with twenty (20) years of time in service. The Adjutant General

shall promulgate regulations establishing the method of calculating

compensation for less than full-time service by members of the

Military Court of Appeals. Appellate military judges may be paid

such actual and necessary expenses as may be provided for in

regulations promulgated by the Adjutant General.

F. Review.

1. Appeals by accused. The Military Court of Appeals shall

have jurisdiction over a timely appeal from the judgment of a court-

martial, entered into the record under Section 860C of this title

(Article 60C), as follows:

a. on appeal by the accused in a case in which the

sentence extends to confinement for more than six (6)

months and the case is not subject to automatic review

under paragraph 3 of this subsection,

b. on appeal by the accused in a case in which the

government previously filed an appeal under Section

862 of this title (Article 62),

c. on appeal by the accused in a case that the State

Judge Advocate has sent to the Military Court of

Appeals for review of the sentence under subsection C

of Section 856 of this title (Article 56, subsection

C),

d. in a case in which the accused filed an application

for review with the Court under subparagraph b of

paragraph 1 of subsection D of Section 869 of this

title (Article 69, subsection D, paragraph 1,

subparagraph b) and the application has been granted

by the Court.

2. Review of certain sentences. The Military Court of Appeals

shall have jurisdiction over all cases that the State Judge Advocate

orders sent to the Court for review under subsection C of Section

856 of this title (Article 56, subsection C).

3. Automatic review. The Military Court of Appeals shall have

jurisdiction over a court-martial in which the judgment entered into

the record under Section 860C of this title (Article 60C) includes a

sentence of dismissal of a commissioned officer, cadet, dishonorable

discharge or bad-conduct discharge, or confinement for two (2) years

or more.

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G. Timeliness. An appeal under paragraph 1 of subsection F of

this section is timely if it is filed as follows:
gment entered into

the record under Section 860C of this title (Article 60C) includes a

sentence of dismissal of a commissioned officer, cadet, dishonorable

discharge or bad-conduct discharge, or confinement for two (2) years

or more.

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G. Timeliness. An appeal under paragraph 1 of subsection F of

this section is timely if it is filed as follows:

1. In the case of an appeal by the accused under subparagraph a

or b of paragraph 1 of subsection F of this section, if filed before

the later of:

a. the end of the ninety-day period beginning on the date

the accused is provided notice of appellate rights

under subsection C of Section 865 of this title

(Article 65, subsection C), or

b. the date set by the Military Court of Appeals by rule

or order; and

2. In the case of an appeal by the accused under paragraph 1 of

subsection C of Section 865 of this title (Article 65, subsection C,

paragraph 1), if filed before the later of:

a. the end of the ninety-day period beginning on the date

the accused is notified that the application for

review has been granted by letter placed in the United

States mail for delivery by first-class certified mail

to the accused at an address provided by the accused

or, if no such address has been provided by the

accused, at the latest address listed for the accused

in his or her official service record, or

b. the date set by the Military Court of Appeals by rule

or order.

H. Duties.

1. Cases appealed by accused. In any case before the Military

Court of Appeals under subsection F of this section, the Court may

act only with respect to the findings and sentence as entered into

the record under Section 860C of this title (Article 60C). The

Court may affirm only such findings of guilty, and the sentence or

such part or amount of the sentence, as the Court finds correct on

the basis of applicable law.

2. Error or excessive delay. In any case before the Military

Court of Appeals under subsection F of this section, the Court may

provide appropriate relief if the accused demonstrates error or

excessive delay in the processing of the court-martial after the

judgment was entered into the record under Section 860C of this

title (Article 60C).

I. Consideration of appeal of sentence by the State of

Oklahoma.

1. In general. In considering a sentence on appeal or review

as provided in subsection C of Section 856 of this title (Article

56, subsection C), the Military Court of Appeals may consider:

a. whether the sentence violates the law, and

b. whether the sentence is plainly unreasonable.

2. Record on appeal or review. In an appeal or review under

this subsection or subsection C of Section 856 of this title

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(Article 56, subsection C), the record on appeal or review shall

consist of:

a. any portion of the record in the case that is

designated as pertinent by either of the parties,

b. the information submitted during the sentencing

proceeding, and

c. any information required by regulations promulgated by

the Adjutant General or by rule or order of the

Military Court of Appeals.

J. Limits of authority.

1. Set aside of findings.

a. In general. If the Military Court of Appeals sets

aside the findings, the Court:

(1) may affirm any lesser included offense, and
parties,

b. the information submitted during the sentencing

proceeding, and

c. any information required by regulations promulgated by

the Adjutant General or by rule or order of the

Military Court of Appeals.

J. Limits of authority.

1. Set aside of findings.

a. In general. If the Military Court of Appeals sets

aside the findings, the Court:

(1) may affirm any lesser included offense, and

(2) may, except when prohibited by Section 844 of

this title (Article 44), order a rehearing.

b. Dismissal when no rehearing ordered. If the Military

Court of Appeals sets aside the findings and does not

order a rehearing, the Court shall order that the

charges be dismissed.

c. Dismissal when rehearing impracticable. If the

Military Court of Appeals orders a rehearing on a

charge and the convening authority finds a rehearing

impracticable, the convening authority may dismiss the

charge.

2. Set aside of sentence. If the Military Court of Appeals

sets aside the sentence, the Court may:

a. modify the sentence to a lesser sentence, or

b. order a rehearing.

3. Additional proceedings. If the Military Court of Appeals

determines that additional proceedings are warranted, the Court may

order a hearing as may be necessary to address a substantial issue,

subject to such limitations as the Court may direct and under such

regulations as the Adjutant General may prescribe.

K. Action in accordance with decisions of courts. The State

Judge Advocate shall, unless there is to be further action by the

Governor, the Adjutant General, or the Oklahoma Court of Criminal

Appeals, instruct the appropriate authority to take action in

accordance with the decision of the Military Court of Appeals.

L. Rules of procedure and designation of chief judge. The

State Judge Advocate shall prescribe uniform rules of procedure for

the Military Court of Appeals which shall be published as a military

publication and shall meet periodically to formulate policies and

procedure in regard to review of court-martial cases in the office

of the State Judge Advocate and by the Military Court of Appeals.

The State Judge Advocate shall designate as chief judge one of the

appellate military judges of the Military Court of Appeals.

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M. Prohibition on evaluation of other members of courts. No

member of the Military Court of Appeals shall be required, or on his

or her own initiative be permitted, to prepare, approve, disapprove,

review, or submit, with respect to any other member of the Military

Court of Appeals, an effectiveness, fitness, or efficiency report,

or any other report or document used in whole or in part for the

purpose of determining whether a member of the state military forces

is qualified to be advanced in grade, or in determining the

assignment or transfer of a member of the state military forces, or

in determining whether a member of the state military forces should

be retained as a member of the state military forces.

N. Ineligibility of members of courts to review records of

cases involving certain prior member service. No member of the

Military Court of Appeals shall be eligible to review the record of

any trial if such member served as investigating officer in the case

or served as a member of the court-martial before which such trial

was conducted, or served as military trial judge, trial or defense

counsel, or reviewing officer of such trial. No member of the

Military Court of Appeals shall be eligible to review the record of

any trial if such member served as an Assistant Attorney General,

district attorney, assistant district attorney or municipal

prosecutor who determined or participated in the determination of

whether to prosecute a nonmilitary offense when the act or omission

in question could have violated both the Oklahoma Uniform Code of

Military Justice and state or local criminal laws.