treatment. MS Comp Gen B-120573, 34 Comp Gen 275. 3 December 1954. § 71. Discharge, Dismissal or Resignation of Personnel § 71.33. Reserve status upon discharge. On 8 September 1950 an individual enlisted in the National Guard of a state and the National Guard of the United States. Subsequently he was ordered into active military service of the United States and while on active duty he absented himself without leave. In 1954, still absent without leave, he was given an undesirable discharge from the state National Guard as of 7 September 1953, the date his term of enlistment expired. Held: As it appears that the man's discharge from the state National Guard was validly accomplished under the provisions of subpar 6g, National Guard Regulations 25-3, 13 August 1953, the man became a member of the Army Reserve (on active duty, absent without leave) effective 8 September 1953 by virtue of the provisions of sec 707, Armed Forces Reserve Act of 1952 (66 Stat 503; 50 USC 1117). See subpar 16c (2), SR 140-160-1, 10 February 1953.) JAGA 1954/9568. 29 December 1954. § 1. In General. NEW TRIAL § 5. Newly Discovered Evidence. § 1. In General § 1.5. Who may take action on petition. After his conviction had been affirmed by a board of review, the accused petitioned the United States Court of Military Appeals for a grant of review. While this petition was still pending before the Court of Military Appeals his counsel submitted to The Judge Advocate General, United States Air Force, a petition for a new trial under the provisions of UCMJ, Art 73. This petition was premised upon newly discovered evidence purporting to show that the accused was not mentally responsible at the time of commission of the offenses and further that he could not reasonably cooperate in his own defense at the time of trial. This petition was referred to the Court of Military Appeals which subsequently ordered "That the record of trial be returned to The Judge Advocate General of the Air Force for reference to the board of review for determination of the issue of sanity, and for such further action as may be considered appropriate, without prejudice to the right of petitioner for further proceedings under Art 67, Uniform Code of Military Justice." Held: With the filing of the petition for grant of review jurisdiction vested in the Court of Military Appeals and the board of review was deprived of jurisdiction to take any action in the case in the absence of some direction from the Court of Military Appeals divesting itself of jurisdiction over the cause and amounting to an order to remand the entire case. (Citing U. S. v. Jackson (No. 1052), 2 USCMA 179, 7 CMR 55; U. S. v. Reeves (No. 453), 1 USCMA 388, 3 CMR 122.) The language of the Court of Military Appeals indicates that that court intended to grant authority to the board of review to take action upon the petition for new trial in accordance with the findings of the board upon the primary issue of sanity. The Court of Military Appeals did not intend by such all-embracing language to limit the board of review to a mere finding of fact upon the issue of sanity. It divested itself of jurisdiction over the entire cause and remanded the case to the board of review for all purposes. (Citing U. S. v. Thomas (No. 2026), 3 USCMA 161, 11 CMR 161; Rule 33, Federal Rules of Criminal Procedure.) ACM 7063, Morrison (1954) 17 CMR 686. § 5.1. Generally. § 5. Newly Discovered Evidence On a trial for stealing a sum of money, evidence showed that the victim suspected the accused and he and three companions questioned the accused who denied taking the money but admitted he had a large sum with him which he had made on the black market. Sometime after the victim had threatened the accused without results the accused gave him $80 stating it was given so the victim would not disclose what he had been told about the black market. The next day the accused gave the victim another $20. After findings the accused testified in substance that he had taken the money, that he didn't know why he did it but that he was always getting into trouble, that he didn't need the money and that he had intended to return it. A petition for a new trial signed by the accused asserted that he was unable to offer certain evidence in his own behalf because of threats against his life. The petition then proceeded to allege that the alleged victim and his three companions told the accused that they were going to fix him for trying to invade their black market activities. The petition further alleged that they told the accused to keep out of their business or they would beat him up and that they had started a rumor that he had stolen some money. He stated he loaned some money to the alleged victim in order to ease the threats against him and because of fear he did not tell his counsel the true story. Held: A petitioner for a new trial, whether he relies on the ground of newly discovered evidence or fraud on the court must affirmatively establish that an injustice has resulted from the findings or sentence, and that a new trial would probably produce a more favorable result. The petition herein is no more than a self-serving declaration made by a convicted person, lacking corroboration as to any of its allegations, and inconsistent with prior credible testimony of the accused. The bare assertions of the petition are patently not newly discovered evidence and are unworthy of belief and consequently fail to show fraud on the court. CGCMS 20052, Doyle (1954) 17 CMR 542. The accused was found guilty of assaulting another by striking him in the eye with a sharp instrument. The evidence showed that the victim was intoxicated and that in the course of a fight the accused struck him in the eye. The eye was seen bleeding profusely. The victim returned to his station where he was treated by a medical officer who testified that the wound was of such a character that in his opinion it was caused by a sharp instrument. He stated he looked for any foreign object in the eye but he found none. The accused admitted striking the victim but he denied using any instrument. In support of a petition for a new trial he presented affidavits of gate guards at the victim's station to the effect that on the night in question the victim came to the gate in a drunken condition, holding his hand over an injured eye and that in answer to a question as to how the injury was inflicted he said it happened while he was walking alone and some Filipinos jumped him from behind. At the trial the law officer excluded a statement by the victim to the medical officer at the time of treatment to the effect that an object of unknown nature struck him in the eye. On crossexamination the victim was asked if he had made such a statement and he admitted he could have made such a statement but he could not say definitely since due to his physical condition he was out of his mind and could not remember any conversations after his injury. Held: The petition for a new trial must be denied since it does not establish that an injustice resulted from the findings and sentence. The evidence was sufficient to sustain the findings and sentence and assuming that the victim's statement to the medical officer should have been admitted, its rejection was not prejudicial since at a later time in the trial the substance of the statement was brought out and the doctor specifically excluded that method of injury for he said he found no evidence of a foreign object in the eye. It could also be denied on the ground that there is no showing that the evidence set out in the affidavits was newly discovered since the accused did not aver when he first discovered that the gate guards had talked to the victim and the affidavits themselves do not show when the subject was first discussed. Furthermore, the record shows a lack of diligence on the part of the accused. The route travelled by the victim from the scene of the offense to the hospital was well known. At the pre-trial investigation it developed that he proceeded to his station by jitney, conversed with the gate guards and was transferred to an ambulance and taken to the hospital. The identity of the guards could readily have been ascertained. Also, the guards apparently had disclosed the evidence claimed to be newly discovered prior to trial since the affidavits stated they were called before the company commander and at that time disclosed that the victim had made a statement about the nature of his injury. The record does not suggest any attempt to conceal this information and cursory investigation by the accused and his counsel would have unearthed the testimony. The petition for a new trial could also be denied on the ground that the claimed new evidence would not produce a different result. It establishes only an inconsistent unsworn statement made under conditions which clearly establish its unreliability. When the uncontradicted evidence as to the occurrence of the injury and its nature are considered in connection with the victim's testimony that he remembers little, if anything, about his conversations after his injury, it is apparent that his one unrealistic version of how his injury occurred would not change the outcome of the trial. Particularly is this true since his mental capacity was impaired by drunkenness and physical suffering. Rambling statements under such circumstances would not be likely to discredit the victim in the eyes of the court. If there was any probability of truth in the version related to the guards the evidence might produce a different result, but, in view of the other evidence, the truthfulness of the statement is so inherently improbable that it amounts to no more than the mental aberrations of one in a drunken condition, suffering from a serious injury and literally out of his mind. United States v. Childs (No. 4965), 5 USCMA 270, 17 CMR 270. [See 39 Am Jur, New Trial, §§ 159-161, 166.] § 5.5. Facts known at trial; exercise of diligence. The accused was convicted of violating a regulation governing the exchange of military scrip for US dollars by making an unauthorized exchange. He filed a petition for a new trial accompanied by two affidavits, one by himself and one by the officer who was his immediate superior at the time of the alleged offense. In his affidavit, he stated that he had authority to make the exchanges in question but that evidence thereof was not presented at the trial because he relied on advice of counsel that the government had the burden of showing a lack of authority. The affidavit of his superior officer stated that he had given the accused authority for the exchanges in question. Held: The matters contained in the petition and affidavits do not meet the requirements having to do with evidence sufficient to warrant the grant of a new trial. The affidavits disclose no matter involving any sort of fraud on the court and the statements themselves reflect that they are the very antithesis of newly discovered evidence. Moreover, it is improbable that the defense counsel, having access to proof completely exonerating the accused, would fail to present it, unless expressly forbidden to do so by his client. (Citing U. S. v. Mundy (No. 1447), 2 USCMA 500, 9 CMR 130.) United States v. Blau (No. 4472), 5 USCMA 232, 17 CMR 232. The accused was convicted of rape. The alleged victim testified as to the details of the incident. The accused testified that he was unable to remember anything. He also presented evidence of similar blackouts in the past and a psychiatrist offered testimony tending to substantiate a claim of alcoholic amnesia. In support of a petition for a new trial the defense presented an affidavit of a psychiatrist to the effect that a sodium pentothal (truth serum) interview with the accused had been accomplished. In this interview, the accused related that he had driven the victim in his automobile on the night in question and had made certain stops as indicated in their testimony. However, thereafter he stated he had gone with her to a certain restaurant, a matter not mentioned in her testimony, which restaurant was located far from the route described in the victim's testimony. In the interview the accused also described the waitress who had served them at this restaurant. The accused's sodium pentothal statement further indicated that the victim rather than himself was the moving force in the incident. The psychiatrist's affidavit further stated that the facts elicited in the accused's subconscious during the sodium pentothal interview could, with proper medical treatment, be brought to his conscious mind and recollection and that he could then testify to such facts from his own personal knowledge. The defense also presented an affidavit of the waitress reciting in detail a conversation between the accused and the victim held in the restaurant on the night of the offense. Other defense affidavits attacked the victim's character with respect to chastity. Prior to the trial of the accused he had been examined by a psychiatrist and the defense made no effort to obtain any further psychiatric data relating to the accused or to seek recovery of his recollection. Furthermore, at the trial, the trial counsel questioned a psychiatrist as to whether the use of a truth drug would aid in determining whether or not a claim of amnesia was genuine and the defense counsel, rather than suggesting that the accused should be tested under a truth drug, objected to the |