request of counsel, a board permits a case to be submitted without argument.

(b) Notice of setting of arguments. A board of review will give appellate counsel at least ten days' notice of the time and place of oral argument, unless waived.

(c) Time limits. The length of oral arguments will be within the discretion of a board of review and ordinarily will not exceed thirty minutes for each side.

(d) Number of counsel; opening and closing. A board in its discretion may limit the number of counsel making an oral argument. The defense will have the right to make opening and closing arguments.

(e) Failure to appear. Failure of ap. pellate counsel to appear at the time and place set for oral argument may be regarded as a waiver thereof and the board may proceed to act on the case as submitted without argument or, in its discretion, may continue the case for argument at a later date, giving due notice thereof.

(f) Presence of accused. The accused does not have a right to be present at the hearing before the board of review. § 150.18 Matters outside the record.

Matters outside the record of trial will not be presented to or argued before a board of review except with respect to:

(a) A petition for new trial referred to a board under Article 73 of the Uniform Code of Military Justice (sec. 873, 70A Stat. 63; 10 U.S.C. 873) (see § 150.21),

(b) A question of jurisdiction,

(c) Matters affecting the sanity of an accused tending to show that further inquiry as to his mental condition is warranted in the interest of justice,

(d) Matters as to which judicial notice may be taken in military law,

(e) Such other matters as a board of review may determine to be proper under substantive law.

§ 150.19 Decisions of a board of review.

(a) Notice of decisions. Notice of the decision of a board of review will be accomplished as prescribed in paragraph 100, Manual for Courts-Martial, United States, 1951 (16 F.R. 1351; 3 CFR, 19491953 Comp., p. 502). In any case where a board affirms a sentence without opinion, notice upon the accused and appellate counsel for the accused, in accordance with paragraph 100c (1) (a), Manual for Courts-Martial, United States,

(a) A board of review may, in its discretion and on its own motion, enter an order in any case not later than 30 days after service of its decision on the accused to reconsider such decision, provided a petition for grant of review or certificate for review has not been filed with the United States Court of Military Appeals, or a record of trial for review under Article 67(b)(1) of the Uniform Code of Military Justice (sec. 867(b)(1), 70A Stat. 60; 10 U.S.C. 867(b)(1)) has not been received by the court. Copies of such order will be served on appellate defense counsel and appellate government counsel. No briefs or arguments will be received unless the order so directs.

(b) A board of review may, in its discretion, reconsider its decision in any case upon motion filed by either appellate defense counsel within 10 days from the time an accused is notified of the decision of the board of review or upon motion of appellate government counsel within 10 days after receipt of its decision, provided a petition for grant of review or certificate for review has not been filed with the United States Court

1 Entry of an order under paragraph (a) or receipt of a motion under paragraph (b) of this section, will delay the inception of the thirty-day appeal period prescribed by Article 67 (c) of the Uniform Code of Military Justice (sec. 867 (c), 70A Stat. 60; 10 U.S.C. 867(c)) until the time the accused is notified of the final disposition of the reconsideration or motion by the board of review and will delay the inception of the thirty-day period prescribed by Rule 25 of the Rules of Practice and Procedure of the United States Court of Military Appeals until the Judge Advocate General is notified of the final disposition of the reconsideration or motion by the board. See United States v. Sell, 3 USCMA 202, 11 CMR 202; United States v. Sparks, 5 USCMA 453, 18 CMR 77.

of Military Appeals, or a record of trial for review under Article 67(b) (1) of the Uniform Code of Military Justice (sec. 867(b)(1), 70A Stat. 60; 10 U.S.C. 867(b) (1)) has not been received by the court.1

(c) A motion for reconsideration shall briefly and directly state the grounds for reconsideration including a statement of facts showing jurisdiction in the board of review. A reply to the motion for reconsideration will be received by the board only if filed within five days of receipt of a copy of the motion. No oral argument will be received on a motion for reconsideration unless ordered by the board of review. The original of the motion filed with the board shall indicate the date of receipt of a copy of the same by opposing counsel.

(d) The time limitations prescribed by this section will not be extended under the authority of § 150.23 beyond the expiration of the time for filing a petition for review by the United States Court of Military Appeals, except that the time for filing briefs by either party may be extended for good cause. § 150.21 Petition for new trial.

(a) General provisions. Upon receipt from the Judge Advocate General of a petition for a new trial in a case pending before a board, the board of review shall, as soon as practicable, notify appellate counsel for the accused of such receipt.

investigation.

The

(b) Additional board on considering a petition for a new trial may, when deemed appropriate, request the Judge Advocate General to initiate further investigation and to report the results thereof to the board. Additionally, the board may take evidence concerning the petition, relaxing the rules of evidence to whatever extent it deems advisable.

(c) Answer. Appellant government counsel shall file an answer to a petition for new trial within 10 days after receipt of notification of the receipt thereof by a board of review.

(d) Briefs. Any brief in support of a petition for new trial shall be filed within 10 days of appellant government counsel's answer. If appellee fails to file an answer, appellant may file a brief within 10 days after the expiration of the time allowed for the filing of appellee's answer. Appellee's brief shall be filed within 10 days of the filing of 1 See footnote on p. 117.

appellant's brief. If appellant fails to file a brief, appellee may file his brief within 10 days after the expiration of the time allowed for filing of appellant's brief.

(e) Oral argument. Except when ordered by the board, oral argument will not be permitted on a petition for a new trial.

§ 150.22 Motions.

(a) Content. All motions, unless made during the course of a hearing, shall state with particularity the relief sought and the grounds therefor.

(b) Opposition. Any opposition to a motion shall be filed within five days after receipt by the opposing party of service of the motion.

(c) Leave to file. Any pleading not required by this part shall be accompanied by a motion for leave to file such pleading.

§ 150.23 Continuances and interlocutory

matters.

Except as otherwise provided in § 150.20(d), a board, in its discretion, may extend any time limits prescribed and may dispose of any interlocutory or other matters, not specifically covered by this part, in such manner as may appear to be required for a full, fair, and expeditious consideration of the case. The Chairman of the board may grant such extensions of time limits prescribed, for such time and as often as may appear to be just.

Subpart C-Appendixes

§ 150.31 Appendix 1-Form for assignment of errors (§ 150.15).

IN THE OFFICE OF THE JUDGE ADVOCATE
GENERAL OF THE AIR FORCE 1

guilty of, absence without leave from 2 June 1951 until 1 July 1951 in violation of U.C.M.J., Art. 86, and of larceny of a watch of a value of $75.00, the property of Private Schmidt, in violation of U.C.M.J., Art. 121. On 19. he was sentenced to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for 4 years. The convening authority approved the sentence, forwarded the record of trial to the Judge Advocate General of the and directed that pending completion of appellate review the accused be transferred to the command of where he is presently confined in the base stockade, Air Base,

Errors

The following errors are assigned:

1. The law officer erred in admitting in evidence as Prosecution's Exhibit No. 1, an alleged extract copy of the morning report of the 3000th Training Squadron dated 2 June 1951 (R. 17).

The exhibit shows that the alleged morning report was signed, and indicates that the entry as to the accused's alleged unauthorized absence was made, by Sergeant William Q. Johns, 3000th Training Squadron. Under pertinent regulations in effect at the time the alleged entry was made, a noncommissioned officer was not the proper person to sign the morning report and had no official duty to record the fact of unauthorized absence.

2. The court erred in its findings of guilty of absence without leave (R. 29), as there was no competent evidence of the alleged unauthorized absence.

Summary of Proceedings....
Statement of Facts---
Assignment of Errors-.-.
Argument

I. An extract copy of a morning report entry, which entry was made by a noncommissioned officer who had no official duty to make the entry, is not admissible in evidence as an exception to the hearsay rule..

a. Such an entry is not an official record_ b. The local practice of permitting un

authorized persons to sign morning reports in violation of Departmental regulations cannot create a custom having the force of law so as to impose upon the maker of the writing a duty to record the facts contained therein. c. An extract copy of an alleged morning report is not a business entry----II. The improper cross-examination of an accused, who has testified only as to the circumstances under which an alleged confession had been obtained, concerning the issue of guilt or innocence constitutes fatal error_----Conclusion

TABLE OF AUTHORITIES
MANUAL FOR COURTS-MARTIAL

MCM, 1951, par. 140a..
MCM, 1951, par. 144b.

18 U.S.C.

Page

1

1

2

9

11

15 19

16 4, 5, 10

Guidance for the application of the standard and criteria.

Processing of cases.

Emergency action.

Forwarding cases.

Initial adjudication procedures (Screening Board action). Personal appearance.

Procedures for personal appearance proceedings.

Field Board's report.

Action by the Central Industrial Personnel Access Authorization Board.

Action by the Secretary of Defense or the Administrators.

Procedure after final determinations.

One year suspension to protect classified defense information. Authority of the Secretary of Defense, and the Administrators, Federal Aviation Agency and the National Aeronautics and Space Administration.

Miscellaneous.

Pending cases.

Reconsideration of prior decisions.
Monetary restitution.

AUTHORITY: The provisions of this Part 155 issued under R.S. 161, sec. 202, 61 Stat. 500, as amended; 5 U.S.C. 22, 171a. E.O. 10501,

Part 155 is issued pursuant to the authority vested by law, including Executive Order 10865 (reproduced as Appendix A), in the Secretary of Defense. By an exchange of letters between the Secretary of Defense and the Administrators of the Federal Aviation Agency and the National Aeronautics and Space Administration, and as provided for in section 1(b), Executive Order 10865, the Department of Defense has been authorized to act for and in behalf of the Federal Aviation Agency and the National Aeronautics and Space Administration in the performance of the administrative and personnel services set forth in this Part 155.

§ 155.1-2 Purpose.

(a) The Secretary of Defense and the Administrators of the Federal Aviation Agency, and the National Aeronautics and Space Administration have prescribed specific requirements, restrictions, and other safeguards which they consider necessary to protect (1) releases of classified information to or within United States industry that relate to bids, negotiations, awards, or the performance or termination of contracts with their department or agency, and (2) other releases of classified information to or within industry which their department or agency has responsibility for safeguarding. In this connection, this Part 155 prescribes uniform standards, criteria, and procedures for processing to final determination all cases which come within the scope of the Industrial Personnel Access Authorization Review Program.

(b) Pursuant to the agreement made between the Department of Defense, and the Federal Aviation Agency, and the National Aeronautics and Space Administration (provided for in section 1(b), Executive Order 10865), this Part 155 has been extended to apply to protect the releases of classified information specified in paragraph (a) of this section. The boards and instrumentalities provided for in this Part 155 are hereby authorized to assume jurisdiction over, and

as hereinafter provided, to process and make determinations in cases arising out of such releases of classified information. (c) This Part 155 is issued to conform the Industrial Personnel Access Authorization Review Program to the requirements of Executive Order 10865. § 155.1-3 Definitions.

(a) Whenever the words "Department of Defense", or "Department of Defense agency or activity", or "military department" are used in this Part 155, they shall be deemed to include where applicable the Federal Aviation Agency, or the National Aeronautics and Space Administration.

(b) Access authorization. An authorization to have access to one or more categories of information classified in accordance with Executive Order 10501. (NOTE: Actual access, when authorized, requires both an access authorization and a "need to know.") In the case of a contractor, an "access authorization" is an authorization for the contractor involved to have access to specific categories of classified information provided such access is (1) required in connection with the bidding, negotiation, award, performance, or termination of contracts with a Department of Defense agency or activity or (2) required in connection with other releases of classified information to or within industry. In the case of a contractor employee, an "access authorization" is an authorization for the employee to have access to specific categories of classified information provided such access is (i) required for the performance of his work with a particular contractor on contracts with a Department of Defense agency or activity or (ii) required in connection with the release of classified information to or within industry.

(c) Administrator. The Administrator of the Federal Aviation Agency, or the National Aeronautics and Space Administration.

(d) Agency case. A case arising out of the release of classified information to or within industry directly by the Federal Aviation Agency or the National Aeronautics and Space Administration in connection with the bidding, negotiation, award, or performance or termination of a contract by one of those agencies.

(e) Applicant. Any person who is eligible to have the matter of granting,