26-1067. Court of military appeals; members; terms; compensation; duties; review; procedures

A. The Arizona court of military appeals is established and is located for administrative purposes only in the department of emergency and military affairs. The court shall consist of five judges appointed by the governor on the recommendation of the adjutant general with the advice of the state judge advocate for a term of six years. Initial appointments shall be staggered. The term of office for all successor judges is six years, but any judge appointed to fill a vacancy occurring before the expiration of the term for which the judge's predecessor was appointed shall be appointed only for the unexpired term of the predecessor. Not more than three judges of the court may be appointed from the same political party. Judges may succeed themselves in office. A person is eligible for appointment to this court who, in addition to the requirements of article VI, section 22, Constitution of Arizona, has at least five years' experience as a judge advocate in the national guard or armed forces of the United States.

B. Before appointment by the governor, a prospective judge shall submit a full set of fingerprints to the governor for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

C. The governor shall designate one of the judges to act as chief judge. The chief judge has precedence and shall preside at any session the judge attends. The other judges have precedence and shall preside according to the seniority of their appointments. Judges whose commissions bear the same date have precedence according to seniority in age.

D. The court shall sit in panels of no less than three judges to be selected by the presiding judge.

E. Judges of the Arizona court of military appeals may be removed by the governor, on notice and hearing, for neglect of duty or malfeasance in office or for mental or physical disability but for no other cause.

F. The judges of the Arizona court of military appeals, while actually sitting in review of a matter placed under their jurisdiction by this chapter, and while traveling to and from such session, are eligible to receive compensation equal to that compensation prescribed for the judges of the Arizona court of appeals, as provided by law, together with the actual cost of meals, lodging and travel expense or the amount set by law if private transportation is utilized. Payment shall be made from monies appropriated to the national guard.

G. The Arizona court of military appeals has exclusive appellate and special action jurisdiction, in appeals filed by this state pursuant to section 26-1062, or on petition of an accused, to hear and review the record in all general and special court-martial cases and all summary court-martial cases in which a sentence of confinement has been adjudged.

H. The accused has thirty calendar days from the time of receipt of actual notice of the final action on the case by the convening authority under section 26-1060 to petition the Arizona court of military appeals for review. The court shall act on a petition within sixty calendar days after receipt. If the court fails or refuses to grant a petition for review, the final action of the convening authority is deemed approved. Notwithstanding any other provision of this chapter, if the court grants a hearing of an appeal, the court may grant a stay or defer service of the sentence of confinement or any other punishment until the court's final decision on the case.

I. The Arizona court of military appeals may act only with respect to the findings and sentence as finally approved and ordered executed by the convening authority.

J. If the Arizona court of military appeals sets aside the findings and sentence, it may order a rehearing, except if the setting aside is based on lack of sufficient evidence in the record to support the findings. If it sets aside the findings and sentence and does not order a rehearing, it shall order that the charges be dismissed. After the Arizona court of military appeals has acted on the case, the record shall be returned to the state judge advocate who shall notify the convening authority of the court's decision. If further action is required, the state judge advocate shall instruct the convening authority to take action in accordance with that decision. If the court has ordered a rehearing, but the convening authority finds a rehearing impracticable, the state judge advocate may dismiss the charges.

K. Decisions of the Arizona court of military appeals are subject to review by the Arizona supreme court by a petition for review in accordance with the Arizona rules of criminal procedure and the rules of the supreme court of Arizona.

L. With monies appropriated to the national guard, the adjutant general may employ persons necessary to assist the Arizona court of military appeals in its duties.

M. The adjutant general with the approval of the governor shall adopt rules necessary for the administration of the court. The accused has a right to appointed military counsel for an appeal.