N.Y. Military Law 130.60 – Action by the convening authority
§ 130.60. Action by the convening authority. (a) The findings and sentence of a court-martial shall be reported promptly to the convening authority after the announcement of the sentence.
Terms Used In N.Y. Military Law 130.60
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Judge advocate: means an officer of a force of the organized militia who is a member of the judge advocate general's corps or who is designated as a judge advocate;
(10) "Legal officer" means an officer of the New York naval militia designated to perform legal duties for a command;
(11) "Code" means article seven of this chapter;
(12) "Accuser" means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than an official interest in the prosecution of the accused. See N.Y. Military Law 130.1 - Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
(b) (1) Within thirty days after the sentence of a general court-martial or of a special court-martial which has adjudged a bad-conduct discharge has been announced, the accused may submit to the convening authority matters for consideration by the convening authority with respect to the findings and the sentence. In the case of all other special courts-martial, the accused may make such a submission to the convening authority within twenty days after the sentence is announced. In the case of all summary courts-martial the accused may make such a submission to the convening authority within seven days after the sentence is announced. If the accused shows that additional time is required for the accused to submit such matters, the convening authority or other person taking action under this section, for a good cause, may extend the period:
(A) in the case of a general court-martial or a special court-martial which has adjudged a bad-conduct discharge, for not more than an additional twenty days; and
(B) in the case of all other courts-martial, for not more than an additional ten days.
(2) In a summary court-martial case the accused shall be promptly provided a copy of the record of trial for use in preparing a submission authorized by paragraph one of this subdivision.
(3) In no event shall the accused in any general or special court-martial case have less than a seven-day period from the day on which a copy of the authenticated record of trial has been given to him within which to make a submission under paragraph one of this subdivision. The convening authority or other person taking action on the case, for good cause, may extend this period for up to an additional ten days.
(4) The accused may waive his right to make a submission to the convening authority under paragraph one of this subdivision. Such a waiver must be made in writing and may not be revoked. For the purposes of paragraph two of subdivision (c) of this section, the time within which the accused may make a submission under this subdivision shall be deemed to have expired upon the submission of such a waiver to the convening authority.
(c) (1) The authority under this section to modify the findings and sentence of a court-martial is a matter of command prerogative involving the sole discretion of the convening authority. Under regulations of the adjutant general, a commissioned officer commanding for the time being, a successor in command, or any person exercising general court-martial jurisdiction may act under this section in place of the convening authority.
(2) Action on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section. Subject to regulations of the adjutant general, such action may be taken only after consideration of any matters submitted by the accused under subdivision (b) of this section and, if applicable, under subdivision (d) of this section, or after the time for submitting such matters expires, whichever is earlier. The convening authority or other person taking such action, in his sole discretion, may approve, disapprove, commute, or suspend the sentence in whole or in part.
(3) Action on the findings of a court-martial by the convening authority or other person acting on the sentence is not required. However, such person, in his sole discretion, may:
(A) dismiss any charge or specification by setting aside a finding of guilty thereto; or
(B) change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification.
(d) Before acting under this section on any general court-martial case or any special court-martial case that includes a bad-conduct discharge or any court-martial case which includes a sentence of confinement, the convening authority or other person taking action under this section shall obtain and consider the written recommendation of the staff judge advocate or legal officer. The convening authority or other person taking action under this section shall refer the record of trial to his staff judge advocate or legal officer, and the staff judge advocate or legal officer shall use such record in the preparation of his recommendation. The recommendation of the staff judge advocate or legal officer shall include such matters as the adjutant general may prescribe by regulations and shall be served on the accused, who shall have five days from the date of receipt in which to submit any matter in response. The convening authority or other person taking action under this section, for good cause, may extend that period for up to an additional twenty days. Failure to object in the response to the recommendation or to any matter attached to the recommendation waives the right to object thereto.
(e) (1) The convening authority or other person taking action under this section, in his sole discretion, may order a proceeding in revision or a rehearing.
(2) A proceeding in revision may be ordered if there is an apparent error or omission in the record or if the record shows improper or inconsistent action by a court-martial with respect to the findings or sentence that can be rectified without material prejudice to the substantial rights of the accused. In no case, however, may a proceeding in revision:
(A) reconsider a finding of not guilty of any specification or a ruling which amounts to a finding of not guilty;
(B) reconsider a finding of not guilty of any charge, unless there has been a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation of some article of this chapter; or
(C) increase the severity of some article of the sentence.
(3) A rehearing may be ordered by the convening authority or other person taking action under this section if he disapproves the findings and sentence and states the reasons for disapproval of the findings. If such person disapproves the findings and sentence and does not order a rehearing, he shall dismiss the charges. A rehearing as to the findings may not be ordered where there is a lack of sufficient evidence in the record to support the findings. A rehearing as to the sentence may be ordered if the convening authority or other person taking action under this subdivision disapproves the sentence.