N.Y. Military Law 130.65 – Review by board of military review and approval by the adjutant general
§ 130.65. Review by board of military review and approval by the adjutant general. (a) The state judge advocate shall establish a board of military review which shall be composed of not less than three officers of the organized militia or on the state reserve list or state retired list, each of whom shall be a member of the bar of the state.
Terms Used In N.Y. Military Law 130.65
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Appellate: About appeals; an appellate court has the power to review the judgement of another lower court or tribunal.
- Dismissal: The dropping of a case by the judge without further consideration or hearing. Source:
- 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 - Organized militia: means the organized militia, the composition of which is stated in section two of this chapter;
(2) "Officer" means a commissioned officer including a commissioned warrant officer;
(3) "Superior officer" means an officer superior in rank or command;
(4) "Enlisted person" means any person who is serving in an enlisted grade in any force of the organized militia;
(5) "Active state duty" means full time military duty in the active service of the state under an order of the governor issued pursuant to sections six or seven of this chapter and while going to and returning from such duty;
(6) "Duty status other than active state duty" means any one of the types of duty described in section forty-six of this chapter and while going to and returning from such duty;
(7) "Military court" means a court-martial, a court of inquiry, a provost court;
(8) "Military judge" means an official of a general court-martial detailed in accordance with section 130. See N.Y. Military Law 130.1 - Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
(b) The state judge advocate shall refer to a board of military review the record in each case of trial by court-martial:
(1) in which the sentence, as approved, extends to, dismissal of a commissioned officer, dishonorable or bad-conduct discharge, or any confinement; and
(2) the right to appellate review has not been waived or an appeal has not been withdrawn under section 130.61 of this article.
(c) In a case referred to it, the board of military review may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.
(d) If the board of military review sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If it sets aside the findings and sentence and does not order a rehearing, it shall order that the charges be dismissed.
(e) The action taken by the board of review shall be subject to the approval of the adjutant general. If the adjutant general disapproves the action taken by the board of review, he may take any action on the sentence or findings that could be taken by the convening authority under section 130.60 of this article.
(f) The state judge advocate shall, unless there is to be further action by the governor, instruct the convening authority to take action in accordance with the decision of the board of military review as approved by the adjutant general. If the board of military review has ordered a rehearing but the convening authority finds a rehearing impracticable, he may dismiss the charges.
(g) No member of a board of military review 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 judge, trial or defense counsel, or reviewing officer of such trial.