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.

(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.