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.

(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not been withdrawn under section 130.61 of this article.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.