KRS § 35.326 — KY Code / Title V / Chapter 35 / Section 35.326
35.326 Action by the convening authority
Status: in_force

35.326 Action by the convening authority.

(1) The findings and sentence of a court-martial shall be reported promptly to the

convening authority after the announcement of the sentence.

(2) (a) The accused may submit to the convening authority matters for consideration

by the convening authority with respect to the findings and the sentence. Any

such submission shall be in writing. Such a submission shall be made within

ten (10) days after the accused has been given an authenticated record of trial

and, if applicable, the recommendation of a judge advocate under subsection

(4) of this section.

(b) 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 good cause, may extend the applicable period under paragraph (a)

of this subsection for not more than an additional twenty (20) days.

(c) The accused may waive the right to make a submission to the convening

authority under paragraph (a) of this subsection. A waiver must be made in

writing and may not be revoked. For the purposes of subsection (3)(b) of this

section, the time within which the accused may make a submission under this

subsection shall be deemed to have expired upon the submission of a waiver

to the convening authority.

(3) (a) 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. If it is impractical for the convening authority to

act, the convening authority shall forward the case to a person exercising

general court-martial jurisdiction who may take action under this section.

(b) 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. The action

may be taken only after consideration of any matters submitted by the accused

under subsection (2) of this section or after the time for submitting such

matters expires, whichever is earlier. The convening authority or other person

taking the action, in that person's sole discretion, may approve, disapprove,

commute, or suspend the sentence in whole or in part.

(c) Action on the findings of a court-martial by the convening authority or other

person acting on a sentence is not required. However, such person, in the

person's sole discretion, may:

1. Dismiss any charge or specification by setting aside a finding of guilty

thereto; or

2. Change a finding of guilty to a charge or specification to a finding of

guilty to any offense that is a lesser included offense of the offense

stated in the charge or specification.

(4) Before acting under this section on any general or special court-martial case in

which there is a finding of guilty, the convening authority or other person taking

action under this section shall obtain and consider the written recommendation of a

judge advocate. The convening authority or other person taking action under this

section shall refer the record of trial to the judge advocate, and the judge advocate

shall use that record in the preparation of the recommendation. The

recommendation of the judge advocate shall include such matters as may be

prescribed by regulation and shall be served on the accused, who may submit any

matter in response under subsection (2) of this section. Failure to object in the

response to the recommendation or to any matter attached to the recommendation

waives the right to object thereto.

(5) (a) The convening authority or other person taking action under this section, in

the person's sole discretion, may order a proceeding in revision or a rehearing.

(b) 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 finding 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:

1. Reconsider a finding of not guilty of any specification or a ruling which

amounts to a finding of not guilty;

2. 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 section of this code; or

3. Increase the severity of the sentence unless the sentence prescribed for

the offense is mandatory.

(c) A rehearing may be ordered by the convening authority or other person taking

action under this article if that person disapproves the findings and sentence

and states the reasons for disapproval of the findings. If that person

disapproves the findings and sentence and does not order a rehearing, that

person 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 subsection disapproves the

sentence.