N.Y. MIL Law § 130.60 — New York Code / Act MIL / Article 7 / Part 9 / Section 130.60
Action by the convening authority
Status: in_force

§ 130.60. Action by the convening authority. (a) The findings and\nsentence of a court-martial shall be reported promptly to the convening\nauthority after the announcement of the sentence.\n  (b) (1) Within thirty days after the sentence of a general\ncourt-martial or of a special court-martial which has adjudged a\nbad-conduct discharge has been announced, the accused may submit to the\nconvening authority matters for consideration by the convening authority\nwith respect to the findings and the sentence. In the case of all other\nspecial courts-martial, the accused may make such a submission to the\nconvening authority within twenty days after the sentence is announced.\nIn the case of all summary courts-martial the accused may make such a\nsubmission to the convening authority within seven days after the\nsentence is announced. If the accused shows that additional time is\nrequired for the accused to submit such matters, the convening authority\nor other person taking action under this section, for a good cause, may\nextend the period:\n  (A) in the case of a general court-martial or a special court-martial\nwhich has adjudged a bad-conduct discharge, for not more than an\nadditional twenty days; and\n  (B) in the case of all other courts-martial, for not more than an\nadditional ten days.\n  (2) In a summary court-martial case the accused shall be promptly\nprovided a copy of the record of trial for use in preparing a submission\nauthorized by paragraph one of this subdivision.\n  (3) In no event shall the accused in any general or special\ncourt-martial case have less than a seven-day period from the day on\nwhich a copy of the authenticated record of trial has been given to him\nwithin which to make a submission under paragraph one of this\nsubdivision. The convening authority or other person taking action on\nthe case, for good cause, may extend this period for up to an additional\nten days.\n  (4) The accused may waive his right to make a submission to the\nconvening authority under paragraph one of this subdivision. Such a\nwaiver must be made in writing and may not be revoked. For the purposes\nof paragraph two of subdivision (c) of this section, the time within\nwhich the accused may make a submission under this subdivision shall be\ndeemed to have expired upon the submission of such a waiver to the\nconvening authority.\n  (c) (1) The authority under this section to modify the findings and\nsentence of a court-martial is a matter of command prerogative involving\nthe sole discretion of the convening authority. Under regulations of the\nadjutant general, a commissioned officer commanding for the time being,\na successor in command, or any person exercising general court-martial\njurisdiction may act under this section in place of the convening\nauthority.\n  (2) Action on the sentence of a court-martial shall be taken by the\nconvening authority or by another person authorized to act under this\nsection. Subject to regulations of the adjutant general, such action may\nbe taken only after consideration of any matters submitted by the\naccused under subdivision (b) of this section and, if applicable, under\nsubdivision (d) of this section, or after the time for submitting such\nmatters expires, whichever is earlier. The convening authority or other\nperson taking such action, in his sole discretion, may approve,\ndisapprove, commute, or suspend the sentence in whole or in part.\n  (3) Action on the findings of a court-martial by the convening\nauthority or other person acting on the sentence is not required.\nHowever, such person, in his sole discretion, may:\n  (A) dismiss any charge or specification by setting aside a finding of\nguilty thereto; or\n  (B) change a finding of guilty to a charge or specification to a\nfinding of guilty to an offense that is a lesser included offense of the\noffense stated in the charge or specification.\n  (d) Before acting under this section on any general court-martial case\nor any special court-martial case that includes a bad-conduct discharge\nor any court-martial case which includes a sentence of confinement, the\nconvening authority or other person taking action under this section\nshall obtain and consider the written recommendation of the staff judge\nadvocate or legal officer. The convening authority or other person\ntaking action under this section shall refer the record of trial to his\nstaff judge advocate or legal officer, and the staff judge advocate or\nlegal officer shall use such record in the preparation of his\nrecommendation. The recommendation of the staff judge advocate or legal\nofficer shall include such matters as the adjutant general may prescribe\nby regulations and shall be served on the accused, who shall have five\ndays from the date of receipt in which to submit any matter in response.\nThe convening authority or other person taking action under this\nsection, for good cause, may extend that period for up to an additional\ntwenty days. Failure to object in the response to the recommendation or\nto any matter attached to the recommendation waives the right to object\nthereto.\n  (e) (1) The convening authority or other person taking action under\nthis section, in his sole discretion, may order a proceeding in revision\nor a rehearing.\n  (2) A proceeding in revision may be ordered if there is an apparent\nerror or omission in the record or if the record shows improper or\ninconsistent action by a court-martial with respect to the findings or\nsentence that can be rectified without material prejudice to the\nsubstantial rights of the accused. In no case, however, may a proceeding\nin revision:\n  (A) reconsider a finding of not guilty of any specification or a\nruling which amounts to a finding of not guilty;\n  (B) reconsider a finding of not guilty of any charge, unless there has\nbeen a finding of guilty under a specification laid under that charge,\nwhich sufficiently alleges a violation of some article of this chapter;\nor\n  (C) increase the severity of some article of the sentence.\n  (3) A rehearing may be ordered by the convening authority or other\nperson taking action under this section if he disapproves the findings\nand sentence and states the reasons for disapproval of the findings. If\nsuch person disapproves the findings and sentence and does not order a\nrehearing, he shall dismiss the charges. A rehearing as to the findings\nmay not be ordered where there is a lack of sufficient evidence in the\nrecord to support the findings. A rehearing as to the sentence may be\nordered if the convening authority or other person taking action under\nthis subdivision disapproves the sentence.\n