2023 New York Laws › MIL - Military › Article 7 - Code of Military Justice › Part 9 - Post-Trial Procedure and Review of Courts-Martial › 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.