(a)
Report of result of trial; post-trial restraint; deferment of confinement.
(1) Report of the result of trial. After
final adjournment of the court-martial in a case, the trial counsel must
promptly notify the accused's immediate commander, the convening authority or
the convening authority's designee, and, if appropriate, the officer in charge
of the confinement facility of the findings and sentence (See ML,
130.60[a]).
(2) Post-trial
confinement.
(i) In general. An accused may
be placed in post-trial confinement if the sentence adjudged by the
court-martial includes confinement (ML, 130.57[b]).
(ii) Who may order confinement. Unless
limited by superior authority, a commander of the accused may order the accused
into post-trial confinement when post-trial confinement is authorized under
subparagraph (i) of this paragraph. A commander authorized to order post-trial
confinement under this paragraph may delegate this authority to the trial
counsel.
(iii) Confinement on other
grounds. Nothing in this subdivision prohibits confinement of a person after a
court-martial on proper grounds other than the offenses for which the accused
was tried at that court-martial.
(3) Deferment of confinement.
(i) In general. Deferment of a sentence to
confinement is a postponement of the service and of the running of the sentence
(ML, 130.57[d]).
(ii) Who may
defer. The convening authority or, if the accused is no longer in the convening
authority's jurisdiction, the officer exercising general court-martial
jurisdiction over the command to which the accused is assigned, may, upon
written application of the accused, at any time after the adjournment of the
court-martial, defer the accused's service of a sentence to confinement which
has not been ordered executed.
(iii) Action on deferment request. The
authority acting on the deferment request may, in that authority's discretion,
defer service of a sentence to confinement. The accused has the burden to show
that the interests of the accused and the community in release outweigh the
community's interests in confinement. Factors that the authority acting on a
deferment request may consider in determining whether to grant the deferment
request include: the probability of the accused's flight; the probability of
the accused's commission of other offenses, intimidation of witness, or
interference with the administration of justice; the nature of the offenses
(including the effect on the victim) of which the accused was convicted; the
sentence adjudged; the command's immediate need for the accused; the effect of
deferment on good order and discipline in the command; and the accused's
character, mental condition, family situation, and service record. The decision
of the authority acting on the deferment shall be subject to judicial review
only for abuse of discretion. The action of the convening authority shall be
written and a copy shall be provided to the accused.
(iv) Orders. The action granting deferment
must be reported in the convening authority's action under N.Y.R.C.M.
1107(f)(4)(E) and must include the date of the action on the request when it
occurs prior to or concurrently with the action. Action granting deferment
after the convening authority's action under N.Y.R.C.M. 1107 must be reported
in orders under N.Y.R.C.M. 1114 and included in the record of trial.
(v) Restraint when deferment is granted. When
deferment of confinement is granted, no form of restraint or other limitation
on the accused's liberty may be ordered as a substitute form of
punishment.
(vi) End of deferment.
Deferment of a sentence to confinement ends when:
(a) the convening authority takes action
under N.Y.R.C.M. 1107, unless the convening authority specifies in the action
that service of confinement after the action is deferred;
(b) the confinement is suspended;
(c) the deferment expires by it own terms;
or
(d) the deferment is otherwise
rescinded in accordance with subparagraph (vii) of this paragraph.
Deferment of confinement may not continue after the
conviction is final under N.Y.R.C.M. 1209.
(vii) Rescission of deferment.
(a) Who may rescind. The authority who
granted the deferment or, if the accused is no longer within that authority's
jurisdiction, the officer exercising general court-martial jurisdiction over
the command to which the accused is assigned, may rescind the
deferment.
(b) Action. Deferment of
confinement may be rescinded when additional information is presented to a
proper authority which, when considered with all other information in the case,
that authority finds, in that authority's discretion, is grounds for denial of
deferment under subparagraph (iii) of this paragraph. The accused must promptly
be informed of the basis for the rescission and of the right to submit written
matters in the accused's behalf and to request that the rescission be
reconsidered. However, the accused may be required to serve the sentence to
confinement pending this action.
(c) Execution. When deferment is rescinded
after the convening authority's action under N.Y.R.C.M. 1107, the confinement
may be ordered executed. However, no such order may be issued within seven days
of notice of the rescission to the accused under clause (b) of this
subparagraph, to afford the accused an opportunity to respond. The authority
rescinding the deferment may extend this period for good cause shown. The
accused must be credited with any confinement actually served during this
period.
(d) Orders. Rescission of a
deferment before or concurrently with the initial action in the case must be
reported in the action under N.Y.R.C.M 1107(f)(4)(E), which action includes the
dates of the granting of the deferment and the rescission. Rescission of a
deferment after the convening authority's action must be reported in
supplementary orders in accordance with N.Y.R.C.M. 1114 and must state whether
the approved period of confinement is to be executed or whether all or part of
it is to be suspended.
(b) Post-trial sessions.
(1) In general. Post-trial sessions may be
proceedings in revision or sessions under ML, 130.39(a). Such sessions may be
directed by the military judge or the convening authority in accordance with
this subdivision (See ML, 130.60[e]).
(2) Purpose.
(i) Proceedings in revision. Proceedings in
revision may be directed to correct an apparent error, omission, or improper or
inconsistent action by the court-martial, which can be rectified by reopening
the proceedings without material prejudice to the accused.
(ii) Sessions under ML, 130.39(a). A session
called under ML, 130.39(a) under this subdivision may be called for the purpose
of inquiring into, and, when appropriate, resolving any matter which arises
after trial and which substantially affects the legal sufficiency of any
findings of guilty or the sentence.
(3) Matters not subject to post-trial
sessions. Post-trial sessions may not be directed:
(i) for reconsideration of a finding of not
guilty of any specification, or a ruling which amounts to a finding of not
guilty;
(ii) for reconsideration of
a finding of not guilty of any charge, unless the record shows a finding of
guilty under a specification laid under that charge, which sufficiently alleges
a violation of some article of the code; or
(iii) for increasing the severity of the
sentence unless the sentence prescribed for the offense is mandatory.
(4) When directed. The military
judge may direct a post-trial session any time before the record is
authenticated. The convening authority may direct a post- trial session any
time before the convening authority takes initial action on the case or at such
later time as the convening authority is authorized to do so by a reviewing
authority, except that no proceeding in revision may be held when any part of
the sentence has been ordered executed.
(5) Procedure.
(i) Personnel. The requirements of N.Y.R.C.M.
505 and 805 apply at post-trial sessions except that:
(a) For a proceeding in revision, if trial
was before members and the matter subject to the proceeding in revision
requires the presence of members:
(1) the
absence of any members does not invalidate the proceedings if, in the case of a
general court-martial, at least five members are present, or in the case of a
special court-martial, at least three members are present; and
(2) a different military judge may be
detailed, subject to N.Y.R.C.M. 502(c) and 902, if the military judge who
presided at the earlier proceedings is not reasonably available.
(b) For a session under ML,
130.39(a), a different military judge may be detailed, subject to N.Y.R.C.M.
502(c) and 902, for good cause.
(ii) Action. The military judge must take
such action as may be appropriate, including appropriate instructions when
members are present. The members may deliberate in closed session, if
necessary, to determine what corrective action, if any, to take.
(iii) Record. All post-trial sessions, except
any deliberations by the members, must be held in open session. The record of
the post-trial sessions must be prepared, authenticated, and served in
accordance with N.Y.R.C.M. 1103 and 1104 and must be included in the record of
the prior proceedings.
(c) Preparation of record of trial.
(1) In general. Each general, special, and
summary court-martial must keep a separate record of the proceedings in each
case brought before it (ML, 130.54).
(2) General courts-martial.
(i) Responsibility for preparation. The trial
counsel must:
(a) under the direction of the
military judge, cause the record of trial to be prepared; and
(b) cause to be retained stenographic or
other notes or mechanical or electronic recordings from which the record of
trial was prepared.
(ii)
Contents.
(a) In general. The record of trial
in each general court-martial must be separate, complete, and independent of
any other document.
(b) Verbatim
transcript required. The record of trial must include a verbatim written
transcript of all sessions except sessions closed for deliberations and voting
when:
(1) any part of the sentence adjudged
exceeds that which may be adjudged by a special court-martial;
(2) a bad-conduct discharge has been
adjudged.
(c) Verbatim
transcript not required. If a verbatim transcript is not required under clause
(b) of this subparagraph, a summarized report of the proceedings may be
prepared instead of a verbatim transcript.
(d) Other matters. In addition to the matter
required under clauses (b) or (c) of this subparagraph, a complete record must
include:
(1) the original charge sheet or a
duplicate;
(2) a copy of the
convening order and any amending order(s);
(3) the request, if any, for trial by
military judge alone, or that the membership of the court-martial include
enlisted persons, and, when applicable, any statement by the convening
authority required under N.Y.R.C.M. 503(a)(2); and
(4) exhibits, or, with the permission of the
military judge, copies, photographs, or descriptions of any exhibits which were
received in evidence and any appellate exhibits.
(iii) Matters attached to the
record. The following matters must be attached to the record:
(a) if not used as exhibits:
(1) the report of investigation under ML,
130.32, if any;
(2) the staff judge
advocate's pretrial advice under ML, 130.34, if any; and
(3) if the trial was a rehearing or new or
other trial of the case, the record of the former hearing(s);
(4) written special findings, if any, by the
military judge;
(b)
exhibits or, with the permission of the military judge, copies, photographs, or
descriptions of any exhibits which were marked for and referred to on the
record but not received in evidence;
(c) any matter filed by the accused under
N.Y.R.C.M. 1105, or any written waiver of the right to submit such
matter;
(d) any deferment request
and the action on it;
(e)
explanation for any substitute authentication under N.Y.R.C.M.
1104(a)(2)(B);
(f) explanation for
any failure to serve the record of trial on the accused under N.Y.R.C.M.
1104(b);
(g) the post-trial
recommendation of the staff judge advocate or legal officer and proof of
service on defense counsel in accordance with N.Y.R.C.M. 1106(f)(1);
(h) any response by defense counsel to the
post-trial review;
(i)
recommendations and other papers relative to clemency;
(j) any statement why it is impracticable to
the convening authority to act;
(k)
conditions of suspension, if any, and proof of service on probationer under
N.Y.R.C.M. 1108;
(l) any waiver or
withdrawal of appellate review under N.Y.R.C.M. 1110; and
(m) records of any proceedings in connection
with vacation of suspension under N.Y.R.C.M. 1109.
(3) Special court-martial.
(i) Involving a bad-conduct discharge. The
requirements of subparagraph (2)(i), clauses (2)(ii)(a), (b) and (d); and
subparagraph (2)(iii) of this subdivision apply in a special court-martial in
which a bad-conduct discharge has been adjudged.
(ii) Not involving a bad-conduct discharge.
If the special court-martial resulted in findings of guilty but a bad-conduct
discharge was not adjudged, the requirements of subparagraph (2)(i); and
clauses (2)(ii)(c), (d), (2)(iii) (a)-(f), (i)-(m) of this subdivision
apply.
(4) Summary
courts-martial. The summary court-martial record of trial must be prepared as
prescribed in N.Y.R.C.M. 1305.
(5)
Acquittal; termination prior to findings. Notwithstanding paragraphs (2)- (4)
of this subdivision, if the proceedings resulted in an acquittal of all charges
and specifications or the proceedings were terminated by withdrawal, mistrial,
or dismissal before findings, the record may consist of the original charge
sheet, a copy of the convening order and amending orders (if any), and
sufficient information to establish jurisdiction over the accused and the
offenses (if not shown on the charge sheet).
(6) Loss of notes or recordings of the
proceedings. If, because of loss of recordings or notes, or other reasons, a
verbatim transcript cannot be prepared when required by clause (2)(ii)(b) or
subparagraph (3)(i) of this subdivision, a record which meets the requirements
of clause (2)(ii)(c) of this subdivision must be prepared, and the convening
authority may:
(i) approve only so much of
the sentence which could be adjudged by a special court-martial, except that no
bad-conduct discharge may be approved; or
(ii) direct a rehearing as to any offense of
which the accused was found guilty if the finding is supported by the summary
of the evidence contained in the record, provided that the court-martial in a
rehearing may not adjudge any sentence in excess of that adjudged by the
earlier court-martial.
(7) Copies of the record of trial.
(i) General and special courts-martial.
(a) In general. In general and special
courts-martial which require a verbatim transcript under paragraphs (2) or (3)
of this subdivision, the trial counsel must cause to be prepared an original
and four copies of the record of trial. In all other general and special
courts-martial the trial counsel must cause to be prepared an original and one
copy of the record of trial.
(b)
Additional copies. The convening or higher authority may direct that additional
copies of the record of trial of any general or special court-martial be
prepared.
(ii) Summary
court-martial. Copies of the summary court-martial record of trial must be
prepared as prescribed in N.Y.R.C.M. 1305(b).
(8) Security classification. If the record of
trial contains matter which must be classified under applicable security
regulations, the trial counsel must cause a proper security classification to
be assigned to the record of trial and on each page thereof on which classified
material appears.
(9) Examination
and correction before authentication.
(i)
General and special courts-martial.
(a)
Examination and correction by trial counsel. In general and special
courts-martial, the trial counsel must examine the record of trial before
authentication and cause those changes to be made which are necessary to report
the proceedings accurately. The trial counsel cannot change the record after
authentication.
(b) Examination by
defense counsel. Except when unreasonable delay will result, the trial counsel
must permit the defense counsel to examine the record before
authentication.
(ii)
Summary courts-martial. The summary court-martial must examine and correct the
summary court-martial record of trial as prescribed in N.Y.R.C.M.
1305(a).
(d)
Records of trial: authentication; service; loss; correction; forwarding.
(1) Authentication.
(i) In general. A record is authenticated by
the signature of a person specified in this subdivision who thereby declares
that the record accurately reports the proceedings. No person may be required
to authenticate a record of trial if that person is not satisfied that it
accurately reports the proceedings.
(ii) General and special courts-martial.
(a) Authentication by the military judge. In
special courts-martial in which a bad-conduct discharge has been adjudged and
in general courts-martial, except as provided in clause (b) of this
subparagraph, the military judge present at the end of the proceedings
authenticates the record of trial, or that portion over which the military
judge presided. If more than one military judge presided over the proceedings,
each military judge authenticates the record of the proceedings over which that
military judge presided, except as provided in clause ( b) of this
subparagraph. The record of trial of special court-martial in which no
bad-conduct discharge was adjudged is also authenticated by the military judge
as set forth above.
(b) Substitute
authentication. If the military judge cannot authenticate the record of trial
because of the military judge's death, disability, or absence, the trial
counsel present at the end of the proceedings authenticates the record of
trial. If the trial counsel cannot authenticate the record of trial because of
the trial counsel's death, disability, or absence, a member authenticates the
record of trial. In a court-martial composed of a military judge alone, or as
to sessions without members, the court reporter authenticates the record of
trial when this duty would fall upon a member under this paragraph. A person
authorized to authenticate a record under this paragraph may authenticate the
record only as to those proceedings at which that person was present.
(iii) Summary courts-martial. The
summary court-martial authenticates the summary court-martial record of trial
as prescribed in N.Y.R.C.M. 1305(a).
(2)
(i)
Service.
(a) Service of record of trial on
accused. In each general and special court-martial, except as provided in
clause (c) or (d) of this subparagraph, the trial counsel must cause a copy of
the record of trial to be served on the accused as soon as the record of trial
is authenticated.
(b) Proof of
service of record of trial on accused. The trial counsel must cause the
accused's receipt for the copy of the record of trial to be attached to the
original record of trial. If it is impracticable to secure a receipt from the
accused before the original record of trial is forwarded to the convening
authority, the trial counsel must prepare a certificate indicating that a copy
of the record of trial has been transmitted to the accused, including the means
of transmission and the address, and cause the certificate to be attached to
the original record of trial. In such a case the accused's receipt must be
forwarded to the convening authority as soon as it is obtained.
(c) Substitute service. If it is
impracticable to serve the record of trial on the accused because of the
transfer of the accused to a distant place, the unauthorized absence of the
accused, or military exigency, or if the accused so requests on the record at
the court-martial or in writing, the accused's copy of the record must be
forwarded to the accused's defense counsel, if any. Trial counsel must attach a
statement to the record explaining why the accused was not served personally.
If the accused has more than one counsel, N.Y.R.C.M. 1106(f)(2) applies. If the
accused has no counsel and if the accused is absent without authority, the
trial counsel must prepare an explanation for the failure to serve the record.
The explanation and the accused's copy of the record must be forwarded with the
original record. The accused must be provided with a copy of the record as soon
as practicable.
(d) Classified
information.
(1) Forwarding to convening
authority. If the copy of the record of trial prepared for the accused contains
classified information, the trial counsel, unless directed otherwise by the
convening authority, must forward the accused's copy to the convening
authority, before it is served on the accused.
(2) Responsibility of the convening
authority. The convening authority must:
(i)
cause any classified information to be deleted or withdrawn from the accused's
copy or the record of trial;
(ii)
cause a certificate indicating that classified information has been deleted or
withdrawn to be attached to the record of trial; and
(iii) cause the expurgated copy of the record
of trial and the attached certificate regarding classified information to be
served on the accused as provided in clauses (a) and (b) of this subparagraph
except that the accused's receipt must show that the accused has received an
expurgated copy of the record of trial.
(3) Contents of certificate. The certificate
regarding deleted or withdrawn classified information must indicate:
(i) that the original record of trial may be
inspected in the files of the Adjutant General under such conditions as may
directed by the Chief of Staff to the Governor;
(ii) the pages of the record of trial from
which matter has been deleted;
(iii) the pages of the record of trial which
have been entirely deleted; and
(iv) the exhibits which have been
withdrawn.
(ii) Summary courts-martial. The summary
court-martial record of trial is disposed of as provided in N.Y.R.C.M. 1305(e).
Clause (d) of this paragraph applies if classified information is included in
the record of trial of a summary court-martial.
(3) Loss of record. If the authenticated
record of trial is lost or destroyed, the trial counsel must, if practicable,
cause another record of trial to be prepared for authentication. The new record
of trial becomes the record of trial in the case if the requirements of
N.Y.R.C.M. 1103 and this subdivision are met.
(4) Correction of record after
authentication; certificate of correction.
(i) In general. A record of trial found to be
incomplete or defective after authentication may be corrected to make it
accurate. A record of trial may be returned to the convening authority by
superior competent authority for correction under this subdivision.
(ii) Procedure. An authenticated record of
trial believed to be incomplete or defective may be returned to the military
judge or summary court-martial for a certificate of correction. The military
judge or summary court-martial must give notice of the proposed correction to
all parties and permit them to examine and respond to the proposed correction
before authenticating the certificate of correction. All parties must be given
reasonable access to any original reporter's notes or tapes of the
proceedings.
(iii) Authentication
of certificate of correction; service on the accused. The certificate of
correction must be authenticated as provided in paragraph (1) of this
subdivision and a copy served on the accused as provided in paragraph (2) of
this subdivision. The certificate of correction and the accused's receipt for
the certificate of correction must be attached to each copy of the record of
trial required to be prepared under N.Y.R.C.M. 1103(g).
(5) Forwarding. After every court-martial,
including a rehearing and new and other trials, the authenticated record must
be forwarded to the convening authority for initial review and action, provided
that in case of a special court-martial in which a bad-conduct discharge was
adjudged or any court-martial in which confinement at hard labor was adjudged
or a general court-martial, the convening authority must refer the record to
the staff judge advocate or legal officer for a recommendation under N.Y.R.C.M.
1106 before the convening authority takes action (ML, 130.60[d]).
(e) Matters submitted by the
accused.
(1) In general. After a sentence is
adjudged in any court-martial, the accused may submit matters to the convening
authority in accordance with this subdivision (ML, 130.60).
(2) Matters which may be submitted. The
accused may submit to the convening authority any written matters which may
reasonably tend to affect the convening authority's decision whether to
disapprove any findings of guilty or to approve the sentence. Such matters are
not subject to the Military Rules of Evidence and may include:
(i) allegations of errors affecting the
legality of the findings or sentence;
(ii) portions or summaries of the record and
copies of documentary evidence offered or introduced at trial;
(iii) matters in mitigation which were not
available for consideration at the court-martial; and
(iv) clemency recommendations by any member,
the military judge, or any other person. The defense may ask any person for
such a recommendation.
(3) Time periods.
(i) General courts-martial and special
courts-martial in which a bad-conduct discharge was adjudged. After a general
court-martial or after a special court-martial in which a bad-conduct discharge
was adjudged, the accused may submit matters under this subdivision within 30
days after the sentence was announced or within seven days after a copy of the
record of trial is served on the accused under N.Y.R.C.M. 1104(b)(1), whichever
is later. The convening authority may, for good cause, extend the 30-day period
for not more than 20 additional days or the seven-day period for not more than
10 additional days.
(ii) Other
special courts-martial. After a special court-martial in which a bad-conduct
discharge was not adjudged, the accused may submit matters under this
subdivision within 20 days after the sentence is announced or within seven days
after a copy of the record of trial is served on the accused under N.Y.R.C.M.
1104(b)(1), whichever is later. The convening authority may, for good cause,
extend either period for not more than 10 additional days.
(iii) Summary courts-martial. After a summary
court-martial the accused may submit matters under this subdivision within
seven days after the sentence is announced. The convening authority, for good
cause, may extend this period for not more than 10 additional days.
(iv) Post-trail sessions. A post-trial
session under N.Y.R.C.M. 1102 has no effect on the running of any time period
in this subdivision, except when such session results in the announcement of a
new sentence, in which case the period runs from that announcement.
(v) Good cause. For purposes of this
subdivision, good cause for an extension ordinarily does not include the need
for securing matters which could reasonably have been presented at the
court-martial.
(4)
Waiver.
(i) Failure to submit matters.
Failure to submit matters within the time prescribed by this subdivision is a
waiver of the right to submit such matters.
(ii) Submission of matters. Submission of any
matters under this subdivision is a waiver of the right to submit additional
matters unless the right to submit additional matters within the prescribed
time limits is expressly reserved in writing.
(iii) Written waiver. The accused may
expressly waive, in writing, the right to submit matters under this
subdivision. Once filed, such waiver may not be revoked (ML,
130.60[b][4]).
(iv) Absence of the
accused. If, as a result of the unauthorized absence of the accused, the record
cannot be served on the accused in accordance with N.Y.R.C.M. 1104(b)(1) and if
the accused has no counsel to receive the record, the accused is deemed to have
waived the right to submit matters under this subdivision within the time limit
which begins upon service on the accused of the record of trial.
(f) Recommendation of
the staff judge advocate or legal officer.
(1)
In general. Before the convening authority takes action under N.Y.R.C.M. 1107
on a record of trial by general court-martial or a record of trial by special
court-martial which includes a sentence to a bad-conduct discharge or any
court-martial in which confinement of hard labor, that convening authority's
staff judge advocate or legal officer must, except as provided in paragraph (3)
of this subdivision, forward to the convening authority a recommendation under
this subdivision (ML, 130.60[d]).
(2) Disqualification. No person who has acted
as member, military judge, trial counsel, assistant trial counsel, defense
counsel, associate or assistant defense counsel, or investigating officer in
any case may later act as a staff judge advocate or legal officer or any
reviewing or convening authority in the same case.
(3) When the convening authority has no staff
judge advocate.
(i) When the convening
authority does not have a staff judge advocate or legal officer or that person
is disqualified. If the convening authority does not have a staff judge
advocate or legal officer, or if the person serving in that capacity is
disqualified under paragraph (2) of this subdivision or otherwise, the
convening authority must:
(a) request the
assignment of another staff judge advocate or legal officer to prepare a
recommendation under this subdivision; or
(b) forward the record for action to any
officer exercising general court-martial jurisdiction as provided in N.Y.R.C.M.
1107(a).
(ii) When the
convening authority has a legal officer but wants the recommendation of a staff
judge advocate. If the convening authority has a legal officer but no staff
judge advocate, the convening authority may, as a matter of discretion, request
designation of a staff judge advocate to prepare the recommendation.
(4) Form and content of
recommendation.
(i) In general. The purpose
of the recommendation of the staff judge advocate or legal officer is to assist
the convening authority to decide what action to take on the sentence in the
exercise of command prerogative. The staff judge advocate or legal officer must
use the record of trial in the preparation of the recommendation.
(ii) Form. The recommendation of the staff
judge advocate or legal officer must be a concise written
communication.
(iii) Required
contents. Except as provided in paragraph (5) of this subdivision, the
recommendation of the staff judge advocate or legal officer must include
concise information as to:
(a) the findings
and sentence adjudged by the court-martial;
(b) a summary of the accused's service
record, to include length and character of service, awards and decorations
received, and any records of non-judicial punishment and previous
convictions;
(c) a statement of the
nature and duration of any pretrial restraint;
(d) if there is a pretrial agreement, a
statement of any action the convening authority is obligated to take under the
agreement or a statement of the reasons why the convening authority is not
obligated to take specific action under the agreement; and
(e) a specific recommendation as to the
action to be taken by the convening authority on the sentence.
(iv) Legal errors. The staff judge
advocate or legal officer is not required to examine the record for legal
errors. However, when the recommendation is prepared by a staff judge advocate,
the staff judge advocate must state whether, in the staff judge advocate's
opinion, corrective action on the findings or sentence should be taken when an
allegation of legal error is raised in matters submitted under N.Y.R.C.M. 1105
or when otherwise deemed appropriate by the staff judge advocate. The response
may consist of a statement of agreement or disagreement with the matter raised
by the accused. An analysis or rationale for the staff judge advocate's
statement, if any, concerning legal errors is not required.
(v) Optional matters. The recommendation of
the staff judge advocate or legal officer may include, in addition to matters
included under subparagraphs (iii) and (iv) of this paragraph, any additional
matters deemed appropriate by the staff judge advocate or legal officer. Such
matters may include matters outside the record.
(vi) Effect of error. In case of error in the
recommendation not otherwise waived under subparagraph (6)(vi) of this
subdivision, appropriate corrective action must be taken by appellate
authorities without returning the case for further action by a convening
authority.
(5) No
findings of guilty. If the proceedings resulted in an acquittal of all charges
and specifications or if, after the trial began, the proceedings were
terminated without findings and no further action is contemplated, a
recommendation under this subdivision is not required.
(6) Service of recommendation on defense
counsel; defense response.
(i) Service of
recommendation on defense counsel. Before forwarding the recommendation and the
record of trial to the convening authority for action under N.Y.R.C.M. 1107,
the staff judge advocate or legal officer must cause a copy of the
recommendation to be served on counsel for the accused (ML, 130.60
[d]).
(ii) Counsel for the accused.
The accused may, at trial or in writing to the staff judge advocate or legal
officer before the recommendation has been served under this subdivision,
designate which counsel (detailed, individual military, or civilian) will be
served with the recommendation. In the absence of such designation, the staff
judge advocate or legal officer must cause the recommendation to be served in
the following order of precedence, as applicable, on:
(a) civilian counsel;
(b) individual military counsel; or
(c) detailed defense counsel. If
the accused has not retained civilian counsel and the detailed defense counsel
and individual military counsel, if any, have been relieved or are not
reasonably available to represent the accused, substitute military counsel to
represent the accused must be detailed by an appropriate authority. Substitute
counsel must enter into an attorney-client relationship with the accused before
examining the recommendation and preparing any response.
(iii) Record of trial. The staff judge
advocate or legal officer must, upon request of counsel for the accused served
with the recommendation, provide that counsel with a copy of the record of
trial for use while preparing the response to the recommendation.
(iv) Response. Counsel for the accused may
submit, in writing, corrections or rebuttal to any matter in the recommendation
believed to erroneous, inadequate, or misleading, and may comment on any other
matter.
(v) Time period. Counsel
for the accused has five days from receipt in which to submit comments on the
recommendation. The convening authority may, for good cause, extend the period
in which comments may be submitted for up to 20 additional days (ML,
130.60[d]).
(vi) Waiver. Failure of
counsel for the accused to comment on any matter in the recommendation or
matters attached to the recommendation in a timely manner waives later claim of
error with regard to such matter in the absence of plain error.
(vii) New matter in addendum to
recommendation. The staff judge advocate or legal officer may supplement the
recommendation after counsel for the accused has been served with the
recommendation and given an opportunity to comment. When new matter is
introduced after counsel for the accused has examined the recommendation,
however, counsel for the accused must be served with the new matter and given a
further opportunity to comment.
(g) Action by convening authority.
(1) Who may take action. The convening
authority must take action on the sentence and, in the discretion of the
convening authority, the findings, unless it is impracticable. If it is
impracticable for the convening authority to act, the convening authority must
forward the case to an officer exercising general court-martial jurisdiction
who may take action under this subdivision.
(2) General considerations.
(i) Discretion of convening authority. The
action to be taken on the findings and sentence is within the sole discretion
of the convening authority. Determining what action to take on the findings and
sentence of a court-martial is a matter of command prerogative. The convening
authority is not required to review the case for legal errors or factual
sufficiency (ML, 130.60[c]).
(ii)
When action may be taken. The convening authority may take action only after
the applicable time periods under N.Y.R.C.M. 1105(c) have expired or the
accused has waived the right to present matters under N.Y.R.C.M. 1105(d),
whichever is earlier.
(iii) Matters
considered.
(a) Required matters. Before
taking action, the convening authority must consider:
(1) the result of trial;
(2) the recommendation of the staff judge
advocate or legal officer under N.Y.R.C.M. 1106, if applicable; and
(3) any matters submitted by the accused
under N.Y.R.C.M. 1105 or, if applicable, N.Y.R.C.M. 1106(f).
(b) Additional matters. Before
taking action the convening authority may consider:
(1) the record of trial;
(2) the personnel records of the accused;
and
(3) such other matters as the
convening authority deems appropriate. However, if the convening authority
considers matters adverse to the accused from outside the record, with
knowledge of which the accused is not chargeable, the accused must be notified
and given an opportunity to rebut.
(iv) When proceedings resulted in a finding
of not guilty or there was a ruling amounting to a finding of not guilty. The
convening authority cannot take any action approving or disapproving a finding
of not guilty or a ruling amounting to a finding of not guilty.
(v) Action when accused lacks mental
capacity. The convening authority may not approve a sentence while the accused
lacks mental capacity to understand and to conduct or cooperate intelligently
in the post-trial proceedings. In the absence of substantial evidence to the
contrary, the accused is presumed to have the capacity to understand and to
conduct or cooperate intelligently in the post-trial proceedings. If a
substantial question is raised as to the requisite mental capacity of the
accused, the convening authority may direct an examination of the accused in
accordance with N.Y.R.C.M. 706 before deciding whether the accused lacks mental
capacity, the examination may be limited to determining the accused's present
capacity to understand and cooperate in the post-trial proceedings. The
convening authority may approve the sentence unless it is established, by a
prepondarance of the evidence--including matters outside the record of
trial--that the accused does not have the requisite mental capacity. Nothing in
this paragraph prohibits the convening authority from disapproving the findings
of guilty and sentence.
(3) Action on findings. Action on the
findings is not required. However, the convening authority may, in the
convening authority's sole discretion:
(i)
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; or
(ii)
Set aside any finding of guilty and:
(a)
dismiss the specification and, if appropriate, the charge; or
(b) direct a rehearing in accordance with
paragraph (5) of this subdivision.
(4) Action on the sentence.
(i) In general. The convening authority may
for any or no reason disapprove a legal sentence in whole or in part, mitigate
the sentence, and change a punishment to one of a different nature as long as
the severity of the punishment is not increased. The convening or higher
authority may not increase the punishment imposed by a court-martial. The
approval or disapproval must be explicitly stated.
(ii) Determining what sentence should be
approved. The convening authority must approve that sentence which is warranted
by the circumstances of the offense and appropriate for the accused. When the
court-martial has adjudged a mandatory punishment, the convening authority may
nevertheless approve a lesser sentence.
(iii) Limitations on sentence based on record
of trial. If the record of trial does not meet the requirements of N.Y.R.C.M.
1103(b)(2)(B) or (c)(1), the convening authority may not approve a sentence in
excess of that which may be adjudged by a special court-martial, or one which
includes a bad-conduct discharge.
(5) Ordering rehearing or other trial.
(i) Rehearing.
(a) In general. Subject to clause (b) through
(e) of this subparagraph, the convening authority may in the convening
authority's discretion order a rehearing. A rehearing may be ordered as to some
or all offenses of which findings of guilty were entered and the sentence, or
as to sentence only (ML, 130.60[e]).
(b) When the convening authority may order a
rehearing. The convening authority may order a rehearing:
(1) when taking action on the court-martial
under this subdivision;
(2) in
cases subject to review by the Board of Military Review, before the case is
forwarded under N.Y.R.C.M. 1111(a)(1) or (b)(1), but only as to any sentence
which was approved or findings of guilty which were not disapproved in any
earlier action. In such a case, a supplemental action disapproving the sentence
and some or all of the findings, as appropriate, must be taken; or
(3) when authorized to do so by superior
competent authority. If the convening authority finds a rehearing as to any
offenses impracticable the convening authority may dismiss those specifications
and, when appropriate, charges.
(c) Limitations.
(1) Sentence approved. A rehearing cannot be
ordered if, in the same action, a sentence is approved.
(2) Lack of sufficient evidence. A rehearing
cannot be ordered as to findings of guilty when there is a lack of sufficient
evidence in the record to support the findings of guilty of the offense charged
or of any lesser included offense. A rehearing may be ordered, however, if the
proof of guilt consisted of inadmissible evidence for which there is available
an admissible substitute. A rehearing may be ordered as to any lesser offense
included in an offense of which the accused was found guilty, provided there is
sufficient evidence in the record to support the lesser included
offense.
(3) Rehearing on sentence
only. A rehearing on sentence only cannot be referred to a different kind of
court-martial from that which made the original findings.
(d) Additional charges. Additional charges
may be referred for trial together with charges as to which a rehearing has
been directed.
(e) Lesser included
offenses. If at a previous trial the accused was convicted of a lesser included
offense, a rehearing may be ordered only as to that included offense or as to
an offense included in that found. If, however, a rehearing is ordered
improperly on the original offense charged and the accused is convicted of that
offense at the rehearing, the finding as to the lesser included offense of
which the accused was convicted at the original trial may nevertheless be
approved.
(ii) "Other"
trial. The convening or higher authority may order an "other" trial if the
original proceedings were invalid because of lack of jurisdiction or failure of
a specification to state an offense. The authority ordering an "other" trial
must state in the action the basis for declaring the proceedings
invalid.
(6) Contents of
action and related matters.
(i) In general.
The convening authority must state in writing the convening authority's
decision as to the sentence, whether any findings of guilty are disapproved,
and orders as to further disposition. The action must be signed personally by
the convening authority. The convening authority's authority to sign must
appear below the signature.
(ii)
Modification of initial action. The convening authority may recall and modify
any action taken by that convening authority at any time before it has been
published or before the accused has been officially notified. In addition, in
any special court-martial not involving a bad-conduct discharge or any summary
court-martial, the convening authority may recall and correct an illegal,
erroneous, incomplete, or ambiguous action at any time before completion of
review under N.Y.R.C.M. 1112, as long as the correction does not result in
action less favorable to the accused than the earlier action. When so directed
by a higher reviewing authority or the State judge advocate, the convening
authority must modify any incomplete, ambiguous, void, or inaccurate action
noted in review of the record of trial under ML, 130.63, 130.65, or 130.66 or
examination of the record of trial under ML, 130.68. The convening authority
must personally sign any supplementary or corrective action.
(iii) Findings of guilty. If any findings of
guilty are disapproved, the action must so state. If a rehearing is not
ordered, the affected charges and specifications must be dismissed by the
convening authority in the action. If a rehearing or other trial is directed,
the reasons for the disapproval must be set forth in the action.
(iv) Action on sentence.
(a) In general. The action must state whether
the sentence adjudged by the court-martial is approved. If only part of the
sentence is approved, the action must state which parts are approved. A
rehearing may not be directed if any sentence is approved.
(b) Execution; suspension. The action must
indicate, when appropriate, whether an approved sentence is to be executed or
whether the execution of all or any part of the sentence is to be suspended. No
reasons need be stated.
(c) Place
of confinement. If the accused waives his right to appellate review or
withdraws an appeal under N.Y.R.C.M. 1110 and if the convening authority orders
a sentence of confinement at hard labor into execution, the convening authority
must designate the place of confinement in the action. If the accused does not
so waive or withdraw and if a sentence of confinement is ordered into execution
after the initial action of the convening authority, the authority ordering the
execution must designate the place of confinement (ML, 130.69).
(d) Deferment of service of sentence to
confinement. Whenever the service of the sentence to confinement is deferred by
the convening authority under N.Y.R.C.M. 1101(c) before or concurrently with
the initial action in the case, the action must include the date on which the
deferment became effective. The reason for the deferment need not be stated in
the action.
(e) Credit for illegal
pretrial confinement. When the military judge has directed that the accused
receive credit under N.Y.R.C.M. 305(k), the convening authority must so direct
in the action.
(f) Reprimand. The
convening authority must include in the action any reprimand which the
convening authority has ordered executed.
(v) Action on rehearing or new or other
trial.
(a) Rehearing or other trial. In
acting on a rehearing or other trial the convening authority is subject to the
sentence limitations prescribed in N.Y.R.C.M. 810(d). Except when a rehearing
or other trial is combined with a trial on additional offenses and except as
otherwise provided in N.Y.R.C.M. 810(d), if any part of the original sentence
was suspended and the suspension was not properly vacated before the order
directing the rehearing, the convening authority must take the necessary
suspension action to prevent an increase in the same type of punishment as was
previously suspended. The convening authority may approve a sentence adjudged
upon a rehearing or other trial regardless of whether any kind or amount of the
punishment adjudged at the former trial has been served or executed. However,
in computing the term or amount or punishment to be actually served or executed
under the new sentence, the accused must be credited with any kind or amount of
the former sentence included within the new sentence that was served or
executed before the time it was disapproved or set aside. The convening
authority must, if any part of a sentence adjudged upon a rehearing or other
trial is approved, direct in the action that any part or amount of the former
sentence served or executed between the date it was adjudged and the date it
was disapproved or set aside must be credited to the accused. If, in the action
on the record of a rehearing, the convening authority disapproves the findings
of guilty of all charges and specification which were tried at the former
hearing and that part of the sentence which was based on these findings, the
convening authority must, unless a further rehearing is ordered, provide in the
action that all rights, privileges, and property affected by any executed
portion of the sentence adjudged at the former hearing must be restored. The
convening authority must take the same restorative action if a court-martial at
a rehearing acquits the accused of all charges and specifications which were
tried at the former hearing.
(b)
New trial. The action of the convening authority on a new trial must insofar as
practicable, conform to the rules prescribed for rehearings and other trials in
clause (a) of this subparagraph.
(7) Incomplete, ambiguous, or erroneous
action. When the action of the convening or of a higher authority is
incomplete, ambiguous, or contains clerical error, the authority who took the
incomplete, ambiguous, or erroneous action may be instructed by an authority
acting under ML, 130.63, 130.65, and 130.68 to withdraw the original action and
substitute a corrected action.
(8)
Service on accused. A copy of the convening authority's action must be served
on the accused or on defense counsel. If the action is served on defense
counsel, defense counsel must, by expeditious means, provide the accused with a
copy.
(h) Suspension of
execution of sentence; remission.
(1) In
general. Suspension of a sentence grants the accused a probationary period
during which the suspended part of an approved sentence is not executed, and
upon the accused's successful completion of which the suspended part of the
sentence is remitted. Remission cancels the unexecuted part of a sentence to
which it applies.
(2) Who may
suspend and remit. The Chief of Staff to the Governor and, when designated by
him the Vice Chief of Staff to the Governor, Adjutant General, State judge
advocate, or commanding officer may remit or suspend any part or amount of the
unexpired part of any sentence, including all uncollected forfeitures other
than a sentence approved by the Governor (ML, 130.72[a]).
(3) Conditions of suspension. The authority
who suspends the execution of the sentence of a court-martial must:
(i) specify in writing the conditions of the
suspension;
(ii) cause a copy of
the conditions of the suspension to be served on the probationer; and
(iii) cause a receipt to be secured from the
probationer for service of the conditions of the suspension.
Unless otherwise stated, an action suspending a sentence
includes as a condition that the probationer not violate any punitive article
of the code.
(4)
Limitations on suspension.
(i) In general.
Suspension must be for a stated period of time until the occurrence of an
anticipated future event. The period cannot be unreasonably long. The convening
authority must provide in the action that unless the suspension is sooner
vacated, the expiration of the period of suspension remits the suspended
portion of the sentence. An appropriate authority may, before the expiration of
the period of suspension, remit any part of the sentence, including a part
which has been suspended; reduce the period of suspension; or, subject to
N.Y.R.C.M. 1109, vacate the suspension in whole or in part.
(ii) Suspending the execution of forfeiture.
If a sentence includes a forfeiture in addition to confinement not suspended,
such forfeiture may apply to pay or allowances accruing to the accused on and
after the date the convening authority approves such a sentence and to any pay
or allowances accrued before such date, unless the convening authority, at the
time he approves the sentence, suspends the execution of that portion of the
sentence pertaining to forfeitures (see ML, 130.57[a]). However, in a case
involving an approved sentence of confinement and forfeiture if the convening
authority does not desire to suspend the execution of the confinement or the
forfeiture, but determines that the circumstances of the case warrant
continuation of the accused in a pay status pending completion of appellate
review, he may provide in his action that the application of the forfeiture
shall be deferred until such time as the sentence as a whole is carried into
execution. When the approved sentence includes a forfeiture in addition to
confinement not suspended, the convening authority, unless he orders the
execution, suspends the execution, or defers the applicability of the
forfeitures, should include in his action on the case a statement that the
approved forfeiture will apply to pay or allowances accruing to the accused on
and after a certain date (naming the date) see Appendix L-2(A11), modified as
above set forth. This statement will aid disbursing and personnel officers in
determining the effect of the approval by the convening authority of a sentence
which includes a forfeiture.
(5) Termination of suspension by remission.
Expiration of the period provided in the action suspending a sentence or part
of a sentence remits the suspended portion unless the suspension is sooner
vacated. Death or separation which terminates status as a person subject to the
code results in remission of the suspended portion of the sentence.
(i) Vacation of suspension of
sentence.
(1) In general. Suspension of
execution of the sentence of a court-martial may be vacated for violation of
the conditions of the suspension provided in this subdivision (ML,
130.70).
(2) Timeliness.
(i) Violation of conditions. Vacation must be
based on a violation of the conditions of suspension which occurs within the
period of suspension.
(ii) Vacation
proceedings. Vacation proceedings under this subdivision must be completed
within a reasonable time.
(iii)
Order vacating the suspension. The order vacating the suspension must be issued
before the expiration of the period of suspension.
(iv) Interruptions to the period of
suspension. Unauthorized absence of the probationer or the commencement of
proceedings under this subdivision to vacate suspension interrupts the running
of the period of suspension.
(3) Confinement of probationer pending
vacation proceedings.
(i) In general. A
probationer under a suspended sentence to confinement may be confined pending
action under subparagraph (4)(ii) of this subdivision in accordance with the
procedures in paragraph (3) of this subdivision.
(ii) Who may order confinement. Any person
who may order confinement under N.Y.R.C.M. 304(b) may order confinement of a
prohationer under a suspended sentence to confinement.
(iii) Basis for confinement. A probationer
under a suspended sentence to confinement may be ordered into confinement upon
probable cause to believe the probationer violated any conditions of the
suspension.
(iv) Review of
confinement. Unless proceedings under subparagraph (4)(i) or paragraph (5) of
this subdivision are completed within seven days of imposition of confinement
of the probationer (not including any delays requested by probationer), a
preliminary hearing must be conducted by a neutral and detached officer
appointed in accordance with these regulations.
(a) Rights of accused. Before the preliminary
hearing, the accused shall be notified in writing of:
(1) the time, place, and purpose of the
hearing, including the alleged violation(s) of the conditions of
suspension;
(2) the right to be
present at the hearing;
(3) the
right to be represented at the hearing by civilian counsel provided by the
probationer or, upon request, by military counsel detailed for this purpose;
and
(4) the opportunity to be
heard, to present witnesses who are reasonably available and other evidence,
and the right to confront and cross-examine adverse witnesses unless the
hearing officer determines that this would subject these witnesses to risk or
harm. For purposes of this paragraph, a witness is not reasonably available if
the witness requires reimbursement by the State for any cost incurred in
appearing, cannot appear without unduly delaying the proceedings, or, if a
military witness, cannot be excused from other important duties.
(b) Rules of evidence. Except for
Mil. R. Evid. section V (Privileges) and Mil. R. Evid. 302 and 305, the
Military Rules of Evidence do not apply to matters considered at the
preliminary hearing under this subdivision.
(c) Decision. The hearing officer must
determine whether there is probable cause to believe that the probationer
violated the conditions of the probationer's suspension. If the hearing officer
determines that probable cause is lacking, the hearing officer must, in
writing, order the probationer released from confinement. If the hearing
officer determines that there is probable cause to believe that the probationer
violated the conditions of suspension, the hearing officer must set forth in a
written memorandum the decision, the reasons for the decision, and the
information relied on. The hearing officer must forward the original memorandum
or release order to the probationer's commander and forward a copy to the
probationer and the officer in charge of the confinement facility.
(4) Vacation of
suspended general court-martial sentence or of a suspended special
court-martial sentence including a bad-conduct discharge or of any
court-martial which, as approved, includes confinement at hard labor.
(i) Action by officer having special
court-martial jurisdiction over probationer.
(a) In general. Before vacation of the
suspension of any general court-martial sentence, or of a special court-martial
sentence which, as approved, includes a bad-conduct discharge, or of any
court-martial which, as approved, includes confinement at hard labor, the
officer having special court-martial jurisdiction over the probationer must
personally hold a hearing on the alleged violation of the conditions of
probation. If there is no officer having special court-martial jurisdiction
over the accused who is subordinate to the officer having general court-martial
jurisdiction over the accused, the officer exercising general court-martial
jurisdiction over the accused must personally hold the hearing under this
subparagraph. In such cases clause (d) of this subparagraph shall not
apply.
(b) Notice to probationer.
Before the hearing the authority conducting the hearing must cause the
probationer to be notified of:
(1) the time,
place, and purpose, of the hearing;
(2) the right to be present at the
hearing;
(3) the alleged violations
of the conditions of probation and the evidence expected to be relied
on;
(4) the right to be represented
at the hearing by civilian counsel provided by the probationer or, upon
request, by military counsel detailed for this purpose; and
(5) the opportunity to be heard, to present
witnesses and other evidence, and the right to confront and cross-examine
adverse witnesses unless the hearing officer determines that there is good
cause for not allowing confrontation and cross-examination.
(c) Hearing. The procedure for the
vacation hearing must follow that prescribed in N.Y.R.C.M. 405(g), (h)(1), and
(i).
(d) Record; recommendation.
The officer who conducts the vacation proceeding must make a summarized record
of the proceeding and forward the record and that officer's recommendation
concerning vacation to the officer exercising general court-martial
jurisdiction over the probationer.
(e) Release from confinement. If the special
court-martial convening authority finds there is not probable cause to believe
that the probationer violated the conditions of the suspension, the special
court-martial convening authority must order the release of the probationer
from any confinement ordered under paragraph (3) of this subdivision. The
special court-martial convening authority must, in any event, forward the
record and recommendation under clause (d) of this subparagraph.
(ii) Action by officer exercising
general court-martial jurisdiction over probationer.
(a) In general. The officer exercising
general court-martial jurisdiction over the probationer must, based upon the
record produced by and the recommendation of the officer exercising special
court-martial jurisdiction over the probationer, decide whether the probationer
violated a condition of suspension, and, if so, whether to vacate the suspended
sentence. If the officer exercising general court-martial jurisdiction decides
to vacate, that officer must prepare a written statement of the evidence relied
on and the reasons for vacating.
(b) Execution. Any unexecuted part of a
suspended sentence ordered vacated under this subdivision must, subject to
N.Y.R.C.M. 1113(C), be ordered executed.
(5) Vacation of a suspended special
court-martial sentence not including a bad-conduct discharge or confinement at
hard labor or of a suspended summary court-martial sentence not including
confinement at hard labor.
(i) In general.
Before vacation of the suspension of a special court-martial sentence not
including a bad-conduct discharge, confinement at hard labor or of a summary
court-martial sentence not including confinement at hard labor, the officer
having authority to convene for the command in which the probationer is serving
or assigned the same kind of court-martial which imposed the sentence must
cause a hearing to be held on the alleged violation(s) of the conditions of
suspension.
(ii) Notice to
probationer. The person conducting the hearing must notify the probationer
before the hearing of the rights specified in subclauses (4)(i)(b) (1),(2),(3)
and (4) of this subdivision. The authority conducting the hearing must also
notify the probationer that the probationer has the right to civilian counsel
provided by the probationer or, upon request counsel detailed for that purpose,
if the probationer was entitled to such counsel under N.Y.R.C.M. 506(a) at the
court-martial which imposed the sentence.
(iii) Hearing. The procedure for the vacation
hearing must follow that prescribed in N.Y.R.C.M. 405(g), (h)(1), and
(i).
(iv) Record; recommendation.
If the hearing is not held by the commander with authority to vacate the
suspension, the person who conducts the vacation proceeding must make a
summarized record of the proceeding and forward the record and that officer's
written recommendation concerning vacation to the commander with authority to
vacate the suspension.
(v)
Decision. If the appropriate authority decides that the probationer violated a
condition of suspension, and to vacate, that person must prepare a record of
the hearing and a written statement indicating the decision, the reasons for
the decision, and the evidence relied on.
(j) Waiver or withdrawal of appellate review.
(1) In general. After any general
court-martial or any special court-martial in which the approved sentence
includes a bad-conduct discharge or any court-martial in which the approved
sentence includes confinement at hard labor, the accused may waive or withdraw
appellate review.
(2) Right to
counsel.
(i) In general. The accused has the
right to consult with counsel qualified under N.Y.R.C.M. 502(d)(1) before
submitting a waiver or withdrawal of appellate review.
(ii) Waiver.
(a) Counsel who represented the accused at
the court-martial. The accused has the right to consult with any civilian,
individual military, or detailed counsel who represented the accused at the
court-martial concerning whether to waive appellate review unless such counsel
has been excused under N.Y.R.C.M. 505(d)(2)(B).
(b) Associate counsel. If counsel who
represented the accused at the court-martial has not been excused but is not
immediately available to consult with the accused, because of physical
separation or other reasons, associate defense counsel must be detailed to the
accused upon request by the accused. Such counsel must communicate with counsel
who represented the accused at the court-martial, and must advise the accused
concerning whether to waive appellate review.
(c) Substitute counsel. If counsel who
represented the accused at the court-martial has been excused under N.Y.R.C.M.
505(d)(2)(B), substitute defense counsel must be detailed to advise the accused
concerning waiver of appellate rights.
(iii) Withdrawal.
(a) Appellate defense counsel. If the accused
is represented by appellate defense counsel, the accused has the right to
consult with such counsel concerning whether to withdraw the appeal.
(b) Associate defense counsel. If the accused
is represented by appellate defense counsel, and such counsel is not
immediately available to consult with the accused, because of physical
separation or other reasons, associate defense counsel must be detailed to the
accused, upon request by the accused. Such counsel must communicate with
appellate defense counsel and must advise the accused whether to withdraw the
appeal.
(c) No counsel. If
appellate defense counsel has not been assigned to the accused, defense counsel
must be detailed for the accused. Such counsel must advise the accused
concerning whether to withdraw the appeal. If practicable, counsel who
represented the accused at the court-martial is to be detailed.
(iv) Civilian counsel. Whether or
not the accused was represented by civilian counsel at the court-martial, the
accused may consult with civilian counsel, at no expense to the State,
concerning whether to waive or withdraw appellate review.
(v) Record of trial. Any defense counsel with
whom the accused consults under this subdivision must be given reasonable
opportunity to examine the record of trial.
(vi) Consult. The right to consult with
counsel, as used in this subdivision, does not require communication in the
presence of one another.
(3) Compulsion, coercion, inducement
prohibited. No person may compel, coerce, or induce an accused by force,
promises of clemency, or otherwise to waive or withdraw appellate
review.
(4) Form of waiver or
withdrawal (see Appendix L-2[A8]). A waiver or withdrawal of appellate review
must:
(i) be written;
(ii) state that the accused and defense
counsel have discussed the accused's right to appellate review and the effect
of waiver or withdrawal of appellate review and that the accused understands
these matters;
(iii) state that the
waiver or withdrawal is submitted voluntarily; and
(iv) be signed by the accused and by defense
counsel.
(5) To whom
submitted.
(i) Waiver. A waiver of appellate
review must be filed with the convening authority. The waive must be attached
to the record of trial.
(ii)
Withdrawal. A withdrawal of appellate review may be filed with the authority
exercising general court-martial jurisdiction over the accused, who shall
promptly forward it to the State judge advocate, or directly with the state
judge advocate.
(6) Time
limit.
(i) Waiver. The accused may file a
waiver of appellate review only within 10 days after the accused or defense
counsel is served with a copy of the action under N.Y.R.C.M. 1107(h). Upon
written application of the accused, the convening authority may extend this
period for good cause, for not more than 30 days.
(ii) Withdrawal. The accused may file
withdrawal from appellate review at any time before such review is
completed.
(7) Effect of
waiver or withdrawal; substantial compliance required.
(i) In general. A waiver or withdrawal of
appellate review under this subdivision bars review by the State judge advocate
under N.Y.R.C.M. 1201(b)(1) and by the Board of Military Review. Once
submitted, a waiver or withdrawal in compliance with this subdivision cannot be
revoked.
(ii) Waiver. If the
accused files a timely waiver of appellate review in accordance with this
subdivision, the record must be forwarded for review by a judge advocate under
N.Y.R.C.M. 1112.
(iii) Withdrawal.
Action on a withdrawal of appellate review must be carried out in accordance
with procedures established by the State judge advocate, or if the case is
pending before a Board of Military Review, in accordance with the rules of such
board. If the appeal is withdrawn, the State judge advocate must forward the
record to an appropriate authority for compliance with N.Y.R.C.M.
1112.
(iv) Substantial compliance
required. A purported waiver or withdrawal of an appeal which does not
substantially comply with this subdivision shall have no effect.
(k) Disposition of the
record of trial after action (130.64, ML).
(1)
General courts-martial.
(i) Cases forwarded
to the State judge advocate. A record of trial by general court-martial and the
convening authority's action shall be sent directly to the State judge advocate
if the accused has not waived review under N.Y.R.C.M. 1110 and the sentence
does not include dismissal, dishonorable or bad-conduct discharge or
confinement, since such cases must be forwarded to the Board of Military
Review. Three copies of the order promulgating the result of trial as to each
accused must be forwarded with the original record of trial. Two additional
copies of the record of trial must accompany the original record if it includes
dismissal of an officer, cadet, or midshipman, dishonorable or bad-conduct
discharge, or confinement at hard labor and the accused has not waived
appellate review.
(ii) Cases
forwarded to a judge advocate. A record of trial by general court- martial and
the convening authority's action must be sent directly to a judge advocate for
review under N.Y.R.C.M. 1112 if the accused has waived appellate review under
N.Y.R.C.M. 1110, or the sentence does not include dismissal, dishonorable or
bad-conduct discharge, or confinement. Four copies of the order promulgating
the result of trial must be forwarded with the original record of
trial.
(2) Special
courts-martial.
(i) Cases including an
approved bad-conduct discharge or confinement. If the approved sentence of a
special court-martial includes a bad-conduct discharge or confinement, the
record must be disposed of as provided in paragraph (1) of this subdivision for
records of trial by general court-martial.
(ii) Other cases. The record of trial by a
special court-martial in which the approved sentence includes neither a
bad-conduct discharge nor confinement must be forwarded directly to a judge
advocate for review under N.Y.R.C.M. 1112. Three copies of the order
promulgating the result of trial must be forwarded with the record of
trial.
(3) Summary
courts-martial. The convening authority must dispose of a record of trial by
summary court-martial as provided in N.Y.R.C.M. 1306.
(l) Review by a judge advocate.
(1) In general. Except as provided in
paragraph (2) of this subdivision, a judge advocate must review:
(i) each general court-martial in which the
accused has waived or withdrawn appellate review under N.Y.R.C.M. 1110, or the
sentence does not include dismissal, dishonorable or bad-conduct discharge or
confinement;
(ii) each special
court-martial in which the accused has waived or withdrawn appellate review
under N.Y.R.C.M. 1110 or in which the approved sentence does not include a bad-
conduct discharge or confinement; and
(iii) each summary court-martial (ML,
130.63).
(2) Exception.
If the accused was not found guilty of any offense or if the convening
authority disapproved all findings of guilty, no review under this subdivision
is required.
(3) Disqualification.
No person may review a case under this subdivision if that person has acted in
the same case as an accuser, investigating officer, member of the
court-martial, military judge, or counsel, or has otherwise acted on behalf of
the prosecution or defense.
(4)
Form and content of review. The judge advocate's review must be in writing and
must contain the following:
(i) conclusions
as to whether:
(a) the court-martial had
jurisdiction over the accused and each offense as to which there is a finding
of guilty which has not been disapproved;
(b) each specification as to which there is a
finding of guilty which has not been disapproved; and
(c) the sentence was legal;
(ii) a response to each allegation
of error made in writing by the accused. Such allegations may be filed under
N.Y.R.C.M. 1105 and 1106(f), or directly with the judge advocate who reviews
the case; and
(iii) if the case is
sent for action to the officer exercising general court-martial jurisdiction
under paragraph (5) of this subdivision, a recommendation as to the appropriate
action to be taken and an opinion as to whether corrective action is required
as a matter of law.
Copies of the judge advocate's review under this
subdivision shall be attached to the original and all copies or the record of
trial. A copy of the review shall be forwarded to the accused.
(5) Forwarding to
officer exercising general court-martial jurisdiction. In cases reviewed under
paragraph (1) of this subdivision, the record of trial must be sent for action
to the officer exercising general court-martial convening authority over the
accused at the time the court- martial was held (or to that officer's
successor) when:
(i) the judge advocate who
reviewed the case recommends corrective action;
(ii) the sentence approved by the convening
authority includes dismissal, a dishonorable or bad-conduct discharge, or any
confinement; or
(iii) such action
is otherwise required by regulation.
If the judge advocate's review is not forwarded under this
paragraph, it must be attached to the original record of trial and a copy
forwarded to the accused.
(6) Action by officer exercising general
court-martial jurisdiction.
(i) Action. The
officer exercising general court-martial jurisdiction who receives a record
under paragraph (5) of this subdivision may:
(a) disapprove or approve the findings or
sentence in whole or in part;
(b)
remit, commute, or suspend the sentence in whole or in part;
(c) except where the evidence was
insufficient at the trial to support the findings, order a rehearing on the
findings, on the sentence, or on both; or
(d) dismiss the charges.
(ii) Rehearing. If the officer exercising
general court-martial jurisdiction orders a rehearing, but the convening
authority finds a rehearing impracticable, the convening authority must dismiss
the charges.
(iii) Notification.
After the officer exercising general court-martial jurisdiction has taken
action, the accused must be notified of that action and the accused must be
provided with a copy of the judge advocate's review.
(7) Forwarding following review under this
subdivision.
(i) Records forwarded to the
State judge advocate. If the judge advocate who reviews the case under this
subdivision states that corrective action is required as a matter of law, and
the officer exercising general court-martial jurisdiction does not take action
that is at least as favorable to the accused as that recommended by the judge
advocate, the record of trial and the action thereon must be forwarded to the
State judge advocate for review under N.Y.R.C.M. 1201(b)(2).
(ii) Sentence including dismissal. If the
approved sentence includes dismissal, the record must be forwarded to the Chief
of Staff to the Governor (see ML, 130.69[a]).
(iii) Other records. Records reviewed under
this subdivision which are not forwarded under subparagraph (i) of this
paragraph be disposed of as prescribed by regulations.
(m) Execution of sentences.
(1) In general. No sentence of a
court-martial may be executed unless it has been approved by the convening
authority.
(2) Punishments which
the convening authority may order executed in the initial action. Except as
provided in paragraph (3) of this subdivision, the convening authority may
order all or part of the sentence of a court-martial executed when the
convening authority takes initial action under N.Y.R.C.M. 1107 (see ML,
130.69[b][2]).
(3) Punishments
which the convening authority may not order executed in the initial action. A
dishonorable or bad-conduct discharge may be ordered executed only by:
(i) the officer who reviews the case under
N.Y.R.C.M. 1112(f), as part of the action approving the sentence, except when
that action must be forwarded under N.Y.R.C.M. 1112(g)(1); or
(ii) the officer then exercising general
court-martial jurisdiction over the accused.
A dishonorable or a bad-conduct discharge may be ordered
executed only after a final judgment within the meaning of N.Y.R.C.M. 1207 has
been rendered in the case. If more than six months have elapsed since approval
of the sentence by the convening authority, before a dishonorable or a
bad-conduct discharge may be executed, the officer exercising general
court-martial jurisdiction over the accused must consider the advice of that
officer's staff judge advocate as to whether retention of the service member
would be in the best interest of the service. Such advice must include: the
findings and sentence as finally approved; whether the service member has been
on active State duty since the court-martial, and, if so, the nature and
character of that duty; and a recommendation whether the discharge should be
executed.
(4)
Other considerations concerning the execution of certain sentences.
(i) Confinement.
(a) Effective date of confinement. Any period
of confinement included in the sentence of a court-martial begins to run from
the date the sentence is adjudged by the court-martial, but the following are
excluded in computing the service of the term of confinement:
(1) periods during which the sentence to
confinement is suspended or deferred;
(2) periods during which the accused is in
custody of civilian authorities under ML, 130.14 from the time of the delivery
to the return to military custody, if the accused was convicted in the civilian
court;
(3) periods during which the
accused has escaped or is absent without authority, or is absent under a parole
which proper authority has later revoked, or is erroneously released from
confinement through misrepresentation or fraud on the part of the prisoner, or
is erroneously released from confinement upon the prisoner's petition for a
writ of habeas corpus under a court order which is later reversed;
and
(4) periods during which
another sentence by court-martial to confinement is being served. When a
prisoner serving a court-martial sentenced to confinement is later convicted by
a court-martial of another offense and sentenced to confinement, the later
sentence interrupts the running of the earlier sentence. Any unremitted
remaining portion of the earlier sentence will be served after the later
sentence is fully executed.
(b) Nature of the confinement. The omission
of "hard labor" from any sentence of a court-martial which has adjudged
confinement does not prohibit the authority who orders the sentence executed
from requiring hard labor as part of the punishment (ML, 130.58[b]).
(c) Place of confinement. The authority who
orders a sentence to confinement into execution must designate the place of
confinement. A sentence or confinement is adjudged by a court-martial or other
military tribunal, regardless of whether the sentence includes a punitive
discharge or dismissal has been executed, may be ordered to be served in any
place of confinement under the control of any of the forces of the organized
militia or in any jail, penitentiary, or prison designated for that purpose as
prescribed in ML, 130.11. Persons so confined in such a jail, penitentiary, or
prison are subject to the same discipline and treatment as persons confined or
committed by the courts of the State or of any political subdivision thereof
(ML, 130.58[a]). When the service of a sentence to confinement has been
deferred and the deferment is later rescinded, the convening authority must
designate the place of confinement in the initial action on the sentence or in
the order rescinding the deferment. No member of the organized militia may be
placed in confinement in immediate association with enemy prisoners or other
foreign nationals not members of the organized militia.
(ii) Confinement in lieu of fine. Confinement
may not be executed for failure to pay a fine if the accused demonstrates that
the accused has made good faith efforts to pay but cannot because of
indingency, unless the authority considering imposition of confinement
determines, after giving the accused notice and opportunity to be heard, that
there is no other punishment adequate to meet the government's interest in
appropriate punishment.
(n) Promulgating order.
(1) In general.
(i) Scope of rule. Orders promulgating the
result of trial and the actions of the convening or higher authorities on the
record shall be prepared, issued, and distributed as prescribed in this
subdivision.
(ii) Purpose. A
promulgating order publishes the result of the court-martial and the convening
authority's action and any later action taken on the case.
(iii) Summary courts-martial. An order
promulgating the result of a trial by summary court-martial need not be
issued.
(2) By whom
issued.
(i) Initial orders. The order
promulgating the result of trial and the initial action of the convening
authority is issued by the convening authority.
(ii) Orders issued after the initial action.
Any action taken on the case subsequent to the initial action shall be
promulgated in supplementary orders. The subsequent action and the
supplementary order may be the same document signed personally by the
appropriate convening or higher authority.
(a) When the Governor or the Chief of Staff
to the Governor has taken final action. General court-martial orders publishing
the final result in cases in which the Governor or the Chief of Staff to the
Governor has taken final action shall be promulgated as prescribed by these
regulations.
(b) Other cases. In
cases other than those in clause (a) of this subparagraph, the final action may
be promulgated by an appropriate convening authority.
(3) Contents.
(i) In general. The order promulgating the
initial action must set forth: the type of court-martial and the command by
which it was convened; the charges and specifications, or a summary thereof, on
which the accused was arraigned; the accused pleas; the findings or other
disposition of each charge and specification; the sentence, if any; and,
verbatim, the action of the convening authority, or a summary thereof.
Subsequent actions must recite, verbatim, the action or order of the
appropriate authority, or a summary thereof.
(ii) Dates. A promulgating order must bear
the date of the initial action, if any, of the convening authority. An order
promulgating an acquittal, a court-martial terminated before findings, or
action on the findings or sentence taken after the initial action of the
convening authority must bear the date of its publication. A promulgating order
must state the date the sentence was adjudged, the date on which the acquittal
was announced, or the date on which the proceedings were otherwise
terminated.
(iii) Order promulgated
regardless of the result of trial or nature of the action. An order
promulgating the result of trial by general or special court-martial must be
issued regardless of the result and regardless of the action of the convening
or higher authorities.
(4) Orders containing classified information.
When an order contains information which must be classified, only the order
retained in the unit files and those copies which accompany the record of trial
is to be complete and contain the classified information. The order must be
assigned the appropriate security classification. Asterisks are to be
substituted for the classified information in the other copies of the
order.
(5) Authentication. The
promulgating order must be authenticated by the signature of the convening or
other competent authority acting on the case, or a person acting under the
direction of such authority. A promulgating order prepared in compliance with
this subdivision is authentic.
(6)
Distribution. Promulgating orders are to be distributed as follows:
(i) Original to be filed in member's military
personnel records jacket (MPRJ) by forwarding to DMNA, ATTN:
MNPA-PSC.