§ 130.65 — Review by board of military review and approval by the adjutant general

New York § 130.65

• Jurisdiction: New York
• Law MIL: Military
• Part 9: Post-trial Procedure and Review of Courts-martial
• Art. 7: Code of Military Justice

Text

§ 130.65. Review by board of military review and approval by the\nadjutant general. (a) The state judge advocate shall establish a board\nof military review which shall be composed of not less than three\nofficers of the organized militia or on the state reserve list or state\nretired list, each of whom shall be a member of the bar of the state.\n (b) The state judge advocate shall refer to a board of military review\nthe record in each case of trial by court-martial:\n (1) in which the sentence, as approved, extends to, dismissal of a\ncommissioned officer, dishonorable or bad-conduct discharge, or any\nconfinement; and\n (2) the right to appellate review has not been waived or an appeal has\nnot been withdrawn under section 130.61 of this article.\n (c) In a case referred to it, the board of military review may act\nonly with respect to the findings and sentence as approved by the\nconvening authority. It may affirm only such findings of guilty and the\nsentence or such part or amount of the sentence, as it finds correct in\nlaw and fact and determines, on the basis of the entire record, should\nbe approved. In considering the record, it may weigh the evidence,\njudge the credibility of witnesses, and determine controverted questions\nof fact, recognizing that the trial court saw and heard the witnesses.\n (d) If the board of military review sets aside the findings and\nsentence, it may, except where the setting aside is based on lack of\nsufficient evidence in the record to support the findings, order a\nrehearing. If it sets aside the findings and sentence and does not order\na rehearing, it shall order that the charges be dismissed.\n (e) The action taken by the board of review shall be subject to the\napproval of the adjutant general. If the adjutant general disapproves\nthe action taken by the board of review, he may take any action on the\nsentence or findings that could be taken by the convening authority\nunder section 130.60 of this article.\n (f) The state judge advocate shall, unless there is to be further\naction by the governor, instruct the convening authority to take action\nin accordance with the decision of the board of military review as\napproved by the adjutant general. If the board of military review has\nordered a rehearing but the convening authority finds a rehearing\nimpracticable, he may dismiss the charges.\n (g) No member of a board of military review shall be eligible to\nreview the record of any trial if such member served as investigating\nofficer in the case or served as a member of the court-martial before\nwhich such trial was conducted, or served as military judge, trial or\ndefense counsel, or reviewing officer of such trial.\n