Subchapter IX. Post-Trial Procedures and Review of Courts-Martial.

859. ARTICLE 59. ERROR OF LAW; LESSER INCLUDED OFFENSE.

A finding or sentence of court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.

Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense.


860. ARTICLE 60. ACTION BY THE CONVENING AUTHORITY

The findings and sentence of a court-martial shall be reported promptly to the convening authority after the announcement of the sentence.

The accused may submit to the convening authority matters for consideration by the convening authority with respect to the findings and the sentence. Except in a summary court- martial case, such a submission shall be made within 10 days after the accused has been given an authenticated record of trial and, if applicable, the recommendation of the staff judge advocate or legal officer under subsection (d). In a summary court-martial case, such submission shall be made 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 good cause, may extend the applicable period under paragraph (1) for not more than an additional 20 days.

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 (1).

The accused may waive his right to make a submission to the convening authority under paragraph (1). Such a waiver must be made in writing and may not be revoked. For the purposes of subsection (c)(2), the time within which the accused may make a submission under this subsection shall be deemed to have expired upon the submission of such a waiver to the convening authority.

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 Secretary concerned, 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.

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 Secretary concerned, such action may be taken only after consideration of any matters submitted by the accused under subsection (b) 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.

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.

Before acting under this section on any general court- martial case or any special court-martial case that includes a bad-conduct discharge, the convening authority or other person taking action under this section shall obtain and consider the written recommendation of his 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 President may prescribe by regulation and shall be served on the accused, who may submit any matter in response under subsection (b). Failure to object in the response to the recommendation or to any matter attached to the recommendation waives the right to object thereto.

The convening authority or other person taking action under this section, in his sole discretion, may order a proceeding in revision or a rehearing.

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 unless the sentence prescribed for the offense is mandatory.

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 a 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 taken action under this subsection disapproves the sentence.


861. ARTICLE 61.  WAIVER OR WITHDRAWAL OF APPEAL

In each case subject to appellate review under section 866 or 869(a) of this title (article 66 or 69(a)), except a case in which the sentence as approved under section 860(c) of this title (article 60(c)) includes death, the accused may file with the convening authority a statement expressly waving the right of the accuse d to such review. Such a waiver shall be signed by both the accused and by defense counsel and must be filed within 10 days after the action under sections 860(c) of this title (article 60(c)) is served on the accused or on defense counsel. the convening authority or other person taking such action, for good cause, may extend the period for such filing by not more than 30 days.

Except in a case in which the sentence as approved under section 860(c) of this title (article 60(c)) includes death, the accused may withdraw an appeal at any time.

A waiver of the right to appellate review or the withdrawal of an appeal under this section bars review under section 866 or 869(a) of this title (article 66 or 69(a)).


862. ARTICLE 62. APPEAL BY THE UNITED FEDERATION OF PLANETS

In a trial by court-martial in which a military judge presides and in which a punitive discharge may be adjudged, the United Federation Of Planets may appeal an order or ruling of the military judge which terminates the proceedings with respect to a charge or specifications or which excludes evidence that is substantial proof of a fact material in the proceeding. However, the U.F.P. may not appeal an order or ruling that is, or amounts to, a finding of not guilty with respect to the charge or specification.

An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within 72 hours of the order or ruling. Such notice shall include a certification by the

An appeal under this section shall be forwarded by means prescribed under regulations of the President directly to the Court of Military Review and shall, whenever practicable, have priority over all other proceedings before that court. In ruling on an appeal under this section, the Court of Military review may act only with respect to matters of law, notwithstanding section 866(c) of this title (article 66(c)).

Any period of delay resulting from an appeal under this section shall be excluded in deciding any issue regarding denial of a speedy trial unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit


863. ARTICLE 63. REHEARINGS

Each rehearing under this chapter shall take place before a court-martial composed of members not members of the court- martial which first heard the case. Upon a rehearing the accused may not be tried for any offense of which he was found not guilty by the first court-martial, and no sentence in excess of or more than the original sentence may be imposed unless the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings, or unless the sentence prescribed for the offense is mandatory. If the sentence approved after the first court-martial was in accordance with a pretrial agreement and the accused at the rehearing changes his plea with respect to the charges or specifications upon which the pretrial agreement was based, or otherwise does not comply with pretrial agreement, the sentence as to those charges or specifications may include any punishment not in excess of that lawfully adjudged at the first court-martial.


864. ARTICLE 64. REVIEW BY A JUDGE ADVOCATE

Each case in which there has been a finding of guilty that is not reviewed under section 866 or 869(a) of this title (article 66 or 69(a)) shall be reviewed by a judge advocate under regulations of the Secretary concerned. A judge advocate may not review a case under this subsection if he has acted in the same case as an accuser, investigating officer, member of the court, military judge, or counsel or has otherwise acted on behalf of the prosecution or defense. The judge advocate's review shall be in writing and shall contain the following:
     (1) Conclusions at to whether--
         (A) the court had jurisdiction over the accused and the offense;
         (B) the charge and specification stated an offense; and
         (C) the sentence was within the limits prescribed as a matter of law.
     (2) A response to each allegation of error made in writing by the accused.
    (3) If the case is sent for action under subsection (b), 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.

The record of trial and related documents in each case reviewed under subsection (a) shall be sent for action to the person exercising general court-martial jurisdiction over the accused at the time the court was convened (or to that person's successor in command) if--
      (A) the judge advocate who reviewed the case recommends corrective action;
    (B) the sentence approved under section 860(c) of this title (article 60(c)) extends to dismissal, a bad-conduct or dishonorable discharge, or confinement for more than six months; or
      (C) such action is otherwise required by regulations of the Secretary concerned.

The person to whom the record of trial and related documents are sent under subsection (b) 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.

If a rehearing is ordered by the convening authority finds a rehearing impracticable, he shall dismiss the charges.

If the opinion of the judge advocate in the judge advocate's review under subsection (a) is that corrective action is required as a matter of law and if the person required to take action under subsection (b) 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 action thereon shall be sent to Judge Advocate General for review under section 869(b) of this title (article 69(b)).


865. ARTICLE 65. DISPOSITION OF RECORDS

In a case subject to appellate review under section 866 or 869(a) of this title (article 66 or 69(a)) in which the right to such review is not waived, or an appeal is not withdrawn, under section 861 of this title (article 61), the record of trial and action thereon shall be transmitted to the Judge General for appropriate action.

Except as otherwise required by this chapter, all other records of trial and related documents shall be transmitted and disposed of as the Secretary may prescribe by regulation.


866. ARTICLE 66. REVIEW BY COURT OF MILITARY REVIEW

Each Judge Advocate General shall establish a Court of Military Review which shall be composed of one or more panels, and each such panel shall be composed of not less than three appellate military judges. For the purpose of reviewing court- martial cases, the court may sit in panels or as a whole in accordance with rules prescribed under subsection (f). Any decision of a panel bay be reconsidered by the court sitting as a whole in accordance with such rules. Appellate military judges who are assigned to a Court of Military Review may be commissioned officers or civilians, each of whom must be a member of a bar of a Federal court or the highest court of a State. The Judge Advocate General shall designate as trial counsel that appeal is not taken for the purpose of delay and (if the order or ruling appealed is one which excludes evidence) that the evidence is substantial proof of a fact material in the proceeding.

An appeal under this section shall be diligently prosecuted by appellate Government counsel.

An appeal under this section shall be forwarded by a means prescribed under regulations of the President directly to the Court of Military Review and shall, whenever practicable, have priority over all other proceedings before that court. In ruling on an appeal under this section, the Court of Military Review may act only with respect to matters of law, notwithstanding section 666(c) of this title (article 66(c)).

Any period of delay resulting from an appeal under this section shall be excluded in deciding any issue regarding denial of a speedy trial unless an appropriate authority determines that the appeal was filed solely for the purposed of delay with the knowledge that it was totally frivolous and without merit.





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