35.326 Action by the convening authority.
841 words·~4 min read·
/ky/chapter-35/35-326A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
(1)The findings and sentence of a court-martial shall be reported promptly to the
convening authority after the announcement of the sentence.
(a)The accused may submit to the convening authority matters for consideration
by the convening authority with respect to the findings and the sentence. Any
such submission shall be in writing. Such a submission shall be made within
ten
(10)days after the accused has been given an authenticated record of trial
and, if applicable, the recommendation of a judge advocate under subsection
(4)of this section.
(b)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
of this subsection for not more than an additional twenty
(20)days.
(c)The accused may waive the right to make a submission to the convening
authority under paragraph
(a)of this subsection. A waiver must be made in
writing and may not be revoked. For the purposes of subsection (3)(b) of this
section, the time within which the accused may make a submission under this
subsection shall be deemed to have expired upon the submission of a waiver
to the convening authority.
(a)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. If it is impractical for the convening authority to
act, the convening authority shall forward the case to a person exercising
general court-martial jurisdiction who may take action under this section.
(b)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. The action
may be taken only after consideration of any matters submitted by the accused
under subsection
(2)of this section or after the time for submitting such
matters expires, whichever is earlier. The convening authority or other person
taking the action, in that person's sole discretion, may approve, disapprove,
commute, or suspend the sentence in whole or in part.
(c)Action on the findings of a court-martial by the convening authority or other
person acting on a sentence is not required. However, such person, in the
person's sole discretion, may:
1. Dismiss any charge or specification by setting aside a finding of guilty
thereto; or
2. Change a finding of guilty to a charge or specification to a finding of
guilty to any offense that is a lesser included offense of the offense
stated in the charge or specification.
(4)Before acting under this section on any general or special court-martial case in
which there is a finding of guilty, the convening authority or other person taking
action under this section shall obtain and consider the written recommendation of a
judge advocate. The convening authority or other person taking action under this
section shall refer the record of trial to the judge advocate, and the judge advocate
shall use that record in the preparation of the recommendation. The
recommendation of the judge advocate shall include such matters as may be
prescribed by regulation and shall be served on the accused, who may submit any
matter in response under subsection
(2)of this section. Failure to object in the
response to the recommendation or to any matter attached to the recommendation
waives the right to object thereto.
(a)The convening authority or other person taking action under this section, in
the person's sole discretion, may order a proceeding in revision or a rehearing.
(b)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 finding 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:
1. Reconsider a finding of not guilty of any specification or a ruling which
amounts to a finding of not guilty;
2. 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 section of this code; or
3. Increase the severity of the sentence unless the sentence prescribed for
the offense is mandatory.
(c)A rehearing may be ordered by the convening authority or other person taking
action under this article if that person disapproves the findings and sentence
and states the reasons for disapproval of the findings. If that person
disapproves the findings and sentence and does not order a rehearing, that
person shall dismiss the charges. A rehearing as to the findings may not be
ordered where there is a lack of sufficient evidence in the record to support the
findings. A rehearing as to the sentence may be ordered if the convening
authority or other person taking action under this subsection disapproves the
sentence.