§ 864. Art. 64. Judge advocate review of finding of guilty in summary court-martial

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(a)In General.— Under regulations prescribed by the Secretary concerned, each summary court-martial in which there is a finding of guilty shall be reviewed by a judge advocate. A judge advocate may not review a case under this subsection if the judge advocate has acted in the same case as an accuser, preliminary hearing 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 as 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.

(b)Record.— 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—

(1)the judge advocate who reviewed the case recommends corrective action; or

(2)such action is otherwise required by regulations of the Secretary concerned.

(1)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.

(2)If a rehearing is ordered but the convening authority finds a rehearing impracticable, he shall dismiss the charges.

(3)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 the Judge Advocate General for review under section 869 of this title (article 69).

(Aug. 10, 1956, ch. 1041, 70A Stat. 58; Pub. L. 98–209, § 7(a)(1), Dec. 6, 1983, 97 Stat. 1401; Pub. L. 114–328, div. E, title LIX, § 5328, Dec. 23, 2016, 130 Stat. 2929; Pub. L. 115–91, div. A, title X, § 1081(c)(1)(I), Dec. 12, 2017, 131 Stat. 1598.)

The word “may” is substituted for the word “shall”. The word “is” is substituted for the words “shall constitute”.

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U.S. Code