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U.S. Code as of:
01/19/04
Section 860. Art. 60. Action by the convening authority
(a) The findings and sentence of a court-martial shall be
reported promptly to the convening authority after the announcement
of the sentence.
(b)(1) 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.
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 a submission
shall be made within seven days after the sentence is announced.
(2) 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.
(3) 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).
(4) 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.
(c)(1) 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.
(2) 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.
(3) 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.
(d) 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.
(e)(1) The convening authority or other person taking action
under this section, in his sole discretion, may order a proceeding
in revision or a rehearing.
(2) 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 the sentence unless the sentence
prescribed for the offense is mandatory.
(3) 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 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 taking action under this subsection
disapproves the sentence.
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