TITLE 38 MILITARY, EMERGENCY MANAGEMENT, AND VETERANS AFFAIRS

Section 2. Military Affairs, 38-2-1 through 38-2-1145.

ARTICLE 5 CODE OF MILITARY JUSTICE

38-2-1060. Report of findings and sentence; submission of matters for consideration to convening authority; record of trial; modification of findings and sentence; recommendation of staff judge advocate; proceeding in revision; rehearing.

1. The findings and sentence of a court-martial shall be reported promptly to the convening authority after the announcement of the sentence.
2. 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 30 days after the accused has been given an authenticated record of the trial and, if applicable, the recommendation of the staff judge advocate of the service of the accused under subsection (d) of this Code section. In a summary court-martial case, such a submission shall be made within 30 days after the sentence is announced.
   2. If the accused shows that additional time is required for the accused to submit such matters as provided for in paragraph (1) of this subsection, the convening authority or other person taking action under this Code section, for good cause, may extend the applicable period under paragraph (1) of this subsection for not more than an additional 60 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 the submission as provided for by paragraph (1) of this subsection.
   4. The accused may waive the right to make a submission to the convening authority as provided for by paragraph (1) of this subsection. Such a waiver shall be made in writing and may not be revoked. For the purposes of paragraph (2) of subsection (c) of this Code section, 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.
3. 1. The authority under this Code 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 Code section.
   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 Code section. Such action may be taken only after consideration of any matters submitted by the accused under subsection (b) of this Code section or after the time for submitting such matters expires, whichever is earlier. The convening authority or other person taking such action, in that person's 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 shall not be required; provided, however, that 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 an offense that is a lesser included offense of the offense stated in the charge or specification.
4. Before acting under this Code section on any general or special court-martial case in which there is a finding of guilt, the convening authority or other person taking action under this Code section shall obtain and consider the written recommendation of the staff judge advocate of the service of the accused. The convening authority or other person taking action under this Code section shall refer the record of trial to the staff judge advocate, and the staff judge advocate shall use such record in the preparation of the recommendation. The recommendation of the staff judge advocate shall include such matters as may be prescribed by regulations issued pursuant to Part 1 of Article 2 of this chapter and shall be served on the accused, who may submit any matter as provided for by subsection (b) of this Code section. Failure to object in the response to the recommendation or to any matter attached to the recommendation shall waive the right to object thereto.
5. 1. The convening authority or other person taking action under this Code section, in the person's sole discretion, may order a proceeding in revision or a rehearing.
   2. A proceeding in revision as provided for by paragraph (1) of this subsection 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:
      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 this article; or
      3. 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 Code section if that person disapproves the findings and sentence and states the reasons for disapproval of the findings. If such person disapproves of the findings and sentence and does not order a rehearing, that person shall dismiss the charges. A rehearing as to the findings shall not be ordered where there is a lack of sufficient evidence in the record to support such findings. A rehearing as to the sentence shall be ordered if the convening authority or other person taking action under this subsection disapproves the sentence.

(Code 1981, §38-2-1060, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)