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35.320 Disposition of record after review by convening authority.
(1)
(2)
(3)
(4)
If the convening authority is the Governor, he shall refer the record of courts-martial
to the state judge advocate who shall submit his written opinion to the Governor. If
the final action of the court has resulted in acquittal of all charges and
specifications, the opinion shall be limited to questions of jurisdiction. After
consideration of the opinion, the Governor's action on review of any record is final.
(a) Except as provided in subsection (1) of this section, the convening authority
may refer the record of a general court-martial to the staff judge advocate
designated by the state judge advocate who shall submit his written opinion to
the convening authority. If the final action of the court has resulted in an
acquittal of all charges and specifications, the opinion shall be limited to
questions of jurisdiction. When the convening authority has taken final action
he shall forward the entire record, including his action thereon and the opinion
of the staff judge advocate, to the state judge advocate for review.
(b) In a case reviewable by the state judge advocate under this section, the state
judge advocate may act only with respect to the findings and sentence as
approved by the convening authority. He may affirm only the findings of
guilty, and the sentence or part or amount of the sentence, as he finds correct
in law and fact and determined on the basis of the entire record, should be
approved. In considering the record he may weigh the evidence, judge the
credibility of witnesses and determine controverted questions of fact,
recognizing that the trial court saw and heard the witnesses. If the state judge
advocate sets aside the findings and sentence, he may, except where the
setting aside is based on lack of sufficient evidence in the record to support
the findings, order a rehearing. If he sets aside the findings and sentence and
does not order a rehearing, he shall order that the charges be dismissed.
(c) The state judge advocate shall instruct the convening authority to act in
accordance with his decision on the review. If he has ordered a rehearing, but
the convening authority finds a rehearing impracticable, he may dismiss the
charges.
Except as provided in subsection (1) of this section, the convening authority of any
summary or special court-martial, after taking final action on review, shall forward
the entire record, including his action thereon, to the staff judge advocate designated
by the state judge advocate. The staff judge advocate has the duties and powers as
provided for the state judge advocate in paragraphs (b) and (c) of subsection (2) of
this section.
The state judge advocate may order one (1) or more boards of review each
composed of not less than three (3) commissioned officers of the National Guard or
active militia, each of whom must be a member of the bar of the highest court of the
state. Each board of review shall review the record of any trial by special courtmartial referred to it by the state judge advocate. Boards of review have the same
authority on review as the state judge advocate has under this section.
History: Amended 1970 Ky. Acts ch. 56, sec. 45. -- Created 1954 Ky. Acts ch. 99,
sec. 63, effective July 1, 1954.
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