2006 New York Code - Review By Board Of Military Review And Approval By The Adjutant General.

 
    § 130.65. Review  by  board  of  military  review  and approval by the
  adjutant general.  (a) The state judge advocate shall establish a  board
  of  military  review  which  shall  be  composed  of not less than three
  officers of the organized militia or on the state reserve list or  state
  retired list, each of whom shall be a member of the bar of the state.
    (b) The state judge advocate shall refer to a board of military review
  the record in each case of trial by court-martial:
    (1)  in  which  the  sentence, as approved, extends to, dismissal of a
  commissioned officer, dishonorable  or  bad-conduct  discharge,  or  any
  confinement; and
    (2) the right to appellate review has not been waived or an appeal has
  not been withdrawn under section 130.61 of this article.
    (c)  In  a  case  referred to it, the board of military review may act
  only with respect to the  findings  and  sentence  as  approved  by  the
  convening  authority. It may affirm only such findings of guilty and the
  sentence or such part or amount of the sentence, as it finds correct  in
  law  and  fact and determines, on the basis of the entire record, should
  be approved.   In considering the record, it  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.
    (d)  If  the  board  of  military  review  sets aside the findings and
  sentence, it may, except where the setting aside is  based  on  lack  of
  sufficient  evidence  in  the  record  to  support the findings, order a
  rehearing. If it sets aside the findings and sentence and does not order
  a rehearing, it shall order that the charges be dismissed.
    (e) The action taken by the board of review shall be  subject  to  the
  approval  of  the  adjutant general. If the adjutant general disapproves
  the action taken by the board of review, he may take any action  on  the
  sentence  or  findings  that  could  be taken by the convening authority
  under section 130.60 of this article.
    (f) The state judge advocate shall, unless  there  is  to  be  further
  action  by the governor, instruct the convening authority to take action
  in accordance with the decision of  the  board  of  military  review  as
  approved  by  the  adjutant general. If the board of military review has
  ordered a rehearing  but  the  convening  authority  finds  a  rehearing
  impracticable, he may dismiss the charges.
    (g)  No  member  of  a  board  of military review shall be eligible to
  review the record of any trial if such member  served  as  investigating
  officer  in  the  case or served as a member of the court-martial before
  which such trial was conducted, or served as military  judge,  trial  or
  defense counsel, or reviewing officer of such trial.