THE CONVENING AUTHORITY'S REVIEW

The CA is the CO of the unit or, for the purpose of review, may be a successor in command or the OEGCMJ. The person who convenes the court-martial in a particular case normally is the CA who takes initial action on the record of trial. The power of the CA to take action rests in the office, not in the person.

When an assigned commander is not present for duty with his or her command because of incapacitation, leave, or for any other cause, the commissioned officer temporarily succeeding to command during that absence is the officer commanding for the time being and, as such, is authorized to take initial action on the record of trial. When it is impractical for the person who convened the court or the officer commanding for the time being or a successor in command to take initial action on the record of trial, this review may be taken by any OEGCMJ.

Matters Submitted By the Accused

A copy of the record of trial must be served on the accused as soon as the record has been authenticated. This provides the accused with the opportunity to submit any written matters that may affect CA's decision whether or not to approve the trial results. The content of such matters is not subject to the Military Rules of Evidence and could include the following:

Allegations of error affecting the legality of the findings and/or sentence

Portions or summaries of the record and copies of documentary evidence offered or introduced at the trial

Matters in mitigation that were not available for consideration at the trial

Clemency recommendations (the defense may ask any person for such a recommendation, including the members, military judge, or TC)

The option of the accused to submit matters to the CA must be exercised within specifically defined time periods. Except in an SCM case, submission of matters by the accused must be made within 10 days after the accused is served with an authenticated record of trial and, if applicable, the service on the accused of the recommendation of the SJA or the LO. In an SCM case, submission must be made within 7 days after the sentence is announced. If the accused shows that additional time is required to submit matters, the CA may, for good cause shown, extend the applicable period stated previously for not more than an additional 20 days.

Recommendation of the Staff Judge Advocate or Legal Officer

In addition to the input from the accused, the CA must receive a written recommendation from his or her SJA or LO before taking action on a GCM or an SPCM _{involving a BCD.} As required by JAG/COMNAV-LEGSVCCOMINST 5814.1 an SJA/legal offficer recommendation checklist must be attached to the original record of trial at this point. The SJA/legal officer is responsible for using this form to assist in the preparation of the recommendation.

Care must be taken to make sure the SJA or the LO _{is not disqualified} from submitting this recommendation. Disqualification will result when the SJA or the LO acted as a member, military judge, TC, assistant TC, or, more commonly, the investigating officer in the case. If the SJA or the LO is disqualified, the CA may request that another SJA be designated to prepare the recommendation.

The purpose of this recommendation is to assist the CA in deciding what action to take on the case. The recommendation must be a concise written communication summarizing the following: . The findings and sentence adjudged . A summary of the accused's service record, to include length and character of service, awards and decorations received, and any records of nonjudicial punishment (NJP) and/or previous convictions . A statement of the nature and duration of any pretrial restraint l A statement of any action the CA is obligated to take under a PTA or a statement on why the CA is not obligated to take specific action under the agreement . A specific recommendation as to the action to be taken by the CA on the sentence

Identifying legal errors is not one of the required goals of this recommendation. In cases of acquittal of all charges and specifications, and cases where the proceedings were terminated before findings with no further action contemplated, the SJA's or the LO's recommendation is not required.

A sample letter addressing the SJA's recommendations is illustrated in figure 8-3.

Before you send the record of trial and the recommendation of the SJA to the CA for action, the SJA or the LO will cause a copy of the recommendation to be served on the counsel for the accused. A separate copy will be served on the accused. If it is impractical to serve the recommendation on the accused, the accused's copy will be sent to the accused's DC. A statement will be attached to the record explaining why the accused was not personally served. Figure 8-4 shows you an example of a memorandum forwarding the SJA's recommendations to the DC. The DC must acknowledge receipt of the SJA's recommendations. Figure 8-4, enclosure (2), is an acknowledgement receipt that the DC must fill out and return to the SJA. This is for the purpose of determining the date the DC received the recommendations of the SJA. Figure 8-5 illustrates the type of letter to use for receipt of the SJA's recommendations by the DC.

The accused's counsel has 10 days from the service of the record of trial or receipt of the recommendations, whichever is later, to submit written comments on the recommendation for consideration by the CA. These comments may include corrections or rebuttals to any matter in the recommendation believed to be erroneous, inadequate, or misleading, and may comment on any other matters desired. The SJA or the LO may supplement his or her recommendation based upon the DC's response. Figure 8-6 is an example of a response from a DC to an SJA's recommendation. 

Action By the Convening Authority

The first official action to be taken with respect to the results of trial is the CA's action. All materials submitted by the accused, the SJA and/or the LO, and the DC are preparatory to this official review. The CA may take action only after the applicable time periods have expired or the accused has waived the right to present matters, whichever is earlier. As required by JAG/COMNAVLEGSVCCOMINST 5814.1, use the CA's action checklist to assist in thc preparation of the CA's action and attach this checklist to the original record of trial.

The CA's action is a legal document attached to the record of trial setting forth, in prescribed language, the CA's decisions and orders with respect to the sentence, the confinement of the accused, and further disposition of the case. The action will be signed personally by the CA, and the CA's authority to sign will appear below his or her signature. The action taken with respect to the sentence is a matter falling within the CA's sole discretion. The CA may for any reason or no reason

Figure 8-3.-Staff Judge advocate's recommendation.

Figure 8-3.-Staff judge advocate's recommendation-Continued.

disapprove a legal sentence in whole or in part. He or she can also mitigate it, suspend it, or change a punishment to one of a different nature as long as the severity of the sentence is not increased. His or her decision is a matter of command prerogative and is made in the interests of justice, discipline, mission requirements, clemency, and other appropriate reasons.

In taking his or her action, the CA is required to consider the results of trial, the SJA's and/or the LO's recommendation when required, and any matters submitted by the accused. Additionally, the CA may consider the record of trial, personnel records of the accused, and such other matters deemed appropriate by

the CA. In matters considered outside of the record, of which the accused is not reasonably aware, the matters should be disclosed to the accused to provide an opportunity for his or her rebuttal.

The CA will not take action approving or disapproving a finding of not guilty, a finding of not guilty only by reason of lack of mental responsibility, or a ruling amounting to a finding of not guilty.

Appendix 16, Manual for Courts-Martial (MCM), 1984, contains sample forms of action for an SCM, an SPCM, and a GCM. One or more of these forms are appropriate to implement the decisions of the CA in virtually every case. Deviation from these forms is risky

Figure 8-4.-Memorandum forwarding staff judge advocate's recommendation to detailed defense counsel.

Figure 8-5.-Defense counsel's acknowledgement of receipt of staff judge advocate's recommendation.

Figure 8-6.-Detailed defense counsel's response to staff judge advocate's recommendation.

and usually leads to trouble unless the drafter is experienced.

The CA may recall and modify any action taken by him or her at any time before it has been published or before the accused has been officially notified. In addition, in any SPCM not involving a BCD or an SCM, the CA may recall and correct an illegal, erroneous, incomplete, or ambiguous action at any time before completion of review by a judge advocate, as long as the correction does not result in action less favorable to the accused than the earlier action. The CA must personally sign any supplementary or corrective action.

If any findings of guilty are disapproved, the action must state that. If a rehearing is not ordered, the affected charges and specifications will be dismissed by the CA in the action. If a rehearing or other trial is directed, the reasons for the disapproval of the findings will be set forth in the action.

The action will state whether the sentence adjudged by the court-martial is approved. If only part of the sentence is approved, the action will state which parts are approved. A rehearing may not be directed if any portion of the sentence is approved. The action will indicate, when appropriate, whether an approved sentence is to be executed or whether the execution of all or any part of the sentence is to be suspended. No reasons need to be stated. If the CA orders a sentence of confinement into execution, the CA will designate the place of confinement in the action. If a sentence of confinement is ordered into execution after the initial action of the CA, the authority ordering the execution will designate the place of confinement.

When a record of trial involves an approved sentence to death, the CA will, unless any approved sentence of confinement has been ordered into execution and a place of confinement designated, provide in the action for the temporary custody of the accused pending final disposition of the case on appellate review.

Whenever the service of the sentence to confinement is deferred by the CA before or concurrently with the initial action in the case, the action will include the date on which the deferment became effective. The reason for the deferment dots not have to be stated in the action.

When the military judge directs that the accused receive credit for illegal pretrial confinement, the CA will so direct the credit in his or her action.

The CA will include in the action any reprimand that the CA has ordered executed.

If the accused was awarded a punitive discharge or confinement in excess of 90 days (awarded in days) or 3 months (awarded in months), the CA's action must address the issue of automatic administrative reduction. In his or her sole discretion, the CA may remit the automatic reduction, or he or she may retain the accused in the paygrade held at the time of sentence or in an intermediate paygrade and suspend the automatic reduction to paygrade E-1 that would otherwise be effected under Article 58a(a), Uniform Code of Military Justice (UCMJ). Additionally, the CA may direct that the accused serve in paygrade E-1 while in confinement but be returned to the paygrade held at the time of sentence or an intermediate paygrade upon release from confinement. Failure of the CA to address automatic reduction will result in the automatic reduction to paygrade E-1 on the date of the CA's action.

Figures 8-7, 8-8, 8-9, and 8-10 show examples of the CA's action. Figure 8-7 illustrates approval of part of the sentence and partial order of execution of the sentence awarded at trial. Figure 8-8 illustrates a CA's action on an acquittal. Figure 8-9 shows an example of a CA's action when the sentence adjudged by the court is approved by the CA and all but the BCD is ordered executed. Figure 8-10 illustrates a CA's action wherein the sentence awarded at trial is approved and ordered executed. These are the most common forms of the CA's action. However, as stated earlier, appendix 16, MCM, contains sample forms for action and should be referred to when drafting the action of the CA.

After taking action, the CA will publish the results of the trial and the CA's action in a legal document called a promulgating order.