N.Y. Comp. Codes R. & Regs. tit. 9 § 516.11

Current through Register Vol. 46, No. 25, June 18, 2024

Section 516.11 - Post-trial procedure

(a) Report of result of trial; post-trial restraint; deferment of confinement.

(1) Report of the result of trial. After final adjournment of the court-martial in a case, the trial counsel must promptly notify the accused's immediate commander, the convening authority or the convening authority's designee, and, if appropriate, the officer in charge of the confinement facility of the findings and sentence (See ML, 130.60[a]).

(2) Post-trial confinement.

(i) In general. An accused may be placed in post-trial confinement if the sentence adjudged by the court-martial includes confinement (ML, 130.57[b]).

(ii) Who may order confinement. Unless limited by superior authority, a commander of the accused may order the accused into post-trial confinement when post-trial confinement is authorized under subparagraph (i) of this paragraph. A commander authorized to order post-trial confinement under this paragraph may delegate this authority to the trial counsel.

(iii) Confinement on other grounds. Nothing in this subdivision prohibits confinement of a person after a court-martial on proper grounds other than the offenses for which the accused was tried at that court-martial.

(3) Deferment of confinement.

(i) In general. Deferment of a sentence to confinement is a postponement of the service and of the running of the sentence (ML, 130.57[d]).

(ii) Who may defer. The convening authority or, if the accused is no longer in the convening authority's jurisdiction, the officer exercising general court-martial jurisdiction over the command to which the accused is assigned, may, upon written application of the accused, at any time after the adjournment of the court-martial, defer the accused's service of a sentence to confinement which has not been ordered executed.

(iii) Action on deferment request. The authority acting on the deferment request may, in that authority's discretion, defer service of a sentence to confinement. The accused has the burden to show that the interests of the accused and the community in release outweigh the community's interests in confinement. Factors that the authority acting on a deferment request may consider in determining whether to grant the deferment request include: the probability of the accused's flight; the probability of the accused's commission of other offenses, intimidation of witness, or interference with the administration of justice; the nature of the offenses (including the effect on the victim) of which the accused was convicted; the sentence adjudged; the command's immediate need for the accused; the effect of deferment on good order and discipline in the command; and the accused's character, mental condition, family situation, and service record. The decision of the authority acting on the deferment shall be subject to judicial review only for abuse of discretion. The action of the convening authority shall be written and a copy shall be provided to the accused.

(iv) Orders. The action granting deferment must be reported in the convening authority's action under N.Y.R.C.M. 1107(f)(4)(E) and must include the date of the action on the request when it occurs prior to or concurrently with the action. Action granting deferment after the convening authority's action under N.Y.R.C.M. 1107 must be reported in orders under N.Y.R.C.M. 1114 and included in the record of trial.

(v) Restraint when deferment is granted. When deferment of confinement is granted, no form of restraint or other limitation on the accused's liberty may be ordered as a substitute form of punishment.

(vi) End of deferment. Deferment of a sentence to confinement ends when:

(a) the convening authority takes action under N.Y.R.C.M. 1107, unless the convening authority specifies in the action that service of confinement after the action is deferred;

(b) the confinement is suspended;

(c) the deferment expires by it own terms; or

(d) the deferment is otherwise rescinded in accordance with subparagraph (vii) of this paragraph.

Deferment of confinement may not continue after the conviction is final under N.Y.R.C.M. 1209.

(vii) Rescission of deferment.

(a) Who may rescind. The authority who granted the deferment or, if the accused is no longer within that authority's jurisdiction, the officer exercising general court-martial jurisdiction over the command to which the accused is assigned, may rescind the deferment.

(b) Action. Deferment of confinement may be rescinded when additional information is presented to a proper authority which, when considered with all other information in the case, that authority finds, in that authority's discretion, is grounds for denial of deferment under subparagraph (iii) of this paragraph. The accused must promptly be informed of the basis for the rescission and of the right to submit written matters in the accused's behalf and to request that the rescission be reconsidered. However, the accused may be required to serve the sentence to confinement pending this action.

(c) Execution. When deferment is rescinded after the convening authority's action under N.Y.R.C.M. 1107, the confinement may be ordered executed. However, no such order may be issued within seven days of notice of the rescission to the accused under clause (b) of this subparagraph, to afford the accused an opportunity to respond. The authority rescinding the deferment may extend this period for good cause shown. The accused must be credited with any confinement actually served during this period.

(d) Orders. Rescission of a deferment before or concurrently with the initial action in the case must be reported in the action under N.Y.R.C.M 1107(f)(4)(E), which action includes the dates of the granting of the deferment and the rescission. Rescission of a deferment after the convening authority's action must be reported in supplementary orders in accordance with N.Y.R.C.M. 1114 and must state whether the approved period of confinement is to be executed or whether all or part of it is to be suspended.

(b) Post-trial sessions.

(1) In general. Post-trial sessions may be proceedings in revision or sessions under ML, 130.39(a). Such sessions may be directed by the military judge or the convening authority in accordance with this subdivision (See ML, 130.60[e]).

(2) Purpose.

(i) Proceedings in revision. Proceedings in revision may be directed to correct an apparent error, omission, or improper or inconsistent action by the court-martial, which can be rectified by reopening the proceedings without material prejudice to the accused.

(ii) Sessions under ML, 130.39(a). A session called under ML, 130.39(a) under this subdivision may be called for the purpose of inquiring into, and, when appropriate, resolving any matter which arises after trial and which substantially affects the legal sufficiency of any findings of guilty or the sentence.

(3) Matters not subject to post-trial sessions. Post-trial sessions may not be directed:

(i) for reconsideration of a finding of not guilty of any specification, or a ruling which amounts to a finding of not guilty;

(ii) for reconsideration of a finding of not guilty of any charge, unless the record shows a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation of some article of the code; or

(iii) for increasing the severity of the sentence unless the sentence prescribed for the offense is mandatory.

(4) When directed. The military judge may direct a post-trial session any time before the record is authenticated. The convening authority may direct a post- trial session any time before the convening authority takes initial action on the case or at such later time as the convening authority is authorized to do so by a reviewing authority, except that no proceeding in revision may be held when any part of the sentence has been ordered executed.

(5) Procedure.

(i) Personnel. The requirements of N.Y.R.C.M. 505 and 805 apply at post-trial sessions except that:

(a) For a proceeding in revision, if trial was before members and the matter subject to the proceeding in revision requires the presence of members:

(1) the absence of any members does not invalidate the proceedings if, in the case of a general court-martial, at least five members are present, or in the case of a special court-martial, at least three members are present; and

(2) a different military judge may be detailed, subject to N.Y.R.C.M. 502(c) and 902, if the military judge who presided at the earlier proceedings is not reasonably available.

(b) For a session under ML, 130.39(a), a different military judge may be detailed, subject to N.Y.R.C.M. 502(c) and 902, for good cause.

(ii) Action. The military judge must take such action as may be appropriate, including appropriate instructions when members are present. The members may deliberate in closed session, if necessary, to determine what corrective action, if any, to take.

(iii) Record. All post-trial sessions, except any deliberations by the members, must be held in open session. The record of the post-trial sessions must be prepared, authenticated, and served in accordance with N.Y.R.C.M. 1103 and 1104 and must be included in the record of the prior proceedings.

(c) Preparation of record of trial.

(1) In general. Each general, special, and summary court-martial must keep a separate record of the proceedings in each case brought before it (ML, 130.54).

(2) General courts-martial.

(i) Responsibility for preparation. The trial counsel must:

(a) under the direction of the military judge, cause the record of trial to be prepared; and

(b) cause to be retained stenographic or other notes or mechanical or electronic recordings from which the record of trial was prepared.

(ii) Contents.

(a) In general. The record of trial in each general court-martial must be separate, complete, and independent of any other document.

(b) Verbatim transcript required. The record of trial must include a verbatim written transcript of all sessions except sessions closed for deliberations and voting when:

(1) any part of the sentence adjudged exceeds that which may be adjudged by a special court-martial;

(2) a bad-conduct discharge has been adjudged.

(c) Verbatim transcript not required. If a verbatim transcript is not required under clause (b) of this subparagraph, a summarized report of the proceedings may be prepared instead of a verbatim transcript.

(d) Other matters. In addition to the matter required under clauses (b) or (c) of this subparagraph, a complete record must include:

(1) the original charge sheet or a duplicate;

(2) a copy of the convening order and any amending order(s);

(3) the request, if any, for trial by military judge alone, or that the membership of the court-martial include enlisted persons, and, when applicable, any statement by the convening authority required under N.Y.R.C.M. 503(a)(2); and

(4) exhibits, or, with the permission of the military judge, copies, photographs, or descriptions of any exhibits which were received in evidence and any appellate exhibits.

(iii) Matters attached to the record. The following matters must be attached to the record:

(a) if not used as exhibits:

(1) the report of investigation under ML, 130.32, if any;

(2) the staff judge advocate's pretrial advice under ML, 130.34, if any; and

(3) if the trial was a rehearing or new or other trial of the case, the record of the former hearing(s);

(4) written special findings, if any, by the military judge;

(b) exhibits or, with the permission of the military judge, copies, photographs, or descriptions of any exhibits which were marked for and referred to on the record but not received in evidence;

(c) any matter filed by the accused under N.Y.R.C.M. 1105, or any written waiver of the right to submit such matter;

(d) any deferment request and the action on it;

(e) explanation for any substitute authentication under N.Y.R.C.M. 1104(a)(2)(B);

(f) explanation for any failure to serve the record of trial on the accused under N.Y.R.C.M. 1104(b);

(g) the post-trial recommendation of the staff judge advocate or legal officer and proof of service on defense counsel in accordance with N.Y.R.C.M. 1106(f)(1);

(h) any response by defense counsel to the post-trial review;

(i) recommendations and other papers relative to clemency;

(j) any statement why it is impracticable to the convening authority to act;

(k) conditions of suspension, if any, and proof of service on probationer under N.Y.R.C.M. 1108;

(l) any waiver or withdrawal of appellate review under N.Y.R.C.M. 1110; and

(m) records of any proceedings in connection with vacation of suspension under N.Y.R.C.M. 1109.

(3) Special court-martial.

(i) Involving a bad-conduct discharge. The requirements of subparagraph (2)(i), clauses (2)(ii)(a), (b) and (d); and subparagraph (2)(iii) of this subdivision apply in a special court-martial in which a bad-conduct discharge has been adjudged.

(ii) Not involving a bad-conduct discharge. If the special court-martial resulted in findings of guilty but a bad-conduct discharge was not adjudged, the requirements of subparagraph (2)(i); and clauses (2)(ii)(c), (d), (2)(iii) (a)-(f), (i)-(m) of this subdivision apply.

(4) Summary courts-martial. The summary court-martial record of trial must be prepared as prescribed in N.Y.R.C.M. 1305.

(5) Acquittal; termination prior to findings. Notwithstanding paragraphs (2)- (4) of this subdivision, if the proceedings resulted in an acquittal of all charges and specifications or the proceedings were terminated by withdrawal, mistrial, or dismissal before findings, the record may consist of the original charge sheet, a copy of the convening order and amending orders (if any), and sufficient information to establish jurisdiction over the accused and the offenses (if not shown on the charge sheet).

(6) Loss of notes or recordings of the proceedings. If, because of loss of recordings or notes, or other reasons, a verbatim transcript cannot be prepared when required by clause (2)(ii)(b) or subparagraph (3)(i) of this subdivision, a record which meets the requirements of clause (2)(ii)(c) of this subdivision must be prepared, and the convening authority may:

(i) approve only so much of the sentence which could be adjudged by a special court-martial, except that no bad-conduct discharge may be approved; or

(ii) direct a rehearing as to any offense of which the accused was found guilty if the finding is supported by the summary of the evidence contained in the record, provided that the court-martial in a rehearing may not adjudge any sentence in excess of that adjudged by the earlier court-martial.

(7) Copies of the record of trial.

(i) General and special courts-martial.

(a) In general. In general and special courts-martial which require a verbatim transcript under paragraphs (2) or (3) of this subdivision, the trial counsel must cause to be prepared an original and four copies of the record of trial. In all other general and special courts-martial the trial counsel must cause to be prepared an original and one copy of the record of trial.

(b) Additional copies. The convening or higher authority may direct that additional copies of the record of trial of any general or special court-martial be prepared.

(ii) Summary court-martial. Copies of the summary court-martial record of trial must be prepared as prescribed in N.Y.R.C.M. 1305(b).

(8) Security classification. If the record of trial contains matter which must be classified under applicable security regulations, the trial counsel must cause a proper security classification to be assigned to the record of trial and on each page thereof on which classified material appears.

(9) Examination and correction before authentication.

(i) General and special courts-martial.

(a) Examination and correction by trial counsel. In general and special courts-martial, the trial counsel must examine the record of trial before authentication and cause those changes to be made which are necessary to report the proceedings accurately. The trial counsel cannot change the record after authentication.

(b) Examination by defense counsel. Except when unreasonable delay will result, the trial counsel must permit the defense counsel to examine the record before authentication.

(ii) Summary courts-martial. The summary court-martial must examine and correct the summary court-martial record of trial as prescribed in N.Y.R.C.M. 1305(a).

(d) Records of trial: authentication; service; loss; correction; forwarding.

(1) Authentication.

(i) In general. A record is authenticated by the signature of a person specified in this subdivision who thereby declares that the record accurately reports the proceedings. No person may be required to authenticate a record of trial if that person is not satisfied that it accurately reports the proceedings.

(ii) General and special courts-martial.

(a) Authentication by the military judge. In special courts-martial in which a bad-conduct discharge has been adjudged and in general courts-martial, except as provided in clause (b) of this subparagraph, the military judge present at the end of the proceedings authenticates the record of trial, or that portion over which the military judge presided. If more than one military judge presided over the proceedings, each military judge authenticates the record of the proceedings over which that military judge presided, except as provided in clause ( b) of this subparagraph. The record of trial of special court-martial in which no bad-conduct discharge was adjudged is also authenticated by the military judge as set forth above.

(b) Substitute authentication. If the military judge cannot authenticate the record of trial because of the military judge's death, disability, or absence, the trial counsel present at the end of the proceedings authenticates the record of trial. If the trial counsel cannot authenticate the record of trial because of the trial counsel's death, disability, or absence, a member authenticates the record of trial. In a court-martial composed of a military judge alone, or as to sessions without members, the court reporter authenticates the record of trial when this duty would fall upon a member under this paragraph. A person authorized to authenticate a record under this paragraph may authenticate the record only as to those proceedings at which that person was present.

(iii) Summary courts-martial. The summary court-martial authenticates the summary court-martial record of trial as prescribed in N.Y.R.C.M. 1305(a).

(2)

(i) Service.

(a) Service of record of trial on accused. In each general and special court-martial, except as provided in clause (c) or (d) of this subparagraph, the trial counsel must cause a copy of the record of trial to be served on the accused as soon as the record of trial is authenticated.

(b) Proof of service of record of trial on accused. The trial counsel must cause the accused's receipt for the copy of the record of trial to be attached to the original record of trial. If it is impracticable to secure a receipt from the accused before the original record of trial is forwarded to the convening authority, the trial counsel must prepare a certificate indicating that a copy of the record of trial has been transmitted to the accused, including the means of transmission and the address, and cause the certificate to be attached to the original record of trial. In such a case the accused's receipt must be forwarded to the convening authority as soon as it is obtained.

(c) Substitute service. If it is impracticable to serve the record of trial on the accused because of the transfer of the accused to a distant place, the unauthorized absence of the accused, or military exigency, or if the accused so requests on the record at the court-martial or in writing, the accused's copy of the record must be forwarded to the accused's defense counsel, if any. Trial counsel must attach a statement to the record explaining why the accused was not served personally. If the accused has more than one counsel, N.Y.R.C.M. 1106(f)(2) applies. If the accused has no counsel and if the accused is absent without authority, the trial counsel must prepare an explanation for the failure to serve the record. The explanation and the accused's copy of the record must be forwarded with the original record. The accused must be provided with a copy of the record as soon as practicable.

(d) Classified information.

(1) Forwarding to convening authority. If the copy of the record of trial prepared for the accused contains classified information, the trial counsel, unless directed otherwise by the convening authority, must forward the accused's copy to the convening authority, before it is served on the accused.

(2) Responsibility of the convening authority. The convening authority must:

(i) cause any classified information to be deleted or withdrawn from the accused's copy or the record of trial;

(ii) cause a certificate indicating that classified information has been deleted or withdrawn to be attached to the record of trial; and

(iii) cause the expurgated copy of the record of trial and the attached certificate regarding classified information to be served on the accused as provided in clauses (a) and (b) of this subparagraph except that the accused's receipt must show that the accused has received an expurgated copy of the record of trial.

(3) Contents of certificate. The certificate regarding deleted or withdrawn classified information must indicate:

(i) that the original record of trial may be inspected in the files of the Adjutant General under such conditions as may directed by the Chief of Staff to the Governor;

(ii) the pages of the record of trial from which matter has been deleted;

(iii) the pages of the record of trial which have been entirely deleted; and

(iv) the exhibits which have been withdrawn.

(ii) Summary courts-martial. The summary court-martial record of trial is disposed of as provided in N.Y.R.C.M. 1305(e). Clause (d) of this paragraph applies if classified information is included in the record of trial of a summary court-martial.

(3) Loss of record. If the authenticated record of trial is lost or destroyed, the trial counsel must, if practicable, cause another record of trial to be prepared for authentication. The new record of trial becomes the record of trial in the case if the requirements of N.Y.R.C.M. 1103 and this subdivision are met.

(4) Correction of record after authentication; certificate of correction.

(i) In general. A record of trial found to be incomplete or defective after authentication may be corrected to make it accurate. A record of trial may be returned to the convening authority by superior competent authority for correction under this subdivision.

(ii) Procedure. An authenticated record of trial believed to be incomplete or defective may be returned to the military judge or summary court-martial for a certificate of correction. The military judge or summary court-martial must give notice of the proposed correction to all parties and permit them to examine and respond to the proposed correction before authenticating the certificate of correction. All parties must be given reasonable access to any original reporter's notes or tapes of the proceedings.

(iii) Authentication of certificate of correction; service on the accused. The certificate of correction must be authenticated as provided in paragraph (1) of this subdivision and a copy served on the accused as provided in paragraph (2) of this subdivision. The certificate of correction and the accused's receipt for the certificate of correction must be attached to each copy of the record of trial required to be prepared under N.Y.R.C.M. 1103(g).

(5) Forwarding. After every court-martial, including a rehearing and new and other trials, the authenticated record must be forwarded to the convening authority for initial review and action, provided that in case of a special court-martial in which a bad-conduct discharge was adjudged or any court-martial in which confinement at hard labor was adjudged or a general court-martial, the convening authority must refer the record to the staff judge advocate or legal officer for a recommendation under N.Y.R.C.M. 1106 before the convening authority takes action (ML, 130.60[d]).

(e) Matters submitted by the accused.

(1) In general. After a sentence is adjudged in any court-martial, the accused may submit matters to the convening authority in accordance with this subdivision (ML, 130.60).

(2) Matters which may be submitted. The accused may submit to the convening authority any written matters which may reasonably tend to affect the convening authority's decision whether to disapprove any findings of guilty or to approve the sentence. Such matters are not subject to the Military Rules of Evidence and may include:

(i) allegations of errors affecting the legality of the findings or sentence;

(ii) portions or summaries of the record and copies of documentary evidence offered or introduced at trial;

(iii) matters in mitigation which were not available for consideration at the court-martial; and

(iv) clemency recommendations by any member, the military judge, or any other person. The defense may ask any person for such a recommendation.

(3) Time periods.

(i) General courts-martial and special courts-martial in which a bad-conduct discharge was adjudged. After a general court-martial or after a special court-martial in which a bad-conduct discharge was adjudged, the accused may submit matters under this subdivision within 30 days after the sentence was announced or within seven days after a copy of the record of trial is served on the accused under N.Y.R.C.M. 1104(b)(1), whichever is later. The convening authority may, for good cause, extend the 30-day period for not more than 20 additional days or the seven-day period for not more than 10 additional days.

(ii) Other special courts-martial. After a special court-martial in which a bad-conduct discharge was not adjudged, the accused may submit matters under this subdivision within 20 days after the sentence is announced or within seven days after a copy of the record of trial is served on the accused under N.Y.R.C.M. 1104(b)(1), whichever is later. The convening authority may, for good cause, extend either period for not more than 10 additional days.

(iii) Summary courts-martial. After a summary court-martial the accused may submit matters under this subdivision within seven days after the sentence is announced. The convening authority, for good cause, may extend this period for not more than 10 additional days.

(iv) Post-trail sessions. A post-trial session under N.Y.R.C.M. 1102 has no effect on the running of any time period in this subdivision, except when such session results in the announcement of a new sentence, in which case the period runs from that announcement.

(v) Good cause. For purposes of this subdivision, good cause for an extension ordinarily does not include the need for securing matters which could reasonably have been presented at the court-martial.

(4) Waiver.

(i) Failure to submit matters. Failure to submit matters within the time prescribed by this subdivision is a waiver of the right to submit such matters.

(ii) Submission of matters. Submission of any matters under this subdivision is a waiver of the right to submit additional matters unless the right to submit additional matters within the prescribed time limits is expressly reserved in writing.

(iii) Written waiver. The accused may expressly waive, in writing, the right to submit matters under this subdivision. Once filed, such waiver may not be revoked (ML, 130.60[b][4]).

(iv) Absence of the accused. If, as a result of the unauthorized absence of the accused, the record cannot be served on the accused in accordance with N.Y.R.C.M. 1104(b)(1) and if the accused has no counsel to receive the record, the accused is deemed to have waived the right to submit matters under this subdivision within the time limit which begins upon service on the accused of the record of trial.

(f) Recommendation of the staff judge advocate or legal officer.

(1) In general. Before the convening authority takes action under N.Y.R.C.M. 1107 on a record of trial by general court-martial or a record of trial by special court-martial which includes a sentence to a bad-conduct discharge or any court-martial in which confinement of hard labor, that convening authority's staff judge advocate or legal officer must, except as provided in paragraph (3) of this subdivision, forward to the convening authority a recommendation under this subdivision (ML, 130.60[d]).

(2) Disqualification. No person who has acted as member, military judge, trial counsel, assistant trial counsel, defense counsel, associate or assistant defense counsel, or investigating officer in any case may later act as a staff judge advocate or legal officer or any reviewing or convening authority in the same case.

(3) When the convening authority has no staff judge advocate.

(i) When the convening authority does not have a staff judge advocate or legal officer or that person is disqualified. If the convening authority does not have a staff judge advocate or legal officer, or if the person serving in that capacity is disqualified under paragraph (2) of this subdivision or otherwise, the convening authority must:

(a) request the assignment of another staff judge advocate or legal officer to prepare a recommendation under this subdivision; or

(b) forward the record for action to any officer exercising general court-martial jurisdiction as provided in N.Y.R.C.M. 1107(a).

(ii) When the convening authority has a legal officer but wants the recommendation of a staff judge advocate. If the convening authority has a legal officer but no staff judge advocate, the convening authority may, as a matter of discretion, request designation of a staff judge advocate to prepare the recommendation.

(4) Form and content of recommendation.

(i) In general. The purpose of the recommendation of the staff judge advocate or legal officer is to assist the convening authority to decide what action to take on the sentence in the exercise of command prerogative. The staff judge advocate or legal officer must use the record of trial in the preparation of the recommendation.

(ii) Form. The recommendation of the staff judge advocate or legal officer must be a concise written communication.

(iii) Required contents. Except as provided in paragraph (5) of this subdivision, the recommendation of the staff judge advocate or legal officer must include concise information as to:

(a) the findings and sentence adjudged by the court-martial;

(b) a summary of the accused's service record, to include length and character of service, awards and decorations received, and any records of non-judicial punishment and previous convictions;

(c) a statement of the nature and duration of any pretrial restraint;

(d) if there is a pretrial agreement, a statement of any action the convening authority is obligated to take under the agreement or a statement of the reasons why the convening authority is not obligated to take specific action under the agreement; and

(e) a specific recommendation as to the action to be taken by the convening authority on the sentence.

(iv) Legal errors. The staff judge advocate or legal officer is not required to examine the record for legal errors. However, when the recommendation is prepared by a staff judge advocate, the staff judge advocate must state whether, in the staff judge advocate's opinion, corrective action on the findings or sentence should be taken when an allegation of legal error is raised in matters submitted under N.Y.R.C.M. 1105 or when otherwise deemed appropriate by the staff judge advocate. The response may consist of a statement of agreement or disagreement with the matter raised by the accused. An analysis or rationale for the staff judge advocate's statement, if any, concerning legal errors is not required.

(v) Optional matters. The recommendation of the staff judge advocate or legal officer may include, in addition to matters included under subparagraphs (iii) and (iv) of this paragraph, any additional matters deemed appropriate by the staff judge advocate or legal officer. Such matters may include matters outside the record.

(vi) Effect of error. In case of error in the recommendation not otherwise waived under subparagraph (6)(vi) of this subdivision, appropriate corrective action must be taken by appellate authorities without returning the case for further action by a convening authority.

(5) No findings of guilty. If the proceedings resulted in an acquittal of all charges and specifications or if, after the trial began, the proceedings were terminated without findings and no further action is contemplated, a recommendation under this subdivision is not required.

(6) Service of recommendation on defense counsel; defense response.

(i) Service of recommendation on defense counsel. Before forwarding the recommendation and the record of trial to the convening authority for action under N.Y.R.C.M. 1107, the staff judge advocate or legal officer must cause a copy of the recommendation to be served on counsel for the accused (ML, 130.60 [d]).

(ii) Counsel for the accused. The accused may, at trial or in writing to the staff judge advocate or legal officer before the recommendation has been served under this subdivision, designate which counsel (detailed, individual military, or civilian) will be served with the recommendation. In the absence of such designation, the staff judge advocate or legal officer must cause the recommendation to be served in the following order of precedence, as applicable, on:

(a) civilian counsel;

(b) individual military counsel; or

(c) detailed defense counsel. If the accused has not retained civilian counsel and the detailed defense counsel and individual military counsel, if any, have been relieved or are not reasonably available to represent the accused, substitute military counsel to represent the accused must be detailed by an appropriate authority. Substitute counsel must enter into an attorney-client relationship with the accused before examining the recommendation and preparing any response.

(iii) Record of trial. The staff judge advocate or legal officer must, upon request of counsel for the accused served with the recommendation, provide that counsel with a copy of the record of trial for use while preparing the response to the recommendation.

(iv) Response. Counsel for the accused may submit, in writing, corrections or rebuttal to any matter in the recommendation believed to erroneous, inadequate, or misleading, and may comment on any other matter.

(v) Time period. Counsel for the accused has five days from receipt in which to submit comments on the recommendation. The convening authority may, for good cause, extend the period in which comments may be submitted for up to 20 additional days (ML, 130.60[d]).

(vi) Waiver. Failure of counsel for the accused to comment on any matter in the recommendation or matters attached to the recommendation in a timely manner waives later claim of error with regard to such matter in the absence of plain error.

(vii) New matter in addendum to recommendation. The staff judge advocate or legal officer may supplement the recommendation after counsel for the accused has been served with the recommendation and given an opportunity to comment. When new matter is introduced after counsel for the accused has examined the recommendation, however, counsel for the accused must be served with the new matter and given a further opportunity to comment.

(g) Action by convening authority.

(1) Who may take action. The convening authority must take action on the sentence and, in the discretion of the convening authority, the findings, unless it is impracticable. If it is impracticable for the convening authority to act, the convening authority must forward the case to an officer exercising general court-martial jurisdiction who may take action under this subdivision.

(2) General considerations.

(i) Discretion of convening authority. The action to be taken on the findings and sentence is within the sole discretion of the convening authority. Determining what action to take on the findings and sentence of a court-martial is a matter of command prerogative. The convening authority is not required to review the case for legal errors or factual sufficiency (ML, 130.60[c]).

(ii) When action may be taken. The convening authority may take action only after the applicable time periods under N.Y.R.C.M. 1105(c) have expired or the accused has waived the right to present matters under N.Y.R.C.M. 1105(d), whichever is earlier.

(iii) Matters considered.

(a) Required matters. Before taking action, the convening authority must consider:

(1) the result of trial;

(2) the recommendation of the staff judge advocate or legal officer under N.Y.R.C.M. 1106, if applicable; and

(3) any matters submitted by the accused under N.Y.R.C.M. 1105 or, if applicable, N.Y.R.C.M. 1106(f).

(b) Additional matters. Before taking action the convening authority may consider:

(1) the record of trial;

(2) the personnel records of the accused; and

(3) such other matters as the convening authority deems appropriate. However, if the convening authority considers matters adverse to the accused from outside the record, with knowledge of which the accused is not chargeable, the accused must be notified and given an opportunity to rebut.

(iv) When proceedings resulted in a finding of not guilty or there was a ruling amounting to a finding of not guilty. The convening authority cannot take any action approving or disapproving a finding of not guilty or a ruling amounting to a finding of not guilty.

(v) Action when accused lacks mental capacity. The convening authority may not approve a sentence while the accused lacks mental capacity to understand and to conduct or cooperate intelligently in the post-trial proceedings. In the absence of substantial evidence to the contrary, the accused is presumed to have the capacity to understand and to conduct or cooperate intelligently in the post-trial proceedings. If a substantial question is raised as to the requisite mental capacity of the accused, the convening authority may direct an examination of the accused in accordance with N.Y.R.C.M. 706 before deciding whether the accused lacks mental capacity, the examination may be limited to determining the accused's present capacity to understand and cooperate in the post-trial proceedings. The convening authority may approve the sentence unless it is established, by a prepondarance of the evidence--including matters outside the record of trial--that the accused does not have the requisite mental capacity. Nothing in this paragraph prohibits the convening authority from disapproving the findings of guilty and sentence.

(3) Action on findings. Action on the findings is not required. However, the convening authority may, in the convening authority's sole discretion:

(i) 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; or

(ii) Set aside any finding of guilty and:

(a) dismiss the specification and, if appropriate, the charge; or

(b) direct a rehearing in accordance with paragraph (5) of this subdivision.

(4) Action on the sentence.

(i) In general. The convening authority may for any or no reason disapprove a legal sentence in whole or in part, mitigate the sentence, and change a punishment to one of a different nature as long as the severity of the punishment is not increased. The convening or higher authority may not increase the punishment imposed by a court-martial. The approval or disapproval must be explicitly stated.

(ii) Determining what sentence should be approved. The convening authority must approve that sentence which is warranted by the circumstances of the offense and appropriate for the accused. When the court-martial has adjudged a mandatory punishment, the convening authority may nevertheless approve a lesser sentence.

(iii) Limitations on sentence based on record of trial. If the record of trial does not meet the requirements of N.Y.R.C.M. 1103(b)(2)(B) or (c)(1), the convening authority may not approve a sentence in excess of that which may be adjudged by a special court-martial, or one which includes a bad-conduct discharge.

(5) Ordering rehearing or other trial.

(i) Rehearing.

(a) In general. Subject to clause (b) through (e) of this subparagraph, the convening authority may in the convening authority's discretion order a rehearing. A rehearing may be ordered as to some or all offenses of which findings of guilty were entered and the sentence, or as to sentence only (ML, 130.60[e]).

(b) When the convening authority may order a rehearing. The convening authority may order a rehearing:

(1) when taking action on the court-martial under this subdivision;

(2) in cases subject to review by the Board of Military Review, before the case is forwarded under N.Y.R.C.M. 1111(a)(1) or (b)(1), but only as to any sentence which was approved or findings of guilty which were not disapproved in any earlier action. In such a case, a supplemental action disapproving the sentence and some or all of the findings, as appropriate, must be taken; or

(3) when authorized to do so by superior competent authority. If the convening authority finds a rehearing as to any offenses impracticable the convening authority may dismiss those specifications and, when appropriate, charges.

(c) Limitations.

(1) Sentence approved. A rehearing cannot be ordered if, in the same action, a sentence is approved.

(2) Lack of sufficient evidence. A rehearing cannot be ordered as to findings of guilty when there is a lack of sufficient evidence in the record to support the findings of guilty of the offense charged or of any lesser included offense. A rehearing may be ordered, however, if the proof of guilt consisted of inadmissible evidence for which there is available an admissible substitute. A rehearing may be ordered as to any lesser offense included in an offense of which the accused was found guilty, provided there is sufficient evidence in the record to support the lesser included offense.

(3) Rehearing on sentence only. A rehearing on sentence only cannot be referred to a different kind of court-martial from that which made the original findings.

(d) Additional charges. Additional charges may be referred for trial together with charges as to which a rehearing has been directed.

(e) Lesser included offenses. If at a previous trial the accused was convicted of a lesser included offense, a rehearing may be ordered only as to that included offense or as to an offense included in that found. If, however, a rehearing is ordered improperly on the original offense charged and the accused is convicted of that offense at the rehearing, the finding as to the lesser included offense of which the accused was convicted at the original trial may nevertheless be approved.

(ii) "Other" trial. The convening or higher authority may order an "other" trial if the original proceedings were invalid because of lack of jurisdiction or failure of a specification to state an offense. The authority ordering an "other" trial must state in the action the basis for declaring the proceedings invalid.

(6) Contents of action and related matters.

(i) In general. The convening authority must state in writing the convening authority's decision as to the sentence, whether any findings of guilty are disapproved, and orders as to further disposition. The action must be signed personally by the convening authority. The convening authority's authority to sign must appear below the signature.

(ii) Modification of initial action. The convening authority may recall and modify any action taken by that convening authority at any time before it has been published or before the accused has been officially notified. In addition, in any special court-martial not involving a bad-conduct discharge or any summary court-martial, the convening authority may recall and correct an illegal, erroneous, incomplete, or ambiguous action at any time before completion of review under N.Y.R.C.M. 1112, as long as the correction does not result in action less favorable to the accused than the earlier action. When so directed by a higher reviewing authority or the State judge advocate, the convening authority must modify any incomplete, ambiguous, void, or inaccurate action noted in review of the record of trial under ML, 130.63, 130.65, or 130.66 or examination of the record of trial under ML, 130.68. The convening authority must personally sign any supplementary or corrective action.

(iii) Findings of guilty. If any findings of guilty are disapproved, the action must so state. If a rehearing is not ordered, the affected charges and specifications must be dismissed by the convening authority in the action. If a rehearing or other trial is directed, the reasons for the disapproval must be set forth in the action.

(iv) Action on sentence.

(a) In general. The action must state whether the sentence adjudged by the court-martial is approved. If only part of the sentence is approved, the action must state which parts are approved. A rehearing may not be directed if any sentence is approved.

(b) Execution; suspension. The action must 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 be stated.

(c) Place of confinement. If the accused waives his right to appellate review or withdraws an appeal under N.Y.R.C.M. 1110 and if the convening authority orders a sentence of confinement at hard labor into execution, the convening authority must designate the place of confinement in the action. If the accused does not so waive or withdraw and if a sentence of confinement is ordered into execution after the initial action of the convening authority, the authority ordering the execution must designate the place of confinement (ML, 130.69).

(d) Deferment of service of sentence to confinement. Whenever the service of the sentence to confinement is deferred by the convening authority under N.Y.R.C.M. 1101(c) before or concurrently with the initial action in the case, the action must include the date on which the deferment became effective. The reason for the deferment need not be stated in the action.

(e) Credit for illegal pretrial confinement. When the military judge has directed that the accused receive credit under N.Y.R.C.M. 305(k), the convening authority must so direct in the action.

(f) Reprimand. The convening authority must include in the action any reprimand which the convening authority has ordered executed.

(v) Action on rehearing or new or other trial.

(a) Rehearing or other trial. In acting on a rehearing or other trial the convening authority is subject to the sentence limitations prescribed in N.Y.R.C.M. 810(d). Except when a rehearing or other trial is combined with a trial on additional offenses and except as otherwise provided in N.Y.R.C.M. 810(d), if any part of the original sentence was suspended and the suspension was not properly vacated before the order directing the rehearing, the convening authority must take the necessary suspension action to prevent an increase in the same type of punishment as was previously suspended. The convening authority may approve a sentence adjudged upon a rehearing or other trial regardless of whether any kind or amount of the punishment adjudged at the former trial has been served or executed. However, in computing the term or amount or punishment to be actually served or executed under the new sentence, the accused must be credited with any kind or amount of the former sentence included within the new sentence that was served or executed before the time it was disapproved or set aside. The convening authority must, if any part of a sentence adjudged upon a rehearing or other trial is approved, direct in the action that any part or amount of the former sentence served or executed between the date it was adjudged and the date it was disapproved or set aside must be credited to the accused. If, in the action on the record of a rehearing, the convening authority disapproves the findings of guilty of all charges and specification which were tried at the former hearing and that part of the sentence which was based on these findings, the convening authority must, unless a further rehearing is ordered, provide in the action that all rights, privileges, and property affected by any executed portion of the sentence adjudged at the former hearing must be restored. The convening authority must take the same restorative action if a court-martial at a rehearing acquits the accused of all charges and specifications which were tried at the former hearing.

(b) New trial. The action of the convening authority on a new trial must insofar as practicable, conform to the rules prescribed for rehearings and other trials in clause (a) of this subparagraph.

(7) Incomplete, ambiguous, or erroneous action. When the action of the convening or of a higher authority is incomplete, ambiguous, or contains clerical error, the authority who took the incomplete, ambiguous, or erroneous action may be instructed by an authority acting under ML, 130.63, 130.65, and 130.68 to withdraw the original action and substitute a corrected action.

(8) Service on accused. A copy of the convening authority's action must be served on the accused or on defense counsel. If the action is served on defense counsel, defense counsel must, by expeditious means, provide the accused with a copy.

(h) Suspension of execution of sentence; remission.

(1) In general. Suspension of a sentence grants the accused a probationary period during which the suspended part of an approved sentence is not executed, and upon the accused's successful completion of which the suspended part of the sentence is remitted. Remission cancels the unexecuted part of a sentence to which it applies.

(2) Who may suspend and remit. The Chief of Staff to the Governor and, when designated by him the Vice Chief of Staff to the Governor, Adjutant General, State judge advocate, or commanding officer may remit or suspend any part or amount of the unexpired part of any sentence, including all uncollected forfeitures other than a sentence approved by the Governor (ML, 130.72[a]).

(3) Conditions of suspension. The authority who suspends the execution of the sentence of a court-martial must:

(i) specify in writing the conditions of the suspension;

(ii) cause a copy of the conditions of the suspension to be served on the probationer; and

(iii) cause a receipt to be secured from the probationer for service of the conditions of the suspension.

Unless otherwise stated, an action suspending a sentence includes as a condition that the probationer not violate any punitive article of the code.

(4) Limitations on suspension.

(i) In general. Suspension must be for a stated period of time until the occurrence of an anticipated future event. The period cannot be unreasonably long. The convening authority must provide in the action that unless the suspension is sooner vacated, the expiration of the period of suspension remits the suspended portion of the sentence. An appropriate authority may, before the expiration of the period of suspension, remit any part of the sentence, including a part which has been suspended; reduce the period of suspension; or, subject to N.Y.R.C.M. 1109, vacate the suspension in whole or in part.

(ii) Suspending the execution of forfeiture. If a sentence includes a forfeiture in addition to confinement not suspended, such forfeiture may apply to pay or allowances accruing to the accused on and after the date the convening authority approves such a sentence and to any pay or allowances accrued before such date, unless the convening authority, at the time he approves the sentence, suspends the execution of that portion of the sentence pertaining to forfeitures (see ML, 130.57[a]). However, in a case involving an approved sentence of confinement and forfeiture if the convening authority does not desire to suspend the execution of the confinement or the forfeiture, but determines that the circumstances of the case warrant continuation of the accused in a pay status pending completion of appellate review, he may provide in his action that the application of the forfeiture shall be deferred until such time as the sentence as a whole is carried into execution. When the approved sentence includes a forfeiture in addition to confinement not suspended, the convening authority, unless he orders the execution, suspends the execution, or defers the applicability of the forfeitures, should include in his action on the case a statement that the approved forfeiture will apply to pay or allowances accruing to the accused on and after a certain date (naming the date) see Appendix L-2(A11), modified as above set forth. This statement will aid disbursing and personnel officers in determining the effect of the approval by the convening authority of a sentence which includes a forfeiture.

(5) Termination of suspension by remission. Expiration of the period provided in the action suspending a sentence or part of a sentence remits the suspended portion unless the suspension is sooner vacated. Death or separation which terminates status as a person subject to the code results in remission of the suspended portion of the sentence.

(i) Vacation of suspension of sentence.

(1) In general. Suspension of execution of the sentence of a court-martial may be vacated for violation of the conditions of the suspension provided in this subdivision (ML, 130.70).

(2) Timeliness.

(i) Violation of conditions. Vacation must be based on a violation of the conditions of suspension which occurs within the period of suspension.

(ii) Vacation proceedings. Vacation proceedings under this subdivision must be completed within a reasonable time.

(iii) Order vacating the suspension. The order vacating the suspension must be issued before the expiration of the period of suspension.

(iv) Interruptions to the period of suspension. Unauthorized absence of the probationer or the commencement of proceedings under this subdivision to vacate suspension interrupts the running of the period of suspension.

(3) Confinement of probationer pending vacation proceedings.

(i) In general. A probationer under a suspended sentence to confinement may be confined pending action under subparagraph (4)(ii) of this subdivision in accordance with the procedures in paragraph (3) of this subdivision.

(ii) Who may order confinement. Any person who may order confinement under N.Y.R.C.M. 304(b) may order confinement of a prohationer under a suspended sentence to confinement.

(iii) Basis for confinement. A probationer under a suspended sentence to confinement may be ordered into confinement upon probable cause to believe the probationer violated any conditions of the suspension.

(iv) Review of confinement. Unless proceedings under subparagraph (4)(i) or paragraph (5) of this subdivision are completed within seven days of imposition of confinement of the probationer (not including any delays requested by probationer), a preliminary hearing must be conducted by a neutral and detached officer appointed in accordance with these regulations.

(a) Rights of accused. Before the preliminary hearing, the accused shall be notified in writing of:

(1) the time, place, and purpose of the hearing, including the alleged violation(s) of the conditions of suspension;

(2) the right to be present at the hearing;

(3) the right to be represented at the hearing by civilian counsel provided by the probationer or, upon request, by military counsel detailed for this purpose; and

(4) the opportunity to be heard, to present witnesses who are reasonably available and other evidence, and the right to confront and cross-examine adverse witnesses unless the hearing officer determines that this would subject these witnesses to risk or harm. For purposes of this paragraph, a witness is not reasonably available if the witness requires reimbursement by the State for any cost incurred in appearing, cannot appear without unduly delaying the proceedings, or, if a military witness, cannot be excused from other important duties.

(b) Rules of evidence. Except for Mil. R. Evid. section V (Privileges) and Mil. R. Evid. 302 and 305, the Military Rules of Evidence do not apply to matters considered at the preliminary hearing under this subdivision.

(c) Decision. The hearing officer must determine whether there is probable cause to believe that the probationer violated the conditions of the probationer's suspension. If the hearing officer determines that probable cause is lacking, the hearing officer must, in writing, order the probationer released from confinement. If the hearing officer determines that there is probable cause to believe that the probationer violated the conditions of suspension, the hearing officer must set forth in a written memorandum the decision, the reasons for the decision, and the information relied on. The hearing officer must forward the original memorandum or release order to the probationer's commander and forward a copy to the probationer and the officer in charge of the confinement facility.

(4) Vacation of suspended general court-martial sentence or of a suspended special court-martial sentence including a bad-conduct discharge or of any court-martial which, as approved, includes confinement at hard labor.

(i) Action by officer having special court-martial jurisdiction over probationer.

(a) In general. Before vacation of the suspension of any general court-martial sentence, or of a special court-martial sentence which, as approved, includes a bad-conduct discharge, or of any court-martial which, as approved, includes confinement at hard labor, the officer having special court-martial jurisdiction over the probationer must personally hold a hearing on the alleged violation of the conditions of probation. If there is no officer having special court-martial jurisdiction over the accused who is subordinate to the officer having general court-martial jurisdiction over the accused, the officer exercising general court-martial jurisdiction over the accused must personally hold the hearing under this subparagraph. In such cases clause (d) of this subparagraph shall not apply.

(b) Notice to probationer. Before the hearing the authority conducting the hearing must cause the probationer to be notified of:

(1) the time, place, and purpose, of the hearing;

(2) the right to be present at the hearing;

(3) the alleged violations of the conditions of probation and the evidence expected to be relied on;

(4) the right to be represented at the hearing by civilian counsel provided by the probationer or, upon request, by military counsel detailed for this purpose; and

(5) the opportunity to be heard, to present witnesses and other evidence, and the right to confront and cross-examine adverse witnesses unless the hearing officer determines that there is good cause for not allowing confrontation and cross-examination.

(c) Hearing. The procedure for the vacation hearing must follow that prescribed in N.Y.R.C.M. 405(g), (h)(1), and (i).

(d) Record; recommendation. The officer who conducts the vacation proceeding must make a summarized record of the proceeding and forward the record and that officer's recommendation concerning vacation to the officer exercising general court-martial jurisdiction over the probationer.

(e) Release from confinement. If the special court-martial convening authority finds there is not probable cause to believe that the probationer violated the conditions of the suspension, the special court-martial convening authority must order the release of the probationer from any confinement ordered under paragraph (3) of this subdivision. The special court-martial convening authority must, in any event, forward the record and recommendation under clause (d) of this subparagraph.

(ii) Action by officer exercising general court-martial jurisdiction over probationer.

(a) In general. The officer exercising general court-martial jurisdiction over the probationer must, based upon the record produced by and the recommendation of the officer exercising special court-martial jurisdiction over the probationer, decide whether the probationer violated a condition of suspension, and, if so, whether to vacate the suspended sentence. If the officer exercising general court-martial jurisdiction decides to vacate, that officer must prepare a written statement of the evidence relied on and the reasons for vacating.

(b) Execution. Any unexecuted part of a suspended sentence ordered vacated under this subdivision must, subject to N.Y.R.C.M. 1113(C), be ordered executed.

(5) Vacation of a suspended special court-martial sentence not including a bad-conduct discharge or confinement at hard labor or of a suspended summary court-martial sentence not including confinement at hard labor.

(i) In general. Before vacation of the suspension of a special court-martial sentence not including a bad-conduct discharge, confinement at hard labor or of a summary court-martial sentence not including confinement at hard labor, the officer having authority to convene for the command in which the probationer is serving or assigned the same kind of court-martial which imposed the sentence must cause a hearing to be held on the alleged violation(s) of the conditions of suspension.

(ii) Notice to probationer. The person conducting the hearing must notify the probationer before the hearing of the rights specified in subclauses (4)(i)(b) (1),(2),(3) and (4) of this subdivision. The authority conducting the hearing must also notify the probationer that the probationer has the right to civilian counsel provided by the probationer or, upon request counsel detailed for that purpose, if the probationer was entitled to such counsel under N.Y.R.C.M. 506(a) at the court-martial which imposed the sentence.

(iii) Hearing. The procedure for the vacation hearing must follow that prescribed in N.Y.R.C.M. 405(g), (h)(1), and (i).

(iv) Record; recommendation. If the hearing is not held by the commander with authority to vacate the suspension, the person who conducts the vacation proceeding must make a summarized record of the proceeding and forward the record and that officer's written recommendation concerning vacation to the commander with authority to vacate the suspension.

(v) Decision. If the appropriate authority decides that the probationer violated a condition of suspension, and to vacate, that person must prepare a record of the hearing and a written statement indicating the decision, the reasons for the decision, and the evidence relied on.

(j) Waiver or withdrawal of appellate review.

(1) In general. After any general court-martial or any special court-martial in which the approved sentence includes a bad-conduct discharge or any court-martial in which the approved sentence includes confinement at hard labor, the accused may waive or withdraw appellate review.

(2) Right to counsel.

(i) In general. The accused has the right to consult with counsel qualified under N.Y.R.C.M. 502(d)(1) before submitting a waiver or withdrawal of appellate review.

(ii) Waiver.

(a) Counsel who represented the accused at the court-martial. The accused has the right to consult with any civilian, individual military, or detailed counsel who represented the accused at the court-martial concerning whether to waive appellate review unless such counsel has been excused under N.Y.R.C.M. 505(d)(2)(B).

(b) Associate counsel. If counsel who represented the accused at the court-martial has not been excused but is not immediately available to consult with the accused, because of physical separation or other reasons, associate defense counsel must be detailed to the accused upon request by the accused. Such counsel must communicate with counsel who represented the accused at the court-martial, and must advise the accused concerning whether to waive appellate review.

(c) Substitute counsel. If counsel who represented the accused at the court-martial has been excused under N.Y.R.C.M. 505(d)(2)(B), substitute defense counsel must be detailed to advise the accused concerning waiver of appellate rights.

(iii) Withdrawal.

(a) Appellate defense counsel. If the accused is represented by appellate defense counsel, the accused has the right to consult with such counsel concerning whether to withdraw the appeal.

(b) Associate defense counsel. If the accused is represented by appellate defense counsel, and such counsel is not immediately available to consult with the accused, because of physical separation or other reasons, associate defense counsel must be detailed to the accused, upon request by the accused. Such counsel must communicate with appellate defense counsel and must advise the accused whether to withdraw the appeal.

(c) No counsel. If appellate defense counsel has not been assigned to the accused, defense counsel must be detailed for the accused. Such counsel must advise the accused concerning whether to withdraw the appeal. If practicable, counsel who represented the accused at the court-martial is to be detailed.

(iv) Civilian counsel. Whether or not the accused was represented by civilian counsel at the court-martial, the accused may consult with civilian counsel, at no expense to the State, concerning whether to waive or withdraw appellate review.

(v) Record of trial. Any defense counsel with whom the accused consults under this subdivision must be given reasonable opportunity to examine the record of trial.

(vi) Consult. The right to consult with counsel, as used in this subdivision, does not require communication in the presence of one another.

(3) Compulsion, coercion, inducement prohibited. No person may compel, coerce, or induce an accused by force, promises of clemency, or otherwise to waive or withdraw appellate review.

(4) Form of waiver or withdrawal (see Appendix L-2[A8]). A waiver or withdrawal of appellate review must:

(i) be written;

(ii) state that the accused and defense counsel have discussed the accused's right to appellate review and the effect of waiver or withdrawal of appellate review and that the accused understands these matters;

(iii) state that the waiver or withdrawal is submitted voluntarily; and

(iv) be signed by the accused and by defense counsel.

(5) To whom submitted.

(i) Waiver. A waiver of appellate review must be filed with the convening authority. The waive must be attached to the record of trial.

(ii) Withdrawal. A withdrawal of appellate review may be filed with the authority exercising general court-martial jurisdiction over the accused, who shall promptly forward it to the State judge advocate, or directly with the state judge advocate.

(6) Time limit.

(i) Waiver. The accused may file a waiver of appellate review only within 10 days after the accused or defense counsel is served with a copy of the action under N.Y.R.C.M. 1107(h). Upon written application of the accused, the convening authority may extend this period for good cause, for not more than 30 days.

(ii) Withdrawal. The accused may file withdrawal from appellate review at any time before such review is completed.

(7) Effect of waiver or withdrawal; substantial compliance required.

(i) In general. A waiver or withdrawal of appellate review under this subdivision bars review by the State judge advocate under N.Y.R.C.M. 1201(b)(1) and by the Board of Military Review. Once submitted, a waiver or withdrawal in compliance with this subdivision cannot be revoked.

(ii) Waiver. If the accused files a timely waiver of appellate review in accordance with this subdivision, the record must be forwarded for review by a judge advocate under N.Y.R.C.M. 1112.

(iii) Withdrawal. Action on a withdrawal of appellate review must be carried out in accordance with procedures established by the State judge advocate, or if the case is pending before a Board of Military Review, in accordance with the rules of such board. If the appeal is withdrawn, the State judge advocate must forward the record to an appropriate authority for compliance with N.Y.R.C.M. 1112.

(iv) Substantial compliance required. A purported waiver or withdrawal of an appeal which does not substantially comply with this subdivision shall have no effect.

(k) Disposition of the record of trial after action (130.64, ML).

(1) General courts-martial.

(i) Cases forwarded to the State judge advocate. A record of trial by general court-martial and the convening authority's action shall be sent directly to the State judge advocate if the accused has not waived review under N.Y.R.C.M. 1110 and the sentence does not include dismissal, dishonorable or bad-conduct discharge or confinement, since such cases must be forwarded to the Board of Military Review. Three copies of the order promulgating the result of trial as to each accused must be forwarded with the original record of trial. Two additional copies of the record of trial must accompany the original record if it includes dismissal of an officer, cadet, or midshipman, dishonorable or bad-conduct discharge, or confinement at hard labor and the accused has not waived appellate review.

(ii) Cases forwarded to a judge advocate. A record of trial by general court- martial and the convening authority's action must be sent directly to a judge advocate for review under N.Y.R.C.M. 1112 if the accused has waived appellate review under N.Y.R.C.M. 1110, or the sentence does not include dismissal, dishonorable or bad-conduct discharge, or confinement. Four copies of the order promulgating the result of trial must be forwarded with the original record of trial.

(2) Special courts-martial.

(i) Cases including an approved bad-conduct discharge or confinement. If the approved sentence of a special court-martial includes a bad-conduct discharge or confinement, the record must be disposed of as provided in paragraph (1) of this subdivision for records of trial by general court-martial.

(ii) Other cases. The record of trial by a special court-martial in which the approved sentence includes neither a bad-conduct discharge nor confinement must be forwarded directly to a judge advocate for review under N.Y.R.C.M. 1112. Three copies of the order promulgating the result of trial must be forwarded with the record of trial.

(3) Summary courts-martial. The convening authority must dispose of a record of trial by summary court-martial as provided in N.Y.R.C.M. 1306.

(l) Review by a judge advocate.

(1) In general. Except as provided in paragraph (2) of this subdivision, a judge advocate must review:

(i) each general court-martial in which the accused has waived or withdrawn appellate review under N.Y.R.C.M. 1110, or the sentence does not include dismissal, dishonorable or bad-conduct discharge or confinement;

(ii) each special court-martial in which the accused has waived or withdrawn appellate review under N.Y.R.C.M. 1110 or in which the approved sentence does not include a bad- conduct discharge or confinement; and

(iii) each summary court-martial (ML, 130.63).

(2) Exception. If the accused was not found guilty of any offense or if the convening authority disapproved all findings of guilty, no review under this subdivision is required.

(3) Disqualification. No person may review a case under this subdivision if that person has acted in the same case as an accuser, investigating officer, member of the court-martial, military judge, or counsel, or has otherwise acted on behalf of the prosecution or defense.

(4) Form and content of review. The judge advocate's review must be in writing and must contain the following:

(i) conclusions as to whether:

(a) the court-martial had jurisdiction over the accused and each offense as to which there is a finding of guilty which has not been disapproved;

(b) each specification as to which there is a finding of guilty which has not been disapproved; and

(c) the sentence was legal;

(ii) a response to each allegation of error made in writing by the accused. Such allegations may be filed under N.Y.R.C.M. 1105 and 1106(f), or directly with the judge advocate who reviews the case; and

(iii) if the case is sent for action to the officer exercising general court-martial jurisdiction under paragraph (5) of this subdivision, a recommendation as to the appropriate action to be taken and an opinion as to whether corrective action is required as a matter of law.

Copies of the judge advocate's review under this subdivision shall be attached to the original and all copies or the record of trial. A copy of the review shall be forwarded to the accused.

(5) Forwarding to officer exercising general court-martial jurisdiction. In cases reviewed under paragraph (1) of this subdivision, the record of trial must be sent for action to the officer exercising general court-martial convening authority over the accused at the time the court- martial was held (or to that officer's successor) when:

(i) the judge advocate who reviewed the case recommends corrective action;

(ii) the sentence approved by the convening authority includes dismissal, a dishonorable or bad-conduct discharge, or any confinement; or

(iii) such action is otherwise required by regulation.

If the judge advocate's review is not forwarded under this paragraph, it must be attached to the original record of trial and a copy forwarded to the accused.

(6) Action by officer exercising general court-martial jurisdiction.

(i) Action. The officer exercising general court-martial jurisdiction who receives a record under paragraph (5) of this subdivision may:

(a) disapprove or approve the findings or sentence in whole or in part;

(b) remit, commute, or suspend the sentence in whole or in part;

(c) except where the evidence was insufficient at the trial to support the findings, order a rehearing on the findings, on the sentence, or on both; or

(d) dismiss the charges.

(ii) Rehearing. If the officer exercising general court-martial jurisdiction orders a rehearing, but the convening authority finds a rehearing impracticable, the convening authority must dismiss the charges.

(iii) Notification. After the officer exercising general court-martial jurisdiction has taken action, the accused must be notified of that action and the accused must be provided with a copy of the judge advocate's review.

(7) Forwarding following review under this subdivision.

(i) Records forwarded to the State judge advocate. If the judge advocate who reviews the case under this subdivision states that corrective action is required as a matter of law, and the officer exercising general court-martial jurisdiction does not take action that is at least as favorable to the accused as that recommended by the judge advocate, the record of trial and the action thereon must be forwarded to the State judge advocate for review under N.Y.R.C.M. 1201(b)(2).

(ii) Sentence including dismissal. If the approved sentence includes dismissal, the record must be forwarded to the Chief of Staff to the Governor (see ML, 130.69[a]).

(iii) Other records. Records reviewed under this subdivision which are not forwarded under subparagraph (i) of this paragraph be disposed of as prescribed by regulations.

(m) Execution of sentences.

(1) In general. No sentence of a court-martial may be executed unless it has been approved by the convening authority.

(2) Punishments which the convening authority may order executed in the initial action. Except as provided in paragraph (3) of this subdivision, the convening authority may order all or part of the sentence of a court-martial executed when the convening authority takes initial action under N.Y.R.C.M. 1107 (see ML, 130.69[b][2]).

(3) Punishments which the convening authority may not order executed in the initial action. A dishonorable or bad-conduct discharge may be ordered executed only by:

(i) the officer who reviews the case under N.Y.R.C.M. 1112(f), as part of the action approving the sentence, except when that action must be forwarded under N.Y.R.C.M. 1112(g)(1); or

(ii) the officer then exercising general court-martial jurisdiction over the accused.

A dishonorable or a bad-conduct discharge may be ordered executed only after a final judgment within the meaning of N.Y.R.C.M. 1207 has been rendered in the case. If more than six months have elapsed since approval of the sentence by the convening authority, before a dishonorable or a bad-conduct discharge may be executed, the officer exercising general court-martial jurisdiction over the accused must consider the advice of that officer's staff judge advocate as to whether retention of the service member would be in the best interest of the service. Such advice must include: the findings and sentence as finally approved; whether the service member has been on active State duty since the court-martial, and, if so, the nature and character of that duty; and a recommendation whether the discharge should be executed.

(4) Other considerations concerning the execution of certain sentences.

(i) Confinement.

(a) Effective date of confinement. Any period of confinement included in the sentence of a court-martial begins to run from the date the sentence is adjudged by the court-martial, but the following are excluded in computing the service of the term of confinement:

(1) periods during which the sentence to confinement is suspended or deferred;

(2) periods during which the accused is in custody of civilian authorities under ML, 130.14 from the time of the delivery to the return to military custody, if the accused was convicted in the civilian court;

(3) periods during which the accused has escaped or is absent without authority, or is absent under a parole which proper authority has later revoked, or is erroneously released from confinement through misrepresentation or fraud on the part of the prisoner, or is erroneously released from confinement upon the prisoner's petition for a writ of habeas corpus under a court order which is later reversed; and

(4) periods during which another sentence by court-martial to confinement is being served. When a prisoner serving a court-martial sentenced to confinement is later convicted by a court-martial of another offense and sentenced to confinement, the later sentence interrupts the running of the earlier sentence. Any unremitted remaining portion of the earlier sentence will be served after the later sentence is fully executed.

(b) Nature of the confinement. The omission of "hard labor" from any sentence of a court-martial which has adjudged confinement does not prohibit the authority who orders the sentence executed from requiring hard labor as part of the punishment (ML, 130.58[b]).

(c) Place of confinement. The authority who orders a sentence to confinement into execution must designate the place of confinement. A sentence or confinement is adjudged by a court-martial or other military tribunal, regardless of whether the sentence includes a punitive discharge or dismissal has been executed, may be ordered to be served in any place of confinement under the control of any of the forces of the organized militia or in any jail, penitentiary, or prison designated for that purpose as prescribed in ML, 130.11. Persons so confined in such a jail, penitentiary, or prison are subject to the same discipline and treatment as persons confined or committed by the courts of the State or of any political subdivision thereof (ML, 130.58[a]). When the service of a sentence to confinement has been deferred and the deferment is later rescinded, the convening authority must designate the place of confinement in the initial action on the sentence or in the order rescinding the deferment. No member of the organized militia may be placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the organized militia.

(ii) Confinement in lieu of fine. Confinement may not be executed for failure to pay a fine if the accused demonstrates that the accused has made good faith efforts to pay but cannot because of indingency, unless the authority considering imposition of confinement determines, after giving the accused notice and opportunity to be heard, that there is no other punishment adequate to meet the government's interest in appropriate punishment.

(n) Promulgating order.

(1) In general.

(i) Scope of rule. Orders promulgating the result of trial and the actions of the convening or higher authorities on the record shall be prepared, issued, and distributed as prescribed in this subdivision.

(ii) Purpose. A promulgating order publishes the result of the court-martial and the convening authority's action and any later action taken on the case.

(iii) Summary courts-martial. An order promulgating the result of a trial by summary court-martial need not be issued.

(2) By whom issued.

(i) Initial orders. The order promulgating the result of trial and the initial action of the convening authority is issued by the convening authority.

(ii) Orders issued after the initial action. Any action taken on the case subsequent to the initial action shall be promulgated in supplementary orders. The subsequent action and the supplementary order may be the same document signed personally by the appropriate convening or higher authority.

(a) When the Governor or the Chief of Staff to the Governor has taken final action. General court-martial orders publishing the final result in cases in which the Governor or the Chief of Staff to the Governor has taken final action shall be promulgated as prescribed by these regulations.

(b) Other cases. In cases other than those in clause (a) of this subparagraph, the final action may be promulgated by an appropriate convening authority.

(3) Contents.

(i) In general. The order promulgating the initial action must set forth: the type of court-martial and the command by which it was convened; the charges and specifications, or a summary thereof, on which the accused was arraigned; the accused pleas; the findings or other disposition of each charge and specification; the sentence, if any; and, verbatim, the action of the convening authority, or a summary thereof. Subsequent actions must recite, verbatim, the action or order of the appropriate authority, or a summary thereof.

(ii) Dates. A promulgating order must bear the date of the initial action, if any, of the convening authority. An order promulgating an acquittal, a court-martial terminated before findings, or action on the findings or sentence taken after the initial action of the convening authority must bear the date of its publication. A promulgating order must state the date the sentence was adjudged, the date on which the acquittal was announced, or the date on which the proceedings were otherwise terminated.

(iii) Order promulgated regardless of the result of trial or nature of the action. An order promulgating the result of trial by general or special court-martial must be issued regardless of the result and regardless of the action of the convening or higher authorities.

(4) Orders containing classified information. When an order contains information which must be classified, only the order retained in the unit files and those copies which accompany the record of trial is to be complete and contain the classified information. The order must be assigned the appropriate security classification. Asterisks are to be substituted for the classified information in the other copies of the order.

(5) Authentication. The promulgating order must be authenticated by the signature of the convening or other competent authority acting on the case, or a person acting under the direction of such authority. A promulgating order prepared in compliance with this subdivision is authentic.

(6) Distribution. Promulgating orders are to be distributed as follows:

(i) Original to be filed in member's military personnel records jacket (MPRJ) by forwarding to DMNA, ATTN: MNPA-PSC.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 516.11