35.326 Action by the convening authority. (1) The findings and sentence of a court-martial shall be reported promptly to the convening authority after the announcement of the sentence. (2) (a) The accused may submit to the convening authority matters for consideration by the convening authority with respect to the findings and the sentence. Any such submission shall be in writing. Such a submission shall be made within ten (10) days after the accused has been given an authenticated record of trial and, if applicable, the recommendation of a judge advocate under subsection (4) of this section. (b) If the accused shows that additional time is required for the accused to submit such matters, the convening authority or other person taking action under this section, for good cause, may extend the applicable period under paragraph (a) of this subsection for not more than an additional twenty (20) days. (c) The accused may waive the right to make a submission to the convening authority under paragraph (a) of this subsection. A waiver must be made in writing and may not be revoked. For the purposes of subsection (3)(b) of this section, the time within which the accused may make a submission under this subsection shall be deemed to have expired upon the submission of a waiver to the convening authority. (3) (a) The authority under this section to modify the findings and sentence of a court-martial is a matter of command prerogative involving the sole discretion of the convening authority. If it is impractical for the convening authority to act, the convening authority shall forward the case to a person exercising general court-martial jurisdiction who may take action under this section. (b) Action on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section. The action may be taken only after consideration of any matters submitted by the accused under subsection (2) of this section or after the time for submitting such matters expires, whichever is earlier. The convening authority or other person taking the action, in that person's sole discretion, may approve, disapprove, commute, or suspend the sentence in whole or in part. (c) Action on the findings of a court-martial by the convening authority or other person acting on a sentence is not required. However, such person, in the person's sole discretion, may: 1. Dismiss any charge or specification by setting aside a finding of guilty thereto; or 2. Change a finding of guilty to a charge or specification to a finding of guilty to any offense that is a lesser included offense of the offense stated in the charge or specification. (4) Before acting under this section on any general or special court-martial case in which there is a finding of guilty, the convening authority or other person taking action under this section shall obtain and consider the written recommendation of a judge advocate. The convening authority or other person taking action under this in that record the preparation of section shall refer the record of trial to the judge advocate, and the judge advocate shall use recommendation. The recommendation of the judge advocate shall include such matters as may be prescribed by regulation and shall be served on the accused, who may submit any matter in response under subsection (2) of this section. Failure to object in the response to the recommendation or to any matter attached to the recommendation waives the right to object thereto. the (5) (a) The convening authority or other person taking action under this section, in the person's sole discretion, may order a proceeding in revision or a rehearing. (b) A proceeding in revision may be ordered if there is an apparent error or omission in the record or if the record shows improper or inconsistent action by a court-martial with respect to the finding or sentence that can be rectified without material prejudice to the substantial rights of the accused. In no case, however, may a proceeding in revision: 1. Reconsider a finding of not guilty of any specification or a ruling which amounts to a finding of not guilty; 2. Reconsider a finding of not guilty of any charge, unless there has been a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation of some section of this code; or 3. Increase the severity of the sentence unless the sentence prescribed for the offense is mandatory. (c) A rehearing may be ordered by the convening authority or other person taking action under this article if that person disapproves the findings and sentence and states the reasons for disapproval of the findings. If that person disapproves the findings and sentence and does not order a rehearing, that person shall dismiss the charges. A rehearing as to the findings may not be ordered where there is a lack of sufficient evidence in the record to support the findings. A rehearing as to the sentence may be ordered if the convening authority or other person taking action under this subsection disapproves the sentence. Effective: June 25, 2013 History: Created 2013 Ky. Acts ch. 32, sec. 65, effective June 25, 2013.