Section 5908 - Review by state judge advocate and adjutant general(a) Review by State Judge Advocate of guilty finding.-- Each general and special court-martial case in which there has been a finding of guilty shall be reviewed by the State Judge Advocate, or a designee. The State Judge Advocate may not review a case if he has acted in the same case as an accuser, investigating officer, member of the court, military judge or counsel or has otherwise acted on behalf of the prosecution or defense. The State Judge Advocate' s review shall be in writing and shall contain the following:(1) Conclusions as to: (i) whether the court had jurisdiction over the accused and the offense;(ii) the sufficiency of the charge and specification; and(iii) whether the sentence was within the limits prescribed as a matter of law.(2) A response to each allegation of error made in writing by the accused.(3) If the case is sent for action under subsection (b), 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.(b) Review by Adjutant General of guilty finding.-- The record of trial and related documents in each case reviewed under subsection (a) shall be sent for action to the Adjutant General, if: (1) the judge advocate who reviewed the case recommends corrective action;(2) the sentence approved under section 5903 (relating to action on general court-martial records) extends to dismissal, a bad-conduct or dishonorable discharge or confinement for more than six months; or(3) such action is otherwise required by regulations promulgated by the department.(c) Action by Adjutant General on guilty finding.--After review under subsection (b), t he Adjutant General may: (1) disapprove or approve the findings or sentence in whole or in part;(2) remit, commute or suspend the sentence in whole or in part;(3) dismiss the charges; or(4) 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.(d) Rehearing impracticable.--If a rehearing is ordered under subsection (c) but the convening authority finds a rehearing impracticable, the convening authority shall dismiss the charges.(e) Review by Governor of guilty finding.-- If the opinion of the State Judge Advocate is that corrective action is required as a matter of law and if the Adjutant General does not take action that is at least as favorable to the accused as that recommended by the State Judge Advocate, the record of trial and action thereon shall be sent to the Governor for review and action as deemed appropriate.(f) Review by State Judge Advocate of not guilty finding.-- The State Judge Advocate may review any case in which there has been a finding of not guilty of all charges and specifications. The State Judge Advocate may not review a case if he has acted in the same case as an accuser, investigating officer, member of the court, military judge or counsel or has otherwise acted on behalf of the prosecution or defense. The review by the State Judge Advocate shall be limited to questions of subject matter jurisdiction.
(g) Review by Adjutant General of not guilty finding.-- The record of trial and related documents in each case reviewed under subsection (f) shall be sent for action to the Adjutant General.(h) Action by Adjutant General on not guilty finding.--After review under subsection (g), the Adjutant General may: (1) when subject matter jurisdiction is found to be lacking, void the court-martial ab initio , with or without prejudice to the government; or(2) return the record of trial and related documents to the State Judge Advocate for appeal by the government as provided by law.Added by P.L. 1506 2012 No. 192, § 2, eff. 10/24/2013.