[§124A-97]  Review of records; disposition. (a)  If the convening authority is the governor, the convening authority'saction on the review of any record of trial is final, subject only to an appealfor judicial review pursuant to section 124A-105.

(b)  In all other cases not covered bysubsection (a), if the sentence of a special court-martial as approved by theconvening authority includes a bad-conduct discharge, whether or not suspended,the entire record shall be sent to the appropriate staff judge advocate orlegal officer of the state force concerned to be reviewed in the same manner asa record of trial by general court-martial.  The record and the opinion of thestaff judge advocate or legal officer shall then be sent to the state judgeadvocate for review.

(c)  All other special and summarycourt-martial records shall be sent to the law specialist or legal officer ofthe appropriate force of the state military forces and shall be acted upon,transmitted, and disposed of as may be prescribed by rules adopted by thegovernor; provided that any final disposition of any special court-martialunder this subsection is subject to appeal for judicial review pursuant tosection 124A-105.

(d)  The state judge advocate shall review therecord of trial in each case sent to the state judge advocate for review asprovided under subsection (b).  If the final action of the court-martial hasresulted in an acquittal of all charges and specifications, the opinion of thestate judge advocate is limited to questions of jurisdiction.

(e)  The state judge advocate shall take finalaction in any case reviewable by the state judge advocate, subject only to anappeal for judicial review pursuant to section 124A-105.

(f)  In a case reviewable by the state judgeadvocate under this section, the state judge advocate may act only with respectto the findings and sentence as approved by the convening authority.  The statejudge advocate may affirm only such findings of guilty, and the sentence orsuch part or amount of the sentence, as the state judge advocate finds correctin law and fact and determines, on the basis of the entire record, should beapproved.  In considering the record, the state judge advocate may weigh theevidence, judge the credibility of witnesses, and determine controvertedquestions of fact, recognizing that the trial court saw and heard thewitnesses.  If the state judge advocate sets aside the findings and sentence,the state judge advocate may, except where the setting aside is based on lackof sufficient evidence in the record to support the findings, order arehearing.  If the state judge advocate sets aside the findings and sentenceand does not order a rehearing, the state judge advocate shall order that thecharges be dismissed.

(g)  In a case reviewable by the state judgeadvocate under this section, the state judge advocate shall instruct theconvening authority to act in accordance with the state judge advocate'sdecision on the review.  If the state judge advocate has ordered a rehearingbut the convening authority finds a rehearing impracticable, the state judgeadvocate may dismiss the charges.

(h)  The state judge advocate may order one ormore boards of review each composed of not less than three commissionedofficers of the state military forces, each of whom must be a member of the barof the highest court of the State.  Each board of review shall review therecord of any trial by special court-martial, including a sentence to abad-conduct discharge, referred to it by the state judge advocate.  Boards ofreview have the same authority on review as the state judge advocate has underthis section. [L 1982, c 171, pt of §2; gen ch 1985]