38-2-1064. Guilty findings reviewed by state judge advocate.

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 his or her designee who shall be a judge advocate. The state judge advocate shall not review a case under this subsection if that person 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 shall assign review of such case to a designee who shall not have 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. Such review of the state judge advocate or his or her designee shall be in writing and shall contain the following:#

1. (1)

   Conclusions as to whether:#

   1. (A)

      The court had jurisdiction over the accused and the offense;#

   2. (B)

      The charge and specification stated an offense; and#

   3. (C)

      The sentence was within the limits prescribed as a matter of law;#

2. (2)

   A response to each allegation of error made in writing by the accused; and#

3. (3)

   If the case is sent for action under subsection (b) of this Code section, 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.#

The record of trial and related documents in each case reviewed under subsection (a) of this Code section shall be sent for action to the adjutant general, if:#

1. (1)

   The judge advocate who reviewed the case recommends corrective action;#

2. (2)

   The sentence approved under Code Section 38-2-1060 extends to dismissal, a bad conduct or dishonorable discharge, or confinement for more than six months; or#

3. (3)

   Such action is otherwise required by regulations pursuant to Part 1 of Article 2 of this chapter.#

1. (1)

   If a record of trial is sent to the adjutant general under subsection (b) of this Code section, the adjutant general may:#

   1. (A)

      Disapprove or approve the findings or sentence, in whole or in part;#

   2. (B)

      Remit, commute, or suspend the sentence in whole or in part;#

   3. (C)

      Except where the evidence was insufficient at the trial to support the findings, order a rehearing on the findings or on the sentence, or both; or#

   4. (D)

      Dismiss the charges.#

2. (2)

   If a rehearing is ordered by the adjutant general but the convening authority finds a rehearing impracticable, the convening authority shall dismiss the charges.#

3. (3)

   If the opinion of the state judge advocate, or designee, in the state judge advocate’s, or designee’s, review under subsection (a) of this Code section 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.#

The state judge advocate, or his or her designee who shall be a judge advocate, may review any case in which there has been a finding of not guilty of all charges and specifications. If the state judge advocate 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 may assign such case to a designee who has not 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 and who shall determine whether a review shall be conducted under this subsection. Such review of the state judge advocate or of his or her designee shall be limited to questions of subject matter jurisdiction.#

The record of trial and related documents in each case reviewed under subsection (d) of this Code section shall be sent for action to the adjutant general; the adjutant general may:#

1. (1)

   When subject matter jurisdiction is found to be lacking, void the court-martial ab initio, with or without prejudice to the state, as the adjutant general deems appropriate; or#

2. (2)

   Return the record of trial and related documents to the state judge advocate or his or her designee for appeal by the state as provided by law.#