U.S. Military Lawyer - The Law Office of Stephen P. Karns

Post-Trial Review Procedures

Record Of Trial and Authentication. After trial, a record of the trial proceedings is prepared by the court reporter. It is provided to both the trial counsel (prosecutor) and the defense counsel for correction, and is then authenticated (certified as accurate) by the military judge. The nature of adjudged sentence determines the type of record of trial that is required, verbatim or summarized. For a verbatim record of trial, the sentence must include one of the following punishments: dismissal, dishonorable discharge, bad-conduct discharge, confinement for more than six months, forfeiture of more than two-thirds pay per month or forfeitures for more than six months. Other records of trial are summarized. Although some very limited post-trial actions can be taken without the authenticated record of trial, the review process requires the completed record of trial.

Effective Date of Punishments. Any period of confinement included in the sentence of a court-martial begins to run from the date the sentence is adjudged unless deferred or suspended. Adjudged reductions in rank and adjudged forfeitures of pay and allowances are effective fourteen days after the sentence is adjudged or upon action of the convening authority, whichever is sooner. However, any sentence which includes confinement for more than six months or death, or confinement for six months or less and a dishonorable or bad-conduct discharge or dismissal results in a mandatory forfeiture of pay fourteen days after the sentence was adjudged, even if no forfeitures were adjudged. Under these requirements, a general court-martial results in total forfeiture of pay and allowances (allowances are separate payments for housing and food) during confinement, and a special court-martial results in forfeiture of two-thirds pay (but not allowances) during confinement. When the accused (defendant) has a family, the convening authority may waive the mandatory forfeitures for up to six months and re-direct pay and allowances for support of the accused’s family. Other potential punishments (e.g., fines, restriction to specified limits, hard labor without confinement) are effective when approved in the convening authority’s action. Dismissals, dishonorable discharges and bad-conduct discharges must be approved by the convening authority, but cannot be ordered executed (issued) until appellate review is completed.

Deferment Requests. Upon written application of the defendant, the convening authority may defer adjudged confinement, forfeitures or reduction in rank. Deferment is a postponement of the beginning of the sentence. It is not a suspension of the sentence, and it is not a form of clemency. The accused has the burden of showing that his interest and the community's interests in deferment outweigh the community's interests in imposition of punishment. In making the decision, the convening authority may consider, among others, the following factors: the probability of flight; the probability of commission of other offenses; intimidation of witnesses; interference with the administration of justice; the nature of the offenses (including the effect on the victim); 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. Deferments end when the convening authority takes action, when the punishment is suspended, when the deferment expires by its own terms, or by other rescission.

Staff Judge Advocate (SJA) Review and Defense Response. A formal legal recommendation is required to be prepared in all general courts-martial and in special courts-martial where a bad- conduct discharge is adjudged. An impartial Staff Judge Advocate signs the recommendation. That recommendation is served on the accused's attorney and the accused, who have ten days to submit comments. The ten-day period can be extended for an additional twenty days. These comments can address legal errors, provide facts supporting reversal of the findings of guilty or clemency. The accused and his or her attorney determine the scope of clemency matters. Clemency matters may include a repeat of matters presented at trial, other evidence of good character, post-trial statements from friends, or relatives, evidence of financial hardship, and evidence of the adjudged sentence’s effect upon the accused’s family. These comments, if any, along with the recommendation of the Staff Judge Advocate are forwarded to the convening authority for action.

Convening Authority Options and Action. The convening authority performs the initial step in the review process and has extensive discretion when taking action on a case. In taking action, the convening authority either approves the findings and sentence or may change either or both of them. He or she may dismiss any offense or change the finding of guilty of any offense to one of a lesser-included offense. The convening authority may disapprove the findings of guilty or all, or any part of, a legal sentence. However, court-martial findings of "not guilty" are final when adjudged and may not be later changed by the convening authority. He or she may reduce or suspend a sentence or change the punishment to one of a different nature so long as the severity of the punishment is not increased. The convening authority may approve a sentence only if he or she determines that it is warranted by the offense(s) and appropriate for the accused soldier. For example, the convening authority may reduce or eliminate any confinement, may change a dishonorable discharge to a bad-conduct discharge, and may reduce a sentence of death to imprisonment. Prior to taking action, the convening authority must consider the results of trial, the recommendation of the Staff Judge Advocate, and any matters submitted by the defense attorney and the accused. In general, the appellate process does not begin until the convening authority has taken action.


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