[§124A-97]  Review of records; disposition. 

(a)  If the convening authority is the governor, the convening authority's

action on the review of any record of trial is final, subject only to an appeal

for judicial review pursuant to section 124A-105.

     (b)  In all other cases not covered by

subsection (a), if the sentence of a special court-martial as approved by the

convening authority includes a bad-conduct discharge, whether or not suspended,

the entire record shall be sent to the appropriate staff judge advocate or

legal officer of the state force concerned to be reviewed in the same manner as

a record of trial by general court-martial.  The record and the opinion of the

staff judge advocate or legal officer shall then be sent to the state judge

advocate for review.

     (c)  All other special and summary

court-martial records shall be sent to the law specialist or legal officer of

the appropriate force of the state military forces and shall be acted upon,

transmitted, and disposed of as may be prescribed by rules adopted by the

governor; provided that any final disposition of any special court-martial

under this subsection is subject to appeal for judicial review pursuant to

section 124A-105.

     (d)  The state judge advocate shall review the

record of trial in each case sent to the state judge advocate for review as

provided under subsection (b).  If the final action of the court-martial has

resulted in an acquittal of all charges and specifications, the opinion of the

state judge advocate is limited to questions of jurisdiction.

     (e)  The state judge advocate shall take final

action in any case reviewable by the state judge advocate, subject only to an

appeal for judicial review pursuant to section 124A-105.

     (f)  In a case reviewable by the state judge

advocate under this section, the state judge advocate may act only with respect

to the findings and sentence as approved by the convening authority.  The state

judge advocate may affirm only such findings of guilty, and the sentence or

such part or amount of the sentence, as the state judge advocate finds correct

in law and fact and determines, on the basis of the entire record, should be

approved.  In considering the record, the state judge advocate may weigh the

evidence, judge the credibility of witnesses, and determine controverted

questions of fact, recognizing that the trial court saw and heard the

witnesses.  If the state judge advocate sets aside the findings and sentence,

the state judge advocate may, except where the setting aside is based on lack

of sufficient evidence in the record to support the findings, order a

rehearing.  If the state judge advocate sets aside the findings and sentence

and does not order a rehearing, the state judge advocate shall order that the

charges be dismissed.

     (g)  In a case reviewable by the state judge

advocate under this section, the state judge advocate shall instruct the

convening authority to act in accordance with the state judge advocate's

decision on the review.  If the state judge advocate has ordered a rehearing

but the convening authority finds a rehearing impracticable, the state judge

advocate may dismiss the charges.

     (h)  The state judge advocate may order one or

more boards of review each composed of not less than three commissioned

officers of the state military forces, each of whom must be a member of the bar

of the highest court of the State.  Each board of review shall review the

record of any trial by special court-martial, including a sentence to a

bad-conduct discharge, referred to it by the state judge advocate.  Boards of

review have the same authority on review as the state judge advocate has under

this section. [L 1982, c 171, pt of §2; gen ch 1985]