Chapter 18.
Action on Proceedings by Reviewing Authority

131. GENERAL. After a case has been completed and the record prepared, the proceedings must be submitted to the "reviewing authority"--that is, the officer who appointed the court, of there has been a change in command, his successor. No sentence of court-martial can be carried into effect until the reviewing authority has personally approved it (AW 46). Up to that point, a sentence is simply a recommendation by the court. A finding of not guilty on any specification or charge, however, is final when announced by the court and cannot be changed or disapproved by the reviewing authority. Nevertheless, even in the case of an acquittal, the record of the proceedings must be transmitted to him although he cannot take action by way of approval or disapproval of the result.

132. EXAMINATION OF RECORD. Before action is taken on a sentence the record must be examined to determine that the procedure was legally correct and that the findings and sentence of the court are lawful. Cases tried by general courts-martial are reviewed by the staff judge advocate, who must write a formal review of the case and specifically recommend the action to be taken. Normally there is no staff judge advocate in organizations having only special and summary court-martial jurisdiction and the officer who acts as reviewing authority of an inferior court-martial must, therefore, decide whether the record and sentence are legally sufficient and determine upon his action without the advice of a trained military lawyer. The review of a summary court-martial record, however, contains a summary of the evidence, and it is incumbent on the reviewing authority to determine not merely that the proper procedural steps were taken and recorded,but that the findings of the court are supported by competent proof. In this connection he should consider the elements of proof required to establish the offense as set out in chapter XXVI, MCM, and decide whether those elements have been established by proper evidence. (See ch. XXV, MCM, and ch. 14, of this manual.) He must then determine whether the sentence imposed is a legal one. (See ch. 16, this manual for a discussion of sentences.) A check list of matters

to be considered in reviewing a special court-martial record will be found in appendix 3, this manual. Having carefully, examined the record to determine its validity, the reviewing authority must then decide what action he will take upon the sentence. The various courses of action open to him are discussed in the succeeding paragraphs.
133. APPROVAL OF SENTENCE. Unless the whole or part of the sentence is expressly approved, the proceedings of the court have no legal effect. Approval does not indicate that the reviewing authority is satisfied with the sentence. He may regard it as grossly inadequate, but without approval of the sentence the finding of guilty as well as the sentence is without any force or effect. If the proceedings were valid and the sentence, legal, the reviewing authority will approve the sentence. If parts of the sentence is unlawful, he should approve so much as is lawful and thereby make that portion effective. Thus, if a special court-martial sentenced an accused to be confined at hard labor for 7 months (which exceeds by 1 month the amount of confinement it has jurisdiction to impose), the reviewing authority would approve "only so much of the sentence, as provides for confinement at hard labor for 6 months." Similarly, if the sentence exceeded the amount authorized by the Table of Maximum Punishments, so much as was authorized would be approved. (For form of such action, see app. 21, infra.)

134. DISAPPROVAL. The disapproval of a sentence makes it completely ineffective and places the accused in the same position as if he had been acquitted by the court. If the proceedings were entirely irregular, or the findings not warranted, or the sentence wholly illegal, the reviewing authority may wipe out the conviction by disapproving the sentence. Sin an accused may not be tried twice for the same offense without his consent (AW 40), disapproval of a sentence, unless a rehearing is ordered by the same action, not only relieves the accused of the punishment imposed by the sentence, but renders him immune from ever being punished for that offense. An error in the course of proceedings is not sufficient ground for disapproving the sentence unless from an examination of the entire proceedings it appears that the substantial rights of the accused were injured thereby (AW 37; par. 87b, MCM). If the proceedings were regular and the findings warranted but the sentence is excessive, the entire sentence should not be disapproved. So much as is legal should be approved. (See par. 133, supra.) It is unnecessary to disapprove the illegal portion expressly. The reviewing authority should merely state that "only so much as" is legal is approved.

135. APPROVAL AND DISAPPROVAL OF FINDINGS. It is only the sentence for which the reviewing authority's approval is required. (See AW 46.) He need not take any action on the findings of the court. If the sentence is lawful, he will ordinarily state only that the sentence is approved,

without referring to the findings. If, however, the findings are not fully supported by the evidence, he may expressly disapprove those which are unwarranted. Thus, if an accused were fond guilty of two specifications under a charge and the finding as to the first specification was not supported by the evidence, that finding should be expressly disapproved. (See Form 3, app. 10, MCM.) In such case, it would not be necessary to approve expressly the finding of guilty of Specification 2 and of the Charge. Similarly, if the evidence did not support all the facts alleged in the specification of which an accused were found guilty, only as much of the finding as was warranted might be approved. For example, if a finding of guilty were made on a specification which alleged that the accused stole a watch of a value of $100 and the evidence showed that the watch was of a value of $5only, the reviewing authority might approve only so much of the finding of guilty of the specification as involved a finding that the accused did at the time and place alleged steal a watch of the value of $5. If the court by exceptions and substitutions should have found the accused guilty only of a lesser included offense, but actually found him guilty as charged, the reviewing authority should approve only so much of the finding as involves a finding of guilty of a lesser included offense. (For forms for such an action see Form 4, app. 10, MCM, and app. 21, this manual.) The reviewing authority cannot disapprove a finding of not guilty, even if he deems it unjustified (par. 87b, MCM); nor should he approve such a finding.
136. REHEARING. If the reviewing authority determines that the findings were unwarranted or that errors were committed, he cannot approve the sentence. Yet he may be satisfied that the accused can legally be convicted on a new trial and should not go unpunished. In such a case he may disapprove the sentence and order a rehearing before another court. The direction for a rehearing must be taken at the same time as, and be made a part of, his action in disapproving the sentence. (See par. 89 and Form 7, app. 10a, MCM). It cannot be made later.Nor may a rehearing be ordered if any part of the sentence is approved (par. 89. MCM). The rehearing must be before a court composed of members who did not hear the original case (AW 50¹/2). It may be necessary, therefore, to appoint a new court composed entirely of different members to rehear the case unless another court is already inexistence. The trial judge advocate and defense counsel who participated in the original hearing, however, are ordinarily retained in those positions on rehearing. The record of the original trial with action of the reviewing authority disapproving thew sentence and directing a rehearing are transmitted to the trial judge advocate of the new court, accompanied by a letter of any special instructions. Where, upon a rehearing,it is made to appear to the satisfaction of the court that a witness who has testified in either a Federal or a State court or before a court martial at a former trial

of the same person where the issues were the same as in the case on trial and where the accused was confronted with the witness and afforded the right of cross-examination, is dead, insane,or too old or inform to attend the trial, or is beyond the reach of process, or more than 100 miles from the place where the trial is had, or cannot be found, his testimony at the former trial, if properly proved, may be received by the court if otherwise admissible, except that such testimony of an absent witness may not be introduced in evidence in a capital case without the consent of the accused unless the witness is dead or beyond the reach of process. A new indorsement referring the charges for a rehearing is pasted or stapled over the indorsement on the original charge sheet. On rehearing the case is fully tried anew, the procedure being the same as on the original hearing. The court may not find the accused guilty of any offense of which he was found not guilty on the first hearing nor impose a more sever sentence than was originally adjudged. Thus, if an accused charged of larceny in violation of AW 93 was originally found guilty only of wrongful taking in violation of AW 96 and sentenced to confinement at hard labor for 3 months and forfeiture of two-thirds of his pay per month for a like period, on rehearing the court could not find him guilty of larceny nor sentence him to a greater punishment than was originally imposed. A rehearing is appropriate if the errors on the original trial were so substantial as to render the sentence illegal and if it is probable that these errors can be avoided at a new trial, or if the prosecution failed to establish all elements of the particular offense by competent proof and such proof is available for a rehearing.
137. CORRECTION OF THE RECORD AND REVISION.

     1. Certificate of correction. The record may be incomplete or defective in some important respect, such as the omission of a finding on a charge, or absence of a statement as to the sentence, or failure to show that the members of the court were sworn or that the required number of members concurred in the vote on the findings and sentence. A sentence based on such a record cannot be approved. Such defects, however, may be due simply to clerical errors or carelessness in preparing the record. The court, in fact, may have been sworn, or arrived at its findings or sentence by the proper vote or made all required findings, but the record may not correctly show the facts. If such is the case, the record must be corrected to speak the truth. Such correction cannot be made by physical changes in the record through alterations, erasures, or interlineations. It must be made formally. In case of such clerical errors or omissions before the reviewing authority takes action, the record may be returned to the president of the court, or to the summary court officer in cases tried by summary court, for a certificate as to the matters which appear to have been omitted or incorrectly stated (par. 87b, MCM). This certificate will be signed by the officers who authenticated the record or, in summary court-martial cases, by the summary

court officer. A form for indorsement returning a record of trial by special court-martial for correction is set out in appendix 18, infra, and a form for a certificate of correction is contained in appendix 19, infra. In general court-martial cases, if the accused has been furnished a copy of the record, he must be also furnished a copy of the certificate and his receipt therefor or a certificate of delivery should be signed on the face of the original certificate, otherwise the extra copy of the certificate will be forwarded with the unclaimed copy of the record. In special and summary court-martial cases it is not necessary to furnish a copy of the certificate to the accused since he is not entitled to a copy of the record itself. A certificate of correction merely makes the record correspond to what actually happened at the trial. It cannot change the facts. If the court was not sworn, for example, that defect cannot be remedied by a certificate.
2. Revision proceedings. (1) If the record discloses erroneous action by the court in making its findings and sentence which is capable of being corrected, the record may be returned so that the court may revise its action before the reviewing authority acts on the sentence. Such revision of the record is not a new trial or rehearing. No new evidence may be taken, nor witnesses called, nor additional matters considered. The court may reconsider its action on the findings or sentence in question, and either revoke its old action and correct it or decline to make a change. For example, if the court considered improper evidence of previous convictions in determining the sentence, the record might be returned so that it could reconsider its sentence disregarding the improper evidence (par. 87b, MCM). Or, if the court erroneously failed to impose any sentence at all, or imposed an illegal sentence, it might revise its action by now adjudging a sentence or revoking its old sentence and imposing a new and legal one. AW 40 specifically prohibits reconsideration of an acquittal or of a finding of not guilty on a specification or charge, or any increase in the severity of the sentence, unless the sentence was less than the mandatory sentence required by law. Thus, a court which had found an accused not guilty of desertion, but guilty only of the lesser included offense of absence without leave, could not on revision proceedings change its finding to one of guilty of desertion. Similarly, a court could not by revision increase a sentence of confinement at hard labor for 30 months to a sentence of confinement at hard labor for 3 months and forfeiture of two-thirds pay per month for a like period. SA court, however, which had failed to impose the mandatory sentence of dismissal upon an officer convicted of a violation of AW 95, could revoke its original illegal sentence and adjudge the dismissal which the law requires. Errors which occurred in the course of trial, such as failure to swear the court or witnesses, improper rulings on challenges, or admission of improper evidence cannot be corrected by revision proceedings after the trial is completed.

(2) If the case is a proper one for revision of the findings or sentence, the reviewing authority will return the record to the trial judge advocate of the general or special court-martial with directions to have the court reassemble and reconsider the finding or sentence in the particular specified with a view to correcting the defect. This is usually done by an indorsement on the letter by which the record was transmitted to the reviewing authority or, in the case of a special court-martial where the record may not have been transmitted by letter, the directions may be communicated to the trial judge advocate orally or by original letter. (See app. 20, infra.) Only members of the court who were present at the trial can participate. If the necessary quorum of those members (.e., five for a general court-martial; three for a special court-martial) cannot be obtained, no revision is possible. The accused and defense counsel are not present since no new matters can be considered. The trial judge advocate will read the directions of the reviewing authority to the court and the court will then close for deliberation and voting. The proceedings on revision will be formally recorded and forwarded for attachment to the original record. The form for the record of such proceedings is set out in appendix 6,pp. 269, 270, MCM. If there is occasion for revision in a case tried by summary court-martial, the record will be returned to the summary court officer with similar directions.
138. REMISSION AND MITIGATION.

     1. General. Although a sentence may be a legal and proper one for the offense of which the accused has been found guilty, for reasons of policy the reviewing authority may wish the accused to be less severely punished. If, for example, the accused had been confined for an indue length of time before trial, or there were extenuating circumstances, such as his youth, drunkenness at the time of the offense, or ignorance of his duties, or the court recommended clemency, it might be desirable to make the punishment less severe. If the reviewing authority decided on this course of action, he could approve the sentence and then remit or mitigate it--i.e., relieve the accused of all or part of the punishment by reducing it in quantity or quality par. 87b, MCM). Such action by the reviewing authority does not destroy the effect of the conviction as does approval of the sentence. The record of the conviction stands, but the accused does not have to undergo that part of the punishment which is remitted or mitigated. It is essential that the reviewing authority expressly approve the sentence and then reduce it. Until approved the sentence has no legal effect and there is nothing to be reduced.

     2. Reduction in quantity. In such a case as of a sentence of confinement at hard labor for 6 months and forfeiture of $33 per month for a like period, the reviewing authority might approve the sentence and remit it in its entirety (in which case the accused would undergo no punishment); or he might remit all or part of the confinement (leaving the

entire forfeiture in effect); or he might remit part of both the confinement and forfeiture. For a form for such action, see Form 2, appendix 2, MCM. (See also app. 2, this manual.)
3. Reduction in quality. Instead of cutting down the quantity of the punishment by remitting all or part of it,the reviewing authority may "mitigate" the punishment--i.e., reduce it to a less severe degree of the same general type of punishment (par. 87b, MCM.) For example, confinement at hard labor and restriction to the limits are both forms of restraint on liberty, the latter being a less severe type of restraint. A sentence to confinement at hard labor for 1 month, therefore, could be reduced to restriction to the limits for the same or a shorter period, since the general nature of the punishment is not thereby changed but there is simply a reduction in the degree of that punishment. Similarly, confinement at hard labor and hard labor without confinement are both forms of hard labor, the latter being less severe. Therefore, a sentence to confinement at hard labor for 1 month could be reduced to hard labor without confinement for the same or a shorter period (par. 87b, MCM). For an example of such action see appendix 31, this manual. Although the severity of the punishment may be thus mitigated, the reviewing authority may not change its general nature. He could not, for example, change confinement to forfeiture,nor change forfeiture to restriction. Only the President and certain commanding officers authorized by him under AW 50 may "commute" the sentence--i.e., change its general nature.

4. Limitations. The punishment as reduced by the reviewing authority must be included in the sentence actually adjudged by the court. For example, confinement at hard labor for 1 month cannot be reduced to restriction to the limits for 2 months, since the original sentence provides for only 1 month's punishment. The punishment as reduced must also be one which the court itself could have imposed in the first place. Thus, a sentence of confinement at hard labor for 6 months cannot be reduced by the reviewing authority to restriction to the limits for 6 months or to hard labor without confinement for 6 months, since the court itself could not have imposed more than 3 months of restriction (par. 103i, MCM.) Nor, for example, in the case of a sentence of dishonorable discharge, total forfeitures and confinement at hard labor for 1 year, could the reviewing authority remit the dishonorable discharge leaving the total forfeitures and the confinement at hard labor in effect, since the court itself could not have imposed such punishment without also adjudging a dishonorable discharge. (See par. 104c, MCM.)
39. EXECUTION AND SUSPENSION. In addition to expressly approving the sentence and reviewing authority must order it "executed"--i.e., put into effect--if the accused is to undergo the punishment imposed. Except

for certain sentences adjudged by general courts-martial (i.e., those which require confirmation under AW 48 or examination for legal sufficiency by the Board of Review and the Judge Advocate General under 50¹/2) all sentences may be ordered executed by the reviewing authority as soon as he has approved them. In his action on the sentence, therefore, he will usually order execution of the sentence. Instead of ordering the sentence immediately put into effect, he may "suspend" the execution of all or part of it, in much the same way as a judge in a criminal court sentences on offender and then puts him on probation. The accused is thus given an opportunity to redeem himself. If he does so, he may never undergo the punishment. If he does not, the suspension may be "vacated"--i.e., the sentence may be put into effect. (See app. 28, infra.). Suspension differs from remission in that a suspended sentence may later be ordered executed, whereas by remission the accused is completely relieved of the punishment for all time.
140. FORM OF REVIEWING AUTHORITY'S ACTION. After the reviewing authority has decided what disposition he intends to make of the case, his action must be written and signed by him. In summary court-martial cases, it is placed on page 4 of the charge sheet. (See app. 4, infra.) In general and special court-martial cases it is written on a separate sheet of paper to be attached to the record of trial. (See apps. 2, p. 165, and 3, p. 225, infra.) The heading of the action must show the headquarters of the reviewing authority and the place and date of action. In preparing the body of the action itself, the suggested forms set out in appendix 10, MCM, should be carefully followed. They cover almost all situations, and although in a rare case it may be necessary to make some slight modification, adherence to the forms should be the rule. Attempts to devise a new or unusual type of action may result in rendering the entire action illegal or ineffective. It will be noted that the appropriate forms of action in summary court-martial cases appendix 10c, MCM), are brief and concise. The action in general and special court-martial cases should specifically state the grade, name, serial number, and organization of the accused--e.g., "In the foregoing case of Private John M. Rentland, 36126705, Service Battery, 359th Field Artillery Battalion." The action must be signed by the reviewing authority in his own hand. Under his signature must be types his name, rank, branch of service, and the word "Commanding." The latter word must appear, since it is only the commanding officer of an organization who has authority to act on a sentence.

141. COMPLETION, ARRANGEMENT, AND DISPOSITION OF RECORD.

     1. In summary court-martial cases. Each case will be numbered serially by the regimental or other unit adjutant on page 4 of the charge sheet (par. 82, MCM). It is customary to begin a new series each year starting with number 1. After the reviewing authority has recorded his action on

page 4, the original and the two copies will be delivered to the regimental or other unit personnel officer, who will, in the case of an approved sentence, enter the essential data on the service record of the accused and indicate that he has made such entry by initialing in the space provided on page 4. The original record will be filed in the office of the regimental or other unit commanding officer (par. 87c, MCM). The two copies (referred to as reports of trial) are then forwarded as follows: one copy, completed and certified as a true copy of the original, will be immediately forwarded to The Adjutant General, Washington, D.C., and the remaining copy will be sent to the officer exercising general court-martial jurisdiction. (See par. 47, TM 12-230, and par. 87c, MCM.) The provisions with respect to the disposition of reports of trial by summary court apply to trials of civilians by summary court. In civilian cases it is advisable to forward also a copy of the informal investigation, if any. The report of trial forwarded to the officer exercising general court-martial jurisdiction is examined by his staff judge advocate for errors, defects or omissions (par. 91, MCM). If any are found, the report may be returned with directions to take corrective or modifying action.
2. In special court-martial cases. After the reviewing authority has taken and recoded his action, a special court-martial order setting out the result of trial and the action taken on the sentence must be prepared. (The preparation and distribution of such orders are discussed in chapter 19, infra.) The record will then be arranged from top to bottom in the following order:

   1. Special court-martial check sheet (if check sheet is used).

   2. Two copies of the special court-martial order.

   3. Any special court-martial orders suspending, remitting, or mitigating the sentence.

   4. Record of trial proper.

   5. Action of the reviewing authority.

   6. Exhibits in the following order:

      1. Special order appointing the court and any amendatory order or orders, to be marked Exhibit 1, 1a, etc.

      2. Charge Sheet to be marked Exhibit 2.

      3. Any other exhibits introduced at the trial, properly numbered or lettered, followed by record of previous convictions, if any, properly numbered as an exhibit. Prosecution's exhibits will be numbered. Defense exhibits will be lettered.

      4. Report of investigation, if any.

      5. Authorization by officer exercising general court-martial jurisdiction for trial of particular case by special court-martial, if any. (See pars. 38c, 58b, 59a, supra.) An example of a completed special court-martial record is set out in appendix 3, supra.) The record and accompanying papers thus arranged will be forwarded to the officer exercising general court-martial jurisdiction over the command (par. 87c, MCM). The record

will there be examined by the staff judge advocate for errors, defects, and omissions (par. 91, MCM). If there are discovered, corrective or modifying action may be taken by the officer exercising general court-martial jurisdiction or he may return the record with directions that such action be taken by the reviewing authority. The record if found satisfactory, or after corrective action,is filed in the staff judge advocate's office.
3. General court-martial records. After the reviewing authority has taken action, his staff judge advocate will have a general court-martial order issued, complete the additional necessary papers (i.e., the chronology sheet and the court-martial data sheet) and forward the record to the office of The Judge Advocate General. A discussion of the types of review of general court-martial records in the office of The Judge Advocate General is beyond the scope of this manual.
142. SUBSEQUENT ACTION ON SENTENCE.

     1. What action may be taken. Once the reviewing authority has taken final action on a sentence and that action has been published in a court-martial order, or the accused has been notified of it, the action is final and cannot be changed or revoked (par. 87b, MCM) unless the original action was void. Thus, if a reviewing authority approved and ordered executed a sentence of forfeiture adjudged by special court-martial and the special court-martial order were published, it would be too late to recall or rescind his approval. The forfeiture has become legally effective and must be collected. Any amount forfeited can be repaid to the accused only by act of Congress. (See par. 10j, AR 35-2460, 21 May 1942.) However, so much of a sentence as has not already been carried out may be remitted or mitigated or suspended (AW 50; AW 52. For example, if an accused had served 2 months of a sentence to confinement at hard labor for 3 months, the remaining 1 month of the confinement might be remitted, or mitigated to restriction to the limits or hard labor without confinement, or suspended. (See par. 17d, AR 600-375, 17 May 1943.) Similarly, the uncollected portion of a sentence of forfeiture might be remitted or mitigated or suspended. (See par. 10, AR 35-2460, 21 May 1942.) If originally a sentence was not ordered executed but was suspended, the suspension may be "vacated" and the sentence put into effect at any time during the accused's term of enlistment or service (par. 94, MCM).

     2. Who may take action. Subsequent action of the type just described may be taken by the officer who has power to appoint a court of the kind which imposed the sentence for the command in which the person under sentence is held (AW 50; AW 52. For example, such action might be taken on a sentence adjudged by summary court by the officer who has summary court-martial jurisdiction over the organization of accused,e.g., the regimental commander, and by any superior military authority. Thus, if the regimental commander of the 430th Infantry

approved a sentence of a special court-martial and ordered it executed, he could remit, mitigate, or suspend the balance of the sentence so long as the accused was in the 430th Infantry, since he would be the officer who had power to appoint a court of the kind which adjudged the sentence (i.e., a special court-martial) for the command in which the accused is held (i.e., the 430th Infantry). However, if the accused were transferred form the 430th Infantry to the 121st Infantry before the sentence had been completed the commanding officer of the latter organization (who had power to appoint special courts-martial) could remit, mitigate, and suspend the balance of that sentence and the commander of the 430th Infantry would no longer have authority to take such action. Garrison prisoners confined in a post guardhouse are still carried on the rolls of their original organization and, although their sentences may be remitted or suspended by the commander of the post, they should not as a matter of policy be remitted or suspended without the express concurrence of the authority who approved the sentence.
3. How accomplished. It is unnecessary for the authority remitting, mitigating, or suspending the balance of a sentence or vacating a suspension to sign personally any action effecting that result. All that is necessary is the publication of an order setting out the action taken. In general and special court-martial cases, any such acton will be published in appropriate general and special court-martial orders (par. 94, p. 83, MCM). See apps. 26 though 28, infra, for forms.) Distribution of such orders is covered by paragraphs 3d(3) and (4), AR 310-50, 1 December 1944. In summary court-martial cases such action will be published in a paragraph of the organization's special orders (apps. 29 and 30, infra) not in a court-martial order.

4. Restoration of garrison prisoners to duty. Garrison prisoners who are members of organizations under orders for oversea assignments should be released to the custody of their organizations in time to accompany them and the commanding officers of such organizations should consider the advisability of remitting (absolutely or conditionally), mitigating, or suspending the unexecuted portion of the sentence being served by such prisoners.

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