After a sentence is adjudged by a summary court-martial, the accused and any crime victim may submit matters to the convening authority in accordance with R.C.M. 1106 and R.C.M. 1106A.

For the definition of “crime victim,” see R.C.M. 1106A(b)(2).

The convening authority shall take action on the sentence of a summary court-martial and, in the discretion of the convening authority, the findings of a summary court-martial.

Action on the findings is not required. With respect to findings, the convening authority may:

change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification; or

set aside any finding of guilty and:

dismiss the specification and, if appropriate, the charge; or

direct a rehearing in accordance with R.C.M. 810 and subsection (e).

The convening authority shall take action on the sentence. The convening authority may approve the sentence as adjudged or disapprove, commute, or suspend, in whole or in part, any portion of an adjudged sentence. The convening authority shall approve the sentence that is warranted by the circumstances of the offense and appropriate for the accused.

In determining what sentence should be approved, the convening authority should consider the sentencing guidance in R.C.M. 1002(f) and all matters relating to clemency, such as pretrial confinement. See R.C.M. 910(f)(5) on the effect of a plea agreement on the sentence of a summary court-martial. A sentence adjudged by a court-martial may be approved if it was within the jurisdiction of the court-martial to adjudge ( see R.C.M. 201(f)) and did not exceed the maximum limits prescribed in Part IV and Chapter X of this Part for the offense(s) of which the accused legally has been found guilty. See also R.C.M. 1003(b). See R.C.M. 1103(c) for the convening authority’s ability to defer service of a sentence to confinement in a summary court-martial where the accused is in the custody of a state or foreign country.

The convening authority shall not take action disapproving a finding of not guilty, a finding of not guilty only by reason of lack of mental responsibility, or a ruling amounting to a finding of not guilty. When an accused is found not guilty only by reason of lack of mental responsibility, the convening authority, however, shall commit the accused to a suitable facility pending a hearing and disposition in accordance with R.C.M. 1105.

The convening authority may not approve a sentence while the accused lacks mental capacity to understand and to conduct or cooperate intelligently in the post-trial proceedings. If, before the convening authority takes action, a substantial question is raised as to the requisite mental capacity of the accused, the convening authority shall either—

direct an examination of the accused in accordance with R.C.M. 706 to determine the accused’s present capacity to understand and cooperate in the post-trial proceedings; or

disapprove the findings and sentence.

See R.C.M. 909 regarding presumptions and standards governing issues of mental competence.

The convening authority may, in the convening authority’s discretion, order a rehearing. A rehearing may be ordered as to some or all offenses of which findings of guilty were entered and the sentence, or as to sentence only. A rehearing may not be ordered as to findings of guilty when there is a lack of sufficient evidence in the record to support the findings of guilty of the offense charged or of any lesser included offense. A rehearing may be ordered, however, if the proof of guilt consisted of inadmissible evidence for which there is available an admissible substitute. A rehearing may be ordered as to any lesser offense included in an offense of which the accused was found guilty, provided there is sufficient evidence in the record to support the lesser included offense.

See R.C.M. 810 regarding procedures for rehearings and limitations on sentence at rehearings.

The convening authority shall state in writing and insert in the record of trial the convening authority’s decision as to the sentence, whether any findings of guilty are disapproved, whether any charges or specifications are changed or dismissed and an explanation for such action, and any orders as to further disposition. The action shall be signed by the convening authority. The convening authority’s authority to sign shall appear below the signature. The convening authority may recall and modify any action taken by that convening authority at any time before it has been published, or, if the action is favorable to the accused, at any time prior to forwarding the record for review or before the accused has been officially notified.

The action shall state whether the sentence adjudged by the court-martial is approved. If only part of the sentence is approved, the action shall state which parts are approved. A rehearing may not be directed if any sentence is approved.

S uspension . The action shall indicate, when appropriate, whether an approved sentence is to be executed or whether the execution of all or any part of the sentence is to be suspended. No reasons need be stated.

Whenever the service of the sentence to confinement is deferred by the convening authority under R.C.M. 1103 before or concurrently with the initial action in the case, the action shall include the date on which the deferment became effective. The reason for the deferment need not be stated in the action.

When the action of the convening authority or of a higher authority is incomplete, ambiguous, or contains error, the authority who took the incomplete, ambiguous, or erroneous action may be instructed by an authority acting under Article 64, 66, 67, 67a, or 69 to withdraw the original action and substitute a corrected action.

A copy of the convening authority’s action shall be served on the accused or on defense counsel and, upon the victim’s request, the victim. If the action is served on defense counsel, defense counsel shall, by expeditious means, provide the accused with a copy.

The term “victim” has the same meaning as “crime victim” in R.C.M. 1106A(b)(2).

Any action taken on a summary court-martial after the initial action by the convening authority shall be in writing, signed by the authority taking the action, and promulgated in appropriate orders.

A judge advocate shall review each summary court-martial in which there is a finding of guilty pursuant to R.C.M. 1307.