West Virginia Code 15-1E-64 – Review by the senior force judge advocate

(a) Each general and special court-martial case in which there has been a finding of guilty shall be reviewed by the senior force judge advocate, or a designee. The senior force judge advocate, or designee, may 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 senior force judge advocate's review shall be in writing and shall contain the following:

Terms Used In West Virginia Code 15-1E-64

accuser: means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than an official interest in the prosecution of the accused. See West Virginia Code 15-1E-1
Allegation: something that someone says happened.
Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
convening authority: includes , in addition to the person who convened the court, a commissioned officer commanding for the time being or a successor in command to the convening authority. See West Virginia Code 15-1E-1
Dismissal: The dropping of a case by the judge without further consideration or hearing. ^Source:
Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
in writing: includes any representation of words, letters, or figures, whether by printing, engraving, writing, or otherwise. See West Virginia Code 2-2-10
judge advocate: means a commissioned officer of the organized state military forces who is an attorney licensed to practice in this state or is a member in good standing of the bar of the highest court of another state, who is admitted pro hac vice to practice in this state, and is any of the following: Certified or designated as a judge advocate in the Judge Advocate General'. See West Virginia Code 15-1E-1
Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
military judge: means an official of a general or special court-martial detailed in accordance with section twenty-six of this article. See West Virginia Code 15-1E-1
Offense: includes every act or omission for which a fine, forfeiture, or punishment is imposed by law. See West Virginia Code 2-2-10
officer: means a commissioned or warrant officer. See West Virginia Code 15-1E-1
record: when used in connection with the proceedings of a court-martial, means - an official written transcript, written summary, or other writing relating to the proceedings. See West Virginia Code 15-1E-1
Senior force judge advocate: means the senior judge advocate of the commander of the same force of the state military forces as the accused and who is that commander'. See West Virginia Code 15-1E-1
Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.

(1) Conclusions as to whether:

(A) The court had jurisdiction over the accused and the offense;

(B) The charge and specification stated an offense; and

(2) A response to each allegation of error made in writing by the accused.

(3) If the case is sent for action under subsection (b), 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.

(b) The record of trial and related documents in each case reviewed under subsection (a) shall be sent for action to the Adjutant General, if:

(1) The judge advocate who reviewed the case recommends corrective action;

(2) The sentence approved under subsection (c), section sixty of this article extends to dismissal, a bad-conduct or dishonorable discharge, or confinement for more than six months; or

(3) Such action is otherwise required by regulations of the Adjutant General.

(c)(1) The Adjutant General may:

(A) Disapprove or approve the findings or sentence, in whole or in part;

(B) Remit, commute, or suspend the sentence in whole or in part;

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

(D) Dismiss the charges.

(2) If a rehearing is ordered but the convening authority finds a rehearing impracticable, the convening authority shall dismiss the charges.

(3) If the opinion of the senior force judge advocate, or designee, in the senior force judge advocate's review under subsection (a) 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 judge advocate, the record of trial and action thereon shall be sent to the Governor for review and action as deemed appropriate.

(d) The senior force judge advocate, or a designee, may review any case in which there has been a finding of not guilty of all charges and specifications. The senior force judge advocate, or designee, may 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 senior force judge advocate's review shall be limited to questions of subject matter jurisdiction.

(e) The record of trial and related documents in each case reviewed under subsection (d) shall be sent for action to The Adjutant General. The Adjutant General may:

(1) When subject matter jurisdiction is found to be lacking, void the court-martial ab initio, with or without prejudice to the Government, as the Adjutant General deems appropriate; or

(2) Return the record of trial and related documents to the senior force judge advocate for appeal by the Government as provided by law.

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