§ 130.65. Review by board of military review and approval by the adjutant general. (a) The state judge advocate shall establish a board of military review which shall be composed of not less than three officers of the organized militia or on the state reserve list or state retired list, each of whom shall be a member of the bar of the state.

(b) The state judge advocate shall refer to a board of military review the record in each case of trial by court-martial:

(1) in which the sentence, as approved, extends to, dismissal of a commissioned officer, dishonorable or bad-conduct discharge, or any confinement; and

(2) the right to appellate review has not been waived or an appeal has not been withdrawn under section 130.61 of this article.

(c) In a case referred to it, the board of military review may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it 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.

(d) If the board of military review sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If it sets aside the findings and sentence and does not order a rehearing, it shall order that the charges be dismissed.

(e) The action taken by the board of review shall be subject to the approval of the adjutant general. If the adjutant general disapproves the action taken by the board of review, he may take any action on the sentence or findings that could be taken by the convening authority under section 130.60 of this article.

(f) The state judge advocate shall, unless there is to be further action by the governor, instruct the convening authority to take action in accordance with the decision of the board of military review as approved by the adjutant general. If the board of military review has ordered a rehearing but the convening authority finds a rehearing impracticable, he may dismiss the charges.

(g) No member of a board of military review shall be eligible to review the record of any trial if such member served as investigating officer in the case or served as a member of the court-martial before which such trial was conducted, or served as military judge, trial or defense counsel, or reviewing officer of such trial.