COMMITTEE SUBSTITUTE
for
H. B. 4504
(By Delegates Iaquinta and Swartzmiller)
(Originating in the Committee on the Judiciary)
[February 26, 2010]
A BILL to amend and reenact §15-1E-1, §15-1E-2, §15-1E-3, §15-1E-4,
§15-1E-5, §15-1E-6, §15-1E-7, §15-1E-8, §15-1E-9, §15-1E-10,
§15-1E-11, §15-1E-12, §15-1E-13, §15-1E-14, §15-1E-15, §15-1E-
16, §15-1E-17, §15-1E-18, §15-1E-19, §15-1E-20, §15-1E-21,
§15-1E-22, §15-1E-23, §15-1E-24, §15-1E-25, §15-1E-26, §15-1E-
27, §15-1E-28, §15-1E-29, §15-1E-30, §15-1E-31, §15-1E-32,
§15-1E-33, §15-1E-34, §15-1E-35, §15-1E-36, §15-1E-37, §15-1E-
38, §15-1E-39, §15-1E-40, §15-1E-41, §15-1E-42, §15-1E-43,
§15-1E-44, §15-1E-45, §15-1E-46, §15-1E-47, §15-1E-48, §15-1E-
49, §15-1E-50, §15-1E-51, §15-1E-52, §15-1E-53, §15-1E-54,
§15-1E-55, §15-1E-56, §15-1E-57, §15-1E-58, §15-1E-59, §15-1E-
60, §15-1E-61, §15-1E-62, §15-1E-63, §15-1E-64, §15-1E-65,
§15-1E-66, §15-1E-67, §15-1E-68, §15-1E-69, §15-1E-70, §15-1E-
71, §15-1E-72, §15-1E-73, §15-1E-74, §15-1E-75, §15-1E-76,
§15-1E-77, §15-1E-78, §15-1E-79, §15-1E-80, §15-1E-81, §15-1E-
82, §15-1E-83, §15-1E-84, §15-1E-85, §15-1E-86, §15-1E-87, §15-1E-88, §15-1E-89, §15-1E-90, §15-1E-91, §15-1E-92, §15-1E-
93, §15-1E-94, §15-1E-95, §15-1E-96, §15-1E-97, §15-1E-98,
§15-1E-99, §15-1E-100, §15-1E-101, §15-1E-102, §15-1E-103,
§15-1E-104, §15-1E-105, §15-1E-106, §15-1E-107, §15-1E-108,
§15-1E-109, §15-1E-110, §15-1E-111, §15-1E-112, §15-1E-113,
§15-1E-114, §15-1E-115, §15-1E-116, §15-1E-117, §15-1E-118,
§15-1E-119, §15-1E-120, §15-1E-121, §15-1E-122, §15-1E-123,
§15-1E-124, §15-1E-125, §15-1E-126, §15-1E-127, §15-1E-128,
§15-1E-129, §15-1E-130, §15-1E-131, §15-1E-132, §15-1E-133,
§15-1E-134, §15-1E-135, §15-1E-136, §15-1E-137 and §15-1E-138,
of the Code of West Virginia, 1931, as amended; and to amend
said code by adding thereto eighteen new sections, designated
§15-1E-50a, §15-1E-57a, §15-1E-58a, §15-1E-58b, §15-1E-67a,
§15-1E-76a, §15-1E-76b, §15-1E-112a, §15-1E-139, §15-1E-140,
§15-1E-141, §15-1E-142, §15-1E-143, §15-1E-144, §15-1E-145,
§15-1E-146, §15-1E-147 and §15-1E-148, all relating to
adopting the Uniform State Military Code of Justice;
definitions; persons subject to this code and jurisdiction;
territorial applicability of the code; apprehension and
restraint; nonjudicial punishment; court-martial jurisdiction;
appointment and composition of courts-martial; pretrial
procedure; trial procedure; sentences after conviction; post-
trial procedure and review of courts-martial; punitive
articles; and miscellaneous provisions.
Be it enacted by the Legislature of West Virginia:
That §15-1E-1, §15-1E-2, §15-1E-3, §15-1E-4, §15-1E-5, §15-1E-
6, §15-1E-7, §15-1E-8, §15-1E-9, §15-1E-10, §15-1E-11, §15-1E-12,
§15-1E-13, §15-1E-14, §15-1E-15, §15-1E-16, §15-1E-17, §15-1E-18,
§15-1E-19, §15-1E-20, §15-1E-21, §15-1E-22, §15-1E-23, §15-1E-24,
§15-1E-25, §15-1E-26, §15-1E-27, §15-1E-28, §15-1E-29, §15-1E-30,
§15-1E-31, §15-1E-32, §15-1E-33, §15-1E-34, §15-1E-35, §15-1E-36,
§15-1E-37, §15-1E-38, §15-1E-39, §15-1E-40, §15-1E-41, §15-1E-42,
§15-1E-43, §15-1E-44, §15-1E-45, §15-1E-46, §15-1E-47, §15-1E-48,
§15-1E-49, §15-1E-50, §15-1E-51, §15-1E-52, §15-1E-53, §15-1E-54,
§15-1E-55, §15-1E-56, §15-1E-57, §15-1E-58, §15-1E-59, §15-1E-60,
§15-1E-61, §15-1E-62, §15-1E-63, §15-1E-64, §15-1E-65, §15-1E-66,
§15-1E-67, §15-1E-68, §15-1E-69, §15-1E-70, §15-1E-71, §15-1E-72,
§15-1E-73, §15-1E-74, §15-1E-75, §15-1E-76, §15-1E-77, §15-1E-78,
§15-1E-79, §15-1E-80, §15-1E-81, §15-1E-82, §15-1E-83, §15-1E-84,
§15-1E-85, §15-1E-86, §15-1E-87, §15-1E-88, §15-1E-89, §15-1E-90,
§15-1E-91, §15-1E-92, §15-1E-93, §15-1E-94, §15-1E-95, §15-1E-96,
§15-1E-97, §15-1E-98, §15-1E-99, §15-1E-100, §15-1E-101, §15-1E-
102, §15-1E-103, §15-1E-104, §15-1E-105, §15-1E-106, §15-1E-107,
§15-1E-108, §15-1E-109, §15-1E-110, §15-1E-111, §15-1E-112, §15-1E-
113, §15-1E-114, §15-1E-115, §15-1E-116, §15-1E-117, §15-1E-118,
§15-1E-119, §15-1E-120, §15-1E-121, §15-1E-122, §15-1E-123, §15-
1E-124, §15-1E-125, §15-1E-126, §15-1E-127, §15-1E-128, §15-1E-129,
§15-1E-130, §15-1E-131, §15-1E-132, §15-1E-133, §15-1E-134, §15-1E-
135, §15-1E-136, §15-1E-137 and §15-1E-138, of the Code of West
Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto eighteen new sections, designated
§15-1E-50a, §15-1E-57a, §15-1E-58a, §15-1E-58b, §15-1E-67a, §15-1E-
76a, §15-1E-76b, §15-1E-112a, §15-1E-139, §15-1E-140, §15-1E-141,
§15-1E-142, §15-1E-143, §15-1E-144, §15-1E-145, §15-1E-146, §15-1E-
147 and §15-1E-148, all to read as follows:
ARTICLE 1E. UNIFORM STATE CODE OF MILITARY JUSTICE.
PART I. GENERAL PROVISIONS.
§15-1E-1. Definitions; gender neutrality.
(a) In this article, unless the context otherwise requires:
(1) The term "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.
(2) The term "cadet," "candidate," or "midshipman" means a
person who is enrolled in or attending a state military academy, a
regional training institute, or any other formal education program
for the purpose of becoming a commissioned officer in the state
military forces.
(3) The term "classified information" means - any information
or material that has been determined by an official of the United
States or any state pursuant to law, an Executive order, or
regulation to require protection against unauthorized disclosure
for reasons of national or state security, and any restricted data, as defined in section 11(y) of the Atomic Energy Act of 1954 (42
U.S.C. § 2014(y)).
(4) The term "code" means this article.
(5) The term "commanding officer" includes only commissioned
officers of the state military forces and shall include officers in
charge only when administering nonjudicial punishment under Section
fifteen of this article. The term "commander" has the same meaning
as "commanding officer" unless the context otherwise requires.
(6) The term "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.
(7) The term "day" means calendar day and is not synonymous
with the term "unit training assembly." Any punishment authorized
by this section which is measured in terms of days shall, when
served in a status other than annual field training, be construed
to mean succeeding duty days.
(8) The term "duty status other than state active duty" means
any other type of duty not in federal service and not full-time
duty in the active service of the state; under an order issued by
authority of law and includes travel to and from such duty.
(9) The term "enlisted member" means a person in an enlisted grade.
(10) The term "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's
Corps of the Army, Air Force, Navy, or the Marine Corps or
designated as a law specialist as an officer of the Coast Guard, or
a reserve component of one of these; or certified as an
nonfederally recognized judge advocate, under regulations
promulgated pursuant to this provision, by the senior judge
advocate of the commander of the force in the state military forces
of which the accused is a member, as competent to perform such
military justice duties required by this article. If there is no
such judge advocate available, then such certification may be made
by such senior judge advocate of the commander of another force in
the state military forces, as the convening authority directs.
(11) The term "may" is used in a permissive sense. The phrase
"no person may . . ." means that no person is required, authorized,
or permitted to do the act prescribed.
(12) The term "military court" means a court-martial or a court of inquiry.
(13) The term "military judge" means an official of a general
or special court-martial detailed in accordance with section
twenty-six of this article.
(14) The term "military offenses" means those offenses
prescribed under sections seventy-seven (Principals), seventy-eight
(Accessory after the fact), eighty (Attempts), eighty-one
(Conspiracy), eighty-two
(Solicitation),eighty-three
(Fraudulent
enlistment, appointment, or separation), eighty-four (Unlawful
enlistment, appointment, or separation), eighty-five (Desertion),
eighty-six (Absence without leave), eighty-seven (Missing
movement), eighty-eight (Contempt toward officials), eighty-nine
(Disrespect towards superior commissioned officer), ninety
(Assaulting or willfully disobeying superior commissioned officer),
ninety-one (Insubordinate conduct toward warrant officer,
noncommissioned officer, or petty officer), ninety-two (Failure to
obey order or regulation), ninety-three (Cruelty and maltreatment),
ninety-four (Mutiny or sedition), ninety-five (Resistance, flight,
breach of arrest, and escape), ninety-six (Releasing prisoner
without proper authority), ninety-seven (Unlawful detention),
ninety-eight (Noncompliance with procedural rules), ninety-nine
(Misbehavior before the enemy), one hundred (Subordinate compelling
surrender), one hundred one (Improper use of countersign), one
hundred two (Forcing a safeguard), one hundred three (Captured or abandoned property), one hundred four (Aiding the enemy), one
hundred five (Misconduct as prisoner), one hundred seven (False
official statements), one hundred eight (Military property - Loss,
damage, destruction, or wrongful disposition), one hundred nine
(Property other than military property - waste, spoilage, or
destruction), one hundred ten (Improper hazarding of vessel), one
hundred twelve (Drunk on duty), one hundred twelve-a. (Wrongful
use, possession, etc, of controlled substances), one hundred
thirteen (Misbehavior of sentinel), one hundred fourteen (Dueling),
one hundred fifteen (Malingering), one hundred sixteen (Riot or
breach of peace), one hundred seventeen (Provoking speeches or
gestures), one hundred thirty-two (Frauds against the government),
one hundred thirty-three (Conduct unbecoming an officer and a
gentleman), and one hundred thirty-four (General) of this article.
(15) The term "national security" means the national defense
and foreign relations of the United States.
(16) The term "officer" means a commissioned or warrant
officer.
(17) The term "officer in charge" means a member of the Naval
Militia, the Navy, the Marine Corps, or the Coast Guard designated
as such by appropriate authority.
(18) The term "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; or an official audiotape, videotape, digital image or file, or similar material from which sound, or sound and visual
images, depicting the proceedings may be reproduced.
(19) "Shall" is used in an imperative sense.
(20) "State" means one of the several states, the District of
Columbia, the Commonwealth of Puerto Rico, Guam, and the U.S.
Virgin Islands.
(21) "State active duty" means full-time duty in the state
military forces under an order of the Governor or otherwise issued
by authority of law, and paid by state funds, and includes travel
to and from such duty.
(22) "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's chief legal
advisor. To be eligible to serve as a senior force judge advocate,
a judge advocate must be a member of the bar of the Supreme Court
of Appeals of West Virginia for at least five years, and shall have
completed all educational requirements for active military service
as a field grade judge advocate general corps officer.
(23) "State military forces" means the National Guard of the
state, as defined in title 32, United States Code, to include the
West Virginia Army National Guard, the West Virginia Air National
Guard and the inactive National Guard, and shall be deemed to
include any unit, component, element, headquarters, staff or cadre
thereof, as well as any member or members, when not in a status
subjecting them to exclusive jurisdiction under chapter 47 of title 10, United States Code.
(24) The term "superior commissioned officer" means a
commissioned officer superior in rank or command.
(25) "Senior force commander" means the commander of the same
force of the state military forces as the accused.
(26) "Unit Training Assembly" means an assembly for drill or
instruction which may consist of a single ordered formation of a
company, battery, squadron, or detachment, or, when authorized by
the commander, a series of ordered formations of those
organizations.
(b) The use of the masculine gender throughout this shall
also include the feminine gender.
§15-1E-2. Persons subject to this article; jurisdiction.
(a) This article applies to all members of the state military
forces at all times.
(b) Subject matter jurisdiction is established if a nexus
exists between an offense, either military or nonmilitary, and the
state military force. Courts-martial have primary jurisdiction of
military offenses as defined in this article. A proper civilian
court has primary jurisdiction of a nonmilitary offense when an act
or omission violates both this article and local criminal law,
foreign or domestic. In such a case, a court-martial may be
initiated only after the civilian authority has declined to
prosecute or dismissed the charge, provided jeopardy has not
attached. Jurisdiction over attempted crimes, conspiracy crimes, solicitation, and accessory crimes must be determined by the
underlying offense.
§15-1E-3. Jurisdiction to try certain personnel.
(a) Each person discharged from the state military forces who
is later charged with having fraudulently obtained a discharge is,
subject to section forty-three of this article, subject to trial by
court-martial on that charge and is, after apprehension, subject to
this article while in custody under the direction of the state
military forces for that trial. Upon conviction of that charge
that person is subject to trial by court-martial for all offenses
under this article committed before the fraudulent discharge.
(b) No person who has deserted from the state military forces
may be relieved from amenability to the jurisdiction of this
article by virtue of a separation from any later period of service.
§15-1E-4. Reserved.
§15-1E-5. Territorial applicability of the article.
(a) This article has applicability at all times and in all
places, provided that either the person subject to the article is
in a duty status or, if not in a duty status, that there is a nexus
between the act or omission constituting the offense and the
efficient functioning of the state military forces; however, this
grant of military jurisdiction shall neither preclude nor limit
civilian jurisdiction over an offense, which is limited only by the
prohibition of double jeopardy.
(b) Courts-martial and courts of inquiry may be convened and
held in units of the state military forces while those units are
serving outside the state with the same jurisdiction and powers as
to persons subject to this article as if the proceedings were held
inside the state, and offenses committed outside the state may be
tried and punished either inside or outside the state.
§15-1E-6. Judge Advocates.
(a) The senior force judge advocates in each of the state's
military forces or that judge advocate's delegates shall make
frequent inspections in the field in supervision of the
administration of military justice in that force.
(b) Convening authorities shall at all times communicate
directly with their judge advocates in matters relating to the
administration of military justice. The judge advocate of any
command is entitled to communicate directly with the judge advocate
of a superior or subordinate command, or with the State Judge
Advocate.
(c) No person who has acted as member, military judge, trial
counsel, defense counsel, or investigating officer, or who has been
a witness, in any case may later act as a judge advocate to any
reviewing authority upon the same case.
PART II. APPREHENSION AND RESTRAINT.
§15-1E-7. Apprehension.
(a) Apprehension is the taking of a person into custody.
(b) Any person authorized by this article or by chapter 47 of title 10, United States Code, or by regulations issued under
either, to apprehend persons subject to this article, any marshal
of a court-martial appointed pursuant to the provisions of this
article, and any peace officer or civil officer having authority to
apprehend offenders under the laws of the United States or of a
state, may do so upon probable cause that an offense has been
committed and that the person apprehended committed it.
(c) Commissioned officers, warrant officers, petty officers,
and noncommissioned officers have authority to quell quarrels,
frays, and disorders among persons subject to this article and to
apprehend persons subject to this article who take part therein.
(d) If an offender is apprehended outside the state, the
offender's return to the area must be in accordance with normal
extradition procedures or by reciprocal agreement.
(e) No person authorized by this section to apprehend persons
subject to this article or the place where such offender is
confined, restrained, held, or otherwise housed may require payment
of any fee or charge for so receiving, apprehending, confining,
restraining, holding, or otherwise housing a person except as
otherwise provided by law.
§15-1E-8. Reserved.
§15-1E-9. Imposition of restraint.
(a) Arrest is the restraint of a person by an order, not
imposed as a punishment for an offense, directing him or her to
remain within certain specified limits. Confinement is the physical restraint of a person.
(b) An enlisted member may be ordered into arrest or
confinement by any commissioned officer by an order, oral or
written, delivered in person or through other persons subject to
this article. A commanding officer may authorize warrant officers,
petty officers, or noncommissioned officers to order enlisted
members of the commanding officer's command or subject to the
commanding officer's authority into arrest or confinement.
(c) A commissioned officer, a warrant officer, or a civilian
subject to this article or to trial there under may be ordered into
arrest or confinement only by a commanding officer to whose
authority the person is subject, by an order, oral or written,
delivered in person or by another commissioned officer. The
authority to order such persons into arrest or confinement may not
be delegated.
(d) No person may be ordered into arrest or confinement except
for probable cause.
(e) This section does not limit the authority of persons
authorized to apprehend offenders to secure the custody of an
alleged offender until proper authority may be notified.
§15-1E-10. Restraint of persons charged with offenses.
Any person subject to this article charged with an offense
under this article may be ordered into arrest or confinement, as
circumstances may require. When any person subject to this article
is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform the person of the specific wrong of which
the person is accused and diligent steps shall be taken to try the
person or to dismiss the charges and release the person.
§15-1E-11. Place of Confinement; Reports and receiving of
prisoners.
(a) If a person subject to this article is confined before,
during, or after trial, confinement shall be in a civilian or
military confinement facility.
(b) No person authorized to receive prisoners pursuant to
section may refuse to receive or keep any prisoner committed to the
person's charge by a commissioned officer of the state military
forces, when the committing officer furnishes a statement, signed
by such officer, of the offense charged against the prisoner,
unless otherwise authorized by law.
(c) Every person authorized to receive prisoners pursuant to
section to whose charge a prisoner is committed shall, within
twenty-four hours after that commitment or as soon as the person is
relieved from guard, report to the commanding officer of the
prisoner the name of the prisoner, the offense charged against the
prisoner, and the name of the person who ordered or authorized the
commitment.
§15-1E-12. Confinement with enemy prisoners prohibited.
No member of the state military forces may be placed in
confinement in immediate association with enemy prisoners or other foreign nationals not members of the Armed Forces.
§15-1E-13. Punishment prohibited before trial.
No person, while being held for trial or awaiting a verdict,
may be subjected to punishment or penalty other than arrest or
confinement upon the charges pending against the person, nor shall
the arrest or confinement imposed upon such person be any more
rigorous than the circumstances required to insure the person's
presence, but the person may be subjected to minor punishment
during that period for infractions of discipline.
§15-1E-14. Delivery of offenders to civil authorities.
(a) A person subject to this article accused of an offense
against civil authority may be delivered, upon request, to the
civil authority for trial or confinement.
(b) When delivery under this section is made to any civil
authority of a person undergoing sentence of a court-martial, the
delivery, if followed by conviction in a civil tribunal, interrupts
the execution of the sentence of the court-martial, and the
offender after having answered to the civil authorities for the
offense shall, upon the request of competent military authority, be
returned to the place of original custody for the completion of the
person's sentence.
PART III. NONJUDICIAL PUNISHMENT.
§15-1E-15. Commanding officer's nonjudicial punishment.
(a) Under such regulations as prescribed, any commanding officer (and for purposes of this article, officers-in-charge) may
impose disciplinary punishments for minor offenses without the
intervention of a court-martial pursuant to this article. The
Governor, the Adjutant General, or an officer of a general or flag
rank in command may delegate the powers under this section to a
principal assistant who is a member of the state military forces.
(b) Any commanding officer may impose upon enlisted members of
the officer's command:
(1) An admonition;
(2) A reprimand;
(3) The withholding of privileges for not more than six months
which need not be consecutive;
(4) The forfeiture of pay of not more than seven days' pay;
(5) A fine of not more than seven days' pay;
(6) A reduction to the next inferior pay grade, if the grade
from which demoted is within the promotion authority of the officer
imposing the reduction or any officer subordinate to the one who
imposes the reduction;
(7) Extra duties, including fatigue or other duties, for not
more than fourteen days, which need not be consecutive; and
(8) Restriction to certain specified limits, with or without
suspension from duty, for not more than fourteen days, which need
not be consecutive.
(c) Any commanding officer of the grade of major or lieutenant
commander, or above may impose upon enlisted members of the officer's command:
(1) Any punishment authorized in subsection (b) subdivisions
(1), (2), and (3);
(2) The forfeiture of not more than one-half of one month's
pay per month for two months;
(3) A fine of not more than one month's pay;
(4) A reduction to the lowest or any intermediate pay grade,
if the grade from which demoted is within the promotion authority
of the officer imposing the reduction or any officer subordinate to
the one who imposes the reduction, but an enlisted member in a pay
grade above E-4 may not be reduced more than two pay grades;
(5) Extra duties, including fatigue or other duties, for not
more than forty-five days which need not be consecutive; and
(6) Restriction to certain specified limits, with or without
suspension from duty, for not more than sixty days which need not
be consecutive.
(d) The Governor, the Adjutant General, an officer exercising
general court-martial convening authority, or an officer of a
general or flag rank in command may impose:
(1) Upon officers of the officer's command:
(A) Any punishment authorized in subsection (c) subdivisions
(1), (2), (3) and (6); and
(B) Arrest in quarters for not more than thirty days which
need not be consecutive.
(2) Upon enlisted members of the officer's command any punishment authorized in subsection (c).
(e) Whenever any of those punishments are combined to run
consecutively, the total length of the combined punishment cannot
exceed the authorized duration of the longest punishment in the
combination, and there must be an apportionment of punishments so
that no single punishment in the combination exceeds its authorized
length under this article.
(f) Prior to the offer of nonjudicial punishment, the
commanding officer shall determine whether arrest in quarters or
restriction shall be considered as punishments. Should the
commanding officer determine that the punishment options may
include arrest in quarters or restriction, the accused shall be
notified of the right to demand trial by court-martial. Should the
commanding officer determine that the punishment options will not
include arrest in quarters or restriction, the accused shall be
notified that there is no right to trial by courts-martial in lieu
of nonjudicial punishment
(g) The officer who imposes the punishment, or the successor
in command, may, at any time, suspend, set aside, mitigate, or
remit any part or amount of the punishment and restore all rights,
privileges, and property affected. The officer also may:
(1) Mitigate reduction in grade to forfeiture of pay;
(2) Mitigate arrest in quarters to restriction; or
(3) Mitigate extra duties to restriction.
The mitigated punishment shall not be for a greater period than the punishment mitigated. When mitigating reduction in grade
to forfeiture of pay, the amount of the forfeiture shall not be
greater than the amount that could have been imposed initially
under this section by the officer who imposed the punishment
mitigated.
(h) A person punished under this section who considers the
punishment unjust or disproportionate to the offense may, through
the proper channel, appeal to the next superior authority within
fifteen days after the punishment is either announced or sent to
the accused, as the commander may determine. The appeal shall be
promptly forwarded and decided, but the person punished may in the
meantime be required to undergo the punishment adjudged. The
superior authority may exercise the same powers with respect to the
punishment imposed as may be exercised under subsection (g) by the
officer who imposed the punishment. Before acting on an appeal
from a punishment, the authority that is to act on the appeal may
refer the case to a judge advocate for consideration and advice.
(i) The imposition and enforcement of disciplinary punishment
under this section for any act or omission is not a bar to trial by
court-martial or a civilian court of competent jurisdiction for a
serious crime or offense growing out of the same act or omission
and not properly punishable under this article; but the fact that
a disciplinary punishment has been enforced may be shown by the
accused upon trial and, when so shown, it shall be considered in
determining the measure of punishment to be adjudged in the event of a finding of guilty.
(j) Whenever a punishment of forfeiture of pay is imposed
under this article, the forfeiture may apply to pay accruing
before, on, or after the date that punishment is imposed.
(k) Regulations may prescribe the form of records to be kept
of proceedings under this section and may prescribe that certain
categories of those proceedings shall be in writing.
PART IV. COURT-MARTIAL JURISDICTION.
§15-1E-16. Courts-martial classified.
The three kinds of courts-martial in the state military forces
are:
(1) General courts-martial, consisting of:
(A) A military judge and not less than five members; or
(B) Only a military judge, if before the court is assembled
the accused, knowing the identity of the military judge and after
consultation with defense counsel, requests orally on the record or
in writing a court composed only of a military judge and the
military judge approves;
(2) Special courts-martial, consisting of:
(A) A military judge and not less than three members; or
(B) Only a military judge, if one has been detailed to the
court, and the accused under the same conditions as those
prescribed in subdivision (1) of this section so requests; and
(3) Summary courts-martial, consisting of one commissioned
officer.
§15-1E-17. Jurisdiction of courts-martial in general.
Each component of the state military forces has court-martial
jurisdiction over all members of the particular component who are
subject to this article. Additionally, the Army and Air National
Guard state military forces have court-martial jurisdiction over
all members subject to this article.
§15-1E-18. Jurisdiction of general courts-martial.
Subject to section seventeen of this article, general courts-
martial have jurisdiction to try persons subject to this article
for any offense made punishable by this article, and may, under
such limitations as the Governor may prescribe, adjudge any
punishment not forbidden by this article.
§15-1E-19. Jurisdiction of special courts-martial.
Subject to section seventeen, special courts-martial have
jurisdiction to try persons subject to this article for any offense
made punishable by this article, and may, under such limitations as
the Governor may prescribe, adjudge any punishment not forbidden by
this article except dishonorable discharge, dismissal, confinement
for more than one year, forfeiture of pay exceeding two-thirds pay
per month, or forfeiture of pay for more than one year.
§15-1E-20. Jurisdiction of summary courts-martial.
(a) Subject to section seventeen of this article, summary
courts-martial have jurisdiction to try persons subject to this
article, except officers, cadets, candidates, and midshipmen, for any offense made punishable by this article under such limitations
as the Governor may prescribe.
(b) No person with respect to whom summary courts-martial have
jurisdiction may be brought to trial before a summary court-martial
if that person objects thereto. If objection to trial by summary
court-martial is made by an accused, trial by special or general
court-martial may be ordered, as may be appropriate. Summary
courts-martial may, under such limitations as the Governor may
prescribe, adjudge any punishment not forbidden by this article
except dismissal, dishonorable or bad-conduct discharge,
confinement for more than one month, restriction to specified
limits for more than two months, or forfeiture of more than two-
thirds of one month's pay.
§15-1E-21. Reserved.
PART V. APPOINTMENT AND COMPOSITION OF COURTS-MARTIAL.
§15-1E-22. Who may convene general courts-martial.
(a) General courts-martial may be convened by:
(1) The Governor;
(2) The Adjutant General;
(3) The commanding officer of a force of the state military
forces;
(4) The commanding officer of a division or a separate
brigade; or
(5) The commanding officer of a separate wing.
(b) If any such commanding officer is an accuser, the court shall be convened by superior competent authority and may in any
case be convened by such superior authority if considered desirable
by such authority.
§15-1E-23. Who may convene special courts-martial.
(a) Special courts-martial may be convened by:
(1) Any person who may convene a general court-martial;
(2) The commanding officer of a garrison, fort, post, camp,
station, Air National Guard base, or naval base or station;
(3) The commanding officer of a brigade, regiment, detached
battalion, or corresponding unit of the Army;
(4) The commanding officer of a wing, group, separate
squadron, or corresponding unit of the Air Force; or
(5) The commanding officer or officer in charge of any other
command when empowered by The Adjutant General.
(b) If any such officer is an accuser, the court shall be
convened by superior competent authority and may in any case be
convened by such superior authority if considered desirable by such
authority.
§15-1E-24. Who may convene summary courts-martial.
(a) Summary courts-martial may be convened:
(1) By any person who may convene a general or special court-
martial;
(2) The commanding officer of a detached company or other
detachment, or corresponding unit of the Army;
(3) The commanding officer of a detached squadron or other detachment, or corresponding unit of the Air Force; or
(4) The commanding officer or officer in charge of any other
command when empowered by The Adjutant General.
(b) When only one commissioned officer is present with a
command or detachment that officer shall be the summary court-
martial of that command or detachment and shall hear and determine
all summary court-martial cases. Summary courts-martial may,
however, be convened in any case by superior competent authority if
considered desirable by such authority.
§15-1E-25. Who may serve on courts-martial.
(a) Any commissioned officer of the state military forces is
eligible to serve on all courts-martial for the trial of any person
subject to this article.
(b) Any warrant officer of the state military forces is
eligible to serve on general and special courts-martial for the
trial of any person subject to this article, other than a
commissioned officer.
(c) Any enlisted member of the state military forces who is
not a member of the same unit as the accused is eligible to serve
on general and special courts-martial for the trial of any enlisted
member subject to this article, but that member shall serve as a
member of a court only if, before the conclusion of a session
called by the military judge under subsection (a), section thirty-
nine of this article prior to trial or, in the absence of such a
session, before the court is assembled for the trial of the accused, the accused personally has requested orally on the record
or in writing that enlisted members serve on it. After such a
request, the accused may not be tried by a general or special
court-martial the membership of which does not include enlisted
members in a number comprising at least one third of the total
membership of the court, unless eligible enlisted members cannot be
obtained on account of physical conditions or military exigencies.
If such members cannot be obtained, the court may be assembled and
the trial held without them, but the convening authority shall make
a detailed written statement, to be appended to the record, stating
why they could not be obtained. In this section, "unit" means any
regularly organized body of the state military forces not larger
than a company, a squadron, a division of the naval militia, or a
body corresponding to one of them.
(d) When it can be avoided, no person subject to this article
may be tried by a court-martial any member of which is junior to
the accused in rank or grade.
(e)When convening a court-martial, the convening authority
shall detail as members thereof such members of the state military
forces as, in the convening authority's opinion, are best qualified
for the duty by reason of age, education, training, experience,
length of service, and judicial temperament. No member of the
state military forces is eligible to serve as a member of a general
or special court-martial when that member is the accuser, a
witness, or has acted as investigating officer or as counsel in the same case.
(f) Before a court-martial is assembled for the trial of a
case, the convening authority may excuse a member of the court from
participating in the case. The convening authority may delegate
the authority under this subsection to a judge advocate or to any
other principal assistant.
§15-1E-26. Military judge of a general or special court-martial.
(a) A military judge shall be detailed to each general and
special court-martial. The military judge shall preside over each
open session of the court-martial to which the military judge has
been detailed.
(b) A military judge shall be:
(1) An active or retired commissioned officer of an organized
state military force;
(2) A member in good standing of the bar of the highest court
of a state or a member of the bar of a federal court for at least
five years; and
(3) Certified as qualified for duty as a military judge by the
senior force judge advocate which is the same force as the accused.
(c) In the instance when a military judge is not a member of
the bar of the highest court of the state, the military judge shall
be deemed admitted pro hac vice, subject to filing a certificate
with the senior force judge advocate which is the same force as the
accused setting forth such qualifications provided in subsection
(b).
(d) The military judge of a general or special court-martial
shall be designated by the senior force judge advocate which is the
same force as the accused, or a designee, for detail by the
convening authority. Neither the convening authority nor any staff
member of the convening authority shall prepare or review any
report concerning the effectiveness, fitness, or efficiency of the
military judge so detailed, which relates to performance of duty as
a military judge.
(e) No person is eligible to act as military judge in a case
if that person is the accuser or a witness, or has acted as
investigating officer or a counsel in the same case.
(f) The military judge of a court-martial may not consult with
the members of the court except in the presence of the accused,
trial counsel, and defense counsel nor vote with the members of the
court.
§15-1E-27. Detail of trial counsel and defense counsel.
(a) For each general and special court-martial the authority
convening the court shall detail trial counsel, defense counsel and
such assistants as are appropriate. No person who has acted as
investigating officer, military judge, witness or court member in
any case may act later as trial counsel, assistant trial counsel,
or, unless expressly requested by the accused, as defense counsel
or assistant or associate defense counsel in the same case. No
person who has acted for the prosecution may act later in the same
case for the defense nor may any person who has acted for the defense act later in the same case for the prosecution.
(b) Except as provided in subsection (c), trial counsel or
defense counsel detailed for a general or special court-martial
must be a judge advocate as defined in section one of this article
and in the case of trial counsel, a member in good standing of the
bar of the Supreme Court of Appeals of West Virginia.
(c) In the instance when a defense counsel is not a member of
the bar of the highest court of the state, the defense counsel
shall be deemed admitted pro hac vice, subject to filing a
certificate with the military judge setting forth the
qualifications that counsel is:
(1) A commissioned officer of the Armed Forces of the United
States or a component thereof; and
(2) A member in good standing of the bar of the highest court
of a state; and
(3) A certified as a judge advocate in the Judge Advocate
General's Corps of the Army, Air Force, Navy, or the Marine Corps;
or
(4) A judge advocate as defined in section one of this
article.
§15-1E-28. Detail or employment of reporters and interpreters.
Under such regulations as may be prescribed, the convening
authority of a general or special court-martial or court of inquiry
shall detail or employ qualified court reporters, who shall record
the proceedings of and testimony taken before that court and may detail or employ interpreters who shall interpret for the court.
§15-1E-29. Absent and additional members.
(a) No member of a general or special court-martial may be
absent or excused after the court has been assembled for the trial
of the accused unless excused as a result of a challenge, excused
by the military judge for physical disability or other good cause,
or excused by order of the convening authority for good cause.
(b) Whenever a general court-martial, other than a general
court-martial composed of a military judge only, is reduced below
five members, the trial may not proceed unless the convening
authority details new members sufficient in number to provide not
less than the applicable minimum number of five members. The trial
may proceed with the new members present after the recorded
evidence previously introduced before the members of the court has
been read to the court in the presence of the military judge, the
accused, and counsel for both sides.
(c) Whenever a special court-martial, other than a special
court-martial composed of a military judge only, is reduced below
three members, the trial may not proceed unless the convening
authority details new members sufficient in number to provide not
less than three members. The trial shall proceed with the new
members present as if no evidence had been introduced previously at
the trial, unless a verbatim record of the evidence previously
introduced before the members of the court or a stipulation thereof
is read to the court in the presence of the military judge, the accused, and counsel for both sides.
(d) If the military judge of a court-martial composed of a
military judge only is unable to proceed with the trial because of
physical disability, as a result of a challenge, or for other good
cause, the trial shall proceed, subject to any applicable
conditions of paragraph (b), subdivision (1) or paragraph (b),
subdivision (2) of section sixteen of this article, after the
detail of a new military judge as if no evidence had previously
been introduced, unless a verbatim record of the evidence
previously introduced or a stipulation thereof is read in court in
the presence of the new military judge, the accused, and counsel
for both sides.
PART VI. PRETRIAL PROCEDURE.
§15-1E-30. Charges and specifications.
(a) Charges and specifications shall be signed by a person
subject to this article under oath before a commissioned officer
authorized by subsection (a), section one hundred thirty-six of
this article to administer oaths and shall state:
(1) That the signer has personal knowledge of, or has
investigated, the matters set forth therein; and
(2) That they are true in fact to the best of the signer's
knowledge and belief.
(b) Upon the preferring of charges, the proper authority shall
take immediate steps to determine what disposition should be made
thereof in the interest of justice and discipline, and the person accused shall be informed of the charges as soon as practicable.
§15-1E-31. Compulsory self-incrimination prohibited.
(a) No person subject to this article may compel any person to
incriminate himself or herself or to answer any question the answer
to which may tend to incriminate him or her.
(b) No person subject to this article may interrogate or
request any statement from an accused or a person suspected of an
offense without first informing that person of the nature of the
accusation and advising that person that the person does not have
to make any statement regarding the offense of which the person is
accused or suspected and that any statement made by the person may
be used as evidence against the person in a trial by court-martial.
(c) No person subject to this article may compel any person to
make a statement or produce evidence before any military court if
the statement or evidence is not material to the issue and may tend
to degrade the person.
(d) No statement obtained from any person in violation of this
section or through the use of coercion, unlawful influence, or
unlawful inducement may be received in evidence against the person
in a trial by court-martial.
§15-1E-32. Investigation.
(a) No charge or specification may be referred to a general
court-martial for trial until a thorough and impartial
investigation of all the matters set forth therein has been made.
This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of
charges, and a recommendation as to the disposition which should be
made of the case in the interest of justice and discipline.
(b) The accused shall be advised of the charges against the
accused and of the right to be represented at that investigation by
counsel. The accused has the right to be represented at that
investigation as provided in section thirty-eight of this article
and in regulations prescribed under this article. At that
investigation, full opportunity shall be given to the accused to
cross-examine witnesses against the accused, if they are available,
and to present anything the accused may desire in the accused's own
behalf, either in defense or mitigation, and the investigating
officer shall examine available witnesses requested by the accused.
If the charges are forwarded after the investigation, they shall be
accompanied by a statement of the substance of the testimony taken
on both sides and a copy thereof shall be given to the accused.
(c) If an investigation of the subject matter of an offense
has been conducted before the accused is charged with the offense,
and if the accused was present at the investigation and afforded
the opportunities for representation, cross-examination, and
presentation prescribed in subsection (b), no further investigation
of that charge is necessary under this section unless it is
demanded by the accused after the accused is informed of the
charge. A demand for further investigation entitles the accused to
recall witnesses for further cross-examination and to offer any new evidence in the accused's own behalf.
(d) If evidence adduced in an investigation under this section
indicates that the accused committed an uncharged offense, the
investigating officer may investigate the subject matter of that
offense without the accused having first been charged with the
offense if the accused:
(1) Is present at the investigation;
(2) Is informed of the nature of each uncharged offense
investigated; and
(3) Is afforded the opportunities for representation, cross-
examination, and presentation prescribed in subsection (b).
(e) The requirements of this section are binding on all
persons administering this article but failure to follow them does
not constitute jurisdictional error.
§15-1E-33. Forwarding of charges.
When a person is held for trial by general court-martial, the
commanding officer shall within eight days after the accused is
ordered into arrest or confinement, if practicable, forwards the
charges, together with the investigation and allied papers, to the
person exercising general court-martial jurisdiction. If that is
not practicable, the commanding officer shall report in writing to
that person the reasons for delay.
§15-1E-34. Advice of judge advocate and reference for trial.
(a) Before directing the trial of any charge by general court-
martial, the convening authority shall refer it to a judge advocate for consideration and advice. The convening authority may not
refer a specification under a charge to a general court-martial for
trial unless the convening authority has been advised in writing by
a judge advocate that:
(1) The specification alleges an offense under this article;
(2) The specification is warranted by the evidence indicated
in the report of investigation under section thirty-two of this
article, if there is such a report; and
(3) A court-martial would have jurisdiction over the accused
and the offense.
(b) The advice of the judge advocate under subsection (a) with
respect to a specification under a charge shall include a written
and signed statement by the judge advocate:
(1) Expressing conclusions with respect to each matter set
forth in subsection (a); and
(2) Recommending action that the convening authority take
regarding the specification.
If the specification is referred for trial, the recommendation
of the judge advocate shall accompany the specification.
(c) If the charges or specifications are not correct formally
or do not conform to the substance of the evidence contained in the
report of the investigating officer, formal corrections, and such
changes in the charges and specifications as are needed to make
them conform to the evidence, may be made.
§15-1E-35. Service of charges.
The trial counsel shall serve or caused to be served upon the
accused a copy of the charges. No person may, against the person's
objection, be brought to trial before a general court-martial case
within a period of five days after the service of charges upon the
accused, or in a special court-martial, within a period of three
days after the service of charges upon the accused.
PART VII. TRIAL PROCEDURE.
§15-1E-36. Governor or the Adjutant General may prescribe rules.
Pretrial, trial, and post-trial procedures, including modes of
proof, for courts-martial cases arising under this article, and for
courts of inquiry, may be prescribed by the Governor or the
Adjutant General by regulations, or as otherwise provided by law,
which shall apply the principles of law and the rules of evidence
generally recognized in military criminal cases in the courts of
the Armed Forces but which may not be contrary to or inconsistent
with this article.
§15-1E-37. Unlawfully influencing action of court.
(a) No authority convening a general, special, or summary
court-martial, nor any other commanding officer, or officer serving
on the staff thereof, may censure, reprimand, or admonish the court
or any member, the military judge, or counsel thereof, with respect
to the findings or sentence adjudged by the court or with respect
to any other exercise of its or their functions in the conduct of
the proceedings. No person subject to this article may attempt to
coerce or, by any unauthorized means, influence the action of a court-martial or court of inquiry or any member thereof, in
reaching the findings or sentence in any case, or the action of any
convening, approving, or reviewing authority with respect to their
judicial acts. The foregoing provisions of the subsection shall
not apply with respect to: (1) General instructional or
informational courses in military justice if such courses are
designed solely for the purpose of instructing members of a command
in the substantive and procedural aspects of courts-martial; or (2)
to statements and instructions given in open court by the military
judge, summary court-martial officer, or counsel.
(b) In the preparation of an effectiveness, fitness, or
efficiency report, or any other report or document used, in whole
or in part, for the purpose of determining whether a member of the
state military forces is qualified to be advanced in grade, or in
determining the assignment or transfer of a member of the state
military forces, or in determining whether a member of the state
military forces should be retained on active status, no person
subject to this article may, in preparing any such report: (1)
Consider or evaluate the performance of duty of any such member as
a member of a court-martial or witness therein; or (2) Give a less
favorable rating or evaluation of any counsel of the accused
because of zealous representation before a court-martial.
§15-1E-38. Duties of trial counsel and defense counsel.
(a) The trial counsel of a general or special court-martial
shall be a member in good standing of the State Bar and shall prosecute in the name of the state, and shall, under the direction
of the court, prepare the record of the proceedings.
(b) (1) The accused has the right to be represented in defense
before a general or special court-martial or at an investigation
under section thirty-two of this article as provided in this
subsection.
(2) The accused may be represented by civilian counsel at the
provision and expense of the accused.
(3) The accused may be represented:
(A) By military counsel detailed under section twenty-seven of
this article; or
(B) By military counsel of the accused's own selection if that
counsel is reasonably available as determined under subdivision
(7).
(4) If the accused is represented by civilian counsel,
military counsel detailed or selected under subdivision (3) shall
act as associate counsel unless excused at the request of the
accused.
(5) Except as provided under subdivision (6), if the accused
is represented by military counsel of his or her own selection
under paragraph (B), subdivision (3), any military counsel detailed
under paragraph (A), subdivision (3), shall be excused.
(6) The accused is not entitled to be represented by more than
one military counsel. However, the person authorized under
regulations prescribed under section twenty-seven of this article to detail counsel, in that person's sole discretion:
(A) May detail additional military counsel as assistant
defense counsel; and
(B) If the accused is represented by military counsel of the
accused's own selection under paragraph (B), subdivision (3), may
approve a request from the accused that military counsel detailed
under paragraph (A), subdivision (3), act as associate defense
counsel.
(7) The senior force judge advocate of the same force of which
the accused is a member, shall determine whether the military
counsel selected by an accused is reasonably available.
(c) In any court-martial proceeding resulting in a conviction,
the defense counsel:
(1) May forward for attachment to the record of proceedings a
brief of such matters as counsel determines should be considered in
behalf of the accused on review, including any objection to the
contents of the record which counsel considers appropriate;
(2) May assist the accused in the submission of any matter
under section sixty of this article; and
(3) May take other action authorized by this article.
§15-1E-39. Sessions.
(a) At any time after the service of charges which have been
referred for trial to a court-martial composed of a military judge
and members, the military judge may, subject section thirty-five of
this article, call the court into session without the presence of the members for the purpose of:
(1) Hearing and determining motions raising defenses or
objections which are capable of determination without trial of the
issues raised by a plea of not guilty;
(2) Hearing and ruling upon any matter which may be ruled upon
by the military judge under this article, whether or not the matter
is appropriate for later consideration or decision by the members
of the court;
(3) Holding the arraignment and receiving the pleas of the
accused; and
(4) Performing any other procedural function which does not
require the presence of the members of the court under this
article.
(b) These proceedings shall be conducted in the presence of
the accused, the defense counsel, and the trial counsel and shall
be made a part of the record. These proceedings may be conducted
notwithstanding the number of court members and without regard to
section twenty-nine.
(c) When the members of a court-martial deliberate or vote,
only the members may be present. All other proceedings, including
any other consultation of the members of the court with counsel or
the military judge, shall be made a part of the record and shall be
in the presence of the accused, the defense counsel, the trial
counsel, and the military judge.
§15-1E-40. Continuances.
The military judge of a court-martial or a summary court-
martial may, for reasonable cause, grant a continuance to any party
for such time, and as often, as may appear to be just.
§15-1E-41. Challenges.
(a)(1) The military judge and members of a general or special
court-martial may be challenged by the accused or the trial counsel
for cause stated to the court. The military judge or the court
shall determine the relevancy and validity of challenges for cause
and may not receive a challenge to more than one person at a time.
Challenges by the trial counsel shall ordinarily be presented and
decided before those by the accused are offered.
(2) If exercise of a challenge for cause reduces the court
below the minimum number of members required by section sixteen of
this article, all parties shall, notwithstanding section twenty-
nine of this article, either exercise or waive any challenge for
cause then apparent against the remaining members of the court
before additional members are detailed to the court. However,
peremptory challenges shall not be exercised at that time.
(b)(1) Each accused and the trial counsel are entitled
initially to one peremptory challenge of members of the court. The
military judge may not be challenged except for cause.
(2) If exercise of a peremptory challenge reduces the court
below the minimum number of members required by section sixteen of
this article, the parties shall, notwithstanding section twenty-
nine of this article, either exercise or waive any remaining peremptory challenge, not previously waived, against the remaining
members of the court before additional members are detailed to the
court.
(3) Whenever additional members are detailed to the court, and
after any challenges for cause against such additional members are
presented and decided, each accused and the trial counsel are
entitled to one peremptory challenge against members not previously
subject to peremptory challenge.
§15-1E-42. Oaths or Affirmations.
(a) Before performing their respective duties, military
judges, general and special courts-martial members, trial counsel,
defense counsel, reporters, and interpreters shall take an oath or
affirmation in the presence of the accused to perform their duties
faithfully. The form of the oath or affirmation, the time and
place of the taking thereof, the manner of recording the same, and
whether the oath or affirmation shall be taken for all cases in
which these duties are to be performed or for a particular case,
shall be as prescribed in regulation or as provided by law. These
regulations may provide that an oath or affirmation to perform
faithfully the duties as a military judge, trial counsel, or
defense counsel may be taken at any time by any judge advocate or
other person certified or designated to be qualified or competent
for the duty, and if such an oath or affirmation is taken, it need
not again be taken at the time the judge advocate or other person
is detailed to that duty.
(b) Each witness before a court-martial shall be examined
under oath or affirmation.
§15-1E-43. Statute of limitations.
(a) Except as otherwise provided in this article, a person
charged with any offense is not liable to be tried by court-martial
or punished under section fifteen of this article if the offense
was committed more than three years before the receipt of sworn
charges and specifications by an officer exercising court-martial
jurisdiction over the command or before the imposition of
punishment under section fifteen of this article.
(b) Periods in which the accused is absent without authority
or fleeing from justice shall be excluded in computing the period
of limitation prescribed in this article.
(c) Periods in which the accused was absent from territory in
which the state has the authority to apprehend him or her, or in
the custody of civil authorities, or in the hands of the enemy,
shall be excluded in computing the period of limitation prescribed
in this article.
(d) When the United States is at war, the running of any
statute of limitations applicable to any offense under this
article:
(1) Involving fraud or attempted fraud against the United
States, any state, or any agency of either in any manner, whether
by conspiracy or not;
(2) Committed in connection with the acquisition, care, handling, custody, control, or disposition of any real or personal
property of the United States or any state; or
(3) Committed in connection with the negotiation, procurement,
award, performance, payment, interim financing, cancellation, or
other termination or settlement, of any contract, subcontract, or
purchase order which is connected with or related to the
prosecution of the war, or with any disposition of termination
inventory by any war contractor or government agency;
is suspended until two years after the termination of hostilities
as proclaimed by the President or by a joint resolution of
Congress.
(e)(1) If charges or specifications are dismissed as defective
or insufficient for any cause and the period prescribed by the
applicable statute of limitations:
(A) Has expired or will expire.
(B) Will expire within one hundred eighty days after the date
of dismissal of the charges and specifications,
trial and punishment under new charges and specifications are not
barred by the statute of limitations if the conditions specified in
subdivision (2) are met.
(2) The conditions referred to in subdivision (1) are that the
new charges and specifications must:
(A) Be received by an officer exercising summary court-martial
jurisdiction over the command within one hundred eighty days after
the dismissal of the charges or specifications; and
(B) Allege the same acts or omissions that were alleged in the
dismissed charges or specifications or allege acts or omissions
that were included in the dismissed charges or specifications.
§15-1E-44. Former jeopardy.
(a) No person may, without his or her consent, be tried a
second time for the same offense.
(b) No proceeding in which an accused has been found guilty by
a court-martial upon any charge or specification is a trial in the
sense of this section until the finding of guilty has become final
after review of the case has been fully completed.
(c) A proceeding which, after the introduction of evidence but
before a finding, is dismissed or terminated by the convening
authority or on motion of the prosecution for failure of available
evidence or witnesses without any fault of the accused is a trial
in the sense of this article.
§15-1E-45. Pleas of the accused.
(a) If an accused after arraignment makes an irregular
pleading, or after a plea of guilty sets up matter inconsistent
with the plea, or if it appears that the accused has entered the
plea of guilty improvidently or through lack of understanding of
its meaning and effect, or if the accused fails or refuses to
plead, a plea of not guilty shall be entered in the record, and the
court shall proceed as though the accused had pleaded not guilty.
(b) With respect to any charge or specification to which a
plea of guilty has been made by the accused and accepted by the military judge or by a court-martial without a military judge, a
finding of guilty of the charge or specification may be entered
immediately without vote. This finding shall constitute the
finding of the court unless the plea of guilty is withdrawn prior
to announcement of the sentence, in which event, the proceedings
shall continue as though the accused had pleaded not guilty.
§15-1E-46. Opportunity to obtain witnesses and other evidence.
The trial counsel, the defense counsel, and the court-martial
shall have equal opportunity to obtain witnesses and other evidence
as prescribed by regulations and provided by law. Process issued
in court-martial cases to compel witnesses to appear and testify
and to compel the production of other evidence shall apply the
principles of law and the rules of courts-martial generally
recognized in military criminal cases in the courts of the Armed
Forces of the United States, but which may not be contrary to or
inconsistent with this article. Process shall run to any part of
the United States, or the Territories, Commonwealths, and
possessions, and may be executed by civil officers as prescribed by
the laws of the place where the witness or evidence is located or
of the United States.
§15-1E-47. Refusal to appear or testify.
(a) Any person not subject to this article who:
(1)Has been duly subpoenaed to appear as a witness or to
produce books and records before a court-martial or court of
inquiry, or before any military or civil officer designated to take a deposition to be read in evidence before such a court;
(2) Has been duly paid or tendered the fees and mileage of a
witness at the rates allowed to witnesses attending a criminal
court of the state; and
(3) Willfully neglects or refuses to appear, or refuses to
qualify as a witness or to testify or to produce any evidence which
that person may have been legally subpoenaed to produce; may be
punished by the military court in the same manner as a criminal
court of the state.
(b) The fees and mileage of witnesses shall be advanced or
paid out of the appropriations for the compensation of witnesses.
§15-1E-48. Contempts.
A military judge or summary court-martial officer may punish
for contempt any person who uses any menacing word, sign, or
gesture in its presence, or who disturbs its proceedings by any
riot or disorder.
(1) A person subject to this article may be punished for
contempt by confinement not to exceed thirty days or a fine of
$100, or both.
(2) A person not subject to this article may be punished for
contempt by a military court in the same manner as a criminal court
of the state.
§15-1E-49. Depositions.
(a) At any time after charges have been signed as provided in
section thirty of this article, any party may take oral or written depositions unless the military judge or summary court-martial
officer hearing the case or, if the case is not being heard, an
authority competent to convene a court-martial for the trial of
those charges forbids it for good cause.
(b) The party at whose instance a deposition is to be taken
shall give to every other party reasonable written notice of the
time and place for taking the deposition.
(c) Depositions may be taken before and authenticated by any
military or civil officer authorized by the laws of the state or by
the laws of the place where the deposition is taken to administer
oaths.
(d) A duly authenticated deposition taken upon reasonable
notice to the other parties, so far as otherwise admissible under
the rules of evidence, may be read in evidence or, in the case of
audiotape, videotape, digital image or file, or similar material,
may be played in evidence before any military court, if it appears:
(1) That the witness resides or is beyond the state in which
the court is ordered to sit, or beyond one hundred miles from the
place of trial or hearing;
(2) That the witness by reason of death, age, sickness, bodily
infirmity, imprisonment, military necessity, non amenability to
process, or other reasonable cause, is unable or refuses to appear
and testify in person at the place of trial or hearing; or
(3) That the present whereabouts of the witness is unknown.
§15-1E-50. Admissibility of records of courts of inquiry.
(a) In any case not extending to the dismissal of a
commissioned officer, the sworn testimony, contained in the duly
authenticated record of proceedings of a court of inquiry, of a
person whose oral testimony cannot be obtained, may, if otherwise
admissible under the rules of evidence, be read in evidence by any
party before a court-martial if the accused was a party before the
court of inquiry and if the same issue was involved or if the
accused consents to the introduction of such evidence.
(b) Such testimony may be read in evidence only by the defense
in cases extending to the dismissal of a commissioned officer.
(c) Such testimony may also be read in evidence before a court
of inquiry.
§15-1E-50a. Defense of lack of mental responsibility.
(a) It is an affirmative defense in a trial by court-martial
that, at the time of the commission of the acts constituting the
offense, the accused, as a result of a severe mental disease or
defect, was unable to appreciate the nature and quality or the
wrongfulness of the acts. Mental disease or defect does not
otherwise constitute a defense.
(b) The accused has the burden of proving the defense of lack
of mental responsibility by clear and convincing evidence.
(c) Whenever lack of mental responsibility of the accused with
respect to an offense is properly at issue, the military judge
shall instruct the members of the court as to the defense of lack
of mental responsibility under this section and charge them to find the accused:
(1) Guilty;
(2) Not guilty; or
(3) Not guilty only by reason of lack of mental
responsibility.
(d) Subsection (c) does not apply to a court-martial composed
of a military judge only. In the case of a court-martial composed
of a military judge only or a summary court-martial officer,
whenever lack of mental responsibility of the accused with respect
to an offense is properly at issue, the military judge or summary
court-martial officer shall find the accused:
(1) Guilty;
(2) Not guilty; or
(3) Not guilty only by reason of lack of mental
responsibility.
(e) Notwithstanding the provisions of section fifty-two of
this article, the accused shall be found not guilty only by reason
of lack of mental responsibility if:
(1) A majority of the members of the court-martial present at
the time the vote is taken determines that the defense of lack of
mental responsibility has been established; or
(2) In the case of a court-martial composed of a military
judge only or a summary court-martial officer, the military judge
or summary court-martial officer determines that the defense of
lack of mental responsibility has been established.
§15-1E-51. Voting and rulings.
(a) Voting by members of a general or special court-martial on
the findings and on the sentence shall be by secret written ballot.
The junior member of the court shall count the votes. The count
shall be checked by the president, who shall forthwith announce the
result of the ballot to the members of the court.
(b) The military judge shall rule upon all questions of law
and all interlocutory questions arising during the proceedings.
Any such ruling made by the military judge upon any question of law
or any interlocutory question other than the factual issue of
mental responsibility of the accused is final and constitutes the
ruling of the court. However, the military judge may change the
ruling at any time during the trial. Unless the ruling is final,
if any member objects thereto, the court shall be cleared and
closed and the question decided by a voice vote as provided in
section fifty-two of this article, beginning with the junior in
rank.
(c) Before a vote is taken on the findings, the military judge
shall, in the presence of the accused and counsel, instruct the
members of the court as to the elements of the offense and charge
them:
(1) That the accused must be presumed to be innocent until his
or her guilt is established by legal and competent evidence beyond
reasonable doubt;
(2) That in the case being considered, if there is a or reasonable doubt as to the guilt of the accused, the doubt must be
resolved in favor of the accused and the accused must be acquitted;
(3) That, if there is a reasonable doubt as to the degree of
guilt, the finding must be in a lower degree as to which there is
no reasonable doubt; and
(4) That the burden of proof to establish the guilt of the
accused beyond reasonable doubt is upon the state.
(d) Subsections (a), (b), and (c) do not apply to a court-
martial composed of a military judge only. The military judge of
such a court-martial shall determine all questions of law and fact
arising during the proceedings and, if the accused is convicted,
adjudge an appropriate sentence. The military judge of such a
court-martial shall make a general finding and shall in addition,
on request, find the facts specially. If an opinion or memorandum
of decision is filed, it will be sufficient if the findings of fact
appear therein.
§15-1E-52. Number of votes required.
(a) No person may be convicted of an offense except as provided
in section forty-two of this article or by the concurrence of two
thirds of the members present at the time the vote is taken.
(b) All other questions to be decided by the members of a
general or special court-martial shall be determined by a majority
vote, but a determination to reconsider a finding of guilty or to
reconsider a sentence, with a view toward decreasing it, may be made
by any lesser vote which indicates that the reconsideration is not opposed by the number of votes required for that finding or
sentence. A tie vote on a challenge disqualifies the member
challenged. A tie vote on a motion relating to the question of the
accused's sanity is a determination against the accused. A tie vote
on any other question is a determination in favor of the accused.
§15-1E-53. Court to announce action.
A court-martial shall announce its findings and sentence to the
parties as soon as determined.
§15-1E-54. Record of trial.
(a) Each general and special court-martial shall keep a
separate record of the proceedings in each case brought before it,
and the record shall be authenticated by the signature of the
military judge. If the record cannot be authenticated by the
military judge by reason of his or her death, disability, or
absence, it shall be authenticated by the signature of the trial
counsel or by that of a member, if the trial counsel is unable to
authenticate it by reason of his or her death, disability, or
absence. In a court-martial consisting of only a military judge,
the record shall be authenticated by the court reporter under the
same conditions which would impose such a duty on a member under
this subsection.
(b) (1) A complete verbatim record of the proceedings and
testimony shall be prepared in each general and special court-
martial case resulting in a conviction.
(2) In all other court-martial cases, the record shall contain such matters as may be prescribed by regulations.
(c) Each summary court-martial shall keep a separate record of
the proceedings in each case, and the record shall be authenticated
in the manner as may be prescribed by regulations.
(d) A copy of the record of the proceedings of each general and
special court-martial shall be given to the accused as soon as it
is authenticated.
PART VIII. SENTENCES.
§15-1E-55. Cruel and unusual punishments prohibited.
Punishment by flogging, or by branding, marking, or tattooing
on the body, or any other cruel or unusual punishment may not be
adjudged by a court-martial or inflicted upon any person subject to
this article. The use of irons, single or double, except for the
purpose of safe custody, is prohibited.
§15-1E-56. Maximum limits.
(a) The punishment which a court-martial may direct for an
offense may not exceed such limits as prescribed by this article,
but in no instance may a sentence exceed more than ten years for a
military offense, nor shall a sentence of death be adjudged. A
conviction by general court-martial of any military offense for
which an accused may receive a sentence of confinement for more than
one year is a felony offense. Except for convictions by a summary
court-martial, all other military offenses are misdemeanors. Any
conviction by a summary court-martial is not a criminal conviction.
(b) The limits of punishment for violations of the punitive articles prescribed herein shall be lesser of the sentences
prescribed by the manual for courts-martial of the United States in
effect on January 1, 2004, and the state manual for courts-martial,
but in no instance shall any punishment exceed that authorized by
this article.
§15-1E-57. Effective date of sentences.
(a) Whenever a sentence of a court-martial as lawfully adjudged
and approved includes a forfeiture of pay or allowances in addition
to confinement not suspended, the forfeiture may apply to pay or
allowances becoming due on or after the date the sentence is
approved by the convening authority. No forfeiture may extend to
any pay or allowances accrued before that date.
(b) Any period of confinement included in a sentence of a
court-martial begins to run from the date the sentence is adjudged
by the court-martial, but periods during which the sentence to
confinement is suspended or deferred shall be excluded in computing
the service of the term of confinement.
(c) All other sentences of courts-martial are effective on the
date ordered executed.
§15-1E-57a. Deferment of sentences.
(a) On application by an accused who is under sentence to
confinement that has not been ordered executed, the convening
authority or, if the accused is no longer under that person's
jurisdiction, the person exercising general court-martial
jurisdiction over the command to which the accused is currently assigned, may in that person's sole discretion defer service of the
sentence to confinement. The deferment shall terminate when the
sentence is ordered executed. The deferment may be rescinded at any
time by the person who granted it or, if the accused is no longer
under that person's jurisdiction, by the person exercising general
court-martial jurisdiction over the command to which the accused is
currently assigned.
(b)(1) In any case in which a court-martial sentences an
accused referred to in subdivision (2) of this subsection, to
confinement, the convening authority may defer the service of the
sentence to confinement, without the consent of the accused, until
after the accused has been permanently released to the state
military forces by a state, the United States, or a foreign country
referred to in that subdivision.
(2) Subdivision (1) of this subsection applies to a person
subject to this article who:
(A) While in the custody of a state, the United States, or a
foreign country is temporarily returned by that state, the United
States, or a foreign country to the state military forces for trial
by court-martial; and
(B) After the court-martial, is returned to that state, the
United States, or a foreign country under the authority of a mutual
agreement or treaty, as the case may be.
(3) In this subsection, the term "state" includes the District
of Columbia and any Commonwealth, Territory, or possession of the United States.
(c) In any case in which a court-martial sentences an accused
to confinement and the sentence to confinement has been ordered
executed, but in which review of the case under subsection (a),
section sixty-seven of this article is pending, the Adjutant General
may defer further service of the sentence to confinement while that
review is pending.
§15-1E-58. Execution of confinement.
(a) A sentence of confinement adjudged by a court-martial,
whether or not the sentence includes discharge or dismissal, and
whether or not the discharge or dismissal has been executed, may be
carried into execution by confinement in any place authorized by
this article. Persons so confined are subject to the same
discipline and treatment as persons regularly confined or committed
to that place of confinement.
(b) The omission of "hard labor" as a sentence authorized under
this article does not deprive the state confinement facility from
employing it, if it otherwise is within the authority of that
facility to do so.
(c) No place of confinement may require payment of any fee or
charge for so receiving or confining a person except as otherwise
provided by law.
§15-1E-58a. Sentences: reduction in enlisted grade upon approval.
(a) A court-martial sentence of an enlisted member in a pay
grade above E-1, as approved by the convening authority, that includes:
(1) a dishonorable or bad-conduct discharge; or
(2) confinement;
reduces that member to pay grade E-1, effective on the date of that
approval.
(b) If the sentence of a member who is reduced in pay grade
under subsection (a) is set aside or disapproved, or, as finally
approved, does not include any punishment named in subsection (a),
the rights and privileges of which the person was deprived because
of that reduction shall be restored, including pay and allowances.
§15-1E-58b. Sentences: forfeiture of pay and allowances during
confinement.
(a)(1) A court-martial sentence described in subdivision (2)
of this subsection shall result in the forfeiture of pay, or of pay
and allowances, due that member during any period of confinement or
parole. The forfeiture pursuant to this section shall take effect
on the date determined under subsection (a), section fifty-seven of
this article and may be deferred as provided by that section. The
pay and allowances forfeited, in the case of a general court-
martial, shall be all pay and allowances due that member during such
period and, in the case of a special court-martial, shall be two-
thirds of all pay due that member during such period.
(2) A sentence covered by this section is any sentence that
includes:
(A) Confinement for more than six months; or
(B) Confinement for six months or less and a dishonorable or
bad-conduct discharge or dismissal.
(b) In a case involving an accused who has dependents, the
convening authority or other person acting under section sixty of
this article may waive any or all of the forfeitures of pay and
allowances required by subsection (a) for a period not to exceed six
months. Any amount of pay or allowances that, except for a waiver
under this subsection, would be forfeited shall be paid, as the
convening authority or other person taking action directs, to the
dependents of the accused.
(c) If the sentence of a member who forfeits pay and allowances
under subsection (a) is set aside or disapproved or, as finally
approved, does not provide for a punishment referred to in
subdivision (2), subsection (a), the member shall be paid the pay
and allowances which the member would have been paid, except for the
forfeiture, for the period during which the forfeiture was in
effect.
PART IX. POST-TRIAL PROCEDURE AND REVIEW OF COURTS-MARTIAL.
§15-1E-59. Error of law; lesser included offense.
(a) A finding or sentence of a court-martial may not be held
incorrect on the ground of an error of law unless the error
materially prejudices the substantial rights of the accused.
(b) Any reviewing authority with the power to approve or affirm
a finding of guilty may approve or affirm, instead, so much of the
finding as includes a lesser included offense.
§15-1E-60. Action by the convening authority.
(a) The findings and sentence of a court-martial shall be
reported promptly to the convening authority after the announcement
of the sentence.
(b)(1) The accused may submit to the convening authority
matters for consideration by the convening authority with respect
to the findings and the sentence. Any such submission shall be in
writing. Except in a summary court-martial case, such a submission
shall be made within ten days after the accused has been given an
authenticated record of trial and, if applicable, the recommendation
of a judge advocate under subsection (d). In a summary court-
martial case, such a submission shall be made within seven days
after the sentence is announced.
(2) If the accused shows that additional time is required for
the accused to submit such matters, the convening authority or other
person taking action under this section, for good cause, may extend
the applicable period under subdivision (1) for not more than an
additional twenty days.
(3) In a summary court-martial case, the accused shall be
promptly provided a copy of the record of trial for use in preparing
a submission authorized by subdivision (1).
(4) The accused may waive the right to make a submission to the
convening authority under subdivision (1). Such a waiver must be
made in writing and may not be revoked. For the purposes of
subdivision (2), subsection (c), the time within which the accused may make a submission under this subsection shall be deemed to have
expired upon the submission of such a waiver to the convening
authority.
(c)(1) The authority under this section to modify the findings
and sentence of a court-martial is a matter of command prerogative
involving the sole discretion of the convening authority. If it is
impractical for the convening authority to act, the convening
authority shall forward the case to a person exercising general
court-martial jurisdiction who may take action under this section.
(2) Action on the sentence of a court-martial shall be taken
by the convening authority or by another person authorized to act
under this section. Such action may be taken only after
consideration of any matters submitted by the accused under
subsection (b) or after the time for submitting such matters
expires, whichever is earlier. The convening authority or other
person taking such action, in that person's sole discretion may
approve, disapprove, commute, or suspend the sentence in whole or
in part.
(3) Action on the findings of a court-martial by the convening
authority or other person acting on the sentence is not required.
However, such person, in the person's sole discretion may:
(A) Dismiss any charge or specification by setting aside a
finding of guilty thereto; or
(B) 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.
(d) Before acting under this section on any general or special
court-martial case in which there is a finding of guilt, the
convening authority or other person taking action under this section
shall obtain and consider the written recommendation of a judge
advocate. The convening authority or other person taking action
under this section shall refer the record of trial to the judge
advocate, and the judge advocate shall use such record in the
preparation of the recommendation. The recommendation of the judge
advocate shall include such matters as may be prescribed by
regulation and shall be served on the accused, who may submit any
matter in response under subsection (b). Failure to object in the
response to the recommendation or to any matter attached to the
recommendation waives the right to object thereto.
(e)(1) The convening authority or other person taking action
under this section, in the person's sole discretion, may order a
proceeding in revision or a rehearing.
(2) A proceeding in revision may be ordered if there is an
apparent error or omission in the record or if the record shows
improper or inconsistent action by a court-martial with respect to
the findings or sentence that can be rectified without material
prejudice to the substantial rights of the accused. In no case,
however, may a proceeding in revision:
(A) Reconsider a finding of not guilty of any specification or
a ruling which amounts to a finding of not guilty;
(B) Reconsider a finding of not guilty of any charge, unless
there has been a finding of guilty under a specification laid under
that charge, which sufficiently alleges a violation of some section
of this article; or
(C) Increase the severity of the sentence unless the sentence
prescribed for the offense is mandatory.
(3) A rehearing may be ordered by the convening authority or
other person taking action under this section if that person
disapproves the findings and sentence and states the reasons for
disapproval of the findings. If such person disapproves the
findings and sentence and does not order a rehearing, that person
shall dismiss the charges. A rehearing as to the findings may not
be ordered where there is a lack of sufficient evidence in the
record to support the findings. A rehearing as to the sentence may
be ordered if the convening authority or other person taking action
under this subsection disapproves the sentence.
§15-1E-61. Withdrawal of appeal.
(a) In each case subject to appellate review under this
article, the accused may file with the convening authority a
statement expressly withdrawing the right of the accused to such
appeal. Such a withdrawal shall be signed by both the accused and
his or her defense counsel and must be filed in accordance with
appellate procedures as provided by law.
(b) The accused may withdraw an appeal at any time in
accordance with appellate procedures as provided by law.
§15-1E-62. Appeal by the state.
(a)(1) In a trial by court-martial in which a punitive
discharge may be adjudged, the state may appeal the following, other
than a finding of not guilty with respect to the charge or
specification by the members of the court-martial, or by a judge in
a bench trial so long as it is not made in reconsideration:
(A) An order or ruling of the military judge which terminates
the proceedings with respect to a charge or specification.
(B) An order or ruling which excludes evidence that is
substantial proof of a fact material in the proceeding.
(C) An order or ruling which directs the disclosure of
classified information.
(D) An order or ruling which imposes sanctions for
nondisclosure of classified information.
(E) A refusal of the military judge to issue a protective order
sought by the state to prevent the disclosure of classified
information.
(F) A refusal by the military judge to enforce an order
described in paragraph (E) that has previously been issued by
appropriate authority.
(2) An appeal of an order or ruling may not be taken unless the
trial counsel provides the military judge with written notice of
appeal from the order or ruling within seventy-two hours of the
order or ruling. Such notice shall include a certification by the
trial counsel that the appeal is not taken for the purpose of delay and, if the order or ruling appealed is one which excludes evidence,
that the evidence excluded is substantial proof of a fact material
in the proceeding.
(3) An appeal under this section shall be diligently prosecuted
as provided by law.
(b) An appeal under this section shall be forwarded to the
court prescribed in section sixty-seven-a of this article. In
ruling on an appeal under this article, that court may act only with
respect to matters of law.
(c) Any period of delay resulting from an appeal under this
section shall be excluded in deciding any issue regarding denial of
a speedy trial unless an appropriate authority determines that the
appeal was filed solely for the purpose of delay with the knowledge
that it was totally frivolous and without merit.
§15-1E-63. Rehearings.
Each rehearing under this article shall take place before a
court-martial composed of members not members of the court-martial
which first heard the case. Upon a rehearing the accused may not
be tried for any offense of which he or she was found not guilty by
the first court-martial, and no sentence in excess of or more severe
than the original sentence may be approved, unless the sentence is
based upon a finding of guilty of an offense not considered upon the
merits in the original proceedings, or unless the sentence
prescribed for the offense is mandatory. If the sentence approved
after the first court-martial was in accordance with a pretrial agreement and the accused at the rehearing changes a plea with
respect to the charges or specifications upon which the pretrial
agreement was based, or otherwise does not comply with the pretrial
agreement, the approved sentence as to those charges or
specifications may include any punishment not in excess of that
lawfully adjudged at the first court-martial.
§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:
(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
(C) The sentence was within the limits prescribed as a matter
of law.
(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.
§15-1E-65. Disposition of records after review by the convening
authority.
Except as otherwise required by this article, all records of
trial and related documents shall be transmitted and disposed of as
prescribed by regulation and provided by law.
§15-1E-66. Reserved.
§15-1E-67. Reserved.
§15-1E-67a. Review by State Appellate Authority.
Decisions of a court-martial are from a court with jurisdiction
to issue felony convictions and appeals are to the West Virginia
Supreme Court of Appeals. The appellate procedures to be followed
shall be those provided by law for the appeal of criminal cases
thereto.
§15-1E-68. Reserved.
§15-1E-69. Reserved.
§15-1E-70. Appellate counsel.
(a) The senior force judge advocate shall detail a judge
advocate as appellate government counsel to represent the state in
the review or appeal of cases specified in section sixty-seven-a of
this article and before any federal court when requested to do so by
the state Attorney General. Appellate government counsel must be a
member in good standing of the bar of the highest court of the state
to which the appeal is taken.
(b) Upon an appeal by the state, an accused has the right to be represented by detailed military counsel before any reviewing
authority and before any appellate court.
(c) Upon the appeal by an accused, the accused has the right to
be represented by military counsel before any reviewing authority.
(d) Upon the request of an accused entitled to be so
represented, the senior force judge advocate shall appoint a judge
advocate to represent the accused in the review or appeal of cases
specified in subsections (b) and (c) of this section.
(e) An accused may be represented by civilian appellate counsel
at no expense to the state.
§15-1E-71. Execution of sentence; suspension of sentence.
(a) If the sentence of the court-martial extends to dismissal
or a dishonorable or bad-conduct discharge and if the right of the
accused to appellate review is not waived, and an appeal is not
withdrawn under section sixty-one of this article, that part of the
sentence extending to dismissal or a dishonorable or bad-conduct
discharge may not be executed until there is a final judgment as to
the legality of the proceedings. A judgment as to the legality of
the proceedings is final in such cases when review is completed by
an appellate court prescribed in section sixty-seven-a of this
article, and is deemed final by the law of state where the judgment
was had.
(b) If the sentence of the court-martial extends to dismissal
or a dishonorable or bad conduct discharge and if the right of the
accused to appellate review is waived, or an appeal is withdrawn under section sixty-one of this article, that part of the sentence
extending to dismissal or a dishonorable or bad-conduct discharge
may not be executed until review of the case by the senior force
judge advocate and any action on that review under section sixty-
four of this article is completed. Any other part of a court-
martial sentence may be ordered executed by the convening authority
or other person acting on the case under section sixty of this
article when so approved under that section.
§15-1E-72. Vacation of suspension.
(a) Before the vacation of the suspension of a special court-
martial sentence, which as approved includes a bad-conduct
discharge, or of any general court-martial sentence, the officer
having special court-martial jurisdiction over the probationer shall
hold a hearing on an alleged violation of probation. The
probationer shall be represented at the hearing by military counsel
if the probationer so desires.
(b) The record of the hearing and the recommendation of the
officer having special court-martial jurisdiction shall be sent for
action to the officer exercising general court-martial jurisdiction
over the probationer. If the officer vacates the suspension, any
unexecuted part of the sentence, except a dismissal, shall be
executed, subject to applicable restrictions in this article.
(c) The suspension of any other sentence may be vacated by any
authority competent to convene, for the command in which the accused
is serving or assigned, a court of the kind that imposed the sentence.
§15-1E-73. Petition for a new trial.
At any time within two years after approval by the convening
authority of a court-martial sentence the accused may petition the
Adjutant General for a new trial on the grounds of newly discovered
evidence or fraud on the court-martial.
§15-1E-74. Remission and suspension.
(a) Any authority competent to convene, for the command in
which the accused is serving or assigned, a court of the kind that
imposed the sentence may remit or suspend any part or amount of the
unexecuted part of any sentence, including all uncollected
forfeitures other than a sentence approved by the Governor.
(b) The Governor may, for good cause, substitute an
administrative form of discharge for a discharge or dismissal
executed in accordance with the sentence of a court-martial.
§15-1E-75. Restoration.
(a) Under such regulations as may be prescribed, all rights,
privileges, and property affected by an executed part of a court-
martial sentence which has been set aside or disapproved, except an
executed dismissal or discharge, shall be restored unless a new
trial or rehearing is ordered and such executed part is included in
a sentence imposed upon the new trial or rehearing.
(b) If a previously executed sentence of dishonorable or bad-
conduct discharge is not imposed on a new trial, the Governor may substitute therefore a form of discharge authorized for
administrative issuance unless the accused is to serve out the
remainder of the accused's enlistment.
(c) If a previously executed sentence of dismissal is not
imposed on a new trial, the Governor may substitute therefore a form
of discharge authorized for administrative issue, and the
commissioned officer dismissed by that sentence may be reappointed
by the Governor alone to such commissioned grade and with such rank
as in the opinion of the Governor that former officer would have
attained had he not been dismissed. The reappointment of such a
former officer shall be without regard to the existence of a vacancy
and shall affect the promotion status of other officers only insofar
as the Governor may direct. All time between the dismissal and the
reappointment shall be considered as actual service for all
purposes, including the right to pay and allowances.
§15-1E-76. Finality of proceedings, findings, and sentences.
The appellate review of records of trial provided by this
article, the proceedings, findings, and sentences of courts-martial
as approved, reviewed, or affirmed as required by this article, and
all dismissals and discharges carried into execution under sentences
by courts-martial following approval, review, or affirmation as
required by this article, are final and conclusive. Orders
publishing the proceedings of courts-martial and all action taken
pursuant to those proceedings are binding upon all departments,
courts, agencies, and officers of the United States and the several states, subject only to action upon a petition for a new trial as
provided in section seventy-three of this article and to action
under section seventy-four of this article.
§15-1E-76a. Leave required to be taken pending review of certain
court-martial convictions.
Under regulations prescribed, an accused who has been sentenced
by a court-martial may be required to take leave pending completion
of action under this section if the sentence, as approved under
section sixty of this article, includes an unsuspended dismissal or
an unsuspended dishonorable or bad-conduct discharge. The accused
may be required to begin such leave on the date on which the
sentence is approved under section sixty of this article or at any
time after such date, and such leave may be continued until the date
on which action under this section is completed or may be terminated
at any earlier time.
§15-1E-76b. Lack of mental capacity or mental responsibility:
commitment of accused for examination and
treatment.
(a) Persons incompetent to stand trial.
(1) In the case of a person determined under this article to be
presently suffering from a mental disease or defect rendering the
person mentally incompetent to the extent that the person is unable
to understand the nature of the proceedings against that person or
to conduct or cooperate intelligently in the defense of the case, the general court-martial convening authority for that person shall
commit the person to the custody of the Department of Health and
Human Resources.
(2) The Department of Health and Human Resources shall take
action in accordance with the state statute applicable to persons
incompetent to stand trial. If at the end of the period for
hospitalization provided in the state statute applicable to persons
incompetent to stand trial, it is determined that the committed
person's mental condition has not so improved as to permit the trial
to proceed, action shall be taken in accordance with the state
statute applicable to persons incompetent to stand trial.
(3)(A) When the director of a facility in which a person is
hospitalized pursuant to subdivision (2) determines that the person
has recovered to such an extent that the person is able to
understand the nature of the proceedings against the person and to
conduct or cooperate intelligently in the defense of the case, the
director shall promptly transmit a notification of that
determination to the Department of Health and Human Resources and
to the general court-martial convening authority for the person.
The director shall send a copy of the notification to the person's
counsel.
(B) Upon receipt of a notification, the general court-martial
convening authority shall promptly take custody of the person unless
the person covered by the notification is no longer subject to this
article. If the person is no longer subject to this article, the Department of Health and Human Resources shall take any action
within its authority it considers appropriate regarding the person.
(C) The director of the facility may retain custody of the
person for not more than thirty days after transmitting the
notifications required by subdivision (3)
, subsection (a).
(4) In the application of the state statute applicable to
persons incompetent to stand trial to a case under this subsection,
references to the court that ordered the commitment of a person, and
to the clerk of such court, shall be deemed to refer to the general
court-martial convening authority for that person. However, if the
person is no longer subject to this article at a time relevant to
the application of such section to the person, the state trial court
with felony jurisdiction in the county where the person is
hospitalized or otherwise may be found shall be considered as the
court that ordered the commitment of the person.
(b) Persons found not guilty by reason of lack of mental
responsibility.
(1) If a person is found by a court-martial not guilty only by
reason of lack of mental responsibility, the person shall be
committed to a suitable facility until the person is eligible for
release in accordance with this article.
(2) The court-martial shall conduct a hearing on the mental
condition in accordance with the state statute applicable to persons
incompetent to stand trial.
(3) A report of the results of the hearing shall be made to the general court-martial convening authority for the person.
(4) If the court-martial fails to find, by the standard
specified in the state statute applicable to persons incompetent to
stand trial, that the person's release would not create a
substantial risk of bodily injury to another person or serious
damage of property of another due to a present mental disease or
defect:
(A) The general court-martial convening authority may commit
the person to the custody of the Department of Health and Human
Resources; and
(B) The Department of Health and Human Resources shall take
action in accordance with the state statute applicable to persons
incompetent to stand trial.
(5) The state statute applicable to persons incompetent to
stand trial, shall apply in the case of a person hospitalized
pursuant to paragraph (B), subdivision (4), except that the state
trial court with felony jurisdiction in the county where the person
is hospitalized shall be considered as the court that ordered the
person's commitment.
(c) General provisions.
(1) Except as otherwise provided in this subsection and
subdivision (1), subsection (d), the state statute most closely
comparable to 18 U.S.C. 4247(d), apply in the administration of this
section.
(2) In the application of the state statute most closely comparable to 18 U.S.C. 4247(d), to hearings conducted by a court-
martial under this section or by order of a general court-martial
convening authority under this article, the reference in that
section to article 3006A of such title does not apply.
(d) Applicability.
(1) The state statute most closely comparable to chapter 313 of
title 18, United States Code, [10 U.S.C. § 4241 et seq.] referred to
in this section apply according to the provisions of this section
notwithstanding article 4247(j) of title 18.
(2) If the status of a person as described in section two of
this article, terminates while the person is, pursuant to this
section, in the custody of the Department of Health and Human
Resources, hospitalized, or on conditional release under a
prescribed regimen of medical, psychiatric, or psychological care or
treatment, the provisions of this section establishing requirements
and procedures regarding a person no longer subject to this article
shall continue to apply to that person notwithstanding the change of
status.
PART X. PUNITIVE ARTICLES.
§15-1E-77. Principals.
Any person subject to this article is a principal who:
(1) Commits an offense punishable by this article, or aids,
abets, counsels, commands, or procures its commission; or
(2) Causes an act to be done which if directly performed by him
or her would be punishable by this article.
§15-1E-78. Accessory after the fact.
Any person subject to this article who, knowing that an offense
punishable by this article has been committed, receives, comforts,
or assists the offender in order to hinder or prevent his or her
apprehension, trial, or punishment shall be punished as a court-
martial may direct.
§15-1E-79. Conviction of lesser included offense.
An accused may be found guilty of an offense necessarily
included in the offense charged or of an attempt to commit either
the offense charged or an offense necessarily included therein.
§15-1E-80. Attempts.
(a) An act, done with specific intent to commit an offense
under this article, amounting to more than mere preparation and
tending, even though failing, to effect its commission, is an
attempt to commit that offense.
(b) Any person subject to this article who attempts to commit
any offense punishable by this article shall be punished as a court-
martial may direct, unless otherwise specifically prescribed.
(c) Any person subject to this article may be convicted of an
attempt to commit an offense although it appears on the trial that
the offense was consummated.
§15-1E-81. Conspiracy.
Any person subject to this article who conspires with any other
person to commit an offense under this article shall, if one or more of the conspirators does an act to effect the object of the
conspiracy, be punished as a court-martial may direct.
§15-1E-82. Solicitation.
(a) Any person subject to this article who solicits or advises
another or others to desert in violation of section eighty-five of
this article or mutiny in violation of section ninety-four of this
article shall, if the offense solicited or advised is attempted or
committed, be punished with the punishment provided for the
commission of the offense, but, if the offense solicited or advised
is not committed or attempted, the person shall be punished as a
court-martial may direct.
(b) Any person subject to this article who solicits or advises
another or others to commit an act of misbehavior before the enemy
in violation of section ninety-nine of this article or sedition in
violation of section ninety-four of this article shall, if the
offense solicited or advised is committed, be punished with the
punishment provided for the commission of the offense, but, if the
offense solicited or advised is not committed, the person shall be
punished as a court-martial may direct.
§15-1E-83. Fraudulent enlistment, appointment, or separation.
Any person, shall be punished as a court-martial may direct,
who:
(1) Procures his or her own enlistment or appointment in the
state military forces by knowingly false representation or
deliberate concealment as to his or her qualifications for that enlistment or appointment and receives pay or allowances there
under; or
(2) Procures his or her own separation from the state military
forces by knowingly false representation or deliberate concealment
as to his or her eligibility for that separation.
§15-1E-84. Unlawful enlistment, appointment, or separation.
Any person subject to this article who effects an enlistment or
appointment in or a separation from the state military forces of any
person who is known to him or her to be ineligible for that
enlistment, appointment, or separation because it is prohibited by
law, regulation, or order shall be punished as a court-martial may
direct.
§15-1E-85. Desertion.
(a) Any member of the state military forces who:
(1) Without authority goes or remains absent from his or her
unit, organization, or place of duty with intent to remain away
there from permanently;
(2) Quits his unit, organization, or place of duty with intent
to avoid hazardous duty or to shirk important service; or
(3) Without being regularly separated from one of the state
military forces enlists or accepts an appointment in the same or
another one of the state military forces, or in one of the Armed
Forces of the United States, without fully disclosing the fact that
he has not been regularly separated, or enters any foreign armed
service except when authorized by the United States;
is guilty of desertion.
(b) Any commissioned officer of the state military forces who,
after tender of his or her resignation and before notice of its
acceptance, quits his or her post or proper duties without leave and
with intent to remain away there from permanently is guilty of
desertion.
(c) Any person found guilty of desertion or attempt to desert
shall be punished, if the offense is committed in time of war, by
confinement of not more than ten years or such other punishment as
a court-martial may direct, but if the desertion or attempt to
desert occurs at any other time, by such punishment as a court-
martial may direct.
§15-1E-86. Absence without leave.
Any person subject to this article who, without authority:
(1) Fails to go to his or her appointed place of duty at the
time prescribed;
(2) Goes from that place; or
(3) Absents himself or herself or remains absent from his or
her unit, organization, or place of duty at which he or she is
required to be at the time prescribed;
shall be punished as a court-martial may direct.
§15-1E-87. Missing movement.
Any person subject to this article who through neglect or
design misses the movement of a ship, aircraft, or unit with which
he or she is required in the course of duty to move shall be punished as a court-martial may direct.
§15-1E-88. Contempt toward officials.
Any commissioned officer who uses contemptuous words against
the President, the Vice President, Congress, the Secretary of
Defense, the Secretary of a military department, the Secretary of
Homeland Security, or the Governor or Legislature of the state shall
be punished as a court-martial may direct.
§15-1E-89. Disrespect toward superior commissioned officer.
Any person subject to this article who behaves with disrespect
toward his or her superior commissioned officer shall be punished as
a court-martial may direct.
§15-1E-90. Assaulting or willfully disobeying superior commissioned
officer.
Any person subject to this article who:
(1) Strikes his or her superior commissioned officer or draws
or lifts up any weapon or offers any violence against him or her
while he or she is in the execution of his or her office; or
(2) Willfully disobeys a lawful command of his or her superior
commissioned officer;
(3) Shall be punished, if the offense is committed in time of
war, by confinement of not more than ten years or such other
punishment as a court-martial may direct, and if the offense is
committed at any other time, by such punishment as a court-martial
may direct.
§15-1E-91. Insubordinate conduct toward warrant officer,
noncommissioned officer, or petty officer.
Any warrant officer or enlisted member who:
(1) Strikes or assaults a warrant officer, noncommissioned
officer, or petty officer, while that officer is in the execution of
his or her office;
(2) Willfully disobeys the lawful order of a warrant officer,
noncommissioned officer, or petty officer; or
(3) Treats with contempt or is disrespectful in language or
deportment toward a warrant officer, noncommissioned officer, or
petty officer, while that officer is in the execution of his or her
office;
shall be punished as a court-martial may direct.
§15-1E-92. Failure to obey order or regulation.
Any person subject to this article who:
(1) Violates or fails to obey any lawful general order or
regulation;
(2) Having knowledge of any other lawful order issued by a
member of the state military forces, which it is his or her duty to
obey, fails to obey the order; or
(3) Is derelict in the performance of his or her duties;
shall be punished as a court-martial may direct.
§15-1E-93. Cruelty and maltreatment.
Any person subject to this article who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his
orders shall be punished as a court-martial may direct.
§15-1E-94. Mutiny or sedition.
Any person subject to this article who:
(1) With intent to usurp or override lawful military authority,
refuses, in concert with any other person, to obey orders or
otherwise do his or her duty or creates any violence or disturbance
is guilty of mutiny;
(2) With intent to cause the overthrow or destruction of lawful
civil authority, creates, in concert with any other person, revolt,
violence, or other disturbance against that authority is guilty of
sedition;
(3) Fails to do his or her utmost to prevent and suppress a
mutiny or sedition being committed in his or her presence, or
fails to take all reasonable means to inform his or her superior
commissioned officer or commanding officer of a mutiny or sedition
which he or she knows or has reason to believe is taking place, is
guilty of a failure to suppress or report a mutiny or sedition.
(b) A person who is found guilty of attempted mutiny, mutiny,
sedition, or failure to suppress or report a mutiny or sedition
shall be punished as a court-martial may direct.
§15-1E-95. Resistance, flight, breach of arrest, and escape.
Any person subject to this article who:
(1) Resists apprehension;
(2) Flees from apprehension;
(3) Breaks arrest; or
(4) Escapes from custody or confinement;
shall be punished as a court-martial may direct.
§15-1E-96. Releasing prisoner without proper authority.
Any person subject to this article who, without proper
authority, releases any prisoner committed to his or her charge, or
who through neglect or design suffers any such prisoner to escape,
shall be punished as a court-martial may direct, whether or not the
prisoner was committed in strict compliance with law.
§15-1E-97. Unlawful detention.
Any person subject to this article who, except as provided by
law or regulation, apprehends, arrests, or confines any person shall
be punished as a court-martial may direct.
§15-1E-98. Noncompliance with procedural rules.
Any person subject to this article who:
(1) Is responsible for unnecessary delay in the disposition of
any case of a person accused of an offense under this article; or
(2) Knowingly and intentionally fails to enforce or comply with
any provision of this article regulating the proceedings before,
during, or after trial of an accused;
shall be punished as a court-martial may direct.
§15-1E-99. Misbehavior before the enemy.
Any person subject to this article who before or in the
presence of the enemy:
(1) Runs away;
(2) Shamefully abandons, surrenders, or delivers up any
command, unit, place, or military property which it is his or her
duty to defend;
(3) Through disobedience, neglect, or intentional misconduct
endangers the safety of any such command, unit, place, or military
property;
(4) Casts away his or her arms or ammunition;
(5) Is guilty of cowardly conduct;
(6) Quits his or her place of duty to plunder or pillage;
(7) Causes false alarms in any command, unit, or place under
control of the Armed Forces of the United States or the state
military forces;
(8) Willfully fails to do his or her utmost to encounter,
engage, capture, or destroy any enemy troops, combatants, vessels,
aircraft, or any other thing, which it is his or her duty so to
encounter, engage, capture, or destroy; or
(9) Does not afford all practicable relief and assistance to
any troops, combatants, vessels, or aircraft of the Armed Forces
belonging to the United States or their allies, to the state, or to
any other state, when engaged in battle;
shall be punished as a court-martial may direct.
§15-1E-100. Subordinate compelling surrender.
Any person subject to this article who compels or attempts to
compel the commander of any of the state military forces of the state, or of any other state, place, vessel, aircraft, or other
military property, or of any body of members of the Armed Forces, to
give it up to an enemy or to abandon it, or who strikes the colors
or flag to an enemy without proper authority, shall be punished as
a court-martial may direct.
§15-1E-101. Improper use of countersign.
Any person subject to this article who in time of war discloses
the parole or countersign to any person not entitled to receive it
or who gives to another, who is entitled to receive and use the
parole or countersign, a different parole or countersign from that
which, to his knowledge, he was authorized and required to give,
shall be punished as a court-martial may direct.
§15-1E-102. Forcing a safeguard.
Any person subject to this article who forces a safeguard shall
be punished as a court-martial may direct.
§15-1E-103. Captured or abandoned property.
(a) All persons subject to this article shall secure all public
property taken for the service of the United States or the state,
and shall give notice and turn over to the proper authority without
delay all captured or abandoned property in their possession,
custody, or control.
(b) Any person subject to this article who:
(1) Fails to carry out the duties prescribed in subsection (a);
(2) Buys, sells, trades, or in any way deals in or disposes of taken, captured, or abandoned property, whereby he or she receives
or expects any profit, benefit, or advantage to himself, herself or
another directly or indirectly connected with himself or herself; or
(3) Engages in looting or pillaging;
shall be punished as a court-martial may direct.
§15-1E-104. Aiding the enemy.
Any person subject to this article who:
(1) Aids, or attempts to aid, the enemy with arms, ammunition,
supplies, money, or other things; or
(2) Without proper authority, knowingly harbors or protects or
gives intelligence to, or communicates or corresponds with or holds
any intercourse with the enemy, either directly or indirectly:
shall be punished as a court-martial may direct.
§15-1E-105. Misconduct as prisoner.
Any person subject to this article who, while in the hands of
the enemy in time of war:
(1) For the purpose of securing favorable treatment by his or
her captors acts without proper authority in a manner contrary to
law, custom, or regulation, to the detriment of others of whatever
nationality held by the enemy as civilian or military prisoners; or
(2) While in a position of authority over such persons
maltreats them without justifiable cause;
shall be punished as a court-martial may direct.
§15-1E-106. Reserved.
§15-1E-107. False official statements.
Any person subject to this article who, with intent to deceive,
signs any false record, return, regulation, order, or other official
document made in the line of duty, knowing it to be false, or makes
any other false official statement made in the line of duty, knowing
it to be false, shall be punished as a court-martial may direct.
§15-1E-108. Military property - Loss, damage, destruction, or
wrongful disposition.
Any person subject to this article who, without proper
authority:
(1) Sells or otherwise disposes of;
(2) Willfully or through neglect damages, destroys, or loses;
or
(3) Willfully or through neglect suffers to be lost, damaged,
destroyed, sold, or wrongfully disposed of;
any military property of the United States or of any state, shall be
punished as a court-martial may direct.
§15-1E-109. Property other than military property - Waste,
spoilage, or destruction.
Any person subject to this article who willfully or recklessly
wastes, spoils, or otherwise willfully and wrongfully destroys or
damages any property other than military property of the United
States or of any state shall be punished as a court-martial may
direct.
§15-1E-110. Improper hazarding of vessel.
(a) Any person subject to this article who willfully and
wrongfully hazards or suffers to be hazarded any vessel of the Armed
Forces of the United States or any state military forces shall
suffer such punishment as a court-martial may direct.
(b) Any person subject to this article who negligently hazards
or suffers to be hazarded any vessel of the Armed Forces of the
United States or any state military forces shall be punished as a
court-martial may direct.
§15-1E-111. Reserved.
§15-1E-112. Drunk on duty.
Any person subject to this article other than a sentinel or
lookout, who is found drunk on duty, shall be punished as a court-
martial may direct.
§15-1E-112a. Wrongful use, possession, etc, of controlled
substances.
(a) Any person subject to this article who wrongfully uses,
possesses, manufactures, distributes, imports into the customs
territory of the United States, exports from the United States, or
introduces into an installation, vessel, vehicle, or aircraft used
by or under the control of the Armed Forces of the United States or
of any state military forces a substance described in subsection (b)
shall be punished as a court-martial may direct.
(b) The substances referred to in subsection (a) are the following:
(1) Opium, heroin, cocaine, amphetamine, lysergic acid
diethylamide, methamphetamine, phencyclidine, barbituric acid and
marijuana and any compound or derivative of any such substance.
(2) Any substance not specified in subdivision (1) that is
listed on a schedule of controlled substances prescribed by the
President for the purposes of the Uniform Code of Military Justice
of the Armed Forces of the United States.
(3) Any other substance not specified in subdivision (1) or
contained on a list prescribed by the President under subdivision
(2) that is listed in schedules I through V of article 202 of the
Controlled Substances Act 21 U.S.C. § 812.
§15-1E-113. Misbehavior of sentinel.
Any sentinel or look-out who is found drunk or sleeping upon
his post or leaves it before being regularly relieved, shall be
punished, if the offense is committed in time of war, by confinement
of not more than ten years or other punishment as a court-martial
may direct, but if the offense is committed at any other time, by
such punishment as a court-martial may direct.
§15-1E-114. Dueling.
Any person subject to this article who fights or promotes, or
is concerned in or connives at fighting a duel, or who, having
knowledge of a challenge sent or about to be sent, fails to report
the fact promptly to the proper authority, shall be punished as a
court-martial may direct.
§15-1E-115. Malingering.
Any person subject to this article who for the purpose of
avoiding work, duty, or service:
(1) Feigns illness, physical disablement, mental lapse, or
derangement; or
(2) Intentionally inflicts self-injury;
shall be punished as a court-martial may direct.
§15-1E-116. Riot or breach of peace.
Any person subject to this article who causes or participates
in any riot or breach of the peace shall be punished as a court-
martial may direct.
§15-1E-117. Provoking speeches or gestures.
Any person subject to this article who uses provoking or
reproachful words or gestures towards any other person subject to
this article shall be punished as a court-martial may direct.
§15-1E-118. Reserved.
§15-1E-119. Reserved.
§15-1E-120. Reserved.
§15-1E-121. Reserved.
§15-1E-122. Reserved.
§15-1E-123. Reserved.
§15-1E-124. Reserved.
§15-1E-125. Reserved.
§15-1E-126. Reserved.
§15-1E-127. Reserved.
§15-1E-128. Reserved.
§15-1E-129. Reserved.
§15-1E-130. Reserved.
§15-1E-131. Reserved.
§15-1E-132. Frauds against the government.
Any person subject to this article:
(1) Who, knowing it to be false or fraudulent:
(A) Makes any claim against the United States, the state, or
any officer thereof; or
(B) Presents to any person in the civil or military service
thereof, for approval or payment, any claim against the United
States, the state, or any officer thereof;
(2) Who, for the purpose of obtaining the approval, allowance,
or payment of any claim against the United States, the state, or any
officer thereof:
(A) Makes or uses any writing or other paper knowing it to
contain any false or fraudulent statements;
(B) Makes any oath, affirmation or certification to any fact
or to any writing or other paper knowing the oath, affirmation or
certification to be false; or
(C) Forges or counterfeits any signature upon any writing or
other paper, or uses any such signature knowing it to be forged or
counterfeited;
(3) Who, having charge, possession, custody, or control of any
money, or other property of the United States or the state,
furnished or intended for the Armed Forces of the United States or
the state military forces, knowingly delivers to any person having
authority to receive it, any amount thereof less than that for which
he or she receives a certificate or receipt; or
(4) Who, being authorized to make or deliver any paper
certifying the receipt of any property of the United States or the
state, furnished or intended for the Armed Forces of the United
States or the state military forces, makes or delivers to any person
such writing without having full knowledge of the truth of the
statements therein contained and with intent to defraud the United
States or the state;
shall, upon conviction, be punished as a court-martial may direct.
§15-1E-133. Conduct unbecoming an officer and a gentleman.
Any commissioned officer, cadet, candidate, or midshipman who
is convicted of conduct unbecoming an officer and a gentleman shall
be punished as a court-martial may direct.
§15-1E-134. General article.
Though not specifically mentioned in this article, all
disorders and neglects to the prejudice of good order and discipline
in the state military forces and all conduct of a nature to bring
discredit upon the state military forces shall be taken cognizance
of by a court-martial and punished at the discretion of a military
court. However, where a crime constitutes an offense that violates both this article and the criminal laws of the state where the
offense occurs or criminal laws of the United States, jurisdiction
of the military court must be determined in accordance with
subsection (b), section two of this article.
PART XI. MISCELLANEOUS PROVISIONS
§15-1E-135. Courts of inquiry.
(a) Courts of inquiry to investigate any matter of concern to
the state military forces may be convened by any person authorized
to convene a general court-martial, whether or not the persons
involved have requested such an inquiry.
(b) A court of inquiry consists of three or more commissioned
officers. For each court of inquiry, the convening authority shall
also appoint counsel for the court.
(c) Any person subject to this article whose conduct is subject
to inquiry shall be designated as a party. Any person subject to
this article who has a direct interest in the subject of inquiry has
the right to be designated as a party upon request to the court.
Any person designated as a party shall be given due notice and has
the right to be present, to be represented by counsel, to cross-
examine witnesses, and to introduce evidence.
(d) Members of a court of inquiry may be challenged by a party,
but only for cause stated to the court.
(e) The members, counsel, the reporter, and interpreters of
courts of inquiry shall take an oath to faithfully perform their
duties.
(f) Witnesses may be summoned to appear and testify and be
examined before courts of inquiry, as provided for courts-martial.
(g) Courts of inquiry shall make findings of fact but may not
express opinions or make recommendations unless required to do so by
the convening authority.
(h) Each court of inquiry shall keep a record of its
proceedings, which shall be authenticated by the signatures of the
president and counsel for the court and forwarded to the convening
authority. If the record cannot be authenticated by the president,
it shall be signed by a member in lieu of the president. If the
record cannot be authenticated by the counsel for the court, it
shall be signed by a member in lieu of the counsel.
§15-1E-136. Authority to administer oaths and to act as notary.
(a) The following persons may administer oaths for the purposes
of military administration, including military justice:
(1) All judge advocates.
(2) All summary courts-martial.
(3) All adjutants, assistant adjutants, acting adjutants, and
personnel adjutants.
(4) All commanding officers of the naval militia.
(5) All other persons designated by regulations of the Armed
Forces of the United States or by statute.
(b) The following persons may administer oaths necessary in the
performance of their duties:
(1) The president, military judge, and trial counsel for all general and special courts-martial.
(2) The president and the counsel for the court of any court of
inquiry.
(3) All officers designated to take a deposition.
(4) All persons detailed to conduct an investigation.
(5) All recruiting officers.
(6) All other persons designated by regulations of the Armed
Forces of the United States or by statute.
(c) The signature without seal of any such person, together
with the title of his office, is prima facie evidence of the
person's authority.
§15-1E-137. Articles to be explained.
(a) (1) The sections of this article specified in subdivision
(3) shall be carefully explained to each enlisted member at the time
of, or within thirty days after, the member's initial entrance into
a duty status with the state military forces.
(2) Such section shall be explained again:
(A) After the member has completed basic or recruit training;
and
(B) At the time when the member reenlists.
(3) This subsection applies with respect to sections two,
three, seven through fifteen, twenty-five, twenty-seven, thirty-one,
thirty-seven, thirty-eight, fifty-five, seventy-seven through one
hundred thirty-four, and one hundred thirty-seven through one
hundred thirty-nine of this article.
(b) The text of the article and of the regulations prescribed
under this article shall be made available to a member of the state
military forces, upon request by the member, for the member's
personal examination.
§15-1E-138. Complaints of wrongs.
Any member of the state military forces who believes himself or
herself wronged by a commanding officer, and who, upon due
application to that commanding officer, is refused redress, may
complain to any superior commissioned officer, who shall forward the
complaint to the officer exercising general court-martial
jurisdiction over the officer against whom it is made. The officer
exercising general court-martial jurisdiction shall examine into the
complaint and take proper measures for redressing the wrong
complained of; and shall, as soon as possible, send to the Adjutant
General a true statement of that complaint, with the proceedings had
thereon.
§15-1E-139. Redress of injuries to property.
(a) Whenever complaint is made to any commanding officer that
willful damage has been done to the property of any person or that
the person's property has been wrongfully taken by members of the
state military forces, that person may, under such regulations
prescribed, convene a board to investigate the complaint. The board
shall consist of from one to three commissioned officers and, for
the purpose of that investigation, it has power to summon witnesses
and examine them upon oath, to receive depositions or other documentary evidence, and to assess the damages sustained against
the responsible parties. The assessment of damages made by the
board is subject to the approval of the commanding officer, and in
the amount approved by that officer shall be charged against the pay
of the offenders. The order of the commanding officer directing
charges herein authorized is conclusive on any disbursing officer
for payment to the injured parties of the damages so assessed and
approved.
(b) If the offenders cannot be ascertained, but the
organization or detachment to which they belong is known, charges
totaling the amount of damages assessed and approved may be made in
such proportion as may be considered just upon the individual
members thereof who are shown to have been present at the scene at
the time the damages complained of were inflicted, as determined by
the approved findings of the board.
§15-1E-140. Delegation by the Governor.
The Governor may delegate any authority vested in the Governor
under this article, and provide for the sub delegation of any such
authority, except the power given the Governor by section twenty-two
of this article.
§15-1E-141. Payment of fees, costs and expenses.
(a) The fees and authorized travel expenses of all witnesses,
experts, victims, court reporters and interpreters, fees for the
service of process, the costs of collection, apprehension, detention
and confinement, and all other necessary expenses of prosecution and the administration of military justice, not otherwise payable by any
other source, shall be paid out of the military justice fund.
(b) For the foregoing purposes, there is created in the State
Treasury a special revenue account, designated the Military Justice
Fund that shall be administered by the Adjutant General, from which
expenses of military justice shall be paid in the amounts and manner
as prescribed by law. The Legislature may appropriate and have
deposited in the Military Justice Fund such funds as it deems
necessary to carry out the purposes of this article.
§15-1E-142. Payment of fines and disposition thereof.
(a) Fines imposed by a military court or through imposition of
nonjudicial punishment may be paid to the state and delivered to the
court or imposing officer, or to a person executing their process.
Fines may be collected in the following manner:
(1) By cash or money order;
(2) By credit or debit cards in accordance with rules
promulgated by the Adjutant General. Any charges made by the credit
company shall be paid by the person responsible for paying the fine
or costs;
(3) By retention of any pay or allowances due or to become due
the person fined from any state or the United States;
(4) By garnishment or levy, together with costs, on the wages,
goods, and chattels of a person delinquent in paying a fine, as
provided by law.
(b) Unless otherwise required by law, a military court may collect a portion of any costs or fines at the time the amount is
imposed by the court so long as the court requires the balance to be
paid in accordance with a payment plan which specifies:
(1) The number of payments to be made;
(2) the dates on which the payments are due; and
(3) the amounts due for each payment. The written agreement
represents the minimum payments and the last date those payments may
be made. The obligor or the obligor's agent may accelerate the
payment schedule at any time by paying any additional portion of any
costs or fines.
(c) If any costs or fines imposed by a military court or
through nonjudicial punishment in a case are not paid within one
hundred eighty days from the date of judgment and the expiration of
any stay of execution, the Adjutant General may notify the
Commissioner of the Division of Motor Vehicles of the failure to
pay: Provided, That in a case in which a person is a nonresident of
this state and is assessed a fine or costs by a military court or
through nonjudicial punishment, the Adjutant General may notify the
Division of Motor Vehicles of the failure to pay within eighty days
from the date of judgment and expiration of any stay of execution.
Upon notice, the Division of Motor Vehicles shall suspend any
privilege the person defaulting on payment may have to operate a
motor vehicle in this state, including any driver's license issued
to the person by the Division of Motor Vehicles, until all costs or
fines are paid in full. Provided, That any person who has had his or her license to operate a motor vehicle in this state suspended
pursuant to this subsection and his or her failure to pay is based
upon inability to pay, may, if he or she is employed on a full or
part-time basis, petition to the Adjutant General for an order
authorizing him or her to operate a motor vehicle solely for
employment purposes. Upon a showing satisfactory to the Adjutant
General of inability to pay, employment and compliance with other
applicable motor vehicle laws, the Adjutant General shall issue an
order granting relief.
(d) Any sum so received or retained shall be deposited in the
Military Justice Fund or to whomever the court so directs.
§15-1E-143. Uniformity of interpretation.
This article shall be so construed as to effectuate its general
purpose to make it uniform, so far as practical, with the Uniform
Code of Military Justice, chapter 47 of title 10, United States
Code.
§15-1E-144. Immunity for action of military courts.
All persons acting under the provisions of this article,
whether as a member of the military or as a civilian, shall be
immune from any personal liability for any of the acts or omissions
which they did or failed to do as part of their duties under this
article.
§15-1E-145. Reserved.
§15-1E-146. Short Title.
This article may be cited as the Uniform State Code of Military
Justice (USCMJ)."
§15-1E-147. Time of taking effect.
This act takes effect July 1, 2010.
§15-1E-148. Supersedes existing state military justice codes.
Upon enactment and the effective date, this law supersedes all
existing statutes, ordinances, directives, rules, regulations,
orders and other laws in the state covered by the subject matter of
this law, and all such statutes, ordinances, directives, rules,
regulations, orders and other laws are hereby repealed.