Full Text of SB2861 99th General Assembly
SB2861eng 99TH GENERAL ASSEMBLY |
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| 1 | | AN ACT concerning military justice.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 0.01. Short title. This Act may be cited as the | 5 | | Illinois Code of Military Justice. | 6 | | Section 0.02. Purpose. This Code is an exercise of the | 7 | | General Assembly's authority in the Constitution of the State | 8 | | of Illinois to provide for "discipline of the militia in | 9 | | conformity with the laws governing the armed forces of the | 10 | | United States" (Illinois Constitution, Article XII, Section | 11 | | 3). This Code is in conformity with the Uniform Code of | 12 | | Military Justice, at 10 U.S.C. Chapter 47, and the military | 13 | | justice provisions of Title 32 of the United States Code, as | 14 | | modified based on the American Bar Association-drafted "Model | 15 | | State Code for Military Justice" for National Guard forces not | 16 | | subject to the Uniform Code of Military Justice, adopted | 17 | | February 14, 2011 with appropriate further modifications | 18 | | specifically tailored for the Illinois National Guard. The | 19 | | purpose of this Act is to permit discipline of the Illinois | 20 | | National Guard by providing a military justice system that | 21 | | includes court-martial authorities meeting current legal | 22 | | standards of due process. |
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| 1 | | Section 0.03. References. Sections 1 through 149 of this | 2 | | Code
are also designated as Articles to conform to the federal | 3 | | Uniform Code of Military Justice to the extent possible. | 4 | | PART I. GENERAL PROVISIONS | 5 | | Section 1. Article 1. Definitions; gender neutrality. | 6 | | (a) In this Code, unless the context otherwise requires: | 7 | | (1) "Accuser" means a person who signs and swears to | 8 | | charges, any person who directs that charges nominally be | 9 | | signed and sworn to by another, and any other person who | 10 | | has an interest other than an official interest in the | 11 | | prosecution of the accused. | 12 | | (2) "Cadet" or "candidate" means a person who is | 13 | | enrolled in or attending a State military academy, a | 14 | | regional training institute, or any other formal education | 15 | | program for the purpose of becoming a commissioned officer | 16 | | in the State military forces. | 17 | | (3) "Classified information" means: | 18 | | (A) any information or material that has been | 19 | | determined by an official of the United States or any | 20 | | state pursuant to law, an Executive order, or | 21 | | regulation to require protection against unauthorized | 22 | | disclosure for reasons of national or state security, | 23 | | and | 24 | | (B) any restricted data, as defined in Section |
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| 1 | | 11(y) of the Atomic Energy Act of
1954 (42 U.S.C. | 2 | | 2014(y)). | 3 | | (4) "Code" means this Code. | 4 | | (5) "Commanding officer" includes only commissioned or | 5 | | warrant officers of the State military forces and shall | 6 | | include officers in charge only when administering | 7 | | nonjudicial punishment under Article 15 of this Code. The | 8 | | term "commander" has the same meaning as "commanding | 9 | | officer" unless the context otherwise requires. | 10 | | (6) "Convening authority" includes, in addition to the | 11 | | person who convened the court, a commissioned officer | 12 | | commanding for the time being or a successor in command to | 13 | | the convening authority. | 14 | | (7) "Day" for all purposes means calendar day beginning | 15 | | at 0000 hours (12:00 a.m.) and ending at 2359 hours, 59 | 16 | | seconds (12:59, 59 seconds p.m.), and is not synonymous | 17 | | with the term "unit training assembly". Any punishment | 18 | | authorized by this Article which is measured in terms of | 19 | | days shall, when served in a status other than annual field | 20 | | training, be construed to mean succeeding duty days. | 21 | | (8) "Duty status other than State active duty" means | 22 | | any other type of military duty or training pursuant to a | 23 | | written order issued by authority of law under Title 32 of | 24 | | the United States Code or traditional Inactive Duty | 25 | | Training periods pursuant to 32 U.S.C. 502(a). | 26 | | (9) "Enlisted member" means a person in an enlisted |
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| 1 | | grade. | 2 | | (10) "Judge advocate" means a commissioned officer of | 3 | | the organized State military forces who is a member in good | 4 | | standing of the bar of the highest court of a state, and | 5 | | is: | 6 | | (A) certified or designated as a judge advocate in | 7 | | the Judge Advocate General's Corps of the Army, Air | 8 | | Force, Navy, or the Marine Corps or designated as a law | 9 | | specialist as an officer of the Coast Guard, or a | 10 | | reserve or National Guard component of one of these; or | 11 | | (B) certified as a non-federally recognized judge | 12 | | advocate, under regulations adopted pursuant to this | 13 | | paragraph, by the senior judge advocate of the | 14 | | commander of the force in the State military forces of | 15 | | which the accused is a member, as competent to perform | 16 | | such military justice duties required by this Code. If | 17 | | there is no such judge advocate available, then such | 18 | | certification may be made by such senior judge advocate | 19 | | of the commander of another force in the State military | 20 | | forces, as the convening authority directs. | 21 | | (11) "May" is used in a permissive sense. The phrase | 22 | | "no person may . . ."
means that no person is required, | 23 | | authorized, or permitted to do the act prescribed. | 24 | | (12) "Military court" means a court-martial or a court | 25 | | of inquiry. | 26 | | (13) "Military judge" means an official of a general or |
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| 1 | | special court-martial detailed in accordance with Article | 2 | | 26 of this Code. | 3 | | (14) "Military offenses" means those offenses | 4 | | proscribed under Articles 77 (Principals), 78 (Accessory | 5 | | after the fact), 80 (Attempts), 81 (Conspiracy), 82 | 6 | | (Solicitation), 83 (Fraudulent enlistment, appointment, or | 7 | | separation), 84 (Unlawful enlistment, appointment, or | 8 | | separation), 85 (Desertion), 86 (Absence without leave), | 9 | | 87 (Missing movement), 88 (Contempt toward officials), 89 | 10 | | (Disrespect towards superior commissioned officer), 90 | 11 | | (Assaulting or willfully disobeying superior commissioned | 12 | | officer), 91 (Insubordinate conduct toward warrant | 13 | | officer, noncommissioned officer, or petty officer), 92 | 14 | | (Failure to obey order or regulation), 93 (Cruelty and | 15 | | maltreatment), 94 (Mutiny or sedition), 95 (Resistance, | 16 | | flight, breach of arrest, and escape), 96 (Releasing | 17 | | prisoner without proper authority), 97 (Unlawful | 18 | | detention), 98 (Noncompliance with procedural rules), 99 | 19 | | (Misbehavior before the enemy), 100 (Subordinate | 20 | | compelling surrender), 101 (Improper use of countersign), | 21 | | 102 (Forcing a safeguard), 103 (Captured or abandoned | 22 | | property), 104 (Aiding the enemy), 105 (Misconduct as | 23 | | prisoner), 107 (False official statements), 108 (Military | 24 | | property: loss, damage, destruction, or wrongful | 25 | | disposition), 109 (Property other than military property: | 26 | | waste, spoilage, or destruction), 110 (Improper hazarding |
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| 1 | | of vessel), 112 (Drunk on duty), 112a (Wrongful use, | 2 | | possession, etc., of controlled substances), 113 | 3 | | (Misbehavior of sentinel), 114 (Dueling), 115 | 4 | | (Malingering), 116 (Riot or breach of peace), 117 | 5 | | (Provoking speeches or gestures), 132 (Frauds against the | 6 | | government), 133 (Conduct unbecoming an officer and a | 7 | | gentleman), and 134 (General Article) of this Code. | 8 | | (15) "National security" means the national defense | 9 | | and foreign relations of the United States. | 10 | | (16) "Officer" means a commissioned or warrant | 11 | | officer. | 12 | | (17) "Officer in charge" means a member of the Navy, | 13 | | the
Marine Corps, or the Coast Guard designated as such by | 14 | | appropriate authority. | 15 | | (18) "Record", when used in connection with the | 16 | | proceedings of a court-martial, means: | 17 | | (A) an official written transcript, written | 18 | | summary, or other writing relating to the proceedings; | 19 | | or | 20 | | (B) an official audiotape, videotape, digital | 21 | | image or file, or similar material from which sound, or | 22 | | sound and visual images, depicting the proceedings may | 23 | | be reproduced. | 24 | | (19) "Shall" is used in an imperative sense. | 25 | | (20) "State" means one of the several states, the | 26 | | District of Columbia, the
Commonwealth of Puerto Rico, |
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| 1 | | Guam, or the U.S. Virgin Islands. | 2 | | (21) "State active duty" means active duty in the State | 3 | | military forces under an order of the Governor or the | 4 | | Adjutant General, or otherwise issued by authority of State | 5 | | law, and paid by State funds. | 6 | | (22) "Senior force judge advocate" means the senior | 7 | | judge advocate of the commander of the same force of the | 8 | | State military forces as the accused and who is that | 9 | | commander's chief legal advisor. | 10 | | (23) "State military forces" means the Illinois | 11 | | National Guard, as defined in Title 32, United States Code | 12 | | and the Military Code of Illinois and any other military | 13 | | force organized under the Constitution and laws of this | 14 | | State, to include the Illinois State Guard when organized | 15 | | by the Governor as Commander-in-Chief under the Military | 16 | | Code of Illinois and the Illinois State Guard Act, and when | 17 | | not in a status subjecting them to exclusive jurisdiction | 18 | | under Chapter 47 of Title 10, United States Code, and | 19 | | travel to and from such duty. | 20 | | (24) "Superior commissioned officer" means a | 21 | | commissioned officer superior in rank or command. | 22 | | (25) "Senior force commander" means the commander of | 23 | | the same force of the State military forces as the accused. | 24 | | (b) The use of the masculine gender throughout this Code | 25 | | also includes the feminine gender.
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| 1 | | Section 2. Article 2. Persons subject to this Code; | 2 | | jurisdiction. | 3 | | (a) This Code applies to all members of the State military | 4 | | forces during any day or portion of a day when in State active | 5 | | duty or in a duty status other than State active duty and at no | 6 | | other times. | 7 | | (b) Subject matter jurisdiction is established if personal | 8 | | jurisdiction is established in subsection (a). However, | 9 | | courts-martial have primary jurisdiction of military offenses | 10 | | as defined in paragraph (14) of subsection (a) of Article 1 of | 11 | | this Code. A proper civilian court has primary jurisdiction of | 12 | | a non-military offense when an act or omission violates both | 13 | | this Code and a state or local criminal law, foreign or | 14 | | domestic. In such a case, a court-martial may be initiated only | 15 | | after the civilian authority has declined to prosecute or | 16 | | dismissed the charge, provided jeopardy has not attached. | 17 | | Jurisdiction over attempted crimes, conspiracy crimes, | 18 | | solicitation, and accessory crimes must be determined by the | 19 | | underlying offense. | 20 | | Section 3. Article 3. Jurisdiction to try certain | 21 | | personnel. | 22 | | (a) Each person discharged from the State military forces | 23 | | who is later charged with having fraudulently obtained a | 24 | | discharge is, subject to Article 43 of this Code, subject to | 25 | | trial by court-martial on that charge and is, after |
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| 1 | | apprehension, subject to this Code while in custody under the | 2 | | direction of the State military forces for that trial. Upon | 3 | | conviction of that charge that person is subject to trial by | 4 | | court-martial for all offenses under this Code committed before | 5 | | the fraudulent discharge. | 6 | | (b) No person who has deserted from the State military | 7 | | forces may be relieved from amenability to the jurisdiction of | 8 | | this Code by virtue of a separation from any later period of | 9 | | service. | 10 | | Section 4. Article 4. (Reserved). | 11 | | Section 5. Article 5. Territorial applicability of this | 12 | | Code. | 13 | | (a) This Code has applicability at all times and in all | 14 | | places, provided that there is jurisdiction over the person | 15 | | pursuant to subsection (a) of Article 2; however, this grant of | 16 | | military jurisdiction shall neither preclude nor limit | 17 | | civilian jurisdiction over an offense, which is limited only by | 18 | | subsection (b) of Article 2 and the prohibition of double | 19 | | jeopardy. | 20 | | (b) Courts-martial and courts of inquiry may be convened | 21 | | and held in units of the State military forces while those | 22 | | units are serving outside this State with the same jurisdiction | 23 | | and powers as to persons subject to this Code as if the | 24 | | proceedings were held inside this State, and offenses committed |
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| 1 | | outside this State may be tried and punished either inside or | 2 | | outside this State. | 3 | | Section 6. Article 6. Judge Advocates. | 4 | | (a) The senior force judge advocates in each of the State's | 5 | | military forces or that judge advocate's delegates shall make | 6 | | frequent inspections in the field in supervision of the | 7 | | administration of military justice in that force. | 8 | | (b) Convening authorities shall at all times communicate | 9 | | directly with their judge advocates in matters relating to the | 10 | | administration of military justice. The judge advocate of any | 11 | | command is entitled to communicate directly with the judge | 12 | | advocate of a superior or subordinate command, or with the | 13 | | State Judge Advocate. | 14 | | (c) No person who has acted as member, military judge, | 15 | | trial counsel, defense counsel, or investigating officer, or | 16 | | who has been a witness, in any case may later act as a judge | 17 | | advocate to any reviewing authority upon the same case. | 18 | | Section 6a. Article 6a. Military judges. The Governor or | 19 | | the Adjutant General shall appoint at least one judge advocate | 20 | | officer from the active rolls of the Illinois National Guard | 21 | | who has been previously certified and qualified for duty as a | 22 | | military judge by the Judge Advocate General of the judge | 23 | | advocate officer's respective armed force under Article 26(b) | 24 | | of the federal Uniform Code of Military Justice to serve as a |
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| 1 | | military judge under this Code. The military judge shall hold | 2 | | the rank of Major or above. | 3 | | PART II. APPREHENSION AND RESTRAINT | 4 | | Section 7. Article 7. Apprehension. | 5 | | (a) Apprehension is the taking of a person into custody. | 6 | | (b) Any person authorized by this Code or by Chapter 47 of | 7 | | Title 10, United States Code, or by regulations issued under | 8 | | either, to apprehend persons subject to this Code, any marshal | 9 | | of a court-martial appointed pursuant to the provisions of this | 10 | | Code, and any peace officer or civil officer having authority | 11 | | to apprehend offenders under the laws of the United States or | 12 | | of a state, may do so upon probable cause that an offense has | 13 | | been committed and that the person apprehended committed it. | 14 | | (c) Commissioned officers, warrant officers, petty | 15 | | officers, and noncommissioned officers have authority to quell | 16 | | quarrels, frays, and disorders among persons subject to this | 17 | | Code and to apprehend persons subject to this Code who take | 18 | | part therein. | 19 | | (d) If an offender is apprehended outside this State, the | 20 | | offender's return to the area must be in accordance with normal | 21 | | extradition procedures or by reciprocal agreement. | 22 | | (e) No person authorized by this Article to apprehend | 23 | | persons subject to this Code or the place where such offender | 24 | | is confined, restrained, held, or otherwise housed may require |
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| 1 | | payment of any fee or charge for so receiving, apprehending, | 2 | | confining, restraining, holding, or otherwise housing a person | 3 | | except as otherwise provided by law. | 4 | | Section 8. Article 8. (Reserved). | 5 | | Section 9. Article 9. Imposition of restraint. | 6 | | (a) Arrest is the restraint of a person by an order, not | 7 | | imposed as a punishment for an offense, directing him to remain | 8 | | within certain specified limits. Confinement is the physical | 9 | | restraint of a person. | 10 | | (b) An enlisted member may be ordered into arrest or | 11 | | confinement by any commissioned officer by an order, oral or | 12 | | written, delivered in person or through other persons subject | 13 | | to this Code. A commanding officer may authorize warrant | 14 | | officers, petty officers, or noncommissioned officers to order | 15 | | enlisted members of the commanding officer's command or subject | 16 | | to the commanding officer's authority into arrest or | 17 | | confinement. | 18 | | (c) A commissioned officer, a warrant officer, or a | 19 | | civilian subject to this Code or to trial thereunder may be | 20 | | ordered into arrest or confinement only by a commanding officer | 21 | | to whose authority the person is subject, by an order, oral or | 22 | | written, delivered in person or by another commissioned | 23 | | officer. The authority to order such persons into arrest or | 24 | | confinement may not be delegated. |
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| 1 | | (d) No person subject to this Code may be ordered into | 2 | | arrest or confinement except for probable cause after | 3 | | coordination with a judge advocate officer unless impractical | 4 | | or not possible. | 5 | | (e) This Article does not limit the authority of persons | 6 | | authorized to apprehend offenders to secure the custody of an | 7 | | alleged offender until proper authority may be notified. | 8 | | Section 10. Article 10. Restraint of persons charged with | 9 | | offenses. Any person subject to this Code charged with an | 10 | | offense under this Code may be ordered into arrest or | 11 | | confinement, as circumstances may require. When any person | 12 | | subject to this Code is placed in arrest or confinement prior | 13 | | to trial, immediate steps shall be taken to inform the person | 14 | | of the specific wrong of which the person is accused and | 15 | | diligent steps shall be taken to try the person or to dismiss | 16 | | the charges and release the person. | 17 | | Section 11. Article 11. Place of confinement; reports and | 18 | | receiving of prisoners. | 19 | | (a) If a person subject to this Code is confined before, | 20 | | during, or after trial, confinement shall be in a civilian | 21 | | county jail, a Department of Corrections facility, or a | 22 | | military confinement facility. | 23 | | (b) No person, Sheriff, or individual in a Department of | 24 | | Corrections facility authorized to receive prisoners pursuant |
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| 1 | | to subsection (a) may refuse to receive or keep any prisoner | 2 | | committed to the person's charge by a commissioned officer of | 3 | | the State military forces, when the committing officer | 4 | | furnishes a statement, signed by such officer, of the offense | 5 | | charged or conviction obtained against the prisoner, unless | 6 | | otherwise authorized by law. | 7 | | (c) Every person authorized to receive prisoners pursuant | 8 | | to subsection (a) to whose charge a prisoner is committed | 9 | | shall, within 24 hours after that commitment or as soon as the | 10 | | person is relieved from guard, report to the commanding officer | 11 | | of the prisoner the name of the prisoner, the offense charged | 12 | | against the prisoner, and the name of the person who ordered or | 13 | | authorized the commitment. | 14 | | Section 12. Article 12. Confinement with enemy prisoners | 15 | | prohibited. No member of the State military forces may be | 16 | | placed in confinement in immediate association with enemy | 17 | | prisoners or other foreign nationals not members of the armed | 18 | | forces. | 19 | | Section 13. Article 13. Punishment prohibited before | 20 | | trial. No person, while being held for trial or awaiting a | 21 | | verdict, may be subjected to punishment or penalty other than | 22 | | arrest or confinement upon the charges pending against the | 23 | | person, nor shall the arrest or confinement imposed upon such | 24 | | person be any more rigorous than the circumstances required to |
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| 1 | | ensure the person's presence, but the person may be subjected | 2 | | to minor punishment during that period for infractions of | 3 | | discipline. | 4 | | Section 14. Article 14. Delivery of offenders to civil | 5 | | authorities. | 6 | | (a) A person subject to this Code accused of an offense | 7 | | against civil authority may be delivered, upon request, to the | 8 | | civil authority for trial or confinement. | 9 | | (b) When delivery under this Article is made to any civil | 10 | | authority of a person undergoing sentence of a court-martial, | 11 | | the delivery, if followed by conviction in a civil tribunal, | 12 | | interrupts the execution of the sentence of the court-martial, | 13 | | and the offender after having answered to the civil authorities | 14 | | for the offense shall, upon the request of competent military | 15 | | authority, be returned to the place of original custody for the | 16 | | completion of the person's sentence.
| 17 | | PART III. NON-JUDICIAL PUNISHMENT | 18 | | Section 15. Article 15. Non-judicial punishment | 19 | | proceedings. Notwithstanding any other provision of law, | 20 | | including, but not limited to, the Illinois Administrative | 21 | | Procedure Act, the Governor or the Adjutant General is hereby | 22 | | authorized to effectuate non-judicial punishment proceedings | 23 | | pursuant to such regulations as prescribed in his discretion; |
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| 1 | | and said regulations may impose disciplinary punishments for | 2 | | minor offenses without the intervention of a court-martial | 3 | | pursuant to this Article. The Governor or the Adjutant General | 4 | | may delegate the powers to create the regulations under this | 5 | | Article to a State Judge Advocate of the State military forces. | 6 | | PART IV. COURT-MARTIAL JURISDICTION | 7 | | Section 16. Article 16. Courts-martial classified. The 3 | 8 | | kinds of courts-martial in the State military forces are: | 9 | | (1) general courts-martial, consisting of: | 10 | | (A) a military judge and not less than 5 members; | 11 | | or | 12 | | (B) only a military judge, if before the court is | 13 | | assembled the accused, knowing the identity of the | 14 | | military judge and after consultation with defense | 15 | | counsel, requests orally on the record or in writing a | 16 | | court composed only of a military judge and the | 17 | | military judge approves; | 18 | | (2) special courts-martial, consisting of: | 19 | | (A) a military judge and not less than 3 members; | 20 | | or | 21 | | (B) only a military judge, if one has been detailed | 22 | | to the court, and the accused under the same conditions | 23 | | as those prescribed in subparagraph (B) of paragraph | 24 | | (1) so requests; and |
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| 1 | | (3) summary courts-martial consisting of one | 2 | | commissioned officer.
| 3 | | Section 17. Article 17. Jurisdiction of courts-martial in | 4 | | general. Each component of the State military forces has | 5 | | court-martial jurisdiction over all members of the particular | 6 | | component who are subject to this Code. Additionally, the Army | 7 | | and Air National Guard State military forces have court-martial | 8 | | jurisdiction over all members subject to this Code. | 9 | | Section 18. Article 18. Jurisdiction of general | 10 | | courts-martial. Subject to Article 17 of this Code, general | 11 | | courts-martial have jurisdiction to try persons subject to this | 12 | | Code for any offense made punishable by this Code, and may, | 13 | | under such limitations as the Governor may prescribe, adjudge | 14 | | any punishment not forbidden by this Code. | 15 | | Section 19. Article 19. Jurisdiction of special | 16 | | courts-martial. Subject to Article 17, special courts-martial | 17 | | have jurisdiction to try persons subject to this Code for any | 18 | | offense made punishable by this Code, and may, under such | 19 | | limitations as the Governor may prescribe, adjudge any | 20 | | punishment not forbidden by this Code except dishonorable | 21 | | discharge, dismissal, confinement for more than one year, | 22 | | forfeiture of pay exceeding two-thirds pay per month, or | 23 | | forfeiture of pay for more than one year. |
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| 1 | | Section 20. Article 20. Jurisdiction of summary | 2 | | courts-martial. | 3 | | (a) Subject to Article 17 of this Code, summary | 4 | | courts-martial have jurisdiction to try persons
subject to this | 5 | | Code, except officers, cadets, and candidates for any offense | 6 | | made
punishable by this Code under such limitations as the | 7 | | Governor may prescribe. | 8 | | (b) No person with respect to whom summary courts-martial | 9 | | have jurisdiction may be brought
to trial before a summary | 10 | | court-martial if that person objects thereto. If objection to | 11 | | trial by
summary court-martial is made by an accused, trial by | 12 | | special or general court-martial may be
ordered, as may be | 13 | | appropriate. Summary courts-martial may, under such | 14 | | limitations as the
Governor may prescribe, adjudge any | 15 | | punishment not forbidden by this Code except dismissal,
| 16 | | dishonorable or bad-conduct discharge, confinement for more | 17 | | than one month, restriction to
specified limits for more than 2 | 18 | | months, or forfeiture of more than two-thirds of one month's | 19 | | pay. | 20 | | Section 21. Article 21. (Reserved). | 21 | | PART V. APPOINTMENT AND COMPOSITION OF COURTS-MARTIAL | 22 | | Section 22. Article 22. Who may convene general |
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| 1 | | courts-martial. | 2 | | (a) General courts-martial may be convened by: | 3 | | (1) the Governor, or; | 4 | | (2) the Adjutant General. | 5 | | (b) (Reserved). | 6 | | Section 23. Article 23. Who may convene special | 7 | | courts-martial. | 8 | | (a) Special courts-martial may be convened by: | 9 | | (1) any person who may convene a general court-martial; | 10 | | (2) the Commander of the Illinois Army National of | 11 | | members of the Illinois Army National Guard when empowered | 12 | | by the Adjutant General; or | 13 | | (3) the Commander of the Illinois Air National Guard of | 14 | | members of the Illinois Air National Guard when empowered | 15 | | by the Adjutant General. | 16 | | (b) If any such officer is an accuser, the court shall be | 17 | | convened by superior competent
authority and may in any case be | 18 | | convened by such superior authority if considered desirable by
| 19 | | such authority. | 20 | | Section 24. Article 24. Who may convene summary | 21 | | courts-martial. | 22 | | (a) Summary courts-martial may be convened by: | 23 | | (1) any person who may convene a general or special | 24 | | court-martial; |
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| 1 | | (2) the commanding officer or officer in charge of any | 2 | | other command when
empowered by the Adjutant General. | 3 | | (b) When only one commissioned officer is present with a | 4 | | command or detachment that officer
shall be the summary | 5 | | court-martial of that command or detachment and shall hear and | 6 | | determine
all summary court-martial cases. Summary | 7 | | courts-martial may, however, be convened in any
case by | 8 | | superior competent authority if considered desirable by such | 9 | | authority. | 10 | | Section 25. Article 25. Who may serve on courts-martial. | 11 | | (a) Any commissioned officer of the State military forces | 12 | | is eligible to serve on all courts-martial for the trial of any | 13 | | person subject to this Code. | 14 | | (b) Any warrant officer of the State military forces is | 15 | | eligible to serve on general and special courts-martial for the | 16 | | trial of any person subject to this Code, other than a | 17 | | commissioned officer. | 18 | | (c) Any enlisted member of the State military forces who is | 19 | | not a member of the same unit as the accused is eligible to | 20 | | serve on general and special courts-martial for the trial of | 21 | | any enlisted member subject to this Code, but that member shall | 22 | | serve as a member of a court only if, before the conclusion of | 23 | | a session called by the military judge under subsection (a) of | 24 | | Article 39 of this Code prior to trial or, in the absence of | 25 | | such a session, before the court is assembled for the trial of |
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| 1 | | the accused, the accused personally has requested orally on the | 2 | | record or in writing that enlisted members serve on it. After | 3 | | such a request, the accused may not be tried by a general or | 4 | | special court-martial the membership of which does not include | 5 | | enlisted members in a number comprising at least one-third of | 6 | | the total membership of the court, unless eligible enlisted | 7 | | members cannot be obtained on account of physical conditions or | 8 | | military exigencies. If such members cannot be obtained, the | 9 | | court may be assembled and the trial held without them, but the | 10 | | convening authority shall make a detailed written statement, to | 11 | | be appended to the record, stating why they could not be | 12 | | obtained. In this Article, "unit" means any regularly organized | 13 | | body of the State military forces not larger than a company, a | 14 | | squadron, a division of the naval militia, or a body | 15 | | corresponding to one of them. | 16 | | (d) When it can be avoided, no person subject to this Code | 17 | | may be tried by a court-martial any member of which is junior | 18 | | to the accused in rank or grade. | 19 | | (e) When convening a court-martial, the convening | 20 | | authority shall detail as members thereof such members of the | 21 | | State military forces as, in the convening authority's opinion, | 22 | | are best qualified for the duty by reason of age, education, | 23 | | training, experience, length of service, and judicial | 24 | | temperament. No member of the State military forces is eligible | 25 | | to serve as a member of a general or special court-martial when | 26 | | that member is the accuser, a witness, or has acted as |
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| 1 | | investigating officer or as counsel in the same case. | 2 | | (f) Before a court-martial is assembled for the trial of a | 3 | | case, the convening authority may excuse a member of the court | 4 | | from participating in the case. The convening authority may | 5 | | delegate the authority under this subsection to a judge | 6 | | advocate or to any other principal assistant. | 7 | | Section 25a. Article 25a. (Reserved). | 8 | | Section 26. Article 26. Military judge of a general or | 9 | | special court-martial. | 10 | | (a) A military judge shall be detailed to each general and | 11 | | special court-martial. The military judge shall preside over | 12 | | each open session of the court-martial to which the military | 13 | | judge has been detailed. | 14 | | (b) In addition to the requirements noted in Article 6a, a | 15 | | military judge shall be: | 16 | | (1) an active commissioned officer of an organized | 17 | | state military force; | 18 | | (2) a member in good standing of the bar of the highest | 19 | | court of a state or a member of the bar of a federal court | 20 | | for at least 5 years; and | 21 | | (3) certified as qualified for duty as a military judge | 22 | | by the senior force judge advocate which is the same force | 23 | | as the accused. | 24 | | (c) In the instance when a military judge is not a member |
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| 1 | | of the bar of the highest court of this State, the military | 2 | | judge shall be deemed admitted pro hac vice, subject to filing | 3 | | a certificate with the senior force judge advocate which is the | 4 | | same force as the accused setting forth such qualifications | 5 | | provided in subsection (b). | 6 | | (d) The military judge of a general or special | 7 | | court-martial shall be designated by the senior force judge | 8 | | advocate which is the same force as the accused, or a designee, | 9 | | for detail by the convening authority. Neither the convening | 10 | | authority nor any staff member of the convening authority shall | 11 | | prepare or review any report concerning the effectiveness, | 12 | | fitness, or efficiency of the military judge so detailed, which | 13 | | relates to performance of duty as a military judge. | 14 | | (e) No person is eligible to act as military judge in a | 15 | | case if that person is the accuser or a witness, or has acted | 16 | | as investigating officer or a counsel in the same case. | 17 | | (f) The military judge of a court-martial may not consult | 18 | | with the members of the court except in the presence of the | 19 | | accused, trial counsel, and defense counsel nor vote with the | 20 | | members of the court. | 21 | | Section 27. Article 27. Detail of trial counsel and defense | 22 | | counsel. | 23 | | (a)(1) For each general and special court-martial the | 24 | | authority convening the court shall detail trial counsel, | 25 | | defense counsel, and such assistants as are appropriate. |
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| 1 | | (2) No person who has acted as investigating officer, | 2 | | military judge, witness, or court member in any case may act | 3 | | later as trial counsel, assistant trial counsel, or, unless | 4 | | expressly requested by the accused, as defense counsel or | 5 | | assistant or associate defense counsel in the same case. No | 6 | | person who has acted for the prosecution may act later in the | 7 | | same case for the defense nor may any person who has acted for | 8 | | the defense act later in the same case for the prosecution. | 9 | | (b) Except as provided in subsection (c), trial counsel or | 10 | | defense counsel detailed for a general or special court-martial | 11 | | must be: | 12 | | (1) a judge advocate as defined in paragraph (10) of | 13 | | Article 1 of this Code; and | 14 | | (2) in the case of trial counsel, a member in good | 15 | | standing of the bar of the highest court of the state where | 16 | | the court-martial is held. | 17 | | (c) In the instance when a defense counsel is not a member | 18 | | of the bar of the highest court of this State, the defense | 19 | | counsel shall be deemed admitted pro hac vice, subject to | 20 | | filing a certificate with the military judge setting forth the | 21 | | qualifications that counsel is: | 22 | | (1) a commissioned officer of the armed forces of the | 23 | | United States or a component thereof; and | 24 | | (2) a member in good standing of the bar of the highest | 25 | | court of a state; and | 26 | | (3) certified as a judge advocate in the Judge Advocate |
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| 1 | | General's Corps of the Army, Air Force, Navy, or the Marine | 2 | | Corps; or | 3 | | (4) a judge advocate as defined in paragraph (10) of | 4 | | Article 1 of this Code. | 5 | | Section 28. Article 28. Detail or employment of reporters | 6 | | and interpreters. Under such regulations as may be prescribed, | 7 | | the convening authority of a general or special court-martial | 8 | | or court of inquiry shall detail or employ qualified court | 9 | | reporters, who shall record the proceedings of and testimony | 10 | | taken before that court and may detail or employ interpreters | 11 | | who shall interpret for the court. | 12 | | Section 29. Article 29. Absent and additional members. | 13 | | (a) No member of a general or special court-martial may be | 14 | | absent or excused after the court has been assembled for the | 15 | | trial of the accused unless excused as a result of a challenge, | 16 | | excused by the military judge for physical disability or other | 17 | | good cause, or excused by order of the convening authority for | 18 | | good cause. | 19 | | (b) Whenever a general court-martial, other than a general | 20 | | court-martial composed of a military judge only, is reduced | 21 | | below 5 members, the trial may not proceed unless the convening | 22 | | authority details new members sufficient in number to provide | 23 | | not less than the applicable minimum number of 5 members. The | 24 | | trial may proceed with the new members present after the |
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| 1 | | recorded evidence previously introduced before the members of | 2 | | the court has been read to the court in the presence of the | 3 | | military judge, the accused, and counsel for both sides. | 4 | | (c) Whenever a special court-martial, other than a special | 5 | | court-martial composed of a military judge only, is reduced | 6 | | below 3 members, the trial may not proceed unless the convening | 7 | | authority details new members sufficient in number to provide | 8 | | not less than 3 members. The trial shall proceed with the new | 9 | | members present as if no evidence had been introduced | 10 | | previously at the trial, unless a verbatim record of the | 11 | | evidence previously introduced before the members of the court | 12 | | or a stipulation thereof is read to the court in the presence | 13 | | of the military judge, the accused, and counsel for both sides. | 14 | | (d) If the military judge of a court-martial composed of a | 15 | | military judge only is unable to proceed with the trial because | 16 | | of physical disability, as a result of a challenge, or for | 17 | | other good cause, the trial shall proceed, subject to any | 18 | | applicable conditions of subparagraph (B) of paragraph (1) of | 19 | | Article 16 or subparagraph (B) of paragraph (2) of Article 16 | 20 | | of this Code, after the detail of a new military judge as if no | 21 | | evidence had previously been
introduced, unless a verbatim | 22 | | record of the evidence previously introduced or a stipulation | 23 | | thereof is read in court in the presence of the new military | 24 | | judge, the accused, and counsel for both sides. | 25 | | PART VI. PRE-TRIAL PROCEDURE |
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| 1 | | Section 30. Article 30. Charges and specifications. | 2 | | (a) Charges and specifications shall be signed by a person | 3 | | subject to this Code under oath before a commissioned officer | 4 | | authorized by subsection (a) of Article 136 of this Code to | 5 | | administer oaths and shall state: | 6 | | (1) that the signer has personal knowledge of, or has | 7 | | investigated, the matters set forth therein; and | 8 | | (2) that they are true in fact to the best of the | 9 | | signer's knowledge and belief. | 10 | | (b) Upon the preferring of charges, the proper authority | 11 | | shall take immediate steps to determine what disposition should | 12 | | be made thereof in the interest of justice and discipline, and | 13 | | the person accused shall be informed of the charges as soon as | 14 | | practicable. | 15 | | Section 31. Article 31. Compulsory self-incrimination | 16 | | prohibited. | 17 | | (a) No person subject to this Code may compel any person to | 18 | | incriminate himself or to answer any question the answer to | 19 | | which may tend to incriminate him. | 20 | | (b) No person subject to this Code may interrogate or | 21 | | request any statement from an accused or a person suspected of | 22 | | an offense without first informing that person of the nature of | 23 | | the accusation and advising that person that the person does | 24 | | not have to make any statement regarding the offense of which |
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| 1 | | the person is accused or suspected and that any statement made | 2 | | by the person may be used as evidence against the person in a | 3 | | trial by court-martial. | 4 | | (c) No person subject to this Code may compel any person to | 5 | | make a statement or produce evidence before any military court | 6 | | if the statement or evidence is not material to the issue and | 7 | | may tend to degrade the person. | 8 | | (d) No statement obtained from any person in violation of | 9 | | this Article or through the use of coercion, unlawful | 10 | | influence, or unlawful inducement may be received in evidence | 11 | | against the person in a trial by court-martial. | 12 | | Section 32. Article 32. Investigation. | 13 | | (a) No charge or specification may be referred to a general | 14 | | or special court-martial for trial until a thorough and | 15 | | impartial investigation of all the matters set forth therein | 16 | | has been made. This investigation shall include inquiry as to | 17 | | the truth of the matter set forth in the charges, consideration | 18 | | of the form of charges, and a recommendation as to the | 19 | | disposition which should be made of the case in the interest of | 20 | | justice and discipline. | 21 | | (b) The accused shall be advised of the charges against the | 22 | | accused and of the right to be represented at that | 23 | | investigation by counsel. The accused has the right to be | 24 | | represented at that investigation as provided in Article 38 of | 25 | | this Code and in regulations prescribed under that Article. At |
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| 1 | | that investigation, full opportunity shall be given to the | 2 | | accused to cross-examine witnesses against the accused, if they | 3 | | are available, and to present anything the accused may desire | 4 | | in the accused's own behalf, either in defense or mitigation, | 5 | | and the investigating officer shall examine available | 6 | | witnesses requested by the accused. If the charges are | 7 | | forwarded after the investigation, they shall be accompanied by | 8 | | a statement of the substance of the testimony taken on both | 9 | | sides and a copy thereof shall be given to the accused. | 10 | | (c) If an investigation of the subject matter of an offense | 11 | | has been conducted before the accused is charged with the | 12 | | offense, and if the accused was present at the investigation | 13 | | and afforded the opportunities for representation, | 14 | | cross-examination, and presentation prescribed in subsection | 15 | | (b), no further investigation of that charge is necessary under | 16 | | this Article unless it is demanded by the accused after the | 17 | | accused is informed of the charge. A demand for further | 18 | | investigation entitles the accused to recall witnesses for | 19 | | further cross-examination and to offer any new evidence in the | 20 | | accused's own behalf. | 21 | | (d) If evidence adduced in an investigation under this | 22 | | Article indicates that the accused committed an uncharged | 23 | | offense, the investigating officer may investigate the subject | 24 | | matter of that offense without the accused having first been | 25 | | charged with the offense if the accused: | 26 | | (1) is present at the investigation; |
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| 1 | | (2) is informed of the nature of each uncharged offense | 2 | | investigated; and | 3 | | (3) is afforded the opportunities for representation, | 4 | | cross-examination, and presentation prescribed in | 5 | | subsection (b). | 6 | | (e) The requirements of this Article are binding on all | 7 | | persons administering this Code but failure to follow them does | 8 | | not constitute jurisdictional error. | 9 | | Section 33. Article 33. Forwarding of charges. When a | 10 | | person is held for trial by general court-martial, the | 11 | | commanding officer shall within 15 days after the accused is | 12 | | ordered into arrest or confinement, if practicable, forward the | 13 | | charges, together with the investigation and allied papers, to | 14 | | the person exercising general court-martial jurisdiction. If | 15 | | that is not practicable, the commanding officer shall report in | 16 | | writing to that person the reasons for delay. | 17 | | Section 34. Article 34. Advice of judge advocate and | 18 | | reference for trial. | 19 | | (a) Before directing the trial of any charge by general or | 20 | | special court-martial, the convening authority shall refer it | 21 | | to a judge advocate for consideration and advice. The convening | 22 | | authority may not refer a specification under a charge to a | 23 | | general or special court-martial for trial unless the convening | 24 | | authority has been advised in writing by a judge advocate that: |
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| 1 | | (1) the specification alleges an offense under this | 2 | | Code; | 3 | | (2) the specification is warranted by the evidence | 4 | | indicated in the report of investigation under Article 32 | 5 | | of this Code, if there is such a report; and | 6 | | (3) a court-martial would have jurisdiction over the | 7 | | accused and the offense. | 8 | | (b) The advice of the judge advocate under subsection (a) | 9 | | with respect to a specification under a charge shall include a | 10 | | written and signed statement by the judge advocate: | 11 | | (1) expressing conclusions with respect to each matter | 12 | | set forth in subsection (a); and
| 13 | | (2) recommending action that the convening authority | 14 | | take regarding the specification. | 15 | | If the specification is referred for trial, the recommendation | 16 | | of the judge advocate shall accompany the specification. | 17 | | (c) If the charges or specifications are not correct | 18 | | formally or do not conform to the substance of the evidence | 19 | | contained in the report of the investigating officer, formal | 20 | | corrections, and such changes in the charges and specifications | 21 | | as are needed to make them conform to the evidence, may be | 22 | | made. | 23 | | Section 35. Article 35. Service of charges. The trial | 24 | | counsel shall serve or caused to be served upon the accused a | 25 | | copy of the charges. No person may, against the person's |
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| 1 | | objection, be brought to trial before a general court-martial | 2 | | case within a period of 60 days after the service of charges | 3 | | upon the accused, or in a special court-martial, within a | 4 | | period of 45 days after the service of charges upon the | 5 | | accused. | 6 | | PART VII. TRIAL PROCEDURE | 7 | | Section 36. Article 36. Governor or the Adjutant General | 8 | | may prescribe rules. Notwithstanding any other provision of | 9 | | law, including, but not limited to, the Illinois Administrative | 10 | | Procedure Act, the Governor or the Adjutant General may | 11 | | prescribe pretrial, trial, and post-trial procedures, | 12 | | including modes of proof, for courts-martial cases arising | 13 | | under this Code, and for courts of inquiry, by Executive Order | 14 | | or regulations, which shall apply the principles of law and the | 15 | | rules of evidence generally recognized in military criminal | 16 | | cases in the courts of the Armed Forces of the United States | 17 | | but which may not be contrary to or inconsistent with this | 18 | | Code. The Governor or the Adjutant General may prescribe courts | 19 | | of inquiry by regulations, or as otherwise provided by law, | 20 | | which shall apply the principles of law and the rules of | 21 | | evidence generally recognized in military cases. | 22 | | Section 37. Article 37. Unlawfully influencing action of | 23 | | court. |
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| 1 | | (a) No authority convening a general, special, or summary | 2 | | court-martial, nor any other commanding officer, or officer | 3 | | serving on the staff thereof, may censure, reprimand, or | 4 | | admonish the court or any member, the military judge, or | 5 | | counsel thereof, with respect to the findings or sentence | 6 | | adjudged by the court or with respect to any other exercise of | 7 | | its or their functions in the conduct of the proceedings. No | 8 | | person subject to this Code may attempt to coerce or, by any | 9 | | unauthorized means, influence the action of a court-martial or | 10 | | court of inquiry or any member thereof, in reaching the | 11 | | findings or sentence in any case, or the action of any | 12 | | convening, approving, or reviewing authority with respect to | 13 | | their judicial acts. The foregoing provisions of this | 14 | | subsection shall not apply with respect to (1) general | 15 | | instructional or informational courses in military justice if | 16 | | such courses are designed solely for the purpose of instructing | 17 | | members of a command in the substantive and procedural aspects | 18 | | of courts-martial or (2) statements and instructions given in | 19 | | open court by the military judge, summary court-martial | 20 | | officer, or counsel. | 21 | | (b) In the preparation of an effectiveness, fitness, or | 22 | | efficiency report, or any other report or document used in | 23 | | whole or in part for the purpose of determining whether a | 24 | | member of the State military forces is qualified to be advanced | 25 | | in grade, or in determining the assignment or transfer of a | 26 | | member of the State military forces, or in determining whether |
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| 1 | | a member of the State military forces should be retained on | 2 | | active status, no person subject to this Code may, in preparing | 3 | | any such report, (1) consider or evaluate the performance of | 4 | | duty of any such member as a member of a court-martial or | 5 | | witness therein or (2) give a less favorable rating or | 6 | | evaluation of any counsel of the accused because of zealous | 7 | | representation before a court-martial. | 8 | | Section 38. Article 38. Duties of trial counsel and defense | 9 | | counsel. | 10 | | (a) The trial counsel of a general or special court-martial | 11 | | shall be a member in good standing of the State bar and shall | 12 | | prosecute in the name of the State of Illinois, and shall, | 13 | | under the direction of the court, prepare the record of the | 14 | | proceedings. | 15 | | (b)(1) The accused has the right to be represented in | 16 | | defense before a general or special court-martial or at an | 17 | | investigation under Article 32 of this Code as provided in this | 18 | | subsection. | 19 | | (2) The accused may be represented by civilian counsel at | 20 | | the provision and expense of the accused. | 21 | | (3) The accused may be represented: | 22 | | (A) by military counsel detailed under Article 27 of | 23 | | this Code; or | 24 | | (B) by military counsel of the accused's own selection | 25 | | if that counsel is reasonably available as determined under |
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| 1 | | paragraph (7). | 2 | | (4) If the accused is represented by civilian counsel, | 3 | | military counsel detailed or selected under paragraph (3) shall | 4 | | act as associate counsel unless excused at the request of the | 5 | | accused. | 6 | | (5) Except as provided under paragraph (6), if the accused | 7 | | is represented by military counsel of his own selection under | 8 | | subparagraph (B) of paragraph (3), any military counsel | 9 | | detailed under subparagraph (A) of paragraph (3) shall be | 10 | | excused. | 11 | | (6) The accused is not entitled to be represented by more | 12 | | than one military counsel. However, the person authorized under | 13 | | regulations prescribed under Article 27 of this Code to detail | 14 | | counsel, in that person's sole discretion: | 15 | | (A) may detail additional military counsel as | 16 | | assistant defense counsel; and | 17 | | (B) if the accused is represented by military counsel | 18 | | of the accused's own selection under subparagraph (B) of | 19 | | paragraph (3), may approve a request from the accused that | 20 | | military counsel detailed under subparagraph (A) of | 21 | | paragraph (3) act as associate defense counsel. | 22 | | (7) The senior State Judge Advocate of the same state of | 23 | | which the accused is a member shall determine whether the | 24 | | military counsel selected by an accused is reasonably | 25 | | available. | 26 | | (c) In any court-martial proceeding resulting in a |
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| 1 | | conviction, the defense counsel: | 2 | | (1) may forward for attachment to the record of | 3 | | proceedings a brief of such matters as counsel determines | 4 | | should be considered in behalf of the accused on review, | 5 | | including any objection to the contents of the record which | 6 | | counsel considers appropriate; | 7 | | (2) may assist the accused in the submission of any | 8 | | matter under Article 60 of this Code; and | 9 | | (3) may take other action authorized by this Code.
| 10 | | Section 39. Article 39. Sessions. | 11 | | (a) At any time after the service of charges which have | 12 | | been referred for trial to a court-martial composed of a | 13 | | military judge and members, the military judge may, subject to | 14 | | Article 35 of this Code, call the court into session without | 15 | | the presence of the members for the purpose of: | 16 | | (1) hearing and determining motions raising defenses | 17 | | or objections which are capable of determination without | 18 | | trial of the issues raised by a plea of not guilty; | 19 | | (2) hearing and ruling upon any matter which may be | 20 | | ruled upon by the military judge under this Code, whether | 21 | | or not the matter is appropriate for later consideration or | 22 | | decision by the members of the court; | 23 | | (3) holding the arraignment and receiving the pleas of | 24 | | the accused; and | 25 | | (4) performing any other procedural function which |
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| 1 | | does not require the presence of the members of the court | 2 | | under this Code.
| 3 | | These proceedings shall be conducted in the presence of the | 4 | | accused, the defense counsel, and the trial counsel and shall | 5 | | be made a part of the record. These proceedings may be | 6 | | conducted notwithstanding the number of court members and | 7 | | without regard to Article 29. | 8 | | (b) When the members of a court-martial deliberate or vote, | 9 | | only the members may be present. All other proceedings, | 10 | | including any other consultation of the members of the court | 11 | | with counsel or the military judge, shall be made a part of the | 12 | | record and shall be in the presence of the accused, the defense | 13 | | counsel, the trial counsel, and the military judge. | 14 | | Section 40. Article 40. Continuances. The military judge of | 15 | | a court-martial may, for reasonable cause, grant a continuance | 16 | | to any party for such time, and as often, as may appear to be | 17 | | just. | 18 | | Section 41. Article 41. Challenges. | 19 | | (a)(1) The military judge and members of a general or | 20 | | special court-martial may be
challenged by the accused or the | 21 | | trial counsel for cause stated to the court. The military judge | 22 | | or the court shall determine the relevancy and validity of | 23 | | challenges for cause and may not receive a challenge to more | 24 | | than one person at a time. Challenges by the trial counsel |
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| 1 | | shall ordinarily be presented and decided before those by the | 2 | | accused are offered. | 3 | | (2) If exercise of a challenge for cause reduces the court | 4 | | below the minimum number of members required by Article 16 of | 5 | | this Code, all parties shall, notwithstanding Article 29 of | 6 | | this Code, either exercise or waive any challenge for cause | 7 | | then apparent against the remaining members of the court before | 8 | | additional members are detailed to the court. However, | 9 | | peremptory challenges shall not be exercised at that time. | 10 | | (b)(1) Each accused and the trial counsel are entitled | 11 | | initially to one peremptory challenge of members of the court. | 12 | | The military judge may not be challenged except for cause. | 13 | | (2) If exercise of a peremptory challenge reduces the court | 14 | | below the minimum number of members required by Article 16 of | 15 | | this Code, the parties shall, notwithstanding Article 29 of | 16 | | this Code, either exercise or waive any remaining peremptory | 17 | | challenge, not previously waived, against the remaining | 18 | | members of the court before additional members are detailed to | 19 | | the court. | 20 | | (3) Whenever additional members are detailed to the court, | 21 | | and after any challenges for cause against such additional | 22 | | members are presented and decided, each accused and the trial | 23 | | counsel are entitled to one peremptory challenge against | 24 | | members not previously subject to peremptory challenge. | 25 | | Section 42. Article 42. Oaths or affirmations. |
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| 1 | | (a) Before performing their respective duties, military | 2 | | judges, general and special courts-martial members, trial | 3 | | counsel, defense counsel, reporters, and interpreters shall | 4 | | take an oath or affirmation in the presence of the accused to | 5 | | perform their duties faithfully. The form of the oath or | 6 | | affirmation, the time and place of the taking thereof, the | 7 | | manner of recording the same, and whether the oath or | 8 | | affirmation shall be taken for all cases in which these duties | 9 | | are to be performed or for a particular case, shall be as | 10 | | prescribed in regulation or as provided by law. These | 11 | | regulations may provide that an oath or affirmation to perform | 12 | | faithfully the duties as a military judge, trial counsel, or | 13 | | defense counsel may be taken at any time by any judge advocate | 14 | | or other person certified or designated to be qualified or | 15 | | competent for the duty, and if such an oath or affirmation is | 16 | | taken, it need not again be taken at the time the judge | 17 | | advocate or other person is detailed to that duty. | 18 | | (b) Each witness before a court-martial shall be examined | 19 | | under oath or affirmation. | 20 | | Section 43. Article 43. Statute of limitations. | 21 | | (a) Except as otherwise provided in this Article, a person | 22 | | charged with any offense is not liable to be tried by | 23 | | court-martial or punished under Article 15 of this Code if the | 24 | | offense was committed more than 3 years before the receipt of | 25 | | sworn charges and specifications by an officer exercising |
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| 1 | | court-martial jurisdiction over the command or before the | 2 | | imposition of punishment under Article 15 of this Code. | 3 | | (b) Periods in which the accused is absent without | 4 | | authority or fleeing from justice shall be excluded in | 5 | | computing the period of limitation prescribed in this Article. | 6 | | (c) Periods in which the accused was absent from territory | 7 | | in which this State has the authority to apprehend him, or in | 8 | | the custody of civil authorities, or in the hands of the enemy, | 9 | | shall be excluded in computing the period of limitation | 10 | | prescribed in this Article. | 11 | | (d) When the United States is at war or armed conflict | 12 | | authorized by law, the running of any statute of limitations | 13 | | applicable to any offense under this Code: | 14 | | (1) involving fraud or attempted fraud against the | 15 | | United States, any state, or any agency of either in any | 16 | | manner, whether by conspiracy or not; | 17 | | (2) committed in connection with the acquisition, | 18 | | care, handling, custody, control, or disposition of any | 19 | | real or personal property of the United States or any | 20 | | state; or | 21 | | (3) committed in connection with the negotiation, | 22 | | procurement, award, performance, payment, interim | 23 | | financing, cancellation, or other termination or | 24 | | settlement, of any contract, subcontract, or purchase | 25 | | order which is connected with or related to the prosecution | 26 | | of the war, or with any disposition of termination |
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| 1 | | inventory by any war contractor or Government agency;
| 2 | | is suspended until 2 years after the termination of hostilities | 3 | | or armed conflict as proclaimed by the
President or by a joint | 4 | | resolution of Congress. | 5 | | (e)(1) If charges or specifications are dismissed as | 6 | | defective or insufficient for any cause and the period | 7 | | prescribed by the applicable statute of limitations: | 8 | | (A) has expired; or | 9 | | (B) will expire within 180 days after the date of | 10 | | dismissal of the charges and specifications;
| 11 | | trial and punishment under new charges and specifications are | 12 | | not barred by the statute of limitations if the conditions | 13 | | specified in paragraph (2) are met. | 14 | | (2) The conditions referred to in paragraph (1) are that | 15 | | the new charges and specifications must: | 16 | | (A) be received by an officer exercising special | 17 | | court-martial jurisdiction over the command within 180 | 18 | | days after the dismissal of the charges or specifications; | 19 | | and | 20 | | (B) allege the same acts or omissions that were alleged | 21 | | in the dismissed charges or specifications (or allege acts | 22 | | or omissions that were included in the dismissed charges or | 23 | | specifications). | 24 | | Section 44. Article 44. Former jeopardy. | 25 | | (a) No person may, without his consent, be tried a second |
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| 1 | | time for the same offense. | 2 | | (b) No proceeding in which an accused has been found guilty | 3 | | by a court-martial upon any charge or specification is a trial | 4 | | in the sense of this Article until the finding of guilty has | 5 | | become final after review of the case has been fully completed. | 6 | | (c) A proceeding which, after the introduction of evidence | 7 | | but before a finding, is dismissed or terminated by the | 8 | | convening authority or on motion of the prosecution for failure | 9 | | of available evidence or witnesses without any fault of the | 10 | | accused is a trial in the sense of this Article. | 11 | | Section 45. Article 45. Pleas of the accused. | 12 | | (a) If an accused after arraignment makes an irregular | 13 | | pleading, or after a plea of guilty sets up matter inconsistent | 14 | | with the plea, or if it appears that the accused has entered | 15 | | the plea of guilty improvidently or through lack of | 16 | | understanding of its meaning and effect, or if the accused | 17 | | fails or refuses to plead, a plea of not guilty shall be | 18 | | entered in the record, and the court shall proceed as though | 19 | | the accused had pleaded not guilty. | 20 | | (b) With respect to any charge or specification to which a | 21 | | plea of guilty has been made by the accused and accepted by the | 22 | | military judge or by a court-martial without a military judge, | 23 | | a finding of guilty of the charge or specification may be | 24 | | entered immediately without vote. This finding shall | 25 | | constitute the finding of the court unless the plea of guilty |
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| 1 | | is withdrawn prior to announcement of the sentence, in which | 2 | | event, the proceedings shall continue as though the accused had | 3 | | pleaded not guilty. | 4 | | Section 46. Article 46. Opportunity to obtain witnesses and | 5 | | other evidence. The trial counsel, the defense counsel, and the | 6 | | court-martial shall have equal opportunity to obtain witnesses | 7 | | and other evidence as prescribed by regulations and provided by | 8 | | law. Process issued in court-martial cases to compel witnesses | 9 | | to appear and testify and to compel the production of other | 10 | | evidence shall apply the principles of law and the rules of | 11 | | courts-martial generally recognized in military criminal cases | 12 | | in the courts of the armed forces of the United States, but | 13 | | which may not be contrary to or inconsistent with this Code. | 14 | | Process shall run to any part of the United States, or the | 15 | | Territories, Commonwealths, and possessions, and may be | 16 | | executed by civil officers as prescribed by the laws of the | 17 | | place where the witness or evidence is located or of the United | 18 | | States. | 19 | | Section 47. Article 47. Refusal to appear or testify. | 20 | | (a) Any person not subject to this Code who: | 21 | | (1) has been duly subpoenaed to appear as a witness or | 22 | | to produce books and records before a court-martial or | 23 | | court of inquiry, or before any military or civil officer | 24 | | designated to take a deposition to be read in evidence |
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| 1 | | before such a court; | 2 | | (2) has been duly paid or tendered the fees and mileage | 3 | | of a witness at the rates allowed to witnesses attending a | 4 | | criminal court of this State; and | 5 | | (3) willfully neglects or refuses to appear, or refuses | 6 | | to qualify as a witness or to testify or to produce any | 7 | | evidence which that person may have been legally subpoenaed | 8 | | to produce;
| 9 | | may be punished by the military court in the same manner as a | 10 | | criminal court of this State. | 11 | | (b) The fees and mileage of witnesses shall be advanced or | 12 | | paid out of the appropriations for the compensation of | 13 | | witnesses. | 14 | | Section 48. Article 48. Contempts. A military judge may | 15 | | punish for contempt any person who refuses a court order, is | 16 | | disrespectful to the court, or who uses any menacing word, | 17 | | sign, or gesture in its presence, or who disturbs its | 18 | | proceedings by any riot or disorder. | 19 | | (a) A person subject to this Code may be punished for | 20 | | contempt by confinement not to exceed 30 days or a fine up to | 21 | | $500, or both. | 22 | | (b) A person not subject to this Code may be punished for | 23 | | contempt by a military court in the same manner as a criminal | 24 | | court of this State. |
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| 1 | | Section 49. Article 49. Depositions. | 2 | | (a) At any time after charges have been signed as provided | 3 | | in Article 30 of this Code, any party may take oral or written | 4 | | depositions unless the military judge hearing the case or, if | 5 | | the case is not being heard, an authority competent to convene | 6 | | a court-martial for the trial of those charges forbids it for | 7 | | good cause. | 8 | | (b) The party at whose instance a deposition is to be taken | 9 | | shall give to every other party reasonable written notice of | 10 | | the time and place for taking the deposition. | 11 | | (c) Depositions may be taken before and authenticated by | 12 | | any military or civil officer authorized by the laws of this | 13 | | State or by the laws of the place where the deposition is taken | 14 | | to administer oaths. | 15 | | (d) A duly authenticated deposition taken upon reasonable | 16 | | notice to the other parties, so far as otherwise admissible | 17 | | under the rules of evidence, may be read in evidence or, in the | 18 | | case of audiotape, videotape, digital image or file, or similar | 19 | | material, may be played in evidence before any military court, | 20 | | if it appears: | 21 | | (1) that the witness resides or is beyond the state in | 22 | | which the court is ordered to sit, or beyond 100 miles from | 23 | | the place of trial or hearing; | 24 | | (2) that the witness by reason of death, age, sickness, | 25 | | bodily infirmity, imprisonment, military necessity, | 26 | | non-amenability to process, or other reasonable cause, is |
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| 1 | | unable or refuses to appear and testify in person at the | 2 | | place of trial or hearing; or | 3 | | (3) that the present whereabouts of the witness is | 4 | | unknown. | 5 | | Section 50. Article 50. Admissibility of records of courts | 6 | | of inquiry. | 7 | | (a) In any case not extending to the dismissal of a | 8 | | commissioned officer, the sworn testimony, contained in the | 9 | | duly authenticated record of proceedings of a court of inquiry, | 10 | | of a person whose oral testimony cannot be obtained, may, if | 11 | | otherwise admissible under the rules of evidence, be read in | 12 | | evidence by any party before a court-martial if the accused was | 13 | | a party before the court of inquiry and if the same issue was | 14 | | involved or if the accused consents to the introduction of such | 15 | | evidence. | 16 | | (b) Such testimony may be read in evidence only by the | 17 | | defense in cases extending to the dismissal of a commissioned | 18 | | officer. | 19 | | (c) Such testimony may also be read in evidence before a | 20 | | court of inquiry. | 21 | | Section 50a. Article 50a. Defense of lack of mental | 22 | | responsibility. | 23 | | (a) It is an affirmative defense in a trial by | 24 | | court-martial that, at the time of the commission of the acts |
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| 1 | | constituting the offense, the accused, as a result of a severe | 2 | | mental disease or defect, was unable to appreciate the nature | 3 | | and quality or the wrongfulness of the acts. Mental disease or | 4 | | defect does not otherwise constitute a defense. | 5 | | (b) The accused has the burden of proving the defense of | 6 | | lack of mental responsibility by clear and convincing evidence. | 7 | | (c) Whenever lack of mental responsibility of the accused | 8 | | with respect to an offense is properly at issue, the military | 9 | | judge shall instruct the members of the court as to the defense | 10 | | of lack of mental responsibility under this Article and charge | 11 | | them to find the accused: | 12 | | (1) guilty; | 13 | | (2) not guilty; or | 14 | | (3) not guilty only by reason of lack of mental | 15 | | responsibility. | 16 | | (d) Subsection (c) does not apply to a court-martial | 17 | | composed of a military judge only. In the case of a | 18 | | court-martial composed of a military judge only, whenever lack | 19 | | of mental responsibility of the accused with respect to an | 20 | | offense is properly at issue, the military judge shall find the | 21 | | accused: | 22 | | (1) guilty; | 23 | | (2) not guilty; or | 24 | | (3) not guilty only by reason of lack of mental | 25 | | responsibility. | 26 | | (e) Notwithstanding the provisions of Article 52 of this |
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| 1 | | Code, the accused shall be found not guilty only by reason of | 2 | | lack of mental responsibility if: | 3 | | (1) a majority of the members of the court-martial | 4 | | present at the time the vote is taken determines that the | 5 | | defense of lack of mental responsibility has been | 6 | | established; or | 7 | | (2) in the case of a court-martial composed of a | 8 | | military judge only, the military judge determines that the | 9 | | defense of lack of mental responsibility has been | 10 | | established. | 11 | | Section 51. Article 51. Voting and rulings. | 12 | | (a) Voting by members of a general or special court-martial | 13 | | on the findings and on the sentence shall be by secret written | 14 | | ballot. The junior member of the court shall count the votes. | 15 | | The count shall be checked by the president, who shall | 16 | | forthwith announce the result of the ballot to the members of | 17 | | the court. | 18 | | (b) The military judge shall rule upon all questions of law | 19 | | and all interlocutory questions arising during the | 20 | | proceedings. Any such ruling made by the military judge upon | 21 | | any question of law or any interlocutory question other than | 22 | | the factual issue of mental responsibility of the accused is | 23 | | final and constitutes the ruling of the court. However, the | 24 | | military judge may change the ruling at any time during the | 25 | | trial. Unless the ruling is final, if any member objects |
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| 1 | | thereto, the court shall be cleared and closed and the question | 2 | | decided by a voice vote as provided in Article 52 of this Code, | 3 | | beginning with the junior in rank. | 4 | | (c) Before a vote is taken on the findings, the military | 5 | | judge shall, in the presence of the accused and counsel, | 6 | | instruct the members of the court as to the elements of the | 7 | | offense and charge them: | 8 | | (1) that the accused must be presumed to be innocent | 9 | | until his guilt is established by legal and competent | 10 | | evidence beyond reasonable doubt; | 11 | | (2) that in the case being considered, if there is a | 12 | | reasonable doubt as to the guilt of the accused, the doubt | 13 | | must be resolved in favor of the accused and the accused | 14 | | must be acquitted; | 15 | | (3) that, if there is a reasonable doubt as to the | 16 | | degree of guilt, the finding must be in a lower degree as | 17 | | to which there is no reasonable doubt; and | 18 | | (4) that the burden of proof to establish the guilt of | 19 | | the accused beyond reasonable doubt is upon the State. | 20 | | (d) Subsections (a), (b), and (c) do not apply to a | 21 | | court-martial composed of a military judge only. The military | 22 | | judge of such a court-martial shall determine all questions of | 23 | | law and fact
arising during the proceedings and, if the accused | 24 | | is convicted, adjudge an appropriate sentence. The military | 25 | | judge of such a court-martial shall make a general finding and | 26 | | shall in addition, on request, find the facts specially. If an |
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| 1 | | opinion or memorandum of decision is filed, it will be | 2 | | sufficient if the findings of fact appear therein. | 3 | | Section 52. Article 52. Number of votes required. | 4 | | (a) No person may be convicted of an offense except as | 5 | | provided in subsection (b) of Article 45 of this Code or by the | 6 | | concurrence of two-thirds of the members present at the time | 7 | | the vote is taken. | 8 | | (b) All other questions to be decided by the members of a | 9 | | general or special court-martial shall be determined by a | 10 | | majority vote, but a determination to reconsider a finding of | 11 | | guilty or to reconsider a sentence, with a view toward | 12 | | decreasing it, may be made by any lesser vote which indicates | 13 | | that the reconsideration is not opposed by the number of votes | 14 | | required for that finding or sentence. A tie vote on a | 15 | | challenge disqualifies the member challenged. A tie vote on a | 16 | | motion relating to the question of the accused's sanity is a | 17 | | determination against the accused. A tie vote on any other | 18 | | question is a determination in favor of the accused. | 19 | | Section 53. Article 53. Court to announce action. A | 20 | | court-martial shall announce its findings and sentence to the | 21 | | parties as soon as determined. | 22 | | Section 54. Article 54. Record of trial. | 23 | | (a) Each general and special court-martial shall keep a |
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| 1 | | separate record of the proceedings in each case brought before | 2 | | it, and the record shall be authenticated by the signature of | 3 | | the military judge. If the record cannot be authenticated by | 4 | | the military judge by reason of his death, disability, or | 5 | | absence, it shall be authenticated by the signature of the | 6 | | trial counsel or by that of a member, if the trial counsel is | 7 | | unable to authenticate it by reason of his death, disability, | 8 | | or absence. In a court-martial consisting of only a military | 9 | | judge, the record shall be authenticated by the court reporter | 10 | | under the same conditions which would impose such a duty on a | 11 | | member under this subsection. | 12 | | (b)(1) A complete verbatim record of the proceedings and | 13 | | testimony shall be prepared in each general and special | 14 | | court-martial case resulting in a conviction. | 15 | | (2) In all other court-martial cases, the record shall | 16 | | contain such matters as may be prescribed by regulations. | 17 | | (c) A copy of the record of the proceedings of each general | 18 | | and special court-martial shall be given to the accused as soon | 19 | | as it is authenticated. | 20 | | PART VIII. SENTENCES | 21 | | Section 55. Article 55. Cruel and unusual punishments | 22 | | prohibited. Punishment by flogging, or by branding, marking, or | 23 | | tattooing on the body, or any other cruel or unusual punishment | 24 | | may not be adjudged by a court-martial or inflicted upon any |
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| 1 | | person subject to this Code. The use of irons, single or | 2 | | double, except for the purpose of safe custody, is prohibited. | 3 | | Section 56. Article 56. Maximum limits. | 4 | | (a) The punishment which a court-martial may direct for an | 5 | | offense may not exceed such limits as prescribed by this Code, | 6 | | but in no instance may a sentence exceed more than 10 years for | 7 | | a military offense, nor shall a sentence of death be adjudged. | 8 | | A conviction by general court-martial of any military offense | 9 | | for which an accused may receive a sentence of confinement for | 10 | | more than one year is a felony offense. All other military | 11 | | offenses are misdemeanors. | 12 | | (b) The limits of punishment for violations of the punitive | 13 | | Articles prescribed herein shall be equal to or lesser of the | 14 | | sentences prescribed by the Manual for Courts-Martial of the | 15 | | United States in effect on the effective date of this Code, and | 16 | | in no instance shall any punishment exceed that authorized by | 17 | | this Code. | 18 | | Section 56a. Article 56a. (Reserved). | 19 | | Section 57. Article 57. Effective date of sentences. | 20 | | (a) Whenever a sentence of a court-martial as lawfully | 21 | | adjudged and approved includes a forfeiture of pay or | 22 | | allowances in addition to confinement not suspended, the | 23 | | forfeiture may apply to pay or allowances becoming due on or |
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| 1 | | after the date the sentence is approved by the convening | 2 | | authority. No forfeiture may extend to any pay or allowances | 3 | | accrued before that date. | 4 | | (b) Any period of confinement included in a sentence of a | 5 | | court-martial begins to run from the date the sentence is | 6 | | adjudged by the court-martial, but periods during which the | 7 | | sentence to confinement is suspended or deferred shall be | 8 | | excluded in computing the service of the term of confinement. | 9 | | (c) All other sentences of courts-martial are effective on | 10 | | the date ordered executed. | 11 | | Section 57a. Article 57a. Deferment of sentences. | 12 | | (a) On application by an accused who is under sentence to | 13 | | confinement that has not been ordered executed, the convening | 14 | | authority or, if the accused is no longer under that person's | 15 | | jurisdiction, the person exercising general court-martial | 16 | | jurisdiction over the command to which the accused is currently | 17 | | assigned, may in that person's sole discretion defer service of | 18 | | the sentence to confinement. The deferment shall terminate when | 19 | | the sentence is ordered executed. The deferment may be | 20 | | rescinded at any time by the person who granted it or, if the | 21 | | accused is no
longer under that person's jurisdiction, by the | 22 | | person exercising general court-martial jurisdiction
over the | 23 | | command to which the accused is currently assigned. | 24 | | (b)(1) In any case in which a court-martial sentences an | 25 | | accused referred to in paragraph (2) to confinement, the |
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| 1 | | convening authority may defer the service of the sentence to | 2 | | confinement, without the consent of the accused, until after | 3 | | the accused has been permanently released to the State military | 4 | | forces by a state, the United States, or a foreign country | 5 | | referred to in that paragraph. | 6 | | (2) Paragraph (1) applies to a person subject to this Code | 7 | | who: | 8 | | (A) while in the custody of a state, the United States, | 9 | | or a foreign country is temporarily returned by that state, | 10 | | the United States, or a foreign country to the State | 11 | | military forces for trial by court-martial; and | 12 | | (B) after the court-martial, is returned to that state, | 13 | | the United States, or a foreign country under the authority | 14 | | of a mutual agreement or treaty, as the case may be. | 15 | | (3) In this subsection, the term "state" includes the | 16 | | District of Columbia and any Commonwealth, Territory, or | 17 | | possession of the United States. | 18 | | (c) In any case in which a court-martial sentences an | 19 | | accused to confinement and the sentence to confinement has been | 20 | | ordered executed, but in which review of the case under Article | 21 | | 67a of this Code is pending, the Adjutant General may defer | 22 | | further service of the sentence to confinement while that | 23 | | review is pending. | 24 | | Section 58. Article 58. Execution of confinement. | 25 | | (a) A sentence of confinement adjudged by a court-martial, |
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| 1 | | whether or not the sentence includes discharge or dismissal, | 2 | | and whether or not the discharge or dismissal has been | 3 | | executed, may be carried into execution by confinement in any | 4 | | place authorized by this Code. Persons so confined are subject | 5 | | to the same discipline and treatment as persons regularly | 6 | | confined or committed to that place of confinement. | 7 | | (b) The omission of hard labor as a sentence authorized | 8 | | under this Code does not deprive the State confinement facility | 9 | | from employing it, if it otherwise is within the authority of | 10 | | that facility to do so. | 11 | | (c) No place of confinement may require payment of any fee | 12 | | or charge for so receiving or confining a person except as | 13 | | otherwise provided by law.
| 14 | | Section 58a. Article 58a. Sentences: reduction in enlisted | 15 | | grade upon approval. | 16 | | (a) A court-martial sentence of an enlisted member in a pay | 17 | | grade above E-1, as approved by the convening authority, that | 18 | | includes: | 19 | | (1) a dishonorable or bad-conduct discharge; or | 20 | | (2) confinement;
| 21 | | reduces that member to pay grade E-1, effective on the date of | 22 | | that approval. | 23 | | (b) If the sentence of a member who is reduced in pay grade | 24 | | under subsection (a) is set aside or disapproved, or, as | 25 | | finally approved, does not include any punishment named in |
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| 1 | | paragraphs (1) or (2) of subsection (a), the rights and | 2 | | privileges of which the person was deprived because of that | 3 | | reduction shall be restored, including pay and allowances. | 4 | | Section 58b. Article 58b. Sentences: forfeiture of pay and | 5 | | allowances during confinement. | 6 | | (a)(1) A court-martial sentence described in paragraph (2) | 7 | | shall result in the forfeiture of pay, or of pay and | 8 | | allowances, due that member during any period of confinement or | 9 | | parole. The forfeiture pursuant to this Article shall take | 10 | | effect on the date determined under subsection (a) of Article | 11 | | 57 of this Code and may be deferred as provided by that | 12 | | Article. The pay and allowances forfeited, in the case of a | 13 | | general court-martial, shall be all pay and allowances due that | 14 | | member during such period and, in the case of a special | 15 | | court-martial, shall be two-thirds of all pay due that member | 16 | | during such period.
| 17 | | (2) A sentence covered by this Article is any sentence that | 18 | | includes: | 19 | | (A) confinement for more than 6 months; or | 20 | | (B) confinement for 6 months or less and a dishonorable | 21 | | or bad-conduct discharge or dismissal. | 22 | | (b) In a case involving an accused who has dependents, the | 23 | | convening authority or other person acting under Article 60 of | 24 | | this Code may waive any or all of the forfeitures of pay and | 25 | | allowances required by subsection (a) for a period not to |
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| 1 | | exceed 6 months. Any amount of pay or allowances that, except | 2 | | for a waiver under this subsection, would be forfeited shall be | 3 | | paid, as the convening authority or other person taking action | 4 | | directs, to the dependents of the accused. | 5 | | (c) If the sentence of a member who forfeits pay and | 6 | | allowances under subsection (a) is set aside or disapproved or, | 7 | | as finally approved, does not provide for a punishment referred | 8 | | to in paragraph (2) of subsection (a), the member shall be paid | 9 | | the pay and allowances which the member would have been paid, | 10 | | except for the forfeiture, for the period during which the | 11 | | forfeiture was in effect. | 12 | | PART IX. POST-TRIAL PROCEDURE AND REVIEW OF COURTS-MARTIAL | 13 | | Section 59. Article 59. Error of law; lesser included | 14 | | offense. | 15 | | (a) A finding or sentence of a court-martial may not be | 16 | | held incorrect on the ground of an error of law unless the | 17 | | error materially prejudices the substantial rights of the | 18 | | accused. | 19 | | (b) Any reviewing authority with the power to approve or | 20 | | affirm a finding of guilty may approve or affirm, instead, so | 21 | | much of the finding as includes a lesser included offense. | 22 | | Section 60. Article 60. Action by the convening authority. | 23 | | (a) The findings and sentence of a court-martial shall be |
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| 1 | | reported promptly to the convening authority after the | 2 | | announcement of the sentence. | 3 | | (b)(1) The accused may submit to the convening authority | 4 | | matters for consideration by the convening authority with | 5 | | respect to the findings and the sentence. Any such submission | 6 | | shall be in writing. Such a submission shall be made within 30 | 7 | | days after the accused has been given an authenticated record | 8 | | of trial and, if applicable, the recommendation of a judge | 9 | | advocate under subsection (d). | 10 | | (2) If the accused shows that additional time is required | 11 | | for the accused to submit such matters, the convening authority | 12 | | or other person taking action under this Article, for good | 13 | | cause, may extend the applicable period under paragraph (1) for | 14 | | not more than an additional 20 days. | 15 | | (3) The accused may waive the right to make a submission to | 16 | | the convening authority under paragraph (1). Such a waiver must | 17 | | be made in writing and may not be revoked. For the purposes of | 18 | | paragraph (2) of subsection (c), the time within which the | 19 | | accused may make a submission under this subsection (b) shall | 20 | | be deemed to have expired upon the submission of such a waiver | 21 | | to the convening authority. | 22 | | (c)(1) The authority under this Article to modify the | 23 | | findings and sentence of a court-martial is a matter of command | 24 | | prerogative involving the sole discretion of the convening | 25 | | authority. If it is impractical for the convening authority to | 26 | | act, the convening authority shall forward the case to a person |
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| 1 | | exercising general court-martial jurisdiction who may take | 2 | | action under this Article. | 3 | | (2) Action on the sentence of a court-martial shall be | 4 | | taken by the convening authority or by another person | 5 | | authorized to act under this Article. Such action may be taken | 6 | | only after consideration of any matters submitted by the | 7 | | accused under subsection (b) or after the time for submitting | 8 | | such matters expires, whichever is earlier. The convening | 9 | | authority or other person taking such action, in that person's | 10 | | sole discretion may approve, disapprove, commute, or suspend | 11 | | the sentence in whole or in part. | 12 | | (3) Action on the findings of a court-martial by the | 13 | | convening authority or other person acting on the sentence is | 14 | | not required. However, such person, in the person's sole | 15 | | discretion may: | 16 | | (A) dismiss any charge or specification by setting | 17 | | aside a finding of guilty thereto;
or | 18 | | (B) change a finding of guilty to a charge or | 19 | | specification to a finding of guilty to an
offense that is | 20 | | a lesser included offense of the offense stated in the | 21 | | charge or specification. | 22 | | (d) Before acting under this Article on any general or | 23 | | special court-martial case in which there is a finding of | 24 | | guilt, the convening authority or other person taking action | 25 | | under this Article must obtain the written concurrence of the | 26 | | State Judge Advocate by means of legal review. The convening |
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| 1 | | authority or other person taking action under this Article | 2 | | shall refer the record of trial to the judge advocate, and the | 3 | | judge advocate shall use such record in the preparation of the | 4 | | review. The review of the judge advocate shall include such | 5 | | matters as may be prescribed by regulation and shall be served | 6 | | on the accused, who may submit any matter in response under | 7 | | subsection (b). Failure to object in the response to the legal | 8 | | review or to any matter attached to the recommendation waives | 9 | | the right to object thereto. | 10 | | (e)(1) The convening authority or other person taking | 11 | | action under this Article, in the person's sole discretion, may | 12 | | order a proceeding in revision or a rehearing. | 13 | | (2) A proceeding in revision may be ordered if there is an | 14 | | apparent error or omission in the record or if the record shows | 15 | | improper or inconsistent action by a court-martial with respect | 16 | | to the findings or sentence that can be rectified without | 17 | | material prejudice to the substantial rights of the accused. In | 18 | | no case, however, may a proceeding in revision: | 19 | | (A) reconsider a finding of not guilty of any | 20 | | specification or a ruling which amounts to a finding of not | 21 | | guilty; | 22 | | (B) reconsider a finding of not guilty of any charge, | 23 | | unless there has been a finding of guilty under a | 24 | | specification laid under that charge, which sufficiently | 25 | | alleges a violation of some Article of this Code; or | 26 | | (C) increase the severity of the sentence. |
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| 1 | | (3) A rehearing may be ordered by the convening authority | 2 | | or other person taking action under this Article if that person | 3 | | disapproves the findings and sentence and states the reasons | 4 | | for disapproval of the findings. If such person disapproves the | 5 | | findings and sentence and does not order a rehearing, that | 6 | | person shall dismiss the charges. A rehearing as to the | 7 | | findings may not be ordered where there is a lack of sufficient | 8 | | evidence in the record to support the findings. A rehearing as | 9 | | to the sentence may be ordered if the convening authority or | 10 | | other person taking action under this subsection disapproves | 11 | | the sentence. | 12 | | Section 61. Article 61. Withdrawal of appeal. | 13 | | (a) In each case subject to appellate review under this | 14 | | Code, the accused may file with the convening authority a | 15 | | statement expressly withdrawing the right of the accused to | 16 | | such appeal. Such a withdrawal shall be signed by both the | 17 | | accused and his defense counsel and must be filed in accordance | 18 | | with appellate procedures as provided by law. | 19 | | (b) The accused may withdraw an appeal at any time in | 20 | | accordance with appellate procedures as provided by law. | 21 | | Section 62. Article 62. Appeal by the State. | 22 | | (a)(1) In a trial by court-martial in which a punitive | 23 | | discharge may be adjudged, the State may appeal the following, | 24 | | other than a finding of not guilty with respect to the charge |
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| 1 | | or specification by the members of the court-martial, or by a | 2 | | judge in a bench trial so long as it is not made in | 3 | | reconsideration: | 4 | | (A) An order or ruling of the military judge which | 5 | | terminates the proceedings with respect to a charge or | 6 | | specification. | 7 | | (B) An order or ruling which excludes evidence that is | 8 | | substantial proof of a fact material in the proceeding. | 9 | | (C) An order or ruling which directs the disclosure of | 10 | | classified information. | 11 | | (D) An order or ruling which imposes sanctions for | 12 | | nondisclosure of classified information. | 13 | | (E) A refusal of the military judge to issue a | 14 | | protective order sought by the State to prevent the | 15 | | disclosure of classified information. | 16 | | (F) A refusal by the military judge to enforce an order | 17 | | described in subparagraph (E) that has previously been | 18 | | issued by appropriate authority. | 19 | | (2) An appeal of an order or ruling may not be taken unless | 20 | | the trial counsel provides the military judge with written | 21 | | notice of appeal from the order or ruling within 72 hours of | 22 | | the order or ruling. Such notice shall include a certification | 23 | | by the trial counsel that the appeal is not taken for the | 24 | | purpose of delay and, if the order or ruling appealed is one | 25 | | which excludes evidence, that the evidence excluded is | 26 | | substantial proof of a fact material in the proceeding. |
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| 1 | | (3) An appeal under this Article shall be diligently | 2 | | prosecuted as provided by law. | 3 | | (b) An appeal under this Article shall be forwarded to the | 4 | | court prescribed in Article 67a of this Code. In ruling on an | 5 | | appeal under this Article, that court may act only with respect | 6 | | to matters of law. | 7 | | (c) Any period of delay resulting from an appeal under this | 8 | | Article shall be excluded in deciding any issue regarding | 9 | | denial of a speedy trial unless an appropriate authority | 10 | | determines that the appeal was filed solely for the purpose of | 11 | | delay with the knowledge that it was totally frivolous and | 12 | | without merit. | 13 | | Section 63. Article 63. Rehearings. Each rehearing under | 14 | | this Code shall take place before a court-martial composed of | 15 | | members not members of the court-martial which first heard the | 16 | | case. Upon a rehearing the accused may not be tried for any | 17 | | offense of which he was found not guilty by the first | 18 | | court-martial, and no sentence in excess of or more severe than | 19 | | the original sentence may be approved, unless the sentence is | 20 | | based upon a finding of guilty of an offense not considered | 21 | | upon the merits in the original proceedings, or unless the | 22 | | sentence prescribed for the offense is mandatory. If the | 23 | | sentence approved after the first court-martial was in | 24 | | accordance with a pretrial agreement and the accused at the | 25 | | rehearing changes a plea with respect to the charges or |
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| 1 | | specifications upon which the pretrial agreement was based, or | 2 | | otherwise does not comply with the pretrial agreement, the | 3 | | approved sentence as to those charges or specifications may | 4 | | include any punishment not in excess of that lawfully adjudged | 5 | | at the first court-martial. | 6 | | Section 64. Article 64. Review by the senior force judge | 7 | | advocate. | 8 | | (a) Each general and special court-martial case in which | 9 | | there has been a finding of guilty shall be reviewed by the | 10 | | senior force judge advocate, or a designee. The senior force | 11 | | judge advocate, or designee, may not review a case under this | 12 | | subsection if that person has acted in the same case as an | 13 | | accuser, investigating officer, member of the court, military | 14 | | judge, or counsel or has otherwise acted on behalf of the | 15 | | prosecution or defense. The senior force judge advocate's | 16 | | review shall be in writing and shall contain the following: | 17 | | (1) Conclusions as to whether: | 18 | | (A) the court had jurisdiction over the accused and | 19 | | the offense; | 20 | | (B) the charge and specification stated an | 21 | | offense; and | 22 | | (C) the sentence was within the limits prescribed | 23 | | as a matter of law. | 24 | | (2) A response to each allegation of error made in | 25 | | writing by the accused. |
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| 1 | | (3) If the case is sent for action under subsection | 2 | | (b), a recommendation as to the appropriate action to be | 3 | | taken and an opinion as to whether corrective action is | 4 | | required as a matter of law. | 5 | | (b) The record of trial and related documents in each case | 6 | | reviewed under subsection (a) shall be sent for action to the | 7 | | Adjutant General if: | 8 | | (1) the judge advocate who reviewed the case recommends | 9 | | corrective action; | 10 | | (2) the sentence approved under subsection (c) of | 11 | | Article 60 of this Code extends to dismissal, a bad-conduct | 12 | | or dishonorable discharge, or confinement for more than 6 | 13 | | months; or | 14 | | (3) such action is otherwise required by regulations of | 15 | | the Adjutant General. | 16 | | (c)(1) The Adjutant General may: | 17 | | (A) disapprove or approve the findings or sentence, in | 18 | | whole or in part; | 19 | | (B) remit, commute, or suspend the sentence in whole or | 20 | | in part; | 21 | | (C) except where the evidence was insufficient at the | 22 | | trial to support the findings, order a rehearing on the | 23 | | findings, on the sentence, or on both; or | 24 | | (D) dismiss the charges. | 25 | | (2) If a rehearing is ordered but the convening authority | 26 | | finds a rehearing impracticable, the convening authority shall |
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| 1 | | dismiss the charges. | 2 | | (3) If the opinion of the senior force judge advocate, or | 3 | | designee, in the senior force judge advocate's review under | 4 | | subsection (a) is that corrective action is required as a | 5 | | matter of law and if the Adjutant General does not take action | 6 | | that is at least as favorable to the accused as that | 7 | | recommended by the judge advocate, the record of trial and | 8 | | action thereon shall be sent to the Governor for review and | 9 | | action as deemed appropriate. | 10 | | (d) The senior force judge advocate, or a designee, may | 11 | | review any case in which there has been a finding of not guilty | 12 | | of all charges and specifications. The senior force judge | 13 | | advocate, or designee, may not review a case under this | 14 | | subsection if that person has acted in the same case as an | 15 | | accuser, investigating officer, member of the court, military | 16 | | judge, or counsel or has otherwise acted on behalf of the | 17 | | prosecution or defense. The senior force judge advocate's | 18 | | review shall be limited to questions of subject matter | 19 | | jurisdiction. | 20 | | (e) The record of trial and related documents in each case | 21 | | reviewed under subsection (d) shall be sent for action to the | 22 | | Adjutant General. The Adjutant General may: | 23 | | (1) when subject matter jurisdiction is found to be | 24 | | lacking, void the court-martial ab initio, with or without | 25 | | prejudice to the Government, as the Adjutant General deems | 26 | | appropriate; or |
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| 1 | | (2) return the record of trial and related documents to | 2 | | the senior force judge advocate for appeal by the | 3 | | Government as provided by law. | 4 | | Section 65. Article 65. Disposition of records after review | 5 | | by the convening authority.
Except as otherwise required by | 6 | | this Code, all records of trial and related documents shall be | 7 | | transmitted and disposed of as prescribed by regulation and | 8 | | provided by law.
| 9 | | Section 66. Article 66. (Reserved). | 10 | | Section 67. Article 67. (Reserved). | 11 | | Section 67a. Article 67a. Review by State Appellate | 12 | | Authority. Decisions of a court-martial are from a court with | 13 | | jurisdiction to issue misdemeanor and felony convictions. All | 14 | | appeals from final decisions of a court-martial shall be to the | 15 | | Illinois Appellate Court in the same manner as are final | 16 | | decisions of a circuit court in accordance with the Appellate | 17 | | Court Act. All such appeals shall be to the Illinois Appellate | 18 | | Court for the Fourth District. No appeal from a judgment | 19 | | entered upon a plea of guilty shall be taken except in | 20 | | accordance with applicable law and Supreme Court Rules. Unless | 21 | | waived, an accused may appeal as a matter of right a finding of | 22 | | guilt resulting in an approved sentence of one-year confinement |
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| 1 | | or more, or in a dismissal for a commissioned officer or | 2 | | warrant officer, a dishonorable discharge, or a bad-conduct | 3 | | discharge. The appellate rights and procedures to be followed | 4 | | shall be those provided by applicable law and Supreme Court | 5 | | Rules for criminal appeals. | 6 | | Section 68. Article 68. (Reserved). | 7 | | Section 69. Article 69. (Reserved). | 8 | | Section 70. Article 70. Appellate counsel. | 9 | | (a) The senior force judge advocate shall detail a judge | 10 | | advocate as appellate government counsel to represent the State | 11 | | in the review or appeal of cases specified in Article 67a of | 12 | | this Code and before any federal court when requested to do so | 13 | | by the Attorney General. Appellate government counsel must be a | 14 | | member in good standing of the bar of the highest court of the | 15 | | state to which the appeal is taken. | 16 | | (b) Upon an appeal by this State, an accused has the right | 17 | | to be represented by detailed military counsel before any | 18 | | reviewing authority and before any appellate court. | 19 | | (c) Upon the appeal by an accused, the accused has the | 20 | | right to be represented by military counsel before any | 21 | | reviewing authority. | 22 | | (d) Upon the request of an accused entitled to be so | 23 | | represented, the senior force judge advocate shall appoint a |
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| 1 | | judge advocate to represent the accused in the review or appeal | 2 | | of cases specified in subsections (b) and (c) of this Article. | 3 | | (e) An accused may be represented by civilian appellate | 4 | | counsel at no expense to this State. | 5 | | Section 71. Article 71. Execution of sentence; suspension | 6 | | of sentence. | 7 | | (a) If the sentence of the court-martial extends to | 8 | | dismissal or a dishonorable or bad-conduct discharge and if the | 9 | | right of the accused to appellate review is not waived, and an | 10 | | appeal is not withdrawn under Article 61 of this Code, that | 11 | | part of the sentence extending to dismissal or a dishonorable | 12 | | or bad-conduct discharge may not be executed until there is a | 13 | | final judgment as to the legality of the proceedings. A | 14 | | judgment as to the legality of the proceedings is final in such | 15 | | cases when review is completed by the Illinois Appellate Court | 16 | | for the Fourth District as prescribed in Article 67a of this | 17 | | Code, and is deemed final by the law of this State. | 18 | | (b) If the sentence of the court-martial extends to | 19 | | dismissal or a dishonorable or bad conduct discharge and if the | 20 | | right of the accused to appellate review is waived, or an | 21 | | appeal is withdrawn under Article 61 of this Code, that part of | 22 | | the sentence extending to dismissal or a dishonorable or | 23 | | bad-conduct discharge may not be executed until review of the | 24 | | case by the senior force judge advocate and any action on that | 25 | | review under Article 64 of this Code is completed. Any other |
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| 1 | | part of a court-martial sentence may be ordered executed by the | 2 | | convening authority or other person acting on the case under | 3 | | Article 60 of this Code when so approved under that Article. | 4 | | Section 72. Article 72. Vacation of suspension. | 5 | | (a) Before the vacation of the suspension of a special | 6 | | court-martial sentence, which as approved includes a | 7 | | bad-conduct discharge, or of any general court-martial | 8 | | sentence, the officer having special court-martial | 9 | | jurisdiction over the probationer shall hold a hearing on an | 10 | | alleged violation of probation. The probationer shall be | 11 | | represented at the hearing by military counsel if the | 12 | | probationer so desires. | 13 | | (b) The record of the hearing and the recommendation of the | 14 | | officer having special court-martial jurisdiction shall be | 15 | | sent for action to the officer exercising general court-martial | 16 | | jurisdiction over the probationer. If the officer vacates the | 17 | | suspension, any unexecuted part of the sentence, except a | 18 | | dismissal, shall be executed, subject to applicable | 19 | | restrictions in this Code. | 20 | | (c) The suspension of any other sentence may be vacated by | 21 | | any authority competent to convene, for the command in which | 22 | | the accused is serving or assigned, a court of the kind that | 23 | | imposed the sentence. | 24 | | Section 73. Article 73. Petition for a new trial. At any |
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| 1 | | time within 2 years after approval by the convening authority | 2 | | of a court-martial sentence the accused may petition the | 3 | | Adjutant General for a new trial on the grounds of newly | 4 | | discovered evidence or fraud on the court-martial. | 5 | | Section 74. Article 74. Remission and suspension. | 6 | | (a) Any authority competent to convene, for the command in | 7 | | which the accused is serving or assigned, a court of the kind | 8 | | that imposed the sentence may remit or suspend any part or | 9 | | amount of the unexecuted part of any sentence, including all | 10 | | uncollected forfeitures other than a sentence approved by the | 11 | | Governor. | 12 | | (b) The Governor may, for good cause, substitute an | 13 | | administrative form of discharge for a discharge or dismissal | 14 | | executed in accordance with the sentence of a court-martial. | 15 | | Section 75. Article 75. Restoration. | 16 | | (a) Under such regulations as may be prescribed, all | 17 | | rights, privileges, and property affected by an executed part | 18 | | of a court-martial sentence which has been set aside or | 19 | | disapproved, except an executed dismissal or discharge, shall | 20 | | be restored unless a new trial or rehearing is ordered and such | 21 | | executed part is included in a sentence imposed upon the new | 22 | | trial or rehearing. | 23 | | (b) If a previously executed sentence of dishonorable or | 24 | | bad-conduct discharge is not imposed on a new trial, the |
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| 1 | | Governor may substitute therefor a form of discharge authorized | 2 | | for administrative issuance unless the accused is to serve out | 3 | | the remainder of the accused's enlistment. | 4 | | (c) If a previously executed sentence of dismissal is not | 5 | | imposed on a new trial, the Governor may substitute therefor a | 6 | | form of discharge authorized for administrative issue, and the | 7 | | commissioned officer dismissed by that sentence may be | 8 | | reappointed by the Governor alone to such commissioned grade | 9 | | and with such rank as in the opinion of the Governor that | 10 | | former officer would have attained had he not been dismissed. | 11 | | The reappointment of such a former officer shall be without | 12 | | regard to the existence of a vacancy and shall affect the | 13 | | promotion status of other officers only insofar as the Governor | 14 | | may direct. All time between the dismissal and the | 15 | | reappointment shall be considered as actual service for all | 16 | | purposes, including the right to pay and allowances, as | 17 | | permitted by applicable financial management regulations. | 18 | | Section 76. Article 76. Finality of proceedings, findings, | 19 | | and sentences. The appellate review of records of trial | 20 | | provided by this Code, the proceedings, findings, and sentences | 21 | | of courts-martial as approved, reviewed, or affirmed as | 22 | | required by this Code, and all dismissals and discharges | 23 | | carried into execution under sentences by courts-martial | 24 | | following approval, review, or affirmation as required by this | 25 | | Code, are final and conclusive. Orders publishing the |
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| 1 | | proceedings of courts-martial and all action taken pursuant to | 2 | | those proceedings are binding upon all departments, courts, | 3 | | agencies, and officers of the United States and the several | 4 | | states, subject only to action upon a petition for a new trial | 5 | | as provided in Article 73 of this Code and to action under | 6 | | Article 74 of this Code. | 7 | | Section 76a. Article 76a. Leave required to be taken | 8 | | pending review of certain court-martial convictions. Under | 9 | | regulations prescribed, an accused who has been sentenced by a | 10 | | court-martial may be required to take leave pending completion | 11 | | of action under this Article if the sentence, as approved under | 12 | | Article 60 of this Code, includes an unsuspended dismissal or | 13 | | an unsuspended dishonorable or bad-conduct discharge. The | 14 | | accused may be required to begin such leave on the date on | 15 | | which the sentence is approved under Article 60 of this Code or | 16 | | at any time after such date, and such leave may be continued | 17 | | until the date on which action under this Article is completed | 18 | | or may be terminated at any earlier time. | 19 | | Section 76b. Article 76b. Lack of mental capacity or mental | 20 | | responsibility: commitment of accused for examination and | 21 | | treatment. | 22 | | (a) Persons incompetent to stand trial. | 23 | | (1) In the case of a person determined under this Code | 24 | | to be presently suffering from a mental disease or defect |
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| 1 | | rendering the person mentally incompetent to the extent | 2 | | that the person is unable to understand the nature of the | 3 | | proceedings against that person or to conduct or cooperate | 4 | | intelligently in the defense of the case, the general | 5 | | court-martial convening authority for that person shall | 6 | | commit the person to the custody of the Attorney General. | 7 | | (2) The Attorney General shall take action in | 8 | | accordance with the State statute applicable to persons | 9 | | incompetent to stand trial. If at the end of the period for | 10 | | hospitalization provided for in the State statute | 11 | | applicable to persons incompetent to stand trial, it is | 12 | | determined that the committed person's mental condition | 13 | | has not so improved as to permit the trial to proceed, | 14 | | action shall be taken in accordance with the State statute | 15 | | applicable to persons incompetent to stand trial. | 16 | | (3)(A) When the director of a facility in which a | 17 | | person is hospitalized pursuant to paragraph (2) | 18 | | determines that the person has recovered to such an extent | 19 | | that the person is able to understand the nature of the | 20 | | proceedings against the person and to conduct or cooperate | 21 | | intelligently in the defense of the case, the director | 22 | | shall promptly transmit a notification of that | 23 | | determination to the Attorney General and to the general | 24 | | court-martial convening authority for the person. The | 25 | | director shall send a copy of the notification to the | 26 | | person's counsel. |
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| 1 | | (B) Upon receipt of a notification, the general | 2 | | court-martial convening authority shall promptly take | 3 | | custody of the person unless the person covered by the | 4 | | notification is no longer subject to this Code. If the | 5 | | person is no longer subject to this Code, the Attorney | 6 | | General shall take any action within the authority of the | 7 | | Attorney General that he or she considers appropriate | 8 | | regarding the person. | 9 | | (C) The director of the facility may retain custody of | 10 | | the person for not more than 30 days after transmitting the | 11 | | notifications required by subparagraph (A) of paragraph | 12 | | (3). | 13 | | (4) In the application of the State statute applicable | 14 | | to persons incompetent to stand trial to a case under this | 15 | | subsection, references to the court that ordered the | 16 | | commitment of a person, and to the clerk of such court, | 17 | | shall be deemed to refer to the general court-martial | 18 | | convening authority for that person. However, if the person | 19 | | is no longer subject to this Code at a time relevant to the | 20 | | application of such Article to the person, the circuit | 21 | | court in the county where the person is hospitalized or | 22 | | otherwise may be found shall be considered as the court | 23 | | that ordered the commitment of the person. | 24 | | (b) Persons found not guilty by reason of lack of mental | 25 | | responsibility. | 26 | | (1) If a person is found by a court-martial not guilty |
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| 1 | | only by reason of lack of mental responsibility, the person | 2 | | shall be committed to a suitable facility until the person | 3 | | is eligible for release in accordance with this Article. | 4 | | (2) The court-martial shall conduct a hearing on the | 5 | | mental condition in accordance with the State statute | 6 | | applicable to persons incompetent to stand trial. | 7 | | (3) A report of the results of the hearing shall be | 8 | | made to the general court-martial convening authority for | 9 | | the person. | 10 | | (4) If the court-martial fails to find by the standard | 11 | | specified in the State statute applicable to persons | 12 | | incompetent to stand trial that the person's release would | 13 | | not create a substantial risk of bodily injury to another | 14 | | person or serious damage of property of another due to a | 15 | | present mental disease or defect: | 16 | | (A) the general court-martial convening authority | 17 | | may commit the person to the custody of the Attorney | 18 | | General; and | 19 | | (B) the Attorney General shall take action in | 20 | | accordance with the State statute applicable to | 21 | | persons incompetent to stand trial. | 22 | | (5) The State statute applicable to persons | 23 | | incompetent to stand trial shall apply in the case of a | 24 | | person hospitalized pursuant to subparagraph (B) of | 25 | | paragraph (4), except that the circuit court in the county | 26 | | where the person is hospitalized shall be considered as the |
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| 1 | | court that ordered the person's commitment. | 2 | | (c) General provisions. | 3 | | (1) Except as otherwise provided in this subsection and | 4 | | paragraph (1) of subsection (d), the State statute most | 5 | | closely comparable to 18 U.S.C. 4247(d) applies in the | 6 | | administration of this Article. | 7 | | (2) In the application of the State statute most | 8 | | closely comparable to 18 U.S.C. 4247(d), to hearings | 9 | | conducted by a court-martial under this Article or by (or | 10 | | by order of) a general court-martial convening authority | 11 | | under this Article, the reference in that Article to 18 | 12 | | U.S.C. 3006A does not apply. | 13 | | (d) Applicability. | 14 | | (1) The State statute most closely comparable to | 15 | | Chapter 313 of Title 18, United States Code (10 U.S.C. 4241 | 16 | | et seq.) referred to in this Article applies according to | 17 | | the provisions of this Article notwithstanding 18 U.S.C. | 18 | | 4247(j). | 19 | | (2) If the status of a person as described in Article 2 | 20 | | terminates while the person is, pursuant to this Article, | 21 | | in the custody of the Attorney General, hospitalized, or on | 22 | | conditional release under a prescribed regimen of medical, | 23 | | psychiatric, or psychological care or treatment, the | 24 | | provisions of this Article establishing requirements and | 25 | | procedures regarding a person no longer subject to this | 26 | | Code shall continue to apply to that person notwithstanding |
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| 1 | | the change of status. | 2 | | PART X. PUNITIVE ARTICLES | 3 | | Section 77. Article 77. Principals. Any person subject to | 4 | | this Code who: | 5 | | (1) commits an offense punishable by this Code, or | 6 | | aids, abets, counsels, commands, or procures its | 7 | | commission; or | 8 | | (2) causes an act to be done which if directly | 9 | | performed by him would be punishable by this Code; | 10 | | is a principal. | 11 | | Section 78. Article 78. Accessory after the fact. Any | 12 | | person subject to this Code who, knowing that an offense | 13 | | punishable by this Code has been committed, receives, comforts, | 14 | | or assists the offender in order to hinder or prevent his | 15 | | apprehension, trial, or punishment shall be punished as a | 16 | | court-martial may direct. | 17 | | Section 79. Article 79. Conviction of lesser included | 18 | | offense. An accused may be found guilty of an offense | 19 | | necessarily included in the offense charged or of an attempt to | 20 | | commit either the offense charged or an offense necessarily | 21 | | included therein. |
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| 1 | | Section 80. Article 80. Attempts. | 2 | | (a) An act, done with specific intent to commit an offense | 3 | | under this Code, amounting to more than mere preparation and | 4 | | tending, even though failing, to effect its commission, is an | 5 | | attempt to commit that offense. | 6 | | (b) Any person subject to this Code who attempts to commit | 7 | | any offense punishable by this Code shall be punished as a | 8 | | court-martial may direct, unless otherwise specifically | 9 | | prescribed. | 10 | | (c) Any person subject to this Code may be convicted of an | 11 | | attempt to commit an offense although it appears on the trial | 12 | | that the offense was consummated. | 13 | | Section 81. Article 81. Conspiracy. Any person subject to | 14 | | this Code who conspires with any other person to commit an | 15 | | offense under this Code shall, if one or more of the | 16 | | conspirators does an act to effect the object of the | 17 | | conspiracy, be punished as a court-martial may direct. | 18 | | Section 82. Article 82. Solicitation. | 19 | | (a) Any person subject to this Code who solicits or advises | 20 | | another or others to desert in violation of Article 85 of this | 21 | | Code or mutiny in violation of Article 94 of this Code shall, | 22 | | if the offense solicited or advised is attempted or committed, | 23 | | be punished with the punishment provided for the commission of | 24 | | the offense, but, if the offense solicited or advised is not |
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| 1 | | committed or attempted, the person shall be punished as a | 2 | | court-martial may direct. | 3 | | (b) Any person subject to this Code who solicits or advises | 4 | | another or others to commit an act of misbehavior before the | 5 | | enemy in violation of Article 99 of this Code or sedition in | 6 | | violation of Article 94 of this Code shall, if the offense | 7 | | solicited or advised is committed, be punished with the | 8 | | punishment provided for the commission of the offense, but, if | 9 | | the offense solicited or advised is not committed, the person | 10 | | shall be punished as a court-martial may direct. | 11 | | Section 83. Article 83. Fraudulent enlistment, | 12 | | appointment, or separation. Any person who: | 13 | | (1) procures his own enlistment or appointment in the | 14 | | State military forces by knowingly false representation or | 15 | | deliberate concealment as to his qualifications for that | 16 | | enlistment or appointment and receives pay or allowances | 17 | | thereunder; or | 18 | | (2) procures his own separation from the State military | 19 | | forces by knowingly false representation or deliberate | 20 | | concealment as to his eligibility for that separation;
| 21 | | shall be punished as a court-martial may direct. | 22 | | Section 84. Article 84. Unlawful enlistment, appointment, | 23 | | or separation. Any person subject to this Code who effects an | 24 | | enlistment or appointment in or a separation from the State |
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| 1 | | military forces of any person who is known to him to be | 2 | | ineligible for that enlistment, appointment, or separation | 3 | | because it is prohibited by law, regulation, or order shall be | 4 | | punished as a court-martial may direct. | 5 | | Section 85. Article 85. Desertion. | 6 | | (a) Any member of the State military forces who: | 7 | | (1) without authority goes or remains absent from his | 8 | | unit, organization, or place of duty with intent to remain | 9 | | away therefrom permanently; | 10 | | (2) quits his unit, organization, or place of duty with | 11 | | intent to avoid hazardous duty or to shirk important | 12 | | service; or | 13 | | (3) without being regularly separated from one of the | 14 | | State military forces enlists or accepts an appointment in | 15 | | the same or another one of the State military forces, or in | 16 | | one of the armed forces of the United States, without fully | 17 | | disclosing the fact that he has not been regularly | 18 | | separated, or enters any foreign armed service except when | 19 | | authorized by the United States;
| 20 | | is guilty of desertion. | 21 | | (b) Any commissioned officer of the State military forces | 22 | | who, after tender of his resignation and before notice of its | 23 | | acceptance, quits his post or proper duties without leave and | 24 | | with intent to remain away therefrom permanently is guilty of | 25 | | desertion. |
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| 1 | | (c) Any person found guilty of desertion or attempt to | 2 | | desert shall be punished, if the offense is committed in time | 3 | | of war, by confinement of not more than 10 years or such other | 4 | | punishment as a court-martial may direct, but if the desertion | 5 | | or attempt to desert occurs at any other time, by such | 6 | | punishment as a court-martial may direct. | 7 | | Section 86. Article 86. Absence without leave. Any person | 8 | | subject to this Code who, without authority: | 9 | | (1) fails to go to his appointed place of duty at the | 10 | | time prescribed; | 11 | | (2) goes from that place; or | 12 | | (3) absents himself or remains absent from his unit, | 13 | | organization, or place of duty at which he is required to | 14 | | be at the time prescribed;
| 15 | | shall be punished as a court-martial may direct. | 16 | | Section 87. Article 87. Missing movement. Any person | 17 | | subject to this Code who through neglect or design misses the | 18 | | movement of a ship, aircraft, or unit with which he is required | 19 | | in the course of duty to move shall be punished as a | 20 | | court-martial may direct. | 21 | | Section 88. Article 88. Contempt toward officials. Any | 22 | | commissioned officer who uses contemptuous words against the | 23 | | President, the Vice President, Congress, the Secretary of |
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| 1 | | Defense, the Secretary of a military department, the Secretary | 2 | | of Homeland Security, or the Governor or General Assembly shall | 3 | | be punished as a court-martial may direct. | 4 | | Section 89. Article 89. Disrespect toward superior | 5 | | commissioned officer. Any person subject to this Code who | 6 | | behaves with disrespect toward his superior commissioned | 7 | | officer shall be punished as a court-martial may direct. | 8 | | Section 90. Article 90. Assaulting or willfully disobeying | 9 | | superior commissioned officer. Any person subject to this Code | 10 | | who: | 11 | | (1) strikes his superior commissioned officer or draws | 12 | | or lifts up any weapon or offers any violence against him | 13 | | while he is in the execution of his office; or | 14 | | (2) willfully disobeys a lawful command of his superior | 15 | | commissioned officer;
| 16 | | shall be punished, if the offense is committed in time of war, | 17 | | by confinement of not more than 10 years or such other | 18 | | punishment as a court-martial may direct, and if the offense is | 19 | | committed at any other time, by such punishment as a | 20 | | court-martial may direct. | 21 | | Section 91. Article 91. Insubordinate conduct toward | 22 | | warrant officer, noncommissioned officer, or petty officer. | 23 | | Any warrant officer or enlisted member who: |
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| 1 | | (1) strikes or assaults a warrant officer, | 2 | | noncommissioned officer, or petty officer, while that | 3 | | officer is in the execution of his office; | 4 | | (2) willfully disobeys the lawful order of a warrant | 5 | | officer, noncommissioned officer, or petty officer; or | 6 | | (3) treats with contempt or is disrespectful in | 7 | | language or deportment toward a warrant officer, | 8 | | noncommissioned officer, or petty officer, while that | 9 | | officer is in the execution of his office;
| 10 | | shall be punished as a court-martial may direct. | 11 | | Section 92. Article 92. Failure to obey order or | 12 | | regulation. Any person subject to this Code who: | 13 | | (1) violates or fails to obey any lawful general order | 14 | | or regulation; | 15 | | (2) having knowledge of any other lawful order issued | 16 | | by a member of the State military forces, which it is his | 17 | | duty to obey, fails to obey the order; or | 18 | | (3) is derelict in the performance of his duties;
| 19 | | shall be punished as a court-martial may direct. | 20 | | Section 93. Article 93. Cruelty and maltreatment. Any | 21 | | person subject to this Code who is guilty of cruelty toward, or | 22 | | oppression or maltreatment of, any person subject to his orders | 23 | | shall be punished as a court-martial may direct. |
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| 1 | | Section 94. Article 94. Mutiny or sedition. | 2 | | (a) Any person subject to this Code who: | 3 | | (1) with intent to usurp or override lawful military | 4 | | authority, refuses, in concert with any other person, to | 5 | | obey orders or otherwise do his duty or creates any | 6 | | violence or disturbance is guilty of mutiny; | 7 | | (2) with intent to cause the overthrow or destruction | 8 | | of lawful civil authority, creates, in concert with any | 9 | | other person, revolt, violence, or other disturbance | 10 | | against that authority is guilty of sedition; or | 11 | | (3) fails to do his utmost to prevent and suppress a | 12 | | mutiny or sedition being committed in his presence, or | 13 | | fails to take all reasonable means to inform his superior | 14 | | commissioned officer or commanding officer of a mutiny or | 15 | | sedition which he knows or has reason to believe is taking | 16 | | place, is guilty of a failure to suppress or report a | 17 | | mutiny or sedition. | 18 | | (b) A person who is found guilty of attempted mutiny, | 19 | | mutiny, sedition, or failure to suppress or report a mutiny or | 20 | | sedition shall be punished as a court-martial may direct. | 21 | | Section 95. Article 95. Resistance, flight, breach of | 22 | | arrest, and escape. Any person subject to this Code who: | 23 | | (1) resists apprehension; | 24 | | (2) flees from apprehension; | 25 | | (3) breaks arrest; or |
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| 1 | | (4) escapes from custody or confinement;
| 2 | | shall be punished as a court-martial may direct. | 3 | | Section 96. Article 96. Releasing prisoner without proper | 4 | | authority. Any person subject to this Code who, without proper | 5 | | authority, releases any prisoner committed to his charge, or | 6 | | who through neglect or design suffers any such prisoner to | 7 | | escape, shall be punished as a court-martial may direct, | 8 | | whether or not the prisoner was committed in strict compliance | 9 | | with law. | 10 | | Section 97. Article 97. Unlawful detention. Any person | 11 | | subject to this Code who, except as provided by law or | 12 | | regulation, apprehends, arrests, or confines any person shall | 13 | | be punished as a court-martial may direct. | 14 | | Section 98. Article 98. Noncompliance with procedural | 15 | | rules. Any person subject to this Code who: | 16 | | (1) is responsible for unnecessary delay in the | 17 | | disposition of any case of a person accused of an offense | 18 | | under this Code; or | 19 | | (2) knowingly and intentionally fails to enforce or | 20 | | comply with any provision of this Code regulating the | 21 | | proceedings before, during, or after trial of an accused;
| 22 | | shall be punished as a court-martial may direct. |
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| 1 | | Section 99. Article 99. Misbehavior before the enemy. Any | 2 | | person subject to this Code who before or in the presence of | 3 | | the enemy: | 4 | | (1) runs away; | 5 | | (2) shamefully abandons, surrenders, or delivers up | 6 | | any command, unit, place, or military property which it is | 7 | | his duty to defend; | 8 | | (3) through disobedience, neglect, or intentional | 9 | | misconduct endangers the safety of any such command, unit, | 10 | | place, or military property; | 11 | | (4) casts away his arms or ammunition; | 12 | | (5) is guilty of cowardly conduct; | 13 | | (6) quits his place of duty to plunder or pillage; | 14 | | (7) causes false alarms in any command, unit, or place | 15 | | under control of the armed forces of the United States or | 16 | | the State military forces; | 17 | | (8) willfully fails to do his utmost to encounter, | 18 | | engage, capture, or destroy any enemy troops, combatants, | 19 | | vessels, aircraft, or any other thing, which it is his duty | 20 | | so to encounter, engage, capture, or destroy; or | 21 | | (9) does not afford all practicable relief and | 22 | | assistance to any troops, combatants, vessels, or aircraft | 23 | | of the armed forces belonging to the United States or their | 24 | | allies, to the State, or to any other state, when engaged | 25 | | in battle;
| 26 | | shall be punished as a court-martial may direct. |
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| 1 | | Section 100. Article 100. Subordinate compelling | 2 | | surrender.
Any person subject to this Code who compels or | 3 | | attempts to compel the commander of any of the State military | 4 | | forces of this State, or of any other state, place, vessel, | 5 | | aircraft, or other military property, or of any body of members | 6 | | of the armed forces, to give it up to an enemy or to abandon it, | 7 | | or who strikes the colors or flag to an enemy without proper | 8 | | authority, shall be punished as a court-martial may direct.
| 9 | | Section 101. Article 101. Improper use of countersign.
Any | 10 | | person subject to this Code who in time of war discloses the | 11 | | parole or countersign to any person not entitled to receive it | 12 | | or who gives to another, who is entitled to receive and use the | 13 | | parole or countersign, a different parole or countersign from | 14 | | that which, to his knowledge, he was authorized and required to | 15 | | give, shall be punished as a court-martial may direct. | 16 | | Section 102. Article 102. Forcing a safeguard.
Any person | 17 | | subject to this Code who forces a safeguard shall be punished | 18 | | as a court-martial may direct. | 19 | | Section 103. Article 103. Captured or abandoned property. | 20 | | (a) All persons subject to this Code shall secure all | 21 | | public property taken for the service of the United States or | 22 | | this State, and shall give notice and turn over to the proper |
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| 1 | | authority without delay all captured or abandoned property in | 2 | | their possession, custody, or control. | 3 | | (b) Any person subject to this Code who: | 4 | | (1) fails to carry out the duties prescribed in | 5 | | subsection (a); | 6 | | (2) buys, sells, trades, or in any way deals in or | 7 | | disposes of taken, captured, or abandoned property, | 8 | | whereby he receives or expects any profit, benefit, or | 9 | | advantage to himself or another directly or indirectly | 10 | | connected with himself; or
| 11 | | (3) engages in looting or pillaging;
| 12 | | shall be punished as a court-martial may direct. | 13 | | Section 104. Article 104. Aiding the enemy. Any person | 14 | | subject to this Code who: | 15 | | (1) aids, or attempts to aid, the enemy with arms, | 16 | | ammunition, supplies, money, or other things; or | 17 | | (2) without proper authority, knowingly harbors or | 18 | | protects or gives intelligence to, or communicates or | 19 | | corresponds with or holds any intercourse with the enemy, | 20 | | either directly or indirectly;
| 21 | | shall be punished as a court-martial may direct. | 22 | | Section 105. Article 105. Misconduct as prisoner. Any | 23 | | person subject to this Code who, while in the hands of the | 24 | | enemy in time of war: |
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| 1 | | (1) for the purpose of securing favorable treatment by | 2 | | his captors acts without proper authority in a manner | 3 | | contrary to law, custom, or regulation, to the detriment of | 4 | | others of whatever nationality held by the enemy as | 5 | | civilian or military prisoners; or | 6 | | (2) while in a position of authority over such persons | 7 | | maltreats them without justifiable cause;
| 8 | | shall be punished as a court-martial may direct. | 9 | | Section 106. Article 106. (Reserved). | 10 | | Section 106a. Article 106a. (Reserved). | 11 | | Section 107. Article 107. False official statements. Any | 12 | | person subject to this Code who, with intent to deceive, signs | 13 | | any false record, return, regulation, order, or other official | 14 | | document made in the line of duty, knowing it to be false, or | 15 | | makes any other false official statement made in the line of | 16 | | duty, knowing it to be false, shall be punished as a | 17 | | court-martial may direct. | 18 | | Section 108. Article 108. Military property: loss, damage, | 19 | | destruction, or wrongful disposition. Any person subject to | 20 | | this Code who, without proper authority: | 21 | | (1) sells or otherwise disposes of; | 22 | | (2) willfully or through neglect damages, destroys, or |
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| 1 | | loses; or | 2 | | (3) willfully or through neglect suffers to be lost, | 3 | | damaged, destroyed, sold, or wrongfully disposed of;
| 4 | | any military property of the United States or of any state, | 5 | | shall be punished as a court-martial may direct. | 6 | | Section 109. Article 109. Property other than military | 7 | | property: waste, spoilage, or destruction. Any person subject | 8 | | to this Code who willfully or recklessly wastes, spoils, or | 9 | | otherwise willfully and wrongfully destroys or damages any | 10 | | property other than military property of the United States or | 11 | | of any state shall be punished as a court-martial may direct. | 12 | | Section 110. Article 110. Improper hazarding of vessel. | 13 | | (a) Any person subject to this Code who willfully and | 14 | | wrongfully hazards or suffers to be hazarded any vessel of the | 15 | | armed forces of the United States or any state military forces | 16 | | shall suffer such punishment as a court-martial may direct. | 17 | | (b) Any person subject to this Code who negligently hazards | 18 | | or suffers to be hazarded any vessel of the armed forces of the | 19 | | United States or any state military forces shall be punished as | 20 | | a court-martial may direct. | 21 | | Section 111. Article 111. (Reserved). | 22 | | Section 112. Article 112. Drunk on duty. Any person subject |
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| 1 | | to this Code other than a sentinel or look-out, who is found | 2 | | drunk on duty, shall be punished as a court-martial may direct. | 3 | | Section 112a. Article 112a. Wrongful use, possession, | 4 | | etc., of controlled substances. | 5 | | (a) Any person subject to this Code who wrongfully uses, | 6 | | possesses, manufactures, distributes, imports into the customs | 7 | | territory of the United States, exports from the United States, | 8 | | or introduces into an installation, vessel, vehicle, or | 9 | | aircraft used by or under the control of the armed forces of | 10 | | the United States or of any state military forces a substance | 11 | | described in subsection (b) shall be punished as a | 12 | | court-martial may direct. | 13 | | (b) The substances referred to in subsection (a) are the | 14 | | following: | 15 | | (1) Opium, heroin, cocaine, amphetamine, lysergic acid | 16 | | diethylamide, methamphetamine, phencyclidine, barbituric | 17 | | acid, and marijuana and any compound or derivative of any | 18 | | such substance. | 19 | | (2) Any substance not specified in paragraph (1) that | 20 | | is listed on a schedule of controlled substances prescribed | 21 | | by the President for the purposes of the Uniform Code of | 22 | | Military Justice of the armed forces of the United States | 23 | | (10 U.S.C. 801 et seq.). | 24 | | (3) Any other substance not specified in paragraph (1) | 25 | | or contained on a list prescribed by the President under |
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| 1 | | paragraph (2) that is listed in schedules I through V of | 2 | | Article 202 of the Controlled Substances Act (21 U.S.C. | 3 | | 812). | 4 | | Section 113. Article 113. Misbehavior of sentinel. Any | 5 | | sentinel or look-out who is found drunk or sleeping upon his | 6 | | post or leaves it before being regularly relieved shall be | 7 | | punished, if the offense is committed in time of war, by | 8 | | confinement of not more than 10 years or other punishment as a | 9 | | court-martial may direct, but if the offense is committed at | 10 | | any other time, by such punishment as a court-martial may | 11 | | direct. | 12 | | Section 114. Article 114. Dueling. Any person subject to | 13 | | this Code who fights or promotes, or is concerned in or | 14 | | connives at fighting a duel, or who, having knowledge of a | 15 | | challenge sent or about to be sent, fails to report the fact | 16 | | promptly to the proper authority, shall be punished as a | 17 | | court-martial may direct. | 18 | | Section 115. Article 115. Malingering. Any person subject | 19 | | to this Code who for the purpose of avoiding work, duty, or | 20 | | service: | 21 | | (1) feigns illness, physical disablement, mental | 22 | | lapse, or derangement; or | 23 | | (2) intentionally inflicts self-injury;
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| 1 | | shall be punished as a court-martial may direct. | 2 | | Section 116. Article 116. Riot or breach of peace. Any | 3 | | person subject to this Code who causes or participates in any | 4 | | riot or breach of the peace shall be punished as a | 5 | | court-martial may direct. | 6 | | Section 117. Article 117. Provoking speeches or gestures. | 7 | | Any person subject to this Code who uses provoking or | 8 | | reproachful words or gestures towards any other person subject | 9 | | to this Code shall be punished as a court-martial may direct. | 10 | | Section 118. Article 118. (Reserved). | 11 | | Section 119. Article 119. (Reserved). | 12 | | Section 120. Article 120. (Reserved). | 13 | | Section 121. Article 121. (Reserved). | 14 | | Section 122. Article 122. (Reserved). | 15 | | Section 123. Article 123. (Reserved). | 16 | | Section 123a. Article 123a. (Reserved). |
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| 1 | | Section 124. Article 124. (Reserved). | 2 | | Section 125. Article 125. (Reserved). | 3 | | Section 126. Article 126. (Reserved). | 4 | | Section 127. Article 127. (Reserved). | 5 | | Section 128. Article 128. (Reserved). | 6 | | Section 129. Article 129. (Reserved). | 7 | | Section 130. Article 130. (Reserved). | 8 | | Section 131. Article 131. (Reserved). | 9 | | Section 132. Article 132. Frauds against the government. | 10 | | Any person subject to this Code: | 11 | | (1) who, knowing it to be false or fraudulent: | 12 | | (A) makes any claim against the United States, this | 13 | | State, or any officer thereof; or | 14 | | (B) presents to any person in the civil or military | 15 | | service thereof, for approval or payment, any claim | 16 | | against the United States, this State, or any officer | 17 | | thereof; | 18 | | (2) who, for the purpose of obtaining the approval, |
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| 1 | | allowance, or payment of any claim against the United | 2 | | States, this State, or any officer thereof: | 3 | | (A) makes or uses any writing or other paper | 4 | | knowing it to contain any false or fraudulent | 5 | | statements; | 6 | | (B) makes any oath, affirmation, or certification | 7 | | to any fact or to any writing or other paper knowing | 8 | | the oath, affirmation, or certification to be false; or | 9 | | (C) forges or counterfeits any signature upon any | 10 | | writing or other paper, or uses any such signature | 11 | | knowing it to be forged or counterfeited; | 12 | | (3) who, having charge, possession, custody, or | 13 | | control of any money, or other property of the United | 14 | | States or this State, furnished or intended for the armed | 15 | | forces of the United States or the State military forces, | 16 | | knowingly delivers to any person having authority to | 17 | | receive it, any amount thereof less than that for which he | 18 | | receives a certificate or receipt; or | 19 | | (4) who, being authorized to make or deliver any paper | 20 | | certifying the receipt of any property of the United States | 21 | | or this State, furnished or intended for the armed forces | 22 | | of the United States or the State military forces, makes or | 23 | | delivers to any person such writing without having full | 24 | | knowledge of the truth of the statements therein contained | 25 | | and with intent to defraud the United States or this State; | 26 | | shall, upon conviction, be punished as a court-martial may |
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| 1 | | direct. | 2 | | Section 133. Article 133. Conduct unbecoming an officer and | 3 | | a gentleman. Any commissioned officer, cadet, candidate, or | 4 | | midshipman who is convicted of conduct unbecoming an officer | 5 | | and a gentleman shall be punished as a court-martial may | 6 | | direct. | 7 | | Section 134. Article 134. General Article. Though not | 8 | | specifically mentioned in this Code, all disorders and neglects | 9 | | to the prejudice of
good order and discipline in the State | 10 | | military forces and all conduct of a nature to bring discredit | 11 | | upon the State military forces shall be taken cognizance of by | 12 | | a court-martial and punished at the discretion of a military | 13 | | court. However, where a crime constitutes an offense that | 14 | | violates both this Code and the criminal laws of the state | 15 | | where the offense occurs or criminal laws of the United States, | 16 | | jurisdiction of the military court must be determined in | 17 | | accordance with subsection (b) of Article 2 of this Code. | 18 | | PART XI. MISCELLANEOUS | 19 | | Section 135. Article 135. Courts of inquiry. | 20 | | (a) Courts of inquiry to investigate any matter of concern | 21 | | to the State military forces may be convened by any person | 22 | | authorized to convene a general court-martial, whether or not |
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| 1 | | the persons involved have requested such an inquiry. | 2 | | (b) A court of inquiry consists of 3 or more commissioned | 3 | | officers. For each court of inquiry, the convening authority | 4 | | shall also appoint counsel for the court. | 5 | | (c) Any person subject to this Code whose conduct is | 6 | | subject to inquiry shall be designated as a party. Any person | 7 | | subject to this Code who has a direct interest in the subject | 8 | | of inquiry has the right to be designated as a party upon | 9 | | request to the court. Any person designated as a party shall be | 10 | | given due notice and has the right to be present, to be | 11 | | represented by counsel, to cross-examine witnesses, and to | 12 | | introduce evidence. | 13 | | (d) Members of a court of inquiry may be challenged by a | 14 | | party, but only for cause stated to the court. | 15 | | (e) The members, counsel, the reporter, and interpreters of | 16 | | courts of inquiry shall take an oath to faithfully perform | 17 | | their duties. | 18 | | (f) Witnesses may be summoned to appear and testify and be | 19 | | examined before courts of inquiry, as provided for | 20 | | courts-martial. | 21 | | (g) Courts of inquiry shall make findings of fact but may | 22 | | not express opinions or make recommendations unless required to | 23 | | do so by the convening authority. | 24 | | (h) Each court of inquiry shall keep a record of its | 25 | | proceedings, which shall be authenticated by the signatures of | 26 | | the president and counsel for the court and forwarded to the |
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| 1 | | convening authority. If the record cannot be authenticated by | 2 | | the president, it shall be signed by a member in lieu of the | 3 | | president. If the record cannot be authenticated by the counsel | 4 | | for the court, it shall be signed by a member in lieu of the | 5 | | counsel. | 6 | | Section 136. Article 136. Authority to administer oaths and | 7 | | to act as notary. | 8 | | (a) The following persons may administer oaths for the | 9 | | purposes of military administration, including military | 10 | | justice: | 11 | | (1) All judge advocates. | 12 | | (2) All summary courts-martial. | 13 | | (3) All adjutants, assistant adjutants, acting | 14 | | adjutants, and personnel adjutants. | 15 | | (4) All commanding officers of the naval militia. | 16 | | (5) All other persons designated by regulations of the | 17 | | armed forces of the United States or by State statute. | 18 | | (b) The following persons may administer oaths necessary in | 19 | | the performance of their duties: | 20 | | (1) The president, military judge, and trial counsel | 21 | | for all general and special courts-martial. | 22 | | (2) The president and the counsel for the court of any | 23 | | court of inquiry. | 24 | | (3) All officers designated to take a deposition. | 25 | | (4) All persons detailed to conduct an investigation. |
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| 1 | | (5) All recruiting officers. | 2 | | (6) All other persons designated by regulations of the | 3 | | armed forces of the United States or by State statute. | 4 | | (c) The signature without seal of any such person, together | 5 | | with the title of his office, is prima facie evidence of the | 6 | | person's authority. | 7 | | Section 137. Article 137. Articles to be explained. | 8 | | (a)(1) The Articles of this Code specified in paragraph (3) | 9 | | shall be carefully explained to each enlisted member at the | 10 | | time of, or within 30 days after, the member's initial entrance | 11 | | into a duty status with the State military forces. | 12 | | (2) Such Articles shall be explained again: | 13 | | (A) after the member has completed basic or recruit | 14 | | training; and | 15 | | (B) at the time when the member reenlists. | 16 | | (3) This subsection applies with respect to Articles 2, 3, | 17 | | 7 through 15, 25, 27, 31, 37, 38, 55, 77 through 134, and 137 | 18 | | through 139 of this Code. | 19 | | (b) The text of this Code and of the regulations or orders | 20 | | prescribed under this Code shall be made available to a member | 21 | | of the State military forces, upon request by the member, for | 22 | | the member's personal examination, but this Code is effective | 23 | | and binding upon the State military forces upon the effective | 24 | | date noted in Article 999, and said regulations or orders are | 25 | | effective upon proper publishing of same, pursuant to other law |
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| 1 | | or regulation. | 2 | | Section 138. Article 138. Complaints of wrongs. Any member | 3 | | of the State military forces who believes himself wronged by a | 4 | | commanding officer, and who, upon due application to that | 5 | | commanding officer, is refused redress, may complain to any | 6 | | superior commissioned officer, who shall forward the complaint | 7 | | to the officer exercising general court-martial jurisdiction | 8 | | over the officer against whom it is made. The officer | 9 | | exercising general court-martial jurisdiction shall examine | 10 | | into the complaint and take proper measures for redressing the | 11 | | wrong complained of; and shall, as soon as possible, send to
| 12 | | the Adjutant General a true statement of that complaint, with | 13 | | the proceedings had thereon.
| 14 | | Section 139. Article 139. Redress of injuries to property. | 15 | | (a) Whenever complaint is made to any commanding officer | 16 | | that willful damage has been done to the property of any person | 17 | | or that the person's property has been wrongfully taken by | 18 | | members of the State military forces, that person may, under | 19 | | such regulations prescribed, convene a board to investigate the | 20 | | complaint. The board shall consist of from one to 3 | 21 | | commissioned officers and, for the purpose of that | 22 | | investigation, it has power to summon witnesses and examine | 23 | | them upon oath, to receive depositions or other documentary | 24 | | evidence, and to assess the damages sustained against the |
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| 1 | | responsible parties. The assessment of damages made by the | 2 | | board is subject to the approval of the commanding officer, and | 3 | | in the amount approved by that officer shall be charged against | 4 | | the pay of the offenders. The order of the commanding officer | 5 | | directing charges herein authorized is conclusive on any | 6 | | disbursing officer for payment to the injured parties of the | 7 | | damages so assessed and approved. | 8 | | (b) If the offenders cannot be ascertained, but the | 9 | | organization or detachment to which they belong is known, | 10 | | charges totaling the amount of damages assessed and approved | 11 | | may be made in such proportion as may be considered just upon | 12 | | the individual members thereof who are shown to have been | 13 | | present at the scene at the time the damages complained of were | 14 | | inflicted, as determined by the approved findings of the board. | 15 | | Section 140. Article 140. Delegation by the Governor. The | 16 | | Governor may delegate any authority vested in the Governor | 17 | | under this Code, and provide for the subdelegation of any such | 18 | | authority, except the power given the Governor by Article 22 of | 19 | | this Code. | 20 | | Section 141. Article 141. Payment of fees, costs, and | 21 | | expenses. | 22 | | (a) The fees and authorized travel expenses of all | 23 | | witnesses, experts, victims, court reporters, and | 24 | | interpreters, fees for the service of process, the costs of |
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| 1 | | collection, apprehension, detention and confinement, and all | 2 | | other necessary expenses of prosecution and the administration | 3 | | of military justice, not otherwise payable by any other source, | 4 | | shall be paid out of the State Military Justice Fund. | 5 | | (b) For the foregoing purposes, the State Military Justice | 6 | | Fund is created as a special fund in the State treasury. The | 7 | | Fund shall be administered by the Adjutant General, from which | 8 | | expenses of military justice shall be paid in the amounts and | 9 | | manner as prescribed by law. The General Assembly may | 10 | | appropriate and have deposited into the Fund such moneys as it | 11 | | deems necessary to carry out the purposes of this Code. | 12 | | Section 142. Article 142. Payment of fines and disposition | 13 | | thereof. | 14 | | (a) Fines imposed by a military court or through imposition | 15 | | of non-judicial punishment may be paid to this State and | 16 | | delivered to the court or imposing officer, or to a person | 17 | | executing their process. Fines may be collected in the | 18 | | following manner: | 19 | | (1) by cash or money order; | 20 | | (2) by retention of any pay or allowances due or to | 21 | | become due the person fined from any state or the United | 22 | | States; or | 23 | | (3) by garnishment or levy, together with costs, on the | 24 | | wages, goods, and chattels of a person delinquent in paying | 25 | | a fine, as provided by law. |
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| 1 | | (b) Any sum so received or retained shall be deposited into | 2 | | the State Military Justice Fund or to whomever the court so | 3 | | directs. | 4 | | Section 143. Article 143. Uniformity of interpretation. | 5 | | This Code shall be so construed as to effectuate its general | 6 | | purpose to make it in conformity, so far as practical, with the | 7 | | Uniform Code of Military Justice, Chapter 47 of Title 10, | 8 | | United States Code. | 9 | | Section 144. Article 144. Immunity for action of military | 10 | | courts. All persons acting under the provisions of this Code, | 11 | | whether as a member of the military or as a civilian, shall be | 12 | | immune from any personal liability for any of the acts or | 13 | | omissions which they did or failed to do as part of their | 14 | | duties under this Code. | 15 | | Section 145. Article 145. Severability. The provisions of | 16 | | this Code are hereby declared to be severable and if any | 17 | | provision of this Code or the application of such provision to | 18 | | any person or circumstance is declared invalid for any reason, | 19 | | such declaration shall not affect the validity of the remaining | 20 | | portions of this Code. | 21 | | Section 146. Article 146. (Reserved). |
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| 1 | | Section 147. Article 147. Time of taking effect. (See | 2 | | Section 999 for effective date.) | 3 | | Section 148. Article 148. Supersedes existing State | 4 | | military justice codes. On the effective date of this Code, | 5 | | this law supersedes all existing statutes, ordinances, | 6 | | directives, rules, regulations, orders and other laws in this | 7 | | State covered by the subject matter of this Code. | 8 | | Section 149. Article 149. Civilian crimes assimilated. Any | 9 | | person subject to this Code who commits an offense not | 10 | | enumerated in this Code, but which is an offense under the laws | 11 | | of the United States, the laws of this State, or the laws of | 12 | | another state, U.S. Commonwealth, Territory, Possession, or | 13 | | District, while said person is subject to the jurisdiction of | 14 | | this Code under Article 2, is guilty of any act or omission | 15 | | which, although not made punishable by any enactment of this | 16 | | State, is punishable if committed or omitted within the | 17 | | jurisdiction of the laws of the United States, the laws of this | 18 | | State, or the laws of another state, Territory, Possession, or | 19 | | District, and said offense may be charged as an offense under | 20 | | Article 134 of this Code pursuant to the substantive law of the | 21 | | jurisdiction where the offense was committed, in force at the | 22 | | time of said offense, and shall be punished pursuant to said | 23 | | other law, subject only to the maximum punishment prescribed by | 24 | | this Code. |
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| 1 | | Section 150. The Military Code of Illinois is amended by | 2 | | adding Section 34.1 as follows: | 3 | | (20 ILCS 1805/34.1 new) | 4 | | Sec. 34.1. Separation; discharge; Illinois National Guard. | 5 | | (a) Members of the Illinois National Guard shall be | 6 | | separated from the active service in accordance with federal | 7 | | laws and regulations as made applicable to the National Guard, | 8 | | except as otherwise provided herein or in the Illinois Code of | 9 | | Military Justice. | 10 | | (b) Members of the Illinois National Guard who are | 11 | | discharged from the Illinois National Guard, in the case of | 12 | | officers with a dismissal or in the case of enlisted personnel | 13 | | with a dishonorable discharge, shall be ineligible to hold any | 14 | | elective or appointive office, position, or employment in the | 15 | | service of this State, any county, or any municipality thereof, | 16 | | for a period of 5 years unless such disability shall be removed | 17 | | by the Governor.
| 18 | | (20 ILCS 1805/34 rep.)
| 19 | | (20 ILCS 1805/47 rep.)
| 20 | | (20 ILCS 1805/Art. XIV rep.) | 21 | | (20 ILCS 1805/Art. XV rep.)
| 22 | | (20 ILCS 1805/89 rep.)
| 23 | | (20 ILCS 1805/90 rep.)
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| 1 | | (20 ILCS 1805/91 rep.)
| 2 | | Section 155. The Military Code of Illinois is amended by | 3 | | repealing Sections 34, 47, 89, 90, and 91 and Articles XIV and | 4 | | XV. | 5 | | Section 156. The State Finance Act is amended by adding | 6 | | Section 5.875 as follows: | 7 | | (30 ILCS 105/5.875 new) | 8 | | Sec. 5.875. The State Military Justice Fund.
| 9 | | Section 999. Effective date. This Act takes effect January | 10 | | 1, 2017.
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| 1 | |
INDEX
| 2 | |
Statutes amended in order of appearance
| | 3 | | New Act | | | 4 | | 20 ILCS 1805/34.1 new | | | 5 | | 20 ILCS 1805/34 rep. | | | 6 | | 20 ILCS 1805/47 rep. | | | 7 | | 20 ILCS 1805/Art. XIV rep. | | | 8 | | 20 ILCS 1805/Art. XV rep. | | | 9 | | 20 ILCS 1805/89 rep. | | | 10 | | 20 ILCS 1805/90 rep. | | | 11 | | 20 ILCS 1805/91 rep. | | | 12 | | 30 ILCS 105/5.875 new | |
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