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| Home > Statutes > Usa Arizona |
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USA Statutes : arizona
Title : Military Affairs and Emergency Management
Chapter : ARIZONA CODE OF MILITARY JUSTICE
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26-1001 Definitions
In this chapter, unless the context otherwise requires:
1. "Accuser" means a person who signs and swears to charges, a person who directs
that charges nominally be signed and sworn to by another and any other person who has an
interest other than an official interest in the prosecution of the accused.
2. "Apprehend" or "apprehension" means taking a person into custody.
3. "Arrest" means the restraint of a person by an order, not imposed as a
punishment for an offense, directing the person to remain within certain specified
limits.
4. "Candidate" means a candidate of the ARIZONA military academy.
5. "Code" means the ARIZONA code of military justice as set forth in this chapter.
6. "Commanding officer" means only commissioned officers.
7. "Confinement" means the physical restraint of a person.
8. "Judge advocate" means an officer of the judge advocate general's corps of the
United States army or the army national guard of the United States or an officer of the
United States air force or the air national guard of the United States who is designated
as a judge advocate.
9. "Military" means any or all of the armed forces of this state, the United States
or any other state.
10. "Military judge" means an official of a general or special court-martial
detailed in accordance with section 26-1026.
11. "National guard" means the national guard of ARIZONA and the state guard when
organized.
12. "Officer in charge" means a member of the National guard designated as the
officer in charge by an appropriate authority.
13. "Record", if used in connection with the proceedings of a court-martial, means
an official written transcript, written summary or other writing relating to the
proceedings or an official audiotape, videotape or similar material from which sound, or
sound and visual images, depicting the proceedings may be reproduced.
14. "State judge advocate" means the commissioned officer responsible for
supervising the administration of military justice in the national guard.
15. "Superior commissioned officer" means a commissioned officer superior in rank or
command.
26-1002 Persons subject to the code
A. The following persons are subject to the code:
1. Members of the national guard.
2. All other persons lawfully ordered to duty with the national guard from the
dates they are required to serve by the terms of the order or other directive calling
them into service.
B. The voluntary enlistment of any person who has the capacity to understand the
significance of enlisting in the national guard is valid for purposes of jurisdiction
under subsection A and a change of status from civilian to member of the national guard
is effective on the taking of the oath of enlistment.
C. Notwithstanding any other provision of law, a person serving with the national
guard who submits voluntarily to military authority, meets the mental competency and
minimum age qualifications for enlistment at the time of voluntary submission to military
authority, receives military pay or allowances and performs military duties is subject to
this chapter until such person's active service has been terminated in accordance with
law or rules adopted by the Governor.
26-1003 Jurisdiction to try personnel
A. Each person discharged from the national guard who is later charged with having
fraudulently obtained the discharge is subject to trial by court-martial on that charge
and is, after apprehension, subject to this code while in the custody of the military for
that trial. On conviction of that charge the person is subject to trial by court-martial
for all offenses in this code committed before the fraudulent discharge.
B. A person who has deserted from the national guard is subject to the jurisdiction
of this code notwithstanding a separation from any later period of service.
26-1004 Dismissed officer's right to trial by court-martial
A. If any commissioned officer, dismissed by order of the governor, makes a written
application for trial by court-martial setting forth, under oath, that he has been
wrongfully dismissed, the governor, as soon as practicable, shall convene a general
court-martial to try that officer on the charges on which he was dismissed. A
court-martial so convened has jurisdiction to try the dismissed officer on those charges,
and he shall be considered to have waived the right to plead any statute of limitations
applicable to any offense with which he is charged. As part of its sentence, the
court-martial may adjudge the affirmance of the dismissal, but if the court-martial
acquits the accused or if the sentence adjudged, as finally approved or affirmed, does
not include dismissal, the adjutant general shall substitute for the dismissal ordered by
the governor a form of discharge authorized for administrative issue.
B. If the governor fails to convene a general court-martial within six months from
the presentation of an application for trial under this article, the adjutant general
shall substitute for the dismissal order by the governor a form of discharge authorized
for administrative issue.
C. If a discharge is substituted for a dismissal, only the governor may reappoint
the officer to the commissioned grade and with a rank that, in the opinion of the
governor, the former officer would have attained had he not been dismissed. The
reappointment of such a former officer shall be without regard to the existence of a
vacancy and affects the promotion status of other officers only as the governor
directs. All time between the dismissal and the reappointment is considered as actual
service for all purposes.
D. If an officer is discharged from the national guard by administrative action or
is dropped from the rolls by order of the governor, he has no right to trial under this
section.
26-1005 Territorial applicability
A. This code applies in this state and to all persons otherwise subject to this
code while they are serving outside this state, and while they are going to and returning
from such service outside this state, in the same manner and to the same extent as if
they were serving inside this state.
B. Courts-martial may be convened and held in units of the national guard while
these units are serving outside this state with the same jurisdiction and powers as to
persons subject to this code as if the proceedings were held inside this state. Offenses
committed outside this state may be tried and punished either inside or outside this
state.
26-1006 State judge advocate; staff judge advocates
A. The adjutant general, with approval of the governor, shall appoint an officer of
the national guard as state judge advocate, who shall be a member in good standing of the
state bar of ARIZONA and shall have been a member of the state bar of ARIZONA and a
member of the national guard for at least five years immediately preceding the
appointment.
B. The adjutant general may appoint as many assistant state judge advocates as
deemed necessary who shall be officers of the national guard and members in good standing
of the state bar of ARIZONA.
C. The state judge advocate or his assistants shall make frequent inspections in
the field in supervision of the administration of military justice.
D. Convening authorities at all times shall communicate directly with their staff
judge advocates in matters relating to the administration of military justice. The staff
judge advocate of any command is entitled to communicate directly with the staff judge
advocate of a superior or subordinate command or with the state judge advocate.
E. No person who has acted as a member, military judge, trial counsel, assistant
trial counsel, defense counsel, assistant defense counsel or investigating officer, or
who has been a witness for either the prosecution or defense, in any case may later act
as staff judge advocate to any reviewing authority in the same case.
26-1007 Apprehension
A. Any person authorized by this chapter or by rules adopted pursuant to this
chapter to apprehend persons subject to this code or for trial may do so on reasonable
belief that an offense has been committed and that the person apprehended committed it.
B. Commissioned officers, warrant officers and noncommissioned officers have
authority to quell quarrels, frays and disorders among persons subject to this code and
to apprehend persons subject to this code who take part.
26-1008 Apprehension of deserters
Any officer having authority to apprehend offenders under the laws of this state,
the United States or a state, territory, commonwealth or possession or the district of
Columbia may summarily apprehend a deserter from the national guard and deliver him into
the custody of the national guard. If an offender is apprehended outside this state, his
return shall be in accordance with normal extradition procedures or reciprocal agreement.
26-1009 Authority to order arrest
A. An enlisted member may be ordered into arrest or confinement by any commissioned
officer by an order, oral or written, delivered in person or through other persons
subject to this chapter. A commanding officer may authorize warrant officers, or
noncommissioned officers, to order enlisted members of his command or subject to his
authority into arrest or confinement.
B. A commissioned officer or a warrant officer may be ordered into arrest or
confinement only by a commanding officer to whose authority he is subject by an order,
oral or written, delivered in person or by another commissioned officer. The authority
to order such persons into arrest or confinement may not be delegated.
C. No person may be ordered into arrest or confinement except for probable cause.
D. Nothing in this section limits the authority of persons authorized to apprehend
offenders to secure the custody of an alleged offender until proper authority is
notified.
26-1010 Restraint of persons charged with offenses
Any person subject to this chapter charged with an offense under this chapter shall
be ordered into arrest or confinement. A person charged only with an offense normally
tried by a summary court-martial shall not be placed in confinement. If any person
subject to this code is placed in arrest or confinement before trial, immediate steps
shall be taken to inform him of the specific wrong of which he is accused and to try him
or to dismiss the charges and release him.
26-1011 Receiving of prisoners at civilian correction facility; statement
A provost marshal, commander of a guard, master-at-arms, warden, keeper or officer
of a city or county jail or any other jail, penitentiary or prison shall not refuse to
receive or keep any prisoner committed to his charge by a commissioned officer of the
national guard, if the committing officer furnishes a statement, signed by him, of the
offense alleged against the prisoner. The statement shall be on a form prescribed by
rule.
26-1013 Punishment before trial; prohibition
A person, while being held for trial, shall not be subjected to punishment or
penalty other than arrest or confinement on the charges pending against him nor shall the
arrest or confinement imposed on him be any more rigorous than the circumstances required
to ensure his presence, but he may be subjected to minor punishment during that period
for infractions of discipline and may be required to perform such labor as may be
necessary for the policing and sanitation of his living quarters and mess facilities and
the immediately adjacent area.
26-1014 Delivery of offenders to civil authorities
A. Under such rules as the governor may adopt, a member of the national guard
accused of an offense against civil authority may be delivered, on request, to the civil
authority for trial.
B. When delivery is made to any civil authority of a person undergoing sentence of
a court-martial, the delivery, if followed by conviction in a civil tribunal, interrupts
the execution of the sentence of the court-martial, and the offender, after having
answered to the civil authorities for his offense, shall be returned, on request of
competent military authority, to military custody for the completion of the sentence.
26-1015 Commanding officer; nonjudicial punishment
A. Under rules the governor adopts and under such additional rules as prescribed by
the adjutant general, limitations may be placed on the powers granted by this chapter
with respect to the kind and amount of punishment authorized, the categories of
commanding officers and warrant officers exercising command authorized to exercise those
powers, the applicability of this chapter to an accused who demands trial by
court-martial and the kinds of courts-martial to which the case may be referred on such a
demand. Punishment may not be imposed on any member of the national guard under this
chapter if the member has, before the imposition of such punishment, demanded trial by
court-martial in lieu of such punishment. Similar rules may be prescribed with respect
to the suspension of authorized punishments. If authorized by rules of the adjutant
general, a commanding officer exercising general court-martial jurisdiction or an officer
of general flag rank in command may delegate his powers under this article to a principal
assistant.
B. Subject to subsection A, any commanding officer, in addition to or in lieu of
admonition or reprimand, may impose one or more of the following disciplinary punishments
for minor offenses without the intervention of a court-martial:
1. On officers of his command:
(a) Restriction to certain specified limits, with or without suspension from duty,
for not more than thirty consecutive days.
(b) If imposed by the governor, the adjutant general or a general officer in
command:
(i) Arrest in quarters for not more than thirty consecutive days.
(ii) Forfeiture or a fine in an amount of not more than fourteen drill periods.
(iii) Restriction to certain specified limits, with or without suspension from
duty, for not more than sixty consecutive days.
(iv) Detention of not more than one-half of one month's pay per month for three
months.
2. On other personnel of his command:
(a) Correctional custody for not more than seven consecutive days.
(b) Forfeiture or fine in an amount of not more than seven drill periods.
(c) Reduction to the next inferior pay grade, if the grade from which the person
demoted is within the promotion authority of the officer imposing the reduction or any
officer subordinate to the one who imposes the reduction.
(d) Extra duties, including fatigue or other duties, for not more than fourteen
consecutive days.
(e) Restriction to certain specified limits, with or without suspension from duty,
for not more than fourteen consecutive days.
(f) Detention of not more than fourteen days' pay.
(g) If imposed by an officer of the grade of major or above:
(i) Correctional custody for not more than thirty consecutive days.
(ii) Forfeiture or fine in an amount of not more than fourteen drill periods.
(iii) Reduction to the lowest or any intermediate pay grade, if the grade from
which the person is demoted is within the promotion authority of the officer imposing the
reduction or any officer subordinate to the one who imposes the reduction, but an
enlisted member in a pay grade above E-4 may not be reduced more than two pay grades.
(iv) Extra duties, including fatigue or other duties, for not more than forty-five
consecutive days.
(v) Restriction to certain specified limits, with or without suspension from duty,
for not more than sixty consecutive days.
(vi) Detention of not more than one-half of one month's pay per month for three
months.
C. Detention of pay shall be for a stated period of not more than one year, but if
the offender's term of service expires earlier, the detention shall terminate on that
expiration. No two or more of the punishments of arrest in quarters, correctional
custody, extra duties or restriction may be combined to run consecutively in the maximum
amount that may be imposed for each. If any of those punishments are combined to run
consecutively, there shall be an apportionment. In addition, forfeiture of pay shall not
be combined with detention of pay without an apportionment. For the purpose of this
subsection, "correctional custody" means the physical restraint of a person during duty
or nonduty hours and may include extra duties, fatigue duties or hard labor. If
practicable, correctional custody shall not be served in immediate association with
persons awaiting trial or held in confinement pursuant to trial by court-martial.
D. An officer in charge may impose on enlisted members assigned to the unit of
which he is in charge punishments authorized under subsection B, paragraph 2 as the
governor specifically prescribes by rule.
E. The officer who imposes a punishment authorized in subsection B or his successor
in command may suspend probationally, at any time, any part or amount of the unexecuted
punishment imposed and may suspend probationally a reduction in grade or a forfeiture
imposed under subsection B, whether or not the punishment is executed. In addition, he
may remit or mitigate, at any time, any part or amount of the unexecuted punishment
imposed and may set aside in whole or in part the punishment, whether executed or
unexecuted, and restore all rights, privileges and property affected. He may also
mitigate reduction in grade to forfeiture or detention of pay. If mitigating an arrest
in quarters to restriction, a correctional custody to extra duties or restriction, or
both, or extra duties to restriction, the mitigated punishment shall not be for a greater
period than the punishment mitigated. If mitigating forfeiture of pay to detention of
pay, the amount of the detention shall not be greater than the amount of the
forfeiture. If mitigating reduction in grade to forfeiture or detention of pay, the
amount of the forfeiture or detention shall not be greater than the amount that could
have been imposed initially under this article by the officer who imposed the punishment
mitigated.
F. A person who is punished under this article and who considers his punishment
unjust or disproportionate to the offense may appeal, through the proper channel, to the
next superior authority. The appeal shall be promptly forwarded and decided, but the
person punished may be required in the meantime to undergo the punishment adjudged. The
superior authority may exercise the same powers with respect to the punishment imposed as
may be exercised under subsection E by the officer who imposed the punishment. Before
acting on an appeal from a punishment of arrest in quarters for more than seven days,
correctional custody for more than seven days, forfeiture of more than seven days' pay,
reduction of one or more pay grades from the fourth or a higher grade, extra duties for
more than fourteen days, restriction for more than fourteen days or detention of more
than fourteen days' pay, the authority who is to act on the appeal shall refer the case
to a judge advocate for consideration and advice and may so refer the case on appeal from
any punishment imposed under subsection B.
G. The imposition and enforcement of disciplinary punishment under this section for
any act or omission is not a bar to trial by court-martial for a serious crime or offense
growing out of the same act or omission, and not properly punishable under this
section. The fact that a disciplinary punishment has been enforced may be shown by the
accused upon trial, and if so shown shall be considered in determining the measure of
punishment to be adjudged if there is a finding of guilty.
H. The adjutant general, by rule, may prescribe the form of records to be kept of
proceedings under this section and may also prescribe that certain categories of those
proceedings shall be in writing.
26-1016 Courts-martial; classifications
The three kinds of courts-martial in the national guard are:
1. General courts-martial, consisting of one of the following:
(a) A military judge and not less than five members.
(b) Only a military judge, if before the court is assembled the accused, knowing
the identity of the military judge and after consultation with defense counsel, requests
orally on the record or in writing a court composed only of a military judge and the
military judge approves.
2. A special courts-martial, consisting of one of the following:
(a) Not less than three members.
(b) A military judge and not less than three members.
(c) Only a military judge, if one has been detailed to the court, and the accused
under the same conditions as those prescribed in paragraph 1, subdivision (b) requests.
3. Summary courts-martial, consisting of one commissioned officer.
26-1017 Jurisdiction of courts-martial; in general
The national guard has court-martial jurisdiction over all persons subject to this
chapter. The exercise of jurisdiction over personnel of another branch shall be in
accordance with rules adopted by the governor.
26-1018 Jurisdiction of general courts-martial
Subject to section 26-1017, general courts-martial have jurisdiction to try persons
subject to this chapter for any offense made punishable by this chapter and, under such
limitations as the governor prescribes, may sentence convicted persons to any combination
of the following:
1. A fine of not more than two hundred dollars.
2. Forfeiture of pay and allowances.
3. A reprimand.
4. Dismissal or dishonorable discharge.
5. Reduction of a noncommissioned officer to the ranks.
26-1019 Jurisdiction of special courts-martial
Subject to section 26-1017, special courts-martial have jurisdiction to try persons
subject to this chapter, except commissioned officers, for any offense made punishable by
this chapter and have the same powers of punishment as a general court-martial, except
that a fine imposed by a special court-martial shall not be more than one hundred dollars
for a single offense.
26-1020 Jurisdiction of summary courts-martial
Subject to section 26-1017, summary courts-martial have jurisdiction to try persons
subject to this chapter, except officers and candidates, for any offense made punishable
by this chapter. A person with respect to whom summary courts-martial have jurisdiction
shall not be brought to trial before a summary court-martial if he objects. If objection
to trial by summary courts-martial is made by an accused, trial may be ordered by special
or general court-martial as may be appropriate. Under such limitations as the governor
prescribes, summary courts-martial may sentence an offender to a fine of not more than
twenty-five dollars for a single offense, to forfeiture of pay and allowances and to
reduction of a noncommissioned officer to the ranks.
26-1021 Jurisdiction of courts-martial not exclusive
A. The provisions of this chapter conferring jurisdiction on courts-martial do not
deprive any other courts of this state of concurrent jurisdiction with respect to
offenders or offenses that by statute may be tried by those courts.
B. Instead of imposing a fine, a court-martial may sentence an offender to
confinement for not more than one day for each dollar of fine authorized.
26-1022 Convening of general courts-martial
General courts-martial may be convened by the governor, the adjutant general or any
other commanding officer in the national guard if empowered by the governor.
26-1023 Convening of special courts-martial
A. Special courts-martial may be convened by any person who may convene a general
court-martial, any general officer in command or the commanding officer in charge of any
other command if empowered by the adjutant general.
B. If any convening officer is an accuser, the court shall be convened by superior
competent authority and may in any case be convened by such authority if considered
advisable by him.
26-1024 Convening of summary courts-martial
A. Summary courts-martial may be convened by any person who may convene a general
or special court-martial, the commanding officer of a brigade, regiment, detached
battalion or corresponding unit of the army national guard, the commanding officer of a
wing, group or separate squadron of the air national guard or the commanding officer or
officer in charge of any other command if empowered by the adjutant general.
B. If only one commissioned officer is present with a command or detachment he
shall be the summary court-martial of that command or detachment and shall hear and
determine all summary court-martial cases brought before him. Summary courts-martial may
be convened in any case by superior competent authority if considered desirable by him.
26-1025 Service on courts-martial
A. Any commissioned officer in the national guard is eligible to serve on all
courts-martial for the trial of any person who is brought before such courts for trial.
B. Any warrant officer in the national guard is eligible to serve on general and
special courts-martial for the trial of any person, other than a commissioned officer,
who is brought before such courts for trial.
C. Any enlisted member of the national guard who is not a member of the same unit
as the accused is eligible to serve on general and special courts-martial for the trial
of any enlisted member of the national guard who is brought before such courts for trial
but shall serve as a member of a court only if, before the conclusion of a session called
by the military judge under section 26-1039, subsection A, before trial or, in the
absence of such a session, before the court is assembled for the trial of the accused,
the accused personally has requested in writing that enlisted members serve on it. After
such a request, the accused shall not be tried by a general or special court-martial
which does not include enlisted members of at least one-third of the total membership of
the court, unless eligible enlisted members cannot be obtained on account of physical
conditions or military exigencies. If such members cannot be obtained, the court may be
assembled and the trial held without them, but the convening authority shall make a
detailed written statement and append it to the record stating why they could not be
obtained. In this subsection, "unit" means any regularly organized body of the national
guard not larger than a company or battery or a body corresponding to a company or
battery.
D. If it can be avoided, a member of the national guard shall not be tried by a
court-martial with any member who is junior to him in rank or grade. If convening a
court-martial, the convening authority shall choose members of the national guard who, in
his opinion, are best qualified for the duty by reason of age, education, training,
experience, length of service and judicial temperament. A member of the national guard
is not eligible to serve as a member of a general or special court-martial if he is the
accuser or a witness for the prosecution or has acted as an investigating officer or
counsel in the case.
E. Before a court-martial is assembled for the trial of a case, the convening
authority may excuse a member of the court from participating in the case. Under such
rules as the adjutant general prescribes, the convening authority may delegate his
authority under this subsection to his staff judge advocate or legal officer or to any
other principal assistant.
26-1026 Military judge of a general or special court-martial
A. A military judge shall be detailed to each general court-martial. Subject to
rules of the adjutant general, a military judge may be detailed to any special
court-martial. The adjutant general shall prescribe rules providing for the manner in
which military judges are detailed for such courts-martial and for the persons who are
authorized to detail military judges for such courts-martial. The military judge shall
preside over each open session of the court-martial to which he has been detailed.
B. A military judge shall be a commissioned officer who is a member in good
standing before the highest court of any state or territory of the United States and who
is certified as a military judge by the state judge advocate.
C. The military judge of a general court-martial shall be designated by the state
judge advocate, or his designee, for detail in accordance with rules prescribed under
subsection A. Unless the court-martial was convened by the governor, neither the
convening authority nor any member of his staff shall prepare or review any report
concerning the effectiveness, fitness or efficiency of the military judge so detailed,
which relates to his performance of duty as a military judge. A commissioned officer who
is certified to be qualified for duty as a military judge of a general court-martial may
perform duties of a judicial or nonjudicial nature other than those relating to his
primary duty as a military judge of a general court-martial if such duties are assigned
to him by or with the approval of the state judge advocate or his designee.
D. No person is eligible to act as military judge in a case if he is the accuser or
a witness or has acted as investigating officer or a counsel in the same case.
E. The military judge of a court-martial may not consult with the members of the
court except in the presence of the accused, trial counsel and defense counsel nor may he
vote with the members of the court.
26-1027 Detail of trial counsel and defense counsel
A. Trial counsel and defense counsel shall be detailed for each general and special
court-martial. Assistant trial counsel and assistant and associate defense counsel may
be detailed for each general and special court-martial. The adjutant general shall
prescribe rules providing for the manner in which counsel are detailed for such
courts-martial and for the persons who are authorized to detail counsel for such
courts-martial. No person who has acted as investigating officer, military judge or
court member in any case may act later as trial counsel, as assistant trial counsel or,
unless expressly requested by the accused, as defense counsel or assistant or associate
defense counsel in the same case. No person who has acted for the prosecution may act
later in the same case for the defense nor may any person who has acted for the defense
act later in the same case for the prosecution.
B. Trial counsel or defense counsel detailed for a general court-martial shall be a
judge advocate and certified as competent to perform such duties by the state judge
advocate.
C. In the case of a special court-martial:
1. The accused shall be afforded the opportunity to be represented at the trial by
counsel having the qualifications prescribed under subsection B unless counsel having
such qualifications cannot be obtained because of physical conditions or military
exigencies. If counsel having such qualifications cannot be obtained, the court may be
convened and the trial held but the convening authority shall make a detailed written
statement and append it to the record stating why counsel with such qualifications could
not be obtained.
2. If the trial counsel is qualified to act as counsel before a general
court-martial, the defense counsel detailed by the convening authority shall be a person
similarly qualified.
3. If the trial counsel is a judge advocate or a member of the bar of a federal
court or the highest court of a state, the defense counsel detailed by the convening
authority shall be a person qualified pursuant to paragraph 1 or 2.
26-1028 Detail or employment of reporters and interpreters
Under such rules as the adjutant general prescribes, the convening authority of a
court-martial, military commission or court of inquiry shall detail or employ qualified
court reporters who shall record the proceedings of and testimony taken before that court
or commission. Under similar rules the convening authority of a court-martial or court
of inquiry may detail or employ interpreters to interpret for the court.
26-1029 Absent and additional members
A. A member of a general or special court-martial shall not be absent or excused
after the court has been assembled for the trial of the accused unless as a result of a
challenge by the military judge for physical disability or other good cause or by order
of the convening authority for good cause.
B. If a general court-martial, other than a general court-martial composed of a
military judge only, is reduced below five members, the trial shall not proceed unless
the convening authority details new members sufficient in number to provide not fewer
than five members. The trial may proceed with the new members present after the recorded
evidence previously introduced before the members of the court has been read to the court
in the presence of the military judge, the accused and counsel for both sides.
C. If a special court-martial, other than a special court-martial composed of a
military judge only, is reduced below three members, the trial shall not proceed unless
the convening authority details new members sufficient in number to provide not fewer
than three members. The trial shall proceed with the new members present as if no
evidence had previously been introduced at the trial, unless a verbatim record of the
evidence previously introduced before the members of the court or a stipulation is read
to the court in the presence of the military judge, if any, the accused and counsel for
both sides.
D. If the military judge of a court-martial composed of a military judge only is
unable to proceed with the trial because of physical disability, as a result of a
challenge or for other cause, the trial shall proceed, subject to any applicable
conditions of section 26-1016, paragraph 1, subdivision (b) and paragraph 2, subdivision
(c) after the detail of a new military judge as if no evidence had previously been
introduced, unless a verbatim record of the evidence previously introduced or a
stipulation is read in court in the presence of the new military judge, the accused and
counsel for both sides.
26-1030 Charges and specifications
A. Charges and specifications shall be signed by a person subject to this chapter
under oath before a commissioned officer of the national guard authorized to administer
oaths and shall state that the signer has personal knowledge of, or has investigated, the
matters set forth and that they are true in fact to the best of his knowledge and belief.
B. After the preferring of charges, the proper authority shall take immediate steps
to determine what disposition should be made in the interest of justice and discipline
and the accused person shall be informed of the charges against him as soon as
practicable.
26-1031 Compulsory self-incrimination; prohibition
A. A person subject to this chapter shall not compel any person to incriminate
himself or to answer any question if the answer would tend to incriminate him.
B. A person subject to this code shall not interrogate, or request any statement
from an accused or a person suspected of an offense, without first informing him of the
nature of the accusation and advising him that he does not have to make any statement
regarding the offense of which he is accused or suspected and that any statement made by
him may be used as evidence against him in a trial by court-martial.
C. A person subject to this chapter shall not compel any person to make a statement
or produce evidence before any military tribunal if the statement or evidence is not
material to the issue and may tend to degrade him.
D. A statement obtained from any person in violation of this section, or through
the use of coercion, unlawful influence or unlawful inducement, shall not be received in
evidence against him in a trial by court-martial.
26-1033 Forwarding of charges
If a person is held for trial by general court-martial the commanding officer,
within eight days after the accused is ordered into arrest or confinement, if
practicable, shall forward the charges, together with the investigation and allied
papers, to the officer exercising general court-martial jurisdiction. If that is not
practicable, he shall report in writing to that officer the reasons for delay.
26-1034 Advice of staff judge advocate; reference for trial
A. Before directing the trial of any charge by general court-martial, the convening
authority shall refer it to the staff judge advocate for consideration and advice. The
convening authority shall not refer a specification under a charge to a general
court-martial for trial unless he has been advised of all of the following in writing by
the staff judge advocate:
1. The specification alleges an offense in this chapter.
2. The specification is warranted by the evidence indicated in the investigation
and allied papers provided under section 26-1033.
3. A court-martial would have jurisdiction over the accused and the offense.
B. The advice of the staff judge advocate under subsection A of this section with
respect to a specification under a charge shall include a written and signed statement by
the staff judge advocate expressing his conclusions with respect to each matter set forth
in subsection A of this section and recommending action that the convening authority take
regarding the specification. If the specification is referred for trial, the
recommendation of the staff judge advocate shall accompany the specification.
C. If the charges or specifications are not formally correct or do not conform to
the substance of the evidence contained in the report of the investigating officer,
formal corrections and such changes in the charges and specifications as are needed to
make them conform to the evidence may be made.
26-1035 Service of charges
The trial counsel to whom court-martial charges are referred for trial shall serve
on the accused a copy of the charges on which trial is to be had. In time of peace, a
person, against his objection, shall not be brought to trial or be required to
participate by himself or counsel in a session called by the military judge under section
26-1039, subsection A, in a general court-martial case within a period of five days after
the service of charges on him or in a special court-martial within a period of three days
after the service of the charges on him.
26-1036 Governor's rule making authority
A. Pretrial, trial and post-trial procedures, including modes of proof, for cases
arising under this chapter triable in courts-martial, military commissions and other
military tribunals, and procedures for courts of inquiry, may be prescribed by the
governor by rules which, so far as practicable, apply the principles of law and the rules
of evidence generally recognized in the trial of criminal cases in this state but which
may not be contrary to or inconsistent with this chapter.
B. All rules adopted under this chapter shall be as uniform as practicable and
shall be in force and effect on approval by the governor.
26-1037 Unlawfully influencing action of court
A. An authority convening a general, special or summary court-martial, or any other
commanding officer, shall not censure, reprimand or admonish the court or any member,
military judge or counsel, with respect to the findings or sentence adjudged by the
court, or with respect to any other exercises of its or his functions in the conduct of
the proceedings. A person subject to this chapter shall not attempt to coerce or, by any
unauthorized means, influence the action of a court-martial or any other military
tribunal or any member of a tribunal in reaching the findings or sentence in any case, or
the action of any convening, approving or reviewing authority with respect to judicial
acts. This subsection does not apply to general instructional or informational courses
in military justice if such courses are designed solely for the purpose of instructing
members of a command in the substantive and procedural aspects of courts-martial or to
statements and instructions given in open court by the military judge, president of a
special court-martial or counsel.
B. In the preparation of an effectiveness, fitness or efficiency report or any
other report or document used in whole or in part for the purpose of determining whether
a member of the national guard is qualified to be advanced in grade, in determining the
assignment or transfer of a member of the national guard or in determining whether a
member of the national guard should be retained, a person subject to this chapter, in
preparing any such report, shall not consider or evaluate the performance of duty of any
such member of a court-martial or give a less favorable rating or evaluation of any
member of the national guard because of the zeal with which such member, as counsel,
represented any accused before a court-martial.
26-1038 Duties of trial counsel and defense counsel
A. The trial counsel of a general or special court-martial shall prosecute in the
name of the state and shall prepare, under the direction of the court, the record of the
proceedings.
B. The accused has the right to be represented in his defense before a general or
special court-martial or at an investigation as provided in this section.
C. The accused may be represented by civilian counsel if provided by him.
D. The accused may be represented by military counsel detailed under section
26-1027 or by military counsel of his own selection if that counsel is reasonably
available.
E. If the accused is represented by civilian counsel, military counsel shall act as
associate counsel unless excused at the request of the accused.
F. Except as provided by subsection G of this section, if the accused is
represented by military counsel of his own selection, any military counsel detailed shall
be excused.
G. The accused is not entitled to be represented by more than one military
counsel. However, the person authorized under rules adopted under section 26-1027 to
detail counsel in his sole discretion:
1. May detail additional military counsel as assistant defense counsel.
2. If the accused is represented by military counsel of his own selection, may
approve a request from the accused that military counsel detailed act as associate
defense counsel.
H. The adjutant general, by rule, shall define "reasonably available" for the
purpose of subsection D of this section and establish procedures for determining whether
the military counsel selected by an accused is reasonably available. These rules shall
not prescribe any limitation based on the reasonable availability of counsel solely on
the grounds that the counsel selected by the accused is from a component of the national
guard other than the component of which the accused is a member. To the maximum extent
practicable, these rules shall be consistent with the regulations governing the military
forces of the United States.
I. In any court-martial proceeding resulting in a conviction, the defense counsel
may:
1. Forward for attachment to the record of proceedings a brief of those matters he
determines should be considered in behalf of the accused on review, including any
objection to the contents of the record which he considers appropriate.
2. Assist the accused in the submission of any matter under section 26-1060.
3. Take other action authorized by this chapter.
J. Under the direction of the trial counsel or if he is qualified to be a trial
counsel, an assistant trial counsel of a general court-martial may perform any duty
imposed by law, rule or the custom of the service on the trial counsel of the court. An
assistant trial counsel of a special court-martial may perform any duty of the trial
counsel.
K. Under the direction of the defense counsel or if he is qualified to be the
defense counsel, an assistant defense counsel of a general or special court-martial may
perform any duty imposed by law, rule or the custom of the service on counsel for the
accused.
26-1039 Sessions
A. At any time after the service of charges which have been referred for trial to a
court-martial composed of a military judge and members, the military judge, subject to
section 26-1035, may call the court into session without the presence of the members but
conducted in the presence of the accused, the defense counsel and the trial counsel and
as part of the record, for the purpose of:
1. Hearing and determining motions raising defenses or objections which are capable
of determination without trial of the issues raised by a plea of not guilty.
2. Hearing and ruling on any matter which may be ruled on by the military judge
under this chapter, whether or not the matter is appropriate for later consideration or
decision by the members of the court.
3. If permitted by rules of the adjutant general, holding the arraignment and
receiving the pleas of the accused.
4. Performing any other procedural function which may be performed by the military
judge and which does not require the presence of the members of the court.
B. When the members of a court-martial deliberate or vote, only the members may be
present. All other proceedings, including any other consultation of the members of the
court with counsel or the military judge, shall be made a part of the record and shall be
in the presence of the accused, the defense counsel, the trial counsel and, in cases in
which a military judge has been detailed to the court, the military judge.
26-1040 Continuances
The military judge or a court-martial without a judge, for reasonable cause, may
grant a continuance to any party for such time, and as often, as is just.
26-1041 Challenges
A. The military judge and members of a general or special court-martial may be
challenged by the accused or the trial counsel for cause stated to the court. The
military judge, or if none, the court, shall determine the relevance and validity of
challenges for cause and may not receive a challenge to more than one person at a
time. Challenges by the trial counsel shall ordinarily be presented and decided before
those by the accused are offered.
B. Each accused and the trial counsel is entitled to one peremptory challenge, but
the military judge may not be challenged except for cause.
26-1042 Oaths
A. Before performing their respective duties, military judges, members of general
and special courts-martial, trial counsel, assistant trial counsel, defense counsel,
assistant or associate defense counsel, reporters and interpreters shall take an oath to
perform their duties faithfully. The form of the oath, the time and place of taking the
oath, the manner of recording the oath and whether the oath shall be taken for all cases
in which these duties are to be performed or for a particular case shall be as prescribed
in rules of the adjutant general. The rules may provide that an oath to perform
faithfully duties as a military judge, trial counsel, assistant trial counsel, defense
counsel or assistant or associate defense counsel may be taken at any time by any judge
advocate or other person certified to be qualified or competent for the duty, and if such
an oath is taken it need not again be taken at the time the judge advocate, or other
person, is detailed to that duty.
B. Each witness before a court-martial shall be examined on oath.
26-1043 Statute of limitations
A. Except as otherwise provided in this article, a person charged with an offense
is not liable to be tried by court-martial or punished under section 26-1015 if the
offense was committed more than two years before the receipt of sworn charges and
specifications by an officer exercising summary court-martial jurisdiction over the
command or before the imposition of punishment under section 26-1015.
B. Periods in which the accused was absent from territory in which the state has
the authority to apprehend him, was in the custody of civil authorities or was in the
hands of the enemy shall be excluded in computing the period of limitation prescribed in
this section.
26-1044 Former jeopardy
A. No person, without his consent, may be tried a second time for the same offense.
B. No proceeding in which an accused has been found guilty by court-martial on any
charge or specification is a trial in the sense of this section until the finding of
guilt becomes final after review of the case has been fully completed.
C. A proceeding in which, after introduction of evidence but before a finding, is
dismissed or terminated by the convening authority or on motion of the prosecution for
failure of available evidence or witnesses without any fault of the accused is a trial
for purposes of this article.
26-1045 Pleas of the accused
A. If an accused after arraignment makes an irregular pleading, or after a plea of
guilty sets up matter inconsistent with the plea, or if it appears that he has entered
the plea of guilty improvidently or through lack of understanding of its meaning and
effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the
record, and the court shall proceed as though he had pleaded not guilty.
B. With respect to any charge or specification to which a plea of guilty has been
made by the accused and accepted by the military judge or by a court-martial without a
military judge, a finding of guilty of the charge or specification, if permitted by rules
of the adjutant general, may be entered immediately without vote. This finding
constitutes the finding of the court unless the plea of guilty is withdrawn before
announcement of the sentence, in which event the proceedings shall continue as though the
accused had pleaded not guilty.
26-1046 Opportunity to obtain witnesses and other evidence
The trial counsel, the defense counsel and the court-martial shall have equal
opportunity to obtain witnesses and other evidence in accordance with rules the governor
adopts.
26-1047 Refusal to appear or testify
Any person who has been duly subpoenaed to appear as a witness before a
court-martial, military commission, court of inquiry or other military court or board, or
before any military or civil officer designated to take a deposition to be read in
evidence before such a court, commission or board, or who has been duly paid or tendered
the fees and mileage of a witness at the rates allowed to witnesses attending the courts
of the state and who willfully neglects or refuses to appear, or refuses to qualify as a
witness or to testify or to produce any evidence which that person may have been legally
subpoenaed to produce, is in contempt of court and may be punished in the same manner as
if the contempt were committed before civil courts of this state.
26-1048 Contempt
A court-martial may punish any person for contempt who uses any menacing word, sign
or gesture in its presence or who disturbs its proceedings by any riot or disorder. The
punishment shall not exceed confinement for thirty days or a fine of one hundred dollars,
or both.
26-1049 Depositions
A. At any time after charges have been signed as provided in section 26-1030, any
party may take oral or written depositions unless the military judge or court-martial
without a military judge hearing the case or, if the case is not being heard, an
authority competent to convene a court-martial for the trial of those charges forbids it
for good cause. If a deposition is to be taken before charges are referred for trial,
such an authority may designate commissioned officers to represent the prosecution and
the defense and may authorize those officers to take the deposition of any witness.
B. The party at whose instance a deposition is to be taken shall give to every
other party reasonable written notice of the time and place for taking the deposition.
C. Depositions may be taken before and authenticated by any military or civil
officer authorized by the laws of the state or by the laws of the place where the
deposition is taken to administer oaths.
D. A duly authenticated deposition taken on reasonable notice to the other parties,
so far as otherwise admissible under the rules of evidence, may be read in evidence or,
in the case of audiotape, videotape or similar material, may be played in evidence before
any military court in any case, or in any proceeding before a court of inquiry or
military board, if one or more of the following applies:
1. The witness resides or is not within the state in which the court or board is
ordered to sit, or is more than one hundred miles from the place of trial or hearing.
2. The witness by reason of death, age, sickness, bodily infirmity, imprisonment,
military necessity, nonamenability to process or other reasonable cause is unable or
refuses to appear and testify in person at the place of trial or hearing.
3. The present whereabouts of the witness is unknown.
26-1050 Admissibility of records of courts of inquiry
A. In any case not extending to the dismissal of a commissioned officer, the sworn
testimony, contained in the duly authenticated record of proceedings of a court of
inquiry, of a person whose oral testimony cannot be obtained, if otherwise admissible
under the rules of evidence, may be read in evidence by any party before a court-martial
or military commission if the accused was a party before the court of inquiry and if the
same issue was involved or if the accused consents to the introduction of such evidence.
B. This testimony may be read in evidence only by the defense in cases extending to
the dismissal of a commissioned officer.
C. This testimony may also be read in evidence before a court of inquiry or a
military board.
26-1051 Voting and rulings
A. Voting by members of a general or special court-martial on the findings and on
the sentence, and by members of a court-martial without a military judge on questions of
challenge, shall be by secret written ballot. The junior member of the court shall count
the votes. The count shall be checked by the president, who shall immediately announce
the result of the ballot to the members of the court.
B. The military judge and, except for questions of challenge, the president of a
court-martial without a military judge shall rule on all questions of law and all
interlocutory questions arising during the proceedings. Any such ruling made by the
military judge on any question of law or any interlocutory question other than the
factual issue of mental responsibility of the accused, or by the president of a
court-martial without a military judge on any question of law other than a motion for a
finding of not guilty, is final and constitutes the ruling of the court. However, the
military judge or the president of a court-martial without a military judge may change
his ruling at any time during the trial. Unless the ruling is final, if any member
objects, the court shall be cleared and closed and the question decided by a voice vote
as provided in section 26-1052, beginning with the junior in rank.
C. Before a vote is taken on the findings, the military judge or the president of a
court-martial without a military judge, in the presence of the accused and counsel, shall
instruct the members of the court as to the elements of the offense and charge them:
1. That the accused must be presumed to be innocent until his guilt is established
by legal and competent evidence beyond reasonable doubt.
2. That, in the case being considered, if there is a reasonable doubt as to the
guilt of the accused, the doubt must be resolved in favor of the accused and he must be
acquitted.
3. That, if there is a reasonable doubt as to the degree of guilt, the finding must
be in a lower degree as to which there is no reasonable doubt.
4. That the burden of proof to establish the guilt of the accused beyond reasonable
doubt is on this state.
D. Subsections A, B and C of this section do not apply to a court-martial composed
of a military judge only. The military judge of such a court-martial shall determine all
questions of law and fact arising during the proceedings and, if the accused is
convicted, adjudge an appropriate sentence. The military judge of such a court-martial
shall make a general finding and in addition on request shall find the facts
specially. If an opinion or memorandum of decision if filed, it is sufficient if the
findings of fact appear in the opinion or memorandum of decision.
26-1052 Number of votes required
A. A person shall not be convicted of any offense except as provided in section
26-1045 or by the concurrence of two-thirds of the members present at the time the vote
is taken.
B. All sentences shall be determined by the concurrence of two-thirds of the
members present at the time the vote is taken.
C. All other questions to be decided by the members of a general or special
court-martial shall be determined by a majority vote, but a determination to reconsider a
finding of guilty or to reconsider a sentence, with a view toward decreasing it, may be
made by any lesser vote which indicates that the reconsideration is not opposed by the
number of votes required for that finding or sentence. A tie vote on a challenge
disqualifies the member challenged. A tie vote on a motion for a finding of not guilty
or on a motion relating to the question of the accused's sanity is a determination
against the accused. A tie vote on any other question is a determination in favor of the
accused.
26-1053 Announcement of action
A court-martial shall announce its findings and sentence to the parties as soon as
they are determined.
26-1054 Record of trial
A. Each general court-martial shall keep a separate record of the proceedings in
each case brought before it, and the record shall be authenticated by the signature of
the military judge. If the record cannot be authenticated by the military judge by
reason of his death, disability or absence, it shall be authenticated by the signature of
the trial counsel or by that of a member if the trial counsel is unable to authenticate
it by reason of his death, disability or absence. In a court-martial consisting of only
a military judge the record shall be authenticated by the court reporter under the same
conditions which would impose such a duty on a member under this subsection.
B. Each special and summary court-martial shall keep a separate record of the
proceedings in each case, and the record shall be authenticated in the manner required by
rule the governor adopts.
C. A copy of the record of the proceedings of each general and special
court-martial shall be given to the accused as soon as it is authenticated.
26-1055 Sentences; reduction in enlisted grade on approval
A. Unless otherwise provided in rules prescribed by the adjutant general, a
court-martial sentence of an enlisted member in a pay grade above E-1, as approved by the
convening authority, that includes a dishonorable or bad conduct discharge, confinement
or hard labor without confinement reduces that member to pay grade E-1, effective on the
date of the approval.
B. If the sentence of a member who is reduced in pay grade under subsection A is
set aside or disapproved, or as finally approved, does not include any punishment named
in subsection A, the rights and privileges of which he was deprived because of the
reduction shall be restored to him and he is entitled to the pay and allowances to which
he would have been entitled for the period the reduction was in effect had he not been so
reduced.
C. A sentence of dismissal or dishonorable discharge shall not be executed until it
is approved by the governor.
26-1056 Maximum limits
The punishment which a court-martial may direct for an offense shall not exceed the
limits the governor prescribes for the offense.
26-1057 Effective date of sentences
A. A forfeiture shall not extend to any pay or allowances accrued before the date
on which the sentence is approved by a person acting under section 26-1060.
B. Any period of confinement included in a sentence of a court-martial begins to
run from the date ordered by the court-martial pursuant to 26-208, but periods during
which the sentence to confinement is suspended or deferred shall be excluded in computing
the service of the term of confinement.
C. All other sentences of courts-martial are effective on the date they are ordered
executed.
D. On application by an accused who is under sentence to confinement that has not
been ordered executed, the convening authority, or if the accused is no longer under his
jurisdiction, the adjutant general, may in his sole discretion defer service of the
sentence to confinement. The deferment terminates when the sentence is ordered
executed. The deferment may be rescinded at any time by the officer who granted it, or
if the accused is no longer under his jurisdiction, by the adjutant general.
26-1058 Execution of confinement
A. A sentence of confinement adjudged by a military court, whether or not the
sentence includes discharge or dismissal, and whether or not the discharge or dismissal
has been executed, may be carried into execution by confinement in any place of
confinement under the control of any of the forces of the national guard or in any jail,
penitentiary or prison. Persons confined in a jail, penitentiary or prison are subject
to the same discipline and treatment as persons confined or committed to the jail,
penitentiary or prison by the courts of this state or of any political subdivision.
B. The omission of the words "hard labor" from any sentence or punishment of a
court-martial adjudging confinement does not deprive the authority executing that
sentence or punishment of the power to require hard labor as a part of the punishment.
C. The keepers, officers and wardens of city or county jails and of other jails,
penitentiaries or prisons designated by the governor shall receive persons ordered into
confinement before trial and persons committed to confinement by a military court and
shall confine them according to law. A keeper, officer or warden shall not require
payment of any fee or charge for receiving or confining a person. Confinement orders
shall be signed by trial counsel.
26-1059 Error of law; lesser included offense
A. A finding or sentence of a court-martial shall not be held incorrect on the
ground of an error of law unless the error materially prejudices the substantial rights
of the accused.
B. Any reviewing authority with the power to approve or affirm a finding of guilty
may approve or affirm, instead, any part of the finding that includes a lesser included
offense.
26-1060 Action by the convening authority
A. After a trial by court-martial, the record shall be forwarded to the convening
authority, as reviewing authority, and action on the record may be taken by the person
who convened the court, a commissioned officer commanding for the time being, a successor
in command or the governor.
B. The authority under this section to modify the findings and sentence of a
court-martial is a matter of command prerogative involving the sole discretion of the
convening authority. Under rules of the adjutant general, a commissioned officer
commanding for the time being, a successor in command or any person exercising general
court-martial jurisdiction may act under this section in place of the convening
authority.
C. Action on the findings of a court-martial by the convening authority or other
person acting on the sentence is not required, but such person, in his sole discretion,
may dismiss any charge or specification by setting aside a finding of guilty or change a
finding of guilty to a charge or specification to a finding of guilty to an offense that
is a lesser included offense of the offense stated in the charge or specification.
D. Before acting under this section on any general court-martial case or any
special court-martial case that includes a bad conduct discharge, the convening authority
or other person taking action under this section shall obtain and consider the written
recommendation of the staff judge advocate. The convening authority or other person
taking action under this section shall refer the record of trial to his staff judge
advocate, and the staff judge advocate shall use the record in the preparation of his
recommendation. The recommendation of the staff judge advocate or legal officer shall
include matters that the governor prescribes by rule and shall be served on the accused,
who shall have ten days from the date of receipt in which to submit any matter in
response. The convening authority or other person taking action under this section, for
good cause, may extend that period for up to an additional twenty days. Failure to
object in the response to the recommendation or to any matter attached to the
recommendation waives the right to object.
E. The convening authority or other person taking action under this section, in his
sole discretion, may order a proceeding in revision or a rehearing.
F. A proceeding in revision may be ordered if there is an apparent error or
omission in the record or if the record shows improper or inconsistent action by a
court-martial with respect to the findings or sentence that can be rectified without
material prejudice to the substantial rights of the accused. A proceeding in revision
shall not:
1. Reconsider a finding of not guilty of any specification or a ruling which
amounts to a finding of not guilty.
2. Reconsider a finding of not guilty of any charge, unless there has been a
finding of guilty under a specification laid under that charge, which sufficiently
alleges a violation of some article of this chapter.
3. Increase the severity of some article of the sentence unless the sentence
prescribed for the offense is mandatory.
G. A rehearing may be ordered by the convening authority or other person taking
action under this section if he disapproves the findings and sentence and states the
reasons for disapproval of the findings. If such person disapproves the findings and
sentence and does not order a rehearing, he shall dismiss the charges. A rehearing as to
the findings may not be ordered if there is a lack of sufficient evidence in the record
to support the findings. A rehearing as to the sentence may be ordered if the convening
authority or other person taking action under this subsection disapproves the sentence.
26-1061 Withdrawal of appeal
The accused may withdraw an appeal at any time.
26-1062 Appeal by the state
A. In a trial by court-martial in which a military judge presides and in which a
punitive discharge may be adjudged, the state may appeal an order or ruling of the
military judge which terminates the proceedings with respect to a charge or specification
or which excludes evidence that is substantial proof of a fact material in the
proceeding. The state shall not appeal an order or ruling that is, or that amounts to, a
finding of not guilty with respect to the charge or specification.
B. An appeal of an order or ruling shall not be taken unless the trial counsel
provides the military judge with written notice of appeal from the order or ruling within
seventy-two hours after the order or ruling. The notice shall include a certification by
the trial counsel that the appeal is not taken for the purpose of delay and, if the order
or ruling appealed is one which excludes evidence, that the evidence excluded is
substantial proof of a fact material in the proceeding.
C. An appeal under this section shall be diligently prosecuted by trial counsel.
D. An appeal under this section shall be forwarded by a means prescribed under
rules of the governor directly to the ARIZONA court of military appeals and, if
practicable, has priority over all other proceedings before that court. In ruling on an
appeal under this section, the ARIZONA court of military appeals may act only with
respect to matters of law.
E. Any period of delay resulting from an appeal under this section shall be
excluded in deciding any issue regarding denial of a speedy trial unless an appropriate
authority determines that the appeal was filed solely for the purpose of delay with the
knowledge that it was totally frivolous and without merit.
26-1063 Rehearings
Each rehearing under this chapter shall take place before a court-martial composed
of members who are not members of the court-martial which first heard the case. On a
rehearing the accused may not be tried for any offense of which he was found not guilty
by the first court-martial, and a sentence in excess of or more severe than the original
sentence shall not be imposed, unless the sentence is based on a finding of guilty of an
offense not considered on the merits in the original proceedings, or unless the sentence
prescribed for the offense is mandatory. If the sentence approved after the first
court-martial was in accordance with a pretrial agreement and the accused at the
rehearing changes his plea with respect to the charges or specifications on which the
pretrial agreement was based, or otherwise does not comply with the pretrial agreement,
the sentence as to those charges or specifications may include any punishment not in
excess of that lawfully adjudged at the first court-martial.
26-1064 Review by judge advocate
A. Each case in which there has been a finding of guilty that is not reviewed under
section 26-1067 shall be reviewed by a judge advocate under rules of the adjutant
general. A judge advocate shall not review a case under this subsection if he has acted
in the same case as an accuser, investigating officer, member of the court, military
judge or counsel or has otherwise acted on behalf of the prosecution or defense. The
judge advocate's review shall be in writing and shall contain the following:
1. Conclusions as to whether the court had jurisdiction over the accused and the
offense, whether the charge and specification stated an offense and whether the sentence
was within the limits prescribed as a matter of law.
2. A response to each allegation of error made in writing by the accused.
3. If the case is sent for action under subsection B of this section, a
recommendation as to the appropriate action to be taken and an opinion as to whether
corrective action is required as a matter of law.
B. The record of trial and related documents in each case reviewed under subsection
A of this section shall be sent for action to the person exercising general court-martial
jurisdiction over the accused at the time the court was convened or to that person's
successor in command if the judge advocate who reviews the case recommends corrective
action, if the sentence approved includes a dismissal, a bad conduct or dishonorable
discharge or confinement for more than four months or if such action is otherwise
required by rules of the adjutant general.
C. The person to whom the record of trial and related documents are sent under
subsection B of this section may:
1. Disapprove or approve the findings or sentence, in whole or in part.
2. Remit, commute or suspend the sentence in whole or in part.
3. Except if the evidence was insufficient at the trial to support the findings,
order a rehearing on the findings or on the sentence, or both.
4. Dismiss the charges.
D. If a rehearing is ordered but the convening authority finds a rehearing
impracticable, he shall dismiss the charges.
26-1065 Disposition of records
Except as otherwise required by this chapter, all other records of trial and related
documents shall be transmitted and disposed of as the adjutant general prescribes by
rule.
26-1067 Court of military appeals; members; terms; compensation; duties; review; procedures
A. The ARIZONA court of military appeals is established and is located for
administrative purposes only in the department of emergency and military affairs. The
court shall consist of five judges appointed by the governor on the recommendation of the
adjutant general with the advice of the state judge advocate for a term of six
years. Initial appointments shall be staggered. The term of office for all successor
judges is six years, but any judge appointed to fill a vacancy occurring before the
expiration of the term for which his predecessor was appointed shall be appointed only
for the unexpired term of his predecessor. Not more than three judges of the court may
be appointed from the same political party. Judges may succeed themselves in office. A
person is eligible for appointment to this court who, in addition to the requirements of
article VI, section 22, Constitution of ARIZONA, has at least five years' experience as a
judge advocate in the national guard or armed forces of the United States.
B. The governor shall designate one of the judges to act as chief judge. The chief
judge has precedence and shall preside at any session which he attends. The other judges
have precedence and shall preside according to the seniority of their
appointments. Judges whose commissions bear the same date have precedence according to
seniority in age.
C. The court shall sit in panels of no less than three judges to be selected by the
presiding judge.
D. Judges of the ARIZONA court of military appeals may be removed by the governor,
on notice and hearing, for neglect of duty or malfeasance in office or for mental or
physical disability but for no other cause.
E. The judges of the ARIZONA court of military appeals, while actually sitting in
review of a matter placed under their jurisdiction by this chapter, and while traveling
to and from such session, are eligible to receive compensation equal to that compensation
prescribed for the judges of the ARIZONA court of appeals, as provided by law, together
with the actual cost of meals, lodging and travel expense or the amount set by law if
private transportation is utilized. Payment shall be made from monies appropriated to
the national guard.
F. The ARIZONA court of military appeals has exclusive appellate and special action
jurisdiction, in appeals filed by this state pursuant to section 26-1062, or on petition
of an accused, to hear and review the record in all general and special court-martial
cases and all summary court-martial cases in which a sentence of confinement has been
adjudged.
G. The accused has thirty calendar days from the time of receipt of actual notice
of the final action on his case by the convening authority under section 26-1060 to
petition the ARIZONA court of military appeals for review. The court shall act on a
petition within sixty calendar days after receipt. If the court fails or refuses to
grant a petition for review, the final action of the convening authority is deemed
approved. Notwithstanding any other provision of this chapter, if the court grants a
hearing of an appeal, the court may grant a stay or defer service of the sentence of
confinement or any other punishment until the court's final decision on the case.
H. The ARIZONA court of military appeals may act only with respect to the findings
and sentence as finally approved and ordered executed by the convening authority.
I. If the ARIZONA court of military appeals sets aside the findings and sentence,
it may, except if the setting aside is based on lack of sufficient evidence in the record
to support the findings, order a rehearing. If it sets aside the findings and sentence
and does not order a rehearing, it shall order that the charges be dismissed. After the
ARIZONA court of military appeals has acted on the case, the record shall be returned to
the state judge advocate who shall notify the convening authority of the court's
decision. If further action is required the state judge advocate shall instruct the
convening authority to take action in accordance with that decision. If the court has
ordered a rehearing, but the convening authority finds a rehearing impracticable, the
state judge advocate may dismiss the charges.
J. Decisions of the ARIZONA court of military appeals are subject to review by the
ARIZONA supreme court by a petition for review in accordance with the ARIZONA rules of
criminal procedure and the rules of the supreme court of ARIZONA.
K. With monies appropriated to the national guard, the adjutant general may employ
persons necessary to assist the ARIZONA court of military appeals in its duties.
L. The general staff with the approval of the governor shall adopt rules necessary
for the administration of the court. The accused has a right to appointed military
counsel for his appeal.
26-1070 Appellate counsel; civilian counsel
A. The trial counsel and defense counsel of courts-martial shall serve in the
capacity of appellate counsel on an appeal authorized by this chapter.
B. The accused may be represented by civilian counsel at his own expense. If the
defense or trial counsel is unable to perform his duties because of illness or other
disability, the convening authority shall appoint a qualified trial or defense counsel to
continue the proceedings.
26-1071 Suspension of sentence
The convening authority or other person acting on the case under section 26-1060 may
suspend the execution of any sentence or part of a sentence.
26-1072 Vacation of suspension
A. Before the vacation of the suspension of a special court-martial sentence which
includes a bad conduct discharge or a dishonorable discharge, or of any general
court-martial sentence, the officer having special court-martial jurisdiction over the
probationer shall hold a hearing on the alleged violation of probation. The probationer
may be represented at the hearing by counsel.
B. The record of the hearing and the recommendation of the officer having special
court-martial jurisdiction shall be sent for action to the officer exercising general
court-martial jurisdiction over the probationer. If he vacates the suspension, any
unexecuted part of the sentence, except a dismissal, shall be executed. The vacation of
the suspension of a dismissal or a dishonorable discharge is not effective until approved
by the governor.
C. The suspension of any other sentence may be vacated by any authority competent
to convene, for the command in which the accused is serving or assigned, a court of the
kind that imposed the sentence.
26-1073 Petition for a new trial
At any time within two years after approval by the convening authority of a
court-martial sentence, the accused may petition the state judge advocate for a new trial
on the grounds of newly discovered evidence or fraud on the court. If the accused's case
is pending before the ARIZONA court of military appeals, the state judge advocate shall
refer the petition to the court for action. Otherwise the state judge advocate shall act
on the petition.
26-1074 Remission and suspension
A. The convening authority may remit or suspend any part or amount of the
unexecuted part of any sentence, including all uncollected forfeitures other than a
sentence approved by the governor.
B. For good cause, the adjutant general may substitute an administrative form of
discharge for a discharge or dismissal executed in accordance with the sentence of a
court-martial.
26-1075 Restoration
A. Under such rules as the governor adopts, all rights, privileges and property
affected by an executed part of a court-martial sentence which has been set aside or
disapproved, except an executed dismissal or discharge, shall be restored unless a new
trial or rehearing is ordered and such executed part is included in a sentence imposed on
the new trial or rehearing.
B. If a previously executed sentence of dishonorable or bad conduct discharge is
not imposed on a new trial, the adjutant general shall substitute a form of discharge
authorized for administrative issuance unless the accused is to serve out the remainder
of this enlistment.
C. If a previously executed sentence of dismissal is not imposed on a new trial,
the adjutant general shall substitute a form of discharge authorized for administrative
issue, and the commissioned officer dismissed by the sentence may be reappointed by the
governor alone to such commissioned grade and with such rank as in the opinion of the
governor that former officer would have attained if he had not been dismissed. The
reappointment of such a former officer may be made if a position vacancy is available
under applicable tables of organization. All time between the dismissal and the
reappointment shall be considered as actual service for all purposes.
26-1076 Finality of proceedings, findings and sentences
A. The appellate review of records of trial provided by this chapter, the
proceedings, findings and sentences of courts-martial as approved, reviewed or affirmed
as required by this chapter and all dismissals and discharges carried into execution
under sentences by courts-martial following approval, review or affirmation as required
by this chapter are final and conclusive.
B. Orders publishing the proceedings of courts-martial and all action taken
pursuant to those proceedings are binding on all departments, courts, agencies and
officers of this state, subject only to action on a petition for a new trial as provided
in section 26-1073.
26-1077 Principals
Any person who is punishable under this chapter and commits an offense or who aids,
abets, counsels, commands or procures its commission or who causes an act to be done
which if directly performed by him would be punishable by this chapter is a principal.
26-1078 Accessory after the fact
Any person who is subject to this chapter and who, knowing that an offense
punishable by this chapter has been committed, receives, comforts or assists the offender
in order to hinder or prevent his apprehension, trial or punishment shall be punished as
a court-martial may direct.
26-1079 Conviction of lesser included offense
An accused may be found guilty of an offense necessarily included in the offense
charged or of an attempt to commit either the offense charged or an offense necessarily
included in the charge.
26-1080 Attempts
A. An act done with specific intent to commit an offense under this chapter and
amounting to more than mere preparation and tending, even though failing to effect its
commission, is an attempt to commit that offense.
B. Any person who is subject to this chapter and who attempts to commit any offense
punishable by this chapter shall be punished as a court-martial may direct, unless
otherwise specifically prescribed.
C. Any person who is subject to this chapter may be convicted of an attempt to
commit an offense although it appears on the trial that the offense was consummated.
26-1081 Conspiracy
Any person who is subject to this chapter and conspires with any other person to
commit an offense under this chapter, if one or more of the conspirators does an act to
effect the object of the conspiracy, shall be punished as a court-martial may direct.
26-1082 Solicitation
A. Any person who is subject to this chapter and who solicits or advises another or
others to desert in violation of section 26-1085 or mutiny in violation of section
26-1094, if the offense solicited or advised is attempted or committed, shall be punished
with the punishment provided for the commission of the offense, but if the offense
solicited or advised is not committed or attempted, he shall be punished as a
court-martial may direct.
B. Any person who is subject to this chapter and who solicits or advises another or
others to commit an act of misbehavior in violation of section 26-1099 or sedition in
violation of section 26-1094, if the offense solicited or advised is committed, shall be
punished with the punishment provided for the commission of the offense, but if the
offense solicited or advised is not committed, he shall be punished as a court-martial
may direct.
26-1083 Fraudulent enlistment, appointment or separation
Any person who procures his own enlistment or appointment in the national guard by
knowingly false representation or deliberate concealment as to his qualifications for the
enlistment or appointment and receives pay or allowances or procures his own separation
from the national guard by knowingly false representation or deliberate concealment as to
his eligibility for that separation shall be punished as a court-martial may direct.
26-1084 Unlawful enlistment, appointment or separation
Any person who is subject to this chapter and who effects an enlistment or
appointment in or a separation from the national guard of any person who is known to him
to be ineligible for that enlistment, appointment or separation because it is prohibited
by law, rule or order shall be punished as a court-martial may direct.
26-1085 Desertion
A. Any member of the national guard who without authority goes or remains absent
from his unit, organization or place of duty with intent to remain away permanently,
quits his unit, organization or place of duty with intent to avoid hazardous duty or to
shirk important service or without being regularly separated from the national guard
enlists or accepts an appointment in the same or another one of the forces in the
national guard without fully disclosing the fact that he has not been regularly separated
is guilty of desertion.
B. Any commissioned officer of the national guard who, after tender of his
resignation and before notice of its acceptance, quits his post or proper duties without
leave and with intent to remain away permanently is guilty of desertion.
C. Any person who is found guilty of desertion or attempt to desert shall be
punished, if the offense is committed in time of war, by death or such other punishment
as a court-martial may direct, but if the desertion or attempt to desert occurs at any
other time, by such punishment, other than death, as a court-martial may direct.
26-1086 Absence without leave
Any member of the national guard who, without authority, fails to go to his
appointed place of duty at the time prescribed, goes from that place or absents himself
or remains absent from his unit, organization or place of duty at which he is required to
be at the time prescribed shall be punished as a court-martial may direct.
26-1087 Missing movement
Any person who is subject to this chapter and who through neglect or design misses
the movement of a ship, aircraft or unit with which he is required in the course of duty
to move shall be punished as a court-martial may direct.
26-1088 Contempt toward officials
Any commissioned officer who uses contemptuous words against the president of the
United States, congress, the governor or the legislature, or the governor or legislature
of any state, territory, commonwealth or possession in which he is on duty or present,
shall be punished as a court-martial may direct.
26-1089 Disrespect toward superior commissioned officer
Any person who is subject to this chapter and who behaves with disrespect toward his
superior commissioned officer shall be punished as a court-martial may direct.
26-1090 Assaulting or willfully disobeying superior commissioned officer
Any person who is subject to this chapter and who strikes his superior commissioned
officer or draws or lifts up any weapon or offers any violence against him while he is in
the execution of his office or willfully disobeys a lawful command of his superior
commissioned officer shall be punished as a court-martial may direct.
26-1091 Insubordinate conduct toward warrant officer or noncommissioned officer
Any warrant officer or enlisted member who strikes or assaults a warrant officer or
noncommissioned officer while that officer is in the execution of his office, willfully
disobeys the lawful order of a warrant officer or noncommissioned officer or treats with
contempt or is disrespectful in language or deportment toward a warrant officer or
noncommissioned officer while that officer is in the execution of his office shall be
punished as a court-martial may direct.
26-1092 Failure to obey order or rule
Any person who is subject to this chapter and who violates or fails to obey any
lawful general order or rule having knowledge of any other lawful order issued by a
member of the national guard, which it is his duty to obey, fails to obey the order or is
derelict in the performance of his duties shall be punished as a court-martial may
direct.
26-1093 Cruelty and maltreatment
Any person who is subject to this chapter and who commits cruelty toward, or
oppression or maltreatment of, any person who is subject to his orders shall be punished
as a court-martial may direct.
26-1094 Mutiny or sedition
A. Any person who is subject to this chapter and who:
1. With intent to usurp or override lawful military authority, refuses, in concert
with any other person, to obey orders or otherwise do his duty or creates any violence or
disturbance is guilty of mutiny.
2. With intent to cause the overthrow or destruction of lawful civil authority,
creates, in concert with any other person, revolt, violence or other disturbance against
that authority is guilty of sedition.
3. Fails to do his utmost to prevent and suppress a mutiny or sedition being
committed in his presence, or fails to take all reasonable means to inform his superior
commissioned officer or commanding officer of a mutiny or sedition which he knows or has
reason to believe is taking place, is guilty of a failure to suppress or report a mutiny
or sedition.
B. A person who is found guilty of attempted mutiny, mutiny, sedition or failure to
suppress or report a mutiny or sedition shall be punished as a court-martial may direct.
26-1095 Resistance, breach of arrest and escape
Any person who is subject to this chapter and who resists apprehension or breaks
arrest or who escapes from custody or confinement shall be punished as a court-martial
may direct.
26-1096 Releasing prisoner without proper authority
Any person who is subject to this chapter and who, without proper authority,
releases any prisoner committed to his charge, or who through neglect or design allows
any such prisoner to escape, shall be punished as a court-martial may direct, whether or
not the prisoner was committed in strict compliance with law.
26-1097 Unlawful detention
Any person who is subject to this chapter and who, except as provided by law,
apprehends, arrests or confines any person shall be punished as a court-martial may
direct.
26-1098 Noncompliance with procedural rules
Any person who is subject to this chapter and who is responsible for unnecessary
delay in the disposition of any case of a person accused of an offense under this chapter
or knowingly and intentionally fails to enforce or comply with any provision of this
chapter regulating the proceedings before, during or after trial of an accused shall be
punished as a court-martial may direct.
26-1099 Misbehavior in time of public danger; definition
A. Any person who is subject to this chapter and who in time of public danger does
any of the following shall be punished as a court-martial may direct:
1. Runs away.
2. Shamefully abandons, surrenders or delivers up any command, unit, place or
military property which it is his duty to defend.
3. Through disobedience, neglect or intentional misconduct endangers the safety of
any such command, unit, place or military property.
4. Casts away his arms or ammunition.
5. Is guilty of cowardly conduct.
6. Quits his place of duty to plunder or pillage.
7. Causes false alarms in any command, unit or place under control of the armed
forces.
8. Willfully fails to do his utmost to encounter, engage, capture or destroy any
enemy troops, combatants, aircraft or other thing, which it is his duty to so encounter,
engage, capture or destroy.
9. Does not afford all practicable relief and assistance to any troops, combatants,
vessels or aircraft of the armed forces belonging to the United States, their allies,
this state or any other state if engaged in battle.
B. For purposes of this section, "in time of public danger" means when serving
pursuant to an emergency declared by the governor.
26-1103 Captured or abandoned property
A. All persons who are subject to this chapter shall secure all public property
taken for the service of this state and shall give notice and turn over to the proper
authority without delay all captured or abandoned property in their possession, custody
or control.
B. Any person who is subject to this chapter and who fails to carry out the duties
prescribed in subsection A and who buys, sells, trades or in any way deals in or disposes
of captured or abandoned property and he receives or expects any profit, benefit or
advantage to himself or another directly or indirectly connected with himself or engages
in looting or pillaging shall be punished as a court-martial may direct.
26-1107 False official statements
Any person who is subject to this chapter and who, with intent to deceive, signs any
false record, return, rule, order or other official document, knowing it to be false, or
makes any other false official statement knowing it to be false, shall be punished as a
court-martial may direct.
26-1108 Military property; loss, damage, destruction or wrongful disposition
Any person who is subject to this chapter and who, without proper authority, sells
or otherwise disposes of, willfully or through neglect damages, destroys or loses or
willfully or though neglect suffers to be lost, damaged, sold or wrongfully disposed of
any military property of the United States, of this state or of any other state shall be
punished as a court-martial may direct.
26-1109 Property other than military property; waste, spoilage or destruction
Any person who is subject to this chapter and who willfully or recklessly wastes,
spoils or otherwise willfully and wrongfully destroys or damages any property other than
military property of the United States, this state or any other state shall be punished
as a court-martial may direct.
26-1110 Improper hazarding of vessel or aircraft
A. Any person who is subject to this chapter and who willfully and wrongfully
hazards or allows to be hazarded any vessel or aircraft of the armed forces of the united
States, of this state or of any other state shall suffer such punishment as a
court-martial may direct.
B. Any person who is subject to this chapter and who negligently hazards or allows
to be hazarded any vessel aircraft of the armed forces of the United States or of this
state or any other state shall be punished as a court-martial may direct.
26-1111 Drunken or reckless driving
Any person who is subject to this chapter and who operates any vehicle while drunk,
or in a reckless or wanton manner, shall be punished as a court-martial may direct.
26-1112 Drunk on duty
Any person who is subject to this chapter, other than a sentinel or lookout, and who
is found drunk on duty shall be punished as a court-martial may direct.
26-1113 Misbehavior of sentinel or lookout
Any sentinel or lookout who is found drunk or sleeping on his post or who leaves it
before he is regularly relieved shall be punished, if the offense is committed in time of
war, by death or such other punishment as a court-martial may direct, but if the offense
is committed at any other time, by such punishment other than death as a court-martial
may direct.
26-1114 Dueling
Any person who is subject to this chapter and who fights or promotes, or is
concerned in or connives at fighting a duel, or who, having knowledge of a challenge sent
or about to be sent, fails to report the fact promptly to the proper authority, shall be
punished as a court-martial may direct.
26-1115 Malingering
Any person who is subject to this chapter and who for the purpose of avoiding work,
duty or service feigns illness, physical disablement, mental lapse or derangement or
intentionally inflicts self-injury shall be punished as a court-martial may direct.
26-1116 Riot or breach of peace
Any person who is subject to this chapter and who causes or participates in any riot
or breach of the peace shall be punished as a court-martial may direct.
26-1117 Provoking speeches or gestures
Any person who is subject to this chapter and who uses provoking or reproachful
words or gestures towards any other person subject to this chapter shall be punished as a
court-martial may direct.
26-1118 Wrongful use and possession of controlled substances
A. Any person who is subject to this chapter and who wrongfully uses, possesses,
manufactures, distributes, imports into this state, exports from this state or introduces
into an installation, vessel, vehicle or aircraft used by or under the control of the
armed forces of the United States, this state or any other state a substance described in
subsection B shall be punished as a court-martial may direct.
B. The substances referred to in subsection A are the following:
1. Opium, heroin, cocaine, amphetamine, lysergic acid diethylamide,
methamphetamine, phencyclidine, barbituric acid and marijuana and any compound or
derivative of any of such substances.
2. Any substance not specified in paragraph 1 that is listed on a schedule of
controlled substances prescribed by the president of the United States for the purposes
of article 112A of the uniform code of military justice (10 United States Code section
912A).
3. Any other substance not specified in paragraph 1 or contained on a list
prescribed by the president under paragraph 2 that is listed in schedules I through V of
section 202 of the controlled substances act (21 United States Code section 812).
26-1121 Larceny and wrongful appropriation
A. Any person who is subject to this chapter and who wrongfully takes, obtains or
withholds, by any means, from the possession of the owner or of any other person any
money, personal property or article of value of any kind:
1. With intent permanently to deprive or defraud another person of the use and
benefit of property or to appropriate it to his own use or the use of any person other
than the owner, steals that property and is guilty of larceny.
2. With intent to temporarily deprive or defraud another person of the use and
benefit of property or to appropriate it to his own use or the use of any person other
than the owner, is guilty of wrongful appropriation.
B. Any person found guilty of larceny or wrongful appropriation shall be punished
as a court-martial may direct.
26-1123 Forgery
Any person who is subject to this chapter and who, with intent to defraud, falsely
makes or alters any signature to, or any part of, any writing which would, if genuine,
apparently impose a legal liability on another or change his legal right or liability to
his prejudice or utters, offers, issues or transfers such a writing, known by him to be
so made or altered, is guilty of forgery and shall be punished as a court-martial may
direct.
26-1124 Making, drawing or uttering check, draft or order without sufficient monies; definition
Any person who is subject to this chapter and who for the procurement of any article
or thing of value, with intent to defraud, or for the payment of any past due obligation,
or for any other purpose, with intent to deceive, makes, draws, utters or delivers any
check, draft or order for the payment of money on any bank or other depository, knowing
at the time that the maker or drawer has not or will not have sufficient monies in, or
credit with, the bank or other depository for the payment of that check, draft or order
in full on its presentment, shall be punished as a court-martial may direct. The making,
drawing, uttering or delivering by a maker or drawer of a check, draft or order, payment
of which is refused by the drawee because of insufficient monies of the maker or drawer
in the drawee's possession or control, is prima facie evidence of his intent to defraud
or deceive and of his knowledge of insufficient monies in, or credit with, that bank or
other depository, unless the maker or drawer pays the holder the amount due within five
days after receiving notice, orally or in writing, that the check, draft or order was not
paid on presentment. In this section, "credit" means an arrangement or understanding,
express or implied, with the bank or other depository for the payment of that check,
draft or order.
26-1127 Extortion
Any person who is subject to this chapter and who communicates threats to another
person with the intention to obtain anything of value or any acquittance, advantage or
immunity is guilty of extortion and shall be punished as a court-martial may direct.
26-1128 Assault
Any person who is subject to this chapter and who attempts or offers with unlawful
force or violence to do bodily harm to another person, whether or not the attempt or
offer is consummated, is guilty of assault and shall be punished as a court-martial may
direct.
26-1131 Perjury
Any person who is subject to this chapter and who in a judicial proceeding or in a
course of justice willfully and corruptly on a lawful oath, or in any form allowed by law
to be substituted for an oath, gives any false testimony material to the issue or matter
of inquiry or in any declaration, certificate, verification or statement under penalty of
perjury as permitted under the laws of this state subscribes any false statement material
to the issue or matter of inquiry is guilty of perjury and shall be punished as a
court-martial may direct.
26-1132 Frauds against the United States
Any person who is subject to this chapter and who does any of the following, on
conviction, shall be punished as a court-martial may direct:
1. Knowing it to be false or fraudulent:
(a) Makes any claim against the United States, this state, any other state or any
officer.
(b) Presents to any person in the civil or military service, for approval or
payment, any claim against the United States or this state, any other state or any
officer.
2. For the purpose of obtaining the approval, allowance or payment of any claim
against the United States, this state, any other state or any officer:
(a) Makes or uses any writing or other paper knowing it to contain any false or
fraudulent statements.
(b) Makes any oath to any fact or to any writing or other paper knowing the oath to
be false.
(c) Forges or counterfeits any signature on any writing or other paper, or uses any
such signature knowing it to be forged or counterfeited.
3. Having charge, possession, custody or control of any money, or other property of
the United States, this state or any other state, furnished or intended for the armed
forces, knowingly delivers to any person having authority to receive it any amount less
than that for which he receives a certificate or receipt.
4. Being authorized to make or deliver any paper certifying the receipt of any
property of the United States, this state or any other state, furnished or intended for
the armed forces, makes or delivers to any person such writing without having full
knowledge of the truth of the statement therein contained and with intent to defraud the
United States, this state or any other state.
26-1133 Conduct unbecoming an officer and a gentleman
Any commissioned officer or candidate who is convicted of conduct unbecoming an
officer and a gentleman shall be punished as a court-martial may direct.
26-1134 General misconduct
Though not specifically mentioned in this chapter, all disorders and neglects to the
prejudice of good order and discipline in the armed forces, all conduct of a nature to
bring discredit on the national guard and crimes and offenses not capital, of which
persons subject to this chapter may be guilty, shall be taken cognizance of by a general,
special or summary court-martial, according to the nature and degree of the offense, and
shall be punished at the discretion of that court.
26-1135 Courts of inquiry
A. Courts of inquiry may be convened to investigate any matter by any person
authorized to convene a general court-martial or by any other person designated by the
adjutant general for that purpose, whether or not the persons involved have requested
such an inquiry.
B. A court of inquiry consists of three or more commissioned officers. For each
court of inquiry the convening authority shall also appoint counsel for the court.
C. Any person who is subject to this chapter and whose conduct is subject to
inquiry shall be designated as a party. Any person who is subject to this chapter or
employed by the division of military affairs and who has a direct interest in the subject
of inquiry may be designated as a party on request to the court. Any person designated
as a party shall be given due notice and may be present, may be represented by counsel,
may cross-examine witnesses and may introduce evidence.
D. Members of a court of inquiry may be challenged by a party but only for cause
stated to the court.
E. The members, counsel, reporter and interpreters of courts of inquiry shall take
an oath to faithfully perform their duties.
F. Witnesses may be summoned to appear and testify and be examined before courts of
inquiry, as provided for courts-martial.
G. Courts of inquiry shall make findings of fact but shall not express opinions or
make recommendations unless required to do so by the convening authority.
H. Each court of inquiry shall keep a record of its findings which shall be
authenticated by the signatures of the president and counsel for the court and forwarded
to the convening authority. If the record cannot be authenticated by the president, it
shall be signed by a member in lieu of the president. If the record cannot be
authenticated by the counsel for the court, it shall be signed by a member in lieu of the
counsel.
26-1137 Articles; explanation
This chapter shall be explained to a member at the time of his entrance in the
national guard, or within thirty days thereafter. It shall be explained annually to each
unit in the national guard. A complete text of this chapter and of the rules adopted by
the governor shall be made available to any person in the national guard on his request
for his personal examination.
26-1138 Complaints of wrongs
Any member of the national guard who believes himself wronged by his commanding
officer, and who, on application to that commanding officer, is refused redress, may
complain to any superior commissioned officer, who shall forward the complaint to the
general officer in command over the officer against whom it is made. The general officer
in command shall examine the complaint and take proper measures for redressing the wrong
complained of, and he shall, as soon as possible, send to the adjutant general a true
statement of that complaint and the proceedings on the complaint.
26-1139 Redress of injuries to property
A. If a complaint is made to any commanding officer that willful damage has been
done to the property of any person or that his property has been wrongfully taken by
members of the national guard, under such rules as the adjutant general prescribes, he
may convene a board to investigate the complaint. The board shall consist of from one to
three commissioned officers and, for the purpose of that investigation, it has power to
summon witnesses and examine them upon oath, to receive depositions or other documentary
evidence and to assess the damages sustained against the responsible parties. The
assessment of damages made by the board is subject to the approval of the commanding
officer and in the amount approved by him shall be charged against the pay of the
offenders. The order of the commanding officer directing charges authorized in this
section is conclusive on any disbursing officer for the payment by him to the injured
parties of the damages as assessed and approved.
B. If the offenders cannot be ascertained, but the organization or detachment to
which they belong is known, charges totaling the amount of damages assessed and approved
may be made in such proportion as may be considered just on the individual members who
are shown to have been present at the scene at the time the damages complained of were
inflicted, as determined by the approved findings of the board.
26-1140 Delegation by the governor
The governor may delegate any authority vested in him under this chapter and provide
for the subdelegation of any such authority.
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