USA Statutes : oregon
Title : TITLE 32 MILITARY AFFAIRS; EMERGENCY SERVICES
Chapter : Chapter 398 Military Justice


(1) “Accuser” means a person who signs and swears to charges, any
person who directs that charges nominally be signed and sworn to by
another, or any other person who has an interest other than an official
interest in the prosecution of the accused.

(2) “Active state duty” means full-time duty in the active military
service of the state under an order of the Governor issued under
authority vested in the Governor by law, and includes travel to and from
such duty. The term “active state duty” also includes all Oregon National
Guard personnel serving on active duty under Title 32 U.S.C. 502 (f).

(3) “Commanding officer” includes only commissioned officers in
positions of command.

(4) “Commissioned officer” includes a commissioned warrant officer.

(5) “Component” includes the Army National Guard, the Air National
Guard and the Oregon State Defense Force.

(6) “Confining authority” means the Governor, a military court or a
convening authority or commanding officer designated by the Adjutant
General.

(7) “Convening authority” means a person authorized under this
chapter to convene a court-martial.

(8) “Duty status other than active state duty” means any drill
periods and such other training or service, other than active state duty,
as may be required under state or federal laws, regulations or orders,
and travel to and from such duty.

(9) “Enlisted member” means a person in an enlisted grade.

(10) “Grade” means a step or degree, in a graduated scale of office
or military rank, that is established and designated as a grade by law or
regulation.

(11) “Judge advocate” means the State Judge Advocate or an
Assistant State Judge Advocate.

(12) “Military” refers to any or all of the armed forces.

(13) “Military court” means a court-martial, a court of inquiry or
a provost court.

(14) “Military judge” means an official of a general or special
court-martial detailed in accordance with ORS 398.135.

(15) “Officer” means commissioned or warrant officer.

(16) “Organized militia” means the organized militia described in
ORS 396.105.

(17) “Rank” means the order of precedence among members of the
armed forces.

(18) “Record,” when used in connection with the proceedings of a
court-martial, means:

(a) An official written transcript, written summary or other
writing relating to the proceedings; or

(b) An official audiotape, videotape or similar material from which
sound or sound and visual images depicting the proceedings may be
reproduced.

(19) “State Judge Advocate” means the commissioned officer
responsible for supervising the administration of military justice and
general military legal matters in the organized militia.

(20) “Superior commissioned officer” means a commissioned officer
superior in rank or command.

(21) “Uniform Code of Military Justice” means chapter 47
(commencing with section 801) of Title 10 of the United States Code and
regulations adopted thereunder, together with the Manual for
Courts-Martial, United States, 1984 (Executive Order 12473 of July 13,
1984, as amended). [1961 c.454 §78; 1975 c.719 §1; 1985 c.682 §14; 1989
c.361 §5; 2005 c.512 §5] The following persons who
are not in federal service are subject to this chapter:

(1) Members of the organized militia.

(2) All other persons lawfully ordered to duty in or with the
organized militia, from the dates they are required by the terms of the
order or other directive to obey the same. [1961 c.454 §79] (1) Each person
discharged from the organized militia who is later charged with having
fraudulently obtained the discharge of the person is, subject to ORS
398.216, subject to trial by court-martial on that charge and is after
apprehension subject to this chapter while in the custody of the military
for that trial. Upon conviction of that charge the person is subject to
trial by court-martial for all offenses under this chapter committed
before the fraudulent discharge.

(2) No person who has deserted from the organized militia may be
relieved from amenability to the jurisdiction of this chapter by virtue
of a separation from any later period of service. [1961 c.454 §80] (1) If any commissioned
officer dismissed by order of the Governor makes a written application
for trial by court-martial, setting forth under oath that the officer has
been wrongfully dismissed, the Governor or the Adjutant General, as soon
as practicable shall convene a general court-martial to try that officer
on the charges on which the officer was dismissed. A court-martial so
convened has jurisdiction to try the dismissed officer on those charges,
and the officer shall be considered to have waived the right to plead any
statute of limitations applicable to any offense with which the officer
is charged. The court-martial may, as part of its sentence, 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.

(2) If the Governor or the Adjutant General fails to convene a
general court-martial within six months from the presentation of an
application for trial under this chapter, the Adjutant General shall
substitute for the dismissal ordered by the Governor a form of discharge
authorized for administrative issue.

(3) If a discharge is substituted for a dismissal under this
chapter, the Governor alone may reappoint the officer to such
commissioned grade and with such rank as, in the opinion of the Governor,
that former officer would have attained had the officer not been
dismissed. The reappointment of such a former officer may be made only if
a 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.

(4) If an officer is discharged from the organized militia by
administrative action or by board proceedings under law, or is dropped
from the rolls by order of the Governor, the officer has no right to
trial under this section. [1961 c.454 §81; 1975 c.719 §2; 2005 c.512 §6] (1) This chapter
applies throughout the state. It also applies to all persons otherwise
subject to this chapter while they are serving outside the state, and
while they are going to and returning from such service outside the
state, in the same manner and to the same extent as if they were serving
inside the state.

(2) Courts-martial and courts of inquiry may be convened and held
in units of the organized militia while those units are serving outside
the state with the same jurisdiction and powers as to persons subject to
this chapter as if the proceedings were held inside the state; and
offenses committed outside the state may be tried and punished either
inside or outside the state. [1961 c.454 §82] (1) The Governor, on
the recommendation of the Adjutant General, shall appoint an officer of
the organized militia as State Judge Advocate. To be eligible for
appointment, an officer must:

(a) Be a member in good standing of the Oregon State Bar;

(b) Have been a member of the Oregon State Bar for at least five
years; and

(c) Meet the qualifications for a judge advocate under the Uniform
Code of Military Justice.

(2) The Adjutant General may appoint as many Assistant State Judge
Advocates as the Adjutant General deems necessary. The Assistant State
Judge Advocates shall be officers of the organized militia and members of
the Oregon State Bar. However, the Adjutant General may appoint temporary
Assistant State Judge Advocates for a period not to exceed 12 months. An
individual appointed as a temporary Assistant State Judge Advocate shall
be an officer of the Oregon State Defense Force and shall be legally
trained but is not required to be admitted to the practice of law by the
Supreme Court of this state. The legal services performed by temporary
Assistant State Judge Advocates shall be limited to those legal services
that may be performed by legal assistants consistent with ORS 9.160.

(3) The State Judge Advocate or assistants shall make frequent
inspections in the field for supervision of the administration of
military justice and general military legal matters.

(4) Convening authorities shall at all times communicate directly
with their staff judge advocate or legal officers in matters relating to
the administration of military justice and general military legal
matters; and the staff judge advocate or legal officer of any command is
entitled to communicate directly with the staff judge advocate or legal
officer of a superior or subordinate command, or with the State Judge
Advocate.

(5) A person who has acted as 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 not later act as staff judge
advocate or legal officer to any reviewing authority upon the same case.

(6) A judicial officer, as defined by ORS 1.210, is not prohibited,
by reason of holding that office, from performing all acts necessary or
incumbent to the authorized exercise of duties as a judge advocate or as
a member of the Military Council. [1961 c.454 §83; 1975 c.719 §3; 1993
c.483 §1; 2005 c.512 §7](1) A charge against a person subject to this chapter for an
offense that is classified as a Class A felony under the Oregon Criminal
Code shall first be presented by the convening authority to a prosecuting
civilian authority with jurisdiction over the offense for possible
prosecution.

(2) If the prosecuting civilian authority declines to prosecute or
fails to respond within 90 days from presentation of the charge, the
charge may then be prosecuted as provided in this chapter. [2005 c.512
§33]APPREHENSION AND RESTRAINT (1)
Apprehension is the taking of a person into custody.

(2) Any person authorized by this chapter and ORS chapters 396 and
399, or by military department regulations issued pursuant thereto, to
apprehend persons subject to this chapter, any marshal of a court-martial
appointed pursuant to the provisions of this chapter and any peace
officer authorized to do so by law may do so upon reasonable belief that
an offense has been committed and that the person apprehended committed
it.

(3) Commissioned officers, warrant officers and noncommissioned
officers have authority to quell quarrels, frays and disorders among
persons subject to this chapter and to apprehend persons subject to this
chapter who take part therein. [1961 c.454 §84] Any civil officer having
authority to apprehend offenders under the laws of the United States or
of a state, territory, commonwealth or possession, or the District of
Columbia, may summarily apprehend a deserter from the organized militia
and deliver the deserter into the custody of the organized militia. If an
offender is apprehended outside the state, the return of the offender to
the area must be in accordance with normal extradition procedures or
reciprocal agreement. [1961 c.454 §85](1) Arrest is 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. Confinement is the physical restraint of a
person.

(2) An enlisted member may be ordered into arrest or confinement by
any commissioned officer by an oral or written order, delivered in person
or through other persons subject to this chapter or through any person
authorized by this chapter to apprehend persons. A commanding officer may
authorize warrant officers or noncommissioned officers to order enlisted
members of the command of the officer or subject to the authority of the
officer into arrest or confinement.

(3) A commissioned officer or warrant officer may be ordered
apprehended or into arrest or confinement only by a commanding officer to
whose authority the officer is subject, by an order, oral or written,
delivered in person or by another commissioned officer. The authority to
order such persons apprehended or into arrest or confinement may not be
delegated.

(4) No person may be ordered apprehended or into arrest or
confinement except for probable cause.

(5) Nothing in this section shall be construed to limit the
authority of persons authorized to apprehend offenders to secure the
custody of an alleged offender until proper authority may be notified.
[1961 c.454 §86](1)(a) Except as provided in paragraph
(b) of this subsection, any person subject to this chapter charged with
an offense under this chapter may be ordered, as a priority prisoner,
into arrest or confinement, as circumstances may require.

(b) A person subject to this chapter charged only with a minor
offense normally tried by a summary court-martial or subject to
punishment under ORS 398.083 may not ordinarily be placed in confinement.

(c) The offense described under ORS 398.322 is not a minor offense
for the purposes of this subsection.

(2) When any person subject to this chapter is placed in arrest or
confinement prior to trial, immediate steps shall be taken to inform the
person of the specific wrong of which the person is accused and to try
the person or to dismiss the charges and release the person.

(3) When a person subject to this chapter is placed in confinement
prior to summary court-martial or disposition under ORS 398.083, the
person shall be conditionally released pending disposition of the charges.

(4) A person described in subsection (3) of this section may be
reconfined if the person violates the conditional release. The person
violates the conditional release if the person fails to attend drill
periods, periods of active duty training, annual training, other periods
determined by the confining authority or hearings related to the pending
charges or other conditions imposed by the confining authority.

(5) As used in this section, “priority prisoner” means a person
subject to this chapter who:

(a) Has been ordered into confinement by a confining authority;

(b) Is received by a keeper, officer, warden or other person in
charge of the county jail, penitentiary, prison or other facility in
which the person has been ordered confined; and

(c) May be released only upon order of the confining authority.
[1961 c.454 §87; 1975 c.719 §4; 2005 c.512 §8] (1) Confinement other than in an
authorized military confinement facility, whether before, during or after
trial by a military court, shall be executed in county jails,
penitentiaries or prisons designated by the Governor or by such persons
as the Governor may authorize to act.

(2) If no designation is made under subsection (1) of this section,
the person shall be confined in a county jail.

(3) Confinement under this section shall be without requirement of
payment of any fee or charge for confining the person. [1961 c.454 §88;
2005 c.512 §9] (1) A
warden, keeper or officer of a county jail, penitentiary or prison
designated under ORS 398.060, may not refuse to receive or keep any
prisoner committed to the charge of the person, when the committing
person furnishes a statement, signed by the committing person, of the
offense charged against the prisoner.

(2) Every warden, keeper or officer of a county jail, penitentiary
or prison designated under ORS 398.060, to whose charge a prisoner is
committed shall, within 24 hours after that commitment, report to the
commanding officer of the prisoner the name of the prisoner, the offense
charged against the prisoner, and the name of the person who ordered or
authorized the commitment. [1961 c.454 §89; 2005 c.512 §36] A person, while being
held for trial, may not be subjected to punishment or penalty other than
arrest or confinement upon the charges pending against the person, nor
shall the arrest or confinement imposed be any more rigorous than the
circumstances required to insure the person’s presence, but the person
may be subjected to minor punishment during that period for infractions
of discipline. [1985 c.682 §2]

(1) Under such military department regulations as may
be prescribed under this chapter and ORS chapters 396 and 399, a person
on active state duty subject to this chapter who is accused of an offense
against civil authority may be delivered, upon request, to the civil
authority for trial.

(2) When delivery under this section is made to any civil authority
of a person undergoing sentence of a court-martial, the delivery, if
followed by conviction in a civil tribunal, interrupts the execution of
the sentence of the court-martial, and the offender after having answered
to the civil authorities for the offense shall, upon the request of
competent military authority, be returned to military custody for the
completion of the sentence of the offender. [1961 c.454 §91] When an
accused person shall have been arrested for failure to appear before a
court-martial for trial, the military judge, the president of a
court-martial or a summary court officer to whom the charges have been
referred for trial may issue a commitment for confinement of such person
pending trial, subject to the prior approval of the State Judge Advocate.
No person shall be kept in confinement pending trial longer than seven
days. [1985 c.682 §11]

NONJUDICIAL PUNISHMENT(1) Under such regulations as may be prescribed by
the Governor or the Adjutant General, limitations may be placed on the
powers granted by this section 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 section to an accused who demands trial by
court-martial, and the kinds of courts-martial to which the case may be
referred upon such a demand. However, punishment may not be imposed upon
any member of the organized militia under this section if the member has,
before the imposition of such punishment demanded trial by court-martial
in lieu of such punishment. Regulations may be prescribed by the Governor
or the Adjutant General with respect to the suspension of punishments
authorized under this section. If authorized by regulations prescribed by
the Governor or the Adjutant General, the Governor, the Adjutant General
or an officer of a general rank in command may delegate powers under this
section to a principal assistant who is a member of the organized militia.

(2) Subject to subsection (1) of this section, any commanding
officer may, in addition to or in lieu of admonition or reprimand, impose
one or more of the following disciplinary punishments for minor offenses
without the intervention of a court-martial:

(a) Upon officers of the command:

(A) Restriction to certain specified limits, with or without
suspension from duty, for not more than 30 consecutive duty or drill
days, the punishment to be completed within 90 days of the date
punishment was imposed.

(B) If imposed by the Governor, the Adjutant General or an officer
of a general rank in command:

(i) Arrest in quarters for not more than 30 consecutive duty or
drill days, the punishment to be completed within 90 days of the date
punishment was imposed.

(ii) Forfeiture of not more than one-half of one month’s active
duty base pay for two months.

(iii) Restriction to certain specified limits, with or without
suspension from duty, for not more than 60 consecutive duty or drill
days, the punishment to be completed within 90 days of the date
punishment was imposed.

(iv) Detention of not more than one-half of one month’s active duty
base pay for three months.

(b) Upon other military personnel of the command:

(A) Forfeiture of not more than seven days’ active duty base pay;

(B) Reduction to the next inferior pay grade, if the grade from
which demoted is within the promotion authority of the officer imposing
the reduction or any officer subordinate to the one who imposes the
reduction;

(C) Extra duties, including fatigue or other duties, not to exceed
two hours per day, including holidays, for not more than 14 consecutive
duty or drill days, the punishment to be completed within 90 days of the
date punishment was imposed;

(D) Restriction to certain specified limits, with or without
suspension from duty, for not more than 14 consecutive duty or drill
days, the punishment to be completed within 90 days of the date
punishment was imposed;

(E) Correctional custody for not more than seven consecutive duty
or drill days, the punishment to be completed within 90 days of the date
punishment was imposed;

(F) Detention of not more than 14 days’ active duty base pay; or

(G) If imposed by an officer of the grade of major or above:

(i) Forfeiture of not more than one-half of one month’s active duty
base pay for two months;

(ii) Reduction to the lowest or any intermediate pay grade, if the
grade from which demoted is within the promotion authority of the officer
imposing the reduction or any officer subordinate to the one who imposes
the reduction, but an enlisted member in a pay grade above E-4 may not be
reduced more than two pay grades;

(iii) Extra duties, including fatigue or other duties, not to
exceed two hours per day, including holidays, for not more than 45
consecutive duty or drill days, the punishment to be completed within 90
days of the date punishment was imposed;

(iv) Restriction to certain specified limits, with or without
suspension from duty, for not more than 60 consecutive duty or drill
days, the punishment to be completed within 90 days of the date
punishment was imposed;

(v) Correctional custody for not more than seven consecutive duty
or drill days, the punishment to be completed within 90 days of the date
punishment was imposed; or

(vi) Detention of not more than one-half of one month’s active duty
base pay for three months.

(3) No two or more of the punishments of arrest in quarters, extra
duties, and restriction may be combined to run consecutively in excess of
the maximum amount that may be imposed for each. When any of those
punishments are combined to run consecutively, there must be an
apportionment.

(4) An officer in charge may impose upon enlisted members assigned
to the unit of which the officer is in charge such of the punishments
authorized under subsection (2)(b)(A), (B), (C), (D), (E) and (F) of this
section as the Governor may specifically prescribe by regulation.

(5) The officer who imposes the punishments authorized under
subsection (2) of this section, or a successor in command, may, at any
time, suspend probationally a reduction in grade or a forfeiture imposed
under subsection (2) of this section, whether or not executed. In
addition, such officer may, at any time, remit or mitigate any part or
amount of the unexecuted punishment and may set aside in whole or in part
the punishment, whether executed or unexecuted, and restore all rights,
privileges and property affected. The officer may also mitigate reduction
in grade to forfeiture of active duty base pay. When mitigating an arrest
in quarters to restriction or extra duties to restriction, the mitigated
punishment shall not be for a greater period than the punishment
mitigated. When mitigating reduction in grade to forfeiture of active
duty base pay, the amount of the forfeiture shall not be greater than the
amount that could have been imposed initially under this section by the
officer who imposed the punishment mitigated.

(6) A person punished under this section who considers the
punishment unjust or disproportionate to the offense may, through the
proper channel, appeal to the next superior authority. The appeal shall
be promptly forwarded and decided, but the person punished may in the
meantime be required to undergo the punishment adjudged. The superior
authority may exercise the same powers with respect to the punishment
imposed as may be exercised under subsection (5) of this section by the
officer who imposed the punishment. Before acting on an appeal from any
of the following punishments, the authority who is to act on the appeal
shall refer the case to a staff judge advocate or legal officer for
consideration and advice:

(a) Arrest in quarters for more than seven days;

(b) Correctional custody for more than seven consecutive duty or
drill days;

(c) Forfeiture of more than seven days’ active duty base pay;

(d) Reduction of one or more pay grades from the fourth or a higher
pay grade;

(e) Extra duties for more than 14 consecutive drill or duty days;

(f) Restriction for more than 14 consecutive drill or duty days; or

(g) Detention of more than 14 days’ active duty base pay.

(7) Except as provided in subsection (6) of this section, before
acting on an appeal from any punishment imposed under subsection (2) of
this section, the authority who is to act on the appeal may refer the
case to a staff judge advocate or legal officer for consideration and
advice.

(8) The imposition and enforcement of disciplinary punishment under
this section for any act or omission is not a bar to trial by
court-martial or other legal proceeding for a serious crime or offense
growing out of the same act or omission, and not properly punishable
under this section; but the fact that a disciplinary punishment has been
enforced may be shown by the accused upon trial, and when so shown shall
be considered in determining the measure of punishment to be adjudged in
the event of a finding of guilty.

(9) Whenever a punishment of forfeiture of pay is imposed under
this section, the forfeiture may apply to pay accruing on or after the
date that punishment is imposed and to any pay accrued before that date.

(10) The Governor or the Adjutant General may, by regulation,
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. [1975 c.719 §6 (enacted in lieu of
398.082); 1985 c.682 §15; 2005 c.512 §10]COURTS-MARTIAL JURISDICTION(1) In the organized militia not in federal service, there
are general, special and summary courts-martial constituted like similar
courts of the army and air force. They have the jurisdiction and powers,
except as to punishments, and shall follow the forms and procedures
provided for those courts as far as applicable, except as otherwise
provided in this chapter.

(2) The three kinds of courts-martial shall be constituted as
follows:

(a) General courts-martial, consisting of:

(A) A military judge and not less than five members; or

(B) Only a military judge, if before the court is assembled, the
accused, knowing the identity of the military judge, and after
consultation with defense counsel, requests orally on the record or in
writing a court composed only of a military judge and the military judge
approves.

(b) Special courts-martial, consisting of:

(A) Not less than three members; or

(B) A military judge and not less than three members; or

(C) Only a military judge, if one has been detailed to the court,
and the accused under the same conditions prescribed in paragraph (a)(B)
of this subsection so requests.

(c) Summary courts-martial, consisting of one commissioned officer.
[1961 c.454 §93; 1975 c.719 §7; 1985 c.682 §16] Each
component of the organized militia has court-martial jurisdiction over
all persons subject to this chapter. The exercise of jurisdiction by one
component over personnel of another component shall be in accordance with
military department regulations prescribed by the Governor under ORS
396.125 or by the Adjutant General under ORS 396.160. [1961 c.454 §94;
1975 c.719 §8; 2005 c.512 §11] Subject to ORS
398.104, general courts-martial have jurisdiction to try persons subject
to this chapter for any offense made punishable by this chapter and may,
under such limitations as the Governor or the Adjutant General may
prescribe, impose any of the following punishments:

(1) A fine of not more than $500 for each offense or forfeiture of
up to two-thirds of one month’s active duty base pay and allowances for
up to three months, whichever is greater;

(2) Forfeiture of pay and allowances during any period of
confinement;

(3) Dishonorable discharge, bad-conduct discharge or dismissal;

(4) Reprimand;

(5) Reduction of an enlisted member to the lowest or any
intermediate enlisted grade;

(6) Confinement for not more than 365 days for each offense; or

(7) Any combination of these punishments. [1961 c.454 §95; 1975
c.719 §9; 1985 c.682 §17; 1999 c.157 §1; 2005 c.512 §12] (1) Subject to ORS
398.104, special courts-martial have jurisdiction to try persons other
than officers for any offense made punishable by this chapter.

(2) A special court-martial may, under such limitations as the
Governor or the Adjutant General may prescribe, impose any of the
following punishments:

(a) A fine of not more than $250 for each offense or forfeiture of
up to one-half of one month’s active duty base pay and allowances for up
to three months, whichever is greater;

(b) Forfeiture of pay and allowances during any period of
confinement;

(c) Bad-conduct discharge;

(d) Reprimand;

(e) Reduction of an enlisted member to the lowest or any
intermediate enlisted grade;

(f) Confinement for not more than 365 days for each offense; or

(g) Any combination of these punishments. [1961 c.454 §96; 1975
c.719 §10; 1985 c.682 §18; 1999 c.157 §2; 2005 c.512 §13] (1) Subject to ORS
398.104, summary courts-martial have jurisdiction to try persons other
than officers for any offense made punishable by this chapter.

(2) A person with respect to whom summary courts-martial have
jurisdiction may not be brought to trial before a summary court-martial
if the person objects. If objection to trial by summary court-martial is
made by an accused, trial may be ordered by special or general
court-martial, as may be appropriate.

(3) A summary court-martial may impose the following punishments:

(a) For an enlisted member in a pay grade of E-4 or lower,
reduction to the lowest or any intermediate pay grade and rank;

(b) For a noncommissioned officer, reduction to the next lower pay
grade and rank;

(c) Forfeiture of pay and allowances during any period of
confinement;

(d) Forfeiture of up to two-thirds of one month’s active duty base
pay;

(e) A fine not exceeding $25 for each offense;

(f) Confinement not exceeding 30 days; or

(g) Any combination of these punishments. [1961 c.454 §97; 1975
c.719 §11; 1985 c.682 §19; 1999 c.157 §3; 2005 c.512 §14]
In the organized militia not in federal service:

(1) A sentence of dismissal or dishonorable discharge may not be
executed until the sentence is approved by the Governor; and

(2) A sentence of bad-conduct discharge may not be executed until
the sentence is approved by the Adjutant General. [1961 c.454 §98; 1999
c.157 §4; 2005 c.512 §15]
A dishonorable discharge or dismissal shall not be adjudged by any
court-martial unless a complete record of the proceedings and testimony
before the court has been made. [1961 c.454 §99; 1985 c.682 §20]A general or special court-martial convened for the
trial of a person charged with committing an offense after the
declaration of a war or national emergency and before the time when the
person is brought under the jurisdiction of the Uniform Code of Military
Justice, may, upon conviction, adjudge such punishment as may be
appropriate, except that it may not exceed that authorized for a similar
offense by the Uniform Code of Military Justice. [1961 c.454 §100; 2005
c.512 §37]Upon the conditions and with the restrictions and
limitations as the Governor thinks proper, the Governor may grant
commutations and pardons for all punishments imposed under this chapter
by a general court-martial or a special court-martial and may remit all
forfeitures and fines imposed under ORS 398.106 or 398.108. [2005 c.512
§17] (1) When a person
subject to this chapter makes an application for commutation or pardon to
the Governor, a copy of the application, signed by the applicant and
stating fully the grounds of the application, shall be served by the
applicant upon:

(a) The convening authority; and

(b) If the applicant is in confinement, the person in charge of the
place of confinement.

(2) The applicant shall present to the Governor proof by affidavit
of the service.

(3) Upon receiving a copy of the application for commutation or
pardon, the convening authority shall provide to the Governor, as soon as
practicable, the information and records relating to the case as the
Governor may request and any other information and records relating to
the case that the convening authority considers relevant to the issue of
commutation or pardon.

(4) Following receipt by the Governor of an application for
commutation or pardon, the Governor may not grant the application for at
least 30 days. Upon the expiration of 180 days following receipt of an
application, if the Governor has not granted the commutation or pardon
applied for, the application shall lapse. Any further proceedings for
commutation or pardon in the case shall be pursuant only to further
application and service. [2005 c.512 §18]APPOINTMENT AND COMPOSITION OF COURTS-MARTIAL In the organized militia
not in federal service, general courts-martial may be convened by the
Governor or by the Adjutant General. [1961 c.454 §101; 2005 c.512 §19] In the organized militia
not in federal service, the commanding officer of a garrison, fort, post,
camp, air base, auxiliary air base or other place where troops are on
duty, or of a brigade, regiment, wing, group, detached battalion,
separate squadron or other detached command, may convene special
courts-martial. Special courts-martial may also be convened by superior
authority. When any such officer is an accuser, the court shall be
convened by superior competent authority. [1961 c.454 §102] (1) In the organized
militia not in federal service, the commanding officer of a garrison,
fort, post, camp, air base, auxiliary air base or other place where
troops are on duty, or of a brigade, regiment, wing, group, detached
battalion, separate squadron or other detached command, may convene a
summary court-martial.

(2) When only one commissioned officer is present with a command or
detachment that officer shall be the summary court-martial of that
command or detachment and shall hear and determine all summary
court-martial cases. Summary courts-martial may, however, be convened in
any case by superior competent authority when considered desirable by
such authority. [1961 c.454 §103; 1985 c.682 §21] (1) Any commissioned
officer of the organized militia is eligible to serve on all
courts-martial for the trial of any person who may lawfully be brought
before such courts for trial.

(2) Any warrant officer of the organized militia is eligible to
serve on general and special courts-martial for the trial of any person,
other than a commissioned officer, who may lawfully be brought before
such courts for trial.

(3)(a) Any enlisted member of the organized militia 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 who may
lawfully be 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 ORS 398.209, prior to trial or, in the absence
of such a session, at least 30 days before the court is assembled for the
trial of the accused, the accused personally or through counsel has
requested in writing that enlisted members serve on it. After such a
request, the accused may not be tried by a general or special
court-martial the membership of which does not include enlisted members
in a number comprising at least one-third of the total membership of the
court, unless eligible enlisted members cannot be obtained on account of
physical conditions or military exigencies. If such members cannot be
obtained, the court may be convened and the trial held without them, but
the convening authority shall make a detailed written statement, to be
appended to the record, stating why they could not be obtained.

(b) As used in this subsection, “unit” means any regularly
organized body of the organized militia not larger than a company, a
squadron or a corresponding body.

(4)(a) When it can be avoided, no person subject to this chapter
shall be tried by a court-martial any member of which is junior to the
person in rank or grade.

(b) When convening a court-martial, the convening authority shall
detail as members thereof such members of the organized militia as, in
the opinion of the convening authority, are best qualified for the duty
by reason of age, education, training, experience, length of service, and
judicial temperament. No member of the organized militia is eligible to
serve as a member of a general or special court-martial when the member
is the accuser or a witness for the prosecution or has acted as
investigating officer or as counsel in the same case.

(5) Before a court-martial is assembled for the trial of a case,
the convening authority may excuse a member of the court from
participating in the case. The convening authority may delegate any
authority under this subsection to the State Judge Advocate or designee.
[1961 c.454 §104; 1975 c.719 §12; 1985 c.682 §22; 2003 c.14 §171; 2005
c.512 §20] (1) The authority convening a
general court-martial or the State Judge Advocate shall detail a military
judge to the general court-martial. Subject to regulations issued by the
Governor or the Adjutant General, the authority convening a special
court-martial or the State Judge Advocate may detail a military judge to
the special court-martial. A military judge shall preside over each open
session of the court-martial to which the judge has been detailed.

(2) A military judge shall be a commissioned officer of the
organized militia or of any of the Armed Forces of the United States, be
a member of the bar of the highest court of a state or a member of the
bar of a federal court and be certified to be qualified for such duty by
the State Judge Advocate.

(3) The military judge of a general or special court-martial shall
be designated by the State Judge Advocate, or designee, for detail by the
convening authority, and, unless the court-martial was convened by the
Governor or the Adjutant General, neither the convening authority nor any
member of the staff of the convening authority shall prepare or review
any report concerning the effectiveness, fitness, or efficiency of the
military judge so detailed, which relates to performance of duty as a
military judge.

(4) A person is not eligible to act as a military judge in a case
if the person is the accuser or a witness for the prosecution or has
acted as investigating officer or as a counsel in the same case.

(5) 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 the military judge vote with
members of the court. [1975 c.719 §14 (enacted in lieu of 398.134); 1985
c.682 §23; 1999 c.94 §1; 2005 c.512 §21] (1) For each
general and special court-martial the staff judge advocate for the unit,
command or organization shall detail trial counsel and such assistants as
the staff judge advocate considers appropriate. The State Judge Advocate
shall detail defense counsel. A person who has acted as investigating
officer, military judge or court member in any case may not act later as
trial counsel, assistant trial counsel or, unless expressly requested by
the accused, as defense counsel or assistant defense counsel in the same
case. A person who has acted for the prosecution may not 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.

(2) Trial counsel or defense counsel detailed for a general
court-martial must be:

(a) A judge advocate qualified under the Uniform Code of Military
Justice; or

(b) A person who is:

(A) A member of the Oregon State Bar, or a member of the bar of a
federal court or an attorney allowed under ORS 9.241 to practice before a
court of this state; and

(B) Certified as competent to perform such duties by the State
Judge Advocate.

(3) In the case of a special court-martial:

(a) If the trial counsel is qualified to act as counsel before a
general court-martial, the defense counsel detailed by the State Judge
Advocate must be a person similarly qualified; and

(b) If the trial counsel is a member of the Oregon State Bar, the
defense counsel detailed by the State Judge Advocate must have the same
qualifications. [1961 c.454 §106; 1975 c.719 §15; 1985 c.682 §24; 1999
c.94 §2; 2005 c.512 §22] Under
such regulations as the Governor may prescribe:

(1) Qualified court reporters shall be detailed or employed for
each general or special court-martial or court of inquiry to record the
proceedings of and testimony taken before that court.

(2) Interpreters may be detailed or employed for each general or
special court-martial or court of inquiry to interpret for the court.
[1961 c.454 §107; 1985 c.682 §25; 1999 c.94 §3]
(1) No member of a general or special court-martial shall be absent or
excused after the court has been assembled for the trial of the accused
except for physical disability or as a result of a challenge or by order
of the convening authority for good cause.

(2) Whenever a general court-martial, other than a general
court-martial composed of a military judge only, is reduced below five
members, the trial may not proceed unless the convening authority details
new members sufficient in number to provide not less than five members.
When the new members have been sworn, the trial may proceed after the
recorded testimony of each witness previously examined has been read to
the court in the presence of the military judge, the accused, and counsel
for both sides.

(3) Whenever a special court-martial, other than a special
court-martial composed of a military judge only, is reduced below three
members, the trial may not proceed unless the convening authority details
new members sufficient in number to provide not less than three members.
When the new members have been sworn, the trial shall proceed as if no
evidence has previously been introduced, unless a verbatim record of the
testimony of previously examined witnesses or a stipulation thereof is
read to the court in the presence of the military judge, if any, the
accused and counsel for both sides.

(4) If the military judge of a court-martial composed of a military
judge only is unable to proceed with the trial because of physical
disability, as a result of a challenge or for other good cause, the trial
shall proceed, subject to any applicable conditions of ORS 398.102 after
the detail of a new military judge as if no evidence had previously been
introduced unless a verbatim record of the evidence previously introduced
or a stipulation thereof is read in court in the presence of the new
military judge, the accused and counsel for both sides. [1961 c.454 §108;
1975 c.719 §16]PRETRIAL PROCEDURE (1) Charges and specifications
shall be signed by a person subject to this chapter under oath before a
person authorized by ORS 396.120 to administer oaths and shall state:

(a) That the signer has personal knowledge of, or has investigated,
the matters set forth therein; and

(b) That they are true in fact to the best of the signer’s
knowledge and belief.

(2) Upon the preferring of charges, the proper authority shall take
immediate steps to determine what disposition should be made thereof in
the interest of justice and discipline, and the person accused shall be
informed of the charges as soon as practicable. [1961 c.454 §109; 1985
c.682 §26](1) No person subject to this chapter may compel any
person to incriminate self or to answer any question the answer to which
may tend to incriminate the person.

(2) No person subject to this chapter may interrogate, or request
any statement from, an accused or a person suspected of an offense
without first informing the person of the nature of the accusation and
advising the person that the person does not have to make any statement
regarding the offense of which the person is accused or suspected and
that any statement made by the person may be used as evidence against the
person in a trial by court-martial.

(3) No person subject to this chapter may 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 the person.

(4) No statement obtained from any person in violation of this
section, or through the use of coercion, unlawful influence or unlawful
inducement may be received in evidence against the person in a trial by
court-martial. [1961 c.454 §110] (1) No charge or specification may be
referred to a general court-martial for trial until a thorough and
impartial investigation of all the matters set forth therein has been
made. This investigation shall include inquiry as to the truth of the
matter set forth in the charges, consideration of the form of charges,
and a recommendation as to the disposition which should be made of the
case in the interest of justice and discipline.

(2) The accused shall be advised of the charges and of the right to
be represented at that investigation by counsel. Upon request the accused
shall be represented by civilian counsel if provided by the accused, or
military counsel selected by the accused if such counsel is reasonably
available, or by counsel detailed by the officer exercising general
court-martial jurisdiction over the command. At that investigation full
opportunity shall be given to the accused to cross-examine witnesses if
they are available and to present anything in the accused’s own behalf,
either in defense or mitigation, and the investigating officer shall
examine available witnesses requested by the accused. If the charges are
forwarded after the investigation, they shall be accompanied by a
statement of the substance of the testimony taken on both sides and a
copy thereof shall be given to the accused.

(3) If an investigation of the subject matter of an offense has
been conducted before the accused is charged with offense, and if the
accused was present at the investigation and afforded the opportunities
for representation, cross-examination, and presentation prescribed in
subsection (2) of this section, no further investigation of that charge
is necessary under this section unless it is demanded by the accused
after being informed of the charge. A demand for further investigation
entitles the accused to recall witnesses for further cross-examination
and to offer any new evidence in behalf of the accused.

(4) The requirements of this section are binding on all persons
administering this chapter but failure to follow them does not divest a
military court of jurisdiction. [1961 c.454 §111; 1985 c.682 §27] When a person is held for trial by
general court-martial the commanding officer shall, within eight days
after the accused is ordered into arrest or confinement, if practicable,
forward the charges, together with the investigation and allied papers,
to the person exercising general court-martial jurisdiction. If that is
not practicable, the officer shall report in writing to that person the
reasons for delay. [1961 c.454 §112; 1975 c.719 §17](1) Before directing the trial of any charge by general
court-martial, the convening authority shall refer it to the State Judge
Advocate for consideration and advice. The convening authority may not
refer a specification under a charge to a general court-martial for trial
unless the convening authority has been advised in writing by the State
Judge Advocate that:

(a) The specification alleges an offense under this chapter;

(b) The specification is warranted by the evidence indicated in the
report of investigation, if any, under ORS 398.166; and

(c) A court-martial has jurisdiction over the accused and the
offense.

(2) The advice of the State Judge Advocate under subsection (1) of
this section with respect to a specification under a charge shall include
a written and signed statement by the State Judge Advocate:

(a) Expressing conclusions with respect to each matter set forth in
subsection (1) of this section; and

(b) Recommending action that the convening authority take regarding
the specification.

(3) If the specification is referred for trial, the recommendation
of the State Judge Advocate shall accompany the specification.

(4) 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. [1961 c.454 §113; 1985 c.682 §28] The trial counsel to whom court-martial
charges are referred for trial shall cause to be served upon the accused
a copy of the charges upon which trial is to be had. No person may,
against the objection of the person, be brought to trial or be required
to participate by self or counsel in a session called by the military
judge under ORS 398.209 in a general court-martial within a period of
five days after the service of the charges upon the person, or before a
special court-martial within a period of three days after the service of
the charges upon the person. [1961 c.454 §114; 1975 c.719 §18]TRIAL PROCEDURE The procedure, including modes of
proof, in cases before military courts and other military tribunals may
be prescribed by the Governor by military department regulations, which
shall, so far as the Governor considers practicable, apply the principles
of law and the rules of evidence generally recognized in the trial of
criminal cases in the courts of the state, but which may not be contrary
to or inconsistent with this chapter. [1961 c.454 §115] (1) No authority
convening a general, special or summary court-martial nor any other
commanding officer, or officer serving on the staff thereof, may censure,
reprimand or admonish the court or any member, military judge or counsel
thereof, with respect to the findings or sentence adjudged by the court,
or with respect to any other exercise of its or the member’s functions in
the conduct of the proceeding. No person subject to this chapter may
attempt to coerce or, by any unauthorized means, influence the action of
the court-martial or any other military tribunal or any member thereof,
in reaching the findings or sentence in any case, or the action of any
convening, approving or reviewing authority with respect to judicial acts
of the authority.

(2) The provisions of subsection (1) of this section do not apply
to:

(a) 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; and

(b) To statements and instructions given in open court by the
military judge, president of a special court-martial, or counsel.

(3) 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 organized militia is
qualified to be advanced in grade, or in determining the assignment or
transfer of a member of the organized militia or in determining whether a
member should be retained on active duty, no person subject to this
chapter may, in preparing any such report:

(a) Consider or evaluate the performance of duty of any such member
as a member of a court-martial; or

(b) Give a less favorable rating or evaluation of any member of the
organized militia because of the zeal with which such member, as counsel,
represented any accused before a court-martial. [1961 c.454 §116; 1975
c.719 §19] (1) The trial
counsel of a general or special court-martial shall prosecute in the name
of the state and shall, under the direction of the court, prepare the
record of the proceedings.

(2) The accused has the right to be represented in the accused’s
defense before a general or special court-martial by civilian counsel if
provided by the accused, or by military counsel of the accused’s own
selection if reasonably available, or by the defense counsel detailed
under ORS 398.136. Should the accused have counsel of the accused’s own
selection, the defense counsel and assistant defense counsel, if any, who
were detailed, shall, if the accused so desires, act as associate
counsel; otherwise they shall be excused by the military judge or by the
president of a court-martial without a military judge.

(3) In every court-martial proceeding the defense counsel may, in
the event of conviction, forward for attachment to the record of
proceedings a brief of such matters as defense counsel feels should be
considered in behalf of the accused on review, including any objection to
the contents of the record which defense counsel considers appropriate.

(4) An assistant trial counsel of a general court-martial may,
under the direction of the trial counsel or when qualified to be a trial
counsel as required by ORS 398.136, perform any duty imposed by law,
regulation or the custom of the service upon the trial counsel of the
court. An assistant trial counsel of a special court-martial may perform
any duty of the trial counsel.

(5) An assistant defense counsel of a general or special
court-martial may, under the direction of the defense counsel or when
qualified to be the defense counsel as required by ORS 398.136, perform
any duty imposed by law, regulation or the custom of the service upon
counsel for the accused. [1961 c.454 §117; 1975 c.719 §20; 1985 c.682 §29] (1) At any time after the service of
charges which have been referred for trial to a court-martial composed of
a military judge and members, the military judge may, subject to ORS
398.172, call the court into session without the presence of the members
for the purpose of:

(a) 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;

(b) Hearing and ruling upon any matter which may be ruled upon 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;

(c) If permitted by regulations issued by the Governor or the
Adjutant General, holding the arraignment and receiving the pleas of the
accused; and

(d) Performing any other procedural function which may be performed
by the military judge under this chapter or under regulations prescribed
pursuant to ORS 398.202 and which does not require the presence of the
members of the court.

(2) These proceedings shall be conducted in the presence of the
accused, the defense counsel, and the trial counsel and shall be made a
part of the record.

(3) 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. [1975 c.719 §22 (enacted in lieu of 398.208); 2005 c.512 §38] The military judge or a court-martial without
a military judge may, for reasonable cause, grant a continuance to any
party for such time, and as often, as may appear to be just. [1961 c.454
§119; 1975 c.719 §23] (1) The military judge and members of a general
or special court-martial may be challenged by the accused or the trial
counsel for cause stated to the court. The military judge or, if none,
the court shall determine the relevancy and validity of challenges for
cause, and may not receive a challenge to more than one person at a time.
Challenges by the trial counsel shall ordinarily be presented and decided
before those by the accused are offered.

(2) Each accused and the trial counsel is entitled to one
peremptory challenge, but the military judge may not be challenged except
for cause. [1961 c.454 §120; 1975 c.719 §24] (1) The military judge, interpreters, and in general
and special courts-martial, members, trial counsel, assistant trial
counsel, defense counsel, assistant defense counsel and reporters shall
take an oath or affirmation in the presence of the accused to perform
their duties faithfully.

(2) Each witness before a military court shall be examined on oath
or affirmation. [1961 c.454 §121; 1975 c.719 §25] (1) A person charged with desertion
or absence without leave in time of war, or with aiding the enemy, may be
tried and punished at any time without limitation.

(2) Except as otherwise provided in this section, a person charged
with desertion in time of peace or the offense punishable under ORS
398.386 is not liable to be tried by court-martial if the offense was
committed more than three years before the receipt of sworn charges and
specifications by an officer exercising summary court-martial
jurisdiction over the command.

(3) Except as otherwise provided in this section, a person charged
with any offense is not liable to be tried by court-martial or punished
under ORS 398.083 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 ORS 398.083.

(4) Periods in which the accused was absent from territory in which
the state has the authority to apprehend the accused, or in the custody
of civil authorities, or in the hands of the enemy, shall be excluded in
computing the period of limitation prescribed in this section. [1961
c.454 §122; 1985 c.682 §30] (1) No person may, without the person’s
consent, be tried a second time for the same offense.

(2) No proceeding in which an accused has been found guilty by a
court-martial upon any charge or specification is a trial in the sense of
this section until the finding of guilty has become final after review of
the case has been fully completed.

(3) A proceeding which, after the introduction of evidence but
before a finding, is dismissed or terminated by the convening authority
or on motion of the prosecution for failure of available evidence or
witnesses without any fault of the accused is a trial in the sense of
this section.

(4) Administrative actions or proceedings do not bar proceedings
under this chapter for an offense. A proceeding under this chapter for an
offense does not bar an administrative action or proceeding unless the
proceeding for an offense results in a finding of not guilty. [1961 c.454
§123; 1985 c.682 §31; 1999 c.157 §5] (1) If an accused arraigned before a
court-martial makes an irregular pleading, or after a plea of guilty sets
up matter inconsistent with the plea, or if it appears that the accused
has entered the plea of guilty improvidently or through lack of
understanding of its meaning and effect, or if the accused fails or
refuses to plead, a plea of not guilty shall be entered in the record,
and the court shall proceed as though the accused had pleaded not guilty.

(2) With respect to any charge or specification to which a plea of
guilty has been made by the accused and accepted by the military judge or
by a court-martial without a military judge, a finding of guilty of the
charge or specification may be entered immediately without vote. This
finding shall constitute the finding of the court unless the plea of
guilty is withdrawn prior to announcement of the sentence, in which event
the proceedings shall continue as though the accused had pleaded not
guilty. [1961 c.454 §124; 1985 c.682 §32] (1) The trial
counsel, the defense counsel and the court-martial shall have equal
opportunity to obtain witnesses and other evidence in accordance with
such military department regulations as the Governor may prescribe.

(2) The military judge, the president of a court-martial or a
summary court officer may:

(a) Issue a warrant for the arrest of any accused person who,
having been served with a warrant and a copy of the charges, disobeys a
written order by the convening authority to appear before the court;

(b) Issue subpoenas duces tecum and other subpoenas;

(c) Enforce by attachment the attendance of witnesses and the
production of books and papers; and

(d) Sentence for refusal to be sworn or to answer, as provided in
actions before civil courts of the state.

(3) Process issued in court-martial cases to compel witnesses to
appear and testify and to compel the production of other evidence shall
run to any part of the state. [1961 c.454 §125; 1975 c.719 §26] (1) Any person not subject to
this chapter is guilty of an offense against the state when the person:

(a) Has been duly subpoenaed to appear as a witness before a
court-martial, court of inquiry or any 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;

(b) Has been duly paid or tendered the fees and mileage of a
witness at the rates allowed to witnesses attending the circuit court of
the state in ORS 44.415 (2); and

(c) 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.

(2) Any person who commits an offense described in subsection (1)
of this section shall be tried before the circuit court or judge thereof
of the county where the offense occurred, and exclusive jurisdiction is
conferred upon those courts for such purpose. Upon conviction, such a
person shall be punished by a fine of not more than $2,500, or
imprisonment for not more than six months, or both.

(3) The district attorney of the county in which the offense
occurred, upon certification of the facts by the military court, court of
inquiry or board, shall prosecute any person who commits the offense
described in subsection (1) of this section. The fine shall be deposited
in the General Fund of the State Treasury, to be available for general
governmental expenses. [1961 c.454 §126; 1985 c.682 §33; 1989 c.980 §13;
2005 c.512 §23] (1) A military court may punish for contempt any
person who uses any menacing word, sign or gesture in its presence, or
who disturbs its proceedings by any riot or disorder. The punishment may
not exceed confinement for 30 days or a fine of $100, or both.

(2) A military court shall have the contempt power possessed by a
civilian court as provided under ORS 33.015 to 33.155.

(3) A person found in contempt under this section and ordered
confined may be confined in a county jail upon written order of the
military judge.

(4) A person ordered confined under this section may be delivered
to the civilian authority by a military or civilian law enforcement
authority.

(5) The county jail may not charge the Oregon Military Department
or the state for the costs of a person’s confinement under this section.
[1961 c.454 §127; 2005 c.512 §24] (1) At any time after charges have been
signed, as provided in ORS 398.162, 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 authority may designate commissioned
officers to represent the prosecution and the defense and may authorize
those officers to take the deposition of any witness.

(2) 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.

(3) 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.

(4) A duly authenticated deposition taken upon reasonable notice to
the other parties, so far as otherwise admissible under the rules of
evidence, may be read in evidence or, in the case of audiotape, videotape
or similar material, may be played as evidence before any military court
or commission, in any proceeding before any court-martial or in any
proceeding before a court of inquiry, if it appears:

(a) That the witness resides or is beyond the state in which the
court-martial or court of inquiry is ordered to sit, or beyond the
distance of 100 miles from the place of hearing;

(b) That 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; or

(c) That the present whereabouts of the witness is unknown. [1961
c.454 §128; 1985 c.682 §34] (1) In any
case not extending to the dismissal of a commissioned officer, the sworn
testimony, contained in the duly authenticated record of proceedings of a
court of inquiry, of a person whose oral testimony cannot be obtained,
may, if otherwise admissible under the rules of evidence, be read in
evidence by any party before a court-martial if the accused was a party
before the court of inquiry and if the same issue was involved or if the
accused consents to the introduction of such evidence.

(2) Such testimony may be read in evidence only by the defense in
cases extending to the dismissal of a commissioned officer.

(3) Such testimony may also be read in evidence before a court of
inquiry or a military board. [1961 c.454 §129] (1) 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 upon questions of challenge,
on the findings and on the sentence shall be by secret written ballot.
The junior member of the court shall in each case count the votes. The
count shall be checked by the president, who shall forthwith announce the
result of the ballot to the members of the court.

(2) The military judge and, except for questions of challenge, the
president of a court-martial without a military judge, shall rule upon
all questions of law and all interlocutory questions, arising during the
proceedings. Any such ruling made by the military judge upon any question
of law or any interlocutory question other than the factual issue of
mental responsibility of the accused, or by the president of a
court-martial without a military judge upon 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 a ruling at any time
during the trial. Unless the ruling is final, if any member objects
thereto, the court shall be cleared and closed and the question decided
by a voice vote as provided in ORS 398.234 beginning with the junior in
rank.

(3) Before a vote is taken on the findings, the military judge or
the president of a court-martial without a military judge shall, in the
presence of the accused and counsel, instruct the members of the court as
to the elements of the offense and charge them:

(a) That the accused must be presumed to be innocent until guilt is
established by legal and competent evidence beyond reasonable doubt;

(b) 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 the accused must be acquitted;

(c) That if there is a reasonable doubt as to the degree of guilt,
the findings must be in a lower degree as to which there is no reasonable
doubt; and

(d) That the burden of proof to establish the guilt of the accused
beyond reasonable doubt is upon the state.

(4) Subsections (1), (2) and (3) 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 shall in addition on request find the facts
specially. If an opinion or memorandum of decision is filed, it will be
sufficient if the findings of fact appear therein. [1961 c.454 §130; 1975
c.719 §27; 1985 c.682 §35] (1) No person may be convicted of
an offense, except by the concurrence of two-thirds of the members
present at the time the vote is taken.

(2) All sentences shall be determined by the concurrence of
two-thirds of the members present at the time that the vote is taken.

(3) All other questions to be decided by the members of a general
or special court-martial shall be determined by a majority vote. However,
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. [1961
c.454 §131; 1985 c.682 §36] A court-martial shall announce
its findings and sentence to the parties as soon as determined. [1961
c.454 §132] (1) Each general court-martial shall keep
a separate record of the proceedings of the trial of 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 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
death, disability or absence.

(2) 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 such regulations as the Governor
may prescribe.

(3) A complete record of the proceedings and testimony shall be
prepared:

(a) In each general court-martial case in which the sentence
adjudged includes a dismissal or a dishonorable discharge; and

(b) In each special court-martial case in which the sentence
adjudged includes a dishonorable discharge.

(4) In all other court-martial cases the record shall contain such
matters as may be prescribed by regulations of the Governor.

(5) 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. [1961 c.454 §133; 1975 c.719 §28; 1985 c.682 §37]SENTENCES Punishment by
flogging, or by branding, marking or tattooing on the body, or any other
cruel or unusual punishment, may not be adjudged by any court-martial or
inflicted upon any person subject to this chapter. The use of irons,
single or double, except for the purpose of safe custody, is prohibited.
[1961 c.454 §134] (1) The punishments which a
court-martial may direct for an offense may not exceed limits prescribed
by this chapter.

(2) Unless otherwise provided in regulation to be prescribed by the
Governor or Adjutant General, a court-martial sentence of an enlisted
member in a pay grade above E-1 reduces that member to pay grade E-1,
effective on the date on which the sentence is approved by the convening
authority, when the sentence includes a dishonorable discharge or
dismissal.

(3) If the sentence of a member who is reduced in pay grade under
subsection (2) of this section is set aside, disapproved or as finally
approved does not include any punishment described in subsection (2) of
this section, the rights and privileges of which the member was deprived
because of that reduction shall be restored and the member is entitled to
the pay and allowances to which the member would have been entitled for
the period the reduction was in effect. [1961 c.454 §135; 1985 c.682 §38] (1) Whenever a sentence of a
court-martial as lawfully adjudged and approved includes a forfeiture of
pay or allowances, the forfeiture may apply to pay or allowances becoming
due on or after the date the sentence is approved by the convening
authority. No forfeiture may extend to any pay or allowances accrued
before that date.

(2) Any period of confinement included in a sentence of a
court-martial begins to run from the date the sentence is ordered to be
executed by the convening authority but periods during which the sentence
to confinement is suspended or deferred shall be excluded in computing
the service of the term of confinement. Regulations prescribed by the
Governor may provide that sentences of confinement may not be executed
until approved by designated officers.

(3) All other sentences of courts-martial are effective on the date
ordered executed. [1961 c.454 §136; 1985 c.682 §39] (1) 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 organized
militia or in any jail, penitentiary or prison designated for that
purpose. Persons so 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 the state
or of any political subdivision thereof.

(2) The keepers, officers and wardens of county jails,
penitentiaries or prisons designated by the Governor, or by such person
as the Governor may authorize to act under ORS 398.060, shall receive
persons ordered into confinement before trial and persons committed to
confinement by a military court and shall confine them according to law.

(3) A person confined under this section shall have the status of a
priority prisoner as defined in ORS 398.058 and may be released only upon
order of a military court.

(4) A keeper, officer or warden described in subsection (2) of this
section may not require payment of any fee or charge for receiving or
confining a person under this section. [1961 c.454 §137; 1975 c.719 §29;
1985 c.682 §40; 2005 c.512 §25]REVIEW OF COURTS-MARTIAL Except as
provided in ORS 398.112 and 398.282, a court-martial sentence, unless
suspended, may be ordered executed by the convening authority when
approved. The convening authority shall approve the sentence or such
part, amount or commuted form of the sentence as the convening authority
sees fit, and may suspend the execution of the sentence as approved.
[1961 c.454 §138; 1985 c.682 §41] (1) After a
trial by court-martial the record shall be forwarded to the convening
authority, as reviewing authority, and action thereon may be taken by the
person who convened the court, a commissioned officer commanding for the
time being, a successor in command or by the Governor.

(2) The convening authority shall refer the record of each general
court-martial to the State Judge Advocate, who shall submit a written
opinion thereon to the convening authority. If the final action of the
court has resulted in an acquittal of all charges and specifications, the
opinion shall be limited to questions of jurisdiction. [1961 c.454
§§139,140] (1) If a
specification before a court-martial has been dismissed on motion and the
ruling does not amount to a finding of not guilty, the convening
authority may return the record to the court for reconsideration of the
ruling and any further appropriate action.

(2) Where there is an apparent error or omission in the record or
where the record shows improper or inconsistent action by a court-martial
with respect to a finding or sentence which can be rectified without
material prejudice to the substantial rights of the accused, the
convening authority may return the record to the court for appropriate
action. In no case, however, may the record be returned:

(a) For reconsideration of a finding of not guilty of any
specification, or a ruling which amounts to a finding of not guilty;

(b) For reconsideration of a finding of not guilty of any charge,
unless the record shows a finding of guilty under a specification laid
under that charge, which sufficiently alleges a violation of some section
of this chapter; or

(c) For increasing the severity of the sentence unless the sentence
prescribed for the offense is mandatory. [1961 c.454 §141] (1) If the convening authority disapproves the
findings and sentence of a court-martial the convening authority may,
except where there is lack of sufficient evidence in the record to
support the findings, order a rehearing. In such a case the convening
authority shall state the reasons for disapproval. If the convening
authority disapproves the findings and sentence and does not order a
rehearing, the convening authority shall dismiss the charges.

(2) Each rehearing shall take place before a court-martial composed
of members not members of the court-martial which first heard the case.
Upon a rehearing the accused may not be tried for any offense of which
the accused was found not guilty by the first court-martial, and no
sentence in excess of or more severe than the original sentence may be
imposed, unless the sentence is based upon a finding of guilty of an
offense not considered upon the merits in the original proceedings, or
unless the sentence prescribed for the offense is mandatory. [1961 c.454
§142] In acting on the findings
and sentence of a court-martial, the convening authority may approve only
such findings of guilty, and the sentence or such part or amount of the
sentence, as the convening authority finds correct in law and fact and as
the convening authority in the discretion of the convening authority
determines should be approved. Unless the convening authority indicated
otherwise, approval of the sentence is approval of the findings and
sentence. [1961 c.454 §143] (1) If the convening
authority is the Governor, action by the Governor on the review of any
record of trial is final.

(2) In all other cases not covered by subsection (1) of this
section, if the sentence of a special court-martial as approved by the
convening authority includes a dishonorable discharge, whether or not
suspended, the entire record shall be sent to the appropriate judge
advocate of the state force concerned to be reviewed in the same manner
as a record of trial by general court-martial. The record and the opinion
of the judge advocate shall then be sent to the State Judge Advocate for
review.

(3) All other special and summary court-martial records shall be
sent to the judge advocate of the appropriate force of the organized
militia and shall be acted upon, transmitted, and disposed of as may be
prescribed by the Governor.

(4) The State Judge Advocate shall review the record of trial in
each case sent to the State Judge Advocate for review as provided under
subsection (2) of this section. If the final action of the court-martial
has resulted in an acquittal of all charges and specifications, the
opinion of the State Judge Advocate shall be limited to questions of
jurisdiction.

(5) The State Judge Advocate shall take final action in any case
reviewable by the State Judge Advocate.

(6) In a case reviewable by the State Judge Advocate under this
section, the State Judge Advocate may act only with respect to the
findings and sentence as approved by the convening authority. The State
Judge Advocate may affirm only such findings of guilty, and the sentence
or such part or amount of the sentence, as the State Judge Advocate finds
correct in law and fact and determines, on the basis of the entire
record, should be approved. In considering the record the State Judge
Advocate may weigh the evidence, judge the credibility of witnesses and
determine controverted questions of fact, recognizing that the trial
court saw and heard the witnesses. If the State Judge Advocate sets aside
the findings and sentence, the State Judge Advocate may, except where the
setting aside is based on lack of sufficient evidence in the record to
support the findings, order a rehearing. If the State Judge Advocate sets
aside the findings and sentence and does not order a rehearing, the State
Judge Advocate shall order that the charges be dismissed.

(7) In a case reviewable by the State Judge Advocate under this
section, the State Judge Advocate shall instruct the convening authority
to act in accordance with the State Judge Advocate’s decision on the
review. If the State Judge Advocate has ordered a rehearing but the
convening authority finds a rehearing impracticable, the State Judge
Advocate may dismiss the charges.

(8) The State Judge Advocate may order one or more boards of review
each composed of not fewer than three commissioned officers of the
organized militia, each of whom must be a member of the Oregon State Bar.
Each board of review shall review the record of any trial by special
court-martial referred to it by the State Judge Advocate. Boards of
review have the same authority on review as the State Judge Advocate has
under this section. [1961 c.454 §144; 1985 c.682 §42; 2005 c.512 §39] (1) A finding or
sentence of a court-martial may not be held incorrect on the ground of an
error of law unless the error materially prejudices the substantial
rights of the accused.

(2) Any reviewing authority with the power to approve or affirm a
finding of guilty may approve or affirm so much of the finding as
includes a lesser included offense. [1961 c.454 §145] (1) Upon the final review of a sentence of
a general court-martial, the accused has the right to be represented by
counsel before the reviewing authority, before the staff judge advocate
or legal officer, as the case may be, and before the State Judge Advocate.

(2) Upon the request of an accused entitled to be so represented,
the State Judge Advocate shall appoint a lawyer who is a member of the
organized militia and who has the qualifications prescribed in ORS
398.136, if available, to represent the accused before the reviewing
authority, before the staff judge advocate or legal officer, as the case
may be, and before the State Judge Advocate, in the review of cases
specified in subsection (1) of this section.

(3) If provided by the accused, an accused entitled to be so
represented may be represented by civilian counsel before the reviewing
authority, before the staff judge advocate or legal officer, as the case
may be, and before the State Judge Advocate. [1961 c.454 §146; 1985 c.682
§43] (1) Before the vacation of the
suspension of a special court-martial sentence which as approved includes
a dishonorable discharge, or of any general court-martial sentence, the
officer having court-martial jurisdiction over the probationer shall hold
a hearing on the alleged violation of probation. The probationer shall be
represented at the hearing by counsel if the probationer so desires.

(2) The record of the hearing and the recommendation of the officer
having special court-martial jurisdiction shall be sent for action to the
Governor in cases involving a general court-martial sentence and to the
commanding officer of the force of the organized militia of which the
probationer is a member in all other cases covered by subsection (1) of
this section. If the Governor or commanding officer vacates the
suspension, any unexecuted part of the sentence except a dismissal shall
be executed.

(3) 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. [1961
c.454 §147; 1985 c.682 §44] At any time within two years after
approval by the convening authority of a court-martial sentence which
extends to dismissal or dishonorable discharge, the accused may petition
the Governor for a new trial on ground of newly discovered evidence or
fraud on the court-martial. [1961 c.454 §148; 1985 c.682 §45] (1) A convening authority may
remit or suspend any part or amount of the unexecuted part of any
sentence, including all uncollected forfeitures.

(2) The Governor may, for good cause, substitute an administrative
form of discharge for a discharge or dismissal executed in accordance
with the sentence of a court-martial. [1961 c.454 §149] (1) Under such military department regulations
as the Governor may prescribe, all rights, privileges and property
affected by an executed part of a court-martial sentence which has been
set aside or disapproved, except an executed dismissal or discharge,
shall be restored unless a new trial or rehearing is ordered and such
executed part is included in a sentence imposed upon the new trial or
rehearing.

(2) If a previously executed sentence of dishonorable discharge is
not imposed on a new trial, the Governor shall substitute therefor a form
of discharge authorized for administrative issuance unless the accused is
to serve out the remainder of the enlistment.

(3) If a previously executed sentence of dismissal is not imposed
on a new trial, the Governor shall substitute therefor a form of
discharge authorized for administrative issue, and the commissioned
officer dismissed by that sentence may be reappointed by the Governor
alone to such commissioned grade and with such rank as in the opinion of
the Governor that former officer would have attained had the officer not
been dismissed. The reappointment of such 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 service for all purposes. [1961 c.454 §150; 1985 c.682 §46] The
proceedings, findings and sentences of court-martial as reviewed and
approved, as required by this chapter, and all dismissals and discharges
carried into execution under sentences by court-martial following review
and approval, as required by this chapter, are final and conclusive.
Orders publishing the proceedings of court-martial and all action taken
pursuant to those proceedings are binding upon all departments, courts,
agencies and officers of the state, subject only to action upon a
petition for a new trial as provided in ORS 398.290. [1961 c.454 §151]PUNITIVE PROVISIONS A person may not be
tried or punished for any offense provided for in ORS 398.302 to 398.400,
unless:

(1) The offense was committed while the person was in a duty status
during a period of time in which the person was under lawful orders to be
in a duty status; or

(2) The offense charged has a connection with the military duties
of the person. For purposes of this subsection, the required connection
with military duties is conclusively established for offenses for which
there is no equivalent offense in the general criminal laws of this state
and for offenses involving wrongful use, possession, manufacture,
distribution or introduction of a substance described in ORS 398.391 (2)
in violation of ORS 398.391. [1961 c.454 §152; 1975 c.719 §30; 1999 c.157
§6; 2005 c.512 §26] Any person subject to this chapter who:

(1) Commits an offense punishable by this chapter, or aids, abets,
counsels, commands or procures its commission; or

(2) Causes an act to be done which if directly performed by the
person would be punishable by this chapter;is a principal. [1961 c.454 §153] Any person subject to this chapter
who, knowing that an offense punishable by this chapter has been
committed, receives, comforts or assists the offender in order to hinder
or prevent the apprehension, trial or punishment of the offender shall be
punished as a court-martial may direct. [1961 c.454 §154] An accused may be
found guilty of an offense necessarily included in the offense charged or
of an attempt to commit either the offense charged or an offense
necessarily included therein. [1961 c.454 §155] (1) An act done with specific intent to commit an
offense under this chapter, amounting to more than mere preparation and
tending even though failing to effect its commission, is an attempt to
commit that offense.

(2) Any person subject to this chapter who attempts to commit any
offense punishable by this chapter shall be punished as a court-martial
may direct, unless otherwise specifically prescribed.

(3) Any person 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. [1961 c.454 §156] Any person subject to this chapter who
conspires with any other person to commit an offense under this chapter
shall, if one or more of the conspirators does an act to effect the
object of the conspiracy, be punished as a court-martial may direct.
[1961 c.454 §157] (1) Any person subject to this chapter who
solicits or advises another or others to desert in violation of ORS
398.320 or mutiny in violation of ORS 398.338 shall be punished as a
court-martial may direct.

(2) Any person subject to this chapter who solicits or advises
another or others to commit an act of misbehavior before the enemy in
violation of ORS 398.348 or sedition in violation of ORS 398.338 shall be
punished as a court-martial may direct. [1961 c.454 §158] Any
person who:

(1) Procures the person’s own enlistment or appointment in the
organized militia by knowingly false representation or deliberate
concealment as to qualifications for that enlistment or appointment and
receives pay or allowances thereunder; or

(2) Procures the person’s own separation from the organized militia
by knowingly false representation or deliberate concealment as to
eligibility for that separation;shall be punished as a court-martial may direct. [1961 c.454 §159] Any person
subject to this chapter who effects an enlistment or appointment in or a
separation from the organized militia of any person who is known to the
person to be ineligible for that enlistment, appointment or separation
because it is prohibited by law, regulation or order shall be punished as
a court-martial may direct. [1961 c.454 §160] (1) Any member of the organized militia who:

(a) Without authority goes or remains absent from the unit,
organization or place of duty of the member with intent to remain away
therefrom permanently;

(b) Quits the unit, organization or place of duty of the member
with intent to avoid hazardous duty or to shirk important service; or

(c) Without being regularly separated from one of the forces of the
organized militia enlists or accepts an appointment in the same or
another one of the forces of the organized militia without fully
disclosing the fact that the member has not been regularly separated;is guilty of desertion.

(2) Any commissioned officer of the organized militia who, after
tender of resignation and before notice of its acceptance, quits the post
or proper duties of the officer without leave and with intent to remain
away therefrom permanently is guilty of desertion.

(3) Any person found guilty of desertion or attempt to desert shall
be punished as a court-martial may direct. [1961 c.454 §161] Any person subject to this chapter
who, without authority:

(1) Fails to go to the appointed place of duty of the person at the
time prescribed;

(2) Goes from that place; or

(3) Is absent from the unit, organization or place of duty at which
the person is required to be at the time prescribed;shall be punished as a court-martial may direct. [1961 c.454 §162] Any person subject to this
chapter who through neglect or design misses the movement of a ship,
aircraft or unit with which the person is required in the course of duty
to move shall be punished as a court-martial may direct. [1961 c.454 §163] Any commissioned officer subject
to this chapter who uses contemptuous words against the President, the
Governor or the legislature of this state, or the Governor or legislature
of any state, territory, commonwealth or possession wherein that officer
may be serving, shall be punished as a court-martial may direct. [1961
c.454 §164; 1985 c.682 §47] Any person
subject to this chapter who behaves with disrespect toward a superior
commissioned officer shall be punished as a court-martial may direct.
[1961 c.454 §165]Any person subject to this chapter who:

(1) Strikes a superior commissioned officer or draws or lifts up
any weapon or offers any violence against the officer while the officer
is in the execution of office; or

(2) Willfully disobeys a lawful command of a superior commissioned
officer;shall be punished as a court-martial may direct. [1961 c.454 §166]Any warrant officer or enlisted member who:

(1) Strikes or assaults a warrant officer or noncommissioned
officer while that officer is in the execution of office;

(2) Willfully disobeys the lawful order of a warrant officer or
noncommissioned officer; or

(3) 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 office;shall be punished as a court-martial may direct. [1961 c.454 §167] Any person subject to
this chapter who:

(1) Violates or fails to obey any lawful general order or
regulation;

(2) Having knowledge of any other lawful order issued by a member
of the organized militia, which it is the duty of the person to obey,
fails to obey the order; or

(3) Is derelict in the performance of duties;shall be punished as a court-martial may direct. [1961 c.454 §168] Any person subject to this
chapter who is guilty of cruelty toward, or oppression or maltreatment
of, any person subject to the orders of the person shall be punished as a
court-martial may direct. [1961 c.454 §169] (1) Any person subject to this chapter
who:

(a) With intent to usurp or override lawful military authority
refuses, in concert with another, to obey orders or otherwise do the
person’s duty or creates any violence or disturbance is guilty of mutiny;

(b) 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;

(c) Fails to do the utmost to prevent and suppress a mutiny or
sedition being committed in the presence of the person, or fails to take
all reasonable means to inform a superior commissioned officer or
commanding officer of a mutiny or sedition which the person knows or has
reason to believe is taking place, is guilty of a failure to suppress or
report a mutiny or sedition.

(2) 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. [1961 c.454 §170] Any person subject
to this chapter who resists apprehension or breaks arrest or who escapes
from custody or confinement shall be punished as a court-martial may
direct. [1961 c.454 §171; 1985 c.682 §48] Any person
subject to this chapter who, without proper authority, releases any
prisoner committed to the charge of the person, or who through neglect or
design suffers any such prisoner to escape, shall be punished as a
court-martial may direct, whether or not the prisoner was committed in
strict compliance with law. [1961 c.454 §172] Any person subject to this chapter who,
except as provided by law or regulation, apprehends, arrests or confines
any person shall be punished as a court-martial may direct. [1961 c.454
§173] Any person subject to
this chapter who:

(1) Is responsible for unnecessary delay in the disposition of any
case of a person accused of an offense under this chapter; or

(2) 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. [1961 c.454 §174] Any person subject to this
chapter who before or in the presence of the enemy:

(1) Runs away;

(2) Shamefully abandons, surrenders or delivers up any command,
unit, place or military property which it is the duty of the person to
defend;

(3) Through disobedience, neglect or intentional misconduct
endangers the safety of any such command, unit, place or military
property;

(4) Casts away arms or ammunition;

(5) Is guilty of cowardly conduct;

(6) Quits a place of duty to plunder or pillage;

(7) Causes false alarms in any command, unit or place under control
of the Armed Forces of the United States or the organized militia;

(8) Willfully fails to do the utmost to encounter, engage, capture
or destroy any enemy troops, combatants, vessels, aircraft or any other
thing, which it is the duty of the person so to encounter, engage,
capture or destroy; or

(9) Does not afford all practicable relief and assistance to any
troops, combatants, vessels or aircraft of the Armed Forces belonging to
the United States or their allies, to this state or to any other state,
when engaged in battle;shall be punished as a court-martial may direct. [1961 c.454 §175] Any person subject to
this chapter who compels or attempts to compel the commander of any force
of the organized militia of this state or of any other state to give it
up to an enemy or to abandon it, or who strikes the colors or flag to any
enemy without proper authority, shall be punished as a court-martial may
direct. [1961 c.454 §176] Any person subject to this
chapter who in time of war discloses the parole or countersign to any
person not entitled to receive it, or who gives to another who is
entitled to receive and use the parole or countersign a different parole
or countersign from that which, to the knowledge of the person, the
person was authorized and required to give, shall be punished as a
court-martial may direct. [1961 c.454 §177] Any person subject to this chapter who
forces a safeguard shall be punished as a court-martial may direct. [1961
c.454 §178] (1) All persons subject to
this chapter shall secure all public property taken from the enemy for
the service of the United States, and shall give notice and turn over to
the proper authority without delay all captured or abandoned property in
their possession, custody or control.

(2) Any person subject to this chapter who:

(a) Fails to carry out the duties prescribed in subsection (1) of
this section;

(b) Buys, sells, trades or in any way deals in or disposes of,
captured or abandoned property, whereby the person receives or expects
any profit, benefit or advantage to self or another directly or
indirectly connected with self; or

(c) Engages in looting or pillaging;shall be punished as a court-martial may direct. [1961 c.454 §179] Any person subject to this chapter who:

(1) Aids, or attempts to aid, the enemy with arms, ammunition,
supplies, money or other things; or

(2) Without proper authority, knowingly harbors or protects or
gives intelligence to, or communicates or corresponds with or holds any
intercourse with the enemy, either directly or indirectly;shall be punished as a court-martial may direct. [1961 c.454 §180] Any person subject to this chapter
who, while in the hands of the enemy in time of war:

(1) For the purpose of securing favorable treatment by the captors
of the person acts without proper authority in a manner contrary to law,
custom or regulation, to the detriment of others of whatever nationality
held by the enemy as civilian or military prisoners; or

(2) While in a position of authority over such persons maltreats
them without justifiable cause;shall be punished as a court-martial may direct. [1961 c.454 §181] Any person subject to this
chapter, who, with intent to deceive, signs any false record, return,
regulation, 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. [1961 c.454 §182]Any person subject to this chapter who, without proper
authority:

(1) Sells or otherwise disposes of;

(2) Willfully or through neglect damages, destroys or loses; or

(3) Willfully or through neglect suffers to be lost, damaged,
destroyed, sold or wrongfully disposed of;any military property of the United States or of the state, shall be
punished as a court-martial may direct. [1961 c.454 §183]Any person subject to this chapter who, while in a duty status,
willfully or recklessly wastes, spoils or otherwise willfully and
wrongfully destroys or damages any property other than military property
of the United States or of the state shall be punished as a court-martial
may direct. [1961 c.454 §184] (1) Any person subject to
this chapter who willfully and wrongfully hazards or suffers to be
hazarded any vessel of the Armed Forces of the United States or of the
organized militia shall be punished as a court-martial may direct.

(2) Any person subject to this chapter who negligently hazards or
suffers to be hazarded any vessel of the Armed Forces of the United
States or of the organized militia shall be punished as a court-martial
may direct. [1961 c.454 §185] Any person subject to this chapter who
operates any vehicle while drunk, or in a reckless or wanton manner,
shall be punished as a court-martial may direct. [1961 c.454 §186; 1975
c.719 §31; 1979 c.744 §18; 1985 c.682 §49] Any person subject to this chapter other
than a sentinel or lookout who is found drunk on duty shall be punished
as a court-martial may direct. [1961 c.454 §187; 1985 c.682 §50]Any sentinel or lookout who is found drunk or sleeping
upon post, or who leaves it before being regularly relieved, shall be
punished as a court-martial may direct. [1985 c.682 §4] Any person subject to this chapter who for the
purpose of avoiding work duty or service in the organized militia:

(1) Feigns illness, physical disablement, mental lapse or
derangement; or

(2) Intentionally inflicts self-injury;shall be punished as a court-martial may direct. [1961 c.454 §189] Any person subject to this chapter
who causes or participates in any riot or breach of the peace shall be
punished as a court-martial may direct. [1961 c.454 §190] (1) Any person subject to this chapter 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:

(a) With intent permanently to deprive or defraud another person of
the use and benefit of property or to appropriate it for personal use or
to the use of any person other than the owner, steals that property and
is guilty of larceny; or

(b) With intent temporarily to deprive or defraud another person of
the use and benefit of property or to appropriate it for personal use or
to the use of any person other than the owner, is guilty of wrongful
appropriation.

(2) Any person found guilty of larceny or wrongful appropriation
shall be punished as a court-martial may direct. [1961 c.454 §194; 1975
c.719 §32; 1985 c.682 §51] Any person subject to this chapter who in a
judicial proceeding or in a course of justice conducted under this
chapter willfully and corruptly gives, upon a lawful oath or in any form
allowed by law to be substituted for an oath, any false testimony
material to the issue or matter of inquiry is guilty of perjury and shall
be punished as a court-martial may direct. [1961 c.454 §192] Any person subject to this
chapter:

(1) Who, knowing it to be false or fraudulent:

(a) Makes any claim against the United States, the state or any
officer thereof; or

(b) Presents to any person in the civil or military service
thereof, for approval or payment, any claim against the United States,
the state, or any officer thereof;

(2) Who, for the purpose of obtaining the approval, allowance, or
payment of any claim against the United States, the state or any officer
thereof:

(a) Makes or uses any writing or other paper knowing it to contain
any false or fraudulent statements;

(b) Makes any oath to any fact or to any writing or other paper
knowing the oath to be false; or

(c) Forges or counterfeits any signature upon any writing or other
paper, or uses any such signature knowing it to be forged or
counterfeited;

(3) Who, having charge, possession, custody or control of any money
or other property of the United States or the state, furnished or
intended for the Armed Forces of the United States or the organized
militia or any force thereof, knowingly delivers to any person having
authority to receive it, any amount thereof less than that for which the
person receives a certificate or receipt; or

(4) Who, being authorized to make or deliver any paper certifying
the receipt of any property of the United States or the state, furnished
or intended for the Armed Forces of the United States or the organized
militia or any force thereof, makes or delivers to any person such
writing without having full knowledge of the truth of the statements
therein contained and with intent to defraud the United States or the
state;shall upon conviction, be punished as a court-martial may direct. [1961
c.454 §193] (1) Any person subject to this
chapter who wrongfully uses, possesses, manufactures, distributes or
introduces into an installation, vessel, vehicle or aircraft used by or
under the control of the organized militia a substance described in
subsection (2) of this section shall be punished as a court-martial may
direct.

(2) The substances referred to in subsection (1) of this section
are the following:

(a) Opium, heroin, cocaine, amphetamine, lysergic acid
diethylamide, methamphetamine, phencyclidine, barbituric acid and
marijuana and any compound or derivative of any such substance.

(b) Any other substance not specified in paragraph (a) of this
subsection that is listed in schedules I to V of section 202 of the
Controlled Substances Act (21 U.S.C. 812), as modified under ORS 475.035.
[1985 c.682 §3] Any person subject to
this chapter 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. [1985 c.682 §5] Any person
subject to this chapter who uses provoking or reproachful words or
gestures toward any other person subject to this chapter shall be
punished as a court-martial may direct. [1985 c.682 §6] (1) Any person subject to
this chapter who makes, draws, utters or delivers any check, draft or
order for the payment of money upon any bank or other depository, knowing
at the time that the maker or drawer has not or will not have sufficient
funds in, or credit with, the bank or other depository for the payment of
that check, draft or order in full upon its presentment shall be punished
as a court-martial may direct when the person makes, draws or utters the
check, draft or order:

(a) For the procurement of any article or thing of value, with
intent to defraud; or

(b) For the payment of any past due obligation or for any other
purpose, with intent to deceive.

(2) The making, drawing, uttering or delivering by a maker or
drawer of a check, draft or order for which payment is refused by the
drawee because of insufficient funds of the maker or drawer in the
drawee’s possession or control is prima facie evidence of an intent to
defraud or deceive and of a knowledge of insufficient funds 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.

(3) As used 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. [1985 c.682 §7] Any person subject to this
chapter 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. [1985 c.682 §8] Any commissioned officer who is
convicted of conduct unbecoming an officer shall be punished as a
court-martial may direct. [1985 c.682 §9]Though not specifically mentioned in
this chapter, all disorders and neglects to the prejudice of good order
and discipline in the organized militia, of which persons subject to this
code 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. However,
cognizance shall not be taken of, and jurisdiction may not extend to, the
crimes of murder, manslaughter, rape, robbery, maiming, sodomy, arson,
extortion, aggravated assault, burglary or housebreaking, unless the
State of Oregon does not have jurisdiction to prosecute the offense under
the general criminal laws of this state or, if the State of Oregon has
such jurisdiction, chooses not to exercise that jurisdiction. [1985 c.682
§10; 1999 c.157 §7]MISCELLANEOUS PROVISIONS (1) Courts of inquiry to investigate any
matter may be convened by the Governor or by any other person designated
by the Governor for that purpose, whether or not the persons involved
have requested such an inquiry.

(2) 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.

(3) Any person subject to this chapter whose conduct is subject to
inquiry shall be designated as a party. Any person subject to this
chapter or employed in the Oregon Military Department, who has a direct
interest in the subject of inquiry has the right to be designated as a
party upon request of the court. Any person designated as a party shall
be given due notice and has the right to be present, to be represented by
counsel, to cross-examine witnesses and to introduce evidence.

(4) Members of a court of inquiry may be challenged by a party, but
only for cause stated to the court.

(5) The members, counsel, the reporter and interpreters of courts
of inquiry shall take an oath of affirmation to faithfully perform their
duties.

(6) Witnesses may be summoned to appear and testify and be examined
before courts of inquiry, as provided for courts-martial.

(7) Courts of inquiry shall make findings of fact but may not
express opinions or make recommendations unless required to do so by the
convening authority.

(8) Each court of inquiry shall keep a record of its proceedings,
which shall be authenticated by the signatures of the president and
counsel for the court and forwarded to the convening authority. If the
record cannot be authenticated by the president, it shall be signed by a
member in lieu of the president. If the record cannot be authenticated by
the counsel for the court, it shall be signed by a member in lieu of the
counsel. [1961 c.454 §197; 1989 c.360 §10] (1) Whenever complaint is
made to any commanding officer that willful damage has been done to the
property of any person or that the property of any person has been
wrongfully taken by members of the organized militia, the officer may,
subject to such military department regulations as the Governor may
prescribe, convene a board to investigate the complaint. The board shall
consist of from one to three officers and, for the purpose of that
investigation, it has power to summon witnesses and examine them upon
oath or affirmation, 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 the
officer shall be charged against the pay of the offenders. The order of
the commanding officer directing charges herein authorized is conclusive,
except as provided in subsection (3) of this section, on any disbursing
officer for the payment by the disbursing officer to the injured parties
of the damages so assessed and approved.

(2) 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 paid to the injured parties from the
military fund of the unit or units of the organized militia to which such
offenders belonged.

(3) Any person subject to this chapter who is accused of causing
willful damage to property has the right to be represented by counsel, to
summon witnesses in behalf of the person and to cross-examine those
appearing against the person. The person has the right to appeal to the
next higher commander. [1961 c.454 §201] In the organized militia
not in federal service, the processes and sentences of its courts-martial
shall be executed by the civil officers prescribed by the laws of the
state. Where no provision is made for executing those processes and
sentences, the process or sentence shall be executed by a United States
Marshal or deputy marshal, who shall make a return to the military
officer issuing the process or the court imposing the sentence, pursuant
to section 333 of title 32, United States Code. [1961 c.454 §202] (1) Military courts may issue
all process necessary to carry into effect the powers vested in those
courts. Such courts may issue subpoenas and subpoenas duces tecum and
enforce by attachment attendance of witnesses and production of books and
records, when the courts are sitting within the state and the witnesses,
books and records sought are also so located.

(2) Such process may be issued by summary courts-martial, provost
courts or the president or military judge of other military courts and
may be directed to and may be executed by the marshals of the military
court or any peace officer and shall be in such form as may be prescribed
by military department regulations issued under this chapter.

(3) All officers to whom such process may be so directed shall
execute them and make return of their acts thereunder according to the
requirements of those documents. Except as otherwise specifically
provided in this chapter, no such officer may demand or require payment
of any fee or charge for receiving, executing or returning such a process
or for any service in connection therewith. [1961 c.454 §203; 1975 c.719
§33; 1981 c.178 §13] Fines may be paid
to a military court or to an officer executing its process. The amount of
such a fine may be noted upon any state roll or account for pay of the
delinquent and deducted from any pay or allowance due or thereafter to
become due the delinquent, until the fine is liquidated. Any sum so
deducted shall be turned in to the military court which imposed the fine
and shall be paid over by the officer receiving it in like manner as
provided for other fines and moneys collected under a sentence of a
summary court-martial. Notwithstanding any other law, a fine or penalty
imposed by a military court upon an officer or enlisted person shall be
paid by the officer collecting it within 30 days to the State Treasurer
and shall be deposited in the General Fund in the State Treasury, to be
available for general governmental expenses. [1961 c.454 §204; 1963 c.169
§7] No action or
proceeding may be prosecuted against the convening authority or a member
of a military court or officer or person acting under its authority or
reviewing its proceedings because of the approval, imposition, or
execution of any sentence or the imposition or collection of a fine or
penalty, or the execution of any process of a military court. [1961 c.454
§205; 1981 c.178 §14] The jurisdiction of the
military courts and boards established by this chapter shall be presumed
and the burden of proof rests on any person seeking to oust those courts
or boards of jurisdiction in any action or proceeding. [1961 c.454 §206] The Governor may
delegate any authority vested in the Governor under this chapter, and may
provide for the subdelegation of any such authority, except with respect
to the power given the Governor by ORS 398.112, 398.118 and 398.126.
[1961 c.454 §207; 1985 c.682 §52; 2005 c.512 §40] The Adjutant General shall have
authority to pay all expenses incurred in the administration of state
military justice from any fund appropriated to the Oregon Military
Department. [1985 c.682 §12; 1989 c.360 §11] (1) There is
established within the Oregon Military Department the Armed Forces Court
of Appeals for Oregon.

(2) The court shall have jurisdiction over appeals properly brought
under regulations adopted by the Adjutant General.

(3) The Adjutant General shall appoint three persons who shall
serve as judges on the court. The persons appointed shall serve without
compensation.

(4) One person shall be Chief Judge and two persons shall be
Associate Judges. The Chief Judge shall be selected by the three judges.
The selection shall be subject to the approval of the Adjutant General.

(5)(a) Appointments shall be for a term of six years, except that
the initial appointments of the judges shall be for the following terms:

(A) One judge shall serve a two-year term.

(B) One judge shall serve a four-year term.

(C) One judge shall serve a six-year term.

(b) The term of office of any successor judges shall be six years,
but any judge appointed to fill a vacancy occurring prior to the
expiration of the term for which the judge’s predecessor was appointed
shall be appointed only for the unexpired term of the predecessor.

(c) Any person appointed to a full or partial term on the court,
unless otherwise disqualified, shall be eligible for reappointment.

(6) A person is eligible for appointment to the court if the person:

(a) Is a member of the Oregon State Bar and admitted to practice
before the highest court of this state;

(b) Is a former commissioned officer of the Armed Forces of the
United States (regular, reserve or National Guard), or a former or
current member of the Oregon State Defense Force; and

(c) Has at least:

(A) Five years’ experience as an officer in the Judge Advocate
General’s Corps; or

(B) Fifteen years’ experience in the Judge Advocate Branch of the
Oregon State Defense Force.

(7) Judges of the court may be removed by the Adjutant General,
upon notice and hearing, for neglect of duty or malfeasance in office or
for mental or physical disability, but for no other cause.

(8) If a judge of the court is temporarily unable to perform the
judge’s duties due to mental or physical disability, the Adjutant General
may designate another person eligible for appointment to the court to
fill the office for the period of disability.

(9) The Oregon Military Department shall be responsible for
reimbursement and funding of all usual travel and per diem expenses of
the judges.

(10) The Adjutant General shall adopt regulations to govern
appellate procedure before the court. The regulations shall be
substantially similar to the provisions for post-trial procedure and
review of courts-martial under the Uniform Code of Military Justice.
[2005 c.512 §29]

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