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| PRIOR PRINTER'S NO. 2019 | PRINTER'S NO. 2386 |
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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY M. WHITE, BAKER, PIPPY, GREENLEAF, FONTANA, STACK, ARGALL, SOLOBAY, ERICKSON, WAUGH, MENSCH, BRUBAKER AND EARLL, MARCH 16, 2012 |
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| SENATOR CORMAN, APPROPRIATIONS, RE-REPORTED AS AMENDED, SEPTEMBER 24, 2012 |
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| AN ACT |
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1 | Amending Title 51 (Military Affairs) of the Pennsylvania |
2 | Consolidated Statutes, repealing and adding sections related |
3 | to military justice; and establishing the State Military |
4 | Justice Fund. |
5 | The General Assembly of the Commonwealth of Pennsylvania |
6 | hereby enacts as follows: |
7 | Section 1. Chapter 51 heading, sections 5100, 5101, 5102, |
8 | 5103, 5104, 5105 and 5106, Chapter 52 heading, sections 5201, |
9 | 5202, 5203, 5204, 5205, 5206, 5207 and 5208, Chapter 53 heading, |
10 | section 5301, Chapter 54 heading, sections 5401, 5402, 5403, |
11 | 5404, 5405, 5406, 5407 and 5408, Chapter 55 heading, sections |
12 | 5501, 5502, 5503, 5504, 5505, 5506, 5507 and 5508, Chapter 56 |
13 | heading, sections 5601, 5602, 5603, 5604, 5605 and 5606, Chapter |
14 | 57 heading, sections 5701, 5702, 5703, 5704, 5705, 5706, 5707, |
15 | 5708, 5709, 5710, 5711, 5712, 5713, 5714, 5715, 5716, 5717, 5718 |
16 | and 5719, Chapter 58 heading, sections 5801, 5802, 5803 and |
17 | 5804, Chapter 59 heading, sections 5901, 5902, 5903, 5904, 5905, |
18 | 5906, 5907, 5908, 5909, 5910, 5911, 5912, 5913, 5914, 5915 and |
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1 | 5916, Chapter 60 heading, sections 6001, 6002, 6003, 6004, 6005, |
2 | 6006, 6007, 6008, 6009, 6010, 6011, 6012, 6013, 6014, 6015, |
3 | 6016, 6017, 6018, 6019, 6020, 6021, 6022, 6023, 6024, 6025, |
4 | 6026, 6027, 6028, 6029, 6030, 6031, 6032, 6033, 6034, 6035, |
5 | 6036, 6037, 6038, 6039, 6040, 6041, 6042, 6043, 6044, 6045, 6046 |
6 | and 6047, Chapter 61 heading and sections 6101, 6102, 6103, |
7 | 6104, 6105, 6106, 6107, 6108, 6109, 6110, 6111 and 6112 of Title |
8 | 51 of the Pennsylvania Consolidated Statutes are repealed: |
9 | [CHAPTER 51 |
10 | GENERAL PROVISIONS |
11 | § 5100. Short title of part. |
12 | This part shall be known and may be cited as the |
13 | "Pennsylvania Code of Military Justice." |
14 | § 5101. Definitions. |
15 | The following words and phrases when used in this part shall |
16 | have, unless the context clearly indicates otherwise, the |
17 | meanings given to them in this section: |
18 | "Accuser." A person who signs and swears to charges, any |
19 | person who directs that charges nominally be signed and sworn to |
20 | by another, or any person who has an interest other than an |
21 | official interest in the prosecution of the accused. |
22 | "Active State duty." Full-time duty in the active military |
23 | service of the Commonwealth under an order of the Governor, or |
24 | by a superior commissioned officer pursuant to law. It includes |
25 | travel to and from such duty. |
26 | "Adjutant General." The Adjutant General of the Commonwealth |
27 | of Pennsylvania. |
28 | "Convening authority." Includes, in addition to the person |
29 | who convened the court, a commissioned officer commanding for |
30 | the time being, or a successor in command. |
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1 | "Duty status." Includes any periods of drill, annual field |
2 | training, active State duty and such other training, and service |
3 | as may be required under State or Federal laws, regulations or |
4 | orders, and includes travel to and from such duty. |
5 | "Enemy." Includes, for the purposes of the punitive |
6 | provisions of this part, not only the organized forces of a |
7 | hostile nation in time of war but also any hostile body the |
8 | State military forces may be opposing, such as looters, a riot, |
9 | a rebellious mob or band of renegades or outlaws. |
10 | "Enlisted person." A person in an enlisted grade. |
11 | "Federal service." Periods of active duty other than active |
12 | State duty, but excludes active duty for training, active duty |
13 | for periods of less than 30 days, and active duty for the |
14 | purpose of attending service schools. |
15 | "Grade." A step or degree, in a graduated scale of office or |
16 | military rank, that is established and designated as a grade by |
17 | law or regulation. |
18 | "May." Is used in a permissive sense. The words "no person |
19 | may............." means that no person is required, authorized, |
20 | or permitted to do the act prescribed. |
21 | "Military." Any or all of the armed forces. |
22 | "Military court." A court-martial, a court of inquiry, or a |
23 | provost court. |
24 | "Military judge." An official of a general or special court- |
25 | martial appointed in accordance with section 5505 (relating to |
26 | military judge of a general or special court-martial). |
27 | "Officer." Commissioned or warrant officer. |
28 | "Rank." The order of precedence among members of the State |
29 | military forces. |
30 | "State Judge Advocate." The commissioned officer responsible |
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1 | for supervising the administration of the military justice in |
2 | the State military forces. He shall be the military staff judge |
3 | advocate to the Governor. |
4 | "Superior commissioned officer." A commissioned officer |
5 | superior in rank and command. |
6 | § 5102. Persons subject to part. |
7 | This part applies to all members of the State military forces |
8 | who are not in Federal service. |
9 | § 5103. Jurisdiction to try certain personnel. |
10 | (a) Discharge obtained fraudulently.--Each person subject to |
11 | this part discharged from the State military forces who is later |
12 | charged with having fraudulently obtained his discharge shall |
13 | be, subject to section 5708 (relating to statute of |
14 | limitations), subject to trial by court-martial on said charge |
15 | and shall after apprehension be subject to this part while in |
16 | the custody of the military for such trial. Upon conviction of |
17 | said charge he shall be subject to trial by court-martial for |
18 | all offenses under this part committed before the fraudulent |
19 | discharge. |
20 | (b) Deserters.--No person subject to this part who has |
21 | deserted from the State military forces shall be relieved from |
22 | amenability to the jurisdiction of this part by virtue of a |
23 | separation from any subsequent period of service. |
24 | § 5104. Dismissal of commissioned officer. |
25 | (a) Court-martial proceedings.--Any commissioned officer, |
26 | subject to this part dismissed by order of the Governor, may |
27 | make a written application for trial by court-martial, setting |
28 | forth, under oath, that he has been wrongfully dismissed. In |
29 | such event, the Governor, as soon as practicable, shall convene |
30 | a general court-martial to try such officer on the charges on |
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1 | which he was dismissed. A court-martial so convened shall have |
2 | jurisdiction to try the dismissed officer on such charge, and he |
3 | shall be considered to have waived the right to plead any |
4 | statute of limitations applicable to any offense with which he |
5 | is charged. The court-martial may, as part of its sentence, |
6 | adjudge the affirmance of the dismissal, but if the court- |
7 | martial acquits the accused or if the sentence adjudged, as |
8 | finally approved or affirmed, does not include dismissal, the |
9 | Adjutant General shall substitute for the dismissal ordered by |
10 | the Governor a form of discharge authorized for administrative |
11 | issue. |
12 | (b) Failure to convene court-martial.--If the Governor fails |
13 | to convene a general court-martial within six months from the |
14 | presentation of an application for trial under this section, the |
15 | Adjutant General shall substitute for the dismissal ordered by |
16 | the Governor a form of discharge authorized for administrative |
17 | issue. |
18 | § 5105. Territorial applicability. |
19 | (a) General rule.--This part applies throughout this |
20 | Commonwealth. It also applies to all persons otherwise subject |
21 | to this part while they are serving outside this Commonwealth, |
22 | and while they are going to and returning from such service |
23 | outside this Commonwealth, in the same manner and to the same |
24 | extent as if they were serving inside this Commonwealth. |
25 | (b) Location of proceedings.--Courts-martial and courts of |
26 | inquiry may be convened and held in units of the State military |
27 | forces while those units are serving outside this Commonwealth |
28 | with the same jurisdiction and powers as to persons subject to |
29 | this part as if the proceedings were held inside this |
30 | Commonwealth, and persons subject to this part accused of |
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1 | committing offenses outside this Commonwealth shall be subject |
2 | to trial and punishment either inside or outside this |
3 | Commonwealth. |
4 | § 5106. Judge advocates and legal officers. |
5 | (a) Appointment of State Judge Advocate.--The Governor, on |
6 | the recommendation of the Adjutant General, shall appoint a |
7 | judge advocate officer of the State military forces as State |
8 | Judge Advocate. To be eligible for appointment, such officer |
9 | shall have been a member of the bar of the Supreme Court of |
10 | Pennsylvania for at least five years. |
11 | (b) Appointment of assistants.--The Adjutant General may |
12 | appoint as many assistant State judge advocates as he considers |
13 | necessary. To be eligible for appointment, assistant State judge |
14 | advocates must be judge advocate officers of the State military |
15 | forces and members of the bar of the Supreme Court of |
16 | Pennsylvania. |
17 | (c) Field inspections.--The State Judge Advocate or his |
18 | assistants shall make frequent inspections in the field in |
19 | supervision of the administration of military justice. |
20 | (d) Direct communications.--Convening authorities shall at |
21 | all times communicate directly with their staff judge advocates |
22 | or legal officer in matters relating to the administration of |
23 | military justice; and the staff judge advocate or legal officer |
24 | of any command is entitled to communicate directly with the |
25 | staff judge advocate or legal officer of a superior or |
26 | subordinate command, or with the State Judge Advocate. |
27 | (e) Disqualification in case.--No person who has acted as |
28 | member, military judge, trial counsel, assistant trial counsel, |
29 | defense counsel, assistant defense counsel, or investigating |
30 | officer, or who has been a witness for either the prosecution or |
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1 | defense, in any case may later act as staff judge advocate or |
2 | legal officer to any reviewing authority upon the same case. |
3 | CHAPTER 52 |
4 | APPREHENSION AND RESTRAINT |
5 | § 5201. Apprehension. |
6 | (a) Definition.--Apprehension is the taking of a person |
7 | subject to this part into custody. |
8 | (b) Persons authorized to apprehend.--Any person authorized |
9 | by this part, or by regulations issued under it, and any peace |
10 | officer authorized by law, may apprehend persons subject to this |
11 | part upon reasonable belief that an offense under this part has |
12 | been committed and that the person apprehended committed it. |
13 | (c) Authority of officers.--Commissioned officers, warrant |
14 | officers, petty officers and noncommissioned officers have |
15 | authority to quell quarrels, frays, and disorders among persons |
16 | subject to this part and to apprehend persons subject to this |
17 | part who take part therein. |
18 | § 5202. Apprehension of persons absent without leave. |
19 | Any civil officer having authority to apprehend offenders |
20 | under the laws of the United States or of a state, territory, |
21 | commonwealth or possession, or of the District of Columbia, or |
22 | any military officer subject to this part who has been |
23 | authorized by the Governor by regulation may summarily apprehend |
24 | any person subject to this part absent without leave from the |
25 | State military forces and deliver him into the custody of the |
26 | State military forces. |
27 | § 5203. Imposition of restraint. |
28 | (a) Definitions.--Arrest is the restraint of a person |
29 | subject to this part by an order, not imposed as a punishment |
30 | for an offense, directing him to remain within certain specified |
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1 | limits. Confinement is the physical restraint of a person |
2 | subject to this part. |
3 | (b) Enlisted personnel.--An enlisted person subject to this |
4 | part may be ordered into arrest or confinement by any |
5 | commissioned officer by an order, oral or written, delivered in |
6 | person or through other persons subject to this part or through |
7 | any person authorized by this part to apprehend persons. A |
8 | commanding officer may authorize warrant officers, petty |
9 | officers, or noncommissioned officers to order enlisted members |
10 | of his command or subject to his authority into arrest or |
11 | confinement. |
12 | (c) Commissioned and warrant officers.--A commissioned |
13 | officer or a warrant officer subject to this part may be ordered |
14 | apprehended or into arrest or confinement only by a commanding |
15 | officer to whose authority he is subject, by an order, oral or |
16 | written, delivered in person or by another commissioned officer. |
17 | The authority to order such persons apprehended or into arrest |
18 | or confinement may not be delegated. |
19 | (d) Probable cause.--No person subject to this part may be |
20 | ordered apprehended or into arrest or confinement except for |
21 | probable cause. |
22 | (e) Construction of section.--This section does not limit |
23 | the authority of persons authorized to apprehend offenders to |
24 | secure the custody of an alleged offender until proper authority |
25 | may be notified. |
26 | § 5204. Restraint of persons charged with offenses. |
27 | (a) General rule.--Any person subject to this part charged |
28 | with an offense under this part may be ordered into arrest or |
29 | confinement. When any person subject to this part is placed in |
30 | arrest or confinement prior to trial, immediate steps shall be |
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1 | taken to inform him of the specific wrong of which he is |
2 | accused, to try him, or to dismiss the charges and release him. |
3 | (b) Issuing warrants to peace officers.--The convening |
4 | authority of any court-martial shall have the power to issue |
5 | warrants of apprehension directed to the sheriff or any |
6 | constable or peace officer within the proper county to apprehend |
7 | persons subject to this part charged with an offense under this |
8 | part and to deliver such persons into the custody of the State |
9 | military forces. |
10 | (c) Admission to bail.--In cases where the unit of which the |
11 | accused is a member is not in a status of active State duty or |
12 | engaged in annual field training, such accused, if apprehended |
13 | or ordered into confinement prior to or during trial by a |
14 | military court, may be admitted to bail by the officer |
15 | exercising special court-martial jurisdiction over him or by a |
16 | superior commanding officer, or the Adjutant General. |
17 | § 5205. Confinement in jails. |
18 | Persons subject to this part confined other than in a |
19 | military installation, whether before, during or after trial by |
20 | a military court, shall be confined in municipal, county, or |
21 | State places of confinement. |
22 | § 5206. Reports and receiving of prisoners. |
23 | (a) Duty to receive prisoner.--No provost marshal, commander |
24 | of a guard, warden, keeper, or officer of a municipal, county, |
25 | or State place of confinement may refuse to receive or keep any |
26 | prisoner subject to this part, committed to his charge, when the |
27 | committing person furnishes a statement, signed by him of the |
28 | offense charged against the prisoner. |
29 | (b) Report of commitment.--Every commander of a guard, |
30 | warden, keeper, or officer of a municipal, county, or State |
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1 | place of confinement to whose charge a prisoner subject to this |
2 | part, is committed shall, within 24 hours after that commitment |
3 | report to the commanding officer of the prisoner, the name of |
4 | the prisoner, the offense charged against him, and the name of |
5 | the person who ordered or authorized the commitment. |
6 | § 5207. Punishment prohibited before trial. |
7 | Subject to section 5803 (relating to effective date of |
8 | sentences), no person subject to this part, while being held for |
9 | trial or the result of trial, may be subjected to punishment or |
10 | penalty other than arrest or confinement upon the charges |
11 | pending against him, nor shall the arrest or confinement imposed |
12 | upon him be any more rigorous than the circumstances require to |
13 | insure his presence. He may be subjected to minor punishment |
14 | during that period for other infractions of discipline. |
15 | § 5208. Delivery of offenders to civil authorities. |
16 | (a) General rule.--Under such regulations as may be |
17 | prescribed under this part, a person subject to this part on |
18 | active State duty, accused of an offense against civil |
19 | authority, may be delivered, upon request of such civil |
20 | authority, to such civil authority for trial. |
21 | (b) Effect on sentence of court-martial.--When delivery |
22 | under this section is made to any civil authority of a person |
23 | undergoing sentence of a court-martial, the delivery, if |
24 | followed by conviction in a civil tribunal, interrupts the |
25 | execution of the sentence of the court-martial. The offender |
26 | after having answered to the civil authorities for his offense, |
27 | shall, upon the request of competent military authority, be |
28 | returned to military custody for the completion of such sentence |
29 | of the court-martial. |
30 | CHAPTER 53 |
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1 | NONJUDICIAL PUNISHMENT |
2 | § 5301. Commanding officer's nonjudicial punishment. |
3 | (a) General rule.--Under such regulations as the Governor |
4 | may prescribe, any commanding officer may, in addition to or in |
5 | lieu of admonition or reprimand, impose one of the following |
6 | disciplinary punishments for minor offenses without the |
7 | intervention of a court-martial: |
8 | (1) Upon an officer of his command: |
9 | (i) withholding of privileges for not more than two |
10 | consecutive weeks; |
11 | (ii) restriction to certain specified limits, with |
12 | or without suspension from duty, for not more than two |
13 | consecutive weeks; or |
14 | (iii) if imposed by the Governor, the commanding |
15 | officer of a division or a wing or a separate brigade or |
16 | a similar organization, a fine or forfeiture of pay and |
17 | allowances of not more than $100. |
18 | (2) Upon other military personnel of his command: |
19 | (i) withholding of privileges for not more than two |
20 | consecutive weeks; |
21 | (ii) restriction to certain specified limits, with |
22 | or without suspension from duty, for not more than two |
23 | consecutive weeks; |
24 | (iii) extra duties for not more than 14 days, which |
25 | need not be consecutive, and for not more than two hours |
26 | per day, holidays included; |
27 | (iv) reduction to next inferior grade if the grade |
28 | from which demoted was established by the command or an |
29 | equivalent or lower command; or |
30 | (v) if imposed by an officer exercising special |
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1 | court-martial jurisdiction over the offender, a fine or |
2 | forfeiture of pay and allowances of not more than $10. |
3 | (b) Limitations imposed by Governor.--The Governor may, by |
4 | regulation, place limitations on the powers granted by this |
5 | section with respect to the kind and amount of punishment |
6 | authorized and the categories of commanding officers authorized |
7 | to exercise those powers. |
8 | (c) Appeal from punishment.--A person punished under this |
9 | section who considers his punishment unjust or disproportionate |
10 | to the offense may, through the proper channel, appeal to the |
11 | next superior authority. The appeal shall be promptly forwarded |
12 | and decided. The officer who imposes the punishment, his |
13 | successor in command, and superior authority may suspend, set |
14 | aside, or remit any part or amount of the punishment and restore |
15 | all rights, privileges and property affected. |
16 | (d) Additional court-martial proceedings.--The imposition |
17 | and enforcement of disciplinary punishment under this section |
18 | for any act or omission is not a bar to trial by court-martial |
19 | for a serious crime or offense growing out of the same act or |
20 | omission, and not properly punishable under this section. The |
21 | fact that a disciplinary punishment has been enforced may be |
22 | shown by the accused upon trial, and when so shown shall be |
23 | considered in determining the measure of punishment to be |
24 | adjudged in the event of a finding of guilty. |
25 | (e) Application of forfeiture.--Whenever a punishment of |
26 | forfeiture of pay and allowances is imposed under this section, |
27 | the forfeiture may apply to pay or allowances accruing on or |
28 | after the date that punishment is imposed and to any pay and |
29 | allowances accrued before that date. |
30 | (f) Court-martial in lieu of punishment.--Punishment may not |
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1 | be imposed upon any member of the State military forces under |
2 | this chapter if the member has, before the imposition of such |
3 | punishment, demanded trial by court-martial in lieu of such |
4 | punishment. |
5 | CHAPTER 54 |
6 | COURTS-MARTIAL JURISDICTION |
7 | § 5401. Courts-martial classified. |
8 | The three kinds of courts-martial in the State military |
9 | forces are: |
10 | (1) General courts-martial, consisting of: |
11 | (i) a military judge and not less than five members; |
12 | or |
13 | (ii) only a military judge, if before the court is |
14 | assembled the accused, knowing the identity of the |
15 | military judge and after consultation with defense |
16 | counsel, requests in writing a court composed only of a |
17 | military judge and the military judge approves. |
18 | (2) Special courts-martial, consisting of: |
19 | (i) not less than three members; |
20 | (ii) a military judge and not less than three |
21 | members; or |
22 | (iii) only a military judge, if one has been |
23 | detailed to the court, and the accused under the same |
24 | conditions as those prescribed in paragraph (1)(ii) so |
25 | requests. |
26 | (3) Summary courts-martial, consisting of one |
27 | commissioned officer. |
28 | § 5402. Jurisdiction of courts-martial in general. |
29 | Each force of the State military forces has court-martial |
30 | jurisdiction over all persons subject to this part. The exercise |
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1 | of jurisdiction by one force over personnel of another force |
2 | shall be in accordance with regulations prescribed by the |
3 | Governor. |
4 | § 5403. Jurisdiction of general courts-martial. |
5 | Subject to section 5402 (relating to jurisdiction of courts- |
6 | martial in general), general courts-martial have jurisdiction to |
7 | try persons subject to this part for any offense made punishable |
8 | by this part and may, under such limitations as the Governor may |
9 | prescribe, adjudge any of the following punishments: |
10 | (1) A fine of not more than $200. |
11 | (2) Forfeiture of pay and allowances for a period not |
12 | exceeding six months. |
13 | (3) A reprimand. |
14 | (4) Dismissal, dishonorable discharge or bad conduct |
15 | discharge. |
16 | (5) Reduction of a noncommissioned officer to any lower |
17 | enlisted grade. |
18 | (6) Any combination of these punishments. |
19 | § 5404. Jurisdiction of special courts-martial. |
20 | Subject to section 5402 (relating to jurisdiction of courts- |
21 | martial in general), special courts-martial shall have |
22 | jurisdiction to try persons subject to this part, except |
23 | commissioned officers for any offense made punishable by this |
24 | part and may, under such limitations as the Governor may |
25 | prescribe adjudge any of the following punishments: |
26 | (1) A fine of not more than $100. |
27 | (2) Forfeiture of pay and allowances for a period not |
28 | exceeding three months. |
29 | (3) A reprimand. |
30 | (4) Reduction of a noncommissioned officer to any lower |
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1 | enlisted grade. |
2 | (5) A bad conduct discharge. |
3 | (6) Any combination of these punishments. |
4 | § 5405. Jurisdiction of summary courts-martial. |
5 | (a) General rule.--Subject to section 5402 (relating to |
6 | jurisdiction of courts-martial in general), summary courts- |
7 | martial shall have jurisdiction to try enlisted persons subject |
8 | to this part for any offense made punishable by this part and |
9 | may, under such limitations as the Governor may prescribe, |
10 | adjudge any of the following punishments: |
11 | (1) A fine of not more than $25 for a single offense. |
12 | (2) Forfeiture of pay and allowances for a period not |
13 | exceeding one month. |
14 | (3) Reduction to the next lower grade. |
15 | (b) Objection to summary court-martial.--No person with |
16 | respect to whom summary courts-martial have jurisdiction may be |
17 | brought to trial before a summary court-martial if he objects |
18 | thereto. If objection to trial by summary court-martial is made |
19 | by an accused, trial shall be ordered by special or general |
20 | court-martial, as may be appropriate. |
21 | § 5406. Sentences of dismissal, dishonorable discharge or bad |
22 | conduct to be approved by the Governor. |
23 | In the State military forces, no sentence of dismissal, |
24 | dishonorable discharge, or bad conduct discharge shall be |
25 | executed until it is approved by the Governor. |
26 | § 5407. Record of bad conduct discharge proceedings. |
27 | A bad conduct discharge may not be adjudged by any special |
28 | court-martial unless a complete written record of the |
29 | proceedings and testimony before the court has been made. |
30 | § 5408. Confinement instead of fine. |
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1 | In the State military forces, a court-martial may sentence to |
2 | confinement for not more than one day for each dollar of the |
3 | authorized fine. |
4 | CHAPTER 55 |
5 | APPOINTMENT AND COMPOSITION OF |
6 | COURTS-MARTIAL |
7 | § 5501. Who may convene general courts-martial. |
8 | (a) General rule.--General courts-martial may be convened by |
9 | any of the following: |
10 | (1) The Governor. |
11 | (2) The Adjutant General. |
12 | (3) The commanding officer of a division, a separate |
13 | brigade, or a separate wing. |
14 | (4) Any other commanding officer in any of the State |
15 | military forces when empowered by the Governor. |
16 | (b) Commanding officer as accuser.--When any such commanding |
17 | officer is an accuser, the court shall be convened by superior |
18 | competent authority, and may in any case be convened by such |
19 | authority when deemed desirable by such authority. |
20 | § 5502. Who may convene special courts-martial. |
21 | In the State military forces any person authorized to convene |
22 | a general court-martial, the commanding officer of a garrison, |
23 | fort, post, camp, station, air base, auxiliary air base, or |
24 | other place where troops are on duty, or of a brigade, regiment, |
25 | wing, group, separate battalion, separate squadron, or other |
26 | detached command, may convene special courts-martial. When any |
27 | such officer is an accuser, the court shall be convened by |
28 | superior competent authority and may, in any case, be convened |
29 | by such authority when deemed advisable by him. |
30 | § 5503. Who may convene summary courts-martial. |
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1 | (a) General rule.--In the State military forces any person |
2 | authorized to convene a general or special court-martial, the |
3 | commanding officer of a garrison, fort, post, camp, station, air |
4 | base, auxiliary air base, or other place where troops are on |
5 | duty, or of a brigade, regiment, wing, group, separate |
6 | battalion, separate squadron, or other detached command, may |
7 | convene a summary court-martial. |
8 | (b) Commissioned officer or superior authority.--When only |
9 | one commissioned officer is present with a command or detachment |
10 | he shall be the summary court-martial of that command or |
11 | detachment and shall hear and determine all summary court- |
12 | martial cases brought before him. Summary courts-martial may, |
13 | however, be convened in any case by superior competent authority |
14 | when considered desirable by him. |
15 | § 5504. Who may serve on courts-martial. |
16 | (a) Commissioned officer.--Any commissioned officer of the |
17 | State military forces is eligible to serve on all courts-martial |
18 | for the trial of any person who may lawfully be brought before |
19 | such courts for trial. |
20 | (b) Warrant officer.--Any warrant officer of the State |
21 | military forces is eligible to serve on general and special |
22 | courts-martial for the trial of any person, other than a |
23 | commissioned officer, who may lawfully be brought before such |
24 | courts for trial. |
25 | (c) Enlisted person.-- |
26 | (1) Any enlisted person of the State military forces who |
27 | is not a member of the same unit as the accused is eligible |
28 | to serve on general and special courts-martial for the trial |
29 | of any enlisted person who may lawfully be brought before |
30 | such courts for trial. He shall serve as a member of a court |
|
1 | only if, before the convening of the court, the accused |
2 | personally has requested in writing that enlisted members |
3 | serve on it. After such a request, the accused may not be |
4 | tried by a general or special court-martial, the membership |
5 | of which does not include enlisted persons in a number |
6 | comprising at least one-third of the total membership of the |
7 | court, unless eligible members cannot be obtained on account |
8 | of physical conditions or military exigencies. If such |
9 | members cannot be obtained, the court may be convened and the |
10 | trial held without them, but the convening authority shall |
11 | make a detailed written statement, to be appended to the |
12 | record, stating why they could not be obtained. |
13 | (2) In this subsection, the word "unit" means any |
14 | regularly organized body of the State military forces not |
15 | larger in size than a company, or a corresponding body. |
16 | (d) Ineligible persons.-- |
17 | (1) No person subject to this part may be tried by a |
18 | court-martial any member of which is junior to him in rank or |
19 | grade. |
20 | (2) When convening a court-martial, the convening |
21 | authority shall appoint as members thereof such members as, |
22 | in his opinion, are best qualified for the duty by reason of |
23 | age, education, training, experience, length of service, and |
24 | judicial temperament. No member is eligible to serve as a |
25 | member of a general or special court-martial when he is the |
26 | accuser or a witness for the prosecution or has acted as |
27 | investigating officer or as counsel in the same case. |
28 | § 5505. Military judge of a general or special court-martial. |
29 | (a) Appointment and eligibility.--The authority convening a |
30 | general or special court-martial shall appoint as military judge |
|
1 | thereof a commissioned officer who is a member of the bar of the |
2 | Supreme Court of the Commonwealth of Pennsylvania, and who is |
3 | certified as qualified for such duty by the State Judge |
4 | Advocate. No person shall be eligible to act as military judge |
5 | in a case when he is the accuser or a witness for the |
6 | prosecution or has acted as investigating officer or as counsel |
7 | in the same case. |
8 | (b) Limitation on powers.--The military judge may not |
9 | consult with the members of the court, other than on the form of |
10 | the findings as provided in section 5704 (relating to sessions), |
11 | except in the presence of the accused, trial counsel, and |
12 | defense counsel. He shall not vote with the members of the |
13 | court. |
14 | § 5506. Appointment of trial counsel and defense counsel. |
15 | (a) General rule.--For each general and special court- |
16 | martial the authority convening the court shall appoint trial |
17 | counsel and defense counsel, and such assistants as he considers |
18 | appropriate. No person who has acted as investigating officer, |
19 | military judge or court member in any case shall act |
20 | subsequently as trial counsel, assistant trial counsel, or, |
21 | unless expressly requested by the accused, as defense counsel or |
22 | assistant defense counsel in the same case. No person who has |
23 | acted for the prosecution shall act later in the same case for |
24 | the defense, nor shall any person who has acted for the defense |
25 | act later in the same case for the prosecution. |
26 | (b) Eligibility.--Any person who is appointed trial counsel |
27 | or defense counsel in the case of a general or a special court- |
28 | martial: |
29 | (1) shall be a person who is a member of the bar of the |
30 | Supreme Court of Pennsylvania; and |
|
1 | (2) shall be certified as competent to perform such duties |
2 | by the State Judge Advocate. |
3 | § 5507. Appointment or employment of reporters and |
4 | interpreters. |
5 | Under such regulations as the Governor may prescribe, the |
6 | convening authority of a general or special court-martial or |
7 | court of inquiry shall appoint or employ qualified court |
8 | reporters, who shall record the proceedings of and testimony |
9 | taken before that court. Under like regulations the convening |
10 | authority of a military court may appoint or employ interpreters |
11 | who shall interpret for the court. |
12 | § 5508. Absent and additional members. |
13 | (a) Authorized absence.--No member of a general or special |
14 | court-martial shall be absent or excused after the court has |
15 | been assembled for the trial of the accused, except for physical |
16 | disability or as the result of a challenge or by order of the |
17 | convening authority for good cause. |
18 | (b) New members of general court-martial.--Whenever a |
19 | general court-martial is reduced below five members, the trial |
20 | shall not proceed unless the convening authority appoints new |
21 | members sufficient in number to provide not less than five |
22 | members. When such new members have been sworn, the trial may |
23 | proceed after the recorded evidence previously introduced before |
24 | the members of the court has been read to the court in the |
25 | presence of the military judge, the accused, and counsel for |
26 | both sides. |
27 | (c) New members of special court-martial.--Whenever a |
28 | special court-martial is reduced below three members, the trial |
29 | shall not proceed unless the convening authority appoints new |
30 | members sufficient in number to provide not less than three |
|
1 | members. When such new members have been sworn, the trial shall |
2 | proceed with the new members present as if no evidence has |
3 | previously been introduced at the trial, unless a verbatim |
4 | record of the evidence previously introduced before the members |
5 | of the court or a stipulation thereof is read to the court in |
6 | the presence of the military judge, if any, the accused, and |
7 | counsel for both sides. |
8 | CHAPTER 56 |
9 | PRETRIAL PROCEDURE |
10 | § 5601. Charges and specifications. |
11 | (a) Execution and contents.--Charges and specifications |
12 | shall be signed by a person subject to this part under oath |
13 | before a person authorized by this part to administer oaths and |
14 | shall state: |
15 | (1) That the signer has personal knowledge of, or has |
16 | investigated, the matters set forth therein. |
17 | (2) That they are true in fact to the best of his |
18 | knowledge and belief. |
19 | (b) Disposition.--Upon the preferring of charges, the proper |
20 | authority shall take immediate steps to determine what |
21 | disposition should be made thereof in the interest of justice |
22 | and discipline. The person accused shall be informed of the |
23 | charges against him as soon as practicable. |
24 | § 5602. Compulsory self-incrimination prohibited. |
25 | (a) General rule.--No person subject to this part shall |
26 | compel any person to incriminate himself or to answer any |
27 | question the answer to which may tend to incriminate him. |
28 | (b) Advising accused of his rights.--No person subject to |
29 | this part shall interrogate, or request any statement from an |
30 | accused or a person suspected of an offense without first |
|
1 | informing him of the nature of the accusation and fully advising |
2 | him of his right to be represented by counsel, that he does not |
3 | have to make any statement regarding the offense of which he is |
4 | accused or suspected, and that any statement made by him can and |
5 | will be used as evidence against him in a trial by court- |
6 | martial, as well as other constitutional safeguards provided for |
7 | an accused or a person suspected of an offense. |
8 | (c) Immaterial or degrading evidence.--No person subject to |
9 | this part shall compel any person to make a statement or produce |
10 | evidence before any military tribunal if the statement or |
11 | evidence is not material to the issue and may tend to degrade |
12 | him. |
13 | (d) Unlawfully obtained statement inadmissible.--No |
14 | statement obtained from any person in violation of this section, |
15 | or through the use of coercion, unlawful influence, or unlawful |
16 | inducement shall be received in evidence against him in a trial |
17 | by court-martial. |
18 | § 5603. Investigation. |
19 | (a) General rule.--No charge or specification shall be |
20 | referred to a general court-martial for trial until a thorough |
21 | and impartial investigation of all the matters set forth therein |
22 | has been made. This investigation shall include inquiry as to |
23 | the truth of the matter set forth in the charges, consideration |
24 | of the form of charges, and a recommendation as to the |
25 | disposition which should be made of the case in the interest of |
26 | justice and discipline. |
27 | (b) Rights of accused.--The accused shall be advised of the |
28 | charges against him and of his right to be represented at that |
29 | investigation by counsel. Upon his own request he shall be |
30 | represented by civilian counsel if provided by him, or military |
|
1 | counsel of his own selection if such counsel is reasonably |
2 | available, or by counsel appointed by the person exercising |
3 | general court-martial jurisdiction over the command. At such |
4 | investigation full opportunity shall be given to the accused to |
5 | cross-examine witnesses against him if they are available and to |
6 | present anything he may desire in his own behalf, either in |
7 | defense or mitigation, and the investigating officer shall |
8 | examine available witnesses requested by the accused. If the |
9 | charges are forwarded after such investigation, they shall be |
10 | accompanied by a statement of the substance of the testimony |
11 | taken on both sides and a copy thereof shall be given to the |
12 | accused. |
13 | (c) Further investigation.--If an investigation of the |
14 | subject matter of an offense has been conducted before the |
15 | accused is charged with the offense, and if the accused was |
16 | present at the investigation and afforded the opportunities for |
17 | representation, cross-examination, and presentation prescribed |
18 | in subsection (b), no further investigation of that charge is |
19 | necessary under this section unless it is demanded by the |
20 | accused after he is informed of the charge. A demand for further |
21 | investigation entitles the accused to recall witnesses for |
22 | further cross-examination and to offer any new evidence in his |
23 | own behalf. |
24 | (d) Requirements mandatory.--The requirements of this |
25 | section are binding on all persons administering this part. take |
26 | immediate steps to determine what disposition should be made |
27 | thereof in the interest of justice and discipline. The person |
28 | accused shall be informed of the charges against him as soon as |
29 | practicable. |
30 | § 5604. Forwarding of charges. |
|
1 | When a person is held for trial by general court-martial the |
2 | commanding officer shall, within eight days after the accused is |
3 | ordered into arrest or confinement, if practicable, forward the |
4 | charges, together with the investigation and allied papers, to |
5 | the person exercising general court-martial jurisdiction. If |
6 | that is not practicable, he shall report in writing to such |
7 | officer the reasons for delay. |
8 | § 5605. Advice of staff judge advocate and reference for trial. |
9 | (a) General rule.--Before directing the trial of any charge |
10 | by general court-martial, the convening authority shall refer it |
11 | to his staff judge advocate for consideration and advice. The |
12 | convening authority shall not refer a charge to general court- |
13 | martial for trial unless he has found that the charge alleges an |
14 | offense under this part and is warranted by evidence indicated |
15 | in the report of the investigation. |
16 | (b) Changes in charges and specifications.--If the charges |
17 | or specifications are not formally correct or do not conform to |
18 | the substance of the evidence contained in the report of the |
19 | investigating officer, formal corrections, and such changes in |
20 | the charges and specifications as are needed to make them |
21 | conform to the evidence may be made by the appointing authority. |
22 | § 5606. Service of charges. |
23 | The trial counsel to whom court-martial charges are referred |
24 | for trial shall cause to be served upon the accused a copy of |
25 | the charges upon which trial is to be had. In time of peace no |
26 | person shall, against his objection, be brought to trial, or be |
27 | required to participate by himself or counsel in a session |
28 | called by the military judge under section 5704(a) (relating to |
29 | sessions) in a general court-martial case within a period of |
30 | five days after the service of the charges upon him, or in a |
|
1 | special court-martial within a period of three days after the |
2 | service of the charges upon him. |
3 | CHAPTER 57 |
4 | TRIAL PROCEDURE |
5 | § 5701. Governor may prescribe rules. |
6 | (a) General rule.--The procedure, including modes of proof, |
7 | in cases before military courts and other military tribunals may |
8 | be prescribed by the Governor by regulations, which shall apply |
9 | the principles of law and the rules of evidence generally |
10 | recognized in the trial of criminal cases in the courts of the |
11 | State but which shall not be contrary to or inconsistent with |
12 | this part. |
13 | (b) Uniformity.--All rules and regulations made pursuant to |
14 | the provisions of this section shall be uniform in so far as |
15 | practicable among the State military forces. |
16 | § 5702. Unlawfully influencing action of court. |
17 | (a) General rule.--No authority convening a general, |
18 | special, or summary court-martial nor any other commanding |
19 | officer, or officer serving on the staff thereof, shall censure, |
20 | reprimand, or admonish the court or any member, military judge |
21 | or counsel thereof, with respect to the findings or sentence |
22 | adjudged by the court, or with respect to any other exercise of |
23 | its or his functions in the conduct of the proceedings. No |
24 | person subject to this part shall attempt to coerce or, by any |
25 | unauthorized means, influence the action of the court-martial or |
26 | any other military tribunal or any member thereof, in reaching |
27 | the findings or sentence in any case, or the action of any |
28 | convening, approving, reviewing authority with respect to his |
29 | judicial acts. |
30 | (b) Performance reports on members and counsel.--In the |
|
1 | preparation of an effectiveness, fitness or efficiency report or |
2 | any other report or document used in whole or in part for the |
3 | purpose of determining whether a member of the State military |
4 | forces is qualified to be advanced, in grade, or in determining |
5 | the assignment or transfer of a member of the State military |
6 | forces, no person subject to this part may, in preparing any |
7 | such report: |
8 | (1) consider or evaluate the performance of duty of any |
9 | such member as a member of a court-martial; or |
10 | (2) give a less favorable rating or evaluation of any |
11 | member of the State military forces because of the zeal with |
12 | which such member, as counsel, represented any accused before |
13 | a court-martial. |
14 | § 5703. Duties of trial counsel and defense counsel. |
15 | (a) Trial counsel.--The trial counsel of a general or |
16 | special court-martial shall prosecute in the name of the |
17 | Commonwealth, and shall, under the direction of the court, |
18 | prepare the record of the proceedings. |
19 | (b) Defense counsel.--The accused has the right to be |
20 | represented in his defense before a general or special court- |
21 | martial by civilian counsel if provided by him, or by military |
22 | counsel of his own selection if reasonably available, or by the |
23 | defense counsel appointed under section 5506 (relating to |
24 | appointment of trial counsel and defense counsel). Should the |
25 | accused have counsel of his own selection, the defense counsel, |
26 | and assistant defense counsel, if any, who were appointed, |
27 | shall, if the accused so desires, act as his associate counsel; |
28 | otherwise they shall be excused by the military judge or by the |
29 | president of a court-martial without a military judge. |
30 | (c) Brief by defense counsel.--In every court-martial |
|
1 | proceeding, the defense counsel may, in the event of conviction, |
2 | forward for attachment to the record of proceedings a brief of |
3 | such matters he feels should be considered in behalf of the |
4 | accused on review, including any objection to the contents of |
5 | the record which he considers appropriate. |
6 | (d) Assistant trial counsel.--An assistant trial counsel of |
7 | a general court-martial may, under the direction of the trial |
8 | counsel or when he is qualified to be a trial counsel as |
9 | required by section 5506, perform any duty imposed by law, |
10 | regulation, or the custom of the service upon the trial counsel |
11 | of the court. An assistant trial counsel of a special court- |
12 | martial may perform any duty of the trial counsel. |
13 | (e) Assistant defense counsel.--An assistant defense counsel |
14 | of a general or special court-martial may, under the direction |
15 | of the defense counsel or when he is qualified to be the defense |
16 | counsel as required by section 5506, perform any duty imposed by |
17 | law, regulation, or the custom of the service upon counsel for |
18 | the accused. |
19 | § 5704. Sessions. |
20 | (a) Proceedings in absence of members.--At any time after |
21 | the service of charges which have been referred for trial to a |
22 | court-martial composed of a military judge and members, the |
23 | military judge may, subject to section 5606 (relating to service |
24 | of charges) call the court into session without the presence of |
25 | the members for the purpose of: |
26 | (1) hearing and determining motions raising defenses or |
27 | objections which are capable of determination without trial |
28 | of the issues raised by a plea of not guilty; |
29 | (2) hearing and ruling upon any matter which may be |
30 | ruled upon by the military judge under this section, whether |
|
1 | or not the matter is appropriate for later consideration or |
2 | decision by the members of the court; |
3 | (3) holding the arraignment and receiving the pleas of |
4 | the accused; and |
5 | (4) performing any other procedural function which may |
6 | be performed by the military judge under this part or under |
7 | rules prescribed pursuant to section 5701 (relating to |
8 | Governor may prescribe rules) and which does not require the |
9 | presence of the members of the court. |
10 | These proceedings shall be conducted in the presence of the |
11 | accused, the defense counsel, and the trial counsel and shall be |
12 | made a part of the record. |
13 | (b) Other proceedings.--When the members of a court-martial |
14 | deliberate or vote, only the members may be present. All other |
15 | proceedings, including any other consultation of the court with |
16 | counsel or the military judge, shall be made a part of the |
17 | record and shall be in the presence of the accused, the defense |
18 | counsel, the trial counsel, and, in cases in which a military |
19 | judge has been detailed to the court, the military judge. |
20 | § 5705. Continuances. |
21 | The military judge or a court-martial without a military |
22 | judge may, for reasonable cause, grant a continuance to any |
23 | party for such time, and as often, as may appear to be just. |
24 | § 5706. Challenges. |
25 | (a) Challenges for cause.--The military judge and members of |
26 | a general or special court-martial may be challenged by the |
27 | accused or the trial counsel for cause stated to the court. The |
28 | military judge, or if none, the court shall determine the |
29 | relevancy and validity of challenges for cause, and shall not |
30 | receive a challenge to more than one person at a time. |
|
1 | Challenges by the trial counsel shall ordinarily be presented |
2 | and decided before those by the accused are offered. |
3 | (b) Preemptory challenges.--Each accused and the trial |
4 | counsel is entitled to one preemptory challenge, but the |
5 | military judge may not be challenged except for cause. |
6 | § 5707. Oaths. |
7 | (a) General rule.--Before performing their respective |
8 | duties, military judges, members of general and special courts- |
9 | martial, trial counsel, assistant trial counsel, defense |
10 | counsel, assistant defense counsel, reporters, and interpreters |
11 | shall take an oath to perform their duties faithfully. The form |
12 | of the oath, the time and place of the taking thereof, the |
13 | manner of recording the same, and whether the oath shall be |
14 | taken for all cases in which these duties are to be performed or |
15 | for a particular case, shall be in accordance with regulations |
16 | prescribed by the Governor. These regulations may provide that |
17 | an oath to perform faithfully duties as a military judge, trial |
18 | counsel, assistant trial counsel, defense counsel, or assistant |
19 | defense counsel may be taken at any time by any judge advocate, |
20 | or other person certified to be qualified or competent for the |
21 | duty, and if such an oath is taken it need not again be taken at |
22 | the time the judge advocate, or other person is detailed to that |
23 | duty. |
24 | (b) Witnesses.--Each witness before a military court shall |
25 | be examined on oath or affirmation. |
26 | § 5708. Statute of limitations. |
27 | (a) No limitation.--A person subject to this part, charged |
28 | with desertion or absence without leave in time of war or with |
29 | aiding the enemy or with mutiny may be tried and punished at any |
30 | time without limitation. |
|
1 | (b) Three-year limitation.--Except as otherwise provided in |
2 | this section, a person subject to this part charged with |
3 | desertion in time of peace or with the offense punishable under |
4 | section 6041 (relating to frauds against the government) shall |
5 | not be liable to be tried by court-martial if the offense was |
6 | committed more than three years before the receipt of sworn |
7 | charges and specifications by an officer exercising summary |
8 | court-martial jurisdiction over the command. |
9 | (c) Two-year limitation.--Except as otherwise provided in |
10 | this section, a person subject to this part charged with any |
11 | offense is not liable to be tried by court-martial or punished |
12 | under section 5301 (relating to commanding officer's nonjudicial |
13 | punishment) if the offense was committed more than two years |
14 | before the receipt of sworn charges and specifications by an |
15 | officer exercising summary court-martial jurisdiction over the |
16 | command or before the imposition of punishment under section |
17 | 5301. |
18 | (d) Computation of period of limitation.--Periods in which |
19 | the accused was absent from territory in which the Commonwealth |
20 | has the authority to apprehend him, or in the custody of civil |
21 | authorities, or in the hands of the enemy, shall be excluded in |
22 | computing the period of limitation prescribed in this section. |
23 | § 5709. Former jeopardy. |
24 | (a) General rule.--No person subject to this part shall, |
25 | without his consent, be tried a second time for the same offense |
26 | in a military court convened under this part. Prosecution under |
27 | this part shall not bar prosecution by civil authorities for a |
28 | crime or offense growing out of the same act or omission |
29 | committed in violation of the laws of the civil jurisdiction. |
30 | (b) Definition of trial.--No proceeding in which an accused |
|
1 | has been found guilty by a court-martial upon any charge or |
2 | specification is a trial in the sense of this section until the |
3 | finding of guilty has become final after review of the case has |
4 | been fully completed. However, a proceeding which, after the |
5 | introduction of evidence but before a finding, is dismissed or |
6 | terminated by the convening authority, or on motion of the |
7 | prosecution for failure of available evidence or witnesses |
8 | without any fault of the accused, is a trial in the sense of |
9 | this section. |
10 | § 5710. Pleas of the accused. |
11 | (a) Inadequacy or lack of pleading.--A plea of not guilty |
12 | shall be entered in the record, and the court shall proceed as |
13 | though the accused had pleaded not guilty, if after arraignment |
14 | before a court martial: |
15 | (1) an accused makes an irregular pleading; |
16 | (2) after a plea of guilty an accused sets up matter |
17 | inconsistent with the plea; |
18 | (3) it appears that an accused has entered a plea of |
19 | guilty improvidently or through lack of understanding or its |
20 | meaning and effect; or |
21 | (4) an accused fails or refuses to plead. |
22 | (b) Plea of guilty.--With respect to any charge or |
23 | specification to which a plea of guilty has been made by the |
24 | accused and accepted by the military judge or by a court-martial |
25 | without a military judge, a finding of guilty of the charge or |
26 | specification may be entered immediately without vote. This |
27 | finding shall constitute the finding of the court unless the |
28 | plea of guilty is withdrawn prior to announcement of the |
29 | sentence, in which event the proceedings shall continue as |
30 | though the accused had pleaded not guilty. |
|
1 | § 5711. Opportunity to obtain witnesses and other evidence. |
2 | (a) General rule.--The trial counsel, the defense counsel, |
3 | and the court-martial shall have equal opportunity to obtain |
4 | witnesses and other evidence in accordance with such regulations |
5 | as the Governor may prescribe. |
6 | (b) Issuance of process.--Process issued in court-martial |
7 | cases to compel witnesses to appear and testify and to compel |
8 | the production of other evidence shall be similar to that which |
9 | the courts of this Commonwealth having criminal jurisdiction may |
10 | lawfully issue and shall run to any part of the Commonwealth and |
11 | to any other state or territory, district or possession in which |
12 | the court-martial may be sitting. |
13 | § 5712. Refusal to appear or testify. |
14 | Any person not subject to this part who has been duly |
15 | subpoenaed to appear as a witness or to produce books and |
16 | records before a military court or before any military or civil |
17 | officer designated to take a deposition to be read in evidence |
18 | before such a court and who willfully neglects or refuses to |
19 | appear, or refuses to qualify as a witness or to testify or to |
20 | produce any evidence which that person may have been legally |
21 | subpoenaed to produce is guilty of an offense against the |
22 | Commonwealth and a military court may punish him in the same |
23 | manner as the civil courts of this Commonwealth. |
24 | § 5713. Contempts. |
25 | A military court may punish for contempt any person who uses |
26 | any menacing word, sign, or gesture in its presence, or who |
27 | disturbs its proceedings by any riot or disorder. The punishment |
28 | may not exceed confinement for 30 days or a fine of $100 or |
29 | both. |
30 | § 5714. Depositions. |
|
1 | (a) General rule.--At any time after charges have been |
2 | signed, as provided in section 5601 (relating to charges and |
3 | specifications) any party may take oral or written depositions |
4 | unless the military judge or court-martial without a military |
5 | judge hearing the case, or if the case is not being heard, an |
6 | authority competent to convene a court-martial for the trial of |
7 | those charges forbids it for good cause. If a deposition is to |
8 | be taken before charges are referred for trial, such an |
9 | authority may designate commissioned officers to represent the |
10 | prosecution and the defense and may authorize those officers to |
11 | take the deposition of any witness. |
12 | (b) Notice of taking deposition.--The party at whose |
13 | instance a deposition is to be taken shall give to every other |
14 | party reasonable written notice of the time and place for taking |
15 | the deposition. |
16 | (c) Persons authorized to take depositions.--Depositions may |
17 | be taken before and authenticated by any military or civil |
18 | officer authorized by the laws of this Commonwealth or by the |
19 | laws of the place where the deposition is taken to administer |
20 | oaths. |
21 | (d) Admissibility in evidence.--A duly authenticated |
22 | deposition taken upon reasonable notice to the other parties, so |
23 | far as otherwise admissible under the rules of evidence, may be |
24 | read in evidence before any military court or in any proceeding |
25 | before a court of inquiry, if it appears: |
26 | (1) that the witness resides or is beyond the state in |
27 | which the court is ordered to sit, or beyond the distance of |
28 | one hundred miles from the place of trial or hearing; |
29 | (2) that the witness by reason of death, age, sickness, |
30 | bodily infirmity, imprisonment, military necessity, non- |
|
1 | amenability to process, or other reasonable cause, is unable |
2 | or refuses to appear and testify in person at the place of |
3 | trial or hearing; or |
4 | (3) that the present whereabouts of the witness is |
5 | unknown. |
6 | § 5715. Admissibility of records of courts of inquiry. |
7 | (a) Court-martial.--In any case not extending to dismissal |
8 | or dishonorable discharge, the sworn testimony, contained in the |
9 | duly authenticated record of proceedings of a court of inquiry, |
10 | of a person whose oral testimony cannot be obtained, may, if |
11 | otherwise admissible under the rules of evidence, be read in |
12 | evidence by any party before a court-martial if the accused was |
13 | a party before the court of inquiry and if the same issue was |
14 | involved or if the accused consents to the introduction of such |
15 | evidence. |
16 | (b) Use of testimony by defense.--Such testimony may be read |
17 | in evidence only by the defense in cases extending to dismissal |
18 | or dishonorable discharge. |
19 | (c) Court of inquiry or military board.--Such testimony may |
20 | also be read in evidence before a court of inquiry or a military |
21 | board by either party. |
22 | § 5716. Voting and rulings. |
23 | (a) Findings, sentences and challenges.--Voting by members |
24 | of a general or special court-martial on the findings and on the |
25 | sentence and by members of a court-martial without a military |
26 | judge upon questions of challenge shall be by secret written |
27 | ballot. The junior member of the court shall count the votes. |
28 | The count shall be checked by the president, who shall forthwith |
29 | announce the result of the ballot to the members of the court. |
30 | (b) Questions of law and interlocutory questions.--The |
|
1 | military judge and except for questions of challenge, the |
2 | president of a court-martial without a military judge shall rule |
3 | upon all questions of law and all interlocutory questions |
4 | arising during the proceedings. Any such ruling made by the |
5 | military judge upon any question of law or any interlocutory |
6 | question other than the factual issue of mental responsibility |
7 | of the accused, or by the president of a court-martial without a |
8 | military judge upon any question of law other than a motion for |
9 | a finding of not guilty, is final and constitutes the ruling of |
10 | the court. However, the military judge or the president of a |
11 | court-martial without a military judge may change any such |
12 | ruling at any time during the trial. Unless such ruling be |
13 | final, if any member objects thereto, the court shall be cleared |
14 | and closed and the question decided by a voice vote as provided |
15 | in section 5717 (relating to number of votes required), |
16 | beginning with the junior in rank. |
17 | (c) Instructions to members of court.--Before a vote is |
18 | taken on the findings, the military judge or the president of a |
19 | court-martial without a military judge shall, in the presence of |
20 | the accused and counsel, instruct the members of the court as to |
21 | the elements of the offense and charge them: |
22 | (1) that the accused must be presumed to be innocent |
23 | until his guilt is established by legal and competent |
24 | evidence beyond reasonable doubt; |
25 | (2) that in the case being considered, if there is a |
26 | reasonable doubt as to the guilt of the accused, the doubt |
27 | shall be resolved in favor of the accused and he shall be |
28 | acquitted; |
29 | (3) that, if there is a reasonable doubt as to the |
30 | degree of guilt, the finding must be in a lower degree as to |
|
1 | which there is no reasonable doubt; and |
2 | (4) that the burden of proof of establishing the guilt |
3 | of the accused beyond reasonable doubt is upon the |
4 | prosecution. |
5 | (d) Proceedings before military judge only.--Subsections |
6 | (a), (b) and (c) do not apply to a court-martial composed of a |
7 | military judge only. The military judge of such a court-martial |
8 | shall determine all questions of law and fact arising during the |
9 | proceedings and, if the accused is convicted, adjudge an |
10 | appropriate sentence. The military judge of such a court-martial |
11 | shall make a general finding and shall in addition on request |
12 | find the facts specially. If an opinion or memorandum of |
13 | decision is filed, it will be sufficient if the findings of fact |
14 | appear therein. |
15 | § 5717. Number of votes required. |
16 | (a) Conviction.--No person subject to this part shall be |
17 | convicted of any offense, except as provided in section 5710(b) |
18 | (relating to pleas of the accused) or by the concurrence of two- |
19 | thirds of the members present at the time the vote is taken. |
20 | (b) Sentence.--All sentences shall be determined by the |
21 | concurrence of two-thirds of the members present at the time the |
22 | vote is taken. |
23 | (c) Other questions.--All other questions to be decided by |
24 | the members of a general or special court-martial shall be |
25 | determined by a majority vote but a determination to reconsider |
26 | a finding of guilty or to reconsider a sentence, with a view |
27 | toward decreasing it, may be made by any lesser vote which |
28 | indicates that the reconsideration is not opposed by the number |
29 | of votes required for that finding or sentence. A tie vote on a |
30 | challenge disqualifies the member challenged. A tie vote on a |
|
1 | motion for a finding of not guilty or on a motion relating to |
2 | the question of the accused's sanity is a determination against |
3 | the accused. A tie vote on any other question is a determination |
4 | in favor of the accused. |
5 | § 5718. Court to announce action. |
6 | Every court-martial shall announce its findings and sentence |
7 | to the parties as soon as determined. |
8 | § 5719. Record of trial. |
9 | (a) General court-martial.--Each general court-martial shall |
10 | keep a separate record of the proceedings in each case brought |
11 | before it, and the record shall be authenticated by the |
12 | signatures of the military judge. If the record cannot be |
13 | authenticated by the military judge by reason of his death, |
14 | disability or absence, it shall be authenticated by the |
15 | signature of the trial counsel or by that of a member if the |
16 | trial counsel is unable to authenticate it by reason of his |
17 | death, disability, or absence. If the proceedings have resulted |
18 | in an acquittal of all charges and specifications or in a |
19 | sentence not including discharge and not in excess of that which |
20 | may otherwise be adjudged by a special court-martial, the record |
21 | need not contain a verbatim account of the proceedings and |
22 | testimony before the court, but shall contain such matters as |
23 | the Governor may by regulation prescribe. |
24 | (b) Special and summary courts-martial.--Each special and |
25 | summary courts-martial shall keep a separate record of the |
26 | proceedings in each case, which record shall contain such matter |
27 | and shall be authenticated in such manner as the Governor may by |
28 | regulation prescribe. |
29 | (c) Furnishing record to accused.--A copy of the record of |
30 | the proceedings of each general and special court-martial shall |
|
1 | be given to the accused as soon as authenticated. If a verbatim |
2 | record of trial by general court-martial is not required by |
3 | subsection (a), but has been made, the accused may buy such a |
4 | record under such regulations as the Governor may prescribe. |
5 | CHAPTER 58 |
6 | SENTENCES |
7 | § 5801. Cruel and unusual punishments prohibited. |
8 | Punishment by flogging, or by branding, marking or tattooing |
9 | on the body, or any other cruel or unusual punishment, may not |
10 | be adjudged by any court-martial or inflicted upon any person |
11 | subject to this part. The use of irons, single or double, except |
12 | for the purpose of safe custody, is prohibited. |
13 | § 5802. Maximum limits. |
14 | The punishment which a court-martial may direct for an |
15 | offense may not exceed such limits as the Governor may prescribe |
16 | for that offense subject to the limits prescribed by this part. |
17 | § 5803. Effective date of sentences. |
18 | (a) Forfeiture of pay and allowances.--Whenever a sentence |
19 | of a court-martial as lawfully adjudged and approved includes a |
20 | forfeiture of pay or allowances in addition to confinement not |
21 | suspended, the forfeiture may apply to pay or allowances |
22 | becoming due on or after the date the sentence is approved by |
23 | the convening authority. No forfeiture may extend to any pay or |
24 | allowances accrued before that date. |
25 | (b) Confinement.--Any period of confinement included in a |
26 | sentence of a court-martial begins to run from the date the |
27 | sentence is adjudged by the court-martial but periods during |
28 | which the sentence to confinement is suspended shall be excluded |
29 | in computing the service of the term of confinement. Regulations |
30 | prescribed by the Governor may provide that sentences of |
|
1 | confinement may not be executed until approved by designated |
2 | officers. |
3 | (c) Other sentences.--All other sentences of courts-martial |
4 | are effective on the date ordered executed. |
5 | § 5804. Execution of confinement. |
6 | (a) Place of confinement.--A sentence of confinement |
7 | adjudged by a military court, whether or not the sentence |
8 | includes discharge or dismissal, and whether or not the |
9 | discharge or dismissal has been executed, may be carried into |
10 | execution by confinement in any place of confinement under the |
11 | control of any of the forces of the State military forces or in |
12 | any county or State jail, prison or other place of confinement. |
13 | Persons so confined in a jail or prison are subject to the same |
14 | discipline and treatment as persons confined or committed to the |
15 | jail or prison by the courts of this Commonwealth or of any |
16 | political subdivision thereof. |
17 | (b) Authority to require hard labor.--The omission of the |
18 | words "hard labor" from any sentence or punishment of a court- |
19 | martial adjudging confinement does not deprive the authority |
20 | executing that sentence or punishment of the power to require |
21 | hard labor as a part of the punishment. |
22 | (c) Duty of county prison officials.--The keepers, officers, |
23 | and wardens of county jails or prisons under section 5205 |
24 | (relating to confinement in jails) shall receive persons ordered |
25 | into confinement before trial and persons committed to |
26 | confinement by a military court and shall confine them according |
27 | to law. No such keeper, officer, or warden may require payment |
28 | of any fee or charge for so receiving or confining a person. |
29 | CHAPTER 59 |
30 | REVIEW OF COURTS-MARTIAL |
|
1 | § 5901. Error of law; lesser included offense. |
2 | (a) Error of law.--A finding or sentence of court-martial |
3 | shall not be held incorrect on the ground of an error of law |
4 | unless the error materially prejudices the substantial rights of |
5 | the accused. |
6 | (b) Approval of lesser offense.--Any reviewing authority |
7 | with the power to approve or affirm a finding of guilty may |
8 | approve or affirm so much of the finding as includes a lesser |
9 | included offense. |
10 | § 5902. Initial action on the record. |
11 | After a trial by court-martial the record shall be forwarded |
12 | to the convening authority, as reviewing authority, and action |
13 | thereon may be taken by the person who convened the court, a |
14 | commissioned officer commanding for the time being, in the |
15 | absence of the convening authority, a successor in command, or |
16 | by any officer exercising general court-martial jurisdiction. |
17 | § 5903. Action on general court-martial records. |
18 | The convening authority shall refer the record of each |
19 | general court-martial to his staff judge advocate or legal |
20 | officer who shall submit his written opinion thereon to the |
21 | convening authority. If there is no qualified staff judge |
22 | advocate or legal officer available, the State Judge Advocate |
23 | shall assign a judge advocate officer for such purpose. If the |
24 | final action of the court has resulted in an acquittal of all |
25 | charges and specifications, the opinion shall be limited to |
26 | questions of jurisdiction. |
27 | § 5904. Reconsideration and revision. |
28 | (a) Reconsideration of motion dismissing specification.--If |
29 | a specification before a court-martial has been dismissed on |
30 | motion and the ruling does not amount to a finding of not |
|
1 | guilty, the convening authority may return the record to the |
2 | court for reconsideration of the ruling and any further |
3 | appropriate action. |
4 | (b) Record disclosing error or improper action.--Where there |
5 | is an apparent error or omission in the record or where the |
6 | record shows improper or inconsistent action by a court-martial |
7 | with respect to a finding or sentence which can be rectified |
8 | without material prejudice to the substantial rights of the |
9 | accused, the convening authority may return the record to the |
10 | court for appropriate action. In no case, however, may the |
11 | record be returned: |
12 | (1) for reconsideration of a finding of not guilty of |
13 | any specification or a ruling which amounts to a finding of |
14 | not guilty; |
15 | (2) for reconsideration of a finding of not guilty of |
16 | any charge, unless the record shows a finding of guilty under |
17 | a specification laid under that charge, which sufficiently |
18 | alleges a violation of some section of this part; or |
19 | (3) for increasing the severity of the sentence unless |
20 | the sentence prescribed for the offense is mandatory. |
21 | § 5905. Rehearings. |
22 | (a) General rule.--If the convening authority disapproves |
23 | the findings and sentence of a court-martial he may, except |
24 | where there is lack of sufficient evidence in the record to |
25 | support the findings, order a rehearing, in which case he shall |
26 | state the reasons for disapproval. If he disapproves the |
27 | findings and sentence and does not order a rehearing, he shall |
28 | dismiss the charges. |
29 | (b) Rehearing body composition and authority.--Every |
30 | rehearing shall take place before a court-martial composed of |
|
1 | members not members of the court-martial which first heard the |
2 | case. Upon such rehearing the accused shall not be tried for any |
3 | offense of which he was found not guilty by the first court- |
4 | martial, and no sentence in excess of or more severe than the |
5 | original sentence may be imposed, unless the sentence is based |
6 | upon a finding of guilty of an offense not considered upon the |
7 | merits in the original proceedings, or unless the sentence |
8 | prescribed for the offense is mandatory. |
9 | § 5906. Approval by the convening authority. |
10 | In acting on the findings and sentence of a court-martial, |
11 | the convening authority shall approve only such findings of |
12 | guilty, and the sentence or such part or amount of the sentence, |
13 | as he finds correct in law and fact and as he in his discretion |
14 | determines should be approved. Unless he indicates otherwise, |
15 | approval of the sentence shall constitute approval of the |
16 | findings and sentence. |
17 | § 5907. Disposition of records after review by the convening |
18 | authority. |
19 | (a) Final action by Governor.--When the Governor has taken |
20 | final action in a court-martial case in which he is the |
21 | convening authority, there shall be no further review. |
22 | (b) Final action by other authority.--When a convening |
23 | authority other than the Governor has taken final action in a |
24 | general court-martial case, he shall forward the entire record, |
25 | including his action thereon and the opinion or opinions of the |
26 | staff judge advocate or legal officer, to the State Judge |
27 | Advocate. |
28 | (c) Bad conduct discharge.--Where the sentence of a special |
29 | court-martial as approved by the convening authority includes a |
30 | bad-conduct discharge, whether or not suspended, the record |
|
1 | shall be forwarded to the officer exercising general court- |
2 | martial jurisdiction over the command to be reviewed in the same |
3 | manner as a record of trial by a general court-martial. If the |
4 | sentence as approved by an officer exercising general court- |
5 | martial jurisdiction includes a bad-conduct discharge, whether |
6 | or not suspended, the record shall be forwarded to the State |
7 | Judge Advocate. |
8 | (d) Review and disposition of other records.--All other |
9 | special and summary court-martial records shall be reviewed by a |
10 | judge advocate of the Army National Guard or Air National Guard |
11 | and shall be transmitted and disposed of as the Adjutant General |
12 | may prescribe by regulations. |
13 | § 5908. Review in the office of the State Judge Advocate. |
14 | Every record of trial by general court-martial in which there |
15 | has been a finding of guilty and a sentence, and every record of |
16 | trial by special court-martial in which the sentence as approved |
17 | by an officer exercising general court-martial jurisdiction |
18 | includes a bad-conduct discharge, shall be examined in the |
19 | office of the State Judge Advocate. If the State Judge Advocate |
20 | so directs, the record shall be reviewed by a board of review in |
21 | accordance with section 5909 (relating to review by a board of |
22 | review). |
23 | § 5909. Review by a board of review. |
24 | (a) Composition of boards of review.--The State Judge |
25 | Advocate may constitute one or more boards of review, each |
26 | composed of not less than three commissioned officers, each of |
27 | whom shall be a member of the bar of the Supreme Court of |
28 | Pennsylvania, and one of whom shall be a judge advocate of the |
29 | Army or Air National Guard. |
30 | (b) Affirming findings and sentence.--In a case referred to |
|
1 | it, the board of review may act only with respect to the |
2 | findings and sentence as approved by the convening authority. It |
3 | may affirm only such findings of guilty, and the sentence or |
4 | such part or amount of the sentence, as it finds correct in law |
5 | and fact and determines, on the basis of the entire record, |
6 | should be approved. In considering the record it shall have |
7 | authority to weigh the evidence, judge the credibility of |
8 | witnesses, and determine controverted questions of fact, |
9 | recognizing that the trial court saw and heard the witnesses. |
10 | (c) Setting aside findings and sentence.--If the board of |
11 | review sets aside the findings and sentence, it may, except |
12 | where the setting aside is based on lack of sufficient evidence |
13 | in the record to support the findings, order a rehearing. If it |
14 | sets aside the findings and sentence and does not order a |
15 | rehearing, it shall order that the charges be dismissed. |
16 | (d) Action by convening authority.--The State Judge Advocate |
17 | shall, unless there is to be further action by the Governor, |
18 | instruct the convening authority to take action in accordance |
19 | with the decision of the board of review. If the board of review |
20 | has ordered a rehearing but the convening authority finds a |
21 | rehearing impracticable, he may dismiss the charges. |
22 | (e) Uniform rules of procedure.--In the event one or more |
23 | boards of review are constituted in accordance with this |
24 | section, the State Judge Advocate shall prescribe uniform rules |
25 | of procedure for proceedings in and before such board or boards |
26 | of review. |
27 | § 5910. Appellate counsel. |
28 | Upon review of the record of trial by general court-martial |
29 | in which there has been a finding of guilty and a sentence and |
30 | upon review of the record of trial by special court-martial in |
|
1 | which the sentence as approved by an officer exercising general |
2 | court-martial jurisdiction includes a bad-conduct discharge, the |
3 | accused shall have the right to be represented before the State |
4 | Judge Advocate or the board of review, as the case may be, by |
5 | military counsel if requested by him or by civilian counsel if |
6 | provided by him. Appellate military counsel shall be a |
7 | commissioned officer of the State military forces and shall be a |
8 | member of the bar of the Supreme Court of Pennsylvania. |
9 | § 5911. Execution of sentence; suspension of sentence. |
10 | (a) Approval of certain sentences by Governor.--No sentence |
11 | extending to the dismissal of a commissioned officer or |
12 | dishonorable discharge or bad-conduct discharge shall be |
13 | executed until approved by the Governor. He shall approve the |
14 | sentence or such part, amount, or commuted form of the sentence |
15 | as he sees fit, and may suspend the execution of the sentence or |
16 | any part of the sentence, as approved by him. |
17 | (b) Authority of convening authority.--All other court- |
18 | martial sentences, unless suspended, may be ordered executed by |
19 | the convening authority when approved by him. The convening |
20 | authority may suspend the execution of any sentence. |
21 | § 5912. Vacation of suspension. |
22 | (a) Bad-conduct discharges and general court-martial |
23 | sentences.--Prior to the vacation of the suspension of a special |
24 | court-martial sentence which as approved includes a bad-conduct |
25 | discharge, or of any general court-martial sentence, the officer |
26 | having special court-martial jurisdiction over the probationer |
27 | shall hold a hearing on the alleged violation of probation. The |
28 | probationer shall be represented at the hearing by counsel if he |
29 | so desires. |
30 | (b) Hearing record, recommendation and action.--The record |
|
1 | of the hearing and the recommendation of the officer having |
2 | special court-martial jurisdiction shall be forwarded for action |
3 | to the officer exercising general court-martial jurisdiction. If |
4 | he vacates the suspension, any unexecuted part of the sentence |
5 | except a dismissal shall be executed. |
6 | (c) Other sentences.--The suspension of any other sentence |
7 | may be vacated by any authority competent to convene, for the |
8 | command in which the accused is serving or assigned, a court of |
9 | the kind that imposed the sentence. |
10 | § 5913. Petition for a new trial. |
11 | At any time within two years after approval by the convening |
12 | authority of a court-martial sentence which extends to |
13 | dismissal, dishonorable discharge or bad-conduct discharge, the |
14 | accused may petition the Governor for a new trial on ground of |
15 | newly discovered evidence or fraud on the court-martial. |
16 | § 5914. Remission and suspension. |
17 | (a) General rule.--A convening authority may remit or |
18 | suspend any part or amount of the unexecuted part of any |
19 | sentence, including all uncollected forfeitures, other than a |
20 | sentence approved by the Governor. |
21 | (b) Substitution of administrative discharge by Governor.-- |
22 | The Governor may, for good cause, substitute an administrative |
23 | form of discharge for a discharge or dismissal executed in |
24 | accordance with the sentence of a court-martial. |
25 | § 5915. Restoration. |
26 | (a) General rule.--Under such regulations as the Governor |
27 | may prescribe, all rights, privileges, and property affected by |
28 | an executed portion of a court-martial sentence which has been |
29 | set aside or disapproved, except an executed dismissal or |
30 | discharge, shall be restored unless a new trial or rehearing is |
|
1 | ordered and such executed portion is included in a sentence |
2 | imposed upon a new trial or rehearing. |
3 | (b) Substitution of administrative discharge for invalid |
4 | discharge.--When a previously executed sentence of dishonorable |
5 | discharge or bad-conduct discharge is not sustained on a new |
6 | trial, the Adjutant General shall substitute therefor a form of |
7 | discharge authorized for administrative issuance unless the |
8 | accused is to serve out the remainder of his enlistment. |
9 | (c) Substitution of administrative discharge for invalid |
10 | dismissal.--When a previously executed sentence of dismissal is |
11 | not sustained on a new trial, the Adjutant General shall |
12 | substitute therefor a form of discharge authorized for |
13 | administrative issue. |
14 | § 5916. Finality of proceedings, findings and sentences. |
15 | The proceedings, findings and sentences of courts-martial as |
16 | reviewed and approved, as required by this part, and all |
17 | dismissals and discharges carried into execution under sentences |
18 | by courts-martial following review and approval, as required by |
19 | this part, shall be final and conclusive. Orders publishing the |
20 | proceedings of courts-martial and all action taken pursuant to |
21 | those proceedings are binding upon all departments, courts, |
22 | agencies, and officers of the Commonwealth, subject only to |
23 | action upon a petition for a new trial as provided in section |
24 | 5913 (relating to petition for a new trial) and to action by the |
25 | Governor as provided in section 5914 (relating to remission and |
26 | suspension). |
27 | CHAPTER 60 |
28 | PUNITIVE SECTIONS |
29 | § 6001. Principals. |
30 | Any person subject to this part who: |
|
1 | (1) commits an offense punishable by this part, or aids, |
2 | abets, counsels, commands, or procures its commission; or |
3 | (2) causes an act to be done which if directly performed |
4 | by him would be punishable by this part; |
5 | is a principal. |
6 | § 6002. Accessory after the fact. |
7 | Any person subject to this part who, knowing that an offense |
8 | punishable by this part has been committed, receives, comforts, |
9 | or assists the offender in order to hinder or prevent his |
10 | apprehension, trial, or punishment shall be punished as a court- |
11 | martial may direct. |
12 | § 6003. Conviction of lesser included offense. |
13 | An accused may be found guilty of an offense necessarily |
14 | included in the offense charged or of an attempt to commit |
15 | either the offense charged or an offense necessarily included |
16 | therein. |
17 | § 6004. Attempts. |
18 | (a) Attempt defined.--An act, done with specific intent to |
19 | commit an offense under this part, amounting to more than mere |
20 | preparation and tending, even though failing to effect its |
21 | commission, is an attempt to commit that offense. |
22 | (b) Punishment.--Any person subject to this part who |
23 | attempts to commit any offense punishable by this part shall be |
24 | punished as a court-martial may direct, unless otherwise |
25 | specifically prescribed. |
26 | (c) Effect of consummation of offense.--Any person subject to |
27 | this part may be convicted of an attempt to commit an offense |
28 | although it appears on the trial that the offense was |
29 | consummated. |
30 | § 6005. Conspiracy. |
|
1 | Any person subject to this part who conspires with any other |
2 | person to commit an offense under this part shall, if one or |
3 | more of the conspirators does an act to effect the object of the |
4 | conspiracy, be punished as a court-martial may direct. |
5 | § 6006. Solicitation. |
6 | (a) Desertion and mutiny.--Any person subject to this part |
7 | who solicits or advises another or others to desert in violation |
8 | of section 6009 (relating to desertion) or mutiny in violation |
9 | of section 6018 (relating to mutiny or sedition) shall, if the |
10 | offense solicited or advised is attempted or committed, be |
11 | punished with the punishment provided for the commission of the |
12 | offense, but, if the offense solicited or advised is not |
13 | committed or attempted, he shall be punished as a court-martial |
14 | may direct. |
15 | (b) Misbehavior before enemy and sedition.--Any person |
16 | subject to this part who solicits or advises another or others |
17 | to commit an act of misbehavior before the enemy in violation of |
18 | section 6023 (relating to misbehavior before the enemy) or |
19 | sedition in violation of section 6018 shall, if the offense |
20 | solicited or advised is committed, be punished with the |
21 | punishment provided for the commission of the offense, but, if |
22 | the offense solicited or advised is not committed, he shall be |
23 | punished as a court-martial may direct. |
24 | § 6007. Fraudulent enlistment, appointment or separation. |
25 | Any person who: |
26 | (1) procures his own enlistment or appointment in the |
27 | State military forces by knowingly false representation or |
28 | deliberate concealment as to his qualifications for that |
29 | enlistment or appointment and receives pay or allowances |
30 | thereunder; or |
|
1 | (2) procures his own separation from the State military |
2 | forces by knowingly false representation or deliberate |
3 | concealment as to his eligibility for that separation; |
4 | shall be punished as a court-martial may direct. |
5 | § 6008. Unlawful enlistment, appointment, or separation. |
6 | Any person subject to this part who effects an enlistment or |
7 | appointment in or a separation from the State military forces of |
8 | any person who is known to him to be ineligible for that |
9 | enlistment, appointment, or separation because it is prohibited |
10 | by law, regulation, or order shall be punished as a court- |
11 | martial may direct. |
12 | § 6009. Desertion. |
13 | (a) Offense defined.--Any member of the State military |
14 | forces who: |
15 | (1) without authority goes or remains absent from his |
16 | unit, organization or place of duty with intent to remain |
17 | away therefrom permanently; |
18 | (2) quits his unit, organization or place of duty with |
19 | intent to avoid hazardous duty or to shirk important service; |
20 | or |
21 | (3) without being regularly separated from one of the |
22 | State military forces enlists or accepts an appointment in |
23 | the same or another one of the State military forces, or in |
24 | one of the armed forces of the United States, without fully |
25 | disclosing the fact that he has not been regularly separated; |
26 | is guilty of desertion. |
27 | (b) Commissioned officer tendering resignation.--Any |
28 | commissioned officer of the State military forces who, after |
29 | tender of his resignation and before notice of its acceptance, |
30 | quits his post or proper duties without leave and with intent to |
|
1 | remain away therefrom permanently is guilty of desertion. |
2 | (c) Punishment.--Any person found guilty of desertion or |
3 | attempt to desert shall be punished as a court-martial may |
4 | direct. |
5 | § 6010. Absence without leave. |
6 | (a) Offense defined.--Any person subject to this part who, |
7 | without authority: |
8 | (1) fails to go to his appointed place of duty at the |
9 | time prescribed; |
10 | (2) goes from that place; or |
11 | (3) absents himself or remains absent from his unit, |
12 | organization or place of duty at which he is required to be |
13 | at the time prescribed; |
14 | is absent without leave and shall be punished as a court-martial |
15 | directs, be subject to nonjudicial punishment or be charged with |
16 | a summary offense. |
17 | (b) Military offense.--Absence without leave is a military |
18 | offense subject to punishment as a court-martial may direct or |
19 | by nonjudicial punishment under this part. |
20 | (c) Summary offense.--Absence without leave as defined in |
21 | subsection (a) is a summary offense. |
22 | (d) Fines.--A person convicted of the summary offense of |
23 | absence without leave shall be sentenced to pay a fine of not |
24 | less than $50 nor more than $200 for the first offense and a |
25 | fine of not less than $300 nor more than $1,000 for a second or |
26 | subsequent offense. |
27 | (e) Costs.--Any person convicted of a summary offense of |
28 | absence without leave shall, in addition to the fine imposed, be |
29 | sentenced to pay costs as provided or prescribed by or pursuant |
30 | to 42 Pa.C.S. Ch. 17 (relating to governance of the system). |
|
1 | (f) Institution of proceedings.--A person subject to this |
2 | part authorized by the Adjutant General or his designee may |
3 | institute summary proceedings for violation of this section by |
4 | filing a complaint with an issuing authority as provided in the |
5 | Pennsylvania Rules of Criminal Procedure. The alleged offense |
6 | shall be deemed to have occurred in the magisterial district |
7 | where the unit to which the member is assigned is located. |
8 | (g) Withdrawal of complaint.--The person instituting summary |
9 | proceedings for a violation of this section or his or her |
10 | superior commissioned officer may withdraw the complaint if the |
11 | accused executes a military service participation agreement and |
12 | pays all costs as described in subsection (e). |
13 | (h) Military counsel.--Military counsel shall not be |
14 | assigned to represent the Commonwealth or the accused in summary |
15 | proceedings brought under this section. |
16 | (i) Prima facie evidence.--An extract from official military |
17 | records showing that the accused person was absent without leave |
18 | as defined in subsection (a) shall constitute prima facie |
19 | evidence of a violation of this section. |
20 | (j) Limitations on proceedings.--No action may be commenced |
21 | for a violation of this section more than 12 months after the |
22 | last date on which the person is alleged to have been absent |
23 | without leave. No court-martial or nonjudicial punishment |
24 | proceedings for absence without leave under this part may be |
25 | instituted against a person who has been charged with the |
26 | summary offense of absence without leave for the same time |
27 | period. No summary offense proceedings for absence without leave |
28 | under this section may be instituted against a person who has |
29 | been the subject of court-martial or nonjudicial punishment for |
30 | absence without leave under this part for the same time period. |
|
1 | § 6011. Missing movement. |
2 | Any person subject to this part who through neglect or design |
3 | misses the movement of a ship, aircraft, or unit with which he |
4 | is required in the course of duty to move shall be punished as a |
5 | court-martial may direct. |
6 | § 6012. Contempt towards officials. |
7 | Any person subject to this part who uses contemptuous words |
8 | against the President of the United States, Vice-President of |
9 | the United States, Congress, Secretary of Defense, or a |
10 | secretary of a department, the Governor of the Commonwealth of |
11 | Pennsylvania, the General Assembly of the Commonwealth of |
12 | Pennsylvania or the Adjutant General of the Commonwealth of |
13 | Pennsylvania, the Governor or the legislature of any state, |
14 | territory or other possession of the United States in which he |
15 | is on duty or present shall be punished as a court-martial may |
16 | direct. |
17 | § 6013. Disrespect towards superior commissioned officer. |
18 | Any person subject to this part who behaves with disrespect |
19 | towards his superior commissioned officer shall be punished as a |
20 | court-martial may direct. |
21 | § 6014. Assaulting or willfully disobeying superior |
22 | commissioned officer. |
23 | Any person subject to this part who: |
24 | (1) strikes his superior commissioned officer or draws |
25 | or lifts up any weapon or offers any violence against him |
26 | while he is in the execution of his office; or |
27 | (2) willfully disobeys a lawful command of his superior |
28 | commissioned officer; |
29 | shall be punished as a court-martial may direct. |
30 | § 6015. Insubordinate conduct toward warrant officer, |
|
1 | noncommissioned officer. |
2 | Any warrant officer or enlisted member who: |
3 | (1) strikes or assaults a warrant officer, |
4 | noncommissioned officer, while that officer is in the |
5 | execution of his office; |
6 | (2) willfully disobeys the lawful order of a warrant |
7 | officer, noncommissioned officer; or |
8 | (3) treats with contempt or is disrespectful in language |
9 | or deportment toward a warrant officer, noncommissioned |
10 | officer, while that officer is in the execution of his |
11 | office; |
12 | shall be punished as a court-martial may direct. |
13 | § 6016. Failure to obey order or regulation. |
14 | Any person subject to this part who: |
15 | (1) violates or fails to obey any lawful general order |
16 | or regulation; or |
17 | (2) having knowledge of any other lawful order issued by |
18 | a member of the State military forces, which it is his duty |
19 | to obey, fails to obey the order; or |
20 | (3) is derelict in the performance of his duties; |
21 | shall be punished as a court-martial may direct. |
22 | § 6017. Cruelty and maltreatment. |
23 | Any person subject to this part who is guilty of cruelty toward, |
24 | or oppression or maltreatment of, any person subject to his |
25 | orders shall be punished as a court-martial may direct. |
26 | § 6018. Mutiny or sedition. |
27 | (a) Offenses defined.--Any person subject to this part who: |
28 | (1) with intent to usurp or override lawful military |
29 | authority refuses, in concert with any other person, to obey |
30 | orders or otherwise to do his duty or creates any violence or |
|
1 | disturbance is guilty of mutiny; |
2 | (2) with intent to cause the overthrow or destruction of |
3 | lawful civil authority, creates, in concert with any other |
4 | person, revolt, violence, or other disturbance against that |
5 | authority is guilty of sedition; or |
6 | (3) fails to do his utmost to prevent and suppress a |
7 | mutiny or sedition being committed in his presence, or fails |
8 | to take all reasonable means to inform his superior |
9 | commissioned officer or commanding officer of a mutiny or |
10 | sedition which he knows or has reason to believe is taking |
11 | place, is guilty of a failure to suppress or report a mutiny |
12 | or sedition. |
13 | (b) Punishment.--A person who is found guilty of attempted |
14 | mutiny, mutiny, sedition, or failure to suppress or report a |
15 | mutiny or sedition shall be punished as a court-martial may |
16 | direct. |
17 | § 6019. Resistance, breach of arrest, and escape. |
18 | Any person subject to this part who resists apprehension or |
19 | breaks arrest or who escapes from custody, restraint, or |
20 | confinement imposed under this part shall be punished as a |
21 | court-martial may direct. |
22 | § 6020. Releasing prisoner without proper authority. |
23 | Any person subject to this part who, without proper |
24 | authority, releases any prisoner committed to his charge, or who |
25 | through neglect or design suffers any such prisoner to escape, |
26 | shall be punished as a court-martial may direct. |
27 | § 6021. Unlawful detention of another. |
28 | Any person subject to this part who, except as provided by |
29 | law or regulation, apprehends, arrests, restrains, or confines |
30 | any person shall be punished as a court-martial may direct. |
|
1 | § 6022. Noncompliance with procedural rules. |
2 | Any person subject to this part who: |
3 | (1) is responsible for unnecessary delay in the |
4 | disposition of any case of a person accused of an offense |
5 | under this part; or |
6 | (2) knowingly and intentionally fails to enforce or |
7 | comply with any provision of this part regulating the |
8 | proceedings before, during, or after trial of an accused; |
9 | shall be punished as a court-martial may direct. |
10 | § 6023. Misbehavior before the enemy. |
11 | Any person subject to this part who before or in the presence |
12 | of the enemy: |
13 | (1) runs away; |
14 | (2) shamefully abandons, or surrenders any command, |
15 | unit, place, or military property which it is his duty to |
16 | defend; |
17 | (3) through disobedience, neglect, or intentional |
18 | misconduct endangers the safety of any such command, unit, |
19 | place, or military property; |
20 | (4) casts away his arms or ammunition; |
21 | (5) is guilty of cowardly conduct; |
22 | (6) quits his place of duty to plunder or pillage; |
23 | (7) causes false alarms in any command, unit, or place |
24 | under control of the armed forces of the United States or the |
25 | State military forces; |
26 | (8) willfully fails to do his utmost to encounter, |
27 | engage, capture, or destroy any enemy troops, combatants, |
28 | vessels, aircraft, or any other thing, which it is his duty |
29 | so to encounter, engage, capture, or destroy; or |
30 | (9) does not afford all practicable relief and |
|
1 | assistance to any troops, combatants, vessels, or aircraft of |
2 | the armed forces belonging to the United States or their |
3 | allies, to the State when engaged in battle or in suppressing |
4 | civil disorders; |
5 | shall be punished as a court-martial may direct. |
6 | § 6024. Subordinate compelling surrender. |
7 | Any person subject to this part who compels or attempts to |
8 | compel a commander of any place, vessel, aircraft, or other |
9 | military property, or of any body of members of the State |
10 | military forces to give it up to an enemy or to abandon it, or |
11 | who strikes the colors or flag to an enemy without proper |
12 | authority, shall be punished as a court-martial may direct. |
13 | § 6025. Improper use of countersign. |
14 | Any person subject to this part who discloses the parole or |
15 | countersign to any person not entitled to receive it, or who |
16 | gives to another who is entitled to receive and use the parole |
17 | or countersign a different parole or countersign from that |
18 | which, to his knowledge, he was authorized and required to give, |
19 | shall be punished as a court-martial may direct. |
20 | § 6026. Forcing a safeguard. |
21 | Any person subject to this part who forces a safeguard shall |
22 | be punished as a court-martial may direct. |
23 | § 6027. Captured or abandoned property. |
24 | (a) Duty to secure property.--All persons subject to this |
25 | part shall secure all public property taken from the enemy for |
26 | the service of the United States or the Commonwealth, and shall |
27 | give notice and turn over to the proper authority without delay |
28 | all captured or abandoned property in their possession, custody, |
29 | or control. |
30 | (b) Offenses defined and punishment.--Any person subject to |
|
1 | this part who: |
2 | (1) fails to carry out the duties prescribed in |
3 | subsection (a); |
4 | (2) buys, sells, trades, or in any way deals in or |
5 | disposes of captured or abandoned property, whereby he |
6 | receives or expects any profit, benefit, or advantage to |
7 | himself or another directly or indirectly connected with |
8 | himself; or |
9 | (3) engages in looting or pillaging; |
10 | shall be punished as a court-martial may direct. |
11 | § 6028. Aiding the enemy. |
12 | Any person subject to this part who: |
13 | (1) aids, or attempts to aid, the enemy with arms, |
14 | ammunition, supplies, money, or other things; or |
15 | (2) without proper authority, knowingly harbors or |
16 | protects or gives intelligence to, or communicates or |
17 | corresponds with or holds any intercourse with the enemy, |
18 | either directly or indirectly; |
19 | shall be punished as a court-martial may direct. |
20 | § 6029. Misconduct of a prisoner. |
21 | Any person subject to this part who, while in the hands of |
22 | the enemy: |
23 | (1) for the purpose of securing favorable treatment by |
24 | his captors acts without proper authority in a manner |
25 | contrary to law, custom, or regulation, to the detriment of |
26 | others held by the enemy as civilian or military prisoners; |
27 | or |
28 | (2) while in a position of authority over such persons |
29 | maltreats them without justifiable cause; |
30 | shall be punished as a court-martial may direct. |
|
1 | § 6030. False official statements. |
2 | Any person subject to this part who, with intent to deceive, |
3 | signs any false record, return, regulation, order, or other |
4 | official document, knowing the same to be false, or makes any |
5 | other false official statement knowing the same to be false, |
6 | shall be punished as a court-martial may direct. |
7 | § 6031. Loss, damage, destruction or wrongful disposition of |
8 | military property. |
9 | Any person subject to this part, who without proper |
10 | authority; |
11 | (1) sells or otherwise disposes of; |
12 | (2) willfully or through neglect damages, destroys, or |
13 | loses; or |
14 | (3) willfully or through neglect suffers to be lost, |
15 | damaged, destroyed, sold, or wrongfully disposed of; |
16 | any military property of the United States or of the State |
17 | shall be punished as a court-martial may direct. |
18 | § 6032. Waste, spoilage, or destruction of nonmilitary |
19 | property. |
20 | Any person subject to this part who, while in a duty status, |
21 | willfully or recklessly wastes, spoils, or otherwise willfully |
22 | and wrongfully destroys or damages any property other than |
23 | military property belonging to the United States or of the State |
24 | shall be punished as a court-martial may direct. |
25 | § 6033. Improper hazarding of vessel. |
26 | (a) Willful conduct.--Any person subject to this part who |
27 | willfully and wrongfully hazards or suffers to be hazarded any |
28 | vessel of the armed forces of the United States or of the State |
29 | military forces shall be punished as a court-martial may direct. |
30 | (b) Negligent conduct.--Any person subject to this part who |
|
1 | negligently hazards or suffers to be hazarded any vessel of the |
2 | armed forces of the United States or of the State military |
3 | forces shall be punished as a court-martial may direct. |
4 | § 6034. Drunken or reckless driving. |
5 | Any person subject to this part who while in a duty status |
6 | operates any vehicle while drunk, or in a reckless or wanton |
7 | manner, shall be punished as a court-martial may direct. |
8 | § 6035. Drunk on duty, sleeping on post and leaving post before |
9 | relief. |
10 | Any person subject to this part who is found drunk on duty or |
11 | sleeping upon his post, or who leaves his post before he is |
12 | regularly relieved, shall be punished as a court-martial may |
13 | direct. |
14 | § 6036. Dueling. |
15 | Any person subject to this part who, while in a duty status, |
16 | fights or promotes, or is concerned in or connives at fighting a |
17 | duel, or who, having knowledge of a challenge sent or about to |
18 | be sent, fails to report the fact promptly to the proper |
19 | authority, shall be punished as a court-martial may direct. |
20 | § 6037. Malingering. |
21 | Any person subject to this part who for the purpose of |
22 | avoiding work, duty or service in the State military forces: |
23 | (1) feigns illness, physical disablement, mental lapse |
24 | or derangement; or |
25 | (2) intentionally inflicts self-injury; |
26 | shall be punished as a court-martial may direct. |
27 | § 6038. Riot or breach of peace. |
28 | Any person subject to this part who while in a duty status |
29 | causes or participates in any riot or breach of the peace shall |
30 | be punished as a court-martial may direct. |
|
1 | § 6039. Provoking speeches or gestures. |
2 | Any person subject to this part who while in a duty status |
3 | uses provoking or reproachful words or gestures towards any |
4 | other person subject to this part shall be punished as a court- |
5 | martial may direct. |
6 | § 6040. Perjury. |
7 | Any person subject to this part who in a judicial proceeding |
8 | or in a course of justice conducted under this part willfully |
9 | and corruptly gives, upon a lawful oath or in any form allowed |
10 | by law to be substituted for an oath, any false testimony |
11 | material to the issue or matter of inquiry is guilty of perjury |
12 | and shall be punished as a court-martial may direct. |
13 | § 6041. Frauds against the government. |
14 | Any person subject to this part: |
15 | (1) who, knowing it to be false or fraudulent: |
16 | (i) makes any claim against the United States, the |
17 | Commonwealth, or any officer thereof; or |
18 | (ii) presents to any person in the civil or military |
19 | service thereof, for approval or payment any claim |
20 | against the United States, the Commonwealth, or any |
21 | officer thereof; or |
22 | (2) who, for the purpose of obtaining the approval, |
23 | allowance, or payment of any claim against the United States, |
24 | the Commonwealth, or any officer thereof; |
25 | (i) makes or uses any writing or other paper knowing |
26 | the same to contain any false or fraudulent statements; |
27 | (ii) makes any oath to any fact or to any writing or |
28 | other paper knowing such oath to be false; or |
29 | (iii) forges or counterfeits any signature upon any |
30 | writing or other paper, or uses any such signature |
|
1 | knowing the same to be forged or counterfeited; or |
2 | (3) who, having charge, possession, custody, or control |
3 | of any money, or other property of the United States or the |
4 | Commonwealth, furnished or intended for the armed forces of |
5 | the United States or the State military forces, knowingly |
6 | delivers to any person having authority to receive the same, |
7 | any amount thereof less than that for which he receives a |
8 | certificate or receipt; or |
9 | (4) who, being authorized to make or deliver any paper |
10 | certifying the receipt of any property of the United States |
11 | or the Commonwealth, furnished or intended for the armed |
12 | forces of the United States or the State military forces, |
13 | makes or delivers to any person such writing without having |
14 | full knowledge of the truth of the statements therein |
15 | contained and with intent to defraud the United States or the |
16 | Commonwealth; |
17 | shall, upon conviction, be punished as a court-martial may |
18 | direct. |
19 | § 6042. Larceny and wrongful appropriation. |
20 | (a) Offenses defined.--Any person subject to this part who |
21 | while in a duty status wrongfully takes, obtains, or withholds, |
22 | by any means whatever from the possession of the true owner or |
23 | of any other person any money, personal property, or article of |
24 | value of any kind: |
25 | (1) with intent permanently to deprive or defraud |
26 | another person of the use and benefit of property or to |
27 | appropriate the same to his own use or the use of any person |
28 | other than the true owner, steals such property, is guilty of |
29 | larceny; or |
30 | (2) with intent temporarily to deprive or defraud |
|
1 | another person of the use and benefit of property or to |
2 | appropriate the same to his own use or the use of any person |
3 | other than the true owner, is guilty of wrongful |
4 | appropriation. |
5 | (b) Punishment.--Any person found guilty of larceny or |
6 | wrongful appropriation shall be punished as a court-martial may |
7 | direct. |
8 | § 6043. Assault. |
9 | Any person subject to this part who while in a duty status |
10 | attempts or offers with unlawful force or violence to do bodily |
11 | harm to another person, whether or not the attempt or offer is |
12 | consummated, is guilty of assault and shall be punished as a |
13 | court-martial may direct. |
14 | § 6044. Conduct unbecoming an officer and a gentleman. |
15 | Any commissioned officer who is convicted of conduct |
16 | unbecoming of an officer and a gentleman shall be punished as a |
17 | court-martial may direct. |
18 | § 6045. General article. |
19 | Though not specifically mentioned in this part, all disorders |
20 | and neglects to the prejudice of good order and discipline in |
21 | the State military forces, and all conduct of a nature to bring |
22 | discredit upon the State military forces, of which persons |
23 | subject to this part may be guilty, shall be taken cognizance of |
24 | by a general, special or summary court-martial, according to the |
25 | nature and degree of the offense, and shall be punished at the |
26 | discretion of such court. However, jurisdiction shall not be |
27 | extended to crimes not included herein, and normally within the |
28 | jurisdiction of the civil courts of this Commonwealth. |
29 | § 6046. Embezzlement. |
30 | Any person subject to this part who shall embezzle, misapply |
|
1 | or convert to his own use, without authority, any moneys |
2 | received by or entrusted to him for disbursement or articles of |
3 | military equipment shall be punished as a court-martial may |
4 | direct. |
5 | § 6047. Purchasing and receiving military property in pawn. |
6 | If any person shall knowingly and willfully purchase, or |
7 | receive in pawn or pledge any military property of the |
8 | Commonwealth of Pennsylvania or of the United States in use by |
9 | the Commonwealth of Pennsylvania, he shall be punished as a |
10 | court-martial may direct. |
11 | CHAPTER 61 |
12 | MISCELLANEOUS PROVISIONS |
13 | § 6101. Courts of inquiry. |
14 | (a) Who may convene.--Courts of inquiry to investigate any |
15 | matter may be convened by any person authorized to convene a |
16 | general court-martial or by any other person designated by the |
17 | Governor for that purpose, whether or not the persons involved |
18 | have requested such an inquiry. |
19 | (b) Composition.--A court of inquiry consists of three or |
20 | more commissioned officers. For each court of inquiry the |
21 | convening authority shall also appoint counsel for the court. |
22 | (c) Parties.--Any person subject to this part whose conduct |
23 | is subject to inquiry shall be designated as a party. Any person |
24 | subject to this part or employed in the Department of Military |
25 | Affairs who has a direct interest in the subject of inquiry |
26 | shall have the right to be designated as a party upon request to |
27 | the court. Any person designated as a party shall be given due |
28 | notice and has the right to be present, to be represented by |
29 | counsel, to cross-examine witnesses, and to introduce evidence. |
30 | (d) Challenging members.--Members of a court of inquiry may |
|
1 | be challenged by a party, but only for cause stated to the |
2 | court. |
3 | (e) Oath or affirmation.--The members, counsel, the |
4 | reporter, and interpreters of courts of inquiry shall take an |
5 | oath or affirmation to faithfully perform their duties. |
6 | (f) Witnesses.--Witnesses may be summoned to appear and |
7 | testify and be examined before courts of inquiry, as provided |
8 | for courts-martial. |
9 | (g) Findings and recommendations.--Courts of inquiry shall |
10 | make findings of fact but shall not express opinions or make |
11 | recommendations unless required to do so by the convening |
12 | authority. |
13 | (h) Record.--Each court of inquiry shall keep a record of |
14 | its proceedings, which shall be authenticated by the signatures |
15 | of the president and counsel for the court and forwarded to the |
16 | convening authority. In case the record cannot be authenticated |
17 | by the president, it shall be signed by a member in lieu of the |
18 | president. In case the record cannot be authenticated by the |
19 | counsel for the court, it shall be signed by a member in lieu of |
20 | the counsel. |
21 | § 6102. Authority to administer oaths. |
22 | (a) Military administration and justice.--The following |
23 | members of the State military forces may administer oaths for |
24 | the purposes of military administration, including military |
25 | justice: |
26 | (1) The State Judge Advocate and all assistant State |
27 | judge advocates. |
28 | (2) All law specialists. |
29 | (3) All summary courts-martial. |
30 | (4) All adjutants, assistant adjutants, acting |
|
1 | adjutants, and personnel adjutants. |
2 | (5) All staff judge advocates and legal officers and |
3 | acting or assistant staff judge advocates and legal officers. |
4 | (6) All other persons designated by law or regulation. |
5 | (b) Performance of particular duties.--The following persons |
6 | in the State military forces shall have authority to administer |
7 | oaths necessary in the performance of their duties: |
8 | (1) The president, military judge, trial counsel, and |
9 | assistant trial counsel for all general and special courts- |
10 | martial. |
11 | (2) The president and the counsel for the court of any |
12 | court of inquiry. |
13 | (3) All officers designated to take a deposition. |
14 | (4) All persons detailed to conduct an investigation. |
15 | (5) All other persons designated by law or any |
16 | regulation. |
17 | (c) Evidence of authority.--The signature without seal of |
18 | any such person, together with the title of his office, is prima |
19 | facie evidence of his authority. |
20 | § 6103. Text of part to be available. |
21 | A complete text of this part and of the regulations |
22 | prescribed by the Governor thereunder shall be made available to |
23 | any member of the State military forces, upon his request, for |
24 | his personal examination. |
25 | § 6104. Complaints of wrongs. |
26 | Any member of the State military forces who believes himself |
27 | wronged by his commanding officer, and who, upon due application |
28 | to such commander, is refused redress, may complain to any |
29 | superior commissioned officer, who shall forward the complaint |
30 | to the officer exercising general court-martial jurisdiction |
|
1 | over the officer against whom it is made. That officer shall |
2 | examine into said complaint and take proper measures for |
3 | redressing the wrong. |
4 | § 6105. Redress of injuries to property. |
5 | (a) Assessment of damages.--Whenever complaint is made to |
6 | any commanding officer that willful damage has been done to the |
7 | property of any person or that his property has been wrongfully |
8 | taken by members of the State military forces, he may, subject |
9 | to such regulations as the Governor may prescribe, convene a |
10 | board to investigate the complaint. The board shall consist of |
11 | from one to three commissioned officers and shall have for the |
12 | purpose of such investigation, power to summon witnesses and |
13 | examine them upon oath or affirmation, to receive depositions or |
14 | other documentary evidence, and to assess the damages sustained |
15 | against the responsible parties. The assessment of damages made |
16 | by such board is subject to the approval of the commanding |
17 | officer, and in the amount approved by him and may be charged |
18 | against the pay of the offenders. The order of such commanding |
19 | officer directing charges herein authorized shall be conclusive, |
20 | except as provided in subsection (b) on any disbursing officer |
21 | for the payment by him to the injured parties of the damages so |
22 | assessed and approved. |
23 | (b) Rights of accused.--Any person subject to this part who |
24 | is accused of causing willful damage to property has the right |
25 | to be represented by counsel, to summon witnesses in his behalf, |
26 | and to cross-examine those appearing against him. He has the |
27 | right of appeal to the next higher commander. |
28 | § 6106. Execution of process and sentence. |
29 | In the State military forces, the processes and sentences of |
30 | its courts-martial shall be executed by the civil officers |
|
1 | prescribed by the laws of this Commonwealth or by the officers |
2 | of the State military forces as the circumstances may require. |
3 | Fees for serving processes provided for in this part shall be |
4 | the same as prescribed by law for similar processes of a civil |
5 | nature, and shall upon proper vouchers being filed, be paid by |
6 | the Adjutant General in the usual manner. |
7 | § 6107. Disposition of fines and penalties. |
8 | All fines and penalties imposed and collected through the |
9 | sentence of courts-martial shall be forwarded to the Adjutant |
10 | General who shall deposit the same in the State Treasury. It |
11 | shall be proper for the Department of Military Affairs to |
12 | request each session of the General Assembly to appropriate such |
13 | moneys as have been so deposited for the welfare of the State |
14 | military forces. |
15 | § 6108. Liability of public officers for nonexecution of |
16 | process. |
17 | The neglect or refusal of any sheriff, constable, peace |
18 | officer or jail warden to execute any process, or to make proper |
19 | return of all fines and penalties collected, or to receive in |
20 | custody any prisoner, shall be deemed a misdemeanor and shall |
21 | subject the offender to a prosecution by the proper district |
22 | attorney, and to a penalty, upon conviction of each such |
23 | offense, of $100 to the use of the Commonwealth. |
24 | § 6109. Compensation of court. |
25 | Military judges, military counsel and members of courts- |
26 | martial and courts of inquiry shall be allowed transportation |
27 | and per diem pay as per military grade for time actually |
28 | employed in the duties assigned them. Transportation shall be |
29 | furnished to all prosecutors, prisoners, witnesses, sheriffs, |
30 | peace officers and constables to and from the place or places |
|
1 | designated for the meetings of said courts. The per diem pay for |
2 | military and civilian witnesses shall be the same as in civil |
3 | courts of law. The fees of sheriffs, peace officers and |
4 | constables for serving the processes provided for in this part |
5 | shall be the same as prescribed by law for similar processes of |
6 | a civil nature and shall, upon proper vouchers being filed, be |
7 | paid by the Adjutant General in the usual manner. |
8 | § 6110. Immunity for action of military courts. |
9 | No accused may bring an action or proceeding against the |
10 | convening authority or a member of a military court or officer |
11 | or person acting under its authority or reviewing its |
12 | proceedings because of the approval, imposition, or execution of |
13 | any sentence or the imposition or collection of a fine or |
14 | penalty, or the execution of any process or mandate of a |
15 | military court. |
16 | § 6111. Delegation of authority by the Governor. |
17 | The Governor may delegate any authority vested in him under |
18 | this part, and may provide for the subdelegation of any such |
19 | authority, except the power given him by section 5406 (relating |
20 | to sentences of dismissal, dishonorable discharge or bad conduct |
21 | to be approved by the Governor) and section 5501 (relating to |
22 | who may convene general courts-martial). |
23 | § 6112. Uniformity of interpretation. |
24 | This part shall be so construed as to effectuate its general |
25 | purpose to make uniform the law of those states which enact it |
26 | and, so far as practical, to make that law uniform with the law |
27 | of the United States, especially as embodied in the Uniform Code |
28 | of Military Justice.] |
29 | Section 2. Title 51 is amended by adding chapters to read: |
30 | CHAPTER 51 |
|
1 | GENERAL PROVISIONS |
2 | Sec. |
3 | 5101. Short title of part. |
4 | 5102. Definitions. |
5 | 5103. Persons subject to part. |
6 | 5104. Subject matter jurisdiction. |
7 | 5105. Jurisdiction to try certain personnel. |
8 | 5106. Dismissal of commissioned officer. |
9 | 5107. Territorial applicability. |
10 | 5108. Judge advocates and legal officers. |
11 | § 5101. Short title of part. |
12 | This part shall be known and may be cited as the Pennsylvania |
13 | Code of Military Justice. |
14 | § 5102. Definitions. |
15 | Subject to additional definitions contained in subsequent |
16 | provisions of this part which are applicable to specific |
17 | provisions of this part, the following words and phrases when |
18 | used in this part shall have the meanings given to them in this |
19 | section unless the context clearly indicates otherwise: |
20 | "Accuser." A person who signs and swears to charges, any |
21 | person who directs that charges nominally be signed and sworn to |
22 | by another or any other person who has an interest other than an |
23 | official interest in the prosecution of the accused. |
24 | "Adjutant General." The Adjutant General of the Commonwealth |
25 | of Pennsylvania. |
26 | "Cadet," "candidate" or "midshipman." A person who is |
27 | enrolled in or attending a State military academy, a regional |
28 | training institute or any other formal education program for the |
29 | purpose of becoming a commissioned or warrant officer in the |
30 | State military forces. |
|
1 | "Classified information." Any of the following: |
2 | (1) Information or material that has been determined by |
3 | an official of the United States or any state pursuant to |
4 | law, an executive order or regulation to require protection |
5 | against unauthorized disclosure for reasons of national or |
6 | State security. |
7 | (2) Restricted data, as defined in section 11(y) of the |
8 | Atomic Energy Act of 1954 (68 Stat. 921, 42 U.S.C. § |
9 | 2014(y)). |
10 | "Commanding officer" or "commander." The Adjutant General |
11 | and other commissioned officers of the State military forces |
12 | when exercising command over a unit or element. The term |
13 | includes officers in charge only when administering nonjudicial |
14 | punishment under section 5301 (relating to commanding officer's |
15 | nonjudicial punishment). |
16 | "Convening authority." Includes, in addition to the person |
17 | who convened the court, a commissioned officer commanding for |
18 | the time being or a successor in command. |
19 | "Day" or "calendar day." Any punishment authorized by this |
20 | part which is measured in terms of days shall, when served in a |
21 | status other than annual field training, be construed to mean |
22 | succeeding duty days. The term is not synonymous with the term |
23 | "unit training assembly." |
24 | "Department." The Department of Military and Veterans |
25 | Affairs of the Commonwealth. |
26 | "Duty status other than State active duty." Any other type |
27 | of duty under an order issued by authority of law not in Federal |
28 | service and not full-time duty in the active service of the |
29 | State. The term includes travel to and from the duty. |
30 | "Enemy." An organization, entity or individual who engages |
|
1 | in combat or hostilities against the State military forces or |
2 | attacks or threatens to attack the United States or this |
3 | Commonwealth. |
4 | "Enlisted member." A person in an enlisted grade. |
5 | "Fatigue duties." Duties, including, but not limited to, |
6 | cleaning real property and facilities, kitchen duties and |
7 | disposal of refuse duties which are not within the day-to-day |
8 | duties of a member of the State military forces. |
9 | "Grade." A step or degree, in a graduated scale of office or |
10 | military rank, that is established and designated as a grade by |
11 | law or regulation. |
12 | "Judge advocate." A commissioned officer of the State |
13 | military forces who is a member in good standing of the bar of |
14 | the Supreme Court and is: |
15 | (1) certified or designated as a judge advocate in the |
16 | Judge Advocate General's Corps of the Army, Air Force, Navy, |
17 | or the Marine Corps or designated as a law specialist as an |
18 | officer of the Coast Guard or a reserve component of one of |
19 | these; or |
20 | (2) certified as an nonfederally recognized judge |
21 | advocate, under regulations promulgated under this provision, |
22 | by the State Judge Advocate, as competent to perform such |
23 | military justice duties required by this part. If the State |
24 | Judge Advocate is not available, the certification may be |
25 | made by the senior judge advocate or the commander of another |
26 | force in the State military forces, as the convening |
27 | authority directs. |
28 | "May." Is used in a permissive sense. The phrase "no person |
29 | may............." means that no person is required, authorized |
30 | or permitted to do the act prescribed. |
|
1 | "Military court." A court-martial or a court of inquiry. |
2 | "Military judge." An official of a general or special court- |
3 | martial detailed in accordance with section 5505 (relating to |
4 | military judge of a general or special court-martial). |
5 | "Military offenses." Those offenses described under Chapter |
6 | 60 (relating to punitive sections) which are military in nature |
7 | and for which there are no analogous criminal offenses described |
8 | in any other law of this Commonwealth. |
9 | "National security." The national defense and foreign |
10 | relations of the United States. |
11 | "Nonmilitary offenses." Those offenses described under |
12 | Chapter 60 (relating to punitive sections) for which there are |
13 | one or more analogous criminal offenses described in any other |
14 | law of this Commonwealth. |
15 | "Record." When used in connection with the proceedings of a |
16 | court-martial, any of the following: |
17 | (1) An official written transcript, written summary or |
18 | other writing relating to the proceedings. |
19 | (2) An official audiotape, videotape, digital image or |
20 | file or similar material from which sound, or sound and |
21 | visual images, depicting the proceedings may be reproduced. |
22 | "Shall." Is used in an imperative sense. |
23 | "State." One of the several states, the District of |
24 | Columbia, the Commonwealth of Puerto Rico, Guam or the Virgin |
25 | Islands. |
26 | "State active duty." Full-time duty in the State military |
27 | forces under an order of the Governor or otherwise issued by |
28 | authority of law and paid by State funds. The term includes |
29 | travel to and from such duty for an emergency ordered under |
30 | section 508 (relating to active duty for emergency) and special |
|
1 | State duty ordered under section 1415 of the act of April 29, |
2 | 1929 (P.L.177, No.175), known as The Administrative Code of |
3 | 1929. |
4 | "State Judge Advocate." The judge advocate designated as |
5 | responsible for supervising the administration of the military |
6 | justice in the State military forces. He shall be the military |
7 | staff judge advocate to the Governor and the Adjutant General. |
8 | "State military forces." Any military force of the |
9 | Commonwealth not in a status subjecting it to the exclusive |
10 | jurisdiction of the United States. The term shall include |
11 | militia when ordered into actual service for emergency under |
12 | section 507 (relating to draft from militia for emergency) and |
13 | the Pennsylvania National Guard. |
14 | "Superior commissioned officer." A commissioned officer |
15 | superior in rank and command. |
16 | "Senior force commander." The commander of the same force of |
17 | the State military forces as the accused. |
18 | "War." A period of armed conflict declared a war by the |
19 | Congress of the United States or recognized by the Adjutant |
20 | General as a war by virtue of a declaration of national |
21 | emergency and authorization by Congress. |
22 | § 5103. Persons subject to part. |
23 | This part applies to all members of the State military forces |
24 | who are not in a Federal status under which they are subject to |
25 | the Uniform Code of Military Justice (64 Stat. 109, 10 U.S.C. § |
26 | 801 et seq.). |
27 | § 5104. Subject matter jurisdiction. |
28 | (a) General rule.--Subject matter jurisdiction is |
29 | established if a nexus exists between an offense and the State |
30 | military forces. |
|
1 | (b) Military offenses.--Courts-martial have primary |
2 | jurisdiction of military offenses as defined in this part. |
3 | (c) Nonmilitary offenses.--A civilian court has primary |
4 | jurisdiction of a nonmilitary offense when an act or omission |
5 | violates both this part and criminal law. In such a case, a |
6 | court-martial may be initiated only after the civilian authority |
7 | has declined to prosecute or has dismissed the charge, provided |
8 | jeopardy has not attached. |
9 | (d) Inchoate offenses.--Jurisdiction over inchoate offenses |
10 | including the offenses of attempt, conspiracy and solicitation |
11 | is given to the entity which has jurisdiction of the underlying |
12 | offense. |
13 | § 5105. Jurisdiction to try certain personnel. |
14 | (a) Discharge obtained fraudulently.--Each person subject to |
15 | this part discharged from the State military forces who is later |
16 | charged with having fraudulently obtained a discharge shall be, |
17 | subject to section 5708 (relating to statute of limitations), |
18 | subject to trial by court-martial on said charge and shall after |
19 | apprehension be subject to this part while in custody under the |
20 | direction of the State military forces for that trial. Upon |
21 | conviction of said charge the person shall be subject to trial |
22 | by court-martial for all offenses under this part committed |
23 | before the fraudulent discharge. |
24 | (b) Deserters.--No person subject to this part who has |
25 | deserted from the State military forces shall be relieved from |
26 | amenability to the jurisdiction of this part by virtue of a |
27 | separation from any subsequent period of service. |
28 | § 5106. Dismissal of commissioned officer. |
29 | (a) Court-martial proceedings.--Any commissioned officer, |
30 | subject to this part dismissed by order of the Governor, may |
|
1 | make a written application for trial by court-martial, setting |
2 | forth, under oath, that the officer has been wrongfully |
3 | dismissed. In such event, the Governor, as soon as practicable, |
4 | shall convene a general court-martial to try such officer on the |
5 | charges on which the officer was dismissed. A court-martial so |
6 | convened shall have jurisdiction to try the dismissed officer on |
7 | such charge, and the officer shall be considered to have waived |
8 | the right to plead any statute of limitations applicable to any |
9 | offense with which the officer is charged. The court-martial |
10 | may, as part of its sentence, adjudge the affirmance of the |
11 | dismissal, but if the court-martial acquits the accused or if |
12 | the sentence adjudged, as finally approved or affirmed, does not |
13 | include dismissal, the Adjutant General shall substitute for the |
14 | dismissal ordered by the Governor a form of discharge authorized |
15 | for administrative issue. |
16 | (b) Failure to convene court-martial.--If the Governor fails |
17 | to convene a general court-martial within six months from the |
18 | presentation of an application for trial under this section, the |
19 | Adjutant General shall substitute for the dismissal ordered by |
20 | the Governor a form of discharge authorized for administrative |
21 | issue. |
22 | § 5107. Territorial applicability. |
23 | (a) General rule.--This part has applicability at all times |
24 | and in all places, provided that the person accused is subject |
25 | to this part and subject matter jurisdiction is established |
26 | under section 5104 (relating to subject matter jurisdiction). |
27 | (b) Location of proceedings.--Courts-martial and courts of |
28 | inquiry may be convened and held in units of the State military |
29 | forces while those units are serving outside this Commonwealth |
30 | with the same jurisdiction and powers as to persons subject to |
|
1 | this part as if the proceedings were held inside this |
2 | Commonwealth, and persons subject to this part accused of |
3 | committing offenses outside this Commonwealth shall be subject |
4 | to trial and punishment either inside or outside this |
5 | Commonwealth. |
6 | § 5108. Judge advocates and legal officers. |
7 | (a) Appointment of State Judge Advocate.--The Governor, on |
8 | the recommendation of the Adjutant General, shall appoint a |
9 | judge advocate officer of the State military forces as the State |
10 | Judge Advocate. To be eligible for appointment, such officer |
11 | shall have been a member of the bar of the Supreme Court for at |
12 | least five years. |
13 | (b) Field inspections.--The State Judge Advocate and the |
14 | judge advocates of the State military forces or their delegates |
15 | shall make frequent inspections in the field in supervision of |
16 | the administration of military justice. |
17 | (c) Direct communication.--Convening authorities shall at |
18 | all times communicate directly with their judge advocates in |
19 | matters relating to the administration of military justice. The |
20 | judge advocate of any command is entitled to communicate |
21 | directly with the judge advocate of a superior or subordinate |
22 | command, or with the State Judge Advocate. |
23 | (d) Disqualification in case.--No person who has acted as a |
24 | member, military judge, trial counsel, defense counsel or |
25 | investigating officer, or who has been a witness, in any case |
26 | may later act as a judge advocate to any reviewing authority |
27 | upon the same case. |
28 | CHAPTER 52 |
29 | APPREHENSION AND RESTRAINT |
30 | Sec. |
|
1 | 5201. Apprehension. |
2 | 5202. Apprehension of persons absent without leave. |
3 | 5203. Imposition of restraint. |
4 | 5204. Restraint of persons charged with offenses. |
5 | 5205. Place of confinement. |
6 | 5206. Reports and receiving of prisoners. |
7 | 5207. Punishment prohibited before trial. |
8 | 5208. Delivery of offenders to civil authorities. |
9 | 5209. Confinement with enemy prisoners prohibited. |
10 | § 5201. Apprehension. |
11 | (a) Persons authorized to apprehend.--Any person authorized |
12 | by this part, by 10 U.S.C. Ch. 47 (relating to Uniform Code of |
13 | Military Justice), or by regulations issued under: |
14 | (1) any marshal of a court-martial appointed under the |
15 | provisions of this part; or |
16 | (2) any peace officer or civil officer authorized by law, |
17 | may apprehend persons subject to this part upon probable cause |
18 | that an offense under this part has been committed and that the |
19 | person apprehended committed it. |
20 | (b) Authority of officers.--Commissioned officers, warrant |
21 | officers, petty officers and noncommissioned officers have |
22 | authority to quell quarrels, frays and disorders among persons |
23 | subject to this part and to apprehend persons subject to this |
24 | part who take part therein. |
25 | (c) Apprehension outside Commonwealth.--If a person subject |
26 | to this part is apprehended outside this Commonwealth, the |
27 | person's return to this Commonwealth must be in accordance with |
28 | normal extradition procedures or by reciprocal agreement. |
29 | (d) Payment prohibited.--No person authorized by this |
30 | section to apprehend persons subject to this part, or place |
|
1 | where such offender is confined, restrained, held or otherwise |
2 | housed may require payment of any fee or charge for receiving, |
3 | apprehending, confining, restraining, holding or otherwise |
4 | housing a person except as otherwise provided by law. |
5 | (e) Warrant authority.--The convening authority of any |
6 | court-martial shall have the power to issue warrants of |
7 | apprehension directed to the sheriff or any constable or peace |
8 | officer of a county to apprehend persons subject to this part |
9 | charged with an offense under this part and to deliver such |
10 | persons into the custody of the State military forces. |
11 | (f) Definition.--As used in this section, the following |
12 | words and phrases shall have the meanings given to them in this |
13 | subsection unless the context clearly indicates otherwise: |
14 | "Apprehension." The taking of a person subject to this part |
15 | into custody. |
16 | § 5202. Apprehension of persons absent without leave. |
17 | Any civil officer having authority to apprehend offenders |
18 | under the laws of the United States or of this Commonwealth, or |
19 | any military officer subject to this part who has been |
20 | authorized by the Governor by regulation, may summarily |
21 | apprehend any person subject to this part absent without leave |
22 | from the State military forces and deliver him into the custody |
23 | of the State military forces. |
24 | § 5203. Imposition of restraint. |
25 | (a) Enlisted personnel.--An enlisted person subject to this |
26 | part may be ordered into arrest or confinement by any |
27 | commissioned officer by an order, oral or written, delivered in |
28 | person or through other persons subject to this part or through |
29 | any person authorized by this part to apprehend persons. A |
30 | commanding officer may authorize warrant officers, petty |
|
1 | officers or noncommissioned officers to order enlisted members |
2 | of his command or subject to his authority into arrest or |
3 | confinement. |
4 | (b) Commissioned officers and warrant officers.--A |
5 | commissioned officer or a warrant officer subject to this part |
6 | may be ordered into arrest or confinement only by a commanding |
7 | officer to whose authority he is subject, by an order, oral or |
8 | written, delivered in person or by another commissioned officer. |
9 | The authority to order such persons into arrest or confinement |
10 | may not be delegated. |
11 | (c) Probable cause.--No person subject to this part may be |
12 | ordered into arrest or confinement except for probable cause. |
13 | (d) Construction of section.--This section does not limit |
14 | the authority of persons authorized to apprehend offenders to |
15 | secure the custody of an alleged offender until proper authority |
16 | may be notified. |
17 | (e) Definitions.--As used in this section, the following |
18 | words and phrases shall have the meanings given to them in this |
19 | subsection unless the context clearly indicates otherwise: |
20 | "Arrest." The restraint of a person subject to this part by |
21 | an order, not imposed as a punishment for an offense, directing |
22 | him to remain within certain specified limits. |
23 | "Confinement." The physical restraint of a person subject to |
24 | this part. |
25 | § 5204. Restraint of persons charged with offenses. |
26 | (a) General rule.--Any person subject to this part charged |
27 | with an offense under this part may be ordered into arrest or |
28 | confinement. When any person subject to this part is placed in |
29 | arrest or confinement prior to trial, immediate steps shall be |
30 | taken to inform the person of the specific wrong of which the |
|
1 | person is accused and diligent steps shall be taken to try the |
2 | person or to dismiss the charges and release the person. |
3 | (b) Admission to bail.--The accused, if apprehended or |
4 | ordered into confinement prior to or during trial by a military |
5 | court, may be admitted to bail by the officer exercising special |
6 | court-martial jurisdiction over the accused, by a superior |
7 | commanding officer or by the Adjutant General. |
8 | § 5205. Place of confinement. |
9 | Persons subject to this part confined before, during, or |
10 | after trial by a military court, shall be confined in a civilian |
11 | or military confinement facility. |
12 | § 5206. Reports and receiving of prisoners. |
13 | (a) Duty to receive prisoner.--Unless otherwise authorized |
14 | by law, no facility authorized to receive prisoners under |
15 | section 5205 (relating to place of confinement) may refuse to |
16 | receive or keep any prisoner subject to this part and committed |
17 | to the facility's charge by a commissioned officer of the State |
18 | military forces when the officer furnishes a statement, signed |
19 | by the officer, of the offense charged against the prisoner. |
20 | (b) Report of commitment.--Every facility authorized to |
21 | receive prisoners under section 5205 to whose charge a prisoner |
22 | subject to this part is committed shall, within 24 hours after |
23 | that commitment, report to the commanding officer of the |
24 | prisoner the name of the prisoner, the offense charged against |
25 | the prisoner and the name of the person who ordered or |
26 | authorized the commitment. If the facility receiving and holding |
27 | a prisoner is unable to contact the prisoner's commanding |
28 | officer, the facility shall make the report to the office of |
29 | Adjutant General at the Joint Force Headquarters. |
30 | § 5207. Punishment prohibited before trial. |
|
1 | Subject to section 5804 (relating to effective date of |
2 | sentences), no person subject to this part, while being held for |
3 | trial or the result of trial, may be subjected to punishment or |
4 | penalty other than arrest or confinement upon the charges |
5 | pending against the person, nor shall the arrest or confinement |
6 | imposed upon the person be any more rigorous than the |
7 | circumstances required to insure the person's presence. The |
8 | person may be subjected to minor punishment during that period |
9 | for infractions of discipline. |
10 | § 5208. Delivery of offenders to civil authorities. |
11 | (a) General rule.--Under such regulations as may be |
12 | prescribed under this part, a person subject to this part |
13 | accused of an offense against civil authority may be delivered, |
14 | upon request, to the civil authority for trial or confinement. |
15 | (b) Effect on sentence of court-martial.--When delivery |
16 | under this section is made to any civil authority of a person |
17 | undergoing sentence of a court-martial, the delivery, if |
18 | followed by conviction in a civil tribunal, interrupts the |
19 | execution of the sentence of the court-martial. The offender, |
20 | after having answered to the civil authorities for his offense |
21 | shall, upon the request of competent military authority, be |
22 | returned to the place of original custody for the completion of |
23 | such sentence of the court-martial. |
24 | § 5209. Confinement with enemy prisoners prohibited. |
25 | No member of the State military forces may be placed in |
26 | confinement in immediate association with enemy prisoners or |
27 | other foreign nationals who are not members of the armed forces. |
28 | CHAPTER 53 |
29 | NONJUDICIAL PUNISHMENT |
30 | Sec. |
|
1 | 5301. Commanding officer's nonjudicial punishment. |
2 | § 5301. Commanding officer's nonjudicial punishment. |
3 | (a) General rule.--Under such regulations as the Governor |
4 | may prescribe, any commanding officer or officer-in-charge may |
5 | impose disciplinary punishments for minor offenses without the |
6 | intervention of a court-martial. The Governor, the Adjutant |
7 | General or a general officer or colonel in command may delegate |
8 | the powers under this section to a principal assistant who is a |
9 | member of the State military forces. |
10 | (b) Punishments by any commanding officer.--Any commanding |
11 | officer may impose upon enlisted members of the officer's |
12 | command any of the following disciplinary punishments: |
13 | (1) An admonition. |
14 | (2) A reprimand. |
15 | (3) The withholding of privileges for not more than six |
16 | months which need not be consecutive. |
17 | (4) The forfeiture of pay of not more than seven days' |
18 | pay. |
19 | (5) A fine of not more than seven days' pay or $200, |
20 | whichever is less. |
21 | (6) A reduction to the next inferior pay grade if the |
22 | grade from which the enlisted member is demoted is within the |
23 | promotion authority of the officer imposing the reduction or |
24 | any officer subordinate to the officer imposing the |
25 | reduction. |
26 | (7) Extra duties, including fatigue or other duties, for |
27 | not more than 14 days, which need not be consecutive. |
28 | (8) Restriction to certain specified limits, with or |
29 | without suspension from duty, for not more than 14 days, |
30 | which need not be consecutive. |
|
1 | (c) Punishments by major or lieutenant commander and other |
2 | officers.--Any commanding officer of the rank of major or |
3 | lieutenant commander or above may impose upon enlisted members |
4 | of the officer's command any of the following disciplinary |
5 | punishments: |
6 | (1) Any punishment authorized in subsection (b)(1), (2) |
7 | and (3). |
8 | (2) The forfeiture of not more than one-half of one |
9 | month's pay per month for two months. |
10 | (3) A fine of not more than one month's pay or $500, |
11 | whichever is less. |
12 | (4) A reduction to the lowest or any intermediate pay |
13 | grade, if the grade from which the enlisted member is demoted |
14 | is within the promotion authority of the officer imposing the |
15 | reduction or any officer subordinate to the officer imposing |
16 | the reduction. An enlisted member in a pay grade above E-4 |
17 | may not be reduced more than two pay grades. |
18 | (5) Extra duties, including fatigue or other duties, for |
19 | not more than 45 days which need not be consecutive. |
20 | (6) Restriction to certain specified limits, with or |
21 | without suspension from duty, for not more than 60 days which |
22 | need not be consecutive. |
23 | (d) Punishments by the Governor, Adjutant General and high |
24 | officers.--The Governor, the Adjutant General, an officer |
25 | exercising general court-martial convening authority or an |
26 | officer of a general or flag rank in command may impose any of |
27 | the following disciplinary punishments: |
28 | (1) Upon officers: |
29 | (i) Any punishment authorized in subsection (c)(1), |
30 | (2), (3) and (6). |
|
1 | (ii) Arrest in quarters for not more than 30 days |
2 | which need not be consecutive. |
3 | (2) Upon enlisted members, any punishment authorized in |
4 | subsection (c). |
5 | (e) Limits for consecutive punishments.--Whenever any |
6 | punishments authorized under this section are combined to run |
7 | consecutively, the total length of the combined punishment shall |
8 | not exceed the authorized duration of the highest punishment the |
9 | Governor, Adjutant General or officer may impose. Punishments |
10 | must be apportioned so that no single punishment exceeds its |
11 | authorized length under this section. |
12 | (f) Preliminary requirements.--Prior to the offer of |
13 | nonjudicial punishment, the commanding officer shall determine |
14 | whether arrest in quarters or restriction shall be considered as |
15 | punishments. Should the commanding officer determine that the |
16 | punishment options may include arrest in quarters or |
17 | restriction, the accused shall be notified of the right to |
18 | demand trial by court-martial. Should the commanding officer |
19 | determine that the punishment options will not include arrest in |
20 | quarters or restriction, the accused shall be notified that |
21 | there is no right to trial by court-martial in lieu of |
22 | nonjudicial punishment. |
23 | (g) Reduction of penalty.--The officer who imposes the |
24 | punishment, or the successor in command, may at any time |
25 | suspend, set aside, mitigate or remit any part or amount of the |
26 | punishment and restore all rights, privileges and property |
27 | affected. The mitigated punishment shall not be for a greater |
28 | period than the punishment mitigated. When mitigating reduction |
29 | in grade to forfeiture of pay, the amount of the forfeiture |
30 | shall not be greater than the amount that could have been |
|
1 | imposed initially under this section by the officer who imposed |
2 | the mitigated punishment. The officer also may: |
3 | (1) Mitigate reduction in grade to forfeiture of pay. |
4 | (2) Mitigate arrest in quarters to restriction. |
5 | (3) Mitigate extra duties to restriction. |
6 | (h) Appeal from punishment.--A person punished under this |
7 | section who considers the punishment unjust or disproportionate |
8 | to the offense may, through the proper channel, appeal to the |
9 | next superior authority within 15 days after the punishment is |
10 | announced or sent to the person. The appeal shall be promptly |
11 | forwarded and decided. While awaiting a decision, the person |
12 | appealing the punishment may be required to begin to serve the |
13 | punishment adjudged. The superior authority may exercise the |
14 | same powers with respect to the punishment imposed as may be |
15 | exercised under subsection (g) by the officer who imposed the |
16 | punishment. Before acting on an appeal of a punishment, the |
17 | superior authority may refer the case to a judge advocate for |
18 | consideration and advice. |
19 | (i) Additional proceedings.--The imposition and enforcement |
20 | of disciplinary punishment under this section for any act or |
21 | omission is not a bar to trial by court-martial or a civilian |
22 | court of competent jurisdiction for a serious crime or offense |
23 | growing out of the same act or omission, and not properly |
24 | punishable under this section. The fact that a disciplinary |
25 | punishment has been enforced may be shown by the accused upon |
26 | trial, and when so shown shall be considered in determining the |
27 | measure of punishment to be adjudged in the event of a finding |
28 | of guilty. |
29 | (j) Application of forfeiture.--Whenever a punishment of |
30 | forfeiture of pay is imposed under this section, the forfeiture |
|
1 | may apply to pay accruing before, on or after the date that |
2 | punishment is imposed. |
3 | (k) Records of proceedings.--The form of records to be kept |
4 | of proceedings under this section may be prescribed by |
5 | regulations adopted by the department. The regulations may |
6 | prescribe that certain categories of the proceedings be in |
7 | writing. |
8 | (l) Restrictions.--When punishment has been imposed under |
9 | this section for an offense, nonjudicial punishment may not |
10 | again be imposed for the same offense. Once nonjudicial |
11 | punishment has been imposed, it may not be increased, upon |
12 | appeal or otherwise. When a commander determines that |
13 | nonjudicial punishment is appropriate for a particular service |
14 | member, all known offenses determined to be appropriate for |
15 | disposition by nonjudicial punishment and ready to be considered |
16 | at that time, including all offenses arising from a single |
17 | incident or course of conduct, will ordinarily be considered |
18 | together and not made the basis for multiple punishments. This |
19 | subsection does not restrict the commander's right to prefer |
20 | court-martial charges for a nonminor offense previously punished |
21 | under the provisions of this section. |
22 | CHAPTER 54 |
23 | COURTS-MARTIAL JURISDICTION |
24 | Sec. |
25 | 5401. Courts-martial classified. |
26 | 5402. Jurisdiction of courts-martial in general. |
27 | 5403. Jurisdiction of general courts-martial. |
28 | 5404. Jurisdiction of special courts-martial. |
29 | 5405. Jurisdiction of summary courts-martial. |
30 | 5406. Sentences of dismissal, dishonorable discharge or |
|
1 | bad‑conduct to be approved by Governor. |
2 | 5407. Record of proceedings. |
3 | § 5401. Courts-martial classified. |
4 | The three kinds of courts-martial in the State military |
5 | forces are: |
6 | (1) General courts-martial, consisting of: |
7 | (i) a military judge and not less than five members; |
8 | or |
9 | (ii) only a military judge if, before the court is |
10 | assembled, the accused, knowing the identity of the |
11 | military judge and after consultation with defense |
12 | counsel, requests orally on the record or in writing a |
13 | court composed only of a military judge and the military |
14 | judge approves. |
15 | (2) Special courts-martial, consisting of: |
16 | (i) a military judge and not less than three |
17 | members; or |
18 | (ii) only a military judge, if one has been detailed |
19 | to the court, and the accused under the same conditions |
20 | as those prescribed in paragraph (1)(ii) so requests. |
21 | (3) Summary courts-martial, consisting of one |
22 | commissioned officer. |
23 | § 5402. Jurisdiction of courts-martial in general. |
24 | Each force of the State military forces has court-martial |
25 | jurisdiction over all members of the force who are subject to |
26 | this part. The Pennsylvania National Guard has court-martial | <-- |
27 | jurisdiction over all members subject to this part. |
28 | § 5403. Jurisdiction of general courts-martial. |
29 | Subject to section 5402 (relating to jurisdiction of courts- |
30 | martial in general), general courts-martial have jurisdiction to |
|
1 | try persons subject to this part for any offense made punishable |
2 | by this part and may, under such limitations as the Governor may |
3 | prescribe, adjudge any punishment not prohibited by this part |
4 | including any of the following punishments: |
5 | (1) A fine of not more than $10,000. |
6 | (2) Confinement for not more than five years. |
7 | (3) Forfeiture of all pay and allowances for a period |
8 | not exceeding five years. |
9 | (4) Dismissal, dishonorable discharge or bad‑conduct |
10 | discharge. |
11 | (5) Reduction of an enlisted member to any lower |
12 | enlisted grade. |
13 | (6) A reprimand. |
14 | (7) Any combination of these punishments. |
15 | § 5404. Jurisdiction of special courts-martial. |
16 | Subject to section 5402 (relating to jurisdiction of courts- |
17 | martial in general), special courts-martial shall have |
18 | jurisdiction to try persons subject to this part for any offense |
19 | made punishable by this part and may, under such limitations as |
20 | the Governor may prescribe, adjudge any of the following |
21 | punishments: |
22 | (1) A fine of not more than $2,500. |
23 | (2) Confinement for not more than one year. |
24 | (3) Forfeiture of all pay and allowances for a period |
25 | not exceeding one year. |
26 | (4) A bad‑conduct discharge. |
27 | (5) Reduction of an enlisted member to any lower |
28 | enlisted grade. |
29 | (6) A reprimand. |
30 | (7) Any combination of these punishments. |
|
1 | § 5405. Jurisdiction of summary courts-martial. |
2 | (a) General rule.--Subject to section 5402 (relating to |
3 | jurisdiction of courts-martial in general), summary courts- |
4 | martial shall have jurisdiction to try all persons subject to |
5 | this part, except officers, cadets, candidates and midshipmen, |
6 | for any offense made punishable by this part and may, under such |
7 | limitations as the Governor may prescribe, adjudge any of the |
8 | following punishments: |
9 | (1) A fine of not more than $500. |
10 | (2) Confinement for not more than ten days. |
11 | (3) Restriction to specified limits for no more than two |
12 | months. |
13 | (4) Forfeiture of not more than two-thirds of pay for a |
14 | period not exceeding one month. |
15 | (5) Reduction to the next lower grade. |
16 | (b) Objection to summary court-martial.--No person with |
17 | respect to whom summary courts-martial have jurisdiction may be |
18 | brought to trial before a summary court-martial if the person |
19 | objects thereto. If objection to trial by summary court-martial |
20 | is made by an accused, trial shall be ordered by special or |
21 | general court-martial, as may be appropriate. |
22 | § 5406. Sentences of dismissal, dishonorable discharge or |
23 | bad‑conduct to be approved by Governor. |
24 | In the State military forces, no sentence of dismissal, |
25 | dishonorable discharge or bad‑conduct discharge shall be |
26 | executed until it is approved by the Governor. |
27 | § 5407. Record of proceedings. |
28 | A complete written record of proceedings and testimony shall |
29 | be made for any general court-martial under this part. A |
30 | bad‑conduct discharge may not be adjudged by any special court- |
|
1 | martial unless a complete written record of the proceedings and |
2 | testimony before the court has been made. |
3 | CHAPTER 55 |
4 | APPOINTMENT AND COMPOSITION |
5 | OF COURTS-MARTIAL |
6 | Sec. |
7 | 5501. Who may convene general courts-martial. |
8 | 5502. Who may convene special courts-martial. |
9 | 5503. Who may convene summary courts-martial. |
10 | 5504. Who may serve on courts-martial. |
11 | 5505. Military judge of a general or special court-martial. |
12 | 5506. Appointment of trial counsel and defense counsel. |
13 | 5507. Detail or employment of reporters and interpreters. |
14 | 5508. Absent and additional members. |
15 | § 5501. Who may convene general courts-martial. |
16 | (a) General rule.--General courts-martial may be convened by |
17 | any of the following: |
18 | (1) The Governor. |
19 | (2) The Adjutant General. |
20 | (3) A deputy adjutant general authorized by a regulation |
21 | of the Governor. |
22 | (4) The commanding general of a division. |
23 | (5) The general officer in command of a wing. |
24 | (b) Commanding officer as accuser.--When a commanding |
25 | officer is an accuser, the court shall be convened by superior |
26 | competent authority, and may in any case be convened by such |
27 | authority when deemed desirable by such authority. |
28 | § 5502. Who may convene special courts-martial. |
29 | (a) General rule.--Special courts-martial may be convened by |
30 | any of the following: |
|
1 | (1) Any person who may convene a general court-martial. |
2 | (2) The commanding officer of a garrison, fort, post, |
3 | camp, station, Pennsylvania National Guard base or station. | <-- |
4 | (3) The commanding officer of a brigade, regiment or |
5 | corresponding unit of the Army. |
6 | (4) The commanding officer of a group or corresponding |
7 | unit of the Air Force. |
8 | (5) The commanding officer or officer in charge of any |
9 | other command when authorized by the Adjutant General. |
10 | § 5503. Who may convene summary courts-martial. |
11 | (a) General rule.--Summary courts-martial may be convened by |
12 | any of the following: |
13 | (1) Any person who may convene a general or special |
14 | court-martial. |
15 | (2) The commanding officer of a company, a detached |
16 | company or other detachment or corresponding unit of the |
17 | Army. |
18 | (3) The commanding officer of a squadron, a detached |
19 | squadron or other detachment or corresponding unit of the Air |
20 | Force. |
21 | (4) The commanding officer or officer in charge of any |
22 | other command when authorized by the Adjutant General. |
23 | (b) Commissioned officer or superior authority.--When only |
24 | one commissioned officer is present with a command or |
25 | detachment, that officer shall preside over the summary court- |
26 | martial of that command or detachment and shall hear and |
27 | determine all summary court-martial cases brought before him, |
28 | provided that the officer is not the accuser or a witness. |
29 | Summary courts-martial may, however, be convened in any case by |
30 | superior competent authority when considered desirable by such |
|
1 | authority. |
2 | § 5504. Who may serve on courts-martial. |
3 | (a) Commissioned officer.--Any commissioned officer of the |
4 | State military forces who is not a member of the same unit as |
5 | the accused is eligible to serve on all courts-martial for the |
6 | trial of any person who may lawfully be brought before such |
7 | courts for trial. |
8 | (b) Warrant officer.--Any warrant officer of the State |
9 | military forces who is not a member of the same unit as the |
10 | accused is eligible to serve on general and special courts- |
11 | martial for the trial of any person, other than a commissioned |
12 | officer, who may lawfully be brought before such courts for |
13 | trial. |
14 | (c) Enlisted member.--Any enlisted member of the State |
15 | military forces who is not a member of the same unit as the |
16 | accused is eligible to serve on general and special courts- |
17 | martial for the trial of any enlisted member who may lawfully be |
18 | brought before such courts for trial. The member shall serve as |
19 | a member of a court only if, prior to the conclusion of a |
20 | session called by the military judge under section 5704 |
21 | (relating to sessions), or prior to trial, or in the absence of |
22 | such a session, before the court is assembled for the trial of |
23 | the accused, the accused has requested orally on the record or |
24 | in writing that enlisted members serve on it. After such a |
25 | request, the accused may not be tried by a general or special |
26 | court-martial, the membership of which does not include enlisted |
27 | members in a number comprising at least one-third of the total |
28 | membership of the court, unless eligible members cannot be |
29 | obtained on account of physical conditions or military |
30 | exigencies. If such members cannot be obtained, the court may be |
|
1 | assembled and the trial held without them, but the convening |
2 | authority shall make a detailed written statement, to be |
3 | appended to the record, stating why they could not be obtained. |
4 | (d) Ineligible persons.-- |
5 | (1) Except in exigent circumstances, no person subject |
6 | to this part may be tried by a court-martial any member of |
7 | which is junior to him in rank or grade. |
8 | (2) When convening a court-martial, the convening |
9 | authority shall detail as members thereof such members of the |
10 | State military forces as, in his opinion, are best qualified |
11 | for the duty by reason of age, education, training, |
12 | experience, length of service and judicial temperament. No |
13 | member of the State military forces is eligible to serve as a |
14 | member of a general or special court-martial when that member |
15 | is the accuser or a witness or has acted as investigating |
16 | officer or as counsel in the same case. |
17 | (f) Excuse.--Before a court-martial is assembled for the |
18 | trial of a case, the convening authority may excuse a member of |
19 | the court from participating in the case. The convening |
20 | authority may delegate the authority under this subsection to a |
21 | judge advocate or to any other principal assistant. |
22 | (g) Definition.--As used in this section, the following |
23 | words and phrases shall have the meanings given to them in this |
24 | subsection unless the context clearly indicates otherwise: |
25 | "Unit." Any regularly organized body of the State military |
26 | forces not larger than a company or a squadron or a body |
27 | corresponding to one of them. |
28 | § 5505. Military judge of a general or special court-martial. |
29 | (a) General rule.--A military judge shall be detailed to |
30 | each general and special court-martial. The military judge shall |
|
1 | preside over each open session of the court-martial to which the |
2 | military judge has been detailed. |
3 | (b) Eligibility.--A military judge shall be: |
4 | (1) a judge advocate in the grade of lieutenant colonel |
5 | or above in the State military forces, a federally-recognized |
6 | judge advocate of the National Guard of another state, a |
7 | judge advocate of the armed forces of the United States or a |
8 | retired judge advocate of the State military forces in the |
9 | grade of lieutenant colonel or above who retired no more than |
10 | ten years prior to the date of trial; |
11 | (2) a member in good standing of the bar of the Supreme |
12 | Court or the highest court of another state or a member of |
13 | the bar of a Federal court for at least five years; and |
14 | (3) certified as qualified for duty as a military judge |
15 | by the State Judge Advocate or other appropriate authority |
16 | after completion of such training and certification required |
17 | for military judges in any of the armed forces of the United |
18 | States. |
19 | (c) Pro hac vice admission.--When a military judge is not a |
20 | member of the bar of the Supreme Court, the military judge shall |
21 | be deemed admitted pro hac vice, subject to filing a certificate |
22 | with the State Judge Advocate setting forth the qualifications |
23 | required under subsection (b). |
24 | (d) Designation.--The military judge of a general or special |
25 | court-martial shall be designated by the State Judge Advocate or |
26 | a designee for detail in the convening authority. Neither the |
27 | convening authority nor any staff member of the convening |
28 | authority shall prepare or review any report concerning the |
29 | effectiveness, fitness or efficiency of the military judge so |
30 | detailed which relates to performance of duty as a military |
|
1 | judge. |
2 | (e) Ineligibility.--No person is eligible to serve as |
3 | military judge if the person is the accuser or a witness in the |
4 | case or has acted as investigating officer or a counsel in the |
5 | case. |
6 | (f) Limitation on powers.--The military judge may not |
7 | consult with the members of the court except in the presence of |
8 | the accused, trial counsel and defense counsel. The military |
9 | judge shall not vote with the members of the court. |
10 | § 5506. Appointment of trial counsel and defense counsel. |
11 | (a) General rule.--For each general and special court- |
12 | martial, the convening authority for the court shall detail |
13 | trial counsel, defense counsel and such assistants as are |
14 | appropriate. No person who has acted as investigating officer, |
15 | military judge, witness or court member in any case shall act |
16 | subsequently as trial counsel, assistant trial counsel or, |
17 | unless expressly requested by the accused, as defense counsel or |
18 | assistant or associate defense counsel in the same case. No |
19 | person who has acted for the prosecution may act later in the |
20 | same case for the defense, nor shall any person who has acted |
21 | for the defense act later in the same case for the prosecution. |
22 | (b) Eligibility.--Any person who is detailed trial counsel |
23 | or defense counsel in the case of a general or a special court- |
24 | martial shall be a judge advocate as defined in section 5102 |
25 | (relating to definitions). |
26 | (c) Pro hac vice admission.--When a defense counsel is not a |
27 | member of the bar of the highest court of the State, the defense |
28 | counsel shall be deemed admitted pro hac vice, subject to filing |
29 | a certificate with the State Judge Advocate setting forth the |
30 | qualification required under subsection (b). |
|
1 | § 5507. Detail or employment of reporters and interpreters. |
2 | Under such regulations as the Governor or department may |
3 | prescribe, the convening authority of a general or special |
4 | court-martial or court of inquiry shall detail or employ |
5 | qualified court reporters, who shall record the proceedings of |
6 | and testimony taken before that court. Under like regulations, |
7 | the convening authority of a military court may detail or employ |
8 | interpreters who shall interpret for the court. |
9 | § 5508. Absent and additional members. |
10 | (a) Authorized absence.--No member of a general or special |
11 | court-martial may be absent or excused after the court has been |
12 | assembled for the trial of the accused, except by the military |
13 | judge as a result of a challenge, for physical disability or |
14 | other good cause or by order of the convening authority for good |
15 | cause. |
16 | (b) New members of general court-martial.--Whenever a |
17 | general court-martial, other than a general court-martial |
18 | composed of only a military judge, is reduced below five |
19 | members, the trial shall not proceed unless the convening |
20 | authority details new members sufficient in number to provide |
21 | not less than five members. The trial may proceed with the new |
22 | members present after the recorded evidence previously |
23 | introduced before the members of the court has been read to the |
24 | court in the presence of the military judge, the accused and |
25 | counsel for both sides. |
26 | (c) New members of special court-martial.--Whenever a |
27 | special court-martial, other than a special court-martial |
28 | composed of only a military judge, is reduced below three |
29 | members, the trial may not proceed unless the convening |
30 | authority details new members sufficient in number to provide |
|
1 | not less than three members. The trial shall proceed with the |
2 | new members present as if no evidence had been introduced |
3 | previously at the trial, unless a verbatim record of the |
4 | evidence previously introduced before the members of the court |
5 | or a stipulation thereof is read to the court in the presence of |
6 | the military judge, the accused and counsel for both sides. |
7 | (d) New military judge of court-martial.--If the military |
8 | judge of a court-martial composed of only a military judge is |
9 | unable to proceed with the trial because of physical disability, |
10 | as a result of a challenge, or for other good cause, the trial |
11 | shall proceed, subject to any applicable conditions of section |
12 | 5401 (relating to courts-martial classified), after the detail |
13 | of a new military judge as if no evidence had previously been |
14 | introduced, unless a verbatim record of the evidence previously |
15 | introduced or a stipulation thereof is read in court in the |
16 | presence of the new military judge, the accused and counsel for |
17 | both sides. |
18 | CHAPTER 56 |
19 | PRETRIAL PROCEDURE |
20 | Sec. |
21 | 5601. Charges and specifications. |
22 | 5602. Compulsory self-incrimination prohibited. |
23 | 5603. Investigation. |
24 | 5604. Forwarding of charges. |
25 | 5605. Advice of judge advocate and reference for trial. |
26 | 5606. Service of charges. |
27 | § 5601. Charges and specifications. |
28 | (a) Execution and contents.--Charges and specifications |
29 | shall be signed by a person subject to this part under oath |
30 | before a commissioned officer authorized by this part to |
|
1 | administer oaths and shall state: |
2 | (1) That the signer has personal knowledge of, or has |
3 | investigated, the matters set forth therein. |
4 | (2) That they are true in fact to the best of the |
5 | signer's knowledge and belief. |
6 | (b) Disposition.--Upon the preferring of charges, the proper |
7 | authority shall take immediate steps to determine what |
8 | disposition should be made thereof in the interest of justice |
9 | and discipline. The person accused shall be informed of the |
10 | charges against him as soon as practicable. |
11 | § 5602. Compulsory self-incrimination prohibited. |
12 | (a) General rule.--No person subject to this part shall |
13 | compel any person to incriminate himself or to answer any |
14 | question the answer to which may tend to incriminate the person. |
15 | (b) Advising accused of rights.--No person subject to this |
16 | part shall interrogate or request any statement from an accused |
17 | or a person suspected of an offense without first informing the |
18 | person of the nature of the accusation, advising the person that |
19 | he does not have to make any statement regarding the offense of |
20 | which he is accused or suspected, that the person has a right to |
21 | be represented by counsel and that any statement made by the |
22 | person may be used as evidence against him in a trial by court- |
23 | martial. |
24 | (c) Immaterial or degrading evidence.--No person subject to |
25 | this part shall compel any person to make a statement or produce |
26 | evidence before any military court if the statement or evidence |
27 | is not material to the issue and may tend to degrade the person. |
28 | (d) Unlawfully obtained statement inadmissible.--No |
29 | statement obtained from any person in violation of this section, |
30 | or through the use of coercion, unlawful influence or unlawful |
|
1 | inducement shall be received in evidence against him in a trial |
2 | by court-martial. |
3 | § 5603. Investigation. |
4 | (a) General rule.--No charge or specification may be |
5 | referred to a general court-martial for trial until a thorough |
6 | and impartial investigation of all the matters set forth therein |
7 | has been made. This investigation shall include inquiry as to |
8 | the truth of the matter set forth in the charges, consideration |
9 | of the form of charges and a recommendation as to the |
10 | disposition which should be made of the case in the interest of |
11 | justice and discipline. |
12 | (b) Rights of accused.--The accused shall be advised of the |
13 | charges against him and of the right to be represented at that |
14 | investigation by counsel. Upon the accused's request he shall be |
15 | represented by civilian counsel if provided by him, military |
16 | counsel of his own selection, if such counsel is reasonably |
17 | available, by counsel appointed through procedures of the |
18 | Pennsylvania National Guard, or, in the absence of such specific | <-- |
19 | procedures, by the person exercising general court-martial |
20 | jurisdiction over the command. At such investigation full |
21 | opportunity shall be given to the accused to cross-examine |
22 | witnesses against him if they are available and to present |
23 | anything the accused may desire in his own behalf, either in |
24 | defense or mitigation, and the investigating officer shall |
25 | examine available witnesses requested by the accused. If the |
26 | charges are forwarded after such investigation, they shall be |
27 | accompanied by a statement of the substance of the testimony |
28 | taken on both sides and a copy thereof shall be given to the |
29 | accused. |
30 | (c) Further investigation.--If an investigation of the |
|
1 | subject matter of an offense has been conducted before the |
2 | accused is charged with the offense, and if the accused was |
3 | present at the investigation and afforded the opportunities for |
4 | representation, cross-examination and presentation prescribed in |
5 | subsection (b), no further investigation of that charge is |
6 | necessary under this section unless it is demanded by the |
7 | accused after the accused is informed of the charge. A demand |
8 | for further investigation entitles the accused to recall |
9 | witnesses for further cross-examination and to offer any new |
10 | evidence in the accused's own behalf. |
11 | (d) Additional offenses.--If evidence adduced in an |
12 | investigation indicates that the accused committed an uncharged |
13 | offense, the investigating officer may investigate the subject |
14 | matter of that offense without the accused having first been |
15 | charged with the offense if the accused is: |
16 | (1) present at the investigation; |
17 | (2) informed of the nature of each uncharged offense |
18 | investigated; and |
19 | (3) afforded the rights of representation, cross- |
20 | examination and presentation prescribed in subsection (b). |
21 | (e) Requirements mandatory.--The requirements of this |
22 | section are binding on all persons administering this part but |
23 | failure to follow them does not constitute jurisdictional error. |
24 | § 5604. Forwarding of charges. |
25 | When a person is held for trial by general court-martial, the |
26 | commanding officer shall, within eight days after the accused is |
27 | ordered into arrest or confinement, if practicable, forward the |
28 | charges, together with the investigation and allied papers, to |
29 | the person exercising general court-martial jurisdiction. If |
30 | that is not practicable, the commanding officer shall report in |
|
1 | writing to that person the reasons for delay. |
2 | § 5605. Advice of judge advocate and reference for trial. |
3 | (a) General rule.--Before directing the trial of any charge |
4 | by general court-martial, the convening authority shall refer it |
5 | to a judge advocate for consideration and advice. The convening |
6 | authority shall not refer a specification under a charge to a |
7 | general court-martial for trial unless the convening authority |
8 | has been advised in writing by a judge advocate of all of the |
9 | following: |
10 | (1) The specification alleges an offense under this |
11 | part. |
12 | (2) The specification is warranted by the evidence |
13 | indicated in the report of investigation under section 5603 |
14 | (relating to investigation), if there is such a report. |
15 | (3) A court-martial would have jurisdiction over the |
16 | accused and the offense. |
17 | (b) Advice of judge advocate.--The advice of the judge |
18 | advocate under subsection (a) with respect to a specification |
19 | under a charge shall include a written and signed statement by |
20 | the judge advocate expressing conclusions with respect to each |
21 | matter set forth in subsection (a) and recommending action that |
22 | the convening authority take regarding the specification. If the |
23 | specification is referred for trial, the recommendation of the |
24 | judge advocate shall accompany the specification. |
25 | (c) Changes in charges and specifications.--If the charges |
26 | or specifications are not correct formally or do not conform to |
27 | the substance of the evidence contained in the report of the |
28 | investigating officer, formal corrections and such changes in |
29 | the charges and specifications as are needed to make them |
30 | conform to the evidence, may be made by the appointing |
|
1 | authority. |
2 | § 5606. Service of charges. |
3 | The trial counsel to whom court-martial charges are referred |
4 | for trial shall cause to be served upon the accused a copy of |
5 | the charges upon which trial is to be had. No person shall, |
6 | against the person's objection, be brought to trial in a general |
7 | court-martial case within a period of five days after the |
8 | service of charges upon the person, or in a special court- |
9 | martial within a period of three days after the service of |
10 | charges upon the person. |
11 | CHAPTER 57 |
12 | TRIAL PROCEDURE |
13 | Sec. |
14 | 5701. Governor and department may prescribe rules. |
15 | 5702. Unlawfully influencing action of court. |
16 | 5703. Duties of trial counsel and defense counsel. |
17 | 5704. Sessions. |
18 | 5705. Continuances. |
19 | 5706. Challenges. |
20 | 5707. Oaths or affirmations. |
21 | 5708. Statute of limitations. |
22 | 5709. Former jeopardy. |
23 | 5710. Pleas of accused. |
24 | 5711. Opportunity to obtain witnesses and other evidence. |
25 | 5712. Refusal to appear or testify. |
26 | 5713. Contempts. |
27 | 5714. Depositions. |
28 | 5715. Admissibility of records of courts of inquiry. |
29 | 5716. Voting and rulings. |
30 | 5717. Number of votes required. |
|
1 | 5718. Court to announce action. |
2 | 5719. Record of trial. |
3 | 5720. Defense of lack of mental responsibility. |
4 | 5721. Effect of finding of lack of mental capacity on trial |
5 | proceedings. |
6 | 5722. Trial finding of lack of mental responsibility. |
7 | § 5701. Governor and department may prescribe rules. |
8 | (a) General rule.--Pretrial, trial and posttrial procedures, |
9 | including modes of proof, in court-martial cases arising under |
10 | this part and for courts of inquiry may be prescribed by the |
11 | Governor or the department as delegated by the Governor, by |
12 | regulations, which shall apply the principles of law and the |
13 | rules of evidence generally recognized in military criminal |
14 | cases in courts-martial of the armed forces but which shall not |
15 | be contrary to or inconsistent with this part. |
16 | (b) Uniformity.--All rules and regulations made pursuant to |
17 | the provisions of this section shall be uniform insofar as |
18 | practicable among the State military forces. |
19 | § 5702. Unlawfully influencing action of court. |
20 | (a) General rule.--No authority convening a general, special |
21 | or summary court-martial, nor any other commanding officer or |
22 | officer serving on the staff thereof, shall censure, reprimand |
23 | or admonish the court or any member, military judge or counsel |
24 | thereof, with respect to the findings or sentence adjudged by |
25 | the court or with respect to any other exercise of its or his |
26 | functions in the conduct of the proceedings. No person subject |
27 | to this part may attempt to coerce or, by any unauthorized |
28 | means, influence the action of a court-martial or court of |
29 | inquiry or any member thereof in reaching the findings or |
30 | sentence in any case, or the action of any convening, approving |
|
1 | or reviewing authority with respect to his judicial acts. |
2 | (b) Exceptions.--Subsection (a) shall not apply with respect |
3 | to any of the following: |
4 | (1) General instructional or informational courses in |
5 | military justice if such courses are designed solely for the |
6 | purpose of instructing members of a command in the |
7 | substantive and procedural aspects of courts-martial. |
8 | (2) Statements and instructions given in open court by |
9 | the military judge, summary court-martial officer or counsel. |
10 | (c) Performance reports on members and counsel.--In the |
11 | preparation of an effectiveness, fitness or efficiency report or |
12 | any other report or document used in whole or in part for the |
13 | purpose of determining whether a member of the State military |
14 | forces is qualified to be advanced in grade, in determining the |
15 | assignment or transfer of a member of the State military forces |
16 | or in determining whether a member of the State military forces |
17 | should be retained on active status, no person subject to this |
18 | part may, in preparing any such report: |
19 | (1) consider or evaluate the performance of duty of any |
20 | such member as a member of a court-martial or witness |
21 | therein; or |
22 | (2) give a less favorable rating or evaluation of any |
23 | counsel because of the zeal with which counsel represented |
24 | the accused before a court-martial. |
25 | § 5703. Duties of trial counsel and defense counsel. |
26 | (a) Trial counsel.--The trial counsel of a general or |
27 | special court-martial shall prosecute in the name of the |
28 | Commonwealth and shall, under the direction of the court, |
29 | prepare the record of the proceedings. |
30 | (b) Defense counsel.-- |
|
1 | (1) The accused has the right to be represented in his |
2 | defense before a general or special court-martial or at an |
3 | investigation under section 5603 (relating to investigation). |
4 | The accused may be represented by civilian counsel at the |
5 | provision and expense of the accused or may be represented by |
6 | military counsel of his own selection if reasonably available |
7 | or by the defense counsel appointed under section 5506 |
8 | (relating to appointment of trial counsel and defense |
9 | counsel). |
10 | (2) Should the accused have civilian counsel of his own |
11 | selection, the defense counsel and assistant defense counsel, |
12 | if any, who were detailed shall act as associate counsel |
13 | unless excused at the request of the accused. |
14 | (3) Except as provided under paragraph (4), should the |
15 | accused have military counsel of his own selection, the |
16 | defense counsel and assistant defense counsel, if any, who |
17 | were detailed may be excused by the military judge. |
18 | (4) The accused is not entitled to be represented by |
19 | more than one military counsel. However, the person |
20 | authorized under regulations prescribed under section 5701 |
21 | (relating to Governor and department may prescribe rules), |
22 | may prescribe rules to detail counsel and may do any of the |
23 | following: |
24 | (i) Detail additional military counsel as assistant |
25 | defense counsel. |
26 | (ii) If the accused is represented by military |
27 | counsel of the accused's own selection, approve a request |
28 | from the accused that military counsel detailed to the |
29 | accused act as associate defense counsel. |
30 | (5) The State Judge Advocate of the same force of which |
|
1 | the accused is a member shall determine whether the military |
2 | counsel selected by an accused is reasonably available. |
3 | (c) Brief by defense counsel.--In any court-martial |
4 | proceeding resulting in a conviction, the defense counsel may |
5 | forward for attachment to the record of proceedings a brief of |
6 | such matters he determines should be considered in behalf of the |
7 | accused on review, including any objection to the contents of |
8 | the record which counsel considers appropriate. |
9 | (d) Assistant trial counsel.--An assistant trial counsel of |
10 | a general court-martial may, under the direction of the trial |
11 | counsel or if he is qualified to be a trial counsel under |
12 | section 5506, perform any duty imposed by law, regulation or the |
13 | custom of the service upon the trial counsel of the court. An |
14 | assistant trial counsel of a special court-martial may perform |
15 | any duty of the trial counsel. |
16 | (e) Assistant defense counsel.--An assistant defense counsel |
17 | of a general or special court-martial may, under the direction |
18 | of the defense counsel or if he is qualified to be the defense |
19 | counsel under section 5506, perform any duty imposed by law, |
20 | regulation or the custom of the service upon counsel for the |
21 | accused. |
22 | § 5704. Sessions. |
23 | (a) Proceedings in absence of members.--At any time after |
24 | the service of charges which have been referred for trial to a |
25 | court-martial composed of a military judge and members, the |
26 | military judge may, subject to section 5606 (relating to service |
27 | of charges), call the court into session without the presence of |
28 | the members for the purpose of: |
29 | (1) hearing and determining motions raising defenses or |
30 | objections which are capable of determination without trial |
|
1 | of the issues raised by a plea of not guilty; |
2 | (2) hearing and ruling upon any matter which may be |
3 | ruled upon by the military judge under this section, whether |
4 | or not the matter is appropriate for later consideration or |
5 | decision by the members of the court; |
6 | (3) holding the arraignment and receiving the pleas of |
7 | the accused; and |
8 | (4) performing any other procedural function which may |
9 | be performed by the military judge under this part or under |
10 | rules prescribed pursuant to section 5701 (relating to |
11 | Governor and department may prescribe rules) and which does |
12 | not require the presence of the members of the court. |
13 | These proceedings shall be conducted in the presence of the |
14 | accused, the defense counsel and the trial counsel and shall be |
15 | made a part of the record. These proceedings may be conducted |
16 | notwithstanding the number of court members and without regard |
17 | to the provisions of section 5508 (relating to absent and |
18 | additional members). |
19 | (b) Other proceedings.--When the members of a court-martial |
20 | deliberate or vote, only the members may be present. All other |
21 | proceedings, including any other consultation of the court with |
22 | counsel or the military judge, shall be made a part of the |
23 | record and shall be in the presence of the accused, the defense |
24 | counsel, the trial counsel and the military judge. |
25 | § 5705. Continuances. |
26 | The military judge of a court-martial or a summary court- |
27 | martial may, for reasonable cause, grant a continuance to any |
28 | party for such time, and as often, as may appear to be just. |
29 | § 5706. Challenges. |
30 | (a) Challenges for cause.--The military judge and members of |
|
1 | a general or special court-martial may be challenged by the |
2 | accused or the trial counsel for cause stated to the court. The |
3 | military judge shall determine the relevancy and validity of |
4 | challenges for cause and shall not receive a challenge to more |
5 | than one person at a time. Challenges by the trial counsel shall |
6 | ordinarily be presented and decided before those by the accused |
7 | are offered. If exercise of a challenge for cause reduces the |
8 | court below the minimum number of members required by section |
9 | 5401 (relating to courts-martial classified), the parties shall, |
10 | notwithstanding section 5508 (relating to absent and additional |
11 | members), exercise or waive any challenge for cause against the |
12 | remaining members of the court before additional members are |
13 | detailed to the court. |
14 | (b) Preemptory challenges.--Each accused and the trial |
15 | counsel are entitled to one initial peremptory challenge of |
16 | members of the court. The military judge may not be challenged |
17 | except for cause. When new members are detailed to the court to |
18 | meet the minimum number of members required by section 5401 and |
19 | after any challenges for cause against the new members are |
20 | presented and decided, each accused and the trial counsel are |
21 | entitled to one peremptory challenge against members not |
22 | previously subject to peremptory challenge. |
23 | § 5707. Oaths or affirmations. |
24 | (a) General rule.--Before performing their respective |
25 | duties, military judges, members of general and special courts- |
26 | martial, trial counsel, assistant trial counsel, defense |
27 | counsel, assistant defense counsel, reporters and interpreters |
28 | shall take an oath or affirmation in the presence of the accused |
29 | to perform their duties faithfully. The form of the oath or |
30 | affirmation, the time and place of the taking thereof, the |
|
1 | manner of recording the same and whether the oath or affirmation |
2 | shall be taken for all cases in which these duties are to be |
3 | performed or for a particular case, shall be in accordance with |
4 | regulations prescribed by the Governor or the department. These |
5 | regulations may provide that an oath or affirmation to perform |
6 | faithfully the duties as a military judge, trial counsel, |
7 | assistant trial counsel, defense counsel or assistant defense |
8 | counsel may be taken at any time by any judge advocate or other |
9 | person certified or designated to be qualified or competent for |
10 | the duty, and if such an oath or affirmation is taken, it need |
11 | not be taken again at the time the judge advocate or other |
12 | person is detailed to that duty. |
13 | (b) Witnesses.--Each witness before a court-martial shall be |
14 | examined under oath or affirmation. |
15 | § 5708. Statute of limitations. |
16 | (a) Two-year limitation.--Except as otherwise provided in |
17 | this part, a person subject to this part charged with any |
18 | offense shall not be liable to be tried by court-martial or |
19 | punished under section 5301 (relating to commanding officer's |
20 | nonjudicial punishment) if the offense was committed more than |
21 | two years before the receipt of sworn charges and specifications |
22 | by an officer exercising court-martial jurisdiction over the |
23 | command or before the imposition of nonjudicial punishment under |
24 | section 5301. |
25 | (b) Computation of period of limitation.--The following |
26 | shall be excluded in computing the period of limitation |
27 | prescribed in this section: |
28 | (1) Periods in which the accused was absent without |
29 | authority or fleeing from justice. |
30 | (2) Periods in which the accused was absent from |
|
1 | territory in which the Commonwealth has the authority to |
2 | apprehend him, or in the custody of civil authorities or in |
3 | the hands of the enemy. |
4 | (3) When the United States is at war, periods during war |
5 | and until two years after the termination of hostilities as |
6 | proclaimed by the President or by a joint resolution of |
7 | Congress, when the accused commits any offense: |
8 | (i) involving fraud or attempted fraud against the |
9 | United States, the Commonwealth or any agency thereof in |
10 | any manner, whether by conspiracy or not; |
11 | (ii) in connection with the acquisition, care, |
12 | handling, custody, control or disposition of any real or |
13 | personal property of the United States or the |
14 | Commonwealth; or |
15 | (iii) in connection with the negotiation, |
16 | procurement, award, performance, payment, interim |
17 | financing, cancellation or other termination or |
18 | settlement of any contract, subcontract or purchase order |
19 | which is connected with or related to the prosecution of |
20 | the war or with any disposition of termination inventory |
21 | by any war contractor or government agency. |
22 | (c) Subsequent action not barred.--If charges or |
23 | specifications are dismissed before trial as defective or |
24 | insufficient for any cause and the period prescribed by the |
25 | applicable statute of limitations has expired or will expire |
26 | within 180 days after the date of dismissal, trial and |
27 | punishment under new charges and specifications are not barred |
28 | by the statute of limitations if the new charges and |
29 | specifications: |
30 | (1) are received by an officer exercising summary court- |
|
1 | martial jurisdiction over the command within 180 days after |
2 | the dismissal of the charges or specifications; and |
3 | (2) allege the same acts or omissions that were included |
4 | in the dismissed charges or specifications. |
5 | § 5709. Former jeopardy. |
6 | (a) General rule.--No person subject to this part shall, |
7 | without the person's consent, be tried a second time for the |
8 | same offense. Prosecution under this part shall not bar |
9 | prosecution by civil authorities for a crime or offense growing |
10 | out of the same act or omission committed in violation of the |
11 | laws of the civil jurisdiction. |
12 | (b) Definition of trial.--No proceeding in which an accused |
13 | has been found guilty by a court-martial upon any charge or |
14 | specification is a trial in the sense of this section until the |
15 | finding of guilty has become final after review of the case has |
16 | been fully completed. However, a proceeding which, after the |
17 | introduction of evidence but before a finding, is dismissed or |
18 | terminated by the convening authority or on motion of the |
19 | prosecution for failure of available evidence or witnesses |
20 | without any fault of the accused is a trial in the sense of this |
21 | section. |
22 | § 5710. Pleas of the accused. |
23 | (a) Inadequacy or lack of pleading.--A plea of not guilty |
24 | shall be entered in the record, and the court shall proceed as |
25 | though the accused had pleaded not guilty, if, after arraignment |
26 | before a court martial: |
27 | (1) an accused makes an irregular pleading; |
28 | (2) after a plea of guilty an accused sets up matter |
29 | inconsistent with the plea; |
30 | (3) it appears that an accused has entered a plea of |
|
1 | guilty improvidently or through lack of understanding or its |
2 | meaning and effect; or |
3 | (4) an accused fails or refuses to plead. |
4 | (b) Plea of guilty.--With respect to any charge or |
5 | specification to which a plea of guilty has been made by the |
6 | accused and accepted by the military judge, a finding of guilty |
7 | of the charge or specification may be entered immediately |
8 | without vote. This finding shall constitute the finding of the |
9 | court unless the plea of guilty is withdrawn prior to |
10 | announcement of the sentence, in which event the proceedings |
11 | shall continue as though the accused had pleaded not guilty. |
12 | § 5711. Opportunity to obtain witnesses and other evidence. |
13 | (a) General rule.--The trial counsel, the defense counsel |
14 | and the court-martial shall have equal opportunity to obtain |
15 | witnesses and other evidence in accordance with such regulations |
16 | as the Governor or department may prescribe. |
17 | (b) Issuance of process.--The following shall apply to |
18 | issuance of process: |
19 | (1) Process issued in court-martial cases to compel |
20 | witnesses to appear and testify and to compel the production |
21 | of other evidence shall apply the principles of law and the |
22 | rules of courts-martial generally recognized in military |
23 | criminal cases in the courts of the armed forces of the |
24 | United States, unless contrary to or inconsistent with this |
25 | part. |
26 | (2) If process in paragraph (1) is contrary or |
27 | inconsistent with this part, process shall be similar to that |
28 | which the courts of this Commonwealth having criminal |
29 | jurisdiction may lawfully issue and shall run to any part of |
30 | the Commonwealth and to any other state, territory or |
|
1 | district of possession in which the court-martial may be |
2 | sitting. |
3 | (3) If process in paragraphs (1) and (2) are contrary to |
4 | or inconsistent with this part, process may be executed by |
5 | civil officers as prescribed by the laws of the place where |
6 | the witness or evidence is located or of the United States. |
7 | § 5712. Refusal to appear or testify. |
8 | Any person not subject to this part who has been duly |
9 | subpoenaed to appear as a witness or to produce books and |
10 | records before a court-martial or court of inquiry or before any |
11 | military or civil officer designated to take a deposition to be |
12 | read in evidence before such a court who has been duly paid or |
13 | tendered the fees and mileage of a witness at the rates allowed |
14 | to witnesses attending a criminal court of the State and who |
15 | willfully neglects or refuses to appear, refuses to qualify as a |
16 | witness, refuses to testify or refuses to produce any evidence |
17 | which that person may have been legally subpoenaed to produce is |
18 | guilty of an offense and may be punished by the military court |
19 | in the same manner as a criminal court of the Commonwealth. |
20 | § 5713. Contempts. |
21 | A military judge or summary court-martial officer may punish |
22 | for contempt any person who uses any menacing word, sign or |
23 | gesture in his presence, or who disturbs proceedings by any riot |
24 | or disorder. The following punishments shall apply: |
25 | (1) A person subject to this part may be punished for |
26 | contempt by confinement not to exceed 30 days or a fine of |
27 | $100, or both. |
28 | (2) A person not subject to this part may be punished |
29 | for contempt by a military court in the same manner used by a |
30 | criminal court of the jurisdiction. |
|
1 | § 5714. Depositions. |
2 | (a) General rule.--At any time after charges have been |
3 | signed, as provided in section 5601 (relating to charges and |
4 | specifications) any party may take oral or written depositions |
5 | unless the military judge or summary court-martial officer |
6 | hearing the case or, if the case is not being heard, an |
7 | authority competent to convene a court-martial for the trial of |
8 | those charges forbids it for good cause. |
9 | (b) Notice of taking deposition.--The party at whose |
10 | instance a deposition is to be taken shall give to every other |
11 | party reasonable written notice of the time and place for taking |
12 | the deposition. |
13 | (c) Persons authorized to take depositions.--Depositions may |
14 | be taken before and authenticated by any military or civil |
15 | officer authorized by the laws of this Commonwealth or by the |
16 | laws of the place where the deposition is taken to administer |
17 | oaths. |
18 | (d) Admissibility in evidence.--A duly authenticated |
19 | deposition taken upon reasonable notice to the other parties, so |
20 | far as otherwise admissible under the rules of evidence, may be |
21 | read in evidence or, in the case of audiotape, videotape, |
22 | digital image or file or similar material, may be played in |
23 | evidence before any military court, if it appears: |
24 | (1) that the witness resides or is beyond the state in |
25 | which the court is ordered to sit, or beyond 100 miles from |
26 | the place of trial or hearing; |
27 | (2) that the witness, by reason of death, age, sickness, |
28 | bodily infirmity, imprisonment, military necessity, |
29 | nonamenability to process, or other reasonable cause, is |
30 | unable or refuses to appear and testify in person at the |
|
1 | place of trial or hearing; or |
2 | (3) that the present whereabouts of the witness is |
3 | unknown. |
4 | § 5715. Admissibility of records of courts of inquiry. |
5 | (a) Court-martial.--In any case not extending to the |
6 | dismissal of a commissioned officer, the sworn testimony |
7 | contained in the duly authenticated record of proceedings of a |
8 | court of inquiry of a person whose oral testimony cannot be |
9 | obtained may, if otherwise admissible under the rules of |
10 | evidence, be read in evidence by any party before a court- |
11 | martial if the accused was a party before the court of inquiry |
12 | and if the same issue was involved or if the accused consents to |
13 | the introduction of such evidence. |
14 | (b) Use of testimony by defense.--Such testimony may be read |
15 | in evidence only by the defense in cases extending to dismissal |
16 | or dishonorable discharge of a commissioned officer. |
17 | (c) Court of inquiry.--Such testimony may also be read in |
18 | evidence before a court of inquiry by either party. |
19 | § 5716. Voting and rulings. |
20 | (a) Findings, sentences and challenges.--Voting by members |
21 | of a general or special court-martial on the findings and on the |
22 | sentence shall be by secret written ballot. The junior member of |
23 | the court shall count the votes. The count shall be checked by |
24 | the president, who shall forthwith announce the result of the |
25 | ballot to the members of the court. |
26 | (b) Questions of law and interlocutory questions.--The |
27 | military judge shall rule upon all questions of law and all |
28 | interlocutory questions arising during the proceedings. Any such |
29 | ruling made by the military judge upon any question of law or |
30 | any interlocutory question other than the factual issue of |
|
1 | mental responsibility of the accused is final and constitutes |
2 | the ruling of the court. However, the military judge may change |
3 | the ruling at any time during the trial. Unless the ruling is |
4 | final, if any member objects thereto, the court shall be cleared |
5 | and closed and the question decided by a voice vote as provided |
6 | in section 5717 (relating to number of votes required), |
7 | beginning with the junior in rank. |
8 | (c) Instructions to members of court.--Before a vote is |
9 | taken on the findings, the military judge shall, in the presence |
10 | of the accused and counsel, instruct the members of the court as |
11 | to the elements of the offense and charge them: |
12 | (1) that the accused must be presumed to be innocent |
13 | until his guilt is established by legal and competent |
14 | evidence beyond reasonable doubt; |
15 | (2) that in the case being considered, if there is a |
16 | reasonable doubt as to the guilt of the accused, the doubt |
17 | must be resolved in favor of the accused and the accused |
18 | shall be acquitted; |
19 | (3) that, if there is a reasonable doubt as to the |
20 | degree of guilt, the finding must be in a lower degree as to |
21 | which there is no reasonable doubt; and |
22 | (4) that the burden of proof to establish the guilt of |
23 | the accused beyond reasonable doubt is upon the prosecution. |
24 | (d) Proceedings before military judge only.--Subsections |
25 | (a), (b) and (c) do not apply to a court-martial composed of a |
26 | military judge only. The military judge of such a court-martial |
27 | shall determine all questions of law and fact arising during the |
28 | proceedings and, if the accused is convicted, adjudge an |
29 | appropriate sentence. The military judge of such a court-martial |
30 | shall make a general finding and shall in addition, on request, |
|
1 | find the facts specially. If an opinion or memorandum of |
2 | decision is filed, it will be sufficient if the findings of fact |
3 | appear therein. |
4 | § 5717. Number of votes required. |
5 | (a) Conviction.--No person subject to this part shall be |
6 | convicted of any offense, except as provided in section 5710(b) |
7 | (relating to pleas of accused) or by the concurrence of two- |
8 | thirds of the members present at the time the vote is taken. |
9 | (b) Other matters.--All other matters to be decided by the |
10 | members of a general or special court-martial shall be |
11 | determined by a majority vote, but a determination to reconsider |
12 | a finding of guilty or to reconsider a sentence, with a view |
13 | toward decreasing it, may be made by any lesser vote which |
14 | indicates that the reconsideration is not opposed by the number |
15 | of votes required for that finding or sentence. A tie vote on a |
16 | challenge disqualifies the member challenged. A tie vote on a |
17 | motion relating to the accused's sanity is a determination |
18 | against the accused. A tie vote on any other matter is a |
19 | determination in favor of the accused. |
20 | § 5718. Court to announce action. |
21 | Every court-martial shall announce its findings and sentence |
22 | to the parties as soon as determined. |
23 | § 5719. Record of trial. |
24 | (a) General and special courts-martial.--Each general and |
25 | special courts-martial shall keep a separate record of the |
26 | proceedings in each case brought before it, and the record shall |
27 | be authenticated by the signature of the military judge. If the |
28 | record cannot be authenticated by the military judge by reason |
29 | of his death, disability or absence, it shall be authenticated |
30 | by the signature of the trial counsel or by that of a member if |
|
1 | the trial counsel is unable to authenticate it by reason of his |
2 | death, disability or absence. In a court-martial consisting of |
3 | only a military judge, if the record cannot be authenticated by |
4 | the military judge by reason of his death, disability or |
5 | absence, the record shall be authenticated by the signature of |
6 | the court reporter. A complete verbatim record of the |
7 | proceedings and testimony shall be prepared in each general and |
8 | special court-martial case resulting in a conviction. In all |
9 | other court-martial cases, the record shall contain such matters |
10 | as the Governor or department may by regulation prescribe. |
11 | (b) Summary court martial.--Each summary court-martial shall |
12 | keep a separate record of the proceedings in each case. The |
13 | record shall be authenticated in such manner as the Governor or |
14 | department may by regulation prescribe. |
15 | (c) Furnishing record to accused.--A copy of the record of |
16 | the proceedings of each general and special court-martial shall |
17 | be given to the accused as soon as it is authenticated. |
18 | § 5720. Defense of lack of mental responsibility. |
19 | (a) General rule.--It shall be an affirmative defense in a |
20 | trial by court-martial that, at the time of the commission of |
21 | the acts constituting the offense, the accused, as a result of a |
22 | severe mental disease or defect, was unable to appreciate the |
23 | nature and quality or the wrongfulness of the acts. Mental |
24 | disease or defect does not otherwise constitute a defense. |
25 | (b) Burden of proof.--The accused has the burden of proving |
26 | the defense of lack of mental responsibility by clear and |
27 | convincing evidence. |
28 | (c) Instructions or findings by military judge.--Whenever |
29 | lack of mental responsibility of the accused with respect to an |
30 | offense is properly at issue, the military judge shall: |
|
1 | (1) in a court-martial not composed of only a military |
2 | judge, instruct the members of the court as to the defense of |
3 | lack of mental responsibility under this section and charge |
4 | them to find the accused guilty, not guilty or not guilty |
5 | only by reason of lack of mental responsibility; or |
6 | (2) in a court-martial composed of only a military |
7 | judge, find the accused guilty, not guilty or not guilty only |
8 | by reason of lack of mental responsibility. |
9 | (d) Finding of not guilty.--Notwithstanding section 5717 |
10 | (relating to number of votes required), the accused shall be |
11 | found not guilty only by reason of lack of mental responsibility |
12 | if: |
13 | (1) a majority of the members of the court-martial |
14 | present at the time the vote is taken determines that the |
15 | defense of lack of mental responsibility has been |
16 | established; or |
17 | (2) in the case of a court-martial composed of only a |
18 | military judge, the military judge or summary court-martial |
19 | officer determines that the defense of lack of mental |
20 | responsibility has been established. |
21 | § 5721. Effect of finding of lack of mental capacity on trial |
22 | proceedings. |
23 | (a) Mental incapacity generally.--When the accused is |
24 | determined under this part to be suffering from a mental disease |
25 | or defect rendering him mentally incompetent such that he is |
26 | unable to understand the nature of the proceedings against him |
27 | or to conduct or cooperate intelligently in the defense of the |
28 | case, the general court-martial convening authority for the |
29 | accused shall commit him to the custody of an agency or facility |
30 | providing services to persons with such a disease or defect. |
|
1 | (b) Agency or facility action.--The agency or facility |
2 | providing services shall take action in accordance with the |
3 | jurisdictional laws applicable to persons incompetent to stand |
4 | trial. If at the end of the period for hospitalization it is |
5 | determined that the accused's mental condition has not so |
6 | improved as to permit the trial to proceed, action shall be |
7 | taken in accordance with the law of the jurisdiction. |
8 | (c) Recovery of accused.--When the director of a facility in |
9 | which the accused is hospitalized determines that the accused |
10 | has recovered to such an extent that he is able to understand |
11 | the nature of the proceedings against him and to conduct or |
12 | cooperate intelligently in the defense of the case, the director |
13 | shall promptly transmit a notification of that determination to |
14 | the general court-martial convening authority for the accused. |
15 | The director shall send a copy of the notification to the |
16 | defense counsel for the accused. |
17 | (d) Receipt of notification of competence.--Upon receipt of |
18 | a notification transmitted under subsection (c), the general |
19 | court-martial convening authority shall promptly take custody of |
20 | the accused unless he is no longer subject to this part. If the |
21 | accused is no longer subject to this part, the agency or |
22 | facility with custody of the accused shall take such action as |
23 | authorized by law of the jurisdiction. The director of the |
24 | facility may retain custody of the accused for not more than 30 |
25 | days after transmitting the notifications required under |
26 | subsection (c). |
27 | (e) Court ordering commitment.--In the application of |
28 | jurisdictional law applicable to persons incompetent to stand |
29 | trial, references to the court that ordered the commitment of a |
30 | person and to the clerk of such court shall be deemed to refer |
|
1 | to the general court-martial convening authority for the |
2 | accused. However, if the accused is no longer subject to this |
3 | part, the State trial court with felony jurisdiction in the |
4 | county where the accused is hospitalized or otherwise may be |
5 | found shall be considered as the court that ordered the |
6 | commitment of the accused. |
7 | § 5722. Trial finding of lack of mental responsibility. |
8 | (a) Finding of lack of mental responsibility generally.--If |
9 | an accused is found by a court-martial not guilty only by reason |
10 | of lack of mental responsibility, the accused shall be committed |
11 | to a suitable facility until he is eligible for release in |
12 | accordance with this section. |
13 | (b) Hearing required.--The court-martial shall conduct a |
14 | hearing on the mental condition of the accused in accordance |
15 | with the jurisdictional law applicable to persons incompetent to |
16 | stand trial. A report of the results of the hearing shall be |
17 | made to the general court-martial convening authority for the |
18 | accused. |
19 | (c) Failure to find accused incompetent.--If the court- |
20 | martial fails to find that the release of the accused would not |
21 | create a substantial risk of bodily injury to another person or |
22 | serious damage of property of another due to a mental disease or |
23 | defect of the accused, the following shall take place: |
24 | (1) the general court-martial convening authority shall |
25 | commit the accused to the custody of an agency or facility |
26 | authorized to provide services to such persons; and |
27 | (2) the agency or facility with custody of the accused |
28 | shall take action in accordance with the jurisdictional law |
29 | applicable to persons incompetent to stand trial. |
30 | (d) Status change of accused while in custody.--If the |
|
1 | status of an accused changes while the accused is in the custody |
2 | of a Commonwealth agency, hospitalized or on conditional release |
3 | under a prescribed regimen of medical, psychiatric, or |
4 | psychological care or treatment so that the accused is no longer |
5 | subject to this part, the agency or facility with custody of |
6 | action shall be taken in accordance with the jurisdictional law. |
7 | CHAPTER 58 |
8 | SENTENCES |
9 | Sec. |
10 | 5801. Cruel and unusual punishments prohibited. |
11 | 5802. Maximum limits. |
12 | 5803. Grading of offenses. |
13 | 5804. Effective date of sentence. |
14 | 5805. Execution of confinement. |
15 | 5806. Deferment of sentence. |
16 | 5807. Reduction in enlisted grade. |
17 | 5808. Forfeiture of pay and allowances during confinement. |
18 | § 5801. Cruel and unusual punishments prohibited. |
19 | Punishment by flogging, or by branding, marking or tattooing |
20 | on the body or any other cruel or unusual punishment may not be |
21 | adjudged by a court-martial or inflicted upon any person subject |
22 | to this part. The use of irons, single or double, except for the |
23 | purpose of safe custody, is prohibited. |
24 | § 5802. Maximum limits. |
25 | (a) General rule.--The punishment which a court-martial may |
26 | direct for an offense may not exceed such limits as the Governor |
27 | or department may prescribe for that offense. In no instance may |
28 | a sentence to confinement exceed more than five years for a |
29 | military offense. |
30 | (b) Punitive offenses.--The limits of punishment for an |
|
1 | offense described in Chapter 60 (relating to punitive sections) |
2 | shall be prescribed by the Governor or department by regulation. |
3 | In no instance shall any punishment exceed that authorized by |
4 | this section or the maximum punishment authorized by the United |
5 | States Manual for Courts-Martial. |
6 | § 5803. Grading of offenses. |
7 | (a) Felonies.--A conviction by general court-martial for any |
8 | military offense for which an accused may receive a sentence of |
9 | confinement for more than one year is the equivalent of a felony |
10 | offense. |
11 | (b) Misdemeanors.--Except for convictions by a summary |
12 | court-martial, all other military offenses are the equivalents |
13 | of misdemeanors. |
14 | (c) Noncriminal.--Any conviction by a summary court-martial |
15 | is not a criminal conviction. |
16 | § 5804. Effective date of sentences. |
17 | (a) Forfeiture of pay and allowances.--Whenever a sentence |
18 | of a court-martial as lawfully adjudged and approved includes a |
19 | forfeiture of pay or allowances in addition to confinement not |
20 | suspended, the forfeiture may apply to pay or allowances |
21 | becoming due on or after the date the sentence is approved by |
22 | the convening authority. No forfeiture may extend to any pay or |
23 | allowances accrued before that date. |
24 | (b) Confinement.--Any period of confinement included in a |
25 | sentence of a court-martial begins to run from the date the |
26 | sentence is adjudged by the court-martial, but periods during |
27 | which the sentence to confinement is suspended or deferred shall |
28 | be excluded in computing the service of the term of confinement. |
29 | (c) Other sentences.--All other sentences of courts-martial |
30 | are effective on the date ordered executed. |
|
1 | § 5805. Execution of confinement. |
2 | (a) Place of confinement.--A sentence of confinement |
3 | adjudged by a court-martial, whether or not the sentence |
4 | includes discharge or dismissal and whether or not the discharge |
5 | or dismissal has been executed, may be carried into execution by |
6 | confinement in any place authorized by this part. Persons so |
7 | confined are subject to the same discipline and treatment as |
8 | persons regularly confined or committed to that place of |
9 | confinement. |
10 | (b) Authority to require hard labor.--The omission of the |
11 | words "hard labor" from any sentence or punishment authorized |
12 | under this part does not deprive the confinement facility |
13 | executing that sentence or punishment of the power to require |
14 | hard labor as a part of the punishment if it is otherwise within |
15 | the authority of that facility to do so. |
16 | (c) Refusal to accept accused prohibited.--No place of |
17 | confinement may refuse or decline to accept an accused sentenced |
18 | to confinement under this part or require payment of any fee or |
19 | charge for so receiving or confining an accused except as |
20 | otherwise provided by law. Any such fee or charge shall not |
21 | exceed a per diem charge of $25 per day if otherwise authorized |
22 | by law. |
23 | § 5806. Deferment of sentences. |
24 | (a) Deferment upon application of accused.--On application |
25 | by an accused, the convening authority or the person exercising |
26 | general court-martial jurisdiction over the command to which the |
27 | accused is currently assigned may, in that person's sole |
28 | discretion, defer service of the sentence to confinement. The |
29 | deferment shall terminate when the sentence is ordered executed. |
30 | The deferment may be rescinded at any time by the person who |
|
1 | granted it or, if the accused is no longer under that person's |
2 | jurisdiction, by the person exercising general court-martial |
3 | jurisdiction over the command to which the accused is currently |
4 | assigned. |
5 | (b) Deferment without consent of accused.--The convening |
6 | authority may defer the service of the sentence to confinement, |
7 | without the consent of the accused, until after the accused has |
8 | been permanently released to the State military forces by a |
9 | state, the United States or a foreign country. This subsection |
10 | applies to a person subject to this part who: |
11 | (1) while in the custody of a state, the United States |
12 | or a foreign country, is temporarily returned by that state, |
13 | the United States or foreign country to the State military |
14 | forces for trial by court-martial; and |
15 | (2) after the court-martial, is returned to that state, |
16 | the United States or foreign country under the authority of a |
17 | mutual agreement or treaty. |
18 | (c) Deferment while review of case is pending.--When a |
19 | sentence to confinement has been ordered executed but review of |
20 | the case is pending under section 5909 (relating to review by a |
21 | board of review), the Adjutant General may defer further service |
22 | of the sentence to confinement while the review is pending. |
23 | § 5807. Reduction in enlisted grade. |
24 | (a) General rule.--An enlisted member in a pay grade above |
25 | E-1 receiving a sentence by a court-martial that includes a |
26 | dishonorable or bad-conduct discharge or confinement shall |
27 | receive a reduction in pay grade to E-1 effective on the date |
28 | the sentence is approved. |
29 | (b) Sentence no longer effective.--If an enlisted member |
30 | receives a reduction in pay grade under subsection (a) and the |
|
1 | sentence which led to a reduction in pay grade is later set |
2 | aside, disapproved or, as finally approved, does not include a |
3 | dishonorable or bad-conduct discharge or confinement, the rights |
4 | and privileges of which the person was deprived because of that |
5 | reduction shall be restored, including pay grade and allowances. |
6 | § 5808. Forfeiture of pay and allowances during confinement. |
7 | (a) General rule.--An enlisted member receiving a court- |
8 | martial sentence of confinement for more than six months, or |
9 | confinement of six months or less and a dishonorable or |
10 | bad‑conduct discharge or dismissal, shall forfeit the pay and |
11 | allowances due him during any period of confinement or parole as |
12 | provided in this subsection. The forfeiture shall take effect on |
13 | the date the sentence was approved. The pay and allowances |
14 | forfeited in the case of a general court-martial shall be all |
15 | pay and allowances due the enlisted member during such period |
16 | and in the case of a special court-martial shall be two-thirds |
17 | of all pay due the enlisted member during such period. |
18 | (b) Exception.--The convening authority or other person |
19 | acting under section 5903 (relating to action on general court- |
20 | martial records) may waive any or all requirements under |
21 | subsection (a) for a period not to exceed six months if the |
22 | accused has dependents. Any amount of pay or allowances that |
23 | would be forfeited under subsection (a) shall be paid to the |
24 | dependents of the accused. |
25 | (c) Sentence no longer effective.--If an enlisted member is |
26 | forced to forfeit pay and allowances under subsection (a) and |
27 | the sentence which led to the forfeiture is later set aside, |
28 | disapproved or, as finally approved, does not include |
29 | confinement for more than six months or confinement for six |
30 | months or less and a dishonorable or bad‑conduct discharge or |
|
1 | dismissal, the member shall be paid the pay and allowances which |
2 | he would have been paid for the period during which the |
3 | forfeiture was in effect. |
4 | CHAPTER 59 |
5 | POSTTRIAL PROCEDURE AND REVIEW |
6 | OF COURTS-MARTIAL |
7 | Sec. |
8 | 5901. Error of law; lesser included offense. |
9 | 5902. Action by convening authority. |
10 | 5903. Action on general court-martial records. |
11 | 5904. Reconsideration and revision. |
12 | 5905. Rehearings. |
13 | 5906. Approval by convening authority. |
14 | 5907. Disposition of records after review by convening |
15 | authority. |
16 | 5908. Review by State Judge Advocate and Adjutant General. |
17 | 5909. Review by a board of review. |
18 | 5910. Review by Superior Court. |
19 | 5911. Appellate counsel. |
20 | 5912. Execution of sentence; suspension of sentence. |
21 | 5913. Vacation of suspension. |
22 | 5914. Petition for new trial. |
23 | 5915. Remission and suspension. |
24 | 5916. Restoration. |
25 | 5917. Finality of proceedings, findings and sentences. |
26 | 5918. Leave pending review of conviction. |
27 | 5919. Appeal by the Commonwealth. |
28 | § 5901. Error of law; lesser included offense. |
29 | (a) Error of law.--A finding or sentence of a court-martial |
30 | shall not be held incorrect on the grounds of an error of law |
|
1 | unless the error materially prejudices the substantial rights of |
2 | the accused. |
3 | (b) Approval of lesser offense.--Any reviewing authority |
4 | with the power to approve or affirm a finding of guilty may |
5 | approve or affirm so much of the finding as includes a lesser |
6 | included offense. |
7 | § 5902. Action by convening authority. |
8 | (a) Report to convening authority.--The findings and |
9 | sentence of a court-martial shall be reported promptly to the |
10 | convening authority after the announcement of the sentence. |
11 | (b) Copy of record to accused.--In a summary court-martial |
12 | case, the accused shall be promptly provided a copy of the |
13 | record of trial for use in preparing a submission authorized by |
14 | subsection (c). |
15 | (c) Submission of matters by accused to the convening |
16 | authority.--The following shall apply to the submission of |
17 | matters by an accused to the convening authority: |
18 | (1) The accused may submit to the convening authority |
19 | matters for consideration by the convening authority with |
20 | respect to the findings and the sentence. Any such submission |
21 | shall be in writing. Except in a summary court-martial case, |
22 | such a submission shall be made within ten days after the |
23 | accused has been given an authenticated record of trial and, |
24 | if applicable, the recommendation of a judge advocate under |
25 | subsection (g). In a summary court-martial case, such a |
26 | submission shall be made within seven days after the sentence |
27 | is announced. |
28 | (2) If the accused shows that additional time is |
29 | required for the accused to submit matters under paragraph |
30 | (1), the convening authority or other person taking action |
|
1 | under this section may, for good cause, extend the applicable |
2 | period under paragraph (1) for not more than an additional 20 |
3 | days. |
4 | (3) The accused may waive the right to make a submission |
5 | to the convening authority under paragraph (1). Such a waiver |
6 | must be made in writing and may not be revoked. The time |
7 | within which the accused may make a submission under |
8 | paragraph (1) shall be deemed to have expired upon the |
9 | submission of a waiver to the convening authority. |
10 | (d) Action by the convening authority.--The authority of a |
11 | convening authority to modify the findings and sentence of a |
12 | court-martial is a matter of command prerogative and involves |
13 | the sole discretion of the convening authority. No action is |
14 | required to be taken by the convening authority. If action is |
15 | taken by the convening authority, it must consider all matters |
16 | submitted by the accused. If it is impractical for the convening |
17 | authority to act, the convening authority shall forward the case |
18 | to a person exercising general court-martial jurisdiction who |
19 | may take action under this section. |
20 | (e) Actions by authority on sentence.--The authority |
21 | authorized to take action may: |
22 | (1) Approve the sentence in whole or in part. |
23 | (2) Disapprove the sentence in whole or in part. |
24 | (3) Commute the sentence in whole or in part. |
25 | (4) Suspend the sentence in whole or in part. |
26 | (f) Action by authority on findings.-- The authority |
27 | authorized to take action may: |
28 | (1) Dismiss any charge or specification by setting aside |
29 | a finding of guilty. |
30 | (2) Change a finding of guilty to a charge or |
|
1 | specification to a finding of guilty to an offense that is a |
2 | lesser included offense of the offense stated in the charge |
3 | or specification. |
4 | (g) Recommendation of judge advocate.--Before acting on any |
5 | general or special court-martial case in which there is a |
6 | finding of guilt, the convening authority or other person taking |
7 | action shall obtain and consider the written recommendation of a |
8 | judge advocate. The convening authority or other authorized |
9 | party shall refer the record of trial to a judge advocate and |
10 | the judge advocate shall use such record in the preparation of |
11 | the recommendation. The recommendation of the judge advocate |
12 | shall include such matters as may be prescribed by regulation by |
13 | the Governor or department and shall be served on the accused, |
14 | who may submit any matter in the recommendation to the convening |
15 | authority under subsection (c). An accused's failure to include |
16 | any matter in the recommendation or attached to the |
17 | recommendation in his submission waives his right to object to |
18 | such matter. |
19 | § 5903. Action on general court-martial records. |
20 | The convening authority shall refer the record of each |
21 | general court-martial to his staff judge advocate or legal |
22 | officer who shall submit his written opinion thereon to the |
23 | convening authority. If there is no qualified staff judge |
24 | advocate or legal officer available, the State Judge Advocate |
25 | shall assign a judge advocate officer for such purpose. If the |
26 | final action of the court has resulted in an acquittal of all |
27 | charges and specifications, the opinion shall be limited to |
28 | questions of jurisdiction. |
29 | § 5904. Reconsideration and revision. |
30 | (a) General rule.--The convening authority or other |
|
1 | authorized party may order a proceeding in revision. A |
2 | proceeding in revision may be ordered if there is an apparent |
3 | error or omission in the record or if the record shows improper |
4 | or inconsistent action by a court-martial with respect to the |
5 | findings or sentence that can be rectified without material |
6 | prejudice to the substantial rights of the accused. |
7 | (b) Revision not authorized.--In no case may a proceeding in |
8 | revision: |
9 | (1) reconsider a finding of not guilty of any |
10 | specification or a ruling which amounts to a finding of not |
11 | guilty; |
12 | (2) reconsider a finding of not guilty of any charge, |
13 | unless there has been a finding of guilty under a |
14 | specification laid under that charge which sufficiently |
15 | alleges a violation of a punitive section of this title; or |
16 | (3) increase the severity of the sentence unless the |
17 | sentence prescribed for the offense is mandatory. |
18 | § 5905. Rehearings. |
19 | (a) General rule.--The convening authority or other |
20 | authorized party may order a rehearing. A rehearing may be |
21 | ordered if the convening authority or other authorized party |
22 | disapproves the findings and sentence and states the reasons for |
23 | disapproval of the findings. If such party disapproves the |
24 | findings and sentence but does not order a rehearing, that party |
25 | shall dismiss the charges. A rehearing as to the findings may |
26 | not be ordered where there is a lack of sufficient evidence in |
27 | the record to support the findings. A rehearing as to the |
28 | sentence may be ordered if the convening authority or other |
29 | authorized party disapproves the sentence. |
30 | (b) Procedural requirements.--Each rehearing shall take |
|
1 | place before a court-martial composed of members not members of |
2 | the court-martial which first heard the case. Upon a rehearing |
3 | the accused may not be tried for any offense of which he was |
4 | found not guilty by the first court-martial. No sentence in |
5 | excess of or more severe than the original sentence may be |
6 | approved, unless the sentence is based upon a finding of guilty |
7 | of an offense not considered upon the merits in the original |
8 | proceedings or unless the sentence prescribed for the offense is |
9 | mandatory. If the sentence approved after the first court- |
10 | martial was in accordance with a pretrial agreement and the |
11 | accused at the rehearing changes a plea with respect to the |
12 | charges or specifications upon which the pretrial agreement was |
13 | based or otherwise does not comply with the pretrial agreement, |
14 | the approved sentence as to those charges or specifications may |
15 | include any punishment not in excess of that lawfully adjudged |
16 | at the first court-martial. |
17 | § 5906. Approval by convening authority. |
18 | In acting on the findings and sentence of a court-martial, |
19 | the convening authority shall approve only such findings of |
20 | guilty, and the sentence or such part or amount of the sentence, |
21 | as the convening authority finds correct in law and fact and as |
22 | he in his discretion determines should be approved. Unless the |
23 | convening authority indicates otherwise, approval of the |
24 | sentence shall constitute approval of the findings and sentence. |
25 | § 5907. Disposition of records after review by convening |
26 | authority. |
27 | (a) General rule.--Except as otherwise required by this |
28 | title, all records of trial and related documents shall be |
29 | transmitted and disposed of as prescribed by this section and |
30 | regulations promulgated by the department. |
|
1 | (b) Final action by Governor.--When the Governor has taken |
2 | final action in a court-martial case in which he is the |
3 | convening authority, there shall be no further review. |
4 | (c) Final action by other authority.--When a convening |
5 | authority other than the Governor has taken final action in a |
6 | general court-martial case, the convening authority shall |
7 | forward the entire record, including his action thereon and the |
8 | opinion or opinions of the staff judge advocate or legal |
9 | officer, to the State Judge Advocate. |
10 | (d) Bad‑conduct discharge.--Where the sentence of a special |
11 | court-martial as approved by the convening authority includes a |
12 | bad-conduct discharge, whether or not suspended, the record |
13 | shall be forwarded to the officer exercising general court- |
14 | martial jurisdiction over the command to be reviewed in the same |
15 | manner as a record of trial by a general court-martial. If the |
16 | sentence as approved by an officer exercising general court- |
17 | martial jurisdiction includes a bad-conduct discharge, whether |
18 | or not suspended, the record shall be forwarded to the State |
19 | Judge Advocate. |
20 | (e) Review and disposition of other records.--All other |
21 | special and summary court-martial records shall be reviewed by a |
22 | judge advocate of the Pennsylvania National Guard and shall be | <-- |
23 | transmitted and disposed of as the department may prescribe by |
24 | regulations. |
25 | § 5908. Review by State Judge Advocate and Adjutant General. |
26 | (a) Review by State Judge Advocate of guilty finding.--Each |
27 | general and special court-martial case in which there has been a |
28 | finding of guilty shall be reviewed by the State Judge Advocate, |
29 | or a designee. The State Judge Advocate may not review a case if |
30 | he has acted in the same case as an accuser, investigating |
|
1 | officer, member of the court, military judge or counsel or has |
2 | otherwise acted on behalf of the prosecution or defense. The |
3 | State Judge Advocate's review shall be in writing and shall |
4 | contain the following: |
5 | (1) Conclusions as to: |
6 | (i) whether the court had jurisdiction over the |
7 | accused and the offense; |
8 | (ii) the sufficiency of the charge and |
9 | specification; and |
10 | (iii) whether the sentence was within the limits |
11 | prescribed as a matter of law. |
12 | (2) A response to each allegation of error made in |
13 | writing by the accused. |
14 | (3) If the case is sent for action under subsection (b), |
15 | a recommendation as to the appropriate action to be taken and |
16 | an opinion as to whether corrective action is required as a |
17 | matter of law. |
18 | (b) Review by Adjutant General of guilty finding.--The |
19 | record of trial and related documents in each case reviewed |
20 | under subsection (a) shall be sent for action to the Adjutant |
21 | General, if: |
22 | (1) the judge advocate who reviewed the case recommends |
23 | corrective action; |
24 | (2) the sentence approved under section 5903 (relating |
25 | to action on general court-martial records) extends to |
26 | dismissal, a bad-conduct or dishonorable discharge or |
27 | confinement for more than six months; or |
28 | (3) such action is otherwise required by regulations |
29 | promulgated by the department. |
30 | (c) Action by Adjutant General on guilty finding.--After |
|
1 | review under subsection (b), the Adjutant General may: |
2 | (1) disapprove or approve the findings or sentence in |
3 | whole or in part; |
4 | (2) remit, commute or suspend the sentence in whole or |
5 | in part; |
6 | (3) dismiss the charges; or |
7 | (4) except where the evidence was insufficient at the |
8 | trial to support the findings, order a rehearing on the |
9 | findings, on the sentence or on both. |
10 | (d) Rehearing impracticable.--If a rehearing is ordered |
11 | under subsection (c) but the convening authority finds a |
12 | rehearing impracticable, the convening authority shall dismiss |
13 | the charges. |
14 | (e) Review by Governor of guilty finding.--If the opinion of |
15 | the State Judge Advocate is that corrective action is required |
16 | as a matter of law and if the Adjutant General does not take |
17 | action that is at least as favorable to the accused as that |
18 | recommended by the State Judge Advocate, the record of trial and |
19 | action thereon shall be sent to the Governor for review and |
20 | action as deemed appropriate. |
21 | (f) Review by State Judge Advocate of not guilty finding.-- |
22 | The State Judge Advocate may review any case in which there has |
23 | been a finding of not guilty of all charges and specifications. |
24 | The State Judge Advocate may not review a case if he has acted |
25 | in the same case as an accuser, investigating officer, member of |
26 | the court, military judge or counsel or has otherwise acted on |
27 | behalf of the prosecution or defense. The review by the State |
28 | Judge Advocate shall be limited to questions of subject matter |
29 | jurisdiction. |
30 | (g) Review by Adjutant General of not guilty finding.--The |
|
1 | record of trial and related documents in each case reviewed |
2 | under subsection (f) shall be sent for action to the Adjutant |
3 | General. |
4 | (h) Action by Adjutant General on not guilty finding.--After |
5 | review under subsection (g), the Adjutant General may: |
6 | (1) when subject matter jurisdiction is found to be |
7 | lacking, void the court-martial ab initio, with or without |
8 | prejudice to the government; or |
9 | (2) return the record of trial and related documents to |
10 | the State Judge Advocate for appeal by the government as |
11 | provided by law. |
12 | § 5909. Review by a board of review. |
13 | (a) Composition of boards of review.--The State Judge |
14 | Advocate may constitute one or more boards of review, each |
15 | composed of not less than three commissioned officers, each of |
16 | whom shall be a member of the bar of the Supreme Court, and one |
17 | of whom shall be a judge advocate of the Pennsylvania National | <-- |
18 | Guard. |
19 | (b) Affirming findings and sentence.--In a case referred to |
20 | it, the board of review may act only with respect to the |
21 | findings and sentence as approved by the convening authority. It |
22 | may affirm only such findings of guilty and a sentence, or such |
23 | part or amount of the sentence, as it finds correct in law and |
24 | fact and determines, on the basis of the entire record, should |
25 | be approved. In considering the record it shall have authority |
26 | to weigh the evidence, judge the credibility of witnesses and |
27 | determine controverted questions of fact, recognizing that the |
28 | trial court saw and heard the witnesses. |
29 | (c) Setting aside findings and sentence.--If the board of |
30 | review sets aside the findings and sentence, it may, except |
|
1 | where the setting aside is based on lack of sufficient evidence |
2 | in the record to support the findings, order a rehearing. If it |
3 | sets aside the findings and sentence and does not order a |
4 | rehearing, it shall order that the charges be dismissed. |
5 | (d) Action by convening authority.--The State Judge Advocate |
6 | shall, unless there is to be further action by the Governor, |
7 | instruct the convening authority to take action in accordance |
8 | with the decision of the board of review. If the board of review |
9 | has ordered a rehearing but the convening authority finds a |
10 | rehearing impracticable, the convening authority may dismiss the |
11 | charges. |
12 | (e) Uniform rules of procedure.--In the event one or more |
13 | boards of review are constituted in accordance with this |
14 | section, the State Judge Advocate shall prescribe uniform rules |
15 | of procedure for proceedings in and before such board or boards |
16 | of review. |
17 | (f) Waiver of review.--The accused may file with the |
18 | convening authority a statement expressly withdrawing the right |
19 | of the accused to have his case reviewed by a board of review. |
20 | Such a withdrawal shall be signed by both the accused and |
21 | defense counsel and must be filed in accordance with appellate |
22 | procedures as provided by law. The accused may withdraw his case |
23 | from review by a board of review at any time in accordance with |
24 | appellate procedures as provided by law. |
25 | § 5910. Review by Superior Court. |
26 | (a) General rule.--Final judgments of courts-martial |
27 | empowered to impose a sentence of confinement for one year or |
28 | more are appealable to the Superior Court, after approval by the |
29 | convening authority, in the same manner and subject to the same |
30 | process as a criminal conviction by the courts of common pleas. |
|
1 | The appellate procedures to be followed shall be those provided |
2 | by law for the appeal of criminal cases. |
3 | (b) Waiver of review.--The accused may file with the |
4 | convening authority a statement expressly withdrawing the right |
5 | of the accused to have his case reviewed by the Superior Court. |
6 | Such a withdrawal shall be signed by both the accused and his |
7 | defense counsel and must be filed in accordance with appellate |
8 | procedures as provided by law. The accused may withdraw his case |
9 | from review by the Superior Court at any time in accordance with |
10 | appellate procedures as provided by law. |
11 | § 5911. Appellate counsel. |
12 | (a) Counsel for the Commonwealth.--The State Judge Advocate |
13 | shall detail a judge advocate as counsel to represent the |
14 | Commonwealth in the review or appeal of cases by a board of |
15 | review or before the Superior Court, or before any other court |
16 | when requested to do so by the Attorney General. Counsel must be |
17 | a member in good standing of the bar of the Supreme Court. |
18 | (b) Counsel for the accused.--In all posttrial reviews and |
19 | appeals, whether initiated by the accused or the Commonwealth, |
20 | the accused has the right to be represented by appellate |
21 | military counsel before any reviewing authority and before any |
22 | appellate court. Upon the request of an accused, the State Judge |
23 | Advocate shall appoint a judge advocate to represent the accused |
24 | in the review or appeal of cases. An accused may be represented |
25 | by civilian appellate counsel at no expense to the Commonwealth. |
26 | § 5912. Execution of sentence; suspension of sentence. |
27 | (a) Appellate review not waived and appeal not withdrawn.-- |
28 | If a sentence extends to dismissal or a dishonorable or bad- |
29 | conduct discharge, the right of the accused to appellate review |
30 | is not waived and an appeal is not withdrawn, that part of the |
|
1 | sentence extending to dismissal or a dishonorable or bad-conduct |
2 | discharge may not be executed until there is a final judgment as |
3 | to the legality of the proceedings. A judgment as to the |
4 | legality of the proceedings is final in such cases when review |
5 | is completed by the Superior Court under section 5910 (relating |
6 | to review by Superior Court) and is deemed final by the law of |
7 | state where the judgment was had. |
8 | (b) Appellate review waived or appeal withdrawn.--If a |
9 | sentence extends to dismissal or a dishonorable or bad‑conduct |
10 | discharge, the right of the accused to appellate review is |
11 | waived or an appeal is withdrawn, that part of the sentence |
12 | extending to dismissal or a dishonorable or bad-conduct |
13 | discharge may not be executed until review of the case by the |
14 | State Judge Advocate and any action on that review is completed. |
15 | Any other part of a court-martial sentence may be ordered |
16 | executed by the convening authority or other authorized party |
17 | when approved under section 5906 (relating to approval by |
18 | convening authority). |
19 | § 5913. Vacation of suspension. |
20 | (a) Bad-conduct discharges and general court-martial |
21 | sentences.--Prior to the vacation of the suspension of a special |
22 | court-martial sentence which as approved includes a bad-conduct |
23 | discharge or of any general court-martial sentence, the officer |
24 | having special court-martial jurisdiction over the probationer |
25 | shall hold a hearing on an alleged violation of probation. The |
26 | probationer shall be represented at the hearing by military |
27 | counsel if the probationer so desires. |
28 | (b) Action by court-martial.--The record of the hearing and |
29 | the recommendation of the officer having special court-martial |
30 | jurisdiction shall be forwarded for action to the officer |
|
1 | exercising general court-martial jurisdiction over the |
2 | probationer. If the officer vacates the suspension, any |
3 | unexecuted part of the sentence except a dismissal shall be |
4 | executed subject to applicable restrictions in this part. |
5 | (c) Other sentences.--The suspension of any other sentence |
6 | may be vacated by any authority competent to convene, for the |
7 | command in which the accused is serving or assigned, a court of |
8 | the kind that imposed the sentence. |
9 | § 5914. Petition for new trial. |
10 | At any time within two years after approval by the convening |
11 | authority of a court-martial sentence, the accused may petition |
12 | the Adjutant General for a new trial on the grounds of newly |
13 | discovered evidence or fraud on the court-martial. |
14 | § 5915. Remission and suspension. |
15 | (a) General rule.--Any authority competent to convene, for |
16 | the command in which the accused is serving or assigned, a court |
17 | of the kind that imposed the sentence, may remit or suspend any |
18 | part or amount of the unexecuted part of any sentence, including |
19 | all uncollected forfeitures other than a sentence approved by |
20 | the Governor. |
21 | (b) Substitution of administrative discharge by Governor.-- |
22 | The Governor may, for good cause, substitute an administrative |
23 | form of discharge, as authorized by applicable military |
24 | regulations, for a discharge or dismissal executed in accordance |
25 | with the sentence of a court-martial. |
26 | § 5916. Restoration. |
27 | (a) General rule.--Under such regulations as may be |
28 | prescribed by the Governor or department, all rights, privileges |
29 | and property affected by an executed portion of a court-martial |
30 | sentence which has been set aside or disapproved, except an |
|
1 | executed dismissal or discharge shall be restored unless a new |
2 | trial or rehearing is ordered and such executed portion is |
3 | included in a sentence imposed upon the new trial or rehearing. |
4 | (b) Substitution of administrative discharge for invalid |
5 | discharge.--If a previously executed sentence of dishonorable or |
6 | bad-conduct discharge is not sustained on a new trial, the |
7 | Governor shall substitute a form of discharge authorized for |
8 | administrative issuance unless the accused is to serve out the |
9 | remainder of his enlistment. |
10 | § 5917. Finality of proceedings, findings and sentences. |
11 | The appellate review of records of trial, the proceedings, |
12 | findings and sentences of courts-martial as approved, reviewed, |
13 | or affirmed and all dismissals and discharges carried into |
14 | execution under sentences by courts-martial following approval, |
15 | review or affirmation are final and conclusive. Orders |
16 | publishing the proceedings of courts-martial and all action |
17 | taken pursuant to those proceedings are binding upon all |
18 | departments, courts, agencies and officers of the United States |
19 | and the several states, subject only to action upon a petition |
20 | for a new trial as provided in section 5914 (relating to |
21 | petition for new trial) and to action under section 5915 |
22 | (relating to remission and suspension). |
23 | § 5918. Leave pending review of conviction. |
24 | Under regulations prescribed by the Governor or the |
25 | department, an accused who has been sentenced by a court-martial |
26 | may be required to take leave pending completion of action under |
27 | this chapter if the sentence, as approved under section 5902 |
28 | (relating to action by convening authority) or 5906 (relating to |
29 | approval by convening authority) includes an unsuspended |
30 | dismissal or an unsuspended dishonorable or bad-conduct |
|
1 | discharge. The accused may be required to begin such leave on |
2 | the date on which the sentence is approved under section 5906 or |
3 | at any time after such date and such leave may be continued |
4 | until the date on which action under this chapter is completed |
5 | or may be terminated at any earlier time. |
6 | § 5919. Appeal by the Commonwealth. |
7 | (a) General rule.--In a trial by court-martial in which a |
8 | punitive discharge may be adjudged, the Commonwealth may appeal |
9 | the following: |
10 | (1) An order or ruling of the military judge which |
11 | terminates the proceedings with respect to a charge or |
12 | specification. |
13 | (2) An order or ruling which excludes evidence that is |
14 | substantial proof of a fact material in the proceeding. |
15 | (3) An order or ruling which directs the disclosure of |
16 | classified information. |
17 | (4) An order or ruling which imposes sanctions for |
18 | nondisclosure of classified information. |
19 | (5) A refusal of the military judge to issue a |
20 | protective order sought by the Commonwealth to prevent the |
21 | disclosure of classified information. |
22 | (6) A refusal by the military judge to enforce a |
23 | protective order sought by the Commonwealth to prevent the |
24 | disclosure of classified information which has previously |
25 | been issued by appropriate authority. |
26 | (b) Exceptions.--Notwithstanding subsection (a), the |
27 | Commonwealth may not appeal a finding of not guilty with respect |
28 | to the charge or specification by the members of the court- |
29 | martial or by a judge in a bench trial so long as it is not made |
30 | in reconsideration. |
|
1 | (c) Written notice required.--An appeal of an order or |
2 | ruling may not be taken unless the trial counsel provides the |
3 | military judge with written notice of appeal from the order or |
4 | ruling within 72 hours of the order or ruling. Such notice shall |
5 | include a certification by the trial counsel that the appeal is |
6 | not taken for the purpose of delay and, if the order or ruling |
7 | appealed is one which excludes evidence, that the evidence |
8 | excluded is substantial proof of a fact material in the |
9 | proceeding. |
10 | (d) Diligent prosecution required.--An appeal under this |
11 | section shall be diligently prosecuted. Any period of delay |
12 | resulting from an appeal under this section shall be excluded in |
13 | deciding any issue regarding denial of a speedy trial unless an |
14 | appropriate authority determines that the appeal was filed |
15 | solely for the purpose of delay with the knowledge that it was |
16 | totally frivolous and without merit. |
17 | (e) Action by Superior Court.--An appeal under this section |
18 | shall be forwarded to the Superior Court. In ruling on an appeal |
19 | under this section, the court may act only with respect to |
20 | matters of law. |
21 | CHAPTER 60 |
22 | PUNITIVE SECTIONS |
23 | Sec. |
24 | 6001. Principals. |
25 | 6002. Accessory after the fact. |
26 | 6003. Conviction of lesser included offense. |
27 | 6004. Attempts. |
28 | 6005. Conspiracy. |
29 | 6006. Solicitation. |
30 | 6007. Fraudulent enlistment, appointment or separation. |
|
1 | 6008. Unlawful enlistment, appointment or separation. |
2 | 6009. Desertion. |
3 | 6010. Absence without leave. |
4 | 6011. Missing movement. |
5 | 6012. Contempt toward officials. |
6 | 6013. Disrespect toward superior commissioned officer. |
7 | 6014. Assaulting or willfully disobeying superior commissioned |
8 | officer. |
9 | 6015. Insubordinate conduct toward warrant officer, |
10 | noncommissioned officer or petty officer. |
11 | 6016. Failure to obey order or regulation. |
12 | 6017. Cruelty and maltreatment. |
13 | 6018. Mutiny or sedition. |
14 | 6019. Resistance, flight, breach of arrest and escape. |
15 | 6020. Releasing prisoner without proper authority. |
16 | 6021. Unlawful detention of another. |
17 | 6022. Noncompliance with procedural rules. |
18 | 6023. Misbehavior before enemy. |
19 | 6024. Subordinate compelling surrender. |
20 | 6025. Improper use of countersign. |
21 | 6026. Forcing a safeguard. |
22 | 6027. Captured or abandoned property. |
23 | 6028. Aiding the enemy. |
24 | 6029. Misconduct of prisoner. |
25 | 6030. False official statements. |
26 | 6031. Loss, damage, destruction or wrongful disposition of |
27 | military property. |
28 | 6032. Waste, spoilage or destruction of nonmilitary property. |
29 | 6033. Improper hazarding of vessel. |
30 | 6034. Drunken or reckless driving. |
|
1 | 6035. Drunk on duty, sleeping on post and leaving post before |
2 | relief. |
3 | 6036. Dueling. |
4 | 6037. Malingering. |
5 | 6038. Riot or breach of peace. |
6 | 6039. Provoking speeches or gestures. |
7 | 6040. Perjury. |
8 | 6041. Frauds against government. |
9 | 6042. Larceny and wrongful appropriation. |
10 | 6043. Assault. |
11 | 6044. Conduct unbecoming an officer and a gentleman. |
12 | 6045. General article. |
13 | 6046. Embezzlement. |
14 | 6047. Purchasing and receiving military property in pawn. |
15 | 6048. Wrongful use and possession of controlled substances. |
16 | § 6001. Principals. |
17 | Any person subject to this part who: |
18 | (1) commits an offense punishable by this part or aids, |
19 | abets, counsels, commands or procures its commission; or |
20 | (2) causes an act to be done which if directly performed |
21 | by him would be punishable by this part; |
22 | is a principal. |
23 | § 6002. Accessory after the fact. |
24 | Any person subject to this part who, knowing that an offense |
25 | punishable by this part has been committed, receives, comforts |
26 | or assists the offender in order to hinder or prevent his |
27 | apprehension, trial or punishment shall be punished as a court- |
28 | martial may direct. |
29 | § 6003. Conviction of lesser included offense. |
30 | An accused may be found guilty of an offense necessarily |
|
1 | included in the offense charged or of an attempt to commit |
2 | either the offense charged or an offense necessarily included |
3 | therein. |
4 | § 6004. Attempts. |
5 | (a) Attempt defined.--An act, done with specific intent to |
6 | commit an offense under this part, amounting to more than mere |
7 | preparation and tending, even though failing to effect its |
8 | commission, is an attempt to commit that offense. |
9 | (b) Punishment.--Any person subject to this part who |
10 | attempts to commit any offense punishable by this part shall be |
11 | punished as a court-martial may direct, unless otherwise |
12 | specifically prescribed. |
13 | (c) Effect of consummation of offense.--Any person subject |
14 | to this part may be convicted of an attempt to commit an offense |
15 | although it appears at the trial that the offense was |
16 | consummated. |
17 | § 6005. Conspiracy. |
18 | Any person subject to this part who conspires with any other |
19 | person to commit an offense under this part shall, if one or |
20 | more of the conspirators does an act to effect the object of the |
21 | conspiracy, be punished as a court-martial may direct. |
22 | § 6006. Solicitation. |
23 | (a) Desertion and mutiny.--Any person subject to this part |
24 | who solicits or advises another or others to desert in violation |
25 | of section 6009 (relating to desertion) or mutiny in violation |
26 | of section 6018 (relating to mutiny or sedition) shall, if the |
27 | offense solicited or advised is attempted or committed, be |
28 | punished with the punishment provided for the commission of the |
29 | offense, but, if the offense solicited or advised is not |
30 | committed or attempted, the person shall be punished as a court- |
|
1 | martial may direct. |
2 | (b) Misbehavior before enemy and sedition.--Any person |
3 | subject to this part who solicits or advises another or others |
4 | to commit an act of misbehavior before the enemy in violation of |
5 | section 6023 (relating to misbehavior before enemy) or sedition |
6 | in violation of section 6018 shall, if the offense solicited or |
7 | advised is committed, be punished with the punishment provided |
8 | for the commission of the offense, but, if the offense solicited |
9 | or advised is not committed, the person shall be punished as a |
10 | court-martial may direct. |
11 | § 6007. Fraudulent enlistment, appointment or separation. |
12 | Any person who: |
13 | (1) procures his own enlistment or appointment in the |
14 | State military forces by knowingly false representation or |
15 | deliberate concealment as to his qualifications for that |
16 | enlistment or appointment and receives pay or allowances |
17 | thereunder; or |
18 | (2) procures his own separation from the State military |
19 | forces by knowingly false representation or deliberate |
20 | concealment as to his eligibility for that separation; |
21 | shall be punished as a court-martial may direct. |
22 | § 6008. Unlawful enlistment, appointment or separation. |
23 | Any person subject to this part who effects an enlistment or |
24 | appointment in or a separation from the State military forces of |
25 | any person who is known to him to be ineligible for that |
26 | enlistment, appointment or separation because it is prohibited |
27 | by law, regulation or order shall be punished as a court-martial |
28 | may direct. |
29 | § 6009. Desertion. |
30 | (a) Offense defined.--Any member of the State military |
|
1 | forces who: |
2 | (1) without authority goes or remains absent from his |
3 | unit, organization or place of duty with intent to remain |
4 | away from there permanently; |
5 | (2) quits his unit, organization or place of duty with |
6 | intent to avoid hazardous duty or to shirk important service; |
7 | or |
8 | (3) without being regularly separated from one of the |
9 | State military forces enlists or accepts an appointment in |
10 | the same or another one of the State military forces, or in |
11 | one of the armed forces of the United States, without fully |
12 | disclosing the fact that he has not been regularly separated |
13 | or enters any foreign armed service, except when authorized |
14 | by the United States; |
15 | is guilty of desertion. |
16 | (b) Commissioned officer tendering resignation.--Any |
17 | commissioned officer of the State military forces who, after |
18 | tender of his resignation and before notice of its acceptance, |
19 | quits his post or proper duties without leave and with intent to |
20 | remain away from there permanently is guilty of desertion. |
21 | (c) Punishment.--Any person found guilty of desertion or |
22 | attempt to desert shall be punished, if the offense is committed |
23 | in time of war, by confinement of not more than five years or |
24 | such other punishment as a court-martial may direct. If the |
25 | desertion or attempt to desert occurs at any other time the |
26 | person shall be punished as a court-martial may direct. |
27 | § 6010. Absence without leave. |
28 | (a) Offense defined.--Any person subject to this part who, |
29 | without authority: |
30 | (1) fails to go to his appointed place of duty at the |
|
1 | time prescribed; |
2 | (2) goes from that place; or |
3 | (3) absents himself or remains absent from his unit, |
4 | organization or place of duty at which he is required to be |
5 | at the time prescribed; |
6 | is absent without leave and shall be punished as a court-martial |
7 | may direct for a military offense or may be charged with a |
8 | summary offense. |
9 | (b) Military offense.--Absence without leave is a military |
10 | offense subject to punishment as a court-martial may direct or |
11 | by nonjudicial punishment under this part. |
12 | (c) Summary offense.--Absence without leave as defined in |
13 | subsection (a) is a summary offense. |
14 | (d) Fines.--A person convicted of the summary offense of |
15 | absence without leave shall be sentenced to pay a fine of not |
16 | less than $100 nor more than $300 for the first offense and a |
17 | fine of not less than $300 nor more than $1,000 for a second or |
18 | subsequent offense. |
19 | (e) Costs.--Any person convicted of the summary offense of |
20 | absence without leave shall, in addition to the fine imposed, be |
21 | sentenced to pay costs as provided or prescribed by or pursuant |
22 | to 42 Pa.C.S. Ch. 17 (relating to governance of the system). |
23 | (f) Institution of proceedings.--A person subject to this |
24 | part authorized by the Adjutant General or his designee may |
25 | institute summary proceedings for violation of this section by |
26 | filing a complaint with an issuing authority as provided in the |
27 | Pennsylvania Rules of Criminal Procedure. The alleged offense |
28 | shall be deemed to have occurred in the magisterial district |
29 | where the unit to which the member is assigned is located. |
30 | (g) Withdraw of complaint.--The person instituting summary |
|
1 | proceedings for a violation of this section or his or her |
2 | superior commissioned officer may withdraw the complaint if the |
3 | accused executes a military service participation agreement and |
4 | pays all costs as described in subsection (e). |
5 | (h) Military counsel.--Military counsel shall not be |
6 | assigned to represent the Commonwealth or the accused in summary |
7 | proceedings brought under this section. |
8 | (i) Prima facie evidence.--An extract from official military |
9 | records showing that the accused person was absent without leave |
10 | as defined in subsection (a) shall constitute prima facie |
11 | evidence of a violation of this section. |
12 | (j) Limitations on proceedings.--No action may be commenced |
13 | for a violation of this section more than 12 months after the |
14 | last date on which the person is alleged to have been absent |
15 | without leave. No court-martial or nonjudicial punishment |
16 | proceedings for absence without leave under this part may be |
17 | instituted against a person who has been charged with the |
18 | summary offense of absence without leave for the same time |
19 | period. No summary offense proceedings for absence without leave |
20 | under this section may be instituted against a person who has |
21 | been the subject of court-martial or nonjudicial punishment for |
22 | absence without leave under this part for the same time period. |
23 | § 6011. Missing movement. |
24 | Any person subject to this part who through neglect or design |
25 | misses the movement of a ship, aircraft or unit with which he is |
26 | required in the course of duty to move shall be punished as a |
27 | court-martial may direct. |
28 | § 6012. Contempt toward officials. |
29 | Any commissioned officer who uses contemptuous words against |
30 | the President of the United States, Vice President of the United |
|
1 | States, Congress, Secretary of Defense, secretary of a military |
2 | department, Secretary of Homeland Security, Governor of the |
3 | Commonwealth of Pennsylvania, Adjutant General of the |
4 | Commonwealth of Pennsylvania or General Assembly of the |
5 | Commonwealth of Pennsylvania shall be punished as a court- |
6 | martial may direct. |
7 | § 6013. Disrespect toward superior commissioned officer. |
8 | Any person subject to this part who behaves with disrespect |
9 | toward his superior commissioned officer shall be punished as a |
10 | court-martial may direct. |
11 | § 6014. Assaulting or willfully disobeying superior |
12 | commissioned officer. |
13 | Any person subject to this part who: |
14 | (1) strikes, draws or lifts up any weapon or offers any |
15 | violence against his superior commissioned officer while he |
16 | is in the execution of his office; or |
17 | (2) willfully disobeys a lawful command of his superior |
18 | commissioned officer; |
19 | shall be punished, if the offense is committed in time of war, |
20 | by confinement of not more than five years or such other |
21 | punishment as a court-martial may direct. If the offense is |
22 | committed at any other time, the person shall be punished as a |
23 | court-martial may direct. |
24 | § 6015. Insubordinate conduct toward warrant officer, |
25 | noncommissioned officer or petty officer. |
26 | Any warrant officer or enlisted member who: |
27 | (1) strikes or assaults a warrant officer, |
28 | noncommissioned officer or petty officer while that officer |
29 | is in the execution of his office; |
30 | (2) willfully disobeys the lawful order of a warrant |
|
1 | officer, noncommissioned officer or petty officer; or |
2 | (3) treats with contempt or is disrespectful in language |
3 | or deportment toward a warrant officer, noncommissioned |
4 | officer or petty officer while that officer is in the |
5 | execution of his office; |
6 | shall be punished as a court-martial may direct. |
7 | § 6016. Failure to obey order or regulation. |
8 | Any person subject to this part who: |
9 | (1) violates or fails to obey any lawful general order |
10 | or regulation; |
11 | (2) having knowledge of any other lawful order issued by |
12 | a member of the State military forces, which it is his duty |
13 | to obey, fails to obey the order; or |
14 | (3) is derelict in the performance of his duties; |
15 | shall be punished as a court-martial may direct. |
16 | § 6017. Cruelty and maltreatment. |
17 | Any person subject to this part who is guilty of cruelty |
18 | toward, or oppression or maltreatment of, any person subject to |
19 | his orders shall be punished as a court-martial may direct. |
20 | § 6018. Mutiny or sedition. |
21 | (a) Offense defined.--Any person subject to this part who: |
22 | (1) with intent to usurp or override lawful military |
23 | authority refuses, in concert with any other person, to obey |
24 | orders or otherwise do his duty or creates any violence or |
25 | disturbance is guilty of mutiny; |
26 | (2) with intent to cause the overthrow or destruction of |
27 | lawful civil authority, creates, in concert with any other |
28 | person, revolt, violence or other disturbance against that |
29 | authority is guilty of sedition; |
30 | (3) fails to do his utmost to prevent and suppress a |
|
1 | mutiny or sedition being committed in his presence, or fails |
2 | to take all reasonable means to inform his superior |
3 | commissioned officer or commanding officer of a mutiny or |
4 | sedition which he knows or has reason to believe is taking |
5 | place, is guilty of a failure to suppress or report a mutiny |
6 | or sedition. |
7 | (b) Punishment.--A person who is found guilty of attempted |
8 | mutiny, mutiny, sedition or failure to suppress or report a |
9 | mutiny or sedition shall be punished as a court-martial may |
10 | direct. |
11 | § 6019. Resistance, flight, breach of arrest and escape. |
12 | Any person subject to this part who resists apprehension, |
13 | flees from apprehension, breaks arrest or escapes from custody |
14 | or confinement shall be punished as a court-marital may direct. |
15 | § 6020. Releasing prisoner without proper authority. |
16 | Any person subject to this part who, without proper |
17 | authority, releases any prisoner committed to his charge or who, |
18 | through neglect or design, suffers any such prisoner to escape, |
19 | shall be punished as a court-martial may direct, whether or not |
20 | the prisoner was committed in strict compliance with law. |
21 | § 6021. Unlawful detention of another. |
22 | Any person subject to this part who, except as provided by |
23 | law or regulation, apprehends, arrests or confines any person |
24 | shall be punished as a court-martial may direct. |
25 | § 6022. Noncompliance with procedural rules. |
26 | Any person subject to this part who: |
27 | (1) is responsible for unnecessary delay in the |
28 | disposition of any case of a person accused of an offense |
29 | under this part; or |
30 | (2) knowingly and intentionally fails to enforce or |
|
1 | comply with any provision of this part regulating the |
2 | proceedings before, during or after trial of an accused; |
3 | shall be punished as a court-martial may direct. |
4 | § 6023. Misbehavior before enemy. |
5 | Any person subject to this part who, before or in the |
6 | presence of the enemy: |
7 | (1) runs away; |
8 | (2) shamefully abandons, surrenders or delivers up any |
9 | command, unit, place or military property which it is his |
10 | duty to defend; |
11 | (3) through disobedience, neglect or intentional |
12 | misconduct endangers the safety of any such command, unit, |
13 | place or military property; |
14 | (4) casts away his arms or ammunition; |
15 | (5) is guilty of cowardly conduct; |
16 | (6) quits his place of duty to plunder or pillage; |
17 | (7) causes false alarms in any command, unit or place |
18 | under control of the armed forces of the United States or the |
19 | State military forces; |
20 | (8) willfully fails to do his utmost to encounter, |
21 | engage, capture or destroy any enemy troops, combatants, |
22 | vessels, aircraft or any other thing, which it is his duty so |
23 | to encounter, engage, capture or destroy; or |
24 | (9) does not afford all practicable relief and |
25 | assistance to any troops, combatants, vessels or aircraft of |
26 | the armed forces belonging to the United States or their |
27 | allies, to the Commonwealth or to any other state, when |
28 | engaged in battle; |
29 | shall be punished as a court-martial may direct. |
30 | § 6024. Subordinate compelling surrender. |
|
1 | Any person subject to this part who compels or attempts to |
2 | compel a commander of any place, vessel, aircraft or other |
3 | military property, or of any body of members of the armed forces |
4 | to give it up to an enemy or to abandon it, or who strikes the |
5 | colors or flag to an enemy without proper authority, shall be |
6 | punished as a court-martial may direct. |
7 | § 6025. Improper use of countersign. |
8 | Any person subject to this part who, in time of war or |
9 | national emergency, discloses the parole or countersign to any |
10 | person not entitled to receive it or who gives to another who is |
11 | entitled to receive and use the parole or countersign a |
12 | different parole or countersign from that which, to his |
13 | knowledge, he was authorized and required to give, shall be |
14 | punished as a court-martial may direct. |
15 | § 6026. Forcing a safeguard. |
16 | Any person subject to this part who forces a safeguard shall |
17 | be punished as a court-martial may direct. |
18 | § 6027. Captured or abandoned property. |
19 | (a) Duty to secure property.--All persons subject to this |
20 | part shall secure all public property taken for the service of |
21 | the United States or the Commonwealth and shall give notice and |
22 | turn over to the proper authority without delay all captured or |
23 | abandoned property in their possession, custody or control. |
24 | (b) Offense.--Any person subject to this part who: |
25 | (1) fails to carry out the duties prescribed in |
26 | subsection (a); |
27 | (2) buys, sells, trades or in any way deals in or |
28 | disposes of taken, captured or abandoned property, whereby he |
29 | receives or expects any profit, benefit or advantage to |
30 | himself or another directly or indirectly connected with |
|
1 | himself; or |
2 | (3) engages in looting or pillaging; |
3 | shall be punished as a court-martial may direct. |
4 | § 6028. Aiding the enemy. |
5 | Any person subject to this part who: |
6 | (1) aids or attempts to aid the enemy with arms, |
7 | ammunition, supplies, money or other things; or |
8 | (2) without proper authority, knowingly harbors or |
9 | protects or gives intelligence to, or communicates or |
10 | corresponds with or holds any intercourse with the enemy, |
11 | either directly or indirectly; |
12 | shall be punished as a court-martial may direct. |
13 | § 6029. Misconduct of prisoner. |
14 | Any person subject to this part who, while in the hands of |
15 | the enemy in time of war: |
16 | (1) for the purpose of securing favorable treatment by |
17 | his captors, acts without proper authority in a manner |
18 | contrary to law, custom or regulation, to the detriment of |
19 | others of whatever nationality held by the enemy as civilian |
20 | or military prisoners; or |
21 | (2) while in a position of authority over such persons |
22 | maltreats them without justifiable cause; |
23 | shall be punished as a court-martial may direct. |
24 | § 6030. False official statements. |
25 | Any person subject to this part who, with intent to deceive, |
26 | signs any false record, return, regulation, order or other |
27 | official document made in the line of duty, knowing the same to |
28 | be false, or makes any other false official statement made in |
29 | the line of duty knowing the same to be false, shall be punished |
30 | as a court-martial may direct. |
|
1 | § 6031. Loss, damage, destruction or wrongful disposition of |
2 | military property. |
3 | Any person subject to this part who, without proper |
4 | authority: |
5 | (1) sells or otherwise disposes of; |
6 | (2) willfully or through neglect damages, destroys or |
7 | loses; or |
8 | (3) willfully or through neglect suffers to be lost, |
9 | damaged, destroyed, sold or wrongfully disposed of; |
10 | any military property of the United States or of the |
11 | Commonwealth or any other state shall be punished as a court- |
12 | martial may direct. |
13 | § 6032. Waste, spoilage or destruction of nonmilitary property. |
14 | Any person subject to this part who willfully or recklessly |
15 | wastes, spoils or otherwise willfully and wrongfully destroys or |
16 | damages any property other than military property belonging to |
17 | the United States, the Commonwealth or any other state shall be |
18 | punished as a court-martial may direct. |
19 | § 6033. Improper hazarding of vessel. |
20 | (a) Willful conduct.--Any person subject to this part who |
21 | willfully and wrongfully hazards or suffers to be hazarded any |
22 | vessel of the armed forces of the United States or the State |
23 | military forces shall be punished as a court-martial may direct. |
24 | (b) Negligent conduct.--Any person subject to this part who |
25 | negligently hazards or suffers to be hazarded any vessel of the |
26 | armed forces of the United States or the State military forces |
27 | shall be punished as a court-martial may direct. |
28 | § 6034. Drunken or reckless driving. |
29 | Any person subject to this part who, while in a duty status |
30 | or while on a military installation, operates any vehicle while |
|
1 | drunk or in a reckless or wanton manner shall be punished as a |
2 | court-martial may direct. |
3 | § 6035. Drunk on duty, sleeping on post and leaving post before |
4 | relief. |
5 | (a) General rule.--Except as provided in subsection (b), any |
6 | person subject to this part who is found drunk on duty, sleeping |
7 | on his post or who leaves his post before being relieved shall |
8 | be punished as a court-martial may direct. |
9 | (b) Sentinel or look-out.--Any sentinel or look-out who is |
10 | found drunk on duty, sleeping on his post or who leaves his post |
11 | before being relieved shall be punished, if the offense is |
12 | committed in time of war, by confinement of not more than five |
13 | years or by other punishment as a court-martial may direct. If |
14 | the offense is committed at any other time, the person shall be |
15 | punished as a court-martial may direct. |
16 | § 6036. Dueling. |
17 | Any person subject to this part who fights, promotes, is |
18 | concerned in or connives at fighting a duel or who, having |
19 | knowledge of a challenge sent or about to be sent, fails to |
20 | report the fact promptly to the proper authority, shall be |
21 | punished as a court-martial may direct. |
22 | § 6037. Malingering. |
23 | Any person subject to this part who, for the purpose of |
24 | avoiding work, duty or service in the State military forces: |
25 | (1) feigns illness, physical disablement, mental lapse |
26 | or derangement; or |
27 | (2) intentionally inflicts self-injury; |
28 | shall be punished as a court-martial may direct. |
29 | § 6038. Riot or breach of peace. |
30 | Any person subject to this part who causes or participates in |
|
1 | any riot or breach of the peace shall be punished as a court- |
2 | martial may direct. |
3 | § 6039. Provoking speeches or gestures. |
4 | Any person subject to this part who uses provoking or |
5 | reproachful words or gestures towards any other person subject |
6 | to this part shall be punished as a court-martial may direct. |
7 | § 6040. Perjury. |
8 | Any person subject to this part who, in a judicial |
9 | proceeding, in a course of justice conducted under this part or |
10 | in any administrative proceeding conducted by the State military |
11 | forces under military regulations willfully and corruptly gives, |
12 | upon a lawful oath or in any form allowed by law to be |
13 | substituted for an oath, any false testimony material to the |
14 | issue or matter of inquiry is guilty of perjury and shall be |
15 | punished as a court-martial may direct. |
16 | § 6041. Frauds against government. |
17 | Any person subject to this part: |
18 | (1) who, knowing it to be false or fraudulent: |
19 | (i) makes any claim against the United States, the |
20 | Commonwealth or any officer thereof; or |
21 | (ii) presents to any person in the civil or military |
22 | service thereof, for approval or payment any claim |
23 | against the United States, the Commonwealth or any |
24 | officer thereof; |
25 | (2) who, for the purpose of obtaining the approval, |
26 | allowance or payment of any claim against the United States, |
27 | the Commonwealth or any officer thereof: |
28 | (i) makes or uses any writing or other paper knowing |
29 | the same to contain any false or fraudulent statements; |
30 | (ii) makes any oath, affirmation or certification to |
|
1 | any fact or to any writing or other paper knowing the |
2 | oath, affirmation or certification to be false; |
3 | (iii) forges or counterfeits any signature upon any |
4 | writing or other paper or uses any such signature knowing |
5 | it to be forged or counterfeited; |
6 | (3) who, having charge, possession, custody or control |
7 | of any money or other property of the United States or the |
8 | Commonwealth furnished or intended for the armed forces of |
9 | the United States or the State military forces, knowingly |
10 | delivers to any person having authority to receive the same, |
11 | any amount thereof less than that for which he receives a |
12 | certificate or receipt; or |
13 | (4) who, being authorized to make or deliver any paper |
14 | certifying the receipt of any property of the United States |
15 | or the Commonwealth, furnished or intended for the armed |
16 | forces of the United States or the State military forces, |
17 | makes or delivers to any person such writing without having |
18 | full knowledge of the truth of the statements therein |
19 | contained and with intent to defraud the United States or the |
20 | Commonwealth; |
21 | shall, upon conviction, be punished as a court-martial may |
22 | direct. |
23 | § 6042. Larceny and wrongful appropriation. |
24 | (a) Offenses defined.--Any person subject to this part who, |
25 | while in a duty status, wrongfully takes, obtains or withholds |
26 | by any means whatever from the possession of the true owner or |
27 | of any other person, any money, personal property or article of |
28 | value of any kind: |
29 | (1) with intent permanently to deprive or defraud |
30 | another person of the use and benefit of property or to |
|
1 | appropriate the same to his own use or the use of any person |
2 | other than the true owner, steals such property, is guilty of |
3 | larceny; or |
4 | (2) with intent temporarily to deprive or defraud |
5 | another person of the use and benefit of property or to |
6 | appropriate the same to his own use or the use of any person |
7 | other than the true owner, is guilty of wrongful |
8 | appropriation. |
9 | (b) Punishment.--Any person found guilty of larceny or |
10 | wrongful appropriation shall be punished as a court-martial may |
11 | direct. |
12 | § 6043. Assault. |
13 | Any person subject to this part who, while in a duty status, |
14 | attempts or offers with unlawful force or violence to do bodily |
15 | harm to another person, whether or not the attempt or offer is |
16 | consummated, is guilty of assault and shall be punished as a |
17 | court-martial may direct. |
18 | § 6044. Conduct unbecoming an officer and a gentleman. |
19 | Any commissioned officer who is convicted of conduct |
20 | unbecoming an officer and a gentleman shall be punished as a |
21 | court-martial may direct. |
22 | § 6045. General article. |
23 | Though not specifically described in this part, a person |
24 | subject to this title who engages in any disorder and neglect to |
25 | the prejudice of good order and discipline in the State military |
26 | forces or who engages in any conduct of a nature to bring |
27 | discredit upon the State military forces shall be punished as a |
28 | court-martial may direct. However, where an act or omission |
29 | constitutes an offense that violates both this part and the |
30 | criminal laws of the state where the offense occurs or criminal |
|
1 | laws of the United States, jurisdiction of the military court |
2 | will be determined in accordance with section 5105(b) (relating | <-- |
3 | to jurisdiction to try certain personnel) 5104 (relating to | <-- |
4 | subject matter jurisdiction). |
5 | § 6046. Embezzlement. |
6 | Any person subject to this part who shall, while in a duty |
7 | status, embezzle, misapply or convert to his own use, without |
8 | authority, any moneys received by or entrusted to him for |
9 | disbursement or articles of military equipment shall be punished |
10 | as a court-martial may direct. |
11 | § 6047. Purchasing and receiving military property in pawn. |
12 | Any person subject to this part who knowingly and willfully |
13 | sells, purchases or receives in pawn or pledge any military |
14 | property of the Commonwealth of Pennsylvania or of the United |
15 | States in use by the Commonwealth shall be punished as a court- |
16 | martial may direct. |
17 | § 6048. Wrongful use and possession of controlled substances. |
18 | (a) General rule.--Any person subject to this title who |
19 | wrongfully uses, possesses, manufactures, distributes, imports |
20 | into the customs territory of the United States, exports from |
21 | the United States or introduces into an installation, vessel, |
22 | vehicle or aircraft used by or under the control of the armed |
23 | forces of the United States or the State military forces a |
24 | controlled substance shall be punished as a court-martial may |
25 | direct. |
26 | (b) Definition.--As used in this section, the following |
27 | words and phrases shall have the meanings given to them in this |
28 | subsection unless the context clearly indicates otherwise: |
29 | "Controlled substance." The term means: |
30 | (1) Opium, heroin, cocaine, amphetamine, lysergic acid |
|
1 | diethylamide, methamphetamine, phencyclidine, barbituric acid |
2 | and marijuana and any compound or derivative of any such |
3 | substance. |
4 | (2) Any substance not specified in paragraph (1) that is |
5 | listed on a schedule of controlled substances prescribed by |
6 | the President of the United States for the purposes of the |
7 | Uniform Code of Military Justice of the armed forces of the |
8 | United States (10 U.S.C. § 801 et seq.). |
9 | (3) Any other substance not specified in paragraph (1) |
10 | or contained on a list prescribed by the President of the |
11 | United States under paragraph (2) that is listed in schedules |
12 | I, II, III, IV and V of Section 202 of the Controlled |
13 | Substances Act (Public Law 91-513, 84 Stat. 1236). |
14 | CHAPTER 61 |
15 | MISCELLANEOUS PROVISIONS |
16 | Sec. |
17 | 6101. Courts of inquiry. |
18 | 6102. Authority to administer oaths and to act as notary. |
19 | 6103. Text of part to be available. |
20 | 6104. Complaints of wrongs. |
21 | 6105. Redress of damages to property. |
22 | 6106. Execution of process and sentence. |
23 | 6107. Disposition of fines and penalties. |
24 | 6108. Liability of public officers for nonexecution of process. |
25 | 6109. Compensation of court. |
26 | 6110. Immunity for action of military courts. |
27 | 6111. Delegation of authority by the Governor and Adjutant |
28 | General. |
29 | 6112. Uniformity of interpretation. |
30 | 6113. State Military Justice Fund. |
|
1 | 6114. Severability. | <-- |
2 | § 6101. Courts of inquiry. |
3 | (a) Who may convene.--Courts of inquiry to investigate any |
4 | matter of concern to the State military forces may be convened |
5 | by any person authorized to convene a general court-martial, |
6 | whether or not the persons involved have requested such an |
7 | inquiry. |
8 | (b) Composition.--A court of inquiry consists of three or |
9 | more commissioned officers. For each court of inquiry, the |
10 | convening authority shall also appoint counsel for the court. |
11 | (c) Parties.--Any person subject to this part whose conduct |
12 | is subject to inquiry shall be designated as a party. Any person |
13 | subject to this part who has a direct interest in the subject of |
14 | inquiry has the right to be designated as a party upon request |
15 | to the court. Any person designated as a party shall be given |
16 | due notice and has the right to be present, to be represented by |
17 | counsel, to cross-examine witnesses and to introduce evidence. |
18 | (d) Challenging member.--Members of a court of inquiry may |
19 | be challenged by a party, but only for cause stated to the |
20 | court. |
21 | (e) Oath or affirmation.--The members, counsel, reporters |
22 | and interpreters of courts of inquiry shall take an oath to |
23 | faithfully perform their duties. |
24 | (f) Witnesses.--Witnesses may be summoned to appear and |
25 | testify and be examined before courts of inquiry, as provided |
26 | for courts-martial. |
27 | (g) Findings and recommendations.--Courts of inquiry shall |
28 | make findings of fact but shall not express opinions or make |
29 | recommendations unless required to do so by the convening |
30 | authority. |
|
1 | (h) Record.--Each court of inquiry shall keep a record of |
2 | its proceedings, which shall be authenticated by the signatures |
3 | of the president and counsel for the court and forwarded to the |
4 | convening authority. If the record cannot be authenticated by |
5 | the president, it shall be signed by a member in lieu of the |
6 | president. If the record cannot be authenticated by the counsel |
7 | for the court, it shall be signed by a member in lieu of the |
8 | counsel. |
9 | § 6102. Authority to administer oaths and to act as notary. |
10 | (a) Military administration and justice.--The following |
11 | members of the State military forces may administer oaths for |
12 | the purposes of military administration, including military |
13 | justice: |
14 | (1) All judge advocates, including the State Judge |
15 | Advocate. |
16 | (2) All summary courts-martial. |
17 | (3) All adjutants, assistant adjutants, acting adjutants |
18 | and personnel adjutants. |
19 | (4) All other persons designated by law or by |
20 | regulations of the State military forces or the armed forces |
21 | of the United States. |
22 | (b) Performance of particular duties.--The following persons |
23 | may administer oaths necessary in the performance of their |
24 | duties: |
25 | (1) The president, military judge and trial counsel for |
26 | all general and special courts-martial. |
27 | (2) The president and the counsel for the court of any |
28 | court of inquiry. |
29 | (3) All officers designated to take a deposition. |
30 | (4) All persons detailed to conduct an investigation. |
|
1 | (5) All recruiting officers. |
2 | (6) All other persons designated by law or by |
3 | regulations of the State military forces or the armed forces |
4 | of the United States. |
5 | (c) Evidence of authority.--The signature without seal of |
6 | any such person, together with the title of his office, is prima |
7 | facie evidence of the person's authority. |
8 | § 6103. Text of part to be available. |
9 | (a) Explanation of certain provisions.--Provisions of this |
10 | part specifically designated by regulation as required to be |
11 | explained to enlisted members shall be carefully explained to |
12 | each enlisted member at the time of, or within 30 days after, |
13 | the member's initial entry into the State military forces and at |
14 | such periodic briefings as shall be required by regulation. |
15 | (b) Availability of text.--A complete text of this part and |
16 | of the regulations prescribed by the Governor, Adjutant General |
17 | or department shall be made available to members of the State |
18 | military forces, upon request. |
19 | § 6104. Complaints of wrongs. |
20 | Any member of the State military forces who believes himself |
21 | wronged by a commanding officer, and who, upon due application |
22 | to that commanding officer, is refused redress, may complain to |
23 | any superior commissioned officer, who shall forward the |
24 | complaint to the officer exercising general court-martial |
25 | jurisdiction over the officer against whom it is made. The |
26 | officer exercising general court-martial jurisdiction shall |
27 | examine the complaint and take proper measures for redressing |
28 | the wrong. The officer shall, as soon as possible, send to the |
29 | Adjutant General a statement of the complaint, with a statement |
30 | of the measures taken to address the wrong. |
|
1 | § 6105. Redress of damages to property. |
2 | (a) Assessment of damages.--Whenever complaint is made to |
3 | any commanding officer that willful damage has been done to the |
4 | property of any person or that the person's property has been |
5 | wrongfully taken by members of the State military forces, that |
6 | person may, subject to such regulations as the Governor or |
7 | department may prescribe, convene a board to investigate the |
8 | complaint. The board shall consist of from one to three |
9 | commissioned officers and shall have for the purpose of that |
10 | investigation power to summon witnesses and examine them upon |
11 | oath or affirmation, to receive depositions or other documentary |
12 | evidence and to assess the damages sustained against the |
13 | responsible parties. The assessment of damages made by the board |
14 | is subject to the approval of the commanding officer, and the |
15 | amount approved by that officer shall be charged against the pay |
16 | of the offenders. The order of the commanding officer directing |
17 | charges herein authorized is conclusive on any disbursing |
18 | officer for payment to the injured parties of the damages |
19 | assessed and approved. |
20 | (b) Offender not known.--If the offenders cannot be |
21 | ascertained, but the organization or detachment to which they |
22 | belong is known, charges totaling the amount of damages assessed |
23 | and approved may be made in such proportion as may be considered |
24 | just upon the individual members thereof who are shown to have |
25 | been present at the scene at the time the damages complained of |
26 | were inflicted, as determined by the approved findings of the |
27 | board. |
28 | § 6106. Execution of process and sentence. |
29 | The processes and sentences of courts-martial of the State |
30 | military forces shall be executed by the civil officers |
|
1 | prescribed by the laws of this Commonwealth or by the officers |
2 | of the State military forces as the circumstances may require. |
3 | Fees for serving processes provided for in this part shall be |
4 | the same as prescribed by law for similar processes of a civil |
5 | nature and shall, upon proper vouchers being filed, be paid by |
6 | the Adjutant General in the usual manner. |
7 | § 6107. Disposition of fines and penalties. |
8 | (a) Military court or nonjudicial punishment.--Fines imposed |
9 | by a military court or through imposition of nonjudicial |
10 | punishment may be paid to the Commonwealth and delivered to the |
11 | court or imposing officer or to a person executing their |
12 | process. Fines may be collected in the following manner: |
13 | (1) By cash or money order. |
14 | (2) By retention of any pay or allowances due or to |
15 | become due to the person fined. |
16 | (3) By garnishment or levy, together with costs, on the |
17 | wages, goods and chattels of a person delinquent in paying a |
18 | fine, as provided by law. |
19 | (b) Court-martial.--All fines and penalties imposed and |
20 | collected through the sentence of courts-martial shall be |
21 | forwarded to the Adjutant General, who shall deposit the same in |
22 | the State Military Justice Fund of the State Treasury. |
23 | § 6108. Liability of public officers for nonexecution of |
24 | process. |
25 | The neglect or refusal of any sheriff, constable, peace |
26 | officer or jail warden to execute any process, to make proper |
27 | return of all fines and penalties collected or to receive into |
28 | custody any prisoner, shall be deemed a misdemeanor and shall |
29 | subject the offender to a prosecution by the proper district |
30 | attorney and to a penalty, upon conviction of each such offense, |
|
1 | of $1,000 to the use of the Commonwealth. |
2 | § 6109. Compensation of court. |
3 | (a) Judges, counsel and members of courts.--Military judges, |
4 | military counsel and members of courts-martial and courts of |
5 | inquiry shall be allowed transportation and per diem pay as per |
6 | military grade for time actually employed in the duties assigned |
7 | them. Transportation shall be furnished to all prosecutors, |
8 | prisoners, witnesses, sheriffs, peace officers and constables to |
9 | and from the place or places designated for the meetings of said |
10 | courts. The per diem pay for military and civilian witnesses |
11 | shall be the same as in civil courts of law. The fees of |
12 | sheriffs, peace officers and constables for serving the |
13 | processes provided for in this part shall be the same as |
14 | prescribed by law for similar processes of a civil nature and |
15 | shall, upon proper vouchers being filed, be paid by the Adjutant |
16 | General in the usual manner. |
17 | (b) Witnesses.--The fees and authorized travel expenses of |
18 | all witnesses, experts, victims, court reporters and |
19 | interpreters, as well as fees for the service of process, the |
20 | costs of collection, apprehension, detention and confinement, |
21 | and all other necessary expenses of prosecution and the |
22 | administration of military justice not otherwise payable by any |
23 | other source, shall be paid out of the State Military Justice |
24 | Fund of the State Treasury. |
25 | § 6110. Immunity for action of military courts. |
26 | No accused may bring an action or proceeding against the |
27 | convening authority or a member of a military court or officer |
28 | or person acting under its authority or reviewing its |
29 | proceedings because of the approval, imposition or execution of |
30 | any sentence or the imposition or collection of a fine or |
|
1 | penalty, or the execution of any process or mandate of a |
2 | military court. |
3 | § 6111. Delegation of authority by Governor and Adjutant |
4 | General. |
5 | The Governor or Adjutant General may delegate any authority |
6 | vested in him under this part, and provide for the subdelegation |
7 | of any such authority, except the power given the Governor by |
8 | section 5406 (relating to sentences of dismissal, dishonorable |
9 | discharge or bad‑conduct to be approved by Governor). |
10 | § 6112. Uniformity of interpretation. |
11 | This part shall be so construed as to, so far as practical, |
12 | make this law uniform with the law of the United States, |
13 | especially as embodied in the Uniform Code of Military Justice. |
14 | § 6113. State Military Justice Fund. |
15 | There is hereby established in the State Treasury a special |
16 | nonlapsing fund designated as the State Military Justice Fund. |
17 | The Expenditures from the fund shall be administered by the | <-- |
18 | Adjutant General. The fund shall be used to pay expenses |
19 | incurred in the administration of military justice. All fines, |
20 | penalties, fees and other moneys paid to the Commonwealth under |
21 | this part shall be deposited in the fund. The General Assembly |
22 | may appropriate and have deposited in the fund such funds as it |
23 | deems necessary to carry out the purposes of this part. |
24 | Section 3. All actions initiated or commenced under the |
25 | provisions of Part IV of Title 51 before the effective date of |
26 | this act section shall proceed to conclusion following the law | <-- |
27 | and procedures in effect on the date the action was initiated or |
28 | commenced. |
29 | Section 4. This act shall take effect in six months one | <-- |
30 | year. |
|