PRIOR PRINTER'S NO. 2019

PRINTER'S NO.  2386

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

SENATE BILL

 

No.

1442

Session of

2012

  

  

INTRODUCED BY M. WHITE, BAKER, PIPPY, GREENLEAF, FONTANA, STACK, ARGALL, SOLOBAY, ERICKSON, WAUGH, MENSCH, BRUBAKER AND EARLL, MARCH 16, 2012

  

  

SENATOR CORMAN, APPROPRIATIONS, RE-REPORTED AS AMENDED, SEPTEMBER 24, 2012   

  

  

  

AN ACT

  

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:

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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

 


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51 of the Pennsylvania Consolidated Statutes are repealed: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.

- 16 -

 


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

- 17 -

 


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

- 18 -

 


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

- 19 -

 


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

- 20 -

 


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

- 21 -

 


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

- 22 -

 


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.

- 23 -

 


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

- 24 -

 


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

- 25 -

 


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

- 26 -

 


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

- 27 -

 


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.

- 28 -

 


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.

- 29 -

 


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

- 30 -

 


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.

- 31 -

 


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.

- 32 -

 


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-

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

- 45 -

 


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

- 46 -

 


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:

- 47 -

 


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.

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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

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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

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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).

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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.

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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,

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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

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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.

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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

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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

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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.

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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.

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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

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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.

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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

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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

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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.

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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

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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

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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

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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.

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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.

- 82 -

 


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.

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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).

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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

- 85 -

 


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

- 86 -

 


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

- 87 -

 


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

- 88 -

 


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.

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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-

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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:

- 91 -

 


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

- 92 -

 


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

- 93 -

 


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

- 94 -

 


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

- 95 -

 


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).

- 96 -

 


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

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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

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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

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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

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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

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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

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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.

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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

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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.--

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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

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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

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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

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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

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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

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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-

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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

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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

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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.

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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

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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

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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,

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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

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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:

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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.

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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.

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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.

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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.

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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

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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-

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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.

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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

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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

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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

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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

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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

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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

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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.

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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.

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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.

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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.

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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

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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,

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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

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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.

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