PRINTER'S NO. 805
No. 744 Session of 1975
INTRODUCED BY NOLAN, FRAME, CIANFRANI, MESSINGER, LYNCH, DWYER,
EWING, STAUFFER, MURPHY, ORLANDO, REIBMAN, ZEMPRELLI,
STAPLETON, NOSZKA, HILL, KELLEY, SCANLON, KURY, WOOD,
HANKINS AND SMITH, JUNE 9, 1975
REFERRED TO LAW AND JUSTICE, JUNE 9, 1975
AN ACT
1 Amending Title 51 (Military Affairs) of the Pennsylvania
2 Consolidated Statutes, adding provisions relating to military
3 justice.
4 TABLE OF CONTENTS
5 TITLE 51
6 MILITARY AFFAIRS
7 PART IV. MILITARY JUSTICE
8 Chapter 51. General Provisions
9 § 5100. Short title of part.
10 § 5101. Definitions.
11 § 5102. Persons subject to this part.
12 § 5103. Jurisdiction to try certain personnel.
13 § 5104. Dismissal of commissioned officer.
14 § 5105. Territorial applicability.
15 § 5106. Judge advocates and legal officers.
16 Chapter 52. Apprehension and Restraint
17 § 5201. Apprehension.
1 § 5202. Apprehension of persons absent without leave.
2 § 5203. Imposition of restraint.
3 § 5204. Restraint of persons charged with offenses.
4 § 5205. Confinement in jails.
5 § 5206. Reports and receiving of prisoners.
6 § 5207. Punishment prohibited before trial.
7 § 5208. Delivery of offenders to civil authorities.
8 Chapter 53. Non-judicial Punishment
9 § 5301. Commanding officer's non-judicial punishment.
10 Chapter 54. Courts-martial Jurisdiction
11 § 5401. Courts-martial classified.
12 § 5402. Jurisdiction of courts-martial in general.
13 § 5403. Jurisdiction of general courts-martial.
14 § 5404. Jurisdiction of special courts-martial.
15 § 5405. Jurisdiction of summary courts-martial.
16 § 5406. Sentences of dismissal, dishonorable discharge or bad
17 conduct to be approved by the Governor.
18 § 5407. Record of bad conduct discharge proceedings.
19 § 5408. Confinement instead of fine.
20 Chapter 55. Appointment and Composition of Courts-martial
21 § 5501. Who may convene general courts-martial.
22 § 5502. Who may convene special courts-martial.
23 § 5503. Who may convene summary courts-martial.
24 § 5504. Who may serve on courts-martial.
25 § 5505. Military judge of a general or special court-martial.
26 § 5506. Appointment of trial counsel and defense counsel.
27 § 5507. Appointment or employment of reporters and
28 interpreters.
29 § 5508. Absent and additional members.
30 Chapter 56. Pre-trial Procedure
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1 § 5601. Charges and specifications.
2 § 5602. Compulsory self-incrimination prohibited.
3 § 5603. Investigation.
4 § 5604. Forwarding of charges.
5 § 5605. Advice of staff judge advocate and reference for trial.
6 § 5606. Service of charges.
7 Chapter 57. Trial Procedure
8 § 5701. Governor may prescribe rules.
9 § 5702. Unlawfully influencing action of court.
10 § 5703. Duties of trial counsel and defense counsel.
11 § 5704. Sessions.
12 § 5705. Continuances.
13 § 5706. Challenges.
14 § 5707. Oaths.
15 § 5708. Statute of limitations.
16 § 5709. Former jeopardy.
17 § 5710. Pleas of the accused.
18 § 5711. Opportunity to obtain witnesses and other evidence.
19 § 5712. Refusal to appear or testify.
20 § 5713. Contempts.
21 § 5714. Depositions.
22 § 5715. Admissibility of records of courts of inquiry.
23 § 5716. Voting and rulings.
24 § 5717. Number of votes required.
25 § 5718. Court to announce action.
26 § 5719. Record of trial.
27 Chapter 58. Sentences
28 § 5801. Cruel and unusual punishments prohibited.
29 § 5802. Maximum limits.
30 § 5803. Effective date of sentences.
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1 § 5804. Execution of confinement.
2 Chapter 59. Review of Courts-martial
3 § 5901. Error of law; lesser included offense.
4 § 5902. Initial action on the record.
5 § 5903. Action on general court-martial records.
6 § 5904. Reconsideration and revision.
7 § 5905. Rehearings.
8 § 5906. Approval by the convening authority.
9 § 5907. Disposition of records after review by the convening
10 authority.
11 § 5908. Review in the office of the State Judge Advocate.
12 § 5909. Review by a board of review.
13 § 5910. Appellate counsel.
14 § 5911. Execution of sentence; suspension of sentence.
15 § 5912. Vacation of suspension.
16 § 5913. Petition for a new trial.
17 § 5914. Remission and suspension.
18 § 5915. Restoration.
19 § 5916. Finality of proceedings, findings and sentences.
20 Chapter 60. Punitive Sections
21 § 6001. Principals.
22 § 6002. Accessory after the fact.
23 § 6003. Conviction of lesser included offense.
24 § 6004. Attempts.
25 § 6005. Conspiracy.
26 § 6006. Solicitation.
27 § 6007. Fraudulent enlistment, appointment or separation.
28 § 6008. Unlawful enlistment, appointment, or separation.
29 § 6009. Desertion.
30 § 6010. Absence without leave.
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1 § 6011. Missing movement.
2 § 6012. Contempt towards officials.
3 § 6013. Disrespect towards superior commissioned officer.
4 § 6014. Assaulting or wilfully disobeying superior
5 commissioned officer.
6 § 6015. Insubordinate conduct toward warrant officer,
7 noncommissioned officer.
8 § 6016. Failure to obey order or regulation.
9 § 6017. Cruelty and maltreatment.
10 § 6018. Mutiny or sedition.
11 § 6019. Resistance, breach of arrest, and escape.
12 § 6020. Releasing prisoner without proper authority.
13 § 6021. Unlawful detention of another.
14 § 6022. Noncompliance with procedural rules.
15 § 6023. Misbehavior before the enemy.
16 § 6024. Subordinate compelling surrender.
17 § 6025. Improper use of countersign.
18 § 6026. Forcing a safeguard.
19 § 6027. Captured or abandoned property.
20 § 6028. Aiding the enemy.
21 § 6029. Misconduct of a prisoner.
22 § 6030. False official statements.
23 § 6031. Loss, damage, destruction or wrongful disposition
24 of military property.
25 § 6032. Waste, spoilage, or destruction of nonmilitary
26 property.
27 § 6033. Improper hazarding of vessel.
28 § 6034. Drunken or reckless driving.
29 § 6035. Drunk on duty, sleeping on post and leaving post
30 before relief.
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1 § 6036. Dueling.
2 § 6037. Malingering.
3 § 6038. Riot or breach of peace.
4 § 6039. Provoking speeches or gestures.
5 § 6040. Perjury.
6 § 6041. Frauds against the government.
7 § 6042. Larceny and wrongful appropriation.
8 § 6043. Assault.
9 § 6044. Conduct unbecoming an officer and a gentleman.
10 § 6045. General article.
11 § 6046. Embezzlement.
12 § 6047. Purchasing and receiving military property in pawn.
13 Chapter 61. Miscellaneous Provisions
14 § 6101. Courts of inquiry.
15 § 6102. Authority to administer oaths.
16 § 6103. Text of part to be available.
17 § 6104. Complaints of wrongs.
18 § 6105. Redress of injuries to property.
19 § 6106. Execution of process and sentence.
20 § 6107. Disposition of fines and penalties.
21 § 6108. Liability of public officers for non-execution of
22 process.
23 § 6109. Compensation of court.
24 § 6110. Immunity for action of military courts.
25 § 6111. Delegation of authority by the Governor.
26 § 6112. Uniformity of interpretation.
27 The General Assembly of the Commonwealth of Pennsylvania
28 hereby enacts as follows:
29 Section 1. Title 51, act of November 25, 1970 (P.L.707,
30 No.230), known as the Pennsylvania Consolidated Statutes, is
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1 amended by adding a title analysis and part to read:
2 TITLE 51
3 MILITARY AFFAIRS
4 Part
5 IV. Military Justice.
6 PART IV
7 MILITARY JUSTICE
8 Chapter
9 51. General Provisions
10 52. Apprehension and Restraint
11 53. Non-judicial Punishment
12 54. Courts-martial Jurisdiction
13 55. Appointment and Composition of Courts-martial
14 56. Pre-trial Procedure
15 57. Trial Procedure
16 58. Sentences
17 59. Review of Courts-martial
18 60. Punitive Sections
19 61. Miscellaneous Provisions
20 CHAPTER 51
21 GENERAL PROVISIONS
22 Sec.
23 5100. Short title of part.
24 5101. Definitions.
25 5102. Persons subject to this part.
26 5103. Jurisdiction to try certain personnel.
27 5104. Dismissal of commissioned officer.
28 5105. Territorial applicability.
29 5106. Judge advocates and legal officers.
30 § 5100. Short title of part.
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1 This part shall be known and may be cited as the
2 "Pennsylvania Code of Military Justice."
3 § 5101. Definitions.
4 The following words and phrases when used in this part shall
5 have, unless the context clearly indicates otherwise, the
6 meanings given to them in this section:
7 "Accuser." A person who signs and swears to charges, any
8 person who directs that charges nominally be signed and sworn to
9 by another, or any person who has an interest other than an
10 official interest in the prosecution of the accused.
11 "Active State duty." Full-time duty in the active military
12 service of the Commonwealth under an order of the Governor, or
13 by a superior commissioned officer pursuant to law. It includes
14 travel to and from such duty.
15 "Adjutant General." The Adjutant General of the Commonwealth
16 of Pennsylvania.
17 "Convening authority." Includes, in addition to the person
18 who convened the court, a commissioned officer commanding for
19 the time being, or a successor in command.
20 "Duty status." Includes any periods of drill, annual field
21 training, active State duty and such other training, and service
22 as may be required under State or Federal laws, regulations or
23 orders, and includes travel to and from such duty.
24 "Enemy." Includes, for the purposes of the punitive
25 provisions of this part, not only the organized forces of a
26 hostile nation in time of war but also any hostile body the
27 State military forces may be opposing, such as looters, a riot,
28 a rebellious mob or band of renegades or outlaws.
29 "Enlisted person." A person in an enlisted grade.
30 "Federal service." Periods of active duty other than active
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1 State duty, but excludes active duty for training, active duty
2 for periods of less than thirty days, and active duty for the
3 purpose of attending service schools.
4 "Grade." A step or degree, in a graduated scale of office or
5 military rank, that is established and designated as a grade by
6 law or regulation.
7 "May." Is used in a permissive sense. The words "no person
8 may............." means that no person is required, authorized,
9 or permitted to do the act prescribed.
10 "Military." Any or all of the armed forces.
11 "Military court." A court-martial, a court of inquiry, or a
12 provost court.
13 "Military judge." An official of a general or special court-
14 martial appointed in accordance with section 5505 of this title
15 (relating to military judge of a general or special court-
16 martial).
17 "Officer." Commissioned or warrant officer.
18 "Rank." The order of precedence among members of the State
19 military forces.
20 "State judge advocate." The commissioned officer responsible
21 for supervising the administration of the military justice in
22 the State military forces. He shall be the military staff judge
23 advocate to the Governor.
24 "Superior commissioned officer." A commissioned officer
25 superior in rank and command.
26 § 5102. Persons subject to this part.
27 This part applies to all members of the State military forces
28 who are not in Federal service.
29 § 5103. Jurisdiction to try certain personnel.
30 (a) Discharge obtained fraudulently.--Each person subject to
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1 this part discharged from the State military forces who is later
2 charged with having fraudulently obtained his discharge shall
3 be, subject to section 5708 (relating to statute of
4 limitations), subject to trial by court-martial on said charge
5 and shall after apprehension be subject to this part while in
6 the custody of the military for such trial. Upon conviction of
7 said charge he shall be subject to trial by court-martial for
8 all offenses under this part committed before the fraudulent
9 discharge.
10 (b) Deserters.--No person subject to this part who has
11 deserted from the State military forces shall be relieved from
12 amenability to the jurisdiction of this part by virtue of a
13 separation from any subsequent period of service.
14 § 5104. Dismissal of commissioned officer.
15 (a) Court-martial proceedings.--Any commissioned officer,
16 subject to this part dismissed by order of the Governor, may
17 make a written application for trial by court-martial, setting
18 forth, under oath, that he has been wrongfully dismissed. In
19 such event, the Governor, as soon as practicable, shall convene
20 a general court-martial to try such officer on the charges on
21 which he was dismissed. A court-martial so convened shall have
22 jurisdiction to try the dismissed officer on such charge, and he
23 shall be considered to have waived the right to plead any
24 statute of limitations applicable to any offense with which he
25 is charged. The court-martial may, as part of its sentence,
26 adjudge the affirmance of the dismissal, but if the court-
27 martial acquits the accused or if the sentence adjudged, as
28 finally approved or affirmed, does not include dismissal, the
29 Adjutant General shall substitute for the dismissal ordered by
30 the Governor a form of discharge authorized for administrative
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1 issue.
2 (b) Failure to convene court-martial.--If the Governor fails
3 to convene a general court-martial within six months from the
4 presentation of an application for trial under this section, the
5 Adjutant General shall substitute for the dismissal ordered by
6 the Governor a form of discharge authorized for administrative
7 issue.
8 § 5105. Territorial applicability.
9 (a) General rule.--This part applies throughout this
10 Commonwealth. It also applies to all persons otherwise subject
11 to this part while they are serving outside this Commonwealth,
12 and while they are going to and returning from such service
13 outside this Commonwealth, in the same manner and to the same
14 extent as if they were serving inside this Commonwealth.
15 (b) Location of proceedings.--Courts-martial and courts of
16 inquiry may be convened and held in units of the State military
17 forces while those units are serving outside this Commonwealth
18 with the same jurisdiction and powers as to persons subject to
19 this part as if the proceedings were held inside this
20 Commonwealth, and persons subject to this part accused of
21 committing offenses outside this Commonwealth shall be subject
22 to trial and punishment either inside or outside this
23 Commonwealth.
24 § 5106. Judge advocates and legal officers.
25 (a) Appointment of State Judge Advocate.--The Governor, on
26 the recommendation of the Adjutant General, shall appoint a
27 judge advocate officer of the State military forces as State
28 Judge Advocate. To be eligible for appointment, such officer
29 shall have been a member of the bar of the Supreme Court of
30 Pennsylvania for at least five years.
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1 (b) Appointment of assistants.--The Adjutant General may
2 appoint as many assistant State judge advocates as he considers
3 necessary. To be eligible for appointment, assistant State judge
4 advocates must be judge advocate officers of the State military
5 forces and members of the bar of the Supreme Court of
6 Pennsylvania.
7 (c) Field inspections.--The State Judge Advocate or his
8 assistants shall make frequent inspections in the field in
9 supervision of the administration of military justice.
10 (d) Direct communications.--Convening authorities shall at
11 all times communicate directly with their staff judge advocates
12 or legal officer in matters relating to the administration of
13 military justice; and the staff judge advocate or legal officer
14 of any command is entitled to communicate directly with the
15 staff judge advocate or legal officer of a superior or
16 subordinate command, or with the State Judge Advocate.
17 (e) Disqualification in case.--No person who has acted as
18 member, military judge, trial counsel, assistant trial counsel,
19 defense counsel, assistant defense counsel, or investigating
20 officer, or who has been a witness for either the prosecution or
21 defense, in any case may later act as staff judge advocate or
22 legal officer to any reviewing authority upon the same case.
23 CHAPTER 52
24 APPREHENSION AND RESTRAINT
25 Sec.
26 5201. Apprehension.
27 5202. Apprehension of persons absent without leave.
28 5203. Imposition of restraint.
29 5204. Restraint of persons charged with offenses.
30 5205. Confinement in jails.
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1 5206. Reports and receiving of prisoners.
2 5207. Punishment prohibited before trial.
3 5208. Delivery of offenders to civil authorities.
4 § 5201. Apprehension.
5 (a) Definition.--Apprehension is the taking of a person
6 subject to this part into custody.
7 (b) Persons authorized to apprehend.--Any person authorized
8 by this part, or by regulations issued under it, and any peace
9 officer authorized by law, may apprehend persons subject to this
10 part upon reasonable belief that an offense under this part has
11 been committed and that the person apprehended committed it.
12 (c) Authority of officers.--Commissioned officers, warrant
13 officers, petty officers and noncommissioned officers have
14 authority to quell quarrels, frays, and disorders among persons
15 subject to this part and to apprehend persons subject to this
16 part who take part therein.
17 § 5202. Apprehension of persons absent without leave.
18 Any civil officer having authority to apprehend offenders
19 under the laws of the United States or of a state, territory,
20 commonwealth or possession, or of the District of Columbia, or
21 any military officer subject to this part who has been
22 authorized by the Governor by regulation may summarily apprehend
23 any person subject to this part absent without leave from the
24 State military forces and deliver him into the custody of the
25 State military forces.
26 § 5203. Imposition of restraint.
27 (a) Definitions.--Arrest is the restraint of a person
28 subject to this part by an order, not imposed as a punishment
29 for an offense, directing him to remain within certain specified
30 limits. Confinement is the physical restraint of a person
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1 subject to this part.
2 (b) Enlisted personnel.--An enlisted person subject to this
3 part may be ordered into arrest or confinement by any
4 commissioned officer by an order, oral or written, delivered in
5 person or through other persons subject to this part or through
6 any person authorized by this part to apprehend persons. A
7 commanding officer may authorize warrant officers, petty
8 officers, or noncommissioned officers to order enlisted members
9 of his command or subject to his authority into arrest or
10 confinement.
11 (c) Commissioned and warrant officers.--A commissioned
12 officer or a warrant officer subject to this part may be ordered
13 apprehended or into arrest or confinement only by a commanding
14 officer to whose authority he is subject, by an order, oral or
15 written, delivered in person or by another commissioned officer.
16 The authority to order such persons apprehended or into arrest
17 or confinement may not be delegated.
18 (d) Probable cause.--No person subject to this part may be
19 ordered apprehended or into arrest or confinement except for
20 probable cause.
21 (e) Construction of section.--This section does not limit
22 the authority of persons authorized to apprehend offenders to
23 secure the custody of an alleged offender until proper authority
24 may be notified.
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 him of the specific wrong of which he is
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1 accused, to try him, or to dismiss the charges and release him.
2 (b) Issuing warrants to peace officers.--The convening
3 authority of any court-martial shall have the power to issue
4 warrants of apprehension directed to the sheriff or any
5 constable or peace officer within the proper county to apprehend
6 persons subject to this part charged with an offense under this
7 part and to deliver such persons into the custody of the State
8 military forces.
9 (c) Admission to bail.--In cases where the unit of which the
10 accused is a member is not in a status of active State duty or
11 engaged in annual field training, such accused, if apprehended
12 or ordered into confinement prior to or during trial by a
13 military court, may be admitted to bail by the officer
14 exercising special court-martial jurisdiction over him or by a
15 superior commanding officer, or the Adjutant General.
16 § 5205. Confinement in jails.
17 Persons subject to this part confined other than in a
18 military installation, whether before, during or after trial by
19 a military court, shall be confined in municipal, county, or
20 State places of confinement.
21 § 5206. Reports and receiving of prisoners.
22 (a) Duty to receive prisoner.--No provost marshal, commander
23 of a guard, warden, keeper, or officer of a municipal, county,
24 or State place of confinement may refuse to receive or keep any
25 prisoner subject to this part, committed to his charge, when the
26 committing person furnishes a statement, signed by him of the
27 offense charged against the prisoner.
28 (b) Report of commitment.--Every commander of a guard,
29 warden, keeper, or officer of a municipal, county, or State
30 place of confinement to whose charge a prisoner subject to this
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1 part, is committed shall, within 24 hours after that commitment
2 report to the commanding officer of the prisoner, the name of
3 the prisoner, the offense charged against him, and the name of
4 the person who ordered or authorized the commitment.
5 § 5207. Punishment prohibited before trial.
6 Subject to section 5803 (relating to effective date of
7 sentences), no person subject to this part, while being held for
8 trial or the result of trial, may be subjected to punishment or
9 penalty other than arrest or confinement upon the charges
10 pending against him, nor shall the arrest or confinement imposed
11 upon him be any more rigorous than the circumstances require to
12 insure his presence. He may be subjected to minor punishment
13 during that period for other infractions of discipline.
14 § 5208. Delivery of offenders to civil authorities.
15 (a) General rule.--Under such regulations as may be
16 prescribed under this part, a person subject to this part on
17 active State duty, accused of an offense against civil
18 authority, may be delivered, upon request of such civil
19 authority, to such civil authority for trial.
20 (b) Effect on sentence of court martial.--When delivery
21 under this section is made to any civil authority of a person
22 undergoing sentence of a court-martial, the delivery, if
23 followed by conviction in a civil tribunal, interrupts the
24 execution of the sentence of the court-martial. The offender
25 after having answered to the civil authorities for his offense,
26 shall, upon the request of competent military authority, be
27 returned to military custody for the completion of such sentence
28 of the court-martial.
29 CHAPTER 53
30 NON-JUDICIAL PUNISHMENT
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1 Sec.
2 5301. Commanding officer's non-judicial punishment.
3 § 5301. Commanding officer's non-judicial punishment.
4 (a) General rule.--Under such regulations as the Governor
5 may prescribe, any commanding officer may, in addition to or in
6 lieu of admonition or reprimand, impose one of the following
7 disciplinary punishments for minor offenses without the
8 intervention of a court-martial:
9 (1) Upon an officer of his command:
10 (i) withholding of privileges for not more than two
11 consecutive weeks;
12 (ii) restriction to certain specified limits, with
13 or without suspension from duty, for not more than two
14 consecutive weeks; or
15 (iii) if imposed by the Governor, the commanding
16 officer of a division or a wing or a separate brigade or
17 a similar organization, a fine or forfeiture of pay and
18 allowances of not more than $100.
19 (2) Upon other military personnel of his command:
20 (i) withholding of privileges for not more than two
21 consecutive weeks;
22 (ii) restriction to certain specified limits, with
23 or without suspension from duty, for not more than two
24 consecutive weeks;
25 (iii) extra duties for not more than 14 days, which
26 need not be consecutive, and for not more than two hours
27 per day, holidays included;
28 (iv) reduction to next inferior grade if the grade
29 from which demoted was established by the command or an
30 equivalent or lower command; or
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1 (v) if imposed by an officer exercising special
2 court-martial jurisdiction over the offender, a fine or
3 forfeiture of pay and allowances of not more than $10.
4 (b) Limitations imposed by Governor.--The Governor may, by
5 regulation, place limitations on the powers granted by this
6 section with respect to the kind and amount of punishment
7 authorized and the categories of commanding officers authorized
8 to exercise those powers.
9 (c) Appeal from punishment.--A person punished under this
10 section who considers his punishment unjust or disproportionate
11 to the offense may, through the proper channel, appeal to the
12 next superior authority. The appeal shall be promptly forwarded
13 and decided. The officer who imposes the punishment, his
14 successor in command, and superior authority may suspend, set
15 aside, or remit any part or amount of the punishment and restore
16 all rights, privileges and property affected.
17 (d) Additional court-martial proceedings.--The imposition
18 and enforcement of disciplinary punishment under this section
19 for any act or omission is not a bar to trial by court-martial
20 for a serious crime or offense growing out of the same act or
21 omission, and not properly punishable under this section. The
22 fact that a disciplinary punishment has been enforced may be
23 shown by the accused upon trial, and when so shown shall be
24 considered in determining the measure of punishment to be
25 adjudged in the event of a finding of guilty.
26 (e) Application of forfeiture.--Whenever a punishment of
27 forfeiture of pay and allowances is imposed under this section,
28 the forfeiture may apply to pay or allowances accruing on or
29 after the date that punishment is imposed and to any pay and
30 allowances accrued before that date.
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1 (f) Court-martial in lieu of punishment.--Punishment may not
2 be imposed upon any member of the State military forces under
3 this chapter if the member has, before the imposition of such
4 punishment, demanded trial by court-martial in lieu of such
5 punishment.
6 CHAPTER 54
7 COURTS-MARTIAL JURISDICTION
8 Sec.
9 5401. Courts-martial classified.
10 5402. Jurisdiction of courts-martial in general.
11 5403. Jurisdiction of general courts-martial.
12 5404. Jurisdiction of special courts-martial.
13 5405. Jurisdiction of summary courts-martial.
14 5406. Sentences of dismissal, dishonorable discharge or bad
15 conduct to be approved by the Governor.
16 5407. Record of bad conduct discharge proceedings.
17 5408. Confinement instead of fine.
18 § 5401. Courts-martial classified.
19 The three kinds of courts-martial in the State military
20 forces are:
21 (1) General courts-martial, consisting of:
22 (i) a military judge and not less than five members;
23 or
24 (ii) only a military judge, if before the court is
25 assembled the accused, knowing the identity of the
26 military judge and after consultation with defense
27 counsel, requests in writing a court composed only of a
28 military judge and the military judge approves.
29 (2) Special courts-martial, consisting of:
30 (i) not less than three members;
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1 (ii) a military judge and not less than three
2 members; or
3 (iii) only a military judge, if one has been
4 detailed to the court, and the accused under the same
5 conditions as those prescribed in paragraph (1)(ii) so
6 requests.
7 (3) Summary courts-martial, consisting of one
8 commissioned officer.
9 § 5402. Jurisdiction of courts-martial in general.
10 Each force of the State military forces has court-martial
11 jurisdiction over all persons subject to this part. The exercise
12 of jurisdiction by one force over personnel of another force
13 shall be in accordance with regulations prescribed by the
14 Governor.
15 § 5403. Jurisdiction of general courts-martial.
16 Subject to section 5402 (relating to jurisdiction of courts-
17 martial in general), general courts-martial have jurisdiction to
18 try persons subject to this part for any offense made punishable
19 by this part and may, under such limitations as the Governor may
20 prescribe, adjudge any of the following punishments:
21 (1) A fine of not more than $200.
22 (2) Forfeiture of pay and allowances for a period not
23 exceeding six months.
24 (3) A reprimand.
25 (4) Dismissal, dishonorable discharge or bad conduct
26 discharge.
27 (5) Reduction of a noncommissioned officer to any lower
28 enlisted grade.
29 (6) Any combination of these punishments.
30 § 5404. Jurisdiction of special courts-martial.
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1 Subject to section 5402 (relating to jurisdiction of courts-
2 martial in general), special courts-martial shall have
3 jurisdiction to try persons subject to this part, except
4 commissioned officers for any offense made punishable by this
5 part and may, under such limitations as the Governor may
6 prescribe adjudge any of the following punishments:
7 (1) A fine of not more than $100.
8 (2) Forfeiture of pay and allowances for a period not
9 exceeding three months.
10 (3) A reprimand.
11 (4) Reduction of a noncommissioned officer to any lower
12 enlisted grade.
13 (5) A bad conduct discharge.
14 (6) Any combination of these punishments.
15 § 5405. Jurisdiction of summary courts-martial.
16 (a) General rule.--Subject to section 5402 (relating to
17 jurisdiction of courts-martial in general), summary courts-
18 martial shall have jurisdiction to try enlisted persons subject
19 to this part for any offense made punishable by this part and
20 may, under such limitations as the Governor may prescribe,
21 adjudge any of the following punishments:
22 (1) A fine of not more than $25 for a single offense.
23 (2) Forfeiture of pay and allowances for a period not
24 exceeding one month.
25 (3) Reduction to the next lower grade.
26 (b) Objection to summary court-martial.--No person with
27 respect to whom summary courts-martial have jurisdiction may be
28 brought to trial before a summary court-martial if he objects
29 thereto. If objection to trial by summary court-martial is made
30 by an accused, trial shall be ordered by special or general
19750S0744B0805 - 21 -
1 court-martial, as may be appropriate.
2 § 5406. Sentences of dismissal, dishonorable discharge or bad
3 conduct to be approved by the Governor.
4 In the State military forces, no sentence of dismissal,
5 dishonorable discharge, or bad conduct discharge shall be
6 executed until it is approved by the Governor.
7 § 5407. Record of bad conduct discharge proceedings.
8 A bad conduct discharge may not be adjudged by any special
9 court-martial unless a complete written record of the
10 proceedings and testimony before the court has been made.
11 § 5408. Confinement instead of fine.
12 In the State military forces, a court-martial may sentence to
13 confinement for not more than one day for each dollar of the
14 authorized fine.
15 CHAPTER 55
16 APPOINTMENT AND COMPOSITION OF COURTS-MARTIAL
17 Sec.
18 5501. Who may convene general courts-martial.
19 5502. Who may convene special courts-martial.
20 5503. Who may convene summary courts-martial.
21 5504. Who may serve on courts-martial.
22 5505. Military judge of a general or special court-martial.
23 5506. Appointment of trial counsel and defense counsel.
24 5507. Appointment or employment of reporters and interpreters.
25 5508. Absent and additional members.
26 § 5501. Who may convene general courts-martial.
27 (a) General rule.--General courts-martial may be convened by
28 any of the following:
29 (1) The Governor.
30 (2) The Adjutant General.
19750S0744B0805 - 22 -
1 (3) The commanding officer of a division, a separate
2 brigade, or a separate wing.
3 (4) Any other commanding officer in any of the State
4 military forces when empowered by the Governor.
5 (b) Commanding officer as accuser.--When any such commanding
6 officer is an accuser, the court shall be convened by superior
7 competent authority, and may in any case be convened by such
8 authority when deemed desirable by such authority.
9 § 5502. Who may convene special courts-martial.
10 In the State military forces any person authorized to convene
11 a general court-martial, the commanding officer of a garrison,
12 fort, post, camp, station, air base, auxiliary air base, or
13 other place where troops are on duty, or of a brigade, regiment,
14 wing, group, separate battalion, separate squadron, or other
15 detached command, may convene special courts-martial. When any
16 such officer is an accuser, the court shall be convened by
17 superior competent authority and may, in any case, be convened
18 by such authority when deemed advisable by him.
19 § 5503. Who may convene summary courts-martial.
20 (a) General rule.--In the State military forces any person
21 authorized to convene a general or special court-martial, the
22 commanding officer of a garrison, fort, post, camp, station, air
23 base, auxiliary air base, or other place where troops are on
24 duty, or of a brigade, regiment, wing, group, separate
25 battalion, separate squadron, or other detached command, may
26 convene a summary court-martial.
27 (b) Commissioned officer or superior authority.--When only
28 one commissioned officer is present with a command or detachment
29 he shall be the summary court-martial of that command or
30 detachment and shall hear and determine all summary court-
19750S0744B0805 - 23 -
1 martial cases brought before him. Summary courts-martial may,
2 however, be convened in any case by superior competent authority
3 when considered desirable by him.
4 § 5504. Who may serve on courts-martial.
5 (a) Commissioned officer.--Any commissioned officer of the
6 State military forces is eligible to serve on all courts-martial
7 for the trial of any person who may lawfully be brought before
8 such courts for trial.
9 (b) Warrant officer.--Any warrant officer of the State
10 military forces is eligible to serve on general and special
11 courts-martial for the trial of any person, other than a
12 commissioned officer, who may lawfully be brought before such
13 courts for trial.
14 (c) Enlisted person.--
15 (1) Any enlisted person of the State military forces who
16 is not a member of the same unit as the accused is eligible
17 to serve on general and special courts-martial for the trial
18 of any enlisted person who may lawfully be brought before
19 such courts for trial. He shall serve as a member of a court
20 only if, before the convening of the court, the accused
21 personally has requested in writing that enlisted members
22 serve on it. After such a request, the accused may not be
23 tried by a general or special court-martial, the membership
24 of which does not include enlisted persons in a number
25 comprising at least one-third of the total membership of the
26 court, unless eligible members cannot be obtained on account
27 of physical conditions or military exigencies. If such
28 members cannot be obtained, the court may be convened and the
29 trial held without them, but the convening authority shall
30 make a detailed written statement, to be appended to the
19750S0744B0805 - 24 -
1 record, stating why they could not be obtained.
2 (2) In this subsection, the word "unit" means any
3 regularly organized body of the State military forces not
4 larger in size than a company, or a corresponding body.
5 (d) Ineligible persons.--
6 (1) No person subject to this part may be tried by a
7 court-martial any member of which is junior to him in rank or
8 grade.
9 (2) When convening a court-martial, the convening
10 authority shall appoint as members thereof such members as,
11 in his opinion, are best qualified for the duty by reason of
12 age, education, training, experience, length of service, and
13 judicial temperament. No member is eligible to serve as a
14 member of a general or special court-martial when he is the
15 accuser or a witness for the prosecution or has acted as
16 investigating officer or as counsel in the same case.
17 § 5505. Military judge of a general or special court-martial.
18 (a) Appointment and eligibility.--The authority convening a
19 general or special court-martial shall appoint as military judge
20 thereof a commissioned officer who is a member of the bar of the
21 Supreme Court of the Commonwealth of Pennsylvania, and who is
22 certified as qualified for such duty by the State Judge
23 Advocate. No person shall be eligible to act as military judge
24 in a case when he is the accuser or a witness for the
25 prosecution or has acted as investigating officer or as counsel
26 in the same case.
27 (b) Limitation on powers.--The military judge may not
28 consult with the members of the court, other than on the form of
29 the findings as provided in section 5704 (relating to sessions),
30 except in the presence of the accused, trial counsel, and
19750S0744B0805 - 25 -
1 defense counsel. He shall not vote with the members of the
2 court.
3 § 5506. Appointment of trial counsel and defense counsel.
4 (a) General rule.--For each general and special court-
5 martial the authority convening the court shall appoint trial
6 counsel and defense counsel, and such assistants as he considers
7 appropriate. No person who has acted as investigating officer,
8 military judge or court member in any case shall act
9 subsequently as trial counsel, assistant trial counsel, or,
10 unless expressly requested by the accused, as defense counsel or
11 assistant defense counsel in the same case. No person who has
12 acted for the prosecution shall act later in the same case for
13 the defense, nor shall any person who has acted for the defense
14 act later in the same case for the prosecution.
15 (b) Eligibility.--Any person who is appointed trial counsel
16 or defense counsel in the case of a general or a special court-
17 martial:
18 (1) shall be a person who is a member of the bar of the
19 Supreme Court of Pennsylvania; and
20 (2) shall be certified as competent to perform such
21 duties by the State Judge Advocate.
22 § 5507. Appointment or employment of reporters and
23 interpreters.
24 Under such regulations as the Governor may prescribe, the
25 convening authority of a general or special court-martial or
26 court of inquiry shall appoint or employ qualified court
27 reporters, who shall record the proceedings of and testimony
28 taken before that court. Under like regulations the convening
29 authority of a military court may appoint or employ interpreters
30 who shall interpret for the court.
19750S0744B0805 - 26 -
1 § 5508. Absent and additional members.
2 (a) Authorized absence.--No member of a general or special
3 court-martial shall be absent or excused after the court has
4 been assembled for the trial of the accused, except for physical
5 disability or as the result of a challenge or by order of the
6 convening authority for good cause.
7 (b) New members of general court-martial.--Whenever a
8 general court-martial is reduced below five members, the trial
9 shall not proceed unless the convening authority appoints new
10 members sufficient in number to provide not less than five
11 members. When such new members have been sworn, the trial may
12 proceed after the recorded evidence previously introduced before
13 the members of the court has been read to the court in the
14 presence of the military judge, the accused, and counsel for
15 both sides.
16 (c) New members of special court-martial.--Whenever a
17 special court-martial is reduced below three members, the trial
18 shall not proceed unless the convening authority appoints new
19 members sufficient in number to provide not less than three
20 members. When such new members have been sworn, the trial shall
21 proceed with the new members present as if no evidence has
22 previously been introduced at the trial, unless a verbatim
23 record of the evidence previously introduced before the members
24 of the court or a stipulation thereof is read to the court in
25 the presence of the military judge, if any, the accused, and
26 counsel for both sides.
27 CHAPTER 56
28 PRE-TRIAL PROCEDURE
29 Sec.
30 5601. Charges and specifications.
19750S0744B0805 - 27 -
1 5602. Compulsory self-incrimination prohibited.
2 5603. Investigation.
3 5604. Forwarding of charges.
4 5605. Advice of staff judge advocate and reference for trial.
5 5606. Service of charges.
6 § 5601. Charges and specifications.
7 (a) Execution and contents.--Charges and specifications
8 shall be signed by a person subject to this part under oath
9 before a person authorized by this part to administer oaths and
10 shall state:
11 (1) That the signer has personal knowledge of, or has
12 investigated, the matters set forth therein.
13 (2) That they are true in fact to the best of his
14 knowledge and belief.
15 (b) Disposition.--Upon the preferring of charges, the proper
16 authority shall take immediate steps to determine what
17 disposition should be made thereof in the interest of justice
18 and discipline. The person accused shall be informed of the
19 charges against him as soon as practicable.
20 § 5602. Compulsory self-incrimination prohibited.
21 (a) General rule.--No person subject to this part shall
22 compel any person to incriminate himself or to answer any
23 question the answer to which may tend to incriminate him.
24 (b) Advising accused of his rights.--No person subject to
25 this part shall interrogate, or request any statement from an
26 accused or a person suspected of an offense without first
27 informing him of the nature of the accusation and fully advising
28 him of his right to be represented by counsel, that he does not
29 have to make any statement regarding the offense of which he is
30 accused or suspected, and that any statement made by him can and
19750S0744B0805 - 28 -
1 will be used as evidence against him in a trial by court-
2 martial, as well as other constitutional safeguards provided for
3 an accused or a person suspected of an offense.
4 (c) Immaterial or degrading evidence.--No person subject to
5 this part shall compel any person to make a statement or produce
6 evidence before any military tribunal if the statement or
7 evidence is not material to the issue and may tend to degrade
8 him.
9 (d) Unlawfully obtained statement inadmissible.--No
10 statement obtained from any person in violation of this section,
11 or through the use of coercion, unlawful influence, or unlawful
12 inducement shall be received in evidence against him in a trial
13 by court-martial.
14 § 5603. Investigation.
15 (a) General rule.--No charge or specification shall be
16 referred to a general court-martial for trial until a thorough
17 and impartial investigation of all the matters set forth therein
18 has been made. This investigation shall include inquiry as to
19 the truth of the matter set forth in the charges, consideration
20 of the form of charges, and a recommendation as to the
21 disposition which should be made of the case in the interest of
22 justice and discipline.
23 (b) Rights of accused.--The accused shall be advised of the
24 charges against him and of his right to be represented at that
25 investigation by counsel. Upon his own request he shall be
26 represented by civilian counsel if provided by him, or military
27 counsel of his own selection if such counsel is reasonably
28 available, or by counsel appointed by the person exercising
29 general court-martial jurisdiction over the command. At such
30 investigation full opportunity shall be given to the accused to
19750S0744B0805 - 29 -
1 cross-examine witnesses against him if they are available and to
2 present anything he may desire in his own behalf, either in
3 defense or mitigation, and the investigating officer shall
4 examine available witnesses requested by the accused. If the
5 charges are forwarded after such investigation, they shall be
6 accompanied by a statement of the substance of the testimony
7 taken on both sides and a copy thereof shall be given to the
8 accused.
9 (c) Further investigation.--If an investigation of the
10 subject matter of an offense has been conducted before the
11 accused is charged with the offense, and if the accused was
12 present at the investigation and afforded the opportunities for
13 representation, cross-examination, and presentation prescribed
14 in subsection (b), no further investigation of that charge is
15 necessary under this section unless it is demanded by the
16 accused after he is informed of the charge. A demand for further
17 investigation entitles the accused to recall witnesses for
18 further cross-examination and to offer any new evidence in his
19 own behalf.
20 (d) Requirements mandatory.--The requirements of this
21 section are binding on all persons administering this part.
22 § 5604. Forwarding of charges.
23 When a person is held for trial by general court-martial the
24 commanding officer shall, within eight days after the accused is
25 ordered into arrest or confinement, if practicable, forward the
26 charges, together with the investigation and allied papers, to
27 the person exercising general court-martial jurisdiction. If
28 that is not practicable, he shall report in writing to such
29 officer the reasons for delay.
30 § 5605. Advice of staff judge advocate and reference for trial.
19750S0744B0805 - 30 -
1 (a) General rule.--Before directing the trial of any charge
2 by general court-martial, the convening authority shall refer it
3 to his staff judge advocate for consideration and advice. The
4 convening authority shall not refer a charge to general court-
5 martial for trial unless he has found that the charge alleges an
6 offense under this part and is warranted by evidence indicated
7 in the report of the investigation.
8 (b) Changes in charges and specifications.--If the charges
9 or specifications are not formally correct or do not conform to
10 the substance of the evidence contained in the report of the
11 investigating officer, formal corrections, and such changes in
12 the charges and specifications as are needed to make them
13 conform to the evidence may be made by the appointing authority.
14 § 5606. Service of charges.
15 The trial counsel to whom court-martial charges are referred
16 for trial shall cause to be served upon the accused a copy of
17 the charges upon which trial is to be had. In time of peace no
18 person shall, against his objection, be brought to trial, or be
19 required to participate by himself or counsel in a session
20 called by the military judge under section 5704(a) (relating to
21 sessions) in a general court-martial case within a period of
22 five days after the service of the charges upon him, or in a
23 special court-martial within a period of three days after the
24 service of the charges upon him.
25 CHAPTER 57
26 TRIAL PROCEDURE
27 Sec.
28 5701. Governor may prescribe rules.
29 5702. Unlawfully influencing action of court.
30 5703. Duties of trial counsel and defense counsel.
19750S0744B0805 - 31 -
1 5704. Sessions.
2 5705. Continuances.
3 5706. Challenges.
4 5707. Oaths.
5 5708. Statute of limitations.
6 5709. Former jeopardy.
7 5710. Pleas of the accused.
8 5711. Opportunity to obtain witnesses and other evidence.
9 5712. Refusal to appear or testify.
10 5713. Contempts.
11 5714. Depositions.
12 5715. Admissibility of records of courts of inquiry.
13 5716. Voting and rulings.
14 5717. Number of votes required.
15 5718. Court to announce action.
16 5719. Record of trial.
17 § 5701. Governor may prescribe rules.
18 (a) General rule.--The procedure, including modes of proof,
19 in cases before military courts and other military tribunals may
20 be prescribed by the Governor by regulations, which shall apply
21 the principles of law and the rules of evidence generally
22 recognized in the trial of criminal cases in the courts of the
23 State but which shall not be contrary to or inconsistent with
24 this part.
25 (b) Uniformity.--All rules and regulations made pursuant to
26 the provisions of this section shall be uniform in so far as
27 practicable among the State military forces.
28 § 5702. Unlawfully influencing action of court.
29 (a) General rule.--No authority convening a general,
30 special, or summary court-martial nor any other commanding
19750S0744B0805 - 32 -
1 officer, or officer serving on the staff thereof, shall censure,
2 reprimand, or admonish the court or any member, military judge
3 or counsel thereof, with respect to the findings or sentence
4 adjudged by the court, or with respect to any other exercise of
5 its or his functions in the conduct of the proceedings. No
6 person subject to this part shall attempt to coerce or, by any
7 unauthorized means, influence the action of the court-martial or
8 any other military tribunal or any member thereof, in reaching
9 the findings or sentence in any case, or the action of any
10 convening, approving, reviewing authority with respect to his
11 judicial acts.
12 (b) Performance reports on members and counsel.--In the
13 preparation of an effectiveness, fitness or efficiency report or
14 any other report or document used in whole or in part for the
15 purpose of determining whether a member of the State military
16 forces is qualified to be advanced, in grade, or in determining
17 the assignment or transfer of a member of the State military
18 forces, no person subject to this part may, in preparing any
19 such report:
20 (1) consider or evaluate the performance of duty of any
21 such member as a member of a court-martial; or
22 (2) give a less favorable rating or evaluation of any
23 member of the State military forces because of the zeal with
24 which such member, as counsel, represented any accused before
25 a court-martial.
26 § 5703. Duties of trial counsel and defense counsel.
27 (a) Trial counsel.--The trial counsel of a general or
28 special court-martial shall prosecute in the name of the
29 Commonwealth, and shall, under the direction of the court,
30 prepare the record of the proceedings.
19750S0744B0805 - 33 -
1 (b) Defense counsel.--The accused has the right to be
2 represented in his defense before a general or special court-
3 martial by civilian counsel if provided by him, or by military
4 counsel of his own selection if reasonably available, or by the
5 defense counsel appointed under section 5506 (relating to
6 appointment of trial counsel and defense counsel). Should the
7 accused have counsel of his own selection, the defense counsel,
8 and assistant defense counsel, if any, who were appointed,
9 shall, if the accused so desires, act as his associate counsel;
10 otherwise they shall be excused by the military judge or by the
11 president of a court-martial without a military judge.
12 (c) Brief by defense counsel.--In every court-martial
13 proceeding, the defense counsel may, in the event of conviction,
14 forward for attachment to the record of proceedings a brief of
15 such matters he feels should be considered in behalf of the
16 accused on review, including any objection to the contents of
17 the record which he considers appropriate.
18 (d) Assistant trial counsel.--An assistant trial counsel of
19 a general court-martial may, under the direction of the trial
20 counsel or when he is qualified to be a trial counsel as
21 required by section 5506, perform any duty imposed by law,
22 regulation, or the custom of the service upon the trial counsel
23 of the court. An assistant trial counsel of a special court-
24 martial may perform any duty of the trial counsel.
25 (e) Assistant defense counsel.--An assistant defense counsel
26 of a general or special court-martial may, under the direction
27 of the defense counsel or when he is qualified to be the defense
28 counsel as required by section 5506, perform any duty imposed by
29 law, regulation, or the custom of the service upon counsel for
30 the accused.
19750S0744B0805 - 34 -
1 § 5704. Sessions.
2 (a) Proceedings in absence of members.--At any time after
3 the service of charges which have been referred for trial to a
4 court-martial composed of a military judge and members, the
5 military judge may, subject to section 5606 (relating to service
6 of charges) call the court into session without the presence of
7 the members for the purpose of:
8 (1) hearing and determining motions raising defenses or
9 objections which are capable of determination without trial
10 of the issues raised by a plea of not guilty;
11 (2) hearing and ruling upon any matter which may be
12 ruled upon by the military judge under this section, whether
13 or not the matter is appropriate for later consideration or
14 decision by the members of the court;
15 (3) holding the arraignment and receiving the pleas of
16 the accused; and
17 (4) performing any other procedural function which may
18 be performed by the military judge under this part or under
19 rules prescribed pursuant to section 5701 (relating to
20 Governor may prescribe rules) and which does not require the
21 presence of the members of the court.
22 These proceedings shall be conducted in the presence of the
23 accused, the defense counsel, and the trial counsel and shall be
24 made a part of the record.
25 (b) Other proceedings.--When the members of a court-martial
26 deliberate or vote, only the members may be present. All other
27 proceedings, including any other consultation of the court with
28 counsel or the military judge, shall be made a part of the
29 record and shall be in the presence of the accused, the defense
30 counsel, the trial counsel, and, in cases in which a military
19750S0744B0805 - 35 -
1 judge has been detailed to the court, the military judge.
2 § 5705. Continuances.
3 The military judge or a court-martial without a military
4 judge may, for reasonable cause, grant a continuance to any
5 party for such time, and as often, as may appear to be just.
6 § 5706. Challenges.
7 (a) Challenges for cause.--The military judge and members of
8 a general or special court-martial may be challenged by the
9 accused or the trial counsel for cause stated to the court. The
10 military judge, or if none, the court shall determine the
11 relevancy and validity of challenges for cause, and shall not
12 receive a challenge to more than one person at a time.
13 Challenges by the trial counsel shall ordinarily be presented
14 and decided before those by the accused are offered.
15 (b) Preemptory challenges.--Each accused and the trial
16 counsel is entitled to one preemptory challenge, but the
17 military judge may not be challenged except for cause.
18 § 5707. Oaths.
19 (a) General rule.--Before performing their respective
20 duties, military judges, members of general and special courts-
21 martial, trial counsel, assistant trial counsel, defense
22 counsel, assistant defense counsel, reporters, and interpreters
23 shall take an oath to perform their duties faithfully. The form
24 of the oath, the time and place of the taking thereof, the
25 manner of recording the same, and whether the oath shall be
26 taken for all cases in which these duties are to be performed or
27 for a particular case, shall be in accordance with regulations
28 prescribed by the Governor. These regulations may provide that
29 an oath to perform faithfully duties as a military judge, trial
30 counsel, assistant trial counsel, defense counsel, or assistant
19750S0744B0805 - 36 -
1 defense counsel may be taken at any time by any judge advocate,
2 or other person certified to be qualified or competent for the
3 duty, and if such an oath is taken it need not again be taken at
4 the time the judge advocate, or other person is detailed to that
5 duty.
6 (b) Witnesses.--Each witness before a military court shall
7 be examined on oath or affirmation.
8 § 5708. Statute of limitations.
9 (a) No limitation.--A person subject to this part, charged
10 with desertion or absence without leave in time of war or with
11 aiding the enemy or with mutiny may be tried and punished at any
12 time without limitation.
13 (b) Three-year limitation.--Except as otherwise provided in
14 this section, a person subject to this part charged with
15 desertion in time of peace or with the offense punishable under
16 section 6041 (relating to frauds against the government) shall
17 not be liable to be tried by court-martial if the offense was
18 committed more than three years before the receipt of sworn
19 charges and specifications by an officer exercising summary
20 court-martial jurisdiction over the command.
21 (c) Two-year limitation.--Except as otherwise provided in
22 this section, a person subject to this part charged with any
23 offense is not liable to be tried by court-martial or punished
24 under section 5301 (relating to commanding officer's non-
25 judicial punishment) if the offense was committed more than two
26 years before the receipt of sworn charges and specifications by
27 an officer exercising summary court-martial jurisdiction over
28 the command or before the imposition of punishment under section
29 5301.
30 (d) Computation of period of limitation.--Periods in which
19750S0744B0805 - 37 -
1 the accused was absent from territory in which the Commonwealth
2 has the authority to apprehend him, or in the custody of civil
3 authorities, or in the hands of the enemy, shall be excluded in
4 computing the period of limitation prescribed in this section.
5 § 5709. Former jeopardy.
6 (a) General rule.--No person subject to this part shall,
7 without his consent, be tried a second time for the same offense
8 in a military court convened under this part. Prosecution under
9 this part shall not bar prosecution by civil authorities for a
10 crime or offense growing out of the same act or omission
11 committed in violation of the 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
21 this 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
19750S0744B0805 - 38 -
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 or by a court-martial
7 without a military judge, a finding of guilty of the charge or
8 specification may be entered immediately without vote. This
9 finding shall constitute the finding of the court unless the
10 plea of guilty is withdrawn prior to announcement of the
11 sentence, in which event the proceedings shall continue as
12 though the accused had pleaded not guilty.
13 § 5711. Opportunity to obtain witnesses and other evidence.
14 (a) General rule.--The trial counsel, the defense counsel,
15 and the court-martial shall have equal opportunity to obtain
16 witnesses and other evidence in accordance with such regulations
17 as the Governor may prescribe.
18 (b) Issuance of process.--Process issued in court-martial
19 cases to compel witnesses to appear and testify and to compel
20 the production of other evidence shall be similar to that which
21 the courts of this Commonwealth having criminal jurisdiction may
22 lawfully issue and shall run to any part of the Commonwealth and
23 to any other state or territory, district or possession in which
24 the court-martial may be sitting.
25 § 5712. Refusal to appear or testify.
26 Any person not subject to this part who has been duly
27 subpoenaed to appear as a witness or to produce books and
28 records before a military court or before any military or civil
29 officer designated to take a deposition to be read in evidence
30 before such a court and who wilfully neglects or refuses to
19750S0744B0805 - 39 -
1 appear, or refuses to qualify as a witness or to testify or to
2 produce any evidence which that person may have been legally
3 subpoenaed to produce is guilty of an offense against the
4 Commonwealth and a military court may punish him in the same
5 manner as the civil courts of this Commonwealth.
6 § 5713. Contempts.
7 A military court may punish for contempt any person who uses
8 any menacing word, sign, or gesture in its presence, or who
9 disturbs its proceedings by any riot or disorder. The punishment
10 may not exceed confinement for 30 days or a fine of $100 or
11 both.
12 § 5714. Depositions.
13 (a) General rule.--At any time after charges have been
14 signed, as provided in section 5601 (relating to charges and
15 specifications) any party may take oral or written depositions
16 unless the military judge or court-martial without a military
17 judge hearing the case, or if the case is not being heard, an
18 authority competent to convene a court-martial for the trial of
19 those charges forbids if for good cause. If a deposition is to
20 be taken before charges are referred for trial, such an
21 authority may designate commissioned officers to represent the
22 prosecution and the defense and may authorize those officers to
23 take the deposition of any witness.
24 (b) Notice of taking deposition.--The party at whose
25 instance a deposition is to be taken shall give to every other
26 party reasonable written notice of the time and place for taking
27 the deposition.
28 (c) Persons authorized to take depositions.--Depositions may
29 be taken before and authenticated by any military or civil
30 officer authorized by the laws of this Commonwealth or by the
19750S0744B0805 - 40 -
1 laws of the place where the deposition is taken to administer
2 oaths.
3 (d) Admissibility in evidence.--A duly authenticated
4 deposition taken upon reasonable notice to the other parties, so
5 far as otherwise admissible under the rules of evidence, may be
6 read in evidence before any military court or in any proceeding
7 before a court of inquiry, if it appears:
8 (1) that the witness resides or is beyond the state in
9 which the court is ordered to sit, or beyond the distance of
10 one hundred miles from the place of trial or hearing;
11 (2) that the witness by reason of death, age, sickness,
12 bodily infirmity, imprisonment, military necessity, non-
13 amenability to process, or other reasonable cause, is unable
14 or refuses to appear and testify in person at the place of
15 trial or hearing; or
16 (3) that the present whereabouts of the witness is
17 unknown.
18 § 5715. Admissibility of records of courts of inquiry.
19 (a) Court-martial.--In any case not extending to dismissal
20 or dishonorable discharge, the sworn testimony, contained in the
21 duly authenticated record of proceedings of a court of inquiry,
22 of a person whose oral testimony cannot be obtained, may, if
23 otherwise admissible under the rules of evidence, be read in
24 evidence by any party before a court-martial if the accused was
25 a party before the court of inquiry and if the same issue was
26 involved or if the accused consents to the introduction of such
27 evidence.
28 (b) Use of testimony by defense.--Such testimony may be read
29 in evidence only by the defense in cases extending to dismissal
30 or dishonorable discharge.
19750S0744B0805 - 41 -
1 (c) Court of inquiry or military board.--Such testimony may
2 also be read in evidence before a court of inquiry or a military
3 board by either party.
4 § 5716. Voting and rulings.
5 (a) Findings, sentences and challenges.--Voting by members
6 of a general or special court-martial on the findings and on the
7 sentence and by members of a court-martial without a military
8 judge upon questions of challenge shall be by secret written
9 ballot. The junior member of the court shall count the votes.
10 The count shall be checked by the president, who shall forthwith
11 announce the result of the ballot to the members of the court.
12 (b) Questions of law and interlocutory questions.--The
13 military judge and except for questions of challenge, the
14 president of a court-martial without a military judge shall rule
15 upon all questions of law and all interlocutory questions
16 arising during the proceedings. Any such ruling made by the
17 military judge upon any question of law or any interlocutory
18 question other than the factual issue of mental responsibility
19 of the accused, or by the president of a court-martial without a
20 military judge upon any question of law other than a motion for
21 a finding of not guilty, is final and constitutes the ruling of
22 the court. However, the military judge or the president of a
23 court-martial without a military judge may change any such
24 ruling at any time during the trial. Unless such ruling be
25 final, if any member objects thereto, the court shall be cleared
26 and closed and the question decided by a voice vote as provided
27 in section 5717 (relating to number of votes required),
28 beginning with the junior in rank.
29 (c) Instructions to members of court.--Before a vote is
30 taken on the findings, the military judge or the president of a
19750S0744B0805 - 42 -
1 court-martial without a military judge shall, in the presence of
2 the accused and counsel, instruct the members of the court as to
3 the elements of the offense and charge them:
4 (1) that the accused must be presumed to be innocent
5 until his guilt is established by legal and competent
6 evidence beyond reasonable doubt;
7 (2) that in the case being considered, if there is a
8 reasonable doubt as to the guilt of the accused, the doubt
9 shall be resolved in favor of the accused and he shall be
10 acquitted;
11 (3) that, if there is a reasonable doubt as to the
12 degree of guilt, the finding must be in a lower degree as to
13 which there is no reasonable doubt; and
14 (4) that the burden of proof of establishing the guilt
15 of the accused beyond reasonable doubt is upon the
16 prosecution.
17 (d) Proceedings before military judge only.--Subsections
18 (a), (b) and (c) do not apply to a court-martial composed of a
19 military judge only. The military judge of such a court-martial
20 shall determine all questions of law and fact arising during the
21 proceedings and, if the accused is convicted, adjudge an
22 appropriate sentence. The military judge of such a court-martial
23 shall make a general finding and shall in addition on request
24 find the facts specially. If an opinion or memorandum of
25 decision is filed, it will be sufficient if the findings of fact
26 appear therein.
27 § 5717. Number of votes required.
28 (a) Conviction.--No person subject to this part shall be
29 convicted of any offense, except as provided in section 5710 (b)
30 (relating to pleas of the accused) or by the concurrence of two-
19750S0744B0805 - 43 -
1 thirds of the members present at the time the vote is taken.
2 (b) Sentence.--All sentences shall be determined by the
3 concurrence of two-thirds of the members present at the time the
4 vote is taken.
5 (c) Other questions.--All other questions to be decided by
6 the members of a general or special court-martial shall be
7 determined by a majority vote but a determination to reconsider
8 a finding of guilty or to reconsider a sentence, with a view
9 toward decreasing it, may be made by any lesser vote which
10 indicates that the reconsideration is not opposed by the number
11 of votes required for that finding or sentence. A tie vote on a
12 challenge disqualifies the member challenged. A tie vote on a
13 motion for a finding of not guilty or on a motion relating to
14 the question of the accused's sanity is a determination against
15 the accused. A tie vote on any other question is a determination
16 in favor of the accused.
17 § 5718. Court to announce action.
18 Every court-martial shall announce its findings and sentence
19 to the parties as soon as determined.
20 § 5719. Record of trial.
21 (a) General court-martial.--Each general court-martial shall
22 keep a separate record of the proceedings in each case brought
23 before it, and the record shall be authenticated by the
24 signatures of the military judge. If the record cannot be
25 authenticated by the military judge by reason of his death,
26 disability or absence, it shall be authenticated by the
27 signature of the trial counsel or by that of a member if the
28 trial counsel is unable to authenticate it by reason of his
29 death, disability, or absence. If the proceedings have resulted
30 in an acquittal of all charges and specifications or in a
19750S0744B0805 - 44 -
1 sentence not including discharge and not in excess of that which
2 may otherwise be adjudged by a special court-martial, the record
3 need not contain a verbatim account of the proceedings and
4 testimony before the court, but shall contain such matters as
5 the Governor may by regulation prescribe.
6 (b) Special and summary courts-martial.--Each special and
7 summary courts-martial shall keep a separate record of the
8 proceedings in each case, which record shall contain such matter
9 and shall be authenticated in such manner as the Governor may by
10 regulation prescribe.
11 (c) Furnishing record to accused.--A copy of the record of
12 the proceedings of each general and special court-martial shall
13 be given to the accused as soon as authenticated. If a verbatim
14 record of trial by general court-martial is not required by
15 subsection (a), but has been made, the accused may buy such a
16 record under such regulations as the Governor may prescribe.
17 CHAPTER 58
18 SENTENCES
19 Sec.
20 5801. Cruel and unusual punishments prohibited.
21 5802. Maximum limits.
22 5803. Effective date of sentences.
23 5804. Execution of confinement.
24 § 5801. Cruel and unusual punishments prohibited.
25 Punishment by flogging, or by branding, marking or tattooing
26 on the body, or any other cruel or unusual punishment, may not
27 be adjudged by any court-martial or inflicted upon any person
28 subject to this part. The use of irons, single or double, except
29 for the purpose of safe custody, is prohibited.
30 § 5802. Maximum limits.
19750S0744B0805 - 45 -
1 The punishment which a court-martial may direct for an
2 offense may not exceed such limits as the Governor may prescribe
3 for that offense subject to the limits prescribed by this part.
4 § 5803. Effective date of sentences.
5 (a) Forfeiture of pay and allowances.--Whenever a sentence
6 of a court-martial as lawfully adjudged and approved includes a
7 forfeiture of pay or allowances in addition to confinement not
8 suspended, the forfeiture may apply to pay or allowances
9 becoming due on or after the date the sentence is approved by
10 the convening authority. No forfeiture may extend to any pay or
11 allowances accrued before that date.
12 (b) Confinement.--Any period of confinement included in a
13 sentence of a court-martial begins to run from the date the
14 sentence is adjudged by the court-martial but periods during
15 which the sentence to confinement is suspended shall be excluded
16 in computing the service of the term of confinement. Regulations
17 prescribed by the Governor may provide that sentences of
18 confinement may not be executed until approved by designated
19 officers.
20 (c) Other sentences.--All other sentences of courts-martial
21 are effective on the date ordered executed.
22 § 5804. Execution of confinement.
23 (a) Place of confinement.--A sentence of confinement
24 adjudged by a military court, whether or not the sentence
25 includes discharge or dismissal, and whether or not the
26 discharge or dismissal has been executed, may be carried into
27 execution by confinement in any place of confinement under the
28 control of any of the forces of the State military forces or in
29 any county or State jail, prison or other place of confinement.
30 Persons so confined in a jail or prison are subject to the same
19750S0744B0805 - 46 -
1 discipline and treatment as persons confined or committed to the
2 jail or prison by the courts of this Commonwealth or of any
3 political subdivision thereof.
4 (b) Authority to require hard labor.--The omission of the
5 words "hard labor" from any sentence or punishment of a court-
6 martial adjudging confinement does not deprive the authority
7 executing that sentence or punishment of the power to require
8 hard labor as a part of the punishment.
9 (c) Duty of county prison officials.--The keepers, officers,
10 and wardens of county jails or prisons under section 5205
11 (relating to confinement in jails) shall receive persons ordered
12 into confinement before trial and persons committed to
13 confinement by a military court and shall confine them according
14 to law. No such keeper, officer, or warden may require payment
15 of any fee or charge for so receiving or confining a person.
16 CHAPTER 59
17 REVIEW OF COURTS-MARTIAL
18 Sec.
19 5901. Error of law; lesser included offense.
20 5902. Initial action on the record.
21 5903. Action on general court-martial records.
22 5904. Reconsideration and revision.
23 5905. Rehearings.
24 5906. Approval by the convening authority.
25 5907. Disposition of records after review by the convening
26 authority.
27 5908. Review in the office of the State Judge Advocate.
28 5909. Review by a board of review.
29 5910. Appellate counsel.
30 5911. Execution of sentence; suspension of sentence.
19750S0744B0805 - 47 -
1 5912. Vacation of suspension.
2 5913. Petition for a new trial.
3 5914. Remission and suspension.
4 5915. Restoration.
5 5916. Finality of proceedings, findings and sentences.
6 § 5901. Error of law; lesser included offense.
7 (a) Error of law.--A finding or sentence of court-martial
8 shall not be held incorrect on the ground of an error of law
9 unless the error materially prejudices the substantial rights of
10 the accused.
11 (b) Approval of lesser offense.--Any reviewing authority
12 with the power to approve or affirm a finding of guilty may
13 approve or affirm so much of the finding as includes a lesser
14 included offense.
15 § 5902. Initial action on the record.
16 After a trial by court-martial the record shall be forwarded
17 to the convening authority, as reviewing authority, and action
18 thereon may be taken by the person who convened the court, a
19 commissioned officer commanding for the time being, in the
20 absence of the convening authority, a successor in command, or
21 by any officer exercising general court-martial jurisdiction.
22 § 5903. Action on general court-martial records.
23 The convening authority shall refer the record of each
24 general court-martial to his staff judge advocate or legal
25 officer who shall submit his written opinion thereon to the
26 convening authority. If there is no qualified staff judge
27 advocate or legal officer available, the State Judge Advocate
28 shall assign a judge advocate officer for such purpose. If the
29 final action of the court has resulted in an acquittal of all
30 charges and specifications, the opinion shall be limited to
19750S0744B0805 - 48 -
1 questions of jurisdiction.
2 § 5904. Reconsideration and revision.
3 (a) Reconsideration of motion dismissing specification.--If
4 a specification before a court-martial has been dismissed on
5 motion and the ruling does not amount to a finding of not
6 guilty, the convening authority may return the record to the
7 court for reconsideration of the ruling and any further
8 appropriate action.
9 (b) Record disclosing error or improper action.--Where there
10 is an apparent error or omission in the record or where the
11 record shows improper or inconsistent action by a court-martial
12 with respect to a finding or sentence which can be rectified
13 without material prejudice to the substantial rights of the
14 accused, the convening authority may return the record to the
15 court for appropriate action. In no case, however, may the
16 record be returned:
17 (1) for reconsideration of a finding of not guilty of
18 any specification or a ruling which amounts to a finding of
19 not guilty;
20 (2) for reconsideration of a finding of not guilty of
21 any charge, unless the record shows a finding of guilty under
22 a specification laid under that charge, which sufficiently
23 alleges a violation of some section of this part; or
24 (3) for increasing the severity of the sentence unless
25 the sentence prescribed for the offense is mandatory.
26 § 5905. Rehearings.
27 (a) General rule.--If the convening authority disapproves
28 the findings and sentence of a court-martial he may, except
29 where there is lack of sufficient evidence in the record to
30 support the findings, order a rehearing, in which case he shall
19750S0744B0805 - 49 -
1 state the reasons for disapproval. If he disapproves the
2 findings and sentence and does not order a rehearing, he shall
3 dismiss the charges.
4 (b) Rehearing body composition and authority.--Every
5 rehearing shall take place before a court-martial composed of
6 members not members of the court-martial which first heard the
7 case. Upon such rehearing the accused shall not be tried for any
8 offense of which he was found not guilty by the first court-
9 martial, and no sentence in excess of or more severe than the
10 original sentence may be imposed, unless the sentence is based
11 upon a finding of guilty of an offense not considered upon the
12 merits in the original proceedings, or unless the sentence
13 prescribed for the offense is mandatory.
14 § 5906. Approval by the convening authority.
15 In acting on the findings and sentence of a court-martial,
16 the convening authority shall approve only such findings of
17 guilty, and the sentence or such part or amount of the sentence,
18 as he finds correct in law and fact and as he in his discretion
19 determines should be approved. Unless he indicates otherwise,
20 approval of the sentence shall constitute approval of the
21 findings and sentence.
22 § 5907. Disposition of records after review by the convening
23 authority.
24 (a) Final action by Governor.--When the Governor has taken
25 final action in a court-martial case in which he is the
26 convening authority, there shall be no further review.
27 (b) Final action by other authority.--When a convening
28 authority other than the Governor has taken final action in a
29 general court-martial case, he shall forward the entire record,
30 including his action thereon and the opinion or opinions of the
19750S0744B0805 - 50 -
1 staff judge advocate or legal officer, to the State Judge
2 Advocate.
3 (c) Bad conduct discharge.--Where the sentence of a special
4 court-martial as approved by the convening authority includes a
5 bad-conduct discharge, whether or not suspended, the record
6 shall be forwarded to the officer exercising general court-
7 martial jurisdiction over the command to be reviewed in the same
8 manner as a record of trial by a general court-martial. If the
9 sentence as approved by an officer exercising general court-
10 martial jurisdiction includes a bad-conduct discharge, whether
11 or not suspended, the record shall be forwarded to the State
12 Judge Advocate.
13 (d) Review and disposition of other records.--All other
14 special and summary court-martial records shall be reviewed by a
15 judge advocate of the Army National Guard or Air National Guard
16 and shall be transmitted and disposed of as the Adjutant General
17 may prescribe by regulations.
18 § 5908. Review in the office of the State Judge Advocate.
19 Every record of trial by general court-martial in which there
20 has been a finding of guilty and a sentence, and every record of
21 trial by special court-martial in which the sentence as approved
22 by an officer exercising general court-martial jurisdiction
23 includes a bad-conduct discharge, shall be examined in the
24 office of the State Judge Advocate. If the State Judge Advocate
25 so directs, the record shall be reviewed by a board of review in
26 accordance with section 5909 (relating to review by a board of
27 review).
28 § 5909. Review by a board of review.
29 (a) Composition of boards of review.--The State Judge
30 Advocate may constitute one or more boards of review, each
19750S0744B0805 - 51 -
1 composed of not less than three commissioned officers, each of
2 whom shall be a member of the bar of the Supreme Court of
3 Pennsylvania, and one of whom shall be a judge advocate of the
4 Army or Air National Guard.
5 (b) Affirming findings and sentence.--In a case referred to
6 it, the board of review may act only with respect to the
7 findings and sentence as approved by the convening authority. It
8 may affirm only such findings of guilty, and the sentence or
9 such part or amount of the sentence, as it finds correct in law
10 and fact and determines, on the basis of the entire record,
11 should be approved. In considering the record it shall have
12 authority to weigh the evidence, judge the credibility of
13 witnesses, and determine controverted questions of fact,
14 recognizing that the trial court saw and heard the witnesses.
15 (c) Setting aside findings and sentence.--If the board of
16 review sets aside the findings and sentence, it may, except
17 where the setting aside is based on lack of sufficient evidence
18 in the record to support the findings, order a rehearing. If it
19 sets aside the findings and sentence and does not order a
20 rehearing, it shall order that the charges be dismissed.
21 (d) Action by convening authority.--The State Judge Advocate
22 shall, unless there is to be further action by the Governor,
23 instruct the convening authority to take action in accordance
24 with the decision of the board of review. If the board of review
25 has ordered a rehearing but the convening authority finds a
26 rehearing impracticable, he may dismiss the charges.
27 (e) Uniform rules of procedure.--In the event one or more
28 boards of review are constituted in accordance with this
29 section, the State Judge Advocate shall prescribe uniform rules
30 of procedure for proceedings in and before such board or boards
19750S0744B0805 - 52 -
1 of review.
2 § 5910. Appellate counsel.
3 Upon review of the record of trial by general court-martial
4 in which there has been a finding of guilty and a sentence and
5 upon review of the record of trial by special court-martial in
6 which the sentence as approved by an officer exercising general
7 court-martial jurisdiction includes a bad-conduct discharge, the
8 accused shall have the right to be represented before the State
9 Judge Advocate or the board of review, as the case may be, by
10 military counsel if requested by him or by civilian counsel if
11 provided by him. Appellate military counsel shall be a
12 commissioned officer of the State military forces and shall be a
13 member of the bar of the Supreme Court of Pennsylvania.
14 § 5911. Execution of sentence; suspension of sentence.
15 (a) Approval of certain sentences by Governor.--No sentence
16 extending to the dismissal of a commissioned officer or
17 dishonorable discharge or bad-conduct discharge shall be
18 executed until approved by the Governor. He shall approve the
19 sentence or such part, amount, or commuted form of the sentence
20 as he sees fit, and may suspend the execution of the sentence or
21 any part of the sentence, as approved by him.
22 (b) Authority of convening authority.--All other court-
23 martial sentences, unless suspended, may be ordered executed by
24 the convening authority when approved by him. The convening
25 authority may suspend the execution of any sentence.
26 § 5912. Vacation of suspension.
27 (a) Bad-conduct discharges and general court-martial
28 sentences.--Prior to the vacation of the suspension of a special
29 court-martial sentence which as approved includes a bad-conduct
30 discharge, or of any general court-martial sentence, the officer
19750S0744B0805 - 53 -
1 having special court-martial jurisdiction over the probationer
2 shall hold a hearing on the alleged violation of probation. The
3 probationer shall be represented at the hearing by counsel if he
4 so desires.
5 (b) Hearing record, recommendation and action.--The record
6 of the hearing and the recommendation of the officer having
7 special court-martial jurisdiction shall be forwarded for action
8 to the officer exercising general court-martial jurisdiction. If
9 he vacates the suspension, any unexecuted part of the sentence
10 except a dismissal shall be executed.
11 (c) Other sentences.--The suspension of any other sentence
12 may be vacated by any authority competent to convene, for the
13 command in which the accused is serving or assigned, a court of
14 the kind that imposed the sentence.
15 § 5913. Petition for a new trial.
16 At any time within two years after approval by the convening
17 authority of a court-martial sentence which extends to
18 dismissal, dishonorable discharge or bad-conduct discharge, the
19 accused may petition the Governor for a new trial on ground of
20 newly discovered evidence or fraud on the court-martial.
21 § 5914. Remission and suspension.
22 (a) General rule.--A convening authority may remit or
23 suspend any part or amount of the unexecuted part of any
24 sentence, including all uncollected forfeitures, other than a
25 sentence approved by the Governor.
26 (b) Substitution of administrative discharge by Governor.--
27 The Governor may, for good cause, substitute an administrative
28 form of discharge for a discharge or dismissal executed in
29 accordance with the sentence of a court-martial.
30 § 5915. Restoration.
19750S0744B0805 - 54 -
1 (a) General rule.--Under such regulations as the Governor
2 may prescribe, all rights, privileges, and property affected by
3 an executed portion of a court-martial sentence which has been
4 set aside or disapproved, except an executed dismissal or
5 discharge, shall be restored unless a new trial or rehearing is
6 ordered and such executed portion is included in a sentence
7 imposed upon a new trial or rehearing.
8 (b) Substitution of administrative discharge for invalid
9 discharge.--When a previously executed sentence of dishonorable
10 discharge or bad-conduct discharge is not sustained on a new
11 trial, the Adjutant General shall substitute therefor a form of
12 discharge authorized for administrative issuance unless the
13 accused is to serve out the remainder of his enlistment.
14 (c) Substitution of administrative discharge for invalid
15 dismissal.--When a previously executed sentence of dismissal is
16 not sustained on a new trial, the Adjutant General shall
17 substitute therefor a form of discharge authorized for
18 administrative issue.
19 § 5916. Finality of proceedings, findings and sentences.
20 The proceedings, findings and sentences of courts-martial as
21 reviewed and approved, as required by this part, and all
22 dismissals and discharges carried into execution under sentences
23 by courts-martial following review and approval, as required by
24 this part, shall be final and conclusive. Orders publishing the
25 proceedings of courts-martial and all action taken pursuant to
26 those proceedings are binding upon all departments, courts,
27 agencies, and officers of the Commonwealth, subject only to
28 action upon a petition for a new trial as provided in section
29 5913 (relating to petition for a new trial) and to action by the
30 Governor as provided in section 5914 (relating to remission and
19750S0744B0805 - 55 -
1 suspension).
2 CHAPTER 60
3 PUNITIVE SECTIONS
4 Sec.
5 6001. Principals.
6 6002. Accessory after the fact.
7 6003. Conviction of lesser included offense.
8 6004. Attempts.
9 6005. Conspiracy.
10 6006. Solicitation.
11 6007. Fraudulent enlistment, appointment or separation.
12 6008. Unlawful enlistment, appointment, or separation.
13 6009. Desertion.
14 6010. Absence without leave.
15 6011. Missing movement.
16 6012. Contempt towards officials.
17 6013. Disrespect towards superior commissioned officer.
18 6014. Assaulting or wilfully disobeying superior
19 commissioned officer.
20 6015. Insubordinate conduct toward warrant officer,
21 noncommissioned officer.
22 6016. Failure to obey order or regulation.
23 6017. Cruelty and maltreatment.
24 6018. Mutiny or sedition.
25 6019. Resistance, breach of arrest, and escape.
26 6020. Releasing prisoner without proper authority.
27 6021. Unlawful detention of another.
28 6022. Noncompliance with procedural rules.
29 6023. Misbehavior before the enemy.
30 6024. Subordinate compelling surrender.
19750S0744B0805 - 56 -
1 6025. Improper use of countersign.
2 6026. Forcing a safeguard.
3 6027. Captured or abandoned property.
4 6028. Aiding the enemy.
5 6029. Misconduct of a prisoner.
6 6030. False official statements.
7 6031. Loss, damage, destruction or wrongful disposition
8 of military property.
9 6032. Waste, spoilage, or destruction of nonmilitary
10 property.
11 6033. Improper hazarding of vessel.
12 6034. Drunken or reckless driving.
13 6035. Drunk on duty, sleeping on post and leaving post
14 before relief.
15 6036. Dueling.
16 6037. Malingering.
17 6038. Riot or breach of peace.
18 6039. Provoking speeches or gestures.
19 6040. Perjury.
20 6041. Frauds against the government.
21 6042. Larceny and wrongful appropriation.
22 6043. Assault.
23 6044. Conduct unbecoming an officer and a gentleman.
24 6045. General article.
25 6046. Embezzlement.
26 6047. Purchasing and receiving military property in pawn.
27 § 6001. Principals.
28 Any person subject to this part who:
29 (1) commits an offense punishable by this part, or aids,
30 abets, counsels, commands, or procures its commission; or
19750S0744B0805 - 57 -
1 (2) causes an act to be done which if directly performed
2 by him would be punishable by this part;
3 is a principal.
4 § 6002. Accessory after the fact.
5 Any person subject to this part who, knowing that an offense
6 punishable by this part has been committed, receives, comforts,
7 or assists the offender in order to hinder or prevent his
8 apprehension, trial, or punishment shall be punished as a court-
9 martial may direct.
10 § 6003. Conviction of lesser included offense.
11 An accused may be found guilty of an offense necessarily
12 included in the offense charged or of an attempt to commit
13 either the offense charged or an offense necessarily included
14 therein.
15 § 6004. Attempts.
16 (a) Attempt defined.--An act, done with specific intent to
17 commit an offense under this part, amounting to more than mere
18 preparation and tending, even though failing to effect its
19 commission, is an attempt to commit that offense.
20 (b) Punishment.--Any person subject to this part who
21 attempts to commit any offense punishable by this part shall be
22 punished as a court-martial may direct, unless otherwise
23 specifically prescribed.
24 (c) Effect of consummation of offense.--Any person subject
25 to this part may be convicted of an attempt to commit an offense
26 although it appears on the trial that the offense was
27 consummated.
28 § 6005. Conspiracy.
29 Any person subject to this part who conspires with any other
30 person to commit an offense under this part shall, if one or
19750S0744B0805 - 58 -
1 more of the conspirators does an act to effect the object of the
2 conspiracy, be punished as a court-martial may direct.
3 § 6006. Solicitation.
4 (a) Desertion and mutiny.--Any person subject to this part
5 who solicits or advises another or others to desert in violation
6 of section 6009 (relating to desertion) or mutiny in violation
7 of section 6018 (relating to mutiny or sedition) shall, if the
8 offense solicited or advised is attempted or committed, be
9 punished with the punishment provided for the commission of the
10 offense, but, if the offense solicited or advised is not
11 committed or attempted, he shall be punished as a court-martial
12 may direct.
13 (b) Misbehavior before enemy and sedition.--Any person
14 subject to this part who solicits or advises another or others
15 to commit an act of misbehavior before the enemy in violation of
16 section 6023 (relating to misbehavior before the enemy) or
17 sedition in violation of section 6018 shall, if the offense
18 solicited or advised is committed, be punished with the
19 punishment provided for the commission of the offense, but, if
20 the offense solicited or advised is not committed, he shall be
21 punished as a court-martial may direct.
22 § 6007. Fraudulent enlistment, appointment or separation.
23 Any person who:
24 (1) procures his own enlistment or appointment in the
25 State military forces by knowingly false representation or
26 deliberate concealment as to his qualifications for that
27 enlistment or appointment and receives pay or allowances
28 thereunder; or
29 (2) procures his own separation from the State military
30 forces by knowingly false representation or deliberate
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1 concealment as to his eligibility for that separation;
2 shall be punished as a court-martial may direct.
3 § 6008. Unlawful enlistment, appointment, or separation.
4 Any person subject to this part who effects an enlistment or
5 appointment in or a separation from the State military forces of
6 any person who is known to him to be ineligible for that
7 enlistment, appointment, or separation because it is prohibited
8 by law, regulation, or order shall be punished as a court-
9 martial may direct.
10 § 6009. Desertion.
11 (a) Offense defined.--Any member of the State military
12 forces who:
13 (1) without authority goes or remains absent from his
14 unit, organization or place of duty with intent to remain
15 away therefrom permanently;
16 (2) quits his unit, organization or place of duty with
17 intent to avoid hazardous duty or to shirk important service;
18 or
19 (3) without being regularly separated from one of the
20 State military forces enlists or accepts an appointment in
21 the same or another one of the State military forces, or in
22 one of the armed forces of the United States, without fully
23 disclosing the fact that he has not been regularly separated;
24 is guilty of desertion.
25 (b) Commissioned officer tendering resignation.--Any
26 commissioned officer of the State military forces who, after
27 tender of his resignation and before notice of its acceptance,
28 quits his post or proper duties without leave and with intent to
29 remain away therefrom permanently is guilty of desertion.
30 (c) Punishment.--Any person found guilty of desertion or
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1 attempt to desert shall be punished as a court-martial may
2 direct.
3 § 6010. Absence without leave.
4 Any person subject to this part who, without authority:
5 (1) fails to go to his appointed place of duty at the
6 time prescribed;
7 (2) goes from that place; or
8 (3) absents himself or remains absent from his unit,
9 organization, or place of duty at which he is required to be
10 at the time prescribed;
11 shall be punished as a court-martial may direct.
12 § 6011. Missing movement.
13 Any person subject to this part who through neglect or design
14 misses the movement of a ship, aircraft, or unit with which he
15 is required in the course of duty to move shall be punished as a
16 court-martial may direct.
17 § 6012. Contempt towards officials.
18 Any person subject to this part who uses contemptuous words
19 against the President of the United States, Vice-President of
20 the United States, Congress, Secretary of Defense, or a
21 secretary of a department, the Governor of the Commonwealth of
22 Pennsylvania, the General Assembly of the Commonwealth of
23 Pennsylvania or the Adjutant General of the Commonwealth of
24 Pennsylvania, the Governor or the legislature of any state,
25 territory or other possession of the United States in which he
26 is on duty or present shall be punished as a court-martial may
27 direct.
28 § 6013. Disrespect towards superior commissioned officer.
29 Any person subject to this part who behaves with disrespect
30 towards his superior commissioned officer shall be punished as a
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1 court-martial may direct.
2 § 6014. Assaulting or wilfully disobeying superior
3 commissioned officer.
4 Any person subject to this part who:
5 (1) strikes his superior commissioned officer or draws
6 or lifts up any weapon or offers any violence against him
7 while he is in the execution of his office; or
8 (2) wilfully disobeys a lawful command of his superior
9 commissioned officer;
10 shall be punished as a court-martial may direct.
11 § 6015. Insubordinate conduct toward warrant officer,
12 noncommissioned officer.
13 Any warrant officer or enlisted member who:
14 (1) strikes or assaults a warrant officer,
15 noncommissioned officer, while that officer is in the
16 execution of his office;
17 (2) wilfully disobeys the lawful order of a warrant
18 officer, noncommissioned officer; or
19 (3) treats with contempt or is disrespectful in language
20 or deportment toward a warrant officer, noncommissioned
21 officer, while that officer is in the execution of his
22 office;
23 shall be punished as a court-martial may direct.
24 § 6016. Failure to obey order or regulation.
25 Any person subject to this part who:
26 (1) violates or fails to obey any lawful general order
27 or regulation; or
28 (2) having knowledge of any other lawful order issued by
29 a member of the State military forces, which it is his duty
30 to obey, fails to obey the order; or
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1 (3) is derelict in the performance of his duties;
2 shall be punished as a court-martial may direct.
3 § 6017. Cruelty and maltreatment.
4 Any person subject to this part who is guilty of cruelty
5 toward, or oppression or maltreatment of, any person subject to
6 his orders shall be punished as a court-martial may direct.
7 § 6018. Mutiny or sedition.
8 (a) Offenses defined.--Any person subject to this part who:
9 (1) with intent to usurp or override lawful military
10 authority refuses, in concert with any other person, to obey
11 orders or otherwise to do his duty or creates any violence or
12 disturbance is guilty of mutiny;
13 (2) with intent to cause the overthrow or destruction of
14 lawful civil authority, creates, in concert with any other
15 person, revolt, violence, or other disturbance against that
16 authority is guilty of sedition; or
17 (3) fails to do his utmost to prevent and suppress a
18 mutiny or sedition being committed in his presence, or fails
19 to take all reasonable means to inform his superior
20 commissioned officer or commanding officer of a mutiny or
21 sedition which he knows or has reason to believe is taking
22 place, is guilty of a failure to suppress or report a mutiny
23 or sedition.
24 (b) Punishment.--A person who is found guilty of attempted
25 mutiny, mutiny, sedition, or failure to suppress or report a
26 mutiny or sedition shall be punished as a court-martial may
27 direct.
28 § 6019. Resistance, breach of arrest, and escape.
29 Any person subject to this part who resists apprehension or
30 breaks arrest or who escapes from custody, restraint, or
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1 confinement imposed under this part shall be punished as a
2 court-martial may direct.
3 § 6020. Releasing prisoner without proper authority.
4 Any person subject to this part who, without proper
5 authority, releases any prisoner committed to his charge, or who
6 through neglect or design suffers any such prisoner to escape,
7 shall be punished as a court-martial may direct.
8 § 6021. Unlawful detention of another.
9 Any person subject to this part who, except as provided by
10 law or regulation, apprehends, arrests, restrains, or confines
11 any person shall be punished as a court-martial may direct.
12 § 6022. Noncompliance with procedural rules.
13 Any person subject to this part who:
14 (1) is responsible for unnecessary delay in the
15 disposition of any case of a person accused of an offense
16 under this part; or
17 (2) knowingly and intentionally fails to enforce or
18 comply with any provision of this part regulating the
19 proceedings before, during, or after trial of an accused;
20 shall be punished as a court-martial may direct.
21 § 6023. Misbehavior before the enemy.
22 Any person subject to this part who before or in the presence
23 of the enemy:
24 (1) runs away;
25 (2) shamefully abandons, or surrenders any command,
26 unit, place, or military property which it is his duty to
27 defend;
28 (3) through disobedience, neglect, or intentional
29 misconduct endangers the safety of any such command, unit,
30 place, or military property;
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1 (4) casts away his arms or ammunition;
2 (5) is guilty of cowardly conduct;
3 (6) quits his place of duty to plunder or pillage;
4 (7) causes false alarms in any command, unit, or place
5 under control of the armed forces of the United States or the
6 State military forces;
7 (8) wilfully fails to do his utmost to encounter,
8 engage, capture, or destroy any enemy troops, combatants,
9 vessels, aircraft, or any other thing, which it is his duty
10 so to encounter, engage, capture, or destroy; or
11 (9) does not afford all practicable relief and
12 assistance to any troops, combatants, vessels, or aircraft of
13 the armed forces belonging to the United States or their
14 allies, to the State when engaged in battle or in suppressing
15 civil disorders;
16 shall be punished as a court-martial may direct.
17 § 6024. Subordinate compelling surrender.
18 Any person subject to this part who compels or attempts to
19 compel a commander of any place, vessel, aircraft, or other
20 military property, or of any body of members of the State
21 military forces to give it up to an enemy or to abandon it, or
22 who strikes the colors or flag to an enemy without proper
23 authority, shall be punished as a court-martial may direct.
24 § 6025. Improper use of countersign.
25 Any person subject to this part who discloses the parole or
26 countersign to any person not entitled to receive it, or who
27 gives to another who is entitled to receive and use the parole
28 or countersign a different parole or countersign from that
29 which, to his knowledge, he was authorized and required to give,
30 shall be punished as a court-martial may direct.
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1 § 6026. Forcing a safeguard.
2 Any person subject to this part who forces a safeguard shall
3 be punished as a court-martial may direct.
4 § 6027. Captured or abandoned property.
5 (a) Duty to secure property.--All persons subject to this
6 part shall secure all public property taken from the enemy for
7 the service of the United States or the Commonwealth, and shall
8 give notice and turn over to the proper authority without delay
9 all captured or abandoned property in their possession, custody,
10 or control.
11 (b) Offenses defined and punishment.--Any person subject to
12 this part who:
13 (1) fails to carry out the duties prescribed in
14 subsection (a);
15 (2) buys, sells, trades, or in any way deals in or
16 disposes of captured or abandoned property, whereby he
17 receives or expects any profit, benefit, or advantage to
18 himself or another directly or indirectly connected with
19 himself; or
20 (3) engages in looting or pillaging;
21 shall be punished as a court-martial may direct.
22 § 6028. Aiding the enemy.
23 Any person subject to this part who:
24 (1) aids, or attempts to aid, the enemy with arms,
25 ammunition, supplies, money, or other things; or
26 (2) without proper authority, knowingly harbors or
27 protects or gives intelligence to, or communicates or
28 corresponds with or holds any intercourse with the enemy,
29 either directly or indirectly;
30 shall be punished as a court-martial may direct.
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1 § 6029. Misconduct of a prisoner.
2 Any person subject to this part who, while in the hands of
3 the enemy:
4 (1) for the purpose of securing favorable treatment by
5 his captors acts without proper authority in a manner
6 contrary to law, custom, or regulation, to the detriment of
7 others held by the enemy as civilian or military prisoners;
8 or
9 (2) while in a position of authority over such persons
10 maltreats them without justifiable cause;
11 shall be punished as a court-martial may direct.
12 § 6030. False official statements.
13 Any person subject to this part who, with intent to deceive,
14 signs any false record, return, regulation, order, or other
15 official document, knowing the same to be false, or makes any
16 other false official statement knowing the same to be false,
17 shall be punished as a court-martial may direct.
18 § 6031. Loss, damage, destruction or wrongful disposition
19 of military property.
20 Any person subject to this part, who without proper
21 authority;
22 (1) sells or otherwise disposes of;
23 (2) wilfully or through neglect damages, destroys, or
24 loses; or
25 (3) wilfully or through neglect suffers to be lost,
26 damaged, destroyed, sold, or wrongfully disposed of; any
27 military property of the United States or of the State;
28 shall be punished as a court-martial may direct.
29 § 6032. Waste, spoilage, or destruction of nonmilitary
30 property.
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1 Any person subject to this part who, while in a duty status,
2 wilfully or recklessly wastes, spoils, or otherwise wilfully and
3 wrongfully destroys or damages any property other than military
4 property belonging to the United States or of the State shall be
5 punished as a court-martial may direct.
6 § 6033. Improper hazarding of vessel.
7 (a) Wilful conduct.--Any person subject to this part who
8 wilfully and wrongfully hazards or suffers to be hazarded any
9 vessel of the armed forces of the United States or of the State
10 military forces shall be punished as a court-martial may direct.
11 (b) Negligent conduct.--Any person subject to this part who
12 negligently hazards or suffers to be hazarded any vessel of the
13 armed forces of the United States or of the State military
14 forces shall be punished as a court-martial may direct.
15 § 6034. Drunken or reckless driving.
16 Any person subject to this part who while in a duty status
17 operates any vehicle while drunk, or in a reckless or wanton
18 manner, shall be punished as a court-martial may direct.
19 § 6035. Drunk on duty, sleeping on post and leaving post before
20 relief.
21 Any person subject to this part who is found drunk on duty or
22 sleeping upon his post, or who leaves his post before he is
23 regularly relieved, shall be punished as a court-martial may
24 direct.
25 § 6036. Dueling.
26 Any person subject to this part who, while in a duty status,
27 fights or promotes, or is concerned in or connives at fighting a
28 duel, or who, having knowledge of a challenge sent or about to
29 be sent, fails to report the fact promptly to the proper
30 authority, shall be punished as a court-martial may direct.
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1 § 6037. Malingering.
2 Any person subject to this part who for the purpose of
3 avoiding work, duty or service in the State military forces:
4 (1) feigns illness, physical disablement, mental lapse
5 or derangement; or
6 (2) intentionally inflicts self-injury;
7 shall be punished as a court-martial may direct.
8 § 6038. Riot or breach of peace.
9 Any person subject to this part who while in a duty status
10 causes or participates in any riot or breach of the peace shall
11 be punished as a court-martial may direct.
12 § 6039. Provoking speeches or gestures.
13 Any person subject to this part who while in a duty status
14 uses provoking or reproachful words or gestures towards any
15 other person subject to this part shall be punished as a court-
16 martial may direct.
17 § 6040. Perjury.
18 Any person subject to this part who in a judicial proceeding
19 or in a course of justice conducted under this part wilfully and
20 corruptly gives, upon a lawful oath or in any form allowed by
21 law to be substituted for an oath, any false testimony material
22 to the issue or matter of inquiry is guilty of perjury and shall
23 be punished as a court-martial may direct.
24 § 6041. Frauds against the government.
25 Any person subject to this part:
26 (1) who, knowing it to be false or fraudulent:
27 (i) makes any claim against the United States, the
28 Commonwealth, or any officer thereof; or
29 (ii) presents to any person in the civil or military
30 service thereof, for approval or payment any claim
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1 against the United States, the Commonwealth, or any
2 officer thereof; or
3 (2) who, for the purpose of obtaining the approval,
4 allowance, or payment of any claim against the United States,
5 the Commonwealth, or any officer thereof;
6 (i) makes or uses any writing or other paper knowing
7 the same to contain any false or fraudulent statements;
8 (ii) makes any oath to any fact or to any writing or
9 other paper knowing such oath to be false; or
10 (iii) forges or counterfeits any signature upon any
11 writing or other paper, or uses any such signature
12 knowing the same to be forged or counterfeited; or
13 (3) who, having charge, possession, custody, or control
14 of any money, or other property of the United States or the
15 Commonwealth, furnished or intended for the armed forces of
16 the United States or the State military forces, knowingly
17 delivers to any person having authority to receive the same,
18 any amount thereof less than that for which he receives a
19 certificate or receipt; or
20 (4) who, being authorized to make or deliver any paper
21 certifying the receipt of any property of the United States
22 or the Commonwealth, furnished or intended for the armed
23 forces of the United States or the State military forces,
24 makes or delivers to any person such writing without having
25 full knowledge of the truth of the statements therein
26 contained and with intent to defraud the United States or the
27 Commonwealth;
28 shall, upon conviction, be punished as a court-martial may
29 direct.
30 § 6042. Larceny and wrongful appropriation.
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1 (a) Offenses defined.--Any person subject to this part who
2 while on a duty status wrongfully takes, obtains, or withholds,
3 by any means whatever from the possession of the true owner or
4 of any other person any money, personal property, or article of
5 value of any kind:
6 (1) with intent permanently to deprive or defraud
7 another person of the use and benefit of property or to
8 appropriate the same to his own use or the use of any person
9 other than the true owner, steals such property, is guilty of
10 larceny; or
11 (2) with intent temporarily to deprive or defraud
12 another person of the use and benefit of property or to
13 appropriate the same to his own use or the use of any person
14 other than the true owner, is guilty of wrongful
15 appropriation.
16 (b) Punishment.--Any person found guilty of larceny or
17 wrongful appropriation shall be punished as a court-martial may
18 direct.
19 § 6043. Assault.
20 Any person subject to this part who while in a duty status
21 attempts or offers with unlawful force or violence to do bodily
22 harm to another person, whether or not the attempt or offer is
23 consummated, is guilty of assault and shall be punished as a
24 court-martial may direct.
25 § 6044. Conduct unbecoming an officer and a gentleman.
26 Any commissioned officer who is convicted of conduct
27 unbecoming of an officer and a gentleman shall be punished as a
28 court-martial may direct.
29 § 6045. General article.
30 Though not specifically mentioned in this part, all disorders
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1 and neglects to the prejudice of good order and discipline in
2 the State military forces, and all conduct of a nature to bring
3 discredit upon the State military forces, of which persons
4 subject to this part may be guilty, shall be taken cognizance of
5 by a general, special or summary court-martial, according to the
6 nature and degree of the offense, and shall be punished at the
7 discretion of such court. However, jurisdiction shall not be
8 extended to crimes not included herein, and normally within the
9 jurisdiction of the civil courts of this Commonwealth.
10 § 6046. Embezzlement.
11 Any person subject to this part who shall embezzle, misapply
12 or convert to his own use, without authority, any moneys
13 received by or entrusted to him for disbursement or articles of
14 military equipment shall be punished as a court-martial may
15 direct.
16 § 6047. Purchasing and receiving military property in pawn.
17 If any person shall knowingly and wilfully purchase, or
18 receive in pawn or pledge any military property of the
19 Commonwealth of Pennsylvania or of the United States in use by
20 the Commonwealth of Pennsylvania, he shall be punished as a
21 court-martial may direct.
22 CHAPTER 61
23 MISCELLANEOUS PROVISIONS
24 Sec.
25 6101. Courts of inquiry.
26 6102. Authority to administer oaths.
27 6103. Text of part to be available.
28 6104. Complaints of wrongs.
29 6105. Redress of injuries to property.
30 6106. Execution of process and sentence.
19750S0744B0805 - 72 -
1 6107. Disposition of fines and penalties.
2 6108. Liability of public officers for non-execution of
3 process.
4 6109. Compensation of court.
5 6110. Immunity for action of military courts.
6 6111. Delegation of authority by the Governor.
7 6112. Uniformity of interpretation.
8 § 6101. Courts of inquiry.
9 (a) Who may convene.--Courts of inquiry to investigate any
10 matter may be convened by any person authorized to convene a
11 general court-martial or by any other person designated by the
12 Governor for that purpose, whether or not the persons involved
13 have requested such an inquiry.
14 (b) Composition.--A court of inquiry consists of three or
15 more commissioned officers. For each court of inquiry the
16 convening authority shall also appoint counsel for the court.
17 (c) Parties.--Any person subject to this part whose conduct
18 is subject to inquiry shall be designated as a party. Any person
19 subject to this part or employed in the Department of Military
20 Affairs who has a direct interest in the subject of inquiry
21 shall have the right to be designated as a party upon request to
22 the court. Any person designated as a party shall be given due
23 notice and has the right to be present, to be represented by
24 counsel, to cross-examine witnesses, and to introduce evidence.
25 (d) Challenging members.--Members of a court of inquiry may
26 be challenged by a party, but only for cause stated to the
27 court.
28 (e) Oath or affirmation.--The members, counsel, the
29 reporter, and interpreters of courts of inquiry shall take an
30 oath or affirmation to faithfully perform their duties.
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1 (f) Witnesses.--Witnesses may be summoned to appear and
2 testify and be examined before courts of inquiry, as provided
3 for courts-martial.
4 (g) Findings and recommendations.--Courts of inquiry shall
5 make findings of fact but shall not express opinions or make
6 recommendations unless required to do so by the convening
7 authority.
8 (h) Record.--Each court of inquiry shall keep a record of
9 its proceedings, which shall be authenticated by the signatures
10 of the president and counsel for the court and forwarded to the
11 convening authority. In case the record cannot be authenticated
12 by the president, it shall be signed by a member in lieu of the
13 president. In case the record cannot be authenticated by the
14 counsel for the court, it shall be signed by a member in lieu of
15 the counsel.
16 § 6102. Authority to administer oaths.
17 (a) Military administration and justice.--The following
18 members of the State military forces may administer oaths for
19 the purposes of military administration, including military
20 justice:
21 (1) The State Judge Advocate and all assistant State
22 judge advocates.
23 (2) All law specialists.
24 (3) All summary courts-martial.
25 (4) All adjutants, assistant adjutants, acting
26 adjutants, and personnel adjutants.
27 (5) All staff judge advocates and legal officers and
28 acting or assistant staff judge advocates and legal officers.
29 (6) All other persons designated by law or regulation.
30 (b) Performance of particular duties.--The following persons
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1 in the State military forces shall have authority to administer
2 oaths necessary in the performance of their duties:
3 (1) The president, military judge, trial counsel, and
4 assistant trial counsel for all general and special courts-
5 martial.
6 (2) The president and the counsel for the court of any
7 court of inquiry.
8 (3) All officers designated to take a deposition.
9 (4) All persons detailed to conduct an investigation.
10 (5) All other persons designated by law or any
11 regulation.
12 (c) Evidence of authority.--The signature without seal of
13 any such person, together with the title of his office, is prima
14 facie evidence of his authority.
15 § 6103. Text of part to be available.
16 A complete text of this part and of the regulations
17 prescribed by the Governor thereunder shall be made available to
18 any member of the State military forces, upon his request, for
19 his personal examination.
20 § 6104. Complaints of wrongs.
21 Any member of the State military forces who believes himself
22 wronged by his commanding officer, and who, upon due application
23 to such commander, is refused redress, may complain to any
24 superior commissioned officer, who shall forward the complaint
25 to the officer exercising general court-martial jurisdiction
26 over the officer against whom it is made. That officer shall
27 examine into said complaint and take proper measures for
28 redressing the wrong.
29 § 6105. Redress of injuries to property.
30 (a) Assessment of damages.--Whenever complaint is made to
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1 any commanding officer that wilful damage has been done to the
2 property of any person or that his property has been wrongfully
3 taken by members of the State military forces, he may, subject
4 to such regulations as the Governor may prescribe, convene a
5 board to investigate the complaint. The board shall consist of
6 from one to three commissioned officers and shall have for the
7 purpose of such investigation, power to summon witnesses and
8 examine them upon oath or affirmation, to receive depositions or
9 other documentary evidence, and to assess the damages sustained
10 against the responsible parties. The assessment of damages made
11 by such board is subject to the approval of the commanding
12 officer, and in the amount approved by him and may be charged
13 against the pay of the offenders. The order of such commanding
14 officer directing charges herein authorized shall be conclusive,
15 except as provided in subsection (b) on any disbursing officer
16 for the payment by him to the injured parties of the damages so
17 assessed and approved.
18 (b) Rights of accused.--Any person subject to this part who
19 is accused of causing wilful damage to property has the right to
20 be represented by counsel, to summon witnesses in his behalf,
21 and to cross-examine those appearing against him. He has the
22 right of appeal to the next higher commander.
23 § 6106. Execution of process and sentence.
24 In the State military forces, the processes and sentences of
25 its courts-martial shall be executed by the civil officers
26 prescribed by the laws of this Commonwealth or by the officers
27 of the State military forces as the circumstances may require.
28 Fees for serving processes provided for in this part shall be
29 the same as prescribed by law for similar processes of a civil
30 nature, and shall upon proper vouchers being filed, be paid by
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1 the Adjutant General in the usual manner.
2 § 6107. Disposition of fines and penalties.
3 All fines and penalties imposed and collected through the
4 sentence of courts-martial shall be forwarded to the Adjutant
5 General who shall deposit the same in the State Treasury. It
6 shall be proper for the Department of Military Affairs to
7 request each session of the General Assembly to appropriate such
8 moneys as have been so deposited for the welfare of the State
9 military forces.
10 § 6108. Liability of public officers for non-execution of
11 process.
12 The neglect or refusal of any sheriff, constable, peace
13 officer or jail warden to execute any process, or to make proper
14 return of all fines and penalties collected, or to receive in
15 custody any prisoner, shall be deemed a misdemeanor and shall
16 subject the offender to a prosecution by the proper district
17 attorney, and to a penalty, upon conviction of each such
18 offense, of $100 to the use of the Commonwealth.
19 § 6109. Compensation of court.
20 Military judges, military counsel and members of courts-
21 martial and courts of inquiry shall be allowed transportation
22 and per diem pay as per military grade for time actually
23 employed in the duties assigned them. Transportation shall be
24 furnished to all prosecutors, prisoners, witnesses, sheriffs,
25 peace officers and constables to and from the place or places
26 designated for the meetings of said courts. The per diem pay for
27 military and civilian witnesses shall be the same as in civil
28 courts of law. The fees of sheriffs, peace officers and
29 constables for serving the processes provided for in this part
30 shall be the same as prescribed by law for similar processes of
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1 a civil nature and shall, upon proper vouchers being filed, be
2 paid by the Adjutant General in the usual manner.
3 § 6110. Immunity for action of military courts.
4 No accused may bring an action or proceeding against the
5 convening authority or a member of a military court or officer
6 or person acting under its authority or reviewing its
7 proceedings because of the approval, imposition, or execution of
8 any sentence or the imposition or collection of a fine or
9 penalty, or the execution of any process or mandate of a
10 military court.
11 § 6111. Delegation of authority by the Governor.
12 The Governor may delegate any authority vested in him under
13 this part, and may provide for the subdelegation of any such
14 authority, except the power given him by section 5406 (relating
15 to sentences of dismissal, dishonorable discharge or bad conduct
16 to be approved by the Governor) and section 5501 (relating to
17 who may convene general courts-martial).
18 § 6112. Uniformity of interpretation.
19 This part shall be so construed as to effectuate its general
20 purpose to make uniform the law of those states which enact it
21 and, so far as practical, to make that law uniform with the law
22 of the United States, especially as embodied in the Uniform Code
23 of Military Justice.
24 Section 2. Repeals.--The following acts and parts of acts
25 are repealed absolutely:
26 Sections 845 and 846, act of May 27, 1949 (P.L.1903, No.568),
27 known as the "Military Code of 1949."
28 Act of November 24, 1967 (P.L.561, No.272), known as "The
29 Pennsylvania Code of Military Justice."
30 Section 3. Effective Date.--This act shall take effect
19750S0744B0805 - 78 -
1 January 1, 1976.
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