AB400,103,3
1(6) The service member shall have the right to demand trial by court-martial
2in lieu of nonjudicial punishment, and shall have the right to consult with a judge
3advocate.
AB400,103,7
4(7) The officer who imposes the punishment, or the successor in command, may,
5at any time, suspend, set aside, mitigate, or remit any part or amount of the
6punishment and restore all rights, privileges, and property affected. The officer also
7may do any of the following:
AB400,103,88
(a) Mitigate reduction in grade to forfeiture of pay.
AB400,103,99
(b) Mitigate arrest in quarters to restriction.
AB400,103,1010
(c) Mitigate extra duties to restriction.
AB400,103,15
11(8) The mitigated punishment shall not be for a greater period than the
12punishment mitigated. When mitigating reduction in grade to forfeiture of pay, the
13amount of the forfeiture shall not be greater than the amount that could have been
14imposed initially under this section by the officer who imposed the punishment
15mitigated.
AB400,103,25
16(9) A person punished under this section who considers the punishment unjust
17or disproportionate to the offense may, through the proper channel, appeal to the
18next superior authority within 15 days after the punishment is either announced or
19sent to the accused, as the commander may determine. The appeal shall be promptly
20forwarded and decided, but the person punished may in the meantime be required
21to undergo the punishment adjudged. The superior authority may exercise the same
22powers with respect to the punishment imposed as may be exercised under sub. (7)
23by the officer who imposed the punishment. Before acting on an appeal from a
24punishment, the authority that is to act on the appeal may refer the case to a judge
25advocate for consideration and advice.
AB400,104,7
1(10) The imposition and enforcement of disciplinary punishment under this
2section for any act or omission is not a bar to trial by court-martial or a civilian court
3of competent jurisdiction for a serious crime or offense growing out of the same act
4or omission and not properly punishable under this section; but the fact that a
5disciplinary punishment has been enforced may be shown by the accused upon trial
6and, when so shown, it shall be considered in determining the measure of
7punishment to be adjudged in the event of a finding of guilty.
AB400,104,10
8(11) Whenever a punishment of forfeiture of pay is imposed under this section,
9the forfeiture may apply to pay accruing before, on, or after the date that punishment
10is imposed.
AB400,104,13
11(12) Regulations may prescribe the form of records to be kept of proceedings
12under this section and may prescribe that certain categories of those proceedings
13shall be in writing.
AB400,104,1514
SUBCHAPTER IV
15
COURT-MARTIAL JURISDICTION
AB400,104,17
16322.016 Article 16—Courts-martial classified. The 3 kinds of
17courts-martial in the state military forces are as follows:
AB400,104,18
18(1) General courts-martial, consisting of any of the following:
AB400,104,1919
(a) A military judge and not less than 5 members.
AB400,104,2320
(b) Only a military judge, if before the court is assembled the accused, knowing
21the identity of the military judge and after consultation with defense counsel,
22requests orally on the record or in writing a court composed only of a military judge
23and the military judge approves.
AB400,104,24
24(2) Special courts-martial, consisting of any of the following:
AB400,105,3
1(a) A military judge and not less than 3 members. An accused may waive
2having 12 members and proceed to a special court-martial with not less than 6
3members.
AB400,105,54
(b) Only a military judge, if one has been detailed to the court, and the accused
5under the same conditions as those prescribed in sub. (1) (b) so requests.
AB400,105,6
6(3) Summary courts-martial, consisting of one commissioned officer.
AB400,105,11
7322.017 Article 17—Jurisdiction of courts-martial in general. Each
8component of the state military forces has court-martial jurisdiction over all
9members of the particular component who are subject to this code. Additionally, the
10state military forces have court-martial jurisdiction over all members subject to this
11code.
AB400,105,15
12322.018 Article 18—Jurisdiction of general courts-martial. Subject to
13s. 322.017, general courts-martial have jurisdiction to try persons subject to this
14code for any offense made punishable by this code, and may, under limitations as the
15governor may prescribe, adjudge any punishment not forbidden by this code.
AB400,105,21
16322.019 Article 19—Jurisdiction of special courts-martial. Subject to s.
17322.017, special courts-martial have jurisdiction to try persons subject to this code
18for any offense made punishable by this code, and may, under limitations as the
19governor may prescribe, adjudge any punishment not forbidden by this code except
20dishonorable discharge, dismissal, confinement for more than one year, forfeiture of
21pay exceeding two-thirds pay per month, or forfeiture of pay for more than one year.
AB400,106,2
22322.020 Article 20—Jurisdiction of summary courts-martial. (1) 23Subject to s. 322.017, summary courts-martial have jurisdiction to try persons
24subject to this code, except officers, cadets, candidates, and midshipmen, for any
1offense made punishable by this code under limitations as the governor may
2prescribe.
AB400,106,11
3(2) No person with respect to whom summary courts-martial have jurisdiction
4may be brought to trial before a summary court-martial if that person objects. If
5objection to trial by summary court-martial is made by an accused, trial by special
6or general court-martial may be ordered, as may be appropriate. Summary
7courts-martial may, under limitations as the governor may prescribe, adjudge any
8punishment not forbidden by this code except dismissal, dishonorable or
9bad-conduct discharge, confinement for more than one month, restriction to
10specified limits for more than 2 months, or forfeiture of more than two-thirds of one
11month's pay.
AB400,106,1412
SUBCHAPTER V
13
APPOINTMENT AND COMPOSITION
14
OF COURTS-MARTIAL
AB400,106,16
15322.022 Article 22—Who may convene general courts-martial. (1) 16General courts-martial may be convened by any of the following:
AB400,106,1717
(a) The governor.
AB400,106,1818
(b) The adjutant general.
AB400,106,1919
(c) The commanding general officer of any force of the state military forces.
AB400,106,2020
(d) The commanding officer of a division or a separate brigade.
AB400,106,2121
(e) The commanding officer of a separate wing.
AB400,106,24
22(2) If any commanding officer is an accuser, the court shall be convened by
23superior competent authority and may in any case be convened by a superior
24authority if considered desirable by the authority.
AB400,107,2
1322.023 Article 23—Who may convene special courts-martial. (1) 2Special courts-martial may be convened by any of the following:
AB400,107,33
(a) Any person who may convene a general court-martial.
AB400,107,54
(b) The commanding officer of a garrison, fort, post, camp, station, air national
5guard base, or naval base or station.
AB400,107,76
(c) The commanding officer of a brigade, regiment, detached battalion, or
7corresponding unit of the army national guard.
AB400,107,98
(d) The commanding officer of a wing, group, separate squadron, or
9corresponding unit of the air national guard.
AB400,107,1110
(e) The commanding officer or officer in charge of any other command when
11empowered by the adjutant general.
AB400,107,14
12(2) If the officer is an accuser, the court shall be convened by superior
13competent authority and may in any case be convened by a superior authority if
14considered desirable by the superior competent authority.
AB400,107,16
15322.024 Article 24—Who may convene summary courts-martial. (1) 16Summary courts-martial may be convened by any of the following:
AB400,107,1717
(a) Any person who may convene a general or special court-martial.
AB400,107,1918
(b) The commanding officer of a detached company or other detachment, or
19corresponding unit of the army national guard.
AB400,107,2120
(c) The commanding officer of a detached squadron or other detachment, or
21corresponding unit of the air national guard.
AB400,107,2322
(d) The commanding officer or officer in charge of any other command when
23empowered by the adjutant general.
AB400,108,3
24(2) When only one commissioned officer is present with a command or
25detachment that officer shall be the summary court-martial of that command or
1detachment and shall hear and determine all summary court-martial cases.
2Summary courts-martial may, however, be convened in any case by superior
3competent authority if considered desirable by that authority.
AB400,108,6
4322.025 Article 25—Who may serve as a member on courts-martial. (1) 5Any commissioned officer of the state military forces is eligible to serve on all
6courts-martial for the trial of any person subject to this code.
AB400,108,9
7(2) Any warrant officer of the state military forces is eligible to serve on general
8and special courts-martial for the trial of any person subject to this code, other than
9a commissioned officer.
AB400,108,23
10(3) Any enlisted member of the state military forces who is not a member of the
11same unit as the accused is eligible to serve on general and special courts-martial
12for the trial of any enlisted member subject to this code, but that member shall serve
13as a member of a court only if, before the conclusion of a session called by the military
14judge under s. 322.039 (1) prior to trial or, in the absence of a session, before the court
15is assembled for the trial of the accused, the accused personally has requested orally
16on the record or in writing that enlisted members serve on it. After a request, the
17accused may not be tried by a general or special court-martial the membership of
18which does not include enlisted members in a number comprising at least one-third
19of the total membership of the court, unless eligible enlisted members cannot be
20obtained on account of physical conditions or military exigencies. If the members
21cannot be obtained, the court may be assembled and the trial held without them, but
22the convening authority shall make a detailed written statement, to be appended to
23the record, stating why they could not be obtained.
AB400,108,25
24(4) When it can be avoided, no person subject to this code may be tried by a
25court-martial any member of which is junior to the accused in rank or grade.
AB400,109,6
1(5) When convening a court-martial, the convening authority shall detail
2members of the state military forces as, in the convening authority's opinion, are best
3qualified for the duty by reason of age, education, training, experience, length of
4service, and judicial temperament. No member of the state military forces is eligible
5to serve as a member of a general or special court-martial when that member is the
6accuser, a witness, or has acted as investigating officer or as counsel in the same case.
AB400,109,8
7(6) Before a court-martial is assembled for the trial of a case, the convening
8authority may excuse a member of the court from participating in the case.
AB400,109,10
9(7) The convening authority may delegate the authority under this section to
10a judge advocate or to any other principal assistant.
AB400,109,13
11(8) In this section, "unit" means any regularly organized body of the state
12military forces not larger than a company, a squadron, a division of the naval militia,
13or a body corresponding to one of them.
AB400,109,17
14322.026 Article 26—Military judge of a general or special
15court-martial. (1) A military judge shall be detailed to each general and special
16court-martial. The military judge shall preside over each open session of the
17court-martial to which the military judge has been detailed.
AB400,109,18
18(2) A military judge shall meet all of the following qualifications:
AB400,109,1919
(a) Be a commissioned officer of an organized state military force.
AB400,109,2120
(b) Be an attorney licensed to practice in this state or be a member of the bar
21of a federal court for at least 5 years.
AB400,109,2322
(c) Certified as qualified for duty as a military judge by the senior force judge
23advocate which is the same force as the accused.
AB400,110,2
24(3) In the instance when a military judge is not an attorney licensed to practice
25in this state, the military judge shall be deemed admitted on motion, subject to filing
1with the senior force judge advocate of the same force as the accused setting forth the
2qualifications provided in sub. (2).
AB400,110,9
3(4) The military judge of a general or special court-martial shall be designated
4by the state senior force judge advocate of the same force as the accused if possible,
5or otherwise by the senior of the senior force judge advocates, or a designee, for detail
6by the convening authority. Neither the convening authority nor any staff member
7of the convening authority shall prepare or review any report concerning the
8effectiveness, fitness, or efficiency of the military judge so detailed, which relates to
9performance of duty as a military judge.
AB400,110,12
10(5) No person is eligible to act as military judge in a case if that person is the
11accuser or a witness, or has acted as investigating officer, trial counsel, or defense
12counsel in the same case.
AB400,110,15
13(6) The military judge of a court-martial may not consult with the members
14of the court except in the presence of the accused, trial counsel, and defense counsel
15nor vote with the members of the court.
AB400,110,18
16322.027 Article 27—Detail of trial counsel and defense counsel. (1) For
17each general and special court-martial the authority convening the court shall detail
18trial counsel, defense counsel, and assistants as are appropriate.
AB400,110,24
19(2) No person who has acted as investigating officer, military judge, witness or
20court member in any case may act later as trial counsel, assistant trial counsel, or,
21unless expressly requested by the accused, as defense counsel or assistant or
22associate defense counsel in the same case. No person who has acted for the
23prosecution may act later in the same case for the defense nor may any person who
24has acted for the defense act later in the same case for the prosecution.
AB400,111,2
1(3) Except as provided in sub. (4), trial counsel or defense counsel detailed for
2a general or special court-martial must meet all of the following:
AB400,111,33
(a) A judge advocate as defined in this code.
AB400,111,44
(b) In the case of trial counsel, an attorney licensed to practice in this state.
AB400,111,8
5(4) In the instance when a defense counsel is not an attorney licensed to
6practice in this state, the defense counsel shall be deemed admitted on motion,
7subject to filing with the military judge setting forth the qualifications that counsel
8is all of the following:
AB400,111,109
(a) Commissioned officer of the armed forces of the United States or a
10component thereof.
AB400,111,1111
(b) Member in good standing of the bar of the highest court of another state.
AB400,111,1312
(c) Certified as a judge advocate in the Judge Advocate General's Corps of the
13army, air force, navy, or the marine corps, or a judge advocate as defined in this code.
AB400,111,15
14(5) Trial counsel detailed to a court-martial shall be considered a prosecutor
15under state statutes.
AB400,111,20
16322.028 Article 28—Detail or employment of reporters and
17interpreters. Under regulations as may be prescribed, the convening authority of
18a general or special court-martial or court of inquiry shall detail or employ qualified
19court reporters, who shall record the proceedings of and testimony taken before that
20court and may detail or employ interpreters who shall interpret for the court.
AB400,111,25
21322.029 Article 29—Absent and additional members. (1) No member of
22a general or special court-martial may be absent or excused after the court has been
23assembled for the trial of the accused unless excused as a result of a challenge,
24excused by the military judge for physical disability or other good cause, or excused
25by order of the convening authority for good cause.
AB400,112,7
1(2) Whenever a general court-martial, other than a general court-martial
2composed of a military judge only, is reduced below 5 members, the trial may not
3proceed unless the convening authority details new members sufficient in number
4to provide not less than the applicable minimum number of 5 members. The trial
5may proceed with the new members present after the recorded evidence previously
6introduced before the members of the court has been read to the court in the presence
7of the military judge, the accused, and counsel for both sides.
AB400,112,15
8(3) Whenever a special court-martial, other than a special court-martial
9composed of a military judge only, is reduced below 3 members, the trial may not
10proceed unless the convening authority details new members sufficient in number
11to provide not less than 3 members, unless the accused waives the number of
12members. The trial shall proceed with the new members present as if no evidence
13had been introduced previously at the trial, unless a verbatim record of the evidence
14previously introduced before the members of the court or a stipulation is read to the
15court in the presence of the military judge, the accused, and counsel for both sides.
AB400,112,22
16(4) If the military judge of a court-martial composed of a military judge only
17is unable to proceed with the trial because of physical disability, as a result of a
18challenge, or for other good cause, the trial shall proceed, subject to any applicable
19conditions of s. 322.016 (1) (b) or (2) (b), after the detail of a new military judge as if
20no evidence had previously been introduced, unless a verbatim record of the evidence
21previously introduced or a stipulation is read in court in the presence of the new
22military judge, the accused, and counsel for both sides.
AB400,112,2423
SUBCHAPTER VI
24
PRETRIAL PROCEDURE
AB400,113,4
1322.030 Article 30—Charges and specifications. (1) Charges and
2specifications shall be signed by a person subject to this code under oath before a
3commissioned officer authorized by s. 322.136 (1) to administer oaths and shall state
4all of the following:
AB400,113,65
(a) The signer has personal knowledge of, or has investigated, the matters set
6forth in the charges and specifications.
AB400,113,77
(b) The facts are true to the best of the signer's knowledge and belief.
AB400,113,11
8(2) Upon the preferring of charges, the proper authority shall take immediate
9steps to determine what disposition should be made in the interest of justice and
10discipline, and the person accused shall be informed of the charges as soon as
11practicable.
AB400,113,14
12322.031 Article 31—Compulsory self-incrimination prohibited. (1) No
13person subject to this code may compel any person to incriminate himself or herself
14or to answer any question the answer to which may tend to incriminate him or her.
AB400,113,20
15(2) No person subject to this code may interrogate or request any statement
16from an accused or a person suspected of an offense without first informing that
17person of the nature of the accusation and advising that person that the person does
18not have to make any statement regarding the offense of which the person is accused
19or suspected and that any statement made by the person may be used as evidence
20against the person in a trial by court-martial.
AB400,113,23
21(3) No person subject to this code may compel any person to make a statement
22or produce evidence before any military court if the statement or evidence is not
23material to the issue and may tend to degrade the person.
AB400,114,3
1(4) No statement obtained from any person in violation of this section or
2through the use of coercion, unlawful influence, or unlawful inducement may be
3received in evidence against the person in a trial by court-martial.
AB400,114,9
4322.032 Article 32—Investigation.
(1) No charge or specification may be
5referred to a general court-martial for trial until a thorough and impartial
6investigation of all the matters set forth has been made. This investigation shall
7include inquiry as to the truth of the matter set forth in the charges, consideration
8of the form of charges, and a recommendation as to the disposition which should be
9made of the case in the interest of justice and discipline.
AB400,114,19
10(2) The accused shall be advised of the charges against the accused and of the
11right to be represented at that investigation by counsel. The accused has the right
12to be represented at that investigation as provided in s. 322.038 and in regulations
13prescribed under that section. At that investigation, full opportunity shall be given
14to the accused to cross-examine witnesses against the accused, if they are available,
15and to present anything the accused may desire in the accused's own behalf, either
16in defense or mitigation, and the investigating officer shall examine available
17witnesses requested by the accused. If the charges are forwarded after the
18investigation, they shall be accompanied by a statement of the substance of the
19testimony taken on both sides and a copy shall be given to the accused.
AB400,115,2
20(3) If an investigation of the subject matter of an offense has been conducted
21before the accused is charged with the offense, and if the accused was present at the
22investigation and afforded the opportunities for representation, cross-examination,
23and presentation prescribed in sub. (2), no further investigation of that charge is
24necessary under this section unless it is demanded by the accused after the accused
25is informed of the charge. A demand for further investigation entitles the accused
1to recall witnesses for further cross-examination and to offer any new evidence in
2the accused's own behalf.