AB400,126,1815
(b) The witness by reason of death, age, sickness, bodily infirmity,
16imprisonment, military necessity, non amenability to process, or other reasonable
17cause, is unable or refuses to appear and testify in person at the place of trial or
18hearing.
AB400,126,1919
(c) The present whereabouts of the witness is unknown.
AB400,127,2
20322.050 Article 50—Admissibility of records of courts of inquiry. (1) 21In any case not extending to the dismissal of a commissioned officer, the sworn
22testimony, contained in the duly authenticated record of proceedings of a court of
23inquiry, of a person whose oral testimony cannot be obtained, may, if otherwise
24admissible under the rules of evidence, be read in evidence by any party before a
1court-martial if the accused was a party before the court of inquiry and if the same
2issue was involved or if the accused consents to the introduction of evidence.
AB400,127,4
3(2) Testimony may be read in evidence only by the defense in cases extending
4to the dismissal of a commissioned officer.
AB400,127,5
5(3) Testimony may also be read in evidence before a court of inquiry.
AB400,127,12
6322.0505 Article 50a—Defense of mental disease or defect. (1) The
7accused has an affirmative defense of mental disease or defect in a trial by
8court-martial if, at the time of the commission of the acts constituting the offense,
9the accused, as a result of a mental disease or defect, lacked substantial capacity
10either to appreciate the wrongfulness of his or her conduct or to conform his or her
11conduct to the requirements of the law. Mental disease or defect does not otherwise
12constitute a defense.
AB400,127,14
13(2) The accused has the burden of proving the defense of mental disease or
14defect to a reasonable certainty by the greater weight of the credible evidence.
AB400,127,18
15(3) Whenever lack of mental disease or defect of the accused with respect to an
16offense is properly at issue, the military judge shall instruct the members of the
17military court as to the defense of mental disease or defect under this section and
18charge them to find the accused any one of the following:
AB400,127,1919
(a) Guilty.
AB400,127,2020
(b) Not guilty.
AB400,127,2121
(c) Not guilty by reason of mental disease or defect.
AB400,128,2
22(4) Sub. (3) does not apply to a court-martial composed of a military judge only.
23In the case of a court-martial composed of a military judge only or a summary
24court-martial officer, whenever mental disease or defect of the accused with respect
1to an offense is properly at issue, the military judge or summary court-martial officer
2shall find the accused of any of the following:
AB400,128,44
(b) Not guilty.
AB400,128,55
(c) Not guilty by reason of mental disease or defect.
AB400,128,7
6(5) Notwithstanding the provisions of s. 322.052, the accused shall be found not
7guilty by reason of mental disease or defect if any of the following apply:
AB400,128,108
(a) A majority of the members of the court-martial present at the time the vote
9is taken determines that the defense of mental disease or defect has been
10established.
AB400,128,1311
(b) In the case of a court-martial composed of a military judge only or a
12summary court-martial officer, the military judge or summary court-martial officer
13determines that the defense of mental disease or defect has been established.
AB400,128,18
14322.051 Article 51—Voting and rulings. (1) Voting by members of a
15general or special court-martial on the findings and on the sentence shall be by
16secret written ballot. The junior member of the court shall count the votes. The count
17shall be checked by the president, who shall as soon as possible announce the result
18of the ballot to the members of the court.
AB400,129,2
19(2) The military judge shall rule upon all questions of law and all interlocutory
20questions arising during the proceedings. Any ruling made by the military judge
21upon any question of law or any interlocutory question other than the factual issue
22of mental disease or defect of the accused is final and constitutes the ruling of the
23court. However, the military judge may change the ruling at any time during the
24trial. Unless the ruling is final, if any member objects, the court shall be cleared and
1closed and the question decided by a voice vote as provided in s. 322.052, beginning
2with the junior in rank.
AB400,129,5
3(3) Before a vote is taken on the findings, the military judge shall, in the
4presence of the accused and counsel, instruct the members of the court as to the
5elements of the offense and charge them with all of the following:
AB400,129,76
(a) The accused shall be presumed to be innocent until his or her guilt is
7established by legal and competent evidence beyond reasonable doubt.
AB400,129,108
(b) The case being considered, if there is a reasonable doubt as to the guilt of
9the accused, the doubt must be resolved in favor of the accused and the accused must
10be acquitted.
AB400,129,1211
(c) If there is a reasonable doubt as to the degree of guilt, the finding shall be
12in a lower degree as to which there is no reasonable doubt.
AB400,129,1413
(d) The burden of proof to establish the guilt of the accused beyond reasonable
14doubt is upon the state.
AB400,129,21
15(4) Subsections (1), (2), and (3) do not apply to a court-martial composed of a
16military judge only. The military judge of a court-martial shall determine all
17questions of law and fact arising during the proceedings and, if the accused is
18convicted, adjudge an appropriate sentence. The military judge of a court-martial
19shall make a general finding and shall in addition, on request, find the facts specially.
20If an opinion or memorandum of decision is filed, it will be sufficient if the findings
21of fact appear.
AB400,129,24
22322.052 Article 52—Number of votes required. (1) No person may be
23convicted of an offense except as provided in s. 322.045 (2) or s. 322.051 (4) or by the
24concurrence of two-thirds of the members present at the time the vote is taken.
AB400,130,8
1(2) All other questions to be decided by the members of a general or special
2court-martial shall be determined by a majority vote, but a determination to
3reconsider a sentence, with a view toward decreasing it, may be made by any lesser
4vote which indicates that the reconsideration is not opposed by the number of votes
5required for that finding or sentence. A tie vote on a challenge disqualifies the
6member challenged. A tie vote on a motion relating to the question of the accused's
7mental disease or defect is a determination against the accused. A tie vote on any
8other question is a determination in favor of the accused.
AB400,130,10
9322.053 Article 53—Court to announce action. A court-martial shall
10announce its findings and sentence to the parties as soon as determined.
AB400,130,19
11322.054 Article 54—Record of trial. (1) Each general and special
12court-martial shall keep a separate record of the proceedings in each case brought
13before it, and the record shall be authenticated by the signature of the military judge.
14If the record cannot be authenticated by the military judge by reason of his or her
15death, disability, or absence, it shall be authenticated by the signature of the trial
16counsel or by that of a member, if the trial counsel is unable to authenticate it by
17reason of his or her death, disability, or absence. In a court-martial consisting of only
18a military judge, the record shall be authenticated by the court reporter under the
19same conditions which would impose a duty on a member under this subsection.
AB400,130,23
20(2) A complete verbatim record of the proceedings and testimony shall be
21prepared in each general and special court-martial case resulting in a conviction,
22and in all other court-martial cases, the record shall contain matters as may be
23prescribed by regulations.
AB400,131,3
1(3) Each summary court-martial shall keep a separate record of the
2proceedings in each case, and the record shall be authenticated in the manner as may
3be prescribed by regulations.
AB400,131,5
4(4) A copy of the record of the proceedings of each general and special
5court-martial shall be given to the accused as soon as it is authenticated.
AB400,131,76
SUBCHAPTER VIII
7
SENTENCES
AB400,131,12
8322.055 Article 55—Cruel and unusual punishments prohibited. 9Punishment by flogging, or by branding, marking, or tattooing on the body, or any
10other cruel or unusual punishment may not be adjudged by a court-martial or
11inflicted upon any person subject to this code. The use of irons, single or double,
12except for the purpose of safe custody, is prohibited.
AB400,131,14
13322.056 Article 56—Maximum limits. (1) The punishment which a
14court-martial may direct for an offense may not exceed 10 years confinement.
AB400,131,17
15(2) A conviction by a general court-martial of any military offense for which
16an accused may receive a sentence of confinement for more than 1 year is a felony
17offense.
AB400,131,19
18(3) Except for convictions by a summary court-martial, all other offenses are
19misdemeanors.
AB400,131,20
20(4) A conviction by a summary court-martial is not a criminal conviction.
AB400,131,23
21(5) The limits of punishment for violations of the punitive sections under
22Subch. X shall be prescribed by the governor according to ss. 322.018, to 322.020, but
23under no instance shall any punishment exceed that authorized by this code.
AB400,132,4
24322.057 Article 57—Effective date of sentences. (1) Whenever a
25sentence of a court-martial as lawfully adjudged and approved includes a forfeiture
1of pay or allowances in addition to confinement not suspended, the forfeiture may
2apply to pay or allowances becoming due on or after the date the sentence is approved
3by the convening authority. No forfeiture may extend to any pay or allowances
4accrued before that date.
AB400,132,8
5(2) Any period of confinement included in a sentence of a court-martial begins
6to run from the date the sentence is adjudged by the court-martial, but periods
7during which the sentence to confinement is suspended or deferred shall be excluded
8in computing the service of the term of confinement.
AB400,132,10
9(3) All other sentences of courts-martial are effective on the date ordered
10executed.
AB400,132,20
11322.0575 Article 57a—Deferment of sentences. (1) On application by
12an accused who is under sentence to confinement that has not been ordered executed,
13the convening authority or, if the accused is no longer under that person's
14jurisdiction, the person exercising general court-martial jurisdiction over the
15command to which the accused is currently assigned, may in that person's sole
16discretion defer service of the sentence to confinement. The deferment shall
17terminate when the sentence is ordered executed. The deferment may be rescinded
18at any time by the person who granted it or, if the accused is no longer under that
19person's jurisdiction, by the person exercising general court-martial jurisdiction
20over the command to which the accused is currently assigned.
AB400,132,25
21(2) (a) In any case in which a court-martial sentences an accused referred to
22in par. (b) to confinement, the convening authority may defer the service of the
23sentence to confinement, without the consent of the accused, until after the accused
24has been permanently released to the state military forces by a state, the United
25States, or a foreign country referred to in that paragraph.
AB400,133,2
1(b) Paragraph (a) applies to a person subject to this code who meets all of the
2following:
AB400,133,53
1. While in the custody of a state, the United States, or a foreign country is
4temporarily returned by that state, the United States, or a foreign country to the
5state military forces for trial by court-martial.
AB400,133,86
2. After the court-martial, is returned to that state, the United States, or a
7foreign country under the authority of a mutual agreement or treaty, as the case may
8be.
AB400,133,12
9(3) In any case in which a court-martial sentences an accused to confinement
10and the sentence to confinement has been ordered executed, but in which review of
11the case under s. 322.0675 is pending, the adjutant general may defer further service
12of the sentence to confinement while that review is pending.
AB400,133,13
13(4) A sentence of confinement shall address work release privileges.
AB400,133,19
14322.058 Article 58—Conditions of confinement. (1) A sentence of
15confinement adjudged by a court-martial, whether or not the sentence includes
16discharge or dismissal, and whether or not the discharge or dismissal has been
17executed, may be carried into execution by confinement in any place authorized by
18this code. Persons so confined are subject to the same discipline and treatment as
19persons regularly confined or committed to that place of confinement.
AB400,133,22
20(2) The omission of hard labor as a sentence authorized under this code does
21not deprive the state confinement facility from employing it, if it otherwise is within
22the authority of that facility to do so.
AB400,133,24
23(3) No place of confinement may require payment of any fee or charge for
24receiving or confining a person except as otherwise provided by law.
AB400,134,5
1322.0585 Article 58a—Sentences: reduction in enlisted grade upon
2approval. (1) A court-martial sentence of an enlisted member in a pay grade above
3E-1, as approved by the convening authority, that includes a dishonorable or
4bad-conduct discharge, or confinement, reduces that member to pay grade E-1,
5effective on the date of that approval.
AB400,134,9
6(2) If the sentence of a member who is reduced in pay grade under sub. (1) is
7set aside or disapproved, or, as finally approved, does not include any punishment
8named in sub. (1), the rights and privileges of which the person was deprived because
9of that reduction shall be restored, including pay and allowances.
AB400,134,18
10322.0587 Article 58b—Sentences: forfeiture of pay and allowances
11during confinement. (1) A court-martial sentence described in sub. (2) shall
12result in the forfeiture of pay, or of pay and allowances, due that member during any
13period of confinement or parole. The forfeiture subject to this section shall take effect
14on the date determined under s. 322.057 (1) and may be deferred as provided by that
15subsection. The pay and allowances forfeited, in the case of a general court-martial,
16shall be all pay and allowances due that member during the period and, in the case
17of a special court-martial, shall be two-thirds of all pay due that member during the
18period.
AB400,134,20
19(2) A sentence covered by this section is any sentence that includes any of the
20following:
AB400,134,2121
(a) Confinement for more than 6 months.
AB400,134,2322
(b) Confinement for 6 months or less and a dishonorable or bad-conduct
23discharge or dismissal.
AB400,135,4
24(3) In a case involving an accused who has dependents, the convening
25authority or other person acting under s. 322.060 may waive any or all of the
1forfeitures of pay and allowances required by sub. (1) for a period not to exceed 6
2months. Any amount of pay or allowances that, except for a waiver under this
3subsection, would be forfeited shall be paid, as the convening authority or other
4person taking action directs, to the dependents of the accused.
AB400,135,9
5(4) If the sentence of a member who forfeits pay and allowances under sub. (1)
6is set aside or disapproved or, as finally approved, does not provide for a punishment
7referred to in sub. (1) (b), the member shall be paid the pay and allowances that the
8member would have been paid, except for the forfeiture, for the period during which
9the forfeiture was in effect.
AB400,135,1210
SUBCHAPTER IX
11
POST-TRIAL PROCEDURE AND
12
REVIEW OF COURTS-MARTIAL
AB400,135,15
13322.059 Article 59—Error of law; lesser included offense. (1) A finding
14or sentence of a court-martial may not be held incorrect on the ground of an error
15of law unless the error materially prejudices the substantial rights of the accused.
AB400,135,18
16(2) Any reviewing authority with the power to approve or affirm a finding of
17guilty may approve or affirm, instead, so much of the finding as includes a lesser
18included offense.
AB400,135,21
19322.060 Article 60—Action by the convening authority. (1) The findings
20and sentence of a court-martial shall be reported promptly to the convening
21authority after the announcement of the sentence.
AB400,136,3
22(2) The accused may submit to the convening authority matters for
23consideration by the convening authority with respect to the findings and the
24sentence. Any submission shall be in writing. Except in a summary court-martial
25case, a submission shall be made within 10 days after the accused has been given an
1authenticated record of trial and, if applicable, the recommendation of a judge
2advocate under sub. (9). In a summary court-martial case, a submission shall be
3made within 7 days after the sentence is announced.
AB400,136,7
4(3) If the accused shows that additional time is required for the accused to
5submit matters, the convening authority or other person taking action under this
6section, for good cause, may extend the applicable period for not more than an
7additional 20 days.
AB400,136,9
8(4) In a summary court-martial case, the accused shall be promptly provided
9a copy of the record of trial for use in preparing a submission.
AB400,136,14
10(5) The accused may waive the right to make a submission to the convening
11authority under sub. (2). A waiver must be made in writing and may not be revoked.
12The time within which the accused may make a submission under this subsection
13shall be deemed to have expired upon the submission of a waiver to the convening
14authority.
AB400,136,19
15(6) The authority under this section to modify the findings and sentence of a
16court-martial is a matter of command prerogative involving the sole discretion of the
17convening authority. If it is impractical for the convening authority to act, the
18convening authority shall forward the case to a person exercising general
19court-martial jurisdiction who may take action under this section.
AB400,136,25
20(7) Action on the sentence of a court-martial shall be taken by the convening
21authority or by another person authorized to act under this section. Action may be
22taken only after consideration of any matters submitted by the accused under sub.
23(2) or after the time for submitting matters expires, whichever is earlier. The
24convening authority or other person taking action, in that person's sole discretion
25may approve, disapprove, commute, or suspend the sentence in whole or in part.
AB400,137,3
1(8) Action on the findings of a court-martial by the convening authority or
2other person acting on the sentence is not required. However, the person, in the
3person's sole discretion may do any of the following:
AB400,137,44
(a) Dismiss any charge or specification by setting aside a finding of guilty.
AB400,137,75
(b) Change a finding of guilty to a charge or specification to a finding of guilty
6to an offense that is a lesser included offense of the offense stated in the charge or
7specification.
AB400,137,18
8(9) Before acting under this section on any general or special court-martial
9case in which there is a finding of guilt, the convening authority or other person
10taking action under this section shall obtain and consider the written
11recommendation of a judge advocate. The convening authority or other person
12taking action under this section shall refer the record of trial to the judge advocate,
13and the judge advocate shall use the record in the preparation of the
14recommendation. The recommendation of the judge advocate shall include matters
15as may be prescribed by regulation and shall be served on the accused, who may
16submit any matter in response. Failure to object in the response to the
17recommendation or to any matter attached to the recommendation waives the right
18to object.
AB400,137,20
19(10) The convening authority or other person taking action under this section,
20in the person's sole discretion, may order a proceeding in revision or a rehearing.
AB400,137,25
21(11) A proceeding in revision may be ordered if there is an apparent error or
22omission in the record or if the record shows improper or inconsistent action by a
23court-martial with respect to the findings or sentence that can be rectified without
24material prejudice to the substantial rights of the accused. In no case, however, may
25a proceeding in revision perform any of the following:
AB400,138,2
1(a) Reconsider a finding of not guilty of any specification or a ruling which
2amounts to a finding of not guilty.
AB400,138,53
(b) Reconsider a finding of not guilty of any charge, unless there has been a
4finding of guilty under a specification laid under that charge, which sufficiently
5alleges a violation of some section of this code.
AB400,138,76
(c) Increase the severity of the sentence unless the sentence prescribed for the
7offense is mandatory.
AB400,138,15
8(12) A rehearing may be ordered by the convening authority or other person
9taking action under this section if that person disapproves the findings and sentence
10and states the reasons for disapproval of the findings. If a person disapproves the
11findings and sentence and does not order a rehearing, that person shall dismiss the
12charges. A rehearing as to the findings may not be ordered where there is a lack of
13sufficient evidence in the record to support the findings. A rehearing as to the
14sentence may be ordered if the convening authority or other person taking action
15under this subsection disapproves the sentence.
AB400,138,20
16322.061 Article 61—Withdrawal of appeal. (1) In each case subject to
17appellate review under this code, the accused may file with the convening authority
18a statement expressly withdrawing the right of the accused to appeal. A withdrawal
19shall be signed by both the accused and his or her defense counsel and must be filed
20in accordance with appellate procedures under ch. 809.
AB400,138,22
21(2) The accused may withdraw an appeal at any time in accordance with
22appellate procedures under ch. 809.
AB400,139,2
23322.062 Article 62—Appeal by the state. (1) In a trial by court-martial
24in which a punitive discharge may be adjudged, the state may appeal any of the
25following, other than a finding of not guilty with respect to the charge or specification
1by the members of the court-martial, or by a judge in a bench trial, so long as it is
2not made in reconsideration:
AB400,139,43
(a) An order or ruling of the military judge which terminates the proceedings
4with respect to a charge or specification.
AB400,139,65
(b) An order or ruling which excludes evidence that is substantial proof of a fact
6material in the proceeding.
AB400,139,77
(c) An order or ruling which directs the disclosure of classified information.
AB400,139,98
(d) An order or ruling which imposes sanctions for nondisclosure of classified
9information.
AB400,139,1110
(e) A refusal of the military judge to issue a protective order sought by the State
11to prevent the disclosure of classified information.