AB400: Bill Text

AB400,143,3 322.0675 Article 67a—Review by state appellate authority. Decisions of a court-martial are from a court with jurisdiction to issue felony convictions and appeals are to the Wisconsin court of appeals, District IV and, if necessary, to the Wisconsin Supreme Court. The appellate procedures to be followed shall be those provided under ch. 809.

AB400,143,10 322.070 Article 70—Appellate counsel. (1) The senior force judge advocate shall detail a judge advocate as appellate Government counsel to represent the state in the review or appeal of cases specified in s. 322.0675 and before any federal court when requested to do so by the state attorney general. Appellate government counsel shall be an attorney licensed to practice in this state or a member in good standing of the bar of the highest court of the state to which the appeal is taken.

AB400,143,13 (2) Upon an appeal by the state, an accused has the right to be represented by detailed military counsel before any reviewing authority and before any appellate court.

AB400,143,15 (3) Upon the appeal by an accused, the accused has the right to be represented by military counsel before any reviewing authority.

AB400,143,18 (4) Upon the request of an accused entitled to be so represented, the state senior force judge advocate shall appoint a judge advocate to represent the accused in the review or appeal of cases specified in subs. (2) and (3).

AB400,143,20 (5) An accused may be represented by civilian appellate counsel at no expense to the State.

AB400,144,4 322.071 Article 71—Execution of sentence; suspension of sentence. (1) If the sentence of the court-martial extends to dismissal or a dishonorable or bad-conduct discharge and if the right of the accused to appellate review is not waived, and an appeal is not withdrawn under s. 322.061, that part of the sentence extending to dismissal or a dishonorable or bad-conduct discharge may not be executed until there is a final judgment as to the legality of the proceedings. A judgment as to the legality of the proceedings is final in cases when review is completed by an appellate court prescribed in s. 322.0675, and is deemed final by the law of state where the judgment was had.

AB400,144,12 (2) If the sentence of the court-martial extends to dismissal or a dishonorable or bad conduct discharge and if the right of the accused to appellate review is waived, or an appeal is withdrawn under s. 322.061, that part of the sentence extending to dismissal or a dishonorable or bad-conduct discharge may not be executed until review of the case by the senior force judge advocate and any action on that review under s. 322.064 is completed. Any other part of a court-martial sentence may be ordered executed by the convening authority or other person acting on the case under s. 322.060 when so approved under that section.

AB400,144,18 322.072 Article 72—Vacation of suspension. (1) Before the vacation of the suspension of a special court-martial sentence, which as approved includes a bad-conduct discharge, or of any general court-martial sentence, the officer having special court-martial jurisdiction over the probationer shall hold a hearing on an alleged violation of probation. The probationer shall be represented at the hearing by military counsel if the probationer so desires.

AB400,144,23 (2) The record of the hearing and the recommendation of the officer having special court-martial jurisdiction shall be sent for action to the officer exercising general court-martial jurisdiction over the probationer. If the officer vacates the suspension, any unexecuted part of the sentence, except a dismissal, shall be executed, subject to applicable restrictions in this code.

AB400,145,3 (3) The suspension of any other sentence may be vacated by any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence.

AB400,145,7 322.073 Article 73—Petition for a new trial. At any time within 2 years after approval by the convening authority of a court-martial sentence the accused may petition the adjutant general for a new trial on the grounds of newly discovered evidence or fraud on the court-martial.

AB400,145,12 322.074 Article 74—Remission and suspension. (1) Any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence may remit or suspend any part or amount of the unexecuted part of any sentence, including all uncollected forfeitures other than a sentence approved by the governor.

AB400,145,15 (2) The governor may, for good cause, substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial.

AB400,145,21 322.075 Article 75—Restoration. (1) Under regulations as may be prescribed, all rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved, except an executed dismissal or discharge, shall be restored unless a new trial or rehearing is ordered and the executed part is included in a sentence imposed upon the new trial or rehearing.

AB400,145,25 (2) If a previously executed sentence of dishonorable or bad-conduct discharge is not imposed on a new trial, the governor may substitute therefore a form of discharge authorized for administrative issuance unless the accused is to serve out the remainder of the accused's enlistment.

AB400,146,10 (3) If a previously executed sentence of dismissal is not imposed on a new trial, the governor may substitute a form of discharge authorized for administrative issue, and the commissioned officer dismissed by that sentence may be reappointed by the governor alone to a commissioned grade and rank as in the opinion of the governor that former officer would have attained had he or she not been dismissed. The reappointment of a former officer shall be without regard to the existence of a vacancy and shall affect the promotion status of other officers only insofar as the governor may direct. All time between the dismissal and the reappointment shall be considered as actual service for all purposes, including the right to pay and allowances.

AB400,146,20 322.076 Article 76—Finality of proceedings, findings, and sentences. The appellate review of records of trial provided by this code, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this code, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this code, are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken subject to those proceedings are binding upon all departments, courts, agencies, and officers of the United States and the several states, subject only to action upon a petition for a new trial as provided in s. 322.073 and to action under s. 322.074.

AB400,147,4 322.0763 Article 76a—Leave required to be taken pending review of certain court-martial convictions. Under regulations prescribed, an accused who has been sentenced by a court-martial may be required to take leave pending completion of action under this section if the sentence, as approved under s. 322.060, includes an unsuspended dismissal or an unsuspended dishonorable or bad-conduct discharge. The accused may be required to begin leave on the date on which the sentence is approved under s. 322.060 or at any time after that date, and any leave may be continued until the date on which action under this section is completed or may be terminated at any earlier time.

AB400,147,6 322.0767 Article 76b—Competency; commitment for examination and treatment. (1) The following applies to persons who are incompetent to stand trial:

AB400,147,14 (a) If a person subject to a general court-martial is found to lack substantial mental capacity to understand the proceedings or assist in his or own defense and the military judge determined that the person is likely to become competent within the period specified under s. 971.14(5) (a), the court-martial convening authority for the person shall commit the person to the custody of the department of health and family services under s. 971.14 (5). If the military judge determines that the defendant is not likely to become competent in the time period specified under s. 971.14(5), the military judge shall suspend or terminate the general court-martial.

AB400,147,17 (b) The department of health and family services shall submit all reports that are required under s. 971.14 (5) (b) and that pertain to a person subject to a commitment order under par. (a) to the court-martial.

AB400,148,2 (c) Upon receiving a report under s. 971.17 (5) (b), the court-martial shall make a determination as to whether the person has become competent. If the court-martial determines that the defendant has become competent, the court-martial shall terminate the commitment to the department of health and family services and resume the general court-martial. If the court-martial determines that the person is making sufficient progress toward becoming competent, the commitment shall continue. If the court-martial determines that the person is not likely to become competent to proceed in the time period specified under s. 971.14 (5) (a), the court-martial shall suspend or terminate the commitment order under this subsection.

AB400,148,5 (d) If a person who has been restored to competency again becomes incompetent, the maximum commitment period under s. 971.14 (5) (a) shall be as provided under s. 971.14 (5) (d).

AB400,148,9 (e) If the court-martial determines under par. (a) or (d) that the person is not likely to become competent to proceed, the court-martial may order that the person be delivered to a facility under s. 51.15 (2), an approved public treatment facility under s. 51.45 (2), or an appropriate medical or protective placement facility.

AB400,148,14 (f) If the person is discharged from the military forces while subject to a commitment order under par. (a), the court-martial shall suspend or terminate the commitment order and may order that the person be delivered to a facility under s. 51.15 (2), an approved public treatment facility under s. 51.45 (2), or an appropriate medical or protective placement facility.

AB400,148,16 (2) The following applies to persons who are found not guilty by reason of mental disease or defect:

AB400,148,20 (a) If a court-martial finds a person not guilty by reason of mental disease or defect, the court-martial shall commit the person to the custody of the department of health and family services for a period not to exceed that described under s. 971.17 (1).

AB400,148,23 (b) Using the standard under s. 971.17 (3) (a), the court-martial shall determine whether the commitment order under par. (a) shall specify institutional care or conditional release.

AB400,149,4 (c) The court-martial has the same authority as a circuit court has under s. 971.17 (2) to order the department of health and family services to conduct a predisposition investigation using the procedure in s. 972.15 or a mental examination as provided under s. 971.17 (2) (b), (c), and (e) to assist the court-martial in determining whether to place the person in institutional care or to conditionally release the person.

AB400,149,9 (d) If the court-martial specifies institutional care, the department of health and family services shall place the person in an institution as provided under s. 971.17 (3) (c). If the court-martial specifies conditional release, the department of health and family services, in conjunction with the person's county of residence, shall develop a plan for conditional release as provided under s. 971.17 (3) (d).

AB400,149,14 (e) After the court-martial enters an order under this subsection and transfers custody of a person to the department of health and family services, the person shall be subject to s. 971.17 and the circuit court for the county in which the person is institutionalized or where the person is placed on conditional release shall have jurisdiction in proceedings under s. 971.17.

AB400,149,16 SUBCHAPTER X PUNITIVE ARTICLES

AB400,149,20 322.077 Article 77—Principals. Any person who either commits an offense punishable by this code, or aids, abets, counsels, commands, or procures its commission, or causes an act to be done which if directly performed by him or her would be punishable is a principal.

AB400,149,24 322.078 Article 78—Accessory after the fact. Any person who, knowing that an offense punishable by this code has been committed, receives, comforts, or assists the offender in order to hinder or prevent his or her apprehension, trial, or punishment shall be punished as a court-martial may direct.

AB400,150,3 322.079 Article 79—Conviction of lesser included offense. An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included.

AB400,150,7 322.080 Article 80—Attempts. (1) An act, done with specific intent to commit an offense under this code, amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense.

AB400,150,10 (2) Any person who attempts to commit any offense punishable by this code shall be punished as a court-martial may direct, unless otherwise specifically prescribed.

AB400,150,12 (3) Any person may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated.

AB400,150,16 322.081 Article 81—Conspiracy. Any person who conspires with any other person to commit an offense under this code shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.

AB400,150,22 322.082 Article 82—Solicitation. (1) Any person who solicits or advises another or others to desert in violation of s. 322.085 or mutiny in violation of s. 322.094 shall, if the offense solicited or advised is attempted or committed, be punished with the punishment provided for the commission of the offense, but, if the offense solicited or advised is not committed or attempted, the person shall be punished as a court-martial may direct.

AB400,151,3 (2) Any person who solicits or advises another or others to commit an act of misbehavior before the enemy in violation of s. 322.099 or sedition in violation of s. 322.094 shall, if the offense solicited or advised is committed, be punished with the punishment provided for the commission of the offense, but, if the offense solicited or advised is not committed, the person shall be punished as a court-martial may direct.

AB400,151,6 322.083 Article 83—Fraudulent enlistment, appointment, or separation. Any person who does any of the following shall be punished as a court-martial may direct:

AB400,151,10 (1) Procures his or her own enlistment or appointment in the state military forces by knowingly false representation or deliberate concealment as to his or her qualifications for that enlistment or appointment and receives pay or allowances there under.

AB400,151,13 (2) Procures his or her own separation from the state military forces by knowingly false representation or deliberate concealment as to his or her eligibility for that separation.

AB400,151,18 322.084 Article 84—Unlawful enlistment, appointment, or separation. Any person who effects an enlistment or appointment in or a separation from the state military forces of any person who is known to him or her to be ineligible for that enlistment, appointment, or separation because it is prohibited by law, regulation, or order shall be punished as a court-martial may direct.

AB400,151,20 322.085 Article 85—Desertion. (1) Any member of the state military forces is guilty of desertion if he or she does any of the following:

AB400,151,22 (a) Without authority goes or remains absent from his or her unit, organization, or place of duty with intent to remain away there from permanently.

AB400,151,24 (b) Quits his or her unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service.

AB400,152,5 (c) Without being regularly separated from one of the state military forces enlists or accepts an appointment in the same or another one of the state military forces, or in one of the armed forces of the United States, without fully disclosing the fact that he or she has not been regularly separated, or enters any foreign armed service except when authorized by the United States.

AB400,152,9 (2) Any commissioned officer of the state military forces who, after tender of his or her resignation and before notice of its acceptance, quits his or her post or proper duties without leave and with intent to remain away there from permanently is guilty of desertion.

AB400,152,13 (3) Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by confinement of not more than 10 years or other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by punishment as a court-martial may direct.

AB400,152,15 322.086 Article 86—Absence without leave. Any person who, without authority, does any of the following shall be punished as a court-martial may direct:

AB400,152,16 (1) Fails to go to his or her appointed place of duty at the time prescribed.

AB400,152,17 (2) Goes from that place.

AB400,152,20 (3) Absents himself or herself or remains absent from his or her unit, organization, or place of duty at which he or she is required to be at the time prescribed.

AB400,152,24 322.087 Article 87—Missing movement. Any person who through neglect or design misses the movement of a ship, aircraft, or unit with which he or she is required in the course of duty to move shall be punished as a court-martial may direct.

AB400,153,5 322.088 Article 88—Contempt toward officials. Any commissioned officer who uses contemptuous words against the president, the vice-president, members of congress, the secretary of defense, the secretary of a military department, the secretary of homeland security, or the governor or legislature of the state of Wisconsin shall be punished as a court-martial may direct.

AB400,153,8 322.089 Article 89—Disrespect toward superior commissioned officer. Any person who behaves with disrespect toward his or her superior commissioned officer shall be punished as a court-martial may direct.

AB400,153,11 322.090 Article 90—Assaulting or willfully disobeying superior commissioned officer. A court-martial may direct punishment on any person who does any of the following:

AB400,153,14 (1) Strikes his or her superior commissioned officer or draws or lifts up any weapon or offers any violence against him or her while he or she is in the execution of his or her office.

AB400,153,16 (2) Willfully disobeys a lawful command of his or her superior commissioned officer.

AB400,153,20 322.091 Article 91—Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer. Any warrant officer or enlisted member who does any of the following shall be punished as a court-martial may direct:

AB400,153,22 (1) Strikes or assaults a warrant officer, noncommissioned officer, or petty officer, while that officer is in the execution of his or her office.

AB400,153,24 (2) Willfully disobeys the lawful order of a warrant officer, noncommissioned officer, or petty officer.

AB400,154,3 (3) Treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer, while that officer is in the execution of his or her office.

AB400,154,5 322.092 Article 92—Failure to obey order or regulation. Any person who does any of the following shall be punished as a court-martial may direct:

AB400,154,6 (1) Violates or fails to obey any lawful general order or regulation.

AB400,154,8 (2) Having knowledge of any other lawful order issued by a member of the state military forces, which it is his or her duty to obey, fails to obey the order.

AB400,154,9 (3) Is derelict in the performance of his or her duties.

AB400,154,12 322.093 Article 93—Cruelty and maltreatment. Any person who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his or her orders shall be punished as a court-martial may direct.

AB400,154,14 322.094 Article 94—Mutiny or sedition. (1) Any person who does any of the following shall be punished as a court-martial may direct:

AB400,154,17 (a) With intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his or her duty or creates any violence or disturbance is guilty of mutiny.

AB400,154,20 (b) With intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition.

AB400,154,25 (c) Fails to do his or her utmost to prevent and suppress a mutiny or sedition being committed in his or her presence, or fails to take all reasonable means to inform his or her superior commissioned officer or commanding officer of a mutiny or sedition which he or she knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition.

AB400,155,3 (2) A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished as a court-martial may direct.

AB400,155,6 322.095 Article 95—Resistance, flight, breach of arrest, and escape. Any person who does any of the following shall be punished as a court-martial may direct:

AB400,155,7 (1) Resists apprehension.

AB400,155,8 (2) Flees from apprehension.

AB400,155,9 (3) Breaks arrest.

AB400,155,10 (4) Escapes from custody or confinement.

AB400,155,15 322.096 Article 96—Releasing prisoner without proper authority. Any person who, without proper authority, releases any prisoner committed to his or her charge, or who through neglect or design causes any prisoner to escape, shall be punished as a court-martial may direct, whether or not the prisoner was committed in strict compliance with law.

AB400,155,18 322.097 Article 97—Unlawful detention. Any person who, except as provided by law or regulation, apprehends, arrests, or confines any person shall be punished as a court-martial may direct.

AB400,155,20 322.098 Article 98—Noncompliance with procedural rules. Any person who does any of the following shall be punished as a court-martial may direct:

AB400,155,22 (1) Is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under this code.

AB400,155,24 (2) Knowingly and intentionally fails to enforce or comply with any provision of this code regulating the proceedings before, during, or after trial of an accused.

AB400,156,3 322.099 Article 99—Misbehavior before the enemy. Any person who before or in the presence of the enemy does any of the following shall be punished as a court-martial may direct:

AB400,156,4 (1) Runs away.

AB400,156,6 (2) Shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his or her duty to defend.