AB400: Bill Text

AB400,94,15 (16) "Nonmilitary offenses" mean offenses which are in the state's civilian penal statute and are not offenses in this code.

AB400,94,16 (17) "Officer" means a commissioned or warrant officer.

AB400,94,18 (18) "Officer in charge" means a member of the naval militia, the navy, the marine corps, or the coast guard as designated by appropriate authority.

AB400,94,20 (19) "Record," when used in connection with the proceedings of a court-martial, means any of the following:

AB400,94,22 (a) An official written transcript, written summary, or other writing relating to the proceedings.

AB400,94,25 (b) An official audiotape, videotape, digital image or file, or similar material from which sound, or sound and visual images, depicting the proceedings may be reproduced.

AB400,95,2 (20) "Senior force commander" means the commander of the same force of the state military forces as the accused.

AB400,95,5 (21) "Senior force judge advocate" means the senior judge advocate of the commander of the same force of the state military forces as the accused and who is that commander's chief legal advisor.

AB400,95,8 (22) "State active duty" means full-time duty in the state military forces under an order of the governor or otherwise issued by authority of law, and paid by state funds, and includes travel to and from duty.

AB400,95,14 (23) "State military forces" means the Wisconsin army and air national guard, the national guard, as defined in 32 USC 502, 503, or 904, the state defense force, the organized naval militia of the state, and any other military force organized under the Constitution and laws of the state, and does not include the unorganized militia, state guard, or home guard, when not in a status subjecting them to exclusive jurisdiction under 10 USC ch. 47.

AB400,95,16 (24) "Superior commissioned officer" means a commissioned officer superior in rank or command.

AB400,95,20 (25) "Unit Training Assembly" means an assembly for drill and instruction which may consist of a single ordered formation of a company, battery, squadron, or detachment, or, when authorized by the commander, a series of ordered formations of those organizations.

AB400,95,23 322.002 Article 2—Persons subject to this code; jurisdiction. (1) Except as provided in s. 322.003, this code applies only to members of the state military forces at all times.

AB400,96,7 (2) Subject matter jurisdiction is established if a nexus exists between an offense under this code and the state military force. Courts-martial have primary jurisdiction of military offenses as defined in s. 322.001. A proper civilian court has primary jurisdiction of a nonmilitary offense when an act or omission violates both this code and local criminal law, foreign or domestic. In this case, a court-martial may be initiated only after the civilian authority has declined to prosecute or dismissed the charge, provided jeopardy has not attached. Jurisdiction over attempted crimes, conspiracy crimes, solicitation, and accessory crimes must be determined by the underlying offense.

AB400,96,14 322.003 Article 3—Jurisdiction to try certain personnel. (1) Each person discharged from a state military force who is later charged with having fraudulently obtained a discharge is, subject to s. 322.043, subject to trial by court-martial on that charge and is, after apprehension, subject to this code while in custody under the direction of the state military forces for that trial. Upon conviction of that charge that person is subject to trial by court-martial for all offenses under this code committed before the fraudulent discharge.

AB400,96,17 (2) No person who has deserted from a state military force may be relieved from amenability to the jurisdiction of this code by virtue of a separation from any later period of service.

AB400,96,23 322.005 Article 5—Territorial applicability of the code. (1) This code has applicability in all places, provided that either the person subject to the code is in a duty status or, if not in a duty status, that there is a nexus between the act or omission constituting the offense and the efficient functioning of the state military forces; however, this grant of military jurisdiction shall neither preclude nor limit civilian jurisdiction over an offense.

AB400,97,3 (2) Military courts may be convened and held in units of a state military force while those units are serving outside the state with the same jurisdiction and powers as to persons subject to this code as if the proceedings were held inside the state, and offenses committed outside the state may be tried and punished either inside or outside the state.

AB400,97,7 322.006 Article 6—Judge advocates. (1) The senior force judge advocates in each of the state's military forces or that judge advocate's delegates shall make frequent inspections in the field in supervision of the administration of military justice in that force.

AB400,97,11 (2) Convening authorities shall at all times communicate directly with their judge advocates in matters relating to the administration of military justice. The judge advocate of any command is entitled to communicate directly with the judge advocate of a superior or subordinate command, or with the state judge advocate.

AB400,97,14 (3) No person who has acted as member, military judge, trial counsel, defense counsel, or investigating officer, or who has been a witness, in any case may later act as a judge advocate to any reviewing authority upon the same case.

AB400,97,16 SUBCHAPTER II APPREHENSION AND RESTRAINT

AB400,97,18 322.007 Article 7—Apprehension. (1) In this section, "apprehension" means the taking of a person into custody.

AB400,97,24 (2) Any person authorized by this code or by the Uniform Code of Military Justice, or by regulations issued under either, to apprehend persons subject to this code, any marshal of a court-martial appointed subject to the provisions of this code, and any peace officer or civil officer having authority to apprehend offenders under the laws of the United States or of a state, may do so upon probable cause that an offense has been committed and that the person apprehended committed it.

AB400,98,3 (3) Commissioned officers, warrant officers, petty officers, and noncommissioned officers have authority to quell quarrels, frays, and disorders among persons subject to this code and to apprehend persons subject to this code.

AB400,98,6 (4) If an offender is apprehended outside the state, the offender's return to the state must be in accordance with normal extradition procedures or by reciprocal agreement.

AB400,98,11 (5) No person authorized by this section to apprehend persons subject to this code or the place where an offender is confined, restrained, held, or otherwise housed may require payment of any fee or charge for so receiving, apprehending, confining, restraining, holding, or otherwise housing a person except as otherwise provided by law.

AB400,98,12 322.009 Article 9—Imposition of restraint. (1) In this section:

AB400,98,15 (a) "Arrest" means the restraint of a person by an order, not imposed as a punishment for an offense, directing him or her to remain within certain specified limits.

AB400,98,16 (b) "Confinement" means the physical restraint of a person.

AB400,98,22 (2) An enlisted member may be ordered into arrest or confinement by any commissioned officer by an order, oral or written, delivered in person or through other persons subject to this code. A commanding officer may authorize warrant officers, petty officers, or noncommissioned officers to order enlisted members of the commanding officer's command or subject to the commanding officer's authority into arrest or confinement.

AB400,99,2 (3) A commissioned officer, a warrant officer, or a civilian subject to this code or to trial there under may be ordered into arrest or confinement only by a commanding officer to whose authority the person is subject, by an order, oral or written, delivered in person or by another commissioned officer. The authority to order persons into arrest or confinement may not be delegated.

AB400,99,4 (4) No person may be ordered into arrest or confinement except for probable cause.

AB400,99,7 (5) This section does not limit the authority of persons authorized to apprehend offenders to secure the custody of an alleged offender until proper authority may be notified.

AB400,99,14 322.010 Article 10—Restraint of persons charged with offenses. Any person subject to this code charged with an offense under this code may be ordered into arrest or confinement, as circumstances may require. When any person subject to this code is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform the person of the specific wrong of which the person is accused and diligent steps shall be taken to try the person or to dismiss the charges and release the person.

AB400,99,17 322.011 Article 11—Place of confinement; reports and receiving of prisoners. (1) If a person subject to this code is confined before, during, or after trial, he or she shall be in a civilian or military confinement.

AB400,99,22 (2) No sheriff or other person authorized to receive prisoners subject to sub. (1) may refuse to receive or keep any prisoner committed to the person's charge by a commissioned officer of the state military forces, when the committing officer furnishes a statement, signed by the officer, of the offense charged against the prisoner, unless otherwise authorized by law.

AB400,99,25 (3) Every person authorized to receive prisoners subject to sub. (1) to whose charge a prisoner is committed shall, within 24 hours after that commitment or as soon as the person is released from guard, report to the commanding officer of the prisoner the name of the prisoner, the offense charged against the prisoner, and the name of the person who ordered or authorized the commitment.

AB400,100,6 322.012 Article 12—Confinement with enemy prisoners prohibited. No member of a state military force may be placed in confinement in immediate physical association with enemy prisoners or other foreign nationals not members of the armed forces.

AB400,100,13 322.013 Article 13—Punishment prohibited before trial. No person, while being held for trial or awaiting a verdict, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against the person, nor shall the arrest or confinement imposed upon the person be any more rigorous than the circumstances required to insure the person's presence, but the person may be subjected to minor punishment during that period for infractions of discipline.

AB400,100,16 322.014 Article 14—Delivery of offenders to civil authorities. (1) A person subject to this code accused of an offense under this code or under the state's civilian penal statute may be delivered to the civil authority for trial or confinement.

AB400,100,22 (2) When delivery under this section is made to any civil authority of a person undergoing sentence of a court-martial, the delivery, if followed by conviction in a civil tribunal, interrupts the execution of the sentence of the court-martial, and the offender after having answered to the civil authorities for the offense shall, upon the request of competent military authority, be returned to the place of original custody for the completion of the person's sentence.

AB400,100,24 SUBCHAPTER III NONJUDICIAL PUNISHMENT

AB400,101,6 322.015 Article 15—Commanding officer's nonjudicial punishment. (1) Under regulations as prescribed, any commanding officer, and for purposes of this section, officers-in-charge, may impose disciplinary punishments for minor offenses without the intervention of a court-martial. The governor, the adjutant general, or an officer of a general or flag rank in command may delegate the powers under this section to a principal assistant who is a member of a state military force.

AB400,101,8 (2) Any commanding officer may impose any of the following upon enlisted members of the officer's command:

AB400,101,9 (a) Admonition.

AB400,101,10 (b) Reprimand.

AB400,101,12 (c) Withholding of privileges for not more than 6 months, which need not be consecutive.

AB400,101,13 (d) Forfeiture of not more than 7 days' pay.

AB400,101,14 (e) Fine of not more than 7 days' pay.

AB400,101,17 (f) Reduction to the next inferior pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction.

AB400,101,19 (g) Extra duties, including fatigue or other duties, for not more than 14 days, which need not be consecutive.

AB400,101,21 (h) Restriction to certain specified limits, with or without suspension from duty, for not more than 14 days, which need not be consecutive.

AB400,101,24 (3) Any commanding officer of the grade of major or lieutenant commander, or above may impose any of the following upon enlisted members of the officer's command:

AB400,101,25 (a) Any punishment authorized in sub. (2) (a), (b), and (c).

AB400,102,2 (b) Forfeiture of not more than one-half of one month's pay per month for 2 months.

AB400,102,3 (c) Fine of not more than one month's pay.

AB400,102,8 (d) Reduction to the lowest or any intermediate pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction, but an enlisted member in a pay grade above E-4 may not be reduced more than 2 pay grades.

AB400,102,10 (e) Extra duties, including fatigue or other duties, for not more than 45 days, which need not be consecutive.

AB400,102,12 (f) Restriction to certain specified limits, with or without suspension from duty, for not more than 60 days, which need not be consecutive.

AB400,102,15 (4) The governor, the adjutant general, an officer exercising general court-martial convening authority, or an officer of a general or flag rank in command may impose any of the following penalties:

AB400,102,18 (a) Upon officers of the officer's command, any punishment authorized in sub. (3) (a), (b), (c), and (f) and arrest in quarters for not more than 30 days, which need not be consecutive.

AB400,102,20 (b) Upon enlisted members of the officer's command, any punishment authorized in sub. (3).

AB400,102,25 (5) Whenever any of the punishments under this section are combined to run consecutively, the total length of the combined punishment cannot exceed the authorized duration of the longest punishment in the combination, and there must be an apportionment of punishments so that no single punishment in the combination exceeds its authorized length under this section.

AB400,103,3 (6) The service member shall have the right to demand trial by court-martial in lieu of nonjudicial punishment, and shall have the right to consult with a judge advocate.

AB400,103,7 (7) The officer who imposes the punishment, or the successor in command, may, at any time, suspend, set aside, mitigate, or remit any part or amount of the punishment and restore all rights, privileges, and property affected. The officer also may do any of the following:

AB400,103,8 (a) Mitigate reduction in grade to forfeiture of pay.

AB400,103,9 (b) Mitigate arrest in quarters to restriction.

AB400,103,10 (c) Mitigate extra duties to restriction.

AB400,103,15 (8) The mitigated punishment shall not be for a greater period than the punishment mitigated. When mitigating reduction in grade to forfeiture of pay, the amount of the forfeiture shall not be greater than the amount that could have been imposed initially under this section by the officer who imposed the punishment mitigated.

AB400,103,25 (9) A person punished under this section who considers the punishment unjust or disproportionate to the offense may, through the proper channel, appeal to the next superior authority within 15 days after the punishment is either announced or sent to the accused, as the commander may determine. The appeal shall be promptly forwarded and decided, but the person punished may in the meantime be required to undergo the punishment adjudged. The superior authority may exercise the same powers with respect to the punishment imposed as may be exercised under sub. (7) by the officer who imposed the punishment. Before acting on an appeal from a punishment, the authority that is to act on the appeal may refer the case to a judge advocate for consideration and advice.

AB400,104,7 (10) The imposition and enforcement of disciplinary punishment under this section for any act or omission is not a bar to trial by court-martial or a civilian court of competent jurisdiction for a serious crime or offense growing out of the same act or omission and not properly punishable under this section; but the fact that a disciplinary punishment has been enforced may be shown by the accused upon trial and, when so shown, it shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty.

AB400,104,10 (11) Whenever a punishment of forfeiture of pay is imposed under this section, the forfeiture may apply to pay accruing before, on, or after the date that punishment is imposed.

AB400,104,13 (12) Regulations may prescribe the form of records to be kept of proceedings under this section and may prescribe that certain categories of those proceedings shall be in writing.

AB400,104,15 SUBCHAPTER IV COURT-MARTIAL JURISDICTION

AB400,104,17 322.016 Article 16—Courts-martial classified. The 3 kinds of courts-martial in the state military forces are as follows:

AB400,104,18 (1) General courts-martial, consisting of any of the following:

AB400,104,19 (a) A military judge and not less than 5 members.

AB400,104,23 (b) Only a military judge, if before the court is assembled the accused, knowing the identity of the military judge and after consultation with defense counsel, requests orally on the record or in writing a court composed only of a military judge and the military judge approves.

AB400,104,24 (2) Special courts-martial, consisting of any of the following:

AB400,105,3 (a) A military judge and not less than 3 members. An accused may waive having 12 members and proceed to a special court-martial with not less than 6 members.

AB400,105,5 (b) Only a military judge, if one has been detailed to the court, and the accused under the same conditions as those prescribed in sub. (1) (b) so requests.

AB400,105,6 (3) Summary courts-martial, consisting of one commissioned officer.

AB400,105,11 322.017 Article 17—Jurisdiction of courts-martial in general. Each component of the state military forces has court-martial jurisdiction over all members of the particular component who are subject to this code. Additionally, the state military forces have court-martial jurisdiction over all members subject to this code.

AB400,105,15 322.018 Article 18—Jurisdiction of general courts-martial. Subject to s. 322.017, general courts-martial have jurisdiction to try persons subject to this code for any offense made punishable by this code, and may, under limitations as the governor may prescribe, adjudge any punishment not forbidden by this code.

AB400,105,21 322.019 Article 19—Jurisdiction of special courts-martial. Subject to s. 322.017, special courts-martial have jurisdiction to try persons subject to this code for any offense made punishable by this code, and may, under limitations as the governor may prescribe, adjudge any punishment not forbidden by this code except dishonorable discharge, dismissal, confinement for more than one year, forfeiture of pay exceeding two-thirds pay per month, or forfeiture of pay for more than one year.

AB400,106,2 322.020 Article 20—Jurisdiction of summary courts-martial. (1) Subject to s. 322.017, summary courts-martial have jurisdiction to try persons subject to this code, except officers, cadets, candidates, and midshipmen, for any offense made punishable by this code under limitations as the governor may prescribe.

AB400,106,11 (2) No person with respect to whom summary courts-martial have jurisdiction may be brought to trial before a summary court-martial if that person objects. If objection to trial by summary court-martial is made by an accused, trial by special or general court-martial may be ordered, as may be appropriate. Summary courts-martial may, under limitations as the governor may prescribe, adjudge any punishment not forbidden by this code except dismissal, dishonorable or bad-conduct discharge, confinement for more than one month, restriction to specified limits for more than 2 months, or forfeiture of more than two-thirds of one month's pay.

AB400,106,14 SUBCHAPTER V APPOINTMENT AND COMPOSITION OF COURTS-MARTIAL