Chapter 322

322.0001 322.0001 Criminal code interaction.

322.0001(1) (1) Chapters 939, 967 to 973, and 975 to 979 do not apply to proceedings under this chapter.

322.0001(2) (2) A crime under this code is a crime under s. 939.12. A felony under this code is a felony under s. 939.22 (12). A misdemeanor under this code is a misdemeanor under s. 939.22 (20).

322.0001 History History: 2007 a. 200.

322.001 322.001 Article 1 — Definitions. In this chapter, unless the context otherwise requires:

322.001(1) (1) “Accuser” means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than an official interest in the prosecution of the accused.

322.001(2) (2) “Cadet,” “candidate,” or “midshipman” means a person who is enrolled in or attending a state military academy, a regional training institute, or any other formal education program for the purpose of becoming a commissioned officer in a state military force.

322.001(3) (3) “Classified information” means any of the following:

322.001(3)(a) (a) Any information or material that has been determined by an official of the United States or any state subject to law, an executive order, or regulation to require protection against unauthorized disclosure for reasons of state security or national defense or foreign relations of the United States.

322.001(3)(b) (b) Any restricted data, as defined in 42 USC 2014 (y).

322.001(5) (5) “Commanding officer” includes only commissioned officers of the state military forces and shall include officers in charge only when administering nonjudicial punishment under s. 322.015. The term ‘commander’ has the same meaning as ‘commanding officer’ unless the context otherwise requires.

322.001(6) (6) “Convening authority” includes, in addition to the person who convened the court, a commissioned officer commanding for the time being or a successor in command to the convening authority.

322.001(7) (7) “Day” means calendar day and is not synonymous with the term “unit training assembly.” Any punishment authorized by this code which is measured in terms of days shall, when served in a status other than annual field training, be construed to mean succeeding duty days.

322.001(8) (8) “Duty status other than state active duty” means any other type of duty including unit training assemblies or drills but excludes duty not in federal service and not full-time duty in the active service of the state; under an order issued by authority of law and includes travel to and from duty.

322.001(9) (9) “Enemy” includes organized forces of the enemy in time of war, any hostile body that U.S. or state forces may be opposing, such as a rebellious mob or band of renegades, and includes civilians as well as members of military organizations. Enemy is not restricted to the enemy government or its armed forces.

322.001(10) (10) “Enlisted member” means a person in an enlisted grade.

322.001(11) (11) “Forfeiture” means a permanent loss of entitlement to pay or allowances and any forfeiture under this code is not a forfeiture for purposes of Article X, section 2, of the Wisconsin constitution.

322.001(12) (12) “Judge advocate” means a commissioned officer of the organized state military forces who is an attorney licensed to practice in this state or a member in good standing of the bar of the highest court of another state, and is any of the following:

322.001(12)(a) (a) Certified or designated as a judge advocate in the Judge Advocate General’s Corps of the army, air force, navy, or the marine corps or designated as a law specialist as an officer of the coast guard, or a reserve component of one of these.

322.001(12)(b) (b) Certified as an non-federally recognized judge advocate, under regulations promulgated subject to this provision, by the senior judge advocate of the commander of the force in the state military force of which the accused is a member, as competent to perform military justice duties required by this code. If there is no judge advocate available, then certification may be made by the senior judge advocate of the commander of another force in the state military forces, as the convening authority directs.

322.001(13) (13) “Military court” means a court of inquiry under s. 322.135 or a court-martial.

322.001(14) (14) “Military judge” means an official of a general or special court-martial detailed under s. 322.026.

322.001(15) (15) “Military offenses” means those offenses prescribed under articles 77, principals; 78, accessory after the fact; 80, attempts; 81, conspiracy; 82, solicitation; 83, fraudulent enlistment, appointment, or separation; 84, unlawful enlistment, appointment, or separation; 85, desertion; 86, absence without leave; 87, missing movement; 88, contempt toward officials; 89, disrespect towards superior commissioned officer; 90, assaulting or willfully disobeying superior commissioned officer; 91, insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer; 92, failure to obey order or regulation; 93, cruelty and maltreatment; 93a, prohibited activities with military recruit or trainee by a person in a position of special trust; 94, mutiny or sedition; 95, resistance, flight, breach of arrest, and escape; 96, releasing prisoner without proper authority; 97, unlawful detention; 98, noncompliance with procedural rules; 99, misbehavior before the enemy; 100, subordinate compelling surrender; 101, improper use of countersign; 102, forcing a safeguard; 103, captured or abandoned property; 104, aiding the enemy; 105, misconduct as prisoner; 107, false official statements; 108, military property — loss, damage, destruction, or wrongful disposition; 109, property other than military property — waste, spoilage, or destruction; 110, improper hazarding of vessel; 111, drunken or reckless operation of a vehicle, aircraft, or vessel; 112, drunk on duty; 112a, wrongful use, or possession of controlled substances; 113, misbehavior of sentinel; 114, dueling; 115, malingering; 116, riot or breach of peace; 117, provoking speeches or gestures; 132, frauds against the government; 132a, retaliation; 133, conduct unbecoming an officer; 134, general; and 134h, sexual harassment; of this code.

322.001(17) (17) “Officer” means a commissioned or warrant officer.

322.001(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.

322.001(19) (19) “Record,” when used in connection with the proceedings of a court-martial, means any of the following:

322.001(19)(a) (a) An official written transcript, written summary, or other writing relating to the proceedings.

322.001(19)(b) (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.

322.001(20) (20) “Senior force commander” means the commander of the same force of the state military forces as the accused.

322.001(21) (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.

322.001(22) (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.

322.001(23) (23) “State military forces” means the Wisconsin army and air national guard, the national guard, as defined in 32 USC 101, 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, but does not include the unorganized militia. “State military forces” does not include the national guard when under a status subjecting them to jurisdiction under 10 USC ch. 47.

322.001(24) (24) “Superior commissioned officer” means a commissioned officer superior in rank or command.

322.001(24m) (24m) “This code” means this chapter.

322.001(25) (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.

322.001 History History: 2007 a. 200; 2009 a. 179; 2013 a. 201; 2023 a. 47.

322.002 322.002 Article 2 — Persons subject to this code; jurisdiction.

322.002(1) (1) Except as provided in s. 322.003, this code applies only to members of the state military forces at all times.

322.002(2) (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. 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.

322.002 History History: 2007 a. 200; 2009 a. 179.

322.003 322.003 Article 3 — Jurisdiction to try certain personnel.

322.003(1) (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.

322.003(2) (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.

322.003 History History: 2007 a. 200.

322.005 322.005 Article 5 — Territorial applicability of this code.

322.005(1) (1) This code has applicability in all places, provided that either the person subject to this 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.

322.005(2) (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.

322.005 History History: 2007 a. 200; 2009 a. 179.

322.006 322.006 Article 6 — Judge advocates.

322.006(1) (1) The senior force judge advocate 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.

322.006(2) (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.

322.006(3) (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.

322.006 History History: 2007 a. 200; 2009 a. 179.

subch. II of ch. 322 SUBCHAPTER II

APPREHENSION AND RESTRAINT

322.007 322.007 Article 7 — Apprehension.

322.007(1) (1) In this section, “apprehend” means to take a person into custody.

322.007(2) (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.

322.007(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.

322.007(4) (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.

322.007(5) (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.

322.007 History History: 2007 a. 200; 2009 a. 179.

322.009 322.009 Article 9 — Imposition of restraint.

322.009(1) (1) In this section:

322.009(1)(a) (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.

322.009(1)(b) (b) “Confinement” means the physical restraint of a person.

322.009(2) (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.

322.009(3) (3) A commissioned officer, a warrant officer, or a civilian subject to this code or to trial thereunder 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.

322.009(4) (4) No person may be ordered into arrest or confinement except for probable cause.

322.009(5) (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.

322.009 History History: 2007 a. 200; 2009 a. 179.

322.010 322.010 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.

322.010 History History: 2007 a. 200.

322.011 322.011 Article 11 — Place of confinement; reports and receiving of prisoners.

322.011(1) (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.

322.011(2) (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.

322.011(3) (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.

322.011 History History: 2007 a. 200.

322.012 322.012 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.

322.012 History History: 2007 a. 200.

322.013 322.013 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.

322.013 History History: 2007 a. 200.

322.014 322.014 Article 14 — Delivery of offenders to civil authorities.

322.014(1) (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.

322.014(2) (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.

322.014 History History: 2007 a. 200.

subch. III of ch. 322 SUBCHAPTER III

NONJUDICIAL PUNISHMENT

322.015 322.015 Article 15 — Commanding officer’s nonjudicial punishment.