A.R.S. tit. 26 ch. 9 — Arizona Revised Statutes Title 26 Chapter 9 — Arizona Code Of Military Justice

26-1001. Definitions In this chapter, unless the context otherwise requires: 1. "Accuser" means a person who signs and swears to charges, a 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. 2. "Apprehend" or "apprehension" means taking a person into custody. 3. "Arrest" means the restraint of a person by an order, not imposed as a punishment for an offense, directing the person to remain within certain specified limits. 4. "Candidate" means a candidate of the Arizona military academy. 5. "Code" means the Arizona code of military justice as set forth in this chapter. 6. "Commanding officer" means only commissioned officers. 7. "Confinement" means the physical restraint of a person. 8. "Judge advocate" means an officer of the judge advocate general's corps of the United States army or the army national guard of the United States or an officer of the United States air force or the air national guard of the United States who is designated as a judge advocate. 9. "Military" means any or all of the armed forces of this state, the United States or any other state. 10. "Military judge" means an official of a general or special court-martial detailed in accordance with section 26-1026. 11. "National guard" means the national guard of Arizona and the state guard when organized. 12. "Officer in charge" means a member of the National guard designated as the officer in charge by an appropriate authority. 13. "Record", if used in connection with the proceedings of a court-martial, means an official written transcript, written summary or other writing relating to the proceedings or an official audiotape, videotape or similar material from which sound, or sound and visual images, depicting the proceedings may be reproduced. 14. "State judge advocate" means the commissioned officer responsible for supervising the administration of military justice in the national guard. 15. "Superior commissioned officer" means a commissioned officer superior in rank or command. 26-1002. Persons subject to the code A. The following persons are subject to the code: 1. Members of the national guard. 2. All other persons lawfully ordered to duty with the national guard from the dates they are required to serve by the terms of the order or other directive calling them into service. B. The voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the national guard is valid for purposes of jurisdiction under subsection A and a change of status from civilian to member of the national guard is effective on the taking of the oath of enlistment. C. Notwithstanding any other provision of law, a person serving with the national guard who submits voluntarily to military authority, meets the mental competency and minimum age qualifications for enlistment at the time of voluntary submission to military authority, receives military pay or allowances and performs military duties is subject to this chapter until such person's active service has been terminated in accordance with law or rules adopted by the Governor. 26-1003. Jurisdiction to try personnel A. Each person discharged from the national guard who is later charged with having fraudulently obtained the discharge is subject to trial by court-martial on that charge and is, after apprehension, subject to this code while in the custody of the military for that trial. On conviction of that charge the person is subject to trial by court-martial for all offenses in this code committed before the fraudulent discharge. B. A person who has deserted from the national guard is subject to the jurisdiction of this code notwithstanding a separation from any later period of service. 26-1004. Dismissed officer's right to trial by court-martial A. If any commissioned officer, dismissed by order of the governor, makes a written application for trial by court-martial setting forth, under oath, that he has been wrongfully dismissed, the governor, as soon as practicable, shall convene a general court-martial to try that officer on the charges on which he was dismissed. A court-martial so convened has jurisdiction to try the dismissed officer on those charges, and he shall be considered to have waived the right to plead any statute of limitations applicable to any offense with which he is charged. As part of its sentence, the court-martial may adjudge the affirmance of the dismissal, but if the court-martial acquits the accused or if the sentence adjudged, as finally approved or affirmed, does not include dismissal, the adjutant general shall substitute for the dismissal ordered by the governor a form of discharge authorized for administrative issue. B. If the governor fails to convene a general court-martial within six months from the presentation of an application for trial under this article, the adjutant general shall substitute for the dismissal order by the governor a form of discharge authorized for administrative issue. C. If a discharge is substituted for a dismissal, only the governor may reappoint the officer to the commissioned grade and with a rank that, in the opinion of the governor, the former officer would have attained had he not been dismissed. The reappointment of such a former officer shall be without regard to the existence of a vacancy and affects the promotion status of other officers only as the governor directs. All time between the dismissal and the reappointment is considered as actual service for all purposes. D. If an officer is discharged from the national guard by administrative action or is dropped from the rolls by order of the governor, he has no right to trial under this section. 26-1005. Territorial applicability A. This code applies in this state and to all persons otherwise subject to this code while they are serving outside this state, and while they are going to and returning from such service outside this state, in the same manner and to the same extent as if they were serving inside this state. B. Courts-martial may be convened and held in units of the national guard while these units are serving outside this state with the same jurisdiction and powers as to persons subject to this code as if the proceedings were held inside this state. Offenses committed outside this state may be tried and punished either inside or outside this state. 26-1006. State judge advocate; staff judge advocates A. The adjutant general, with approval of the governor, shall appoint an officer of the national guard as state judge advocate, who shall be a member in good standing of the state bar of Arizona and shall have been a member of the state bar of Arizona and a member of the national guard for at least five years immediately preceding the appointment. B. The adjutant general may appoint as many assistant state judge advocates as deemed necessary who shall be officers of the national guard and members in good standing of the state bar of Arizona. C. The state judge advocate or his assistants shall make frequent inspections in the field in supervision of the administration of military justice. D. Convening authorities at all times shall communicate directly with their staff judge advocates in matters relating to the administration of military justice. The staff judge advocate of any command is entitled to communicate directly with the staff judge advocate of a superior or subordinate command or with the state judge advocate. E. No person who has acted as a member, military judge, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel or investigating officer, or who has been a witness for either the prosecution or defense, in any case may later act as staff judge advocate to any reviewing authority in the same case. 26-1007. Apprehension A. Any person authorized by this chapter or by rules adopted pursuant to this chapter to apprehend persons subject to this code or for trial may do so on reasonable belief that an offense has been committed and that the person apprehended committed it. B. Commissioned officers, warrant 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 who take part. 26-1008. Apprehension of deserters Any officer having authority to apprehend offenders under the laws of this state, the United States or a state, territory, commonwealth or possession or the district of Columbia may summarily apprehend a deserter from the national guard and deliver him into the custody of the national guard. If an offender is apprehended outside this state, his return shall be in accordance with normal extradition procedures or reciprocal agreement. 26-1009. Authority to order arrest A. 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 chapter. A commanding officer may authorize warrant officers, or noncommissioned officers, to order enlisted members of his command or subject to his authority into arrest or confinement. B. A commissioned officer or a warrant officer may be ordered into arrest or confinement only by a commanding officer to whose authority he is subject by an order, oral or written, delivered in person or by another commissioned officer. The authority to order such persons into arrest or confinement may not be delegated. C. No person may be ordered into arrest or confinement except for probable cause. D. Nothing in this section limits the authority of persons authorized to apprehend offenders to secure the custody of an alleged offender until proper authority is notified. 26-1010. Restraint of persons charged with offenses Any person subject to this chapter charged with an offense under this chapter shall be ordered into arrest or confinement. A person charged only with an offense normally tried by a summary court-martial shall not be placed in confinement. If any person subject to this code is placed in arrest or confinement before trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him. 26-1011. Receiving of prisoners at civilian correction facility; statement A provost marshal, commander of a guard, master-at-arms, warden, keeper or officer of a city or county jail or any other jail, penitentiary or prison shall not refuse to receive or keep any prisoner committed to his charge by a commissioned officer of the national guard, if the committing officer furnishes a statement, signed by him, of the offense alleged against the prisoner. The statement shall be on a form prescribed by rule. 26-1013. Punishment before trial; prohibition A person, while being held for trial, shall not be subjected to punishment or penalty other than arrest or confinement on the charges pending against him nor shall the arrest or confinement imposed on him be any more rigorous than the circumstances required to ensure his presence, but he may be subjected to minor punishment during that period for infractions of discipline and may be required to perform such labor as may be necessary for the policing and sanitation of his living quarters and mess facilities and the immediately adjacent area. 26-1014. Delivery of offenders to civil authorities A. Under such rules as the governor may adopt, a member of the national guard accused of an offense against civil authority may be delivered, on request, to the civil authority for trial. B. When delivery 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 his offense, shall be returned, on request of competent military authority, to military custody for the completion of the sentence. 26-1015. Commanding officer; nonjudicial punishments; appeal A. Under rules the governor adopts and under any additional rules adopted by the adjutant general, limitations may be placed on the powers granted by this chapter with respect to the kind and amount of punishment authorized, the categories of commanding officers and warrant officers exercising command authorized to exercise those powers, the applicability of this chapter to an accused who demands trial by court-martial and the kinds of courts-martial to which the case may be referred on a demand. Punishment may not be imposed on any member of the national guard under this chapter if the member, before the imposition of the punishment, has demanded trial by court-martial in lieu of the punishment. A member of the national guard may not demand a trial by court-martial in lieu of the punishment if the nonjudicial punishment options do not include arrest in quarters or restriction. Similar rules may be adopted with respect to the suspension of authorized punishments. If authorized by rules of the adjutant general, a commanding officer exercising general court-martial jurisdiction or an officer of general flag rank in command may delegate the officer's powers under this article to a principal assistant. B. Subject to subsection A of this section, any commanding officer, in addition to or in lieu of admonition or reprimand, may impose one or more of the following disciplinary punishments for minor offenses without the intervention of a court-martial: 1. On officers of the commanding officer's command: (a) Restriction to certain specified limits, with or without suspension from duty, for not more than thirty consecutive days. (b) If imposed by the governor, the adjutant general or a general officer in command: (i) Arrest in quarters for not more than thirty consecutive days. (ii) Forfeiture in an amount of not more than twenty-eight drill periods. (iii) Restriction to certain specified limits, with or without suspension from duty, for not more than sixty consecutive days. 2. On other personnel of the commanding officer's command: (a) Correctional custody for not more than seven consecutive days. (b) Forfeiture in an amount of not more than seven drill periods. (c) Reduction to the next inferior pay grade, if the grade from which the person demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction. (d) Extra duties, including fatigue or other duties, for not more than fourteen consecutive days. (e) Restriction to certain specified limits, with or without suspension from duty, for not more than fourteen consecutive days. (f) If imposed by an officer of the grade of major or above: (i) Correctional custody for not more than thirty consecutive days. (ii) Forfeiture in an amount of not more than twenty-eight drill periods. (iii) Reduction to the lowest or any intermediate pay grade, but an enlisted member in a pay grade above E-4 may not be reduced more than two pay grades. The pay grade from which the person is demoted must be within the promotion authority of the officer imposing the reduction or any officer subordinate to the officer who imposes the reduction. (iv) Extra duties, including fatigue or other duties, for not more than forty-five consecutive days. (v) Restriction to certain specified limits, with or without suspension from duty, for not more than sixty consecutive days. C. Two or more of the punishments of arrest in quarters, correctional custody, extra duties or restriction may not be combined to run consecutively in the maximum amount that may be imposed for each. If any of those punishments are combined to run consecutively, there shall be an apportionment. For the purpose of this subsection, "correctional custody" means the physical restraint of a person during duty or nonduty hours and may include extra duties, fatigue duties or hard labor. If practicable, correctional custody shall not be served in immediate association with persons awaiting trial or held in confinement pursuant to trial by court-martial. D. An officer in charge may impose on enlisted members assigned to the unit of which the officer is in charge punishments authorized under subsection B, paragraph 2 of this section as the governor specifically prescribes by rule. E. The officer who imposes a punishment authorized in subsection B of this section or the officer's successor in command may suspend probationally, at any time, any part or amount of the unexecuted punishment imposed and may suspend probationally a reduction in grade or a forfeiture imposed under subsection B of this section, whether or not the punishment is executed. In addition, the officer may remit or mitigate, at any time, any part or amount of the unexecuted punishment imposed and may set aside in whole or in part the punishment, whether executed or unexecuted, and restore all rights, privileges and property affected. The officer may also mitigate reduction in grade to forfeiture of pay. If mitigating an arrest in quarters to restriction, a correctional custody to extra duties or restriction, or both, or extra duties to restriction, the mitigated punishment shall not be for a greater period than the punishment mitigated. If 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 article by the officer who imposed the punishment mitigated. F. A person who is punished under this article and who considers the punishment unjust or disproportionate to the offense may appeal, through the proper channel, to the next superior authority. The appeal shall be promptly forwarded and decided, but the person punished may be required in the meantime to undergo the punishment adjudged. The superior authority may exercise the same powers with respect to the punishment imposed as may be exercised under subsection E of this section by the officer who imposed the punishment. Before acting on an appeal from a punishment of arrest in quarters for more than seven days, correctional custody for more than seven days, forfeiture of more than seven days' pay, reduction of one or more pay grades from the fourth or a higher grade, extra duties for more than fourteen days or restriction for more than fourteen days, the authority who is to act on the appeal shall refer the case to a judge advocate for consideration and advice and may so refer the case on appeal from any punishment imposed under subsection B of this section. G. The imposition and enforcement of disciplinary punishment under this section for any act or omission is not a bar to trial by court-martial for a serious crime or offense growing out of the same act or omission, and not properly punishable under this section. The fact that a disciplinary punishment has been enforced may be shown by the accused at trial, and if shown shall be considered in determining the measure of punishment to be adjudged if there is a finding of guilty. H. The adjutant general, by rule, may prescribe the form of records to be kept of proceedings under this section and may also prescribe that certain categories of those proceedings shall be in writing. 26-1016. Courts-martial; classifications The three kinds of courts-martial in the national guard are: 1. General courts-martial, consisting of one of the following: (a) A military judge and not less than five members. (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. 2. A special courts-martial, consisting of one of the following: (a) Not less than three members. (b) A military judge and not less than three members. (c) Only a military judge, if one has been detailed to the court, and the accused under the same conditions as those prescribed in paragraph 1, subdivision (b) requests. 3. Summary courts-martial, consisting of one commissioned officer. 26-1017. Jurisdiction of courts-martial; in general The national guard has court-martial jurisdiction over all persons subject to this chapter. The exercise of jurisdiction over personnel of another branch shall be in accordance with rules adopted by the governor. 26-1018. Jurisdiction of general courts-martial Subject to section 26-1017, general courts-martial have jurisdiction to try persons subject to this chapter for any offense made punishable by this chapter and, under limitations as the governor prescribes, may sentence convicted persons to any combination of the following: 1. A fine of not more than three hundred sixty-five dollars. 2. Forfeiture of pay and allowances. 3. A reprimand. 4. Dismissal or dishonorable discharge. 5. Reduction of a noncommissioned officer to the ranks. 6. Confinement of not more than three hundred sixty-five days. 26-1019. Jurisdiction of special courts-martial Subject to section 26-1017, special courts-martial have jurisdiction to try persons subject to this chapter, except commissioned officers, for any offense made punishable by this chapter and have the same powers of punishment as a general court-martial, except that a fine imposed by a special court-martial shall not be more than one hundred dollars for a single offense. 26-1020. Jurisdiction of summary courts-martial Subject to section 26-1017, summary courts-martial have jurisdiction to try persons subject to this chapter, except officers and candidates, for any offense made punishable by this chapter. A person with respect to whom summary courts-martial have jurisdiction shall not be brought to trial before a summary court-martial if the person objects. If objection to trial by summary courts-martial is made by an accused, trial may be ordered by special or general court-martial as may be appropriate. Under limitations that the governor prescribes, summary courts-martial may sentence an offender to any combination of the following: 1. Forfeiture of two-thirds pay and allowances for one month. 2. Reduction of a noncommissioned officer to the ranks. 3. A fine of not more than one hundred dollars for each offense. 26-1021. Jurisdiction of courts-martial not exclusive A. The provisions of this chapter conferring jurisdiction on courts-martial do not deprive any other courts of this state of concurrent jurisdiction with respect to offenders or offenses that by statute may be tried by those courts. B. Instead of imposing a fine, a court-martial may sentence an offender to confinement for not more than one day for each dollar of fine authorized. 26-1022. Convening of general courts-martial General courts-martial may be convened by the governor, the adjutant general or any other commanding officer in the national guard if empowered by the governor. 26-1023. Convening of special courts-martial A. Special courts-martial may be convened by any person who may convene a general court-martial, any general officer in command or the commanding officer in charge of any other command if empowered by the adjutant general. B. If any convening officer is an accuser, the court shall be convened by superior competent authority and may in any case be convened by such authority if considered advisable by him. 26-1024. Convening of summary courts-martial A. Summary courts-martial may be convened by any person who may convene a general or special court-martial, the commanding officer of a brigade, regiment, detached battalion or corresponding unit of the army national guard, the commanding officer of a wing, group or separate squadron of the air national guard or the commanding officer or officer in charge of any other command if empowered by the adjutant general. B. If only one commissioned officer is present with a command or detachment he shall be the summary court-martial of that command or detachment and shall hear and determine all summary court-martial cases brought before him. Summary courts-martial may be convened in any case by superior competent authority if considered desirable by him. 26-1025. Service on courts-martial A. Any commissioned officer in the national guard is eligible to serve on all courts-martial for the trial of any person who is brought before such courts for trial. B. Any warrant officer in the national guard is eligible to serve on general and special courts-martial for the trial of any person, other than a commissioned officer, who is brought before such courts for trial. C. Any enlisted member of the national guard who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial for the trial of any enlisted member of the national guard who is brought before such courts for trial but shall serve as a member of a court only if, before the conclusion of a session called by the military judge under section 26-1039, subsection A, before trial or, in the absence of such a session, before the court is assembled for the trial of the accused, the accused personally has requested in writing that enlisted members serve on it. After such a request, the accused shall not be tried by a general or special court-martial which does not include enlisted members of at least one-third of the total membership of the court, unless eligible enlisted members cannot be obtained on account of physical conditions or military exigencies. If such members cannot be obtained, the court may be assembled and the trial held without them, but the convening authority shall make a detailed written statement and append it to the record stating why they could not be obtained. In this subsection, "unit" means any regularly organized body of the national guard not larger than a company or battery or a body corresponding to a company or battery. D. If it can be avoided, a member of the national guard shall not be tried by a court-martial with any member who is junior to him in rank or grade. If convening a court-martial, the convening authority shall choose members of the national guard who, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service and judicial temperament. A member of the national guard is not eligible to serve as a member of a general or special court-martial if he is the accuser or a witness for the prosecution or has acted as an investigating officer or counsel in the case. E. Before a court-martial is assembled for the trial of a case, the convening authority may excuse a member of the court from participating in the case. Under such rules as the adjutant general prescribes, the convening authority may delegate his authority under this subsection to his staff judge advocate or legal officer or to any other principal assistant. 26-1026. Military judge of a general or special court-martial A. A military judge shall be detailed to each general court-martial. Subject to rules of the adjutant general, a military judge may be detailed to any special court-martial. The adjutant general shall adopt rules providing for the manner in which military judges are detailed for the courts-martial and for the persons who are authorized to detail military judges for the courts-martial. The military judge shall preside over each open session of the court-martial to which the military judge has been detailed. B. A military judge must be a member in good standing of the state bar of Arizona and a current or former member of the United States armed forces or the armed forces of this state who is appointed as a military judge by the governor after certification by the state judge advocate as having met the qualifications. C. Before appointment by the governor, a prospective military judge shall submit a full set of fingerprints to the governor for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation. D. The military judge of a general court-martial shall be designated by the state judge advocate, or the state judge advocate's designee, for detail in accordance with rules adopted under subsection A of this section. Unless the court-martial was convened by the governor, neither the convening authority nor any member of the convening authority's staff shall prepare or review any report concerning the effectiveness, fitness or efficiency of the military judge detailed, which relates to the military judge's performance of duty as a military judge. A commissioned officer who is certified to be qualified for duty as a military judge of a general court-martial may perform duties of a judicial or nonjudicial nature other than those relating to the officer's primary duty as a military judge of a general court-martial if the duties are assigned to the officer by or with the approval of the state judge advocate or the state judge advocate's designee. E. A person is not eligible to act as military judge in a case if the person is the accuser or a witness or has acted as an investigating officer or a counsel in the same case. F. The military judge of a court-martial may not consult with the members of the court except in the presence of the accused, trial counsel and defense counsel, and the military judge may not vote with the members of the court. 26-1027. Detail of trial counsel and defense counsel A. Trial counsel and defense counsel shall be detailed for each general and special court-martial. Assistant trial counsel and assistant and associate defense counsel may be detailed for each general and special court-martial. The adjutant general shall prescribe rules providing for the manner in which counsel are detailed for such courts-martial and for the persons who are authorized to detail counsel for such courts-martial. No person who has acted as investigating officer, military judge or court member in any case may act later as trial counsel, as assistant trial counsel or, unless expressly requested by the accused, as defense counsel or assistant or associate defense counsel in the same case. No person who has acted for the prosecution may act later in the same case for the defense nor may any person who has acted for the defense act later in the same case for the prosecution. B. Trial counsel or defense counsel detailed for a general court-martial shall be a judge advocate and certified as competent to perform such duties by the state judge advocate. C. In the case of a special court-martial: 1. The accused shall be afforded the opportunity to be represented at the trial by counsel having the qualifications prescribed under subsection B unless counsel having such qualifications cannot be obtained because of physical conditions or military exigencies. If counsel having such qualifications cannot be obtained, the court may be convened and the trial held but the convening authority shall make a detailed written statement and append it to the record stating why counsel with such qualifications could not be obtained. 2. If the trial counsel is qualified to act as counsel before a general court-martial, the defense counsel detailed by the convening authority shall be a person similarly qualified. 3. If the trial counsel is a judge advocate or a member of the bar of a federal court or the highest court of a state, the defense counsel detailed by the convening authority shall be a person qualified pursuant to paragraph 1 or 2. 26-1028. Detail or employment of reporters and interpreters Under such rules as the adjutant general prescribes, the convening authority of a court-martial, military commission or court of inquiry shall detail or employ qualified court reporters who shall record the proceedings of and testimony taken before that court or commission. Under similar rules the convening authority of a court-martial or court of inquiry may detail or employ interpreters to interpret for the court. 26-1029. Absent and additional members A. A member of a general or special court-martial shall not be absent or excused after the court has been assembled for the trial of the accused unless as a result of a challenge by the military judge for physical disability or other good cause or by order of the convening authority for good cause. B. If a general court-martial, other than a general court-martial composed of a military judge only, is reduced below five members, the trial shall not proceed unless the convening authority details new members sufficient in number to provide not fewer than five members. The trial may proceed with the new members present after the recorded evidence previously introduced before the members of the court has been read to the court in the presence of the military judge, the accused and counsel for both sides. C. If a special court-martial, other than a special court-martial composed of a military judge only, is reduced below three members, the trial shall not proceed unless the convening authority details new members sufficient in number to provide not fewer than three members. The trial shall proceed with the new members present as if no evidence had previously been introduced at the trial, unless a verbatim record of the evidence previously introduced before the members of the court or a stipulation is read to the court in the presence of the military judge, if any, the accused and counsel for both sides. D. If the military judge of a court-martial composed of a military judge only is unable to proceed with the trial because of physical disability, as a result of a challenge or for other cause, the trial shall proceed, subject to any applicable conditions of section 26-1016, paragraph 1, subdivision (b) and paragraph 2, subdivision (c) after the detail of a new military judge as if no evidence had previously been introduced, unless a verbatim record of the evidence previously introduced or a stipulation is read in court in the presence of the new military judge, the accused and counsel for both sides. 26-1030. Charges and specifications A. Charges and specifications shall be signed by a person subject to this chapter under oath before a commissioned officer of the national guard authorized to administer oaths and shall state that the signer has personal knowledge of, or has investigated, the matters set forth and that they are true in fact to the best of his knowledge and belief. B. After the preferring of charges, the proper authority shall take immediate steps to determine what disposition should be made in the interest of justice and discipline and the accused person shall be informed of the charges against him as soon as practicable. 26-1031. Compulsory self-incrimination; prohibition A. A person subject to this chapter shall not compel any person to incriminate himself or to answer any question if the answer would tend to incriminate him. B. A person subject to this code shall not interrogate, or request any statement from an accused or a person suspected of an offense, without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial. C. A person subject to this chapter shall not compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade him. D. A statement obtained from any person in violation of this section, or through the use of coercion, unlawful influence or unlawful inducement, shall not be received in evidence against him in a trial by court-martial. 26-1033. Forwarding of charges If a person is held for trial by general court-martial the commanding officer, within eight days after the accused is ordered into arrest or confinement, if practicable, shall forward the charges, together with the investigation and allied papers, to the officer exercising general court-martial jurisdiction. If that is not practicable, he shall report in writing to that officer the reasons for delay. 26-1034. Advice of staff judge advocate; reference for trial A. Before directing the trial of any charge by general court-martial, the convening authority shall refer it to the staff judge advocate for consideration and advice. The convening authority shall not refer a specification under a charge to a general court-martial for trial unless he has been advised of all of the following in writing by the staff judge advocate: 1. The specification alleges an offense in this chapter. 2. The specification is warranted by the evidence indicated in the investigation and allied papers provided under section 26-1033. 3. A court-martial would have jurisdiction over the accused and the offense. B. The advice of the staff judge advocate under subsection A of this section with respect to a specification under a charge shall include a written and signed statement by the staff judge advocate expressing his conclusions with respect to each matter set forth in subsection A of this section and recommending action that the convening authority take regarding the specification. If the specification is referred for trial, the recommendation of the staff judge advocate shall accompany the specification. C. If the charges or specifications are not formally correct or do not conform to the substance of the evidence contained in the report of the investigating officer, formal corrections and such changes in the charges and specifications as are needed to make them conform to the evidence may be made. 26-1035. Service of charges The trial counsel to whom court-martial charges are referred for trial shall serve on the accused a copy of the charges on which trial is to be had. In time of peace, a person, against his objection, shall not be brought to trial or be required to participate by himself or counsel in a session called by the military judge under section 26-1039, subsection A, in a general court-martial case within a period of five days after the service of charges on him or in a special court-martial within a period of three days after the service of the charges on him. 26-1036. Governor's rule making authority A. Pretrial, trial and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the governor by rules which, so far as practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in this state but which may not be contrary to or inconsistent with this chapter. B. All rules adopted under this chapter shall be as uniform as practicable and shall be in force and effect on approval by the governor. 26-1037. Unlawfully influencing action of court A. An authority convening a general, special or summary court-martial, or any other commanding officer, shall not censure, reprimand or admonish the court or any member, military judge or counsel, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings. A person subject to this chapter shall not attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member of a tribunal in reaching the findings or sentence in any case, or the action of any convening, approving or reviewing authority with respect to judicial acts. This subsection does not apply to general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial or to statements and instructions given in open court by the military judge, president of a special court-martial or counsel. B. In the preparation of an effectiveness, fitness or efficiency report or any other report or document used in whole or in part for the purpose of determining whether a member of the national guard is qualified to be advanced in grade, in determining the assignment or transfer of a member of the national guard or in determining whether a member of the national guard should be retained, a person subject to this chapter, in preparing any such report, shall not consider or evaluate the performance of duty of any such member of a court-martial or give a less favorable rating or evaluation of any member of the national guard because of the zeal with which such member, as counsel, represented any accused before a court-martial. 26-1038. Duties of trial counsel and defense counsel A. The trial counsel of a general or special court-martial shall prosecute in the name of the state and shall prepare, under the direction of the court, the record of the proceedings. B. The accused has the right to be represented in his defense before a general or special court-martial or at an investigation as provided in this section. C. The accused may be represented by civilian counsel if provided by him. D. The accused may be represented by military counsel detailed under section 26-1027 or by military counsel of his own selection if that counsel is reasonably available. E. If the accused is represented by civilian counsel, military counsel shall act as associate counsel unless excused at the request of the accused. F. Except as provided by subsection G of this section, if the accused is represented by military counsel of his own selection, any military counsel detailed shall be excused. G. The accused is not entitled to be represented by more than one military counsel. However, the person authorized under rules adopted under section 26-1027 to detail counsel in his sole discretion: 1. May detail additional military counsel as assistant defense counsel. 2. If the accused is represented by military counsel of his own selection, may approve a request from the accused that military counsel detailed act as associate defense counsel. H. The adjutant general, by rule, shall define "reasonably available" for the purpose of subsection D of this section and establish procedures for determining whether the military counsel selected by an accused is reasonably available. These rules shall not prescribe any limitation based on the reasonable availability of counsel solely on the grounds that the counsel selected by the accused is from a component of the national guard other than the component of which the accused is a member. To the maximum extent practicable, these rules shall be consistent with the regulations governing the military forces of the United States. I. In any court-martial proceeding resulting in a conviction, the defense counsel may: 1. Forward for attachment to the record of proceedings a brief of those matters he determines should be considered in behalf of the accused on review, including any objection to the contents of the record which he considers appropriate. 2. Assist the accused in the submission of any matter under section 26-1060. 3. Take other action authorized by this chapter. J. Under the direction of the trial counsel or if he is qualified to be a trial counsel, an assistant trial counsel of a general court-martial may perform any duty imposed by law, rule or the custom of the service on the trial counsel of the court. An assistant trial counsel of a special court-martial may perform any duty of the trial counsel. K. Under the direction of the defense counsel or if he is qualified to be the defense counsel, an assistant defense counsel of a general or special court-martial may perform any duty imposed by law, rule or the custom of the service on counsel for the accused. 26-1039. Sessions A. At any time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, the military judge, subject to section 26-1035, may call the court into session without the presence of the members but conducted in the presence of the accused, the defense counsel and the trial counsel and as part of the record, for the purpose of: 1. Hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty. 2. Hearing and ruling on any matter which may be ruled on by the military judge under this chapter, whether or not the matter is appropriate for later consideration or decision by the members of the court. 3. If permitted by rules of the adjutant general, holding the arraignment and receiving the pleas of the accused. 4. Performing any other procedural function which may be performed by the military judge and which does not require the presence of the members of the court. B. When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any other consultation of the members of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel and, in cases in which a military judge has been detailed to the court, the military judge. 26-1040. Continuances The military judge or a court-martial without a judge, for reasonable cause, may grant a continuance to any party for such time, and as often, as is just. 26-1041. Challenges A. The military judge and members of a general or special court-martial may be challenged by the accused or the trial counsel for cause stated to the court. The military judge, or if none, the court, shall determine the relevance and validity of challenges for cause and may not receive a challenge to more than one person at a time. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused are offered. B. Each accused and the trial counsel is entitled to one peremptory challenge, but the military judge may not be challenged except for cause. 26-1042. Oaths A. Before performing their respective duties, military judges, members of general and special courts-martial, trial counsel, assistant trial counsel, defense counsel, assistant or associate defense counsel, reporters and interpreters shall take an oath to perform their duties faithfully. The form of the oath, the time and place of taking the oath, the manner of recording the oath and whether the oath shall be taken for all cases in which these duties are to be performed or for a particular case shall be as prescribed in rules of the adjutant general. The rules may provide that an oath to perform faithfully duties as a military judge, trial counsel, assistant trial counsel, defense counsel or assistant or associate defense counsel may be taken at any time by any judge advocate or other person certified to be qualified or competent for the duty, and if such an oath is taken it need not again be taken at the time the judge advocate, or other person, is detailed to that duty. B. Each witness before a court-martial shall be examined on oath. 26-1043. Statute of limitations A. Except as otherwise provided in this article, a person charged with an offense is not liable to be tried by court-martial or punished under section 26-1015 if the offense was committed more than two years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command or before the imposition of punishment under section 26-1015. B. Periods in which the accused was absent from territory in which the state has the authority to apprehend him, was in the custody of civil authorities or was in the hands of the enemy shall be excluded in computing the period of limitation prescribed in this section. 26-1044. Former jeopardy A. No person, without his consent, may be tried a second time for the same offense. B. No proceeding in which an accused has been found guilty by court-martial on any charge or specification is a trial in the sense of this section until the finding of guilt becomes final after review of the case has been fully completed. C. A proceeding in which, after introduction of evidence but before a finding, is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses without any fault of the accused is a trial for purposes of this article. 26-1045. Pleas of the accused A. If an accused after arraignment makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty. B. With respect to any charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge or by a court-martial without a military judge, a finding of guilty of the charge or specification, if permitted by rules of the adjutant general, may be entered immediately without vote. This finding constitutes the finding of the court unless the plea of guilty is withdrawn before announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty. 26-1046. Opportunity to obtain witnesses and other evidence The trial counsel, the defense counsel and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with rules the governor adopts. 26-1047. Refusal to appear or testify Any person who has been duly subpoenaed to appear as a witness before a court-martial, military commission, court of inquiry or other military court or board, or before any military or civil officer designated to take a deposition to be read in evidence before such a court, commission or board, or who has been duly paid or tendered the fees and mileage of a witness at the rates allowed to witnesses attending the courts of the state and who willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or to produce any evidence which that person may have been legally subpoenaed to produce, is in contempt of court and may be punished in the same manner as if the contempt were committed before civil courts of this state. 26-1048. Contempt A court-martial may punish any person for contempt who uses any menacing word, sign or gesture in its presence or who disturbs its proceedings by any riot or disorder. The punishment shall not exceed confinement for thirty days or a fine of one hundred dollars, or both. 26-1049. Depositions A. At any time after charges have been signed as provided in section 26-1030, any party may take oral or written depositions unless the military judge or court-martial without a military judge hearing the case or, if the case is not being heard, an authority competent to convene a court-martial for the trial of those charges forbids it for good cause. If a deposition is to be taken before charges are referred for trial, such an authority may designate commissioned officers to represent the prosecution and the defense and may authorize those officers to take the deposition of any witness. B. The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition. C. Depositions may be taken before and authenticated by any military or civil officer authorized by the laws of the state or by the laws of the place where the deposition is taken to administer oaths. D. A duly authenticated deposition taken on reasonable notice to the other parties, so far as otherwise admissible under the rules of evidence, may be read in evidence or, in the case of audiotape, videotape or similar material, may be played in evidence before any military court in any case, or in any proceeding before a court of inquiry or military board, if one or more of the following applies: 1. The witness resides or is not within the state in which the court or board is ordered to sit, or is more than one hundred miles from the place of trial or hearing. 2. The witness by reason of death, age, sickness, bodily infirmity, imprisonment, military necessity, nonamenability to process or other reasonable cause is unable or refuses to appear and testify in person at the place of trial or hearing. 3. The present whereabouts of the witness is unknown. 26-1050. Admissibility of records of courts of inquiry A. In any case not extending to the dismissal of a commissioned officer, the sworn testimony, contained in the duly authenticated record of proceedings of a court of inquiry, of a person whose oral testimony cannot be obtained, if otherwise admissible under the rules of evidence, may be read in evidence by any party before a court-martial or military commission if the accused was a party before the court of inquiry and if the same issue was involved or if the accused consents to the introduction of such evidence. B. This testimony may be read in evidence only by the defense in cases extending to the dismissal of a commissioned officer. C. This testimony may also be read in evidence before a court of inquiry or a military board. 26-1051. Voting and rulings A. Voting by members of a general or special court-martial on the findings and on the sentence, and by members of a court-martial without a military judge on questions of challenge, shall be by secret written ballot. The junior member of the court shall count the votes. The count shall be checked by the president, who shall immediately announce the result of the ballot to the members of the court. B. The military judge and, except for questions of challenge, the president of a court-martial without a military judge shall rule on all questions of law and all interlocutory questions arising during the proceedings. Any such ruling made by the military judge on any question of law or any interlocutory question other than the factual issue of mental responsibility of the accused, or by the president of a court-martial without a military judge on any question of law other than a motion for a finding of not guilty, is final and constitutes the ruling of the court. However, the military judge or the president of a court-martial without a military judge may change his ruling at any time during the trial. Unless the ruling is final, if any member objects, the court shall be cleared and closed and the question decided by a voice vote as provided in section 26-1052, beginning with the junior in rank. C. Before a vote is taken on the findings, the military judge or the president of a court-martial without a military judge, in the presence of the accused and counsel, shall instruct the members of the court as to the elements of the offense and charge them: 1. That the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt. 2. That, in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and he must be acquitted. 3. That, if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt. 4. That the burden of proof to establish the guilt of the accused beyond reasonable doubt is on this state. D. Subsections A, B and C of this section do not apply to a court-martial composed of a military judge only. The military judge of such a court-martial shall determine all questions of law and fact arising during the proceedings and, if the accused is convicted, adjudge an appropriate sentence. The military judge of such a court-martial shall make a general finding and in addition on request shall find the facts specially. If an opinion or memorandum of decision if filed, it is sufficient if the findings of fact appear in the opinion or memorandum of decision. 26-1052. Number of votes required A. A person shall not be convicted of any offense except as provided in section 26-1045 or by the concurrence of two-thirds of the members present at the time the vote is taken. B. All sentences shall be determined by the concurrence of two-thirds of the members present at the time the vote is taken. C. All other questions to be decided by the members of a general or special court-martial shall be determined by a majority vote, but a determination to reconsider a finding of guilty or to reconsider a sentence, with a view toward decreasing it, may be made by any lesser vote which indicates that the reconsideration is not opposed by the number of votes required for that finding or sentence. A tie vote on a challenge disqualifies the member challenged. A tie vote on a motion for a finding of not guilty or on a motion relating to the question of the accused's sanity is a determination against the accused. A tie vote on any other question is a determination in favor of the accused. 26-1053. Announcement of action A court-martial shall announce its findings and sentence to the parties as soon as they are determined. 26-1054. Record of trial A. Each general court-martial shall keep a separate record of the proceedings in each case brought before it, and the record shall be authenticated by the signature of the military judge. If the record cannot be authenticated by the military judge by reason of his death, disability or absence, it shall be authenticated by the signature of the trial counsel or by that of a member if the trial counsel is unable to authenticate it by reason of his death, disability or absence. In a court-martial consisting of only a military judge the record shall be authenticated by the court reporter under the same conditions which would impose such a duty on a member under this subsection. B. Each special and summary court-martial shall keep a separate record of the proceedings in each case, and the record shall be authenticated in the manner required by rule the governor adopts. C. A copy of the record of the proceedings of each general and special court-martial shall be given to the accused as soon as it is authenticated. 26-1055. Sentences; reduction in enlisted grade on approval A. Unless otherwise provided in rules prescribed by the adjutant general, a court-martial sentence of an enlisted member in a pay grade above E-1, as approved by the convening authority, that includes a dishonorable or bad conduct discharge, confinement or hard labor without confinement reduces that member to pay grade E-1, effective on the date of the approval. B. If the sentence of a member who is reduced in pay grade under subsection A is set aside or disapproved, or as finally approved, does not include any punishment named in subsection A, the rights and privileges of which he was deprived because of the reduction shall be restored to him and he is entitled to the pay and allowances to which he would have been entitled for the period the reduction was in effect had he not been so reduced. C. A sentence of dismissal or dishonorable discharge shall not be executed until it is approved by the governor. 26-1056. Maximum limits The punishment