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The 191st General Court of the Commonwealth of Massachusetts

AN ACT ESTABLISHING THE MASSACHUSETTS CODE OF MILITARY JUSTICE.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1.  Section 18 of chapter 6 of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by striking out, in line 3, the figure “2” and inserting in place thereof the following figure:- 3.

SECTION 2.  Said section 18 of said chapter 6, as so appearing, is hereby further amended by striking out, in lines 5 and 6, the words “; and the army national guard facilities management officer”.

SECTION 3.  Said section 18 of said chapter 6, as so appearing, is hereby further amended by striking out the second sentence and inserting in place thereof the following sentence:- Neither the adjutant general nor the state quartermaster shall receive additional compensation on account of their membership in the armory commission.

SECTION 4.  Section 1 of chapter 33 of the General Laws, as so appearing, is hereby amended by striking out, in lines 15 and 16, the words “or the air equivalents of these ranks” and inserting in place thereof the following words:- in the army national guard or staff sergeant through command chief master sergeant in the air national guard.

SECTION 5.  Section 2 of said chapter 33, as so appearing, is hereby amended by striking out, in line 4, the figure “45” and inserting in place thereof the following figure:- 65.

SECTION 6.  Said chapter 33 is hereby further amended by inserting after section 6 the following section:-

Section 6A.  The commander-in-chief may delegate the commander-in-chief’s authority under this chapter to the adjutant general, unless otherwise prohibited by law.

SECTION 7.  Section 10 of said chapter 33, as appearing in the 2016 Official Edition, is hereby amended by inserting after the word “active” in line 2, the following word:- drilling.

SECTION 8.  Section 13A of said chapter 33, as so appearing, is hereby amended by inserting after the word “insurance” in line 25, the following words:- , and except for the limitation of a cumulative 5 years of state military service, which shall instead be extended to 8 years of state military service.

SECTION 9.  Section 15 of said chapter 33, as so appearing, is hereby amended by inserting after the word “the” in line 2, the second time it appears, the following word:- military.

SECTION 10.  Said section 15 of said chapter 33, as so appearing, is hereby further amended by striking out, in line 70, the words “armed forces” and inserting in place thereof the following words:- organized militia.

SECTION 11.  Subsection (i) of said section 15 of said chapter 33, as so appearing, is hereby amended by adding the following sentence:- Unless otherwise ordered by the commander-in-chief, the chief of the state staff shall serve as the acting adjutant general during absence or disability of the adjutant general.

SECTION 12.  Section 19A of said chapter 33, as so appearing, is hereby amended by striking out, in line 2, the words “and the war records commission”.

SECTION 13.  Section 21 of said chapter 33, as so appearing, is hereby amended by striking out, in lines 2 and 3, the words “a legal, medical, dental or veterinary commissioned officer” and inserting in place thereof the following words:- the state judge advocate or the state surgeon.

SECTION 14.  Said section 21 of said chapter 33, as so appearing, is hereby further amended by adding the following sentence:- No person shall be eligible for appointment, or be appointed, as any other legal, medical, dental or veterinary commissioned officer unless duly qualified in accordance with such person's military service component requirements.

SECTION 15.  Said chapter 33 is hereby further amended by striking out section 22, as so appearing, and inserting in place thereof the following section:-

Section 22.  Subject to Article LIII of the Articles of Amendment of the Constitution, a person certified as eligible for any specific grade in the National Guard, army or air under the laws of the United States and who is a graduate of the Massachusetts Military Academy shall be eligible for appointment without professional examination.

SECTION 16.  Said chapter 33 is hereby further amended by striking out section 23, as so appearing, and inserting in place thereof the following section:-

Section 23.  All officers shall be appointed by the commander-in-chief upon the recommendation of appropriate commanders, approved by superior commanders.

SECTION 17.  Section 25 of said chapter 33, as so appearing, is hereby amended by striking out, in line 5, the word “his” and inserting in place thereof the following words:- the person’s.

SECTION 18.  Section 26 of said chapter 33 is hereby repealed.

SECTION 19.  Section 31 of said chapter 33, as so appearing i, is hereby amended by striking out, in line 1, the word “military” and inserting in place thereof the following word:- armed.

SECTION 20.  Said section 31 of said chapter 33, as so appearing, is hereby further amended by striking out, in line 6, the words “armed forces” and inserting in place thereof the following words:- army or air national guard.

SECTION 21.  Said section 31 of said chapter 33, as so appearing, is hereby further amended by striking out, in line 8, the words “armed forces of the commonwealth or” and inserting in place thereof the following words:- army or air national guard of the commonwealth or the uniformed services of.

SECTION 22.  Said section 31 of said chapter 33, as so appearing, is hereby further amended by striking out, in line 10, the words “armed forces of the commonwealth or the state staff, may” and inserting in place thereof the following words:- army or air national guard of the commonwealth or the state staff, shall.

SECTION 23.  Said section 31 of said chapter 33, as so appearing, is hereby further amended by striking out, in line 17, the words “Service members” and inserting in place thereof the following words:- Members of the armed forces of the commonwealth.

SECTION 24.  Said section 31 of said chapter 33, as so appearing, is hereby further amended by striking out, in lines 19 and 20, the words “, with their former grade on the retired list, or any lower grade”.

SECTION 25.  Section 32 of said chapter 33, as so appearing, is hereby amended by striking out, in lines 1 and 2, and in lines 3 and 5, the words “service member” and inserting in place thereof, in each instance, the following words:- member of the military forces of the commonwealth.

SECTION 26.  Section 33 of said chapter 33, as so appearing, is hereby amended by striking out, in line 1, the words “shall be commissioned” and inserting in place thereof the following words:- and non-commissioned officers shall be placed.

SECTION 27.  Section 37 of said chapter 33 is hereby repealed.

SECTION 28.  Section 41 of said chapter 33, as so appearing, is hereby amended by inserting after the word “and” in line 19, the second time it appears, the following words:- , when ordered to perform law enforcement duties,.

SECTION 29.  Section 43 of said chapter 33, as so appearing, is hereby amended by striking out, in lines 2 and 3, the words “civil officers or persons issuing the same” and inserting in place thereof the following words:- commander-in-chief or a designated representative.

SECTION 30.  Section 45 of said chapter 33 is hereby repealed.

SECTION 31.  Section 46 of said chapter 33, as so appearing, is hereby amended by striking out, in line 1, the words “The troops” and inserting in place thereof the following words:- Armed forces of the commonwealth.

SECTION 32.  Section 47 of said chapter 33, as so appearing, is hereby amended by striking out, in line 3, the word “out” and inserting in place thereof the following words:- to duty.

SECTION 33.  Said section 47 of said chapter 33, as so appearing, is hereby further amended by striking out the second and third sentences.

SECTION 34.  Section 48 of said chapter 33, as so appearing, is hereby amended by striking out, in line 1, the word “governor” and inserting in place thereof the following words:- commander-in-chief.

SECTION 35.  Section 49 of said chapter 33, as so appearing, is hereby amended by striking out, in lines 3 and 4, the words “at the request of such sheriff, mayor, city manager or selectmen under section forty-one, the adjutant general” and inserting in place thereof the following words:- , the adjutant general or a designated representative.

SECTION 36.  Section 50 of said chapter 33, as so appearing, is hereby amended by striking out, in line 11, the word “military” and inserting in place thereof the following word:- armed.

SECTION 37.  Section 51 of said chapter 33, as so appearing, is hereby amended by striking out, in line 2, the word “armed” and inserting in place thereof the following word:- military.

SECTION 38.  Section 54 of said chapter 33, as so appearing, is hereby amended by striking out, in line 3, the word “shall” and inserting in place thereof the following word:- may.

SECTION 39.  Section 56 of said chapter 33, as so appearing, is hereby amended by striking out the last sentence.

SECTION 40.  Section 57 of said chapter 33 is hereby repealed.

SECTION 41.  Section 60 of said chapter 33, as so appearing, is hereby amended by inserting after the word “each” in line 2, the following words:- prescribed training.

SECTION 42.  Said section 60 of said chapter 33, as so appearing, is hereby further amended by striking out, in line 3, the words “the commander-in-chief” and inserting in place thereof the following words:- duly authorized orders.

SECTION 43.  Section 61 of said chapter 33, as so appearing, is hereby amended by inserting after the word “force”, in line 3, the following words:- , in active national guard.

SECTION 44.  Said section 61 of said chapter 33, as so appearing, is hereby further amended by striking out, in line 9, the words “commander-in-chief” and inserting in place thereof the following words:- adjutant general.

SECTION 45.  Section 64 of said chapter 33, as so appearing, is hereby amended by inserting after the word “from”, in line 1, the following words:- public ways and.

SECTION 46.  Section 65 of said chapter 33, as so appearing, is hereby amended by striking out, in line 10, the word “arrested” and inserting in place thereof the following word:- detained.

SECTION 47.  Section 67 of said chapter 33, as so appearing, is hereby amended by striking out, in lines 2 and 3, the words “shall be awarded a” and inserting in place thereof the following words:- except the inactive national guard, shall be awarded a service.

SECTION 48.  Said section 67 of said chapter 33, as so appearing, is hereby further amended by inserting after the first sentence the following sentence:- All other members of the organized militia may be awarded a service medal for completion of 3 years of honorable service and for each additional 3 years of like service a device to be affixed to the ribbon pendant thereof.

SECTION 49.  Said section 67 of said chapter 33, as so appearing, is hereby further amended by striking out, in lines 7 and 60, each time it appears, the word “clasp” and inserting in place thereof, in each instance, the following word:- device.

SECTION 50.  Said section 67 of said chapter 33, as so appearing, is hereby further amended by striking out, in lines 14, 22, 30, 34, 39, 43, 47 and 51, the words “armed forces” and inserting in place thereof, in each instance, the following words:- organized militia.

SECTION 51.  Said section 67 of said chapter 33, as so appearing, is hereby further amended by striking out, in lines 18, 26, 37 and 45, the words “The adjutant general” and inserting in place thereof, in each instance, the following words:- A general officer.

SECTION 52.  Section 67A of said chapter 33 is hereby amended by striking out, in line 7, as so appearing, the words “commander-in-chief” and inserting in place thereof the following words:- adjutant general

SECTION 53.  Said chapter 33 is hereby further amended by striking out section 68, as so appearing, and inserting in place thereof the following section:-

Section 68.  Suitable recognition may be awarded for military, athletic or other competitions or outstanding military service in the armed forces of the commonwealth, under such regulations as the commander-in-chief shall determine.

SECTION 54.  Sections 69, 71 to 74, inclusive, 76 to 80, inclusive, and section 82 of said chapter 33 are hereby repealed.

SECTION 55.  Section 83 of said chapter 33, as so appearing, is hereby amended by striking out, in line 15, the figure “$100” and inserting in place thereof the following figure:- $200.

SECTION 56.  Section 84 of said chapter 33, as so appearing, is hereby amended by striking out, in line 8, the words “rail or commercial airline” and inserting in place thereof the following words:- modes of commercial travel.

SECTION 57.  Said chapter 33 is hereby further amended by striking out section 88, as so appearing, and inserting in place thereof the following section:-

Section 88.  An officer or enlisted person of the organized militia who, while performing any duty lawfully ordered under this chapter without willful neglect on the part of the person, receives injury, is disabled or contracts a sickness or disease which incapacitates the person from pursuing the person’s usual business or occupation shall, during the period of incapacity, receive compensation to be fixed by a board appointed under section 90 to inquire into the claim and the actual and necessary expenses for medical services and care, medicines and hospitalization or replacement or repair of eyeglasses, dentures or prosthetic devices worn or carried, and amounts related to lost wages. If the death of a member of the Massachusetts organized militia results from injury, sickness or disease received while in the line of duty pursuant to orders under titles 10 and 32 of the United States Code or this chapter and the injury, sickness or disease resulting in the death was not the result of the decedent’s willful neglect, a single payment of $100,000 shall be paid to the surviving spouse; provided, however, that if there is no surviving spouse, the amount shall be paid to the children of the decedent in equal shares; provided further, that if there is no surviving spouse and no children, the surviving parents of the decedent, if the parents were dependent on the decedent for support at the time of the decedent’s death, shall each receive $50,000; and provided further, that if there is no surviving spouse and no children, and only 1 surviving parent was dependent on the decedent for support at the time of the decedent’s death, that parent shall receive $100,000. For purposes of this section, the standard for dependency shall be determined in accordance with clause (3) of section 1 of chapter 152 and section 32 of said chapter 152. All claims presented under this section shall be made in the manner provided in section 90.

SECTION 58.  Said chapter 33 is hereby further amended by inserting after section 88B the following section:-

Section 88C.  The National Guard Association of Massachusetts shall be the designated provider of state sponsored life insurance products offered through insurers licensed to transact insurance business in the commonwealth for military members of the armed forces of the commonwealth and such members' dependents. The military division, through the adjutant general, is hereby designated as the official departmental sponsor of the Massachusetts National Guard State Sponsored Life Insurance Program, and shall allow, facilitate and coordinate all efforts to make the program available to all members of the armed forces of the commonwealth and such members' dependents, and shall allow, facilitate, and coordinate requested allotments with the appropriate United States Property and Fiscal Office.

SECTION 59.  Section 90 of said chapter 33, as appearing in the 2016 Official Edition, is hereby amended by striking out, in lines 2 and 3, the words “, including the state judge advocate and a medical or medical service officer” and inserting in place thereof the following words:- with a grade of major or higher, including a judge advocate and a medical or medical service officer in the military forces of the commonwealth.

SECTION 60.  Said section 90 of said chapter 33, as so appearing, is hereby further amended by striking out the third sentence and inserting in place thereof the following sentence:- The board shall have the same power as the division of industrial accidents to take evidence, administer oaths, issue subpoenas and compel witnesses to attend, testify and produce books and papers.

SECTION 61.  Section 96 of said chapter 33, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- Organization and unit funds, subject to available appropriations, shall be maintained and conducted as the adjutant general may prescribe in regulations.

SECTION 62.  Said section 96 of said chapter 33, as so appearing, is hereby further amended by inserting after the word “general” in line 14, the following words:-  or a designee.

SECTION 63.  Said chapter 33 is hereby further amended by striking out section 97, as so appearing, and inserting in place thereof the following section:-

Section 97.  There may annually, subject to available appropriations, be allowed and paid quarterly from money appropriated for the purpose in substantially equal installments under regulations as may be promulgated by the adjutant general to the organizations and units of the armed forces of the commonwealth, when not in federal service, appropriate sums for administration and maintenance. 

SECTION 64.  Said chapter 33 is hereby further amended by striking out section 98, as so appearing, and inserting in place thereof the following section:-

Section 98.  The uniform of the military forces of the commonwealth shall be prescribed by the adjutant general or applicable regulations. No uniforms shall be provided by the commonwealth without a special appropriation.

SECTION 65.  Section 101 of said chapter 33, as so appearing, is hereby amended by striking out, in lines 2 and 3, the words “and the cadets of the Massachusetts military academy”.

SECTION 66.  Said section 101 of said chapter 33, as so appearing, is hereby further amended by striking out, in line 7, the words “commander-in-chief” and inserting in place thereof the following words:- adjutant general.

SECTION 67.  Section 102 of said chapter 33, as so appearing, is hereby amended by striking out, in line 5, the words “ordered by the commander-in-chief” and inserting in place thereof the following words:- directed by the adjutant general.

SECTION 68.  Said chapter 33 is hereby further amended by striking out section 105, as so appearing, and inserting in place thereof the following section:-

Section 105.  An officer or enlisted person of the military forces of the commonwealth who damages, loses through carelessness or neglect, carries away or unlawfully disposes of military property of the United States or of the commonwealth, shall be charged with the money value thereof, as determined by an investigating officer or board of survey detailed or appointed by the adjutant general to investigate and report upon the case. Such investigating officer or board of survey shall submit with the report all the evidence bearing upon the loss, damage or disposition of the property.

SECTION 69.  Section 106 of said chapter 33 is hereby repealed.

SECTION 70.  Section 108 of said chapter 33, as so appearing, is hereby amended by striking out, in lines 5 and 9, the words “commander-in-chief” and inserting in place thereof, in each instance, the following words:- adjutant general.

SECTION 71.  Section 109 of said chapter 33, as so appearing, is hereby amended by striking out, in line 6, the words “commander-in-chief” and inserting in place thereof the following words:- the adjutant general.

SECTION 72.  Section 111 of said chapter 33, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- A service member shall be responsible for military property of the United States and the commonwealth that the service member receives and the service member shall not sell, loan or transfer the military property or any part of the property without the authority of the adjutant general.

SECTION 73.  Section 113 of said chapter 33, as so appearing, is hereby amended by striking out, in lines 9 and 11, the word “survey” and inserting in place thereof, in each instance, the following word:- investigation.

SECTION 74.  Said section 113 of said chapter 33, as so appearing, is hereby further amended by inserting after the word “the”, in line 13, the second time it appears, the following words:- military division of the.

SECTION 75.  Said chapter 33 is hereby further amended by striking out section 122, as so appearing, and inserting in place thereof the following section:-

Section 122.  The adjutant general may lease, rent or permit the use of an armory or part thereof for nonmilitary purposes, by any federal or state governmental entity, or any other user, under such restrictions and for such compensation, if any, as the adjutant general may by regulation prescribe. The adjutant general shall apply any compensation received to the cost of maintaining the armory.

SECTION 76.  Sections 123, 125, 127 to 129, inclusive, of said chapter 33 are hereby repealed.

SECTION 77.  Section 134 of said chapter 33, as so appearing, is hereby amended by striking out, in lines 5 and 6, the words “by the act of congress known as the National Defense Act” and inserting in place thereof the following words:- in Title 32 of the United States Code.

SECTION 78.  Section 135 of said chapter 33, as so appearing, is hereby amended by striking out, in lines 1 and 5, the words “commander-in-chief” and inserting in place thereof, in each instance, the following words:- adjutant general.

SECTION 79.  The General Laws are hereby further amended by inserting after chapter 33 the following chapter:-

CHAPTER 33A.

MASSACHUSETTS CODE OF MILITARY JUSTICE

PART I.  GENERAL PROVISIONS.

Article 1.  Definitions.

(a)  As used in this chapter, the following words shall, unless the context requires otherwise, have the following meanings:

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

“Apprehension”, the taking of a person into custody.

“Arrest”, the restraint of a person by an order that is not imposed as a punishment for an offense that directs the person to remain within certain specified limits.

“Cadet”, “candidate” or “midshipman”, 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 the state military forces.

“Classified information”, information or material that has been determined by an official of the United States or a state pursuant to law, executive order or regulation to require protection against unauthorized disclosure for reasons of national or state security, or any restricted data, as defined in section 11(y) of the Atomic Energy Act of 1954, 42 U.S.C. section 2014(y).

“Code”, this chapter.

“Commander” or “Commanding officer”, a commissioned officer of the state military forces; provided, however, that the term shall include an officer in charge only when that officer in charge is administering non-judicial punishment under article 15.

“Confinement”, the physical restraint of a person.

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

“Day”, a calendar day; provided, however, that the term “day” shall not be synonymous with the term “unit training assembly”; and provided further, that a punishment authorized by this article that is measured in terms of days shall, when served in a status other than annual field training, be construed to mean succeeding duty days.

“Duty status”, a type of duty that is not in federal service and that is not full-time duty in the active service of the state that is under an order issued by authority of law and includes travel to and from such duty.

“Enlisted member”, a person in an enlisted grade.

“Judge advocate”, a commissioned officer of the organized state military forces who is a member in good standing of the bar of the highest court of a state, and is: (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; or (B) certified as a non-federally recognized judge advocate, by the state judge advocate, as that term is used in section 15 of chapter 33, as competent to perform such military justice duties required by this code; provided, however, that if there is no such judge advocate available, then such certification may be made by such senior judge advocate of the commander of another force in the state military forces, as the convening authority directs.

“Military court”, a court-martial or a court of inquiry.

“Military judge”, an official of a general or special court-martial detailed in accordance with article 26.

“Military offenses”, offenses prescribed under articles 77, 78, 80 , 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104 105, 107, 108, 109, 110, 112, 112A, 113, 114, 115, 116, 117, 132, 133, 134 of this code.

“National security”, the national defense and foreign relations of the United States.

“Officer”, a commissioned or warrant officer.

“Officer in charge”, a member of the naval militia, the Navy, the Marine Corps or the Coast Guard designated as such by appropriate authority.

“Record”,  an official written transcript, written summary or other writing, used in connection with the proceedings of a court-martial and relating to said proceedings; or an official audiotape, videotape, digital image or file, or similar material from which sound, or sound and visual images, depicting the proceedings is reproduced.

“Senior force commander”, the commander of the same force of the state military forces as the accused.

“Senior force judge advocate”, 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.

“State”, one of the several states, the District of Columbia, the Commonwealth of Puerto Rico, Guam or the U.S. Virgin Islands.

“State active duty”, full-time duty in the state military forces under an order of the commander-in-chief or otherwise issued by authority of law, and paid by state funds, including travel to and from such duty.

“State military forces”, the National Guard of Massachusetts, as defined in title 32 of the United States Code or any other military force organized under the constitution and laws of the commonwealth; provided, however, that the term shall not include the unorganized militia when not in a status subjecting them to exclusive jurisdiction under chapter 47 of title 10 of the United States Code; and provided further, that the term shall not include unorganized militia or any other name of any state force that does not meet this definition.

“Superior commissioned officer”, a commissioned officer superior in rank or command.

Article 2.  Persons subject to this code; jurisdiction.

(a)  This code shall apply to all members of the state military forces. This code shall not apply to members serving in a title 10 status.

(b)  Subject matter jurisdiction shall be established if a nexus exists between an offense, either military or non-military, and the state military force. Courts-martial have primary jurisdiction of military offenses as defined in article 1. A civilian court has primary jurisdiction of a non-military offense when an act or omission violates both this code and local criminal law, foreign or domestic. In such a 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.

Article 3.  Jurisdiction to try certain personnel.

(a)  Each person discharged from the state military forces who is later charged with having fraudulently obtained a discharge is, subject to article 43, 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.

(b)  No person who has deserted from the state military forces may be relieved from amenability to the jurisdiction of this code by virtue of a separation from any later period of service.

Article 5.  Territorial applicability of the code.

(a)  This code shall apply at all times and in all places subject to jurisdiction as provided in article 2 or, if not in a duty status, when there is a nexus between the act or omission constituting the offense and the efficient functioning of the state military forces; provided, however, that this grant of military jurisdiction shall not preclude or limit civilian jurisdiction over an offense, which is limited only by the prohibition of double jeopardy.

(b)  Courts-martial and courts of inquiry may be convened and held in units of the state military forces while those units are serving outside the commonwealth with the same jurisdiction and powers as to persons subject to this code as if the proceedings were held inside the commonwealth, and offenses committed outside the commonwealth may be tried and punished either inside or outside the commonwealth.

Article 6.  Judge Advocates.

(a)  The senior force judge advocates in each of the commonwealth’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.

(b)  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.

(c)  No person who has acted as a 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.

PART II.  APPREHENSION AND RESTRAINT.

Article 7.  Apprehension.

(a)  A person authorized by this code or by 10 U.S.C. section 801, et seq., or by regulations promulgated thereto, to apprehend persons subject to this code, any marshal of a court-martial appointed pursuant 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.

(b)  Commissioned officers, warrant officers, petty officers and noncommissioned officers shall 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 therein.

(c)  If an offender is apprehended outside the commonwealth, the offender’s return to the area shall be in accordance with extradition procedures or by reciprocal agreement.

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

Article 9.  Imposition of restraint.

(a)  An enlisted member may be ordered into arrest or confinement by a 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.

(b)  A commissioned officer, a warrant officer or a civilian subject to this code or to trial under this code 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 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)  This article 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.

Article 10.  Restraint of persons charged with offenses.

A person subject to this code charged with an offense under this code may be ordered into arrest or confinement, as circumstances may require. When a 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.

Article 11.  Place of confinement; Reports and receiving of prisoners.

(a)  If a person subject to this code is confined before, during or after trial, confinement shall be in a state, county or local civilian or military confinement facility.

(b)  No person authorized to receive prisoners pursuant to subsection (a) may refuse to receive or keep a 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 that officer, of the offense charged against the prisoner, unless otherwise authorized by law.

(c)  Every person authorized to receive prisoners pursuant to subsection (a) to whose charge a prisoner is committed shall, not later than 24 hours after that commitment or as soon as the person is relieved 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.

Article 12.  Confinement with enemy prisoners prohibited.

No member of the state military forces may be placed in confinement in immediate association with enemy prisoners.

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 such 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.

Article 14.  Delivery of offenders to civil authorities.

(a)  A person subject to this code accused of an offense against civil authority may be delivered, upon request, to the civil authority for trial or confinement.

(b)  When delivery under this article is made to a 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.

PART III.  NON-JUDICIAL PUNISHMENT.

Article 15.  Commanding officer’s non-judicial punishment.

(a)  Under such regulations as prescribed, a commanding officer or, for purposes of this article, officer-in-charge, may impose disciplinary punishments for minor offenses without the intervention of a court-martial pursuant to this article. The commander-in-chief, the adjutant general or an officer of a general or flag rank in command may delegate the powers under this article to a principal assistant who is a member of the state military forces.

(b)  A commanding officer may impose upon enlisted members of the officer’s command:

(1)  an admonition;

(2)  a reprimand;

(3)  the withholding of privileges for not more than 6 months;

(4)  the forfeiture of not more than 7 days’ pay;

(5)  a fine of not more than 7 days’ pay;

(6)  a reduction to the next inferior pay grade, if the grade from which the enlisted member is demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction;

(7)  extra duties, including fatigue or other duties, for not more than 14 days, which need not be consecutive; and

(8)  restriction to certain specified limits, with or without suspension from duty, for not more than 14 days, which need not be consecutive.

(c)  A commanding officer of the grade of major, lieutenant commander or above may impose upon enlisted members of the officer’s command:

(1)  any punishment authorized in paragraphs (1) to (3), inclusive, of subsection (b);

(2)  the forfeiture of not more than 1/2 of 1 month’s pay for 2 months;

(3)  a fine of not more than 1 month’s pay;

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

(5)  extra duties, including fatigue or other duties, for not more than 45 days, which need not be consecutive; and

(6)  restriction to certain specified limits, with or without suspension from duty, for not more than 60 days, which need not be consecutive.

(d)  The commander-in-chief, the adjutant general, an officer exercising general court-martial convening authority or an officer of a general or flag rank in command may impose:

(1)  upon officers of the officer’s command:

(A)  any punishment authorized in paragraphs (1), (2), (3) and (6) of subsection (c); and

(B)  arrest  in  quarters  for  not  more  than  30  days,  which  need  not  be consecutive; and

(2)  upon enlisted members of the officer’s command, any punishment authorized in subsection (c).

(e)  Whenever punishments are combined to run consecutively, the total length of the combined punishment shall not exceed the authorized duration of the longest punishment in the combination, and there shall be an apportionment of punishments so that no single punishment in the combination exceeds its authorized length under this article.

(f)  Prior to the offer of non-judicial punishment, the commanding officer shall determine whether arrest in quarters or restriction shall be considered as punishments. Should the commanding officer determine that the punishment options may include arrest in quarters or restriction, the accused shall be notified of the right to demand trial by court-martial. Should the commanding officer determine that the punishment options will not include arrest in quarters or restriction, the accused shall be notified that there is no right to trial by court-martial in lieu of non-judicial punishment.

(g)  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:

(1)  mitigate reduction in grade to forfeiture of pay;

(2)  mitigate arrest in quarters to restriction; or

(3)  mitigate extra duties to restriction.

The mitigated punishment shall not be for a greater period of time 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 article by the officer who imposed the punishment mitigated.

(h)  A person punished under this article 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 within 15 days, 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 subsection (g) 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.

(i)  The imposition and enforcement of disciplinary punishment under this article for an 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 article. Evidence of a disciplinary punishment that has been enforced may be shown by the accused upon trial and, when so shown, shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty.

(j)  Whenever a punishment of forfeiture of pay is imposed under this article, the forfeiture may apply to pay accruing before, on or after the date that punishment is imposed.

(k)  Regulations may prescribe the form of records to be kept of proceedings under this article and may prescribe that certain categories of those proceedings shall be in writing.

PART IV.  COURT-MARTIAL JURISDICTION.

Article 16.  Courts-martial classified.

The 3 kinds of courts-martial in the state military forces shall be:

(1)  general courts-martial, consisting of:

(A)  a military judge and not less than 5 members; or

(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)  special courts-martial, consisting of:

(A)  a military judge and not less than 3 members; or

(B)  only a military judge, if one has been detailed to the court, and the accused under the same conditions as those prescribed in paragraph (B) of subsection (1) so requests; and

(3)  summary courts-martial, consisting of 1 commissioned officer.

Article 17.  Jurisdiction of courts-martial in general.

Each component of the state military forces shall have court-martial jurisdiction over all members of the particular component who are subject to this code. The army and air national guard of the commonwealth shall have court-martial jurisdiction over all members subject to this code.

Article 18.  Jurisdiction of general courts-martial.

General courts-martial shall have jurisdiction to try persons subject to this code for an offense made punishable by this code, and may, under such limitations as the commander-in-chief may prescribe, adjudge any punishment not forbidden by this code.

Article 19.  Jurisdiction of special courts-martial.

Special courts-martial shall have jurisdiction to try persons subject to this code for an offense made punishable by this code, and may, under such limitations as the commander-in-chief may prescribe, adjudge any punishment not forbidden by this code except dishonorable discharge, dismissal, confinement for more than 1 year, forfeiture of pay exceeding 2/3 pay per month or forfeiture of pay for more than 1 year.

Article 20.  Jurisdiction of summary courts-martial.

(a)  Summary courts-martial shall have jurisdiction to try persons subject to this code, except officers, cadets, candidates and midshipmen, for any offense made punishable by this code under such limitations as the commander-in-chief may prescribe.

(b)  No person with respect to whom summary courts-martial have jurisdiction shall be brought to trial before a summary court-martial if that person objects thereto. 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 such limitations as the commander-in-chief may prescribe, adjudge any punishment not forbidden by this code except dismissal, dishonorable or bad-conduct discharge, confinement for more than 1 month, restriction to specified limits for more than 2 months, or forfeiture of more than 2/3 of 1 month’s pay.

PART V.  APPOINTMENT AND COMPOSITION OF COURTS-MARTIAL.

Article 22.  Who may convene general courts-martial.

(a)  General courts-martial may be convened by the:

(1)  commander-in-chief;

(2)  adjutant general;

(3)  commanding officer of a force of the state military forces, including the air component commander or land component commander;

(4)  commanding officer of a division or a separate brigade; or

(5)  commanding officer of a separate wing.

(b)  If a commanding officer is an accuser, the court shall be convened by superior competent authority and may, in any case, be convened by such superior authority if considered desirable by that authority.

Article 23.  Who may convene special courts-martial.

(a)  Special courts-martial may be convened by:

(1)  any person who may convene a general court-martial;

(2)  the commanding officer of a garrison, fort, post, camp, station, air national guard base or naval base or station;

(3)  the commanding officer of a brigade, regiment, detached battalion or corresponding unit of the army;

(4)  the commanding officer of a wing, group, separate squadron or corresponding unit of the air force; or

(5)  the  commanding  officer  or  officer  in  charge  of  any  other  command  when empowered by the adjutant general.

(b)  If an officer authorized under subsection (a) to convene special courts-martial is an accuser, the court shall be convened by superior competent authority and may, in any case, be convened by such superior authority if considered desirable by that authority.

Article 24.  Who may convene summary courts-martial.

(a)  Summary courts-martial may be convened by:

(1)  a person who may convene a general or special court-martial;

(2)  the commanding officer of a detached company or other detachment, or corresponding unit of the army;

(3)  the commanding officer of a detached squadron or other detachment, or corresponding unit of the air force; or

(4)  the commanding officer or officer in charge of any other command when empowered by the adjutant general.

(b)  When only 1 commissioned officer is present with a command or detachment, that officer shall be the summary court-martial of that command or detachment and shall hear and determine all summary court-martial cases. Summary courts-martial may, however, be convened in any case by superior competent authority if considered desirable by that authority.

Article 25.  Who may serve on courts-martial.

(a)  A commissioned officer of the state military forces shall be eligible to serve on all courts-martial for the trial of a person subject to this code.

(b)  A warrant officer of the state military forces shall be eligible to serve on general and special courts-martial for the trial of a person subject to this code, other than a commissioned officer.

(c)  An enlisted member of the state military forces who is not a member of the same unit as the accused shall be eligible to serve on general and special courts-martial for the trial of an enlisted member subject to this code, but that member shall serve as a member of a court only if, before the conclusion of a session called by the military judge under subsection (a) of article 39 prior to 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 orally on the record or in writing that enlisted members serve on it. After such a request, the accused may not be tried by a general or special court-martial the membership of which does not include enlisted members in a number comprising at least 1/3 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, to be appended to the record, stating why the enlisted members could not be obtained. For purposes of this article, “unit” shall mean a regularly organized body of the state military forces not larger than a company, a squadron, a division of the naval militia or a body corresponding to 1 of them.

(d)  No person subject to this code may be tried by a court-martial if a member of that court-martial is junior to the accused in rank or grade, unless non-junior members cannot be obtained on account of physical conditions or military exigencies.

(e)  When convening a court-martial, the convening authority shall detail as members thereof such members of the state military forces as, in the convening authority’s opinion, are best qualified for the duty by reason of age, education, training, experience, length of service and judicial temperament. No member of the state military forces is eligible to serve as a member of a general or special court-martial if that member is the accuser, a witness or has acted as investigating officer or as counsel in the same case.

(f)  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. The convening authority may delegate the authority under this subsection to a judge advocate or to any other principal assistant.

Article 26.  Military judge of a general or special court-martial.

(a)  A military judge shall be detailed to each general and special court-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 shall be:

(1)  an active or retired commissioned officer of an organized state military force;

(2)  a member in good standing of the bar of the highest court of a state or a member of the bar of a federal court for not less than 5 years; and

(3)  certified as qualified for duty as a military judge by the senior force judge advocate which is the same force as the accused.

(c)  If a military judge is not a member of the bar of the highest court of the commonwealth, the military judge shall be considered admitted pro hac vice, subject to filing a certificate with the senior force judge advocate of the same force as the accused, setting forth the qualifications provided in subsection (b).

(d)  The military judge of a general or special court-martial shall be designated by the senior force judge advocate of the same force as the accused, or a designee, for detail by the convening authority. Neither the convening authority nor a staff member of the convening authority shall prepare or review a report concerning the effectiveness, fitness or efficiency of the military judge so detailed, which relates to performance of duty as a military judge.

(e)  No person shall act as military judge in a case if that person is the accuser, a witness or has acted as investigating officer or 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, nor vote with the members of the court.

(g)  A military judge need not be a member of the same military force or the same branch of the convening authority or accused.

Article 27.  Detail of trial counsel and defense counsel.

(a) (1)  For each general and special court-martial, the authority convening the court shall detail trial counsel, defense counsel and such assistants as are appropriate.

(2)  A person who has acted as investigating officer, military judge, witness or court member in a case may not act later as trial counsel, assistant trial counsel or, unless expressly requested by the accused, defense counsel or assistant or associate defense counsel in the same case. A person who has acted for the prosecution may not act later in the same case for the defense. A person who has acted for the defense may not act later in the same case for the prosecution.

(b)  Except as provided in subsection (c), trial counsel or defense counsel detailed for a general or special court-martial shall be:

(1)  a judge advocate, as defined in article 1; and

(2)  in the case of trial counsel, a member in good standing of the bar of the highest court of the state where the court-martial is held.

(c)  If defense counsel is not a member of the bar of the highest court of the commonwealth, the defense counsel shall be deemed admitted pro hac vice, subject to filing a certificate with the military judge setting forth the qualifications that counsel is:

(1)  a commissioned officer of the armed forces of the United States or a component thereof; and

(2)  a member in good standing of the bar of the highest court of a state; and

(3)  certified as a judge advocate in the judge advocate general’s corps of the army, air force, navy or the marine corps; or

(4)  a judge advocate, as defined in article 1.

Article 28.  Detail or employment of reporters and interpreters.

Under such regulations as may be prescribed, the convening authority of a general or special court-martial or court of inquiry shall detail or employ qualified court reporters, who shall record the proceedings and testimony taken before that court and may detail or employ interpreters who shall interpret for the court.

Article 29.  Absent and additional members.

(a)  No member of a general or special court-martial may be absent or excused after the court has been assembled for the trial of the accused unless the member is excused as a result of a challenge, or by the military judge for physical disability or other good cause or by order of the convening authority for good cause.

(b)  Whenever a general court-martial, other than a general court-martial composed of a military judge only, is reduced below 5 members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not less than 5 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)  Whenever a special court-martial, other than a special court-martial composed of a military judge only, is reduced below 3 members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not less than 3 members. The trial shall proceed with the new members present as if no evidence had been introduced previously at the trial, unless a verbatim record of the evidence previously introduced before the members of the court or a stipulation thereof is read to the court in the presence of the military judge, 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 good cause, the trial shall proceed, subject to any applicable conditions of clause (B) of paragraph (1) or clause (B) of paragraph (2) of article 16, 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 thereof is read in court in the presence of the new military judge, the accused and counsel for both sides.

PART VI.  PRE-TRIAL PROCEDURE.

Article 30.  Charges and specifications.

(a)  Charges and specifications shall be signed by a person subject to this code under oath before a commissioned officer authorized by subsection (a) of article 136 to administer oaths and shall state:

(1)  that the signer has personal knowledge of, or has investigated, the matters set forth therein; and

(2)  that they are true in fact to the best of the signer’s knowledge and belief.

(b)  Upon the referring of charges, the proper authority shall take immediate steps to determine what disposition should be made thereof in the interest of justice and discipline, and the person accused shall be informed of the charges as soon as practicable.

Article 31.  Compulsory self-incrimination prohibited.

(a)  A person subject to this code shall not compel a person to incriminate himself or herself or to answer a question the answer to which may tend to incriminate that person.

(b)  A person subject to this code shall not interrogate or request a statement from an accused or a person suspected of an offense without first informing that person of the nature of the accusation and advising that person that the person does not have to make any statement regarding the offense of which the person is accused or suspected and that any statement made by the person may be used as evidence against the person in a trial by court-martial.

(c)  A person subject to this code shall not compel a person to make a statement or produce evidence before a military court if the statement or evidence is not material to the issue and may tend to degrade the person.

(d)  No statement obtained from a person in violation of this article or through the use of coercion, unlawful influence or unlawful inducement may be received in evidence against the person in a trial by court-martial.

Article 32.  Investigation.

(a) (1)  No charge or specification may be referred to a general court-martial for trial until completion of a preliminary hearing, unless such hearing is waived by the accused.

(2)  The purpose of the preliminary hearing shall be limited to the following:

(A)  determining whether there is probable cause to believe an offense has been committed and the accused committed the offense;

(B)  determining whether the convening authority has court-martial jurisdiction over the offense and the accused;

(C)  considering the form of charges; and

(D)  recommending the disposition that should be made of the case.

(b) (1)  A preliminary hearing held under subsection (a) shall be conducted by an impartial judge advocate certified under subsection (b) of article 27, whenever practicable, or, in exceptional circumstances warranted by the interests of justice, by an impartial hearing officer who is not a judge advocate. If the hearing officer is not a judge advocate, a judge advocate certified under subsection (b) of article 27 shall be available to provide legal advice to the hearing officer.

(2)  Whenever practicable, when the judge advocate or other hearing officer is detailed to conduct the preliminary hearing, the officer shall be equal to or senior in grade to military counsel detailed to represent the accused or the government at the preliminary hearing.

(c)  After conducting a preliminary hearing under subsection (a), the judge advocate or other officer conducting the preliminary hearing shall prepare a report that addresses the matters specified in subsections (a) and (f).

(d) (1)  The accused shall be advised of the charges against the accused and of the accused’s right to be represented by counsel at the preliminary hearing under subsection (a). The accused has the right to be represented at the preliminary hearing as provided in article 38 and in regulations prescribed under that article.

(2)  The accused may cross-examine witnesses who testify at the preliminary hearing and present additional evidence in defense and mitigation, relevant to the limited purposes of the hearing, as provided for in paragraph (4) of this subsection and in paragraph (2) of subsection (a). 

(3)  A victim may not be required to testify at a preliminary hearing. A victim who declines to testify shall be considered unavailable for purposes of the preliminary hearing.

(4)  The presentation of evidence and examination, including cross-examination, of witnesses at a preliminary hearing shall be limited to matters relevant to the purposes of the hearing, as provided in paragraph (2) of subsection (a).

(e)  A preliminary hearing under subsection (a) shall be recorded by a suitable recording device. The victim may request the recording and shall have access to the recording.

(f)  If evidence adduced in a preliminary hearing under subsection (a) indicates that the accused committed an uncharged offense, the hearing officer may consider the subject matter of that offense without the accused having first been charged with the offense if the accused:

(1)  is present at the preliminary hearing;

(2)  is informed of the nature of each uncharged offense considered; and

(3)  is afforded opportunities for representation, cross-examination and presentation consistent with subsection (d).

(g)  This article shall be binding on all persons administering this chapter, but failure to follow the requirements shall not constitute jurisdictional error.

(h)  For purposes of this article, the term “victim” shall mean a person who:

(1)  is alleged to have suffered a direct physical, emotional or pecuniary harm as a result of the matters set forth in a charge or specification being considered; and

(2)  is named in 1 of the specifications.

Article 33.  Forwarding of charges.

When a person is held for trial by general court-martial, the commanding officer shall, not later than 8 calendar days after the accused is ordered into arrest or confinement, if practicable, forward the charges, together with the investigation and allied papers, to the person exercising general court-martial jurisdiction. If that is not practicable, the commanding officer shall report in writing to that person the reasons for delay.

Article 34.  Advice of judge advocate and reference for trial.

(a)  Before directing the trial of a charge by general court-martial, the convening authority shall refer it to a judge advocate for consideration and advice. The convening authority may not refer a specification under a charge to a general court-martial for trial unless the convening authority has been advised in writing by a judge advocate that:

(1)  the specification alleges an offense under this code;

(2)  the  specification  is  warranted  by  the  evidence  indicated  in  the  report  of investigation under article 32 of this code, if there is such a report; and

(3)  a court-martial would have jurisdiction over the accused and the offense.

(b)  The advice of the judge advocate under subsection (a) with respect to a specification under a charge shall include a written and signed statement by the judge advocate:

(1)  expressing conclusions with respect to each matter set forth in subsection (a); and

(2)  recommending action that the convening authority take regarding the specification.

If the specification is referred for trial, the recommendation of the judge advocate shall accompany the specification.

(c)  If the charges or specifications are not correct formally 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.

Article 35.  Service of charges.

The trial counsel shall serve or caused to be served upon the accused a copy of the charges. A person shall not, against that person’s objection, be brought to trial before a general court-martial case before 10 days after the service of charges upon the accused, or in a special court-martial, before 6 days after the service of charges upon the accused.

PART VII.  TRIAL PROCEDURE.

Article 36.  Commander-in-chief or the adjutant general may prescribe rules.

Pretrial, trial and post-trial procedures, including modes of proof, for courts-martial cases arising under this code, and for courts of inquiry, may be prescribed by the commander-in-chief or the adjutant general by regulations, or as otherwise provided by law, which shall apply the principles of law and the rules of evidence generally recognized in military criminal cases in the courts of the armed forces but which may not be contrary to or inconsistent with this code.

Article 37.  Unlawfully influencing action of court.

(a)  No authority convening a general, special, or summary court-martial, nor any other commanding officer, or officer serving on the staff thereof, shall censure, reprimand or admonish the court or a member, the military judge or counsel thereof, with respect to the findings or sentence adjudged by the court or with respect to any other exercise of its or their functions in the conduct of the proceedings. No person subject to this code shall attempt to coerce or, by any unauthorized means, influence the action of a court-martial or court of inquiry or a member thereof, in reaching the findings or sentence in a case, or the action of any convening, approving, or reviewing authority with respect to their judicial acts. This subsection shall not apply with respect to:

(1)  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

(2)  statements and instructions given in open court by the military judge, summary court- martial officer 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 to determine whether a member of the state military forces is qualified to be advanced in grade, or in determining the assignment or transfer of a member of the state military forces, or in determining whether a member of the state military forces should be retained on active status, no person subject to this code shall, in preparing any such report:

(1)  consider or evaluate the performance of duty of any such member as a member of a court-martial or witness therein; or

(2)  give a less favorable rating or evaluation of any counsel for the accused because of zealous representation before a court-martial.

Article 38.  Duties of trial counsel and defense counsel.

(a)  The trial counsel of a general or special court-martial shall be a member in good standing of the bar of the commonwealth and shall prosecute in the name of the commonwealth, and shall, under the direction of the court, prepare the record of the proceedings.

(b) (1)  The accused has the right to be represented in defense before a general or special court-martial or at an investigation under article 32 as provided in this subsection.

(2)  The accused may be represented by civilian counsel at the provision and expense of the accused.

(3)  The accused may be represented:

(A)  by military counsel detailed under article 27; or

(B)  by military counsel of the accused’s own selection if that counsel is reasonably available as determined under paragraph (7).

(4)  If the accused is represented by civilian counsel, military counsel detailed or selected under paragraph (3) shall act as associate counsel unless excused at the request of the accused.

(5)  Except as provided under paragraph (6), if the accused is represented by military counsel of the accused’s own selection under clause (B) of paragraph (3), any military counsel detailed under clause (A) of paragraph (3) shall be excused.

(6)  The accused is not entitled to be represented by more than one military counsel. However, the person authorized under regulations prescribed under article 27 of this code to detail counsel, in that person’s sole discretion:

(A)  may detail additional military counsel as assistant defense counsel; and

(B)  if the accused is represented by military counsel of the accused’s own selection under clause (B) of paragraph (3), may approve a request from the accused that military counsel detailed under clause (A) of paragraph (3) act as associate defense counsel.

(7)  The senior force judge advocate of the same force of which the accused is a member, shall determine whether the military counsel selected by an accused is reasonably available.

(c)  In any court-martial proceeding resulting in a conviction, the defense counsel:

(1)  may forward for attachment to the record of proceedings a brief of such matters as counsel determines should be considered in behalf of the accused on review, including any objection to the contents of the record which counsel considers appropriate;

(2)  may assist the accused in the submission of any matter under article 60 of this code; and

(3)  may take other action authorized by this code.

Article 39.  Sessions.

(a)  At any time after the service of charges that have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject to article 35, call the court into session without the presence of the members for the purpose of:

(1)  hearing and determining motions raising defenses or objections that are capable of determination without trial of the issues raised by a plea of not guilty;

(2)  hearing and ruling upon any matter that may be ruled upon by the military judge under this code, whether or not the matter is appropriate for later consideration or decision by the members of the court;

(3)  holding the arraignment and receiving the pleas of the accused; and

(4)  performing any other procedural function that does not require the presence of the members of the court under this code. These proceedings shall be conducted in the presence of the accused, the defense counsel and the trial counsel and shall be made a part of the record..

(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 the military judge.

Article 40.  Continuances.

The military judge of any court-martial may, for reasonable cause, grant a continuance to any party for such time, and as often, as may appear to be just.

Article 41.  Challenges.

(a) (1)  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 the court shall determine the relevancy and validity of challenges for cause and may not receive a challenge to more than 1 person at a time. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused are offered.

(2)  If exercise of a challenge for cause reduces the court below the minimum number of members required by article 16, all parties shall, notwithstanding article 29, either exercise or waive any challenge for cause then apparent against the remaining members of the court before additional members are detailed to the court. However, peremptory challenges shall not be exercised at that time.

(b) (1)  Each accused and the trial counsel are entitled initially to 3 peremptory challenges of members of the court. The military judge may not be challenged except for cause.

(2)  If exercise of a peremptory challenge reduces the court below the minimum number of members required by article 16, the parties shall, notwithstanding article 29, either exercise or waive any remaining peremptory challenge, not previously waived, against the remaining members of the court before additional members are detailed to the court.

(3)  Whenever additional members are detailed to the court, and after any challenges for cause against such additional members are presented and decided, each accused and the trial counsel are entitled to 3 peremptory challenges against members not previously subject to peremptory challenge.

Article 42.  Oaths or Affirmations.

(a)  Before performing their respective duties, military judges, general and special courts-martial members, trial counsel, defense counsel, reporters and interpreters shall take an oath or affirmation in the presence of the accused to perform their duties faithfully. The form of the oath or affirmation, the time and place of the taking thereof, the manner of recording the same and whether the oath or affirmation shall be taken for all cases in which these duties are to be performed or for a particular case shall be as prescribed in regulation or as provided by law. These regulations may provide that an oath or affirmation to perform faithfully the duties as a military judge, trial counsel or defense counsel may be taken at any time by any judge advocate or other person certified or designated to be qualified or competent for the duty, and if such an oath or affirmation 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 under oath or affirmation.

Article 43.  Statute of limitations.

(a)  A person charged with absent without leave or missing movement may be tried and punished at any time without limitation.

(b) (1)  Except as otherwise provided in this article, a person charged with an offense shall not be liable to be tried by court-martial if the offense was committed more than 6 years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command.

(2)  A person charged with an offense shall not be liable to be punished under article 15 if the offense was committed more than 2 years before the imposition of punishment.

(c)  Periods in which the accused is absent without authority or fleeing from justice shall be excluded in computing the period of limitation prescribed in this article.

(d)  Periods in which the accused is absent from territory in which the United States has the authority to apprehend the accused, or in the custody of civil authorities, or in the hands of the enemy, shall be excluded in computing the period of limitation prescribed in this article.

(e)  When the United States is at war or when the commander-in-chief declares a state of emergency in accordance with state law, the running of a statute of limitations applicable to any offense under this chapter is suspended until 3 years after the termination of hostilities as proclaimed by the president of the United States, by a joint resolution of congress or by the commander-in-chief for offenses:

(1)  involving fraud or attempted fraud against the United States, any state or any agency of either in any manner, whether by conspiracy or not;

(2)  committed in connection with the acquisition, care, handling, custody, control or disposition of any real or personal property of the United States or any state; or

(3)  committed in connection with the negotiation, procurement, award, performance, payment, interim financing, cancellation or other termination or settlement, of any contract, subcontract or purchase order that is connected with or related to the prosecution of the war or with any disposition of termination inventory by any war contractor or government agency.

(f)  If charges or specifications are dismissed as defective or insufficient for any cause and the period prescribed by the applicable statute of limitations has expired or will expire within 180 days after the date of dismissal of the charges and specifications, trial and punishment under new charges and specifications are not barred by the statute of limitations if the new charges and specifications:

(1)  are received by an officer exercising summary court-martial jurisdiction over the command within 180 days after the dismissal of the charges or specifications; and

(2)  allege the same acts or omissions that were alleged in the dismissed charges or specifications, or allege acts or omissions that were included in the dismissed charges or specifications.

Article 44.  Former jeopardy.

(a)  No person shall, without the person’s consent, be tried a second time for the same offense.

(b)  No proceeding in which an accused has been found guilty by a court-martial upon any charge or specification is a trial for the purposes of this article until the finding of guilty has become final after review of the case has been fully completed.

(c)  A proceeding that, after the 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 shall be considered to be a trial in the sense of this article.

Article 45.  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 the accused has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if the accused fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though the accused 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 may be entered immediately without vote. This finding shall constitute the finding of the court unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event, the proceedings shall continue as though the accused had pleaded not guilty.

Article 46.  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 as prescribed by regulations and provided by law. Process issued in court-martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall apply the principles of law and the rules of courts-martial generally recognized in military criminal cases in the courts of the armed forces of the United States, but which may not be contrary to or inconsistent with this code. Process shall run to any part of the United States, or the territories, commonwealths and possessions, and may be executed by civil officers as prescribed by the laws of the place where the witness or evidence is located or of the United States.

Article 47.  Refusal to appear or testify.

(a)  Any person not subject to this code may be punished by the military court in the same manner as a criminal court of the state if the person:

(1)  has been duly subpoenaed to appear as a witness or to produce books and records before a court-martial or court of inquiry, or before any military or civil officer designated to take a deposition to be read in evidence before such a court;

(2)  has been duly paid or tendered the fees and mileage of a witness at the rates allowed to witnesses attending a criminal court of the state; and

(3)  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.

(b)  The fees and mileage of witnesses shall be advanced or paid out of the appropriations for the compensation of witnesses.

Article 48.  Contempt.

(a)  A military judge or summary court-martial officer may punish for contempt any person who uses any menacing word, sign or gesture in its presence or who disturbs its proceedings by any riot or disorder.

(b)  A person subject to this code may be punished for contempt by confinement not to exceed 30 days or a fine of $100 or both.

(c)  A person not subject to this code may be punished for contempt by a military court in the same manner as a criminal court of the state.

Article 49.  Depositions.

(a)  At any time after charges have been signed as provided in article 30, any party may take oral or written depositions unless the military judge or summary court-martial officer 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.

(b)  The party at whose insistence 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 upon 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, digital image or file or similar material, may be played in evidence before any military court, if it appears:

(1)  that the witness resides or is beyond the state in which the court is ordered to sit, or beyond 100 miles from the place of trial or hearing;

(2)  that the witness by reason of death, age, sickness, bodily infirmity, imprisonment, military necessity, non amenability to process or other reasonable cause is unable or refuses to appear and testify in person at the place of trial or hearing; or

(3)  that the present whereabouts of the witness is unknown.

Article 50.  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, may, if otherwise admissible under the rules of evidence, be read in evidence by any party before a court-martial 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)  Such testimony may be read in evidence only by the defense in cases extending to the dismissal of a commissioned officer.

(c)  Such testimony may also be read in evidence before a court of inquiry.

Article 50A.  Defense of lack of mental responsibility.

(a)  It is an affirmative defense in a trial by court-martial that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts. Mental disease or defect does not otherwise constitute a defense.

(b)  The accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence.

(c)  Whenever lack of mental responsibility of the accused with respect to an offense is properly at issue, the military judge shall instruct the members of the court as to the defense of lack of mental responsibility under this article and charge them to find the accused:

(1)  guilty;

(2)  not guilty; or

(3)  not guilty only by reason of lack of mental responsibility.

(d)  In the case of a court-martial composed of a military judge only or a summary court-martial officer, whenever lack of mental responsibility of the accused with respect to an offense is properly at issue, the military judge or summary court-martial officer shall find the accused:

(1)  guilty;

(2)  not guilty; or

(3)  not guilty only by reason of lack of mental responsibility.

(e)  Notwithstanding the provisions of article 52, the accused shall be found not guilty only by reason of lack of mental responsibility if:

(1)  a majority of the members of the court-martial present at the time the vote is taken determines that the defense of lack of mental responsibility has been established; or

(2)  in the case of a court-martial composed of a military judge only or a summary court-martial officer, the military judge or summary court-martial officer determines that the defense of lack of mental responsibility has been established.

Article 51.  Voting and rulings.

(a)  Voting by members of a general or special court-martial on the findings and on the sentence 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 forthwith announce the result of the ballot to the members of the court.

(b)  The military judge shall rule upon all questions of law and all interlocutory questions arising during the proceedings. Any such ruling made by the military judge upon any question of law or any interlocutory question other than the factual issue of mental responsibility of the accused is final and constitutes the ruling of the court. However, the military judge may change the ruling at any time during the trial. Unless the ruling is final, if any member objects thereto, the court shall be cleared and closed and the question decided by a voice vote as provided in article 52, beginning with the junior in rank.

(c)  Before a vote is taken on the findings, the military judge shall, in the presence of the accused and counsel, 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 the accused’s 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 the accused 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; and

(4)  that the burden of proof to establish the guilt of the accused beyond reasonable doubt is upon the state.

(d)  Subsections (a), (b) and (c) shall 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 shall in addition, on request, find the facts specially. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein.

Article 52.  Number of votes required.

(a)  No person may be convicted of an offense except as provided in subsection (b) of article 45 or by the concurrence of all of the members present at the time the vote is taken.

(b)  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 that 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 relating to the question of the accused’s sanity is a determination in favor of the accused. A tie vote on any other question is a determination in favor of the accused.

Article 53.  Court to announce action.

A court-martial shall announce its findings and sentence to the parties as soon as determined.

Article 54.  Record of trial.

(a)  Each general and special 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 the military judge’s 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 the trial counsel’s 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 that would impose such a duty on a member under this subsection.

(b) (1)  A complete verbatim record of the proceedings and testimony shall be prepared in each general and special court-martial case resulting in a conviction; and

(2)  in all other court-martial cases, the record shall contain such matters as may be prescribed by regulations.

(c)  Each summary court-martial shall keep a separate record of the proceedings in each case and the record shall be authenticated in the manner as may be prescribed by regulations.

(d)  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.

PART VIII.  SENTENCES.

Article 55.  Cruel and unusual punishments prohibited.

Punishment by flogging or by branding, marking or tattooing on the body or any other cruel or unusual punishment may not be adjudged by a court-martial or inflicted upon any person subject to this code. The use of irons, single or double, except for the purpose of safe custody, is prohibited.

Article 56.  Maximum limits.

The punishment that a court-martial may direct for an offense may not exceed such limits as prescribed by this code, but in no instance may a sentence exceed more than 10 years for a military offense, nor shall a sentence of death be adjudged. A conviction by general court-martial of any military offense for which an accused may receive a sentence of confinement for more than 1 year is a felony offense. Except for convictions by a summary court-martial, all other military offenses are misdemeanors. Any conviction by a summary court-martial is not a criminal conviction. The limits of punishment for violations of the punitive articles prescribed herein shall be as prescribed by the manual for courts-martial of the commonwealth in effect at the time of the offense, but in no instance shall any punishment exceed 10 years confinement.

Article 57.  Effective date of sentences.

(a)  Whenever a sentence of a court-martial as lawfully adjudged and approved includes a forfeiture of pay or allowances in addition to confinement not suspended, the forfeiture may apply to pay or allowances becoming due on or after the date the sentence is approved by the convening authority. No forfeiture may extend to any pay or allowances accrued before that date.

(b)  Any period of confinement included in a sentence of a court-martial begins to run from the date the sentence is adjudged by the court-martial, but periods during which the sentence to confinement is suspended or deferred shall be excluded in computing the service of the term of confinement.

(c)  All other sentences of courts-martial are effective on the date ordered executed.

Article 57A.  Deferment of sentences.

(a)  On application by an accused who is under sentence to confinement that has not been ordered executed, the convening authority or, if the accused is no longer under that person’s jurisdiction, the person exercising general court-martial jurisdiction over the command to which the accused is currently assigned, may in that person’s sole discretion defer service of the sentence to confinement. The deferment shall terminate when the sentence is ordered executed. The deferment may be rescinded at any time by the person who granted it or, if the accused is no longer under that person’s jurisdiction, by the person exercising general court-martial jurisdiction over the command to which the accused is currently assigned.

(b) (1)  In any case in which a court-martial sentences an accused referred to in paragraph (2) to confinement, the convening authority may defer the service of the sentence to confinement, without the consent of the accused, until after the accused has been permanently released to the state military forces by a state, the United States or a foreign country referred to in that paragraph.

(2)  Paragraph (1) shall apply to a person subject to this code who:

(A)  while in the custody of a state, the United States or a foreign country is temporarily returned by that state, the United States or a foreign country to the state military forces for trial by court-martial; and

(B)  after the court-martial, is returned to that state, the United States or a foreign country under the authority of a mutual agreement or treaty.

(c)  In any case in which a court-martial sentences an accused to confinement and the sentence to confinement has been ordered executed, but in which review of the case under subsection (a) of article 67 is pending, the adjutant general may defer further service of the sentence to confinement while that review is pending.

Article 58.  Execution of confinement.

(a)  A sentence of confinement adjudged by a court-martial, whether or not the sentence includes discharge or dismissal, and whether or not the discharge or dismissal has been executed, may be carried into execution by confinement in any place authorized by this code. Persons so confined are subject to the same discipline and treatment as persons regularly confined or committed to that place of confinement.

(b)  No place of confinement may require payment of any fee or charge for so receiving or confining a person except as otherwise provided by law.

Article 58A.  Sentences: reduction in enlisted grade upon approval.

(a)  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 or confinement shall reduce that member to pay grade E-1, effective on the date of that 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 the person was deprived because of that reduction shall be restored, including pay and allowances.

Article 58B.  Sentences: forfeiture of pay and allowances during confinement.

(a) (1)  A court-martial sentence described in paragraph (2) shall result in the forfeiture of pay, or of pay and allowances, due that member during any period of confinement or parole. The forfeiture pursuant to this article shall take effect on the date determined under subsection (a) of article 57 and may be deferred as provided by that article. The pay and allowances forfeited, in the case of a general court-martial, shall be all pay and allowances due that member during such period and, in the case of a special court-martial, shall be of all pay due that member during such period.

(2)  A sentence shall be covered by this article if it includes:   (A) confinement for more than 6 months; or (B) confinement for not more than 6 months and a dishonorable or bad-conduct discharge or dismissal.

(b)  In a case involving an accused who has dependents, the convening authority or other person acting under article 60 may waive any or all of the forfeitures of pay and allowances required by subsection (a) for a period not to exceed 6 months. Any amount of pay or allowances that, except for a waiver under this subsection, would be forfeited shall be paid, as the convening authority or other person taking action directs, to the dependents of the accused.

(c)  If the sentence of a member who forfeits pay and allowances under subsection (a) is set aside or disapproved or, as finally approved, does not provide for a punishment referred to in paragraph (2) of subsection (a), the member shall be paid the pay and allowances that the member would have been paid, except for the forfeiture, for the period during which the forfeiture was in effect.

PART IX.  POST-TRIAL PROCEDURE AND REVIEW OF COURTS-MARTIAL.

Article 59.  Error of law; lesser included offense.

(a)  A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantive rights of the accused.

(b)  Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense.

Article 60.  Action by the convening authority.

(a)  The findings and sentence of a court-martial shall be reported promptly to the convening authority after the announcement of the sentence.

(b) (1)  The accused may submit to the convening authority matters for consideration by the convening authority with respect to the findings and the sentence. Any such submission shall be in writing. Except in a summary court-martial case, such a submission shall be made within 10 days after the accused has been given an authenticated record of trial and, if applicable, the recommendation of a judge advocate under subsection (d). In a summary court-martial case, such a submission shall be made within 7 days after the sentence is announced.

(2)  If the accused shows that additional time is required for the accused to submit such matters, the convening authority or other person taking action under this article, for good cause, may extend the applicable period under paragraph (1) for not more than an additional 20 days.

(3)  In a summary court-martial case, the accused shall be promptly provided a copy of the record of trial for use in preparing a submission authorized by paragraph (1).

(4)  The accused may waive the right to make a submission to the convening authority under paragraph (1). Such a waiver must be made in writing and may not be revoked. For the purposes of paragraph (2) of subsection (c), the time within which the accused may make a submission under this subsection shall be deemed to have expired upon the submission of such a waiver to the convening authority.

(c) (1)  The authority under this article to modify the findings and sentence of a court-martial is a matter of command prerogative involving the sole discretion of the convening authority. If it is impractical for the convening authority to act, the convening authority shall forward the case to a person exercising general court-martial jurisdictional who make take action under this article.

(2)  Action on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this article. Such action may be taken only after consideration of any matters submitted by the accused under subsection (b) or after the time for submitting such matters expires, whichever is earlier. The convening authority or other person taking such action, in that person’s sole discretion may approve, disapprove, commute, or suspend the sentence in whole or in part.

(3)  Action on the findings of a court-martial by the convening authority or other person acting on the sentence is not required. However, such person, in the person’s sole discretion may:

(A)  dismiss any charge or specification by setting aside a finding of guilty thereto; or

(B)  change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification.

(d)  Before acting under this article on any general or special court-martial case in which there is a finding of guilt, the convening authority or other person taking action under this article shall obtain and consider the written recommendation of a judge advocate. The convening authority or other person taking action under this article shall refer the record of trial to the judge advocate, and the judge advocate shall use such record in the preparation of the recommendation. The recommendation of the judge advocate shall include such matters as may be prescribed by regulation and shall be served on the accused, who may submit any matter in response under subsection (b). Failure to object in the response to the recommendation or to any matter attached to the recommendation waives the right to object thereto.

(e) (1)  The convening authority or other person taking action under this article, in the person’s sole discretion, may order a proceeding in revision or a rehearing.

(2)  A proceeding in revision may be ordered if there is an apparent error or omission in the record or if the record shows improper or inconsistent action by a court-martial with respect to the findings or sentence that can be rectified without material prejudice to the substantial rights of the accused. In no case, however, may a proceeding in revision

(A)  reconsider a finding of not guilty of any specification or a ruling which amounts to a finding of not guilty;

(B)  reconsider a finding of not guilty of any charge, unless there has been a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation of some article of this code; or

(C)  increase the severity of the sentence unless the sentence prescribed for the offense is mandatory.

(3)  A rehearing may be ordered by the convening authority or other person taking action under this article if that person disapproves the findings and sentence and states the reasons for disapproval of the findings. If such person disapproves the findings and sentence and does not order a rehearing, that person shall dismiss the charges. A rehearing as to the findings may not be ordered where there is a lack of sufficient evidence in the record to support the findings. A rehearing as to the sentence may be ordered if the convening authority or other person taking action under this subsection disapproves the sentence.

Article 61.  Withdrawal of appeal.

(a)  In each case subject to appellate review under this code, the accused may file with the convening authority a statement expressly withdrawing the right of the accused to such appeal. Such a withdrawal shall be signed by both the accused and the defense counsel of the accused and must be filed in accordance with appellate procedures as provided by law.

(b)  The accused may withdraw an appeal at any time in accordance with appellate procedures as provided by law.

Article 62.  Appeal by the State.

(a) (1)  In a trial by court-martial in which a punitive discharge may be adjudged, other than a finding of not guilty with respect to the charge or specification by the members of the court-martial or by a judge in a bench trial so long as it is not made in reconsideration, the state may appeal:

(A)  an order or ruling of the military judge that terminates the proceedings with respect to a charge or specification;

(B)  an order or ruling that excludes evidence that is substantial proof of a fact material in the proceeding;

(C)  an order or ruling that directs the disclosure of classified information;

(D)  an order or ruling that imposes sanctions for nondisclosure of classified information;

(E)  a refusal of the military judge to issue a protective order sought by the state to prevent the disclosure of classified information; or

(F)  a refusal by the military judge to enforce an order described in clause (E) that has previously been issued by appropriate authority.

(2)  An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within 72 hours of the order or ruling. Such notice shall include a certification by the trial counsel that the appeal is not taken for the purpose of delay and, if the order or ruling appealed is 1 that excludes evidence, that the evidence excluded is substantial proof of a fact material in the proceeding.

(3)  An appeal under this article shall be diligently prosecuted as provided by law.

(b)  An appeal under this article shall be forwarded to the court prescribed in article 67A. In ruling on an appeal under this article, that court may act only with respect to matters of law.

(c)  Any period of delay resulting from an appeal under this article shall be excluded in deciding any issue regarding denial of a speedy trial unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was frivolous and without merit.

Article 63.  Rehearings.

Each rehearing under this code shall take place before a court-martial composed of members who were not members of the court-martial which first heard the case. Upon a rehearing the accused may not be tried for any offense of which the accused was found not guilty by the first court-martial, and no sentence in excess of or more severe than the original sentence may be approved, unless the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings, or unless the sentence prescribed for the offense is mandatory. If the sentence approved after the first court-martial was in accordance with a pretrial agreement and the accused at the rehearing changes a plea with respect to the charges or specifications upon which the pretrial agreement was based, or otherwise does not comply with the pretrial agreement, the approved sentence as to those charges or specifications may include any punishment not in excess of that lawfully adjudged at the first court-martial.

Article 64.  Review by the Senior Force Judge Advocate.

(a)  Each general and special court-martial case in which there has been a finding of guilty shall be reviewed by the senior force judge advocate, or a designee. The senior force judge advocate, or designee, may not review a case under this subsection if that person has acted in the same case as an accuser, investigating officer, member of the court, military judge, or counsel or has otherwise acted on behalf of the prosecution or defense. The senior force judge advocate’s review shall be in writing and shall contain the following:

(1)  Conclusions as to whether:

(A)  the court had jurisdiction over the accused and the offense;

(B)  the charge and specification stated an offense; and

(C)  the sentence was within the limits prescribed as a matter of law.

(2)  A response to each allegation of error made in writing by the accused.

(3)  If the case is sent for action under subsection (b), a recommendation as to the appropriate action to be taken and an opinion as to whether corrective action is required as a matter of law.

(b)  The record of trial and related documents in each case reviewed under subsection (a) shall be sent for action to the adjutant general, if:

(1)  the judge advocate who reviewed the case recommends corrective action;

(2)  the sentence approved under subsection (c) of article 60 extends to dismissal, a bad-conduct or dishonorable discharge or confinement for more than 6 months; or

(3)  such action is otherwise required by regulations of the adjutant general.

(c) (1)  The adjutant general may:

(A)  disapprove or approve the findings or sentence, in whole or in part;

(B)  remit, commute or suspend the sentence in whole or in part;

(C)  except where the evidence was insufficient at the trial to support the findings, order a rehearing on the findings, on the sentence, or on both; or

(D)  dismiss the charges.

(2)  If a rehearing is ordered but the convening authority finds a rehearing impracticable, the convening authority shall dismiss the charges.

(3)  If the opinion of the senior force judge advocate, or designee, in the senior force judge advocate’s review under subsection (a) is that corrective action is required as a matter of law and if the adjutant general does not take action that is at least as favorable to the accused as that recommended by the judge advocate, the record of trial and action thereon shall be sent to the commander-in-chief for review and action as deemed appropriate.

(d)  The senior force judge advocate, or a designee, may review any case in which there has been a finding of not guilty of all charges and specifications. The senior force judge advocate, or designee, may not review a case under this subsection if that person has acted in the same case as an accuser, investigating officer, member of the court, military judge or counsel or has otherwise acted on behalf of the prosecution or defense. The senior force judge advocate’s review shall be limited to questions of subject matter jurisdiction.

(e)  The record of trial and related documents in each case reviewed under subsection (d) shall be sent for action to the adjutant general.

(1)  The adjutant general may:

(A)  when subject matter jurisdiction is found to be lacking, void the court-martial ab initio, with or without prejudice to the government, as the adjutant general deems appropriate; or

(B)  return  the  record  of  trial  and  related  documents  to  the  senior  force  judge advocate for appeal by the government as provided by law.

Article 65.  Disposition of records after review by the convening authority.

Except as otherwise required by this code, all records of trial and related documents shall be transmitted and disposed of as prescribed by regulation and provided by law.

Article 67A.  Review by state appellate authority.

Decisions of a court-martial shall be considered to be from a trial court of the commonwealth and appeals shall be to the appeals court of the commonwealth. The appellate procedures to be followed shall be those provided by law for the appeal of criminal cases thereto.

Article 70.  Appellate counsel.

(a)  The senior force judge advocate shall detail a judge advocate as appellate government counsel to represent the state in the review or appeal of cases specified in article 67A of this code and before any federal court when requested to do so by the state attorney general. Appellate government counsel must be a member in good standing of the bar of the highest court of the state to which the appeal is taken.

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

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

(d)  Upon the request of an accused entitled to be so represented, the senior force judge advocate shall appoint a judge advocate to represent the accused in the review or appeal of cases specified in subsections (b) and (c) of this article.

(e)  An accused may be represented by civilian appellate counsel at no expense to the state.

Article 71.  Execution of sentence; suspension of sentence.

(a)  If the sentence of the court-martial extends to dismissal or a dishonorable or bad-conduct discharge and if the right of the accused to appellate review is not waived, and an appeal is not withdrawn under article 61, that part of the sentence extending to dismissal or a dishonorable or bad-conduct discharge may not be executed until there is a final judgment as to the legality of the proceedings. A judgment as to the legality of the proceedings is final in such cases when review is completed by an appellate court prescribed in article 67A, and is deemed final by the law of state where the judgment was had.

(b)  If the sentence of the court-martial extends to dismissal or a dishonorable or bad conduct discharge and if the right of the accused to appellate review is waived, or an appeal is withdrawn under article 61, that part of the sentence extending to dismissal or a dishonorable or bad-conduct discharge may not be executed until review of the case by the senior force judge advocate and any action on that review under article 64 is completed. Any other part of a court-martial sentence may be ordered executed by the convening authority or other person acting on the case under article 60 when so approved under that article.

Article 72.  Vacation of suspension.

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

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

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

Article 73.  Petition for a new trial.

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

Article 74.  Remission and suspension.

(a)  An authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence may remit or suspend any part or amount of the unexecuted part of any sentence, including all uncollected forfeitures other than a sentence approved by the commander-in-chief.

(b)  The commander-in-chief may, for good cause, substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial.

Article 75.  Restoration.

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

(b)  If a previously executed sentence of dishonorable or bad-conduct discharge is not imposed on a new trial, the commander-in-chief, if authorized, may substitute therefor a form of discharge authorized for administrative issuance unless the accused is to serve out the remainder of the accused’s enlistment.

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

Article 76.  Finality of proceedings, findings and sentences.

The appellate review of records of trial provided by this code, the proceedings, findings, and sentences of courts-martial as approved, reviewed or affirmed as required by this code and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review or affirmation as required by this code shall be final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings shall be binding upon all departments, courts, agencies and officers of the commonwealth, subject only to action upon a petition for a new trial as provided in article 73 and to action under article 74.

Article 76A.  Leave required to be taken pending review of certain court-martial convictions.

Under regulations prescribed, an accused who has been sentenced by a court-martial may be required to take leave pending completion of action under this article if the sentence, as approved under article 60, includes an unsuspended dismissal or an unsuspended dishonorable or bad-conduct discharge. The accused may be required to begin such leave on the date on which the sentence is approved under said article 60 or at any time after such date and such leave may be continued until the date on which action under this article is completed or may be terminated at any earlier time.

Article 76B.  Lack of mental capacity or mental responsibility: commitment of accused for examination and treatment.

(a)  In the case of a person determined under this code to be presently suffering from a mental disease or defect rendering the person mentally incompetent to the extent that the person is unable to understand the nature of the proceedings against that person or to conduct or cooperate intelligently in the defense of the case, the general court-martial convening authority shall proceed in accordance with the General Laws applicable to the person’s lack of capacity.

(b)  If a person is found by a court-martial not guilty only by reason of lack of mental responsibility, the court-martial convening authority shall proceed in accordance with the General Laws applicable to the finding of not guilty by reason of lack of criminal responsibility due to mental illness or mental defect.

PART X.  PUNITIVE ARTICLES.

Article 77.  Principals.

A person subject to this code who: (1) commits an offense punishable by this code or aids, abets, counsels, commands or procures its commission; or (2) causes an act to be done which, if directly performed by such person would be punishable by this code shall be a principal.

Article 78.  Accessory after the fact.

A person subject to this code who, knowing that an offense punishable by this code has been committed, receives, comforts or assists the offender in order to hinder or prevent the offender’s apprehension, trial or punishment shall be punished as a court-martial may direct.

Article 79.  Conviction of lesser included offense.

An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein.

Article 80.  Attempt.

(a)  An act done with specific intent to commit an offense under this code that amounts to more than mere preparation and tending, even though failing to effect its commission, shall be an attempt to commit that offense.

(b)  A person subject to this code who attempts to commit an offense punishable by this code shall be punished as a court-martial may direct unless otherwise specifically prescribed.

(c)  A person subject to this code may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated.

Article 81.  Conspiracy.

A person subject to this code who conspires with another person to commit an offense under this code shall, if any of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.

Article 82.  Solicitation.

(a)  A person subject to this code who solicits or advises another person to desert in violation of article 85 or mutiny in violation of article 94 shall, if the offense solicited or advised is attempted or committed, be punished as provided for the commission of the offense; provided, however, that if the offense solicited or advised is not committed or attempted, the person shall be punished as a court-martial may direct.

(b)  A person subject to this code who solicits or advises another to commit an act of misbehavior before the enemy in violation of article 99 or sedition in violation of article 94 shall, if the offense solicited or advised is committed, be punished as provided for the commission of the offense; provided, however, that if the offense solicited or advised is not committed, the person shall be punished as a court-martial may direct.

Article 83.  Fraudulent enlistment, appointment or separation.

A person who: (1) procures for oneself an enlistment or appointment in the state military forces by knowingly false representation or deliberate concealment as to such person’s qualifications for that enlistment or appointment and receives pay or allowances thereunder; or (2) procures for oneself a separation from the state military forces by knowingly false representation or deliberate concealment as to such person’s eligibility for that separation shall be punished as a court-martial may direct.

Article 84.  Unlawful enlistment, appointment or separation.

A person subject to this code who effects an enlistment or appointment in or a separation from the state military forces of a person who is known to such person to be ineligible for that enlistment, appointment or separation because it is prohibited by law, regulation or order shall be punished as a court-martial may direct.

Article 85.  Desertion.

(a)  A member of the state military forces who: (1) without authority, goes or remains absent from such member’s unit, organization or place of duty with intent to remain away therefrom permanently; (2) quits such member’s unit, organization or place of duty with intent to avoid hazardous duty or to shirk important service; or (3) without being regularly separated from 1 of the state military forces, enlists or accepts an appointment in the same or another state military force or in 1 of the armed forces of the United States without fully disclosing the fact that such member has not been regularly separated or enters a foreign armed service, except when authorized by the United States, shall be guilty of desertion.

(b)  A commissioned officer of the state military forces who, after tender of such officer’s resignation and before notice of its acceptance, quits the officer’s post or proper duties without leave and with intent to remain away therefrom permanently shall be guilty of desertion.

(c)  A person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by confinement for not more than 10 years or such other punishment as a court-martial may direct; provided, however, that if the desertion or attempt to desert occurs at any other time, such person shall be punished as a court-martial may direct.

Article 86.  Absence without leave.

A person subject to this code who, without authority: (1) fails to go to an appointed place of duty at the time prescribed; (2) goes from that place; or (3) absents such person or remains absent from an appointed unit, organization or place of duty at which such person is required to be at the time prescribed shall be punished as a court-martial may direct.

Article 87.  Missing movement.

A person subject to this code who through neglect or design misses the movement of a ship, aircraft or unit with which such person is required in the course of duty to move shall be punished as a court-martial may direct.

Article 88.   Contempt toward officials.

A commissioned officer who uses contemptuous words against the President, the Vice President, Congress of the United States, the United States Secretary of Defense, the United States Secretary of a military department, the United States Secretary of Homeland Security or the commander-in-chief or the general court shall be punished as a court-martial may direct.

Article 89.  Disrespect toward superior commissioned officer.

A person subject to this code who behaves with disrespect toward such person’s superior commissioned officer shall be punished as a court-martial may direct.

Article 90.  Assaulting or willfully disobeying superior commissioned officer.

A person subject to this code who: (1) strikes a superior commissioned officer or draws or lifts up any weapon or offers violence against a superior commissioned officer while such superior commissioned officer is in the execution of the duties of office; or (2) willfully disobeys a lawful command of such person’s superior commissioned officer shall be punished, if the offense is committed in time of war, by confinement for not more than 10 years or by such other punishment as a court-martial may direct and, if the offense is committed at any other time, by such punishment as a court-martial may direct.

Article 91.  Insubordinate conduct toward warrant officer, noncommissioned officer or petty officer.

A warrant officer or enlisted member who: (1) strikes or assaults a warrant officer, noncommissioned officer or petty officer while that officer is in the execution of the office; (2) willfully disobeys the lawful order of a warrant officer, noncommissioned officer or petty officer; or (3)    treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer or petty officer while that officer is in the execution of the office shall be punished as a court-martial may direct.

Article 92.  Failure to obey order or regulation.

A person subject to this code who: (1) violates or fails to obey a lawful general order or regulation; (2) having knowledge of any other lawful order issued by a member of the state military forces which such person has a duty to obey, fails to obey that order; or (3) is derelict in the performance of such person’s duties shall be punished as a court-martial may direct.

Article 93.  Cruelty and maltreatment.

A person subject to this code who is guilty of cruelty toward, or oppression or maltreatment of, a person subject to their orders shall be punished as a court-martial may direct.

Article 94.  Mutiny or sedition.

(a)  A person subject to this code who: (1) with intent to usurp or override lawful military authority, refuses, in concert with another person, to obey orders or otherwise do their duty or creates any violence or a disturbance shall be guilty of mutiny; (2) with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with another person, revolt, violence or other disturbance against that authority shall be guilty of sedition; or (3) fails to do their utmost to prevent and suppress a mutiny or sedition being committed in such person’s presence or fails to take all reasonable means to inform such person’s superior commissioned officer or commanding officer of a mutiny or sedition which such person knows or has reason to believe is taking place shall be guilty of a failure to suppress or report a mutiny or sedition.

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

Article 95.  Resistance, flight, breach of arrest and escape

A person subject to this code who: (1) resists apprehension; (2) flees from apprehension; (3) breaks arrest; or (4) escapes from custody or confinement shall be punished as a court-martial may direct.

Article 96.  Releasing prisoner without proper authority.

A person subject to this code who, without proper authority, releases a prisoner committed to such person’s charge or who through neglect or design suffers any such prisoner to escape shall be punished as a court-martial may direct, whether or not the prisoner was committed in strict compliance with law.

Article 97.  Unlawful detention.

A person subject to this code who, except as provided by law or regulation, apprehends, arrests or confines another shall be punished as a court-martial may direct.

Article 98.  Noncompliance with procedural rules.

A person subject to this code who: (1) is responsible for unnecessary delay in the disposition of a case of a person accused of an offense under this code; or (2) knowingly and intentionally fails to enforce or comply with any provision of this code regulating the proceedings before, during or after trial of an accused shall be punished as a court-martial may direct.

Article 99.  Misbehavior before the enemy.

A person subject to this code who, before or in the presence of the enemy: (1) runs away; (2) shamefully  abandons,  surrender  or  delivers  up  any command,  unit,  place or military property which it is such person’s duty to defend; (3) through disobedience, neglect or intentional misconduct, endangers the safety of any such command, unit, place or military property; (4) casts away such person’s arms or ammunition; (5) is guilty of cowardly conduct; (6) quits such person’s place of duty to plunder or pillage; (7) causes false alarms in a command, unit or place under control of the armed forces of the United States or the state military forces; (8) willfully fails to do such person’s utmost to encounter, engage, capture or destroy enemy troops, combatants, vessels, aircraft or any other thing which is such person’s duty to encounter, engage, capture or destroy; or (9) does not afford all practicable relief and assistance to any troops, combatants, vessels or aircraft of the armed forces belonging to the United States or their allies, to the commonwealth or to any other state when engaged in battle shall be punished as a court-martial may direct.

Article 100.  Subordinate compelling surrender.

A person subject to this code who compels or attempts to compel the commander of any of the state military forces or of the military forces of any other state, place, vessel, aircraft or other military property or of any body of members of the armed forces to give it up to an enemy or to abandon it or who strikes the colors or flag to an enemy without proper authority shall be punished as a court-martial may direct.

Article 101.  Improper use of countersign.

A person subject to this code who in time of war discloses the parole or countersign to any person not entitled to receive it or who gives to another, who is entitled to receive and use the parole or countersign, a different parole or countersign from that which, to such person’s knowledge, such person was authorized and required to give shall be punished as a court-martial may direct.

Article 102.  Forcing a safeguard.

A person subject to this code who forces a safeguard shall be punished as a court-martial may direct.

Article 103.  Captured or abandoned property.

(a)  Persons subject to this code shall secure all public property taken for the service of the United States or the commonwealth and shall give notice and turn over to the proper authority without delay all captured or abandoned property in their possession, custody or control.

(b)  A person subject to this code who: (1) fails to carry out the duties prescribed in subsection (a); (2) buys, sells, trades or in any way deals in or disposes of taken, captured or abandoned property for which such person receives or expects a profit, benefit or advantage to such person or another directly or indirectly connected with such person; or (3) engages in looting or pillaging shall be punished as a court-martial may direct.

Article 104.  Aiding the enemy.

A person subject to this code who: (1) aids or attempts to aid the enemy with arms, ammunition, supplies, money or other things; or (2)   without proper authority, knowingly harbors or protects or gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly shall be punished as a court-martial may direct.

Article 105.  Misconduct as prisoner.

A person subject to this code who, while in the hands of the enemy in time of war: (1) for the purpose of securing favorable treatment by such person’s captors, acts without proper authority in a manner contrary to law, custom or regulation to the detriment of others of the nationality held by the enemy as civilian or military prisoners; or (2) while in a position of authority over such persons, maltreats such persons without justifiable cause shall be punished as a court-martial may direct.

Article 107.  False official statements.

A person subject to this code who, with intent to deceive, signs a false record, return, regulation, order or other official document in the line of duty, knowing it to be false or who makes any other false official statement in the line of duty, knowing it to be false, shall be punished as a court-martial may direct.

Article 108.  Loss, damage, destruction or wrongful disposition of military property.

A person subject to this code who, without proper authority: (1) sells or otherwise disposes of; (2) willfully or through neglect damages, destroys, or loses; or (3) willfully  or  through  neglect  suffers  to  be  lost,  damaged,  destroyed,  sold or wrongfully disposed of any military property of the United States or of any state shall be punished as a court-martial may direct.

Article 109.  Waste, spoilage or destruction of non-military property.

A person subject to this code who willfully or recklessly wastes, spoils or otherwise willfully and wrongfully destroys or damages any property other than military property of the United States or of any state shall be punished as a court-martial may direct.

Article 110.  Improper hazarding of vessel.

(a)  A person subject to this code who willfully and wrongfully hazards or suffers to be hazarded any vessel of the armed forces of the United States or of any state military force shall suffer such punishment as a court-martial may direct.

(b)  A person subject to this code who negligently hazards or suffers to be hazarded any vessel of the armed forces of the United States or of any state military force shall be punished as a court-martial may direct.

Article 112.  Drunk on duty.

A person subject to this code, other than a sentinel or lookout, who is found drunk on duty shall be punished as a court-martial may direct.

Article 112A.  Wrongful use, possession, manufacturing, distribution, and importing of controlled substances.

(a)  A person subject to this code who wrongfully uses, possesses, manufactures, distributes, imports into the customs territory of the United States, exports from the United States or introduces into an installation, vessel, vehicle or aircraft used by or under the control of the armed forces of the United States or of any state military force a substance described in subsection (b) shall be punished as a court-martial may direct.

(b)  The following substances shall be subject to the punishment referred to in subsection (a):

(1)  opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid and marijuana and any compound or derivative of any such substance;

(2)  any substance not specified in clause (i) that is listed on a schedule of controlled substances prescribed by the President of the United States for the purposes of the Uniform Code of Military Justice of the Armed Forces of the United States in 10 U.S.C. section 801, et seq.; and

(3)  any other substance not specified in clause (i) or contained on a list prescribed by the President of the United States under clause (ii) that is listed in schedules I to V, inclusive, in the schedules of controlled substances under section 202 of the Controlled Substances Act, 21 U.S.C. section 812.

Article 113.  Misbehavior of sentinel.

A sentinel or lookout who is found drunk or sleeping upon such person’s post or leaves it before being regularly relieved shall be punished, if the offense is committed in time of war, by confinement for not more than 10 years or by such other punishment as a court-martial may direct; provided, however, that if the offense is committed at any other time, such person shall be punished by such other punishment as a court-martial may direct.

Article 114.  Dueling.

A person subject to this code who fights or promotes, or is concerned in or connives at fighting a duel, or who, having knowledge of a challenge sent or about to be sent, fails to report the fact promptly to the proper authority shall be punished as a court-martial may direct.

Article 115.  Malingering.

A person subject to this code who for the purpose of avoiding work, duty or service: (1) feigns illness, physical disablement, mental lapse or derangement; or (2) intentionally inflicts self-injury shall be punished as a court-martial may direct.

Article 116.  Riot or breach of peace.

A person subject to this code who causes or participates in a riot or breach of the peace shall be punished as a court-martial may direct.

Article 117.  Provoking speeches or gestures.

A person subject to this code who uses provoking or reproachful words or gestures towards another person subject to this code shall be punished as a court-martial may direct.

Article 132.  Frauds against the government.

A person subject to this code who engages in the following conduct shall be punished as a court-martial may direct:

(1)  knowing it to be false or fraudulent, (A) makes a claim against the United States, the commonwealth or an officer thereof or (B) presents to a person in the civil or military service thereof, for approval or payment, a claim against the United States, the commonwealth or an officer thereof;

(2)  for the purpose of obtaining the approval, allowance or payment of a claim against the United States, the commonwealth or an officer thereof (A) makes or uses a writing or other paper knowing it to contain any false or fraudulent statements, (B) makes an oath, affirmation or certification to a fact or to a writing or other paper knowing the oath, affirmation or certification to be false or (C) forges or counterfeits a signature upon a writing or other paper or uses any such signature knowing it to be forged or counterfeited;

(3)  having charge, possession, custody or control of any money or other property of the United States or the commonwealth that was furnished or intended for the armed forces of the United States or the state military forces, knowingly delivers to a person having authority to receive it, an amount thereof that is less than that for which such person received a certificate or receipt;

or (4)  being authorized to make or deliver a paper certifying the receipt of any property of the United States or the commonwealth that was furnished or intended for the armed forces of the United States or the state military forces, makes or delivers to another such writing without having full knowledge of the truth of the statements contained therein and with intent to defraud the United States or the commonwealth.

Article 133.  Conduct unbecoming an officer.

A commissioned  officer,  cadet,  candidate  or  midshipman  who  is  convicted  of  conduct unbecoming an officer shall be punished as a court-martial may direct.

Article 134.  General article.

In addition to the crimes enumerated in this code, all disorders and neglects to the prejudice of good order and discipline in the state military forces and all conduct of a nature to bring discredit upon the state military forces shall be taken cognizance of by a court-martial and punished at the discretion of a military court; provided, however, that where a crime constitutes an offense that violates both this code and the criminal laws of the state where the offense was committed or the criminal laws of the United States, jurisdiction of the military court shall be determined in accordance with subsection (b) of article 2.

PART XI.  MISCELLANEOUS PROVISIONS.

Article 135.  Courts of inquiry.

(a)  Courts of inquiry to investigate any matter of concern to the state military forces may be convened by a person authorized to convene a general court-martial, whether or not the persons involved have requested such an inquiry.

(b)  A court of inquiry shall consist of at least 3 commissioned officers. For each court of inquiry, the convening authority shall also appoint counsel for the court.

(c)  A person subject to this code whose conduct is subject to inquiry shall be designated as a party. A person subject to this code who has a direct interest in the subject of inquiry shall have the right to be designated as a party upon request to the court. A person designated as a party shall be given due notice and shall have the right to be present, to be represented by counsel, to cross-examine witnesses and to introduce evidence.

(d)  Members of a court of inquiry may be challenged by a party but only for cause stated to the court.

(e)  The members, counsel, the reporter and interpreters of courts of inquiry shall take an oath to faithfully perform their duties.

(f)  Witnesses may be summoned to appear and testify and be examined before courts of inquiry as provided for courts-martial.

(g)  Courts of inquiry shall make findings of fact but shall not express opinions or make recommendations unless required to do so by the convening authority.

(h)  Each court of inquiry shall keep a record of its proceedings which shall be authenticated by the signatures of the president and counsel for the court and forwarded to the convening authority. If the record cannot be authenticated by the president, it shall be signed by a member in lieu of the president. If the record cannot be authenticated by the counsel for the court, it shall be signed by a member in lieu of the counsel.

Article 136.  Authority to administer oaths and to act as notary.

(a)  The following persons may administer oaths for the purposes of military administration, including military justice:

(1)  judge advocates;

(2)  summary courts-martial;

(3)  adjutants, assistant adjutants, acting adjutants and personnel adjutants;

(4)  commanding officers of the naval militia; and

(5)  all other persons designated by regulations of the armed forces of the United States or by law.

(b)  The following persons may administer oaths necessary in the performance of their duties:

(1)  the president, military judges and trial counsel for all general and special courts- martial;

(2)  the president and the counsel for the court of any court of inquiry;

(3)  officers designated to take a deposition;

(4)  persons detailed to conduct an investigation;

(5)  recruiting officers; and

(6)  all other persons designated by regulations of the Armed Forces of the United States or by law.

(c)  The signature without seal of the person, together with the title of the person’s office, shall be prima facie evidence of the person’s authority.

Article 137.  Articles to be made available.

The text of the code and of the regulations prescribed under the code shall be made available to a member of the state military forces, upon request by the member, for the member’s personal examination.

Article 138.  Complaints of wrongs.

A member of the state military forces who believes they have been wronged by a commanding officer and who, upon due application to that commanding officer, is refused redress may complain to a superior commissioned officer who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall investigate the complaint and take proper measures for redressing the wrong complained of and shall, as soon as possible, send to the adjutant general a true statement of that complaint, with the proceedings had thereon.

Article 139.  Redress of injuries to property.

(a)  Whenever complaint is made to a commanding officer that willful damage has been done to the property of a person or that the person’s property has been wrongfully taken by members of the state military forces, the commanding officer may, under such regulations prescribed, convene a board to investigate the complaint. The board shall consist of from 1 to 3 commissioned officers and, for the purposes of that investigation, may summon witnesses and examine them upon oath, receive depositions or other documentary evidence and assess the damages sustained against the responsible parties. The assessment of damages made by the board shall be subject to the approval of the commanding officer and the amount approved by that officer shall be charged against the pay of the offenders. The order of the commanding officer directing charges herein authorized shall be conclusive on any disbursing officer for payment to the injured parties of the damages so assessed and approved.

(b)  If the offenders cannot be ascertained but the organization or detachment to which they belong is known, charges totaling the amount of damages assessed and approved may be made in such proportion as may be considered just upon the individual members thereof who are shown to have been present at the scene at the time the damages complained of were inflicted, as determined by the approved findings of the board.

Article 140.  Delegation by the Commander-in-chief.

The commander-in-chief may delegate any authority vested in the commander-in-chief under this code and may provide for the subdelegation of any such authority, except the power given to the commander-in-chief by article 22.

Article 141.  Payment of fees, costs, and expenses.

(a)  The fees and authorized travel expenses of all witnesses, experts, victims, court reporters and interpreters, the fees for the service of process, the costs of collection, apprehension, detention and confinement and all other necessary expenses of prosecution and the administration of military justice that are not otherwise payable by any other source shall be paid out of the Military Justice Fund.

(b)  There shall be a Military Justice Fund that shall be administered by the adjutant general, from which expenses of military justice shall be paid in the amounts and manner as prescribed by law. Funds may be appropriated and deposited into the fund as may be necessary to carry out the purposes of the code.

Article 142.  Payment of fines and disposition thereof.

(a)  Fines imposed by a military court or through imposition of non-judicial punishment may be paid to the commonwealth and delivered to the court or imposing officer or to a person executing their process.  Fines may be collected by:

(1)  cash or money order;

(2)  retention of any pay or allowances due or to become due to the person fined from any state or the United States; or

(3)  garnishment or levy, together with costs, on the wages, goods and chattels of a person delinquent in paying a fine, as provided by law.

(b)  Any sum so received or retained shall be deposited to whomever the court so directs.

Article 143.  Uniformity of interpretation and Military Rules of Evidence.

(a)  This code shall be so construed as to effectuate its general purpose to make it uniform, so far as practical, with the Uniform Code of Military Justice, 10 U.S.C. section 801, et seq.

(b)  The federal Military Rules of Evidence at the time of the offense shall apply to court-martial proceedings convened under this chapter.

Article 144.  Immunity for action of military courts

A person acting under this code, whether as a member of the military or as a civilian, shall be immune from personal liability for any acts or omissions which they did or failed to do as part of their duties under this code.

Article 145.  Severability.

The provisions of this code shall be severable and if any provision of this code or the application of such provision to a person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of the code.

Article 146.  Short Title.

This chapter may be cited as the Massachusetts Code of Military Justice.

Approved, January 2, 2019.