GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2009
H 1
HOUSE BILL 1412
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Short Title: Courts-Martial Amendments. |
(Public) |
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Sponsors: |
Representatives Martin, Glazier (Primary Sponsors); and Lucas. |
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Referred to: |
Homeland Security, Military, and Veterans Affairs, if favorable, Judiciary I. |
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April 13, 2009
A BILL TO BE ENTITLED
AN ACT to make various changes to the statutes relating to national guard courts-martial.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 127A-47 reads as rewritten:
"§ 127A-47. Courts-martial for national guard.
Courts-martial for organizations of the national guard not in
the service of the United States shall be of three kinds, namely, general
courts-martial, special courts-martial, and summary courts-martial. They shall
be constituted, have cognizance of the same subjects, and possess like powers, except
as to punishments, as similar courts provided for by the law and
regulations governing the armed forces of the United States, and theUniform
Code of Military Justice and Manual for Courts-Martial, United States, as shall
be currently in use, except that no court shall have the power to impose
confinement as part of a sentence. The proceedings of courts-martial of the
national guard shall follow the forms and modes of procedure prescribed for
such similar courts."
SECTION 2. G.S. 127A-48 reads as rewritten:
"§ 127A-48. General courts-martial.
General courts-martial of the national guard not in the
service of the United States may be convened by orders of the Governor of the
State, and such courts shall have the power to impose fines not exceeding
two hundred dollars ($200.00); sentence to forfeiture of pay and allowances; to
a reprimand; to dismissal or dishonorable discharge from the service; to
reduction of enlisted personnel to the ranks; or any two or more of such
punishments may be combined in the sentences imposed by such courts.punishments
in like manner and to the extent prescribed by the Uniform Code of Military
Justice and Manual for Courts-Martial, United States, as shall be in use by the
armed forces of the United States at the time of the offense, except that no
court shall have the authority to impose confinement as part of a sentence."
SECTION 3. G.S. 127A-49 reads as rewritten:
"§ 127A-49. Special courts-martial; appointments, power and authority.
In the national guard, not in the service of the United States, special courts-martial may be appointed by any of the following:
(1) Any person who may convene a general court-martial.
(2) The Adjutant General of North Carolina.
(1)(3) The commander of a brigade,
regiment, comparable or higher command of the North Carolina army national guard;guard,
provided that such commander is a general officer.
(2)(4) The commander of a wing,
group, separate squadron, comparable or higher command of the North Carolina
air national guard;guard, provided that such commander is a general
officer.
(3)(5) The commander or officer in
charge of any North Carolina national guard command when empowered by the
Governor or the Adjutant General of North Carolina.Carolina, provided
that such commander or officer is a general officer.
Except as to commissioned officers, such courts-martial shall
have the power and authority to try any person subject to military law for any
crimes or offenses within the jurisdiction of a general military court. Such
courts-martial shall have the same powers of punishment as general courts-martial
except that fines imposed by such courts-martial shall not exceed one hundred
dollars ($100.00), and such courts-martial shall not have the power of dismissal
from the national guard.power to impose punishments in like manner and
to the extent prescribed by the Uniform Code of Military Justice and Manual for
Courts-Martial, United States, as shall be in use by the armed forces of the
United States at the time of the offense, except that no court shall have the
authority to impose confinement as part of a sentence."
SECTION 4. G.S. 127A-50 reads as rewritten:
"§ 127A-50. Summary courts-martial.
In the national guard, not in the service of the United
States, summary courts-martial may be appointed by the commander of any
company, battery, detachment, squadron, or any other federally recognized unit,
either army or air. Such court shall consist of one officer, who shall have the
power to administer oaths and try enlisted personnel of each respective command
for breaches of discipline and violations of laws governing such organizations.
Such courts shall also have the power to impose fines not exceeding twenty-five
dollars ($25.00) for any single offense, may sentence to forfeiture of
pay and allowances, or may sentence enlisted personnel to reduction in rank;
but in the case of noncommissioned officers above the fourth enlisted grade,
may not adjudge reduction except to the next inferior grade. There shall be no
right to demand trial by special court-martial.
In the national guard, not in the service of the United States, summary courts-martial may be appointed by any of the following:
(1) Any person who may convene a general or special court-martial.
(2) The commander of a battalion, comparable or higher command of the North Carolina army national guard, provided that such commander is an officer of the grade of major or above.
(3) The commander of a detached squadron, comparable or higher command of the North Carolina air national guard, provided that such commander is an officer of the grade of major or above.
Such court shall consist of one officer who shall have the power to administer oaths and try enlisted personnel of each respective command for breaches of discipline and violations of laws governing such organizations. Such courts shall also have the power to impose punishments in like manner and to the extent prescribed by the Uniform Code of Military Justice and Manual for Courts-Martial, United States, as shall be in use by the armed forces of the United States at the time of the offense, except that no court shall have the authority to impose confinement as part of a sentence. There shall be no right to demand trial by court-martial."
SECTION 5. G.S. 127A-50.1 reads as rewritten:
"§ 127A-50.1. Military judges.
The Adjutant General shall appoint military judges to preside
over courts-martial of the National Guard not in federal service. Minimum
requirements for appointment as a military judge shall be:are:
(1) Licensed to
practice law in this State or certifiedCertification as a military
judge by the Judge Advocate General of the Army, Air Force, Navy, or
Marines;Navy, Marines, or Coast Guard.
(2) Designation as a
judge advocate by The Judge Advocate General of the Army, Navy, Air Force,
or Marines; andAir Force, Marines, or Coast Guard.
(3) Membership in the North Carolina National Guard, the National Guard of another state, or the active or reserve components of any of the military services."
SECTION 6. G.S. 127A-51 reads as rewritten:
"§ 127A-51. Nonjudicial punishment.
Any commander of the national guard, not in the service of
the United States, may, in addition to or in lieu of admonition or reprimand,
impose nonjudicial punishment in like manner and to the extent prescribed by
Article 15 of the Uniform Code of Military Justice,Justice and
Manual for Courts-Martial, United States, as shall be currently in use by the
armed forces of the United States except that there shall be no right to demand
trial by special court-martial."
SECTION 7. G.S. 127A-52 reads as rewritten:
"§ 127A-52. Jurisdiction of courts-martial.
The jurisdiction of courts-martial of the national guard, not
in the service of the United States, except as to punishments, shall be
as prescribed by the Manual for Courts-Martial, United States, as shall be
currently in use by the armed forces of the United States. Such courts-martial
shall have jurisdiction to try accused persons for offenses committed while
serving without the State and while going to and returning from such service
without the State in like manner and to the same extent as while serving within
the State."
SECTION 8. G.S. 127A-53 reads as rewritten:
"§ 127A-53. Manual for Courts-Martial.
Trials and proceedings by all courts and boards shall be in
accordance with the plans and procedures laid down in the Manual for
Courts-Martial, United States, as shall be currently in use by the armed forces
of the United States, except as modified by this Chapter."
SECTION 9. G.S. 127A-54 reads as rewritten:
"§ 127A-54. Sentences; where executed.
All sentences to confinement imposed by any military court
of this State shall be executed in such prisons as the court may designate.Persons
sentenced to confinement by any military court of this State shall be placed in
the custody of the Department of Correction for service of their sentence. Upon
agreement by a local government and the Department of Correction, the sentence
may be served at a local government confinement facility with the expense of
confinement paid by the State."
SECTION 10. G.S. 127A-55 reads as rewritten:
"§ 127A-55. Forms for courts-martial procedure.
In the national guard, not in the service of the United
States, forms for courts-martial procedure shall be substantially as those set
forth in the Appendices, Manual for Courts-Martial, United States, as shall be
currently in use by the armed forces of the United States.States,
with any modifications required by this Chapter."
SECTION 11. G.S. 127A-56 reads as rewritten:
"§ 127A-56. Powers of courts-martial.
In the national guard, not in the service of the United
States, presidents of courts-martial and summary court officersa
military judge shall have power to issue warrants to arrest an accused
persons person and to bring them the person before the
a court for trial whenever such persons shall haveperson
has disobeyed an order in writing from the convening authority to appear
before such court, a copy of the charge or charges having been delivered to the
accused with such order, and to issue commitments in carrying out
sentences of confinement, and to issue subpoenas and subpoenas duces tecum,
and to enforce by attachment attendance of witnesses and the production of
books, papers, records and other articles subject to a subpoena duces tecum,
and to sentence for a refusal to be sworn or to answer as provided in actions
before civil courts. He shall also have power to punish for contempt occurring
in the presence of the court.
In addition to the power to issue warrants set forth in the
first paragraph of this section, the arrest and confinement of persons subject
to this Chapter may be accomplished by the means and under the procedures set
forth in Articles 9 and 10 of the Uniform Code of Military Justice, Manual for
Courts-Martial, United States, as shall be currently in use by the armed forces
of the United States.States, except that no court shall have the
authority to impose confinement as part of a sentence."
SECTION 12. G.S. 127A-57 reads as rewritten:
"§ 127A-57. Execution of processes and sentences.
All warrants and other processes authorized by this
Chapter and sentences of any of the military courts of this State shall be executed
by any sheriff, deputy sheriff, or police officerState or local law
enforcement officer into whose hands the same may be placed for service or
execution, and such officer shall make return thereof to the officer issuing or
imposing the same. Such service or execution of process or sentence shall be
made by such officer without tender or advancement of fee therefor; but all
costs in such cases shall be paid from funds appropriated for military
purposes.to the Department of Crime Control and Public Safety. The
actual necessary expenses of conveying a prisoner from one county in the State
to another, when the same is authorized and directed by the Adjutant General of
the State, shall be paid from the military funds of the State upon a
warrant approved by the Adjutant General.Department of Crime Control and
Public Safety."
SECTION 13. G.S. 127A-58 is repealed.
SECTION 14. G.S. 127A-59 reads as rewritten:
"§ 127A-59.
Commitments.Sentences.
When any sentence to fine or imprisonment shall be
imposed by any military court of this State, it shall be the duty of the president
of said court, or summary court officer,military judge, upon the
approval of the findings and sentence of such court, to make out and sign a
certificate entitling the case, giving the name of the accused, the date and
place of trial, the date of approval of sentence, the amount of fine or
manner, place, and duration of confinement, andand the terms of the
sentence. If the court-martial was tried without a military judge, then any
military judge may make out and sign the certificate after reviewing the
approved findings and the sentence for compliance with this Chapter. The trial
counsel shall deliver such certificate to the sheriff, or deputy
sheriff, or police officerClerk of Court for the Superior Court of
the county wherein the sentence is to be executed;was imposed, or the
Clerk of the Superior Court for Wake County if the court-martial was held out
of State, and it shall thereupon be the duty of such officerthe
Clerk to take such actions as are necessary to carry said sentence into
execution in the manner prescribed by law for the collection of fines or
commitment to service of terms of imprisonment in criminal cases as determined
in the courts of this State. The Administrative Office of the Courts shall
ensure that the State's criminal history records include pertinent information
relating to a court-martial under this Chapter in a like manner as a comparable
offense under the State's criminal laws would be recorded."
SECTION 15. G.S. 127A-60 reads as rewritten:
"§ 127A-60.
Sentence of dismissal.dismissal or discharge.
No sentence of dismissal from the service or dishonorable
discharge,discharge imposed by a national guard court-martial not in
the service of the United States, shall be executed until approved by the
Governor. Any officer convicted by a general court-martial and dismissed from
the service shall be forever disqualified from holding a commission in the
militia."
SECTION 16. G.S. 127A-147 reads as rewritten:
"§ 127A-147. Orders, rules, regulations and Uniform Code of Military Justice applicable to militia when not in service of United States.
The national guard, State defense militia and naval militia,
when not in the service of the United States, shall except as to punishments,
be governed by State law, the orders, rules and regulations of the
Adjutant General, regulations promulgated by the secretary of the appropriate
service of the armed forces of the United States, and the Uniform Code of
Military Justice, as amended from time to time."
SECTION 17. G.S. 127A-153 reads as rewritten:
"§ 127A-153. Protection of uniform.
(a) The wearing of any military uniform of the United States government by members of the militia shall be pursuant to applicable regulations promulgated by the respective armed services of the United States and regulations of the Adjutant General of North Carolina not inconsistent with federal uniform regulations.
(b) The wearing of any military uniform of the North Carolina State government by members of the militia shall be pursuant to applicable regulations promulgated by the Adjutant General of North Carolina.
(c) Members of the
militia who violate the regulations referred to in (a) and (b) above shall,
upon conviction by a court-martial, be punished by a fine not exceeding
fifty dollars ($50.00) or by imprisonment not exceeding 30 days, or by both
fine and imprisonment, for each offense.in like manner and to the extent
prescribed by Article 134 of the Uniform Code of Military Justice and Manual
for Courts-Martial, United States, as shall be in use by the armed forces of
the United States at the time of the offense, except that no court shall have
the authority to impose confinement as part of a sentence.
(d) Persons not subject to courts-martial who violate the regulations referred to in (a) and (b) above may be charged and tried in the State courts and upon conviction shall be punished as provided in (c) above."
SECTION 18. This act becomes effective December 1, 2009, and applies to offenses committed on or after that date.