SB 110: "An Act relating to the administration of military justice; relating to the adoption of a code of military justice by the adjutant general; relating to the authority of the adjutant general; relating to the procedures for persons subject to court-martial proceedings; relating to appeals of convictions and sentences of courts-martial; establishing the Military Appeals Commission; relating to the detention and incarceration of members of the militia; relating to the jurisdiction of the court of appeals; relating to involuntary commitment for evaluation or treatment of a mental disease or defect before court-martial proceedings; and providing for an effective date."
00 SENATE BILL NO. 110 01 "An Act relating to the administration of military justice; relating to the adoption of a 02 code of military justice by the adjutant general; relating to the authority of the adjutant 03 general; relating to the procedures for persons subject to court-martial proceedings; 04 relating to appeals of convictions and sentences of courts-martial; establishing the 05 Military Appeals Commission; relating to the detention and incarceration of members 06 of the militia; relating to the jurisdiction of the court of appeals; relating to involuntary 07 commitment for evaluation or treatment of a mental disease or defect before court- 08 martial proceedings; and providing for an effective date." 09 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 10 * Section 1. AS 22.07.020 is amended by adding a new subsection to read: 11 (h) The court of appeals has appellate jurisdiction in actions and proceedings 12 commenced in a military court for
01 (1) which a sentence of confinement is imposed, the right to appeal to 02 the Military Appeals Commission under AS 26.05.538 has been exhausted, and a right 03 to appeal is granted under AS 26.05.540; or 04 (2) an appeal by the state under AS 26.05.525. 05 * Sec. 2. AS 26.05.140(a) is amended to read: 06 (a) Members of the militia ordered into active service for the state by order of 07 the governor are not liable civilly [OR CRIMINALLY] for any act done by them in 08 their official capacity while in this such service. If a suit is commenced in a court 09 against an officer or enlisted person of the militia as a result of an act done by the 10 officer or enlisted person in an official capacity while in active service, the defendant 11 may require the person instituting the suit to give security for the payment of costs. If 12 judgment is for the defendant, treble costs shall be assessed against the plaintiff. The 13 defendant in the action shall be defended by the attorney general at the expense of the 14 state but the defendant may employ private counsel. Nothing in this subsection 15 applies to a proceeding or action brought under this chapter or the code of 16 military justice. 17 * Sec. 3. AS 26.05.228(b) is amended to read: 18 (b) All income of the fund and all disbursements made by the fund shall be 19 credited or charged, whichever is appropriate, to the following accounts: 20 (1) an individual account for each retired member of the system that 21 records the benefits paid under this system to the member or surviving beneficiary; 22 (2) a separate account for the Department of Military and Veterans' 23 Affairs' contribution to fund the system based on the actuarial requirements of the 24 system as established by the commissioner of administration under AS 26.05.222 - 25 26.05.229 [THIS CHAPTER]; 26 (3) an expense account for the system; this account is charged with all 27 disbursements representing administrative expenses incurred by the system; 28 expenditures from this account are included in the governor's budget for each fiscal 29 year. 30 * Sec. 4. AS 26.05 is amended by adding new sections to read: 31 Article 2. Code of Military Justice.
01 Sec. 26.05.380. Regulations adopting code of military justice. (a) The 02 adjutant general shall by regulation adopt a code of military justice consistent with this 03 chapter for members of the militia of the state not in federal service. The regulations 04 must be approved by the governor. 05 (b) The code adopted under this section must 06 (1) provide for the organization and conduct of courts-martial 07 consistent with this chapter; 08 (2) provide for nonjudicial punishment; 09 (3) identify the military offenses subject to adjudication by a court- 10 martial or to nonjudicial punishment; 11 (4) within the maximum limits of this chapter and applicable state and 12 federal law, identify the punishments authorized for the military offenses identified 13 under (3) of this subsection; 14 (5) as the adjutant general and the governor consider practicable, apply 15 the principles of law and the rules of evidence and procedure governing military 16 criminal cases in the courts of the armed forces of the United States, but may not be 17 contrary to or inconsistent with this chapter or the applicable Alaska Rules of 18 Evidence; 19 (6) be organized and numbered in a manner consistent with 10 U.S.C. 20 801 - 946 (Uniform Code of Military Justice) to the extent those provisions are 21 applicable; 22 (7) include rules of pretrial, trial, and post-trial procedure, including 23 methods of proof, for cases before courts-martial and courts of inquiry; 24 (8) provide for the organization and conduct of courts of inquiry; 25 (9) provide a procedure for complaints of wrongs; 26 (10) provide redress for injuries to property by members in active state 27 service; 28 (11) include adequate protection of classified information from public 29 disclosure; 30 (12) include other provisions necessary to provide for the 31 administration of military justice.
01 (c) The regulations adopted under this section are exempt from AS 44.62 02 (Administrative Procedure Act). 03 Sec. 26.05.400. Statement of policy on military justice. An offense, other 04 than a military offense, committed by a member of the militia, organized or 05 unorganized, shall be tried in a civil court and prosecuted by a civil authority. This 06 policy shall be executed and carried into effect at all times and applies to active state 07 service of the militia. 08 Sec. 26.05.403. Persons subject to military courts; jurisdiction. (a) The 09 code of military justice applies to a member of the militia in active state service who is 10 accused of or charged with an act or omission of a military offense. 11 (b) Courts-martial have exclusive jurisdiction over the code of military justice 12 and military offenses as defined in AS 26.05.590. Civilian courts established under 13 state or federal law have jurisdiction over offenses that are not military offenses and 14 when an act or omission violates a criminal law and a provision of the code of military 15 justice. 16 Sec. 26.05.405. Jurisdiction to try certain personnel. (a) A person 17 discharged from the militia of the state who is later charged with having fraudulently 18 obtained a discharge is subject to trial by court-martial on that charge and is, after 19 apprehension, subject to the code of military justice while in custody under the 20 direction of the militia of the state for the trial. Upon conviction of the charge, the 21 person is subject to trial by court-martial for all military offenses committed before the 22 fraudulent discharge. 23 (b) A person who has deserted from the militia of the state may not be relieved 24 from amenability to jurisdiction under the code of military justice by virtue of a 25 separation from a later period of service. 26 Sec. 26.05.408. Territorial applicability. (a) The code of military justice 27 applies to a member of the militia accused of or charged with a military offense that is 28 committed outside the state if the member is in active state service under this chapter 29 and is serving outside the state at the time the military offense is committed. 30 (b) Courts-martial and courts of inquiry may be convened and held in units of 31 the militia of the state while those units are serving outside the state with the same
01 jurisdiction and powers granted under the code of military justice as if the proceedings 02 were held inside the state. Military offenses committed outside the state may be tried 03 and punished either inside or outside the state. 04 Sec. 26.05.410. Judge advocates. (a) The senior force judge advocate of each 05 force of militia of the state, or the delegate of the senior force judge advocate, shall 06 make frequent inspections in the field in supervision of the administration of military 07 justice in the force. 08 (b) A convening authority shall communicate directly with the authority's 09 judge advocates in matters relating to the administration of military justice. The judge 10 advocate of a command is entitled to communicate directly with the judge advocate of 11 a superior or subordinate command or with the State Judge Advocate. 12 (c) A person who has acted as member, military judge, trial counsel, defense 13 counsel, or investigating officer, or who has been a witness in a case may not later act 14 as a judge advocate to an authority reviewing the same case. 15 (d) A person may not serve as a judge advocate under the code of military 16 justice unless the person is a commissioned officer of the organized militia of a state 17 or of an active or reserve component of the armed forces or another uniformed service 18 of the United States, is a member in good standing of the bar of the highest court of a 19 state, and is 20 (1) certified or designated as a judge advocate in the Judge Advocate 21 General's Corps of the United States Army, Air Force, Navy, or the Marine Corps or 22 designated as a law specialist as an officer of the United States Coast Guard, or a 23 reserve component of one of them; or 24 (2) certified as a nonfederally recognized judge advocate, under the 25 code of military justice, by the senior judge advocate of the commander of the force in 26 the component of the militia of the state of which the accused is a member, as 27 competent to perform the military justice duties required by the code of military 28 justice; if a judge advocate is not available, the certification may be made by the 29 senior judge advocate of the commander of another force in the militia of the state, as 30 the convening authority directs. 31 Sec. 26.05.420. Apprehension. (a) A member of the militia or a person
01 authorized under 10 U.S.C. 801 - 946 or the code of military justice to apprehend 02 persons subject to the code of military justice, a marshal of a court-martial, and a 03 peace officer or civil officer having authority to apprehend offenders under the laws of 04 the United States or of a state may apprehend a person subject to the code of military 05 justice upon probable cause that a military offense has been committed and that the 06 person apprehended committed the military offense. 07 (b) Commissioned officers, warrant officers, petty officers, and 08 noncommissioned officers have authority to suppress disorder or mutual combat 09 among members of the militia in active state service and to apprehend a person who 10 participates in the disorder or mutual combat. 11 (c) If an offender is apprehended outside the state, the offender's return to the 12 area must be in accordance with applicable extradition procedures, if any, or by 13 reciprocal agreement. 14 (d) A person authorized by this section to apprehend, restrain, or confine 15 persons subject to the code of military justice may not require payment of a fee for 16 apprehending, restraining, or confining a person except as otherwise provided by law. 17 Sec. 26.05.423. Imposition of restraint. (a) An enlisted member of the militia 18 in active state service may be arrested or confined by an oral or written order issued by 19 a commissioned officer or another member of the militia of the state acting at the 20 commissioned officer's direction. A commanding officer may authorize warrant 21 officers, petty officers, or noncommissioned officers to order enlisted members of the 22 commanding officer's command or subject to the commanding officer's authority into 23 arrest or confinement. 24 (b) A commissioned officer, warrant officer, or civilian subject to the code of 25 military justice may be arrested or confined only by a commanding officer who has 26 authority over the commissioned officer, warrant officer, or civilian. The commanding 27 officer shall deliver the order orally or in writing, in person or by another 28 commissioned officer. A commanding officer may not delegate the authority granted 29 in this subsection. 30 (c) A person may not be arrested or confined unless the officer issuing the 31 order for arrest or confinement has probable cause to believe that a military offense
01 has been committed and that the person has committed the military offense. 02 (d) This section does not limit the authority of persons authorized to 03 apprehend offenders to secure the custody of an alleged offender until proper authority 04 may be notified. 05 Sec. 26.05.425. Restraint of persons charged with offenses. (a) A person 06 charged with a military offense may be arrested or confined as circumstances may 07 require. A person arrested or confined before trial is entitled to prompt notice of the 08 military offense of which the person is accused. 09 (b) A person subject to the code of military justice who is charged with a 10 minor offense normally tried by a summary court-martial or subject to the code of 11 military justice may not be placed in confinement. 12 (c) When a person subject to the code of military justice is placed in 13 confinement before summary court-martial or nonjudicial punishment, the person shall 14 be conditionally released pending disposition of the charges. 15 Sec. 26.05.428. Place of confinement; reports and receiving of prisoners. 16 (a) A person confined as a prisoner under the code of military justice shall be confined 17 in a civilian or military confinement facility. 18 (b) Unless otherwise authorized by law, a person authorized to receive a 19 prisoner under (a) of this section may not refuse to receive or keep the prisoner 20 committed to the person's charge by a commissioned officer of the militia of the state 21 if the officer furnishes the person with a statement signed by the officer identifying the 22 military offense charged against the prisoner. 23 (c) A person authorized to receive a prisoner under (a) of this section shall, 24 within 24 hours after receiving the statement of commitment under (b) of this section, 25 or as soon as the person is relieved from guard, report to the commanding officer of 26 the prisoner the name of the prisoner, the military offense charged against the prisoner, 27 and the name of the person who ordered or authorized the commitment. 28 Sec. 26.05.430. Delivery of offenders to a civil authority. (a) A person 29 accused of a criminal offense against a civil authority may be delivered, upon request, 30 to a civil authority for trial or confinement. 31 (b) When a sentence imposed in a court-martial proceeding under the code of
01 military justice is interrupted by the delivery of the offender to a civil authority under 02 this section, and the offender is subsequently convicted and sentenced by the civil 03 authority, competent military authority shall request the civil authority to return the 04 offender to the custody of the military authority for completion of the sentence 05 imposed by court-martial. 06 (c) The adjutant general, with the approval of the governor, may enter into an 07 agreement with a civil authority to ensure the return of an offender under this section. 08 Sec. 26.05.433. Courts-martial classified. The military courts for the militia 09 of the state are 10 (1) a general court-martial, consisting of 11 (A) a military judge and not fewer than five members; or 12 (B) only a military judge, if, before the court is assembled, the 13 accused, knowing the identity of the military judge and after consultation with 14 defense counsel, requests orally on the record or in writing a court composed 15 of only a military judge and the military judge approves; 16 (2) a special court-martial, consisting of 17 (A) a military judge and not fewer than three members; or 18 (B) only a military judge, if one has been detailed to the court, 19 and the accused so requests under the conditions prescribed in (1)(B) of this 20 section; and 21 (3) a summary court-martial, consisting of one commissioned officer. 22 Sec. 26.05.435. Jurisdiction of courts-martial in general. Each force of the 23 militia of the state in active military service has court-martial jurisdiction over all 24 members of the militia in active state service. The exercise of jurisdiction by one force 25 over personnel of another force must be in accordance with the code of military 26 justice. 27 Sec. 26.05.438. Jurisdiction of a general court-martial. Subject to 28 AS 26.05.435, a general court-martial has jurisdiction to try a member of the militia in 29 active state service for a military offense and may impose a punishment not forbidden 30 by the code of military justice. 31 Sec. 26.05.440. Jurisdiction of a special court-martial. Subject to
01 AS 26.05.435, a special court-martial has jurisdiction to try a member of the militia in 02 active state service for a military offense and may impose a punishment not forbidden 03 by the code of military justice, other than dishonorable discharge, dismissal, 04 confinement for more than one year, forfeiture of pay exceeding twothirds pay a 05 month, or forfeiture of pay for more than one year. 06 Sec. 26.05.443. Jurisdiction of a summary court-martial. (a) Subject to 07 AS 26.05.435, a summary court-martial has jurisdiction to try a member of the militia 08 in active state service except officers, cadets, candidates, and midshipmen, for a 09 military offense. 10 (b) A person over whom a summary court-martial has jurisdiction may not be 11 brought to trial before a summary court-martial if the person objects. 12 (c) If a person accused of a military offense objects to a summary court- 13 martial under (b) of this section, the person may be ordered tried by special or general 14 court-martial, as appropriate. 15 (d) A summary court-martial may, under the limitations as the governor may 16 prescribe, impose a punishment not forbidden by the code of military justice, other 17 than dismissal, dishonorable or bad-conduct discharge, confinement for more than one 18 month, restriction to specified limits for more than two months, or forfeiture of more 19 than two-thirds of one month's pay. 20 Sec. 26.05.445. Who may convene a general court-martial. (a) A general 21 court-martial may be convened by 22 (1) the governor; 23 (2) the adjutant general; 24 (3) the commanding officer of a force of the militia of the state; 25 (4) the commanding officer of a division or a separate brigade; 26 (5) the commanding officer of a separate wing. 27 (b) If a commanding officer who is authorized to convene a general court- 28 martial is the accuser in a matter, the court hearing the matter shall be convened by 29 superior competent authority. 30 (c) A superior authority may convene a case if the superior authority considers 31 it desirable.
01 Sec. 26.05.448. Who may convene a special court-martial. (a) A special 02 court-martial may be convened by 03 (1) a person who may convene a general court-martial; 04 (2) the commanding officer of a garrison, fort, post, camp, station, Air 05 National Guard base, or naval base or station; 06 (3) the commanding officer of a brigade, regiment, detached battalion, 07 or corresponding unit of the United States Army; 08 (4) the commanding officer of a wing, group, separate squadron, or 09 corresponding unit of the United States Air Force; or 10 (5) a commanding officer or officer in charge of any other command 11 when empowered to do so by the adjutant general. 12 (b) If an officer who is authorized to convene a special court-martial is the 13 accuser in the matter, the court hearing the matter shall be convened by superior 14 competent authority. 15 (c) A superior authority may convene a case if the superior authority considers 16 it desirable. 17 Sec. 26.05.450. Who may convene a summary court-martial. (a) A 18 summary court-martial may be convened by 19 (1) a person who may convene a general or special court-martial; 20 (2) the commanding officer of a detached company or other 21 detachment or the commanding officer of a corresponding unit of the United States 22 Army; 23 (3) the commanding officer of a detached squadron or other 24 detachment or the commanding officer of a corresponding unit of the United States 25 Air Force; or 26 (4) the commanding officer or officer in charge of any other command 27 when empowered to do so by the adjutant general. 28 (b) If only one commissioned officer is present with a command or 29 detachment, that officer shall be the summary court-martial of that command or 30 detachment and shall hear and determine all summary court-martial cases. 31 (c) A superior competent authority may convene a summary court-martial if
01 the superior authority considers it desirable. 02 Sec. 26.05.452. Who may serve on courts-martial. (a) A commissioned 03 officer of the militia of a state or of an active duty component of the armed forces of 04 the United States is eligible to serve on a general, special, or summary court-martial 05 for the trial of a member of the militia in active state service. 06 (b) A warrant officer of the militia of a state or of an active duty component of 07 the armed forces of the United States is eligible to serve on a general or special court- 08 martial for the trial of any person, other than a commissioned officer. 09 (c) An enlisted member of the militia of the state who is not a member of the 10 same unit as the accused is eligible to serve on a general or special court-martial for 11 the trial of an enlisted member, but only if the accused has, before the conclusion of a 12 session of the court-martial called by the military judge under AS 26.05.528, 13 personally requested, orally on the record or in writing, that enlisted members serve on 14 the court-martial. 15 (d) After a request is made under (c) of this section, the accused may not be 16 tried by a general or special court-martial unless enlisted members make up at least 17 one-third of the total membership of the court. If eligible enlisted members are not 18 available because of physical conditions or military exigencies, the court may proceed 19 to try the accused without enlisted members, but the convening authority shall place 20 on the record a detailed written explanation of why eligible enlisted members were not 21 available. 22 (e) The accused may not be tried by a court-martial that includes a member 23 who is junior in rank or grade to the accused, unless the inclusion cannot be avoided. 24 (f) When convening a court-martial, the convening authority shall detail the 25 members of the militia of a state or of an active duty component of the armed forces of 26 the United States who are, in the convening authority's opinion, the best qualified for 27 the duty by reason of age, education, training, experience, length of service, and 28 judicial temperament. A person is not eligible to serve as a member of a general or 29 special court-martial if the person is the accuser, is a witness, or has acted as 30 investigating officer or as counsel in the same case. 31 (g) Before a court-martial is assembled for the trial of a case, the convening
01 authority may excuse a member of the court from participating in the case. The 02 convening authority may delegate the authority under this subsection to a judge 03 advocate or to a principal assistant. 04 Sec. 26.05.453. Military judge of a general or special court-martial. (a) A 05 senior force judge advocate who is in the same force as the accused, or a designee, 06 shall detail a military judge to a general and special court-martial. The military judge 07 shall preside over an open session of the court-martial to which the military judge has 08 been detailed. 09 (b) A military judge must be 10 (1) an active or retired commissioned officer of the militia of a state or 11 of an active or reserve component of the armed forces or another uniformed service of 12 the United States; 13 (2) licensed to practice law in a state or a member of the bar of a 14 federal court for at least five years; 15 (3) certified as qualified for duty as a military judge by a senior force 16 judge advocate who is in the same force as the accused. 17 (c) The convening authority or a staff member of the convening authority may 18 not prepare or review a report concerning the effectiveness, fitness, or efficiency of the 19 military judge detailed to the case that relates to performance of duty as a military 20 judge. 21 (d) A person may not act as military judge in a case if that person is the 22 accuser or a witness or has acted as investigating officer or counsel in the same case. 23 (e) The military judge of a court-martial may not consult with the members of 24 the court except in the presence of the accused, trial counsel, and defense counsel, or 25 vote with the members of the court-martial. 26 Sec. 26.05.455. Detail of trial counsel and defense counsel. (a) For each 27 general and special court-martial, the convening authority shall detail trial counsel, 28 defense counsel, and assistants, as appropriate. 29 (b) A person who has acted as investigating officer, military judge, witness, or 30 court member in a case may not act as trial counsel, assistant trial counsel, or, unless 31 expressly requested by the accused, defense counsel or assistant or associate defense
01 counsel in the case. 02 (c) A person who has acted for the prosecution may not act in the same case 03 for the defense. A person who has acted for the defense may not act in the same case 04 for the prosecution. 05 (d) Trial counsel or defense counsel detailed in a general or special court- 06 martial must be 07 (1) a judge advocate, or, if serving as defense counsel, otherwise 08 certified by the senior force judge advocate; and 09 (2) admitted to the practice of law in this state or otherwise permitted 10 to appear in an action in the courts of this state. 11 Sec. 26.05.458. Detail or employment of reporters and interpreters. (a) The 12 convening authority of a general or special court-martial or court of inquiry shall detail 13 or employ qualified court reporters, who shall record the proceedings of and testimony 14 taken before that court and may detail or employ interpreters to interpret for the court. 15 (b) A person may not act as a reporter or interpreter under this section in a 16 case if the person is the accuser, a witness, an investigating officer, counsel for a party, 17 or, if the trial is a rehearing, a member of a prior court-martial in the same case. 18 Sec. 26.05.460. Absent and additional members. (a) A member of a general 19 or special court-martial may not be absent or excused after the court has been 20 assembled for the trial of the accused unless the member is excused 21 (1) as a result of a challenge; or 22 (2) for good cause by the military judge or by order of the convening 23 authority. 24 (b) If a general court-martial, other than a general court-martial composed of 25 only a military judge, is reduced below five members, the trial may not proceed unless 26 the convening authority assigns new members sufficient in number to restore the court 27 to five members. The trial may proceed with the new members present after the 28 recorded evidence previously introduced before the members of the court has been 29 read to the court in the presence of the military judge, the accused, and counsel for 30 both sides. 31 (c) If a special court-martial, other than a special court-martial composed of
01 only a military judge, is reduced below three members, the trial may not proceed 02 unless the convening authority details new members in sufficient number to restore the 03 court to three members. The trial shall proceed with the new members present as if no 04 evidence had been introduced previously at the trial, unless a verbatim record of the 05 evidence previously introduced before the members of the court or a written 06 stipulation of the evidence is read to the court in the presence of the military judge, the 07 accused, and counsel for both sides. 08 (d) If the military judge of a court-martial composed of only a military judge 09 is unable to proceed with a trial because of a challenge or for other good cause, the 10 senior force judge advocate shall detail a new military judge. The trial shall proceed as 11 if no evidence had previously been introduced, unless a verbatim record of the 12 evidence previously introduced or a written stipulation of the evidence is read in court 13 in the presence of the new military judge, the accused, and counsel for both sides. 14 Sec. 26.05.463. Charges and specifications. (a) Charges and specifications 15 must be signed by a member of the militia in active state service under oath before a 16 commissioned officer authorized by AS 26.05.545 to administer oaths. The charges 17 and specifications must state 18 (1) that the signer has personal knowledge of, or has investigated, the 19 facts set out in the charges and specifications; 20 (2) that the charges and specifications are true in fact to the best of the 21 signer's knowledge and belief. 22 (b) The person proferring the charges and specifications shall present them to 23 the proper authority. The proper authority receiving the charges and specifications 24 shall immediately determine the disposition of the charges in the interest of justice and 25 discipline, and the person accused shall be informed of the charges as soon as 26 practicable. 27 Sec. 26.05.465. Compulsory self-incrimination prohibited. (a) A member of 28 the militia in active state service may not compel a person to make a self-incriminating 29 statement or to answer a question the answer to which may tend to incriminate the 30 person. 31 (b) A member of the militia in active state service may not interrogate or
01 request a statement from a person suspected of a military offense without first 02 informing the person of the nature of the accusation and advising the person that the 03 person does not have to make any statement regarding the military offense of which 04 the person is accused or suspected and that any statement made by the person may be 05 used as evidence against the person in a trial by court-martial. 06 (c) A member of the militia in active state service may not compel a person to 07 make a statement or produce evidence before a military court if the statement or 08 evidence is not material to the issue before the court and may tend to degrade the 09 person. 10 (d) A statement obtained from a person in violation of this section or through 11 the use of coercion, unlawful influence, or unlawful inducement may not be admitted 12 into evidence against the person in a trial by court-martial. 13 Sec. 26.05.468. Investigation. (a) A charge or specification may not be 14 referred to a general court-martial for trial until a thorough and impartial 15 investigation has been made of all the matters set out in the charge or specification. 16 The investigation must include inquiry into the truth of the matters set out in the 17 charges, consideration of the form of the charges, and a recommendation as to the 18 disposition that should be made of the case in the interest of justice and discipline. 19 (b) The accused has the right to be represented by counsel at an 20 investigation. If the accused requests the appointment of military counsel, the 21 investigating officer shall refer the request to the senior force judge advocate, who 22 shall promptly detail defense counsel to represent the accused at the investigation. 23 Defense counsel detailed under this section shall be qualified as provided for counsel 24 in general or special courts-martial under AS 26.05.455. 25 (c) The authority investigating the accused shall 26 (1) advise the accused of the charges against the accused and of the 27 accused's right to be represented by counsel under (b) of this section; 28 (2) give the accused the opportunity to cross-examine witnesses 29 against the accused, if the witnesses are available; 30 (3) give the accused the opportunity to present evidence on the 31 accused's own behalf, either in defense or mitigation; the investigating officer shall
01 examine available witnesses requested by the accused. 02 (d) If, after the investigation, the charges are referred to the court-martial, 03 the charges shall be accompanied by a statement of the substance of the 04 testimony taken, and a copy shall be given to the accused. 05 (e) If an investigation of a military offense is conducted before the accused is 06 charged with the military offense and the accused is present at the investigation and 07 provided with counsel and an opportunity to cross-examine witnesses and present 08 evidence under (c) of this section, no further investigation of that charge is necessary 09 under this section unless the accused demands further investigation after the accused 10 is informed of the charge. A demand for further investigation entitles the accused to 11 recall witnesses for further cross-examination and to offer new evidence in the 12 accused's own behalf. 13 (f) If evidence adduced in an investigation under this section indicates that 14 the accused committed an uncharged military offense, the investigating officer may 15 investigate the subject matter of that offense without the accused's having first been 16 charged with the military offense if the accused is 17 (1) present at the investigation; 18 (2) informed of the nature of each uncharged military offense 19 investigated; and 20 (3) provided with counsel and an opportunity to cross-examine 21 witnesses and present evidence under (c) of this section. 22 Sec. 26.05.470. Forwarding of charges. (a) When a person is held for trial by 23 general court-martial, the commanding officer shall, within eight days after the 24 accused is ordered into arrest or confinement, if practicable, forward the charges, 25 together with the investigation and associated records, to the person exercising general 26 court-martial jurisdiction. 27 (b) If it is not practicable to forward the charges and investigation and 28 associated records under (a) of this section, the commanding officer shall provide the 29 person with a written explanation for the delay. 30 Sec. 26.05.473. Advice of judge advocate and reference for trial. (a) Before 31 directing the trial of a charge by general court-martial, the convening authority shall
01 refer it to a judge advocate for consideration and advice. The convening authority may 02 not refer a specification under a charge to a general court-martial for trial unless the 03 convening authority has been advised in writing by a judge advocate that 04 (1) the specification alleges a military offense; 05 (2) the specification is warranted by the evidence set out in the report 06 of investigation under AS 26.05.468, if there is a report; and 07 (3) a court-martial has jurisdiction over the accused and the military 08 offense. 09 (b) The advice of the judge advocate under (a) of this section with respect to a 10 specification under a charge shall include a written and signed statement by the judge 11 advocate 12 (1) stating the judge advocate's conclusions with respect to each matter 13 set out in (a) of this section; and 14 (2) recommending to the convening authority what action to take 15 regarding the specification; if the specification is referred for trial, the 16 recommendation of the judge advocate must accompany the specification. 17 (c) If a charge or specification is not in the correct form or does not conform 18 to the substance of the evidence set out in the investigating officer's report, the 19 convening authority, with the advice of the judge advocate, may correct the charge or 20 specification to conform to the evidence. 21 Sec. 26.05.475. Service of charges. A trial counsel shall serve or caused to be 22 served on the accused a copy of the charges. A person may not, against the person's 23 objection, be brought to trial before a general court-martial within five days after the 24 service of charges on the person, or before a special court-martial within three days 25 after the service of charges on the person. 26 Sec. 26.05.478. Unlawfully influencing the action of a court. (a) An 27 authority convening a general, special, or summary court-martial, a commanding 28 officer, or an officer serving on the staff of a convening authority or commanding 29 officer may not censure, reprimand, or admonish the court, a member of the court, the 30 military judge, or counsel appearing before the court, with respect to the findings of or 31 sentence imposed by the court, or with respect to another exercise of the respective
01 functions of the court, a member of the court, the military judge, or counsel appearing 02 before the court in the conduct of the proceedings. 03 (b) A member of the militia in active state service may not attempt to coerce 04 or, by unauthorized means, influence the action of a court-martial or court of inquiry 05 or a member of a court, in reaching the findings or sentence in a case, or the action of 06 a convening, approving, or reviewing authority with respect to a judicial act. This 07 subsection does not apply to 08 (1) general instructional or informational courses in military justice if 09 the courses are designed solely for the purpose of instructing members of a command 10 in the substantive and procedural aspects of courts-martial; or 11 (2) statements and instructions given in open court by the military 12 judge, summary court-martial officer, or counsel. 13 (c) A member of the militia in active state service may not, in the preparation 14 of an effectiveness, fitness, or efficiency report, or any other report or document used, 15 in whole or in part, for the purpose of determining whether a member of the militia of 16 the state is qualified to be advanced in grade, in determining the assignment or transfer 17 of a member of the militia of the state, or in determining whether a member of the 18 militia of the state should be retained on active status, 19 (1) consider or evaluate the performance of duty of the member as a 20 member of a court-martial or witness; or 21 (2) give a less favorable rating or evaluation of any counsel for the 22 accused because of zealous representation before a court-martial. 23 (d) In this section, "unauthorized" means contrary to a statute or regulation of 24 the United States or the state. 25 Sec. 26.05.480. Continuances. The military judge of a general, special, or 26 summary court-martial may, for reasonable cause, grant a continuance to a party for 27 the time, and as often, as may appear to be just. 28 Sec. 26.05.483. Oaths or affirmations. (a) Before performing their respective 29 duties, military judges, general and special court-martial members, trial counsel, 30 defense counsel, reporters, and interpreters shall take an oath or affirmation in the 31 presence of the accused that they will perform their duties faithfully.
01 (b) The form of the oath or affirmation, the time and place of taking, the 02 manner of recording, and a determination of whether the oath or affirmation shall be 03 taken for all cases in which the duties are to be performed or for a particular case, shall 04 be prescribed in the rules of procedure adopted under AS 26.05.380. The rules may 05 provide that, if a person takes an oath or affirmation with respect to a duty, the person 06 need not take the oath or affirmation again on detailment to the duty. 07 (c) A witness before a court-martial shall be examined under oath or 08 affirmation. 09 Sec. 26.05.485. Statute of limitations. (a) A person charged with a military 10 offense may not be tried or punished for the military offense unless the person 11 received sworn charges and specifications issued by an officer exercising court-martial 12 jurisdiction over the command not later than three years after the commission of the 13 military offense or the imposition of a nonjudicial punishment for the military offense 14 under the code of military justice. 15 (b) A period when the accused is absent without authority or fleeing from 16 justice shall be excluded in computing the period of limitation in this section. 17 (c) A period when the accused is absent from territory in which the proper 18 authority has the ability to apprehend the accused, in the custody of civil authorities, 19 or in the hands of the enemy, shall be excluded in computing the period of limitation 20 in this section. 21 (d) When the United States is at war, the running of a period of limitation for a 22 military offense under this section is suspended until two years after the termination of 23 hostilities as proclaimed by the President of the United States or by a joint resolution 24 of the United States Congress if the military offense 25 (1) involves fraud or attempted fraud against the United States, a state, 26 or an agency of either, including a conspiracy to commit fraud; 27 (2) is committed in connection with the acquisition, care, handling, 28 custody, control, or disposition of real or personal property of the United States or a 29 state; or 30 (3) is committed in connection with the negotiation, procurement, 31 award, performance, payment, interim financing, cancellation, or other termination or
01 settlement, of a contract, subcontract, or purchase order that is connected with or 02 related to the prosecution of the war, or with the disposition of inventory by a war 03 contractor or government agency. 04 (e) If charges or specifications are dismissed as defective or insufficient for 05 any cause, and the period prescribed by the applicable statute of limitations has 06 expired or will expire within 180 days after the date of dismissal of the charges and 07 specifications, trial and punishment under new charges and specifications are not 08 barred by the statute of limitations if the new charges and specifications 09 (1) are received by an officer exercising summary court-martial 10 jurisdiction over the command within 180 days after the dismissal of the charges or 11 specifications; 12 (2) allege the same acts or omissions that were alleged in the dismissed 13 charges or specifications or acts or omissions that were included in the dismissed 14 charges or specifications. 15 Sec. 26.05.488. Former jeopardy. (a) A person may not, without the person's 16 consent, be tried a second time for the same military offense. 17 (b) A proceeding in which an accused has been found guilty by a court-martial 18 on any charge or specification is not a trial under the code of military justice until a 19 finding of guilty has become final after review of the case has been completed. 20 (c) A proceeding that, after the introduction of evidence but before a finding, 21 is dismissed or terminated by the convening authority or on motion of the prosecution 22 for failure of available evidence or witnesses, without any fault of the accused, is a 23 trial. 24 Sec. 26.05.490. Pleas of the accused. (a) If, after arraignment, an accused 25 makes an irregular pleading or, after a plea of guilty, initiates an action inconsistent 26 with the plea, or if the accused appears to have entered the plea of guilty 27 improvidently or through lack of understanding of its meaning and effect, or if the 28 accused fails or refuses to plead, a plea of not guilty shall be entered in the record, and 29 the court shall proceed as though the accused had pleaded not guilty. 30 (b) With respect to a charge or specification to which a plea of guilty has been 31 made by the accused and accepted by the military judge or by a court-martial without
01 a military judge, a finding of guilty of the charge or specification may be entered 02 immediately without vote. This finding shall constitute the finding of the court unless 03 the plea of guilty is withdrawn before announcement of the sentence, in which event, 04 the proceedings shall continue as though the accused had pleaded not guilty. 05 Sec. 26.05.493. Subpoena; process of military courts. (a) A military judge, 06 the president of a court-martial, or a summary court-martial officer may issue 07 subpoenas and subpoenas duces tecum for the attendance of witnesses and production 08 of books and records, if the courts are sitting within the state and the witnesses, books, 09 and records sought are located in the state. A subpoena may be served by a person 10 designated by the military judge, the president of the court-martial, or summary court- 11 martial officer. 12 (b) If a person who is not a member of the militia of the state fails to comply 13 with a subpoena issued under this section, the military judge, president of the court- 14 martial, or summary court-martial officer may apply to a state court for an order to 15 compel obedience by proceedings for contempt as if the subpoena had been issued by 16 a court. The military judge, president of the court-martial, or summary court-martial 17 officer may request the attorney general to bring the action. 18 (c) A person who is not a member of the militia in active state service, who 19 has been subpoenaed to appear as a witness or to produce books and records before a 20 court-martial or court of inquiry or before a military or civil officer designated to take 21 a deposition to be read in evidence before a court-martial, who has been paid or 22 tendered the fees and mileage of a witness at the rates allowed to witnesses attending a 23 criminal court of the state, and who wilfully neglects or refuses to appear or refuses to 24 qualify as a witness or to testify or to produce evidence that the person may have been 25 legally subpoenaed to produce is guilty of a violation and may be charged and 26 punished as provided in AS 12.55. 27 Sec. 26.05.495. Contempts. (a) A military judge or summary court-martial 28 officer may punish for contempt a person who uses a menacing word, sign, or gesture 29 in its presence, or who disturbs its proceedings by any riot or disorder. 30 (b) A military judge or summary court-martial officer may punish a member 31 of the militia in active state service for contempt by confinement not to exceed 30 days
01 or a fine of $100, or both. 02 (c) A military judge or summary court-martial officer may punish a person 03 who is not a member of the militia in active state service for direct contempt in an 04 amount not to exceed $100. 05 Sec. 26.05.498. Defense of insanity. (a) The accused may assert the 06 affirmative defense of insanity as provided in AS 12.47.010. If the accused gives 07 notice of the defense, the accused shall file with the military judge the notice required 08 by AS 12.47.090. 09 (b) If the accused asserts the defense of insanity under (a) of this section, the 10 court shall order an examination to be conducted that meets the standards of 11 AS 12.47.070. 12 (c) If the defense of insanity is properly at issue, the military judge shall 13 instruct the members of the court as to the defense and charge them to find the accused 14 (1) guilty; 15 (2) not guilty; or 16 (3) not guilty by reason of insanity. 17 (d) The accused may be found not guilty by reason of insanity if 18 (1) a majority of the members of the court-martial present at the time 19 the vote is taken determines that the defense of insanity has been established; or 20 (2) in the case of a court-martial composed of a military judge or a 21 summary court-martial officer sitting without court members, the military judge or 22 summary court-martial officer determines that the defense of insanity has been 23 established. 24 (e) In the case of a court-martial composed of a military judge or a summary 25 court-martial officer sitting without court members, if the defense of insanity is 26 properly at issue, the military judge or summary court-martial officer shall find the 27 accused 28 (1) guilty; 29 (2) not guilty; or 30 (3) not guilty by reason of insanity. 31 (f) If an accused is found not guilty by reason of insanity, trial counsel shall,
01 within 24 hours, file a petition under AS 47.30.700 for a screening investigation to 02 determine the need for treatment if trial counsel has good cause to believe that the 03 defendant is suffering from a mental illness and, as a result, is gravely disabled or 04 likely to cause serious harm to self or others. In this subsection, "mental illness" has 05 the meaning given in AS 47.30.915. 06 Sec. 26.05.500. Lack of mental capacity or mental responsibility; 07 commitment of accused for examination and treatment. (a) An accused who, as a 08 result of a mental disease or defect that renders the accused incompetent to the extent 09 that the accused is unable to understand the nature of the proceedings or to conduct or 10 cooperate intelligently in the defense of the case, may not be tried, convicted, or 11 sentenced for the military offense so long as the incompetency exists. 12 (b) If trial counsel or defense counsel has reason to believe that the accused is 13 unable to understand the nature of the proceedings or to conduct or cooperate 14 intelligently in the defense of the case, counsel may file a motion with the military 15 judge assigned to the case for a determination of the competency of the accused. Upon 16 the motion, or on the judge's own motion, the court shall order an examination to be 17 conducted and make a determination in accordance with the requirements of 18 AS 12.47.100. If the military judge determines that the accused must be committed for 19 the purpose of examination, and the accused is not otherwise subject to commitment 20 under AS 47.30.700 - 47.30.915, the military judge shall order the convening authority 21 to seek the assistance of the attorney general in seeking a commitment under 22 AS 12.47.100. 23 (c) If the military court determines that the accused is incompetent to stand 24 trial and the accused is not otherwise subject to commitment under AS 47.30.700 - 25 47.30.915, the military judge shall order the convening authority to seek the assistance 26 of the attorney general in seeking a commitment under AS 12.47.110. 27 (d) If, at the end of a period of commitment under (b) and (c) of this section, it 28 is determined that the accused's mental condition has not improved so as to permit the 29 trial to proceed, the charges shall be dismissed without prejudice, and continued 30 commitment proceedings shall be governed by the provisions relating to civil 31 commitment under AS 47.30.700 - 47.30.915. If the accused remains incompetent for
01 five years after the charges have been dismissed under this subsection, the accused 02 may not be charged again for a military offense arising out of the facts alleged in the 03 original charges. 04 (e) When the custodian of an accused person hospitalized under (c) of this 05 section determines that the person has recovered to the an extent that the accused is 06 able to understand the nature of the proceedings against the accused and to conduct or 07 cooperate intelligently in the defense of the case, the custodian shall promptly transmit 08 a notification of the determination to the general court-martial convening authority for 09 the accused and trial and defense counsel. 10 (f) Upon receipt of the notice, the convening authority shall promptly take 11 custody of the accused unless the accused is no longer a member of the militia in 12 active state service. 13 (g) If the accused remains a member of the militia in active state service, the 14 military judge detailed to the case shall conduct the hearing required under 15 AS 12.47.120. If the judge finds the accused competent, the court-martial shall be 16 assembled. 17 (h) The custodian of the accused person may retain custody of the person for 18 not more than 30 days after transmitting the notifications required under (e) of this 19 section. 20 (i) If, during a period of commitment under this section, the accused is no 21 longer a member of the militia in active state service, the convening authority shall 22 promptly notify the custodian and the attorney general; the custodian and the attorney 23 general may take what further action may be appropriate. 24 Sec. 26.05.503. Voting and rulings. (a) Voting by members of a general or 25 special court-martial on the findings and on the sentence shall be by secret written 26 ballot. The junior member of the court shall count the votes. The count shall be 27 checked by the president, who shall immediately announce the result of the ballot to 28 the members of the court. 29 (b) The military judge shall rule on all questions of law and all interlocutory 30 questions arising during the proceedings. A ruling made by the military judge on a 31 question of law or an interlocutory question, other than the factual issue of mental
01 responsibility of the accused, is final and constitutes the ruling of the court. However, 02 the military judge may change the ruling at any time during the trial. Unless the ruling 03 is final, if a member objects to a ruling, the court shall be cleared and closed, and the 04 question shall be decided by a voice vote as provided in AS 26.05.505, beginning with 05 the junior in rank. 06 (c) Before a vote is taken on the findings, the military judge shall, in the 07 presence of the accused and counsel, instruct the members of the court as to the 08 elements of the military offense and charge them that 09 (1) the accused is presumed to be innocent until the guilt of the 10 accused is established by legal and competent evidence beyond a reasonable doubt; 11 (2) if there is a reasonable doubt as to the guilt of the accused, the 12 doubt must be resolved in favor of the accused, and the accused must be acquitted; 13 (3) if there is a reasonable doubt as to the degree of guilt, a finding of 14 guilt must be in a lower degree as to which there is no reasonable doubt; and 15 (4) the burden of proof to establish the guilt of the accused beyond a 16 reasonable doubt is on the state. 17 (d) A military judge sitting without court members shall 18 (1) determine all questions of law and fact arising during the 19 proceedings and, if the accused is convicted, adjudge an appropriate sentence; 20 (2) make a general finding and shall, in addition, on request, find the 21 facts specially. 22 (e) If a military judge sitting without court members files an opinion or 23 memorandum of decision, the opinion or memorandum of decision is sufficient if the 24 findings of fact appear in the opinion or memorandum of decision. 25 Sec. 26.05.505. Number of votes required. (a) A person may not be convicted 26 of a military offense tried by a court-martial unless by the unanimous verdict of the 27 members of the court present at the time the vote is taken. 28 (b) All other questions to be decided by the members of a general or special 29 court-martial shall be determined by a majority vote, but a determination to reconsider 30 a finding of guilty or to reconsider a sentence, with a view toward decreasing it, may 31 be made by any lesser vote that indicates that the reconsideration is not opposed by the
01 number of votes required for that finding or sentence. A tie vote on a challenge 02 disqualifies the member challenged. A tie vote on any other question is a 03 determination in favor of the accused. 04 Sec. 26.05.508. Record of trial. (a) Each general and special court-martial 05 shall keep a separate record of the proceedings in each case brought before it, and the 06 record must be authenticated by the signature of the military judge. If the military 07 judge cannot authenticate the record because of the military judge's death, disability, 08 or absence, the record shall be authenticated by the signature of the trial counsel or, if 09 the trial counsel is unable to authenticate the record because of the trial counsel's 10 death, disability, or absence, then by the signature of a member of the court. In a 11 court-martial consisting of only a military judge, the record shall be authenticated by 12 the court reporter under the same conditions that would impose a duty on a member 13 under this subsection. 14 (b) In each general and special court-martial case resulting in a conviction, a 15 complete verbatim record of the proceedings and testimony shall be prepared. In all 16 other court-martial cases, the record shall contain the matters as may be prescribed by 17 the rules of procedure adopted under AS 26.05.380. 18 (c) Each summary court-martial shall keep a separate record of the 19 proceedings in each case, and the record shall be authenticated in the manner as may 20 be prescribed by the rules of procedure adopted under AS 26.05.380. 21 (d) A copy of the record of the proceedings of each general and special court- 22 martial shall be given to the accused as soon as the record is authenticated. 23 Sec. 26.05.510. Cruel and unusual punishments prohibited. A court-martial 24 may not impose on a member of the militia in active state service punishment by 25 flogging, branding, marking, or tattooing on the body, or another cruel or unusual 26 punishment. The use of irons, single or double, except for the purpose of safe custody, 27 is prohibited. 28 Sec. 26.05.513. Punishments; maximum limits. (a) A court-martial may not 29 impose a punishment for a military offense that exceeds the limits set out in the code 30 of military justice and may not impose a sentence of death. A sentence for a military 31 offense may not exceed 10 years. A crime for which a sentence of confinement for a
01 term of more than one year is authorized is a felony offense. Except for convictions by 02 a summary court-martial and except as otherwise specifically provided in the code of 03 military justice, all other military offenses are misdemeanors. A conviction by a 04 summary court-martial is a violation. 05 (b) The maximum punishment for a violation of the code of military justice 06 shall be the lesser of the sentences prescribed by the manual for courts-martial of the 07 United States in effect on January 1, 2004, and the code of military justice. 08 Sec. 26.05.515. Deferment of sentences. (a) If an accused is under sentence to 09 confinement that has not yet been ordered executed, the convening authority or, if the 10 accused is no longer under the convening authority's jurisdiction, the person exercising 11 general court-martial jurisdiction over the command to which the accused is currently 12 detailed may, in that person's sole discretion, defer service of the sentence to 13 confinement. The deferment terminates when the sentence is ordered to be executed. 14 The deferment may be rescinded at any time by the authority who granted it or, if the 15 accused is no longer under that person's jurisdiction, by the person exercising general 16 court-martial jurisdiction over the command to which the accused is currently detailed. 17 (b) If a court-martial sentences an accused to confinement, the convening 18 authority may, without the consent of the accused, defer the service of the sentence 19 until after the accused has been permanently released to the militia of the state by a 20 state, the United States, or a foreign country 21 (1) that had custody of the accused; 22 (2) that temporarily returned the accused to the militia of the state for 23 trial by court-martial; and 24 (3) to which, after the court-martial, the militia of the state returned the 25 accused under the authority of a mutual agreement or treaty. 26 (c) In a case in which a court-martial sentences an accused to confinement and 27 the sentence to confinement has been ordered executed, but in which review of the 28 case under AS 26.05.525, 26.05.538, or 26.05.540 pending, the adjutant general may 29 defer further service of the sentence to confinement while that review is pending. 30 (d) In (b) of this section, "state" includes the District of Columbia and any 31 commonwealth, territory, or possession of the United States.
01 Sec. 26.05.518. Execution of confinement. A person must serve a sentence of 02 confinement imposed by a court-martial, whether or not the sentence includes 03 discharge or dismissal from the militia of the state, and whether or not the discharge or 04 dismissal has been executed. The sentence may be carried into execution by 05 confinement in a place authorized by the code of military justice. A person confined 06 under the code of military justice is subject to the same discipline and treatment as 07 other persons confined or committed to the place of confinement. 08 Sec. 26.05.520. Error of law; lesser included military offense. (a) A finding 09 or sentence of a court-martial may not be held incorrect on the ground of an error of 10 law unless the error materially prejudices the substantial rights of the accused. 11 (b) A reviewing authority authorized under the code of military justice to 12 approve or affirm a finding of guilt may approve or affirm, instead, so much of the 13 finding as includes a lesser included military offense. 14 Sec. 26.05.523. Withdrawal of appeal. In a case subject to appellate review 15 under the code of military justice, the accused may, at any time, file with the 16 convening authority a written statement expressly withdrawing the right of the accused 17 to the appeal. The withdrawal shall be signed by both the accused and the accused's 18 defense counsel and filed in accordance with the procedures adopted under 19 AS 26.05.380. 20 Sec. 26.05.525. Appeal by the state. (a) In a trial by court-martial in which a 21 punitive discharge may be adjudged, the state may appeal 22 (1) an order or ruling of the military judge that terminates the 23 proceedings with respect to a charge or specification; 24 (2) an order or ruling that excludes evidence that is substantial proof of 25 a fact material in the proceeding; 26 (3) an order or ruling that directs the disclosure of classified 27 information; 28 (4) an order or ruling that imposes sanctions for nondisclosure of 29 classified information; 30 (5) the refusal of the military judge to issue a protective order sought 31 by the prosecution to prevent the disclosure of classified information;
01 (6) the refusal of the military judge to enforce an order issued under 02 (a)(5) of this section that was previously issued by an appropriate authority. 03 (b) An appeal of an order or ruling may not be taken unless the trial counsel 04 provides the military judge with written notice of appeal from the order or ruling 05 within 72 hours after the order or ruling. The notice must include a certification by the 06 trial counsel that the appeal is not taken for the purpose of delay and, if the order or 07 ruling appealed is one that excludes evidence, that the evidence excluded is substantial 08 proof of a fact material in the proceeding. 09 (c) An appeal under this section shall be forwarded to the court of appeals 10 under AS 26.05.540. In ruling on the appeal, the appellate authority may act only with 11 respect to matters of law. 12 (d) A period of delay resulting from an appeal under this section shall be 13 excluded in deciding an issue involving the denial of a speedy trial, unless an 14 appropriate authority determines that the appeal was filed solely for the purpose of 15 delay with the knowledge that it was totally frivolous and without merit. 16 (e) The state may not appeal a finding of not guilty with respect to a charge or 17 specification by the members of the court-martial, or by a judge in a bench trial if the 18 finding was not made on reconsideration. 19 Sec. 26.05.528. Vacation of suspension. (a) A person who is serving a period 20 of probation under a sentence suspended by a special court-martial that, as approved, 21 includes a bad-conduct discharge, or a suspended general court-martial sentence, is 22 entitled to a hearing before the suspension is vacated. The probationer shall be 23 represented at the hearing by military counsel if the probationer requests 24 representation. 25 (b) If the suspended sentence was imposed by a special court-martial, the 26 officer having special court-martial jurisdiction over the probationer shall hold a 27 hearing on the alleged violation of probation. The record of the hearing and the 28 recommendation of the officer having special court-martial jurisdiction shall be sent 29 for action to the officer exercising general court-martial jurisdiction over the 30 probationer. If the officer vacates the suspension, the unexecuted part of the sentence, 31 except a dismissal, shall be executed, subject to applicable restrictions in the code of
01 military justice. 02 (c) The suspension of another sentence may be vacated by an authority for the 03 command in which the accused is serving or detailed who is competent to convene a 04 court of the kind that imposed the sentence. 05 Sec. 26.05.530. Petition for a new trial. At any time within two years after 06 approval by the convening authority of a court-martial sentence, the accused may 07 petition the adjutant general for a new trial on the grounds of newly discovered 08 evidence or fraud on the court-martial. 09 Sec. 26.05.533. Restoration. (a) In accordance with rules adopted under 10 AS 26.05.380, all rights, privileges, and property affected by an executed part of a 11 court-martial sentence that has been set aside or disapproved, except an executed 12 dismissal or discharge, shall be restored unless a new trial or rehearing is ordered and 13 the executed part is included in a sentence imposed on the new trial or rehearing. 14 (b) If a previously executed sentence of dishonorable or bad-conduct 15 discharge is not imposed on a new trial, the governor may substitute an administrative 16 form of discharge unless the accused is to serve out the remainder of the accused's 17 enlistment. 18 (c) If a previously executed sentence of dismissal is not imposed on a new 19 trial, the governor may substitute an administrative form of discharge, and a 20 commissioned officer dismissed under the original sentence may be reappointed by the 21 governor alone to the commissioned grade and rank that, in the opinion of the 22 governor, the former officer would have attained had the officer not been dismissed. 23 The reappointment of the former officer shall be without regard to the existence of a 24 vacancy and shall affect the promotion status of other officers only to the extent the 25 governor may direct. The time between the dismissal and the reappointment shall be 26 considered as actual service for all purposes, including the right to pay and 27 allowances. 28 Sec. 26.05.535. Leave required to be taken pending review of court- 29 martial convictions. In accordance with rules adopted under AS 26.05.380, an 30 accused who has been sentenced by a court-martial may be required to take leave 31 pending completion of action under this section if the sentence includes an
01 unsuspended dismissal or an unsuspended dishonorable or bad-conduct discharge. The 02 accused may be required to begin the leave on the date on which the sentence is 03 approved under the code of military justice, or at any time after that date, and the leave 04 may be continued until the date on which action under this section is completed, or 05 may be terminated at any earlier time. 06 Sec. 26.05.538. Military Appeals Commission. (a) The Military Appeals 07 Commission is established in the Department of Military and Veterans' Affairs. The 08 commission is a quasi-judicial agency. 09 (b) The commission has jurisdiction to hear appeals from sentences and 10 punishments imposed by courts-martial under the code of military justice. 11 (c) The commission consists of three members appointed by the governor and 12 confirmed by a majority of the members of the legislature in joint session. A member 13 shall be a resident of this state and 14 (1) be licensed to practice law 15 (A) in this state and be a member in good standing with the 16 Alaska Bar Association; 17 (B) in another state and be a member in good standing of the 18 bar of that state; or 19 (C) as a member of the bar of a federal court; 20 (2) have engaged in the active practice of law for at least five years; 21 (3) be a former commissioned officer in the armed forces of the United 22 States or the reserve components, or in the militia of a state; and 23 (4) have at least five years' experience as an officer in the judge 24 advocate general's corps of the armed forces of the United States or the militia of the 25 state. 26 (d) Except as provided in AS 39.05.080(4), an appointee selected to fill a 27 vacancy shall hold office for the unexpired term of the member whose vacancy is 28 filled. A vacancy in the commission does not impair the authority of a quorum of 29 members to exercise the powers and perform the duties of the commission. 30 (e) A member may be reappointed if the reappointment complies with this 31 section.
01 (f) The members of the commission shall select a chair from among the 02 members of the commission. The selection shall be subject to the approval of the 03 adjutant general. 04 (g) The governor may remove a commissioner from office for cause including 05 but not limited to incompetence, neglect of duty, or misconduct in office. A 06 commissioner, to be removed for cause, shall be given a copy of the charges and 07 offered an opportunity to be publicly heard in person or by counsel in the 08 commissioner's own defense upon not less than 10 days' notice. If a commissioner is 09 removed for cause, the governor shall file with the lieutenant governor a complete 10 statement of all charges made against the commissioner and the governor's finding 11 based on the charges, together with a complete record of the proceedings. 12 (h) The adjutant general shall adopt regulations to govern appellate procedure 13 before the court. The regulations shall be substantially similar to the provisions for 14 post-trial procedure and review of courts-martial under 10 U.S.C. 801 - 946. The 15 regulations must be approved by the governor. Regulations adopted under this section 16 are exempt from AS 44.62 (Administrative Procedure Act). 17 Sec. 26.05.540. Appellate review. (a) A person may, after exhausting all 18 remedies available under the code of military justice, appeal to the court of appeals the 19 conviction and sentence imposed by a general or special court-martial for a military 20 offense for which a sentence of confinement is imposed under the code of military 21 justice and as permitted by AS 12.55.120. 22 (b) A person filing an appeal under this section shall comply with the rules of 23 court applicable to the proceedings, including the deadlines for filing. 24 Sec. 26.05.543. Appellate counsel. (a) The senior force judge advocate shall 25 detail a judge advocate as appellate trial counsel to represent the state in an appeal 26 filed under AS 26.05.525, 26.05.538, or 26.05.540, and before any federal court when 27 requested to do so by the attorney general. Counsel appointed under this subsection 28 must be a member in good standing of the bar of the highest court of the state to which 29 the appeal is taken. 30 (b) If the state brings an appeal, the accused has the right to be represented by 31 detailed military counsel before a reviewing authority or appellate court.
01 (c) If the accused brings an appeal, the accused has the right to be represented 02 by detailed military counsel before a reviewing authority. 03 (d) Upon the request of an accused entitled to be represented under this 04 section, the senior force judge advocate shall detail a judge advocate to represent the 05 accused in the review or appeal of cases under (b) and (c) of this section. Counsel 06 detailed under this subsection shall be qualified as provided for counsel in general and 07 special courts-martial under AS 26.05.455(d). 08 (e) A person who has acted as investigating officer, trial counsel, military 09 judge, witness, or court member in the case may not act as appellate counsel for the 10 accused under (d) of this section. 11 (f) An accused may be represented by civilian appellate counsel at no expense 12 to the state. 13 Sec. 26.05.545. Authority to administer oaths and act as notary public. (a) 14 The following persons may administer oaths for the purposes of military 15 administration, including military justice: 16 (1) a judge advocate; 17 (2) a summary court-martial; 18 (3) the adjutant general and assistant adjutant generals; 19 (4) a commanding officer of the militia; 20 (5) a person authorized by statute or by regulations of the armed forces 21 of the United States or the state to administer oaths or act as a notary public. 22 (b) The following persons may administer oaths necessary in the performance 23 of their duties: 24 (1) the president, military judge, and trial counsel for general and 25 special courts-martial; 26 (2) the president and the counsel for the court of a court of inquiry; 27 (3) an officer designated to take a deposition; 28 (4) a person detailed to conduct an investigation; 29 (5) a recruiting officer; 30 (6) a person authorized by statute or by regulations of the armed forces 31 of the United States to administer oaths or act as a notary public.
01 (c) The person's signature without seal, together with the title of the person's 02 office, is prima facie evidence of the person's authority to administer oaths and act as a 03 notary public under this section. 04 Sec. 26.05.550. Delegation by the governor. The governor may delegate any 05 authority vested in the governor under the code of military justice, and provide for the 06 subdelegation of the authority, except the powers given to the governor by 07 AS 26.05.170 and 26.05.445. 08 Sec. 26.05.553. Military justice account. (a) The military justice account is 09 established in the general fund for the purpose of paying the expenses of the 10 department in carrying out its duties relating to the code of military justice, including 11 the fees and authorized travel expenses of witnesses, experts, victims, court reporters, 12 and interpreters, fees for the service of process, costs of collection, apprehension, 13 detention and confinement, pay and allowances for court-martial duty, and all other 14 necessary expenses of the prosecution and administration of military justice not 15 otherwise payable by another source. 16 (b) The account consists of money appropriated to it by the legislature and 17 interest received on money in the account. 18 (c) The department may use money appropriated to the account to pay for 19 expenses related to the duties described in (a) of this section. 20 (d) Money appropriated to the account does not lapse. 21 (e) Nothing in this section creates a dedicated fund. 22 (f) In this section, "account" means the military justice account established 23 under (a) of this section. 24 Sec. 26.05.555. Payment, collection, and deposit of fines. (a) A fine imposed 25 by a military court or through the imposition of nonjudicial punishment may be paid to 26 the state and delivered to the court or imposing officer, or to a person executing 27 process. 28 (b) If the person on whom the fine was imposed fails to pay, the department 29 may collect the fine by 30 (1) retaining pay or allowances due or to become due to the person 31 fined from the militia of the state or the United States;
01 (2) garnishment or levy, together with costs, on the wages, goods, and 02 property of a person delinquent in paying a fine in accordance with AS 09.38. 03 (c) A fine or penalty required to be paid under this section shall be deposited 04 into the general fund and accounted for under AS 37.05.142. 05 Sec. 26.05.558. Pay and allowances for court-martial duty. For each day of 06 duty as a member of a general court-martial, or as a witness under summons from the 07 president or judge advocate of the court, officers and enlisted persons shall be paid as 08 provided in AS 26.05.260(b). 09 Sec. 26.05.560. Uniformity of interpretation. The code of military justice 10 shall be construed to carry out their general purpose and, so far as practicable, in a 11 manner uniform with 10 U.S.C. 801 - 946. 12 Sec. 26.05.563. Immunity for action of military courts. A person acting 13 under the code of military justice, whether as a member of the militia or as a civilian, 14 shall be immune from any personal liability for any of the acts or omissions that the 15 person did or failed to do as part of the person's duties under the code of military 16 justice. 17 Sec. 26.05.590. Definitions. In this chapter, unless the context otherwise 18 requires, 19 (1) "accuser" means a person who signs and swears to charges, a 20 person who directs that charges nominally be signed and sworn to by another, and any 21 other person who has an interest other than an official interest in the prosecution of the 22 accused; 23 (2) "active state service" means all duties performed in the militia of 24 the state under an order issued under AS 26.05.070 or otherwise issued by the 25 authority of law, including travel to and from active duty, all encampments, armory 26 drill periods, and parade periods by the militia; "active state service" excludes all 27 duties performed while in active federal service; 28 (3) "arrest" means the restraint of a person by an order, not imposed as 29 a punishment for an offense, directing the person to remain within certain specified 30 limits; 31 (4) "cadet," "candidate," or "midshipman" means a person who is
01 enrolled in or attending a state military academy, a regional training institute, or any 02 other formal education program for the purpose of becoming a commissioned officer 03 in the militia of the state; 04 (5) "classified information" means 05 (A) information or material that has been determined by an 06 official of the United States or any state under law, an executive order, or 07 regulation to require protection against unauthorized disclosure for reasons of 08 national or state security; and 09 (B) restricted data, as defined in 42 U.S.C. 2014(y) (Atomic 10 Energy Act of 1954); 11 (6) "code of military justice" means the provisions of this chapter and 12 the code adopted under AS 26.05.380; 13 (7) "commanding officer" or "commander" includes only 14 commissioned officers of the militia of the state and includes officers in charge only 15 when administering a nonjudicial punishment under the code of military justice; 16 (8) "confinement" means the physical restraint of a person; 17 (9) "convening authority" includes, in addition to the person who 18 convened the court, a commissioned officer commanding for the time being or a 19 successor in command to the convening authority; 20 (10) "day" means calendar day and is not synonymous with the term 21 "unit training assembly"; 22 (11) "department" means the Department of Military and Veterans' 23 Affairs; 24 (12) "enlisted member" means a person in an enlisted grade; 25 (13) "military court" means a court-martial or court of inquiry; 26 (14) "military judge" means an official of a general or special court- 27 martial described under AS 26.05.453; 28 (15) "military offense" means an offense specified in AS 26.05.120 29 and in the code of military justice; 30 (16) "militia" or "militia of the state" means the Alaska National 31 Guard, the Alaska Naval Militia, and the Alaska State Defense Force;
01 (17) "national security" means the national defense and foreign 02 relations of the United States; 03 (18) "officer" means a commissioned or warrant officer; 04 (19) "officer in charge" means a member of the naval militia, United 05 States Navy, United States Marine Corps, or United States Coast Guard designated by 06 the appropriate authority; 07 (20) "record," when used in connection with the proceedings of a 08 court-martial, means 09 (A) an official written transcript, written summary, or other 10 writing relating to the proceedings; or 11 (B) an official audiotape, videotape, digital image or file, or 12 similar material from which sound, or sound and visual images, depicting the 13 proceedings may be reproduced; 14 (21) "senior force judge advocate" means the senior judge advocate of 15 the commander of the same force of the militia of the state as the accused and who is 16 that commander's chief legal advisor; 17 (22) "unit" means a regularly organized body of the militia of the state 18 not larger than a company, a squadron, a division of the naval militia, or a body 19 corresponding to one of them. 20 * Sec. 5. AS 33.30.011 is amended by adding a new subsection to read: 21 (b) In this section, "held under authority of state law" includes the 22 confinement of persons under AS 26.05 and the code of military justice adopted under 23 AS 26.05.380. 24 * Sec. 6. AS 33.30.051 is amended by adding a new subsection to read: 25 (b) A person restrained under AS 26.05.425 or convicted of a military offense 26 by court-martial under AS 26.05 and confined under AS 26.05.428 shall be committed 27 to the custody of the commissioner for the period of restraint or confinement as 28 directed by the adjutant general. 29 * Sec. 7. AS 44.23.020 is amended by adding a new subsection to read: 30 (i) If requested by a military judge or the convening authority of a court- 31 martial, assist the court-martial in obtaining the commitment of a person accused of a
01 military offense under AS 26.05, including the code of military justice adopted under 02 AS 26.05.380, for a competency examination under AS 12.47.100 or on a finding of 03 incompetency under AS 12.47.110. In this subsection, "military offense" has the 04 meaning given in AS 26.05.590. 05 * Sec. 8. AS 44.35.020(a) is amended to read: 06 (a) The Department of Military and Veterans' Affairs shall 07 (1) conduct the military affairs of the state as prescribed by AS 26.05, 08 including the code of military justice adopted under AS 26.05.380 [THE 09 MILITARY CODE]; 10 (2) cooperate with the federal government in matters of mutual 11 concern pertaining to the welfare of Alaska [ALASKAN] veterans, including 12 establishing, extending, or strengthening services for veterans in the state; 13 (3) annually, not later than February 1, make available a report to the 14 legislature, through the governor, outlining the department's activities during the 15 previous calendar year; the department shall notify the legislature that the report is 16 available; and 17 (4) cooperate with the Department of Public Safety to develop and 18 implement missing vulnerable adult prompt response and notification plans under 19 AS 44.41.060. 20 * Sec. 9. AS 26.05.300, 26.05.310, 26.05.320, 26.05.322, 26.05.324, 26.05.326, 26.05.330, 21 and 26.05.350 are repealed. 22 * Sec. 10. The uncodified law of the State of Alaska is amended by adding a new section to 23 read: 24 APPLICABILITY. AS 26.05.380 - 26.05.590, enacted by sec. 4 of this Act, and sec. 9 25 of this Act apply to offenses occurring on or after the effective date of secs. 4 and 9 of this 26 Act. 27 * Sec. 11. The uncodified law of the State of Alaska is amended by adding a new section to 28 read: 29 MILITARY APPEALS COMMISSION; STAGGERED TERMS. Notwithstanding 30 AS 26.05.538, enacted by sec. 4 of this Act, and AS 39.05.055, the governor shall appoint the 31 members of the commission to staggered initial terms as follows:
01 (1) one member shall be appointed for two years; 02 (2) one member shall be appointed for four years; and 03 (3) one member shall be appointed for six years. 04 * Sec. 12. The uncodified law of the State of Alaska is amended by adding a new section to 05 read: 06 TRANSITION: REGULATIONS. The adjutant general shall adopt regulations to 07 implement AS 26.05.380 - 26.05.590, enacted by sec. 4 of this Act. The regulations take 08 effect when approved by the governor, but not before the effective date of the law being 09 implemented. 10 * Sec. 13. Section 12 of this Act takes effect immediately under AS 01.10.070(c). 11 * Sec. 14. Except as provided in sec. 13 of this Act, this Act takes effect July 1, 2016.