HB 126-CODE OF MILITARY JUSTICE; APPEALS  1:44:46 PM CHAIR LEDOUX announced that the final order of business would be HOUSE BILL NO. 126, "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 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." [Before the committee was CSHB 126, labeled 29-LS0473\E.] 1:45:00 PM THOMAS BROWN, Staff, Representative Gabrielle LeDoux, Alaska State Legislature, said he will give a brief overview of HB 126, offer a sectional analysis, and Lieutenant Forrest Dunbar will then provide an overview. Mr. Brown explained that HB 126 is legislation crafted at the request of Alaska's military command requesting greater authority and latitude in pursuing and prosecuting service members who violated military rules and protocols. This version of the bill is a synthesis of a separate bill presented by Representative Chris Tuck, HB 121, which sought the same ends as HB 126, but came at the result from a different means. This bill seeks to grant authority to the Department of Military and Veterans Affairs (DMVA) and allow the creation of regulations to govern themselves. Representative Tuck's bill, HB 121, sought the same but chose statute as opposed to regulation. MR. BROWN advised the sectional analysis lays out the result of that synthesis. 1:47:23 PM REPRESENTATIVE GRUENBERG advised he received pages 44-54, HB 121, Representative Tuck's bill, and asked where the language originated. 1:47:51 PM LIEUTENANT FOREST DUNBAR, First Lieutenant, Judge Advocate Officer, Alaska Army National Guard, advised Representative Gruenberg that he sent pages 44-45 to him after their meeting, and that the language came from the Model State Code [of Military Justice] created by the National Guard Bureau. REPRESENTATIVE GRUENBERG asked Lieutenant Dunbar whether he will identify what portion of the bill is from the Model State Code of Military Justice, and what is not. CHAIR LEDOUX interjected that the bill is not moving out of committee today, therefore, the committee can meet and craft the perfect bill before attending the second session of the legislature in January. 1:48:50 PM LIEUTENANT DUNBAR advised that the vast majority of the language in HB 126, whether originally HB 126 or brought across from HB 121, is taken from the Model State Code of Military Justice created by the National Guard Bureau. 1:49:40 PM MR. BROWN offered the following sectional analysis which read [original punctuation provided]: CODE OF MILITARY JUSTICE; APPEALS Section 1, page 1 - amends 22.07.020. Designates the jurisdiction of the court of appeals over actions and proceedings in a military court; Section 2, page 2 - amends 26.05.140(a). Eliminates protection from criminal liability for Guard members charged with crimes resultant from their duties and clarifies that any exemption from liability will not apply to offenses under the Alaska Code of Military Justice. Section 3, page 2 - amends 26.05.228(b). Conforming amendment; Section 4, pages 2-36 - amends 26.05. Creates a new Article, the Code of Military Justice. Of the new sections in this Article, it instructs the adjutant general to adopt regulations for a code of military justice under the terms of the chapter to include, p.3: - Organization and conduct of courts-martial; Provide for non-judicial punishment (NJP); - Identify which offenses are subject to court- martial or NJP; - Identify allowable punishments for such offenses; - Identify rules of trial, pretrial, post-trial and related procedures; - Organize courts of inquiry; - Provide adequate protection of classified information; Other sections in the new Code of Military Justice include: - A statement that all non-military offenses shall be tried in a civilian court, p.4; - Designation the exclusive jurisdiction of courts-martial over the code of military justice and that the code applies to all military offenses, p. 4; - Sets jurisdiction of the military code over deserters and fraudulently discharged personnel and those members who commit their offense outside of the state or live outside of the state when charged with the offense, p.4; - Details the duties and qualifications of those who serve as judge advocates, p.5; - Defines who may apprehend members accused of a military offense and how that apprehension is to take place, p. 5-6; - Defines how a member may be arrested, under what conditions they may be arrested, who may do so, and how they may be confined, p. 6-7; - Defines how a member accused of a military offense may be delivered to a civilian authority, p.7; - Describes the composition, duties, terms of service, jurisdictions, and convening authorities of courts-martial, p.8-11; - Lays out requirements for who may serve on courts-martial, and specifies that a Guardsman cannot be tried by a service member lower ranking than themselves, p. 11. - Provides the requirements for military judges, p. 12 - Describes the duties and qualifications of trial counsel, defense counsel, assistant counsel, court reporters, and interpreters of courts-martial, p. 11-12; - Specifies the procedures for bringing charges against a member. p.13; - Prevents the self-incrimination of the accused, p.13; - Defines the investigatory process,p.14; - Lays out how charges may be processed and the procedures for continuances, oaths of office for court officers,p.15-17; - Defines the statutes of limitations for military offenses,p.19; - Prohibits double jeopardy charges and describes how pleas of the accused are to be processed,p.19; - Defines how subpoenas and contempt of court charges are to be processed,p.19-20; - Provides for an insanity defense for the accused and the determination for mental competency of the accused, p. 20-23; - Describes the procedures for voting and ruling in courts-martial,p.23-24; - Requires the recording of courts-martial,p.24- 25; - Describes the allowable punishments and sentences and prohibits cruel and unusual punishments,p. 25-27; - Describes the appeals process in the military code, including appeals by the state,p.27-28; - Allows for a vacation of suspension under certain circumstances,p.28; - Allows for the accused to petition for a new trial and the restoration of privileges,p.28-29; - Describes the composition and duties of the Military Appeals Commission,p.29-32; - Defines who may administer oaths for the purposes of military administration proceedings,p.32; - Allows for the governor to delegate authority for the code of military justice,p.32; - Creates a military justice account in the general fund,p.33; - Describes the system of paying and collection of fines associated with the military code,p.33; - Describes the pay scale of officers and witnesses of the courts-martial,p.33-34; - Provides immunity for persons who acted pursuant to their duties under the military code,p.34; - Defines terms associated with the new Article,p.34-36; Section 5, page 36 - amends 33.30.011. Further defines 'held under authority of state law' to include persons held under the military code; Section 6, page 36 - amends 33.30.051. Describes how persons convicted under the military code are to be restrained or confined; Section 7, page 36 - amends 44.23.020. requires the Attorney General to assist courts-martial in cases of mental incompetency; Section 8, page 36-37 - amends 44.35.020(a). Conforming amendment dealing with the duties of the Dept. of Military and Veterans' Affairs; Section 9, page 37 - Repeal section; Section 10, page 37 - Applicability clause; Section 11, page 37 - Establishes and describes the terms of office of the Military Appeals Commission; Section 12, page 37-38 - Authorizes the adjutant general to enact and enforce the regulations under the Code of Military Justice, upon approval of the governor; Section 13, page 38 - Effective date for section 12 Section 14, page 38 - Effective date for the rest of the bill. 1:50:24 PM MR. BROWN referred to Sec. 4, pages 2-36, and advised it is the meat of the bill of which a large portion comes from Representative Tuck's HB 121, and explained it instructs the adjutant general to adopt regulations for a Code of Military Justice. 1:56:05 PM LIEUTENANT DUNBAR offered a slide show depicting efforts to create a system whereby soldiers and airmen can effectively be disciplined using the Alaska Code of Military Justice. The vast majority of funding for the Alaska National Guard comes from the federal government and, he expressed, "in a sense, we get very good bang for our buck as a state." He explained that he is currently paid by the federal government because it wants the state to have a common effective force, and this process of creating a new Code of Military Justice will assist in that endeavor. He referred to slide 3, and stated that the Code of Military Justice will allow the Alaska National Guard Commanders to administer courts-martial and potentially convict guardsmen of offenses. He pointed out it also offers tools to perform "Non- Judicial Punishment," which is usually offenses more minor than those warranting court martial, and allows commanders to quickly discipline guardsmen using suspensions, fines, and sometimes a bust in rank. He remarked this is an important part of HB 126 in that Alaska is one of few states that does not have this type of Code, as most states have these regulations and use them to good effect. The bill is not attempting to replace a judicial system, he emphasized, in attempting to convict every offense that guardsmen potentially commit. The policy of the prior Territorial National Guard, carried forward in HB 126, is that if an offense is cognizable under civilian law such as, a theft, homicide, sexual assault, the default is that it would be prosecuted by civilian authorities. He related that manner is the strong preference of the National Guard as it does not have its own police force, jail, or specialized prosecutors to deal with issues like sexual assault. 1:59:44 PM LIEUTENANT DUNBAR said there may be cases where civilian authorities decline to prosecute something that the general public believes is an offense. For example, he offered, the most recent scandal involving the National Guard was behavior by guardsmen involving sexual relations with recruits. The civilian authorities, for a variety of reasons, decided not to prosecute as perhaps there was not enough evidence or it didn't tightly fit the definition of sexual assault but, he related, there are military offenses broad enough wherein the offenders could potentially be pursued for things like dereliction of duty, conduct unbecoming an officer, drunk on duty. Those offenses will be put into regulation should HB 126 pass, although it is anticipated there will be a relatively small number of courts-martials due to settlement. He referred to slide 4, and advised there are three legs to Good Order and Discipline, being: Administrative actions such as separation, letters of reprimand; Alaska Criminal Law which applies to soldiers and airmen living in the state; and, Alaska Code of Military Justice allowing the power of courts-martial and non- judicial punishment. Had this leg to Good Order and Discipline been present prior to the activities leading to the scandal, he said there is no way to know, but it would have increased the likelihood of bringing Good Order and Discipline to those units more quickly. 2:02:21 PM REPRESENTATIVE GRUENBERG offered that in order to determine how well the current system works, or how well this could have worked, this committee may consider going into executive session as to what actually occurred in the investigation previously. He advised he is raising that issue now in light of certain procedures to undertake should the committee decide to subpoena people. He remarked he does not know whether those procedures must be performed before the legislature adjourns. CHAIR LEDOUX asked if he had a question for Lieutenant Dunbar. REPRESENTATIVE GRUENBERG asked whether the attorneys involved in this process are member of the Alaska Bar Association because if they are Alaskan attorneys they would be familiar with Alaska Statutes and Alaska procedures which will have relevance in his following questions. LIEUTENANT DUNBAR responded that the National Guard has members of the Alaska Bar Association and those that are not, although the majority are members of the Alaska Bar Association. 2:05:14 PM REPRESENTATIVE GRUENBERG submitted that in going through [the bill] will determine which proposed statutes are actually taken from "Model Code," and questioned whether there is a body of law for reference, for example, fraudulent enlistment. In that regard, is there an annotated code somewhere so the committee can determine how courts have previously interpreted the statute. LIEUTENANT DUNBAR advised he is holding a document published by the National Guard Bureau, but it does not have quite the detail he believes Representative Gruenberg was referring. It mostly refers to the attendant regulations in the Uniform Code of Military Justice (UCMJ), which contains vast case law associated with it. 2:06:25 PM REPRESENTATIVE GRUENBERG surmised that if this is taken from the regulations under the Code, the lawyers involved will be able to see how this language has been interpreted by other courts. LIEUTENANT DUNBAR answered in the affirmative. 2:06:38 PM REPRESENTATIVE GRUENBERG asked whether the committee will be informed in individual cases whether the language selected under the crimes are different than the "Model Code." LIEUTENANT DUNBAR replied that this issue is later in his presentation wherein he describes the process by which they hope to determine the actual "Code" itself. He opined he will start with a base line of the "Model Code," and through input with this committee, through the chain of command, soldiers, and people he is in contact with at the Judge Advocate Legal Center and School, and there may be offenses taken out, added, or changed. He pointed out that "absolutely" they will provide guidance in a document to show where it differs from the strict "Model Code." 2:07:46 PM REPRESENTATIVE GRUENBERG remarked that Lieutenant Dunbar chose a military model with the "Model Code," yet on the other hand some of these in the offense area deal with issues that are defined in the Alaska Criminal Code, Title 11, such as, attempts, solicitation, and conspiracy. In the interim, he surmised, Lieutenant Dunbar will be prepared not just to talk about the geneses coming from the "Model Code," but the alternative whether there is any difference between that and Title 11. He advised his last statement refers to members of the Alaska Bar Association because they will likely be more familiar with Title 11 than the "Model Code." LIEUTENANT DUNBAR answered that the guard members most involved in this process over the interim are members of the Alaska Bar Association, primarily based at Joint Base Elmendorf-Richardson (JBER) and hope to work closely with his office on exactly those types of questions. 2:09:20 PM LIEUTENANT DUNBAR noted that slide 5 goes to Representative Gruenberg's point in that there is already existing relevant law: the Territorial Era Military Code, Title 26 of Alaska Statutes, but it does not establish a Code of Military Justice; the Alaska Criminal Code which in most cases will provide for prosecutions and punishments for the most serious offenses; and the Federal Uniform Code of Military Justice (UCMJ) which is a fairly comprehensive criminal code with offense such as homicide and theft and the like. He noted that the Federal Code only applies to guard members when in a Fully Federalize status. He referred to slide 6, and indicated that status is an important part of the puzzle of which there are three main statuses: Titles 32, 10, and state active duty. He explained that Fully Federalized is under Title 10, when guardsmen are sent to Iraq, Afghanistan, or other missions under the full command of the federal forces, they are subject to the Federal UCMJ. However, he explained, when they are in Title 32 status, which is what most guards people are on most of the time when on their drill weekends, for example. He offered that they are not subject to the Federal UCMJ despite the fact they are usually paid by the federal government. These individuals are paid by the federal government yet commanded by the governor, State of Alaska, and Adjutant General, and are not subject to the Federal UCMJ. State active duty would typically be for disaster response and commanded by the state and paid by the state, he explained. 2:11:19 PM LIEUTENANT DUNBAR referred to slide 7, and offered there is a gap in the law at the moment in that military offenses cannot be prosecuted at the moment as the appropriate law to prosecute are not on the books for military offenses when on Title 32, or state active duty. Which, he related, means certain things are not available such as, dishonorable discharge as the Alaska National Guard cannot and have never dishonorably discharged a member using state law. The "worst thing" they can do is "other than honorable characterization of service," and there are times where other than honorable discharge is not sufficient as dishonorable discharge would be more appropriate. He pointed out that is a tool he would like available by passing HB 126. [Side 8 is a duplicate of slide 4.] He referred to slide 9, depicting the five primary tools used to enforce Good Order and Discipline: Administrative actions; Administrative separation; and Alaska criminal law are all currently available, yet non- judicial punishment and courts-martial under the ACMJ are not. He referred to slide 10, which depicts the plan of action and reiterated that HB 126 is a synthesis between HB 121 and HB 126, which was joined within the Military & Veterans Affairs Standing Committee. The bill includes several amendments the National Guard asked for to expand the type of soldiers and airmen that can be involved on courts-martial. He expanded that it gets to the resource constraints they have in the guard in that it is a small guard with relatively few Judge Advocate and other legal resources. He stressed that the Alaska National Guard needs to be able to draw upon other guards and the active duty components that exist in this state. He expressed that HB 126 is a good bill which would lead to a functioning system of military justice; however, it can be refined in a number of ways. This bill empowers the National Guard to create substantive offenses and regulation and a Non-Judicial Punishment (NJP) regulation instead of putting them in statute. He opined that was the preference of his command. Over the course of the interim the hope is to draw upon commanders and more junior soldiers to gather their input on what that should look like. It is his plan that in the late fall or early winter to bring it to the House Judiciary Standing Committee and other members of the body and say, "if you pass 2:15:08 PM REPRESENTATIVE GRUENBERG referred to slide (Indisc.) wherein a choice was made to indicate a middle ground, although as a practical matter, most of the criminal offenses under Alaska law will remain with the state. He asked why Lieutenant Dunbar didn't say that the National Guard will take the Uniform Code of Military Justice (UCMJ) except for the following, and carve out a few things but basically there is a well-developed already existing body of law with many reported decisions and it was clear where it wouldn't fit in Alaska. As far as the interface between that and Title 11, there is now a statute that says normally if it is a civilian crime it goes to the civilian authorities. In that regard, the wheel would not have to be re- invented. 2:16:53 PM LIEUTENANT DUNBAR replied that it is his intention not to re- invent the wheel, and perhaps taking a slightly different wheel than the UCMJ, as he will draw upon what other states have done who have taken much of what they have done from the National Guard Bureau. He reiterated the National Guard Bureau is distinct from the active duty component. The National Guard Bureau itself is a synthesis and only takes out parts of the Federal UCMJ, and the Federal UCMJ itself is currently going through a state of flux. He advised that the Federal UCMJ does not directly apply in all cases for a variety of reasons. Contained within this bill are provisions specific to Alaska, such as, the Model State Code and UCMJ requires only two-thirds of a panel for conviction in a courts-martial. He asserted that the Alaska State Constitution provides a stronger right to a unanimous jury verdict and so the law was changed to provide the unanimous right through a panel decision to guard's members which, he opined, is appropriate to the state law. He further replied to Representative Gruenberg's question and posited that the drafters of HB 121, in particular, and HB 126 drew much of the language from the "State Mode Code" from the National Guard Bureau rather than directly from the UCMJ, which is appropriate. Differing areas, he offered, is that the "State Model Code" is not perfect and has some things a bit archaic, such as, dueling. He stated that they are in contact with a Major, considered a legal academic at the JAG Legal Center and School, and said that she and her students are working on this process and looking for ways to update the Federal UCMJ, and also state codes in a manner that makes them more relevant for the modern era. 2:19:30 PM REPRESENTATIVE GRUENBERG pointed out that he sees potentially four different things: the Federal UMCJ, the state general UCMJ that other states are using, "our thing," and Title 11. 2:19:59 PM CHAIR LEDOUX expressed concern in leaving so much to the regulations as she may feel more comfortable working on this over the interim, putting the basics into statute and then issues more peripheral through regulations. 2:20:40 PM LIEUTENANT DUNBAR responded that he does not want to leave the committee with the impression that there is not a lot of substantive law in the current statutes as it a 39-page bill. There are many constraints in the bill and they are appreciative of the notion that their ability to create substantive offenses is a considerable power they are being entrusted with. He offered that Oregon is the state they drew on closely and does it through regulation. He advised that he and Representative Gruenberg discussed the possibility of a legislative review process. 2:21:42 PM CHAIR LEDOUX pointed out that the language in the bill is not even subject to the Administrative Procedure Act, and basically the legislation is giving the National Guard carte blanche, and there may be discomfort in that. 2:22:01 PM LIEUTENANT DUNBAR opined that he would not characterize it as carte blanche as there are a number of constraints in the bill, but it is true that they are being given more regulatory authority over their own guard people than other agencies typically receive over the general public. The reason being that they swear oaths to uphold the Constitution and also follow every general command. The degree to which the commanders can already regulate its soldiers and airmen through orders could surprise people. For example, an order could read "Don't do this broadly," as an order does not have to be directly to a guardsman, he said. In the event the full Administrative Procedures Act is applied to all of the regulations it would likely delay the implementation of these regulations for a considerable amount of time. He stressed that they would like to have a functioning Code of Military Justice as quickly as possible during the next session. Although, he pointed out, for those regulations and changes to regulations thereafter, to implement a more thorough regulatory review process. 2:23:48 PM CHAIR LEDOUX opined that the first group of regulations should be adopted into statute because by then the members have all vetted the regulations. Put those into statute and perhaps the next group doesn't have to be in statute but still requires a vetting process. 2:24:22 PM LIEUTENANT DUNBAR related a concern of the National Guard being if a regulation is initially put into statute and realizes it is not workable, it could be difficult to come back and get a revision. He opined that not putting initial regulations into statute allows the flexibility to change things ... 2:24:44 PM CHAIR LEDOUX interjected that the legislature deals with that sort of thing all the time, as the legislature passes a law, and if not working out as expected that is what the next session is for. 2:25:06 PM MR. BROWN responded that while HB 126 would be granting greater regulatory authority to the Department of Military and Veterans Affairs than other agencies or department generally receive. He explained that when those agencies craft regulations, they are crafting them for everyone in the state, Alaska residents and visitors, period. The DMVA is asking for the authority to police the 4,000 people who volunteered and swore oaths. He suggested these are not comparable situations in that the extra element should be taken into account as part of the greater conversation. 2:25:52 PM REPRESENTATIVE GRUENBERG argued that Mr. Brown's statement is not always true, such as, the Alaska Public Offices Commission (APOC). He advised that Lieutenant Dunbar and he had a discussion regarding the initial language being in statute but, thereafter, the DMVA could prepare regulations under the Alaska Procedures Act (APA). The rule making provisions in the APA quasi-legislature requires notice to the general public and an opportunity to comment, but it would still come into the department, he explained. The department would evaluate anything and come back to the legislature in order to determine whether there is a problem, he noted. 2:26:56 PM REPRESENTATIVE CLAMAN proposed a hybrid approach that the department propose regulations for the legislature to adopt on an up or down basis and not get too involved in the idea of specific language in specific statutes or regulations. He suggested the legislature look at the drafts as a whole, rather than becoming experts in military justice, and it still receives legislative review. 2:28:05 PM REPRESENTATIVE KELLER offered that having served as Joint Chair of the Administrative Regulation Review Committee, that does not work well and is a waste of time, he opined. "It seems like whether engaged or not but ... how many regulation notices have we gotten during session and, frankly I confess, I don't get through the details like I sure wish I could," he posited. REPRESENTATIVE CLAMAN said he was suggesting something different from just regulatory review in that the entire Code of Military Justice come before the legislature for specific review in a more systematic manner than the legislature gets from regulations that show up from time to time. 2:28:59 PM REPRESENTATIVE GRUENBERG remarked that he was thinking along the same line in that they would submit it to the legislature, and the Military and Veterans Affairs Committee that specializes in this could review it, or the House Judiciary Standing Committee. CHAIR LEDOUX reiterated that the House Judiciary Standing Committee has the entire interim to review HB 126. CHAIR LEDOUX opened public testimony 2:29:50 PM REPRESENTATIVE GRUENBERG asked Bob Doehl, Deputy Commissioner, whether he had any direct experience while in the service dealing with the Code of Military Justice. 2:30:06 PM BOB DOEHL, Deputy Commissioner, Commissioner's Office, Department of Military and Veterans Affairs (DMVA), responded in the affirmative to Representative Gruenberg, and stated that as a commander utilizing the Code of Military Justice for action necessary to maintain Good Order and Discipline in determining whether formal court-martial was appropriate versus non-judicial punishment. 2:30:29 PM REPRESENTATIVE KELLER questioned when a guardsman is on active duty for training, whether that is a separate category addressed differently. He asked the status of a person who is active duty for two-weeks of training stents. MR. DOEHL answered that generally an individual on active duty for training is under Title 32, meaning that they do not come under the Federal Uniform Code of Military Justice, but rather under state law. 2:31:45 PM CHAIR LEDOUX closed public testimony after ascertaining no one further wished to testify, and announced HB 126 is held over. 2:32:27 PM