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S*125
Session 106 (1985-1986)


S*0125(Rat #0127, Act #0084 of 1985)  General Bill, By J.A. Martin, Branton, 
Leventis, P.B. McLeod and Wilson

Similar(H 2246) A Bill to amend Sections 25-1-2420, 25-1-2440, 25-1-2520, all as amended, and Section 25-1-2665, Code of Laws of South Carolina, 1976, relating to the Code of Military Justice, so as to change a code reference, provide, that subject to Section 25-1-2725, no person charged with having committed, while in a status as a member of the State Military Forces in which he was subject to the Code, an offense in violation of the Code may be relieved of amenability to trial by court-martial by reason of discharge or other termination of that status, add an additional punishment a commander may impose without the intervention of a court-martial; to amend Sections 25-1-2900, 25-1-2910, 25-1-2920, 25-1-2930, 25-1-2940, 25-1-2950, 25-1-2960, 25-1-2970, 25-1-2980, 25-1-2990, 25-1-3000, 25-1-3010, 25-1-3020, 25-1-3030, 25-1-3040, 25-1-3050, 25-1-3070, 25-1-3080, and 25-1-3110, all as amended, Sections 25-1-2885, 25-1-2895, 25-1-2905, 25-1-2915, 25-1-2925, 25-1-2935, 25-1-2945, 25-1-2955, 25-1-2965, 25-1-2975, 25-1-2985, 25-1-2995, 25-1-3005, 25-1-3015, 25-1-3035, 25-1-3045, 25-1-3055, and 25-1-3065, relating to military tribunals, so as to change from mandatory to precatory the punishment a court-martial may order, authorize any persons subject to the Military Code who fails to account for or return military property to be court-martialed, add conduct which would prejudice good order and discipline in the military forces to the list of factors of which must be taken cognizance by a court-martial, and correct clerical errors; so as to reword a provision prohibiting an action or proceeding from being maintained against any member of the military forces acting under the authority or apparent authority of the Military Code; and to add Section 25-1-2726 so as to provide that jurisdiction over an accused attaches upon service of charges.-amended title 01/22/85 Senate Introduced and read first time SJ-207 01/22/85 Senate Referred to Committee on Judiciary SJ-208 02/26/85 Senate Committee report: Favorable with amendment Judiciary SJ-653 02/27/85 Senate Amended SJ-691 02/27/85 Senate Read second time SJ-691 02/27/85 Senate Ordered to third reading with notice of amendments SJ-691 02/28/85 Senate Read third time and sent to House SJ-716 02/28/85 Senate Reconsidered SJ-716 03/13/85 Senate Amended SJ-843 03/13/85 Senate Read third time and sent to House SJ-845 03/14/85 House Introduced and read first time HJ-1294 03/14/85 House Referred to Committee on Medical, Military, Public and Municipal Affairs HJ-1295 04/11/85 House Committee report: Recommended refer to different committee Medical, Military, Public and Municipal Affairs HJ-2316 04/11/85 House Referred to Committee on Judiciary HJ-2317 05/01/85 House Committee report: Favorable Judiciary HJ-2815 05/01/85 House Read second time HJ-2816 05/02/85 House Read third time and enrolled HJ-2886 05/07/85 Ratified R 127 05/13/85 Signed By Governor 05/13/85 Effective date 05/13/85 05/13/85 Act No. 84 05/21/85 Copies available


(A84, R127, S125)

AN ACT TO AMEND SECTIONS 25-1-2420, 25-1-2440, 25-1-2520, ALL AS AMENDED, AND SECTION 25-1-2665, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE CODE OF MILITARY JUSTICE, SO AS TO CHANGE A CODE REFERENCE, PROVIDE, THAT SUBJECT TO SECTION 25-1-2725, NO PERSON CHARGED WITH HAVING COMMITTED, WHILE IN A STATUS AS A MEMBER OF THE STATE MILITARY FORCES IN WHICH HE WAS SUBJECT TO THE CODE, AN OFFENSE IN VIOLATION OF THE CODE MAY BE RELIEVED OF AMENABILITY TO TRIAL BY COURT-MARTIAL BY REASON OF DISCHARGE OR OTHER TERMINATION OF THAT STATUS, ADD AN ADDITIONAL PUNISHMENT A COMMANDER MAY IMPOSE WITHOUT THE INTERVENTION OF A COURT-MARTIAL; TO AMEND SECTIONS 25-1-2900, 25-1-2910, 25-1-2920, 25-1-2930, 25-1-2940, 25-1-2950, 25-1-2960, 25-1-2970, 25-1-2980, 25-1-2990, 25-1-3000, 25-1-3010, 25-1-3020, 25-1-3030, 25-1-3040, 25-1-3050, 25-1-3070, 25-1-3080, AND 25-1-3110, ALL AS AMENDED, SECTIONS 25-1-2885, 25-1-2895, 25-1-2905, 25-1-2915, 25-1-2925, 25-1-2935, 25-1-2945, 25-1-2955, 25-1-2965, 25-1-2975, 25-1-2985, 25-1-2995, 25-1-3005, 25-1-3015, 25-1-3035, 25-1-3045, 25-1-3055, AND 25-1-3065, RELATING TO MILITARY TRIBUNALS, SO AS TO CHANGE FROM MANDATORY TO PRECATORY THE PUNISHMENT A COURT-MARTIAL MAY ORDER, AUTHORIZE ANY PERSON SUBJECT TO THE MILITARY CODE WHO FAILS TO ACCOUNT FOR OR RETURN MILITARY PROPERTY TO BE COURT-MARTIALED, ADD CONDUCT WHICH WOULD PREJUDICE GOOD ORDER AND DISCIPLINE IN THE MILITARY FORCES TO THE LIST OF FACTORS OF WHICH MUST BE TAKEN COGNIZANCE BY A COURT-MARTIAL, AND CORRECT CLERICAL ERRORS; SO AS TO REWORD A PROVISION PROHIBITING AN ACTION OR PROCEEDING FROM BEING MAINTAINED AGAINST ANY MEMBER OF THE MILITARY FORCES ACTING UNDER THE AUTHORITY OR APPARENT AUTHORITY OF THE MILITARY CODE, AND TO ADD SECTION 25-1-2726 SO AS TO PROVIDE THAT JURISDICTION OVER AN ACCUSED ATTACHES UPON SERVICE OF CHARGES.

Be it enacted by the General Assembly of the State of South Carolina:

Definition

SECTION 1. Item 10 of Section 25-1-2420, as last amended by Act 378 of 1984, is further amended to read:

"(10) 'Military judge' means an official of a general or special court-martial detailed in accordance with Section 25-1-2620;".

Offenses in violation of the Military Code

SECTION 2. Section 25-1-2440 of the 1976 Code, as last amended by Act 378 of 1984, is further amended to read:

"Section 25-1-2440. Subject to Section 25-1-2725, no person charged with having committed, while in a status as a member of the state military forces in which he was subject to this code, an offense in violation of this code may be relieved of amenability to trial by court-martial by reason of discharge or other termination of that status. Each person discharged from the state military forces who is later charged with having fraudulently obtained

his discharge is, subject to Section 25-1-2725, subject to trial by court-martial on that charge and is after apprehension subject to the code while in the custody of the military for that trial. Upon conviction of that charge he is subject to trial by court-martial for all offenses under the code committed before the fraudulent discharge.

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

Commander may impose punishments

SECTION 3. Subsection 2 of Section 25-1-2520 of the 1976 Code, as last amended by Act 378 of 1984, is further amended to read:

"2. Subject to subsection 1 of this section, any commander may, in addition to or in lieu of admonition or reprimand, impose one or more of the following disciplinary punishments for minor offenses without the intervention of a court-martial:

(A) upon officers of his command:

(1) restriction to certain specified limits, with or without suspension from duty, for not more than fifteen days;

(2) if imposed by the Governor, the Adjutant and Inspector General, or an officer of a general rank in command:

(a) arrest in quarters for not more than fifteen days;

(b) forfeiture of pay of not more than seven days' pay or a fine of not more than the equivalent of seven days' pay;

(B) upon other military personnel of his command:

(1) forfeiture of pay of not more than two days' pay or a fine of not more than the equivalent of two days' pay;

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

(3) extra duties, including fatigue or other duties, for not more than fourteen days;

(4) restriction to certain specified limits, with or without suspension from duty, for not more than fourteen days;

(5) if imposed by an officer of the grade of major, or above:

(a) forfeiture of pay of not more than four days' pay or a fine of not more than the equivalent of four days' pay;

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

(c) the punishment authorized under subitem (3) of item (B) of subsection 2 of this section;

(d) the punishment authorized under subitem (4) of item (B) of subsection 2 of this section.

No two or more of the punishments of arrest in quarters, extra duties, and restriction may be combined to run consecutively in the maximum amount possible for each. Whenever any of those punishments are combined to run consecutively, there must be an apportionment."

Informing the accused

SECTION 4. Subsection (2) of Section 25-1-2665 of the 1976 Code, as added by Act 378 of 1984, is amended to read:

"(2) No investigating officer may interrogate, or request any statement from an accused, without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected, and that any statement made by him may be used as evidence against him in a trial by court-martial."

Prohibition on assisting an offender

SECTION 5. Section 25-1-2885 of the 1976 Code, as added by Act 378 of 1984, is amended to read:

"Section 25-1-2885. Any person subject to this code who, knowing that an offense punishable by the code has been committed, receives, comforts, or assists the offender in order to hinder or prevent his apprehension, trial, or punishment may be punished as a court-martial may direct."

Person may be court-martialed

SECTION 6. The second paragraph of Section 25-1-2895 of the 1976 Code, as added by Act 378 of 1984, is amended to read:

"Any person subject to this code who attempts to commit any offense punishable by the code may be punished as a court-martial may direct, unless otherwise specifically prescribed."

Conspiracy with another person

SECTION 7. Section 25-1-2900 of the 1976 Code, as last amended by Act 378 of 1984, is further amended to read:

"Section 25-1-2900. Any person subject to this code who conspires with any other person to commit an offense under the code may, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct."

Prohibition on soliciting or advising another

SECTION 8. Subsection (2) of Section 25-1-2905 of the 1976 Code, as added by Act 378 of 1984, is amended to read:

"(2) Any person subject to this code who solicits or advises another or others to commit an act of sedition in violation of Section 25-1-2960 of the code must, if the offense solicited or advised is committed, be punished with the punishment provided for the commission of the offense, but, if the offense solicited or advised is not committed, he may be punished as a court-martial may direct."

Persons may be court-martialed

SECTION 9. Section 25-1-2910 of the 1976 Code, as last amended by Act 378 of 1984, is further amended to read:

"Section 25-1-2910. Any person may be punished as a court-martial may direct who:

(1) procures his own enlistment or appointment in the military forces by knowingly false representation or deliberate concealment as to his qualifications for that enlistment or appointment and receives pay or allowances for the enlistment or appointment; or

(2) procures his own separation from the military forces by knowingly false representation or deliberate concealment as to his eligibility for that separation."

Further

SECTION 10. Section 25-1-2915 of the 1976 Code, as added by Act 378 of 1984, is amended to read:

"Section 25-1-2915. Any person subject to this code who effects an enlistment or appointment in, or a separation from, the state military forces of any person who is known to him to be ineligible for that enlistment, appointment, or separation because it is prohibited by law, regulation, or order may be punished as a court-martial may direct."

Persons guilty of desertion

SECTION 11. Subsection (3) of Section 25-1-2920 of the 1976 Code, as last amended by Act 378 of 1984, is further amended to read:

"(3) Any person found guilty of desertion or attempt to desert may be punished as a court-martial may direct."

Failure to go to his appointed place, etc.

SECTION 12. Section 25-1-2925 of the 1976 Code, as added by Act 378 of 1978, is amended to read:

"Section 25-1-2925. Any person, subject to this code may be punished as a court-martial may direct, if he, without authority:

(1) fails to go to his appointed place of duty at the time prescribed;

(2) goes from that place; or

(3) absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed."

Person who misses movement of his unit may be court-martialed

SECTION 13. Section 25-1-2930 of the 1976 Code, as last amended by Act 378 of 1984, is further amended to read:

"Section 25-1-2930. Any person subject to this code who, through neglect or design, misses the movement of a unit with which he is required, in the course of duty, to move may be punished as a court-martial may direct."

Disrespect toward superior officer

SECTION 14. Section 25-1-2935 of the 1976 Code, as added by Act 378 of 1984, is amended to read:

"Section 25-1-2935. Any person subject to this code who behaves with disrespect toward his superior commissioned officer may be punished as a court-martial may direct."

Striking a superior officer

SECTION 15. Section 25-1-2940 of the 1976 Code, as last amended by Act 378 of 1984, is further amended to read:

"Section 25-1-2940. Any person subject to this code may be punished as a court-martial may direct, if he:

(1) strikes his superior commissioned officer or draws or lifts up any weapon or offers any violence against him while he is in the execution of his office;

(2) wilfully disobeys a lawful command of his superior commissioned officer."

Striking a warrant officer

SECTION 16. Section 25-1-2945 of the 1976 Code, as added by Act 378 of 1984, is further amended to read:

"Section 25-1-2945. Any warrant officer or enlisted member may be punished as a court-martial may direct, if he:

(1) strikes or assaults a warrant officer or noncommissioned officer while that officer is in the execution of his office;

(2) wilfully disobeys the lawful order of a warrant officer or noncommissioned officer;

(3) treats with contempt, or is disrespectful in language or deportment toward, a warrant officer or noncommissioned officer while that officer is in the execution of his office."

Failure to obey lawful general order

SECTION 17. Section 25-1-2950 of the 1976 Code, as last amended by Act 378 of 1984, is further amended to read:

"Section 25-1-2950. Any person, subject to the code may be punished as a court-martial may direct, if he:

(1) violates or fails to obey any lawful general order or regulation;

(2) having knowledge of any other lawful order issued by a member of the military forces which it is his duty to obey, fails to obey the order;

(3) is derelict in the performance of his duties."

Cruelty of subordinates

SECTION 18. Section 25-1-2955 of the 1976 Code, as added by Act 378 of 1984, is amended to read:

"Section 25-1-2955. Any person subject to this code who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders may be punished as a court-martial may direct."

Mutiny, sedition, etc.

SECTION 19. Subsection (2) of Section 25-1-2960 of the 1976 Code, as last amended by Act 378 of 1984, is further amended to read:

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

Resisting apprehension

SECTION 20. Section 25-1-2965 of the 1976 Code, as added by Act 378 of 1984, is amended to read:

"Section 25-1-2965. Any person subject to this code who resists apprehension or breaks arrest or who escapes from physical restraint lawfully imposed may be punished as a court-martial may direct."

Releasing of prisoner

SECTION 21. Section 25-1-2970 of the 1976 Code, as last amended by Act 378 of 1984, is further amended to read:

"Section 25-1-2970. Any person subject to the code who, without proper authority, releases any prisoner committed to his charge, or who through neglect or design suffers any prisoner to escape, may be punished as a court-martial may direct, whether or not the prisoner was committed in strict compliance with law."

Apprehending or confining a person

SECTION 22. Section 25-1-2975 of the 1976 Code, as added by Act 378 of 1984, is amended to read:

"Section 25-1-2975. Any person subject to this code, who, except as provided by law or regulation, apprehends, arrests, or confines any person may be punished as a court-martial may direct."

Failure to comply with provisions of Military Code

SECTION 23. Section 25-1-2980 of the 1976 Code, as last amended by Act 378 of 1984, is further amended to read:

"Section 25-1-2980. Any person, subject to this code may be punished as a court-martial may direct, if he:

(1) is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under the code;

(2) knowingly and intentionally fails to enforce or comply with any provision of this code regulating the proceedings before, during, or after trial of an accused."

Disclosing the parole or countersign

SECTION 24. Section 25-1-2985 of the 1976 Code, as added by Act 378 of 1984, is amended to read:

"Section 25-1-2985. Any person subject to this code, who in time of war discloses the parole or countersign to any person not entitled to receive it, or who gives to another who is entitled to receive and use the parole or countersign a different parole or countersign from that which, to his knowledge, he was authorized and required to give, may be punished as a court-martial may direct."

Forcing a safeguard

SECTION 25. Section 25-1-2990 of the 1976 Code, as amended by Act 378 of 1984, is further amended to read:

"Section 25-1-2990. Any person subject to this code who forces a safeguard may be punished as a court-martial may direct."

Receiving benefit from selling abandoned property, etc.

SECTION 26. Subsection (2) of Section 25-1-2995 of the 1976 Code, as added by Act 378 of 1984, is amended to read:

"(2) Any person, subject to this code may be punished as a court-martial may direct, if he:

(A) fails to carry out the duties prescribed in subsection 1 of this section;

(B) buys, sells, trades, or in any way deals in or disposes of captured or abandoned property, whereby he receives or expects any profit, benefit, or advantage to himself or another directly or indirectly connected with himself;

(C) engages in looting or pillaging."

Masking false official statement

SECTION 27. Section 25-1-3000 of the 1976 Code, as last amended by Act 378 of 1984, is further amended to read:

"Section 25-1-3000. Any person subject to this code who with intent to deceive, signs any false record, return, regulation, order, or other official document, knowing it to be false, or makes any other false official statement knowing it to be false, may be punished as a court-martial may direct."

Acts prohibited without proper authority

SECTION 28. Section 25-1-3005 of the 1976 Code, as added by Act 378 of 1984, is amended to read:

"Section 25-1-3005. Any person subject to this code who, without proper authority:

(1) sells or otherwise disposes of; or

(2) wilfully or through neglect damages, destroys, or loses; or

(3) wilfully or through neglect suffers to be damaged, destroyed, sold, or wrongfully disposed of; or

(4) fails to account for or return; any military property of the United States or of the State may be punished as a court-martial may direct."

Wilfully wasting military property

SECTION 29. Section 25-1-3010 of the 1976 Code, as last amended by Act 378 of 1984, is further amended to read:

"Section 25-1-3010. Any person subject to this code who wilfully or recklessly wastes, spoils, or otherwise wilfully and wrongfully destroys or damages any property other than military property of the State may be punished as a court-martial may direct."

Operating vehicle under influence of liquors, etc.

SECTION 30. Section 25-1-3015 of the 1976 Code, as added by Act 378 of 1984, is amended to read:

"Section 25-1-3015. Any person subject to this code who operates any vehicle while under the influence of intoxicating liquors or any controlled substance, or in a reckless or wanton manner, may be punished as a court-martial may direct.

Any person subject to this code who negligently hazards, or allows to be hazarded, any vehicle of the military forces may be punished as a court-martial may direct."

Persons under the influence of intoxicating liquors while on

duty, etc.

SECTION 31. Section 25-1-3020 of the 1976 Code, as last amended by Act 378 of 1984, is further amended to read:

"Section 25-1-3020. Any person subject to this code who is found under the influence of intoxicating liquors or any controlled substance on duty or sleeping upon his post, or who leaves his post before he is regularly relieved, may be punished as a court-martial may direct."

Participating in a riot, etc.

SECTION 32. Section 25-1-3030 of the 1976 Code, as last amended by Act 378 of 1984, is further amended to read:

"Section 25-1-3030. Any person subject to this code who causes or participates in any riot or breach of the peace may be punished as a court-martial may direct."

Using provoking or reproachful words

SECTION 33. Section 25-1-3035 of the 1976 Code, as added by Act 378 of 1984, is amended to read:

"Section 25-1-3035. Any person subject to this code who uses provoking or reproachful words or gestures toward any other person subject to the code may be punished as a court-martial may direct."

Persons guilty of larceny

SECTION 34. The last paragraph of Section 25-1-3040 of the 1976 Code, as amended by Act 378 of 1984, is further amended to read:

"Any person found guilty of larceny or wrongful appropriation may be punished as a court-martial may direct."

Persons guilty of forgery

SECTION 35. Item (2) of Section 25-1-3045 of the 1976 Code, as added by Act 378 of 1984, is amended to read:

"(2) utters, offers, issues, or transfers such a writing, known by him to be made or altered is guilty of forgery and may be punished as a court-martial may direct."

Persons attempting to do bodily harm against another

SECTION 36. Section 25-1-3050 of the 1976 Code, as last amended by Act 378 of 1984, is further amended to read:

"Section 25-1-3050. Any person subject to this code who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and may be punished as a court-martial may direct."

Giving false testimony

SECTION 37. Section 25-1-3055 of the 1976 Code, as added by Act 378 of 1984, is amended to read:

"Section 25-1-3055. Any person subject to this code who, in a judicial proceeding or in a course of justice, conducted under the code, wilfully and corruptly gives, upon a lawful oath, any false testimony material to the issue or matter of inquiry is guilty of perjury and may be punished as a court-martial may direct."

Conduct unbecoming an officer

SECTION 38. Section 25-1-3065 of the 1976 Code, as added by Act 378 of 1984, is amended to read:

"Section 25-1-3065. Any commissioned officer who is convicted of conduct unbecoming an officer and a gentleman may be punished as a court-martial may direct."

Disorders, neglects, etc. to the prejudice of good order

SECTION 39. Section 25-1-3070 of the 1976 Code, as last amended by Act 378 of 1984, is further amended to read:

"Section 25-1-3070. Though not specifically mentioned in this code all disorders, neglects, and conduct to the prejudice of good order and discipline in the military forces, of which persons subject to the code may be guilty, must be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and may be punished at the discretion of that court."

Courts of inquiry

SECTION 40. The first paragraph of Section 25-1-3080 of the 1976 Code, as amended by Act 378 of 1984, is further amended to read:

"Courts of inquiry to investigate any matter of concern to the military forces may be convened by the Governor or Adjutant General for that purpose, whether or not the persons involved have requested such an inquiry."

Prohibition against taking action against certain persons

SECTION 41. Section 25-1-3110 of the 1976 Code, as last amended by Act 378 of 1984, is further amended to read:

"Section 25-1-3110. No action or proceeding in any state or federal court may be maintained against any member of the military forces acting under the authority or apparent authority of this code. This section may not be construed to bar any action or proceeding by any person who is not made subject to the Code of Military Justice under the provisions of Section 25-1-2430."

Jurisdiction

SECTION 42. The 1976 Code is amended by adding:

"Section 25-1-2726. Jurisdiction over the accused attaches upon service of charges on the accused. Failure to respond or appear shall not defeat jurisdiction to try and sentence an accused in absentia."

Time effective

SECTION 43. This act shall take effect upon approval by the Governor.




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