S*825 Session 105 (1983-1984)
S*0825(Rat #0431, Act #0378 of 1984) General Bill, By Senate Judiciary
Similar(H 3461)
A Bill to amend Sections 25-1-50 and 25-1-60, Code of Laws of South Carolina,
1976, relating to military affairs, so as to authorize the Governor and the
Adjutant Inspector General to promulgate regulations relative to military
affairs; to provide that the militia of the State shall consist of all
able-bodied citizens divided into three classes, the National Guard, the
Organized Militia, and the Unorganized Militia; to amend Articles 19 and 21 of
Chapter 1 of Title 25 of the 1976 Code, relating to military justice for the
National Guard and military tribunals, so as to enact the Code of Military
Justice under one article; and to repeal Sections 25-1-80, 25-1-140, 25-1-600,
25-1-1410, 25-1-1440, 25-1-1450, 25-1-1460, 25-1-1470, 25-1-1480, 25-1-1910,
25-1-2140, 25-1-2150, and 25-1-2210 of the 1976 Code, relating to military
affairs.-amended title
02/23/84 Senate Introduced, read first time, placed on calendar
without reference SJ-749
03/01/84 Senate Read second time SJ-873
03/13/84 Senate Read third time and sent to House SJ-980
03/14/84 House Introduced and read first time HJ-1461
03/14/84 House Referred to Committee on Medical, Military,
Public and Municipal Affairs HJ-1461
03/16/84 House Recalled from Committee on Medical, Military,
Public and Municipal Affairs HJ-1612
03/16/84 House Committed to Committee on Judiciary HJ-1612
04/03/84 House Committee report: Favorable with amendment
Judiciary HJ-2103
04/04/84 House Amended HJ-2177
04/04/84 House Read second time HJ-2178
04/05/84 House Read third time HJ-2253
04/05/84 House Returned HJ-2253
05/02/84 Senate House amendment amended SJ-1639
05/02/84 Senate Returned SJ-1639
05/02/84 House Concurred in Senate amendment and enrolled HJ-2846
05/15/84 Ratified R 431
05/21/84 Signed By Governor
05/21/84 Effective date 05/21/84
05/21/84 Act No. 378
06/04/84 Copies available
(A378, R431, S825)
AN ACT TO AMEND SECTIONS 25-1-50 AND 25-1-60, CODE OF LAWS OF SOUTH CAROLINA,
1976, RELATING TO MILITARY AFFAIRS, SO AS TO AUTHORIZE THE GOVERNOR AND THE
ADJUTANT INSPECTOR GENERAL TO PROMULGATE REGULATIONS RELATIVE TO MILITARY
AFFAIRS; TO PROVIDE THAT THE MILITIA OF THE STATE SHALL CONSIST OF ALL
ABLE-BODIED CITIZENS DIVIDED INTO THREE CLASSES, THE NATIONAL GUARD, THE
ORGANIZED MILITIA, AND THE UNORGANIZED MILITIA; TO AMEND ARTICLES 19 AND 21 OF
CHAPTER 1 OF TITLE 25 OF THE 1976 CODE, RELATING TO MILITARY JUSTICE FOR THE
NATIONAL GUARD AND MILITARY TRIBUNALS, SO AS TO ENACT THE CODE OF MILITARY
JUSTICE UNDER ONE ARTICLE; AND TO REPEAL SECTIONS 25-1-80, 25-1-140, 25-1-600,
25-1-1410, 25-1-1440, 25-1-1450, 25-1-1460, 25-1-1470, 25-1-1480, 25-1-1910,
25-1-2140, 25-1-2150, AND 25-1-2210 OF THE 1976 CODE, RELATING TO MILITARY
AFFAIRS.
Be it enacted by the General Assembly of the State of South Carolina:
Regulations
SECTION 1. Section 25-1-50 of the 1976 Code is amended to read:
"Section 25-1-50. The Governor or the adjutant general shall promulgate
regulations not inconsistent with law as he may consider necessary to carry out
the provisions of this chapter."
Militia
SECTION 2. Section 25-1-60 of the 1976 Code is amended to read:
"Section 25-1-60. The militia of the State shall consist of all able-bodied
citizens of the United States and all other able-bodied individuals who have
declared their intention to become citizens of the United States, residing within
this State, who must be over seventeen years of age. The militia must be divided
into three classes, the National Guard, the organized militia, and the
unorganized militia."
Citation of article
SECTION 3. Section 25-1-2410 of the 1976 Code is amended to read:
"Section 25-1-2410. This article may be cited as the 'Code of Military
Justice'."
Definitions
SECTION 4. Section 25-1-2420 of the 1976 Code is amended to read:
"Section 25-1-2420. As used in the Code of Military Justice:
1. 'Accuser' means a person who signs and swears to charges, any person who
directs that charges nominally be signed and sworn to by another, and any person
who has an interest other than an official interest in the prosecution of the
accused;
2. 'Adjutant general' means the officer defined in Section 25-1-10;
3. 'Commander' includes commissioned officers and warrant officers exercising
command authority;
4. 'Duty status' means duty in the state military forces under an order issued
by authority of law, and includes travel to and from duty;
5. 'Enlisted member' means a person in an enlisted grade;
6. 'Grade' means a step or degree, in a graduated scale of military rank, that
is established and designated as a grade by law or regulation;
7. 'Legal officer' and 'judge advocate' means any commissioned officer of the
state military forces designated to perform legal duties for a command;
8. 'Military court' means a court-martial or a court of inquiry;
9. 'Military forces' means the national guard of the State, as defined in
Section 25-1-10, and any other military force organized under the laws of the
State;
10. 'Military judge' means an official of a general or special court-martial
detailed in accordance with Section 25-1-2630;
11. 'Oath' includes affirmation;
12. 'Rank' means the order of precedence among members of the military
forces;
13. 'State judge advocate' means the commissioned officer responsible for
supervising the administration of military justice in the military forces;
14. 'Superior commissioned officer' means a commissioned officer superior in
rank or command."
Applicability of Code
SECTION 5. Section 25-1-2430 of the 1976 Code is amended to read:
"Section 25-1-2430. The Code of Military Justice applies to all members of
the military forces whether located within or without the territorial boundaries
of the State of South Carolina while in an authorized duty status or during a
period of time in which he was under lawful orders to be in a duty status,
including such time as he was traveling to and from such duty. All members of
the military forces are subject to this code while physically located on state
or federal property even though not on authorized duty status."
Discharged persons subject to court-martial
SECTION 6. Section 25-1-2440 of the 1976 Code is amended to read:
"Section 25-1-2440. 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."
Adjutant General to appoint
SECTION 7. Section 25-1-2450 of the 1976 Code is amended to read:
"Section 25-1-2450. 1. The adjutant general shall appoint an officer of
the military forces as state judge advocate. To be eligible for appointment, an
officer must be a member of the South Carolina bar. The state judge advocate
shall hold such military grade and rank as designated by the adjutant general.
2. The adjutant general shall appoint judge advocates and legal officers who
shall serve under the supervision of the state judge advocate.
3. To be eligible for appointment, judge advocates or legal officers must be
members of the South Carolina bar.
4. The state judge advocate or his assistants shall make frequent inspections
in the field in supervision of the administration of military justice.
5. Convening authorities shall at all times communicate directly with the
state judge advocate or with judge advocates within their command in matters
relating to the administration of military justice.
No person who has acted as member, military judge, trial counsel, assistant
trial counsel, defense counsel, assistant defense counsel, or investigating
officer in any case may later act as staff judge advocate or legal officer to any
reviewing authority upon the same case."
Definition
SECTION 8. Section 25-1-2460 of the 1976 Code is amended to read:
"Section 25-1-2460. For purposes of this code, 'apprehension' is the taking
of a person into custody. Any person authorized by this code to apprehend
persons subject to the code, any marshal of a court-martial appointed pursuant
to the provisions of the code, and any civil officer having authority to
apprehend offenders under the laws of the United States or of South Carolina, may
do so upon reasonable belief that an offense has been committed and that the
person apprehended committed it. Commissioned officers, warrant officers, and
noncommissioned officers may, subject to the laws of South Carolina, quell
quarrels, frays, and disorders among persons subject to the code and apprehend
persons subject to this code who take part therein."
Definition
SECTION 9. Section 25-1-2470 of the 1976 Code is amended to read:
"Section 25-1-2470. For purposes of this code, 'arrest' is the restraint
of a person by an order, not imposed as a punishment for an offense, directing
him to remain within certain specified limits. Confinement is the physical
restraint of a person.
An enlisted member may be ordered apprehended or into arrest or confinement by
any commissioned officer by an order, oral or written, delivered in person or
through other persons subject to the Code of Military Justice or through any
person authorized by this code to apprehend persons. A commander may authorize
warrant officers, or noncommissioned officers to order enlisted members of his
command or subject to his authority into arrest or confinement.
A commissioned officer or a warrant officer may be ordered apprehended or into
arrest or confinement only by a commander to whose authority he is subject, by
an order, oral or written, delivered in person, or by another commissioned
officer. The authority to order such persons apprehended or into arrest or
confinement may not be delegated.
No person may be ordered apprehended or into arrest or confinement except for
probable cause.
This section does not limit the authority of persons authorized to apprehend
offenders to secure the custody of an alleged offender until proper authority may
be notified.
All reasonable force necessary to accomplish arrest, apprehension, or
confinement may be used.
The power to restrain may be exercised prior or subsequent to court-martial or
other disciplinary proceedings.
The sheriffs of the various counties of this State shall carry out the orders
and directives of all courts-martial, including summary court officers."
Person may be arrested
SECTION 10. Section 25-1-2480 of the 1976 Code is amended to read:
"Section 25-1-2480. Any person subject to this code charged with an offense
under this code may be ordered into arrest or, under extraordinary circumstances
into confinement; but when charged only with an offense normally tried by a
summary court-martial, the person shall not ordinarily be placed in confinement.
When any person subject to this code is placed in arrest or confinement prior
to trial, immediate steps shall be taken to inform him of the specific wrong of
which he is accused and to try him or to dismiss the charges and release
him."
Confinement of persons
SECTION 11. Section 25-1-2490 of the 1976 Code is amended to read:
"Section 25-1-2490. Persons confined other than in a guardhouse, whether
before or during trial by court-martial, must be confined in any place of
confinement under the control of any of the federal armed forces, state military
forces, or in any penal or correctional institution, detention facility, jail,
or stockade under the control of the State or any of its political subdivisions.
All expenses of the confinement must be paid as if the prisoner were committed
to confinement by civilian state officials. Unless circumstances prohibit, the
place of confinement must be in the prisoner's county of residence or the county
in which the prisoner's unit is headquartered.
No provost marshal, commander of a guard, master-at-arms, warden, keeper,
sheriff, supervisor, or officer of a place of confinement designated in paragraph
1 of this section, may refuse to receive or keep any prisoner committed to his
charge, when the committing person furnishes a statement, signed by him, of the
offense charged against the prisoner.
Every commander of a guard, master-at-arms, warden, keeper, sheriff,
supervisor, or officer of a place of confinement designated in paragraph 1 of
this section, to whose charge a prisoner is committed shall, within twenty-four
hours after that commitment or as soon as he is relieved from guard, report to
the commander of the prisoner the name of the prisoner, the offense charged
against him and the name of the person who ordered or authorized the
commitment."
Persons may be subjected to punishment
SECTION 12. Section 25-1-2500 of the 1976 Code is amended to read:
"Section 25-1-2500. Subject to Section 25-1-2795, no person, while being
held for trial or the result of trial, may be subjected to punishment or penalty
other than arrest or confinement upon the charges pending against him, nor shall
the arrest or confinement imposed upon him be any more rigorous than the
circumstances required to ensure his presence, but he may be subjected to minor
punishment during that period for infractions of discipline."
Delivery of persons subject to Code
SECTION 13. Section 25-1-2510 of the 1976 Code is amended to read:
"Section 25-1-2510. A person subject to the Code of Military Justice who
is accused of an offense against civil authority may be delivered, upon request,
to the civil authority for trial if the approval of the person's immediate
commanding officer is obtained.
When delivery under this section is made to any civil authority of a person
undergoing sentence of a court-martial, the delivery, if followed by conviction
in a civil tribunal, interrupts the execution of the sentence of the
court-martial, and the offender after having answered to the civil authorities
for his offense shall, upon the request of competent military authority, be
returned to the place of original custody for completion of his sentence."
Limitations on power
SECTION 14. Section 25-1-2520 of the 1976 Code is amended to read:
"Section 25-1-2520. 1. Under such regulations as the adjutant general may
prescribe, limitations may be placed on the powers granted by this section with
respect to the kind and amount of punishment authorized, the categories of
commanders authorized to exercise those powers, the applicability of this section
to an accused who demands trial by court-martial, and the kinds of courts-martial
to which the case may be referred upon a demand. However, punishment may not be
imposed upon any member of the military forces under this section if the member
has, before the imposition of punishment, demanded trial by court-martial in lieu
of punishment. Under similar regulations, rules may be prescribed with respect
to the suspension of punishments authorized hereunder. 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; or
(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 or
(b) forfeiture of pay of not more than seven days' pay; and
(B) upon other military personnel of his command:
(1) forfeiture of pay of not more than 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; or
(5) if imposed by an officer of the grade of major, or above:
(a) forfeiture of pay of not more than 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; or
(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.
3. An officer in charge may impose upon enlisted members assigned to the unit
of which he is in charge such of the punishments authorized under subitems (1)
through (3) of item (B) of subsection 2 of this section as the governor may
specifically prescribe by regulation.
4. The officer who imposes the punishment authorized in subsection 2 of this
section, or his successors in command, may at any time, suspend probationally a
reduction in grade or a forfeiture imposed under subsection 2 of this section,
whether or not executed. In addition, he may at any time, remit or mitigate any
part or amount of the unexecuted punishment and may set aside in whole or in part
the punishment, whether executed or unexecuted, and restore all rights,
privileges, and property affected. He may also mitigate reduction in grade to
forfeiture of pay. When mitigating:
(a) arrest in quarters to restriction;
(b) extra duties to restriction;
the mitigated punishment may not be for a greater period than the punishment
mitigated. When mitigating reduction in grade to forfeiture of pay, the amount
of the forfeiture may not be greater than the amount that could have been imposed
initially under this section by the officer who imposed the punishment mitigated.
5. A person punished under this section who considers his punishment unjust
or disproportionate to the offense may, through proper channel, appeal to the
next superior authority. The appeal must be promptly forwarded and decided, and
in the meantime the punishment adjudged must be suspended. The superior
authority may exercise the same powers with respect to the punishment imposed as
may be exercised under subsection 4 of this section by the officer who imposed
the punishment. The authority who is to act on the appeal shall refer the case
to the state judge advocate or a judge advocate or legal officer within his
command for consideration and advice. The decision of the superior authority is
final.
6. The imposition and enforcement of disciplinary punishment under this
section for any act or omission is not a bar to trial by court-martial for a
serious crime or offense growing out of the same act or omission, and not
properly punishable under this section; but the fact that a disciplinary
punishment has been enforced may be shown by the accused upon trial, and when so
shown shall be considered in determining the measure of punishment to be adjudged
in the event of a finding of guilty.
7. Whenever a punishment of forfeiture of pay is imposed under this section,
the forfeiture may apply to pay accruing on or after the date that punishment is
imposed and to any pay accrued before that date.
8. The adjutant general may, by regulation, prescribe the form of records to
be kept of proceedings under this section and may also prescribe that certain
categories of those proceedings shall be in writing."
Types of courts-martial
SECTION 15. Section 25-1-2530 of the 1976 Code is amended to read:
"Section 25-1-2530. There may be three types of courts-martial in the state
military forces:
1. general court-martial, consisting of:
(a) a military judge and not less than five members; or
(b) only a military judge, if before the court is assembled the accused,
knowing the identity of the military judge, and after consultation with defense
counsel, requests in writing a court composed only of a military judge, and the
military judge approves;
2. special court-martial, consisting of:
(a) not less than three members; or
(b) a military judge and not less than three members; or
(c) only a military judge, if one has been detailed to the court, and the
accused under the same conditions as prescribed in item (b) of subsection 1 of
this section so requests; and
3. summary court-martial, consisting of one commissioned officer."
Court-martial jurisdiction
SECTION 16. Section 25-1-2540 of the 1976 Code is amended to read:
"Section 25-1-2540. Each component of the military forces has court-martial
jurisdiction over all persons subject to the Code of Military Justice. The
exercise of jurisdiction by one component over personnel of another component of
the military forces must be in accordance with regulations prescribed by the
governor or the adjutant general."
Jurisdiction of general courts-martial
SECTION 17. Section 25-1-2550 of the 1976 Code is amended to read:
"Section 25-1-2550. Subject to Section 25-1-2540, general courts-martial
have jurisdiction to try persons subject to this code for any offense made
punishable by the code and may, under such limitations as the governor may
prescribe, or such further limitations as the adjutant general may prescribe,
adjudge any of the following:
(a) dismissal, or dishonorable or bad-conduct discharge;
(b) confinement of not more than six months;
(c) a fine of not more than two thousand dollars;
(d) reduction of enlisted personnel to the lowest pay grade;
(e) forfeiture of pay and allowances not to exceed forty days' pay;
(f) a reprimand;
(g) any combination of these punishments."
Jurisdiction of special courts-martial
SECTION 18. Section 25-1-2560 of the 1976 Code is amended to read:
"Section 25-1-2560. 1. Subject to Section 25-1-2540, special
courts-martial have jurisdiction to try persons subject to this code, except
officers, for any offense made punishable by the code and may, under such
limitations as the governor may prescribe, or such further limitations as the
adjutant general may prescribe, adjudge any of the following punishments:
(a) bad-conduct discharge;
(b) confinement of not more than three months;
(c) a fine of not more than five hundred dollars;
(d) reduction of enlisted personnel to the lowest pay grade;
(e) forfeiture of pay and allowances not to exceed twenty days' pay;
(f) a reprimand;
(g) any combination of these punishments.
2. A sentence which imposes a bad-conduct discharge or confinement may not be
adjudged unless:
(a) a complete summary of the proceedings and testimony has been made by the
military judge or the president of the court;
(b) counsel, having the qualifications prescribed under subsection 2 of
Section 25-1-2630 was detailed to represent the accused; and
(c) a military judge was detailed to the trial."
Jurisdiction of summary courts-martial
SECTION 19. Section 25-1-2570 of the 1976 Code is amended to read:
"Section 25-1-2570. Subject to Section 25-1-2540, summary courts-martial
have jurisdiction to try persons subject to the code, except officers, for any
offense made punishable by the code and may, under such limitations as the
governor or adjutant general may prescribe, adjudge any of the following
punishments:
(a) reduction of enlisted personnel by one pay grade, provided the grade of
the accused is within the promotion authority of the convening authority;
(b) a fine of not more than two hundred dollars;
(c) imprisonment not to exceed thirty days;
(d) forfeiture of pay and allowances not to exceed five days' pay;
(e) any combination of these punishments.
No person with respect to whom summary courts-martial have jurisdiction may be
brought to trial before a summary court-martial if he objects. If objection to
trial by summary court-martial is made by an accused, trial may be ordered by
special or general court-martial as may be appropriate."
Appointment of general courts-martial
SECTION 20. Section 25-1-2580 of the 1976 Code is amended to read:
"Section 25-1-2580. General courts-martial may be appointed only by order
of the governor."
Appointment of special courts-martial
SECTION 21. Section 25-1-2590 of the 1976 Code is amended to read:
"Section 25-1-2590. Special courts-martial must be appointed by the
adjutant general and by such other commanding officers of the National Guard as
may be delegated such power of appointment by the adjutant general. The power
to appoint special courts-martial, when delegated, may not be redelegated and the
adjutant general has the power to revoke delegated authority at any time."
Appointment of summary courts-martial
SECTION 22. Section 25-1-2600 of the 1976 Code is amended to read:
"Section 25-1-2600. Summary courts-martial must be appointed by the
adjutant general and by such other commanding officers of the National Guard as
may be delegated such power of appointment by the adjutant general. The power
to appoint summary courts-martial, when delegated by the adjutant general may be
redelegated repeatedly from higher echelon of command to lower echelon of command
as is considered best by each successive commander delegated that authority.
Summary court officers have power and authority to administer oaths."
Eligibility to serve
SECTION 23. Section 25-1-2610 of the 1976 Code is amended to read:
"Section 25-1-2610. (1) Any commissioned officer off or on duty with the
military forces is eligible to serve as a member on all courts-martial for the
trial of any person who may lawfully be brought before such courts for trial.
(2) Any warrant officer off or on duty with the military forces is eligible
to serve on general and special courts-martial for the trial of any person, other
than a commissioned officer, who may lawfully be brought before such courts for
trial.
(3) Any enlisted member of the military forces who is not a member of the same
unit as the accused is eligible to serve on general and special courts-martial
for the trial of any enlisted member of the military forces who may lawfully be
brought before such courts for trial, but he may serve as a member of a court
only if, before the conclusion of a session called by the military judge prior
to trial or, in the absence of such a session, before the court is assembled for
the trial of the accused, the accused personally has requested in writing that
enlisted members serve on it. After such a request the accused may not be tried
by a general or special court-martial the membership of which does not include
enlisted members in a number comprising at least one-third of the total
membership of the court, unless eligible members cannot be obtained on account
of physical conditions or military exigencies. If such members may not be
obtained, the court may be assembled and the trial held without them, but the
convening authority shall make a detailed written statement, to be appended to
the record, stating why they could not be obtained.
In this subsection, the word 'unit' means any regularly organized body of the
military forces not larger than a company, a squadron, or a body corresponding
to one of them.
(4) When it can be avoided, no person subject to the Code of Military Justice
may be tried by a court-martial composed of any members who are junior to him in
rank or grade.
(5) When convening a court-martial, the convening authority shall detail as
members such members of the military force as, in his opinion, are best qualified
for the duty by reason of age, education, training, experience, length of
service, and judicial temperament. No member of the military forces is eligible
to serve as a member of a general or special court-martial when he is the accuser
or a witness for the prosecution or has acted as investigation officer or as
counsel in the same case."
Convening authority
SECTION 24. Section 25-1-2620 of the 1976 Code is amended to read:
"Section 25-1-2620. (1) The authority convening a general court-martial
shall, and the authority convening a special court-martial may (subject to the
approval of the adjutant general), detail a military judge to the court-martial.
A military judge shall preside over each open session of the court-martial to
which he has been detailed.
(2) A military judge must be a commissioned officer of the military forces who
is a member of the South Carolina bar or a member of the bar of a federal court,
and who is certified to be qualified for such duty by a state judge advocate.
(3) The military judge of a general or special court-martial must be
designated by the adjutant general or his designee, for detail by the convening
authority, and, unless the court-martial was convened by the governor, neither
the convening authority nor any member of his staff may prepare or review any
report concerning the effectiveness, fitness, or efficiency of the military judge
so detailed, which relates to his performance of duty as a military judge.
(4) No person is eligible to act as a military judge in a case, if he is the
accuser or a witness for the prosecution or has acted as investigating officer
or as a counsel in the same case.
(5) The military judge of a court-martial may not consult with the members of
the court about the court-martial except in the presence of the accused, trial
counsel, and defense counsel; nor may he vote with members of the court."
Further
SECTION 25. Section 25-1-2630 of the 1976 Code is amended to read:
"Section 25-1-2630. (1) For each general and special court-martial the
authority convening the court shall detail trial counsel and defense counsel, and
such assistants as he considers appropriate. No person who has acted as
investigating officer, military judge, or court member in any case may act later
as trial counsel, assistant trial counsel, or unless expressly requested by the
accused, as defense counsel or assistant defense counsel in the same case. No
person who has acted for the prosecution may act later in the same case for the
defense, nor may any person who has acted for the defense act later in the same
case for the prosecution.
(2) Trial counsel or defense counsel detailed for a general court martial:
(a) must be a person who is a member of the South Carolina bar or a member
of the bar of a federal court; and
(b) must be certified as competent to perform such duties by a state judge
advocate.
(3) In the case of a special court martial:
(a) the accused must be afforded the opportunity to be represented at the
trial by counsel having the qualifications prescribed under subsection 2 of this
section unless counsel having such qualifications may not be obtained on account
of physical conditions or military exigencies. If counsel having such
qualifications may not be obtained, the court may be convened and the trial held,
but the convening authority shall make a detailed written statement, to be
appended to the record stating why counsel with such qualifications was not
obtained;
(b) if the trial counsel is qualified to act as counsel before a general
court-martial, the defense counsel detailed by the convening authority must be
a person similarly qualified;
(c) if the trial counsel is a member of the South Carolina bar, the defense
counsel detailed by the convening authority must also be a member of the South
Carolina bar."
Proceedings to be recorded
SECTION 26. Section 25-1-2640 of the 1976 Code is amended to read:
"Section 25-1-2640. Under such regulations as the adjutant general may
prescribe, the convening authority of a general or special court-martial or court
of inquiry shall assign qualified individuals, who shall electronically record
the proceedings of and testimony taken before that court. Under like regulations
the convening authority of a military court may detail or employ interpreters who
shall interpret for the court."
No member of court-martial absent or excused
SECTION 27. Section 25-1-2650 of the 1976 Code is amended to read:
"Section 25-1-2650. (1) No member of a general or special court-martial
may be absent or excused after the court has been assembled for the trial of the
accused except for physical disability or as the result of a challenge or by
order of the convening authority for good cause.
(2) Whenever a general court-martial, other than a general court-martial
composed of a military judge only, is reduced below five members, the trial may
not proceed unless the convening authority details new members sufficient in
number to provide not less than five members. The trial may proceed with the new
members present after the recorded evidence previously introduced before the
members of the court has been read to the court in the presence of the military
judge, the accused, and counsel for both sides.
(3) Whenever a special court-martial, other than a special court-martial
composed of a military judge only, is reduced below three members, the trial may
not proceed unless the convening authority details new members sufficient in
numbers to provide not less than three members. The trial may proceed with the
new members present as if no evidence had previously been introduced at the
trial, unless a verbatim record of the evidence previously introduced before the
members of the court or a stipulation thereof is read to the court in the
presence of the military judge, if any, the accused and counsel for both sides.
(4) If the military judge of a court-martial composed of a military judge only
is unable to proceed with the trial because of physical disability, as a result
of a challenge, or for other good cause, the trial shall proceed, subject to any
applicable conditions of item (b) of subsection 1 or item (c) of subsection 2 of
Section 25-1-2530 after the detail of a new military judge as if no evidence had
previously been introduced unless a verbatim record of the evidence previously
introduced or a stipulation of the evidence is read in court in the presence of
the new military judge, the accused, and counsel for both sides."
Charges and specifications must be signed
SECTION 28. The 1976 Code is amended by adding to Article 19 of Chapter 1 of
Title 25:
"Section 25-1-2660. Charges and specifications must be signed by a person
subject to the Code of Military Justice under oath before a person authorized by
the code to administer oaths and shall state:
(1) that the signer has personal knowledge of, or has investigated, the
matters set forth therein; and
(2) that they are true in fact to the best of his knowledge and belief.
Upon the preferring of charges, the proper authority shall take immediate steps
to determine what disposition should be made of the charges in the interest of
justice and discipline, and the person accused must be informed of the charges
against him as soon as practicable.
Section 25-1-2665. (1) No person subject to the Code of Military Justice may
compel any person to incriminate himself or to answer any question the answer to
which may tend to incriminate him.
(2) No person subject to the code 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.
(3) No person subject to the code may compel any person to make a statement
or produce evidence before any military tribunal if the statement or evidence is
not material to the issue and may tend to degrade him.
(4) No statement obtained from any person in violation of this section, or
through the use of coercion, unlawful influence, or unlawful inducement may be
received in evidence against him in a trial by court-martial.
Section 25-1-2670. No charge or specification may be referred to a general
court-martial for trial until a thorough and impartial investigation of all the
matters set forth in the charge a specification has been made. The investigation
shall include inquiry as to the truth of the matter set forth in the charges,
consideration of the form of charges and a recommendation as to the disposition
which should be made of the case in the interest of justice and discipline.
The accused may be advised of the charges against him and of his right to be
represented at that investigation by counsel. Upon his own request he may be
represented by civilian counsel if provided by him at his own expense, or
military detailed by the officer exercising general court-martial jurisdiction
over the command. At that investigation, full opportunity must be given to the
accused to cross-examine witnesses against him if they are available and to
present anything he may desire in his own behalf, either in defense or
mitigation, and the investigating officer shall examine available witnesses
requested by the accused. If the charges are forwarded after the investigation,
they must be accompanied by a statement of the substance of the testimony taken
on both sides and a copy must be given to the accused.
If an investigation of the subject matter of an offense has been conducted
before the accused is charged with the offense, and if the accused was present
at the investigation and afforded the opportunities for representation,
cross-examination, and presentation prescribed in paragraph 2 of this section,
no further investigation of that charge is necessary under this section unless
it is demanded by the accused after he is informed of the charge. A demand for
further investigation entitles the accused to recall witnesses for further
cross-examination and to offer any new evidence in his own behalf.
The requirements of this section are binding on all persons administering this
code but failure to follow them does not divest a military court of jurisdiction.
Section 25-1-2675. When a person is held for trial by general court-martial the
commanding officer shall, within eight days after the accused is ordered into
arrest or confinement, if practicable, forward the charges, together with the
investigation and allied papers, to the person exercising general court-martial
jurisdiction. If that is not practicable, he shall report in writing to that
person the reasons for delay.
Section 25-1-2680. Before directing the trial of any charge by general
court-martial, the convening authority shall refer it to the state judge advocate
for consideration and advice. The convening authority may not refer a charge to
a general court-martial for trial unless he has found that the charge alleges an
offense under the Code of Military Justice and is warranted by evidence indicated
in the report of the investigation.
If the charges or specifications are not formally correct or do not conform to
the substance of the evidence contained in the report of the investigating
officer, formal corrections, and such changes in the charges and specifications
may be made to make them conform to the evidence.
Section 25-1-2685. The trial counsel to whom court-martial charges are referred
for trial shall cause to be served upon the accused a copy of the charges upon
which trial is to be had. No person may, against his objection, be brought to
trial or be required to participate by himself or counsel in a session called by
the military judge under Section 25-1-2705 in a general court-martial case within
a period of five days after the service of charges upon him or in a special
court-martial within a period of three days after the service of charges upon
him.
Section 25-1-2690. The procedure, including modes of proof, in cases before
military courts, shall apply the principles of law and rules of evidence
generally recognized in the trial of criminal cases in circuit courts of this
State, but which may not be contrary to or inconsistent with this code.
Section 25-1-2695. (1) No authority convening a general, special, or summary
court-martial nor any other commander or officer serving on the staff of the
court-martial may censure, reprimand, or admonish the court or any member,
military judge, or counsel with respect to the findings or sentence adjudged by
the court, or with respect to any other exercise of its or his functions in the
conduct of the proceeding. No person subject to this code may attempt to coerce
or, by an unauthorized means, influence the action of the court-martial or any
other military tribunal or any member thereof in reaching the findings or
sentence in any case, or the action of any convening, approving, or reviewing
authority with respect to his judicial acts. The foregoing provisions of this
subsection do not apply with respect to:
(A) general instructional or informational courses in military justice, if
such courses are designed solely for the purpose of instructing members of a
command in the substantive and procedural aspects of courts-martial;
(B) statements and instructions given in open court by the military judge,
president of a special court-martial, or counsel.
(2) In the preparation of an effectiveness, fitness, or efficiency report or
any other report or document used in whole or in part for the purpose of
determining whether a member of the military forces is qualified to be advanced
in grade, or in determining the assignment or transfer of a member of the
military forces, or in determining whether a member of the military forces should
be retained on active duty, no person subject to the Code of Military Justice
may, in preparing any such report:
(A) consider or evaluate the performance of duty of the member as a member
of a court-martial;
(B) give a less favorable rating or evaluation of any member of the state
military forces because of the zeal with which the member, as counsel,
represented any accused before a court-martial.
Section 25-1-2700. The trial counsel of a general or special court-martial shall
prosecute in the name of the State of South Carolina, and shall, under the
direction of the court, prepare the record of the proceedings.
The accused has the right to be represented in his defense before a general or
special court-martial by civilian counsel if provided by him at his own expense,
or by military counsel detailed under Section 25-1-2630. Should the accused have
counsel of his own selection, the defense counsel, and assistant defense counsel,
if any, who were detailed, may be excused by the military judge or by the
president of a court-martial without a military judge. An accused has no right
to military counsel in a summary court-martial proceeding.
In every court-martial proceeding, the defense counsel may, in the event of
conviction, forward for attachment to the record of proceedings a brief of
matters he feels should be considered in behalf of the accused on review,
including any objection to the contents of the record which he considers
appropriate.
An assistant trial counsel of a general court-martial may, under the direction
of the trial counsel or when he is qualified to be a trial counsel as required
by Section 25-1-2630 perform any duty imposed by law, regulation, or the custom
of the service upon the trial counsel of the court. An assistant trial counsel
of a special court-martial may perform any duty of the trial counsel.
An assistant defense counsel of a general or special court-martial may, under
the direction of the defense counsel or when he is qualified to be the defense
counsel, as required by Section 25-1-2630 perform any duty imposed by law,
regulation, or the custom of the service upon counsel for the accused.
Section 25-1-2705. At any time after the service of charges which have been
referred for trial to a court-martial composed of a military judge and members,
the military judge may, subject to Section 25-1-2685, call the court into session
without the presence of the members for the purpose of:
(1) hearing and determining motions raising defenses or objections which are
capable of determination without trial of the issues raised by a plea of not
guilty;
(2) hearing and ruling upon any matter which may be ruled upon by the military
judge under this code, whether or not the matter is appropriate for later
consideration or decision by the members of the court;
(3) unless prohibited by regulations of the governor, holding the arraignment
and receiving the pleas of the accused;
(4) performing any other procedural function which may be performed by the
military judge under this code under rules prescribed pursuant to Section
25-1-2690 and which does not require the presence of the members of the court.
These proceedings must be conducted in the presence of the accused, the defense
counsel, and the trial counsel and must be made a part of the record.
When the members of a court-martial deliberate or vote, only the members may
be present. All other proceedings, including any other consultation of the
members of the court with counsel or the military judge, must be made a part of
the record and must be in the presence of the accused, the defense counsel, the
trial counsel, and in cases in which a military judge has been detailed to the
court, the military judge.
Section 25-1-2710. The military judge or a court-martial without a military
judge may, for reasonable cause, grant a continuance to any party for such time,
and as often, as may appear to be just.
Section 25-1-2715. The military judge and members of a general or special
court-martial may be challenged by the accused or the trial counsel for cause
stated to the court. The military judge or, if none, the court, shall determine
the relevancy and validity of challenges for cause, and may not receive a
challenge to more than one person at a time. Challenges by the trial counsel
shall ordinarily be presented and decided before those by the accused are
offered.
Each accused and the trial counsel are entitled to one peremptory challenge,
but the military judge may not be challenged except for cause.
Section 25-1-2720. Before performing their respective duties, military judges,
members of general and special courts-martial, trial counsel, assistant trial
counsel, defense counsel, assistant defense counsel, reporters, and interpreters
shall take an oath to perform their duties faithfully.
Section 25-1-2725. A person charged with desertion or absence without leave in
time of war or with mutiny may be tried and punished at any time without
limitation.
Except as otherwise provided in this section, a person charged with desertion
in time of peace or with the offense punishable under Sections 25-1-3065 or
25-1-3070 is not liable to be tried by the court-martial if the offense was
committed more than three years before the receipt of sworn charges and
specifications by an officer exercising summary court-martial jurisdiction over
the command.
Except as otherwise provided in this section, a person charged with any offense
is not liable to be tried by court-martial or punished under Section 25-1-2520
if the offense was committed more than two years before the receipt of sworn
charges and specifications by an officer exercising summary court-martial
jurisdiction over the command or before the imposition of punishment under
Section 25-1-2520.
Periods in which the accused was absent from territory in which the State of
South Carolina has the authority to apprehend him, or in the custody of civil
authorities, or in the hands of the enemy, must be excluded in computing the
period of limitation prescribed in this section.
Section 25-1-2730. No person may, without his consent, be tried a second time
for the same offense. No proceeding in which an accused has been found guilty
by a court-martial upon any charge or specification is a trial in the sense of
this section until the finding of guilty has become final after review of the
case has been fully completed.
A proceeding which, after the introduction of evidence but before a finding,
is dismissed or terminated by the convening authority or on motion of the
prosecution for failure of available evidence or witnesses without any fault of
the accused is a trial in the sense of this section.
Section 25-1-2735. If an accused makes an irregular pleading, or after a plea
of guilty sets up matter inconsistent with the plea, or if it appears that he has
entered the plea of guilty improvidently or through lack of understanding of its
meaning and effect, or if he fails or refuses to plead, a plea of not guilty must
be entered in the record, and the court shall proceed as though he had pleaded
not guilty.
With respect to any charge or specification to which a plea of guilty has been
made by the accused and accepted by the military judge, or by a court-martial
without a military judge, a finding of guilty of the charge or specification may
be entered immediately without vote. This finding shall constitute the finding
of the court even though the plea of guilty is withdrawn prior to the
announcement of the sentence.
Section 25-1-2740. The trial counsel, the defense counsel, and the court-martial
shall have equal opportunity to obtain witnesses and other evidence in accordance
with regulations prescribed by the governor. Process issued in court-martial
cases to compel witnesses to appear and testify and to compel the production of
other evidence must be similar to that which courts of the state having
jurisdiction may lawfully issue, as prescribed by the laws of this State.
Section 25-1-2745. Any person not subject to the Code of Military Justice is
guilty of an offense against the State if:
(1) he has been duly subpoenaed in accordance with the laws of this State to
appear as a witness or to produce books and records before a military court or
before any military or civil officer designated to take a deposition to be read
in evidence before such a court;
(2) wilfully neglects or refuses to appear, or refuses to qualify as a witness
or to testify or to produce any evidence which that person may have been legally
subpoenaed to produce.
Any person who commits an offense named in this section must be tried in a
circuit court of this State, and jurisdiction is conferred upon that court for
that purpose. Upon conviction, such a person must be punished by a fine of not
more than five hundred dollars, or imprisonment for not more than six months, or
both.
The attorney general or his designated representative shall, upon the
certification of the facts to him by the military court, prosecute any person
violating this section.
Section 25-1-2750. A court-martial may punish for contempt any person who uses
menacing words, signs, or gestures in its presence, or who disturbs its
proceedings. The punishment may not exceed confinement for twenty-five days or
a fine of twenty-five dollars.
Section 25-1-2755. At any time after charges have been signed, as provided in
Section 25-1-2660, any party may take oral or written depositions unless the
military judge or court-martial without a military judge hearing the case, or if
the case is not being heard, an authority competent to convene a court-martial
for the trial of those charges, forbids it for a good cause. If a deposition is
to be taken before charges are referred for trial, an authority may designate
commissioned officers to represent the prosecution and the defense and may
authorize those officers to take the deposition of any witness.
The party at whose instance a deposition is to be taken shall give to every
other party reasonable written notice of the time and place for taking the
deposition.
Depositions may be taken before, and authenticated by, any military or civil
officer authorized by the laws of this State or by the laws of the place where
the deposition is taken to administer oaths.
A duly authenticated deposition taken upon reasonable notice to the other
parties, so far as otherwise admissible under the rules of evidence, may be read
in evidence before any court-martial or in any proceeding before a court of
inquiry, if it appears that:
(1) the witness resides or is beyond the State or beyond the distance of one
hundred miles from the place of trial or hearing;
(2) the witness by reason of death, age, sickness, bodily infirmity,
imprisonment, military necessity, nonamenability to process or other reasonable
cause, is unable or refuses to appear to testify in person at the place of trial
or hearing;
(3) the present whereabouts of the witness is unknown.
Section 25-1-2760. In any case not extending to the dismissal of a commissioned
officer, the sworn testimony, contained in the duly authenticated record of
proceedings of a court of inquiry, of a person whose oral testimony may not be
obtained, may if otherwise admissible under the rules of evidence, be read in
evidence by any party before a court-martial if the accused was a party before
the court of inquiry and if the same issue was involved or if the consents to the
introduction of the evidence.
The testimony may be read in evidence only by the defense in cases extending
to the dismissal of a commissioned officer.
The testimony may also be read in evidence before a court of inquiry or a
military board.
Section 25-1-2765. Voting by members of a general or special court-martial on
the findings and on the sentence, and by members of a court-martial without a
military judge upon questions of challenge must be by secret written ballot. The
junior member of the court shall count the votes. The count must be checked by
the president, who shall forthwith announce the result of the ballot to the
members of the court.
The military judge and, except for questions of challenge, the president of a
court-martial without a military judge, shall rule upon all questions of law and
all interlocutory questions, arising during the proceedings. Any ruling made by
the military judge upon any question of law or any interlocutory question other
than the factual issue of mental responsibility of the accused, or by the
president of a court-martial without a military judge upon any question of law
other than a motion for a finding of not guilty is final and constitutes the
ruling of the court. However, the military judge or the president of a
court-martial without a military judge may change his ruling at any time during
the trial.
Before a vote is taken on the findings, the military judge or the president of
a court-martial without a military judge shall, in the presence of the accused
and counsel, instruct the members of the court as to the elements of the offense
and charge them:
(1) that the accused must be presumed to be innocent until his guilt is
established by legal and competent evidence beyond reasonable doubt;
(2) that in the case being considered, if there is a reasonable doubt as to
the guilt of the accused, the doubt must be resolved in favor of the accused and
he must be acquitted;
(3) that if there is a reasonable doubt as to the degree of guilt, the finding
must be in a lower degree as to which there is no reasonable doubt; and
(4) that the burden of proof of establishing the guilt of the accused beyond
reasonable doubt is upon the State.
This section does not apply to a court-martial composed of a military judge
only. The military judge of such a court-martial shall determine all questions
of law and fact arising during the proceedings, and, if the accused is convicted,
adjudge an appropriate sentence. The military judge of such a court-martial
shall make a general finding and shall in addition on request find the facts
specially. If an opinion or memorandum of decision is filed, it is sufficient
if the findings of fact appear in it.
Section 25-1-2770. No person may be convicted of an offense, except as provided
in Section 25-1-2735 or by the concurrence of two-thirds of the members present
at the time the vote is taken.
All other questions to be decided by the members of a general or special
court-martial must be determined by a majority vote. A tie vote on a challenge
disqualifies the member challenged. A tie vote on a motion for a finding of not
guilty or on a motion relating to the question of the accused's sanity is a
determination against the accused. A tie vote on any other question is a
determination in favor of the accused.
Section 25-1-2775. A court-martial shall announce its findings and sentence to
the parties as soon as determined.
Section 25-1-2780. Each general court-martial shall keep a separate record of
the proceedings in each case brought before it, and the record must be
authenticated by the signature of the military judge. If the record may not be
authenticated by the military judge by reason of his death, disability, or
absence, it must be authenticated by the signature of the trial counsel or by
that of a member if the trial counsel is unable to authenticate it by reason of
his death, disability, or absence. In a court-martial consisting of only a
military judge the record must be authenticated by the court reporter under the
same conditions which would impose such a duty on a member under this paragraph.
If the proceedings have resulted in an acquittal of all charges and
specifications or, if not affecting a general or flag officer, in a sentence not
including discharge or confinement and not in excess of that which may otherwise
be adjudged by a special court-martial, the record shall contain such matters as
may be prescribed by regulations of the governor.
A copy of the record of the proceedings of each general and special
court-martial must be given to the accused as soon as it is authenticated.
Section 25-1-2785. Punishment by flogging, or by branding, marking, or tattooing
on the body, or any other cruel and unusual punishment, may not be adjudged by
any court-martial and inflicted upon any person subject to this code.
Section 25-1-2790. With the express consent of the adjutant general, an accused
may resign without retirement or other benefits from the military forces in lieu
of court-martial.
Section 25-1-2795. Whenever a sentence of a court-martial as lawfully adjudged
and approved includes a forfeiture of pay or allowances in addition to
confinement not suspended or deferred, the forfeiture may apply to pay or
allowances becoming due on or after the date the sentence is approved by the
convening authority. No forfeiture may extend to any pay or allowances accrued
before that date.
Any period of confinement included in a sentence of a court-martial begins to
run from the date the sentence is adjudged by the court-martial, but periods
during which the sentence to confinement is suspended must be excluded in
computing the service of the term of confinement.
All other sentences of courts-martial are effective on the date ordered
executed.
On application by an accused who is under sentence to confinement that has not
been ordered executed, the convening authority or, if the accused is no longer
under his jurisdiction, the person exercising general court-martial jurisdiction,
may in his sole discretion defer service of the sentence to confinement. The
deferment shall terminate when the sentence is ordered executed. The deferment
may be rescinded at any time by the officer who granted it or, if the accused is
no longer under his jurisdiction, by the person exercising general court-martial
jurisdiction.
Section 25-1-2800. Under such instructions as the adjutant general may
prescribe, a sentence of confinement adjudged by a court-martial, whether or not
the sentence includes discharge or dismissal, and whether or not the discharge
or dismissal has been executed, may be carried into execution by confinement in
any place of confinement under the control of the federal armed forces, the state
military forces or in any penal or correctional institution, detention facility,
jail, or stockade under the control of the State or a political subdivision of
it, or which the State or a political subdivision of it may be allowed to use.
Persons so confined in a penal or correctional institution not under the control
of the military forces are subject to the same discipline and treatment as
persons confined or committed by the courts of the State.
The omission of the words 'hard labor' from any sentence or punishment of a
court-martial adjudging confinement does not deprive the authority executing that
sentence or punishment of the power to require hard labor as a part of the
punishment.
Section 25-1-2805. Unless otherwise provided in regulations to be prescribed by
the governor, a special or general court-martial sentence of an enlisted member
in a pay grade above E-2, as approved by the convening authority, that includes:
(1) a dishonorable or bad-conduct discharge; or
(2) confinement;
reduces that member to pay grade E-2, effective on the date of that approval.
If the sentence of a member who is reduced in pay grade under this section is
disapproved or reversed, the rights and privileges of which he was deprived
because of that reduction must be restored to him and he is entitled to the pay
and allowances to which he would have been entitled, for the period the reduction
was in effect, had he not been so reduced."
Finding or sentence of court-martial
SECTION 29. Section 25-1-2810 of the 1976 Code is amended to read:
"Section 25-1-2810. A finding or sentence of a court-martial may not be
held incorrect on the ground of an error of law unless the error materially
prejudices the substantial rights of the accused.
Any reviewing authority with the power to approve or affirm a finding of guilty
may approve or affirm, instead, so much of the finding as includes a lesser
included offense."
Record to be forwarded
SECTION 30. The 1976 Code is amended by adding:
"Section 25-1-2815. After a trial by court-martial the record must be
forwarded to the convening authority, and action thereon may be taken by the
person who convened the court, a commissioned officer commanding for the time
being, a successor in command, or the person exercising general court-martial
jurisdiction."
Record to be forwarded to state judge advocate
SECTION 31. Section 25-1-2820 of the 1976 Code is amended to read:
"Section 25-1-2820. The adjutant general shall refer the record of each
general court-martial to the state judge advocate, who shall submit his written
opinion to the convening authority. If final action of the court has resulted
in an acquittal of all charges and specifications, the opinion must be limited
to questions of jurisdiction."
Reconsideration
SECTION 32. The 1976 Code is amended by adding:
"Section 25-1-2825. If a specification before a court-martial has been
dismissed on motion and the ruling does not amount to a finding of not guilty,
the convening authority may return the record to the court for reconsideration
of the ruling and any further appropriate action.
Where there is an apparent error or omission in the record or where the record
shows improper or inconsistent action by a court-martial with respect to a
finding or sentence which can be rectified without material prejudice to the
substantial rights of the accused, the convening authority may return the record
to the court for appropriate action. In no case, however, may the record be
returned:
(1) for reconsideration of a finding of not guilty of any specification, or
a ruling which amounts to a finding of not guilty;
(2) for reconsideration of a finding of not guilty of any charge, unless the
record shows a finding of guilty under a specification laid under that charge,
which sufficiently alleges a violation of some section of this code;
(3) for increasing the severity of the sentence unless the sentence prescribed
for the offense is mandatory."
Rehearing
SECTION 33. Section 25-1-2830 of the 1976 Code is amended to read:
"Section 25-1-2830. If the convening authority disapproves the findings and
sentence of a court-martial, he may, except where there is lack of sufficient
evidence in the record to support the findings, order a rehearing. In such a
case he shall state the reasons for disapproval. If he disapproves the findings
and sentence and does not order a rehearing, he shall dismiss the charges.
Each rehearing shall take place before a court-martial composed of members not
members of the court-martial which first heard the case. Upon a rehearing the
accused may not be tried for any offense of which he was found not guilty by the
first court-martial, and no sentence in excess of or more severe than the
original sentence may be imposed, unless the sentence is based upon a finding of
guilty of an offense not considered upon the merits in the original proceedings,
or unless the sentence prescribed for the offense is mandatory."
Approval of findings
SECTION 34. The 1976 Code is amended by adding:
"Section 25-1-2835. In acting on the findings and sentence of a
court-martial, the convening authority may approve only the findings of guilty
and the sentence or the part or amount of the sentence, as he finds correct in
law and fact and as he in his discretion determines must be approved. Unless he
indicates otherwise, approval of the sentence is approval of the findings and
sentence."
Action on case sent to Attorney General
SECTION 35. Section 25-1-2840 of the 1976 Code is amended to read:
"Section 25-1-2840. When the convening authority has taken final action in
a general court-martial case, he shall send the entire record, including his
action thereon and the opinion of the state judge advocate, to the attorney
general for review.
If the sentence of a special court-martial as approved by the convening
authority includes a bad-conduct discharge, whether or not suspended, the record
must be sent to the person exercising general court-martial jurisdiction. If the
sentence as approved by the person exercising general court-martial jurisdiction
includes a bad-conduct discharge, whether or not suspended, the record must be
sent to the state judge advocate for review. The opinion of the state judge
advocate must be given in writing within thirty days.
All other special and summary court-martial records must be reviewed by the
state judge advocate or legal officer of appropriate component of the military
forces. The opinion of the state judge advocate or legal officer must be given
in writing within thirty days."
Appeal
SECTION 36. The 1976 Code is amended by adding:
"Section 25-1-2845. Appeal from a general court-martial or
specialcourt-martial must be taken as if the case were tried by a court of
General Sessions."
Appellate counsel
SECTION 37. Section 25-1-2850 of the 1976 Code is amended to read:
"Section 25-1-2850. The National Guard shall not have the responsibility
to provide appellate counsel for a defendant. Appellate counsel for a defendant
tried by special or general court-martial must be provided under the same
provisions as if the defendant were tried as a civilian in a state court. The
Attorney General shall provide appellate counsel for the National Guard."
Sentence involving general officers
SECTION 38. The 1976 Code is amended by adding:
"Section 25-1-2855. No sentence involving a general officer or which
includes unsuspended dismissal of a commissioned officer, or a dishonorable
discharge, may be executed until affirmed on appeal, provided the defendant
elects to appeal.
All other court-martial sentences, unless suspended or deferred, may be ordered
executed by the convening authority when approved by him. The convening
authority may suspend the execution of any sentence."
Vacation of a suspension
SECTION 39. Section 25-1-2860 of the 1976 Code is amended to read:
"Section 25-1-2860. Before the vacation of the suspension of a special
court-martial sentence which, as approved, includes a bad-conduct discharge, or
of any general court-martial sentence, the officer having special court-martial
jurisdiction over the probationer shall hold a hearing on the alleged violation
of probation. The probationer must be represented at the hearing by counsel if
he so desires.
The record of the hearing and the recommendation of the officer having special
court-martial jurisdiction must be sent for action to the person exercising
general court-martial jurisdiction over the probationer. If he vacates the
suspension, any unexecuted part of the sentence must be executed, subject to
applicable restrictions in Section 25-1-2855.
The suspension of any other sentence may be vacated by any authority competent
to convene, for the command in which the accused is serving or assigned, a court
of the kind that imposed the sentence."
Governor or convening authority may remit or suspend sentence
SECTION 40. The 1976 Code is amended by adding:
"Section 25-1-2865. The governor or a convening authority may remit or
suspend any part of amount of the unexecuted part of any sentence, including all
uncollected forfeitures.
The adjutant general may, for good cause, substitute an administrative form of
discharge for a discharge or dismissal executed in accordance with the sentence
of a court-martial."
Conditions under which sentence must be restored
SECTION 41. Section 25-1-2870 of the 1976 Code is amended to read:
"Section 25-1-2870. Under such regulations as the governor or the adjutant
general may prescribe, all rights, privileges, and property affected by an
executed part of a court-martial sentence which has been set aside or
disapproved, except an executed dismissal or discharge, must be restored unless
a new trial or rehearing is ordered and such executed part is included in a
sentence imposed upon a new trial or rehearing."
Appellate review
SECTION 42. The 1976 Code is amended by adding:
"Section 25-1-2875. The appellate review of records of trial provided by
this code, the proceedings, findings, and sentences of courts-martial as
approved, reviewed, or affirmed as required by the code, and all dismissals and
discharges carried into execution under sentences by courts-martial following
approval, review, or affirmation as required by the code are final and
conclusive. Orders publishing the proceedings of courts-martial and all action
taken pursuant to those proceedings are binding upon all departments, courts,
agencies, and officers of the United States and the several states, subject only
to action under Section 25-1-2865."
Principal
SECTION 43. Section 25-1-2880 of the 1976 Code is amended to read: Section
25-1-2880. Any person is a principal who is subject to the Code and who:
1. commits an offense punishable by the code, or aids, abets, counsels,
commands, or procures its commission; or
2. causes an act to be done which if directly performed by him would be
punishable by the code."
Person who assists etc offender must be punished as
court-martial may direct
SECTION 44. The 1976 Code is amended by adding:
"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
must be punished as a court-martial may direct."
Accused may be found guilty
SECTION 45. Section 25-1-2890 of the 1976 Code is amended to read:
"Section 25-1-2890. An accused may be found guilty of an offense
necessarily included in the offense charged or of an attempt to commit either the
offense charged or an offense necessarily included in the offense."
Specific intent
SECTION 46. The 1976 Code is amended by adding:
"Section 25-1-2895. An act, done with specific intent to commit an offense
under this code, amounting to more than mere preparation and tending, even though
failing to effect its commission, is an attempt to commit that offense.
Any person subject to this code who attempts to commit any offense punishable
by the code must be punished as a court-martial may direct, unless otherwise
specifically prescribed.
Any person subject to this code may be convicted of an attempt to commit an
offense although it appears on the trial that the offense was not
consummated."
Conspirators
SECTION 47. Section 25-1-2900 of the 1976 Code is 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 must, 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."
Solicits or advises persons to desert
SECTION 48. The 1976 Code is amended by adding:
"Section 25-1-2905. (1) Any person subject to this code who solicits or
advises another or others to desert in violation of Section 25-1-2920 or mutiny
in violation of Section 25-1-2960 must, if the offense solicited or advised is
attempted or committed, be punished with the punishment provided for the
commission of the offense, but if the offense solicited or advised is not
committed or attempted, he must be punished as a court-martial may direct.
(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 must be punished as a court-martial may
direct."
Persons who may be punished by court-martial
SECTION 49. Section 25-1-2910 of the 1976 Code is amended to read:
"Section 25-1-2910. Any person must 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 50. The 1976 Code is amended by adding:
"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 must be
punished as a court-martial may direct."
Desertion
SECTION 51. Section 25-1-2920 of the 1976 Code is amended to read:
"Section 25-1-2920. (1) Any member of the military forces is guilty of
desertion who:
(A) without authority, goes or remains absent from his unit, organization,
or place of duty with intent to remain away permanently;
(B) quits his unit, organization, or place of duty with intent to avoid
hazardous duty or to shirk important service;
(C) without being regularly separated from one of the armed forces of the
United States, enlists or accepts an appointment in the military forces, without
fully disclosing the fact that he has not been regularly separated.
(2) Any commissioned officer of the military forces who, after tender of his
resignation and before notice of its acceptance, quits his post or proper duties
without leave and with intent to remain away permanently is guilty of desertion.
(3) Any person found guilty of desertion or attempt to desert must be punished
as a court-martial may direct."
Person must be punished by court-martial
SECTION 52. The 1976 Code is amended by adding:
"Section 25-1-2925. Any person, subject to this code must 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."
Persons missing movement of unit
SECTION 53. Section 25-1-2930 of the 1976 Code is 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 must be punished as a court-martial may direct."
Persons who behave with disrespect
SECTION 54. The 1976 Code is amended by adding:
"Section 25-1-2935. Any person subject to this code who behaves with
disrespect toward his superior commissioned officer must be punished as a
court-martial may direct."
Persons must be punished by court-martial
SECTION 55. Section 25-1-2940 of the 1976 Code is amended to read:
"Section 25-1-2940. Any person subject to this code must 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."
Warrant officer or enlisted member must be punished by
court-martial
SECTION 56. The 1976 Code is amended by adding:
"Section 25-1-2945. Any warrant officer or enlisted member must 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."
Persons must be punished as court-martial may direct
SECTION 57. Section 25-1-2950 of the 1976 Code is amended to read:
"Section 25-1-2950. Any person, subject to the code must 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."
Further
SECTION 58. The 1976 Code is amended by adding:
"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 must be punished as a court-martial may direct."
Further
SECTION 59. Section 25-1-2960 of the 1976 Code is amended to read:
"Section 25-1-2960. (1) Any person subject to the code who:
(A) with intent to usurp or override lawful military authority refuses, in
concert with any other person, to obey orders or otherwise do his duty or creates
any violence or disturbance, is guilty of mutiny;
(B) with intent to cause the overthrow or destruction of lawful civil
authority, creates, in concert with any other person, revolt, violence, or other
disturbance against that authority, is guilty of sedition; or
(C) fails to do his utmost to prevent and suppress a mutiny or sedition
being committed in his presence, or fails to take all reasonable means to inform
his superior commissioned officer or commanding officer of a mutiny or sedition
which he knows or has reason to believe is taking place, is guilty of a failure
to suppress or report a mutiny or sedition.
(2) A person who is found guilty of attempted mutiny, mutiny, sedition, or
failure to suppress or report a mutiny or sedition must be punished as a
court-martial may direct."
Persons resisting apprehension
SECTION 60. The 1976 Code is amended by adding:
"Section 25-1-2965. Any person subject to this code who resists
apprehension or breaks arrest or who escapes from physical restraint lawfully
imposed must be punished as a court-martial may direct."
Persons who release prisoners
SECTION 61. Section 25-1-2970 of the 1976 Code is 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, must be punished as a court-martial may
direct, whether or not the prisoner was committed in strict compliance with
law."
Persons punishable by court-martial
SECTION 62. The 1976 Code is amended by adding:
"Section 25-1-2975. Any person subject to this code, who, except as
provided by law or regulation, apprehends, arrests, or confines any person must
be punished as a court-martial may direct."
Further
SECTION 63. Section 25-1-2980 of the 1976 Code is amended to read:
"Section 25-1-2980. Any person, subject to this code must 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."
Further
SECTION 64. The 1976 Code is amended by adding:
"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, must be punished as a court-martial may
direct."
Further
SECTION 65. Section 25-1-2990 of the 1976 Code is amended to read:
"Section 25-1-2990. Any person subject to this code who forces a safeguard
must be punished as a court-martial may direct."
Persons to secure property from enemy
SECTION 66. The 1976 Code is amended by adding:
"Section 25-1-2995. (1) All persons subject to this code shall secure all
public property taken from the enemy for the service of the State and shall give
notice and turn over to the proper authority without delay all captured or
abandoned property in their possession, custody, or control.
(2) Any person, subject to this code must 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."
Persons must be punished as court-martial may direct
SECTION 67. Section 25-1-3000 of the 1976 Code is 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, must be punished as a court-martial may direct."
Further
SECTION 68. The 1976 Code is amended by adding:
"SECTION 25-1-3005. Any person subject to this code who, without proper
authority:
(1) sells or otherwise disposes of;
(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; any military property of the United States or of the
State must be punished as a court-martial may direct."
Further
SECTION 69. Section 25-1-3010 of the 1976 Code is 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 must be punished
as a court-martial may direct."
Further
SECTION 70. The 1976 Code is amended by adding:
"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, must 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 must be punished as a court-martial
may direct."
Further
SECTION 71. Section 25-1-3020 of the 1976 Code is 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, must be
punished as a court-martial may direct."
Further
SECTION 72. The 1976 Code is amended by adding:
"Section 25-1-3025. Any person, subject to this code must be punished as
a court-martial may direct, if he, for the purpose of avoiding work, duty, or
service in the military forces:
(1) feigns illness, physical disablement, mental lapse, or derangement;
(2) intentionally inflicts self-injury;
(3) hires or attempts to hire any other person to do his duty."
Further
SECTION 73. Section 25-1-3030 of the 1976 Code is 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 must be punished as a
court-martial may direct."
Further
SECTION 74. The 1976 Code is amended by adding:
"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 must
be punished as a court-martial may direct."
Further
SECTION 75. Section 25-1-3040 of the 1976 Code is amended to read:
"Section 25-1-3040. Any person subject to this code who wrongfully takes,
obtains, or withholds, by any means, from the possession of the owner or of any
other person, any money, personal property, or article of value of any kind:
(1) with intent permanently to deprive or defraud another person of the use
and benefit of property or to appropriate it to his own use or the use of any
person other than the owner, steals that property and is guilty of larceny;
(2) with intent temporarily to deprive or defraud another person of the use
and benefit of property or to appropriate it to his own use or the use of any
person other than the owner, is guilty of wrongful appropriation.
Any person found guilty of larceny or wrongful appropriation must be punished
as a court-martial may direct."
Further
SECTION 76. The 1976 Code is amended by adding:
"Section 25-1-3045. Any person subject to this code who, with intent to
defraud:
(1) falsely makes or alters any signature to, any part of, any writing which
would, if genuine, apparently impose a legal liability on another or change his
legal right or liability to his prejudice;
(2) utters, offers, issues, or transfers such a writing, known by him to be
made or altered is guilty of forgery and must be punished as a court-martial may
direct."
Further
SECTION 77. Section 25-1-3050 of the 1976 Code is 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 must be
punished as a court-martial may direct."
Further
SECTION 78. The 1976 Code is amended by adding:
"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 must be punished as a court-martial
may direct."
Further
SECTION 79. Section 25-1-3060 of the 1976 Code is amended to read:
"Section 25-1-3060. Any person, subject to this code must, upon conviction
of the following, be punished as a court-martial may direct, if he:
(1) knowing it to be false or fraudulent:
(A) makes any claim against the United States, the State, or any officer of
them;
(B) presents to any person in the civil or military service thereof, for
approval or payment any claim against the State or any officer of it;
(2) for the purpose of obtaining the approval, allowance, or payment of any
claim against the State or any officer of it:
(A) makes or uses any writing or other paper knowing it to contain any false
or fraudulent statements;
(B) makes any oath to any fact or to any writing or other paper knowing the
oath to be false;
(C) forges or counterfeits any signature upon any writing or other paper,
or uses any such signature knowing it to be forged and counterfeited;
(3) having charge, possession, custody, or control of any money or other
property of the State furnished or intended for the military forces, knowingly
delivers to any person having authority to receive it, any amount thereof less
than that for which he receives a certificate or receipt;
(4) being authorized to make or deliver any paper certifying the receipt of
any property of the State furnished or intended for the military forces, makes
or delivers to any person the writing without having full knowledge of the truth
of the statements contained in it and with intent to defraud the State."
Further
SECTION 80. The 1976 Code is amended by adding:
"Section 25-1-3065. Any commissioned officer who is convicted of conduct
unbecoming an officer and a gentleman must be punished as a court-martial may
direct."
Disorders and neglects
SECTION 81. Section 25-1-3070 of the 1976 Code is amended to read:
"Section 25-1-3070. Though not specifically mentioned in this code all
disorders and neglects 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 must be punished at the discretion
of that court."
Statutory and common law specifically incorporated
SECTION 82. The 1976 Code is amended by adding:
"Section 25-1-3075. All statutory and common law criminal offenses in the
State of South Carolina are specifically incorporated in this code by reference
and made a part of the code so that the commission of such statutory or common
law criminal offense shall subject the violator to court-martial and punishment
as the court-martial shall direct."
Courts of inquiry to investigate
SECTION 83. Section 25-1-3080 of the 1976 Code is amended to read:
"Section 25-1-3080. Courts of inquiry to investigate any matter of concern
to the military forces may be convened by the governor or adjutant and general
for that purpose, whether or not the persons involved have requested such an
inquiry.
A court of inquiry consists of three or more commissioned officers. For each
court of inquiry the convening authority shall also appoint counsel for the
court.
Any person subject to this code whose conduct is subject to inquiry must be
designated as a party. Any person subject to this code or employed by or for the
military forces, who has a direct interest in the subject of inquiry has the
right to be designated as a party upon request to the court. Any person
designated as a party must be given due notice and has the right to be present,
to be represented by counsel, to cross-examine witnesses, and to introduce
evidence.
Members of a court of inquiry may be challenged by a party, but only for cause
stated to the court.
The members, counsel, the reporter, and the interpreters of courts of inquiry
shall take an oath to faithfully perform their duties.
Witnesses may be summoned to appear and testify and be examined before courts
of inquiry, as provided for courts-martial.
Courts of inquiry shall make findings of fact but may not express opinions or
make recommendations unless required to do so by the convening authority.
Each court of inquiry shall keep a record of its proceedings, which must be
authenticated by the signatures of the president and counsel for the court and
forwarded to the convening authority. If the record may not be authenticated by
the president, it must be signed by a member in lieu of the president. If the
record may not be authenticated by the counsel for the court, it must be signed
by a member in lieu of the counsel."
Members of military forces may administer oaths
SECTION 84. The 1976 Code is amended by adding:
"Section 25-1-3085. The following members of the military forces may
administer oaths for the purposes of military administration, including military
justice, and affidavits may be taken for those purposes before persons having the
general powers of a notary public:
(1) the state judge advocate;
(2) all summary courts-martial;
(3) all adjutants, assistant adjutants, acting adjutants, and personnel
adjutants;
(4) all judge advocates and legal officers, and acting or assistant judge
advocates and legal officers;
(5) the president, military judge, trial counsel, and assistant trial counsel
for all general and special courts-martial;
(6) the president and the counsel for the court of any court of inquiry;
(7) all officers designated to take a deposition;
(8) all persons detailed to conduct an investigation;
(9) all commissioned officers;
(10) all other persons designated by law or by regulations of the governor.
The signature without seal of any person, together with the title of his
office, is prima facie evidence of his authority."
Text of code to be made available
SECTION 85. Section 25-1-3090 of the 1976 Code is amended to read:
"Section 25-1-3090. A complete text of the Code of Military Justice and of
the regulations prescribed by the code must be made available to any member of
the military forces, upon his request, for his personal examination."
Member may complain to next superior commissioned officer
SECTION 86. The 1976 Code is amended by adding:
"Section 25-1-3095. Any member of the military forces who believes himself
wronged by his commanding officer, and who, upon due application to that
commanding officer, is refused redress, may complain to his next superior
commissioned officer, who shall forward the complaint to the adjutant general.
The adjutant general shall examine the complaint and take proper measures for
redressing the wrong within his discretion. The adjutant general shall have the
final right of review and he may take such action as he considers
necessary."
Board may be convening
SECTION 87. Section 25-1-3100 of the 1976 Code is amended to read:
"Section 25-1-3100. Whenever complaint is made to any commanding officer
that damage or loss of property has occurred, either negligently or
intentionally, of the State or of an individual, he may, subject to such
regulations as the adjutant general may prescribe, convene a board to investigate
the complaint. The board shall consist of from one to three commissioned
officers and, for the purpose of that investigation, it has power to summon
witnesses and examine them upon oath, to receive depositions or other documentary
evidence and to assess the damages sustained against the responsible parties.
The assessment of damages made by the board is subject to the approval of the
commanding officer, and in the amount approved by him must be charged against the
pay of the offenders. The order of the commanding officer directing charges
authorized by this section is conclusive, except as provided in the third
paragraph of this section, on any disbursing officer for the payment by him to
the injured parties of the damages so assessed and approved.
If the offenders may not be ascertained, but the organization or detachment to
which they belong is known, charges totaling the amount of damages assessed and
approved may be made in such proportion as may be considered just upon the
individual members who are shown to have been present at the scene at the time
the damages complained of were inflicted, as determined by the approved findings
of the board.
Any person subject to this code who is accused of causing wilful damage to
property has the right to be represented by counsel, to summon witnesses in his
behalf and to cross-examine those appearing against him. Appeal may be taken
only to the next higher authority who may approve or disapprove the findings or
assess a smaller amount."
Members to serve at pleasure of adjutant general
SECTION 88. The 1976 Code is amended by adding:
"Section 25-1-3105. Members of the Military Forces shall serve at the
pleasure of the adjutant general who may dismiss any member for good cause."
No action may be brought
SECTION 89. Section 25-1-3110 of the 1976 Code is amended to read:
"Section 25-1-3110. No accused may bring an action or proceeding in any
federal or state court against the convening authority or a member of a military
court or board convened under this code or person acting under the authority of
this code who shall attempt to discharge the authority granted in good
faith."
Presidents of courts-martial etc may request aid of solicitor
SECTION 90. The 1976 Code is amended by adding:
"Section 25-1-3115. The presidents of courts-martial and summary court
officers may request the aid of the solicitor of the judicial circuit in which
the court is sitting for assistance in the issuance of any writ, warrant,
subpoena or other process that is necessary. It is the duty of each solicitor,
when called upon, to assist in the issuance of process, and the form must be that
which is considered by the solicitor to be most appropriate to the situation and
in keeping with the form of the process of the courts of general sessions.
Section 25-1-3120. The trial counsel of a general or special court-martial shall
administer to the members of the court, before they proceed upon any trial, the
following oath or affirmation: 'You, A. B., swear (or affirm) that you will well
and truly try to determine, according to the evidence, the matter now before you
between the State of South Carolina, and the person to be tried and that you will
duly administer justice, without partiality, favor, or affection according to the
provisions of the rules and articles for the government of the National Guard of
South Carolina and if any doubt should arise, not explained by these articles,
then according to your conscience, and the best of your understanding, do you
further swear (or affirm) that you will not divulge the findings or sentence of
the court until they shall be published by the proper authority, except to the
trial counsel; neither will you disclose the vote or opinion of any particular
member of the court-martial, unless required to give evidence thereof as a
witness by a court of justice in due course of law. So help you God.'
Section 25-1-3125. When the oath or affirmation has been administered to the
members of a general or special court-martial the president of the court shall
administer to the trial counsel an oath in the following form: 'Do you, A. B.,
swear (or affirm) that you will not divulge the findings or sentence of the court
to any but the proper authority until they shall be duly disclosed by the same.
So help you God.' Every reporter of the proceedings of a court-martial shall,
before entering upon his duties, make oath or affirmation in the following form:
'Do you swear (or affirm) that you will faithfully perform the duties of reporter
to this court. So help you God.'
Section 25-1-3130. All persons who give evidence before a court-martial must be
examined on oath or affirmation administered by the trial counsel in the
following form: 'Do you swear (or affirm) that the evidence you shall give in
the case now in hearing shall be the truth, the whole truth, and nothing but the
truth. So help you God.' In case of affirmation the closing sentence of
adjuration may be omitted.
Section 25-1-3135. Trial by court-martial of an accused does not act as a bar
to indictment, trial, and punishment by the courts of general sessions for
violation of any of the criminal laws of the State of South Carolina which the
accused may have committed.
Section 25-1-3140. When a fine has been assessed by a court-martial against a
member of the National Guard of South Carolina and the proceedings of the court
have been passed upon by the reviewing authority, and such fine is unpaid, the
president, in the case of a general or special court-martial, or the summary
court officer, in the case of a summary court-martial, shall issue a writ in
substantially the following form.
STATE OF SOUTH CAROLINA
COUNTY OF_____________
To any sheriff or constable in the State, Greetings:
Whereas,__________ of____________ in the county of__________ a member of the
National Guard of South Carolina was on the______ day of______ A. D. 19____
tried and found guilty of______ in violation of___________ and was by court
martial sentenced to pay a fine of $_______ or serve ______ days in jail.
Whereas, such fine has not been paid.
Now, Therefore, by authority of the State of South Carolina, you are hereby
commanded to take the body of the said ________ and commit it to the keeper of
the jail in the county of_______ within such jail, who is hereby commanded to
receive the body of said__________ and keep him safely until he pays the sum
above mentioned, or served________ days provided said fine due shall be reduced
proportionately with the number of days served.
Fail not but service and return make within thirty days from this date.
Dated at______ in the county of___________ this_____ day of_____ ____ , 19
____ .
Name__________ Rank ____________________ Organization_______
President of____________________ Court
National Guard of South Carolina
Section 25-1-3145. When a sentence of confinement has been imposed by a
court-martial against a member of the National Guard of South Carolina and the
sentence of the court has been passed upon by the reviewing authority, the
president, in case of a general or special court-martial, or the summary court
officer, in the case of a summary court-martial, shall issue a writ in
substantially the following form:
STATE OF SOUTH CAROLINA
COUNTY OF______________
To any sheriff in the State, Greetings:
Whereas, ______ of __________ in the county of,_____ a member of the National
Guard of South Carolina was on the ____ day of____ A. D. 19____tried and
found guilty of____________ in violation of ____________ and was by
court-martial sentenced to___________ .
Now, Therefore, by authority of the State of South Carolina, you are hereby
commanded to take the body of said______ and commit it to the keeper of the jail
in the county of______ within such jail, who is hereby commanded to receive the
body of said________________ , and keep him safely until he serves said sentence.
Fail not but service and return make within thirty days from this date.
Dated at________ in the county of_______ this day of____ , 19__ .
Name______ Rank______ Organization_________
President of___________________ Court
National Guard of South Carolina
Section 25-1-3150. All costs and expenses involved in the proceedings of
courts-martial and courts of inquiry must be paid by the Adjutant General out of
the appropriate military funds of this State.
Section 25-1-3155. The governor or adjutant general may delegate any authority
vested in him under this code and may provide for the subdelegation of the
authority, except the power given the governor by Section 25-1-2580.
Section 25-1-3160. The Code of Military Justice must be so contrued as to
effectuate its general purpose to make it uniform so far as practical with the
Uniform Code of Military Justice, Chapter 47 of Title 10, United States Code and
the Manual for Courts-Martial. The systems and procedures established in the
Uniform Code of Military Justice for the governing of military forces, so far as
applicable and not in conflict with any statute or regulation prescribed in this
code, is considered in full force and regarded as a part of this chapter."
Repeal
SECTION 91. Sections 25-1-80, 25-1-140, 25-1-600, 25-1-1410, 25-1-1440,
25-1-1450, 25-1-1460, 25-1-1470, 25-1-1480, 25-1-1910, 25-1-2140, 25-1-2150, and
25-1-2210 of the 1976 Code are repealed.
Heading deleted
SECTION 92. Amend Chapter 1 of Title 25 by deleting the heading:
"Article 21
Military Tribunals".
Time effective
SECTION 93. This act shall take effect upon approval by the Governor. |