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7 LONG TITLE
8 General Description:
9 This bill makes changes to the Utah Code of Military Justice.
10 Highlighted Provisions:
11 This bill:
12 . makes technical changes to titles used by military attorneys to conform with federal
14 . eliminates the right to trial by jury for nonjudicial actions and provides instead for a
15 de novo review on appeal; and
16 . makes technical changes.
17 Monies Appropriated in this Bill:
19 Other Special Clauses:
21 Utah Code Sections Affected:
23 39-1-41, as last amended by Laws of Utah 1988, Chapter 210
24 39-6-2, as last amended by Laws of Utah 1989, Chapter 15
25 39-6-6, as last amended by Laws of Utah 1989, Chapter 15
26 39-6-13, as last amended by Laws of Utah 1989, Chapter 15
27 39-6-20, as last amended by Laws of Utah 1989, Chapter 15
28 39-6-27, as enacted by Laws of Utah 1988, Chapter 210
29 39-6-54, as enacted by Laws of Utah 1988, Chapter 210
30 39-6-58, as last amended by Laws of Utah 1988, Second Special Session, Chapter 9
32 Be it enacted by the Legislature of the state of Utah:
33 Section 1. Section 39-1-41 is amended to read:
34 39-1-41. Discharge or dismissal.
35 A sentence of dismissal from the service or discharge imposed by a military court may
36 not be executed until reviewed by the state [
38 Section 2. Section 39-6-2 is amended to read:
39 39-6-2. Definitions.
40 As used in this chapter:
41 (1) "Accuser" means a person who:
42 (a) signs and swears to charges;
43 (b) directs that charges nominally be signed and sworn to by another; or
44 (c) any other person who has an interest other than an official interest in the
45 prosecution of the accused.
46 (2) "Commanding officer" means both a commissioned officer and a warrant officer
47 designated as a commander.
48 (3) "Commissioned officer" includes a commissioned warrant officer.
49 (4) "Convening authority" means the governor or the adjutant general.
50 (5) "Duty status other than state active duty" means any other type of duty, and
51 includes going to and returning from the duty.
52 (6) "Enlisted member" means a person in an enlisted grade.
53 (7) "Grade" means a step or degree in a graduated scale of office or military rank,
54 established and designated as a grade by law or regulation.
55 (8) "Legal officer" means any commissioned officer of the organized National Guard
56 of the state designated to perform legal duties for a command.
57 (9) "Major command" or "MACOM" means a major subdivision of the Utah National
64 court detailed under Section 39-6-20 .
66 part-time and full-time active guard and reserve (AGR), and includes the Utah unorganized
67 militia when called to active duty by the governor of the state.
72 state under an order of the governor, issued pursuant to [
73 includes going to and returning from the duty.
75 officer responsible for supervising the administration of the military justice in the National
76 Guard, and qualified and designated as judge advocate general corps officer.
78 another in rank or command.
80 Section 3. Section 39-6-6 is amended to read:
81 39-6-6. State staff judge advocate -- Appointment -- Qualifications -- Duties --
83 (1) The adjutant general shall appoint an officer of the National Guard as the state
85 a United States federal court[
86 judge advocate officer.
87 (2) The state [
88 shall, in connection with rendering legal advice to the adjutant general, prepare pretrial advice,
89 a post-trial review, and act as legal advisor to the adjutant general on all matters involving
90 military justice, the Utah Manual for Military Courts, and the Utah Code of Military Justice.
91 (3) The adjutant general may appoint assistant state [
93 the Utah State Bar, branch qualified, and designated as staff judge advocate officers.
94 (4) The [
95 military units throughout the state to supervise the administration of military justice.
96 (5) The convening authority shall [
97 matters relating to the administration of military justice and administrative actions. The
99 directly with the [
100 subordinate command, or with the [
101 (6) A person who has acted as a member, military judge, trial counsel, assistant trial
102 counsel, defense counsel, assistant defense counsel, or investigating officer, or who has been a
103 witness for either the prosecution or defense, may not [
104 assistant state judge advocate, [
105 same case.
106 Section 4. Section 39-6-13 is amended to read:
107 39-6-13. Limits on nonjudicial punishment.
108 (1) Regulations prescribed by the governor, and additional regulations prescribed by
109 the adjutant general of Utah may place limitations on authority concerning nonjudicial
110 punishment under this chapter, regarding:
111 (a) imposing punishment of any type or amount;
112 (b) the categories of commanding officers who have the authority to impose
113 punishment; [
116 (c) procedures for appeal of nonjudicial findings and punishment; and
117 (d) suspension and reimposition of nonjudicial punishment.
124 (2) Punishment may be imposed under this section on any person subject to this
126 (3) Regulations permitting nonjudicial punishment shall provide for de novo review on
127 appeal of both the findings and punishment.
128 (a) Any appeal shall be limited to the next two higher commanding officers.
129 (b) On appeal, the findings or punishment may be modified or set aside.
130 (c) In no case may the appeal increase the amount of punishment originally imposed.
131 (4) The decision of the adjutant general to impose nonjudicial punishment upon a
132 person subject to this chapter or to resolve an appeal of the punishment is final and may not be
133 subject to appeal or judicial review.
134 (5) A person subject to this chapter may request trial by a military court in lieu of
135 nonjudicial punishment at any time prior to imposition of nonjudicial punishment.
136 (a) Upon receipt of a timely request for trial in lieu of nonjudicial punishment, the
137 commanding officer having authority may:
138 (i) deny the request and impose nonjudicial punishment; or
139 (ii) grant the request.
140 (b) Denial of a request for court martial in lieu of nonjudicial punishment may not
141 create a private right of action and is not subject to judicial review.
142 Section 5. Section 39-6-20 is amended to read:
143 39-6-20. Military judge -- Qualifications -- Designation for detail.
144 (1) The authority convening a military court shall, subject to regulations made by the
145 governor, detail a military judge to preside over each open session of the court.
146 (2) A military judge shall be:
147 (a) a commissioned officer [
148 (b) a member of the Utah State Bar[
149 (c) a member of the bar of a federal court[
150 (d) certified as qualified for this duty by the state [
151 (3) (a) The military judge of a military court shall be designated by the state [
152 judge advocate or [
153 (b) Unless the military court was convened by the governor, neither the adjutant
154 general nor [
155 effectiveness, fitness, or efficiency of the detailed military judge that relates to [
156 performance of duty as a military judge.
157 (4) A person is not eligible to act as a military judge in a case if [
158 (a) is the accuser[
159 (b) is a witness in the case[
160 (c) has acted as investigating officer[
161 (d) is a counsel in the same case.
162 (5) The military judge of a court may not:
163 (a) consult with the members of the court, except in the presence of the accused, trial
164 counsel, and defense counsel; or
165 (b) vote with the members of the court.
166 Section 6. Section 39-6-27 is amended to read:
167 39-6-27. Review of charge by SJA -- Corrections to charges.
168 (1) (a) Before directing the trial of any charge by a military court, the convening
169 authority shall refer it to the [
170 (b) The convening authority may not refer a charge to a military court for trial unless
171 he or she has found that the charge alleges an offense under this chapter and is warranted by
172 sufficient evidence, as indicated in the report of the investigation.
173 (2) If the charges or specifications are not formally correct or do not conform to the
174 substance of the evidence contained in the report of the investigating officer, formal corrections
175 and changes in the charges and specifications as necessary may be made to conform to the
177 Section 7. Section 39-6-54 is amended to read:
178 39-6-54. Convening authority refers record to SJA -- Opinion.
179 The convening authority shall refer the record of each military court to the [
180 who shall submit [
181 court is an acquittal of all charges and specifications, the opinion is limited to questions of
183 Section 8. Section 39-6-58 is amended to read:
184 39-6-58. Convening authority review -- Action by governor final -- SJA review --
185 Appeal of final action.
186 (1) When the governor is the convening authority, [
187 review of a record of trial is final.
188 (2) The state [
189 final action being taken.
190 (3) The [
191 to the convening authority for its consideration prior to final action in any case.
192 (4) In a case subject to review by the [
193 submit [
194 the legal effect of the error to the convening authority prior to its affirmation and action
195 regarding the findings and sentence in the case.
196 (5) The convening authority may affirm only findings of guilty and the sentence or part
197 of the sentence [
198 (a) [
199 (b) [
201 (6) In considering the record, the convening authority may weigh the evidence, judge
202 the credibility of witnesses, and determine controverted questions of fact, recognizing that the
203 trial court saw and heard the testimony of the witnesses.
204 (7) If the convening authority sets aside the findings and sentence:
205 (a) [
206 based on a lack of sufficient evidence in the record to support the findings; or
207 (b) if [
208 be dismissed.
209 (8) (a) Final action approved by the convening authority may be appealed directly to
210 the Utah Court of Appeals.
211 (b) Notice of appeal shall be filed within 30 days after the final action has been taken
212 by the convening authority.
Legislative Review Note
as of 2-6-08 6:30 PM