2007 Oregon Code - Chapter 398 :: Chapter 398 - Military Justice
Chapter 398
Military Justice
2007 EDITION
MILITARY JUSTICE
MILITARY AFFAIRS; EMERGENCY SERVICES
GENERAL PROVISIONS
398.002 Definitions
for this chapter and ORS 396.120, 396.145, 399.205 and 399.515
398.004 Persons
subject to this chapter
398.006 Jurisdiction
to try certain personnel
398.008 Dismissal
of commissioned officer
398.010 Territorial
applicability of this chapter
398.012 Judge
advocates and legal officers
398.014 Presentment
of Class A felony charges to civilian authority
APPREHENSION AND RESTRAINT
398.052 Apprehension
defined; quelling of disorders
398.054 Apprehension
of deserters
398.056 Imposition
of restraint; arrest and confinement defined
398.058 Restraint
of priority prisoners; notice of charges; speedy disposition; conditional
release
398.060 Place
of confinement
398.062 Receiving
prisoners; report to commanding officer
398.065 Punishment
prohibited before trial
398.066 Delivery
of offenders to civil authorities; redelivery to military authority
398.068 Confinement
pending trial for failure to appear
NONJUDICIAL PUNISHMENT
398.083 Imposition
and enforcement of disciplinary punishment without court-martial
COURTS-MARTIAL JURISDICTION
398.102 Courts-martial
of organized militia not in federal service; composition
398.104 Jurisdiction
of courts-martial of each component
398.106 Jurisdiction
of general courts-martial
398.108 Jurisdiction
of special courts-martial
398.110 Jurisdiction
of summary courts-martial
398.112 Sentences
to be approved by Governor or Adjutant General
398.114 When
complete record of proceedings and testimony required
398.116 Authorized
sentence of general or special court-martial after declaration of war prior to
jurisdiction of Uniform Code of Military Justice
398.118 Commutations
and pardons granted by Governor; remittance of forfeitures and fines
398.120 Application
for commutation or pardon
APPOINTMENT AND COMPOSITION OF COURTS-MARTIAL
398.126 Convening
general courts-martial
398.128 Convening
special courts-martial
398.130 Convening
summary courts-martial
398.132 Who
may serve on courts-martial
398.135 Detail
of military judge
398.136 Detail
of trial counsel and defense counsel
398.138 Detail
or employment of reporters and interpreters
398.140 Absent
and additional members; effect of absences on trial
PRETRIAL PROCEDURE
398.162 Charges
and specifications
398.164 Compulsory
self-incrimination and immaterial and degrading evidence prohibited
398.166 Investigation
398.168 Forwarding
of charges
398.170 Advice
of State Judge Advocate; reference for trial; formal corrections
398.172 Service
of charges
TRIAL PROCEDURE
398.202 Procedural
regulations
398.204 Unlawfully
influencing action of court
398.206 Duties
of trial counsel and defense counsel
398.209 Court
sessions
398.210 Continuances
398.212 Challenges
398.214 Oaths
398.216 Statute
of limitation
398.218 Former
jeopardy
398.220 Pleas
of accused
398.222
398.224 Refusal
to appear or testify
398.226 Contempt
398.228 Depositions
398.230 Admissibility
of records of courts of inquiry
398.232 Voting
and rulings
398.234 Number
of votes required
398.236 Court
to announce action
398.238 Record
of trial
SENTENCES
398.252 Cruel
and unusual punishments prohibited
398.254 Punishments
limited
398.256 Effective
date of sentence
398.258 Execution
of confinement
REVIEW OF COURTS-MARTIAL
398.272 Approval
and execution or suspension of sentence
398.274 Initial
review and action on trial record
398.276 Reconsideration
and revision of courts ruling
398.278 Rehearings
398.280 Approval
by convening authority
398.282 Review
of records; disposition
398.284 Error
of law; lesser included offense
398.286 Review
counsel
398.288 Vacation
of suspension
398.290 Petition
for new trial
398.292 Remission
and suspension
398.294 Restoration
398.296 Finality
of proceedings, findings and sentences
PUNITIVE PROVISIONS
398.302 When
persons may be tried or punished
398.304 Principals
398.306 Accessory
after fact
398.308 Conviction
of lesser included offense
398.310 Attempts
398.312 Conspiracy
398.314 Solicitation
398.316 Fraudulent
enlistment, appointment or separation
398.318 Unlawful
enlistment, appointment or separation
398.320 Desertion
398.322 Absence
without leave
398.324 Failure
to make required move
398.326 Contempt
toward officials
398.328 Disrespect
toward superior commissioned officer
398.330 Assaulting
or willfully disobeying superior commissioned officer
398.332 Insubordinate
conduct toward warrant officer or noncommissioned officer
398.334 Failure
to obey order or regulation
398.336 Cruelty
and maltreatment
398.338 Mutiny
or sedition
398.340 Resistance,
breach of arrest and escape
398.342 Releasing
prisoner without proper authority
398.344 Unlawful
detention
398.346 Noncompliance
with procedural rules
398.348 Misbehavior
before enemy
398.350 Subordinate
compelling surrender
398.352 Improper
use of countersign
398.354 Forcing
safeguard
398.356 Captured
or abandoned property
398.358 Aiding
enemy
398.360 Misconduct
as prisoner
398.362 False
official statements
398.366 Loss,
damage, destruction or wrongful disposition of military property
398.368 Waste,
spoilage or destruction of property other than military
398.370 Improper
hazarding of vessel
398.372 Driving
while drunk
398.374 Drunk
on duty
398.375 Sentinel
or lookout drunk or sleeping on post; leaving before relief
398.378 Malingering
398.380 Riot
or breach of peace
398.384 Stealing
goods
398.386 Perjury
398.388 Frauds
against government
398.391 Controlled
substances
398.393 Dueling;
failure to report dueling
398.394 Provoking
or reproachful words or gestures
398.395 Insufficient
funds or credit
398.397 Unlawful
force or violence
398.399 Conduct
unbecoming officer
398.400 Conduct
to prejudice of good order and discipline; limits to jurisdiction of
courts-martial
MISCELLANEOUS PROVISIONS
398.402 Courts
of inquiry
398.404 Redress
of injuries to property
398.406 Execution
of process and sentence
398.408 Process
of military courts
398.410 Payment
of fines and disposition thereof
398.412 Immunity
for action of military courts
398.414 Presumption
of jurisdiction
398.416 Delegation
of authority by Governor
398.418 Payment
of expenses
398.420 Armed
Forces Court of Appeals for
GENERAL PROVISIONS
398.002
Definitions for this chapter and ORS 396.120, 396.145, 399.205 and 399.515. As used in this chapter and ORS 396.120,
396.145, 399.205 and 399.515, unless the context requires otherwise:
(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, or any other person who has an interest other than an
official interest in the prosecution of the accused.
(2) Active state duty means full-time
duty in the active military service of the state under an order of the Governor
issued under authority vested in the Governor by law, and includes travel to
and from such duty. The term active state duty also includes all Oregon
National Guard personnel serving on active duty under Title 32 U.S.C. 502 (f).
(3) Commanding officer includes only
commissioned officers in positions of command.
(4) Commissioned officer includes a
commissioned warrant officer.
(5) Component includes the Army National
Guard, the Air National Guard and the Oregon State Defense Force.
(6) Confining authority means the
Governor, a military court or a convening authority or commanding officer
designated by the Adjutant General.
(7) Convening authority means a person authorized
under this chapter to convene a court-martial.
(8) Duty status other than active state
duty means any drill periods and such other training or service, other than
active state duty, as may be required under state or federal laws, regulations
or orders, and travel to and from such duty.
(9) Enlisted member means a person in an
enlisted grade.
(10) Grade means a step or degree, in a
graduated scale of office or military rank, that is established and designated
as a grade by law or regulation.
(11) Judge advocate means the State
Judge Advocate or an Assistant State Judge Advocate.
(12) Military refers to any or all of
the armed forces.
(13) Military court means a
court-martial, a court of inquiry or a provost court.
(14) Military judge means an official of
a general or special court-martial detailed in accordance with ORS 398.135.
(15) Officer means commissioned or
warrant officer.
(16) Organized militia means the
organized militia described in ORS 396.105.
(17) Rank means the order of precedence
among members of the armed forces.
(18) Record, when used in connection
with the proceedings of a court-martial, means:
(a) An official written transcript,
written summary or other writing relating to the proceedings; or
(b) An official audiotape, videotape or
similar material from which sound or sound and visual images depicting the
proceedings may be reproduced.
(19) State Judge Advocate means the
commissioned officer responsible for supervising the administration of military
justice and general military legal matters in the organized militia.
(20) Superior commissioned officer means
a commissioned officer superior in rank or command.
(21) Uniform Code of Military Justice
means chapter 47 (commencing with section 801) of Title 10 of the United States
Code and regulations adopted thereunder, together with the Manual for
Courts-Martial, United States, 1984 (Executive Order 12473 of July 13, 1984, as
amended). [1961 c.454 §78; 1975 c.719 §1; 1985 c.682 §14; 1989 c.361 §5; 2005
c.512 §5]
398.004
Persons subject to this chapter. The following persons who are not in federal service are subject to
this chapter:
(1) Members of the organized militia.
(2) All other persons lawfully ordered to
duty in or with the organized militia, from the dates they are required by the
terms of the order or other directive to obey the same. [1961 c.454 §79]
398.006
Jurisdiction to try certain personnel. (1) Each person discharged from the organized militia who is later
charged with having fraudulently obtained the discharge of the person is,
subject to ORS 398.216, subject to trial by court-martial on that charge and is
after apprehension subject to this chapter while in the custody of the military
for that trial. Upon conviction of that charge the person is subject to trial
by court-martial for all offenses under this chapter committed before the
fraudulent discharge.
(2) No person who has deserted from the
organized militia may be relieved from amenability to the jurisdiction of this
chapter by virtue of a separation from any later period of service. [1961 c.454
§80]
398.008
Dismissal of commissioned officer. (1) If any commissioned officer dismissed by order of the Governor
makes a written application for trial by court-martial, setting forth under
oath that the officer has been wrongfully dismissed, the Governor or the
Adjutant General, as soon as practicable shall convene a general court-martial
to try that officer on the charges on which the officer was dismissed. A
court-martial so convened has jurisdiction to try the dismissed officer on
those charges, and the officer shall be considered to have waived the right to
plead any statute of limitations applicable to any offense with which the
officer is charged. The court-martial may, as part of its sentence, adjudge the
affirmance of the dismissal; but if the court-martial acquits the accused or if
the sentence adjudged, as finally approved or affirmed, does not include
dismissal, the Adjutant General shall substitute for the dismissal ordered by
the Governor a form of discharge authorized for administrative issue.
(2) If the Governor or the Adjutant
General fails to convene a general court-martial within six months from the
presentation of an application for trial under this chapter, the Adjutant
General shall substitute for the dismissal ordered by the Governor a form of
discharge authorized for administrative issue.
(3) If a discharge is substituted for a
dismissal under this chapter, the Governor alone may reappoint the officer to
such commissioned grade and with such rank as, in the opinion of the Governor,
that former officer would have attained had the officer not been dismissed. The
reappointment of such a former officer may be made only if a vacancy is
available under applicable tables of organization. All time between the
dismissal and the reappointment shall be considered as actual service for all
purposes.
(4) If an officer is discharged from the
organized militia by administrative action or by board proceedings under law,
or is dropped from the rolls by order of the Governor, the officer has no right
to trial under this section. [1961 c.454 §81; 1975 c.719 §2; 2005 c.512 §6]
398.010
Territorial applicability of this chapter. (1) This chapter applies throughout the state. It also applies to all
persons otherwise subject to this chapter while they are serving outside the
state, and while they are going to and returning from such service outside the
state, in the same manner and to the same extent as if they were serving inside
the state.
(2) Courts-martial and courts of inquiry
may be convened and held in units of the organized militia while those units
are serving outside the state with the same jurisdiction and powers as to
persons subject to this chapter as if the proceedings were held inside the
state; and offenses committed outside the state may be tried and punished
either inside or outside the state. [1961 c.454 §82]
398.012
Judge advocates and legal officers. (1) The Governor, on the recommendation of the Adjutant General, shall
appoint an officer of the organized militia as State Judge Advocate. To be
eligible for appointment, an officer must:
(a) Be a member in good standing of the
Oregon State Bar;
(b) Have been a member of the Oregon State
Bar for at least five years; and
(c) Meet the qualifications for a judge
advocate under the Uniform Code of Military Justice.
(2) The Adjutant General may appoint as
many Assistant State Judge Advocates as the Adjutant General deems necessary.
The Assistant State Judge Advocates shall be officers of the organized militia
and members of the Oregon State Bar. However, the Adjutant General may appoint
temporary Assistant State Judge Advocates for a period not to exceed 12 months.
An individual appointed as a temporary Assistant State Judge Advocate shall be
an officer of the Oregon State Defense Force and shall be legally trained but
is not required to be admitted to the practice of law by the Supreme Court of
this state. The legal services performed by temporary Assistant State Judge
Advocates shall be limited to those legal services that may be performed by
legal assistants consistent with ORS 9.160.
(3) The State Judge Advocate or assistants
shall make frequent inspections in the field for supervision of the
administration of military justice and general military legal matters.
(4) Convening authorities shall at all
times communicate directly with their staff judge advocate or legal officers in
matters relating to the administration of military justice and general military
legal matters; and the staff judge advocate or legal officer of any command is
entitled to communicate directly with the staff judge advocate or legal officer
of a superior or subordinate command, or with the State Judge Advocate.
(5) A person who has acted as member,
military judge, trial counsel, assistant trial counsel, defense counsel,
assistant defense counsel or investigating officer, or who has been a witness
for either the prosecution or defense in any case, may not later act as staff
judge advocate or legal officer to any reviewing authority upon the same case.
(6) A judicial officer, as defined by ORS
1.210, is not prohibited, by reason of holding that office, from performing all
acts necessary or incumbent to the authorized exercise of duties as a judge
advocate or as a member of the Military Council. [1961 c.454 §83; 1975 c.719 §3;
1993 c.483 §1; 2005 c.512 §7]
398.014
Presentment of Class A felony charges to civilian authority. (1) A charge against a person subject to
this chapter for an offense that is classified as a Class A felony under the
Oregon Criminal Code shall first be presented by the convening authority to a
prosecuting civilian authority with jurisdiction over the offense for possible
prosecution.
(2) If the prosecuting civilian authority
declines to prosecute or fails to respond within 90 days from presentation of
the charge, the charge may then be prosecuted as provided in this chapter. [2005
c.512 §33]
APPREHENSION
AND RESTRAINT
398.052
Apprehension defined; quelling of disorders. (1) Apprehension is the taking of a person
into custody.
(2) Any person authorized by this chapter
and ORS chapters 396 and 399, or by military department regulations issued
pursuant thereto, to apprehend persons subject to this chapter, any marshal of
a court-martial appointed pursuant to the provisions of this chapter and any
peace officer authorized to do so by law may do so upon reasonable belief that
an offense has been committed and that the person apprehended committed it.
(3) Commissioned officers, warrant
officers and noncommissioned officers have authority to quell quarrels, frays
and disorders among persons subject to this chapter and to apprehend persons
subject to this chapter who take part therein. [1961 c.454 §84]
398.054
Apprehension of deserters.
Any civil officer having authority to apprehend offenders under the laws of the
398.056
Imposition of restraint; arrest and confinement defined. (1) Arrest is the restraint of a person by
an order, not imposed as a punishment for an offense, directing the person to
remain within certain specified limits. Confinement is the physical restraint
of a person.
(2) An enlisted member may be ordered into
arrest or confinement by any commissioned officer by an oral or written order,
delivered in person or through other persons subject to this chapter or through
any person authorized by this chapter to apprehend persons. A commanding
officer may authorize warrant officers or noncommissioned officers to order
enlisted members of the command of the officer or subject to the authority of
the officer into arrest or confinement.
(3) A commissioned officer or warrant
officer may be ordered apprehended or into arrest or confinement only by a
commanding officer to whose authority the officer 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.
(4) No person may be ordered apprehended
or into arrest or confinement except for probable cause.
(5) Nothing in this section shall be
construed to limit the authority of persons authorized to apprehend offenders
to secure the custody of an alleged offender until proper authority may be
notified. [1961 c.454 §86]
398.058
Restraint of priority prisoners; notice of charges; speedy disposition;
conditional release. (1)(a)
Except as provided in paragraph (b) of this subsection, any person subject to
this chapter charged with an offense under this chapter may be ordered, as a
priority prisoner, into arrest or confinement, as circumstances may require.
(b) A person subject to this chapter
charged only with a minor offense normally tried by a summary court-martial or
subject to punishment under ORS 398.083 may not ordinarily be placed in
confinement.
(c) The offense described under ORS
398.322 is not a minor offense for the purposes of this subsection.
(2) When any person subject to this
chapter is placed in arrest or confinement prior to trial, immediate steps
shall be taken to inform the person of the specific wrong of which the person
is accused and to try the person or to dismiss the charges and release the
person.
(3) When a person subject to this chapter
is placed in confinement prior to summary court-martial or disposition under
ORS 398.083, the person shall be conditionally released pending disposition of
the charges.
(4) A person described in subsection (3)
of this section may be reconfined if the person violates the conditional
release. The person violates the conditional release if the person fails to
attend drill periods, periods of active duty training, annual training, other
periods determined by the confining authority or hearings related to the
pending charges or other conditions imposed by the confining authority.
(5) As used in this section, priority
prisoner means a person subject to this chapter who:
(a) Has been ordered into confinement by a
confining authority;
(b) Is received by a keeper, officer,
warden or other person in charge of the county jail, penitentiary, prison or
other facility in which the person has been ordered confined; and
(c) May be released only upon order of the
confining authority. [1961 c.454 §87; 1975 c.719 §4; 2005 c.512 §8]
398.060
Place of confinement. (1)
Confinement other than in an authorized military confinement facility, whether
before, during or after trial by a military court, shall be executed in county
jails, penitentiaries or prisons designated by the Governor or by such persons
as the Governor may authorize to act.
(2) If no designation is made under
subsection (1) of this section, the person shall be confined in a county jail.
(3) Confinement under this section shall
be without requirement of payment of any fee or charge for confining the
person. [1961 c.454 §88; 2005 c.512 §9]
398.062
Receiving prisoners; report to commanding officer. (1) A warden, keeper or officer of a county
jail, penitentiary or prison designated under ORS 398.060, may not refuse to
receive or keep any prisoner committed to the charge of the person, when the
committing person furnishes a statement, signed by the committing person, of
the offense charged against the prisoner.
(2) Every warden, keeper or officer of a
county jail, penitentiary or prison designated under ORS 398.060, to whose
charge a prisoner is committed shall, within 24 hours after that commitment,
report to the commanding officer of the prisoner the name of the prisoner, the
offense charged against the prisoner, and the name of the person who ordered or
authorized the commitment. [1961 c.454 §89; 2005 c.512 §36]
398.064 [1961 c.454 §90; repealed by 1985 c.682 §53]
398.065
Punishment prohibited before trial. A person, while being held for trial, may not be subjected to
punishment or penalty other than arrest or confinement upon the charges pending
against the person, nor shall the arrest or confinement imposed be any more rigorous
than the circumstances required to insure the persons presence, but the person
may be subjected to minor punishment during that period for infractions of
discipline. [1985 c.682 §2]
398.066
Delivery of offenders to civil authorities; redelivery to military authority. (1) Under such military department
regulations as may be prescribed under this chapter and ORS chapters 396 and
399, a person on active state duty subject to this chapter who is accused of an
offense against civil authority may be delivered, upon request, to the civil
authority for trial.
(2) 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 the offense shall, upon the request of competent
military authority, be returned to military custody for the completion of the
sentence of the offender. [1961 c.454 §91]
398.068
Confinement pending trial for failure to appear. When an accused person shall have been
arrested for failure to appear before a court-martial for trial, the military
judge, the president of a court-martial or a summary court officer to whom the
charges have been referred for trial may issue a commitment for confinement of
such person pending trial, subject to the prior approval of the State Judge
Advocate. No person shall be kept in confinement pending trial longer than seven
days. [1985 c.682 §11]
398.082 [1961 c.454 §92; repealed by 1975 c.719 §5
(398.083 enacted in lieu of 398.082)]
NONJUDICIAL
PUNISHMENT
398.083
Imposition and enforcement of disciplinary punishment without court-martial. (1) Under such regulations as may be
prescribed by the Governor or the Adjutant General, limitations may be placed
on the powers granted by this section with respect to the kind and amount of
punishment authorized, the categories of commanding officers and warrant
officers exercising command 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 such a
demand. However, punishment may not be imposed upon any member of the organized
militia under this section if the member has, before the imposition of such
punishment demanded trial by court-martial in lieu of such punishment.
Regulations may be prescribed by the Governor or the Adjutant General with
respect to the suspension of punishments authorized under this section. If
authorized by regulations prescribed by the Governor or the Adjutant General,
the Governor, the Adjutant General or an officer of a general rank in command
may delegate powers under this section to a principal assistant who is a member
of the organized militia.
(2) Subject to subsection (1) of this
section, any commanding officer 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 the command:
(A) Restriction to certain specified
limits, with or without suspension from duty, for not more than 30 consecutive
duty or drill days, the punishment to be completed within 90 days of the date
punishment was imposed.
(B) If imposed by the Governor, the
Adjutant General or an officer of a general rank in command:
(i) Arrest in quarters for not more than
30 consecutive duty or drill days, the punishment to be completed within 90
days of the date punishment was imposed.
(ii) Forfeiture of not more than one-half
of one months active duty base pay for two months.
(iii) Restriction to certain specified
limits, with or without suspension from duty, for not more than 60 consecutive
duty or drill days, the punishment to be completed within 90 days of the date
punishment was imposed.
(iv) Detention of not more than one-half
of one months active duty base pay for three months.
(b) Upon other military personnel of the
command:
(A) Forfeiture of not more than seven days
active duty base pay;
(B) 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;
(C) Extra duties, including fatigue or
other duties, not to exceed two hours per day, including holidays, for not more
than 14 consecutive duty or drill days, the punishment to be completed within 90
days of the date punishment was imposed;
(D) Restriction to certain specified
limits, with or without suspension from duty, for not more than 14 consecutive
duty or drill days, the punishment to be completed within 90 days of the date
punishment was imposed;
(E) Correctional custody for not more than
seven consecutive duty or drill days, the punishment to be completed within 90
days of the date punishment was imposed;
(F) Detention of not more than 14 days
active duty base pay; or
(G) If imposed by an officer of the grade
of major or above:
(i) Forfeiture of not more than one-half
of one months active duty base pay for two months;
(ii) 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;
(iii) Extra duties, including fatigue or
other duties, not to exceed two hours per day, including holidays, for not more
than 45 consecutive duty or drill days, the punishment to be completed within
90 days of the date punishment was imposed;
(iv) Restriction to certain specified
limits, with or without suspension from duty, for not more than 60 consecutive
duty or drill days, the punishment to be completed within 90 days of the date
punishment was imposed;
(v) Correctional custody for not more than
seven consecutive duty or drill days, the punishment to be completed within 90
days of the date punishment was imposed; or
(vi) Detention of not more than one-half
of one months active duty base pay for three months.
(3) No two or more of the punishments of
arrest in quarters, extra duties, and restriction may be combined to run
consecutively in excess of the maximum amount that may be imposed for each.
When any of those punishments are combined to run consecutively, there must be
an apportionment.
(4) An officer in charge may impose upon
enlisted members assigned to the unit of which the officer is in charge such of
the punishments authorized under subsection (2)(b)(A), (B), (C), (D), (E) and
(F) of this section as the Governor may specifically prescribe by regulation.
(5) The officer who imposes the punishments
authorized under subsection (2) of this section, or a successor 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, such officer 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. The officer may also mitigate reduction in grade to
forfeiture of active duty base pay. When mitigating an arrest in quarters to
restriction or extra duties to restriction, the mitigated punishment shall not
be for a greater period than the punishment mitigated. When mitigating reduction
in grade to forfeiture of active duty base pay, the amount of the forfeiture
shall not be greater than the amount that could have been imposed initially
under this section by the officer who imposed the punishment mitigated.
(6) A person punished under this section
who considers the punishment unjust or disproportionate to the offense may,
through the proper channel, appeal to the next superior authority. The appeal
shall be promptly forwarded and decided, but the person punished may in the
meantime be required to undergo the punishment adjudged. The superior authority
may exercise the same powers with respect to the punishment imposed as may be
exercised under subsection (5) of this section by the officer who imposed the
punishment. Before acting on an appeal from any of the following punishments,
the authority who is to act on the appeal shall refer the case to a staff judge
advocate or legal officer for consideration and advice:
(a) Arrest in quarters for more than seven
days;
(b) Correctional custody for more than
seven consecutive duty or drill days;
(c) Forfeiture of more than seven days
active duty base pay;
(d) Reduction of one or more pay grades
from the fourth or a higher pay grade;
(e) Extra duties for more than 14
consecutive drill or duty days;
(f) Restriction for more than 14
consecutive drill or duty days; or
(g) Detention of more than 14 days active
duty base pay.
(7) Except as provided in subsection (6)
of this section, before acting on an appeal from any punishment imposed under
subsection (2) of this section, the authority who is to act on the appeal may
refer the case to a staff judge advocate or legal officer for consideration and
advice.
(8) The imposition and enforcement of
disciplinary punishment under this section for any act or omission is not a bar
to trial by court-martial or other legal proceeding 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.
(9) 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.
(10) The Governor or 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. [1975 c.719 §6 (enacted in lieu of 398.082);
1985 c.682 §15; 2005 c.512 §10]
COURTS-MARTIAL
JURISDICTION
398.102
Courts-martial of organized militia not in federal service; composition. (1) In the organized militia not in federal
service, there are general, special and summary courts-martial constituted like
similar courts of the army and air force. They have the jurisdiction and
powers, except as to punishments, and shall follow the forms and procedures
provided for those courts as far as applicable, except as otherwise provided in
this chapter.
(2) The three kinds of courts-martial
shall be constituted as follows:
(a) General courts-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 orally on the record or
in writing a court composed only of a military judge and the military judge
approves.
(b) Special courts-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 prescribed in
paragraph (a)(B) of this subsection so requests.
(c) Summary courts-martial, consisting of
one commissioned officer. [1961 c.454 §93; 1975 c.719 §7; 1985 c.682 §16]
398.104
Jurisdiction of courts-martial of each component. Each component of the organized militia has
court-martial jurisdiction over all persons subject to this chapter. The
exercise of jurisdiction by one component over personnel of another component
shall be in accordance with military department regulations prescribed by the
Governor under ORS 396.125 or by the Adjutant General under ORS 396.160. [1961
c.454 §94; 1975 c.719 §8; 2005 c.512 §11]
398.106
Jurisdiction of general courts-martial. Subject to ORS 398.104, general courts-martial have jurisdiction to
try persons subject to this chapter for any offense made punishable by this
chapter and may, under such limitations as the Governor or the Adjutant General
may prescribe, impose any of the following punishments:
(1) A fine of not more than $500 for each
offense or forfeiture of up to two-thirds of one months active duty base pay
and allowances for up to three months, whichever is greater;
(2) Forfeiture of pay and allowances
during any period of confinement;
(3) Dishonorable discharge, bad-conduct
discharge or dismissal;
(4) Reprimand;
(5) Reduction of an enlisted member to the
lowest or any intermediate enlisted grade;
(6) Confinement for not more than 365 days
for each offense; or
(7) Any combination of these punishments. [1961
c.454 §95; 1975 c.719 §9; 1985 c.682 §17; 1999 c.157 §1; 2005 c.512 §12]
398.108
Jurisdiction of special courts-martial. (1) Subject to ORS 398.104, special courts-martial have jurisdiction
to try persons other than officers for any offense made punishable by this
chapter.
(2) A special court-martial may, under
such limitations as the Governor or the Adjutant General may prescribe, impose
any of the following punishments:
(a) A fine of not more than $250 for each
offense or forfeiture of up to one-half of one months active duty base pay and
allowances for up to three months, whichever is greater;
(b) Forfeiture of pay and allowances
during any period of confinement;
(c) Bad-conduct discharge;
(d) Reprimand;
(e) Reduction of an enlisted member to the
lowest or any intermediate enlisted grade;
(f) Confinement for not more than 365 days
for each offense; or
(g) Any combination of these punishments. [1961
c.454 §96; 1975 c.719 §10; 1985 c.682 §18; 1999 c.157 §2; 2005 c.512 §13]
398.110
Jurisdiction of summary courts-martial. (1) Subject to ORS 398.104, summary courts-martial have jurisdiction
to try persons other than officers for any offense made punishable by this
chapter.
(2) A person with respect to whom summary
courts-martial have jurisdiction may not be brought to trial before a summary
court-martial if the person 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.
(3) A summary court-martial may impose the
following punishments:
(a) For an enlisted member in a pay grade
of E-4 or lower, reduction to the lowest or any intermediate pay grade and
rank;
(b) For a noncommissioned officer, reduction
to the next lower pay grade and rank;
(c) Forfeiture of pay and allowances
during any period of confinement;
(d) Forfeiture of up to two-thirds of one
months active duty base pay;
(e) A fine not exceeding $25 for each
offense;
(f) Confinement not exceeding 30 days; or
(g) Any combination of these punishments. [1961
c.454 §97; 1975 c.719 §11; 1985 c.682 §19; 1999 c.157 §3; 2005 c.512 §14]
398.112
Sentences to be approved by Governor or Adjutant General. In the organized militia not in federal service:
(1) A sentence of dismissal or
dishonorable discharge may not be executed until the sentence is approved by
the Governor; and
(2) A sentence of bad-conduct discharge
may not be executed until the sentence is approved by the Adjutant General. [1961
c.454 §98; 1999 c.157 §4; 2005 c.512 §15]
398.114
When complete record of proceedings and testimony required. A dishonorable discharge or dismissal shall
not be adjudged by any court-martial unless a complete record of the
proceedings and testimony before the court has been made. [1961 c.454 §99; 1985
c.682 §20]
398.116
Authorized sentence of general or special court-martial after declaration of
war prior to jurisdiction of Uniform Code of Military Justice. A general or special court-martial convened
for the trial of a person charged with committing an offense after the
declaration of a war or national emergency and before the time when the person
is brought under the jurisdiction of the Uniform Code of Military Justice, may,
upon conviction, adjudge such punishment as may be appropriate, except that it
may not exceed that authorized for a similar offense by the Uniform Code of
Military Justice. [1961 c.454 §100; 2005 c.512 §37]
398.118
Commutations and pardons granted by Governor; remittance of forfeitures and
fines. Upon the conditions
and with the restrictions and limitations as the Governor thinks proper, the
Governor may grant commutations and pardons for all punishments imposed under
this chapter by a general court-martial or a special court-martial and may
remit all forfeitures and fines imposed under ORS 398.106 or 398.108. [2005
c.512 §17]
398.120
Application for commutation or pardon. (1) When a person subject to this chapter makes an application for
commutation or pardon to the Governor, a copy of the application, signed by the
applicant and stating fully the grounds of the application, shall be served by
the applicant upon:
(a) The convening authority; and
(b) If the applicant is in confinement,
the person in charge of the place of confinement.
(2) The applicant shall present to the
Governor proof by affidavit of the service.
(3) Upon receiving a copy of the
application for commutation or pardon, the convening authority shall provide to
the Governor, as soon as practicable, the information and records relating to
the case as the Governor may request and any other information and records
relating to the case that the convening authority considers relevant to the
issue of commutation or pardon.
(4) Following receipt by the Governor of
an application for commutation or pardon, the Governor may not grant the
application for at least 30 days. Upon the expiration of 180 days following
receipt of an application, if the Governor has not granted the commutation or
pardon applied for, the application shall lapse. Any further proceedings for
commutation or pardon in the case shall be pursuant only to further application
and service. [2005 c.512 §18]
APPOINTMENT
AND COMPOSITION OF COURTS-MARTIAL
398.126
Convening general courts-martial. In the organized militia not in federal service, general
courts-martial may be convened by the Governor or by the Adjutant General. [1961
c.454 §101; 2005 c.512 §19]
398.128
Convening special courts-martial. In the organized militia not in federal service, the commanding
officer of a garrison, fort, post, camp, air base, auxiliary air base or other
place where troops are on duty, or of a brigade, regiment, wing, group,
detached battalion, separate squadron or other detached command, may convene
special courts-martial. Special courts-martial may also be convened by superior
authority. When any such officer is an accuser, the court shall be convened by
superior competent authority. [1961 c.454 §102]
398.130
Convening summary courts-martial. (1) In the organized militia not in federal service, the commanding
officer of a garrison, fort, post, camp, air base, auxiliary air base or other
place where troops are on duty, or of a brigade, regiment, wing, group,
detached battalion, separate squadron or other detached command, may convene a
summary court-martial.
(2) When only one commissioned officer is
present with a command or detachment that officer shall be the summary
court-martial of that command or detachment and shall hear and determine all
summary court-martial cases. Summary courts-martial may, however, be convened
in any case by superior competent authority when considered desirable by such
authority. [1961 c.454 §103; 1985 c.682 §21]
398.132
Who may serve on courts-martial. (1) Any commissioned officer of the organized militia is eligible to
serve on all courts-martial for the trial of any person who may lawfully be
brought before such courts for trial.
(2) Any warrant officer of the organized
militia 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)(a) Any enlisted member of the
organized militia 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 who may lawfully be brought before such courts for trial, but
shall serve as a member of a court only if, before the conclusion of a session
called by the military judge under ORS 398.209, prior to trial or, in the
absence of such a session, at least 30 days before the court is assembled for
the trial of the accused, the accused personally or through counsel 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 enlisted
members cannot be obtained on account of physical conditions or military
exigencies. If such members cannot be obtained, the court may be convened 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.
(b) As used in this subsection, unit
means any regularly organized body of the organized militia not larger than a
company, a squadron or a corresponding body.
(4)(a) When it can be avoided, no person
subject to this chapter shall be tried by a court-martial any member of which
is junior to the person in rank or grade.
(b) When convening a court-martial, the
convening authority shall detail as members thereof such members of the
organized militia as, in the opinion of the convening authority, are best
qualified for the duty by reason of age, education, training, experience,
length of service, and judicial temperament. No member of the organized militia
is eligible to serve as a member of a general or special court-martial when the
member is the accuser or a witness for the prosecution or has acted as
investigating officer or as counsel in the same case.
(5) Before a court-martial is assembled
for the trial of a case, the convening authority may excuse a member of the
court from participating in the case. The convening authority may delegate any
authority under this subsection to the State Judge Advocate or designee. [1961
c.454 §104; 1975 c.719 §12; 1985 c.682 §22; 2003 c.14 §171; 2005 c.512 §20]
398.134 [1961 c.454 §105; repealed by 1975 c.719 §13
(398.135 enacted in lieu of 398.134)]
398.135
Detail of military judge.
(1) The authority convening a general court-martial or the State Judge Advocate
shall detail a military judge to the general court-martial. Subject to regulations
issued by the Governor or the Adjutant General, the authority convening a
special court-martial or the State Judge Advocate may detail a military judge
to the special court-martial. A military judge shall preside over each open
session of the court-martial to which the judge has been detailed.
(2) A military judge shall be a
commissioned officer of the organized militia or of any of the Armed Forces of
the United States, be a member of the bar of the highest court of a state or a
member of the bar of a federal court and be certified to be qualified for such
duty by the State Judge Advocate.
(3) The military judge of a general or
special court-martial shall be designated by the State Judge Advocate, or
designee, for detail by the convening authority, and, unless the court-martial
was convened by the Governor or the Adjutant General, neither the convening
authority nor any member of the staff of the convening authority shall prepare
or review any report concerning the effectiveness, fitness, or efficiency of
the military judge so detailed, which relates to performance of duty as a
military judge.
(4) A person is not eligible to act as a
military judge in a case if the person 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 except in the presence of the
accused, trial counsel, and defense counsel, nor may the military judge vote
with members of the court. [1975 c.719 §14 (enacted in lieu of 398.134); 1985
c.682 §23; 1999 c.94 §1; 2005 c.512 §21]
398.136
Detail of trial counsel and defense counsel. (1) For each general and special court-martial the staff judge
advocate for the unit, command or organization shall detail trial counsel and
such assistants as the staff judge advocate considers appropriate. The State
Judge Advocate shall detail defense counsel. A person who has acted as
investigating officer, military judge or court member in any case may not 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. A person who has acted for the prosecution may not 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 must be:
(a) A judge advocate qualified under the
Uniform Code of Military Justice; or
(b) A person who is:
(A) A member of the Oregon State Bar, or a
member of the bar of a federal court or an attorney allowed under ORS 9.241 to
practice before a court of this state; and
(B) Certified as competent to perform such
duties by the State Judge Advocate.
(3) In the case of a special
court-martial:
(a) If the trial counsel is qualified to
act as counsel before a general court-martial, the defense counsel detailed by
the State Judge Advocate must be a person similarly qualified; and
(b) If the trial counsel is a member of
the Oregon State Bar, the defense counsel detailed by the State Judge Advocate
must have the same qualifications. [1961 c.454 §106; 1975 c.719 §15; 1985 c.682
§24; 1999 c.94 §2; 2005 c.512 §22]
398.138
Detail or employment of reporters and interpreters. Under such regulations as the Governor may
prescribe:
(1) Qualified court reporters shall be
detailed or employed for each general or special court-martial or court of
inquiry to record the proceedings of and testimony taken before that court.
(2) Interpreters may be detailed or
employed for each general or special court-martial or court of inquiry to
interpret for the court. [1961 c.454 §107; 1985 c.682 §25; 1999 c.94 §3]
398.140
Absent and additional members; effect of absences on trial. (1) No member of a general or special
court-martial shall be absent or excused after the court has been assembled for
the trial of the accused except for physical disability or as a 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. When the new members have been sworn, the trial may proceed after
the recorded testimony of each witness previously examined 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 number to provide not less than
three members. When the new members have been sworn, the trial shall proceed as
if no evidence has previously been introduced, unless a verbatim record of the
testimony of previously examined witnesses 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
ORS 398.102 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 thereof is read in court in the presence of the new
military judge, the accused and counsel for both sides. [1961 c.454 §108; 1975
c.719 §16]
PRETRIAL
PROCEDURE
398.162
Charges and specifications.
(1) Charges and specifications shall be signed by a person subject to this
chapter under oath before a person authorized by ORS 396.120 to administer
oaths and shall state:
(a) That the signer has personal knowledge
of, or has investigated, the matters set forth therein; and
(b) That they are true in fact to the best
of the signers knowledge and belief.
(2) Upon the preferring of charges, the
proper authority shall take immediate steps to determine what disposition
should be made thereof in the interest of justice and discipline, and the
person accused shall be informed of the charges as soon as practicable. [1961
c.454 §109; 1985 c.682 §26]
398.164
Compulsory self-incrimination and immaterial and degrading evidence prohibited. (1) No person subject to this chapter may
compel any person to incriminate self or to answer any question the answer to
which may tend to incriminate the person.
(2) No person subject to this chapter may
interrogate, or request any statement from, an accused or a person suspected of
an offense without first informing the person of the nature of the accusation
and advising the person that the person does not have to make any statement
regarding the offense of which the person is accused or suspected and that any
statement made by the person may be used as evidence against the person in a
trial by court-martial.
(3) No person subject to this chapter 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 the person.
(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 the person
in a trial by court-martial. [1961 c.454 §110]
398.166
Investigation. (1) 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 therein has
been made. This 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.
(2) The accused shall be advised of the
charges and of the right to be represented at that investigation by counsel.
Upon request the accused shall be represented by civilian counsel if provided
by the accused, or military counsel selected by the accused if such counsel is
reasonably available, or by counsel detailed by the officer exercising general
court-martial jurisdiction over the command. At that investigation full
opportunity shall be given to the accused to cross-examine witnesses if they
are available and to present anything in the accuseds 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 shall be accompanied by a statement of the substance of the
testimony taken on both sides and a copy thereof shall be given to the accused.
(3) If an investigation of the subject
matter of an offense has been conducted before the accused is charged with
offense, and if the accused was present at the investigation and afforded the
opportunities for representation, cross-examination, and presentation
prescribed in subsection (2) of this section, no further investigation of that
charge is necessary under this section unless it is demanded by the accused
after being 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 behalf of the accused.
(4) The requirements of this section are binding
on all persons administering this chapter but failure to follow them does not
divest a military court of jurisdiction. [1961 c.454 §111; 1985 c.682 §27]
398.168
Forwarding of charges. 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, the officer shall report in writing
to that person the reasons for delay. [1961 c.454 §112; 1975 c.719 §17]
398.170
Advice of State Judge Advocate; reference for trial; formal corrections. (1) 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 specification under a charge to a general court-martial for trial
unless the convening authority has been advised in writing by the State Judge
Advocate that:
(a) The specification alleges an offense
under this chapter;
(b) The specification is warranted by the
evidence indicated in the report of investigation, if any, under ORS 398.166;
and
(c) A court-martial has jurisdiction over
the accused and the offense.
(2) The advice of the State Judge Advocate
under subsection (1) of this section with respect to a specification under a
charge shall include a written and signed statement by the State Judge
Advocate:
(a) Expressing conclusions with respect to
each matter set forth in subsection (1) of this section; and
(b) Recommending action that the convening
authority take regarding the specification.
(3) If the specification is referred for
trial, the recommendation of the State Judge Advocate shall accompany the
specification.
(4) 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 as are needed to make them
conform to the evidence, may be made. [1961 c.454 §113; 1985 c.682 §28]
398.172
Service of charges. 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 the objection of the person, be brought to trial or
be required to participate by self or counsel in a session called by the military
judge under ORS 398.209 in a general court-martial within a period of five days
after the service of the charges upon the person, or before a special
court-martial within a period of three days after the service of the charges
upon the person. [1961 c.454 §114; 1975 c.719 §18]
TRIAL
PROCEDURE
398.202
Procedural regulations. The
procedure, including modes of proof, in cases before military courts and other
military tribunals may be prescribed by the Governor by military department
regulations, which shall, so far as the Governor considers practicable, apply
the principles of law and the rules of evidence generally recognized in the
trial of criminal cases in the courts of the state, but which may not be
contrary to or inconsistent with this chapter. [1961 c.454 §115]
398.204
Unlawfully influencing action of court. (1) No authority convening a general, special or summary court-martial
nor any other commanding officer, or officer serving on the staff thereof, may
censure, reprimand or admonish the court or any member, military judge or
counsel thereof, with respect to the findings or sentence adjudged by the
court, or with respect to any other exercise of its or the members functions
in the conduct of the proceeding. No person subject to this chapter may attempt
to coerce or, by any 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 judicial acts of the authority.
(2) The provisions of subsection (1) of
this section do not apply 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; and
(b) To statements and instructions given
in open court by the military judge, president of a special court-martial, or
counsel.
(3) 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 organized
militia is qualified to be advanced in grade, or in determining the assignment
or transfer of a member of the organized militia or in determining whether a
member should be retained on active duty, no person subject to this chapter
may, in preparing any such report:
(a) Consider or evaluate the performance
of duty of any such member as a member of a court-martial; or
(b) Give a less favorable rating or
evaluation of any member of the organized militia because of the zeal with
which such member, as counsel, represented any accused before a court-martial. [1961
c.454 §116; 1975 c.719 §19]
398.206
Duties of trial counsel and defense counsel. (1) The trial counsel of a general or special court-martial shall
prosecute in the name of the state and shall, under the direction of the court,
prepare the record of the proceedings.
(2) The accused has the right to be
represented in the accuseds defense before a general or special court-martial
by civilian counsel if provided by the accused, or by military counsel of the
accuseds own selection if reasonably available, or by the defense counsel
detailed under ORS 398.136. Should the accused have counsel of the accuseds
own selection, the defense counsel and assistant defense counsel, if any, who
were detailed, shall, if the accused so desires, act as associate counsel;
otherwise they shall be excused by the military judge or by the president of a
court-martial without a military judge.
(3) 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 such matters as defense counsel feels should
be considered in behalf of the accused on review, including any objection to
the contents of the record which defense counsel considers appropriate.
(4) An assistant trial counsel of a
general court-martial may, under the direction of the trial counsel or when
qualified to be a trial counsel as required by ORS 398.136, 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.
(5) An assistant defense counsel of a
general or special court-martial may, under the direction of the defense
counsel or when qualified to be the defense counsel as required by ORS 398.136,
perform any duty imposed by law, regulation or the custom of the service upon
counsel for the accused. [1961 c.454 §117; 1975 c.719 §20; 1985 c.682 §29]
398.208 [1961 c.454 §118; repealed by 1975 c.719 §21
(398.209 enacted in lieu of 398.208)]
398.209
Court sessions. (1) 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 ORS 398.172, call the court into session without the presence of the
members for the purpose of:
(a) 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;
(b) Hearing and ruling upon any matter
which may be ruled upon by the military judge under this chapter, whether or
not the matter is appropriate for later consideration or decision by the
members of the court;
(c) If permitted by regulations issued by
the Governor or the Adjutant General, holding the arraignment and receiving the
pleas of the accused; and
(d) Performing any other procedural
function which may be performed by the military judge under this chapter or
under regulations prescribed pursuant to ORS 398.202 and which does not require
the presence of the members of the court.
(2) These proceedings shall be conducted
in the presence of the accused, the defense counsel, and the trial counsel and
shall be made a part of the record.
(3) 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, shall be made a part of the record and shall 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. [1975
c.719 §22 (enacted in lieu of 398.208); 2005 c.512 §38]
398.210
Continuances. 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. [1961 c.454 §119; 1975 c.719 §23]
398.212
Challenges. (1) 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.
(2) Each accused and the trial counsel is
entitled to one peremptory challenge, but the military judge may not be
challenged except for cause. [1961 c.454 §120; 1975 c.719 §24]
398.214
Oaths. (1) The military
judge, interpreters, and in general and special courts-martial, members, trial
counsel, assistant trial counsel, defense counsel, assistant defense counsel
and reporters shall take an oath or affirmation in the presence of the accused
to perform their duties faithfully.
(2) Each witness before a military court
shall be examined on oath or affirmation. [1961 c.454 §121; 1975 c.719 §25]
398.216
Statute of limitation. (1) A
person charged with desertion or absence without leave in time of war, or with
aiding the enemy, may be tried and punished at any time without limitation.
(2) Except as otherwise provided in this
section, a person charged with desertion in time of peace or the offense
punishable under ORS 398.386 is not liable to be tried by 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.
(3) 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 ORS 398.083 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 ORS 398.083.
(4) Periods in which the accused was
absent from territory in which the state has the authority to apprehend the
accused, or in the custody of civil authorities, or in the hands of the enemy,
shall be excluded in computing the period of limitation prescribed in this
section. [1961 c.454 §122; 1985 c.682 §30]
398.218
Former jeopardy. (1) No
person may, without the persons consent, be tried a second time for the same
offense.
(2) 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.
(3) 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.
(4) Administrative actions or proceedings
do not bar proceedings under this chapter for an offense. A proceeding under
this chapter for an offense does not bar an administrative action or proceeding
unless the proceeding for an offense results in a finding of not guilty. [1961
c.454 §123; 1985 c.682 §31; 1999 c.157 §5]
398.220
Pleas of accused. (1) If an
accused arraigned before a court-martial makes an irregular pleading, or after
a plea of guilty sets up matter inconsistent with the plea, or if it appears
that the accused has entered the plea of guilty improvidently or through lack
of understanding of its meaning and effect, or if the accused fails or refuses
to plead, a plea of not guilty shall be entered in the record, and the court
shall proceed as though the accused had pleaded not guilty.
(2) 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 unless the
plea of guilty is withdrawn prior to announcement of the sentence, in which event
the proceedings shall continue as though the accused had pleaded not guilty. [1961
c.454 §124; 1985 c.682 §32]
398.222
(2) The military judge, the president of a
court-martial or a summary court officer may:
(a) Issue a warrant for the arrest of any
accused person who, having been served with a warrant and a copy of the
charges, disobeys a written order by the convening authority to appear before
the court;
(b) Issue subpoenas duces tecum and other
subpoenas;
(c) Enforce by attachment the attendance
of witnesses and the production of books and papers; and
(d) Sentence for refusal to be sworn or to
answer, as provided in actions before civil courts of the state.
(3) Process issued in court-martial cases
to compel witnesses to appear and testify and to compel the production of other
evidence shall run to any part of the state. [1961 c.454 §125; 1975 c.719 §26]
398.224
Refusal to appear or testify.
(1) Any person not subject to this chapter is guilty of an offense against the
state when the person:
(a) Has been duly subpoenaed to appear as
a witness before a court-martial, court of inquiry or any other military court
or board, or before any military or civil officer designated to take a
deposition to be read in evidence before such a court, commission or board;
(b) Has been duly paid or tendered the
fees and mileage of a witness at the rates allowed to witnesses attending the
circuit court of the state in ORS 44.415 (2); and
(c) Willfully 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.
(2) Any person who commits an offense
described in subsection (1) of this section shall be tried before the circuit
court or judge thereof of the county where the offense occurred, and exclusive
jurisdiction is conferred upon those courts for such purpose. Upon conviction,
such a person shall be punished by a fine of not more than $2,500, or
imprisonment for not more than six months, or both.
(3) The district attorney of the county in
which the offense occurred, upon certification of the facts by the military
court, court of inquiry or board, shall prosecute any person who commits the
offense described in subsection (1) of this section. The fine shall be
deposited in the General Fund of the State Treasury, to be available for
general governmental expenses. [1961 c.454 §126; 1985 c.682 §33; 1989 c.980 §13;
2005 c.512 §23]
398.226
Contempt. (1) A military
court may punish for contempt any person who uses any menacing word, sign or
gesture in its presence, or who disturbs its proceedings by any riot or
disorder. The punishment may not exceed confinement for 30 days or a fine of
$100, or both.
(2) A military court shall have the
contempt power possessed by a civilian court as provided under ORS 33.015 to
33.155.
(3) A person found in contempt under this
section and ordered confined may be confined in a county jail upon written
order of the military judge.
(4) A person ordered confined under this
section may be delivered to the civilian authority by a military or civilian
law enforcement authority.
(5) The county jail may not charge the
Oregon Military Department or the state for the costs of a persons confinement
under this section. [1961 c.454 §127; 2005 c.512 §24]
398.228
Depositions. (1) At any time
after charges have been signed, as provided in ORS 398.162, 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 good cause. If a deposition is to be taken before charges are
referred for trial, such authority may designate commissioned officers to
represent the prosecution and the defense and may authorize those officers to
take the deposition of any witness.
(2) 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.
(3) Depositions may be taken before and
authenticated by any military or civil officer authorized by the laws of the
state or by the laws of the place where the deposition is taken to administer
oaths.
(4) 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 or, in the case of
audiotape, videotape or similar material, may be played as evidence before any
military court or commission, in any proceeding before any court-martial or in
any proceeding before a court of inquiry, if it appears:
(a) That the witness resides or is beyond
the state in which the court-martial or court of inquiry is ordered to sit, or
beyond the distance of 100 miles from the place of hearing;
(b) That 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 and testify in person at the place of trial or hearing; or
(c) That the present whereabouts of the
witness is unknown. [1961 c.454 §128; 1985 c.682 §34]
398.230
Admissibility of records of courts of inquiry. (1) 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 cannot 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 accused consents to the introduction of such evidence.
(2) Such testimony may be read in evidence
only by the defense in cases extending to the dismissal of a commissioned
officer.
(3) Such testimony may also be read in
evidence before a court of inquiry or a military board. [1961 c.454 §129]
398.232
Voting and rulings. (1)
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, on the findings and on the sentence shall be by secret
written ballot. The junior member of the court shall in each case count the
votes. The count shall be checked by the president, who shall forthwith
announce the result of the ballot to the members of the court.
(2) 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 such 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 a ruling at any time during the trial. Unless the
ruling is final, if any member objects thereto, the court shall be cleared and
closed and the question decided by a voice vote as provided in ORS 398.234
beginning with the junior in rank.
(3) 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:
(a) That the accused must be presumed to
be innocent until guilt is established by legal and competent evidence beyond
reasonable doubt;
(b) 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 the accused must be acquitted;
(c) That if there is a reasonable doubt as
to the degree of guilt, the findings must be in a lower degree as to which
there is no reasonable doubt; and
(d) That the burden of proof to establish
the guilt of the accused beyond reasonable doubt is upon the state.
(4) Subsections (1), (2) and (3) of this
section do 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 will be sufficient if the
findings of fact appear therein. [1961 c.454 §130; 1975 c.719 §27; 1985 c.682 §35]
398.234
Number of votes required.
(1) No person may be convicted of an offense, except by the concurrence of
two-thirds of the members present at the time the vote is taken.
(2) All sentences shall be determined by
the concurrence of two-thirds of the members present at the time that the vote
is taken.
(3) All other questions to be decided by
the members of a general or special court-martial shall be determined by a
majority vote. However, a determination to reconsider a finding of guilty or to
reconsider a sentence, with a view toward decreasing it, may be made by any
lesser vote which indicates that the reconsideration is not opposed by the
number of votes required for that finding or sentence. 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 accuseds sanity
is a determination against the accused. A tie vote on any other question is a
determination in favor of the accused. [1961 c.454 §131; 1985 c.682 §36]
398.236
Court to announce action. A
court-martial shall announce its findings and sentence to the parties as soon
as determined. [1961 c.454 §132]
398.238
Record of trial. (1) Each
general court-martial shall keep a separate record of the proceedings of the
trial of each case brought before it and the record shall be authenticated by
the signature of the military judge. If the record cannot be authenticated by
the military judge, by reason of death, disability or absence, it shall 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 death, disability
or absence.
(2) Each special and summary court-martial
shall keep a separate record of the proceedings in each case, and the record
shall be authenticated in the manner required by such regulations as the
Governor may prescribe.
(3) A complete record of the proceedings
and testimony shall be prepared:
(a) In each general court-martial case in
which the sentence adjudged includes a dismissal or a dishonorable discharge;
and
(b) In each special court-martial case in
which the sentence adjudged includes a dishonorable discharge.
(4) In all other court-martial cases the
record shall contain such matters as may be prescribed by regulations of the
Governor.
(5) A copy of the record of the
proceedings of each general and special court-martial shall be given to the
accused as soon as it is authenticated. [1961 c.454 §133; 1975 c.719 §28; 1985
c.682 §37]
SENTENCES
398.252
Cruel and unusual punishments prohibited. Punishment by flogging, or by branding, marking or tattooing on the
body, or any other cruel or unusual punishment, may not be adjudged by any
court-martial or inflicted upon any person subject to this chapter. The use of
irons, single or double, except for the purpose of safe custody, is prohibited.
[1961 c.454 §134]
398.254
Punishments limited. (1) The
punishments which a court-martial may direct for an offense may not exceed
limits prescribed by this chapter.
(2) Unless otherwise provided in
regulation to be prescribed by the Governor or Adjutant General, a
court-martial sentence of an enlisted member in a pay grade above E-1 reduces
that member to pay grade E-1, effective on the date on which the sentence is
approved by the convening authority, when the sentence includes a dishonorable
discharge or dismissal.
(3) If the sentence of a member who is
reduced in pay grade under subsection (2) of this section is set aside,
disapproved or as finally approved does not include any punishment described in
subsection (2) of this section, the rights and privileges of which the member
was deprived because of that reduction shall be restored and the member is
entitled to the pay and allowances to which the member would have been entitled
for the period the reduction was in effect. [1961 c.454 §135; 1985 c.682 §38]
398.256
Effective date of sentence.
(1) Whenever a sentence of a court-martial as lawfully adjudged and approved
includes a forfeiture of pay or allowances, 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.
(2) Any period of confinement included in
a sentence of a court-martial begins to run from the date the sentence is
ordered to be executed by the convening authority but periods during which the
sentence to confinement is suspended or deferred shall be excluded in computing
the service of the term of confinement. Regulations prescribed by the Governor
may provide that sentences of confinement may not be executed until approved by
designated officers.
(3) All other sentences of courts-martial
are effective on the date ordered executed. [1961 c.454 §136; 1985 c.682 §39]
398.258
Execution of confinement.
(1) A sentence of confinement adjudged by a military court, 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 any of the forces of the
organized militia or in any jail, penitentiary or prison designated for that
purpose. Persons so confined in a jail, penitentiary or prison are subject to
the same discipline and treatment as persons confined or committed to the jail,
penitentiary or prison by the courts of the state or of any political
subdivision thereof.
(2) The keepers, officers and wardens of
county jails, penitentiaries or prisons designated by the Governor, or by such
person as the Governor may authorize to act under ORS 398.060, shall receive
persons ordered into confinement before trial and persons committed to
confinement by a military court and shall confine them according to law.
(3) A person confined under this section
shall have the status of a priority prisoner as defined in ORS 398.058 and may
be released only upon order of a military court.
(4) A keeper, officer or warden described
in subsection (2) of this section may not require payment of any fee or charge
for receiving or confining a person under this section. [1961 c.454 §137; 1975
c.719 §29; 1985 c.682 §40; 2005 c.512 §25]
398.260 [1985 c.682 §13; repealed by 1999 c.157 §8]
REVIEW OF
COURTS-MARTIAL
398.272
Approval and execution or suspension of sentence. Except as provided in ORS 398.112 and
398.282, a court-martial sentence, unless suspended, may be ordered executed by
the convening authority when approved. The convening authority shall approve
the sentence or such part, amount or commuted form of the sentence as the
convening authority sees fit, and may suspend the execution of the sentence as
approved. [1961 c.454 §138; 1985 c.682 §41]
398.274
Initial review and action on trial record. (1) After a trial by court-martial the record shall be forwarded to
the convening authority, as reviewing 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 by the Governor.
(2) The convening authority shall refer
the record of each general court-martial to the State Judge Advocate, who shall
submit a written opinion thereon to the convening authority. If the final
action of the court has resulted in an acquittal of all charges and
specifications, the opinion shall be limited to questions of jurisdiction. [1961
c.454 §§139,140]
398.276
Reconsideration and revision of courts ruling. (1) 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.
(2) 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:
(a) For reconsideration of a finding of
not guilty of any specification, or a ruling which amounts to a finding of not
guilty;
(b) 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 chapter; or
(c) For increasing the severity of the
sentence unless the sentence prescribed for the offense is mandatory. [1961
c.454 §141]
398.278
Rehearings. (1) If the
convening authority disapproves the findings and sentence of a court-martial
the convening authority may, except where there is lack of sufficient evidence
in the record to support the findings, order a rehearing. In such a case the
convening authority shall state the reasons for disapproval. If the convening
authority disapproves the findings and sentence and does not order a rehearing,
the convening authority shall dismiss the charges.
(2) 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 the accused 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. [1961 c.454 §142]
398.280
Approval by convening authority. In acting on the findings and sentence of a court-martial, the
convening authority may approve only such findings of guilty, and the sentence
or such part or amount of the sentence, as the convening authority finds
correct in law and fact and as the convening authority in the discretion of the
convening authority determines should be approved. Unless the convening
authority indicated otherwise, approval of the sentence is approval of the
findings and sentence. [1961 c.454 §143]
398.282
Review of records; disposition.
(1) If the convening authority is the Governor, action by the Governor on the
review of any record of trial is final.
(2) In all other cases not covered by
subsection (1) of this section, if the sentence of a special court-martial as
approved by the convening authority includes a dishonorable discharge, whether
or not suspended, the entire record shall be sent to the appropriate judge
advocate of the state force concerned to be reviewed in the same manner as a
record of trial by general court-martial. The record and the opinion of the
judge advocate shall then be sent to the State Judge Advocate for review.
(3) All other special and summary
court-martial records shall be sent to the judge advocate of the appropriate
force of the organized militia and shall be acted upon, transmitted, and
disposed of as may be prescribed by the Governor.
(4) The State Judge Advocate shall review
the record of trial in each case sent to the State Judge Advocate for review as
provided under subsection (2) of this section. If the final action of the
court-martial has resulted in an acquittal of all charges and specifications,
the opinion of the State Judge Advocate shall be limited to questions of
jurisdiction.
(5) The State Judge Advocate shall take
final action in any case reviewable by the State Judge Advocate.
(6) In a case reviewable by the State
Judge Advocate under this section, the State Judge Advocate may act only with
respect to the findings and sentence as approved by the convening authority.
The State Judge Advocate may affirm only such findings of guilty, and the
sentence or such part or amount of the sentence, as the State Judge Advocate
finds correct in law and fact and determines, on the basis of the entire
record, should be approved. In considering the record the State Judge Advocate
may weigh the evidence, judge the credibility of witnesses and determine
controverted questions of fact, recognizing that the trial court saw and heard
the witnesses. If the State Judge Advocate sets aside the findings and
sentence, the State Judge Advocate may, except where the setting aside is based
on lack of sufficient evidence in the record to support the findings, order a
rehearing. If the State Judge Advocate sets aside the findings and sentence and
does not order a rehearing, the State Judge Advocate shall order that the
charges be dismissed.
(7) In a case reviewable by the State
Judge Advocate under this section, the State Judge Advocate shall instruct the
convening authority to act in accordance with the State Judge Advocates
decision on the review. If the State Judge Advocate has ordered a rehearing but
the convening authority finds a rehearing impracticable, the State Judge Advocate
may dismiss the charges.
(8) The State Judge Advocate may order one
or more boards of review each composed of not fewer than three commissioned
officers of the organized militia, each of whom must be a member of the Oregon
State Bar. Each board of review shall review the record of any trial by special
court-martial referred to it by the State Judge Advocate. Boards of review have
the same authority on review as the State Judge Advocate has under this
section. [1961 c.454 §144; 1985 c.682 §42; 2005 c.512 §39]
398.284
Error of law; lesser included offense. (1) 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.
(2) Any reviewing authority with the power
to approve or affirm a finding of guilty may approve or affirm so much of the
finding as includes a lesser included offense. [1961 c.454 §145]
398.286
Review counsel. (1) Upon the
final review of a sentence of a general court-martial, the accused has the
right to be represented by counsel before the reviewing authority, before the
staff judge advocate or legal officer, as the case may be, and before the State
Judge Advocate.
(2) Upon the request of an accused
entitled to be so represented, the State Judge Advocate shall appoint a lawyer
who is a member of the organized militia and who has the qualifications
prescribed in ORS 398.136, if available, to represent the accused before the
reviewing authority, before the staff judge advocate or legal officer, as the
case may be, and before the State Judge Advocate, in the review of cases
specified in subsection (1) of this section.
(3) If provided by the accused, an accused
entitled to be so represented may be represented by civilian counsel before the
reviewing authority, before the staff judge advocate or legal officer, as the
case may be, and before the State Judge Advocate. [1961 c.454 §146; 1985 c.682 §43]
398.288
Vacation of suspension. (1)
Before the vacation of the suspension of a special court-martial sentence which
as approved includes a dishonorable discharge, or of any general court-martial
sentence, the officer having court-martial jurisdiction over the probationer
shall hold a hearing on the alleged violation of probation. The probationer
shall be represented at the hearing by counsel if the probationer so desires.
(2) The record of the hearing and the
recommendation of the officer having special court-martial jurisdiction shall
be sent for action to the Governor in cases involving a general court-martial
sentence and to the commanding officer of the force of the organized militia of
which the probationer is a member in all other cases covered by subsection (1)
of this section. If the Governor or commanding officer vacates the suspension,
any unexecuted part of the sentence except a dismissal shall be executed.
(3) 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. [1961 c.454 §147; 1985 c.682 §44]
398.290
Petition for new trial. At
any time within two years after approval by the convening authority of a
court-martial sentence which extends to dismissal or dishonorable discharge,
the accused may petition the Governor for a new trial on ground of newly
discovered evidence or fraud on the court-martial. [1961 c.454 §148; 1985 c.682
§45]
398.292
Remission and suspension.
(1) A convening authority may remit or suspend any part or amount of the
unexecuted part of any sentence, including all uncollected forfeitures.
(2) The Governor 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. [1961 c.454 §149]
398.294
Restoration. (1) Under such
military department regulations as the Governor 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, shall be restored unless a new trial or rehearing is ordered and
such executed part is included in a sentence imposed upon the new trial or
rehearing.
(2) If a previously executed sentence of
dishonorable discharge is not imposed on a new trial, the Governor shall
substitute therefor a form of discharge authorized for administrative issuance
unless the accused is to serve out the remainder of the enlistment.
(3) If a previously executed sentence of
dismissal is not imposed on a new trial, the Governor shall substitute therefor
a form of discharge authorized for administrative issue, and the commissioned
officer dismissed by that sentence may be reappointed by the Governor alone to
such commissioned grade and with such rank as in the opinion of the Governor
that former officer would have attained had the officer not been dismissed. The
reappointment of such former officer may be made if a position vacancy is
available under applicable tables of organization. All time between the
dismissal and the reappointment shall be considered as service for all
purposes. [1961 c.454 §150; 1985 c.682 §46]
398.296
Finality of proceedings, findings and sentences. The proceedings, findings and sentences of
court-martial as reviewed and approved, as required by this chapter, and all
dismissals and discharges carried into execution under sentences by
court-martial following review and approval, as required by this chapter, are
final and conclusive. Orders publishing the proceedings of court-martial and
all action taken pursuant to those proceedings are binding upon all
departments, courts, agencies and officers of the state, subject only to action
upon a petition for a new trial as provided in ORS 398.290. [1961 c.454 §151]
PUNITIVE
PROVISIONS
398.302
When persons may be tried or punished. A person may not be tried or punished for any offense provided for in
ORS 398.302 to 398.400, unless:
(1) The offense was committed while the
person was in a duty status during a period of time in which the person was
under lawful orders to be in a duty status; or
(2) The offense charged has a connection
with the military duties of the person. For purposes of this subsection, the
required connection with military duties is conclusively established for
offenses for which there is no equivalent offense in the general criminal laws
of this state and for offenses involving wrongful use, possession, manufacture,
distribution or introduction of a substance described in ORS 398.391 (2) in
violation of ORS 398.391. [1961 c.454 §152; 1975 c.719 §30; 1999 c.157 §6; 2005
c.512 §26]
398.304
Principals. Any person
subject to this chapter who:
(1) Commits an offense punishable by this
chapter, or aids, abets, counsels, commands or procures its commission; or
(2) Causes an act to be done which if
directly performed by the person would be punishable by this chapter;
is a
principal. [1961 c.454 §153]
398.306
Accessory after fact. Any
person subject to this chapter who, knowing that an offense punishable by this
chapter has been committed, receives, comforts or assists the offender in order
to hinder or prevent the apprehension, trial or punishment of the offender
shall be punished as a court-martial may direct. [1961 c.454 §154]
398.308
Conviction of lesser included offense. 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 therein. [1961 c.454 §155]
398.310
Attempts. (1) An act done
with specific intent to commit an offense under this chapter, amounting to more
than mere preparation and tending even though failing to effect its commission,
is an attempt to commit that offense.
(2) Any person subject to this chapter who
attempts to commit any offense punishable by this chapter shall be punished as
a court-martial may direct, unless otherwise specifically prescribed.
(3) Any person subject to this chapter may
be convicted of an attempt to commit an offense although it appears on the
trial that the offense was consummated. [1961 c.454 §156]
398.312
Conspiracy. Any person
subject to this chapter who conspires with any other person to commit an
offense under this chapter shall, 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. [1961 c.454 §157]
398.314
Solicitation. (1) Any person
subject to this chapter who solicits or advises another or others to desert in
violation of ORS 398.320 or mutiny in violation of ORS 398.338 shall be
punished as a court-martial may direct.
(2) Any person subject to this chapter who
solicits or advises another or others to commit an act of misbehavior before
the enemy in violation of ORS 398.348 or sedition in violation of ORS 398.338
shall be punished as a court-martial may direct. [1961 c.454 §158]
398.316
Fraudulent enlistment, appointment or separation. Any person who:
(1) Procures the persons own enlistment
or appointment in the organized militia by knowingly false representation or
deliberate concealment as to qualifications for that enlistment or appointment
and receives pay or allowances thereunder; or
(2) Procures the persons own separation
from the organized militia by knowingly false representation or deliberate concealment
as to eligibility for that separation;
shall be
punished as a court-martial may direct. [1961 c.454 §159]
398.318
Unlawful enlistment, appointment or separation. Any person subject to this chapter who
effects an enlistment or appointment in or a separation from the organized
militia of any person who is known to the person to be ineligible for that
enlistment, appointment or separation because it is prohibited by law,
regulation or order shall be punished as a court-martial may direct. [1961 c.454
§160]
398.320
Desertion. (1) Any member of
the organized militia who:
(a) Without authority goes or remains
absent from the unit, organization or place of duty of the member with intent
to remain away therefrom permanently;
(b) Quits the unit, organization or place
of duty of the member with intent to avoid hazardous duty or to shirk important
service; or
(c) Without being regularly separated from
one of the forces of the organized militia enlists or accepts an appointment in
the same or another one of the forces of the organized militia without fully
disclosing the fact that the member has not been regularly separated;
is guilty of
desertion.
(2) Any commissioned officer of the
organized militia who, after tender of resignation and before notice of its
acceptance, quits the post or proper duties of the officer without leave and
with intent to remain away therefrom permanently is guilty of desertion.
(3) Any person found guilty of desertion
or attempt to desert shall be punished as a court-martial may direct. [1961
c.454 §161]
398.322
Absence without leave. Any
person subject to this chapter who, without authority:
(1) Fails to go to the appointed place of
duty of the person at the time prescribed;
(2) Goes from that place; or
(3) Is absent from the unit, organization
or place of duty at which the person is required to be at the time prescribed;
shall be
punished as a court-martial may direct. [1961 c.454 §162]
398.324
Failure to make required move.
Any person subject to this chapter who through neglect or design misses the
movement of a ship, aircraft or unit with which the person is required in the
course of duty to move shall be punished as a court-martial may direct. [1961
c.454 §163]
398.326
Contempt toward officials.
Any commissioned officer subject to this chapter who uses contemptuous words
against the President, the Governor or the legislature of this state, or the
Governor or legislature of any state, territory, commonwealth or possession
wherein that officer may be serving, shall be punished as a court-martial may
direct. [1961 c.454 §164; 1985 c.682 §47]
398.328
Disrespect toward superior commissioned officer. Any person subject to this chapter who
behaves with disrespect toward a superior commissioned officer shall be
punished as a court-martial may direct. [1961 c.454 §165]
398.330
Assaulting or willfully disobeying superior commissioned officer. Any person subject to this chapter who:
(1) Strikes a superior commissioned
officer or draws or lifts up any weapon or offers any violence against the
officer while the officer is in the execution of office; or
(2) Willfully disobeys a lawful command of
a superior commissioned officer;
shall be
punished as a court-martial may direct. [1961 c.454 §166]
398.332
Insubordinate conduct toward warrant officer or noncommissioned officer. Any warrant officer or enlisted member who:
(1) Strikes or assaults a warrant officer
or noncommissioned officer while that officer is in the execution of office;
(2) Willfully disobeys the lawful order of
a warrant officer or noncommissioned officer; or
(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 office;
shall be
punished as a court-martial may direct. [1961 c.454 §167]
398.334
Failure to obey order or regulation. Any person subject to this chapter who:
(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 organized militia, which it is the duty of the
person to obey, fails to obey the order; or
(3) Is derelict in the performance of
duties;
shall be
punished as a court-martial may direct. [1961 c.454 §168]
398.336
Cruelty and maltreatment. Any
person subject to this chapter who is guilty of cruelty toward, or oppression
or maltreatment of, any person subject to the orders of the person shall be
punished as a court-martial may direct. [1961 c.454 §169]
398.338
Mutiny or sedition. (1) Any
person subject to this chapter who:
(a) With intent to usurp or override
lawful military authority refuses, in concert with another, to obey orders or
otherwise do the persons 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;
(c) Fails to do the utmost to prevent and
suppress a mutiny or sedition being committed in the presence of the person, or
fails to take all reasonable means to inform a superior commissioned officer or
commanding officer of a mutiny or sedition which the person 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, shall be punished as a court-martial may direct. [1961 c.454 §170]
398.340
Resistance, breach of arrest and escape. Any person subject to this chapter who resists apprehension or breaks
arrest or who escapes from custody or confinement shall be punished as a
court-martial may direct. [1961 c.454 §171; 1985 c.682 §48]
398.342
Releasing prisoner without proper authority. Any person subject to this chapter who, without proper authority,
releases any prisoner committed to the charge of the person, or who through
neglect or design suffers any such prisoner to escape, shall be punished as a
court-martial may direct, whether or not the prisoner was committed in strict
compliance with law. [1961 c.454 §172]
398.344
Unlawful detention. Any
person subject to this chapter who, except as provided by law or regulation,
apprehends, arrests or confines any person shall be punished as a court-martial
may direct. [1961 c.454 §173]
398.346
Noncompliance with procedural rules. Any person subject to this chapter who:
(1) Is responsible for unnecessary delay
in the disposition of any case of a person accused of an offense under this
chapter; or
(2) Knowingly and intentionally fails to
enforce or comply with any provision of this chapter regulating the proceedings
before, during or after trial of an accused;
shall be
punished as a court-martial may direct. [1961 c.454 §174]
398.348
Misbehavior before enemy.
Any person subject to this chapter who before or in the presence of the enemy:
(1) Runs away;
(2) Shamefully abandons, surrenders or
delivers up any command, unit, place or military property which it is the duty
of the person to defend;
(3) Through disobedience, neglect or
intentional misconduct endangers the safety of any such command, unit, place or
military property;
(4) Casts away arms or ammunition;
(5) Is guilty of cowardly conduct;
(6) Quits a place of duty to plunder or
pillage;
(7) Causes false alarms in any command,
unit or place under control of the Armed Forces of the
(8) Willfully fails to do the utmost to
encounter, engage, capture or destroy any enemy troops, combatants, vessels,
aircraft or any other thing, which it is the duty of the person so to
encounter, engage, capture or destroy; or
(9) Does not afford all practicable relief
and assistance to any troops, combatants, vessels or aircraft of the Armed
Forces belonging to the United States or their allies, to this state or to any
other state, when engaged in battle;
shall be
punished as a court-martial may direct. [1961 c.454 §175]
398.350
Subordinate compelling surrender. Any person subject to this chapter who compels or attempts to compel
the commander of any force of the organized militia of this state or of any
other state to give it up to an enemy or to abandon it, or who strikes the
colors or flag to any enemy without proper authority, shall be punished as a
court-martial may direct. [1961 c.454 §176]
398.352
Improper use of countersign.
Any person subject to this chapter 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 the knowledge of the person, the person was
authorized and required to give, shall be punished as a court-martial may
direct. [1961 c.454 §177]
398.354
Forcing safeguard. Any
person subject to this chapter who forces a safeguard shall be punished as a
court-martial may direct. [1961 c.454 §178]
398.356
Captured or abandoned property.
(1) All persons subject to this chapter shall secure all public property taken
from the enemy for the service of the
(2) Any person subject to this chapter
who:
(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 the person
receives or expects any profit, benefit or advantage to self or another
directly or indirectly connected with self; or
(c) Engages in looting or pillaging;
shall be
punished as a court-martial may direct. [1961 c.454 §179]
398.358
Aiding enemy. Any person
subject to this chapter who:
(1) Aids, or attempts to aid, the enemy
with arms, ammunition, supplies, money or other things; or
(2) Without proper authority, knowingly
harbors or protects or gives intelligence to, or communicates or corresponds
with or holds any intercourse with the enemy, either directly or indirectly;
shall be
punished as a court-martial may direct. [1961 c.454 §180]
398.360
Misconduct as prisoner. Any
person subject to this chapter who, while in the hands of the enemy in time of
war:
(1) For the purpose of securing favorable
treatment by the captors of the person acts without proper authority in a
manner contrary to law, custom or regulation, to the detriment of others of
whatever nationality held by the enemy as civilian or military prisoners; or
(2) While in a position of authority over
such persons maltreats them without justifiable cause;
shall be
punished as a court-martial may direct. [1961 c.454 §181]
398.362
False official statements.
Any person subject to this chapter, 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, shall be punished as a court-martial may direct. [1961 c.454 §182]
398.366
Loss, damage, destruction or wrongful disposition of military property. Any person subject to this chapter who,
without proper authority:
(1) Sells or otherwise disposes of;
(2) Willfully or through neglect damages,
destroys or loses; or
(3) Willfully or through neglect suffers
to be lost, damaged, destroyed, sold or wrongfully disposed of;
any military
property of the
398.368
Waste, spoilage or destruction of property other than military. Any person subject to this chapter who,
while in a duty status, willfully or recklessly wastes, spoils or otherwise
willfully and wrongfully destroys or damages any property other than military
property of the
398.370
Improper hazarding of vessel.
(1) Any person subject to this chapter who willfully and wrongfully hazards or
suffers to be hazarded any vessel of the Armed Forces of the United States or
of the organized militia shall be punished as a court-martial may direct.
(2) Any person subject to this chapter who
negligently hazards or suffers to be hazarded any vessel of the Armed Forces of
the United States or of the organized militia shall be punished as a
court-martial may direct. [1961 c.454 §185]
398.372
Driving while drunk. Any
person subject to this chapter who operates any vehicle while drunk, or in a
reckless or wanton manner, shall be punished as a court-martial may direct. [1961
c.454 §186; 1975 c.719 §31; 1979 c.744 §18; 1985 c.682 §49]
398.374
Drunk on duty. Any person
subject to this chapter other than a sentinel or lookout who is found drunk on
duty shall be punished as a court-martial may direct. [1961 c.454 §187; 1985
c.682 §50]
398.375
Sentinel or lookout drunk or sleeping on post; leaving before relief. Any sentinel or lookout who is found drunk
or sleeping upon post, or who leaves it before being regularly relieved, shall
be punished as a court-martial may direct. [1985 c.682 §4]
398.376 [1961 c.454 §188; repealed by 1975 c.719 §34]
398.378
Malingering. Any person
subject to this chapter who for the purpose of avoiding work duty or service in
the organized militia:
(1) Feigns illness, physical disablement,
mental lapse or derangement; or
(2) Intentionally inflicts self-injury;
shall be
punished as a court-martial may direct. [1961 c.454 §189]
398.380
Riot or breach of peace. Any
person subject to this chapter who causes or participates in any riot or breach
of the peace shall be punished as a court-martial may direct. [1961 c.454 §190]
398.382 [1961 c.454 §191; repealed by 1975 c.719 §34]
398.384
Stealing goods. (1) Any
person subject to this chapter 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:
(a) With intent permanently to deprive or
defraud another person of the use and benefit of property or to appropriate it
for personal use or to the use of any person other than the owner, steals that
property and is guilty of larceny; or
(b) With intent temporarily to deprive or
defraud another person of the use and benefit of property or to appropriate it
for personal use or to the use of any person other than the owner, is guilty of
wrongful appropriation.
(2) Any person found guilty of larceny or
wrongful appropriation shall be punished as a court-martial may direct. [1961
c.454 §194; 1975 c.719 §32; 1985 c.682 §51]
398.386
Perjury. Any person subject
to this chapter who in a judicial proceeding or in a course of justice
conducted under this chapter willfully and corruptly gives, upon a lawful oath
or in any form allowed by law to be substituted for an oath, any false
testimony material to the issue or matter of inquiry is guilty of perjury and
shall be punished as a court-martial may direct. [1961 c.454 §192]
398.388
Frauds against government.
Any person subject to this chapter:
(1) Who, knowing it to be false or fraudulent:
(a) Makes any claim against the
(b) Presents to any person in the civil or
military service thereof, for approval or payment, any claim against the
(2) Who, for the purpose of obtaining the
approval, allowance, or payment of any claim against the
(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; or
(c) Forges or counterfeits any signature
upon any writing or other paper, or uses any such signature knowing it to be
forged or counterfeited;
(3) Who, having charge, possession,
custody or control of any money or other property of the United States or the
state, furnished or intended for the Armed Forces of the United States or the
organized militia or any force thereof, knowingly delivers to any person having
authority to receive it, any amount thereof less than that for which the person
receives a certificate or receipt; or
(4) Who, being authorized to make or
deliver any paper certifying the receipt of any property of the United States
or the state, furnished or intended for the Armed Forces of the United States
or the organized militia or any force thereof, makes or delivers to any person
such writing without having full knowledge of the truth of the statements
therein contained and with intent to defraud the United States or the state;
shall upon
conviction, be punished as a court-martial may direct. [1961 c.454 §193]
398.390 [1961 c.454 §195; repealed by 1975 c.719 §34]
398.391
Controlled substances. (1)
Any person subject to this chapter who wrongfully uses, possesses,
manufactures, distributes or introduces into an installation, vessel, vehicle
or aircraft used by or under the control of the organized militia a substance
described in subsection (2) of this section shall be punished as a court-martial
may direct.
(2) The substances referred to in
subsection (1) of this section are the following:
(a) Opium, heroin, cocaine, amphetamine,
lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid and
marijuana and any compound or derivative of any such substance.
(b) Any other substance not specified in
paragraph (a) of this subsection that is listed in schedules I to V of section
202 of the Controlled Substances Act (21 U.S.C. 812), as modified under ORS
475.035. [1985 c.682 §3]
398.392 [1961 c.454 §196; 1971 c.743 §363; repealed
by 1975 c.719 §34]
398.393
Dueling; failure to report dueling. Any person subject to this chapter who fights or promotes or is
concerned in or connives at fighting a duel or who, having knowledge of a
challenge sent or about to be sent, fails to report the fact promptly to the
proper authority, shall be punished as a court-martial may direct. [1985 c.682 §5]
398.394
Provoking or reproachful words or gestures. Any person subject to this chapter who uses provoking or reproachful
words or gestures toward any other person subject to this chapter shall be
punished as a court-martial may direct. [1985 c.682 §6]
398.395
Insufficient funds or credit.
(1) Any person subject to this chapter who makes, draws, utters or delivers any
check, draft or order for the payment of money upon any bank or other
depository, knowing at the time that the maker or drawer has not or will not
have sufficient funds in, or credit with, the bank or other depository for the
payment of that check, draft or order in full upon its presentment shall be
punished as a court-martial may direct when the person makes, draws or utters
the check, draft or order:
(a) For the procurement of any article or
thing of value, with intent to defraud; or
(b) For the payment of any past due
obligation or for any other purpose, with intent to deceive.
(2) The making, drawing, uttering or
delivering by a maker or drawer of a check, draft or order for which payment is
refused by the drawee because of insufficient funds of the maker or drawer in
the drawees possession or control is prima facie evidence of an intent to
defraud or deceive and of a knowledge of insufficient funds in, or credit with,
that bank or other depository unless the maker or drawer pays the holder the
amount due within five days after receiving notice, orally or in writing, that
the check, draft or order was not paid on presentment.
(3) As used in this section, credit
means an arrangement or understanding, express or implied, with the bank or
other depository for the payment of that check, draft or order. [1985 c.682 §7]
398.397
Unlawful force or violence.
Any person subject to this chapter 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 shall be punished as a
court-martial may direct. [1985 c.682 §8]
398.399
Conduct unbecoming officer.
Any commissioned officer who is convicted of conduct unbecoming an officer shall
be punished as a court-martial may direct. [1985 c.682 §9]
398.400
Conduct to prejudice of good order and discipline; limits to jurisdiction of
courts-martial. Though not
specifically mentioned in this chapter, all disorders and neglects to the prejudice
of good order and discipline in the organized militia, of which persons subject
to this code may be guilty, shall be taken cognizance of by a general, special
or summary court-martial, according to the nature and degree of the offense,
and shall be punished at the discretion of that court. However, cognizance
shall not be taken of, and jurisdiction may not extend to, the crimes of
murder, manslaughter, rape, robbery, maiming, sodomy, arson, extortion,
aggravated assault, burglary or housebreaking, unless the State of Oregon does
not have jurisdiction to prosecute the offense under the general criminal laws
of this state or, if the State of Oregon has such jurisdiction, chooses not to
exercise that jurisdiction. [1985 c.682 §10; 1999 c.157 §7]
MISCELLANEOUS
PROVISIONS
398.402
Courts of inquiry. (1)
Courts of inquiry to investigate any matter may be convened by the Governor or
by any other person designated by the Governor for that purpose, whether or not
the persons involved have requested such an inquiry.
(2) 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.
(3) Any person subject to this chapter
whose conduct is subject to inquiry shall be designated as a party. Any person
subject to this chapter or employed in the Oregon Military Department, who has
a direct interest in the subject of inquiry has the right to be designated as a
party upon request of the court. Any person designated as a party shall be
given due notice and has the right to be present, to be represented by counsel,
to cross-examine witnesses and to introduce evidence.
(4) Members of a court of inquiry may be
challenged by a party, but only for cause stated to the court.
(5) The members, counsel, the reporter and
interpreters of courts of inquiry shall take an oath of affirmation to
faithfully perform their duties.
(6) Witnesses may be summoned to appear
and testify and be examined before courts of inquiry, as provided for courts-martial.
(7) 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.
(8) Each court of inquiry shall keep a
record of its proceedings, which shall be authenticated by the signatures of
the president and counsel for the court and forwarded to the convening
authority. If the record cannot be authenticated by the president, it shall be
signed by a member in lieu of the president. If the record cannot be authenticated
by the counsel for the court, it shall be signed by a member in lieu of the
counsel. [1961 c.454 §197; 1989 c.360 §10]
398.404
Redress of injuries to property. (1) Whenever complaint is made to any commanding officer that willful
damage has been done to the property of any person or that the property of any
person has been wrongfully taken by members of the organized militia, the
officer may, subject to such military department regulations as the Governor
may prescribe, convene a board to investigate the complaint. The board shall
consist of from one to three officers and, for the purpose of that
investigation, it has power to summon witnesses and examine them upon oath or
affirmation, 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 the officer shall be charged against the pay of
the offenders. The order of the commanding officer directing charges herein
authorized is conclusive, except as provided in subsection (3) of this section,
on any disbursing officer for the payment by the disbursing officer to the
injured parties of the damages so assessed and approved.
(2) If the offenders cannot be
ascertained, but the organization or detachment to which they belong is known,
charges totaling the amount of damages assessed and approved may be paid to the
injured parties from the military fund of the unit or units of the organized
militia to which such offenders belonged.
(3) Any person subject to this chapter who
is accused of causing willful damage to property has the right to be
represented by counsel, to summon witnesses in behalf of the person and to cross-examine
those appearing against the person. The person has the right to appeal to the
next higher commander. [1961 c.454 §201]
398.406
Execution of process and sentence. In the organized militia not in federal service, the processes and
sentences of its courts-martial shall be executed by the civil officers
prescribed by the laws of the state. Where no provision is made for executing
those processes and sentences, the process or sentence shall be executed by a
United States Marshal or deputy marshal, who shall make a return to the
military officer issuing the process or the court imposing the sentence,
pursuant to section 333 of title 32, United States Code. [1961 c.454 §202]
398.408
Process of military courts.
(1) Military courts may issue all process necessary to carry into effect the
powers vested in those courts. Such courts may issue subpoenas and subpoenas
duces tecum and enforce by attachment attendance of witnesses and production of
books and records, when the courts are sitting within the state and the
witnesses, books and records sought are also so located.
(2) Such process may be issued by summary
courts-martial, provost courts or the president or military judge of other
military courts and may be directed to and may be executed by the marshals of
the military court or any peace officer and shall be in such form as may be
prescribed by military department regulations issued under this chapter.
(3) All officers to whom such process may
be so directed shall execute them and make return of their acts thereunder
according to the requirements of those documents. Except as otherwise
specifically provided in this chapter, no such officer may demand or require
payment of any fee or charge for receiving, executing or returning such a
process or for any service in connection therewith. [1961 c.454 §203; 1975
c.719 §33; 1981 c.178 §13]
398.410
Payment of fines and disposition thereof. Fines may be paid to a military court or to an officer executing its
process. The amount of such a fine may be noted upon any state roll or account
for pay of the delinquent and deducted from any pay or allowance due or
thereafter to become due the delinquent, until the fine is liquidated. Any sum
so deducted shall be turned in to the military court which imposed the fine and
shall be paid over by the officer receiving it in like manner as provided for
other fines and moneys collected under a sentence of a summary court-martial.
Notwithstanding any other law, a fine or penalty imposed by a military court
upon an officer or enlisted person shall be paid by the officer collecting it
within 30 days to the State Treasurer and shall be deposited in the General
Fund in the State Treasury, to be available for general governmental expenses. [1961
c.454 §204; 1963 c.169 §7]
398.412
Immunity for action of military courts. No action or proceeding may be prosecuted against the convening
authority or a member of a military court or officer or person acting under its
authority or reviewing its proceedings because of the approval, imposition, or
execution of any sentence or the imposition or collection of a fine or penalty,
or the execution of any process of a military court. [1961 c.454 §205; 1981
c.178 §14]
398.414
Presumption of jurisdiction.
The jurisdiction of the military courts and boards established by this chapter
shall be presumed and the burden of proof rests on any person seeking to oust
those courts or boards of jurisdiction in any action or proceeding. [1961 c.454
§206]
398.416
Delegation of authority by Governor. The Governor may delegate any authority vested in the Governor under
this chapter, and may provide for the subdelegation of any such authority,
except with respect to the power given the Governor by ORS 398.112, 398.118 and
398.126. [1961 c.454 §207; 1985 c.682 §52; 2005 c.512 §40]
398.418
Payment of expenses. The
Adjutant General shall have authority to pay all expenses incurred in the
administration of state military justice from any fund appropriated to the
Oregon Military Department. [1985 c.682 §12; 1989 c.360 §11]
398.420
Armed Forces Court of Appeals for
(2) The court shall have jurisdiction over
appeals properly brought under regulations adopted by the Adjutant General.
(3) The Adjutant General shall appoint
three persons who shall serve as judges on the court. The persons appointed
shall serve without compensation.
(4) One person shall be Chief Judge and
two persons shall be Associate Judges. The Chief Judge shall be selected by the
three judges. The selection shall be subject to the approval of the Adjutant
General.
(5)(a) Appointments shall be for a term of
six years, except that the initial appointments of the judges shall be for the
following terms:
(A) One judge shall serve a two-year term.
(B) One judge shall serve a four-year
term.
(C) One judge shall serve a six-year term.
(b) The term of office of any successor
judges shall be six years, but any judge appointed to fill a vacancy occurring
prior to the expiration of the term for which the judges predecessor was
appointed shall be appointed only for the unexpired term of the predecessor.
(c) Any person appointed to a full or
partial term on the court, unless otherwise disqualified, shall be eligible for
reappointment.
(6) A person is eligible for appointment
to the court if the person:
(a) Is a member of the Oregon State Bar
and admitted to practice before the highest court of this state;
(b) Is a former commissioned officer of
the Armed Forces of the
(c) Has at least:
(A) Five years experience as an officer
in the Judge Advocate Generals Corps; or
(B) Fifteen years experience in the Judge
Advocate Branch of the Oregon State Defense Force.
(7) Judges of the court may be removed by
the Adjutant General, upon notice and hearing, for neglect of duty or
malfeasance in office or for mental or physical disability, but for no other
cause.
(8) If a judge of the court is temporarily
unable to perform the judges duties due to mental or physical disability, the
Adjutant General may designate another person eligible for appointment to the
court to fill the office for the period of disability.
(9) The Oregon Military Department shall
be responsible for reimbursement and funding of all usual travel and per diem
expenses of the judges.
(10) The Adjutant General shall adopt
regulations to govern appellate procedure before the court. The regulations
shall be substantially similar to the provisions for post-trial procedure and
review of courts-martial under the Uniform Code of Military Justice. [2005
c.512 §29]
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