Current Status Bill Number:View additional legislative information at the LPITS web site.825 Ratification Number:431 Act Number:378 Introducing Body:Senate Subject:Relating to military affairs
(A378, R431, S825)
AN ACT TO AMEND SECTIONS 25-1-50 AND 25-1-60, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO MILITARY AFFAIRS, SO AS TO AUTHORIZE THE GOVERNOR AND THE ADJUTANT INSPECTOR GENERAL TO PROMULGATE REGULATIONS RELATIVE TO MILITARY AFFAIRS; TO PROVIDE THAT THE MILITIA OF THE STATE SHALL CONSIST OF ALL ABLE-BODIED CITIZENS DIVIDED INTO THREE CLASSES, THE NATIONAL GUARD, THE ORGANIZED MILITIA, AND THE UNORGANIZED MILITIA; TO AMEND ARTICLES 19 AND 21 OF CHAPTER 1 OF TITLE 25 OF THE 1976 CODE, RELATING TO MILITARY JUSTICE FOR THE NATIONAL GUARD AND MILITARY TRIBUNALS, SO AS TO ENACT THE CODE OF MILITARY JUSTICE UNDER ONE ARTICLE; AND TO REPEAL SECTIONS 25-1-80, 25-1-140, 25-1-600, 25-1-1410, 25-1-1440, 25-1-1450, 25-1-1460, 25-1-1470, 25-1-1480, 25-1-1910, 25-1-2140, 25-1-2150, AND 25-1-2210 OF THE 1976 CODE, RELATING TO MILITARY AFFAIRS.
Be it enacted by the General Assembly of the State of South Carolina:
Regulations
SECTION 1. Section 25-1-50 of the 1976 Code is amended to read:
"Section 25-1-50. The Governor or the adjutant general shall promulgate regulations not inconsistent with law as he may consider necessary to carry out the provisions of this chapter."
Militia
SECTION 2. Section 25-1-60 of the 1976 Code is amended to read:
"Section 25-1-60. The militia of the State shall consist of all able-bodied citizens of the United States and all other able-bodied individuals who have declared their intention to become citizens of the United States, residing within this State, who must be over seventeen years of age. The militia must be divided into three classes, the National Guard, the organized militia, and the unorganized militia."
Citation of article
SECTION 3. Section 25-1-2410 of the 1976 Code is amended to read:
"Section 25-1-2410. This article may be cited as the 'Code of Military Justice'."
Definitions
SECTION 4. Section 25-1-2420 of the 1976 Code is amended to read:
"Section 25-1-2420. As used in the Code of Military Justice:
1. 'Accuser' means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any person who has an interest other than an official interest in the prosecution of the accused;
2. 'Adjutant general' means the officer defined in Section 25-1-10;
3. 'Commander' includes commissioned officers and warrant officers exercising command authority;
4. 'Duty status' means duty in the state military forces under an order issued by authority of law, and includes travel to and from duty;
5. 'Enlisted member' means a person in an enlisted grade;
6. 'Grade' means a step or degree, in a graduated scale of military rank, that is established and designated as a grade by law or regulation;
7. 'Legal officer' and 'judge advocate' means any commissioned officer of the state military forces designated to perform legal duties for a command;
8. 'Military court' means a court-martial or a court of inquiry;
9. 'Military forces' means the national guard of the State, as defined in Section 25-1-10, and any other military force organized under the laws of the State;
10. 'Military judge' means an official of a general or special court-martial detailed in accordance with Section 25-1-2630;
11. 'Oath' includes affirmation;
12. 'Rank' means the order of precedence among members of the military forces;
13. 'State judge advocate' means the commissioned officer responsible for supervising the administration of military justice in the military forces;
14. 'Superior commissioned officer' means a commissioned officer superior in rank or command."
Applicability of Code
SECTION 5. Section 25-1-2430 of the 1976 Code is amended to read:
"Section 25-1-2430. The Code of Military Justice applies to all members of the military forces whether located within or without the territorial boundaries of the State of South Carolina while in an authorized duty status or during a period of time in which he was under lawful orders to be in a duty status, including such time as he was traveling to and from such duty. All members of the military forces are subject to this code while physically located on state or federal property even though not on authorized duty status."
Discharged persons subject to court-martial
SECTION 6. Section 25-1-2440 of the 1976 Code is amended to read:
"Section 25-1-2440. Each person discharged from the state military forces who is later charged with having fraudulently obtained his discharge is, subject to Section 25-1-2725, subject to trial by court-martial on that charge and is after apprehension subject to the code while in the custody of the military for that trial. Upon conviction of that charge he is subject to trial by court-martial for all offenses under the code committed before the fraudulent discharge.
No person who has deserted from the state military forces may be relieved from amenability to the jurisdiction of this code by virtue of a separation from any later period of service."
Adjutant General to appoint
SECTION 7. Section 25-1-2450 of the 1976 Code is amended to read:
"Section 25-1-2450. 1. The adjutant general shall appoint an officer of the military forces as state judge advocate. To be eligible for appointment, an officer must be a member of the South Carolina bar. The state judge advocate shall hold such military grade and rank as designated by the adjutant general.
2. The adjutant general shall appoint judge advocates and legal officers who shall serve under the supervision of the state judge advocate.
3. To be eligible for appointment, judge advocates or legal officers must be members of the South Carolina bar.
4. The state judge advocate or his assistants shall make frequent inspections in the field in supervision of the administration of military justice.
5. Convening authorities shall at all times communicate directly with the state judge advocate or with judge advocates within their command in matters relating to the administration of military justice.
No person who has acted as member, military judge, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or investigating officer in any case may later act as staff judge advocate or legal officer to any reviewing authority upon the same case."
Definition
SECTION 8. Section 25-1-2460 of the 1976 Code is amended to read:
"Section 25-1-2460. For purposes of this code, 'apprehension' is the taking of a person into custody. Any person authorized by this code to apprehend persons subject to the code, any marshal of a court-martial appointed pursuant to the provisions of the code, and any civil officer having authority to apprehend offenders under the laws of the United States or of South Carolina, may do so upon reasonable belief that an offense has been committed and that the person apprehended committed it. Commissioned officers, warrant officers, and noncommissioned officers may, subject to the laws of South Carolina, quell quarrels, frays, and disorders among persons subject to the code and apprehend persons subject to this code who take part therein."
Definition
SECTION 9. Section 25-1-2470 of the 1976 Code is amended to read:
"Section 25-1-2470. For purposes of this code, 'arrest' is the restraint of a person by an order, not imposed as a punishment for an offense, directing him to remain within certain specified limits. Confinement is the physical restraint of a person.
An enlisted member may be ordered apprehended or into arrest or confinement by any commissioned officer by an order, oral or written, delivered in person or through other persons subject to the Code of Military Justice or through any person authorized by this code to apprehend persons. A commander may authorize warrant officers, or noncommissioned officers to order enlisted members of his command or subject to his authority into arrest or confinement.
A commissioned officer or a warrant officer may be ordered apprehended or into arrest or confinement only by a commander to whose authority he is subject, by an order, oral or written, delivered in person, or by another commissioned officer. The authority to order such persons apprehended or into arrest or confinement may not be delegated.
No person may be ordered apprehended or into arrest or confinement except for probable cause.
This section does not limit the authority of persons authorized to apprehend offenders to secure the custody of an alleged offender until proper authority may be notified.
All reasonable force necessary to accomplish arrest, apprehension, or confinement may be used.
The power to restrain may be exercised prior or subsequent to court-martial or other disciplinary proceedings.
The sheriffs of the various counties of this State shall carry out the orders and directives of all courts-martial, including summary court officers."
Person may be arrested
SECTION 10. Section 25-1-2480 of the 1976 Code is amended to read:
"Section 25-1-2480. Any person subject to this code charged with an offense under this code may be ordered into arrest or, under extraordinary circumstances into confinement; but when charged only with an offense normally tried by a summary court-martial, the person shall not ordinarily be placed in confinement.
When any person subject to this code is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him."
Confinement of persons
SECTION 11. Section 25-1-2490 of the 1976 Code is amended to read:
"Section 25-1-2490. Persons confined other than in a guardhouse, whether before or during trial by court-martial, must be confined in any place of confinement under the control of any of the federal armed forces, state military forces, or in any penal or correctional institution, detention facility, jail, or stockade under the control of the State or any of its political subdivisions. All expenses of the confinement must be paid as if the prisoner were committed to confinement by civilian state officials. Unless circumstances prohibit, the place of confinement must be in the prisoner's county of residence or the county in which the prisoner's unit is headquartered.
No provost marshal, commander of a guard, master-at-arms, warden, keeper, sheriff, supervisor, or officer of a place of confinement designated in paragraph 1 of this section, may refuse to receive or keep any prisoner committed to his charge, when the committing person furnishes a statement, signed by him, of the offense charged against the prisoner.
Every commander of a guard, master-at-arms, warden, keeper, sheriff, supervisor, or officer of a place of confinement designated in paragraph 1 of this section, to whose charge a prisoner is committed shall, within twenty-four hours after that commitment or as soon as he is relieved from guard, report to the commander of the prisoner the name of the prisoner, the offense charged against him and the name of the person who ordered or authorized the commitment."
Persons may be subjected to punishment
SECTION 12. Section 25-1-2500 of the 1976 Code is amended to read:
"Section 25-1-2500. Subject to Section 25-1-2795, no person, while being held for trial or the result of trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances required to ensure his presence, but he may be subjected to minor punishment during that period for infractions of discipline."
Delivery of persons subject to Code
SECTION 13. Section 25-1-2510 of the 1976 Code is amended to read:
"Section 25-1-2510. A person subject to the Code of Military Justice who is accused of an offense against civil authority may be delivered, upon request, to the civil authority for trial if the approval of the person's immediate commanding officer is obtained.
When delivery under this section is made to any civil authority of a person undergoing sentence of a court-martial, the delivery, if followed by conviction in a civil tribunal, interrupts the execution of the sentence of the court-martial, and the offender after having answered to the civil authorities for his offense shall, upon the request of competent military authority, be returned to the place of original custody for completion of his sentence."
Limitations on power
SECTION 14. Section 25-1-2520 of the 1976 Code is amended to read:
"Section 25-1-2520. 1. Under such regulations as the adjutant general may prescribe, limitations may be placed on the powers granted by this section with respect to the kind and amount of punishment authorized, the categories of commanders authorized to exercise those powers, the applicability of this section to an accused who demands trial by court-martial, and the kinds of courts-martial to which the case may be referred upon a demand. However, punishment may not be imposed upon any member of the military forces under this section if the member has, before the imposition of punishment, demanded trial by court-martial in lieu of punishment. Under similar regulations, rules may be prescribed with respect to the suspension of punishments authorized hereunder. 2. Subject to subsection 1 of this section, any commander may, in addition to or in lieu of admonition or reprimand, impose one or more of the following disciplinary punishments for minor offenses without the intervention of a court-martial:
(A) upon officers of his command:
(1) restriction to certain specified limits, with or without suspension from duty, for not more than fifteen days; or
(2) if imposed by the governor, the adjutant and inspector general or an officer of a general rank in command:
(a) arrest in quarters for not more than fifteen days or
(b) forfeiture of pay of not more than seven days' pay; and
(B) upon other military personnel of his command:
(1) forfeiture of pay of not more than two days' pay;
(2) reduction to the next inferior pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction;
(3) extra duties, including fatigue or other duties, for not more than fourteen days;
(4) restriction to certain specified limits, with or without suspension from duty, for not more than fourteen days; or
(5) if imposed by an officer of the grade of major, or above:
(a) forfeiture of pay of not more than four days' pay;
(b) reduction to the lowest or any intermediate pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction, but an enlisted member in a pay grade above E-4 may not be reduced more than two pay grades;
(c) the punishment authorized under subitem (3) of item (B) of subsection 2 of this section; or
(d) the punishment authorized under subitem (4) of item (B) of subsection 2 of this section.
No two or more of the punishments of arrest in quarters, extra duties, and restriction may be combined to run consecutively in the maximum amount possible for each. Whenever any of those punishments are combined to run consecutively, there must be an apportionment.
3. An officer in charge may impose upon enlisted members assigned to the unit of which he is in charge such of the punishments authorized under subitems (1) through (3) of item (B) of subsection 2 of this section as the governor may specifically prescribe by regulation.
4. The officer who imposes the punishment authorized in subsection 2 of this section, or his successors in command, may at any time, suspend probationally a reduction in grade or a forfeiture imposed under subsection 2 of this section, whether or not executed. In addition, he may at any time, remit or mitigate any part or amount of the unexecuted punishment and may set aside in whole or in part the punishment, whether executed or unexecuted, and restore all rights, privileges, and property affected. He may also mitigate reduction in grade to forfeiture of pay. When mitigating:
(a) arrest in quarters to restriction;
(b) extra duties to restriction;
the mitigated punishment may not be for a greater period than the punishment mitigated. When mitigating reduction in grade to forfeiture of pay, the amount of the forfeiture may not be greater than the amount that could have been imposed initially under this section by the officer who imposed the punishment mitigated.
5. A person punished under this section who considers his punishment unjust or disproportionate to the offense may, through proper channel, appeal to the next superior authority. The appeal must be promptly forwarded and decided, and in the meantime the punishment adjudged must be suspended. The superior authority may exercise the same powers with respect to the punishment imposed as may be exercised under subsection 4 of this section by the officer who imposed the punishment. The authority who is to act on the appeal shall refer the case to the state judge advocate or a judge advocate or legal officer within his command for consideration and advice. The decision of the superior authority is final.
6. The imposition and enforcement of disciplinary punishment under this section for any act or omission is not a bar to trial by court-martial for a serious crime or offense growing out of the same act or omission, and not properly punishable under this section; but the fact that a disciplinary punishment has been enforced may be shown by the accused upon trial, and when so shown shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty.
7. Whenever a punishment of forfeiture of pay is imposed under this section, the forfeiture may apply to pay accruing on or after the date that punishment is imposed and to any pay accrued before that date.
8. The adjutant general may, by regulation, prescribe the form of records to be kept of proceedings under this section and may also prescribe that certain categories of those proceedings shall be in writing."
Types of courts-martial
SECTION 15. Section 25-1-2530 of the 1976 Code is amended to read:
"Section 25-1-2530. There may be three types of courts-martial in the state military forces:
1. general court-martial, consisting of:
(a) a military judge and not less than five members; or
(b) only a military judge, if before the court is assembled the accused, knowing the identity of the military judge, and after consultation with defense counsel, requests in writing a court composed only of a military judge, and the military judge approves;
2. special court-martial, consisting of:
(a) not less than three members; or
(b) a military judge and not less than three members; or
(c) only a military judge, if one has been detailed to the court, and the accused under the same conditions as prescribed in item (b) of subsection 1 of this section so requests; and
3. summary court-martial, consisting of one commissioned officer."
Court-martial jurisdiction
SECTION 16. Section 25-1-2540 of the 1976 Code is amended to read:
"Section 25-1-2540. Each component of the military forces has court-martial jurisdiction over all persons subject to the Code of Military Justice. The exercise of jurisdiction by one component over personnel of another component of the military forces must be in accordance with regulations prescribed by the governor or the adjutant general."
Jurisdiction of general courts-martial
SECTION 17. Section 25-1-2550 of the 1976 Code is amended to read:
"Section 25-1-2550. Subject to Section 25-1-2540, general courts-martial have jurisdiction to try persons subject to this code for any offense made punishable by the code and may, under such limitations as the governor may prescribe, or such further limitations as the adjutant general may prescribe, adjudge any of the following:
(a) dismissal, or dishonorable or bad-conduct discharge;
(b) confinement of not more than six months;
(c) a fine of not more than two thousand dollars;
(d) reduction of enlisted personnel to the lowest pay grade;
(e) forfeiture of pay and allowances not to exceed forty days' pay;
(f) a reprimand;
(g) any combination of these punishments."
Jurisdiction of special courts-martial
SECTION 18. Section 25-1-2560 of the 1976 Code is amended to read:
"Section 25-1-2560. 1. Subject to Section 25-1-2540, special courts-martial have jurisdiction to try persons subject to this code, except officers, for any offense made punishable by the code and may, under such limitations as the governor may prescribe, or such further limitations as the adjutant general may prescribe, adjudge any of the following punishments:
(a) bad-conduct discharge;
(b) confinement of not more than three months;
(c) a fine of not more than five hundred dollars;
(d) reduction of enlisted personnel to the lowest pay grade;
(e) forfeiture of pay and allowances not to exceed twenty days' pay;
(f) a reprimand;
(g) any combination of these punishments.
2. A sentence which imposes a bad-conduct discharge or confinement may not be adjudged unless:
(a) a complete summary of the proceedings and testimony has been made by the military judge or the president of the court;
(b) counsel, having the qualifications prescribed under subsection 2 of Section 25-1-2630 was detailed to represent the accused; and
(c) a military judge was detailed to the trial."
Jurisdiction of summary courts-martial
SECTION 19. Section 25-1-2570 of the 1976 Code is amended to read:
"Section 25-1-2570. Subject to Section 25-1-2540, summary courts-martial have jurisdiction to try persons subject to the code, except officers, for any offense made punishable by the code and may, under such limitations as the governor or adjutant general may prescribe, adjudge any of the following punishments:
(a) reduction of enlisted personnel by one pay grade, provided the grade of the accused is within the promotion authority of the convening authority;
(b) a fine of not more than two hundred dollars;
(c) imprisonment not to exceed thirty days;
(d) forfeiture of pay and allowances not to exceed five days' pay;
(e) any combination of these punishments.
No person with respect to whom summary courts-martial have jurisdiction may be brought to trial before a summary court-martial if he objects. If objection to trial by summary court-martial is made by an accused, trial may be ordered by special or general court-martial as may be appropriate."
Appointment of general courts-martial
SECTION 20. Section 25-1-2580 of the 1976 Code is amended to read:
"Section 25-1-2580. General courts-martial may be appointed only by order of the governor."
Appointment of special courts-martial
SECTION 21. Section 25-1-2590 of the 1976 Code is amended to read:
"Section 25-1-2590. Special courts-martial must be appointed by the adjutant general and by such other commanding officers of the National Guard as may be delegated such power of appointment by the adjutant general. The power to appoint special courts-martial, when delegated, may not be redelegated and the adjutant general has the power to revoke delegated authority at any time."
Appointment of summary courts-martial
SECTION 22. Section 25-1-2600 of the 1976 Code is amended to read:
"Section 25-1-2600. Summary courts-martial must be appointed by the adjutant general and by such other commanding officers of the National Guard as may be delegated such power of appointment by the adjutant general. The power to appoint summary courts-martial, when delegated by the adjutant general may be redelegated repeatedly from higher echelon of command to lower echelon of command as is considered best by each successive commander delegated that authority. Summary court officers have power and authority to administer oaths."
Eligibility to serve
SECTION 23. Section 25-1-2610 of the 1976 Code is amended to read:
"Section 25-1-2610. (1) Any commissioned officer off or on duty with the military forces is eligible to serve as a member on all courts-martial for the trial of any person who may lawfully be brought before such courts for trial.
(2) Any warrant officer off or on duty with the military forces is eligible to serve on general and special courts-martial for the trial of any person, other than a commissioned officer, who may lawfully be brought before such courts for trial.
(3) Any enlisted member of the military forces who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial for the trial of any enlisted member of the military forces who may lawfully be brought before such courts for trial, but he may serve as a member of a court only if, before the conclusion of a session called by the military judge prior to trial or, in the absence of such a session, before the court is assembled for the trial of the accused, the accused personally has requested in writing that enlisted members serve on it. After such a request the accused may not be tried by a general or special court-martial the membership of which does not include enlisted members in a number comprising at least one-third of the total membership of the court, unless eligible members cannot be obtained on account of physical conditions or military exigencies. If such members may not be obtained, the court may be assembled and the trial held without them, but the convening authority shall make a detailed written statement, to be appended to the record, stating why they could not be obtained.
In this subsection, the word 'unit' means any regularly organized body of the military forces not larger than a company, a squadron, or a body corresponding to one of them.
(4) When it can be avoided, no person subject to the Code of Military Justice may be tried by a court-martial composed of any members who are junior to him in rank or grade.
(5) When convening a court-martial, the convening authority shall detail as members such members of the military force as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No member of the military forces is eligible to serve as a member of a general or special court-martial when he is the accuser or a witness for the prosecution or has acted as investigation officer or as counsel in the same case."
Convening authority
SECTION 24. Section 25-1-2620 of the 1976 Code is amended to read:
"Section 25-1-2620. (1) The authority convening a general court-martial shall, and the authority convening a special court-martial may (subject to the approval of the adjutant general), detail a military judge to the court-martial. A military judge shall preside over each open session of the court-martial to which he has been detailed.
(2) A military judge must be a commissioned officer of the military forces who is a member of the South Carolina bar or a member of the bar of a federal court, and who is certified to be qualified for such duty by a state judge advocate.
(3) The military judge of a general or special court-martial must be designated by the adjutant general or his designee, for detail by the convening authority, and, unless the court-martial was convened by the governor, neither the convening authority nor any member of his staff may prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to his performance of duty as a military judge.
(4) No person is eligible to act as a military judge in a case, if he is the accuser or a witness for the prosecution or has acted as investigating officer or as a counsel in the same case.
(5) The military judge of a court-martial may not consult with the members of the court about the court-martial except in the presence of the accused, trial counsel, and defense counsel; nor may he vote with members of the court."
Further
SECTION 25. Section 25-1-2630 of the 1976 Code is amended to read:
"Section 25-1-2630. (1) For each general and special court-martial the authority convening the court shall detail trial counsel and defense counsel, and such assistants as he considers appropriate. No person who has acted as investigating officer, military judge, or court member in any case may act later as trial counsel, assistant trial counsel, or unless expressly requested by the accused, as defense counsel or assistant defense counsel in the same case. No person who has acted for the prosecution may act later in the same case for the defense, nor may any person who has acted for the defense act later in the same case for the prosecution.
(2) Trial counsel or defense counsel detailed for a general court martial:
(a) must be a person who is a member of the South Carolina bar or a member of the bar of a federal court; and
(b) must be certified as competent to perform such duties by a state judge advocate.
(3) In the case of a special court martial:
(a) the accused must be afforded the opportunity to be represented at the trial by counsel having the qualifications prescribed under subsection 2 of this section unless counsel having such qualifications may not be obtained on account of physical conditions or military exigencies. If counsel having such qualifications may not be obtained, the court may be convened and the trial held, but the convening authority shall make a detailed written statement, to be appended to the record stating why counsel with such qualifications was not obtained;
(b) if the trial counsel is qualified to act as counsel before a general court-martial, the defense counsel detailed by the convening authority must be a person similarly qualified;
(c) if the trial counsel is a member of the South Carolina bar, the defense counsel detailed by the convening authority must also be a member of the South Carolina bar."
Proceedings to be recorded
SECTION 26. Section 25-1-2640 of the 1976 Code is amended to read:
"Section 25-1-2640. Under such regulations as the adjutant general may prescribe, the convening authority of a general or special court-martial or court of inquiry shall assign qualified individuals, who shall electronically record the proceedings of and testimony taken before that court. Under like regulations the convening authority of a military court may detail or employ interpreters who shall interpret for the court."
No member of court-martial absent or excused
SECTION 27. Section 25-1-2650 of the 1976 Code is amended to read:
"Section 25-1-2650. (1) No member of a general or special court-martial may be absent or excused after the court has been assembled for the trial of the accused except for physical disability or as the result of a challenge or by order of the convening authority for good cause.
(2) Whenever a general court-martial, other than a general court-martial composed of a military judge only, is reduced below five members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not less than five members. The trial may proceed with the new members present after the recorded evidence previously introduced before the members of the court has been read to the court in the presence of the military judge, the accused, and counsel for both sides.
(3) Whenever a special court-martial, other than a special court-martial composed of a military judge only, is reduced below three members, the trial may not proceed unless the convening authority details new members sufficient in numbers to provide not less than three members. The trial may proceed with the new members present as if no evidence had previously been introduced at the trial, unless a verbatim record of the evidence previously introduced before the members of the court or a stipulation thereof is read to the court in the presence of the military judge, if any, the accused and counsel for both sides.
(4) If the military judge of a court-martial composed of a military judge only is unable to proceed with the trial because of physical disability, as a result of a challenge, or for other good cause, the trial shall proceed, subject to any applicable conditions of item (b) of subsection 1 or item (c) of subsection 2 of Section 25-1-2530 after the detail of a new military judge as if no evidence had previously been introduced unless a verbatim record of the evidence previously introduced or a stipulation of the evidence is read in court in the presence of the new military judge, the accused, and counsel for both sides."
Charges and specifications must be signed
SECTION 28. The 1976 Code is amended by adding to Article 19 of Chapter 1 of Title 25:
"Section 25-1-2660. Charges and specifications must be signed by a person subject to the Code of Military Justice under oath before a person authorized by the code to administer oaths and shall state:
(1) that the signer has personal knowledge of, or has investigated, the matters set forth therein; and
(2) that they are true in fact to the best of his knowledge and belief.
Upon the preferring of charges, the proper authority shall take immediate steps to determine what disposition should be made of the charges in the interest of justice and discipline, and the person accused must be informed of the charges against him as soon as practicable.
Section 25-1-2665. (1) No person subject to the Code of Military Justice may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him.
(2) No person subject to the code may interrogate, or request any statement from an accused, without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected, and that any statement made by him may be used as evidence against him in a trial by court-martial.
(3) No person subject to the code may compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade him.
(4) No statement obtained from any person in violation of this section, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.
Section 25-1-2670. No charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth in the charge a specification has been made. The investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges and a recommendation as to the disposition which should be made of the case in the interest of justice and discipline.
The accused may be advised of the charges against him and of his right to be represented at that investigation by counsel. Upon his own request he may be represented by civilian counsel if provided by him at his own expense, or military detailed by the officer exercising general court-martial jurisdiction over the command. At that investigation, full opportunity must be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after the investigation, they must be accompanied by a statement of the substance of the testimony taken on both sides and a copy must be given to the accused.
If an investigation of the subject matter of an offense has been conducted before the accused is charged with the offense, and if the accused was present at the investigation and afforded the opportunities for representation, cross-examination, and presentation prescribed in paragraph 2 of this section, no further investigation of that charge is necessary under this section unless it is demanded by the accused after he is informed of the charge. A demand for further investigation entitles the accused to recall witnesses for further cross-examination and to offer any new evidence in his own behalf.
The requirements of this section are binding on all persons administering this code but failure to follow them does not divest a military court of jurisdiction.
Section 25-1-2675. When a person is held for trial by general court-martial the commanding officer shall, within eight days after the accused is ordered into arrest or confinement, if practicable, forward the charges, together with the investigation and allied papers, to the person exercising general court-martial jurisdiction. If that is not practicable, he shall report in writing to that person the reasons for delay.
Section 25-1-2680. Before directing the trial of any charge by general court-martial, the convening authority shall refer it to the state judge advocate for consideration and advice. The convening authority may not refer a charge to a general court-martial for trial unless he has found that the charge alleges an offense under the Code of Military Justice and is warranted by evidence indicated in the report of the investigation.
If the charges or specifications are not formally correct or do not conform to the substance of the evidence contained in the report of the investigating officer, formal corrections, and such changes in the charges and specifications may be made to make them conform to the evidence.
Section 25-1-2685. The trial counsel to whom court-martial charges are referred for trial shall cause to be served upon the accused a copy of the charges upon which trial is to be had. No person may, against his objection, be brought to trial or be required to participate by himself or counsel in a session called by the military judge under Section 25-1-2705 in a general court-martial case within a period of five days after the service of charges upon him or in a special court-martial within a period of three days after the service of charges upon him.
Section 25-1-2690. The procedure, including modes of proof, in cases before military courts, shall apply the principles of law and rules of evidence generally recognized in the trial of criminal cases in circuit courts of this State, but which may not be contrary to or inconsistent with this code.
Section 25-1-2695. (1) No authority convening a general, special, or summary court-martial nor any other commander or officer serving on the staff of the court-martial may censure, reprimand, or admonish the court or any member, military judge, or counsel with respect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or his functions in the conduct of the proceeding. No person subject to this code may attempt to coerce or, by an unauthorized means, influence the action of the court-martial or any other military tribunal or any member thereof in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts. The foregoing provisions of this subsection do not apply with respect to:
(A) general instructional or informational courses in military justice, if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial;
(B) statements and instructions given in open court by the military judge, president of a special court-martial, or counsel.
(2) In the preparation of an effectiveness, fitness, or efficiency report or any other report or document used in whole or in part for the purpose of determining whether a member of the military forces is qualified to be advanced in grade, or in determining the assignment or transfer of a member of the military forces, or in determining whether a member of the military forces should be retained on active duty, no person subject to the Code of Military Justice may, in preparing any such report:
(A) consider or evaluate the performance of duty of the member as a member of a court-martial;
(B) give a less favorable rating or evaluation of any member of the state military forces because of the zeal with which the member, as counsel, represented any accused before a court-martial.
Section 25-1-2700. The trial counsel of a general or special court-martial shall prosecute in the name of the State of South Carolina, and shall, under the direction of the court, prepare the record of the proceedings.
The accused has the right to be represented in his defense before a general or special court-martial by civilian counsel if provided by him at his own expense, or by military counsel detailed under Section 25-1-2630. Should the accused have counsel of his own selection, the defense counsel, and assistant defense counsel, if any, who were detailed, may be excused by the military judge or by the president of a court-martial without a military judge. An accused has no right to military counsel in a summary court-martial proceeding.
In every court-martial proceeding, the defense counsel may, in the event of conviction, forward for attachment to the record of proceedings a brief of matters he feels should be considered in behalf of the accused on review, including any objection to the contents of the record which he considers appropriate.
An assistant trial counsel of a general court-martial may, under the direction of the trial counsel or when he is qualified to be a trial counsel as required by Section 25-1-2630 perform any duty imposed by law, regulation, or the custom of the service upon the trial counsel of the court. An assistant trial counsel of a special court-martial may perform any duty of the trial counsel.
An assistant defense counsel of a general or special court-martial may, under the direction of the defense counsel or when he is qualified to be the defense counsel, as required by Section 25-1-2630 perform any duty imposed by law, regulation, or the custom of the service upon counsel for the accused.
Section 25-1-2705. At any time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject to Section 25-1-2685, call the court into session without the presence of the members for the purpose of:
(1) hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty;
(2) hearing and ruling upon any matter which may be ruled upon by the military judge under this code, whether or not the matter is appropriate for later consideration or decision by the members of the court;
(3) unless prohibited by regulations of the governor, holding the arraignment and receiving the pleas of the accused;
(4) performing any other procedural function which may be performed by the military judge under this code under rules prescribed pursuant to Section 25-1-2690 and which does not require the presence of the members of the court. These proceedings must be conducted in the presence of the accused, the defense counsel, and the trial counsel and must be made a part of the record.
When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any other consultation of the members of the court with counsel or the military judge, must be made a part of the record and must be in the presence of the accused, the defense counsel, the trial counsel, and in cases in which a military judge has been detailed to the court, the military judge.
Section 25-1-2710. The military judge or a court-martial without a military judge may, for reasonable cause, grant a continuance to any party for such time, and as often, as may appear to be just.
Section 25-1-2715. The military judge and members of a general or special court-martial may be challenged by the accused or the trial counsel for cause stated to the court. The military judge or, if none, the court, shall determine the relevancy and validity of challenges for cause, and may not receive a challenge to more than one person at a time. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused are offered.
Each accused and the trial counsel are entitled to one peremptory challenge, but the military judge may not be challenged except for cause.
Section 25-1-2720. Before performing their respective duties, military judges, members of general and special courts-martial, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, reporters, and interpreters shall take an oath to perform their duties faithfully.
Section 25-1-2725. A person charged with desertion or absence without leave in time of war or with mutiny may be tried and punished at any time without limitation.
Except as otherwise provided in this section, a person charged with desertion in time of peace or with the offense punishable under Sections 25-1-3065 or 25-1-3070 is not liable to be tried by the court-martial if the offense was committed more than three years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command.
Except as otherwise provided in this section, a person charged with any offense is not liable to be tried by court-martial or punished under Section 25-1-2520 if the offense was committed more than two years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command or before the imposition of punishment under Section 25-1-2520.
Periods in which the accused was absent from territory in which the State of South Carolina has the authority to apprehend him, or in the custody of civil authorities, or in the hands of the enemy, must be excluded in computing the period of limitation prescribed in this section.
Section 25-1-2730. No person may, without his consent, be tried a second time for the same offense. No proceeding in which an accused has been found guilty by a court-martial upon any charge or specification is a trial in the sense of this section until the finding of guilty has become final after review of the case has been fully completed.
A proceeding which, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses without any fault of the accused is a trial in the sense of this section.
Section 25-1-2735. If an accused makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty must be entered in the record, and the court shall proceed as though he had pleaded not guilty.
With respect to any charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge, or by a court-martial without a military judge, a finding of guilty of the charge or specification may be entered immediately without vote. This finding shall constitute the finding of the court even though the plea of guilty is withdrawn prior to the announcement of the sentence.
Section 25-1-2740. The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with regulations prescribed by the governor. Process issued in court-martial cases to compel witnesses to appear and testify and to compel the production of other evidence must be similar to that which courts of the state having jurisdiction may lawfully issue, as prescribed by the laws of this State.
Section 25-1-2745. Any person not subject to the Code of Military Justice is guilty of an offense against the State if:
(1) he has been duly subpoenaed in accordance with the laws of this State to appear as a witness or to produce books and records before a military court or before any military or civil officer designated to take a deposition to be read in evidence before such a court;
(2) wilfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or to produce any evidence which that person may have been legally subpoenaed to produce.
Any person who commits an offense named in this section must be tried in a circuit court of this State, and jurisdiction is conferred upon that court for that purpose. Upon conviction, such a person must be punished by a fine of not more than five hundred dollars, or imprisonment for not more than six months, or both.
The attorney general or his designated representative shall, upon the certification of the facts to him by the military court, prosecute any person violating this section.
Section 25-1-2750. A court-martial may punish for contempt any person who uses menacing words, signs, or gestures in its presence, or who disturbs its proceedings. The punishment may not exceed confinement for twenty-five days or a fine of twenty-five dollars.
Section 25-1-2755. At any time after charges have been signed, as provided in Section 25-1-2660, any party may take oral or written depositions unless the military judge or court-martial without a military judge hearing the case, or if the case is not being heard, an authority competent to convene a court-martial for the trial of those charges, forbids it for a good cause. If a deposition is to be taken before charges are referred for trial, an authority may designate commissioned officers to represent the prosecution and the defense and may authorize those officers to take the deposition of any witness.
The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition.
Depositions may be taken before, and authenticated by, any military or civil officer authorized by the laws of this State or by the laws of the place where the deposition is taken to administer oaths.
A duly authenticated deposition taken upon reasonable notice to the other parties, so far as otherwise admissible under the rules of evidence, may be read in evidence before any court-martial or in any proceeding before a court of inquiry, if it appears that:
(1) the witness resides or is beyond the State or beyond the distance of one hundred miles from the place of trial or hearing;
(2) the witness by reason of death, age, sickness, bodily infirmity, imprisonment, military necessity, nonamenability to process or other reasonable cause, is unable or refuses to appear to testify in person at the place of trial or hearing;
(3) the present whereabouts of the witness is unknown.
Section 25-1-2760. In any case not extending to the dismissal of a commissioned officer, the sworn testimony, contained in the duly authenticated record of proceedings of a court of inquiry, of a person whose oral testimony may not be obtained, may if otherwise admissible under the rules of evidence, be read in evidence by any party before a court-martial if the accused was a party before the court of inquiry and if the same issue was involved or if the consents to the introduction of the evidence.
The testimony may be read in evidence only by the defense in cases extending to the dismissal of a commissioned officer.
The testimony may also be read in evidence before a court of inquiry or a military board.
Section 25-1-2765. Voting by members of a general or special court-martial on the findings and on the sentence, and by members of a court-martial without a military judge upon questions of challenge must be by secret written ballot. The junior member of the court shall count the votes. The count must be checked by the president, who shall forthwith announce the result of the ballot to the members of the court.
The military judge and, except for questions of challenge, the president of a court-martial without a military judge, shall rule upon all questions of law and all interlocutory questions, arising during the proceedings. Any ruling made by the military judge upon any question of law or any interlocutory question other than the factual issue of mental responsibility of the accused, or by the president of a court-martial without a military judge upon any question of law other than a motion for a finding of not guilty is final and constitutes the ruling of the court. However, the military judge or the president of a court-martial without a military judge may change his ruling at any time during the trial.
Before a vote is taken on the findings, the military judge or the president of a court-martial without a military judge shall, in the presence of the accused and counsel, instruct the members of the court as to the elements of the offense and charge them:
(1) that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt;
(2) that in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and he must be acquitted;
(3) that if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt; and
(4) that the burden of proof of establishing the guilt of the accused beyond reasonable doubt is upon the State.
This section does not apply to a court-martial composed of a military judge only. The military judge of such a court-martial shall determine all questions of law and fact arising during the proceedings, and, if the accused is convicted, adjudge an appropriate sentence. The military judge of such a court-martial shall make a general finding and shall in addition on request find the facts specially. If an opinion or memorandum of decision is filed, it is sufficient if the findings of fact appear in it.
Section 25-1-2770. No person may be convicted of an offense, except as provided in Section 25-1-2735 or by the concurrence of two-thirds of the members present at the time the vote is taken.
All other questions to be decided by the members of a general or special court-martial must be determined by a majority vote. A tie vote on a challenge disqualifies the member challenged. A tie vote on a motion for a finding of not guilty or on a motion relating to the question of the accused's sanity is a determination against the accused. A tie vote on any other question is a determination in favor of the accused.
Section 25-1-2775. A court-martial shall announce its findings and sentence to the parties as soon as determined.
Section 25-1-2780. Each general court-martial shall keep a separate record of the proceedings in each case brought before it, and the record must be authenticated by the signature of the military judge. If the record may not be authenticated by the military judge by reason of his death, disability, or absence, it must be authenticated by the signature of the trial counsel or by that of a member if the trial counsel is unable to authenticate it by reason of his death, disability, or absence. In a court-martial consisting of only a military judge the record must be authenticated by the court reporter under the same conditions which would impose such a duty on a member under this paragraph. If the proceedings have resulted in an acquittal of all charges and specifications or, if not affecting a general or flag officer, in a sentence not including discharge or confinement and not in excess of that which may otherwise be adjudged by a special court-martial, the record shall contain such matters as may be prescribed by regulations of the governor.
A copy of the record of the proceedings of each general and special court-martial must be given to the accused as soon as it is authenticated.
Section 25-1-2785. Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel and unusual punishment, may not be adjudged by any court-martial and inflicted upon any person subject to this code.
Section 25-1-2790. With the express consent of the adjutant general, an accused may resign without retirement or other benefits from the military forces in lieu of court-martial.
Section 25-1-2795. Whenever a sentence of a court-martial as lawfully adjudged and approved includes a forfeiture of pay or allowances in addition to confinement not suspended or deferred, the forfeiture may apply to pay or allowances becoming due on or after the date the sentence is approved by the convening authority. No forfeiture may extend to any pay or allowances accrued before that date.
Any period of confinement included in a sentence of a court-martial begins to run from the date the sentence is adjudged by the court-martial, but periods during which the sentence to confinement is suspended must be excluded in computing the service of the term of confinement.
All other sentences of courts-martial are effective on the date ordered executed.
On application by an accused who is under sentence to confinement that has not been ordered executed, the convening authority or, if the accused is no longer under his jurisdiction, the person exercising general court-martial jurisdiction, may in his sole discretion defer service of the sentence to confinement. The deferment shall terminate when the sentence is ordered executed. The deferment may be rescinded at any time by the officer who granted it or, if the accused is no longer under his jurisdiction, by the person exercising general court-martial jurisdiction.
Section 25-1-2800. Under such instructions as the adjutant general may prescribe, a sentence of confinement adjudged by a court-martial, whether or not the sentence includes discharge or dismissal, and whether or not the discharge or dismissal has been executed, may be carried into execution by confinement in any place of confinement under the control of the federal armed forces, the state military forces or in any penal or correctional institution, detention facility, jail, or stockade under the control of the State or a political subdivision of it, or which the State or a political subdivision of it may be allowed to use. Persons so confined in a penal or correctional institution not under the control of the military forces are subject to the same discipline and treatment as persons confined or committed by the courts of the State.
The omission of the words 'hard labor' from any sentence or punishment of a court-martial adjudging confinement does not deprive the authority executing that sentence or punishment of the power to require hard labor as a part of the punishment.
Section 25-1-2805. Unless otherwise provided in regulations to be prescribed by the governor, a special or general court-martial sentence of an enlisted member in a pay grade above E-2, as approved by the convening authority, that includes:
(1) a dishonorable or bad-conduct discharge; or
(2) confinement;
reduces that member to pay grade E-2, effective on the date of that approval.
If the sentence of a member who is reduced in pay grade under this section is disapproved or reversed, the rights and privileges of which he was deprived because of that reduction must be restored to him and he is entitled to the pay and allowances to which he would have been entitled, for the period the reduction was in effect, had he not been so reduced."
Finding or sentence of court-martial
SECTION 29. Section 25-1-2810 of the 1976 Code is amended to read:
"Section 25-1-2810. A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.
Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense."
Record to be forwarded
SECTION 30. The 1976 Code is amended by adding:
"Section 25-1-2815. After a trial by court-martial the record must be forwarded to the convening authority, and action thereon may be taken by the person who convened the court, a commissioned officer commanding for the time being, a successor in command, or the person exercising general court-martial jurisdiction."
Record to be forwarded to state judge advocate
SECTION 31. Section 25-1-2820 of the 1976 Code is amended to read: "Section 25-1-2820. The adjutant general shall refer the record of each general court-martial to the state judge advocate, who shall submit his written opinion to the convening authority. If final action of the court has resulted in an acquittal of all charges and specifications, the opinion must be limited to questions of jurisdiction."
Reconsideration
SECTION 32. The 1976 Code is amended by adding:
"Section 25-1-2825. If a specification before a court-martial has been dismissed on motion and the ruling does not amount to a finding of not guilty, the convening authority may return the record to the court for reconsideration of the ruling and any further appropriate action.
Where there is an apparent error or omission in the record or where the record shows improper or inconsistent action by a court-martial with respect to a finding or sentence which can be rectified without material prejudice to the substantial rights of the accused, the convening authority may return the record to the court for appropriate action. In no case, however, may the record be returned:
(1) for reconsideration of a finding of not guilty of any specification, or a ruling which amounts to a finding of not guilty;
(2) for reconsideration of a finding of not guilty of any charge, unless the record shows a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation of some section of this code;
(3) for increasing the severity of the sentence unless the sentence prescribed for the offense is mandatory."
Rehearing
SECTION 33. Section 25-1-2830 of the 1976 Code is amended to read: "Section 25-1-2830. If the convening authority disapproves the findings and sentence of a court-martial, he may, except where there is lack of sufficient evidence in the record to support the findings, order a rehearing. In such a case he shall state the reasons for disapproval. If he disapproves the findings and sentence and does not order a rehearing, he shall dismiss the charges.
Each rehearing shall take place before a court-martial composed of members not members of the court-martial which first heard the case. Upon a rehearing the accused may not be tried for any offense of which he was found not guilty by the first court-martial, and no sentence in excess of or more severe than the original sentence may be imposed, unless the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings, or unless the sentence prescribed for the offense is mandatory."
Approval of findings
SECTION 34. The 1976 Code is amended by adding:
"Section 25-1-2835. In acting on the findings and sentence of a court-martial, the convening authority may approve only the findings of guilty and the sentence or the part or amount of the sentence, as he finds correct in law and fact and as he in his discretion determines must be approved. Unless he indicates otherwise, approval of the sentence is approval of the findings and sentence."
Action on case sent to Attorney General
SECTION 35. Section 25-1-2840 of the 1976 Code is amended to read: "Section 25-1-2840. When the convening authority has taken final action in a general court-martial case, he shall send the entire record, including his action thereon and the opinion of the state judge advocate, to the attorney general for review.
If the sentence of a special court-martial as approved by the convening authority includes a bad-conduct discharge, whether or not suspended, the record must be sent to the person exercising general court-martial jurisdiction. If the sentence as approved by the person exercising general court-martial jurisdiction includes a bad-conduct discharge, whether or not suspended, the record must be sent to the state judge advocate for review. The opinion of the state judge advocate must be given in writing within thirty days.
All other special and summary court-martial records must be reviewed by the state judge advocate or legal officer of appropriate component of the military forces. The opinion of the state judge advocate or legal officer must be given in writing within thirty days."
Appeal
SECTION 36. The 1976 Code is amended by adding:
"Section 25-1-2845. Appeal from a general court-martial or specialcourt-martial must be taken as if the case were tried by a court of General Sessions."
Appellate counsel
SECTION 37. Section 25-1-2850 of the 1976 Code is amended to read: "Section 25-1-2850. The National Guard shall not have the responsibility to provide appellate counsel for a defendant. Appellate counsel for a defendant tried by special or general court-martial must be provided under the same provisions as if the defendant were tried as a civilian in a state court. The Attorney General shall provide appellate counsel for the National Guard."
Sentence involving general officers
SECTION 38. The 1976 Code is amended by adding:
"Section 25-1-2855. No sentence involving a general officer or which includes unsuspended dismissal of a commissioned officer, or a dishonorable discharge, may be executed until affirmed on appeal, provided the defendant elects to appeal.
All other court-martial sentences, unless suspended or deferred, may be ordered executed by the convening authority when approved by him. The convening authority may suspend the execution of any sentence."
Vacation of a suspension
SECTION 39. Section 25-1-2860 of the 1976 Code is amended to read: "Section 25-1-2860. Before the vacation of the suspension of a special court-martial sentence which, as approved, includes a bad-conduct discharge, or of any general court-martial sentence, the officer having special court-martial jurisdiction over the probationer shall hold a hearing on the alleged violation of probation. The probationer must be represented at the hearing by counsel if he so desires.
The record of the hearing and the recommendation of the officer having special court-martial jurisdiction must be sent for action to the person exercising general court-martial jurisdiction over the probationer. If he vacates the suspension, any unexecuted part of the sentence must be executed, subject to applicable restrictions in Section 25-1-2855.
The suspension of any other sentence may be vacated by any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence."
Governor or convening authority may remit or suspend sentence
SECTION 40. The 1976 Code is amended by adding:
"Section 25-1-2865. The governor or a convening authority may remit or suspend any part of amount of the unexecuted part of any sentence, including all uncollected forfeitures.
The adjutant general may, for good cause, substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial."
Conditions under which sentence must be restored
SECTION 41. Section 25-1-2870 of the 1976 Code is amended to read: "Section 25-1-2870. Under such regulations as the governor or the adjutant general may prescribe, all rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved, except an executed dismissal or discharge, must be restored unless a new trial or rehearing is ordered and such executed part is included in a sentence imposed upon a new trial or rehearing."
Appellate review
SECTION 42. The 1976 Code is amended by adding:
"Section 25-1-2875. The appellate review of records of trial provided by this code, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by the code, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by the code are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States and the several states, subject only to action under Section 25-1-2865."
Principal
SECTION 43. Section 25-1-2880 of the 1976 Code is amended to read: Section 25-1-2880. Any person is a principal who is subject to the Code and who:
1. commits an offense punishable by the code, or aids, abets, counsels, commands, or procures its commission; or
2. causes an act to be done which if directly performed by him would be punishable by the code."
Person who assists etc offender must be punished as
court-martial may direct
SECTION 44. The 1976 Code is amended by adding:
"Section 25-1-2885. Any person subject to this code who, knowing that an offense punishable by the code has been committed, receives, comforts, or assists the offender in order to hinder or prevent his apprehension, trial, or punishment must be punished as a court-martial may direct."
Accused may be found guilty
SECTION 45. Section 25-1-2890 of the 1976 Code is amended to read: "Section 25-1-2890. An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included in the offense."
Specific intent
SECTION 46. The 1976 Code is amended by adding:
"Section 25-1-2895. An act, done with specific intent to commit an offense under this code, amounting to more than mere preparation and tending, even though failing to effect its commission, is an attempt to commit that offense.
Any person subject to this code who attempts to commit any offense punishable by the code must be punished as a court-martial may direct, unless otherwise specifically prescribed.
Any person subject to this code may be convicted of an attempt to commit an offense although it appears on the trial that the offense was not consummated."
Conspirators
SECTION 47. Section 25-1-2900 of the 1976 Code is amended to read: "Section 25-1-2900. Any person subject to this code who conspires with any other person to commit an offense under the code must, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct."
Solicits or advises persons to desert
SECTION 48. The 1976 Code is amended by adding:
"Section 25-1-2905. (1) Any person subject to this code who solicits or advises another or others to desert in violation of Section 25-1-2920 or mutiny in violation of Section 25-1-2960 must, if the offense solicited or advised is attempted or committed, be punished with the punishment provided for the commission of the offense, but if the offense solicited or advised is not committed or attempted, he must be punished as a court-martial may direct.
(2) Any person subject to this code who solicits or advises another or others to commit an act of sedition in violation of Section 25-1-2960 of the code must, if the offense solicited or advised is committed, be punished with the punishment provided for the commission of the offense, but, if the offense solicited or advised is not committed, he must be punished as a court-martial may direct."
Persons who may be punished by court-martial
SECTION 49. Section 25-1-2910 of the 1976 Code is amended to read: "Section 25-1-2910. Any person must be punished as a court-martial may direct who:
(1) procures his own enlistment or appointment in the military forces by knowingly false representation or deliberate concealment as to his qualifications for that enlistment or appointment and receives pay or allowances for the enlistment or appointment; or
(2) procures his own separation from the military forces by knowingly false representation or deliberate concealment as to his eligibility for that separation."
Further
SECTION 50. The 1976 Code is amended by adding:
"Section 25-1-2915. Any person subject to this code who effects an enlistment or appointment in, or a separation from, the state military forces of any person who is known to him to be ineligible for that enlistment, appointment, or separation because it is prohibited by law, regulation, or order must be punished as a court-martial may direct."
Desertion
SECTION 51. Section 25-1-2920 of the 1976 Code is amended to read: "Section 25-1-2920. (1) Any member of the military forces is guilty of desertion who:
(A) without authority, goes or remains absent from his unit, organization, or place of duty with intent to remain away permanently;
(B) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service;
(C) without being regularly separated from one of the armed forces of the United States, enlists or accepts an appointment in the military forces, without fully disclosing the fact that he has not been regularly separated.
(2) Any commissioned officer of the military forces who, after tender of his resignation and before notice of its acceptance, quits his post or proper duties without leave and with intent to remain away permanently is guilty of desertion.
(3) Any person found guilty of desertion or attempt to desert must be punished as a court-martial may direct."
Person must be punished by court-martial
SECTION 52. The 1976 Code is amended by adding:
"Section 25-1-2925. Any person, subject to this code must be punished as a court-martial may direct, if he, without authority:
(1) fails to go to his appointed place of duty at the time prescribed;
(2) goes from that place; or
(3) absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed."
Persons missing movement of unit
SECTION 53. Section 25-1-2930 of the 1976 Code is amended to read: "Section 25-1-2930. Any person subject to this code who, through neglect or design, misses the movement of a unit with which he is required, in the course of duty, to move must be punished as a court-martial may direct."
Persons who behave with disrespect
SECTION 54. The 1976 Code is amended by adding:
"Section 25-1-2935. Any person subject to this code who behaves with disrespect toward his superior commissioned officer must be punished as a court-martial may direct."
Persons must be punished by court-martial
SECTION 55. Section 25-1-2940 of the 1976 Code is amended to read: "Section 25-1-2940. Any person subject to this code must be punished as a court-martial may direct, if he:
(1) strikes his superior commissioned officer or draws or lifts up any weapon or offers any violence against him while he is in the execution of his office;
(2) wilfully disobeys a lawful command of his superior commissioned officer."
Warrant officer or enlisted member must be punished by
court-martial
SECTION 56. The 1976 Code is amended by adding:
"Section 25-1-2945. Any warrant officer or enlisted member must be punished as a court-martial may direct, if he:
(1) strikes or assaults a warrant officer or noncommissioned officer while that officer is in the execution of his office;
(2) wilfully disobeys the lawful order of a warrant officer or noncommissioned officer;
(3) treats with contempt, or is disrespectful in language or deportment toward, a warrant officer or noncommissioned officer while that officer is in the execution of his office."
Persons must be punished as court-martial may direct
SECTION 57. Section 25-1-2950 of the 1976 Code is amended to read: "Section 25-1-2950. Any person, subject to the code must be punished as a court-martial may direct, if he:
(1) violates or fails to obey any lawful general order or regulation;
(2) having knowledge of any other lawful order issued by a member of the military forces which it is his duty to obey, fails to obey the order;
(3) is derelict in the performance of his duties."
Further
SECTION 58. The 1976 Code is amended by adding:
"Section 25-1-2955. Any person subject to this code who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders must be punished as a court-martial may direct."
Further
SECTION 59. Section 25-1-2960 of the 1976 Code is amended to read: "Section 25-1-2960. (1) Any person subject to the code who:
(A) with intent to usurp or override lawful military authority refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance, is guilty of mutiny;
(B) with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority, is guilty of sedition; or
(C) fails to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior commissioned officer or commanding officer of a mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition.
(2) A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition must be punished as a court-martial may direct."
Persons resisting apprehension
SECTION 60. The 1976 Code is amended by adding:
"Section 25-1-2965. Any person subject to this code who resists apprehension or breaks arrest or who escapes from physical restraint lawfully imposed must be punished as a court-martial may direct."
Persons who release prisoners
SECTION 61. Section 25-1-2970 of the 1976 Code is amended to read: "Section 25-1-2970. Any person subject to the code who, without proper authority, releases any prisoner committed to his charge, or who through neglect or design suffers any prisoner to escape, must be punished as a court-martial may direct, whether or not the prisoner was committed in strict compliance with law."
Persons punishable by court-martial
SECTION 62. The 1976 Code is amended by adding:
"Section 25-1-2975. Any person subject to this code, who, except as provided by law or regulation, apprehends, arrests, or confines any person must be punished as a court-martial may direct."
Further
SECTION 63. Section 25-1-2980 of the 1976 Code is amended to read: "Section 25-1-2980. Any person, subject to this code must be punished as a court-martial may direct, if he:
(1) is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under the code;
(2) knowingly and intentionally fails to enforce or comply with any provision of this code regulating the proceedings before, during, or after trial of an accused."
Further
SECTION 64. The 1976 Code is amended by adding:
"Section 25-1-2985. Any person subject to this code, who in time of war discloses the parole or countersign to any person not entitled to receive it, or who gives to another who is entitled to receive and use the parole or countersign a different parole or countersign from that which, to his knowledge, he was authorized and required to give, must be punished as a court-martial may direct."
Further
SECTION 65. Section 25-1-2990 of the 1976 Code is amended to read: "Section 25-1-2990. Any person subject to this code who forces a safeguard must be punished as a court-martial may direct."
Persons to secure property from enemy
SECTION 66. The 1976 Code is amended by adding:
"Section 25-1-2995. (1) All persons subject to this code shall secure all public property taken from the enemy for the service of the State and shall give notice and turn over to the proper authority without delay all captured or abandoned property in their possession, custody, or control.
(2) Any person, subject to this code must be punished as a court-martial may direct, if he:
(A) fails to carry out the duties prescribed in subsection 1 of this section;
(B) buys, sells, trades, or in any way deals in or disposes of captured or abandoned property, whereby he receives or expects any profit, benefit, or advantage to himself or another directly or indirectly connected with himself;
(C) engages in looting or pillaging."
Persons must be punished as court-martial may direct
SECTION 67. Section 25-1-3000 of the 1976 Code is amended to read: "Section 25-1-3000. Any person subject to this code who with intent to deceive, signs any false record, return, regulation, order, or other official document, knowing it to be false, or makes any other false official statement knowing it to be false, must be punished as a court-martial may direct."
Further
SECTION 68. The 1976 Code is amended by adding:
"SECTION 25-1-3005. Any person subject to this code who, without proper authority:
(1) sells or otherwise disposes of;
(2) wilfully or through neglect damages, destroys, or loses; or
(3) wilfully or through neglect suffers to be damaged, destroyed, sold, or wrongfully disposed of; any military property of the United States or of the State must be punished as a court-martial may direct."
Further
SECTION 69. Section 25-1-3010 of the 1976 Code is amended to read: "Section 25-1-3010. Any person subject to this code who wilfully or recklessly wastes, spoils, or otherwise wilfully and wrongfully destroys or damages any property other than military property of the State must be punished as a court-martial may direct."
Further
SECTION 70. The 1976 Code is amended by adding:
"Section 25-1-3015. Any person subject to this code who operates any vehicle while under the influence of intoxicating liquors or any controlled substance, or in a reckless or wanton manner, must be punished as a court-martial may direct.
Any person subject to this code who negligently hazards, or allows to be hazarded, any vehicle of the military forces must be punished as a court-martial may direct."
Further
SECTION 71. Section 25-1-3020 of the 1976 Code is amended to read: "Section 25-1-3020. Any person subject to this code who is found under the influence of intoxicating liquors or any controlled substance on duty or sleeping upon his post, or who leaves his post before he is regularly relieved, must be punished as a court-martial may direct."
Further
SECTION 72. The 1976 Code is amended by adding:
"Section 25-1-3025. Any person, subject to this code must be punished as a court-martial may direct, if he, for the purpose of avoiding work, duty, or service in the military forces:
(1) feigns illness, physical disablement, mental lapse, or derangement;
(2) intentionally inflicts self-injury;
(3) hires or attempts to hire any other person to do his duty."
Further
SECTION 73. Section 25-1-3030 of the 1976 Code is amended to read: "Section 25-1-3030. Any person subject to this code who causes or participates in any riot or breach of the peace must be punished as a court-martial may direct."
Further
SECTION 74. The 1976 Code is amended by adding:
"Section 25-1-3035. Any person subject to this code who uses provoking or reproachful words or gestures toward any other person subject to the code must be punished as a court-martial may direct."
Further
SECTION 75. Section 25-1-3040 of the 1976 Code is amended to read: "Section 25-1-3040. Any person subject to this code who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or of any other person, any money, personal property, or article of value of any kind:
(1) with intent permanently to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, steals that property and is guilty of larceny;
(2) with intent temporarily to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, is guilty of wrongful appropriation.
Any person found guilty of larceny or wrongful appropriation must be punished as a court-martial may direct."
Further
SECTION 76. The 1976 Code is amended by adding:
"Section 25-1-3045. Any person subject to this code who, with intent to defraud:
(1) falsely makes or alters any signature to, any part of, any writing which would, if genuine, apparently impose a legal liability on another or change his legal right or liability to his prejudice;
(2) utters, offers, issues, or transfers such a writing, known by him to be made or altered is guilty of forgery and must be punished as a court-martial may direct."
Further
SECTION 77. Section 25-1-3050 of the 1976 Code is amended to read: "Section 25-1-3050. Any person subject to this code who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and must be punished as a court-martial may direct."
Further
SECTION 78. The 1976 Code is amended by adding:
"Section 25-1-3055. Any person subject to this code who, in a judicial proceeding or in a course of justice, conducted under the code, wilfully and corruptly gives, upon a lawful oath, any false testimony material to the issue or matter of inquiry is guilty of perjury and must be punished as a court-martial may direct."
Further
SECTION 79. Section 25-1-3060 of the 1976 Code is amended to read: "Section 25-1-3060. Any person, subject to this code must, upon conviction of the following, be punished as a court-martial may direct, if he:
(1) knowing it to be false or fraudulent:
(A) makes any claim against the United States, the State, or any officer of them;
(B) presents to any person in the civil or military service thereof, for approval or payment any claim against the State or any officer of it;
(2) for the purpose of obtaining the approval, allowance, or payment of any claim against the State or any officer of it:
(A) makes or uses any writing or other paper knowing it to contain any false or fraudulent statements;
(B) makes any oath to any fact or to any writing or other paper knowing the oath to be false;
(C) forges or counterfeits any signature upon any writing or other paper, or uses any such signature knowing it to be forged and counterfeited;
(3) having charge, possession, custody, or control of any money or other property of the State furnished or intended for the military forces, knowingly delivers to any person having authority to receive it, any amount thereof less than that for which he receives a certificate or receipt;
(4) being authorized to make or deliver any paper certifying the receipt of any property of the State furnished or intended for the military forces, makes or delivers to any person the writing without having full knowledge of the truth of the statements contained in it and with intent to defraud the State."
Further
SECTION 80. The 1976 Code is amended by adding:
"Section 25-1-3065. Any commissioned officer who is convicted of conduct unbecoming an officer and a gentleman must be punished as a court-martial may direct."
Disorders and neglects
SECTION 81. Section 25-1-3070 of the 1976 Code is amended to read: "Section 25-1-3070. Though not specifically mentioned in this code all disorders and neglects to the prejudice of good order and discipline in the military forces, of which persons subject to the code may be guilty, must be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and must be punished at the discretion of that court."
Statutory and common law specifically incorporated
SECTION 82. The 1976 Code is amended by adding:
"Section 25-1-3075. All statutory and common law criminal offenses in the State of South Carolina are specifically incorporated in this code by reference and made a part of the code so that the commission of such statutory or common law criminal offense shall subject the violator to court-martial and punishment as the court-martial shall direct."
Courts of inquiry to investigate
SECTION 83. Section 25-1-3080 of the 1976 Code is amended to read: "Section 25-1-3080. Courts of inquiry to investigate any matter of concern to the military forces may be convened by the governor or adjutant and general for that purpose, whether or not the persons involved have requested such an inquiry.
A court of inquiry consists of three or more commissioned officers. For each court of inquiry the convening authority shall also appoint counsel for the court.
Any person subject to this code whose conduct is subject to inquiry must be designated as a party. Any person subject to this code or employed by or for the military forces, who has a direct interest in the subject of inquiry has the right to be designated as a party upon request to the court. Any person designated as a party must be given due notice and has the right to be present, to be represented by counsel, to cross-examine witnesses, and to introduce evidence.
Members of a court of inquiry may be challenged by a party, but only for cause stated to the court.
The members, counsel, the reporter, and the interpreters of courts of inquiry shall take an oath to faithfully perform their duties.
Witnesses may be summoned to appear and testify and be examined before courts of inquiry, as provided for courts-martial.
Courts of inquiry shall make findings of fact but may not express opinions or make recommendations unless required to do so by the convening authority.
Each court of inquiry shall keep a record of its proceedings, which must be authenticated by the signatures of the president and counsel for the court and forwarded to the convening authority. If the record may not be authenticated by the president, it must be signed by a member in lieu of the president. If the record may not be authenticated by the counsel for the court, it must be signed by a member in lieu of the counsel."
Members of military forces may administer oaths
SECTION 84. The 1976 Code is amended by adding:
"Section 25-1-3085. The following members of the military forces may administer oaths for the purposes of military administration, including military justice, and affidavits may be taken for those purposes before persons having the general powers of a notary public:
(1) the state judge advocate;
(2) all summary courts-martial;
(3) all adjutants, assistant adjutants, acting adjutants, and personnel adjutants;
(4) all judge advocates and legal officers, and acting or assistant judge advocates and legal officers;
(5) the president, military judge, trial counsel, and assistant trial counsel for all general and special courts-martial;
(6) the president and the counsel for the court of any court of inquiry;
(7) all officers designated to take a deposition;
(8) all persons detailed to conduct an investigation;
(9) all commissioned officers;
(10) all other persons designated by law or by regulations of the governor.
The signature without seal of any person, together with the title of his office, is prima facie evidence of his authority."
Text of code to be made available
SECTION 85. Section 25-1-3090 of the 1976 Code is amended to read: "Section 25-1-3090. A complete text of the Code of Military Justice and of the regulations prescribed by the code must be made available to any member of the military forces, upon his request, for his personal examination."
Member may complain to next superior commissioned officer
SECTION 86. The 1976 Code is amended by adding:
"Section 25-1-3095. Any member of the military forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to his next superior commissioned officer, who shall forward the complaint to the adjutant general. The adjutant general shall examine the complaint and take proper measures for redressing the wrong within his discretion. The adjutant general shall have the final right of review and he may take such action as he considers necessary."
Board may be convening
SECTION 87. Section 25-1-3100 of the 1976 Code is amended to read: "Section 25-1-3100. Whenever complaint is made to any commanding officer that damage or loss of property has occurred, either negligently or intentionally, of the State or of an individual, he may, subject to such regulations as the adjutant general may prescribe, convene a board to investigate the complaint. The board shall consist of from one to three commissioned officers and, for the purpose of that investigation, it has power to summon witnesses and examine them upon oath, to receive depositions or other documentary evidence and to assess the damages sustained against the responsible parties. The assessment of damages made by the board is subject to the approval of the commanding officer, and in the amount approved by him must be charged against the pay of the offenders. The order of the commanding officer directing charges authorized by this section is conclusive, except as provided in the third paragraph of this section, on any disbursing officer for the payment by him to the injured parties of the damages so assessed and approved.
If the offenders may not be ascertained, but the organization or detachment to which they belong is known, charges totaling the amount of damages assessed and approved may be made in such proportion as may be considered just upon the individual members who are shown to have been present at the scene at the time the damages complained of were inflicted, as determined by the approved findings of the board.
Any person subject to this code who is accused of causing wilful damage to property has the right to be represented by counsel, to summon witnesses in his behalf and to cross-examine those appearing against him. Appeal may be taken only to the next higher authority who may approve or disapprove the findings or assess a smaller amount."
Members to serve at pleasure of adjutant general
SECTION 88. The 1976 Code is amended by adding:
"Section 25-1-3105. Members of the Military Forces shall serve at the pleasure of the adjutant general who may dismiss any member for good cause."
No action may be brought
SECTION 89. Section 25-1-3110 of the 1976 Code is amended to read: "Section 25-1-3110. No accused may bring an action or proceeding in any federal or state court against the convening authority or a member of a military court or board convened under this code or person acting under the authority of this code who shall attempt to discharge the authority granted in good faith."
Presidents of courts-martial etc may request aid of solicitor
SECTION 90. The 1976 Code is amended by adding:
"Section 25-1-3115. The presidents of courts-martial and summary court officers may request the aid of the solicitor of the judicial circuit in which the court is sitting for assistance in the issuance of any writ, warrant, subpoena or other process that is necessary. It is the duty of each solicitor, when called upon, to assist in the issuance of process, and the form must be that which is considered by the solicitor to be most appropriate to the situation and in keeping with the form of the process of the courts of general sessions.
Section 25-1-3120. The trial counsel of a general or special court-martial shall administer to the members of the court, before they proceed upon any trial, the following oath or affirmation: 'You, A. B., swear (or affirm) that you will well and truly try to determine, according to the evidence, the matter now before you between the State of South Carolina, and the person to be tried and that you will duly administer justice, without partiality, favor, or affection according to the provisions of the rules and articles for the government of the National Guard of South Carolina and if any doubt should arise, not explained by these articles, then according to your conscience, and the best of your understanding, do you further swear (or affirm) that you will not divulge the findings or sentence of the court until they shall be published by the proper authority, except to the trial counsel; neither will you disclose the vote or opinion of any particular member of the court-martial, unless required to give evidence thereof as a witness by a court of justice in due course of law. So help you God.'
Section 25-1-3125. When the oath or affirmation has been administered to the members of a general or special court-martial the president of the court shall administer to the trial counsel an oath in the following form: 'Do you, A. B., swear (or affirm) that you will not divulge the findings or sentence of the court to any but the proper authority until they shall be duly disclosed by the same. So help you God.' Every reporter of the proceedings of a court-martial shall, before entering upon his duties, make oath or affirmation in the following form: 'Do you swear (or affirm) that you will faithfully perform the duties of reporter to this court. So help you God.'
Section 25-1-3130. All persons who give evidence before a court-martial must be examined on oath or affirmation administered by the trial counsel in the following form: 'Do you swear (or affirm) that the evidence you shall give in the case now in hearing shall be the truth, the whole truth, and nothing but the truth. So help you God.' In case of affirmation the closing sentence of adjuration may be omitted.
Section 25-1-3135. Trial by court-martial of an accused does not act as a bar to indictment, trial, and punishment by the courts of general sessions for violation of any of the criminal laws of the State of South Carolina which the accused may have committed.
Section 25-1-3140. When a fine has been assessed by a court-martial against a member of the National Guard of South Carolina and the proceedings of the court have been passed upon by the reviewing authority, and such fine is unpaid, the president, in the case of a general or special court-martial, or the summary court officer, in the case of a summary court-martial, shall issue a writ in substantially the following form.
STATE OF SOUTH CAROLINA
COUNTY OF_____________
To any sheriff or constable in the State, Greetings:
Whereas,__________ of____________ in the county of__________ a member of the National Guard of South Carolina was on the______ day of______ A. D. 19____ tried and found guilty of______ in violation of___________ and was by court martial sentenced to pay a fine of $_______ or serve ______ days in jail.
Whereas, such fine has not been paid.
Now, Therefore, by authority of the State of South Carolina, you are hereby commanded to take the body of the said ________ and commit it to the keeper of the jail in the county of_______ within such jail, who is hereby commanded to receive the body of said__________ and keep him safely until he pays the sum above mentioned, or served________ days provided said fine due shall be reduced proportionately with the number of days served.
Fail not but service and return make within thirty days from this date.
Dated at______ in the county of___________ this_____ day of_____ ____ , 19 ____ .
Name__________ Rank ____________________ Organization_______
President of____________________ Court
National Guard of South Carolina
Section 25-1-3145. When a sentence of confinement has been imposed by a court-martial against a member of the National Guard of South Carolina and the sentence of the court has been passed upon by the reviewing authority, the president, in case of a general or special court-martial, or the summary court officer, in the case of a summary court-martial, shall issue a writ in substantially the following form:
STATE OF SOUTH CAROLINA
COUNTY OF______________
To any sheriff in the State, Greetings:
Whereas, ______ of __________ in the county of,_____ a member of the National Guard of South Carolina was on the ____ day of____ A. D. 19____tried and found guilty of____________ in violation of ____________ and was by court-martial sentenced to___________ .
Now, Therefore, by authority of the State of South Carolina, you are hereby commanded to take the body of said______ and commit it to the keeper of the jail in the county of______ within such jail, who is hereby commanded to receive the body of said________________ , and keep him safely until he serves said sentence.
Fail not but service and return make within thirty days from this date.
Dated at________ in the county of_______ this day of____ , 19__ .
Name______ Rank______ Organization_________
President of___________________ Court
National Guard of South Carolina
Section 25-1-3150. All costs and expenses involved in the proceedings of courts-martial and courts of inquiry must be paid by the Adjutant General out of the appropriate military funds of this State.
Section 25-1-3155. The governor or adjutant general may delegate any authority vested in him under this code and may provide for the subdelegation of the authority, except the power given the governor by Section 25-1-2580.
Section 25-1-3160. The Code of Military Justice must be so contrued as to effectuate its general purpose to make it uniform so far as practical with the Uniform Code of Military Justice, Chapter 47 of Title 10, United States Code and the Manual for Courts-Martial. The systems and procedures established in the Uniform Code of Military Justice for the governing of military forces, so far as applicable and not in conflict with any statute or regulation prescribed in this code, is considered in full force and regarded as a part of this chapter."
Repeal
SECTION 91. Sections 25-1-80, 25-1-140, 25-1-600, 25-1-1410, 25-1-1440, 25-1-1450, 25-1-1460, 25-1-1470, 25-1-1480, 25-1-1910, 25-1-2140, 25-1-2150, and 25-1-2210 of the 1976 Code are repealed.
Heading deleted
SECTION 92. Amend Chapter 1 of Title 25 by deleting the heading:
"Article 21
Military Tribunals".
Time effective
SECTION 93. This act shall take effect upon approval by the Governor.