HB412ENGROSSED
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HB412
ZC2EWRK-2
By Representative Almond
RFD: Judiciary
First Read: 04-Apr-24
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First Read: 04-Apr-24
A BILL
TO BE ENTITLED
AN ACT
Relating to the Alabama Code of Military Justice; to
amend Sections 31-2A-1, 31-2A-2, 31-2A-6, 31-2A-7, 31-2A-12,
31-2A-15, 31-2A-16, 31-2A-19, 31-2A-22, 31-2A-26, 31-2A-29,
31-2A-30, 31-2A-34, 31-2A-35, 31-2A-36, 31-2A-38, 31-2A-46,
31-2A-51, 31-2A-52, 31-2A-54, 31-2A-58b, 31-2A-66, 31-2A-73,
31-2A-130, and 31-2A-136, Code of Alabama 1975; to add Section
31-2A-26a to the Code of Alabama 1975; and to repeal Sections
31-2A-99, 31-2A-100, 31-2A-101, 31A-2A-102, 31-2A-104,
31-2A-105, 31-2A-110, 31-2A-112a, 31-2A-112b, 31-2A-114, and
31-2A-143, Code of Alabama 1975.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. Sections 31-2A-1, 31-2A-2, 31-2A-6, 31-2A-7,
31-2A-12, 31-2A-15, 31-2A-16, 31-2A-19, 31-2A-22, 31-2A-26,
31-2A-29, 31-2A-30, 31-2A-34, 31-2A-35, 31-2A-36, 31-2A-38,
31-2A-46, 31-2A-51, 31-2A-52, 31-2A-54, 31-2A-58b, 31-2A-66,
31-2A-73, 31-2A-130, and 31-2A-136, Code of Alabama 1975, are
amended to read as follows:
"§31-2A-1
For the purposes of this code, unless the context
otherwise requires, the following words have the following
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otherwise requires, the following words have the following
meanings:
(1) ACCUSER. A personAn individual who signs and swears
to charges, any personany individual who directs that charges
nominally be signed and sworn to by another, and any other
personindividual who has an interest other than an official
interest in the prosecution of the accused.
(2) CADET, or CANDIDATE, or MIDSHIPMAN. A personAn
individual who is enrolled in or attending a state military
academy, a regional training institute, or any other formal
education program for the purpose of becoming a commissioned
officer in the state military forces.
(3) CLASSIFIED INFORMATION. Information that meets all
of the following requirements:
a. Any information or material that has been determined
by an official of the United States , the State of Alabama, or
any state or territory pursuant to law, ana Presidential
Executive order, Governor's Executive order, or regulation to
require protection against unauthorized disclosure for reasons
of national or state security.
b. Any restricted data, as defined in Section 11(y) of
the Atomic Energy Act of 1954 ,(42 U.S.C. § 2014(y)).
(4) CLERK OF THE COURT. Includes all individuals
employed or assigned to serve in this position by a state
staff judge advocate to manage and maintain court records.
This individual may administer oaths for charges and warrants.
(4)(5) CODE. This chapter.
(5)(6) COMMANDING OFFICER. Includes only commissioned
officers of the state military forces and shall include
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officers of the state military forces and shall include
officers in charge only when administering nonjudicial
punishment under Section 31-2A-15 (Article 15). The term
"commander" has the same meaning as "commanding officer"
unless the context otherwise requires. A commander is any
general officer, the Adjutant General, or any other officer
who, by virtue of position, is designated as a commanding
officer.
(6)(7) CONVENING AUTHORITY. Includes, in addition to
the personindividual who convened the court, a commissioned
officer commanding for the time being or a successor in
command to the convening authority.
(7)(8) DAY. A calendar day, Unlessunless otherwise
specified with respect to forfeiture of pay ,; means calendar
day and the term is not synonymous with the term "unit
training assembly." Any punishment authorized by this code
which is measured in terms of days, shall when served in a
status other than annual field training, shall be construed to
mean succeeding duty days.
(8)(9) DUTY STATUS OTHER THAN STATE ACTIVE DUTY. Any
other type of duty not in federal service and not full-time
duty in the active service of the state; under an order issued
by authority of law and includes travel to and from such duty.
(9)(10) ENLISTED MEMBER. A person in an enlisted grade.
(10)(11) JUDGE ADVOCATE.
(a) A commissioned officer of the organized state
military forces who is a member in good standing of the bar of
the highest court of a state the State of Alabama , and who is
either of the following:
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either of the following:
a.1. Certifiedcertified or designated as a judge
advocate in the Judge Advocate General's Corps of the Army,
Air Force, Navy, or the Marine Corps , or designated as a law
specialist as an officer of the Coast Guard, or a reserve
component of one of these.
2. Certified as a non-federally recognized judge
advocate, under regulations promulgated pursuant to this code,
by the senior judge advocate of the commander of the force in
the state military forces of which the accused is a member, as
competent to perform such military justice duties required by
this code. If there is no such judge advocate available, then
such certification may be made by such senior judge advocate
of the commander of another force in the state military
forces, as the convening authority directs.
b.(b) In the instance when a judge advocate is detailed
under this code and is not a member of the bar of this state,
the judge advocate shall be deemed admitted pro hac vice,
subject to filing a certificate with the military judge
setting forth his or her qualifications, and with notice and
approval of the Alabama State Bar and Chief Justice of the
Alabama Supreme Court, that counsel the judge advocate is all
of the following:
1. A commissioned officer of the Armed Forces of the
United States or a component thereof.
2. A member in good standing of the bar of the highest
court of a state.
3. Meets the qualifications Qualifieddetailed in
accordance with paragraph asubsection (a).
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accordance with paragraph asubsection (a).
(11)(12) MILITARY COURT. A court-martial or a court of
inquiry.
(12)(13) MILITARY JUDGE. An official of a general or
special court-martial detailed in accordance with Section
Sections 31-2A-26 and 31-2A-26a (ArticleArticles 26 and 26a).
(13)(14) MILITARY OFFENSES. Those offenses prescribed
under Part X which are not also covered by federal or state
law.
(14)(15) NATIONAL SECURITY. The national defense and
foreign relations of the United States.
(15)(16) OFFICER. A commissioned or warrant officer.
(16) OFFICER IN CHARGE. A member of the naval militia,
the Navy, the Marine Corps, or the Coast Guard designated as
such by appropriate authority.
(17) RECORD. When used in connection with the
proceedings of a court-martial, means either of the following:
a. An official written transcript, written summary, or
other writing relating to the proceedings.
b. An official audiotape, videotape, digital image or
file, or similar material from which sound, or sound and
visual images, depicting the proceedings may be reproduced.
(18) RULES OF COURT. The applicable rules of court
shall be the Alabama Rules of Court, as applied in any state
or municipal court or appellate proceedings within the state.
(18)(19) SENIOR FORCE COMMANDER. The commander of the
same forceserviceofwithin the state military forces as the
accused, with courts-martial convening authority, as delegated
by the Adjutant General .
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by the Adjutant General .
(19) (20) SENIOR FORCEARMY OR AIR STAFF JUDGE ADVOCATE.
The senior State Staff judge advocateJudge Advocate, or
delegate,offor the commanderAdjutant General of the same
forceserviceofwithin the state military forces as the accused
and who is that commander's chief legal advisor .
(20)(21) STATE. The State of Alabama.
(22) STATES. One of the several states, the District of
Columbia, the Commonwealth of Puerto Rico, Guam, and the U.S.
Virgin Islands.
(21)(23) STATE ACTIVE DUTY. Full-time duty in the state
military forces under an order of the Governor or otherwise
issued by authority of law under Chapter 2 of this titleTitle
31 and paid in whole or in part by state funds, and includes
travel to and from such duty.
(22)(24) STATE MILITARY FORCES. The Alabama National
Guard, as defined in Title 32, United States Code, Section 271
of the Constitution of Alabama 1901of 2022, and Section
31-2-3. The unorganized militia, state defense force, state
national guard, home guard, or any other name of any state
force that does not meet this definition shall not be part of
the "state military forces" be under the jurisdiction and terms
of this code, as defined in Section 31-2-3 .
(23)(25) SUPERIOR COMMISSIONED OFFICER. A commissioned
officer superior in rank or command."
"§31-2A-2
(a) This code applies to all members of the state
military forces at all times and in all places , except it does
not apply to a member for any offenses committed while in a
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not apply to a member for any offenses committed while in a
duty status under Title 10 U.S.C .
(b) Subject matter jurisdiction is established if a
clear and convincing nexus exists between an offense, either
military or non-military, and the state military force. When a
member is in aany duty status (State Active Duty (SAD), T.32
and T.10)under either Title 32 U.S.C. or State Active Duty
then a rebuttable presumption exists that the nexus is
established. A proper civilian court has primary jurisdiction
of an offense when an act or omission violates both this code
and civilian criminal law, foreign or domestic. In such a
case, a court-martial may be initiated only after the civilian
prosecutorial authority has declined to prosecute or dismissed
the charge, provided jeopardy has not attached. Courts-martial
shall have primary jurisdiction over all military offenses
defined in this code. Jurisdiction over attempted crimes,
conspiracy crimes, solicitation, and accessory crimes must be
determined by the underlying offense. "
"§31-2A-6
(a) The senior force judge advocates in Alabama Army or
Air National Guard State Staff Judge Advocate of each branch
of service within of the state's military forces Alabama
National Guard or that judge advocate's State Staff Judge
Advocate's delegate or delegates shall make frequent
inspections in the field in supervision of the administration
of military justice infor that forcebranch of service .
(b) Convening authorities shall at all times
communicate directly with their judge advocates in matters
relating to the administration of military justice. The judge
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relating to the administration of military justice. The judge
advocate of any command is entitled to communicate directly
with the judge advocate of a superior or subordinate command,
or with the a State Staff Judge Advocate.
(c) No personindividual who has acted as member,
military judge, trial counsel, defense counsel, or
investigating officer, or who has been a witness, in any case
may later act as a judge advocate providing legal advice to
anythe reviewing authority uponconcerning the same case."
"§31-2A-7
(a) Apprehension is the taking of a personan individual
into custody.
(b) Any personindividual authorized by this code or by
Chapter 47 of Title 10, U.S.C., or by regulationsregulation
issued under either, to apprehend persons subject to this
code, any marshal of a court-martial appointed pursuant to the
provisions of this code, and any peace officer or civil
officer having authority to apprehend offenders under the laws
of the United States or of a statethe State of Alabama , may do
so upon probable cause that an offense has been committed and
that the person apprehended committed it.
(c) Commissioned officers, warrant officers, petty
officers, and noncommissioned officers have authority to quell
quarrels, frays, and disorders among personsindividuals
subject to this code and to apprehend personsindividuals
subject to this code who take part therein.
(d) If an offender is apprehended outside the
stateState of Alabama , the offender's return to the area must
be in accordance with normal extradition procedures or by
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be in accordance with normal extradition procedures or by
reciprocal agreement , unless it is solely a military offense .
(e) No personindividual authorized by this article to
apprehend personsindividuals subject to this code or the place
where such offender is confined, restrained, held, or
otherwise housed may require payment of any fee or charge for
so receiving, apprehending, confining, restraining, holding,
or otherwise housing a personan individual except as otherwise
provided by Section 31-2-106."
"§31-2A-12
No member of the Alabama National Guard may be placed
in confinement in immediate association with enemy prisoners
or other foreign nationals not members of the Armed Forces.
This section does not preclude an Alabama National Guard
service member from being confined in a state, county, or
municipal jail or detention facility that may also house
illegal immigrants, immigrants, or foreign nationals within
the same facility or holding cell. "
"§31-2A-15
(a) Under such regulations as prescribed, any
commanding officer may impose disciplinary punishments for
minor offenses without the intervention of a court-martial
pursuant to this article. The Governor, the Adjutant General,
or an officer orin a general or flag rank in command may
delegate the powers under this article to a principal
assistant who is a member of the Alabama National Guard.
(b) For the purposes of this article, the term "day"
shall mean the following:
(1) For the purposes of pay, one day shall equal one
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(1) For the purposes of pay, one day shall equal one
active duty military payday.
(2) For all other purposes, one day shall equal one
calendar day.
(c) For the purposes of this partsection, all members
must be in military status when punishment is imposed.
(d) Any commanding officer serving as a brigade
commander (Army) or wing/group/base or the commander of a
geographically separated unit (Air) may impose upon enlisted
members of the officer's command any of the following:
(1) An admonition.
(2) A reprimand.
(3) The withholding of privileges for up to six
consecutive months.
(4) The forfeiture of pay of up to eight12 days' pay.
(5) A reduction to the next inferior pay grade , if the
grade from which demoted is within the promotion authority of
the commander imposing the reduction of an enlisted member who
is E-6 and below .
(6) Extra duties, including fatigue or other duties,
for up to eight days, which need not be consecutive.
(7) Restriction to certain specified limits, with or
without suspension from duty, for not more than eight14 days,
which need not be consecutive.
(e) Any commanding officer of the grade of major or
lieutenant commander, or above may impose upon enlisted
members of the officer’s command any of the following:
(1) Any punishment authorized in subdivisions (1), (2),
and (3) of subsection (d).
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and (3) of subsection (d).
(2) The forfeiture of pay of up to 12 days' pay.
(3) A reduction to the lowest or any intermediate pay
grade, if the grade from which demoted is within the promotion
authority of the commanding officer imposing the reduction,
but an enlisted member in a pay grade above E-4 may not be
reduced more than two pay grades.
(4) Extra duties, including fatigue or other duties,
for not more than 14 days which need not be consecutive.
(5) Restriction to certain specified limits, with or
without suspension from duty, for not more than 14 days which
need not be consecutive.
(f)(e) The Governor, the Adjutant General, an officer
exercising general court-martial convening authority, or an
officer of a general or flag rank in command may impose both
of the following:
(1) Upon officers of the officer's command, any
punishment authorized in subdivisions (1), (2), (3),(1) - (4),
(6), and (5)(7) of subsection (e)(d).
(2) Upon enlisted members of the officer's command, any
punishment authorized in subsection (d).
(g)(f) Whenever any of those punishments are combined
to run consecutively, the total length of the combined
punishment cannot exceed the authorized duration of the
longest punishment in the combination, and there must be an
apportionment of punishments so that no single punishment in
the combination exceeds its authorized length under this
article.
(h)(g) Prior to the offer of non-judicial punishment,
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(h)(g) Prior to the offer of non-judicial punishment,
the commanding officer shall determine whether restriction
shall be considered as a punishment. Should the commanding
officer determine that the punishment option may include
restriction,The determination of whether restriction is a
punishment option does not prohibit the accused shall be
notified of the from requesting his or her right to demand
trial by special court-martial. Should the commanding officer
determine that the punishment option will not include
restriction, the accused shall be notified that there is no
right to trial by court-martial in lieu of non-judicial
punishment.
(i)(h) The officer who imposes the punishment, or the
successor in command, at any time, may suspend, set aside,
mitigate, or remit any part or amount of the punishment and
restore all rights, privileges, and property affected. The
officer also may do either of the following:
(1) Mitigate reduction in grade to forfeiture of pay.
(2) Mitigate extra duties to restriction.
The mitigated punishment shall not be for a greater
period than the punishment mitigated. When mitigating
reduction in grade to forfeiture of pay, the amount of the
forfeiture shall not be greater than the amount that could
have been imposed initially under this article by the officer
who imposed the punishment mitigated.
(j)(i)A personAn individual punished under this
article who considers the punishment unjust or
disproportionate to the offense, through the proper channel,
may appeal to the next superior authority within 4530 days
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may appeal to the next superior authority within 4530 days
after the punishment is either announced or sent to the
accused, as the commander may determine. The appeal shall be
promptly forwarded and decided. During the pendency of the
appeal, the punishment shall not be implemented. The superior
authority may exercise the same powers with respect to the
punishment imposed as may be exercised under subsection (i)(h)
by the officer who imposed the punishment. Before acting on an
appeal from a punishment, the authority that is to act on the
appeal may refer the case to a judge advocate for
consideration and advice.
(k)(j) The imposition and enforcement of disciplinary
punishment under this article for any act or omission is not a
bar to trial by court-martial or a civilian court of competent
jurisdiction for a serious crime or offense growing out of the
same act or omission and not properly punishable under this
article; however, the fact that a disciplinary punishment has
been enforced may be shown by the accused upon trial and, when
so shown, it shall be considered in determining the measure of
punishment to be adjudged in the event of a finding of guilty.
(l)(k) Whenever a punishment of forfeiture of pay is
imposed under this article, the forfeiture may apply to pay
accruing before, on, or after the date that punishment is
imposed.
(m)(l) Regulations may prescribe the form of records to
be kept of proceedings under this article and may require that
certain categories of those proceedings be in writing.
(n)(m) The accused shall be informed of the location of
and right to consult counsel with regard to any non-judicial
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and right to consult counsel with regard to any non-judicial
punishment. The Commander shall ensure the memberaccused is
given appropriate means to contact counsel."
"§31-2A-16
The three kinds of courts-martial in the state military
forces are:
(1) General courts-martial, consisting of either of the
following:
a. A military judge and not less than five members.
b. Only a military judge, if before the court is
assembled the accused, knowing the identity of the military
judge and after consultation with defense counsel, requests
orally on the record or in writing a court composed only of a
military judge and the military judge approves.
(2) Special courts-martial, consisting of either of the
following:
a. A military judge and not less than three
membersalone.
b. Only aThe military judge, if one has been shall be
detailed to the court , and the accused under the same
conditions as those prescribed in paragraph b. of subdivision
(1) so requests by the State Staff Judge Advocate of either
the Alabama Army or Air National Guard .
c. The military judge may hear cases arising from any
service or branch within the state military forces.
(3) Summary courts-martial, consisting of one
commissioned officer."
"§31-2A-19
Subject to Section 31-2A-17 (Article 17), special
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Subject to Section 31-2A-17 (Article 17), special
courts-martial have jurisdiction to try personsindividuals
subject to this code for any offensemilitary-specific offenses
made punishable by this code, and under such limitations as
the Governor may prescribe, may adjudge any punishment not
forbidden by this code except dishonorable discharge,
dismissal, confinement for more than six months, or forfeiture
of pay exceeding 24 days ., which must be completed within one
year Additional punishments under this section include
reduction of soldiers or airmen in the rank of E-6 and below
to the rank of E-1. Soldiers or airmen in the rank of E-7
through E-9 can be reduced to the rank of E-4. Officers may be
reduced in rank to the highest rank where the officer last
served honorably before the underlying offense occurred ."
"§31-2A-22
(a) General courts-martial may be convened by any one
of the following:
(1) The Governor.
(2) The Adjutant General.
(3) AAny General Officer who is designated as a
commanderserving in the Alabama Army or Air National Guard .
(b) If any such commanding officer is an accuser, the
court shall be convened by superior competent authority and
may in any case be convened by suchthe superior authority if
considered desirable by the authority."
"§31-2A-26
(a) A military judge shall be detailed to each general
and special court-martial. The military judge shall preside
over each open session of the court-martial to which the
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over each open session of the court-martial to which the
military judge has been detailed.
(b) A military judge shall be all of the following:
(1) An active or retired commissioned officer.
(2) A member in good standing of the bar of the highest
court of a state or a member of the bar of a federal court for
at least five years.
(3) Either a certified military judge or a judge of a
court of competent jurisdiction who is approved by the
Adjutant General.
(c) In the instance when a military judge is not a
member of the bar of the highest court of the state, the
military judge shall be deemed admitted pro hac vice, subject
to filing a certificate with the state judge advocate setting
forth such qualifications provided in subsection (b) and with
notice and approval of the State Bar and Chief Justice of the
Alabama Supreme Court.
(d) The military judge of a general or special
court-martial shall be designated by the state judge advocate,
or a designee, for detail by the convening authority. Neither
the convening authority nor any staff member of the convening
authority shall prepare or review any report concerning the
effectiveness, fitness, or efficiency of the military judge
sowho is detailed, which relates to performance of duty as a
military judge.
(e) No person individual is eligible to act as military
judge in a case if that person individual is the accuser or a
witness, or has acted as investigating officer or a counsel in
the same case.
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the same case.
(f) The military judge of a court-martial may not
consult with the members of the court except in the presence
of the accused, trial counsel, and defense counsel nor vote
with the members of the court."
"§31-2A-29
(a) 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 unless excused as a result of a
challenge, excused by the military judge for physical
disability or other good cause, or excused by order of the
convening authority for good cause.
(b) 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 the applicable minimum number
of 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.
(c) If the military judge of a general court-martial is
unable to proceed with the trial as a result of a challenge,
because of physical disability, or for other good cause, trial
shall proceed, subject to any applicable conditions of Section
31-2A-16(1)b. (Article 16(1)b.), after the detail of a new
military judge as if no evidence had previously been
introduced, unless a verbatim record of the evidence
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introduced, unless a verbatim record of the evidence
previously introduced or a stipulation thereof is read in
court in the presence of the new military judge, the accused,
and counsel for both sides.
(c) Whenever a special court-martial, other than a
special court-martial composed of a military judge only, is
reduced below three members, the trial may not proceed unless
the convening authority details new members sufficient in
number to provide not less than three members. The trial shall
proceed with the new members present as if no evidence had
been introduced previously 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, the accused, and
counsel for both sides.
(d) If the military judge of a special court-martial
composed of a military judge only is unable to proceed with
the trial as a result of a challenge, 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 Section 31-2A-16(1)b. or (2)b. (Article 16(1)b.
or (2)b.)Section 31-2A-16(2)b. and c. (Article 16(2)b. and
c.), after the detail of a new military judge as if no
evidence had previously been introduced, unless a verbatim
record of the evidence previously introduced or a stipulation
thereof is read in court in the presence of the new military
judge, the accused, and counsel for both sides."
"§31-2A-30
(a) Charges and specifications shall be signed by a
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(a) Charges and specifications shall be signed by a
personan individual subject to this code under oath before
either a commissioned officer or the clerk of the court as
authorized by Section 31-2A-136(a) (Article 136(a)) to
administer oaths and shall state both of the following:
(1) That theThe signer has personal knowledge of, or
has investigated, the matters set forth therein.
(2) That theThe charges and specifications are true in
fact to the best of the signer's knowledge and belief.
(b) Upon the preferring of charges, the proper
authority shall take immediate steps to determine what
disposition should be made thereof in the interest of justice
and discipline, and the person accused shall be informed of
the charges as soon as practicable."
"§31-2A-34
(a) Before directing the trial of any charge by general
or special court-martial, the convening authority shall refer
it to a judge advocate for consideration and advice. The
convening authority may refer a specification under a charge
to a special court-martial after advice from the servicing
judge advocate. This advice of counsel to the convening
authority can be either in writing or verbal.
(b) The convening authority may not refer a
specification under a charge to a general or special
court-martial for trial unless the convening authority has
been advised in writing by a judge advocate of all of the
following:
(1) The specification alleges an offense under this
code.
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code.
(2) The specification is warranted by the evidence
indicated in the report of investigation under Section
31-2A-32 (Article 32), if there is such a report.
(3) A court-martial would have jurisdiction over the
accused and the offense.
(b)(c) The advice of the judge advocate under
subsection subsections (a) and (b) with respect to a
specification under a charge shall include a written and
signed statement by the judge advocate containing both of the
following:
(1) Conclusions with respect to each matter set forth
in subsection subsections (a) and (b).
(2) Recommended action that the convening authority
should take regarding the specification. If the specification
is referred for trial, the recommendation of the judge
advocate shall accompany the specification.
(c)(d) If the charges or specifications are not correct
formally or do not conform to the substance of the evidence
contained in the report of the investigating officer, formal
corrections, and such changes in the charges and
specifications as are needed to make them conform to the
evidence, may be made."
"§31-2A-35
The trial counsel shall serve or caused cause to be
served upon the accused a copy of the charges. No
personindvidual, against the person'sindividual's objection,
may be brought to trial before a general court-martial case
within a period of 45 days after the service of charges upon
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within a period of 45 days after the service of charges upon
the accused, or in a special court-martial, within a period of
4530 days after the service of charges upon the accused."
"§31-2A-36
Pretrial, trial, and post-trial procedures, including
modes of proof, for court-martial cases arising under this
code, and for courts of inquiry, may be prescribed by the
Governor or the Adjutant General by rules, or as otherwise
provided by law, which shall apply the principles of law and
the rules of court under the State of Alabama, to include: (i)
the Alabama Rules of Evidence; (ii) Alabama Rules of Criminal
Procedure; (iii) Alabama Rules of Juvenile Procedure; and (iv)
Alabama Rules of Appellate Procedure evidence generally
recognized in military criminal cases in the courts of the
Armed Forces but which may not be contrary to or inconsistent
with this code."
"§31-2A-38
(a) The trial counsel of a general or special
court-martial shall prosecute in the name of the state, and,
under the direction of the court, shall prepare the record of
the proceedings.
(b)(1) The accused has the right to be represented in
defense before a general or special court-martial or at an
investigation under Section 31-2A-32 (Article 32) as provided
in this subsection.
(2) The accused may be represented by civilian counsel
at the provision and expense of the accused.
(3) The accused may be represented by either of the
following:
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following:
a. By militaryMilitary counsel detailed under Section
31-2A-27 (Article 27).
b. By militaryMilitary counsel of the accused's own
selection if that counsel is reasonably available as
determined under subdivision (7).
(4) If the accused is represented by civilian counsel,
military counsel detailed or selected under subdivision (3)
shall act as associate counsel unless excused at the request
of the accused.
(5) Except as provided under subdivision (6), if the
accused is represented by military counsel of his or her own
selection under paragraph (3)b., any military counsel detailed
under paragraph (3)a. shall be excused.
(6) The accused is not entitled to be represented by
more than one military counsel. However, the personindividual
authorized under rules prescribed under Section 31-2A-27
(Article 27) to detail counsel, in that person'sindividual's
sole discretion:
a. May detail additional military counsel as assistant
defense counsel.
b. If the accused is represented by military counsel of
the accused's own selection under paragraph (3)b., may approve
a request from the accused that military counsel detailed
under paragraph (3)a. act as associate defense counsel.
(7) The senior force judge advocate State Staff Judge
Advocate of the same force of which the accused is a member ,
shall determine whether the military counsel selected by an
accused is reasonably available.
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accused is reasonably available.
(c) In any court-martial proceeding resulting in a
conviction, the defense counsel may do any of the following:
(1) Forward for attachment to the record of proceedings
a brief of such matters as counsel determines should be
considered in behalf of the accused on review, including any
objection to the contents of the record which counsel
considers appropriate.
(2) Assist the accused in the submission of any matter
under Section 31-2A-60 (Article 60).
(3) Take other action authorized by this code."
"§31-2A-46
The trial counsel, the defense counsel, and the
court-martial shall have equal opportunity to obtain witnesses
and other evidence as prescribed by regulations and provided
by law. Process issued in court-martial cases to compel
witnesses to appear and testify and to compel the production
of other evidence shall apply the principles of law and the
rules of courts-martial generally recognized in military
criminal cases in the courts of the Armed Forces of the United
States, but which may not be contrary to or inconsistent with
this codeAlabama Rules of Criminal Procedure . Process shall
run to any part of the United States, or the territories,
commonwealths, and possessions, and may be executed by civil
officers as prescribed by the laws of the place where the
witness or evidence is located or outside of the United
StatesState of Alabama . A court-martial convened under this
code may subpoena and compel the presence of witnesses and the
production of documents in the same manner as a circuit court
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production of documents in the same manner as a circuit court
in a criminal case. Such subpoena, however, shall be signed
and issued by the assigned military judge and shall comply
with the requirements of Chapter 21 of Title 12. Any reference
therein to the issuance of process by a clerk of court shall
not apply in a court-martial proceeding. "
"§31-2A-51
(a) Voting by members of a general or special
court-martial on the findings and on the sentence shall be by
secret written ballot. The junior member of the court shall
count the votes. The count shall be checked by the president,
who shall forthwith announce the result of the ballot to the
members of the court.
(b) The military judge shall rule upon all questions of
law and all interlocutory questions arising during the
proceedings. Any such ruling made by the military judge upon
any question of law or any interlocutory question other than
the factual issue of mental responsibility of the accused is
final and constitutes the ruling of the court. However, the
military judge may change the ruling at any time during the
trial. Unless the ruling is final, if any member objects
thereto, the court shall be cleared and closed and the
question decided by a voice vote as provided in Section
31-2A-52 (Article 52), beginning with the junior in rank.
(c) Before a vote is taken on the findings, the
military judge, in the presence of the accused and counsel,
shall instruct the members of the court as to the elements of
the offense and charge them with all of the following:
(1) The accused must be presumed to be innocent until
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(1) The accused must be presumed to be innocent until
his or her guilt is established by legal and competent
evidence beyond reasonable doubt.
(2) In the case being considered, if there is a
reasonable doubt as to the guilt of the accused, the doubt
must be resolved in favor of the accused and the accused must
be acquitted.
(3) 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.
(4) The burden of proof to establish the guilt of the
accused beyond reasonable doubt is upon the state.
(d) Subsections (a), (b), and (c) do not apply to a
court-martial composed of a military judge only. The military
judge of such a court-martial shall determine all questions of
law and fact arising during the proceedings and, if the
accused is convicted, adjudge an appropriate sentence. The
military judge of such a court-martial shall make a general
finding, and in addition, on request, shall find the facts
specially. If an opinion or memorandum of decision is filed,
it will be sufficient if the findings of fact appear therein."
"§31-2A-52
(a) No person may be convicted of an offense except as
provided in Section 31-2A-45(b) (Article 45(b)) or by the
concurrence of two-thirds of the members present at the time
the vote is taken.
(b) All other questions to be decided by the members of
a general or special court-martial shall be determined by a
majority vote, but a determination to reconsider a finding of
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majority vote, but a determination to reconsider a finding of
guilty or to reconsider a sentence, with a view toward
decreasing it, may be made by any lesser vote which indicates
that the reconsideration is not opposed by the number of votes
required for that finding or sentence. A tie vote on a
challenge disqualifies the member challenged. A tie vote on a
motion 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.
(c) Pursuant to its authority under Article XV, Section
271 of the Constitution of Alabama of 19012022, the
Legislature finds and declares that Article I, Section 11 of
the Constitution of Alabama of 19012022, does not apply to a
court-martial proceeding. Courts-martial existed before the
existence of the Constitution constitution, and their
existence is recognized in the Constitution constitution.
Further, courts-martial are an executive agency belonging to
the executive branch, not the judicial branch, and were
created by the Legislature pursuant to its authority under
Article XV, Section 271, to provide for disciplining the
militia."
"§31-2A-54
(a) Each general and special court-martial shall keep a
separate record of the proceedings in each case brought before
it, and the record shall be authenticated by the signature of
the military judge. If the record cannot be authenticated by
the military judge by reason of his or her death, disability,
or absence, it shall be authenticated by the signature of the
trial counsel or by that of a member, if the trial counsel is
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trial counsel or by that of a member, if the trial counsel is
unable to authenticate it by reason of his or her death,
disability, or absence. In a court-martial consisting of only
a military judge, the record shall be authenticated by the
court reporter under the same conditions which would impose
such a duty on a member under this subsection.
(b)(1) A complete verbatim record of the proceedings
and testimony shall be prepared in each general and special
court-martial case resulting in a conviction.
(2) In all other court-martial cases, the record shall
contain such matters as may be prescribed by regulations.
(c) Each summary court-martial shall keep a separate
record of the proceedings in each case, and the record shall
be authenticated in the manner as may be prescribed by
regulations.
(d) A copy of the record of the proceedings of each
general and special court-martial shall be given to the
accused as soon as it is authenticated and once the accused
provides timely notice of appeal ."
"§31-2A-58b
(a)(1) A court-martial sentence described in
subdivision (2) shall result in the forfeiture of pay, or of
pay and allowances, due that member during any period of
confinement or parole. The forfeiture pursuant to this article
shall take effect on the date determined under Section
31-2A-57(a) (Article 57(a)) and may be deferred as provided by
that article. The pay and allowances forfeited, in the case of
a general court-martial, shall be all pay and allowances due
that member during such period and, in the case of a special
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that member during such period and, in the case of a special
court-martial, shall be two-thirds of all pay due that member
during such period.
(2) A sentence covered by this article is any sentence
that includes either of the following:
a. Confinement for more than six months .
b. Confinement for six months or less and a bad-conduct
discharge or dismissal confinement for any period of time .
(b) In a case involving an accused who has dependents,
the convening authority or other person acting under Section
31-2A-60 (Article 60) may waive any or all of the forfeitures
of pay and allowances required by subsection (a) for a period
not to exceed six months. Any amount of pay or allowances
that, except for a waiver under this subsection, would be
forfeited shall be paid, as the convening authority or other
person taking action directs, to the dependents of the
accused.
(c) If the sentence of a member who forfeits pay and
allowances under subsection (a) is set aside or disapproved
or, as finally approved, does not provide for a punishment
referred to in subdivision (a)(2), the member shall be paid
the pay and allowances which the member would have been paid,
except for the forfeiture, for the period during which the
forfeiture was in effect."
"§31-2A-66
The Governor shall establish a Military Court-Martial
Review Panel which shall be composed of one or more panels,
and each such panel shall be composed of not less than three
appellate military judges. The military judges selected for
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appellate military judges. The military judges selected for
the Military Court-Martial Review Panel shall be active ,or
retired, or an individual who served for a minimum of eight
years as a judge advocatesadvocateof the Department of
Defense of the United States within the Alabama Army or Air
National Guard. Further composition and selection of judges
for the panel shall be established by regulation pursuant to
Sections 131 and 271 of the Official Recompilation of the
Constitution of Alabama of 19012022, as amended. For the
purpose of reviewing courts-martial cases, the body may sit in
panels or as a whole in accordance with the rules prescribed
by the Governor. All appeals of decisions of courts-martial
shall proceed directly to the Military Court-Martial Review
Panel."
"§31-2A-73
(a) At any time within two years30 days after notice of
approval by the convening authority of a court-martial
sentence, the accused may petition the Adjutant General for a
new trial on the grounds of newly discovered evidence or fraud
on the court-martial.
(b) At any time within 4530 days of discovery of fraud
on the court-martial or newly discovered evidence or fraud on
the court-martial , the accused may petition for a new trial
with the Military Court-Martial Review Panel. In the event the
accused's case is pending before the Alabama Supreme Court,
the appeal shall be stayed until the Military Court-Martial
Review Panel rules on the petition."
"§31-2A-130
Any personindividual subject to this code is guilty of
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Any personindividual subject to this code is guilty of
criminal trespass and shall be punished as a court-martial may
direct if he or she is convicted of either of the following:
(1) who unlawfully enters Knowingly enters or remains
unlawfully in a the building or upon real property which is
fenced or enclosed in a manner designed to exclude intruders.
(2) structure of another with intent to commit a
criminal offense therein is guilty of housebreaking and shall
be punished as a court-martial may direct Knowingly enters or
remains unlawfully in or on a premises ."
"§31-2A-136
(a) The following persons may administer oaths for the
purposes of military administration, including military
justice:
(1) All judge advocates.
(2) All summary courts-martial.
(3) All adjutants, assistant adjutants, acting
adjutants, and personnel adjutants.
(4) All other persons designated by regulations of the
Armed Forces of the United States or by statute.
(b) The following persons may administer oaths
necessary in the performance of their duties:
(1) The president President of the United States ,
military judge, and trial counsel, and the clerk of court for
all general and special courts-martial.
(2) The president and the counsel for the court of any
court of inquiry.
(3) All officers designated to take a deposition.
(4) All persons individuals detailed to conduct an
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(4) All persons individuals detailed to conduct an
investigation.
(5) All recruiting officers.
(6) All other persons individuals designated by
regulations of the Armed Forces of the United States or by
statute.
(c) The signature without seal of any such person
listed in subsection (a) or (b) , together with the title of
his or her office, is prima facie evidence of the person's
authority."
Section 2. Section 31-2A-26a is added to the Code of
Alabama 1975, as follows:
§31-2A-26a
(a) A military judge shall be detailed to each special
court-martial. The military judge shall preside over each open
session of the special court-martial to which the military
judge has been detailed.
(b) A military judge shall be both of the following:
(1) A judge advocate who is a member in good standing
of the Alabama National Guard.
(2) A member in good standing of the State Bar of
Alabama for at least five years.
(c) The military judge of a special court-martial shall
be designated by a state staff judge advocate, or a designee,
for detail by the convening authority. Neither the convening
authority nor any staff member of the convening authority
shall prepare or review any report concerning the
effectiveness, fitness, or efficiency of the military judge
who is detailed, which relates to performance of duty as a
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who is detailed, which relates to performance of duty as a
military judge.
(d) No individual is eligible to act as military judge
in a case if that individual is the accuser or a witness, or
has acted as investigating officer or a counsel in the same
case.
(e) The military judge of a special court-martial may
not consult or communicate with any party, or party's
representative, regarding a matter before them except in the
presence of the accused, or defense counsel and trial counsel.
Section 3. Sections 31-2A-99, 31-2A-100, 31-2A-101,
31A-2A-102, 31-2A-104, 31-2A-105, 31-2A-110, 31-2A-112a,
31-2A-112b, 31-2A-114, and 31-2A-143, Code of Alabama 1975,
are repealed.
Section 4. This act shall become effective on October
1, 2024.
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1, 2024.
House of Representatives
Read for the first time and referred
to the House of Representatives
committee on Judiciary
................04-Apr-24
Read for the second time and placed
on the calendar:
1 amendment
................11-Apr-24
Read for the third time and passed
as amended
................16-Apr-24
Yeas 102
Nays 0
Abstains 0
John Treadwell
Clerk
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