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STATE OF OKLAHOMA
1st Session of the 58th Legislature (2021)
SENATE BILL 289 By: Simpson
AS INTRODUCED
An Act relating to the Oklahoma Uniform Code of
Military Justice; amending Sections 5, 21, 53, 55 and
82, Chapter 408, O.S.L. 2019 (44 O .S. Supp. 2020,
Sections 801, 815, 846, 848 and 867 ), which relate to
definitions, nonjudicial punishment, and trial and
posttrial procedure; defining term; establishing
requirements for mitigation of punishments;
establishing qualifications for military magistrates;
authorizing appointment of military magistrate for
appellate remand; clarifying duties of a military
magistrate; authorizing certain proceedings prior to
referral of charges; requiring promulgation of
certain regulations by Adjutant General; modifying
authority to issue certain subpoenas or warrants;
authorizing military magistrate to punish for
contempt; clarifying applicability of parole system;
providing for applicability of certain criminal
procedure statutes; providing for codification; and
declaring an emergency.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY Section 5, Chapter 408, O.S.L.
2019 (44 O.S. Supp. 2020, Section 801), is amended to read as
follows:
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Section 801. ARTICLE 1. Definitions. A. As used in the
Oklahoma Uniform Code of Military Justice, unless the context
otherwise requires:
1. “Accuser” means a person who signs and swears to cha rges,
any person who directs that charges nominally be signed and sworn t o
by another, and any other person who has an interest other than an
official interest in the prosecution of the accused;
2. “Adjutant General” means the commander and most senior
military officer of the Oklahoma National Guard appointed by the
Governor with the advice and consent of the Senate. The Adjutant
General exercises command and control over the Oklahoma National
Guard when it is not activated for federal duty under Title 10 of
the United States Code. The Adjutant General serves as the
executive and administrative head of the Military Department of the
State of Oklahoma as provided for in Section 21 of this title;
3. “Administrative control (ADCON) ” means the control or
exercise of authority ove r subordinate units and other organizations
or units with respect to administration and support, including
control of resources and equipment, personnel management, unit
logistics, individual and unit training, readiness, mobilization ,
demobilization and o ther matters not included in the operational
missions of the subordinate units or other organizations or units.
Lawfully issued orders implementing administrative control may
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incorporate references to the Oklahoma Uniform Code of Mil itary
Justice (OUCMJ) for disciplinary purposes;
4. “Allowance” means an amount of money provided to members of
the state military forces when adequate services or facilities are
not provided by the military. Allowances are usually provided tax -
free for basic housing, basic s ubsistence, cost of living, clothing
expenses and separation from family members;
5. “Arrest in quarters” means moral restraint, as opposed to
physical restraint, limiting the liberty of an officer. The limits
of arrest in quarters are set by the authori ty imposing nonjudicial
punishment and may extend b eyond the physical quarters of an
officer;
6. “Assistant Adjutant General ” means an officer appointed by
the Adjutant General to assist the Adjutant General in the discharge
and performance of his or her duties. An Assistant Adjutant General
shall meet the qualifications prescribed by law for the Adjutant
General. At least one Assistant Adjutant General for the Army
National Guard and one Assistant Adjutant General for the Air
National Guard are customar ily appointed to establish lines of
command and administration into each component of the state military
forces. Additional assistant adjutants general may be appointed
pursuant to law, custom or National Guard regulations;
7. “Cadet” or “officer candidate” means a person who is
enrolled in or attending a state military academy, a regional
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training institute, or any other formal education program for the
purpose of becoming a commissioned officer in the state military
forces;
8. “Classified information ” means:
a. any information or material that has been determined
pursuant to federal law, by an Executive Order issued
by the President in execution of federal law, or a
lawfully promulgated federal regulation, to require
protection against unauthorized disc losure for reasons
of national security and that is so designated, and
b. any restricted data, as defined in Section 11(y) of
the Atomic Energy Act of 1954 (42 U.S.C., Section
2014(y));
9. “Code” means the Oklahoma Uniform Code of Mi litary Justice
(OUCMJ);
10. “Command authority” means the authority that a commander
lawfully exercises over subordinates by virtue of rank or
assignment. Disciplinary authority under the OUCMJ is inherent to
command authority;
11. “Commander” means a designated commissioned officer vested
with command authority pursuant to law, regulation, assignment,
lawful order or custom;
12. “Commanding officer” includes only commissioned officers of
the state military forces and shall include officers in charge on ly
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when administering nonjudicial punishment under Section 815 (Article
15) of this title. “Commander” has the same meaning as “commanding
officer” unless the context otherwise requires;
13. “Component” means one of two constituent parts that make up
the state military forces , namely the army force responsible for
land-based operations and the air force responsible for aerial
operations and related support activities;
14. “Confidential information ” means any information or
material that shall be designat ed as confidential pur suant to
Section 24A.27 of Title 51 of the Oklahoma Statutes and any
information or material that may be kept confidential pursuant to
Section 24A.28 of Title 51 of the Oklahom a Statutes that has not
previously been released by an app ropriate authority;
15. “Convening authority” includes, in addition to t he person
who convened the court, a commissioned officer commanding for the
time being or a successor in command to the conve ning authority;
16. “Day” means calendar day and is not s ynonymous with the
term “unit training assembly ”. Any punishment authori zed by this
act which is measured in terms of days shall, when served in a
status other than annual field training, be constr ued to mean
succeeding duty days;
17. “Court of Criminal Appeals” means the Oklahoma Court of
Criminal Appeals, the highest court in the State of Oklahoma with
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appellate jurisdiction in criminal cases. It is the court of last
resort for courts-martial conducted under the Code;
18. “Duty status” means duty in the state military forc es under
an order issued by authority of law, and i ncludes travel to and from
such duty;
19. “Enlisted member” means a person in an enlisted grade;
20. “Fatigue duty” means general labor performed by members of
the state military fo rces when unarmed, inc luding but not limited to
cleaning, digging, loadin g, organizing, etc.;
21. “Fine” means a type of punishment that makes a member
pecuniarily liable to the State of Oklahoma f or the amounts
specified by nonjudicial punishment or adju dged by a court-martial.
A fine may be paid in cash by a member, collect ed by deduction from
the current pay of a member or collected by deduction on settlement
of the pay account of a member upon discharge;
22. “Forfeiture” means a loss of monetary comp ensation provided
to members of the Oklahoma National Guard or Oklahoma S tate Guard
for performance of military duties as a result of nonjudicial
punishment or as adjudged by a court -martial. A forfeiture is
applicable to basic pay and allowances if total forfeitures of pay
and allowances are specifically adjudged by a general court-martial;
provided, that forfeitures other than total forfeitures shall not
apply to special pay, other than hardship d uty pay, or proficiency
or incentive pay;
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23. “Grade” means a step or degree in a graduated scale of
office or military rank which is established and designated as a
grade by law or regulation;
24. “Installation commander ” means a commissioned officer
responsible for the protection of assigned forces and assets ,
lodging, dining and administrative reporting, regardless of the
command relations of the various types of forces present on the
installation. For purposes of this definition, an installation is
an Armed Forces Reserve Center, air base, armory, camp, pos t,
readiness center, office building, the joint forces headquarters or
other facility, location, structure or property so designated as an
“installation” by the Adjutant General;
25. “Joint forces headquarters” means the joint headquarters
provided for and established in Secti on 21 of this title;
26. “Judge advocate” means 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, and is certified or
designated as a judge advo cate in the Judge Advo cate General’s Corps
of the Army or the Air Force, or a reserve component of the same;
27. “May” is used in a permissive sense. The phrase “no person
may” means that no person is required, authorized, or permitted to
do the act prescribed;
28. “Military court” means a court-martial or a court of
inquiry;
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29. “Military Court of Appeals” means the intermediate
appellate court of record established in Section 866 of this title
(Article 66) and charged with conducting an appellate revi ew of
questions of law arising from general and special courts -martial
proceedings conducted by the state military forces and, when
necessary in furtherance of its jurisdiction, reviewing all
petitions for extraordinary relief properly brought before it;
30. “Military department” means the administrative agency
established in Section 21 of this title charged with coordinating
and supervising state military forces. The military department
consists of a joint forces headquarters, an army component and an
air force component unde r the command and control of the Adjutant
General when not activated for federal duty under Title 10 of the
United States Code;
31. “Military judge” means a judicial officer w ho presides over
a general or special court -martial and is detailed in accordanc e
with Section 826 of this title (Article 26);
32. “Military magistrate” means a licensed attorney detailed or
appointed who conducts reviews or otherwise acts on prereferral
matters relating to the rights of victims under subsection D of
Section 806B of this title (Article 6B, subsection D), investigativ e
subpoenas under subparagraph a of paragraph 1 of subsection A of
Section 4 of this act or who conducts appellate proceedings on
behalf of the Military Court of Appeals under paragraph 3 of
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subsection J of Section 866 of this title (Article 66, paragraph 3,
subsection J);
33. “Military offenses” means those offenses designate d as
punitive articles under Sections 877 (Article 77, Principals), 878
(Article 78, Accessory after the fact) , 879 (Article 79, Con viction
of offense charged, lesser included offense s, and attempts), 880
(Article 80, Attempts), 881 (Article 81, Conspiracy ), 882 (Article
82, Soliciting commission of offenses), 883 (Article 83,
Malingering), 884 (Article 84, Breach of medical quarantine ), 885
(Article 85, Desertion), 886 (Article 86, Ab sence without leave),
887 (Article 87, Missing movement; jumping from ves sel), 887A
(Article 87A, Resistance, flight, breach of arrest, and escape), 888
(Article 88, Contempt toward o fficials), 889 (Articl e 89, Disrespect
toward superior commissioned offic er; assault of superior
commissioned officer), 890 (Article 90, Willfully disobeying
superior commissioned officer), 891 (Article 91, Insubordinate
conduct toward warrant officer, or noncommissioned office r), 892
(Article 92, Failure to obey order or regul ation), 893 (Article 93,
Cruelty and maltreatment), 893A (Article 93A, Pr ohibited activities
with military recruit or trainee by person in position of special
trust), 894 (Article 94, Mutiny or sedition), 895 (Article 95,
Offenses by sentinel or lookout), 895A (Article 95A, Disrespect
toward sentinel or lookout), 896 (Article 9 6, Release of prisoner
without authority; drinking with prisoner), 897 (Article 97,
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Unlawful detention), 898 ( Article 98, Misconduct as prisoner), 899
(Article 99, Misbehavior before the enemy), 900 (Article 100,
Subordinate compelling surrender), 901 (Art icle 101, Improper use of
countersign), 902 (Article 102, Forcing a safeguard), 903B (Article
103B, Aiding the enemy), 903C (Article 103C, Unlawful disclosure of
confidential informat ion), 904 (Article 104, Public records
offenses), 904A (Article 104A, Fra udulent enlistment, appointment,
or separation), 904B (Article 104B, Unlawful enlistment,
appointment, or sepa ration), 905A (Article 105A, False or
unauthorized pass offenses), 906A ( Article 106A, Wearing
unauthorized insignia, decoration, badge, ribbon, d evice, or lapel
button), 907 (Article 107, False official statements; false
swearing), 908 (Article 108, Milit ary property-loss, damage,
destruction, or wrongful disposition), 908A (A rticle 108A, Captured
or abandoned property), 909 (Article 109, Property other than
military property-waste, spoilage, or destruction), 910 (Article
110, Improper hazarding of vessel or aircraft), 912 (Art icle 112,
Drunkenness and other incapacitation offe nses), 912A (Article 112A,
Wrongful use, possession, etc., of controlled substances), 914
(Article 114, Endangerment offenses), 916 (Article 116, Riot or
breach of peace), 917 (Articl e 117, Provoking speec hes or gestures),
917A (Article 117A, Wrongful broa dcast or distribution of intimate
visual images), 920 (Article 120, Sexua l assault generally), 920C
(Article 120C, Other sexual misconduct), 920D (Article 120D,
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Fraternization), 921 ( Article 121, Larceny a nd wrongful
appropriation), 924 (Article 124, Fraud s against the government),
928 (Article 128, Assault), 930 (Article 130, Stalking), 931
(Article 131, Perjury), 931A (Article 131A, Subornation of perjury),
931B (Article 131B, Obstru cting justice), 931C ( Article 131C,
Misprision of serious offense), 931D (Article 131D, Wrongful refusal
to testify), 931F (Article 131F, Noncompl iance with procedural
rules), 931G (Article 131G, Wrongful interference with adverse
administrative proceeding ), 932 (Article 132, R etaliation), 933
(Article 133, Conduct unbecoming a n officer and a gentleman) and 934
(Article 134, General article) of this title;
33. 34. “Military publication ” means a written publication of
an administrative nature such as a regu lation, instruction,
pamphlet, circular, permanent or general order, numb ered adjutant
general policy memorandum or blank form promulgated or publ ished by
or under the authority of the Adjutant General. An order or
directive issued by the Adjutant General that is operational i n
nature or issued in execution of a military missi on shall not be
included within the meaning of military publication. Rul es of
procedure published by the State Judge Advocate for the Military
Court of Appeals are included in the me aning of military
publication;
34. 35. “Month’s pay” means the amount of basic pay that would
be paid to a member if that member were serving on active duty;
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35. 36. “National security” means the national defense and
foreign relations of the United State s;
36. 37. “Nexus” means the appearance of a connection between a
nonmilitary offense and the state military forces which brings
discredit or dishonor to the state military forces due to
representations of membership in the state military forces by a
member. Such representati ons may be made directly or indirectly,
including but not limited to publication on social media or other
electronic communication platforms;
37. 38. “Noncommissioned officer ” means an enlisted member
above the pay grade of E -4 or an enlisted member in th e army
component of state military forces holding t he rank of corporal;
38. 39. “Nonjudicial punishment ” means punishment imposed
administratively by a commander or officer in charge for minor
offenses in lieu of a court -martial;
39. 40. “Officer” means a commissioned or warrant officer;
40. 41. “Officer in charge” means a commissioned or warrant
officer designated as such b y appropriate authority;
41. 42. “Pay” means monetary compensation provided to members
of the state military forces in exchange for performance of military
duties carried out pursuan t to a lawful order or otherwise under the
authority of law, including ba sic pay, special pay, proficiency pay
and incentive pay. “Pay” shall not mean allowances as defined in
this section;
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42. 43. “Rank” means the order of precedence among members of
the state military forces;
43. 44. “Record”, when used in connection with the proceedings
of a court-martial, means:
a. an official written transcript, written summary, or
other writing relating to the proc eedings, or
b. an official audiotape, videotape, di gital image or
file, or similar material from which sound, or sound
and visual images, depicting the proceedings may be
reproduced;
44. 45. “Regulation” means a written, administrati ve expression
of executive authority issued by an executive branch office r which
carries with it the force and effect of law due to inherent comma nd
authority or express delegation of authority by the legislative
branch; regulations provided for in the Cod e are published and
archived by the Secretary of State;
45. 46. “Rehearing” means a new trial on the findings, on the
sentence, or on both;
46. 47. “Restriction” means moral restraint, as opposed to
physical restraint, limiting access to physical places or
participation in certain activities. In comparison to arrest in
quarters, “restriction” is a lesser punishment;
47. 48. “Senior Assistant Adj utant General” means an Assistant
Adjutant General who either possesses the most time in grade or has
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been designated in writing by the Adjutant General as the Senior
Assistant Adjutant General for his or her force component
irrespective of time in grade;
48. 49. “Senior force component judge advocate ” means the judge
advocate assigned as chief legal advisor to t he Senior Assistant
Adjutant General of the same component of the state m ilitary forces
as the accused. Unless there is a conflict of interest, a senior
force component judge advocate may also serve as legal counsel to
the Adjutant General and may be desi gnated as the State Ju dge
Advocate. The customary duty station of a seni or force component
judge advocate is joint forces headquarters;
49. 50. “Shall” is used in an imperative sense;
50. 51. “State” means one of the several states, the District
of Columbia, the Commonwealth of Puerto Rico, Guam and the U.S.
Virgin Islands;
51. 52. “State active duty” means full-time duty in the state
military forces under an order of the Governor or otherwise issued
by authority of law, and paid by state funds, and inc ludes travel to
and from such duty;
52. 53. “State Judge Advocate ” means a member of the Oklahoma
National Guard qualified as a judge advocate, a s defined in this
section, and who is designated in writing by the Adjutant General as
the State Judge Advocat e;
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53. 54. “State military forces” means the National Guard of the
State of Oklahoma, which includes an army component and an air force
component, as defined in Title 32, United States Code, and Section
41 of this title; the Oklahoma State Guard, organize d pursuant to
Section 109 of Title 32, United States Code, and establishe d
pursuant to the Oklahoma State Guard Act; and any other military
force organized under the Constitution and laws of the State of
Oklahoma when not in a status placing them under exc lusive federal
jurisdiction pursuant to Chapter 47 of Title 10, United St ates Code.
Unless otherwise established by Oklahoma law, the unorganized
militia, as provided for in Section 41 of this title, or any other
state military force that does not meet th is definition shall no t be
considered part of the “state military forces ” under the Code;
54. 55. “Superior commissioned officer ” means a commissioned
officer superior in rank or command;
55. 56. “Supplies” means materiel, equipment and stores of all
types possessed or lawful ly controlled by state military forces; and
56. 57. “Title 32 active duty” means training or other duty,
other than inactive duty, performed by a member of the Army National
Guard of the United States or the Air National Guard of the United
States in the member’s status as a member of the Oklahoma Nationa l
Guard pursuant to Section 316, 502, 503, 504 or 505 of Title 32 of
the United States Code for which the member is entitled to pay from
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the United States or for which the member has waived pay from the
United States.
B. Other terms not specifically defin ed herein shall be defined
by military rules or regulations and customs a nd usage of the
National Guard and the Armed Forces of the United States.
C. If a term is not defined in eith er subsection A of thi s
section nor defined as provided in subsection B o f this section, it
shall receive the construction and usage customarily a ccorded by
reference to dictionaries of the English language in existence at
the time of adoption of this act.
SECTION 2. AMENDATORY Section 21, Chapter 408, O .S.L.
2019 (44 O.S. Supp. 2020, Section 815), is amended to read as
follows:
Section 815. ARTICLE 15. Commanding officer ’s nonjudicial
punishment.
A. Except as provided in subsecti on B of this section, any
commanding officer and, for purposes of this se ction, any officer in
charge, may impose disciplinary punishments for min or offenses
arising under the punitive articles of the Oklahoma Uniform Code of
Military Justice without the i ntervention of a court -martial.
B. Any superior commander may limit or w ithhold the exercise of
nonjudicial punishment authority by subordinate c ommanders,
including limiting authority over certain categories of military
personnel or offenses. Likewise, individual cases may b e reserved
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by a superior commander. A superior aut hority may limit or withhold
any power that a subordinate might otherwise exercise under this
section.
C. Except as provided in subsection K L of this section, the
Governor, the Adjutant General, or a gen eral officer in command may
delegate the powers est ablished under this section to a principal
assistant who is a member of t he state military forces and is also a
member of the same force component as the accused.
D. Any commanding o fficer may impose upon enlisted members of
the officer’s command:
1. An admonition;
2. A reprimand;
3. The withholding of privileges for not mo re than six (6)
months which need not be consecutive;
4. The forfeiture of pay of not more than seven (7) day s’ pay;
5. A fine of not more than seven (7) days ’ pay;
6. A 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;
7. Extra duties, including fatigue or other duties, fo r not
more than fourteen (14) days, which need not be consecutive; and
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8. Restriction to certain specified limits, with or without
suspension from duty, for not more than fourteen (1 4) days, which
need not be consecutive.
E. Any commanding officer of the grade of major or above may
impose upon enlisted members of the officer ’s command:
1. An admonition;
2. A reprimand;
3. The withholding of privileges for not more than six (6)
months which need not be consecutive;
4. The forfeiture of not more than on e-half (1/2) of one (1)
month’s pay per month for two (2) months;
5. A fine of not more than one (1) month ’s pay;
6. A reduction to the lowest or any intermediate pay grade, if
the grade from which demot ed 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 shall not be reduced more than two pay grades;
7. Extra duties, inc luding fatigue or other duties, for not
more than forty-five (45) days which need not be consecutive; and
8. Restriction to certain specified limits, with or without
suspension from duty, for not more than sixty (60) days which need
not be consecutive.
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F. The Governor, the Adjutant General, an officer ex ercising
general or special court-martial convening authority, or a gener al
officer in command may impose:
1. Upon officers of the officer ’s command:
a. any punishment authorized in subsection E of this
section, except for the punishments provided in
paragraphs 6 and 7 of subsection E of this section,
and
b. arrest in quarters for not more than thirty (30) days
which need not be consecutive; and
2. Upon enlisted members of the office r’s command, any
punishment authorized in subsection E of this section.
Admonitions or reprimands given as nonjudicial punishment to
commissioned officers and warrant officers shall be administered in
writing. In all other cases, unless otherwise prescrib ed by
regulations promulgated by the Adjutant General, such punishments
may be administered either orally or in writing.
G. Whenever any punishme nts are combined to run consecutively,
the total length of the combined punishment shall not exceed the
authorized duration of the l ongest punishment included in the
combination, and there shall be an apportionment of punishments so
that no single punishme nt in the combination exceeds its authorized
length under this section.
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H. Once the commander has determined that nonjudicial
punishment is appropriate, the commander shall provide r easonable
notice to the member of his or her intent to impose nonjudicial
punishment. At the time the commander provides notification as
required in this subsection, the member shall be entitled to examin e
all statements and other evidence that the comman der has examined
and intends to rely upon as the basis for punishment. T he member
shall be provided a copy of the documentary evidence unless it is
privileged, classified, or otherwi se restricted by law, regulation,
or instruction. At the time the comman der provides notification as
required in this subsection, the commander s hall also inform the
member as to the quantum of punishment potentially to be imposed.
While a member undergo ing nonjudicial punish ment is not entitled to
representation by a duly ap pointed defense counsel, the member may
seek legal advice from any judge advocate available for this
purpose.
I. The right to demand trial by court -martial in lieu of
nonjudicial punishment shall arise on ly when arrest in quarters or
restriction will be c onsidered as punishments. If the commanding
officer determines that arre st in quarters or restriction will be
considered as punishments, prior to the offer of nonjudicial
punishment the accused shall be n otified in writing of the right to
demand trial by court-martial. Should the commanding officer
determine that the punishme nt options will not include arrest in
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quarters or restriction, the accused shall be notified that there is
no right to trial by cour t-martial in lieu of nonjudicial
punishment. Upon notification by the commander or officer in charge
of his or her intent t o impose nonjudicial punishment that includes
arrest in quarters or restriction, the accused shall be afforded a
reasonable amount of time to confer with legal counsel and to
prepare a response.
J. The officer who imposes the punishment, or his or her
successor in command, may, at any time, suspend, set aside, mitigate
or remit any part or amount of the punishme nt and restore all
rights, privileges and property affected. The officer also may
mitigate:
1. Reduction in grade to forfeiture of pay;
2. Arrest in quarters to restriction; or
3. Extra duties to restriction.
The mitigated punishment shall not be for a greater period than
the punishment mitigated. When mitigating reducti on in grade to
forfeiture of pay, the amount of the forf eiture shall not be greater
than the amount that could have been imposed initially under this
article by the officer who imposed the punishment mitiga ted.
K. A person punished under this section who considers the
punishment unjust or disproportionate to t he offense may, through
his or her chain of command, appeal to the Senior Assistant Adjutant
General of the same component of th e state military force s as the
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accused within fifteen (15) days after th e punishment is announced
to the accused. The officer e xercising appellate authority may, at
his or her discretion, extend the deadline for an appeal. The
appeal shall be promptly fo rwarded and decided, a nd the member shall
not be punished until the appe al is decided. The Senior Assistant
Adjutant General exercising appellate authority may exercise the
same powers with respect to the punishment imposed as may be
exercised under subse ction I of this sectio n by the officer who
imposed the punishment. Befo re acting on an appeal from a
punishment, the Senior Ass istant Adjutant General shall refer the
case to a judge advocate for consideration and advice.
K. L. Except for nonjudicial pun ishment imposed by the Governor
or the Adjutant General, the final appel late authority for
nonjudicial punishment imposed within state military forces is the
Adjutant General. A person punished under this section whose appeal
was previously denied by a Se nior Assistant Adjutan t General may
lodge an additional appeal with the Adjutant General within five (5)
days after the appeal i s denied. In the event the officer imposing
nonjudicial punishment is the Senior Assistant Adjutant General, an
appeal thereof shall be addressed dir ectly to the Adjutant General.
In the event the officer imposing nonjudicial punishment is the
Adjutant General, an appeal thereof shall be addressed directly to
the Governor. An appeal offered pursuant to this subsection shall
be made only in writing. Neither the Governor nor the Adjutant
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General shall delegate his or her duties as an appellate authority
under this subsection.
L. M. Whenever nonjudicial punishment is imposed under this
section:
1. After adjudication and while the punishment is being c arried
out or while the adjudged punishment is pen ding before the appellate
authority, the commander or of ficer in charge who imposed the
nonjudicial punishment, upon the request of the accused, may:
a. excuse the accused from attenda nce at scheduled unit
training assemblies, or
b. arrange for the accused to drill on alternate dates
and in alternate locations; or
2. If necessary to maintain good order and discipline within
the unit, the commander or officer in charge who imposed the
nonjudicial punishment may order the accused to drill on alternate
dates and in alternate locations. The order shall be reduced to
writing and shall become part of the record of nonjudicial
punishment.
M. N. The imposition and enforcement of disciplinary punishment
under this section for any act or omission shall not be a bar to
trial by court-martial or a civilian court of compet ent jurisdiction
for a crime or offense arising out of the same act or omission; but
the fact that a disciplinary punishment has been enforced may be
demonstrated by the accused upon trial and, when s o demonstrated, it
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shall be considered in determining th e measure of punishment to be
adjudged in the event of a finding or verdict of guilty.
Nonjudicial punishment shall not be impo sed for an offense
previously tried by a civilian court unless so author ized by
regulations promulgated by the Adjutant General.
N. O. When nonjudicial punishment has been imposed for an
offense, punishment shall not again be imposed for the same offense
under this section. O nce nonjudicial punishment has been imposed,
it may not be increased, upon appeal or otherwise. When a co mmander
or officer in charge determines that nonjudicial punishment is
appropriate for a particular member, all known offenses d etermined
to be appropriate for disposition by nonjudicial punishment an d
ready to be considered at that time, including all off enses arising
from a single incident or course of conduct, shall be considered
together and shall not be made the basis for mult iple punishments.
This subsection shall in no way restrict the right of a commander to
prefer court-martial charges for an offe nse previously punished
under the provisions of this section.
O. P. In accordance with subsection B of Section 843 of this
title (Article 43, subsect ion B), a person accused of an offense is
not liable to be punished under this section if the offense was
committed more than two (2) years before the imposition of
punishment. Periods in which the accused is absent without
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authority shall be excluded in computing the period of limitation
prescribed in this section.
P. Q. Whenever a punishment of forfeiture of pay is imposed
under this section, the forfeiture shall not apply to pay accruing
before the date that punishment is imposed, but only pay accruing on
or after the date that punishment is imposed.
Q. R. The Adjutant General may promulgate regulations
prescribing the type and form of records to be kept of proceedings
conducted pursuant to this section. The Adjutant General may
promulgate any other r egulations necessary to carry out the
provisions of this section.
SECTION 3. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 826 .1 of Title 44, unless there
is created a duplicati on in numbering, reads as follows:
Section 826.1. ARTICLE 26A. Military magistrates.
A. Qualifications. A military magistrate shall be:
1. A member of the bar of a federal court or a member of the
bar of the highest court of a state and may be a commis sioned
officer of the state military forces; and
2. Certified to be qualified, by reason of education, training,
experience and judicial temperament, for duty as a military
magistrate by the State Judge Advocate.
B. Appellate remand. A military magis trate may be detailed or
appointed pursuant to this section for purposes of conducting an
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appellate proceeding on behal f of the Military Court of Appeals
ordered pursuant to paragraph 3 of subsection J of Section 866 of
Title 44 of the Oklahoma Statutes (Article 66, paragraph 3,
subsection J).
C. Duties. In accordan ce with regulations promulgated by the
Adjutant General, in addition to duties wh en detailed or appointed
under Section 4 of this act, a military magistrate, who is also a
commissioned officer of the state military fo rces, may be assigned
to perform other duties of a nonjudicial nature.
SECTION 4. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 830A of Title 44, unless there
is created a duplication in numbering, reads as follows:
Section 830A. ARTICL E 30A. Certain proceedings conducted
before referral.
A. In general.
1. Proceedings may be conducted to review, or otherwise act on,
the following matters before referral of charges and spec ifications
to court-martial for trial in accordance with regula tions
promulgated by the Adjutant General:
a. prereferral investigative subpoenas,
b. prereferral warrants or orders for electronic
communications, and
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c. prereferral matters under subsection D of Section 806B
of Title 44 of the Oklahoma Statutes (Article 6B,
subsection D).
2. The regulations promulgated under paragraph 1 of subsection
A of this section shall:
a. include procedures for the review of such rulings that
may be ordered under this s ection as the Adjutant
General considers appropriate, and
b. provide such limitations on the relief that may be
ordered under this section as the Ad jutant General
considers appropriate.
3. If any matter in a proceeding under this section becomes a
subject at issue with respect t o charges that have been referred to
a general or special court-martial, the matter shall be transferred
to the military judge detailed to the court -martial.
B. Details of military judge.
The Adjutant General shall promulgate regulations providing for
the manner in which military judges are de tailed to proceedings
under subsection A of this section.
C. Detail of military magistrate.
1. The Adjutant General may promulgate regulations providing
for the detailing or appointment of mi litary magistrates who, other
than a proceeding described in su bparagraph b of paragraph 1 of
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subsection A of this section, may preside over the proceedings
provided for in paragraph 1 of subsection A of this section.
2. Neither the State Judge Advocate n or a senior force
component judge advocate shall be detailed or appointed as a
military magistrate.
3. Neither the convening authority nor any member of the staff
of the convening authority shall prepare or review any report
concerning the effectiveness, fitness or efficiency of a military
magistrate so detailed or appointed which relates to the military
magistrate’s performance of duty as a military magistrate.
4. No person is eligible to act as military magistrate in a
case if he or she is the accuser, a witness or has acted as counsel
in the same case.
SECTION 5. AMENDATORY Section 53, Chapter 408, O.S.L.
2019 (44 O.S. Supp. 20 20, Section 846), is amended to read as
follows:
Section 846. ARTICLE 46. Opport unity to obtain witne sses and
other evidence in trials by court-martial.
A. Opportunity to obtain witnesses and other evidence. In a
case referred for trial by court -martial, the trial counsel, the
defense counsel, and the court -martial shall have equal opportunity
to obtain witnesses and other evi dence in accordance with such
regulations as may be promulgated by the Adjutant General.
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B. Subpoena and other process generally. Any subpoena or other
process issued under this section:
1. Shall be similar t o that which courts o f the State of
Oklahoma having criminal jurisdiction may issue pursuant to Title 22
of the Oklahoma Statutes;
2. Shall be executed in accordance with regulations promulgated
by the Adjutant General; and
3. Shall run to any part of th e State of Oklahoma.
C. Subpoena and other p rocess for witnesses. A subpoena or
other process may be issued to compel a witness to appear and
testify:
1. Before a court-martial or court of inquiry;
2. At a deposition under Section 849 of this title (Ar ticle
49); or
3. As otherwise authorized und er the Oklahoma Uniform Code Of
of Military Justice.
D. Subpoena and other process for evidence.
1. In general. A subpoena or other process may be issued to
compel the production of evidence:
a. for a court-martial or court of inqui ry,
b. for a deposition under Section 849 of this title
(Article 49),
c. for an investigation of an offense under the Code, or
d. as otherwise authorized under the Code.
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2. Investigative subpoena. An investigative subpoena under
subparagraph c of paragra ph 1 of this subsection may be issued
before referral of charge s to a court-martial only if a general
court-martial convening authority has authorized counsel for the
government to issue such a subpoena , or a military judge issues such
a subpoena pursuant to subsection A of Sect ion 830 of this title
(Article 30, subsection A) or a military magistrate issues such a
subpoena pursuant to subparagraph a of paragraph 1 of subsection A
of Section 4 of this act .
3. Warrant or order for wire or electronic communi cations.
With respect to an investigation of an offense under the Code, a
military judge detailed in accordance with Section 826 or subsection
A of Section 830 of this title (Article 26 or Article 30, subsection
A) may issue warrants or court orders for t he contents of, and
records concerning, wire or electronic comm unications in the same
manner as such warrants and orders may be issued by a district court
of the State of Oklahoma under the provisions of Title 22 of the
Oklahoma Statutes, subject to such l imitations as may be prescribed
by regulations promulgated by t he Adjutant General. No military
magistrate detailed or appointed under Section 4 of this act shall
issue warrants or court orders for the contents of, and records
concerning, wire or electronic communications.
E. Request for relief from subpoena or othe r process. If a
person requests relief from a subpoena or other process under this
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section (article) on grounds that compliance is unreasonable or
oppressive or is prohibi ted by law, a military judge detailed in
accordance with Section 826 or subsection A of Section 830 of this
title (Article 26 or Article 30, subsection A) shall review the
request and shall:
1. Order that the subpoena or other process be modified or
withdrawn, as appropriate; or
2. Order the person to comply with the subpoena or other
process.
SECTION 6. AMENDATORY Section 55, Chapter 408, O.S.L.
2019 (44 O.S. Supp. 20 20, Section 848), is amended to read as
follows:
Section 848. ARTICLE 48. Contempt. A. Authority to punis h.
1. With respect to any proceeding un der the Oklahoma Uniform
Code of Military Justice, a judicial officer specified in paragraph
2 of this subsection may punish for contempt any person who:
a. uses any menacing word, sign, or gesture in the
presence of the judicial officer during the
proceeding,
b. disturbs the proceeding by any riot or disorder, or
c. willfully disobeys a lawful writ, process, order,
rule, decree, or command issued with respect to the
proceeding.
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2. A judicial officer referred to in p aragraph 1 of this
subsection is either any of the following:
a. any military judge detailed to a court -martial,
b. any military magistrate detailed or appointed to
conduct prereferral proceedings under subsection D of
Section 806B of this title (Article 6 B, subsection D)
or subparagraph a of paragraph 1 of subsection A of
Section 4 of this act or appellate proceedings under
paragraph 3 of subsection J of Section 866 of this
title (Article 66, subsection J, paragr aph 3),
c. the chief judge of the Military C ourt of Appeals, or
c. d. the president of a court of inquiry.
B. Opportunity to be heard and warning. A judicial officer, as
specified in paragraph 2 of subsection A o f this section, may punish
a person cited for contempt after an opportunity to be hear d has
been given. Censure shall be impo sed by the judicial officer only
if:
1. It is clear from the identity of the offender and the
character of his or her acts that d isruptive conduct is willfully
contemptuous; or
2. The conduct warranting the sanctio n is preceded by a clear
warning that the conduct is impermissible and that specified
sanctions may be imposed for its repetition.
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C. Notification of contempt proceeding s. The judicial officer,
as specified in paragraph 2 of subsec tion A of this section, as soon
as practicable after he or she is satisfied that courtroom
misconduct requires contempt proceedings, should inform the alleged
offender of his or her intention t o institute said proceedings.
D. Notice and opportunity to pro vide evidence or testim ony.
Before imposing any punishment for contempt, the judicial officer
shall give the offender notice of the charges and an opportunity to
adduce evidence or argument re levant to guilt or punishment.
E. Imposition of sanctions. Th e judicial officer befo re whom
the misconduct occurs may impose appropriate sanctions including
punishment for contempt.
F. Punishment. The punishment for contempt under subsection A
of this section shall not exceed the punishments p rovided in
subsection A of Section 566 of Ti tle 21 of the Oklahoma Statutes.
G. Review. A punishment under this section:
1. If imposed by a military judge, may be reviewed by the
Military Court of Appeals in acc ordance with the uniform rules of
procedure for the Military Co urt of Appeals under su bsection L of
Section 866 of this title (Article 66, subsection L);
2. If imposed by the chief judge of the Military Court of
Appeals, shall constitute a judgment of the court, subject to review
under the applicable provisions of Se ction 867 of this title
(Article 67); and
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3. If imposed by a c ourt of inquiry, shall be subject to review
by the convening authority in accordance with regulations
promulgated by the Adjutant General.
SECTION 7. NEW LAW A new sec tion of law to be codif ied
in the Oklahoma Statutes as Section 858D of Title 44, unless there
is created a duplication in numbering, reads as follows:
Section 858D. ARTICLE 58D. Parole.
The system of parole established pursuant to Se ction 10 of
Article VI of the Oklahoma Const itution and Titles 22 and 57 of the
Oklahoma Statutes shall be applicable to any person in any place of
confinement under the control of the state military forces or in a ny
penal or correctional institution used or under the control of the
Oklahoma Department of Corrections.
SECTION 8. AMENDATORY Section 82, Chapter 408, O.S.L.
2019 (44 O.S. Supp. 20 20, Section 867), is amended to read as
follows:
Section 867. ARTICLE 67. Review by th e Oklahoma Court of
Criminal Appeals.
A. Powers as court of last resort. The Oklah oma Court of
Criminal Appeals shall be the court of last resort for all general
and special courts-martial convened by the state m ilitary forces.
In reviewing petitions or appeals granted purs uant to this section,
the Oklahoma Court of Criminal Appeals sh all have and shall exercise
all powers granted to the Court under the Oklahoma Statutes and the
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Oklahoma Constitution. The provisions of Title 22 of the Oklahoma
Statutes establishing criminal procedure in the distric t courts of
this state shall not apply to courts -martial proceedings convened
pursuant to this Code. If provisions of Title 22 of the Oklahoma
Statutes establishing appellate procedure in the Okl ahoma Court of
Criminal Appeals con flict with any appellate provisions within this
Code, the conflicting provis ions in Title 22 of the Oklahoma
Statutes shall not apply to appellate proceedings arising from
courts-martial proceedings convened pursuant to t his Code.
B. Petition for Review. Except as provided in su bsection C of
this section for appeals arising from a guilty plea, a decision of
the Military Court of Appeals may be reviewed by the Oklahoma Court
of Criminal Appeals upon the filing of an appea l in the form of a
Petition for Review if a majority of judg es on the Oklahoma Court of
Criminal Appeals direct s that such Petition for Review shall be
granted. Decisions of the Military Court of Appeals shall be final
unless a Petition for Review is gran ted by the Oklahoma Court of
Criminal Appeals or a writ of c ertiorari is granted pursuant to
subsection C of this section.
C. Appeals arising from guilty plea. All appeals taken from
any conviction on a plea of g uilty shall first be decided by the
Military Court of Appeals. In the event the conviction arising fr om
a plea of guilty is upheld by the Court of Milit ary Appeals, an
appeal may be taken by petition for writ of certiorari to the
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Oklahoma Court of Crimina l Appeals, as provided in subsection D of
this section; provided, such petiti on must be filed within n inety
(90) days from the date of said the conviction. The Oklahoma Court
of Criminal Appeals may take jurisdiction of any case for the
purpose of correcting the appeal records when the same do no t
disclose judgment and sentence; s uch jurisdiction shall be for the
sole purpose of correcting such defect or defects.
D. Procedures established by court rules. The procedures for
filing a Petition for Review or app eal made pursuant to subsection B
or C of this section shall be as provid ed in the Rules of the Co urt
of Criminal Appeals; and the Oklahoma Court of Criminal Appeals
shall provide by court rules, which shall have the force of statute:
1. The procedure to be followed by the courts -martial in the
preparation and authentication o f transcripts and records in cases
appealed under the Oklahoma Uniform Code of Military Justice;
2. The procedure to be followed by the Court of Military
Appeals in the preparation o f the record in cases brought up on
appeal to the Oklahoma Court of Crimi nal Appeals under the Cod e;
3. The procedure to be followed for the complet ion and
submission of the Petition for Review or such other appeals lodged
pursuant to the Code; and
4. The procedure to be followed for filing a petition for and
the issuance of a writ of certiorari.
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E. Scope of review on certiorari. The scope of revie w to be
afforded on certiorari shall be prescribed by the Oklahoma Court of
Criminal Appeals.
F. Additional proceedings. If the Oklahoma Court of Criminal
Appeals determines that additional proceedings a re warranted, the
Oklahoma Court of Criminal Appeal s may order a hearing, rehearing or
other proceedings in accordance with the Rules of the Court of
Criminal Appeals.
G. Action in accordance wit h decisions of the Oklahoma Court o f
Criminal Appeals. The State Judge Advocate shall instruct the
appropriate authority to take action in accordance with the decision
of the Oklahoma Court of Criminal Appeals.
SECTION 9. It being immediately necessary for the preservati on
of the public peace, h ealth or safety, an emergency is hereby
declared to exist, by reason whereof this act shall take effect and
be in full force from and after its passage and ap proval.
58-1-219 TEK 1/6/2021 10:56:22 AM