Chapter 322

322.015(7) (7) The officer who imposes the punishment, or the successor in command, may, at any time, 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 any of the following:

322.015(7)(a) (a) Mitigate reduction in grade to forfeiture of pay.

322.015(7)(b) (b) Mitigate arrest in quarters to restriction.

322.015(7)(c) (c) Mitigate extra duties to restriction.

322.015(8) (8) 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 section by the officer who imposed the punishment mitigated.

322.015(9) (9) A person punished under this section who considers the punishment unjust or disproportionate to the offense may, through the proper channel, appeal to the next superior authority within 15 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, but the person punished may in the meantime be required to undergo the punishment adjudged. The superior authority may exercise the same powers with respect to the punishment imposed as may be exercised under sub. (7) 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.

322.015(10) (10) The imposition and enforcement of disciplinary punishment under this section for any act or omission is not a bar to trial by court-martial or 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 section; but 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.

322.015(11) (11) Whenever a punishment of forfeiture of pay is imposed under this section, the forfeiture may apply to pay accruing before, on, or after the date that punishment is imposed.

322.015(12) (12) Regulations may prescribe the form of records to be kept of proceedings under this section and may prescribe that certain categories of those proceedings shall be in writing.

322.015 History History: 2007 a. 200; 2009 a. 179.

subch. IV of ch. 322 SUBCHAPTER IV

COURT-MARTIAL JURISDICTION

322.016 322.016 Article 16 — Courts-martial classified. The 3 kinds of courts-martial in the state military forces are as follows:

322.016(1) (1) General courts-martial, consisting of any of the following:

322.016(1)(a) (a) A military judge and not less than 5 members.

322.016(1)(b) (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.

322.016(2) (2) Special courts-martial, consisting of any of the following:

322.016(2)(a) (a) A military judge and not less than 3 members.

322.016(2)(b) (b) Only a military judge, if one has been detailed to the court, and the accused under the same conditions as those prescribed in sub. (1) (b) so requests.

322.016(3) (3) Summary courts-martial, consisting of one commissioned officer.

322.016 History History: 2007 a. 200; 2013 a. 201.

322.017 322.017 Article 17 — Jurisdiction of courts-martial in general. Each component of the state military forces has court-martial jurisdiction over all members of the particular component who are subject to this code. Additionally, the state military forces have court-martial jurisdiction over all members subject to this code.

322.017 History History: 2007 a. 200.

322.018 322.018 Article 18 — Jurisdiction of general courts-martial. Subject to s. 322.017, general courts-martial have jurisdiction to try persons subject to this code for any offense made punishable by this code, and may, under limitations as the governor may prescribe, adjudge any punishment not forbidden by this code.

322.018 History History: 2007 a. 200.

322.019 322.019 Article 19 — Jurisdiction of special courts-martial. Subject to s. 322.017, special courts-martial have jurisdiction to try persons subject to this code for any offense made punishable by this code, and may, under limitations as the governor may prescribe, adjudge any punishment not forbidden by this code except dishonorable discharge, dismissal, confinement for more than one year, forfeiture of pay exceeding two-thirds pay per month, or forfeiture of pay for more than one year.

322.019 History History: 2007 a. 200.

322.020 322.020 Article 20 — Jurisdiction of summary courts-martial.

322.020(1) (1) Subject to s. 322.017, summary courts-martial have jurisdiction to try persons subject to this code, except officers, cadets, candidates, and midshipmen, for any offense made punishable by this code under limitations as the governor may prescribe.

322.020(2) (2) No person with respect to whom summary courts-martial have jurisdiction may be brought to trial before a summary court-martial if that person objects. If objection to trial by summary court-martial is made by an accused, trial by special or general court-martial may be ordered, as may be appropriate. Summary courts-martial may, under limitations as the governor may prescribe, adjudge any punishment not forbidden by this code except dismissal, dishonorable or bad-conduct discharge, confinement for more than one month, restriction to specified limits for more than 2 months, or forfeiture of more than two-thirds of one month’s pay.

322.020 History History: 2007 a. 200.

subch. V of ch. 322 SUBCHAPTER V

APPOINTMENT AND COMPOSITION
OF COURTS-MARTIAL

322.022 322.022 Article 22 — Who may convene general courts-martial.

322.022(1) (1) General courts-martial may be convened by any of the following:

322.022(1)(a) (a) The governor.

322.022(1)(b) (b) The adjutant general.

322.022(1)(c) (c) The commanding general officer of any force of the state military forces.

322.022(1)(d) (d) The commanding officer of a division or a separate brigade.

322.022(1)(e) (e) The commanding officer of a separate wing.

322.022(2) (2) If any commanding officer is an accuser, the court shall be convened by superior competent authority and may in any case be convened by a superior authority if considered desirable by the authority.

322.022 History History: 2007 a. 200.

322.023 322.023 Article 23 — Who may convene special courts-martial.

322.023(1) (1) Special courts-martial may be convened by any of the following:

322.023(1)(a) (a) Any person who may convene a general court-martial.

322.023(1)(b) (b) The commanding officer of a garrison, fort, post, camp, station, air national guard base, or naval base or station.

322.023(1)(c) (c) The commanding officer of a brigade, regiment, detached battalion, or corresponding unit of the army national guard.

322.023(1)(d) (d) The commanding officer of a wing, group, separate squadron, or corresponding unit of the air national guard.

322.023(1)(e) (e) The commanding officer or officer in charge of any other command when empowered by the adjutant general.

322.023(2) (2) If the officer is an accuser, the court shall be convened by superior competent authority and may in any case be convened by a superior authority if considered desirable by the superior competent authority.

322.023 History History: 2007 a. 200.

322.024 322.024 Article 24 — Who may convene summary courts-martial.

322.024(1) (1) Summary courts-martial may be convened by any of the following:

322.024(1)(a) (a) Any person who may convene a general or special court-martial.

322.024(1)(b) (b) The commanding officer of a detached company or other detachment, or corresponding unit of the army national guard.

322.024(1)(c) (c) The commanding officer of a detached squadron or other detachment, or corresponding unit of the air national guard.

322.024(1)(d) (d) The commanding officer or officer in charge of any other command when empowered by the adjutant general.

322.024(2) (2) When only one commissioned officer is present with a command or detachment that officer shall be the summary court-martial of that command or detachment and shall hear and determine all summary court-martial cases. Summary courts-martial may, however, be convened in any case by superior competent authority if considered desirable by that authority.

322.024 History History: 2007 a. 200.

322.025 322.025 Article 25 — Who may serve as a member on courts-martial.

322.025(1) (1) Any commissioned officer of the state military forces is eligible to serve on all courts-martial for the trial of any person subject to this code.

322.025(2) (2) Any warrant officer of the state military forces is eligible to serve on general and special courts-martial for the trial of any person subject to this code, other than a commissioned officer.

322.025(3) (3) Any enlisted member of the state military forces who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial for the trial of any enlisted member subject to this code, but that member shall serve as a member of a court only if, before the conclusion of a session called by the military judge under s. 322.039 (1) prior to trial or, in the absence of a session, before the court is assembled for the trial of the accused, the accused personally has requested orally on the record or in writing that enlisted members serve on it. After a request, the accused may not be tried by a general or special court-martial the membership of which does not include enlisted members in a number comprising at least one-third of the total membership of the court, unless eligible enlisted members cannot be obtained on account of physical conditions or military exigencies. If the members cannot be obtained, the court may be assembled and the trial held without them, but the convening authority shall make a detailed written statement, to be appended to the record, stating why they could not be obtained.

322.025(4) (4) When it can be avoided, no person subject to this code may be tried by a court-martial any member of which is junior to the accused in rank or grade.

322.025(5) (5) When convening a court-martial, the convening authority shall detail members of the state military forces as, in the convening authority’s opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No member of the state military forces is eligible to serve as a member of a general or special court-martial when that member is the accuser, a witness, or has acted as investigating officer or as counsel in the same case.

322.025(6) (6) Before a court-martial is assembled for the trial of a case, the convening authority may excuse a member of the court from participating in the case.

322.025(7) (7) The convening authority may delegate the authority under this section to a judge advocate or to any other principal assistant.

322.025(8) (8) In this section, “unit” means any regularly organized body of the state military forces not larger than a company, a squadron, a division of the naval militia, or a body corresponding to one of them.

322.025 History History: 2007 a. 200.

322.026 322.026 Article 26 — Military judge of a general or special court-martial.

322.026(1) (1) 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 military judge has been detailed.

322.026(2) (2) A military judge shall meet all of the following qualifications:

322.026(2)(a) (a) Be a commissioned officer of the armed forces of the United States or of a component thereof or a commissioned officer of an organized state military force.

322.026(2)(b) (b) Be an attorney licensed to practice in this state or be a member of the bar of a federal court for at least 5 years.

322.026(2)(c) (c) Be certified as qualified for duty as a military judge by the senior force judge advocate of the same force as the accused.

322.026(3) (3) In the instance when a military judge is not an attorney licensed to practice in this state, the military judge shall be deemed admitted on motion, subject to filing a certificate with the senior force judge advocate of the same force as the accused setting forth the qualifications provided in sub. (2).

322.026(4) (4) The military judge of a general or special court-martial shall be designated by the state senior force judge advocate of the same force as the accused if possible, or otherwise by the senior of the senior force judge advocates, 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 so detailed, which relates to performance of duty as a military judge.

322.026(5) (5) No person is eligible to act as military judge in a case if that person is the accuser or a witness, or has acted as investigating officer, trial counsel, or defense counsel in the same case.

322.026(6) (6) 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.

322.026 History History: 2007 a. 200; 2009 a. 179; 2013 a. 201.

322.027 322.027 Article 27 — Detail of trial counsel and defense counsel.

322.027(1) (1) For each general and special court-martial the authority convening the court shall detail trial counsel, defense counsel, and assistants as are appropriate.

322.027(2) (2) No person who has acted as investigating officer, military judge, witness or court member in any case may act later as trial counsel, assistant trial counsel, or, unless expressly requested by the accused, as defense counsel or assistant or associate defense counsel in the same case. No person who has acted for the prosecution may act later in the same case for the defense nor may any person who has acted for the defense act later in the same case for the prosecution.

322.027(3) (3) Except as provided in sub. (4), trial counsel or defense counsel detailed for a general or special court-martial must meet all of the following:

322.027(3)(a) (a) A judge advocate.

322.027(3)(b) (b) In the case of trial counsel, an attorney licensed to practice in this state.

322.027(4) (4) In the instance when a defense counsel is not an attorney licensed to practice in this state, the defense counsel shall be deemed admitted on motion, subject to filing a certificate with the military judge setting forth the qualifications that counsel is all of the following:

322.027(4)(a) (a) A commissioned officer of the armed forces of the United States or a component thereof.

322.027(4)(b) (b) A member in good standing of the bar of the highest court of another state.