Chapter 322

322.070(3) (3) Upon the appeal by an accused, the accused has the right to be represented by military counsel before any reviewing authority.

322.070(4) (4) Upon the request of an accused entitled to be so represented, the state senior force judge advocate shall appoint a judge advocate to represent the accused in the review or appeal of cases specified in subs. (2) and (3).

322.070(5) (5) An accused may be represented by civilian appellate counsel at no expense to the state.

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

322.071 322.071 Article 71 — Execution of sentence; suspension of sentence.

322.071(1) (1) If the sentence of the court-martial extends to dismissal or a dishonorable or bad-conduct discharge and if the right of the accused to appellate review is not waived, and an appeal is not withdrawn under s. 322.061, that part of the sentence extending to dismissal or a dishonorable or bad-conduct discharge may not be executed until there is a final judgment as to the legality of the proceedings. A judgment as to the legality of the proceedings is final in cases when review is completed by an appellate court prescribed in s. 322.0675, and is deemed final by the law of state where the judgment was had.

322.071(2) (2) If the sentence of the court-martial extends to dismissal or a dishonorable or bad conduct discharge and if the right of the accused to appellate review is waived, or an appeal is withdrawn under s. 322.061, that part of the sentence extending to dismissal or a dishonorable or bad-conduct discharge may not be executed until review of the case by the senior force judge advocate and any action on that review under s. 322.064 is completed. Any other part of a court-martial sentence may be ordered executed by the convening authority or other person acting on the case under s. 322.060 when so approved under that section.

322.071 History History: 2007 a. 200.

322.072 322.072 Article 72 — Vacation of suspension.

322.072(1) (1) Before the vacation of the suspension of a special court-martial sentence, which as approved includes a bad-conduct discharge, or of any general court-martial sentence, the officer having special court-martial jurisdiction over the probationer shall hold a hearing on an alleged violation of probation. The probationer shall be represented at the hearing by military counsel if the probationer so desires.

322.072(2) (2) The record of the hearing and the recommendation of the officer having special court-martial jurisdiction shall be sent for action to the officer exercising general court-martial jurisdiction over the probationer. If the officer vacates the suspension, any unexecuted part of the sentence, except a dismissal, shall be executed, subject to applicable restrictions in this code.

322.072(3) (3) The suspension of any other sentence may be vacated by any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence.

322.072 History History: 2007 a. 200.

322.073 322.073 Article 73 — Petition for a new trial. At any time within 2 years after 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.

322.073 History History: 2007 a. 200.

322.074 322.074 Article 74 — Remission and suspension.

322.074(1) (1) Any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence may remit or suspend any part or amount of the unexecuted part of any sentence, including all uncollected forfeitures other than a sentence approved by the governor.

322.074(2) (2) The governor may, for good cause, substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial.

322.074 History History: 2007 a. 200.

322.075 322.075 Article 75 — Restoration.

322.075(1) (1) Under regulations as may be prescribed, all rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved, except an executed dismissal or discharge, shall be restored unless a new trial or rehearing is ordered and the executed part is included in a sentence imposed upon the new trial or rehearing.

322.075(2) (2) If a previously executed sentence of dishonorable or bad-conduct discharge is not imposed on a new trial, the governor may substitute therefor a form of discharge authorized for administrative issuance unless the accused is to serve out the remainder of the accused’s enlistment.

322.075(3) (3) If a previously executed sentence of dismissal is not imposed on a new trial, the governor may substitute a form of discharge authorized for administrative issue, and the commissioned officer dismissed by that sentence may be reappointed by the governor alone to a commissioned grade and rank as in the opinion of the governor that former officer would have attained had he or she not been dismissed. The reappointment of a former officer shall be without regard to the existence of a vacancy and shall affect the promotion status of other officers only insofar as the governor may direct. All time between the dismissal and the reappointment shall be considered as actual service for all purposes, including the right to pay and allowances.

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

322.076 322.076 Article 76 — Finality of proceedings, findings, and sentences. The appellate review of records of trial provided by this code, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this code, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this code, are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken subject to those proceedings are binding upon all departments, courts, agencies, and officers of the United States and the several states, subject only to action upon a petition for a new trial as provided in s. 322.073 and to action under s. 322.074.

322.076 History History: 2007 a. 200.

322.0763 322.0763 Article 76a — Leave required to be taken pending review of certain court-martial convictions. Under regulations prescribed, an accused who has been sentenced by a court-martial may be required to take leave pending completion of action under this section if the sentence, as approved under s. 322.060, includes an unsuspended dismissal or an unsuspended dishonorable or bad-conduct discharge. The accused may be required to begin leave on the date on which the sentence is approved under s. 322.060 or at any time after that date, and any leave may be continued until the date on which action under this section is completed or may be terminated at any earlier time.

322.0763 History History: 2007 a. 200.

322.0767 322.0767 Article 76b — Competency; commitment for examination and treatment.

322.0767(1) (1) The following applies to persons who are incompetent to stand trial:

322.0767(1)(a) (a) If a person subject to a general court-martial is found to lack substantial mental capacity to understand the proceedings or assist in his or own defense and the military judge determined that the person is likely to become competent within the period specified under s. 971.14 (5) (a), the court-martial convening authority for the person shall commit the person to the custody of the department of health services under s. 971.14 (5). If the military judge determines that the defendant is not likely to become competent in the time period specified under s. 971.14 (5), the military judge shall suspend or terminate the general court-martial.

322.0767(1)(b) (b) The department of health services shall submit all reports that are required under s. 971.14 (5) (b) and that pertain to a person subject to a commitment order under par. (a) to the court-martial.

322.0767(1)(c) (c) Upon receiving a report under s. 971.14 (5) (b), the court-martial shall make a determination as to whether the person has become competent. If the court-martial determines that the defendant has become competent, the court-martial shall terminate the commitment to the department of health services and resume the general court-martial. If the court-martial determines that the person is making sufficient progress toward becoming competent, the commitment shall continue. If the court-martial determines that the person is not likely to become competent to proceed in the time period specified under s. 971.14 (5) (a), the court-martial shall suspend or terminate the commitment order under this subsection.

322.0767(1)(d) (d) If a person who has been restored to competency again becomes incompetent, the maximum commitment period under s. 971.14 (5) (a) shall be as provided under s. 971.14 (5) (d).

322.0767(1)(e) (e) If the court-martial determines under par. (a) or (d) that the person is not likely to become competent to proceed, the court-martial may order that the person be delivered to a facility under s. 51.15 (2) (d), an approved public treatment facility under s. 51.45 (2), or an appropriate medical or protective placement facility.

322.0767(1)(f) (f) If the person is discharged from the military forces while subject to a commitment order under par. (a), the court-martial shall suspend or terminate the commitment order and may order that the person be delivered to a facility under s. 51.15 (2) (d), an approved public treatment facility under s. 51.45 (2), or an appropriate medical or protective placement facility.

322.0767(2) (2) The following applies to persons who are found not guilty by reason of mental disease or defect:

322.0767(2)(a) (a) If a court-martial finds a person not guilty by reason of mental disease or defect, the court-martial shall commit the person to the custody of the department of health services for a period not to exceed that described under s. 971.17 (1).

322.0767(2)(b) (b) Using the standard under s. 971.17 (3) (a), the court-martial shall determine whether the commitment order under par. (a) shall specify institutional care or conditional release.

322.0767(2)(c) (c) The court-martial has the same authority as a circuit court has under s. 971.17 (2) to order the department of health services to conduct a predisposition investigation using the procedure in s. 972.15 or a mental examination as provided under s. 971.17 (2) (b), (c), and (e) to assist the court-martial in determining whether to place the person in institutional care or to conditionally release the person.

322.0767(2)(d) (d) If the court-martial specifies institutional care, the department of health services shall place the person in an institution as provided under s. 971.17 (3) (c). If the court-martial specifies conditional release, the department of health services, in conjunction with the person’s county of residence, shall develop a plan for conditional release as provided under s. 971.17 (3) (d).

322.0767(2)(e) (e) After the court-martial enters an order under this subsection and transfers custody of a person to the department of health services, the person shall be subject to s. 971.17 and the circuit court for the county in which the person is institutionalized or where the person is placed on conditional release shall have jurisdiction in proceedings under s. 971.17.

322.0767 History History: 2007 a. 20 s. 9121 (6) (a); 2007 a. 200; 2009 a. 180, 276; 2017 a. 140.

subch. X of ch. 322 SUBCHAPTER X

PUNITIVE ARTICLES

322.077 322.077 Article 77 — Principals. Any person who either commits an offense punishable by this code, or aids, abets, counsels, commands, or procures its commission, or causes an act to be done which if directly performed by him or her would be punishable is a principal.

322.077 History History: 2007 a. 200.

322.078 322.078 Article 78 — Accessory after the fact. Any person who, knowing that an offense punishable by this code has been committed, receives, comforts, or assists the offender in order to hinder or prevent his or her apprehension, trial, or punishment shall be punished as a court-martial may direct.

322.078 History History: 2007 a. 200.

322.079 322.079 Article 79 — Conviction of lesser included offense. An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included.

322.079 History History: 2007 a. 200.

322.080 322.080 Article 80 — Attempts.

322.080(1) (1) An act, done with specific intent to commit an offense under this code, amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense.

322.080(2) (2) Any person who attempts to commit any offense punishable by this code shall be punished as a court-martial may direct, unless otherwise specifically prescribed.

322.080(3) (3) Any person may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated.

322.080 History History: 2007 a. 200.

322.081 322.081 Article 81 — Conspiracy. Any person who conspires with any other person to commit an offense under this code shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.

322.081 History History: 2007 a. 200.

322.082 322.082 Article 82 — Solicitation.

322.082(1) (1) Any person who solicits or advises another or others to desert in violation of s. 322.085 or mutiny in violation of s. 322.094 shall, if the offense solicited or advised is attempted or committed, be punished with the punishment provided for the commission of the offense, but, if the offense solicited or advised is not committed or attempted, the person shall be punished as a court-martial may direct.

322.082(2) (2) Any person who solicits or advises another or others to commit an act of misbehavior before the enemy in violation of s. 322.099 or sedition in violation of s. 322.094 shall, if the offense solicited or advised is committed, be punished with the punishment provided for the commission of the offense, but, if the offense solicited or advised is not committed, the person shall be punished as a court-martial may direct.

322.082 History History: 2007 a. 200.

322.083 322.083 Article 83 — Fraudulent enlistment, appointment, or separation. Any person who does any of the following shall be punished as a court-martial may direct:

322.083(1) (1) Procures his or her own enlistment or appointment in the state military forces by knowing false representation or deliberate concealment as to his or her qualifications for that enlistment or appointment and receives pay or allowances thereunder.

322.083(2) (2) Procures his or her own separation from the state military forces by knowing false representation or deliberate concealment as to his or her eligibility for that separation.

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

322.084 322.084 Article 84 — Unlawful enlistment, appointment, or separation. Any person who effects an enlistment or appointment in or a separation from the state military forces of any person who is known to him or her to be ineligible for that enlistment, appointment, or separation because it is prohibited by law, regulation, or order shall be punished as a court-martial may direct.

322.084 History History: 2007 a. 200.

322.085 322.085 Article 85 — Desertion.

322.085(1) (1) Any member of the state military forces is guilty of desertion if he or she does any of the following:

322.085(1)(a) (a) Without authority goes or remains absent from his or her unit, organization, or place of duty with intent to remain away therefrom permanently.

322.085(1)(b) (b) Quits his or her unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service.

322.085(1)(c) (c) Without being regularly separated from one of the state military forces enlists or accepts an appointment in the same or another one of the state military forces, or in one of the armed forces of the United States, without fully disclosing the fact that he or she has not been regularly separated, or enters any foreign armed service except when authorized by the United States.

322.085(2) (2) Any commissioned officer of the state military forces who, after tender of his or her resignation and before notice of its acceptance, quits his or her post or proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion.

322.085(3) (3) Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by confinement of not more than 10 years or other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by punishment as a court-martial may direct.

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

322.086 322.086 Article 86 — Absence without leave. Any person who, without authority, does any of the following shall be punished as a court-martial may direct:

322.086(1) (1) Fails to go to his or her appointed place of duty at the time prescribed.

322.086(2) (2) Goes from that place.

322.086(3) (3) Absents himself or herself or remains absent from his or her unit, organization, or place of duty at which he or she is required to be at the time prescribed.

322.086 History History: 2007 a. 200.

322.087 322.087 Article 87 — Missing movement. Any person who through neglect or design misses the movement of a ship, aircraft, or unit with which he or she is required in the course of duty to move shall be punished as a court-martial may direct.

322.087 History History: 2007 a. 200.

322.088 322.088 Article 88 — Contempt toward officials. Any commissioned officer who uses contemptuous words against the president, the vice-president, members of congress, the secretary of defense, the secretary of a military department, the secretary of homeland security, or the governor or legislature of the state of Wisconsin shall be punished as a court-martial may direct.

322.088 History History: 2007 a. 200.

322.089 322.089 Article 89 — Disrespect toward superior commissioned officer. Any person who behaves with disrespect toward his or her superior commissioned officer shall be punished as a court-martial may direct.

322.089 History History: 2007 a. 200.

322.090 322.090 Article 90 — Assaulting or willfully disobeying superior commissioned officer. A court-martial may direct punishment on any person who does any of the following:

322.090(1) (1) Strikes his or her superior commissioned officer or draws or lifts up any weapon or offers any violence against him or her while he or she is in the execution of his or her office.