HOUSE OF REPRESENTATIVES

149th GENERAL ASSEMBLY

HOUSE BILL NO. 22

AN ACT TO AMEND TITLE 20 OF THE DELAWARE CODE RELATING TO THE DELAWARE NATIONAL GUARD.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Subchapter IV, Chapter 1 of Title 20 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 151. Kinds of courts-martial; procedures; Military Judges . ; Judge Advocates.

(a) Courts-martial shall be of 3 kinds: general, special and summary. These courts shall be constituted like similar courts-martial of the Army and Air Force of the United States to the extent practicable.

(1) Convictions by general and special courts-martial will be recorded in accordance with Chapter 86 of Title 11 and the rules and regulations promulgated by the DELJIS Board of Directors.

(2) Any conviction by a summary court-martial or by non-judicial punishment is not a criminal conviction and not reportable.

(b) These courts-martial shall have the jurisdiction and powers as specified in regulations adopted and promulgated by the Adjutant General that shall conform as far as practicable to the Uniform Code of Military Justice (10 U.S.C. § 801 et seq.) (“UCMJ”) and the Manual for Courts-Martial of the United States.

(c) These courts shall use the forms and procedures as established for similar courts of the Army and Air Force of the United States, as adopted by regulation by the Adjutant General.

(d) Any charge shall be prosecuted under 1 or more articles of the Uniform Code of Military Justice, except as specifically excluded by regulation of the Adjutant General. These articles, and the adopting regulations of the Adjutant General shall be of the same force and effect in any proceeding before any court-martial of this state as if the same had been enacted at length in this section.

(e) The Adjutant General may designate 1 or more officers of the Delaware National Guard who is/are qualified members of the Judge Advocate General Corps as "Military Judge" for state military justice purposes.

(f) The Adjutant General may appoint 1 or more officers of the Delaware National Guard who is/are qualified members of the Judge Advocate General Corps as "Military Judge for Court of Military Review" for the purpose of reviewing the legal sufficiency of any court-martial and making a recommendation to the Adjutant General as to final action on the court-martial proceedings.

(f) Members of the Delaware National Guard Judge Advocate General Corps must be members in good standing of the bar of the highest court of a state and certified or designated as a judge advocate in the Judge Advocate General’s Corps of the Army, Air Force, Navy, Marine Corps, or Coast Guard, or a reserve component of one of these.

(g) The decision of any general or special court-martial may be appealed to the Delaware Supreme Court for review on the record; however, a special court-martial must first be appealed to the Delaware Adjutant General, if not the convening authority, prior to acceptance by the Delaware Supreme Court. A decision by the Delaware Supreme Court is final and binding on all parties.

(1) The findings of such court as to the legal sufficiency of the proceedings shall be binding on the Delaware National Guard.

(2) A record of all decisions of the court shall be maintained.

§ 152. General courts-martial.

(a) The Governor or Adjutant General may convene a general court-martial by appropriate order.

(b) A general court-martial may impose a sentence of:

(1) A fine of not more than the member's pay and allowances for 24 unit training assemblies;

(2) Forfeiture of the member's pay and allowances for up to 24 unit training assemblies;

(3) A reprimand;

(4) Dismissal, dishonorable discharge or a bad conduct discharge;

(5) Reduction of any noncommissioned officer or enlisted person to any rank; or

(6) Any combination of these punishments. A sentence of confinement in accordance with the limitations set forth in § 155 of this subchapter; or

(7) Any combination of these punishments.

(c) Any sentence imposed by a general court-martial shall not become effective until approved by the Adjutant General.

§ 155. Confinement. Maximum limits

(a) When not in federal service, a general or special court-martial may, instead of imposing a fine or forfeiture, sentence to confinement for 1 day for each unit training assembly the punishment which a court-martial may direct for an offense shall not exceed such limits as prescribed by the UCMJ subject to the limitations in this section .

(b) In no instance shall a sentence exceed 5 years imprisonment nor shall a sentence of death be adjudged. Additionally, all military-only offenses are misdemeanors and a sentence of confinement must not exceed 1 year. A conviction by general or special court-martial of any offense for which an accused may receive a sentence of confinement for more than one year shall be a felony offense. Except for convictions by a summary court-martial, all other convictions shall be misdemeanors.

(b) Any sentence to incarceration by a general or special court-martial shall not be executed until approved by the Adjutant General.

(c) Any sentence to incarceration by a general or special court-martial shall not be executed until approved by the Adjutant General.

(c) Any sentence to incarceration by a general or special court-martial shall be required to be served only when the service member is on regular duty on annual training or has already been activated for state service under subchapter V of this chapter.

(d) The Department of Correction shall receive and confine all military offenders committed to its custody by order of court-martial approved by the Adjutant General.

§ 156. Sentences which require Governor's approval.

When not in federal service, sentence of confinement or dismissal or dishonorable or bad conduct discharge from the service imposed by court-martial shall not be executed until approved by the Governor.

§ 159. Payment of fines.

(a) Upon approval of the sentence of any court-martial to pay a fine by the court-martial convening authority, the fine so imposed shall be immediately due and payable to the Delaware National Guard Courts-Martial Central Fund, through the commander of the member's unit to be forwarded to the Adjutant General.

(b) Any fine or forfeiture imposed by sentence of court-martial or non-judicial punishment collected by the Adjutant General shall be paid over to the Delaware National Guard Courts-Martial Central Fund.

Section 6. Amend § 163, Title 20 of the Delaware Code by making deletions as shown by strikethrough and insertions as shown by underline as follows:

§ 163. Nonjudicial punishment.

Any commanding officer of the Delaware National Guard, not in federal service, may, in addition to or in lieu of admonition or reprimand, impose nonjudicial punishment in a like manner and to the extent prescribed by Article 15 of the Uniform Code of Military Justice, UCMJ and the Manual for Courts-Martial, United States, 1968 2012 , as amended, as adopted by regulation of the Delaware National Guard.

SYNOPSIS

This Act updates the requirements for Courts-Martial to ensure that all members of the Delaware National Guard have due process. The Act clarifies the classifications of crimes under the code. The Act also strikes out irrelevant laws and laws that violate federal laws.