Friday, January 13, 2023

Un-uniform National Guard

While not a primary focus, we do, from time to time, look at how the State National Guards administer military justice. Each state approaches the issue differently. Some have adopted the federal UCMJ, some have adopted the ABA Model Code of Military Justice, and others leave it to civilian prosecutors to proceed in a civilian court for even military offenses. NIMJ has a link to the various NG laws here. Colonel Douglas Simon’s article Making the UCMJ More Uniform, Army Lawyer
No. 3, 2021, at 72, is helpful in understanding the lack of uniformity (scroll close to the end). Anyway, we came across Adam Yahya Rayes, Bill to make court-martialing Indiana National Guard easier advances, despite ‘due process' concerns. Wfyi Indianapolis, 12 January 2023.

Current state law only allows the governor to convene a general court-martial. HB 1076 would extend that power to the adjutant general, the governor-appointed senior military official for the state.

This change would mimic the UCMJ. The President and Service Secretaries (civilians) have the power under UCMJ art. 2, 10 U.S.C. § 802, to refer cases to court-martial. In practice, the general or flag officer commanding a particular jurisdiction (base, area, or large command) is the convening authority.

Because of the difficulties in getting the Governor’s approval, two sexual assault cases last year were disposed of through administrative separation. The civilian prosecutors who had jurisdiction had declined prosecution.

As presented, the article does not note anything much different from how active-duty cases are disposed of—until you get to the end.

HB 1076 would also take away the right for guardsmen to request a court martial instead of taking “non-judicial” or “Article 15” punishments for lesser offenses like returning late to post. That was a point of contention in the committee meeting Wednesday.

“I received an Article 15 for being late getting back to my post. And there were extenuating circumstances on that. Don't think I really deserved it,” said Rep. Chuck Moseley (D-Portage). “I feel a little uncomfortable with the possibility of not providing that individual with all the due process, options and avenues that might be available to him.”

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